CAAF holds that TC's propensity argument was improper but didn't create plain error

CAAF released its opinion in United States v. Burton, __ M.J. ___, No. 07-0848/AF (C.A.A.F. Jan. 15, 2009), on Thursday. Judge Ryan wrote for the majority, which held that the "[t]rial counsel's invitation to the panel to compare the charged offenses to find modus operandi or propensity was improper, but under the facts of this case the military judge’s failure to sua sponte instruct the panel on the use of propensity evidence or take other remedial action did not constitute plain error." Id., slip op. at 2.

The military judge's instructions included the standard spillover instruction. Id., slip op. at 4. "In the closing arguments that followed, the trial counsel noted the military judge's instruction that panel members could not use guilt of one offense as proof of guilt of another offense. However, trial counsel told the panel it could 'take these things and compare them for [Appellant's] propensity to commit these types of offenses.' He invited the panel to 'take both of [the victims'] stories and lay them next to each other and compare them and see what this particular person's M.O. is.'" Id. (alteration in original). The DC didn't object. Id., slip op. at 5.

CAAF held, "We agree with Appellant that trial counsel's closing argument was improper, but disagree that the error was plain and obvious such that the military judge was required to sua sponte give further instructions or take other remedial measures." Id. "The Government may not introduce similarities between a charged offense and prior conduct, whether charged or uncharged, to show modus operandi or propensity without using a specific exception within our rules of evidence, such as M.R.E. 404 or 413." Id., slip op. at 6.

CAAF disagreed with AFCCA's conclusion that the argument was proper under Military Rule of Evidence 413. CAAF explained, "The problem with the CCA’s holding is simple –- this is not an M.R.E. 413 case. The evidence on which trial counsel was commenting was primary proof of the charged offenses. No evidence was introduced as propensity evidence pursuant to M.R.E. 413, and none of the procedural safeguards required as a predicate to such introduction were followed." Id., slip op. at 7. "As the Government did not offer the evidence under M.R.E. 413, it did not follow the steps required by M.R.E. 413. Therefore, it may not a posteriori justify its closing argument based on what it might have done." Id.

But, CAAF concluded, it "was not plain and obvious under the facts of this case that the military judge should have sua sponte given a propensity instruction, as Appellant now contends." Id., slip op. at 8. CAAF explained: "In the context of the entire trial, including the distinct and clearly defined evidence against Appellant on similar yet separate offenses, the specific instructions to the panel, the fact that neither trial nor defense counsel offered M.R.E. 413 propensity evidence or requested a propensity instruction, and the fact that the comments of trial counsel were not so egregious as to provoke an objection by trial defense counsel, we do not believe that any error in trial counsel's argument rose to the level of plain error that would require the military judge to sua sponte instruct on the proper use of propensity evidence or take other remedial measures." Id., slip op. at 10-11.

Chief Judge Effron wrote separately. While agreeing with the majority that the trial counsel's propensity argument was erroneous, he contended that "the military judge was required to give an appropriate tailored instruction expressly addressing the subject of propensity." But, Chief Judge Effron concluded, the failure to give such an instruction wasn't prejudicial.

Judge Erdmann also agreed that the trial counsel's propensity argument was erroneous. But he dissented in part because he concluded that "the military judge committed plain error by failing to provide a propensity instruction to the members." Judge Erdmann then applied the prejudice test for constitutional errors and concluded that the error wasn't harmless beyond a reasonable doubt.