Door opens wider for government sentencing evidence

Two opinions were issued today giving the government broad latitude in its sentencing case.

CAAF issued its opinion in United States v. Stephens, __ M.J. __, No. 08-0589/AF (C.A.A.F. March 12, 2009) [DISCLAIMER: I'm the losing counsel in Stephens.] In Stephens, CAAF held that the military judge didn't err "by allowing the father of the victim to testify in sentencing about the effect the investigation and court-martial had on the victim." Id., slip op. at 2. Judge Stucky wrote the opinion of the court, which was joined by Judges Erdmann and Ryan. Judge Baker, joined by Chief Judge Effron, wrote separately and concurred in the result.

SSgt Stephens was found guilty of attempted carnal knowledge, attempted sodomy and indecent acts with a 13-year-old relative by marriage. The victim testified on the merits, but not during the sentencing hearing. During the sentencing case, after the victim's father had already testified about how the offenses affected the victim, the trial counsel asked: "How about the effect of this process, the investigation and her testifying and what not, how has that impacted her and how has it impacted you?" The defense objected, observing that the prosecutors "are asking to
penalize the Defendant for invoking his right to have a trial and the process involved with that." After a bit of colloquy, the military judge ruled: "He can go through what the effect of it since this has come about until now and she has had to testify, the impact and the effect on her and that means as she has gone through the process, just the impact, emotionally on her." The father then testified: "It has been totally devastating, what she has had to go through, what she has had to put up with; the constant retelling to different people, to different systems of the court system. I mean, to keep bringing it slamming it in her face, I mean, ya’ll just don’t have a clue what this has done to my daughter. She is nowhere near the same daughter that she was before. It has just totally changed her one hundred percent."

CAAF ruled that "[t]estimony as to the effect of the process, including the trial,
on the victim" comes within R.C.M. 1001's authorization for the trial counsel to present aggravating evidence. CAAF concluded that no constitutional violation arose from the evidence, reasoning that "there was no explicit comment by the trial counsel or the father concerning Appellant's invocation of his rights but rather, a brief reference to the effect of the entire proceeding (including, but not limited to, the trial) on Appellant's victim."

The court's analysis continued by observing that an M.R.E. 403 balancing was also required because "relevant evidence may still be excluded if its probative value is substantially outweighed by the danger of unfair prejudice." The court conducted its own 403 analysis, finding that evidence probative and unfair prejudice unlikely.

The court did, however, caution TCs "to use care in eliciting testimony that may cross the line into impermissible comment on an accused's invocation of his constitutional rights."

Judge Baker found error, but concluded that it was harmless. He reasoned, "The problem is that the question and answer . . . referenced the victim's testimony at trial. As a result, on these facts the M.R.E. 403 balancing test should have broken in Appellant's favor." But Judge Baker concluded that "the error in M.R.E. 403 balancing was harmless for much the same reason that the evidence was not probative."

Nevertheless, the majority endorsed the conclusion that aggravating evidence based on the court-martial process is permissible, throwing into doubt the dicta in ACCA's recent published decision of United States v. Fisher, 67 M.J. 617 (A. Ct. Crim. App. 2009), which we discussed here.

Opening the government's aggravating evidence door wider still is AFCCA published opinion in United States v. Rhine, __ M.J. ___, No. ACM 37004 (A.F. Ct. Crim. App. March 12, 2009). (The opinion isn't yet on AFCCA's web site, so I've posted it here.)

A1C Rhine was a male version of Glenn Close from Fatal Attraction, though without the bunnycide. He was found guilty of violating a lawful order (apparently a no-contact order; that wouldn't have stopped Alex Forrest either), two specs of willfully damaging his stalkee's cars, and one spec of stalking.

In sentencing, the TC put on evidence of numerous illegal and/or offensive acts that Rhine committed while stalking his victim. The defense objected to it as uncharged misconduct. The military judge let it in for the purpose of understanding the victim's fear arising from the stalking, but repeatedly indicated that he wouldn't punish Rhine for the substance of that misconduct. AFCCA upheld the military judge. AFCCA quoted CAAF's Hardison opinion for the proposition that "[t]here are two primary limitations on the admission of aggravation evidence. First, such evidence must be directly related to the offenses of which the accused has been found guilty" and, second, it must pass an M.R.E. 403 balancing test. Id. at 8 (quoting United States v. Hardison, 64 M.J. 279 (C.A.A.F. 2007)). Turning to the particular context of this case (i.e, the Fatal Attraction context), AFCCA continued, "When dealing with a charge of stalking and the consequent fear of the stalking victim, we will broadly construe the first element of the Hardison test regarding whether the evidence is directly related." Id. at 9. "We conclude that all the facts, circumstances, and activities between the victim and the appellant are directly related to the charged offense of stalking, and therefore, are admissible in aggravation during sentencing under R.C.M. 1001(b)(4)." Id. AFCCA also upheld the admissibility of the challenged uncharged misconduct because "the evidence demonstrates a continuing course of conduct by the appellant involving similar action and misconduct with the same victim." Id. Turning to Hardison's M.R.E. 403 balancing requirement, the court found "the probative value of the evidence far outweighs the possible prejudicial impact. The evidence was probative of the fear experienced by" the stalking victim. Id. at 9-10. "Fear is a critical element of the offense of stalking" and the military judge indicated that he would consider the evidence "solely for the issues related to fear and the offense of stalking." Id. at 10.

So there was no error, Fatal or otherwise -- not even Close.