United States v. Cunningham, (2023)

In this appeal, Appellant challenges a sentencing argument and a victim impact statement. I fully agree with the Court's conclusion that Appellant expressly waived his objections to the sentencing argument. But I only partially agree with the Court's analysis of the victim impact statement. Specifically, I agree with the Court that the military judge abused his discretion by allowing the victim's representative to present a PowerPoint slideshow that included pictures, videos, and music with lyrics during the sentencing phase of the trial. I further agree with the Court that precedent requires us to consider the factors discussed in United States v. Barker, 77 M.J. 377, 384 (C.A.A.F. 2018), in determining whether this error was harmless. But I do not agree with the Court's holding that the Government has proved that the error did not substantially prejudice Appellant.

In my view, this case is indistinguishable from United States v. Edwards, 82 M.J. 239, 248 (C.A.A.F. 2022). In Edwards, this Court held that the government failed to prove that a nearly identical error did not substantially prejudice the accused. Id. I would reach the same conclusion here. Accordingly, while I concur in the Court's judgment insofar as it affirms the finding that Appellant is guilty of unpremeditated murder, I respectfully dissent from the judgment insofar as it affirms the sentence.

I write separately for two reasons. The first is to explain why I believe this case is indistinguishable from Edwards. The second is to question whether the four Barker factors are generally suited to the task of deciding whether an error has substantially affected a sentence. This case and Edwards suggest that they are not.

I. The Edwards Precedent

In Edwards, a court-martial found the appellant guilty of one specification of unpremeditated murder and sentenced him to thirty-five years in prison, a dishonorable discharge, reduction to the grade of E-1, and forfeiture of all pay and allowances. 82 M.J. at 241-42. On appeal to this Court, the appellant argued that the military judge had abused his discretion by allowing the victim's representative to present a sophisticated video during the presentencing phase of the trial. Id. at 240-41. The video included an interview with the victim's parents and a slideshow of photographs set to background music. Id. at 240. It turned out that trial counsel had produced the video on behalf of the victim's family. Id. at 241.

In addressing the appellant's argument, this Court observed that Rule for Courts-Martial (R.C.M.) 1001A(e) (2016 ed.), authorized “a victim or the victim's designee” to make an unsworn impact statement that is “ ‘oral, written, or both.’ ” Edwards, 82 M.J. at 241. The Court then ruled that the military judge had abused his discretion in allowing the video to serve as a victim impact statement on two separate grounds. Id. First, the Court reasoned that a video that includes music and pictures is not an oral or written statement within the meaning of R.C.M. 1001A(e). Id. Second, the Court reasoned that the right to make an unsworn statement belongs to the victim or the victim's designee and cannot be transferred to trial counsel. Id.

Having determined that an error occurred, the Court turned to prejudice. The Court held that the government had conceded that it had the burden of proving that the error did not substantially influence the adjudged sentence. Id. at 246 (citing Barker, 77 M.J. at 384). The Court further held that it would assess prejudice by considering four factors identified in Barker: “(1) the strength of the Government's case; (2) the strength of the defense case; (3) the materiality of the evidence in question; and (4) the quality of the evidence in question.” Id. at 247 (internal quotation marks omitted) (quoting Barker, 77 M.J. at 384). In addition to the Barker factors, the Court cited United States v. Harrow, 65 M.J. 190, 200 (C.A.A.F. 2007), for the principle that an error is more likely to have prejudiced the accused “if the information conveyed as a result of the error was not already obvious from what was presented at trial.” 82 M.J. at 247.

The Court in Edwards decided that the first two factors did not support a conclusion that prejudice had occurred because the government's case was strong, and the defense's case was not. Id. But the Court decided that the materiality and quality factors supported a conclusion that prejudice had occurred. Id. The Court reasoned that the video was material because it included content “that had the potential to influence the sentencing decision of the panel.” Id. at 248. The Court further reasoned that the quality of the video weighed in favor of finding prejudice because the video was “emotionally moving.” Id. Balancing all the factors, the Court held that the government failed to meet its burden of establishing that the video did not substantially influence the appellant's sentence. Id.

In my view, this case is indistinguishable from Edwards. In both cases, the court-martial found the accused guilty of murder. In both cases, the military judge allowed the victim's representative to present music, video, and photographs as a victim impact statement. In both cases, the court-martial imposed a lengthy prison sentence. In Edwards, this Court held that the military judge abused his discretion because R.C.M. 1001A(e) (2016 ed.) only authorized a victim impact statement that was “oral, written, or both.” In this case, even though R.C.M. 1001A(e) (2016 ed.) has been moved to R.C.M. 1001(c) (2019 ed.), the rule still only authorizes a victim impact statement which is “oral, written, or both.” R.C.M. 1001(c)(5)(A). The military judge in this case therefore abused his discretion for the same reason as the military judge in Edwards.

In deciding whether the error was harmless, my analysis of the Barker factors is essentially the same as the Court's analysis of these factors in Edwards. Applying the first two Barker factors, I would conclude, as the Court did in Edwards, that the Government's case was strong, and that the defense's case was not. Accordingly, I agree that these factors do not support a conclusion that prejudice occurred.

The third Barker factor is the materiality of what was wrongly considered at sentencing. Evidence or other matters considered in a trial are “material” if they have “some logical connection with the facts of the case or the legal issues presented.” Black's Law Dictionary 701 (11th ed. 2019). In this case, the PowerPoint presentation was material for the same reason that the improper video was material in Edwards: it presented information about the impact of the offense that “had the potential to influence the sentencing decision of the panel.” Edwards, 82 M.J. at 248. The photographs and videos conveyed the profound effects of the murder on the victim's mother and the loss of life that the infant victim himself suffered.

The final Barker consideration is the “quality” of what was wrongly considered at sentencing. When appellate courts assess the quality of evidence or other information presented at trial (as opposed to, say, the quantity of such evidence or other information), their task is one of estimation. They must appraise the evidence or other information and determine how likely it was to have convinced or influenced the court-martial in the circumstances of the case. See, e.g., United States v. Thompson, 63 M.J. 228, 232 (C.A.A.F. 2006) (concluding that the “actual worth of the statements about preservice drug use was minimal” because they were scarcely cited by counsel and subject to a limiting instruction by the military judge); United States v. Kerr, 51 M.J. 401, 406 (C.A.A.F. 1999) (concluding that the “quality” of some wrongly admitted evidence was “of questionable credibility”). As in Edwards, I would conclude that the photos, video, and music had a tendency to influence the sentence. Indeed, the military judge expressly confirmed the quality of the PowerPoint presentation when he said: “To me, that's proper victim impact including psychological, social impact directly relating to or arising from the offense to which the accused has been found guilty.” For these reasons, I would conclude that, like the quality of the video in Edwards, the quality of the PowerPoint presentation supports a conclusion that prejudice occurred. Balancing all four factors, I would hold that the Government failed to prove that the error did not substantially affect the sentence.

The Court reaches a different conclusion in part because of its assessment of the materiality factor. The Court acknowledges that the PowerPoint presentation was material but decides that the materiality factor should not weigh heavily in the prejudice analysis because the content of the PowerPoint presentation was largely cumulative of other evidence. I agree that the PowerPoint presentation might have been more prejudicial if it had presented more new information. But that does not make the PowerPoint presentation any less material or negate its tendency to influence the sentencing decision. This factor, accordingly, still favors Appellant and weighs against the Government.

