Air Force Court of Criminal Appeals

In United States v. Jackson, an "enlisted" panel convicted Appellant of four A&B on his spouse, three assaults on an intimate partner, and two failures to obey firearm registration regulations, for which he was sentenced to three years, RiR, a BCD, and a reprimand. On appeal, his issues included,

(1) The assault & battery by grabbing KM’s neck and torso with his arms, as charged in Specification 2 of Charge II, is legally and factually insufficient.
(2) The failure to obey a lawful general regulation are legally and factually insufficient because the regulation at issue was not ​properly published and cannot qualify as a general regulation.
(3) TC improperly cross-examined Appellant by referring to Appellant’s attendance at a domestic violence treatment program and by asking him whether the mechanism of injury was consistent with the opinion of an expert witness called by the Government.
(4) in a related claim, DC were constitutionally ineffective for failing to timely object to trial counsel’s improper cross-examination of Appellant.
(5) The MJ failed to instruct the panel that a guilty verdict must be unanimous was not harmless beyond a reasonable doubt.
(6) TC’s sentencing argument was improper because it faulted Appellant for failing to apologize, it appealed to what the “audience” would think, and it asked the members to consider the “trauma” inflicted upon a nonvictim.
(7) The MJ erred by instructing the members in sentencing that they will not draw any adverse inference from the fact that Appellant elected to make a statement that was not under oath after the military judge specifically asked the Defense whether it wanted this instruction and the Defense replied it did not.
(8) The CA erred by failing to take complete action on the sentence.
(9) The CA's reprimand improperly commented on Appellant’s defense at trial and rights against self-incrimination, thereby rendering the reprimand inappropriately severe and in violation of Appellant’s rights under the Fifth and Sixth Amendments6 and Article 37, UCMJ, 10 U.S.C. § 837.
(10) Untimely post-trial processing.

​On the XE and IAC, the court finds,

​Appellant forfeited claims that trial counsel’s questioning of Appellant was improper by failing to object at trial and that Appellant has not met his burden to demonstrate plain error. The court likewise finds Appellant has failed to show that trial defense counsel were constitutionally deficient by failing to object to trial counsel’s questions put to Appellant on cross-examination.

The opinion reads as if the defense opened the door. The defense had proffered a violation of Mil. R. Evid. 404(b).

We are not persuaded that Mil. R. Evid. 404(b)(1) is the correct rule to decide this matter. Instead, we look to Mil. R. Evid. 404(a)(2)(A), which governs situations where an accused offers evidence of his character. We also look to the law of impeachment by contradiction. See, e.g., United States v. Sojfer, 47 M.J. 425, 427 (C.A.A.F. 1998). This method of impeachment “involves showing the tribunal the contrary of a witnesses’ asserted fact, so as to raise an inference of a general defective trustworthiness.” United States v. Banker, 15 M.J. 207, 210 (C.M.A. 1983) (first citing 3A John H. Wigmore, Evidence § 1000 (Chadbourne rev. 1970); and then citing Charles T. McCormick, McCormick’s Handbook of the Law of Evidence § 47 (E. Cleary 2d ed. 1972)).

​The challenged line of questioning had its origin in responses Appellant gave to trial defense counsel questions when he testified in his own defense. Appellant explained how he took the initiative to find resources to improve communication in his marriage. The implication of his testimony was that AJ was verbally aggressive and behaved inappropriately in their son’s bedroom and, at the same time, Appellant attempted to deescalate the situation by removing AJ from the room. A logical inference from Appellant’s direct examination is that it was less probable he was the aggressor in the May 2017 incident with AJ in their son’s bedroom because, mindful of the resources he took the initiative to discover, Appellant was sensitive to avoiding a conflict escalation in his marriage. Appellant’s testimony about initiatives he said he took to avoid conflict with AJ opened the door to challenge on cross-examination.

On the question of the TC's arguments, I have a question. Is there ever a case when it is in the best interest of the accused that he not make any statement in sentencing? There is at least one, but it's unrelated to the facts of this case.

On the CA's reprimand, how should we interpret this part of the reprimand in the context of this case?

You have been made aware countless times over the course of your career that domestic violence is both abhorrent and illegal. The fact that you strangled two women you supposedly loved is so cowardly and reprehensible that I struggle to find words powerful enough for a rebuke. This is made even more difficult because you physically assaulted your loved ones just steps away from your child! Given the tearful statements these women made during your sentencing hearing, it is clear that the damage you inflicted upon them is irreparable. That you had the audacity to downplay their obvious physical and emotional harm is not only repugnant, it demonstrates that you feel neither shame nor ​regret over your actions. Accordingly, you are hereby reprimanded!