CAAF decided the Air Force case of United States v. Frey, No. 14-0005/AF, 73 M.J. 245 (CAAFlog case page) (link to slip op.) on May 19, 2014. The court unanimously finds error in the trial counsel’s sentencing argument to the members to “think what we know, common sense, ways of the world, about child molesters.” Slip op. at 10. But the court splits 4-1 to find the error harmless, affirming the sentence and the decision of the Air Force CCA.
Chief Judge Baker writes for the majority. He is joined by all but Judge Ohlson, who dissents. Judge Ohlson agrees with the majority’s finding of error but concludes that “the toxic nature of the trial counsel’s comments, coupled with the deleterious effect of the military judge’s instructions, poisoned the sentencing hearing beyond redemption.” Diss. op. at 1.
Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of one specification of aggravated sexual contact and one specification of rape of a child who had not attained the age of 12 years, both in violation of Article 120 (2006). He was sentenced to reduction to E-1, confinement for 8 years, and a dishonorable discharge.
At sentencing, trial counsel requested that members impose a sentence of ten years of confinement, dishonorable discharge, forfeiture of all pay and allowances, and reduction to E-1. Defense counsel asked that members impose a sentence of less than ten years, but did not request a specific number, simply asserting that: “The defense would suggest to you that a shorter prison sentence is more appropriate in this instance.”
During his sentencing argument, on rebuttal, trial counsel stated: “Now, the Defense Counsel said, ‘there’s no evidence before you that he’s ever done anything like this before.’ And there is no evidence before you. But think what we know, common sense, ways of the world, about child molesters.” Defense counsel objected to this statement and trial counsel asserted that “I’m just arguing ways of the world.” The military judge overruled the objection. In instructing the panel prior to sentencing deliberation, the military judge reminded the members that argument was not evidence and that the accused was to be sentenced only for the crimes for which he had been found guilty. However, he also told them it was appropriate for them to apply their “commonsense [sic] and knowledge of the ways of the world whether or not in your particular case that involves any implication suggested by counsel.” The military judge instructed the members that the maximum period of confinement was life without parole.
Slip op. at 5-6. The Air Force CCA determined that the trial counsel’s sentencing argument was error, finding “that this argument went beyond the evidence of record and any reasonable inference that can be derived from it, including the appellant’s unsworn statement.” United States v. Frey, No. 37759, slip op. at 2 (A.F.Ct.Crim.App. Jul. 3, 2013) (link to unpub. op.). But the court found no prejudice from the facts that the improper argument was just a brief part of the whole argument, that the improper argument was rebutted by the Defense, and that the improper argument was “further undermined by the curative instruction provided to the military judge.” Id., slip op. at 6. CAAF then granted review of a single issue:
Whether the Air Force court erred in finding trial counsel’s presentencing argument was harmless error where trial counsel insinuated that appellant will commit future acts of child molestation.
Chief Judge Baker begins by explaining that:
We agree with the CCA’s finding that the trial counsel’s sentencing argument was improper and see no reason to make a separate determination on this matter. By his own admission trial counsel’s statements were not derived from the evidence presented at trial. Moreover, in lieu of evidence, trial counsel appealed to members to apply their knowledge of the “ways of the world” to sentence Appellant based on a risk of recidivism through serial molestation.
Slip op. at 8. However, he explains that “prosecutorial misconduct does not automatically require” relief, and that it is tested by the three factors identified in United States v. Fletcher, 62 M.J. 175, 184 (C.A.A.F. 2005), and extended to sentencing argument in United States v. Halpin, 71 M.J. 477, 480 (C.A.A.F. 2013) (CAAFlog case page). Slip op. at 9. These factors are: