United States v. Halpin , 71 M.J. 477 ( 2013 )

UNITED STATES, Appellee
v.
Andrew P. HALPIN, Airman Basic
U.S. Air Force, Appellant
No. 12-0418
Crim. App. No. S31805
United States Court of Appeals for the Armed Forces
Argued October 24, 2012
Decided February 13, 2013
STUCKY, J., delivered the opinion of the Court, in which BAKER,
C.J., and RYAN, J., joined. ERDMANN, J., filed a dissenting
opinion, in which EFFRON, S.J., joined.
Counsel
For Appellant: Captain Luke D. Wilson (argued).
For Appellee: Captain Brian C. Mason (argued); Colonel Don M.
Christensen, Lieutenant Colonel C. Taylor Smith, and Gerald R.
Bruce, Esq. (on brief).
Military Judge: Joseph S. Kiefer
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Halpin, No. 12-0418/AF
Judge STUCKY delivered the opinion of the Court.
We granted review to consider three questions surrounding
trial counsel’s sentencing argument: (1) whether the argument
constituted prosecutorial misconduct; (2) whether the military
judge erred in failing to stop the argument and issue a curative
instruction; and (3) whether the defense counsel rendered
ineffective assistance of counsel by failing to object to the
argument. We hold that Appellant has not met his burden of
showing that he was prejudiced by trial counsel’s arguments. We
therefore affirm the decision of the United States Air Force
Court of Criminal Appeals.
I.
In exchange for the convening authority’s agreement to
refer this case to a special court-martial, Appellant pled
guilty to and was convicted of one specification each of failure
to obey a lawful order, wrongful use of Adderall (a Schedule II
controlled substance), adultery, and reckless endangerment, in
violation of Articles 92, 112a, and 134, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. §§ 892, 912a, 934 (2006). A
panel of officer members sentenced Appellant to a bad-conduct
discharge, confinement for ten months, and a reprimand. The
convening authority approved the sentence and the United States
Air Force Court of Criminal Appeals (CCA) affirmed. United
States v. Halpin, No. S31805, 2012 CCA LEXIS 43, at *18–*19, 2012
2
United States v. Halpin, No. 12-0418/AF
WL 377232, at *7 (A.F. Ct. Crim. App. Feb. 1, 2012)
(unpublished).
II.
A.
At the time of the offenses, Appellant was a nineteen-year-
old airman basic assigned to Davis-Monthan Air Force Base,
Arizona. He was married to CH, but they were separated. On
November 25, 2009, Appellant invited CH to the apartment where
he was staying during their separation. When she arrived,
Appellant had prepared dinner and they enjoyed a romantic
evening together. Appellant and CH had sexual intercourse, and
then began to argue. The argument escalated and Appellant told
CH he wanted a divorce. CH became very upset, retrieved a
bottle of the anti-depressant Lorazepam from her purse, and
proceeded to swallow approximately sixty pills. Appellant
watched CH swallow the pills, and told her “[Y]ou’re not going
to die in my apartment.” CH responded that Appellant was “going
to watch [her] die.” Soon after the overdose, CH was unable to
walk and her speech became heavily slurred. Appellant drove CH
to her home, carried her inside, and put her to bed, placing his
Air Force jacket on top of her before leaving. Appellant
returned to his apartment and went to bed without calling for
help for CH. The next morning a friend discovered CH, learned
of the overdose, and called an ambulance. CH was treated in the
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emergency room and subsequently received five to six days of
inpatient mental health treatment. Based on these events,
Appellant pled guilty to recklessly endangering CH by taking her
to her house and leaving her alone rather than seeking medical
attention after observing her attempted suicide.
On the day CH was admitted to the hospital, Appellant
engaged in consensual sex with another airman, A1C Hayden.
After learning of CH’s suicide attempt and Appellant’s
relationship with A1C Hayden, Appellant’s commanding officer
issued no contact orders prohibiting Appellant and A1C Hayden
from communicating with one another. However, Appellant
continued to communicate with, see, and engage in consensual sex
with A1C Hayden. On these facts, Appellant pled guilty to
adultery and failure to obey a lawful order.
