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

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

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.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

                                   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 1½ 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.


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HILL—ARMY 20150310

        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


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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 self-
defense. 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 self-
defense[.]” 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

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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:




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HILL—ARMY 20150310

             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


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HILL—ARMY 20150310

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.


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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.
                                           MALCOLM     H. SQUIRES,
                                                          SQUIRES, JR.
                                                                   JR.
                                           Clerk of
                                           Clerk of Court
                                                    Court

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