# United States v. Erickson

> Court of Appeals for the Armed Forces · June 22, 2007 · 65 M.J. 221

URL: https://www.frixlaw.com/law-library/cases/9500374

## Case

- **Full name:** UNITED STATES, Appellee, v. Kelly S. ERICKSON, Staff Sergeant, U.S. Air Force, Appellant
- **Court:** Court of Appeals for the Armed Forces
- **Decided:** June 22, 2007
- **Citations:** 65 M.J. 221; 2007 CAAF LEXIS 829; 2007 WL 1815407
- **Precedential status:** Published
- **Opinion:** Concurrence by Stucky
- **Judges:** Erdmann, Effron, Ryan, Stucky, Baker
- **Cited by:** 247 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9500374

## How later opinions describe it (automated extraction)

- holding that when a ruling is not appealed, it “will normally be regarded as law of the case and binding upon the parties”
- holding that an appellant must prove not only that there was error but also that it was plain or obvious and materially prejudicial to a substantial right
- holding that “[m]ilitary judges are presumed to know the law and to follow it absent clear evidence to the contrary”
- stating military judges are presumed to know the law and to follow it absent clear evidence to the contrary
- noting the presumption that a military judge is able to distinguish between proper and improper sentencing arguments

## Opinion text

STUCKY, Judge, with whom BAKER, Judge,
joins (concurring):
I agree with the majority’s conclusion that the military judge did not commit plain error, but write separately because the Court’s reliance on the balancing test in United States v. Fletcher, 62 M.J. 175, 184 (C.A.A.F.2005) appears misplaced in a judge-alone trial such as this.
In Fletcher , we appropriately found that determining the existence of prejudice caused by trial counsel’s improper comments made before a court-martial including members depends on balancing the severity of counsel’s misconduct against the military judge’s curative measures and the weight of the evidence supporting conviction. See id. In other words, the more improper the argument, the greater the counterweight of curative measures and the weight of the evidence must be to overcome any potential prejudice.
In a judge-alone case like this one, curative measures are superfluous because the military judge is presumed to know and apply the law correctly. United States v. Rodriguez, 60 M.J. 87, 90 (C.A.A.F.2004). The facts of this ease are fortuitous in that the improper conduct is balanced by overwhelming evidence supporting conviction. As such, curative measures are unnecessary under the Fletcher rubric. However, when this Court considers a future case in which trial counsel’s egregious conduct is balanced against evidence of guilt of less than overwhelming weight, a Fletcher analysis would seem to require the military judge in that case to impose significant curative measures on himself to counterbalance the improper argument. This could not only lead to an absurd result, but also would contradict the principle that the military judge is presumed to know and apply the law correctly.
As an alternative to the Court’s Fletcher analysis, I would have reviewed the record for any evidence of prejudice sufficient to rebut the presumption that the military judge knew and applied the law correctly. Seeing no such evidence, I concur with my colleagues that there was no material prejudice to Appellant’s rights and, therefore, no plain error.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9500374. Public record. Not legal advice.