UNITED STATES, Appellee
v.
Daniel A. FREY, Staff Sergeant
U.S. Air Force, Appellant
No. 14-0005
Crim. App. No. 37759
United States Court of Appeals for the Armed Forces
Argued February 24, 2014
Decided May 19, 2014
BAKER, C.J., delivered the opinion of the Court, in which
ERDMANN, STUCKY, and RYAN, JJ., joined. OHLSON, J., filed a
separate dissenting opinion.
Counsel
For Appellant: Captain Michael A. Schrama (argued); Major
Nathan A. White.
For Appellee: Captain Matthew J. Neil (argued); Colonel Don M.
Christensen, Major Charles G. Warren, and Gerald R. Bruce, Esq.
(on brief).
Military Judges: Thomas A. Monheim and Le T. Zimmerman
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Frey, No. 14-0005/AF
Chief Judge BAKER delivered the opinion of the Court.
Appellant was tried by a general court-martial composed of
members at Joint Base McGuire-Dix-Lakehurst, New Jersey.
Appellant was convicted, contrary to his pleas, of one
specification of engaging in sexual contact with a child who had
not attained the age of twelve years and one specification of
engaging in a sexual act with a child who had not attained the
age of twelve years, both in violation of Article 120, Uniform
Code of Military Justice (UCMJ), 10 U.S.C. § 920 (2006).
Appellant was sentenced to a dishonorable discharge, eight years
of confinement, forfeiture of all pay and allowances, and
reduction to E-1. The convening authority approved the
sentence. The United States Air Force Court of Criminal Appeals
(CCA) affirmed the findings and the sentence. Appellant then
petitioned this Court and was granted review on the following
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.
Like the CCA, we find that trial counsel’s sentencing
argument, while improper, was not prejudicial and therefore
affirm the findings of the CCA.
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BACKGROUND
On New Year’s Eve of 2008, Appellant and his fiancée got
into an argument while returning from a holiday visit to his
family and she kicked him out of her house. Appellant called
his friend and supervisor Master Sergeant (MSgt) KK and asked if
he could stay with him for awhile. MSgt KK agreed and Appellant
moved some belongings into his friend’s basement. MSgt KK was
hosting a New Year’s Eve party that night and invited Appellant
to attend. Near the end of the evening, Appellant wound up
alone in the basement with MSgt KK’s two daughters, ten-year-old
RK and seven-year-old EK. After playing video games together,
Appellant and the two girls put on the Batman: The Dark Knight
movie. Appellant and RK were lying side by side on the pull-out
couch.
All three fell asleep while watching the movie. When RK
woke sometime later, she got up and turned off the movie
projector, awakening Appellant in the process. RK lay down
again and fell back asleep, only to awaken when she felt
Appellant’s hands on her stomach, under her t-shirt.
Frightened, she lay still as his hands traveled up to her chest
and began fondling her breasts. He then slid his hand down
inside her pajama pants and underwear. He rubbed her vagina and
penetrated her with his finger, causing her pain. Appellant
fondled her breasts a second time and then moved his hand
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downward to touch her vagina again. RK lay still the entire
time, too scared to speak. While Appellant’s hands were still
on her, RK managed to get up off the couch and go upstairs. Too
frightened to tell her father what had occurred, RK wrote him a
note that read: “Daddy, The guy that moved in down stairs [sic]
was toching [sic] me in the wrong places.”
Late the following morning, Appellant moved his belongings
out of MSgt KK’s home. Sometime after he had departed, the
civilian police were called. Appellant was charged with one
specification of engaging in sexual contact with a child who had
not attained the age of twelve years and one specification of
engaging in a sexual act with a child who had not attained the
age of twelve years, both in violation of Article 120, UCMJ. At
a trial before members, RK testified remotely regarding the
events of that New Year’s Eve, testimony that had to be paused
several times because RK began crying. The note she wrote to
her father was admitted into evidence.
Members found Appellant guilty of both specifications. 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
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United States v. Frey, No. 14-0005/AF
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.” 1 Defense
counsel objected to this statement and trial counsel asserted
1
It should be noted and understood that this comment occurred in
the context of additional comments by trial counsel regarding
Appellant’s potential recidivism. During his initial sentencing
argument, trial counsel made the following statements:
[T]his sentencing case is about . . . . the protection of
young girls everywhere. . . .
