*1 STATES, Appellee, UNITED BURTON, Jr.,
Linwood Staff W. Force, Sergeant, Air Appellant. No. 07-0848. Crim.App. No. 36296. Appeals U.S. Court the Armed Forces. Argued Oct. 15, 2009. Decided Jan.
suggested that the members of the between compare could similarities to commit charged offenses for the ac- “these of offenses” and see Although operandi. modus cused’s were themselves the charged offenses closing argument, underlying subject of had not been offered or admitted conduct (M.R.E.) Military of Evidence Rules 404 or 413. Trial counsel’s invitation to the charged offenses to panel to im- operandi modus or this ease the proper, but under the facts of military judge’s failure to sua instruct on the use of other remedial action did not consti- take of the United tute error. decision Appeals Air Force Court of Criminal (CCA) is affirmed.1
I. Facts general composed A court-martial of offi RYAN, J., opinion of the delivered the Appel members convicted cer and enlisted STUCKY, JJ., Court, BAKER in which and lant, sodomy,2 contrary pleas, rape, of to his EFFRON, C.J.,
joined.
separate
filed
acts,3 in
Articles
and indecent
violation of
opinion concurring
part
in
and in the result.
120, 125,
Military
and
Uniform Code of
ERDMANN, J.,
separate opinion
filed a
con-
(UCMJ),
§§
Justice
U.S.C.
curring
part
dissenting
part.
and
adjudged by
court-
The sentence
discharge,
martial
included a dishonorable
Mary
(argued);
Appellant:
For
T. Hall
eight years,
of all
confinement for
forfeiture
(on brief);
Captain Anthony D.
Lieu-
Ortiz
allowances,
reduction to the
pay and
Strickland, Major
R.
tenant Colonel Mark
convening au
grade.
enlisted
lowest
Bennett,
Captain Phillip T.
A.
Shannon
guilt
thority disapproved
findings
of
as to
Korman.
acts, approved the find
sodomy and indecent
Appellee: Captain Ryan N. Hoback
For
ings
guilt
rape,
approved
Major
(argued);
Matthew S. Ward
Colo-
exception of
adjudged
sentence
(on brief); Major
R. Bruce
Don-
nel Gerald
years. The
confinement in excess of seven
Rueppell.
na S.
Burton, No.
affirmed. United States v.
CCA
(A.F.Ct.Crim.
36296,
based on what military judge specifically as follows: structed Determining argu that trial counsel’s only based however, An Accused be convicted not an improper, does ment was Each of- before the court. plain on evidence whether it was question swer the you must on its own trial that fense must stand context of the entire obvious separate. each offense give keep the evidence of military judge needed to sua you find or believe differently, if Stated on the use of further instructions offense, guilty of one that the accused is Young, evidence. See United belief as a you not use 84 L.Ed.2d 105 S.Ct. proving error, inferring, assuming, or (1985) (“[W]hen for addressing plain basis any that he imaginatively committed other offense. The trial and not to extract from isolation,” burden is on the episodes each holding every beyond counsel, element of each offense though improper, ment was not a reasonable doubt. Proof of one warranting overturning appel- conviction). carries with it no' inference that the ac- lant’s cused is other offense. III. Conclusion Although portions closing of trial counsel’s above, expressed For the reasons we dis- argument arguably conflicted with this in- agree reasoning with the of the Air Force struction, specifically referenced Appeals, Court of Criminal but find no the instruction and stated he did not “intend error in the court-martial. The decision of panel] to take [the one offense to Appeals the Air Force Court of Criminal [Appellant] guilty of another.” The real affirmed. presented by improper risk argument that it would invite members EFFRON, Judge (concurring Chief in part appellant pre- convict based on a criminal result): and in the disposition, not that members would now perceive properly admitted direct evidence of majority opinion that trial conduct as evidence. in urging counsel erred the members to con- *5 greater properly This risk was addressed sider the two offenses as military judge’s spillover the instruction. below, evidence. For the reasons set forth I military judge having The instructed the generic would conclude that spillover the panel that counsel’s were not evi- given by struction given general spillover dence and instruc- supplemented by have been a tailored in- tion, plain it was not and obvious that an struction propensity. on the issue of additional instruction was wanted or needed. that this case be affirmed because the Jenkins, See United States v. 20 instructional prejudicial error was not under (C.A.A.F.2000) (noting panel that members 859(a) 59(a), § Article 10 U.S.C. presumed military are judge’s to follow a prosecution’s improper propensity The argu- holding any instructions and error from ment improper argument by appropri- was cured instruction); Appellant’s Hogan, ate court-martial involved two (sug- 20 M.J. at dis- 73 allegations tinct gesting of sexual that a clear misconduct —the merge instruction not to occurring first as in substantially 2000 and the diminishes the chance occurring second in improper spillover). 