UNITED STATES ARMY COURT 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 Infantry Division 

Andrew J. Glass, Military Judge 

Colonel Robert F. Resnick, Staff Judge Advocate 

For Appellant: Lieutenant Colonel Melissa R. Covolesky, JA; Major Christopher D. 

Coleman, JA; Captain Matthew L. Jalandoni, JA (on brief); Major Christopher D. 

Coleman, JA; Captain Matthew L. Jalandoni, JA (on reply brief). 

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III, 

JA; Major Michael E. Korte, JA (on brief). 

6 April 2017 

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MEMORANDUM OPINION 

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This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

TOZZI, Senior Judge: 

An officer panel sitting as a general court-martial convicted appellant, 

contrary to his plea, of one specification of unpremeditated murder in violation of 

Article 118, Uniform Code of Military Justice, 10 U.S.C. § 918 (2012) [hereinafter 

UCMJ]. The panel sentenced appellant to a dishonorable discharge, confinement for 

forty-five years, and to forfeit all pay and allowances. The convening authority 

approved the sentence as adjudged. Appellant was credited with 577 days against 

the sentence to confinement. 

This case is before us for review pursuant to Article 66, UCMJ. Appellant 

raises three assignments of error, one of which merits discussion but no relief. 

Appellant personally raised matters pursuant to United States v. Grostefon, 12 M.J. 

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

2

BACKGROUND 

Appellant was convicted 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, appellant left his barracks at Joint Base Lewis McChord 

(JBLM) with Private First Class (PFC) CJ. After visiting 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 was “belligerently drunk[.]” This group of five soldiers 

then decided to take Private (PVT) AR-B’s car to the Denny’s restaurant adjacent to 

Club Latitude in Lakewood, Washington, to wait for the exodus of club patrons at 

closing time. Following this, the five soldiers proceeded to drive back toward JBLM 

on Pacific Highway South, with PVT AR-B at the wheel. At one point, 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]ust 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 pedestrians turned out to be three 

soldiers, including the victim, SPC TG. One of the occupants of the 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 the occupants of the car (SPC AC) handed a 

knife to appellant. Appellant and three of the occupants of the vehicle then got out 

and began walking toward the three pedestrians. One of the pedestrians (SPC BJ) 

brandished a knife with a black blade. After a short verbal 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 upper left chest with a force that completely incised his left, 

fifth rib (cutting the rib in two pieces) producing a 11⁄2 inch incision in the front of 

SPC TG’s heart. Specialist TG was dead within minutes. 

Appellant testified when he approached the group of pedestrians two of the 

three individuals (SPC BJ and SPC TG) were brandishing knives. “[B]y the way 

they were holding them I could see the shiny part . . . I could just see a little shiny 

part reflect off the lighting[.]” Appellant testified SPC TG approached the group 

carrying a knife. Appellant testified, “I seen it like the whole time . . . .” Appellant 

then testified that he cut his hand reaching for SPC TG’s knife. At that point 

appellant testified he stuck SPC TG with the knife he was carrying so SPC TG would 

not continue to use his knife against him. Two knives were later found affixed to 

SPC TG’s belt. One was a folding knife on his left hip that was partially open, and 

one was a black buck knife 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 

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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 his right hand appellant responded, “I stabbed a dude.” 

When confronted with news accounts of a stabbing in Lakewood in which a man lost 

his life appellant replied, “I don’t give a fuck, Joe.” Appellant later 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 turned into a 

cockiness.” 

LAW AND DISCUSSION 

Prosecutorial Misconduct through Improper Government Argument 

Appellant asserts the trial counsel committed prosecutorial 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 behavior 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 criminal offense . . . .” Berger v. United States, 295 U.S. 78, 

84 (1935). The Court further stated that a prosecutor “may prosecute with 

earnestness and vigor . . . . But, while he may strike hard blows, he is not at liberty 

to strike foul ones.” Id. at 88. “Trial counsel is entitled ‘to argue the evidence of 

record, as well as all reasonable inferences fairly derived 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)). However, trial counsel 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 review improper arguments de novo. Marsh, 70 

M.J. at 104. 