. . . .
. . . . What [does] our common sense and knowledge of
the ways of the world tell us about jail time? . . . [W]hat
we can be sure of is that every day he spends in jail will
be one day less that [RK] doesn’t have to worry about him
being out on the street and that no other girl can suffer
the same fate.
. . . .
. . . . [T]he Air Force will not tolerate child
molesters . . . we want to protect young girls from the
same fate . . . .
However, Appellant did not object to these statements.
Therefore they are subject to plain error review. United States
v. Fletcher, 62 M.J. 175, 179 (C.A.A.F. 2005). However, because
we find no prejudice in this case, with or without these
additional statements, we need not address the predicate plain
error question as to whether these statements amounted to
obvious error.
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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. 2
The members sentenced Appellant to a dishonorable
discharge, eight years of confinement, forfeiture of all pay and
allowances, and reduction to E-1. The convening authority
approved the sentence. Before the Air Force CCA, Appellant
argued that trial counsel had unduly inflamed the passions of
the members by improperly suggesting Appellant would commit
future acts of child molestation. The CCA found trial counsel’s
remarks went beyond the evidence of record and constituted
error. However, it determined that, “[w]hen placed in the
context of the total sentencing argument and the adjudged
2
The military judge also instructed that the maximum punishment
that could be adjudged included reduction to the grade of E-1,
forfeiture of all pay and allowances, and a dishonorable
discharge.
6
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sentence” this error did not materially prejudice Appellant.
The CCA upheld both the findings and the sentence.
DISCUSSION
Improper argument involves a question of law that this
Court reviews de novo. United States v. Marsh, 70 M.J. 101, 106
(C.A.A.F. 2011). “The legal test for improper argument is
whether the argument was erroneous and whether it materially
prejudiced the substantial rights of the accused.” United
States v. Baer, 53 M.J. 235, 237 (C.A.A.F. 2000). Where
improper argument occurs during the sentencing portion of the
trial, we determine whether or not we can be “confident that
[the appellant] was sentenced on the basis of the evidence
alone.” United States v. Halpin, 71 M.J. 477, 480 (C.A.A.F.
2013) (brackets in original) (internal quotation marks omitted).
The standard for determining prosecutorial misconduct was
established in Berger v. United States, in which the Supreme
Court stated that trial counsel:
may prosecute with earnestness and vigor . . . . But,
while he may strike hard blows, he is not at liberty
to strike foul ones. It is as much his duty to
refrain from improper methods calculated to produce a
wrongful conviction as it is to use every legitimate
means to bring about a just one.
295 U.S. 78, 88 (1935). Trial counsel is entitled “to argue the
evidence of record, as well as all reasonable inferences fairly
derived from such evidence.” Baer, 53 M.J. at 237. However,
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the Rules for Courts-Martial (R.C.M.) and existing case law both
establish that it is error for trial counsel to make arguments
that “‘unduly . . . inflame the passions or prejudices of the
court members.’” United States v. Marsh, 70 M.J. 101, 102
(C.A.A.F. 2011) (alteration in original) (quoting United States
v. Schroder, 65 M.J. 49, 58 (C.A.A.F. 2007)); R.C.M. 919(b)
Discussion.
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.
However, prosecutorial misconduct does not automatically
require a new trial or the dismissal of the charges against the
accused. Relief will be granted only if the trial counsel’s
misconduct “actually impacted on a substantial right of an
accused (i.e., resulted in prejudice).” Fletcher, 62 M.J. at
178 (internal quotation marks omitted). Reversal is appropriate
when 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.” Halpin, 71 M.J.
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at 480 (alteration in original) (internal quotation marks
omitted).
