The NMCCA, finding no prejudicial error, affirmed the findings and sentence of Sgt Matthew W. Faus.
Appellant was convicted of two specifications of assault consummated by a battery, one specification of child endangerment, and three specifications of communicating a threat. His sentence included a reduction to pay grade E-1, confinement for five years, and a dishonorable discharge.
On Appeal, the Court considered whether (1) the military judge abused his discretion when he failed to declare a mistrial following the trial counsel's rebuttal argument; (2) Appellant's sentence is inappropriately severe; and (3) the military judge abused his discretion in refusing to grant Appellant's motion under Military Rule of Evidence 412 to offer into evidence certain text messages between Appellant and one of his victims.The Court Affirmed the decision.
I. Failing to Declare a Mistrial Did Not Abuse Discretion
The prosecutor, on rebuttal, made an argument that may have violated Hills, by calling the accused "an iceberg of misconduct," stating NCIS found misconduct everywhere they looked, and pointing to the number of women who accused him of assault. Due to this argument, the defense moved for a mistrial and the judge asked the members to disregard the argument in its entirety. Following an acquittal on multiple specifications, the defense withdrew the motion for a mistrial.
As per the Rule for Courts-Martial 915(a), a judge has the discretion to declare a mistrial when “necessary in the interest of justice because of circumstances arising during the proceedings which cast substantial doubt upon the fairness of the proceedings.” However, judges are to apply this rule with “great caution.”
Here, finding that Appellant validly waived his right to a mistrial, the Court found that “[b]y affirmatively withdrawing his motion for mistrial, after specifically consulting on the issue with his trial defense counsel, Appellant intentionally relinquished and abandoned a known right.” Moreover, the Court found a curative instruction to be sufficient for the actions of the prosecution.
II. Appellant's Sentence is Appropriate
Appellant was convicted of physically assaulting two women. He was also convicted of child endangerment by culpable negligence in connection with one of those assaults due to the fact that his victim was holding their infant child while he was assaulting her. He was also convicted of three specifications of communicating threats to kill and injure multiple people. After the military judge merged two of the specifications for sentencing purposes, the maximum sentence Appellant could have received for all these offenses was reduction to paygrade E-1, total forfeitures of pay and allowances, eight years' confinement, and a dishonorable discharge.
The Court found that the dishonorable discharge “was an appropriate punishment for Appellant's serious criminal misconduct.” The Court further held that the confinement is appropriate “in light of not only his acts of violence against multiple victims, but also the many threats to kill multiple people that he intentionally communicated in an extraordinary series of text and phone messages.”
Crisfield delivered the opinion of the Court which was joined by Senior Judge Gaston and Judge Stewart.