Opinion Analysis: A post hoc analysis of a cold record reveals evidence of service discrediting conduct in United States v. Norman, No. 14-0524/MC
CAAF decided the Marine Corps case of United States v. Norman, 74 M.J. 144, No. 14-0524/MC (CAAFlog case page) (link to slip op.), on Wednesday, April 29, 2015. The court finds that the military judge erred in admitting lay opinion testimony about the service discrediting nature of Appellant’s alleged child endangerment by culpable negligence, but that Appellant’s conviction is nevertheless legally sufficient because of other evidence in the record that may have been considered by the members, even though the trial counsel didn’t argue it. The court affirms the opinion of the Navy-Marine Corps CCA that affirmed the findings and sentence.
Chief Judge Baker writes for a unanimous court.
CAAF granted review of one issue:
Whether the conviction for child endangerment by culpable negligence is legally insufficient when the only testimony offered to prove its service discrediting nature was admitted in error.
Appellant – a sergeant in the Marines – was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of a single specification of child endangerment by culpable negligence in violation of Article 134, charged as service discrediting conduct. In the same trial Appellant was acquitted of four specifications of aggravated assault in violation of Article 128, UCMJ, and four additional specifications of child endangerment by design and/or by culpable negligence in violation of Article 134. The members sentenced Appellant to confinement for sixty days, reduction to E-1, and a dishonorable discharge.
The sole conviction for child endangerment related to burns suffered by Appellant’s infant child while Appellant was giving the child a bath. The child suffered second and third-degree burns, and “was treated for fifty days at the Maricopa Burn Center, undergoing seven surgeries to excise his burnt skin and receive skin grafts for his third-degree burns.” Slip op. at 5-6. There were no witnesses to the incident, but Appellant made statements to law enforcement in which he first stated that he ran the water at “full cold,” and then subsequently stated that he “turned the handle of the faucet to approximately the 9:00 position” and left the child in the water for 30-45 seconds. Slip op. at 4-5 (marks omitted). Yet investigation revealed that with the faucet at the 9 o’clock position, the water temperature in Appellant’s bathroom was only 115 degrees Fahrenheit, and an expert testified that at that temperature “clearly exposure is going to need to last much more than ten minutes in order to produce a third-degree burn in an adult.” Slip op. at 20 (marks omitted).
As charged in this case, the offense of child endangerment by culpable negligence has four elements:
- That the accused had a duty for the care of a certain child;
- That the child was under the age of 16 years;
- That the accused endangered the child’s mental or physical health, safety, or welfare through design or culpable negligence; and
- That, under the circumstances, the conduct of the accused was of a nature to bring discredit upon the armed forces.
Manual for Courts-Martial, United States, pt. IV, ¶ 68a (2012). To prove the element that the conduct was of a servicing discrediting nature, the Government presented the lay testimony of a Marine staff sergeant (and military policeman) to opine on “whether Appellant’s conduct was of a nature to bring discredit upon the armed forces.” Slip op. at 6. The defense objected to the testimony but the military judge permitted it.
CAAF finds that the military judge abused his discretion in permitting the testimony of the staff sergeant. Nevertheless, CAAF affirms Appellant’s conviction by concluding that “a rational trier of fact could have instead determined that Appellant turned the faucet handle to the hottest setting and then left his child unattended for 30 to 45 seconds.” Slip op. at 22. The court reaches this conclusion despite the fact that “trial counsel made no mention of the terminal element during closing arguments, omitting any mention of [the staff sergeant’s] testimony or any other evidence supporting this element, leaving this Court to evaluate each piece of evidence post hoc, on the basis of a cold record.” Slip op. at 22 n.5.
Chief Judge Baker’s opinion begins with analysis of the lay opinion of the staff sergeant that was admitted over objection from the defense. A military judge’s decision to permit certain testimony is reviewed under the highly-deferential standard of an abuse of discretion.
A military judge abuses his discretion when his findings of fact are clearly erroneous, the court’s decision is influenced by an erroneous view of the law, or the military judge’s decision on the issue at hand is outside the range of choices reasonably arising from the applicable facts and the law.
United States v. Miller, 66 M.J. 306, 307 (C.A.A.F. 2008). CAAF unanimously finds that this military judge abused his discretion in permitting the testimony of the staff sergeant because:
Although a witness may offer an opinion on an ultimate issue, M.R.E. 704, offering this opinion without further explanation, as SSgt Moody did, is unlikely to be helpful to the trier of fact. Restated, it is not clear why the testimony of a Marine military police officer, without more, would be helpful regarding a question of parenting practice, and whether such practice was service discrediting.
Slip op. at 12. However. the court finds the error to be harmless because “by virtue of being conclusory and unhelpful to the trier of fact, [the staff sergeant’s] testimony was not qualitatively significant, nor was it material to the Government’s overall case.” Slip op. at 13.
The staff sergeant’s opinion about the service discrediting nature of Appellant’s conduct was the only direct evidence offered by the Government to prove that element of the offense. Having concluded that the opinion testimony was neither qualitatively significant nor material to the overall case, CAAF is left with neither direct evidence nor trial-stage argument to satisfy the terminal element. Nevertheless, Chief Judge Baker finds a way to lead the court to affirm the conviction.
