Opinion · Court of Appeals for the Armed Forces
United States v. Marsh
70 M.J. 101
- Type
- Opinion
- Court
- Court of Appeals for the Armed Forces
- Jurisdiction
- Federal
- Date
- 2011-06-02
- Topic
- litigation
“The truth of the matter is that these statements are not made under oath and, thus, the ‘unsworn statement is not evidence.’” | “Trial counsel’s invitation to the court members to imagine themselves as potential future victims only served to inflame a fear as to what might happen if the panel did not adjudge a discharge.”
Citator
- Cited by
- 36 opinions
UNITED STATES, Appellee
v.
Bryant K. MARSH, Private
U.S. Army, Appellant
No. 11-0123
Crim. App. No. 20080382
United States Court of Appeals for the Armed Forces
Argued March 7, 2011
Decided June 2, 2011
ERDMANN, J., delivered the opinion of the court, in which
EFFRON, C.J., and BAKER, J., joined. RYAN, J., filed a separate
opinion concurring in part and dissenting in part, in which
STUCKY, J., joined.
Counsel
For Appellant: Captain A. Jason Nef (argued); Colonel Mark
Tellitocci and Lieutenant Colonel Imogene M. Jamison (on brief);
Captain Michael E. Korte.
For Appellee: Major Sara M. Root (argued); Colonel Michael E.
Mulligan and Major Amber J. Williams (on brief); Captain Chad M.
Fisher.
Military Judge: Patrick J. Parrish
This opinion is subject to revision before final publication.
United States v. Marsh, No. 11-0123/AR
Judge ERDMANN delivered the opinion of the court.
Private Bryant K. Marsh was acquitted of rape but convicted
of making a false official statement at a general court-martial
with members. He was sentenced to a bad-conduct discharge,
forfeiture of $1,347.00 pay for one month, and a reduction to E-
1.1 The convening authority approved the sentence and the United
States Army Court of Criminal Appeals summarily affirmed the
findings and sentence. United States v. Marsh, No. ARMY
20080382, slip op. at 1 (A. Ct. Crim. App. Oct. 7, 2010).
“Merely urging the court members to consider an unsworn
statement for what it is falls within the boundary of fair
prosecutorial comment.” United States v. Breese, 11 M.J. 17, 24
(C.M.A. 1981) (citations omitted). In addition, “it is error for trial counsel to make arguments that ‘unduly . . . inflame the passions or prejudices of the court members.’” United States v. Schroder,65 M.J. 49, 58
(C.A.A.F. 2007) (quoting United States v. Clifton,15 M.J. 26, 30
(C.M.A. 1983)). We granted review to consider whether the trial counsel’s closing argument improperly invited the panel to draw an adverse inference from Marsh’s decision to give an unsworn statement, 1 We note that this forfeiture exceeds the maximum forfeiture allowed when the sentence does not include confinement (two- thirds of a month’s pay based on the adjudged reduction to the pay grade of E-1). United States v. Warner,25 M.J. 64, 67
(C.M.A. 1987); Rule for Courts-Martial (R.C.M.) 1003(b)(2).
2
United States v. Marsh, No. 11-0123/AR
and also to determine whether the trial counsel’s argument
unduly inflamed the court members by implying that Marsh would
endanger pilots’ lives if he were allowed to remain in the Army.2
While we conclude that the trial counsel’s reference to Marsh’s
unsworn statement did not constitute error, portions of the
trial counsel’s closing argument were unduly inflammatory. We
therefore reverse the decision of the Army Court of Criminal
Appeals as to the sentence, set aside the sentence, and remand
the case for a sentencing rehearing.
BACKGROUND
Private Bryant Marsh repaired helicopters for the 82nd
Combat Aviation Brigade of the 82nd Airborne Division at Fort
Bragg, North Carolina. One evening Marsh went to Private CG’s
barracks room and asked her to go to a club with him and some
fellow soldiers. En route to the club the group stopped and
purchased alcohol and soda. CG poured out all but three inches
2
We granted review of the following issues:
I. Whether it was plain error for trial counsel to argue
that the panel should draw adverse inferences from
Appellant’s failure to testify under oath during
presentencing because Appellant would not answer her
questions or theirs.