2004. The prosecution introduced evidence related to trial, In the context including of the entire court-martial, each incident at the and the clearly the distinct and defined evidence admissibility of such evidence is not the sub- against Appellant yet on similar separate ject present appeal. of the offenses, specific pan- instructions to the el, the fact that neither trial nor appeal defense pertain issues on to the com- counsel offered evi- ments made in trial closing argu- counsel’s requested ment, dence or in which counsel asked the court-mar- and the fact that the comments of trial coun- “compare” tial charges the different egregious provoke sel were not so as to purpose an assessing Appellant’s “pro- objection counsel, by trial pensity defense we do to commit these of offenses” any believe that error in trial argu- counsel’s and operandi. his modus As noted ment rose to plain majority the level of error opinion, prosecution require military would judge to sua ask the to conclude that an accused is instruct on the propen- use of by citing of one offense similarities to sity (1) evidence or take other remedial meas- another distinct offense unless: Young, ures. See at permissible 105 ment involves use of the evi- (noting particularly dence, S.Ct. 1038 “it impor- exception provided such as under an tant for appellate (M.R.E.) courts to by Military relive the whole Rule of Evidence military judge should have (“Character obvious that evidence not admissible Burton, crimes”) conduct; given instruction. exceptions; other (“Evidence regard, majority crimes in at 153. In similar (2) cases”); military evidence at issue was opinion notes that the sexual assault offenses, the use of the distinct analyzed approved admitted on judge has appli- separate under the not conflate the in that manner did the evidence Burton, v. safeguards. during presentation States cable United offenses factual (C.A.A.F.2009). offered as at 152-58 was not the evidence propensity evidence Appel- Appeals, of Criminal In the Court the members military judge provided improperly that trial counsel lant contended spillover instruction. appropriate Id. panel to view the the court-martial asked Although these considerations at 153-54. Appellant’s distinct offenses error aspect bear on the third Af- assault. engage sexual test —whether error objected had not noting ter that the defense materially the substantial judge prejudiced argument at prosecution’s to the they are not determi- rights of the accused — con- Appeals reviewed the of Criminal Court question of whether mili- native on the standard. See under a tention the members tary judge properly instructed Powell, 460, 463-65 United case. (C.A.A.F.1998) re- (holding plain error (1) of: whether entails consideration view argued prosecution improperly (2) error; the error was whether there was not “take although the could members (3) obvious; the error plain or guilty of [Appellant] of one offense to find rights materially prejudiced the substantial another,” [charges] these they could “take 59(a), accused); 10 U.S.C. Article his to com- them for 859(a) (2000). § *6 a rul- Without mit these of offenses.” relevance ing by military judge on the Appeals concluded of Criminal The Court M.R.E. prejudice under M.R.E. of no error because the use there was propensity M.R.E. permissible under evidence is propensity M.R.E. permissible under ment was not case. As 413 in a sexual assault M.R.E. Moreover, the by analogy. directly or either majority opinion, problem one in the noted fit into argument did not of propensity 413 in this case is on M.R.E. with reliance evidence under exceptions for the character follow at did not prosecution the trial M.R.E. 404. propensity evi- required steps for of the use Burton, at M.R.E. 413. under dence only argument not raised Trial counsel’s note, the of- particular Of appro- the subject propensity without the of mil- argument before the propensity fered its military judge, by the predicate priate ruling requisite determi- judge could make the itary military import of the placed the but also prejudice as to relevance and nations by sug- at issue spillover instruction judge’s and M.R.E. did not spillover instruction gesting that the Burton, prob- A further at 153. Irrespective propensity apply to evidence. been if the evidence had that even lem is per- argument propensity of whether evidence, approved propensity properly impermissible 413 or under M.R.E. missible military judge provide the did not military judge was under M.R.E. limiting tai- appropriate instruction an with tailored in- give appropriate required to propensity. See United the issue of lored to subject addressing of expressly struction (C.A.A.F. Schroder, 49, atM.J. propensity. See 2007). could be (stating, in a case where parallel under the propensity used to show that trial majority opinion concludes 414, that the provisions of M.R.E. the second did not meet error counsel’s instructed also be because, panel “must court-martial in the plain error prong of the test propensity evi- of such that the introduction plain or full of the it context government ERDMANN, dence does not relieve the of its Judge (concurring part proving every dissenting part): burden of every element of charged” that “the factfinder agree I majority that trial counsel may not convict on the basis of erroneously invited the members to compare alone”); Levitt, United States v. presented the evidence on each offense to (C.M.A.1992) 114, 120 (stating, in a case propensity. Had the trial counsel de- the evidence where could not be used to show argument, sired to make that he should have that “the instruction must ex procedural steps followed the Military of pressly bar improper use the evidence for (M.R.E.) 413(b). Rule of Evidence Had purposes, including proof of bad character or procedural followed, those steps been crime”). case, for In present military judge have would made the neces- military judge’s generic spillover instruc sary findings threshold under M.R.E. 4131 tion did not responsibility relieve him of the and would have conducted an M.R.E. 403 provide specific expressly instruction balancing analysis. Because trial did counsel subject propensity. tailored to the comply steps presenting arguing military Prejudice plain under the error standard judge did not evaluate the evidence for ad- errors, Notwithstanding plain or oth- these missibility