United States v. Major GARY S. OSCAR
ARMY 20140445
| A.C.C.A. | Nov 18, 2016Background
- Appellant, an Army major, was convicted at a general court-martial of multiple sexual offenses against his three young daughters (including rape of a child, sexual contact, lewd acts, indecent liberties, indecent acts, and sodomy) and sentenced to dismissal and life without parole; the convening authority approved the sentence.
- Allegations arose after a daughter (Ms. CO) revealed repeated sexual abuse over five years; forensic evidence (semen/DNA on wipes, sheets, bra, and anal swab) linked appellant to the crimes.
- Defense theory at trial: appellant's sons committed the abuse; appellant denied wrongdoing and offered alternative explanations for the DNA evidence.
- During rebuttal, an assistant trial counsel (ATC) stated she was concerned for her safety after perceiving movement by appellant; the military judge excused members, held a bench discussion, denied a mistrial, and gave a curative instruction.
- At sentencing, the government repeatedly referenced a victim statement, family testimony about ongoing therapy, a cyber-bullying Facebook post, and attacked appellant’s unsworn statement as lacking credibility; defense criticized the government expert as a “blind expert” who did not evaluate appellant, prompting an ATC objection.
- Appellant raised three assignments of error on appeal (including prosecutorial misconduct, improper sentencing argument, and comments implicating Fifth Amendment rights); the Army Court of Criminal Appeals affirmed findings and sentence.
Issues
| Issue | Plaintiff's Argument (United States) | Defendant's Argument (Oscar) | Held |
|---|---|---|---|
| 1) ATC’s rebuttal remark about fearing for safety (improper argument) | Rebuttal remark was a fair description of what trial counsel perceived; any impropriety was cured by the military judge’s immediate curative instruction | Remark was improper, warranted mistrial or relief because it was not evidence-based and might inflame members | Court: Remark was improper but cured by prompt bench discussion and curative instruction; no prejudice shown, no relief granted |
| 2) Allegedly improper sentencing arguments (repeated victim quote; cyber-bullying; comments on unsworn statement) | References derived from admitted evidence; counsel may argue victim impact and lack of remorse; unsworn statement may be criticized | Certain sentencing comments (e.g., cyber-bullying link to appellant) were improper and prejudicial | Court: Most sentencing arguments permissible (victim quote, family testimony, unsworn-statement comments); cyber-bullying reference was impermissible but brief and not prejudicial given strong evidence; no relief warranted |
| 3) ATC’s reply to defense suggestion that gov’t expert didn’t evaluate appellant (Fifth Amendment concern) | ATC’s response was a fair reply to defense argument and did not improperly comment on appellant’s exercise of rights | ATC’s remark suggested appellant refused evaluation and thus improperly commented on right to remain silent or to refuse evaluation | Court: Comments were a reasonable response to defense argument; even if borderline, no plain error affecting substantial rights |
Key Cases Cited
- United States v. Young, 470 U.S. 1 (1985) (contextual review of prosecutorial argument)
- United States v. Baer, 53 M.J. 235 (2000) (prosecutor may argue evidence and reasonable inferences)
- United States v. Frey, 73 M.J. 245 (2014) (scope of counsel argument from the record)
- United States v. Marsh, 70 M.J. 101 (2011) (prosecutorial argument must not inflame members)
- United States v. Fletcher, 62 M.J. 175 (2005) (three-factor test for prejudice from prosecutorial misconduct)
- United States v. Diaz, 59 M.J. 79 (2003) (military judge discretion on mistrial decisions)
- United States v. Moran, 65 M.J. 178 (2007) (plain-error review for unobjected-to argument)
- United States v. Powell, 49 M.J. 460 (1998) (plain-error standard components)
- United States v. Breese, 11 M.J. 17 (1981) (counsel may comment on unsworn statement but not penalize exercise of rights)
- United States v. Edwards, 35 M.J. 351 (1992) (permissible to argue lack of remorse in unsworn statement)
- United States v. Toro, 37 M.J. 313 (1993) (proper comment when accused fails to acknowledge guilty finding)
- Griffin v. California, 380 U.S. 609 (1965) (prohibition on commenting on defendant’s silence)
- United States v. Carter, 61 M.J. 30 (2005) (response to invited comments by defense can be permissible)
- United States v. Robinson, 485 U.S. 25 (1988) (limits on comment about defendant’s rights)
- United States v. Hardison, 64 M.J. 279 (2007) (victim-impact evidence admissible when directly related to offenses)
- United States v. Clifton, 15 M.J. 26 (1983) (arguments must not inflame passions)
- United States v. Ginn, 47 M.J. 236 (1997) (standards for resolving ineffectiveness claims on submitted affidavits)
- United States v. Axtell, 72 M.J. 662 (Army Ct. Crim. App. 2013) (requirements for alleging ineffective assistance)
- DuBay (In re DuBay), 37 C.M.R. 411 (1967) (procedures for fact-finding hearings on collateral claims)