U.S. v. Riveranieves, 54 M.J. 460

Trial Stages: Merits: Argument

1. where trial counsel misstates evidence during argument on findings and an objection that that argument is improper is sustained, the military judge should immediately instruct the members that the argument was improper and that they must disregard it
2. appellant was prejudiced where trial counsel misstated evidence during argument on findings and, upon objection, the military judge agreed with trial counsel’s reading of the record and communicated this belief to the members; prejudice under these circumstances is determined by the particular circumstances of each case, and prejudice was found in this base because: (1) there was no immediate or timely curative instruction; (2) this was a urinalysis case and the misstatement pertained to a critical issue and its resolution based on scientific principles; and (3) the judge’s comments effectively blunted appellant’s previously noted defense that his urine sample had been purposefully tampered with after he submitted it to military authorities

Trial Stages: Appeals: Harmless / Prejudicial Error

1. appellant was prejudiced where trial counsel misstated evidence during argument on findings and, upon objection, the military judge agreed with trial counsel’s reading of the record and communicated this belief to the members; prejudice under these circumstances is determined by the particular circumstances of each case, and prejudice was found in this base because: (1) there was no immediate or timely curative instruction; (2) this was a urinalysis case and the misstatement pertained to a critical issue and its resolution based on scientific principles; and (3) the judge’s comments effectively blunted appellant’s previously noted defense that his urine sample had been purposefully tampered with after he submitted it to military authorities