II. Whether trial counsel sought to inflame the passions
of the 82nd Airborne panel by implying that
Appellant’s false official statement during a rape
investigation puts pilots’ lives in danger.
United States v. Marsh, 69 M.J. 455
(C.A.A.F. 2010) (order
granting review).
3
United States v. Marsh, No. 11-0123/AR
of Coke from a twenty-ounce bottle and filled the rest with
Hennessy Cognac. CG drank the contents of the bottle before
they entered the club. CG remembered having several more drinks
in the club, but remembers nothing more of the evening.
After CG became intoxicated at the club, two of the
soldiers in the group tried to take her back to her barracks
room but were unable to enter the post as she did not have her
identification card. They then took CG to the hotel room of one
of the soldiers where she passed out on the bed. Later that
night Marsh arrived at the hotel room and took CG back to her
barracks room, where they engaged in sexual intercourse. CG
testified that she remembered nothing between being in the club
and waking up the next morning to find her supervisor and medics
in her barracks room. CG later went to the hospital where she
completed a restricted rape report.3 She testified that she did
not want to file an unrestricted report “[b]ecause I wasn’t sure
what happened to me and I didn’t want to just blame somebody for
something.”
Almost two months later, CG listened to a cell phone
recording of Marsh talking to another soldier. In the call
3
A restricted report allows a sexual assault victim to
confidentially report the details of the assault, and receive
treatment and counseling, without initiating an official
investigation. Dep’t of the Army, Reg. 600-20, Personnel--
General, Army Command Policy para. 8-4(c) (Mar. 18, 2008). In
contrast, an unrestricted report initiates an official
investigation. Id. at 8-4(d).
4
United States v. Marsh, No. 11-0123/AR
Marsh referenced a list of men that CG had slept with and
included his name on that list. CG testified that she was
shocked when she heard that as she was unaware she had slept
with him. She then contacted the Fort Bragg Criminal
Investigation Division (CID) and filed an unrestricted rape
report.
Special Agent (SA) Ellis interviewed Marsh the same day
that CG filed her unrestricted report. Marsh waived his rights
and agreed to speak with SA Ellis. Marsh initially told SA
Ellis that he and CG had consensual sexual intercourse in her
room before they left her barracks room for the club. Later in
the interview Marsh admitted that the intercourse occurred after
they returned to her barracks room from the hotel, but again
maintained that it was consensual. Marsh apologized to the
agent for the deception and said that he thought CID wouldn’t
want to hear that he had sexual intercourse with someone who had
been drinking.
DISCUSSION
I. Trial counsel’s reference to Marsh’s unsworn statement
Marsh gave an unsworn statement during the presentencing
proceeding. Subsequently, the president of the panel asked the
military judge what the difference was between a sworn and
unsworn statement. The military judge said that he would give
the panel an instruction on how to treat an unsworn statement,
5
United States v. Marsh, No. 11-0123/AR
but did give the following brief description at that time: “It
basically means an unsworn statement, which a Soldier has the
right to do, he [sic] may not be cross-examined upon an unsworn
statement.” The president asked if the court members could ask
questions of Marsh and the military judge responded that they
could not and reiterated that after hearing arguments on
sentencing, the court members would receive further
instructions.
During sentencing argument, trial counsel commented on
Marsh’s unsworn statement:
Now the judge will instruct you on the difference
between a sworn and an unsworn statement. The
[G]overnment would ask you to give less weight to this
unsworn statement -- the accused’s unsworn statement.
The accused was not subject to cross-examination, he
did not answer questions from the [G]overnment nor
from you.