In Fletcher, this Court recommended balancing three factors
to assess whether misconduct impacted the accused’s substantial
rights and the integrity of his trial: “(1) the severity of the
misconduct, (2) the measures adopted to cure the misconduct, and
(3) the weight of the evidence supporting the conviction.” 62
M.J. at 184. In Halpin, this Court extended the Fletcher test
to improper sentencing argument. 71 M.J. at 480. In applying
this test to the current case, we find that although the first
two factors favor Appellant, the weight of the evidence
supporting the sentence adjudged is such that we can be
“confident that Appellant was sentenced on the basis of the
evidence alone.” Id.
Severity of the Misconduct
R.C.M. 1001, governing presentencing procedure, states that
during argument, trial counsel “may refer to generally accepted
sentencing philosophies” including “specific deterrence of
misconduct by the accused.” R.C.M. 1001(g). Such sentencing
theories also encompass protecting society from the wrongdoer
and general deterrence, preventing others from committing
similar offenses in the future. United States v. Ohrt, 28 M.J.
301, 305 (C.M.A. 1989). Where trial counsel in this case
overstepped the bounds of proper argument was in requesting that
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United States v. Frey, No. 14-0005/AF
members draw upon information not in evidence to make a specific
conclusion about Appellant: that he was a serial child molester
who had offended before and in theory would offend again. “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.” Though this comment
comprises three sentences in eight pages of sentencing argument,
one is hard pressed to imagine many statements more damaging
than the implication that someone who has been convicted of
molesting a single child will go on to molest many more. Trial
counsel’s insinuation that Appellant was necessarily guilty of
additional offenses and would be a serial recidivist if not
confined was both unsubstantiated and severe.
Curative Instructions
The CCA found that the military judge’s curative
instructions remedied the impact of trial counsel’s improper
comment. We disagree. If anything, he made things worse. The
military judge overruled Appellant’s objection to trial
counsel’s improperly urging members to employ their common sense
and “knowledge of the ways of the world” to draw conclusions as
to whether Appellant was a serial child molester. Then, during
his instructions to the members, the military judge reiterated
that it was appropriate for them to: “apply your commonsense
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United States v. Frey, No. 14-0005/AF
[sic] and knowledge of the ways of the world whether or not in
your particular case that involves any implication suggested by
counsel. Again, it is up to you to determine whether or not
that comports with your sense of the ways of the world.” He
then reminded members that the accused was to be sentenced only
for the offense for which he had been found guilty. However,
this was not sufficient to offset the notion that it was
acceptable for members, absent any facts in evidence, to
consider their own “knowledge of the ways of the world”
conclusions as to whether Appellant was or would be a serial
child molester when determining an appropriate sentence.
Both trial counsel and the military judge urged members to
rely upon their “knowledge of the ways of the world” in
assessing trial counsel’s sentencing argument. There are two
problems with the use of “ways of the world” in this context.
First, members are supposed to adjudicate a sentence based on
the evidence presented and the military judge’s instructions,
which define, among other things, the potential confinement
exposure of the defendant and relevant sentencing factors and
philosophies. Nowhere does the Manual for Courts-Martial,
United States (MCM) or this Court’s case law suggest that
members are permitted to ignore this evidentiary requirement and
replace it with their personal knowledge of the “ways of the
world” to determine an appropriate sentence.
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Second, whether or not a person convicted of a particular
offense is more or less likely to offend again or become a
serial recidivist is a question requiring expert testimony,
empirical research, and scientific and psychological method,
inquiry, and evidence. Recidivism is not a matter resolved
through appeal to common sense or a member’s knowledge of “the
ways of the world.” Moreover, where sexual offenses are
concerned, especially those against children, such appeal is
likely to invoke an emotional and stereotypical response, not
necessarily an empirical one. Neither is there agreement on
just what “the ways of the world” might reflect with respect to
recidivism. According to a 1997 National Institute of Justice
report, “[r]ecidivism rates across studies are confounded by
differences in legal guidelines and statutes among States,
length of exposure time (i.e., time in the community, where the
opportunity exists to reoffend), offender characteristics,
treatment-related variables (including differential attrition
rates, amount of treatment, and integrity of treatment program),
amount and quality of posttreatment supervision, and many other
factors.” Robert A. Prentky et al., National Institute of
Justice Research Report, U.S. Dep’t of Justice, Child Sexual
Molestation: Research Issues iv (1997).