evidence. There- erwise, relief is not warranted under the fore, trial by invoking counsel erred propen- prong third error test because sity in argument. his I do not materially prejudice the errors did not by risks improper created argument rights Appellant. substantial Although were spillover addressed military judge supplemented should have However, struction. I need not determine spillover the standard spe- instruction with a trial counsel’s error was a plain cific instruction on propensity, the standard requiring error relief because conclude that provided instruction with some committed guidance impermissibility on the using failing provide one instruction to charged offense as the basis for a the members. guilt on the other offense. Like- closing Before arguments, wise, trial potential counsel limited effect judge’s instructions to the members included improper argument by explicitly re- “spillover” Specifi- standard instruction. *7 minding they the members that could not use cally, military stated, judge the you “[I]f find their determination of on guilt one offense to or believe that guilty the accused is of one othey. guilt find on the Finally, the context offense, you may not use that finding or trial of the and the of distinct accumulation belief as a inferring, basis for assuming, clearly defined evidence of the crimes proving that he committed other of- against DH, committed Airman Senior com- Despite fense.” bined with objection the lack of defense to urged the closing argument members his and the members’ compare to the offenses because will “[i]t also Appellant that only committed con- you show that he has propensity [the] to SS, acts with sensual indicate that im- engage in this sort of (emphasis conduct.” proper statements of trial counsel did not added). Trial counsel went urge on to that significant impact have on the members. propensity consideration of this evidence
Accordingly, I agree findings that and would not conflict with the judge’s sentence be spillover affirmed. instruction: "(1) required findings 476, (C.A.A.F.2000) Those Wright, are that: [t]he 53 M.J. (quoting 482 accused is assault” defined evidence an offense of Guardia, sexual United States v. 135 F.3d 1328 413(d); (2) ‘‘[t]he (10th 1998)) (requiring findings Cir. threshold be proffered is 'evidence of the defendant’s admitting 413); fore see commission of another offense of ... sexual as- Dewrell, also United States v. n. 138 sault'; (3)[t]he is relevant under (C.A.A.F.2001). 4 401 [M.R.E.] [M.R.E.] 402.” United States v.
157 ignored in could be instruction of the ment comparison Now, get [a I to before instruction The alleged two sexual this situation.2 between similarities from preface necessary prevent was to members to want assaults] —this than you, I of other judge told don’t on the basis something convicting Burton to one proof of offense and to you for to take offense tend of the direct evidence another, told judge him its government “reliev[ing] the preclude you But what do that. you you can’t every element to burden constitutional things and take these you is can can do beyond a reasonable charged offense of the to com- them for his instruct Failure id.3 to doubt.” See per- That’s types of offenses. mit these they properly consider should members how deliberating. you’re acceptable when fectly was, un- sexual propensity to commit assault case, added. Emphasis error of this der the circumstances obvious. to only counsel’s invitation was trial Not direct compare the offenses fundamental, constitutional light In given spillover instruction conflict with error, has the the Government nature of this erroneously he ex- military judge, by the had “no establishing that the error burden of they could con- plained to the members findings.” United upon the causal effect despite the propensity evidence sider (C.A.A.F. Othuru, 377 v. States spillover instruction. Simmons, 2007) 59 (citing States v. United sua that conflict have corrected (C.A.A.F.2004); States United M.J. instruction. by providing (C.A.A.F.1995)). Bins, M.J. v. considered be Propensity evidence that there must demonstrate Government prove a substantive members to the lack of possibility that reasonable no proce- assault when the of sexual find- to the contributed contested instruction 413 have been followed. of M.R.E. dures Kreutzer, 61 guilty. States v. ings of United United States (C.A.A.F.2005). Because the However, (C.A.A.F.2007). even when evalua- any guidance members lacked com- 413 have been of M.R.E. procedures consider counsel’s invitation tion of trial with, has further held this court plied no assurance there is “required pro- safeguards procedural to its was held burden Government appli- unconstitutional tect the accused from evi- on direct was convicted or that Burton require- ... include the cation of upon than charged rape rather dence Id. at 55. proper ment of instructions.” from propensity derived use of improper coun- deciding the trial Without charged offense. The other argument constituted sel’s beyond doubt. a reasonable not harmless error, to the absent instruction of the United the decision I would reverse consideration Appeals, of Criminal Air Force Court guidelines as to how had no members *8 sentence, and au- findings and set aside the between resolve the conflict rehearing. thorize and trial counsel’s judge’s instruction propensity evidence does of such introduction example see of a 2. For an Services, 27-9, prov- Legal government Army, burden Dep’t Military Judges’ Pam. relieve the its 7-13-1, 7, para. charged. ch. every Benchbook ing every element n. 4 Moreover, convict on the the factfinder Id. at 56. alone.” basis "[I]t essential this court said 3. As ... be instructed that ... members