Defense counsel did not object. During sentencing instructions,
the military judge instructed the court members on how they were
to consider Marsh’s unsworn statement:
The court will not draw any adverse inference
from the fact the accused has elected to make a
statement which is not under oath. An unsworn
statement is an authorized means for an accused to
bring information to the attention of the court and it
must be given appropriate consideration. The accused
cannot be cross-examined by the prosecution or
interrogated by the court members or myself upon an
unsworn statement, but the prosecution may offer
evidence to rebut any statement of fact contained in
such an unsworn statement. The weight and
significance to be attached to an unsworn statement
rests within the sound discretion of each court
member. You may consider the statement is not under
6
United States v. Marsh, No. 11-0123/AR
oath, its inherent probability, or improbability,
whether it’s supported or contradicted by other
evidence in the case, as well as any other matter that
may have a bearing on its credibility. In weighing an
unsworn statement, you are expected to use your common
sense and your knowledge of human nature and the ways
of the world.
Marsh argues that it was plain error for the trial counsel
to invite the court members to draw a negative inference from
Marsh’s decision to make an unsworn statement. He argues that
the trial counsel knew that the president of the panel was
interested in asking questions and used this to improperly
invite the panel to penalize Marsh for exercising his right.
The Government responds that the trial counsel’s comment
remained within the bounds of permissible argument. The
Government goes on to argue that, in any event, Marsh suffered
no prejudice because the trial counsel’s comments were
consistent with the military judge’s instructions and the
evidence supporting the sentence was strong.
Improper argument is a question of law that we review de
novo. United States v. Pope, 69 M.J. 328, 334
(C.A.A.F. 2011). Since the defense counsel did not object to trial counsel’s sentencing argument, we review Marsh’s claim for plain error. United States v. Erickson,65 M.J. 221, 223
(C.A.A.F. 2007). To
prevail, Marsh must prove that: “(1) there was an error; (2) it
was plain or obvious; and (3) the error materially prejudiced a
7
United States v. Marsh, No. 11-0123/AR
substantial right.” Id.
(citation and quotation remarks
omitted).
In Breese, after the accused made an unsworn statement,
trial counsel argued: “‘[a]nd when you consider the accused’s
statement, I ask you to consider something different about the
accused’s statement. Everybody else who sat in that box today
took an oath to tell the truth.’” 11 M.J. at 23
(alteration in original). The defense counsel objected to this statement but the objection was overruled.Id.
The military judge in Breese provided the members with essentially the same instruction that the military judge provided in this case. Seeid.
Before this court, Breese argued that the trial counsel’s argument implied that he was lying since his statement was not under oath.Id.
Noting that the military judge’s instructions provided the
members with correct guidance, we held:
The truth of the matter is that these statements are
not made under oath and, thus, the “unsworn statement
is not evidence.” Merely urging the court members to
consider an unsworn statement for what it is falls
within the boundary of fair prosecutorial comment.
Here the challenged statement seems only to have been
directed towards that end and did not constitute an
invitation for the court members to draw an adverse
inference against the appellant.
Id. at 24
(citations omitted).
The military judge in this case correctly instructed the
panel that Marsh could not be cross-examined by the Government
or interrogated by the court members. He further instructed
8
United States v. Marsh, No. 11-0123/AR
them that they could consider that Marsh did not make his
statement under oath and could also consider any other matter
that may have a bearing on the statement’s credibility. The
trial counsel’s statement did nothing more than ask the court
members to consider Marsh’s unsworn statement in light of the
fact that he was not subject to cross-examination and therefore
urged them to give it less weight. In fact, Marsh’s statement
was not subject to cross-examination and the members could
legitimately consider that fact in assessing its credibility.
This aspect of trial counsel’s argument fell within the boundary
of fair prosecutorial comment. See id.
As there was no error,
the remaining prongs of the plain error inquiry need not be
considered.
II. Trial counsel’s argument that Marsh could not be trusted
with the lives of pilots
During the sentencing phase of the court-martial, Marsh’s
squad leader, Sergeant Pat C. Nieto, testified on his behalf.
Sergeant Nieto testified that he rated Marsh in the top ten
percent of the soldiers he supervised. He further testified
that Marsh was “invaluable to me in training new soldiers coming
in.” The fact that Marsh had been convicted of a false official
statement would not cause Sergeant Nieto any concern in serving
and deploying with him. On cross-examination, Sergeant Nieto
9
United States v. Marsh, No. 11-0123/AR
was asked if Marsh was currently working in his MOS4 as a
helicopter repairman. Sergeant Nieto responded that he was not.
