Appellant raises one assignment of error with six underlying allegations that trial defense counsel was constitutionally ineffective during his representation of Appellant by failing to: (1) object to improper findings testimony; (2) call a defense expert witness; (3) object to admission of incomplete personnel records; (4) object to an improper victim impact statement; and (5) investigate favorable defense witnesses. In addition, Appellant claims (6) trial defense counsel’s “misplaced concern for the named victim amounted to an actual conflict of interest which adversely impacted his representation” of Appellant by withdrawal of a valid objection during sentencing.

​Although the rationale given by trial defense counsel to explain his advocacy during sentencing is perplexing, Appellant has not shown that any of his allegations constituted a deficiency of a constitutional scale or error that materially prejudiced his substantial rights. We thus affirm the findings and sentence. 

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.”

In light of Rule for Courts-Martial (R.C.M.) 705(c)(1)(b), did the military judge err when she:
A. Failed to advise Appellant that his agreement to “waive all waivable motions” could not be enforced to prevent him from raising an R.C.M. 707 speedy trial motion;

B. Implied that “in order to get the benefit” of his pretrial agreement, Appellant had to “give up making these motions,” which included an R.C.M. 707 speedy trial motion; and

C. Advised Appellant that his failure to “waive all waivable motions,” implicitly including his R.C.M. 707 speedy trial motion, would result in the cancelation of his pretrial agreement? If so, is appellant entitled to relief?

Did Appellant receive ineffective assistance of counsel when trial defense counsel failed to seek relief for a potential violation of Appellant’s right to speedy trial under [R.C.M.] 707? If so, is Appellant entitled to relief? 

​We find the military judge’s colloquy with Appellant did raise a substantial basis to question the providency of Appellant’s guilty plea to striking CG with his “hands” rather than one hand, and that the military judge abused his discretion by accepting Appellant’s plea without modification. In order to find the guilty plea provident, a military judge must establish that the accused believes he is guilty of the offense to which he pleaded. See Murphy, 74 M.J. at 308. In this case, Appellant told the military judge that he could not remember the offense, but he believed he used one hand to strike CG, rather than both hands as charged and pleaded. Having developed this discrepancy, the military judge failed to resolve it. Indeed, the military judge’s comments as he transitioned to a discussion of potential defenses acknowledged that Appellant was only “potentially” guilty of using both hands, but possibly only used his “dominant hand,” and that Appellant was “telling” the military judge he used his dominant hand. We note that CG noticeably suffered injuries to the left side of her face and body, suggesting that Appellant was swinging at her with his right arm as he faced her. However, what is most significant is that the military judge elicited that Appellant doubted the specification he pleaded to accurately described what actually happened. This is more than the mere possibility of a conflict. See Watson, 71 M.J. at 58.

After the parties filed their original briefs, this court decided United States v. Livak, 80 M.J. 631 (A.F. Ct. Crim. App. 2020). Specifically, Livak established an aggregated 150-day standard for facially unreasonable delay from sentencing to docketing with the Court of Criminal Appeals for cases referred to trial on or after 1 January 2019. [W]e find no facially unreasonable delay under the Moreno and Livak thresholds. Because the CAAF has never held that the specific time standards in Moreno were the exclusive means by which an appellant could demonstrate facially unreasonable delay, we have considered whether the actual delays in this case were facially unreasonable. We find the Government exercised a reasonable degree of diligence. Finally, recognizing our authority under Article 66(d), UCMJ, 10 U.S.C. § 866(d), we have also considered whether relief for excessive post-trial delay is appropriate in this case even in the absence of a due process violation.