In his stipulation of fact, Appellant also admitted to
crushing and snorting Adderall, a Schedule II controlled
substance. CH had a prescription for Adderall, and Appellant
took pills from her prescription without her consent. At
various times he snorted the Adderall with another airman. On
these facts, Appellant pled guilty to wrongful use of Adderall.
B.
The granted issues concern trial counsel’s closing
arguments at sentencing. With regard to the reckless
endangerment charge, trial counsel argued that
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only [Appellant] himself knows why he acted in .
. . such a callous and wanton manner that night.
And only he knows whether or not he was actually
hoping or wanted [CH] to die but one could
certainly argue that this would have worked out
pretty well for him if she had passed away. The
arguments would stop. The impending divorce,
expense and effort of it would be saved.
Potentially, he could collect on her SGLI payout.
Trial counsel also described the scene at CH’s home when
she was discovered the next day by her friend, covered by
Appellant’s Air Force jacket, wearing the wedding rings she
usually kept in her purse, with a pile of pill bottles on the
dresser. Trial counsel asserted,
Now, there are no eyewitnesses to show that
[Appellant] did that but it sure sounds like
someone is trying to stage a scene, a scene of a
grieving wife, pining after her estranged
husband, alone, wearing her wedding ring, wrapped
in his jacket, taking a whole slew of pills.
Members, a scene like that would most likely go
to show that [Appellant] wasn’t involved in that
event. It would actually be pretty good for him
if she was found like that. But again, there is
no evidence to show that he did that.
With respect to the wrongful use of Adderall charge, trial
counsel asked the panel a series of seven rhetorical questions.
Among these, he asked why Appellant would want to “endanger the
welfare of his wife who needed that drug to treat her
depression?” and “why did he find the need to share that with
another airman . . . ?” He also queried why Appellant did not
get his own prescription, why he snorted rather than swallowed
the pills, and why he risked his military career.
5
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Trial counsel also pressed the veracity of Appellant’s
unsworn statement. In the unsworn statement, Appellant asserted
that many of his supervisors enjoyed working with him. Trial
counsel responded to the unsworn statement by rhetorically
asking the members, “Does anyone here actually buy that.” He
then reminded the panel of Appellant’s letters of counseling,
letters of reprimand, and Article 15s. See 10 U.S.C. § 815(2006).
With regard to possible punishments, trial counsel argued
that Appellant “should be punished by having neither the
privilege of wearing [the Air Force] uniform nor an honorable
service record.”
Trial defense counsel did not object to any of these
arguments at trial, nor did the military judge take any action
sua sponte. In his sentencing arguments, trial defense counsel
presented Appellant as a troubled young man who did not know how
to react and made an admittedly bad decision when his wife
attempted to overdose. He implored the panel to consider
Appellant’s rehabilitative potential and to render a sentence
that would ensure that Appellant still had hope for his future.
C.
Appellant raised the same issues concerning trial counsel’s
sentencing arguments before the CCA that he raises now. As
Appellant did not object to the sentencing arguments at trial,
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United States v. Halpin, No. 12-0418/AF
the CCA reviewed for plain error and found that trial counsel’s
sentencing arguments were not improper, and thus no
prosecutorial misconduct, error by the military judge, or
ineffective assistance occurred.
III.
During sentencing argument, “the trial counsel is at
liberty to strike hard, but not foul, blows.” United States v.
Baer, 53 M.J. 235, 237 (C.A.A.F. 2000). As a zealous advocate
for the government, trial counsel may “argue the evidence of
record, as well as all reasonable inferences fairly derived from
such evidence.” Id.Because Appellant did not object to trial counsel’s
sentencing arguments at trial, this Court reviews the propriety
of the arguments for plain error. United States v. Marsh, 70
M.J. 101, 104 (C.A.A.F. 2011). To prevail under a plain error
analysis, Appellant has the burden of showing, inter alia, that
the alleged errors materially prejudiced a substantial right.
See id. (citing United States v. Erickson, 65 M.J. 221, 223
(C.A.A.F. 2007)).