On redirect, Sergeant Nieto clarified that Marsh was not
actually “turning wrenches” but was supervising new soldiers.
The military judge then asked why Marsh was not working in his
MOS and Sergeant Nieto explained:
Gentlemen, the reason Private Marsh is not
serving in his MOS in Aviation is any time a
Soldier is in trouble for anything, we usually
restrict him from working on the aircraft as to
not cause a problem with the aircraft. As we
hold the pilots’ lives in our hands everyday, we
don’t want his ideas and stuff going on in his
head or his concerns to translate over to the
job either inadvertently or purposely. So in
this case, the commander the [sic] first
sergeant restricted him from working on the
aircraft until -- pending the results of his
trial. And that is the reason he is not working
on the aircraft at this moment.
Sergeant Nieto further clarified the situation during
recross-examination:
Q: You said that you don’t -- he can’t touch
aircraft because you don’t want ideas in his
head inadvertently or purposely transferring to
other Soldiers or to --
A: No, sir, if I may clarify. When working on
the aircraft, you hold peoples’ lives in your
hand [sic] on a daily basis. We don’t want
Private Marsh thinking about his case or
something going on with his case that would
interfere with his thought process while working
on an aircraft so that he wouldn’t accidently do
4
Military occupational specialty. Dep’t of the Army, Reg. 611-
1, Personnel Selection and Classification, Military Occupational
Classification Structure Development and Implementation para. 6-
4 (Sept. 30, 1997).
10
United States v. Marsh, No. 11-0123/AR
something to the aircraft or forget to put a
bolt on the right way or something to that
nature that would cause a problem with the
aircraft.
In his sentencing argument, the trial counsel argued that the
court members could not trust Marsh with the lives of pilots
because he lied to SA Ellis:
Because a good Soldier doesn’t lie. The
[G]overnment would argue that this Soldier
should absolutely not remain in our Army that
values integrity and honor, not lies and not
deceit. You can’t trust the accused. The
accused is an aircraft mechanic, someone you
trust to work on your airplanes, to tighten that
bolt, to make sure that those aircrafts are
worthy to fly, to do rescue missions, to serve
this Army. Can you trust someone who lies with
the lives of those pilots?
Emphasis added.
Marsh argues that the trial counsel unduly inflamed the
passions of the court members on two grounds: his conviction
for false official statement bears no relevance to his duty or
ability to repair aircraft; and, the trial counsel invited the
court members to put themselves in an aircraft repaired by Marsh
and then instilled fear that the aircraft would crash.
The Government responds that the trial counsel simply
rebutted Marsh’s sentencing witnesses’ testimony that he could
be trusted and commented on his character for future service.
The Government argues that Marsh’s truthfulness is highly
relevant to whether rehabilitation could be successful or
whether Marsh can complete his duty with good order and
11
United States v. Marsh, No. 11-0123/AR
discipline. Rather than inflame court members, the Government
asserts that the trial counsel was simply referring to Sergeant
Nieto’s statement “that aircraft mechanics are entrusted with
pilots’ lives.”
As in the first issue, improper argument is a question of
law that we review de novo. Pope, 69 M.J. at 334
. Since the defense counsel did not object to the trial counsel’s comments, we again review for plain error. Erickson,65 M.J. at 223
. Marsh must prove the existence of error, that the error was plain or obvious, and that the error resulted in material prejudice to a substantial right.Id.
“[T]rial counsel is at liberty to strike hard, but not
foul, blows.” Schroder, 65 M.J. at 58
(citation and quotation marks omitted). As a result, “it is error for trial counsel to make arguments that ‘unduly . . . inflame the passions or prejudices of the court members.’”Id.
(quoting Clifton,15 M.J. at 30
). The trial counsel also must not inject matters that are not relevant into argument.Id.
(citing United States v. Fletcher,62 M.J. 175, 180
(C.A.A.F. 2005); R.C.M. 919(b) Discussion). Nor can the trial counsel ask court members to place themselves in the shoes of the victim or a near relative. United States v. Baer,53 M.J. 235, 237-38
(C.A.A.F. 2000).
