Army Court of Criminal Appeals

United States v. Connor

The Conner case is another addressing what a victim can say in an impact statement. We know that sentencing witnesses cannot opine on a punitive discharge or a specific sentence. The newer question is whether a victim can say something similar in an impact statement. The court finds an error but gives no relief.

Appellant now claims the military judge erred in allowing the victim to ask for a specific sentence in his unsworn statement. For the reasons set forth, while we agree with the appellant that the military judge erred in admitting such evidence, the appellant is not entitled to any relief because the error was harmless."

​In its restatement of the law the court says:

Rule for Courts-Marital [R.C.M.] 1001(c)(3) states that a victim impact statement, either sworn or unsworn, "may not include a recommendation of a specific sentence." The Discussion following R.C.M. 1001(c)(5)(B) notes that "[u]pon objection by either party or sua sponte, a military judge may stop or interrupt a victim's statement that includes materials outside the scope of R.C.M. 1001(c)(3). See also United States v. Ohrt, 28 M.J. 301, 305 (C.M.A. 1989) ("The question of appropriateness of punishment is one which must be decided by the court-martial; it cannot be usurped by a witness. Thus, for the same reasons that we do not permit an opinion of guilt or innocence, or of 'truthfulness' or 'untruthfulness' of witnesses, we do not allow opinions as to appropriate sentences") (citations omitted). The Court of Military Appeals in Ohrt also criticized the use of "euphemisms" that were simply other ways to say "[g]ive the accused a punitive discharge." Id.

There was no objection by either the defense or the military judge, so the court used the plain error standard of review. Interestingly, given its law restatement, is the court applying the plain error rule to the military judge's failure to sua sponte interrupt as well as to defense counsel? We know the discussion to R.C.M.s is not binding, but in 1001(c)(5)(B), it seems clear the President intended to place some onus on the military judge to intercede. Thus, there is a difference with many other objections where the onus to object is entirely on the defense.

At the end of the opinion, the court recognizes that "notwithstanding the judge's mistake in permitting the [recommendation,]" there is no prejudice. Slip op. at 5 (emphasis added).

​ (We also might why the special victim counsel and trial counsel did not address the issue in pretrial preparations before it came before the court.)

---

United States v. Denham

Denham is another military judge (and counsel) error case. This case demonstrates another of the complexities introduced through the different changes to the UCMJ and R.C.M.s over the years.

At trial, the military judge and parties agreed that a RiR to E-1 was mandatory under Article 58(a). The Appellant was sentenced to 24 months, RiR to E-1, TF, and a DD.

ACCA found waiver of the issue by the defense, however, the court

elect[ed] to pierce waiver and grant appellant relief because the military judge's interpretation and application of the law was clearly erroneous. See United States v. Chin, 75 M.J. 220, 223 (C.A.A.F. 2016) ("CCAs are required to assess the entire record to determine whether to leave an accused's waiver intact, or to correct the error).

​The problem came from the delay between the effective date of Article 58(a), the Appellant's trial in May 2023, and the adoption of the required regulation in E.O. 14103 in July 2023. ACCA found a lack of certainty in the military judge's announcement of the RiR as appropriate or based entirely on the error--RiR set aside. 

---

There are several cases pending at CAAF on military judge issues.

No. 23-0204/MC. U.S. v. Thomas H. Tapp. CCA 202100299.

WAS APPELLANT DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO AN IMPARTIAL JUDGE?

Appellant's redacted brief     Appellee's brief Appellant's reply brief

No. 24-0002/AR. U.S. v. Allan L. Armstrong. CCA 20210644.

WHETHER THE MILITARY JUDGE'S DEPARTURE FROM IMPARTIALITY DEPRIVED APPELLANT OF HIS RIGHT TO A FAIR TRIAL.

On August 2, 2023, the Army Court summarily affirmed the finding and sentence. United States v. Armstrong, ARMY 20210644, 2023 CCA LEXIS 340 (Army Ct. Crim. App. August 2, 2023).

Appellant's brief

---

United States v. Coe
__ M.J. ___ (on reconsideration)

Another case where the issue is a charge and conviction for violating Article 120(b)(2)(A), but where much of the evidence rested on "incapacity" due to alcohol. CAAF will be taking an interest in the issue.

"Appellant, who was charged with one specification of violating Article 120(b)(2)(A), sexual assault without the consent of the other person, now alleges that because the government's theory of the case, and the bulk of the evidence, pertained to the victim's level of intoxication, the government's charging decision violated his due process rights. Specifically, appellant asserts that it was error for the government to charge him under one theory of liability for sexual assault (without consent), but to then convict him under a different, non-charged theory of sexual assault (upon a person who is incapable of consenting due to impairment by intoxicant).

