UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                          Before
                             COOK, CAMPANELLA, and HAIGHT
                                 Appellate Military Judges

                              UNITED STATES, Appellee
                                           v.
                            Specialist LUTHER L. PORTER
                             United States Army, Appellant

                                      ARMY 20110470

                         Headquarters, 2d Infantry Division
                           T. Mark Kulish, Military Judge
                  Colonel Jeffery D. Pedersen, Staff Judge Advocate


For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Major Richard E. Gorini, JA; Captain James S. Trieschmann Jr., JA (on
brief).

For Appellee: Lieutenant Colonel Amber J. Roach, JA; Major Robert A. Rodrigues,
JA; Captain Steve T. Nam, JA (on brief).


                                      31 October 2013

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                                  MEMORANDUM OPINION
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  This opinion is issued as an unpublish ed opinion and, as such, does not serve as precedent.

HAIGHT, Judge:

       A panel of officer and enlisted members sitting as a general court-martial
convicted appellant, contrary to his pleas, of one specification of failure to obey a
lawful general regulation and one specification of aggravated sexual assault, in
violation of Articles 92 and 120(c), Uniform Code of Military Justice, 10 U.S.C. § §
892 and 920 (2006 & Supp. IV 2010) [hereinafter UCMJ]. The panel sentenced
appellant to a bad-conduct discharge, to be confined for five years, forfeiture of all
pay and allowances, and to be reduced to the grade of E -1. The convening authority
approved only so much of the sentence as provided for a bad -conduct discharge,
confinement for fifty-eight months, forfeiture of all pay and allowances, and a
reduction to the grade of E-1.
PORTER— ARMY 20110470

       This case is before us for review under Article 66, UCMJ . Appellant raises
four assignments of error to this court, one of which merits discussion and relief.
The relief provided in the decretal paragraph renders moot the assignment of error
claiming post-trial ineffective assistance of counsel. Appellant’s remaining
assignments of error are without merit. Additionally, t hose matters appellant
personally raises pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982),
are without merit.

                                  BACKGROUND

       Following three-and-a-half days of voir dire, presentation of evidence,
instructions, and closing arguments, the panel deliberated and found appellant guilty
of failure to obey a lawful general regulation by providing alcohol to Private CA, a
person under 21 years of age, and of sexual assault of the same Private CA by
engaging in a sexual act with her while she was substantially incapable of declining
participation. The defense fully contested the charges not only through cross-
examination but also called two witnesses during their case-in-chief. Appellant did
not take the stand during the merits portion of his trial, and the military judge
appropriately instructed the panel that appellant had an “absolute right to remain
silent,” and they could not “draw any inference adverse to the accused from the fact
that he did not testify as a witness.”

       After findings, during presentencing, appellant called four witnesses on his
behalf who testified favorably about his character and military service. Appellant
then concluded by giving an unsworn statement in which he discussed his
background as a civilian, multiple personal and family hardships, and his career and
achievements in the military. He concluded by discussing the night of the offenses
and revealed that he drank more heavily that night than ever before. He explained
he had learned about the need to exercise better judgment, to show more respect, and
to learn from mistakes, and continued, “I learned and I will take that with the rest of
me – to the rest of my life with knowing that I could be a better person, a better
Soldier, anything from this.”

       In the government’s sentencing argument, the trial counsel repeatedly
emphasized not only that appellant’s unsworn statement was not subject to cross -
examination but that it did not include an express apology to Private CA or the
Army. Separate and apart from those points of focus, the prosecutor commented
three different times that appellant had not denied committing the offenses of which
he had been convicted during his unsworn statement:

             [1] The accused gave an unsworn statement and an
             unsworn statement can’t be cross-examined, but what was
             significant in that unsworn statement was not what he
             said, but what he didn’t say. Because what he didn’t say -



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             - well, what he didn’t say first, was that he didn’t do it.
             That you all got it wrong. Okay. He didn’t say that . . . .