While this court has not previously examined whether a
prosecutor can properly ask court members to place themselves in
12
United States v. Marsh, No. 11-0123/AR
the shoes of potential future victims, the United States Court
of Appeals for the Sixth Circuit has addressed this issue. In
Hodge v. Hurley, 426 F.3d 368, 384
(6th Cir. 2005), that court held that a suggestion that the jury put itself in the place of someone who may run into the defendant on the street is impermissible argument. This is because trial counsel must not “fan the flames of the jurors’ fears by predicting that if they do not convict . . . some . . . calamity will consume their community.” Bedford v. Collins,567 F.3d 225, 234
(6th Cir.
2009) (citation omitted).
Trial counsel personalized his argument to the panel
members by referring to Marsh as working on “your” aircraft and
questioning whether Marsh could be trusted with the lives of the
unit’s pilots. We believe that this portion of trial counsel’s
argument constituted error and that it was plain and obvious.
We can find no rational nexus between the fact that Marsh lied
to SA Ellis during the investigation and the assertion that he
could not be trusted with the lives of pilots in the future.
The Government’s argument that the comment was merely reflecting
the testimony of Marsh’s squad leader is not supported by the
record. It is clear from Sergeant Nieto’s testimony that Marsh
was placed in a supervisory role only for the duration of his
court-martial because he might be “thinking about his case or
13
United States v. Marsh, No. 11-0123/AR
something going on with his case that would interfere with his
thought process.”
It cannot be reasonably inferred from this record that
those concerns would extend beyond the conclusion of the trial.
In fact, just the opposite is true. Sergeant Nieto and Marsh’s
First Sergeant testified that they would serve and deploy with
Marsh again. Consequently, the trial counsel’s assertion that
the court members could no longer trust Marsh to perform his
assigned duties is not supported by the testimony of Marsh’s
immediate supervisors -- the only testimony on this subject in
the record. Trial counsel’s invitation to the court members to
imagine themselves as potential future victims only served to
inflame a fear as to what might happen if the panel did not
adjudge a discharge. See Hodge, 426 F.3d at 384
; Bedford,567 F.3d at 234
.
Our final analysis concerns whether this error prejudiced
Marsh. Here we balance the severity of the improper argument,
any measures by the military judge to cure the improper
argument, and the evidence supporting the sentence to determine
whether the “‘trial counsel’s comments, taken as a whole, were
so damaging that we cannot be confident’ that [the appellant]
was sentenced ‘on the basis of the evidence alone.’” Erickson,
65 M.J. at 224
(quoting Fletcher,62 M.J. at 184
).
14
United States v. Marsh, No. 11-0123/AR
As we discussed earlier, trial counsel’s argument that
Marsh could not be trusted to work on helicopters in the future
because of his conviction for making a false official statement
lacks both a rational nexus and factual support in the record.
The more serious aspect of trial counsel’s argument was his
invitation to the members that they place themselves in the
shoes of future victims of Marsh’s alleged inability to perform
his duties and to imply that the lives of the unit’s pilots
would be at risk. There is nothing in the record that supports
this assertion and it clearly was unduly inflammatory. Although
the military judge gave the standard instruction before findings
arguments that counsels’ arguments are not to be viewed as
evidence, he provided no specific curative instruction in
response to trial counsel’s sentencing argument.5
In looking at the weight of evidence supporting the
sentence, we note that the Government did not present a
significant case in aggravation. In fact, the Government only
introduced Marsh’s Enlisted Record Brief (ERB), which contained
no derogatory information, and rested their sentencing case
without calling any witnesses. Marsh, on the other hand, called
three character witnesses and made an unsworn statement. His
first character witness was First Sergeant Roque Quichocho, who
5
Generally, potential harm from improper comments can be cured
through a proper curative instruction. See United States v.
Ashby, 68 M.J. 108, 123
(C.A.A.F. 2009).