Appellant raises 14 issues for our consideration on appeal: (1) whether the evidence is legally and factually sufficient to support his conviction; (2) whether the military judge erred by failing to give a proper instruction on the affirmative defense of involuntary intoxication; (3) whether trial defense counsel were ineffective by failing to research or request a proper instruction on involuntary intoxication; (4) whether the military judge erred by failing to give a proper limiting instruction upon the admission of human lie detector evidence; (5) whether trial defense counsel were ineffective by failing to appreciate the prejudicial effect of human lie detector evidence and failing to request a limiting instruction; (6) whether the military judge erred by failing to give a timely and proper limiting instruction regarding evidence of Appellant’s prior waiver of an administrative discharge board; (7) whether trial defense counsel were ineffective by failing to appreciate the prejudicial effect of evidence of Appellant’s discharge board waiver and failing to request a limiting instruction; (8) whether the military judge abused his discretion by admitting testimonial hearsay; (9) whether a witness immunity letter issued by the convening authority amounted to unlawful command influence; (10) whether trial counsel engaged in prosecutorial misconduct during argument on findings; (11) whether trial defense counsel were ineffective by failing to object to trial counsel’s argument; (12) whether Appellant was wrongfully denied credit against his sentence for nonjudicial punishment he previously received for the same offense for which he was convicted; (13) whether Appellant is entitled to relief for cumulative error; and (14) whether the military judge abused his discretion by limiting the time allotted for closing argument.

Teacher: What have we here, laddie? Mysterious scribblings? A secret code? No! Poems, no less! Poems, everybody!
[classmates laughs] 
Teacher: The laddie reckons himself a poet!

Appellant then asked SSgt CR if she liked poetry and if she would like to hear a poem he had written. SSgt CR said, “sure,” and Appellant began reading. As Appellant read the poem, SSgt CR perceived that it “was very sexually explicit,” so she stopped Appellant and told him, “I’m sorry. I did not realize the contents of this poem.” SSgt CR testified that she thought the poem was about “a sexual encounter that he had with a woman,” but she did not have any impression regarding whether the encounter was portrayed as consensual or not. At Appellant’s court-martial, SSgt CR only recalled two brief excerpts from the poem. The first was, “just stick the tip in,” and the second was, “[m]y hands down her pants touching her c*******.” 

 TSgt SD did not recall if Appellant asked her to listen to the poem or if her husband, SSgt SD, who worked in the same area, told her to come listen to Appellant read it. TSgt SD testified that she and SSgt SD were there for the reading, as well as her supervisor TSgt M and her co-worker SSgt EG. Before he began reading, Appellant told the group that the poem “could be read from either a female’s perspective or a male’s perspective.” Once Appellant said the word “c*******,” TSgt SD walked away because she felt uncomfortable and “didn’t want to be around that.” TSgt SD did not say how long she listened to the poem, but she described the portion she heard as “quick.”
. . . 
SSgt EG testified that it was SSgt SD who asked her (SSgt EG) to come hear the poem. SSgt EG said the reading was “[n]ot very long . . . . a minute maybe” and that “[w]hen [Appellant] got to the part that [she] felt was inappropriate, [she] said, ‘uh, that’s inappropriate,’ and he stopped.” She testified she walked away from Appellant at the same time TSgt SD did, leaving Appellant standing with SSgt SD who was “uncomfortably laughing.” According to SSgt SD, Appellant’s reading “maybe lasted 30 seconds,” and SSgt SD said he was the one who told Appellant to stop reading after somebody said, “[Y]ou can’t say that at work or in the work environment.”
. . . 
TSgt SD testified that, from what she remembered, “the poem was about either a male or a female having sexual intercourse with someone who is saying no, but they’re continuing to pursue this person sexually.” TSgt SD said she interpreted the poem to be about rape or sexual assault. SSgt SD, however, thought the poem was about a man and a woman “dancing with each other and essentially like the female didn’t want to dance or do whatever they were doing anymore” and the female “wanted the guy to stop.” SSgt EG just remembered there being “some talk about sex acts in the poem . . . . talking about sex; like actually having sex.”
. . . 
In terms of the exact words Appellant used, TSgt SD remembered Appellant saying “b*****” and “c*******.” She did not remember what the male in the poem was doing with the woman’s breast, but she thought there “was contact.” TSgt SD initially testified that she could not remember what the male was doing with the woman’s clitoris, leading trial counsel to ask her, “Do you remember him saying he was rubbing her c***?” TSgt SD answered, “Now that you say that, I think that’s what he said.” For his part, SSgt SD said he remembered the poem saying the male was touching the female’s “vagina.” TSgt EG did not remember any particular words from the poem at all.

