United States v. Williams

23 M.J. 525, 1986 CMR LEXIS 2281

• Court: U S Air Force Court of Military Review
• Decided: August 7, 1986
• Docket: CM 446852
• Status: Published

Opinions

OPINION OF THE COURT

*

SMITH, Judge:

Contrary to his pleas, appellant was convicted by a general court-martial composed of officer and enlisted members of rape and forcible sodomy in violation of Articles 120 and 125, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 920 and 925 (1982). He was sentenced to a dishonorable discharge, confinement for twenty years, and forfeiture of all pay and allowances. The convening authority approved the sentence.

In argument on sentencing, the trial counsel implored the court members to adjudge a sentence which included imprisonment for life. During the first portion of his argument the trial counsel established the “standard” the members were to use in adjudging an appropriate sentence:

TC: Members of the court, my last words to you 40 minutes ago was that the man who sits 15 feet from you is a rapist. You obviously agreed with the government’s contention. Now, your mission is to determine what should be done with this rapist. Now, in determining this we would ask each of you, representing the Army, representing society, to determine what is appropriate. What is appropriate for Private Williams? What will it take to impress on Private Williams that he did was wrong — was terribly wrong? You also must consider what is necessary for society. In coming to your decision now, you must determine how long it will be until you all, representing society, want this rapist walking among your daughters. This man, of course, had forcible sodomy. How long do you think until you want him walking among our daughters?

Record at 219-220 (emphasis added). He further reinforced this “standard” near the conclusion of his argument: “How many days do you want to go by before you let this man out among your daughters — our daughters.” (R. 222). The trial defense counsel did not object to the trial counsel’s argument, request curative instructions, or move for a mistrial.

The presentencing argument was clearly aimed at inciting the passion of the members by inviting the members to place “their daughters” as appellant’s next victim. Cf. United States v. Shamberger, 1 M.J. 377, 379 (C.M.A.1976) (trial counsel urged members to picture themselves as the rape victim’s husband, held in a helpless position as three men raped his wife); United States v. Wood, 40 C.M.R. 3, 8-9 (C.M.A.1969) (asking members if they wanted the accused to have access to other young boys, or “your own sons” (emphasis added), and threatening members with ostracism or contempt if they failed to return severe sentence in accord with prosecution’s appeal); United States v. Boberg, 38 C.M.R. 199 (C.M.A.1968) (appeal to members to equate a victim to a brother); United States v. Nelson, 1 M.J. 235 (C.M.A. 1975) (equating the tactics practiced by a defense witness to those of Adolf Hitler); United States v. Nellum, 21 N.J. 700 (A.C. M.R.1985) (asked military judge whether he would like the accused to walk the streets in his community or neighborhood). See generally ABA Standards for Criminal Justice: The Prosecution Function, Standard 3-5.8(c) (counsel should not use arguments calculated to influence the passions of the jury) and 5-8(d) (should refrain from argument which would divert the jury from its duty to decide the case on the evidence ... by making predictions of the consequences of the jury’s verdict), made applicable by Department of the Army Regulation 27-10, Legal Services: Military Justice, para. 5-8 (1 July 1984). Accordingly, we hold that the quoted portion of trial counsel’s argument was improper. The court must now resolve the related issues of whether application of the waiver doctrine is appropriate, Manual for Courts-Martial, United States, 1984, Rule for Courts-Martial [R.C.M.] 1001(g) (failure to object to improper presentencing argument before instructions to members constitutes waiver of objection), and whether appellant was prejudiced by the improper argument.

Appellant now contends that trial counsel’s argument improperly influenced the court members to adjudge an excessive sentence. The government, citing United States v. Doctor, 21 C.M.R. 252 (C.M.A. 1950) and United States v. Fisher, 17 M.J. 768 (A.F.C.M.R.1983), petition granted, 18 M.J. 150 (C.M.A.1984), initially asks this court to reject the assignment of error on the basis of waiver. See United States v. McPhaul, 22 M.J. 808 (A.C.M.R.1986) (waiver provision of R.C.M. 1001(g) should be strictly enforced).¹ After careful con-sideration of both case precedent and the procedural rules, we find that neither requires, nor in this case allows, waiver of the issue on appeal. See Darden v. Wainwright, — U.S.-,-, 106 S.Ct. 2464, 2472, 91 L.Ed.2d 144 (1986) (relevant question is whether the prosecutors’ comments so infected the trial with unfairness as to make the resulting conviction a denial of due process) citing Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). See generally Analysis of Rules for Courts-Martial 919(c) and' 1001(g), App. 21, A 21-59 and 21-62 (sections are generally consistent with current practice); United States v. Wood, 40 C.M.R. 3, 8 (C.M.A.1969) (military judge had duty to act on improper argument sua sponte where error was plain); Manual for Courts-Martial, United States, 1969 (Revised edition), para. 72 c (military judge may order that argument be confined to proper matters and that any improper part already made be disregarded). Where improper inflammatory argument may have affected the substantive due process rights of an accused, we are obligated to test for prejudice.

In United States v. Doctor, the Court of Military Appeals stated:

The failure to object [to improper argument] in the trial arena where the harmful effect, if any, might be ameliorated by prompt instructions from the law officer, normally raises the doctrine of waiver and precludes an accused from asserting a claim of error on appeal. However, that principle is not usually applied if the abuse of discretion is so flagrant as to charge the law officer with a duty to stop the discourse sua sponte. An accused is entitled to a just trial, free of unfair appeals to passions and prejudices, and the law officer must direct the proceedings to that end.

Doctor, 21 C.M.R. at 261 (emphasis added). In this case we find that the military judge had a duty to interrupt the argument and give corrective instructions. He is more than “a mere referee,” Shamberger at 379, and has an obligation to ensure that appellant receives a sentence which is not the product of an improper inflammatory argument. See United States v. Smart, 17 M.J. 972, 973 (A.C.M.R.1984) (military judge has sua sponte obligation to act when there is a “fair risk” that an improper argument will have an appreciable effect upon members); United States v. Roser, 21 M.J. 883, 885 (A.C.M.R.1986) (when error has been committed, the military judge is responsible for employing appropriate remedies when necessary in order to preserve the actual or apparent fairness of the proceedings). Compare ABA Standards For Criminal Justice, Standard 6-l.l(a) commentary and Standard 3-5.8(e) (1986) (responsibility of court to ensure that final argument to the jury is kept within proper, accepted bounds), with United States v. Knickerbocker, 2 M.J. 128, 130-31 (C.M.A. 1977) (Fletcher, C.J. concurring in the result) (although ABA Standards governing conduct of trial judge and prosecutor not controlling law, they reflect the ultimate outcome of a case-by-case analysis of the improper argument issue). Thus, despite trial defense counsel’s failure to object, we have carefully reviewed the record and have determined that there is more than a fair risk that appellant’s substantive due process rights were adversely affected by the improper argument. We fully concur with the dissenting opinion insofar as it characterizes the offenses as “odious”. In fact, it is the nature of the offenses and the high probability of the members’ emotional response to trial counsel’s improper argument, within that context, that convinces us that the appellant’s due process rights were adversely affected.² See United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985) (Court’s confidence in the outcome of the proceedings undermined to an unacceptable degree); United States v. Shamberger, 1 M.J. at 379 (“fair risk” that inflammatory argument prejudiced the accused).

As the Court of Military Appeals stated in Wood, 40 C.M.R. at 8: “[T]o ask a court member to place himself in the position of a near relative wronged by the accused is to invite him to cast aside the objective impartiality demanded of him as a court member and judge the issue from the perspective of personal interest.” (citations omitted). The plain import of the trial counsel’s argument in this case was that the members should cast aside objectivity and promote a purely personal interest, ie. protect their near relatives (daughters) from the appellant by adjudging a lengthy sentence to confinement. The government has failed to show this court that the members were not affected by trial counsel’s improper argument or that the error had but a slight effect on the determination of an appropriate sentence. Cf., Berger v. United States, 295 U.S. 78, 89, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935); United States v. Barnes, 8 M.J. 115 (C.M.A.1979). While corrective action is required, we do not believe that this court should reassess the sentence because of the nature of the error and' the incomplete state of the record. But see United States v. Fisher, 21 M.J. 327 (C.M.A.1986) (court was able to purge the prejudicial effect of an error which might have led the members to impose a sentence more severe than they might have imposed had the error not occurred). As requested by appellant, our corrective action will include return of the record for a new sentencing hearing before the forum of appellant’s choice.

We have considered the other errors raised, including those personally raised by the appellant, and find them to be without merit.

The findings of guilty are affirmed. The sentence is set aside. A rehearing may be ordered by the same or a different convening authority.

Judge LYMBURNER concurs.

Vacated and rehearing en banc ordered, United States v. Williams CM 446852 (A.C.M.R. 17 Sept. 1986) (en banc).

1 . While this Court, in McPhaul, did state that the waiver provision should be strictly enforced, it ultimately tested for prejudice and found that the trial counsel’s sentencing argument was not improper.

2 . As requested by defense appellate counsel, the court has judicially noted that an accomplice was convicted of the same offenses as the accused and was sentenced by court members to a dishonorable discharge, confinement for eight years, total forfeitures, and reduction to the grade of Private E-l.