Air Force Court of Criminal Appeals

In Wermuth, the Appellant had several issues including trial counsel's sentencing argument.

Appellant asserts trial counsel’s statement that the court had “heard no evidence” that Appellant had “actually gotten help” during the “yearand-a-half” of investigation was improper because the Defense had no obligation to put on evidence. The implication of trial counsel’s comment was that the Defense had failed to introduce such evidence. We agree this argument by trial counsel was, at a minimum, poorly phrased. Trial counsel is generally not permitted to comment on the failure of the defense to produce evidence. Taylor, 47 M.J. at 324 (C.A.A.F. 1997). Although Taylor and the cases cited therein dealt specifically with evidence for findings, with regard to sentencing evidence this court has noted: “Whenever trial counsel chooses to argue that an accused has not ‘shown’ the sentencing authority something, counsel treads backwards into a mine field in over-sized galoshes while wearing a blindfold.” United States v. Feddersen, No. ACM 39072, 2017 CCA LEXIS 567, at *9 (A.F. Ct. Crim. App. 21 Aug. 2017) (unpub. op.). In response, the Government cites United States v. Edwards for the principle that trial counsel may comment on an accused’s expression of remorse in an unsworn statement that “can be arguably construed as being shallow, artificial, or contrived.” 35 M.J. 351, 355 (C.M.A. 1992) (citations omitted). However, this response misses the mark. The concern is not that trial counsel commented on Appellant’s unsworn statement, but that he did so by implying the Defense failed to introduce evidence substantiating Appellant’s statement, rather than referring to “other evidence in the record which gives rise to the inference that [the] accused [wa]s not remorseful.”

Interested readers might also want to wade through the discussion of victim impact statements that are attached to the stipulation of fact.