On Friday CAAF granted review in a Coast Guard case:
No. 16-0336/CG. U.S. v. Omar M. Gomez. CCA 1394. On consideration of the petition for grant of review of the decision of the United States Coast Guard Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:
WHETHER THE MILITARY JUDGE ERRED BY PERMITTING TWO COMPLAINING WITNESSES TO TESTIFY ON SENTENCING THAT APPELLANT WAS RESPONSIBLE FOR THEIR PREGNANCY COMPLICATIONS WITH NO EVIDENCE CONNECTING HIS MISCONDUCT TO THE COMPLICATIONS.
Briefs will be filed under Rule 25.
The CCA’s opinion is available here and reveals that:
In the presentencing phase of the court-martial, trial counsel asked M.S. about stress from the trial process and if stress had impacted her pregnancy. In response, M.S. testified that she had been pregnant with twins and that one of the twins “didn’t make it.” Then, addressing the stress from the trial process, she testified that she was worried about the effects of stress on the remaining baby inside her and hoping she could protect her baby from any effects of her stress.
S.W., testifying about impacts of Appellant’s offenses on her life, stated that “it’s hard to see my baby, because he was born premature.” Asked by trial counsel if she believed that stress had something to do with that, she stated she was diagnosed with pre-eclampsia, and that the condition is brought on by stress. Asked if the trial process had caused her stress, she agreed that it had.
Defense counsel did not object to this testimony, and did not have any cross-examination for either witness. In his sentencing argument, trial counsel did not bring up the testimony about the pregnancies of M.S. and S.W. except to briefly argue that Appellant had not apologized for causing stress during M.S.’s pregnancy.
Slip op. at 9. The CCA concluded that “in the absence of objection, we cannot conclude that the admission of this evidence was plain or obvious error.” Slip op. at 10.