The term “ways of the world” refers to court members’
evaluation of lay testimony, defenses, and witness
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United States v. Frey, No. 14-0005/AF
credibility. See United States v. Rivera, 54 M.J. 489, 491
(C.A.A.F. 2001) (witness credibility); United States v.
Oakley, 11 C.M.A. 187, 191, 29 C.M.R. 3, 7 (1960)
(Ferguson, J., concurring) (insanity defense); United
States v. Wilson, 18 C.M.A. 400, 405, 40 C.M.R. 112, 117
(1969) (lay witness). The term can include the fact that
“a single punch to the torso or head can kill or cause
serious bodily injury,” Rivera, 54 M.J. at 491; or that a
defendant recanted his confession after talking to a
lawyer, United States v. Cuento, 60 M.J. 106, 111 (C.A.A.F.
2004). It does not, however, include a likelihood that an
accused used drugs given proof he had used them before,
United States v. Cousins, 35 M.J. 70, 75 (C.A.A.F. 1992),
or the recidivism rates of child molesters.
As case law and the Military Judges’ Benchbook have long
recognized, members are expected to use their common sense in
assessing the credibility of testimony as well as other evidence
presented at trial. See United States v. Russell, 47 M.J. 412,
413 (C.A.A.F. 1998); United States v. Hargrove, 25 M.J. 68, 71
(C.M.A. 1987); Dep’t of the Army, Pam. 27-9, Legal Services,
Military Judges’ Benchbook ch. 2, § V, para. 2-5-12 (2010)
(hereinafter Military Judges’ Benchbook). Whether it is useful
rather than confusing to also instruct members to use their
knowledge of “the ways of the world” to assess the credibility
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United States v. Frey, No. 14-0005/AF
of evidence is a matter of discretion for the military judge.
However, what military judges cannot do is invite members to
substitute their understanding of the “ways of the world” for
evidence or for the military judge’s instructions on sentencing.
One person’s perception of the ways of the world might vary
dramatically from another’s, based on education, experience, and
personal bias. The phrase “common sense” is sufficient, and
more accurate, to convey the sort of personal knowledge members
can rely upon when weighing evidence and formulating their
decisions. Though language encouraging members to rely upon
their knowledge of the “ways of the world” is present in the
Military Judges’ Benchbook, e.g., ch. 2, § V, para. 2-5-12, we
note that it was stricken from the 1984 version of the MCM and
is not part of the current MCM. Compare MCM ch. XIII, para.
74.a. (1969 rev. ed.), with MCM pt. II, ch. IX, at II-134 (1984
ed.).
Given the above analysis we conclude that the military
judge’s instructions were not sufficient to cure trial counsel’s
improper argument.
Weight of Evidence Supporting Sentence
Though Fletcher recommended a balancing of all three
factors, it did not assign a particular value to each or comment
on whether they should be weighed equally. In Halpin, this
Court found that the third factor weighed so heavily in favor of
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United States v. Frey, No. 14-0005/AF
the government that it could be fully confident the appellant
was sentenced on the basis of evidence alone. 71 M.J. at 480.
As in Halpin, in this case the “weight of the evidence amply
supports the sentence imposed by the panel.” Id. And, as in
Halpin, Appellant has failed to demonstrate he was not sentenced
on the basis of evidence alone.
Trial counsel’s argument was improper and potentially
harmful. As noted above, there are few labels as potentially
damaging to a defendant than that of serial child molester.
However, the test for prejudice under Halpin is whether or not
we can be “confident that Appellant was sentenced on the basis
of the evidence alone.” 71 M.J. at 480. We are.
The military judge established that the maximum punishment
for sexual contact with and sexual assault of a child under
twelve years of age was life without parole. The Government
requested ten years of confinement with a dishonorable
discharge, forfeiture of all pay and allowances, and reduction
to E-1. Appellant requested that members adjudge a sentence of
less than ten years -- “[t]he defense would suggest to you that
a shorter prison sentence is more appropriate in this instance”
-- but did not recommend a specific period of confinement. In
addition, trial counsel’s improper comment was surrounded by
powerful and proper sentencing argument. Trial counsel pointed
out the many ways in which being a victim of sexual assault
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United States v. Frey, No. 14-0005/AF
might impact the future of the ten-year-old victim. He also
highlighted the betrayal inherent in the fact that RK was the
daughter of Appellant’s supervisor and friend of ten years. In
addition, defense counsel, in his own argument, repeatedly
reminded members that there was no evidence Appellant had
committed sexual assault in the past or that he would do so
again.
When determining a sentence, members are allowed to
consider all evidence properly introduced before findings as
well as the proffered sentencing evidence. R.C.M. 1001(f)(2).
Nothing Appellant presented in mitigation -- letters from his
pastor, his fiancée, and other family members testifying to his
good character and the stress he had been under due to the
recent death of his father, and a brief unsworn statement in
which he did not admit his guilt -- was sufficient to mitigate
the impact of then eleven-year-old RK’s tearful testimony or
trial counsel’s admission of the actual note she wrote to her
father the morning after the assault.
Most importantly, given that members adjudged an even
lighter sentence than the Government requested and settled upon
the period of confinement Appellant asked for -- something less
than ten years -- we find no evidence of prejudice. We
therefore are confident that Appellant was sentenced based on
the evidence rather than improper argument presented. Thus,
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United States v. Frey, No. 14-0005/AF
trial counsel’s argument, though improper, did not “materially
prejudice[] the substantial rights of the accused.” Baer, 53
M.J. at 237. Given this lack of any due process violation, we
find Appellant is not entitled to relief.
CONCLUSION
The decision of the United States Air Force Court of
Criminal Appeals is affirmed.
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OHLSON, Judge (dissenting):
I agree with the majority that the trial counsel’s
sentencing argument was improper and that the military judge’s
instructions to the panel merely served to compound the error.
Where I differ from my colleagues is that I conclude 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. Thus, I
would order a sentence rehearing in this case, and I therefore
respectfully dissent.
We review the question of whether an argument was improper
using a de novo standard. United States v. Marsh, 70 M.J. 101,
106 (C.A.A.F. 2011). In conducting this de novo review, we must
ask: (a) was the argument erroneous, and (b) if so, did it
materially prejudice the substantial rights of the accused?
United States v. Baer, 53 M.J. 235, 237 (C.A.A.F. 2000).
In assessing whether an argument was error, our guiding
principles are that a trial counsel may not “‘unduly . . .
inflame the passions or prejudices of the court members,’”
United States v. Schroder, 65 M.J. 49, 58 (C.A.A.F. 2007)
(alteration in original) (citation omitted), and the trial
counsel’s arguments must be limited to “the evidence of record,
as well as all reasonable inferences fairly derived from such
evidence.” Baer, 53 M.J. at 237. Like the majority, I conclude
United States v. Frey, No. 14-0005/AF
that the trial counsel’s sentencing argument violated these
fundamental tenets.
In assessing whether an erroneous argument was prejudicial,
we must look at the argument in its totality and determine its
cumulative effect on the fairness and integrity of the accused’s
trial. United States v. Fletcher, 62 M.J. 175, 184 (C.A.A.F.
2005). In sum, we must determine whether the trial counsel’s
comments were so damaging that we cannot be confident that the
members sentenced the appellant on the basis of the evidence
alone. Id.; United States v. Halpin, 71 M.J. 477, 480 (C.A.A.F.
2013). Unlike the majority, under the totality of the
circumstances in this particular case, I conclude that we cannot
be confident of that fact.
In analyzing this matter, I readily concede several
important points. First, during a sentencing hearing a trial
counsel may certainly use arguments that are crafted to address
such sentencing philosophies as specific deterrence, general
deterrence, and protection of society. Rule for Courts-Martial
(R.C.M.) 1001(g). Second, there is a considerable body of
academic and scientific literature which indicates that the
recidivism rate of certain categories of child molesters is
woefully high. See, e.g., Patrick A. Langan et al., Bureau of
Justice Statistics, U.S. Dep’t of Justice, Recidivism of Sex
Offenders Released from Prison in 1994 passim (2003). Third,
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under the appropriate circumstances, a trial counsel may be able
to introduce evidence of an accused’s recidivism risk at a
sentencing hearing, and the panel members may then consider this
evidence when fashioning their sentence. See United States v.
Ellis, 68 M.J. 341, 347 (C.A.A.F. 2010) (allowing expert
testimony during sentencing as to the accused’s risk of
recidivism); R.C.M. 1001(b)(5). Fourth, generally speaking, a
sentence of eight years of confinement for someone who has been
convicted of child molestation is not, on its face, unduly
harsh. See Manual for Courts-Martial, United States, Maximum
Punishment Chart app. 12 at A12-4, Punitive Article Applicable
to Sexual Offenses Committed During the Period 1 October 2007
Through 27 June 2012 app. 28 at A28-1 (2012 ed.) (MCM) (listing
the maximum confinement for rape of a child and aggravated
sexual contact with a child as life and twenty years,
respectively). And fifth, although a trial counsel may not
strike “foul” blows during a sentencing hearing, he or she may
certainly strike “hard” ones. See Berger v. United States, 295
U.S. 78, 88 (1935). Nevertheless, in my view, none of these
points ameliorates or justifies the trial counsel’s argument
during the sentencing hearing in this case.
In his brief, Appellant takes issue with a number of
comments made by trial counsel. For example, during the
sentencing hearing the trial counsel argued that “what we can be
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United States v. Frey, No. 14-0005/AF
sure of is that every day [Appellant] spends in jail will be one
day less that [the victim] doesn’t have to worry about him being
out on the street and that no other girl can suffer the same
fate,” and averred that the sentencing of Appellant was about
“the protection of young girls everywhere.” In making these
statements, the trial counsel failed to first take the
relatively simple but critically important step of introducing
evidence pertaining to Appellant’s recidivism risk. Further,
these statements could be considered as contributing to an
atmosphere where the panel members’ “‘passions or prejudices’”
could be “‘unduly . . . inflamed.’” 1 Schroder, 65 M.J. at 58
(alteration in original) (citation omitted). But far more
importantly in my view, these statements by the trial counsel
absolutely pale in comparison to another argument the trial
counsel made to the panel members, and to which defense counsel
promptly objected. Because I believe the ramifications of the
latter argument prove dispositive of the issue in this case, I
will only address that argument in this opinion.
Specifically, during the trial counsel’s rebuttal argument
the following exchange occurred:
1
I note that these arguments were not objected to at trial and
therefore should be reviewed for plain error. Fletcher, 62 M.J.
at 179; Halpin, 71 M.J. at 479. However, as discussed below,
defense counsel objected to other comments and this Court looks
at the cumulative impact of the trial counsel’s comments as a
whole to assess prejudice. Fletcher, 62 M.J. at 184; Halpin, 71
M.J. at 480.
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ATC: 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.
DC: Your Honor, I’ll just object again. It’s improper
argument.
MJ: Trial Counsel[?]
ATC: I’m just arguing ways of the world, Your Honor.
DC: Your Honor, this is not ways of the world.
MJ: Overruled. Continue.
And so, we are presented with a situation where the trial
counsel blatantly argued to the panel members -- who would soon
be deliberating on the appropriate sentence to impose on
Appellant -- that although there was no evidence that Appellant
had molested any children before, their knowledge of the “ways
of the world” could allow them to conclude that he actually had
done so. In my view, the impropriety of this argument is
nothing short of breathtaking.
Needless to say, the military judge’s failure to sustain
the defense counsel’s immediate and well-founded objection to
the trial counsel’s argument did not ameliorate the problem one
whit. In fact, because the back-and-forth on this issue
occurred right in front of the panel members, the military
judge’s ruling could be construed as exacerbating the harm to
Appellant. But worse, when the military judge gave his
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sentencing instructions mere moments later, the military judge
actually compounded the problem -- as conceded by the majority.
The military judge correctly noted to the panel members that the
Government’s argument included “[a] few statements . . . not
before you in evidence,” but instead of solely instructing the
panel members to ignore those arguments, the military judge
instructed the panel members that they could place those
arguments “in context of whatever knowledge of the ways of the
world you have.” Thus, by giving this instruction, the military
judge could be seen as endorsing the patently improper and
grossly inflammatory argument made by the trial counsel.