In this case, our judgment does not depend on whether any
of trial counsel’s sentencing arguments were, in fact, improper.
Rather, we conclude that Appellant has not met his burden of
establishing the prejudice prong of plain error analysis. “In
assessing prejudice under the plain error test where
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United States v. Halpin, No. 12-0418/AF
prosecutorial misconduct has been alleged: ‘[W]e look at the
cumulative impact of any prosecutorial misconduct on the
accused’s substantial rights and the fairness and integrity of
his trial.’” Erickson, 65 M.J. at 224 (quoting United States v.
Fletcher, 62 M.J. 175, 184 (C.A.A.F. 2005)). In Fletcher, where
the issue was the government’s findings argument, we explained
that the “best approach” to the prejudice determination involves
balancing three factors: “(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 applying the Fletcher factors in the context of an
allegedly improper sentencing argument, we consider whether
“‘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.’” Erickson, 65 M.J. at 224
(quoting Fletcher, 62 M.J. at 184). In this case, considering
the cumulative impact of any allegedly improper arguments in the
context of the trial as a whole, we find that the third Fletcher
factor weighs so heavily in favor of the Government that we are
confident that Appellant was sentenced on the basis of the
evidence alone.
With respect to the third Fletcher factor, the weight of
the evidence amply supports the sentence imposed by the panel.
Appellant failed to establish that the Government’s sentencing
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United States v. Halpin, No. 12-0418/AF
argument prejudiced his substantial rights -- that he was not
sentenced based on the evidence alone. Appellant’s misconduct
could have exposed him to seven years and six months of
confinement. Trial defense counsel successfully negotiated a
pretrial agreement which limited Appellant’s confinement
exposure to the twelve-month maximum of a special court-martial.
Appellant’s actual sentence was ten months of confinement, a
bad-conduct discharge, and a reprimand. The uncontroverted
evidence against Appellant, as admitted in his stipulation of
fact, reveals that Appellant watched his wife attempt to commit
suicide, took her to her home, left her there alone, and made no
attempt to seek medical help. Moreover, Appellant admitted that
on the day his wife was admitted to the hospital for this
suicide attempt, he committed adultery with another airman.
Despite a no-contact order, Appellant continued to commit
adultery with the airman. He further admitted to stealing and
snorting his wife’s Adderall prescription on multiple occasions.
The only mitigating evidence consisted of unremarkable character
letters from Appellant’s mother, grandmother, and a family
friend, and sentencing testimony by his mother. Even if each
statement Appellant takes issue with was obvious error,
Appellant failed to establish that the weight of the evidence
did not clearly support the adjudged and approved sentence.
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Therefore, Appellant failed to meet his burden of establishing
plain error.
As Appellant was not prejudiced by the sentencing
arguments, he cannot have been prejudiced by the military
judge’s failure to interrupt the arguments or issue a curative
instruction, or the failure of his trial defense counsel to
object to the arguments. See Strickland v. Washington, 466 U.S.
668, 687 (1984) (requiring that a defendant claiming ineffective
assistance of counsel show that he was prejudiced by counsel’s
deficient performance).
IV.
The judgment of the United States Air Force Court of
Criminal Appeals is affirmed.
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ERDMANN, Judge, with whom EFFRON, Senior Judge, joins
(dissenting):
As I would find that trial counsel’s improper argument
constituted plain error that was prejudicial to Halpin’s
substantial rights, I respectfully dissent from the majority
opinion.
Background
At a special court-marital with members, Halpin entered
guilty pleas to all of the offenses with which he was charged.
For purposes of this appeal, Halpin admitted guilt to reckless
endangerment in violation of Article 134, UCMJ, 10 U.S.C. § 934(2006). During sentencing arguments, trial counsel initially
urged the members to sentence Halpin to the special court-
martial maximum of twelve months confinement but later argued
for at least ten months confinement and a bad-conduct discharge.
Defense counsel argued for a period of confinement of between
forty-five days and two months. The members sentenced Halpin to
a reprimand, ten months confinement, and a bad-conduct
discharge.