​Here ACCA found no error because the evidence of alcohol on board can be circumstantial evidence to prove lack of consent.

As such, in light of Article 120(g)(7)(C)'s explicit prescription that we are to consider all the surrounding circumstances in determining whether a person gave consent, we also agree with our colleagues in Roe that "[b]y way of logic, if the government proves that a victim is asleep or unconscious and therefore legally incapable of consenting at the time of a sexual act, that is strong evidence that the victim did not, in fact, consent." Id. at *14. Not surprisingly, based on our research it appears that every other service-level appellate court to consider this issue has reached the same conclusion.

​We come again to the question of why Congress needed to have two other specific offenses, that are effectively subsumed into one. And a reminder to the defense that any Article 120 charge that in some way involves alcohol or sleeping must be defended as if it were charged under Article 120(b)(2)(B) or 120(b)(3). For the defense this means challenging the case as if it were charged as incapacity: get the toxicologist, get the forensic psychologist, get the testimony about the effects of alcohol or lack of effect.

In reading the cases and records of trial, several issues crop up frequently in the prosecution's argument on findings: the argument that reporting being blacked out is evidence of lack of consent, and arguing the evidence shows incapacity to consent (when the specification is 120(b)(2)(A). 

Perhaps Congress intended one violation to require "real" incapacity to consent because of so much alcohol on board compared to the affect of some alcohol on whether they person consented. We know that somone can consent to sex while "drunk" (people make bad decisions while under the influence of alcohol) or may have "blacked out." Whether someone is blacked out doesn't go to consent, that goes to memory (any competent, including prosecution, expert can make that distinction), so it would be misleading to argue evidence of a blackout is evidence of a lack of consent (and also ignores the affirmative defense of mistake).

A "pass-out, on the other hand, typically occurs at (blood alcohol levels) of 0.30 or higher and occurs when the level of alcohol reaches such a high level that the part of the brain that controls consciousness has literally shut down, so those individuals have lost consciousness and would not be easily roused." "The SAPR-perpetuated 'one drink and you can't consent' axiom," seemingly adopted by SA LS, "is not the standard.

United States v. Hanabarger, No. 201900031, 2020 CCA LEXIS 252, at *33-34 (N-M Ct. Crim. App. July 30, 2020).

Compare that with being "drunk," etc., 

A "blackout" " and a "pass-out" from intoxication are very different things. During an "alcohol-related blackout . . . an individual is still fully conscious" and can be "moving around, acting, engaging, talking, dancing, driving, engaging in all kinds of behavior. Still, because alcohol inhibits the transfer of information from short-term memory to long-term memory, they simply will be unable to remember those decisions or actions they made while in the blackout." The individual might engage in "activities which require complex cognitive abilities. Still, the individual might not remember the next day" and "might regret it.

United States v. Hanabarger, No. 201900031, 2020 CCA LEXIS 252, at *33-34 (N-M Ct. Crim. App. July 30, 2020).

"The critical takeaway is that an intoxicated person can consent to sexual activity." United States v. Clugston, 2017 CCA LEXIS 43, *6 (N-M. Ct. Crim. App. 31 Jan. 2017) (memorandum op.) rev. denied 76 M.J. 428 (C.A.A.F. 2017). Accord, United States v. Long, 73 M.J. 541 (Army Ct. Crim. App. (2014) rev. denied 73 M.J. 409 (C.A.A.F. 2014). CAAF seems to be on board with the principle.

Intoxication, standing alone, does not indicate one is sufficiently impaired to be incapable of consenting to sexual activity. See United States v. Bodoh, 78 M.J. 231, 237 (C.A.A.F. 2019) (noting that it is a "false premise that a person who is intoxicated is inherently incapable of consenting to sexual acts"); United States v. Rogers, 75 M.J. 270, 274 (C.A.A.F. 2016) (correcting the erroneous "belief that if someone was too drunk to remember that they had sex, then they were too drunk to consent to having sex").

United States v. Smith, 83 M.J. 350, 356 n.4 (C.A.A.F. 2023).

As with all of these cases, there are witnesses who themselves were in various states of intoxication. Consider this point, be mindful that witnesses may have difficulty assessing with reasonable accuracy whether someone is drunk or not simply by observation. Cf. Steve Rubenzir, Judging Intoxication. 29 Behav. Sci. Law. 116 (2011). Perhaps this also is something to be explored with experts. While not directly on point, one of the author's conclusions is,

​Individual studies have assessed the ability of college students, police officers, physicians, bartenders, psychologists, and alcohol counselors to assess alcohol intoxication. In general, none of these groups show a consistent ability to diagnose intoxication without access to specialized tests.