2017 WL 2888688
A.C.C.A.2017Background
- Sgt. Eric F. Kelly was convicted at a court-martial of abusive sexual contact and sexual assault; sentenced to a dishonorable discharge, one year confinement, forfeitures, and reduction to E-1.
- The victim (Sgt RK) and appellant gave sharply divergent accounts: RK testified she awoke to nonconsensual touching and later sexual intercourse; Kelly testified the encounter was consensual and he was partially uncertain about penetration.
- Voir dire included a panel member (COL F) expressing that a blackout-drunk person cannot consent; defense challenged for cause (denied) but did not exercise a peremptory challenge and later claimed ineffective assistance for that tactical choice ("numbers game").
- Trial counsel characterized appellant as lying in argument; defense failed to object contemporaneously and appellate counsel raised waiver/plain-error issues post-trial.
- Evidentiary disputes included: defense attempt to use the rule(s) of completeness for appellant’s interrogation statement (confusion between Mil. R. Evid. 106 and 304(h)(2)); admission of a mutual friend’s testimony recounting RK’s statements (excited utterance vs. hearsay/opening the door); and panel member questions about adultery prompting a mistrial request.
- The CCA conducted full factual-sufficiency review, credited the victim’s testimony, rejected relief on preserved and unpreserved issues, and affirmed findings and sentence; the court addressed limitations on its ability to alter mandatory dishonorable-discharge sentences.
Issues
| Issue | Plaintiff's Argument (Appellant/Kelly) | Defendant's Argument (Government/Kelly appellee) | Held |
|---|---|---|---|
| Ineffective assistance for not exercising peremptory to remove COL F (numbers game) | Defense counsel was deficient for playing the numbers game and failing to remove a biased member. | Tactical choice was reasonable because keeping a 7-member panel required more guilty votes; strategy not constitutionally deficient. | No deficiency; counsel’s decision was a reasonable tactical choice. |
| Trial counsel called appellant a liar in closing; failure to object waives error | Argument was improper and required sua sponte correction; deprived appellant of fair trial. | Defense failed to object; under R.C.M. 919(c) objection was waived; even if error preserved, not plain or obvious given case law. | Waived under R.C.M. 919(c). Even if considered, not plain error. |
| Rule(s) of completeness confusion (Mil. R. Evid. 106 vs. 304(h)(2)) for admission of appellant’s other interrogation statements | Misapplication denied admission of context under correct completeness rule, harming defense. | Judge applied 106 correctly to recorded/written statements; issue whether 304(h)(2) applies was not developed, but appellant not prejudiced because he later testified to same matters. | No prejudice; record undeveloped on 304(h)(2) but appellant suffered no harm because he testified identically. |
| Admission of RK’s out-of-court statements through mutual friend (hearsay) | Statements to the friend were inadmissible hearsay and prior inconsistent-extrinsic evidence rules were violated. | Defense opened the door by eliciting selective parts of the conversation; trial counsel properly elicited context (excited utterance or rebuttal to misleading impression). | Admission was not erroneous (excited utterance or invited-error/opening the door); no relief. |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (ineffective assistance standard)
- Olano v. United States, 507 U.S. 725 (plain-error framework)
- Portuondo v. Agard, 529 U.S. 61 (defendant credibility and presence at trial)
- Ahern v. United States, 76 M.J. 194 (waiver under Mil. R. Evid. 304 analogized to R.C.M. 919(c))
- Fletcher v. United States, 62 M.J. 87 (calling accused a liar is dangerous and guidance on improper argument)
- Newson v. United States, 29 M.J. 17 (numbers game skepticism; panel composition observations)
- Rodriguez v. United States, 56 M.J. 336 (two distinct rules of completeness: Mil. R. Evid. 106 and 304(h)(2))
- Nerad v. United States, 69 M.J. 138 (limits on CCA power to grant mercy vs. review authority under Article 66)