15
United States v. Marsh, No. 11-0123/AR
testified that Marsh had worked for him as a crew chief both at
Fort Bragg and in Iraq. The First Sergeant testified that Marsh
was intelligent, had a great work ethic, and that he could rely
on him to complete sergeant level tasks without supervision. He
testified that Marsh was “an all-around pretty good [s]oldier”
and he would have no qualms in serving or deploying with him
again. The next character witness was Marsh’s squad leader
Sergeant Nieto, who testified that Marsh ranked in the top ten
percent of his troops and that he would serve and deploy with
him again. His final character witness was Marsh’s father who
testified as to Marsh’s upbringing, his work ethic, and the
family’s pride in Marsh’s service.
The Government argues that there was no prejudice as the
maximum sentence for this offense is a dishonorable discharge
and five years of confinement and Marsh was only sentenced to a
bad-conduct discharge, forfeiture of $1,347.00 pay for one
month, and reduction to E-1. However, given the maximum
authorized sentence and the sentence adjudged, it is apparent
that the panel was somewhat receptive to the defense sentencing
argument. As a result, it is not clear that Marsh’s sentence
was unaffected by the trial counsel’s improper argument. Taking
into consideration the record as a whole, including the relative
weight of the parties’ respective sentencing cases and trial
16
United States v. Marsh, No. 11-0123/AR
counsel’s improper argument, we cannot be confident that Marsh
was sentenced on the basis of the evidence alone.
DECISION
The decision of the United States Army Court of Criminal
Appeals is affirmed as to findings, but is reversed as to the
sentence. The sentence is set aside and the record is returned
to the Judge Advocate General of the Army. A sentencing
rehearing is authorized.
17
United States v. Marsh, No. 11-0123/AR
RYAN, Judge, with whom STUCKY, Judge, joins
(concurring in part and dissenting in part):
I agree with the Court that trial counsel’s comment on
Appellant’s unsworn statement was proper. I respectfully
dissent from the judgment because, even assuming error,
trial counsel’s statement that Appellant could not be
trusted with the lives of pilots was not shown by Appellant
to be “plain,” “clear,” or “obvious” error. United States
v. Olano, 507 U.S. 725, 734
(1993) (citations and quotation
marks omitted).1 Moreover, even if the error was plain,
Appellant has not shown prejudice.
“Error is ‘plain’ when it is ‘obvious’ or ‘clear under
current law.’” United States v. Harcrow, 66 M.J. 154, 162
(C.A.A.F. 2008) (Stucky, J., with whom Effron, C.J., 1 Rule for Courts-Martial (R.C.M.) 1001(g) provides that “[f]ailure to object to improper argument before the military judge begins to instruct the members on sentencing shall constitute waiver of the objection.” (Emphasis added.) The text of this rule forecloses appellate review altogether when the accused fails to object -- a conclusion bolstered by comparison to other provisions that, unlike R.C.M. 1001(g), treat failure to object as waiver “in the absence of plain error.” See, e.g., R.C.M. 920(f); 1005(f); 1106(f)(6). Nonetheless, our precedents hold that in the absence of objection we review a claim of improper prosecutorial presentencing argument for plain error. See, e.g., United States v. Erickson,65 M.J. 221, 223
(C.A.A.F. 2007); United States v. Paxton,64 M.J. 484, 487-88
(C.A.A.F. 2007). And while treating failure to object to improper presentencing argument as waiver rather than forfeiture appears compelled by R.C.M. 1001(g), no one has requested that we revisit case law to the contrary. United States v. Marsh, No. 11-0123/AR joined, concurring in the result) (quoting Olano,507 U.S. at 734
). Assuming arguendo that trial counsel’s statement
that Appellant could not be trusted with the lives of
pilots was improper, it was not so “obvious” an error as to
constitute plain error.
First, it is not at all clear that trial counsel
sought to place members “in the shoes of potential future
victims.” United States v. Marsh, __ M.J. __, __ (12-13)
(C.A.A.F. 2011). While the argument can be made that trial
counsel “personalized his argument to the panel members by
referring to Marsh as working on ‘your’ aircraft and
questioning whether Marsh could be trusted with the lives
of the unit’s pilots,” id.,
it is neither plain nor obvious
that trial counsel’s use of the word “your” was meant to
refer specifically to the members (rather than the Army as
a whole), especially since trial counsel immediately
reverted to talking about the endangered future pilots in
the third person: “Can you trust someone who lies with the
lives of those pilots?” (Emphasis added.)
