

   
   
   
   U.S. v. Carpenter



IN THE CASE OF
UNITED STATES, Appellee
v.
Daniel H. CARPENTER, Disbursing Clerk First
Class
U.S. Navy, Appellant
 
No. 98-1050
Crim. App. No. 97-2146
 
United States Court of Appeals for the Armed
Forces
Argued March 2, 1999
Decided August 31, 1999
GIERKE, J., delivered the opinion of the
Court, in which COX, C.J., and SULLIVAN and EFFRON, JJ., joined. CRAWFORD,
J., filed an opinion concurring in the result.

Counsel
For Appellant: Lieutenant Commander R. C.
Klant, JAGC, USN (argued).
For Appellee: Captain Michael D. Carsten,
USMC (argued); Commander Eugene E. Irvin, JAGC, USN, and Colonel
K. M. Sandkuhler, USMC (on brief).
Military Judges: Nels H. Kelstrom and Roger
A. Smith


THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE PUBLICATION.
 

Judge GIERKE delivered the opinion of the Court.
Before a general court-martial composed of
officer members, appellant was charged with desertion, larceny, and forgery,
in violation of Articles 85, 121, and 123, Uniform Code of Military Justice,
10 USC §§ 885, 921, and 923, respectively. He pleaded guilty
to unauthorized absence (UA), in violation of Article 86, UCMJ, 10 USC
§ 886, as a lesser-included offense of desertion, but not guilty to
desertion, larceny, and forgery. He was convicted as charged. The adjudged
and approved sentence provided for a dishonorable discharge, confinement
for 15 years, total forfeitures, reduction to the lowest grade, and a $150,000
fine, with provision for an additional 3 years confinement if the fine
was not paid. The Court of Criminal Appeals affirmed the findings and sentence
in an unpublished opinion.
This Court granted review of the following
issue:



WHETHER THE LOWER COURT ERRED IN FINDING
THAT ASSISTANT TRIAL COUNSELS ARGUMENT REGARDING APPELLANTS PRESENCE
AND TESTIMONY AT TRIAL DID NOT IMPROPERLY INVITE THE MEMBERS TO USE APPELLANTS
EXERCISE OF HIS CONSTITUTIONAL RIGHTS AS EVIDENCE OF HIS GUILT AND, THUS,
WAS NOT CONSTITUTIONAL ERROR.



For the reasons set out below, we affirm.

Factual Background
The prosecutions proof of larceny and forgery
rested primarily on the testimony of Lieutenant Junior Grade (LTJG) Meier,
the Disbursing Officer of the USS ELLIOTT. Appellant was the leading Petty
Officer (LPO) in the disbursing office. On March 13, 1996, a United States
Treasury check made payable to appellant in the amount of $150,000 was
cashed at a local bank. LTJG Meier testified that the check was stolen
from the safe in his disbursing office and his signature on the check was
forged. Expert testimony established that LTJG Meiers signature on the
check was forged and appellants endorsement on the back of the check was
genuine. Expert testimony also established that appellants fingerprint
was on the check.
LTJG Meier received nonjudicial punishment
for dereliction of duty because of his lax administration of the disbursing
office. He testified under a grant of testimonial immunity.
Appellant admitted cashing the check but testified
that he did so at LTJG Meiers direction and that he gave the $150,000
to LTJG Meier. He testified that LTJG Meier gave him the check, told him
what denominations of bills were needed, and asked him to arrange the bank
pickup of cash. He testified that he cashed the check and gave the money
to LTJG Meier at a McDonalds restaurant on the afternoon of March 14,
1996.
Appellant testified that he later learned that
four Treasury checks were missing from the disbursing office. When he learned
that LTJG Meier was going to deny that he had received the cash, appellant
went UA because he was frightened and did not think that anyone would believe
him instead of LTJG Meier. He explained, "Mr. Meier is an officer, Im
an enlisted."
Through cross-examination and rebuttal evidence,
the prosecution advanced its theory that appellant had concocted his testimony
to portray himself as an innocent dupe of LTJG Meier. During cross-examination,
appellant testified that it did not strike him as unusual to obtain cash
without the Disbursing Officer being present. He testified that he and
Disbursing Clerk Third Class (DK3) Brockman had obtained cash on other
occasions without LTJG Meier being present. In rebuttal, the prosecution
produced the testimony of DK3 Brockman, who testified that he had never
obtained cash from a bank without the Disbursing Officer being present,
and he had never obtained cash with appellant without the disbursing officer
being present.
On further cross-examination of appellant,
the prosecution elicited admissions that he supported himself while UA
in the Phillipines by selling blue jeans, income from investments, and
a computer business. Appellant admitted that he did not report any of his
income on his 1995 tax returns and that he committed "tax fraud."
The most devastating evidence was elicited
during the prosecutions cross-examination of appellant about his delivery
of the cash to LTJG Meier on March 14. Appellant had testified that LTJG
Meier called him on the morning of March 14 and suggested that they meet
and transfer the money later in the day at a McDonalds restaurant, and
that he had delivered the money as agreed. Appellant also had testified
that on the morning of March 14, Disbursing Clerk Seaman (DKSN) Yerkey
had seen the bag of money and teased appellant because he was protective
about it.
On cross-examination, the prosecutor concentrated
on the date of the transaction. When confronted with DKSN Yerkeys testimony
that she saw the money on March 15, appellant testified that DKSN Yerkey
was mistaken. The cross-examination continued as follows:



Q. Are you sure that Yerkey was not correct
and it wasnt the 15th?
A. I am positive, sir.
Q. Couldnt of been the 16th?
A. No, sir.
Q. How about the 17th?
A. No, sir.
Q. Youre absolutely positive it was the 14th
of March?
A. Yes, sir.
Q. That would have been a Thursday?
A. Yes, sir.
Q. And thats the day you and Meier gave the
 he gave you the money, excuse me, you gave him the money and you left?
A. The best I can remember. Yes, sir.
Q. Now wait a minute. The best you can remember.
Youre telling me absolutely, positively 
A. I remember Thursday, sir.
Q. I want to know if you are sure or youre
not sure. This is very important.
A. The best I can remember it was Thursday.
Q. Which is it? Im not trying to trick you.
I just want to know. Are you sure it was the 14th or are you
not sure it was the 14th?
[Civilian defense counsel]: Ill object. Argumentative.
He has already answered that he was not sure, Your Honor.
[Military judge]: Ill let you re-ask the question.
Overruled.
Q. How sure are you that it occurred on the
14th?
A. Ninety percent.



In rebuttal, after appellant had completed his
testimony, the prosecution introduced testimony, ships deck logs, and
muster reports showing that LTJG Meier was at sea on the USS ELLIOTT until
approximately 3:00 p.m. on the afternoon of March 15. Appellant agreed
to a stipulation of fact that the USS ELLIOTT was underway at sea from
March 8 until approximately 3:00 p.m. on March 15. LTJG Meier testified
that he was on board the USS ELLIOTT at that time, performing duties as
a helicopter control officer. Lieutenant Clements, LTJG Meiers superior,
corroborated LTJG Meiers testimony that he was aboard the USS ELLIOTT
until it docked on the afternoon of March 15 and that he never left the
ship until it docked.
The closing arguments of both sides focused
on the corroborating evidence or lack thereof and the credibility of LTJG
Meier and appellant. The prosecutions theme was that appellant could not
rebut the overwhelming evidence that he cashed the check, and so he decided
to "try a boldface lie and see if it sticks." The prosecutor characterized
the defense strategy as "throw out some wild crazy story" and "argue thats
reasonable doubt." He also argued that appellant "lied to his wife about
being UA" and admitted being a tax evader; that he was contradicted by
DK3 Brockman; and that his "wild crazy" story of the transfer to LTJG Meier
was contradicted by the overwhelming evidence that LTJG Meier was at sea
until the afternoon of March 15. The prosecutor argued, "But not only did
he lie in the past, but he lied right on the stand, looking right at each
of you, looking right in your eyes, and we caught him in it, many times
over."
The defense argument focused on the believability
of appellants testimony. Regarding the dates of the purported transfer
of funds to LTJG Meier, defense counsel argued, "What Im getting at folks,
is that people  misrecollection [sic] is a common thing. People make mistakes
on dates. And this case does not rise and fall on that mistake."
The prosecutions rebuttal argument began as
follows:



Thank you, Your Honor. Mr. President, members,
there is only one witness who has testified in this court-martial who
had the luxury and the benefit of seeing all the Governments witnesses
and seeing all the Governments evidence before taking the stand and testifying,
and thats the accused. And remember, as a bonus, he had a three-day
weekend to prepare for his testimony.



(Emphasis added.)
Although appellant was represented by both
civilian and military counsel, neither of appellants lawyers objected
to the above argument or requested the military judge to take any remedial
action with respect to it. The military judge did not initiate any action
sua sponte.

Discussion
Appellant now asserts that the prosecutors
comment on his presence during the trial and his ability to tailor his
testimony was an error of constitutional dimension. Appellant argues that
the prosecution improperly invited the members to infer guilt from appellants
exercise of his constitutional right to be present and confront the witnesses
against him.
The Government argues that the prosecution
argument was not constitutional error because it merely highlighted what
was obvious to the members. The Government further argues that, even if
the argument was improper, it does not rise to the level of plain error.
Because there was no defense objection to the
prosecutions argument, we review for plain error. RCM 919(c), Manual for
Courts-Martial, United States (1995 ed.).*
Under a plain error analysis, appellant has the initial burden of persuasion.
He must show that there was an error, that it was plain or obvious, and
that it materially prejudiced a substantial right. Only if appellant meets
that burden of persuasion does the burden shift to the Government to show
that the error was not prejudicial. United States v. Powell, 49
MJ 460, 464-65 (1998). If the plain error is constitutional error, the
Government must convince us beyond a reasonable doubt that the error was
not prejudicial. Id. at 465 n.*.
On several occasions, this Court has commented
that it is improper for a prosecutor to ask the court members to infer
guilt because an accused has exercised his constitutional rights. See
United States v. Turner, 39 MJ 259, 262 (CMA 1994) (improper to
comment on appellants refusal to consent to search); United States
v. Toro, 37 MJ 313, 318 (CMA 1993) (improper to comment of exercise
of right to remain silent); United States v. Edwards, 35 MJ 351,
355 (CMA 1992) (improper to comment on refusal to plead guilty); United
States v. Clifton, 15 MJ 26, 29 (CMA 1983) (improper to argue that
accused "asserted his rights" and "fought this every inch of the way");
see also United States v. Causey, 37 MJ 308, 311 (CMA 1993)
(improper to urge members to reject innocent ingestion defense in drug
cases in order to deter others from making similar claims).
This Court has not specifically ruled on the
propriety of a prosecution argument that an accused has had the opportunity
to shape his testimony by his presence throughout the trial and opportunity
to hear all the witnesses. In Agard v. Portuondo, 117 F.3d 696,
709 (1997), the Second Circuit held, in a split decision, that such an
argument violates the Sixth Amendment. Agard was not a plain error
case, because defense counsel objected to the argument and asked for a
mistrial. Id. at 707.
During direct review of appellants case, the
Court of Criminal Appeals reviewed state court decisions on this issue
as follows:

The highest courts in Connecticut, Maine,
Vermont, and Massachusetts have concluded that such prosecutorial argument
is improper. State v. Cassidy, 236 Conn. 112, 672 A.2d 899, 905-09
(1996); State v. Jones, 580 A.2d 161, 162-63 (Me. 1990) (prosecutors
argument was improper but the defendant failed to preserve the issue);
State v. Hemingway, 148 Vt. 90, 528 A.2d 746, 747-48 (1987); Commonwealth
v. Person, 400 Mass. 136, 508 N.E.2d 88, 90-91 (1987). On the other
hand, the Supreme Court of Michigan and intermediate appellate courts from
other States have held otherwise. See People v. Buckey, 424
Mich. 1, 378 N.W.2d 432, 436-39 (1985); see also State
v. Grilli, 369 N.W.2d 35, 37 (Minn. Ct. App. 1985).

Unpub. op. at 4.
The foregoing survey of federal and state cases
demonstrates that the prosecutor in this case was treading on dangerous
ground when he commented on appellants ability to observe the witnesses
and shape his testimony. Nevertheless, we need not decide if the prosecutors
comment was plain error, because we are satisfied beyond a reasonable doubt
that any error was harmless. See United States v. Powell,
supra.
In a harmless error analysis, the lack of defense
objection is relevant to a determination of prejudice. We have often observed
that the lack of a defense objection to improper argument is "some measure
of the minimal impact" of a prosecutors improper comment. United States
v. Nelson, 1 MJ 235, 238 n. 6 (CMA 1975), citing United States v.
Saint John, 23 USCMA 20, 48 CMR 312 (1974); United States v. Ryan,
21 USCMA 9, 44 CMR 63 (1971); United States v. Wood, 18 USCMA 291,
40 CMR 3 (1969). The uncontroverted and overwhelming evidence showed
that appellant cashed a check for $150,000, payable to himself. The purported
signature of LTJG Meier was forged; the endorsing signature of appellant
was genuine. Appellants defense was improbable from the outset, and it
totally collapsed when he was contradicted by DK3 Brockman and confronted
with the prosecutions ironclad "alibi" evidence, showing that the transfer
of money to LTJG Meier could not have happened because appellant was ashore
and LTJG Meier was at sea when appellant said it happened.
The prosecutions closing argument was that
appellant had concocted a "wild crazy" story. While the prosecutors comment
in rebuttal suggested that appellant had tailored his testimony after hearing
the Governments witnesses, the prosecution argument as a whole suggested
that appellant did not tailor his testimony very well. While appellant
characterizes this case as a "swearing contest between him and the Disbursing
Officer," Final Brief at 7, appellants credibility totally collapsed after
the prosecutions case in rebuttal. Accordingly, we hold that any error
in the prosecutions rebuttal argument was harmless beyond a reasonable
doubt.

Decision
The decision of the United States Navy-Marine
Corps Court of Criminal Appeals is affirmed.
FOOTNOTE:
* This provision is
unchanged in the 1998 edition of the Manual.
 
 
CRAWFORD, Judge (concurring in the result):
I agree with the majority. If there was error,
it was not plain error. I write separately to explain why there was no
error. First, the statement in question in this case was not in the Government's
initial argument but in its rebuttal argument. Second, this rebuttal was
prompted by the defense argument on the credibility of other witnesses
and the beginning of direct examination of appellant.
This is not a case where the prosecution in
the first instance comments on an accused's right to remain silent and
his presence in the courtroom. The comment by the prosecutor here was in
response to the direct examination of appellant, as well as to defense
counsel's closing argument.
The assistant trial counsel opened his rebuttal
argument as follows:



Thank you, Your Honor. Mr. President, members,
there is only one witness who has testified in this court-martial who
had the luxury and the benefit of seeing all the Government's witnesses
and seeing all the Government's evidence before taking the stand and testifying,
and that's the accused. And remember, as a bonus, he had a three-day weekend
to prepare for his testimony.
[Trial counsel] cross-examined the accused
yesterday, as to his story of what happened. Now, in real life in the courtroom,
people don't wither under cross-examination. It's not like the way it happens
on TV, where people just fall apart and say, yes, I did it. So, it doesn't
happen that way in real life. In this case, we can't expect it to happen
because this accused is a skilled, experienced, trained liar. He knows
how to look you right in the eye and tell you a lie.



(Emphasis added.) None of appellant's trial defense
lawyers objected to the above argument or requested that the
military judge take any remedial action with
respect to it. Also, the military judge did not initiate any ameliorative
action.
Court members are not oblivious to what happens
at a trial. Most see movies, watch television, and are familiar with the
stages of a trial. Here, the prosecution was merely commenting on the obvious
after being invited to make such a response.
Trial defense counsel invited this comment
when beginning the direct examination of appellant, as follows:



Q. Petty Officer Carpenter, how long have
you served in the Navy?
A. Seven years, sir.
Q. Are you testifying under a grant of immunity?
A. No, sir.
Q. Do you understand and have I explained to
you that you have a right under the United States Constitution Fifth Amendment
to remain silent?
A. Yes, sir.
TC: Objection. Bolstering.
Q. Petty Officer Carpenter, do you know that
you have taken an oath to tell the truth today?
A. Yes, sir.
Q. And are you aware of the penalties for not
telling the truth?
A. Yes, sir.



This case is like United States v. Robinson,
485 U.S. 25 (1988). In Robinson, the Court held that the prosecutor's
reference to the defendant's failure to testify, despite the opportunity
to do so, was a fair response to the defense counsel's argument and, thus,
not error. Id. at 32.
While the defendant has the right to have the
jury instructed not to draw any inference from his failure to testify,
Carter v. Kentucky, 450 U.S. 288 (1981), the courts should recognize
that, in some instances, this may very well be futile. But this is not
a case of the defendant not testifying. Here, the defendant testified and
had a choice as to when to testify; to ask the members to bury their heads
in the sand, though perhaps laudable, may very well be the wrong approach.
Agard v. Portuondo, 159 F.3d 98 (2d Cir. 1997), cert. granted,
119 S.Ct. 1248 (1999).

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