Discussion
During arguments on sentencing, trial counsel suggested
that Halpin wanted his wife to die, however this assertion was
not supported by evidence on the record. “Trial prosecutorial
misconduct is behavior by the prosecuting attorney that
United States v. Halpin, No. 12-0418/AF
‘oversteps the bounds of that propriety and fairness which
should characterize the conduct of such an officer in the
prosecution of a criminal offense.’” United States v. Fletcher,
62 M.J. 175, 178 (C.A.A.F. 2005) (quoting Berger v. United
States, 295 U.S. 78, 84 (1935)). “[T]he [Rules for Courts-
Martial] and our case law provide that it is error for trial
counsel to make arguments that ‘unduly inflame the passions or
prejudices of the court members’.” United States v. Schroder,
65 M.J. 49, 58 (C.A.A.F. 2007) (quoting United States v.
Clifton, 15 M.J. 26, 30 (C.M.A. 1983); Rule for Courts-Martial
(R.C.M.) 919(b) Discussion). “An 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. Thus, trial counsel is prohibited from
injecting into argument irrelevant matters, such as personal
opinions and facts not in evidence.” Id. (citing Fletcher, 62
M.J. at 180; R.C.M. 919(b) Discussion). “Counsel should limit
their arguments to ‘the evidence of the record, as well as all
reasonable inferences fairly derived from such evidence.’”
United States v. Burton, 67 M.J. 150, 152 (C.A.A.F. 2009)
(quoting United States v. Baer, 53 M.J. 235, 237 (C.A.A.F.
2000)).
“When no objection is made during the trial, a counsel’s
arguments are reviewed for plain error.” Id. (citing Schroder,
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65 M.J. at 57-58). “Plain error occurs when (1) there is error,
(2) the error is plain or obvious, and (2) the error results in
material prejudice . . . .” Fletcher, 62 M.J. at 179.
a. Error
During his argument on sentencing, trial counsel recounted
CH’s testimony that she awoke the day after her suicide attempt
wearing Halpin’s jacket, her wedding ring and a promise ring she
had not worn for about a week, as well as her testimony that she
found prescription drug bottles from all over her house arranged
in a line on her dresser.1 Trial counsel set the following scene
for the members:
When Airman Halpin finally decides to leave that
night, [CH] emerges from the bedroom one last time.
She begs him not to go and then she collapses on the
couch. Airman Halpin’s response is to pick her up,
carry her back into the bedroom, lay her in the bed
and put his Air Force jacket on her. That last point
is interesting. He put his Air Force jacket on her.
You heard from [CH] that she had kept her ring in her
purse but somehow that ring got placed on her fingers
as well. And then there were those pill bottles. The
pills that she had, prescription medication,
everything else in the house that she had kept in
medicine cabinets, that she had kept in kitchen
cabinets, all of those pills somehow ended up lined up
in a neat little pile on the dresser. Think about
that for a second.
1
On cross-examination CH conceded that she did not remember
receiving a phone call that night or sending text messages and
that it was possible that she put on her rings and lined up the
pill bottles but just did not remember doing so.
3
United States v. Halpin, No. 12-0418/AF
Now, there are no eyewitnesses to show that
Airman Halpin did that, but it sure sounds like
someone is trying to stage a scene, a scene of a
grieving wife, pining after her estranged husband,
alone, wearing her wedding ring, wrapped in his
jacket, taking a whole slew of pills. Members, a
scene like that would most likely go to show that he
wasn’t involved in that event. It would actually be
pretty good for him if she was found like that. But
again, there is no evidence to show he did that.
. . . Of course, only Airman Halpin himself knows why
he acted in such a callous and wanton manner that
night. And only he knows whether or not he was
actually hoping or wanted [CH] to die but one could
certainly argue that this would have worked out pretty
well for him if she had passed away. The arguments
would stop. The impending divorce, expense and effort
of it would be saved. Potentially, he could collect
on her SGLI payout.
The question before this court is whether there is evidence in
the record which supports this argument and if so, whether the
argument is a reasonable inference fairly derived from that
evidence. See Burton, 67 M.J. at 152.