His analysis begins with the instructions provided to the members, noting a significant concession made by Appellant’s counsel:
In this case, the military judge provided the members the standard instruction in the Military Judges’ Benchbook verbatim, advising them that in order to convict Appellant, they must find “that under the circumstances the conduct of the accused was of a nature to bring discredit upon the armed forces.” See Dep’t of the Army, Pam. 27-9, Legal Services, Military Judges’ Benchbook ch. 3, para. 3-68a-1 (2014). During oral argument, Appellant’s counsel conceded that the military judge did not err in providing this instruction. Given that the members were properly instructed and may permissibly consider evidence of the charged conduct when evaluating the terminal element, excluding SSgt Moody’s testimony, without more, does not necessitate reversing Appellant’s conviction for lack of independent evidence of the terminal element.
Slip op. at 15-16 (emphasis added). This concession is significant because the Benchbook actually contains two different explanations for what type of conduct is of a nature to bring discredit upon the armed forces. The one found in paragraph 3-68a-1 states:
“Service discrediting conduct” is conduct which tends to harm the reputation of the service or lower it in public esteem.
Benchbook, para. 3–60–2a.d. Yet paragraph 3–60–2a provides a more detailed (and, I think, more restrictive) definition:
With respect to “service discrediting,” the law recognizes that almost any irregular or improper act on the part of a service member could be regarded as service discrediting in some indirect or remote sense; however, only those acts which would have a tendency to bring the service into disrepute or which tend to lower it in public esteem are punishable under this Article.
Benchbook, para. 3–60–2a, note 3. Appellant’s brief to CAAF asserted that there was an instructional error (an assertion that I questioned in my argument preview). The brief argued that the military judge “did not instruct the members panel on how it should execute its duty to make this unique determination,” App. Br. at 22. In retrospect, this seems like it might have been a reference to the para. 3–60–2a instruction. Yet Chief Judge Baker’s opinion doesn’t discuss this issue, presumably because of the concession during oral argument that the members were properly instructed.
Without instructional error, CAAF is left to determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Slip op. at 16 (citation omitted) (emphasis in original). Chief Judge Baker elaborates that:
[T]his Court’s decision does not hinge on whether or how the parties’ lists of circumstantial evidence or negating factors stack up against each other. Rather, it hinges on whether reasonable factfinders could have drawn inferences one way or the other under a given set of circumstances. This Court evaluates whether there is an avenue through which a rational factfinder could find the essential elements of the crime.
Slip op. at 17 (marks and citation omitted). The court concludes that the members could have made such a finding by functionally concluding that Appellant lied in his statements about the incident:
[A] rational trier of fact could have concluded that there were alternative explanations of Appellant’s conduct, other than his statement, that were more credible and supported by scientific evidence. Having reached such a conclusion, a rational trier of fact could have then determined, extrapolating from Dr. Peck’s testimony, that Appellant left TBN unattended in a tub of running hot water for a period of time that was longer than 30 to 45 seconds and less than the ten minutes required for an adult male to receive comparable burns. A rational trier of fact could have instead determined that Appellant turned the faucet handle to the hottest setting and then left his child unattended for 30 to 45 seconds, disregarding TBN’s cries when the hot water made contact with his skin.
Slip op. at 21-22. Chief Judge Baker also notes Appellant rank and position:
Moreover, a rational trier of fact could have further found this conduct service discrediting because Appellant was a sergeant of the Marine Corps. A rational trier of fact could reason that the public would expect Appellant, a noncommissioned officer who had been selected and promoted to the rank of sergeant, to exhibit competence and responsibility toward someone in his care.
Slip op. at 22-23. And so the conviction is affirmed.
CAAF’s conclusion certainly feels like the right result in this case, considering the severity of the child’s injuries and the inconsistent statements by Appellant. However, the court gives the Government a free pass on the terminal element; something Chief Judge Baker seems to halfheartedly acknowledge in a footnote at the end of the opinion:
Although we find the evidence here legally sufficient, the better practice would be for trial counsel to make its theory of discredit apparent during closing arguments. Here, trial counsel made no mention of the terminal element during closing arguments, omitting any mention of SSgt Moody’s testimony or any other evidence supporting this element, leaving this Court to evaluate each piece of evidence post hoc, on the basis of a cold record. As the instant case demonstrates, enumerating the evidence during closing argument where material evidence is ultimately excluded, will not only clarify the record on appeal but will, surely, facilitate the members’ deliberation.
Slip op. at 22 n.5. It’s hard to imagine that the Government would enumerate the evidence during closing argument (and risk relying on evidence erroneously admitted while overlooking inferences in the other evidence), when CAAF will salvage the conviction with a post hoc analysis.
• NMCCA opinion
• Appellant’s brief
• Appelleee’s (Government) brief
• Appellant’s reply brief
• Blog post: Argument preview
• Oral argument audio
• CAAF opinion
• Blog post: Opinion analysis