Second, even if that was the trial counsel’s
objective, the Court concedes that it “has not previously
examined whether a prosecutor can properly ask court
members to place themselves in the shoes of potential
future victims.” Marsh, __ M.J. at __ (12-13). While one
2
United States v. Marsh, No. 11-0123/AR
might expect the majority in this case to answer that
question “no” (since that is the premise for error), plain
error review requires this Court to look to “‘current
law.’” See Harcrow, 66 M.J. at 162
(Stucky, J., with whom Effron, C.J., joined, concurring in the result) (emphasis added) (quoting Olano,507 U.S. at 734
). Acknowledging that we have not addressed the issue compels the conclusion that any error was not plain under the precedent of this Court. See United States v. Weintraub,273 F.3d 139, 152
(2d Cir. 2001) (finding no plain error where “[n]o binding precedent . . . at the time of trial or appeal” established error). And under the precedent from the relevant CCA, the argument at issue appears to have been permissible. United States v. Williams,23 M.J. 776, 779
(A.C.M.R. 1987)
(drawing a distinction between asking members to place
themselves in the shoes of actual victims and in the place
of potential future victims).
And while plain error may not “automatically” be
ineffective assistance of counsel, see United States v.
Bono, 26 M.J. 240
, 243 n.2 (C.M.A. 1988), Appellant
conceded at oral argument that his failure to raise an
ineffective assistance of counsel claim “is certainly
something for this Court to consider in deciding whether
the error was plain and obvious.” Considering that the
3
United States v. Marsh, No. 11-0123/AR
prosecutorial comments at issue are a far cry from the sort
of comments we have previously found to be plainly
inflammatory and improper, it is understandable why defense
counsel failed to object. See, e.g., Erickson, 65 M.J. at 223-24
(testing trial counsel’s comparison of the appellant to Adolf Hitler, Saddam Hussein, and Osama bin Laden for prejudice); United States v. Clifton,15 M.J. 26, 30
(C.M.A. 1983) (holding that trial counsel’s “conjugation of adultery with heroin” was inflammatory); United States v. Lewis,7 M.J. 958, 959-60
(A.F.C.M.R. 1979) (holding that it was error to insinuate that the accused would use drugs on the job when the accused had only been convicted of selling drugs). In other words, while we do not disagree that the law prohibits arguments that “‘unduly . . . inflame the passions or prejudices of the court members,’” Marsh, __ M.J. at __ (12) (quoting United States v. Schroder,65 M.J. 49, 58
(C.A.A.F. 2007)), it was not plain
or obvious that the prosecutorial comments at issue did any
such thing.
With regard to prejudice, the essential question is
whether “‘trial counsel’s comments, taken as a whole, were
so damaging that [this Court] cannot be confident that the
members convicted [and sentenced] the appellant on the
basis of the evidence alone.’” Schroder, 65 M.J. at 58
4
United States v. Marsh, No. 11-0123/AR
(quoting United States v. Fletcher, 62 M.J. 175, 184
(C.A.A.F. 2005)). In this case, trial counsel’s comments were made in furtherance of the Government’s theme that a liar has no place in the military, which values integrity, honor, and trust. The theme was a valid one, and trial counsel’s alleged misconduct was minor. Indeed, it was so minor that the members only sentenced Appellant to a bad- conduct discharge, partial forfeitures, and reduction to the lowest enlisted grade. Considering that they could have sentenced him to a dishonorable discharge, five years of confinement, reduction to the lowest enlisted grade, and forfeitures of all pay and allowances, Article 58a(a), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 858a(a) (2006); Manual for Courts-Martial, United States pt. IV, para. 31.e. (2008 ed.), it is difficult for me to conclude that the members were in fact inflamed or that Appellant suffered prejudice. See United States v. Young,470 U.S. 1, 15
(1985) (noting that plain error doctrine is meant to correct “only ‘particularly egregious errors’” (quoting United States v. Frady,456 U.S. 152, 163
(1982))).
I would affirm the decision of the United States Army
Court of Criminal Appeals.
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