The Court also concludes that the “quality” of the presentation favors the Government because nothing in the record shows that the emotional aspects of the presentation actually affected the military judge's judgment. I agree that it is difficult to point to anything in the record of this case that demonstrates the extent to which the PowerPoint presentation actually influenced the military judge. But absent a highly unusual express statement by a sentencing authority about sentencing deliberations, the record of a case almost never will reveal the actual extent to which improper evidence or unsworn statement influenced the sentence. Accordingly, under Edwards and Barker, the quality factor is not and cannot be assessed by the lack of an express indication of the actual effect of the PowerPoint presentation on the sentencing authority. Instead, as the Court itself explains, the quality of the PowerPoint presentation must be evaluated by its “tendency ․ to influence the ․ sentencing authority.” (Emphasis added.) Just like the video in Edwards, the “emotionally moving” PowerPoint presentation in this case had a tendency to influence the military judge, and therefore Appellant's sentence, by “evok[ing] an emotional response.” 82 M.J. at 248. This factor therefore also favors Appellant and weighs against the Government.

Finally, the Court presumes that the military judge understood the law and therefore did not give much consideration to the music and photographs in the video. While we always start with a presumption that military judges know the law, see United States v. Erickson, 65 M.J. 221, 225 (C.A.A.F. 2007), the presumption must give way when there are persuasive contrary indications. In this case, when the military judge overruled trial defense counsel's objection to the video, the military judge erred under R.C.M. 1001(c)(5)(A). He further demonstrated that the PowerPoint presentation would affect his judgment when he characterized the PowerPoint presentation as containing “proper victim impact.” In these circumstances, the presumption does not change my view.

For the reasons discussed above, I would affirm the decision of the United States Air Force Court of Criminal Appeals with respect to the finding of guilty but reverse with respect to the sentence and return the record to the Judge Advocate General of the Air Force for remand to the Court of Criminal Appeals either to reassess the sentence based on the affirmed finding of guilty or to order a sentence rehearing.

II. Using the Barker Factors to Determine Whether Errors in Sentencing Were Harmless

In United States v. Weeks, this Court first adopted a four-factor test for determining whether erroneous evidentiary rulings substantially affected the findings of a court-martial. 20 M.J. 22, 25 (C.M.A. 1985). These factors were refined in Kerr, 51 M.J. at 405, and later became known as the Kerr factors. See United States v. Bowen, 76 M.J. 83, 89 (C.A.A.F. 2017). In Barker, without much discussion, this Court applied the same four factors used in Kerr to determine whether an error at sentencing substantially affected the sentence. 77 M.J. at 384. This Court followed Barker in United States v. Hamilton, 78 M.J. 335, 343 (C.A.A.F. 2019), and Edwards, 82 M.J. at 247.

However suitable the four factors might be for determining prejudice with respect to the findings, I have significant doubts about whether they are apt for deciding whether an error affected the sentence. In Edwards and in the present highly similar case, this Court has applied the Barker factors but arrived at different results. At least part of the reason for our disagreement may be that the Barker factors are simply too crude a tool for determining whether an error at sentencing substantially affected a sentence.

Deciding whether an error influenced the sentence is more difficult than deciding whether an error influenced the findings. Findings generally involve a binary choice of whether the accused is guilty or not guilty of a charged offense. In contrast, sentencing involves considerable discretion. In this case, the military judge sentenced Appellant to confinement for eighteen years. A wide variety of considerations must have gone into that decision. Even if the PowerPoint presentation only added several months to his confinement, that would still be material prejudice to Appellant. I am skeptical that we can rule out that possibility using just the Barker factors. And by limiting analysis of prejudice to these four factors, we unnecessarily focus more on their definitions than on the total effects of an error.

Article 59(a), UCMJ, provides that a “sentence of a court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused.” 10 U.S.C. § 859(a) (2018). This Court has reduced the “material prejudice” standard to just the four factors listed in Barker. These factors are important to consider but I think it was a mistake in Barker to limit our consideration to these factors given the difficulty of deciding whether errors during the sentencing phase of the trial affected the sentence.

Judge MAGGS, with whom Judge HARDY joins, concurring in part and dissenting in part.