NMCCA issued this unpublished opinion today setting aside the findings and sentence in a child molestation case due to prosecutorial misconduct in the trial counsel’s findings argument. United States v. Boyer, No. NMCCA 201100523 (N-M. Ct. Crim. App. Dec. 27, 2012). Judge Price wrote for a unanimous panel.
NMCCA held that the TC’s findings argument erred by repeatedly asking the members to “protect” the alleged victim, Appellant’ daughter who was four years old at the time of the alleged offenses. The court explained: “[W]e can identify no permissible basis to request the members to perform this role. Quite the opposite, the intended effect appears to be to appeal to the court members’ protective instincts or prejudices to motivate those members to return guilty findings. Moreover, such argument could only tend to mislead the members or prejudice the appellant.” Id., slip op. at 7. NMCCA concluded that this argument satisfied the plain error standard. Id., slip op. at 9.
NMCCA also concluded that the TC erred by arguing facts not in evidence. Id., slip op. at 9-10. The court explained:
In his closing argument, the defense counsel emphasized the significance of the military judge’s determination that P.B. was incapable of appreciating the seriousness of the court and incapable of understanding the importance of telling the truth. During his closing argument, trial counsel claimed that he had “studied hundreds and hundreds of trials” and was “not aware of any child ever testifying under the age of seven.” Record at 2001. He later argued “And again, gentlemen, four year-olds simply rarely, if ever, testify.” Id. at 2008. This argument is unsupported by the record and contradicted by case citations included in the Government’s pleadings in this case. . . . The Government’s pretrial motion requesting a ruling on P.B.’s competency to testify included cites to two cases in which several children of similar age testified at trial.
Id., slip op. at 10 & 10 n.5. The military judge overruled a timely defense objection to this portion of the TC’s argument, but indicated he would instruct the members that arguments aren’t evidence.
During his findings argument, the DC discussed numerous questions he would have asked the alleged victim if she had testified. On rebuttal argument, the TC told the members, “The fact is all of those questions were asked of P.B. We wouldn’t be here if they weren’t.” The defense objected and the military judge’s response suggested that the defense had somehow opened the door to this argument. NMCCA fuond that this portion of the argument constituted error as well.
NMCCA also concluded that the “trial counsel here made two different arguments that impermissibly disparaged the defense counsel.” Id., slip op. at 11. First, the “trial counsel criticized the defense assertion of P.B.’s incompetency as a basis for reasonable doubt as ‘another distortion intended to distract you.'” Id., slip op. at 12. The trial counsel also “criticized the ‘desperate level, the desperate lengths that defense counsel are trying to go through to distract you from the evidence,’ and repeatedly characterized the defense as ‘grasping at straws.’ Later, he decried the ‘nonsense the defense has thrown on you.’ One of the themes of his rebuttal was that the defense had ‘popped smoke, calling it reasonable doubt, and now they are scurrying in different corners trying to hide.'” Id. (internal citations omitted). NMCCA reasoned:
These comments are disparaging and address the trustworthiness of counsel, not just the state of the evidence. When a prosecutor personalizes the case in this manner, it creates an unfair advantage as the Government begins most trials with the members’ trust in the good faith of prosecutors. That advantage presents yet another non-evidentiary factor that could unduly influence the outcome, and the word choice here crossed the line into impermissible error.
Id. (internal citation omitted).
NMCCA also concluded that the TC had erred by arguing that the defense was trying to silence the alleged victim, P.B. “Trial counsel argued that ‘the defense has done everything they can to silence P.B.’ He then articulated ‘five areas in which the defense and [P.]B.’s father are trying to silence her.’ ‘Again, the defense is using P.[B.] being a four-year-old child against her and they’re making every attempt to silence everything that she’s done and said to get their client off the hook.'” Id., slip op. at 12-13 (internal citations omitted). The defense counsel objected and the military judge instructed the members “to base their determination on their recollection of the evidence and that counsel’s argument isn’t evidence.” Id., slip op. at 13. NMCCA concluded that the “trial counsel’s use of the words ‘silence’ in reference to the defense was disparaging, inflammatory argument and error.” Id.
NMCCA also concluded that the TC had impermissibly injected personal opinions into his argument:
Trial counsel offered his “take” that the appellant’s testimony was “rehearsed” and “disingenuous.” This was a personal assessment, and as the word “rehearsed” suggests, there was an unmistakable implication that defense counsel was complicit and would go to “desperate lengths” to distract the members from the truth. He also asserted in varying forms that the appellant lied to the NCIS and/or the members more than 10 times in argument. And the Government fairly argues that saying the appellant lied was an “invited response” to defense tactics. However, we do find that it was error for trial counsel to disparage the appellant so thoroughly and repeatedly by arguing at least ten times that he was lying. The comments here ventured far into the “gray zone” of improper opinion and disparagement of the accused and were the subject of the appellant’s objection prior to argument.
Id., slip op. at 14 (internal citation omitted).
The court found other impermissible comments as well:
Trial counsel also told a detailed “personal story” in the first-person singular, describing a child that he knew, in an attempt to bolster P.B.’s credibility by illustrating through a personal anecdote that children do not have inherent sexual knowledge, and even if exposed to sexual information are unable to place that knowledge into proper context.
Even putting aside the irrelevance of this commentary, it is error because the trial counsel’s personal perspective—reinforced by the repeated use of the personal pronoun—is necessarily not based on the evidence. It risks creating the inference that P.B. is telling the truth not because of anything offered during the trial, but instead because trial counsel has the ability to evaluate children and has found P.B. credible.
Id., slip op. at 15 (internal citations omitted).
NMCCA held that the combined weight of the errors required setting aside the conviction:
In such a close and emotionally charged case, there is simply too high a risk that the members were swayed by trial counsel’s inflammatory and multiple invitations to consider factors outside of the evidence. Further, we conclude that trial counsel’s improper comments, taken as a whole, were so inflammatory and damaging that we cannot be confident that the members convicted the appellant on the basis of the evidence alone.
Id., slip op. at 19. NMCCA authorized a retrial. Id.