Appellant Nix was convicted MJA of an assault and battery on his ex-wife, for which the MJ sentenced him to 135 days, RiR, a BCD, and a reprimand.
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.
Initially the IAC claims items (1) - (5) was a Grosty. The court ordered DC declarations. Upon receipt of the declaration, appellant's counsel added item (6) and also moved the issues from the Grosty table to a merits issue. (Note. This is another case where sometimes a Grosty issue gets the court's attention and sometimes, although not here, gets relief.)
1. Improper findings testimony.
A witness testified about lingering pain and about the appellant's "personal morals." There was no objection. However, the MJ sua sponte said he'd only consider the testimony for the limited purpose of "why the witness remembers the conversation." Even if error, no prejudice on these facts.
2. Not calling an expert.
Baker is remanded because "the convening authority violated Appellant’s basic due process rights when she decided to take no action on sentence before allowing Appellant five days to respond to the victim’s post-trial submission of matters in accordance with Rule for CourtsMartial (R.C.M.) 1106(d)(3)"
Appellant pled guilty to three sexual abuses of a child and of receiving and viewing CP; for which he was sentenced to 15 months, RiR, and a DD.
That leaves two issues on table when the case comes back one of which asks "whether trial counsel’s sentencing argument improperly referenced victim impact and criticized Appellant’s apology when no victim impact evidence had been admitted."
Note to DC. "Appellant did not file a motion with the military judge alleging convening authority error, as permitted under R.C.M. 1104(b)(2)."
In remanding, the court notes that "In this case, “some colorable showing of possible prejudice” is demonstrated because the R.C.M. 1106A submission contained new information, Appellant has articulated how he would have responded to the victim’s submission had he been given the required opportunity, that his response would have been different from his initial clemency submission, and the convening authority could have granted some clemency relief."
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.
United States v. Calloway. In September 2017, the Appellant pled guilty to wrongful use of cocaine on divers occasions and wrongful use of 3,4-methylenediox- United States v. Calloway, No. ACM S32509 (f rev) 2 ymethamphetamine of and was sentenced to 30 days, 30 days HLWC, RiR-E-2, a BCD, and a reprimand.
At Calloway's first appearance AFCCA set aside the sentence. A rehearing being considered "impractical" a sentence of "no punishment" was approved.
On redocketing, the case was remanded again because, "the convening authority because the convening authority’s 4 May 2020 action purporting to approve the original findings was “not only erroneous and ultra vires, but confusing and misleading.”
On redocketing, there being no assignments of error and no specificied issues, the findings and sentence were affirmed.
United States v. Geier. Appellant pled guilty to wrongful use of controlled substances and dereliction of duty in vi 105 days and a BCD. He was sentenced in September 2020. The case was docketed with the court in January 2021 and was relatively quickly returned to correct post-trial errors. The Appellant had three assignments of error: (1) whether a plea agreement provision requiring the military judge to adjudge a bad-conduct discharge is legally permissible; (2) whether Appellant received adequate sentence relief for his pretrial confinement credit; and (3) whether his sentence is inappropriately severe.
In re D.D. Charges were preferred July 29, 2022.
United States v. Maurer. This is the fourth appearance at AFCCA the case having been remanded three times to correct post-trial errors. The findings and sentence are affirmed. The Appellant was sentenced in April 2019.
United States v. Pacheco. In a GP, the Appellant was convicted of conspiracy to distribute marijuana, wrongful distribution of marijuana on divers occasions, and wrongful possession of marijuana. She was sentenced to effectively 45 days, RiR, and BCD. On appeal the sole issue is sentence appropriateness.
United States v. Mar involves a "waive all waiveable motions" provision in a PTA. Mar got himself 12 months, RiR, and a BCD in exchange for a GP "dereliction of duty, two specifications of wrongful use of marijuana, two specifications of wrongful use of cocaine, one specification of wrongful use of psilocybin mushrooms, one specification of wrongful use of 3,4-methylenedioxymethamphetamine (ecstasy), one specification of wrongful distribution of marijuana, one specification of wrongful possession of marijuana, one specification of solicitation of distribution of ecstasy, and one specification of breaking restriction[.] Prior to trial the accused had been on restriction and later pretrial confinement. The court specified several issues.