During the plea inquiry, Halpin admitted all of the
elements of reckless endangerment to the court’s satisfaction.
The offense of reckless endangerment differs from the offense of
attempted murder under Articles 80 and 118(2), UCMJ, in that
attempted murder requires an intent to kill, while reckless
endangerment requires no such intent.2 Trial counsel’s argument,
2
The elements of murder under Article 118(2), UCMJ, are: (a)
That a certain named or described person is dead; (b) That the
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United States v. Halpin, No. 12-0418/AF
however, strongly implied that Halpin had just such an intent
that his wife die (“And only he knows whether or not he was
actually hoping or wanted [CH] to die but one could certainly
argue that this would have worked out pretty well for him if she
had passed away.”). In support of this theme, trial counsel
went on to argue that Halpin staged the scene at CH’s apartment
so that he could hide his involvement3 (“[I]t sure sounds like
someone is trying to stage a scene, a scene of a grieving wife,
pining after her estranged husband, alone, wearing her wedding
ring, wrapped in his jacket, taking a whole slew of pills.
Members, a scene like that would most likely go to show that he
wasn’t involved in that event.”). To further support his
argument that Halpin intended that his wife die, trial counsel
even provided Halpin with several motives (“The arguments would
stop. The impending divorce, expense and effort of it would be
saved. Potentially, he could collect on her SGLI payout.”).
death resulted from the act or omission of the accused; (c) That
the killing was unlawful; and (d) That, at the time of the
killing, the accused had the intent to kill or inflict great
bodily harm upon a person. Manual for Courts-Martial, United
States pt. IV, para. 43.b.(2) (2012 ed.). Trial counsel’s
arguments implied that Halpin intended for his wife to die as
the result of his actions.
3
Beyond the total lack of evidence supporting trial counsel’s
argument that Halpin was attempting to hide his involvement in
the events at CH’s apartment, the implausibility of this
argument is illustrated by the uncontested evidence that when
Halpin returned to his apartment he called two friends and his
mother and informed them of those events.
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United States v. Halpin, No. 12-0418/AF
There is simply no evidence in the record supporting trial
counsel’s suggestion that Halpin wanted his wife to die; there
is no evidence in the record that he staged the scene in her
bedroom in an attempt to hide his involvement in the situation;
and there is no evidence in the record that his actions grew out
of a desire to avoid divorce proceedings or to collect on CH’s
life insurance. In fact there is no evidence that CH had life
insurance or that Halpin was the beneficiary.
Although I do not question for a moment that Halpin’s
actions that night were heinous and fully justified the charge
of reckless endangerment, he deserved to be sentenced based on
the offense he was found guilty of rather than the much more
serious offense trial counsel improperly argued before the
members. Clifton, 15 M.J. at 30. As there is no evidence in
the record to support trial counsel’s arguments, there can be no
reasonable inference that Halpin tried to stage a scene to hide
his involvement or that he intended for his to wife die so that
he would benefit personally and financially. Trial counsel’s
argument was improper and constituted error.
b. Plain or Obvious
Throughout the Government’s sentencing argument, trial
counsel actually stated that there was no evidence to support
the suggestion that Halpin wanted CH to die. Trial counsel
peppered his sentencing argument with the following comments:
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United States v. Halpin, No. 12-0418/AF
“[n]ow, there are no eyewitnesses to show that Airman Halpin did
that,” and “again, there is no evidence to show he did that,”
and “only he knows whether or not he was actually hoping or
wanted [CH] to die.” It is indicative of the plain and obvious
nature of the error in this case that trial counsel repeatedly
told the members that there was no evidence to support his
arguments. See United States v. Carter, 236 F.3d 777, 785 (6th
Cir. 2001) (finding prosecutor’s misstatement of the evidence
“was not only error but also was plain error,” and quoting Davis
v. Zant, 36 F.3d 1538, 1548 n.15 (11th Cir. 1994), for the
proposition that “‘[i]t is a fundamental tenet of the law that
attorneys may not make material misstatements of fact in
summation’”).
As this is an Air Force case, the military judge was on
notice of United States v. Martinez, 30 M.J. 1194, 1197 n.*
(A.F.C.M.R. 1990), which stated:
we know of no civilian authority for the proposition that a
defendant can be found guilty of one crime yet punished for
a second crime, or upon a different theory of criminality.
Even if such practice might be permitted in civilian
courts, we could not sanction it in a court-martial.
Just as in that case, once the military judge entered
findings as to one theory of guilt in Halpin’s case, the
prosecution was precluded from advancing a more serious theory
during sentencing. Id. Trial counsel’s improper argument
constituted plain and obvious error.
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c. Prejudice
The next question is whether the plain and obvious error
materially prejudiced a substantial right of the accused. See
Fletcher, 62 M.J. at 184. In order to evaluate prejudice, the
court looks at the cumulative impact of the improper argument on
the accused’s substantial rights and the fairness and integrity
of his trial. Id. This requires a balancing of three factors
“(1) the severity of the misconduct, (2) the measures adopted to
cure the misconduct, and (3) the weight of the evidence
supporting the conviction.” Id. The court reviews these
factors to determine whether trial counsel’s comments, “‘taken
as a whole, were so damning that we cannot be confident’ that
[Halpin] was sentenced ‘on the basis of evidence alone.’”
Erickson, 65 M.J. at 224 (quoting Fletcher, 62 M.J. at 184).
The majority holds that the third Fletcher factor “weighs
so heavily in favor of the Government” that discussion of the
first two Fletcher factors is unnecessary. Halpin, __ M.J. at
__ (8). However, the severity of the misconduct in this case
and the fact that there were no measures to cure the misconduct
cannot be ignored by this court and all three factors must be
balanced.
In this guilty plea court-martial, trial counsel’s
sentencing argument constituted the entire narrative of the
Government’s case. Almost all of the argument on the reckless
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United States v. Halpin, No. 12-0418/AF
endangerment charge relied on facts not in evidence and
significantly exaggerated the severity of Halpin’s actions. The
impropriety of arguing for a sentence based on a crime for which
Halpin was neither charged nor convicted is obvious. The
potential impact of trial counsel’s improper argument was
severe.
There were no curative measures taken to overcome trial
counsel’s improper argument. As in Fletcher, “[c]orrective
instructions at an early point might have dispelled the taint of
the initial remarks.” 62 M.J. at 185. Instead, the military
judge allowed the improper comments without providing a curative
instruction to the members.
Finally, with respect to the last Fletcher factor, the
weight of evidence established that Halpin was guilty of the
offense of reckless endangerment. It did not establish that he
was guilty of attempted murder as the trial counsel implied in
his sentencing argument.
The majority’s assertion that Halpin’s conduct exposed him
to “seven years and six months confinement” but that his trial
defense counsel negotiated a pretrial agreement which limited
Appellant’s confinement exposure to the twelve-month maximum of
a special court-martial misses the point. Halpin, __ M.J. at __
(9). In this case the Government referred Halpin to a special
court-martial and it appears that in return Halpin agreed to
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United States v. Halpin, No. 12-0418/AF
plead guilty to the offenses with which he was charged. The
special court-martial referral and the pretrial agreement
defined the sentencing universe and it should not now be the
basis for a finding that Halpin was not prejudiced.4 The
prejudice inquiry should instead focus on the effect the
improper argument had on the sentence Halpin received within
that sentencing universe. The members sentenced Halpin to the
same term of confinement and discharge that trial counsel
suggested at the close of his sentencing arguments. Although we
cannot know what impact trial counsel’s improper argument had on
the members, his argument was persuasive to the extent that the
members handed down the exact sentence which trial counsel
requested.
In view of the improper argument, I cannot be confident
that Halpin was sentenced on the basis of evidence alone. I
would therefore find that Halpin was prejudiced by the improper
argument made by trial counsel. I would reverse the decision of
the CCA, set aside the sentence and remand the case for a new
sentencing hearing.
4
The pretrial agreement in this case provided that the sentence
was limited by the special court-martial maximum.
10