In my view, this improper argument by the trial counsel,
coupled with the highly problematic instruction by the military
judge, likely inflicted great and irremediable damage on
Appellant’s sentencing position –– and it is the Government’s
burden to demonstrate that it did not. Therefore, I would find
that Appellant’s right to a fair sentencing hearing was
materially and fatally prejudiced. However, in its prejudice
analysis, the majority concludes otherwise.
In supporting its position that the error by the trial
counsel ultimately proved harmless to Appellant, the majority
cites two factors. First, the majority notes the abhorrent
conduct of Appellant and concludes that this alone would have
compelled the panel to impose a sentence of eight years of
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United States v. Frey, No. 14-0005/AF
imprisonment. Indeed, I readily agree that a solid argument
could be made in favor of sentencing Appellant to at least eight
years in prison. Nevertheless, because the trial counsel’s
argument was so grossly inflammatory and because of the totality
of the other circumstances present in the instant case, I
conclude that the Government did not come remotely close to
meeting its burden of demonstrating that this particular panel
in this specific case would have imposed this sentence absent
the trial counsel’s improper actions.
My reluctance to speculate on the panel’s probable action
in this case is informed by the fact that this Court reviews a
large (and dreadful) number of cases involving sexual
molestation, and I have yet to discern any pattern to the
sentences imposed by panel members. In fact, within days of
this Court hearing oral argument in the instant case, petitions
in two different cases were circulated where the facts were
similar to -- if not worse than -- the instant case, and yet,
with regard to confinement, the panel only imposed one year of
imprisonment in one case, and eleven months of imprisonment in
the other. United States v. Havlock, No. ARMY 20130290, slip
op. at 1 (A. Ct. Crim. App. Dec. 16, 2013), 73 M.J. __ (C.A.A.F.
2014) (order denying petition); United States v. Fiebelkorn, No.
ARMY 20130629, slip op. at 1 (A. Ct. Crim. App. Jan. 14, 2014),
73 M.J. __ (C.A.A.F. 2014) (order summarily granting and
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United States v. Frey, No. 14-0005/AF
affirming the lower court). Thus, in a case such as the instant
one where the punishment imposed was substantial and the
improper argument by the trial counsel was egregious, I believe
it is prudent not to place too much weight on the argument that
we have the ability at the appellate level to determine that
this sentence would have been imposed by this specific panel in
this particular case even absent the trial counsel’s improper
argument.
Second, in its prejudice analysis the majority states that
because the panel members “adjudged an even lighter sentence
than the Government requested and settled upon the period of
confinement Appellant asked for –– something less than ten years
–– [there is] no evidence of prejudice.” In my view, a
numerical approach to this sentencing issue is fraught with
problems. As just one example, one could as easily argue that
because the Government received eighty percent of the
confinement time that it requested, the Government is unable to
meet its burden of showing that the improper argument did not
tip the sentencing scales in its favor. Therefore, I once again
would not place too much weight on the majority’s approach in
deciding that the error in the instant case was harmless.
Indeed, I believe the proper approach in analyzing the
issue before us is to place less emphasis on the result of the
sentencing hearing and to place more emphasis on the process of
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United States v. Frey, No. 14-0005/AF
the sentencing hearing. Pursuant to that approach, I am
compelled to conclude that the trial counsel’s improper argument
was not limited to “the evidence of record, as well as all
reasonable inferences fairly derived from [that] evidence,”
Baer, 53 M.J. at 237, that the argument “‘unduly . . .
inflame[d] the passions [and] prejudices of the court members,’”
Schroder, 65 M.J. at 58 (alteration in original) (citation
omitted), that the cumulative effect on the fairness and
integrity of Appellant’s sentencing hearing was harmful and
substantial, and that I “cannot be confident that [the members]
sentenced [Appellant] on the basis of the evidence alone.”
Halpin, 71 M.J. at 480 (citation and internal quotation marks
omitted). Therefore, I believe the appropriate disposition of
the instant case would be to order a sentencing rehearing.
Accordingly, I respectfully dissent.
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