U.S. Court of Appeals for the Armed Forces

United States v. Cunningham

Of three issues, the Court wrote on a victim impact "statement" issue and an improper sentencing argument.

Whether trial counsel’s sentencing argument was improper when she: (1) argued that Appellant’s uncharged, false statements were aggravating evidence after she had previously cited case law to the military judge that said false statements were not admissible as evidence in aggravation; and (2) told the military judge that he had seen the media and the world was watching, to justify her sentence recommendation. Expressly waived. "In this case, trial defense counsel “did not just fail to object,” but “affirmatively declined to object” when answering “no” to the military judge’s question."

Had the court taken the issue, they probably would have found the arguments didn't impact the military judge because he is presumed to know the law, especially as TC had just pointed it out, and would follow the law. The AFCCA did address the issue and found that it wasn't improper to argue the world is watching because it wasn't a sufficient threat as seen from cases like, United States v. Norwood, 81 M.J. 12 (C.A.A.F. 2021); United States v. Voorhees, 79 M.J. 5, 14-15 (C.A.A.F. 2019)); United States v. Wood, 18 C.M.A. 291, 40 C.M.R. 3, 9 (C.M.A. 1969)).
​
Perhaps the MJ asking if there were any objections was a nuanced ask? There once was a MJ who would famously respond to an objection with "not on that basis counsel." Clue, there may be an objection but you haven't said the magic words yet.

​Next.

​Whether the Air Force Court properly applied United States v. Edwards, 82 M.J. 239 (C.A.A.F. 2022) in finding error—but no prejudice—for a victim impact statement that included videos, personal pictures, stock images of future events, and lyrical music that touched on themes of dying, saying farewell, and becoming an angel in heaven.

The members had convicted the Appellant of murder, for which the MJ sentenced him to 18 years confinement. The dead child's mother and grandmother testified in sentencing without objection. The mother also gave an unsworn victim impact statement. The

​victim impact statement consisted of her orally addressing the military judge while using a PowerPoint slideshow that consisted of pictures, videos, and somber music. The PowerPoint presentation contained eleven slides, including animations which included transitions, appearing and disappearing text, and slides crumpling like paper that is being thrown away. It also included over fifty still images; four still images which were stock images of future life events which ZC would not experience (such as a first day at school, marriage, and graduation); and embedded presentations that automatically played video with accompanying audio. CM then finished her victim impact statement orally. CM stated that “all the slides [she] presented . . . videos, pictures, words . . . all come from [her].”

The court concludes it was an error to permit the video presentation. This would be consistent with United States v. Edwards, 82 M.J. 239 (C.A.A.F. 2022).

AFCCA decided Edwards AFCCA on March 10, 2021.
CAAF decided Edwards on November 17, 2021.

Cunningham was sentenced on February 18, 2021 and the entry of judgment signed on 8 March 2021.

AFCCA decided Cunningham September 9, 2022.

Cunningham is an example of how an appellant may benefit from a later appellate decision. See United States v. Tovarchavez, 78 M.J. 458, 462 (C.A.A.F. 2019).

Having concluded there was error, the real issue is whether there is prejudice and has the government met its burden to demonstrate the error is harmless. The majority uses a four part test from precendent.

​We consider “four factors when deciding whether an error substantially influenced an appellant’s sentence: ‘(1) the strength of the Government’s case; (2) the strength of the defense case; (3) the materiality of the evidence in question; and (4) the quality of the evidence in question.”

The majority finds the prosecution sentencing case to be strong and the defense sentencing case slightly favored the Appellant. The majority finds the materiality of the evidence to favor the government--they suggest is wasn't too material because it merely highlighted other government evidence and was not "expect[ed] to sway a military judge."

The majority finds the quality of the evidence favors the government. In doing so the majority opines,

We note that the military judge stated that he would “give it the weight that it deserves, and [he] will consider it under the rule as [he] mentioned.” However, we do not conclude that this necessarily indicates that the military judge gave the victim impact statement any weight, let alone was substantially influenced by it, and thus is not “clear evidence to the contrary.” A military judge understands that emotions cannot enter the final determination of the sentence, and a military judge is far less likely to be influenced by the emotional aspects of a victim impact statement even if it were designed to explicitly invoke emotion. See, e.g., United States v. Manns, 54 M.J. 164, 167 (C.A.A.F. 2000) (noting that in bench trials the risk of unfair prejudice is substantially less than it would be with members). There is no indication in this record that the military judge allowed the emotional aspects of the presentation to affect him to a point that he departed from his duty to determine an appropriate sentence in a fair, objective, and unbiased manner. Ultimately, the military judge imposed a sentence of eighteen years in opposition to the Government’s request of at least twenty to twenty-five years of confinement. Yes, the military judge erred in allowing the victim impact statement based on its format, as pictures and music are not permissible. Yet, even with this error, again, there is nothing in the record to support that the military judge was substantially influenced by the victim impact statement as it was presented. See, e.g., Barker, 77 M.J. at 384 (holding that in a bench trial, despite the military judge erring in admitting victim impact statements given their inappropriate format, it was the “particularly horrific” “manner in which [the victimized children] were sexually assaulted” that influenced the adjudged sentence, not the wrongly admitted statements). After assessing the above factors, we hold that the Government has met its burden to demonstrate that the error did not substantially influence Appellant’s sentence. 

Judge Maggs has several rebuttals.

​I write separately for two reasons. The first is to explain why I believe this case is indistinguishable from Edwards. The second is to question whether the four Barker factors are generally suited to the task of deciding whether an error has substantially affected a sentence. This case and Edwards suggest that they are not.
. . .
​The final Barker consideration is the “quality” of what was wrongly considered at sentencing. When appellate courts assess the quality of evidence or other information presented at trial (as opposed to, say, the quantity of such evidence or other information), their task is one of estimation. They must appraise the evidence or other information and determine how likely it was to have convinced or influenced the court-martial in the circumstances of the case.
. . . 
As in Edwards, I would conclude that the photos, video, and music had a tendency to influence the sentence. Indeed, the military judge expressly confirmed the quality of the PowerPoint presentation when he said: “To me, that’s proper victim impact including psychological, social impact directly relating to or arising from the offense to which the accused has been found guilty.” For these reasons, I would conclude that, like the quality of the video in Edwards, the quality of the PowerPoint presentation supports a conclusion that prejudice occurred. Balancing all four factors, I would hold that the Government failed to prove that the error did not substantially affect the sentence.

Judge Maggs addresses the absence of evidence in the record of any prejudicial effect on the MJ in several ways. First, 

​But absent a highly unusual express statement by a sentencing authority about sentencing deliberations, the record of a case almost never will reveal the actual extent to which improper evidence or unsworn statement influenced the sentence. Accordingly, under Edwards and Barker, the quality factor is not and cannot be assessed by the lack of an express indication of the actual effect of the PowerPoint presentation on the sentencing authority. Instead, as the Court itself explains, the quality of the PowerPoint presentation must be evaluated by its “tendency . . . to influence the . . . sentencing authority.”

Second, 

[T]he Court presumes that the military judge understood the law and therefore did not give much consideration to the music and photographs in the video. While we always start with a presumption that military judges know the law, the presumption must give way when there are persuasive contrary indications. In this case, when the military judge overruled trial defense counsel’s objection to the video, the military judge erred. He further demonstrated that the PowerPoint presentation would affect his judgment when he characterized the PowerPoint presentation as containing “proper victim impact.” In these circumstances, the presumption does not change my view.