If we find an argument improper, we must determine “whether it materially 

prejudiced the substantial rights of the accused.” Baer, 53 M.J. at 237. We assess 

whether the misconduct impacted the accused’s substantial rights by examining and 

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.” 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 was confined to the trial counsel’s rebuttal or spread 
HILL—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 the military judge.” Id. 

A. Closing Argument – Characterization of Appellant’s Testimony 

The trial counsel made a findings argument that spanned twelve pages of 

transcript, and a rebuttal argument that spanned an additional four pages of 

transcript. Defense counsel did not object to any portion of trial counsel’s findings 

or rebuttal arguments. The military judge gave the members a standard instruction 

highlighting that the arguments of counsel are not evidence. During his closing 

argument the trial counsel stated: 

And then, finally, let’s talk about what [appellant] told you 

happened yesterday. And let’s look at the evidence, and 

when you look at it, you will understand that everything he 

told you, with few exceptions, is a lie. 

Appellant asserts this portion of the argument disparaged appellant’s 

credibility and crossed the line by calling the appellant a liar. “[C]alling the 

accused a liar is a dangerous practice that should be avoided.” Id. at 182 (quoting 

Clifton, 15 M.J. at 30 n.5) (internal quotation marks omitted). “It is improper for a 

trial counsel to interject herself into the proceedings by expressing a ‘personal belief 

or opinion as to the truth or falsity of any testimony or evidence.’” Id. at 179 

(quoting ABA Standards, The Prosecution Function, § 5.8(b) (1971)). 

The government asserts trial counsel’s remarks were aimed at appellant’s 

testimony rather than at appellant himself. Appellant’s testimony that he saw two 

soldiers carrying knives with the shiny part reflecting off the light was contradicted 

by cross-examination that revealed the knives he would have seen had black blades 

incapable of giving a reflection. Further appellant claimed self-defense after he saw 

SPC TG with a knife, but the other five people 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[,]” the following day to news he may have taken 

a life, and “we are going to beat this . . . . It is self-defense. I am going to say selfdefense[.]” Appellant’s actions and statements could be viewed as illustrating his 

self-defense claim was incorrect or even a lie. 

The statement of the trial counsel refers to the evidence, and states that 

appellant’s testimony “with few exceptions” was a lie. The plain language used by 

the trial counsel against the backdrop of conflicting testimony in the case leads to 

the conclusion that trial counsel was indeed commenting on the evidence and not 
HILL—ARMY 20150310 

5

attacking appellant personally. This comment by the trial counsel in context was not 

improper and did not constitute plain error. 

B. Closing Argument – Arguing Facts Not in Evidence

Appellant asserts trial counsel impermissibly argued facts not in evidence in 

two ways. First, trial counsel impermissibly argued the unit medic did not see any 

alcohol in appellant’s room and appellant did not appear intoxicated in the days 

following the incident. Second, trial counsel impermissibly stated appellant cut his 

right hand with his own knife when it slipped. 

Regarding the absence of the presence of alcohol trial counsel argued: 

A point to note, [appellant] said 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 (sic) between the death—the 

murder, and when he was arrested, no alcohol was in the 

room, not in evidence. 

Appellant asserts that since the military judge did not allow the government to 

call the unit medic as a rebuttal witness to state there was an absence of alcohol in 

appellant’s room after the incident, trial counsel should not have been allowed to 

comment on the lack of alcohol since there was no reasonable inference to be drawn 

from the facts. The government was attempting to rebut appellant’s assertion that 

his remarks and reactions following the incident were attributable to his heavy 

drinking. In ruling against the government regarding the rebuttal evidence the 

military judge did state, “Counsel, I’m not precluding you from arguing anything 

that you want to argue, that’s legitimately suggested by the fact.” 

The government asserts arguing the absence of evidence is different from 

arguing facts not in evidence. We agree and do not find plain or obvious error in 

this portion of trial counsel’s argument. Reasonable comment on inferences drawn 

from the evidence, or lack thereof in this particular case, are not impermissible. 

Trial counsel’s comments reasonably relate to facts testified to by the unit medic, as 

he was performing his duties in treating appellant, and rebut facts elicited during 

appellant’s testimony. The fact that the military judge did not allow SPC EK to 

testify as a rebuttal witness is not dispositive. 

