2017 CCA LEXIS 425
A.C.C.A.2017Background
- CW4 Elmer F. Hoffman III was convicted at general court-martial of multiple sexual offenses (rape of a child, abusive sexual contact, indecent acts) involving four girls (three his children); sentence: dismissal and life with parole eligibility.
- Appellant raised numerous appellate issues (including 106 Grostefon matters); appellate submissions were late and the court clarified timing rules for Grostefon matters.
- Appellant alleged the trial military judge was biased; a post-trial Article 39(a) DuBay-style hearing was held before a different judge who made detailed factual findings rejecting disqualification/bias.
- The military judge instructed the panel under Mil. R. Evid. 414 to permit propensity inferences based on charged conduct; appellant repeatedly said “no objection” at charge conferences and did not preserve the issue at trial.
- Appellant fled mid-trial after the government rested; the military judge later allowed limited presentencing testimony about the flight and instructed the panel they could consider the absence for rehabilitative potential and aggravation.
- Trial counsel made a sentencing argument suggesting victims would prefer incapacitation (life without parole) and implied future dangerousness; defense did not object at trial to the argument.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| When are Grostefon matters due to the court? | Grostefon matters may be filed later than the appellant brief. | A.C.C.A. R. 15.3(b) requires matters be brought with the brief; extensions to file the brief extend Grostefon deadline. | Grostefon matters are due with appellant’s brief absent good-cause for late filing. |
| Whether the military judge’s conduct required relief for judicial bias | Appellant claimed the judge’s demeanor and admonishments were so grave they deprived him of a fair trial. | Trial judge’s conduct was reaction to counsel’s advocacy; post-trial Article 39(a) findings showed no disqualifying bias. | Adopted post‑trial judge’s findings; no relief granted. |
| Whether Mil. R. Evid. 414 propensity instruction on charged conduct (post-Hills) requires reversal when no objection was made | Appellant argued Hills made the instruction constitutional error and requires setting aside findings. | Government argued error was waived/forfeited; even if plain error, appellant cannot show prejudice. | Appellant waived any objection by affirmatively saying “no objection”; alternatively, even under plain-error review, appellant failed to show material prejudice, so no relief. |
| Admissibility and use of appellant’s voluntary absence (flight) at sentencing | Appellant argued evidence/instruction about his absence was improper and prejudicial when first introduced in sentencing. | Government argued flight evidence admissible (as admission by conduct/uncharged misconduct) and relevant to rehabilitative potential; precedent permits consideration at sentencing. | Flight evidence may be admissible; under binding precedent evidence of voluntary absence may be considered for rehabilitative potential; here admission/instruction was not plain error and appellant failed to show prejudice. |
| Improper sentencing argument by trial counsel (vouching, urging life without parole via victims’ perspective and future dangerousness) | Appellant argued the argument was inflammatory and prejudicial. | Government noted no timely objection; R.C.M. 1001(g) waives unpreserved sentencing-argument objections. | Under Ahern, failure to object waived the claim; court declined to notice the waived error and found no plain error warranting relief. |
Key Cases Cited
- United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016) (Mil. R. Evid. 413/414 instruction on propensity from charged conduct barred)
- United States v. Swift, 76 M.J. 210 (C.A.A.F. 2017) (statement of “no objection” constitutes affirmative waiver)
- United States v. Ahern, 76 M.J. 194 (C.A.A.F. 2017) (distinguishing waiver and forfeiture under the Rules for Courts‑Martial)
- United States v. Harcrow, 66 M.J. 154 (C.A.A.F. 2008) (retroactivity/new‑rule discussion applying Johnson/Olano framework)
- United States v. Chapman, 23 M.J. 226 (C.M.A. 1986) (voluntary absence from trial may be considered at sentencing for rehabilitative potential)
- United States v. Denney, 28 M.J. 521 (A.C.M.R. 1989) (acknowledging voluntary absence as unique uncharged misconduct relevant to rehabilitation)
- Olano v. United States, 507 U.S. 725 (U.S. 1993) (plain‑error standard)