When SSgt EG was asked how the reading affected good order and discipline in the unit, she answered, “It’s hard to say.” She explained that while inappropriate, the reading “didn’t bother [her],” but “[i]f you’re making people that you work with uncomfortable and maybe someone doesn’t have tough skin, that could break[ ]down like trust and stuff like that and being able to work and get the mission done.” 

“refers only to acts directly prejudicial to good order and discipline and not to acts which are prejudicial only in a remote or indirect sense.” 2016 MCM, pt. IV, ¶ 60.c.(2)(a). As explained in the Manual for Courts-Martial, “Almost any irregular or improper act on the part of a member of the military service could be regarded as prejudicial in some indirect or remote sense; however, this article does not include these distant effects. It is confined to cases in which the prejudice is reasonably direct and palpable.” Id. The requirement to prove this third element “filters out from punishment language that is colloquial vocabulary and may be routinely used by service members.” United States v. Negron, 60 M.J. 136, 144 (C.A.A.F. 2004).

We conclude the findings of guilty for the two indecent-language specifications are neither legally nor factually sufficient. We first note the dearth of evidence in the record establishing what Appellant actually said when he read his poem.

Viewing the evidence in the light most favorable to the Prosecution, it appears Appellant described sexual conduct in a somewhat detailed, if not explicit, fashion. Drawing every possible inference in the Government’s favor, Appellant’s poem could be understood to describe nonconsensual sexual contact. What there is no evidence of, however, is the overall tone or theme or even the point of the poem. That is, there is nothing in the record that indicates whether the conduct described in the poem was presented in a way designed to sexually excite a listener, to describe the behavior in a negative light, or to serve as a metaphorical condemnation of sexual misconduct. The words themselves fall far short of being “grossly offensive to modesty, decency, or propriety” or that they “shock[ ] the moral sense, because of [their] vulgar, filthy, or disgusting nature,” especially insofar as the few words the witnesses recalled are medically correct anatomical terms. The only arguably coarse term that appears in the record is the slang word “c***” as shorthand for “c*******,” but that word was only uttered by trial counsel in a leading question, not by any of the witnesses.

[And second] [b]eyond the failure of the evidence to establish that Appellant’s language was indecent, the record is also inadequate to support a conclusion that Appellant’s conduct amounted to “direct and palpable” prejudice to good order and discipline. To the contrary, Appellant’s conduct seemingly had virtually no impact on good order and discipline.

I acknowledge the Government was not able to introduce the exact text of the sexually explicit poem Appellant read to several noncommissioned officers (NCOs) in their workplaces in August 2018, and that the four witnesses who testified about Appellant’s indecent language had imperfect memories of the incidents. However, I find the witnesses’ testimony to be generally credible and, importantly, not significantly inconsistent. Taken together, the testimony of Staff Sergeant (SSgt) CR, Technical Sergeant (TSgt) SD, SSgt EG, and SSgt SD demonstrates Appellant’s poem described the perspective of someone pursuing unwanted sexual activity with an unwilling female, including references to touching her b****** and genitalia, and including specific phrases to the effect of “rubbing her c***” and “just stick the tip in.”

The majority asserts they are not willing to “broadly paint any discussion of sexual conduct among adults as indecent language under a theory that someone, somewhere might be aroused by it.” Neither am I. However, the definition of indecency does not require the language to be actually or potentially sexually ​arousing. I also agree that many things that are inappropriate to say in the workplace are not “indecent.” However, language that is grossly offensive to propriety because of its vulgar nature and violates the standards of the military community is, by definition, indecent.

Cheers, Phil Cave