Appellant also asserts trial counsel impermissibly commented upon the source 

of injury to appellant’s right hand during closing argument. Trial counsel stated: 
HILL—ARMY 20150310 

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And this is how it went down, the government can show 

you, from the evidence, exactly how it played out. Every 

witness testified that [appellant] was to [SPC TG’s] right 

and behind, with the exception of [appellant]. [Appellant] 

had this knife in his 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 photo taken by [SPC EK] on the morning—or 

the afternoon of the 5th of October 2013. 

Appellant asserts this was impermissible argument because the theory of how 

appellant cut his hand was not supported by the evidence, especially since appellant 

testified that he held the knife in his left hand when he struck SPC TG. The 

government asserts there was plenty of evidence to support trial counsel’s argument, 

to include: testimony about what side appellant approached SPC TG; the fact that 

SPC TG’s knives were affixed to his belt after the incident; Doctor Clark’s 

testimony regarding how the knife entered appellant’s body; and appellant’s 

statement about the source of his injury, “I stabbed a dude.” We find trial counsel’s 

statement regarding the source of appellant’s wound was fair comment on the 

evidence presented and inferences 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 commenting on defense counsel’s 

failure to cross-examine the government’s witnesses or present other evidence 

showing inconsistencies in their testimony. The government asserts trial counsel’s 

rebuttal comments were proper and invited responses to the defense counsel’s attack 

upon the observations and credibility of the government’s witnesses. 

“[U]nder the ‘invited response’ or ‘invited reply’ doctrine, the prosecution is 

not prohibited from offering a comment that provides a fair response to claims made 

by the defense.” United States v. Lewis, 69 M.J. 379, 384 (C.A.A.F. 2011) (quoting 
HILL—ARMY 20150310 

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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 appellant 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 merits, defense counsel 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 anything. Judge for yourselves how 

truthful they are. They were concerned with one thing: 

Themselves. The fact that the government can stand here in 

front of you and tell you to rely on their statements to 

convict someone of premeditated murder, the most serious 

charge under the Uniform Code of Military Justice, that’s 

ridiculous. 

In rebuttal, the trial counsel stated: 

Let’s speak about the four guys in the car. Yes, they were 

not the most credible individuals. We get that. But two 

things: One, their testimony was generally the same, and if 

it had been so violently inconsistent from the statements 

they’d given the police, at the time of the events, the 

defense would have cross-examined them on it, most likely, 

and shown the inconsistencies; but they didn’t. They didn’t 

show the inconsistencies about placement. They didn’t even 

reference the diagrams that each 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 closing argument, viewed within the context of the entire 

trial, clearly invited the trial counsel’s reply cited above. The credibility of the 

government’s witnesses was challenged in stark terms. The government’s remarks in 

rebuttal dealing with the lack of potential inconsistencies in the statements of the 

government witnesses were rationally related to the credibility, or lack thereof, of 

those witnesses. Trial counsel’s rebuttal argument was not impermissible within the 

context of this trial and the closing argument of defense counsel. 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 constitute plain error. 
HILL—ARMY 20150310 

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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 error was committed; (2) the error was plain, 

clear, or obvious; and (3) the error resulted in material 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 foregoing, we do not find plain error was committed in any 

aspect of trial counsel’s findings or rebuttal arguments. Specifically, we do not find 

prosecutorial misconduct in the present case. Reviewing the alleged instances of 

improper argument together in context with trial counsel’s entire argument, we are 

convinced the argument as a whole did not “seek unduly to inflame 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 constitute plain error, appellant was not prejudiced. Any 

misconduct by the trial counsel was not severe in the context of the entirety of this 

case. Trial counsel’s findings argument consisted 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 his argument. 

No corrective measures were taken by the military judge as he did not determine that 

any of trial counsel’s statements 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 fail to abide by any rulings by the military 

judge during the findings and rebuttal argument. 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 material prejudice to a 

substantial right. 

CONCLUSION 

Upon consideration of the entire record, the findings of guilty and sentence 

are AFFIRMED. 

Judge CELTNIEKS and Judge BURTON concur. 

FOR THE COURT: 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: