## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before TOZZI, CELTNIEKS, and BURTON Appellate Military Judges

UNITED STATES, Appellee

v. Private E1 JEREMIAH D. HILL

United States Army, Appellant

ARMY 20150310

Headquarters, 7th In fantry Division

Andrew J. Glass, Military Judge Colonel Robert F. Resnic k, Staff Judge Advocate

For Appellant: Lieutenant Colonel Melissa R. Covolesky, JA; Majo r Christopher D. Coleman, JA; Captain Matthew L. Jalandoni, JA (on brie f); Major Christopher D. Coleman, JA; Captain Matthew L. Jalandoni, JA (on reply brief).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colone l A.G. Courie III, JA; Major Michael E. Korte, JA (on brief).

6 April 2017

---------------------------------- MEMORANDUM OPINION

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This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

TOZZI, Senior Judge:

An officer panel sitting as a general court-martia l convicted appellant, contrary to his plea, of one specification of unpremeditated murd er in violation of Article 118, Uniform Co de of Military Justic e, 10 U.S.C. § 918 (2012) [hereinafter UCMJ]. The panel sent enced appellant to a dishonorab le discharge, confinement for forty-five years, and to forfeit all pay and allowances. The convening authority approved the sentence as adjudged. Appe llant was credited with 577 days against the sentence to confinement.

This case is before us for review pursuant to Ar ticle 66, UCMJ. Appellant raises three assignments of error, one of which merits discussion but no relief. Appellant personally rais ed matters pursuant to United States v. Grostefon

, 12 M.J. 431 (C.M.A. 1982), that we fi nd, after due consideration, to be without merit.HILL—ARMY 20150310

2 BACKGROUND

Appellant was convic ted of unpremeditated murder for stabbing Specialist (SPC) TG in the heart during an altercation involving two groups of soldiers. On the night of 4 October 2013, appe llant left his barracks at Joint Base Lewis McChord (JBLM) with Private First Class (PFC) CJ. After vis iting a club in Olympia, Washington, appellant and PFC CJ met up with three other soldiers they knew at a McDonald’s restaurant. Appellant had been drinking throughout the evening, and PFC CJ testified appellant wa s “belligerently drunk[.]” Th is group of fi ve soldiers then decided to take Private (PVT) AR-B’s car to the Denny’s restaurant adjacent to Club Latitude in Lakewood, Wa shington, to wait for the exodus of club patrons at closing time. Followi ng this, the five soldiers proceeded to drive back toward JBLM on Pacific Highway South, with PVT AR-B at the wheel. At one poi nt, the car stopped and appellant and PVT AR-B got out. Private AR-B testified that appellant chased and assaulted a man, hitting him “[j]us t once, then he ran off . . . .”

After getting back into the car, the group of five soldiers passed three pedestrians on the side of the road. The three pedestri ans turned out to be three soldiers, including the victim, SPC TG. One of the occupants of th e car yelled at the three pedestrians, and one of the pedestrians (SPC MB) yelled back, “So this is how we treat combat veterans now?” At that point, PVT AR-B pulled over in a gravel lot ahead of the three pedestrians. One of th e occupants of the ca r (SPC AC) handed a knife to appell ant. Appellant and thre e of the occupants of th e vehicle th en got out and began walking toward the three pedestrians. One ofthe pedestrians (SPC BJ) brandished a knife with a bl ack blade. After a short ve rbal exchange the situation was seemingly diffused, as the groups realized they were confronting fellow soldiers. All present except appellant perceived there was no threat. At that point, appellant attacked SPC TG from the side or behind, putting SPC TG in a bear hug, stabbing him in the u pper left chest with a force that complete ly incised his left, fifth rib (cutting the rib in two pieces) producing a 11⁄2 in ch incision in the front of SPC TG’s heart. Specialist TG was dead within minutes.

Appellant testified when he approached the group ofpedestrians two of the three individuals (SPC BJ and SPC TG) we re brandishing knives. “[B]y the way they were holding them I could see the shi ny part . . . I could just see a little shiny part reflect off the lighting[.]” Appell ant testified SPC TG approached the group carrying a knife. Appell ant testified, “I seen it like the whole time . . . .” Appellant then testified that he cut his hand reach ing for SPC TG’s knife. At that point appellant testified he stuck SPC TG with the knife he wa s carrying so SPC TG would not continue to use his knife against him. Two knive s were later f ound affixed to SPC TG’s belt. One was a fo lding knife on his left hip that was partially open, and one was a black buck kn ife secured in a sheath with its button in place. Notably, none of the other individuals at the scene saw SPC TG brandish a knife or make any threatening gestures.HILL—ARMY 20150310

3 Following the incident , appellant remained calm while all the others in the car panicked. Occupants of the car testified that appellant never mentioned self-defense on the ride back to JBLM. Upon returning to the barracks, when asked by the unit medic (SPC EK) how he cut hi s right hand appellant respond ed, “I stabbe d a dude.” When confronted with news accounts of a stab bing in Lakewood in which a man lost his life appellant replied, “I don’t give a fuck, Jo e.” Appellant late r attributed these remarks and reactions to his drinking heavily after the incident and “some of the things that were said I may have been so intoxicated that it actually tu rned into a cockiness.”

LAW AND DISCUSSION

Prosecutorial Misconduct through Improper Government Argument

Appellant asserts the tria l counsel committed pros ecutorial misconduct in closing argument by calling appellant’s testimony a lie, by introducing facts not admitted in evidence, and by implying the defense did not present evidence to disprove the government’s case. The Supreme Court defined prosecutorial misconduct as behavi or by a prosecuting attorney that “overstep[s] the bounds of that propriety and fairness which should characterize the conduct of such an officer in the prosecution of a cr iminal offense . . . .” Berger v. United States , 295 U.S. 78, 84 (1935). The Court furthe r stated that a prosecutor “may prosecute with earnestness and vigo r . . . . But, while he may strike hard blows, he is not at liberty to strike foul ones.” Id. at 88. “Trial co unsel is entitled ‘to ar gue the evid ence of record, as well as all reason able inferences fairly deri ved from such evidence.’” United States v. Frey , 73 M.J. 245, 248 (C.A.A.F. 2014) (quoting United States v. Baer , 53 M.J. 235, 237 (C.A.A.F . 2000)). Howeve r, trial counse l are prohibited from “unduly . . . inflam[ing] the passions or prejudices of the court members.” United States v. Marsh , 70 M.J. 101, 102 (C .A.A.F. 2011 ) (quoting United States v. Clifton , 15 M.J. 26, 30 (C.M.A. 1983)); see also Rule for Courts-Martial [hereinafter R.C.M.] 919(b) discussion. We focus not “on words in isolation, but on the argument as ‘viewed in context.’” Baer
, 53 M.J. at 238 (quoting United States v. Young , 470 U.S. 1, 16 (1985)). We re view improper argum ents de novo. Marsh , 70 M.J. at 104.

If we find an argument im proper, we must determine “whether it materially prejudiced the substantial rights of the accused.” Baer , 53 M.J. at 2 37. We assess whether the misconduct impact ed the accused’s substantia l rights by examining and balancing three factors: “( 1) the severity of the mi sconduct, (2) the measures adopted to cure the misconduct, and (3) the weight of the evidence supporting the conviction.” United States v

. Fletcher , 62 M.J. 175, 184 (C .A.A.F. 2005). Indicators of the severity of the misconduct include: “(1) the raw numbers–the instances of misconduct as compared to the overall length of the argument[;] (2) whether the misconduct wa s confined to the trial coun sel’s rebuttal or spreadHILL—ARMY 20150310

4 throughout the findings argument or the case as a whole; (3) the length of the trial; (4) the length of the panel’s deliberations[;] and (5) whether the trial counsel abided by any rulings from th e military judge.” Id

.

A. Closing Argument – Characteriza tion of Appellant’s Testimony

The trial counsel made a findings argument that sp anned twelve pages of transcript, and a rebuttal argument that spanned an addition al four pages of transcript. Defense counsel di d not object to any portion of trial counsel ’s findings or rebuttal arguments. The military judge gave the members a stan dard instruction highlighting that the arguments of counse l are not evidence. During his closing argument the trial counsel stated:

And then, finally, let’s talk a bout what [appellant] told you happened yesterday. And let’ s look at the evidence, and when you look at it, you will un derstand that everything he told you, with few ex ceptions, is a lie.

Appellant asserts this portion of the argument disparaged appellant’s credibility and crossed the line by calling the appellan t a liar. “[C]alling the accused a liar is a dangerous prac tice that should be avoided.” Id. at 182 (quoting Clifton , 15 M.J. at 30 n.5) (inter nal quotation marks omitted). “It is improper for a trial counsel to interject hers elf into the proceedings by ex pressing a ‘personal belief or opinion as to the tr uth or falsity of any testimony or evidence.’” Id. at 179 (quoting ABA Standards, The Prosecut ion Function, § 5. 8(b) (1971)).

The government asserts trial counsel’s remarks were aimed at appellant’s testimony rather than at appellant hims elf. Appellant’s test imony that he saw two soldiers carrying knives with the shiny part reflecting off the light was contradicted by cross-examination that revealed the kniv es he would have se en had black blades incapable of giving a reflection. Further appellant claimed self-d efense after he saw SPC TG with a knife, but the other five pe ople present testified appellant was behind or beside SPC TG, negating the need for self-defense. Finally appellant made multiple statements after the event that were inconsistent with his claim of selfdefense. For example, appellant never referenced self-defense to the other soldiers in the car after the stabbing. Private First Class CJ testified that appellant responded, “I don’t give a fuck, Joe[,]” th e following day to news he may have taken a life, and “we are going to beat this . . . . It is self-def ense. I am going to say selfdefense[.]” Appellant’s acti ons and statements could be viewed as illustrating his self-defense claim was in correct or even a lie.

The statement of the trial counsel refers to the evidence, and states that appellant’s testimony “with fe w exceptions” was a lie. The plain language used by the trial counsel agai nst the backdrop of c onflicting testimony in the case leads to the conclusion that trial counsel was indeed commenting on the evidence and notHILL—ARMY 20150310

5 attacking appellant personally. This comment by the trial counsel in context was not improper and did not co nstitute plain error.

B. Closing Argument – Arguin g Facts Not in Evidence

Appellant asserts trial coun sel impermissibly argued facts not in evidence in two ways. First, trial couns el impermissibly argued the unit medic did not see any alcohol in appellant’s room and appellant did not appear intoxi cated in the days following the incident. Sec ond, trial counsel impermissibl y stated appellant cut his right hand with his own knife when it slipped.

Regarding the absence of the presen ce of alcohol tria l counsel argued:

A point to note, [appellant] sa id this puffery and bravado was due to his intense level of intoxication. Remember, [SPC EK] went to [appellant]’s room twice and there was no mention of empty bottles of alcohol, beer cans, nothing. Two times in the 48 hour (s ic) between the death—the murder, and when he was arre sted, no alcohol was in the room, not in evidence.

Appellant asserts that sin ce the military ju dge did not allow the government to call the unit medic as a rebutt al witness to state there wa s an absence ofalcohol in appellant’s room after the incident, trial counsel should not have been allowed to comment on the lack of alc ohol since there was no reasonable inference to be drawn from the facts. The government was attempting to re but appellant’s assertion that his remarks and reactions fo llowing the incident were attributable to his heavy drinking. In ruling agai nst the government regarding the rebuttal evidence the military judge did state, “Counsel, I’m not precluding you from argu ing anything that you want to argue, that’s legitimately suggested by the fact.”

The government asserts arguing the ab sence of evidence is different from arguing facts not in evidence . We agree and do not find plain or obvious error in this portion of tria l counsel’s argument. Reasonable comment on inferences drawn from the evidence, or lack thereof in this particular case, are not impermis sible. Trial counsel’s comments reasonably relate to facts testified to by the unit medic, as he was performing his duties in treating appellan t, and rebut facts elicited during appellant’s testimony. The fact that the milit ary judge did not allow SPC EK to testify as a rebuttal witn ess is not dispositive.

Appellant also asserts tr ial counsel impermissibly commented upon the source of injury to appellant’s ri ght hand during closing argume nt. Trial counsel stated:HILL—ARMY 20150310

6 And this is how it went down, the gov ernment can show you, from the evidence , exactly how it pl ayed out. Every witness testified that [appellant] was to [SPC TG’s] right and behind, with the exception of [appellant]. [Appellant] had this knife in hi s right hand, and he held it with his thumb along and aligned with his fingers, rather than wrapping his thumb around the blade like this. [Demonstrated]. How do we know this? Because as [appellant] approached [SPC TG] and slammed this knife into his chest from the right side, Doctor Clark told you that that knife completely incised the fifth rib of [SPC TG]; a bone. And when this knife would have hit that bone, it would hit resistance going in and then coming back out through the same bone . And hitting that resistance, with the blood that would be coming out of that wound, [appellant]’s hand slips. And as it slips, the meaty part of his thumb is cut by the slip, rendering the injury seen in Prosecution Exhibit 1, the phot o taken by [SPC EK ] on the morning—or the afternoon of the 5th of October 2013.

Appellant asserts this wa s impermissible argument be cause the theory of how appellant cut his hand was not supported by the evidence, especi ally since appellant testified that he held the knife in his left hand when he st ruck SPC TG. The government asserts there was pl enty of evidence to support trial co unsel’s argument, to include: testimony about wh at side appellant approached SPC TG; the fact that SPC TG’s knives were affixe d to his belt after the incident; Doctor Clark’s testimony regarding how the knife entered appell ant’s body; an d appellant’s statement about the source of his injury, “I sta bbed a dude.” We fi nd trial counsel’s statement regarding the source of appe llant’s wound was fa ir comment on the evidence presented and infere nces drawn therefrom. This statement was permissible and did not constitute plain error.

C. Trial Counsel’s Rebuttal Argument

Appellant asserts trial counsel implied the defense had to present evidence or disprove the government’s case by improperly comme nting on defense counsel’s failure to cross-examine the government’s witnesses or present other evidence showing inconsistencies in their testimony. The government asse rts trial counsel’s rebuttal comments were prop er and invited responses to the defense counsel’s attack upon the observations and credibility of the govern ment’s witnesses.

“[U]nder the ‘invited response’ or ‘invited reply’ doctrine, the prosecution is not prohibited from offering a comment that provides a fa ir response to claims made by the defense.” United States v. Lewis , 69 M.J. 379, 384 (C.A .A.F. 2011) (quotingHILL—ARMY 20150310

7 United States v. Carter , 61 M.J. 30, 33 (C.A.A.F. 2005)). “When determining whether prosecutorial comment was improper, the statement ‘must be examined in light of its context within the entire court-martial.” Id . (quoting Carter , 61 M.J. at 33). “In the course of reviewing ‘whether an appella nt was deprived of a fair trial by such comments, the question an appellate court must resolve is whether, viewed within the context of the entire trial . . . defense counsel’s comments clearly invited the reply.’” Id. (quoting United States v. Gilley , 56 M.J. 113, 121 (C.A.A.F. 2001)).

In closing argument on the me rits, defense co unsel stated:

Let’s talk about the guys in the car with [appellant]. It is laughable that those four came in here to testify to you about the truth of anythin g. Judge for yourselves how truthful they are. They we re concerned wi th one thing: Themselves. The fact that the government can stand here in front of you and te ll you to rely on th eir statements to convict someone of premeditat ed murder, the most serious charge under the Uniform Code of Military Justice, that’s ridiculous.

In rebuttal, the tr ial counsel stated:

Let’s speak about the f our guys in the car. Yes, they were not the most credible individu als. We get that. But two things: One, their testimony was generall y the same, and if it had been so viol ently inconsistent from the statements they’d given the police, at the time of the events, the defense would have cross-examin ed them on it, most likely, and shown the inconsistencies; but they didn’t. They didn’t show the inconsistenc ies about placement. They didn’t even reference the diagrams that ea ch one of those witnesses, with the exception of[SPC AC], made. Why, because what they told the police, back in October 2013, was essentially exactly what they told you here the day before.

Defense counsel’s cl osing argument, viewed within the context of the entire trial, clearly invited the tr ial counsel’s reply cited above. The credibility of the government’s witnesses was chal lenged in stark terms. The government’s remarks in rebuttal dealing with the lack of potential inconsistencies in the statements of the government witnesses were ration ally related to the credibi lity, or lack thereof, of those witnesses. Trial counsel’s rebuttal argument was not impermissible within the context of this trial and the closing argume nt of defense counse l. The burden on the government to prove its case was not shifted to the defense as a result of trial counsel’s comments. Trial counsel’s comments did not co nstitute plain error.HILL—ARMY 20150310

8 D. Plain Error and Prejudice
When no objection is made during trial, we review counsel’s arguments for plain error, which occurs “when: (1) an e rror was committed; (2) the error was plain, clear, or obvious; an d (3) the error resulted in materi al prejudice to an appellant’s substantial rights.” United States v. Moran , 65 M.J. 178, 181 (C.A.A.F. 2007) (citing United States v. Powell , 49 M.J. 460, 463-65 (C.A.A.F. 1998)).
Defense counsel did not object to either of trial counsel’ s arguments on the merits. Based upon the fore going, we do not fi nd plain error was committed in any aspect of trial counsel’s findings or rebutta l arguments. Specifically, we do not find prosecutorial misconduct in the present case. Reviewing the alleged instances of improper argument toge ther in context with trial counsel’s entir e argument, we are convinced the argument as a whole did not “seek unduly to inflam e the passions or prejudices of the court members.” Clifton , 15 M.J. at 30.
Assuming arguendo that any of trial counsel’s comments in findings argument or rebuttal argument did cons titute plain error, appellant was not prejudiced. Any misconduct by the tria l counsel was not severe in the co ntext of the en tirety of this case. Trial counsel’s findings argument consis ted of twelve transcript pages, and his rebuttal covered four transcript pages. The comments at issue, while important to trial counsel’s argument, did not constitute an inordinate portion of hi s argument. No corrective measures were taken by the m ilitary judge as he did not determine that any of trial counsel’s statemen ts constituted error. The comments at issue did span both the findings argument as well as the rebuttal argument. The trial on the merits was lengthy, spanning three days, and the members deliberated on findings for over ninety minutes. Trial counsel did not fa il to abide by any rulings by the military judge during the findin gs and rebuttal argume nt. Finally, the weight of the evidence supporting appellant’s conviction was strong. We find, assuming arguendo that plain error was committed, appellant did not suffer ma terial prejudice to a substantial right.

CONCLUSION
Upon consideration of the entire record, the findings of gu ilty and sentence are AFFIRMED.

Judge CELTNIEKS and Judge BURTON concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR. Clerk of Court FOR THE COURT: