United States v. Specialist NICHOLAS S. MARCUM
ARMY 20150500
| A.C.C.A. | May 5, 2017Background
- Appellant, Specialist Nicholas S. Marcum, was convicted by an officer general court-martial of rape of a child (victim MH, age 15) and sentenced to a dishonorable discharge, 20 years confinement, total forfeitures, and reduction to E-1; sentence approved by convening authority.
- Facts: appellant invited SFC LH’s family to his home; MH consumed alcohol to calm nerves; in the early morning appellant entered MH’s bedroom, restrained her, raped her, kissed her chest, then left; MH called a friend shortly afterward and reported being scared.
- Forensic evidence: appellant’s DNA was found on MH’s labia; appellant had earlier sent texts expressing attraction to MH.
- Procedural posture: appeal before the Army Court of Criminal Appeals under Article 66, UCMJ; appellant raised two assignments of error and personal issues under United States v. Grostefon.
- Appellant alleged cumulative prosecutorial misconduct in closing and rebuttal argument and ineffective assistance of counsel; some objections were preserved at trial, others were waived.
Issues
| Issue | Appellant's Argument | Government's Argument | Held |
|---|---|---|---|
| Prosecutorial improper argument / cumulative error | Trial counsel’s closing/rebuttal contained multiple improper remarks (vouching, personal conclusions) that cumulatively denied a fair trial | Majority of alleged errors were waived; preserved objections were minor and cured by the military judge’s instructions; evidence was strong | No relief. Court found two preserved improper remarks but held they were minor, cured by instructions, and not prejudicial in light of strong evidence |
| Improper vouching and comments on accused’s credibility/demeanor | Counsel vouched for victim and improperly commented on truthfulness and when accused was lying | Trial counsel’s comment about accused’s demeanor was permissible to attack credibility; only personal conclusions about truthfulness were improper and properly sustained by the judge | Judge sustained vouching objection and sustained objection to counsel’s personal conclusions; remedy (curative instruction) was adequate |
| Ineffective assistance of counsel (Grostefon claim) | Appellant contended counsel’s performance was deficient in strategy, witness handling, and argument | Record shows counsel made reasonable tactical choices; performance presumed competent under Strickland/Grigoruk standards | Denied. Court found reasonable explanations for counsel’s choices, performance not measurably below standards, and no prejudice likely to change outcome |
Key Cases Cited
- United States v. Fletcher, 62 M.J. 175 (C.A.A.F.) (trial counsel improperly vouching for witness is forbidden)
- United States v. Cook, 48 M.J. 64 (C.A.A.F.) (permissible to comment on witness/accused demeanor to attack credibility)
- United States v. Clark, 69 M.J. 438 (C.A.A.F.) (analysis of testimonial vs. nontestimonial demeanor evidence)
- United States v. Dollente, 45 M.J. 234 (C.A.A.F.) (cumulative error doctrine requires review of preserved and plain errors)
- United States v. Pope, 69 M.J. 328 (C.A.A.F.) (cumulative effect of plain and preserved errors reviewed de novo)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (standard for ineffective assistance of counsel)
- United States v. Grigoruk, 56 M.J. 304 (C.A.A.F.) (military adaptation of Strickland; three-prong inquiry)
- United States v. Ginn, 47 M.J. 236 (C.A.A.F.) (appellate court may discount implausible factual assertions from appellant)
- United States v. Akbar, 74 M.J. 364 (C.A.A.F.) (deference to counsel’s tactical decisions)
- Polk v. United States, 32 M.J. 150 (C.M.A.) (components of ineffective-assistance analysis)