In light of Rule for Courts-Martial (R.C.M.) 705(c)(1)(b), did the military judge err when she:
Velasquez pled guilty to two assaults consummated by a battery upon two women by touching their buttocks with his hand, and one assault consummated by a battery upon his spouse, on divers occasions, by touching her legs, back, and buttocks with his hand. He was sentenced to six months, TF, RiR, a BCD, and a reprimand.
On appeal he complains the sentence is too severe and accuses his defense counsel of failing to “request disapproval of the adjudged forfeitures, any deferments, or a waiver of automatic forfeitures from the convening authority.”
The court finds no error. As to the IAC, there was no evidence presented to AFCCA that Appellant personally requested any clemency or that he asked his counsel to do that and they didn't.
Greer is back again after a remand to correct post-trial errors. Appellant pled guilty to one A&B and was sentenced to 60 days, RiR, BCD, and a reprimand. The court now takes up one of four errors and grants relief: is there "a substantial basis in law or fact to question Appellant’s plea of guilty to striking CG with his “hands.”"
The question arises because there are some inconsistency in whether Appellant was admitting to assault with one hand or both--singular or plural. During providency the Appellant asserted he lacked a memory of what he did or said due to alcohol. But he agreed he did commit an A&B based on his review of the evidence against him.
(A "drunk" plea is OK, with the proper statements during providency. See, e.g., United States v. Moglia, 3 M.J. 216, 218 (C.M.A. 1977) (inability to recall the facts relating to an offense does not preclude entering a plea of guilty if is convinced of guilt); United States v. Luebs, 20 U.S.C.M.A. 475, 43 C.M.R. 315 (1971); United States v. Butler, 20 U.S.C.M.A. 247, 43 C.M.R. 87 (1971); United States v. Wiles, 30 M.J. 1097, 1100 (N.M.C.M.R. 1989).)
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.
The court finds that it can affirm guilt by one hand which does not violate the terms of the PTA, and upon sentence reassessment affirms the sentence. On the issue of post-trial delay, the court said,
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.
In United States v. Novelli, the appellant pled guilty to various drug related offenses: cocaine, marijuana, psilocybin, Valium, Xanax, and steroids. He was sentenced to 600 days plus a BCD for which he got 236 days Allen credit. He raised four issues.
1. Error in the EoJ--corrected in the court's decretal paragraph.
2. Unreasonable multiplication.
3. Improper TC sentencing argument. (A common issue in AF cases as to both findings and sentence.)
4. Inappropriate sentence.
The decretal paragraph remands the case for corrections of the EoJ.
In United States v. Monge, the appellant was convicted by an "enlisted" panel of indecent visual recording and distribution of an indecent visual recording and he was sentenced to 60 days HLWC and a DD. Appellant raises several issues, none of which get him relief.
(1) The evidence was legally and factually sufficient to support his convictions for sexual assault and assault consummated by a battery; and
(2) Appellant was deprived of his right to a unanimous verdict.
United States v. Burnett. Officer members convicted Appellant of one sexual assault, for which they sentenced him to two months, TF, RiR, and a DD.
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.
United States v. Deontre White.
An MJ convicted the appellant of two abusive sexual contacts and two communications of indecent langauge, for which he was sentenced to four months, RiR, a BCD, and a reprimand. One of his issues asked whether the indecent language conviction was factually and legally sufficient.
No, says a majority of the panel. In reading the facts I was reminded of a few lines from "Pink Floyd, The Wall."
Teacher: What have we here, laddie? Mysterious scribblings? A secret code? No! Poems, no less! Poems, everybody!
The language and context are quite suggestive.
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*******.”
It would appear the Appellant liked to read his poems at work.
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.”
The issue was whether the words and reading was contrary to GoD, for example,
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.”
The court describes the third element of the offense, that it
“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).
The court went on to say
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.
C.J. Johnson dissents in part and in the result.
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.”
C.J. Johnson's final words are,
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
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