A new published NMCCA opinion

NMCCA issued a published opinion on 22 May, but it didn't show up on NKO until today and still isn't on NMCCA's web site. We've posted a copy here on CAAFlog.com. United States v. Pimienta, __ M.J. ___, No. NMCCA 200600788 (N-M. Ct. Crim. App. May 22, 2008).

LCpl Pimienta was assigned to guard duty at Bagram Airfield, Afghanistan. After standing guard and while cleaning an M9, he unintentionally discharged a round that killed another Marine. LCpl Pimienta was tried in absentia for involuntary manslaughter and making a false official statement.

Over defense objection, the Government presented seven Marines who testified that they had seen LCpl Pimienta handle his M9 in an unsafe manner, to include spinning the weapon on his finger, quick-drawing it, chambering a round in the barracks, and pointing it at other Marines while it was loaded. The testimony established that LCpl Pimienta was counseled at least twice concerning his unsafe handling of weapons.

The defense argued on appeal that this 404(b) evidence was inadmissible because the defense at trial had not advanced a mistake or accident defense. NMCCA disagreed. NMCCA held that the defense raised the defense of mistake or accident through a portion of the defense counsel's opening statement and cross-examination of a witness. Id., slip op. at 5-6. NMCCA also referenced a portion of the defense counsel's closing argument, id., slip op. at 6, though it is unclear how the closing argument could support the military judge's ruling on an evidentiary issue during the government's case-in-chief.

While NMCCA expressed some concern that the 404(b) witnesses were unduly cumulative, it held that any such error was harmless. Id., slip op. at 7.

NMCCA also ruled that even if the defense hadn't put mistake or accident into play, the evidence would have been admissible "to prove culpable negligence, an element of the offense the Government had to prove beyond a reasonable doubt." Id., slip op. at 8.

NMCCA then rejected a factual and legal sufficiency challenge. Id., slip op. at 9-10.

NMCCA then rejected a 403 challenge to the military judge's admitting into evidence, over defense objection, post-mortem and autopsy photographs of the victim's body and skull.

NMCCA also held that the trial counsel didn't commit plain error by "us[ing] the term 'lies' or 'lie' multiple times when referring to the appellant and the sword statement he gave to NCIS." Id., slip op. at 13. NMCCA observed that LCpl Pimienta was charged with making a false official statement and reasoned: "In order to establish a prima facie case on this charge, the trial counsel had to prove that the statement the appellant made to NCIS was in fact false, that is, that the appellant had lied in his statement. One would, therefore, expect the trial counsel to address the falsity of the statement during closing argument." Id., slip op. at 13.

NMCCA also rejected a challenge to the trial counsel's repeated use of "we" during the closing argument. Id., slip op. at 14.

Finally, the court rejected a challenge to the trial counsel's argument that "[w]e have shown -- and there hasn't been any evidence presented to the contrary -- that [LCpl] Pimienta shot [LCpl] White." Id. NMCCA indicated that this was neither a comment on the accused's failure to testify (small wonder he failed to testify if he was tried in absentia) nor an impermissible attempt to shift the burden to produce evidence to the defense. Id., slip op. at 15.