             [2] Specific deterrence is a punishment, sort of a
             punishment philosophy that goes into what you will give
             the accused so that he doesn’t do it again. So that he is
             sure to have learned his lesson because of what he did to
             Private [CA] in that hotel room, that you all found him
             guilty of, that he didn’t say didn’t happen, and that he
             didn’t say he was sorry for.

             [3] Specific deterrence because nowhere in that unsworn
             statement, that government couldn’t even cross-examine
             him on, there was no apology. No real recognition of
             what he did was wrong. Even at the same time, he didn’t
             deny it happened.

       The government concluded its argument by urging the panel to adjudge a
sentence of a dishonorable discharge and eight years of confinement. The defense
counsel did not object to any of these comments nor did the military judge make any
effort to curtail or cure them.

                             LAW AND DISCUSSION

       Appellant now complains that trial counsel’s repeated comments during
sentencing argument that appellant never denied the assault during his unsworn
statement was improper argument. We agree. “Improper argument is a question of
law that we review de novo.” United States v. Marsh, 70 M.J. 101, 104 (C.A.A.F.
2011). In the absence of an objection by defense counsel, we review this issue for
plain error, and appellant must demonstrate that “(1) there was an error; (2) it was
plain or obvious; and (3) the error materially prejudiced a substantial right.” Id.
(quoting United States v. Erickson, 65 M.J. 221, 223 (C.A.A.F. 2007).

       “Trial counsel is at liberty to strike hard, but not fou l, blows” during the
government’s sentencing argument. United States v. Baer, 53 M.J. 235, 237
(C.A.A.F. 2000). However, “[a]n accused is supposed to be tried and sentenced as
an individual on the basis of the offense(s) charged and the legally and logically
relevant evidence presented.” United States v. Schroder, 65 M.J. 49, 58 (C.A.A.F.
2007) (emphasis added). “A sentencing argument by trial counsel which comments
upon an accused’s exercise of his or her constitutionally protected rights is ‘beyond
the bounds of fair comment.’” United States v. Paxton, 64 M.J. 484, 487 (C.A.A.F.
2007) (quoting United States v. Johnson, 1 M.J. 213, 215 (C.M.A. 1975)).




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        Our concern here does not lie in the portions of trial counsel’s argument that
highlighted the government’s inability to cross-examine appellant’s unsworn
statement nor does it lie in the references to a perceived lack of remorse on the part
of appellant. See Marsh, 70 M.J. at 105 and United States v. Breese, 11 M.J. 17, 23
(C.M.A. 1981) (government counsel may argue that accused’s unsworn statement
should be given less weight because it was not subject to cross-examination); United
States v. Edwards, 35 M.J. 351, 355 (C.M.A. 1992) (government counsel may
comment, if proper foundation is laid, on accused’s lack of remorse in his unsworn
statement). Rather, it lies in the conclusion that we find no lawful implication the
trial counsel could have been making when arguing the double negative of what the
appellant had not denied. See Baer, 53 M.J. at 237 (government counsel may “argue
the evidence of record, as well as all reasonable inferences fairly derived from such
evidence”). Arguments pointing out that the accused has not said something are
often problematic as they necessarily imply “the accused shoul d have said something
or suffer the consequences.” United States v. Gibson, 30 MJ 1138, 1140
(A.F.C.M.R. 1990) (Murdock, J., concurring).

        Trial counsel’s confusing argument could have been interpreted by the panel
in at least two ways, neither of them appropriate. First, the comments could be
construed as a comment on appellant’s constitutional right to plead not guilty. The
government’s argument suggested that by pleading not guilty, appellant had put the
panel through four days of a contested trial but then failed to render the courtesy of
consistency by not then maintaining a denial of wrongdoing in his unsworn
statement. We believe such an argument could “convey the intolerable unspoken
message that it is proper to punish an accused who has put the prosecution to the
test, not just for the crime itself, but also for so inconveniencing the Government.”
Johnson, 1 M.J. at 215.

       Second, the argument could have been an improper bolstering of the panel’s
verdict by the trial counsel’s condemnation of the appellant for not at least trying to
relitigate the findings or impeach the verdict. Although an accused is provided a
wide berth in the content of his unsworn statement, there are certain limits in what
matters he may raise before the sentencing authority. United States v. Grill, 48 M.J.
131 (C.A.A.F. 1998). Specifically, the Court of Appeals for the Armed Forces has
recognized that an accused is generally prohibited from impeaching the findings of
the factfinder. United States v. Sowell, 62 M.J. 150, 152 (C.A.A.F. 2005). See also
United States v. Johnson, 62 M.J. 31, (C.A.A.F 2005); United States v. Teeter, 16
M.J. 68 (C.M.A. 1983). Government counsel’s multiple comments about appellant’s
failure to deny seem to have implied the panel should garner confidence in their
findings of guilty because, after all, the accused himself did not deny the behavior of
which he had just been convicted. At a minimum, these comments amounted to an
indictment of appellant for failing to do something that he was not allowed to do—
impeach the panel’s verdict. Sowell, 62 M.J. at 152. It is not clear how such an




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argument relates to or falls within the proper scope of matters in ag gravation
contemplated by Rule for Courts-Martial 1001(b)(4).

      Having established error, we must now determine what, if any, prejudice
appellant suffered by balancing (1) “the severity of the improper argument,” (2)
“any measures by the military judge to cure the improper argument,” and (3) “the
evidence supporting the sentence . . . .” Marsh, 70 M.J. at 107. Ultimately, we must
“determine whether ‘trial counsel’s comments, taken as a whole, were so damaging
that we cannot be confident’ that [appellant] was sentenced ‘on the basis of the
evidence alone.’” United States v. Erickson, 65 M.J. 221, 224 (C.A.A.F. 2007)
(quoting United States v. Fletcher, 62 M.J. 175, 184 (C.A.A.F. 2005).

       Government counsel’s comments on appellant’s failure to impeach the panel’s
verdict were not only improper, they were highly prejudicial. They went to the crux
of the government’s argument on specific deterrence and were an integral component
in the government’s argument that appellant should receive a dishonorable discharge
and eight years of confinement. As noted above, the military judge failed to
intervene during the government’s argument or provide a curative instruction
afterwards. Further, the evidence supporting a sent ence of five years to confinement
was not overwhelming in light of appellant’s service record and mitigation during
sentencing. Although the panel ultimately adjudged a less severe sentence than the
government urged, the inflammatory and cumulative nature of the comments make it
impossible for us to measure the extent of their impact on the panel. We cannot be
confident that appellant was sentenced on the basis of the evidence and all
reasonable and lawful inferences. Therefore, we conclude he is entitled to a new
sentencing hearing. See Marsh, 70 M.J. at 107.

       In another assignment of error, appropriately accompanied by appellant’s
affidavit, appellate defense counsel claim ineffective assistance of counsel in the
post-trial phase of appellant’s court-martial in that trial defense counsel did not
submit the clemency matters that appellant wanted to be submitted. Our resolution
allowing a new sentencing hearing and the consequent post-trial processing of this
case to include a new review and action render this particular allegation of
ineffective assistance of counsel moot.

                                   CONCLUSION

      The findings of guilty are affirmed. The sentence is set aside. A rehearing on
sentencing may be ordered by the same or a different convening authority, and
appellant will be provided representation from a different defense counsel.




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PORTER— ARMY 20110470

    Senior Judge COOK and Judge CAMPANELLA concur.


                                FORTHE
                               FOR  THECOURT:
                                       COURT:




                               MALCOLM H. SQUIRES, JR.
                               MALCOLM H. SQUIRES, JR.
                               Clerk of Court
                               Clerk of Court




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