

   
   
   
   U.S. v. Baer



UNITED STATES, Appellee
V.
William J. BAER, Lance Corporal
U.S. Marine Corps, Appellant
 
No. 99-0872
Crim. App. No. 97-2044

United States Court of Appeals for the Armed
Forces
Argued February 29, 2000
Decided July 26, 2000
COX, S.J., delivered the opinion of the
Court, in which CRAWFORD, C.J., and GIERKE, J., joined. EFFRON, J., filed
an opinion concurring in part and in the result, in which SULLIVAN, J.,
joined.
Counsel

For Appellant: Lieutenant Michael A. Castelli,
JAGC, USNR (argued); Lieutenant John D. Holden, JAGC, USNR (on brief).
For Appellee: Captain Edward C. Durant,
USMC (argued); Colonel Kevin M. Sandkuhler, USMC, Commander Eugene
E. Irvin, JAGC, USN, and Major Mark K. Jamison, USMC (on brief).
Military Judge: W. P. Hollerich


This opinion is subject
to editorial correction before publication.
 

Senior Judge COX delivered the opinion of the
Court.
This case is before us after appellant, Lance
Corporal (LCpl) William J. Baer, pled guilty to robbery, aggravated assault,
conspiracy, kidnapping, and murder charges.1
LCpl Baer was stationed at the Marine Corps Base in Kaneohe Bay, Hawaii,
and the charges arose from his role in a brutal kidnapping and murder of
a fellow Marine, LCpl Guerrero. LCpl Baer was sentenced to confinement
for 25 years, reduction to pay grade E-1, forfeiture of all pay and allowances,
and a dishonorable discharge. The convening authority approved the sentence
and ordered it executed, except for the dishonorable discharge. The Court
of Criminal Appeals affirmed the findings and sentence in an unpublished
opinion.
This court granted review on November 23, 1999,
on the following issue:



WHETHER THE LOWER COURT ERRED IN FINDING
NO ABUSE OF DISCRETION WHERE THE MILITARY JUDGE ALLOWED TRIAL COUNSEL TO
ASK THE MEMBERS TO PUT THEMSELVES IN THE PLACE OF THE VICTIM WHEN HE WAS
TORTURED AND MURDERED.



Facts
Appellant and his three Marine coconspirators
entered into an agreement to lure their victim, LCpl Juan Guerrero, into
one of their homes, where they planned to rob him. Under the pretext of
promised repayment of an overdue loan, LCpl Guerrero was invited to the
home of LCpl Michael Pereira. LCPl Guerrero drove to LCpl Pereira's home
in his car, expecting to pick up his money and then return to his barracks.
Almost immediately after entering LCpl Pereira's home, he was simultaneously
attacked by each of the coconspirators, including appellant. Using their
fists, shod feet, a baseball bat, and a "stun-gun," they ultimately assaulted
LCpl Guerrero to the point of complete unconsciousness. They then bound
their victim's mouth, hands, arms, and legs with heavy duct tape, wrapped
his body in a canvas car cover, and loaded him into the back of a coconspirator's
Chevy Blazer. Appellant then removed stereo equipment and other items from
LCpl Guerrero's car.
Upon completion of this robbery, all four conspirators
transported LCpl Guerrero to a remote site on the island of Oahu, where
LCpl Darryl Antle summarily executed him with a single pistol shot to the
head. LCpl Guerrero's body was then dumped over a railing and into a deep
ravine. Almost a month passed before the badly decomposed remains of LCpl
Guerrero were discovered. Within days of the discovery, appellant and his
coactors were identified as possible perpetrators, and two of them (including
appellant) ultimately confessed their involvement in this heinous crime.
Various items of LCpl Guerrero's stereo equipment were later recovered
from appellant's home.
LCpl Baer was tried by general court-martial,
officer members, on November 18, 1996, and January 15-18, 1997. The assistant
trial counsel (ATC) conducted the sentencing hearing for the Government.
During the course of his argument, the ATC made the following statements:

Imagine him entering the house, and what
happens next? A savage beating at the hands of people he knows, fellow
Marines, to which the accused was a willing participant. He's grabbed,
he's choked, he's beaten, he's kicked, he's hit with a bat, small baseball
bat. Imagine being Lance Corporal Guerrero sitting there as these people
are beating him.

Upon hearing this statement, the civilian defense
counsel immediately objected, claiming that this was improper argument,
as the ATC was inviting the jury to imagine themselves in the victim's
position. The military judge responded as follows in the presence
of the members:

I disagree. What the trial counsel is trying
to do is describe the particular situation in which the victim was in,
and that's an appropriate consideration for the members to consider in
determining an appropriate sentence.

Two hundred forty words later in the record, the
ATC again made an argument that appellant deemed objectionable.2
He said:

Imagine. Just imagine the pain and the agony.
Imagine the helplessness and the terror, I mean the sheer terror of being
taped and bound, you can't move. You're being taped and bound almost like
a mummy. Imagine as you sit there as they start binding.

Discussion
The legal test for improper argument is whether
the argument was erroneous and whether it materially prejudiced the substantial
rights of the accused. See United States v. Shamberger, 1
MJ 377 (CMA 1976); United States v. Gerlach, 16 USCMA 383, 37 CMR
3 (1966). Whether or not the argument in question was technically erroneous,
we do not believe that appellant's substantial rights were materially prejudiced
by it, and so we affirm the court below.
When arguing for what is perceived to be an
appropriate sentence, the trial counsel is at liberty to strike hard, but
not foul, blows. United States v. Edwards, 35 MJ 351 (CMA
1992); Berger v. United States, 295 U.S. 78 (1935). It is appropriate
for trial counsel -- who is charged with being a zealous advocate for the
Government -- to argue the evidence of record, as well as all reasonable
inferences fairly derived from such evidence. United States v. Nelson,
1 MJ 235, 239 (CMA 1975).
However, as noted by the Court of Criminal
Appeals, "arguments aimed at inflaming the passions or prejudices of the
court members are clearly improper." Unpub. op. at 4, citing United
States v. Clifton, 15 MJ 26, 30 (CMA 1983). Thus, the members are not
to be asked to fashion their sentence "upon blind outrage and visceral
anguish," but upon "cool, calm consideration of the evidence and commonly
accepted principles of sentencing." Id.
In this regard, "Golden Rule" arguments that
ask the court members to place themselves in the position of a near relative
of the victim have been held by this Court to be improper. See
United States v. Shamberger, supra (trial counsel asked
members to place themselves in the position of rape victim's husband, who
was restrained and watched as his wife was repeatedly raped); United
States v. Wood, 18 USCMA 291, 40 CMR 3 (1969) (trial counsel asked
members to sentence accused from the perspective that their own sons had
been the victims of indecent liberties by the accused); United States
v. Teslim, 869 F.2d 316, 327 (7th Cir. 1989) ("A 'Golden
Rule' appeal in which the jury is asked to put itself in the plaintiff's
position 'is universally recognized as improper because it encourages the
jury to depart from neutrality and to decide the case on the basis of personal
interest and bias rather than on the evidence.'").
While the prohibition against Golden Rule arguments
originated with civil trials, when a plaintiff requested that a jury put
itself in the place of the individual victimized by the defendant in order
to gain higher damages, the prohibition has since been incorporated into
the protection afforded a criminal defendant. See Forrestal
v. Magendantz, 848 F.2d 303, 309 (1st Cir. 1988); see
also 75A Am. Jur. 2d, Trial § 650 (1991).
In this case, we hold that Golden Rule arguments
asking the members to put themselves in the victims place are improper
and impermissible in the military justice system.
On the other hand, we also recognize that an
argument asking the members to imagine the victim's fear, pain, terror,
and anguish is permissible, since it is simply asking the members to consider
victim impact evidence. See, e.g., United States
v. Holt, 33 MJ 400, 408-09 (CMA 1991).
Logically speaking, asking the members to consider
the fear and pain of the victim is conceptually different from asking them
to put themselves in the victim's place. See United States
v. Edmonds, 36 MJ 791, 793 (ACMR 1993). However, in the heat of the
argument, a trial counsel who is not adequately mindful of this distinction
may find himself easily crossing the line and wandering dangerously into
the realm of impermissible argument.
We believe that happened in this case. While
we agree with the court below that the ATC's argument as a whole was not
calculated to improperly inflame the members' passions or possible prejudices,
we cannot agree that the military judge was entirely correct when he failed
to sustain defense counsel's timely objection. On their face, the selections
of the ATC's arguments put forward by appellant do cross the line into
impermissible argument.
However, as a threshold matter, the argument
by a trial counsel must be viewed within the context of the entire court-martial.
The focus of our inquiry should not be on words in isolation, but on the
argument as "viewed in context." United States v. Young, 470 U.S.
1, 16 (1985); see also Dunlop v. United States, 165
U.S. 486, 498 (1897) ("If every remark made by counsel outside of the testimony
were ground for a reversal, comparatively few verdicts would stand, since
in the ardor of advocacy, and in the excitement of trial, even the most
experienced counsel are occasionally carried away by this temptation.").
In this regard, we agree with the Government's position that it is improper
to "surgically carve" out a portion of the argument with no regard to its
context. As Justice Frankfurter once commented, "In reviewing criminal
cases, it is particularly important for appellate courts to re-live the
whole trial imaginatively and not to extract from episodes in isolation
abstract questions of evidence and procedure. To turn a criminal appeal
into a quest for error no more promotes the ends of justice than to acquiesce
in low standards of criminal prosecution." Johnson v. United States,
318 U.S. 189, 202 (1943) (Frankfurter, J., concurring).
Looking at the entire argument, we find no
basis for disagreeing with the lower court's conclusion that the direction,
tone, and theme of the ATC's argument was not calculated to inflame the
members' passions or possible prejudices. Instead, it is clear that the
ATC was attempting to describe the particular situation in which the victim
was placed, an entirely appropriate consideration for the members in determining
an appropriate sentence. The objectionable selections were properly placed
by the lower court in that context.
In this case, the ATC argued for confinement
for life, while trial defense counsel, in a lengthy argument following
the ATC, argued for confinement for 12 to 15 years. The members sentenced
appellant to 25 years, a significantly shorter period than the sentence
the ATC advocated. Even assuming a deliberate strategy to indulge in improper
argument, the ATC's effort to "cultivate a severe sentence did not bear
fruit." United States v. Ramos, 42 MJ 392, 397 (1995).
In view of the relative lightness of the sentence
which appellant received, we believe that his substantial rights were not
materially prejudiced by the imperfections in his sentencing hearing. Since
there was no material prejudice, we do not view the improper Golden Rule
argument to have been egregious enough to call for overturning the sentence.
However, it bears reiterating that in cases
of improper argument, each case must rest on its own peculiar facts.
Trial counsel who make impermissible Golden Rule arguments and military
judges who do not sustain proper objections based upon them do so at the
peril of reversal.
Also, in upholding the lower court, we specifically
do not make use of or accept the Government's proposed defense of good
intentions.3 Rather, we
hold that the touchstone of whether an argument is improper is not based
on the calculation of the counsel making it, but is rather the argument
itself viewed in its entire context. What the trial counsel may or may
not have calculated in making an improper argument is not as important
as the actual direction, tone, theme, and presentation of the argument
as it is delivered. Trial counsel must therefore actively take responsibility
upon themselves to avoid all improper argument, rather than to rely on
their own noble intentions as a defense against the potential consequences
of such arguments. The best and safest advocacy will stay well clear of
the "gray zone."
Military judges, as well, should enforce the
letter as well as the spirit of the law by sustaining objections to Golden
Rule arguments. Even though we are not prepared to go so far as to say
that the military judge abused his discretion in this case, the arguments
of counsel should not only be evaluated within their context, but also
for their literal adherence to the standards of proper argument.

Conclusion
The decision of the United States Navy-Marine
Corps Court of Criminal Appeals is affirmed.
FOOTNOTES:
1Violations of Articles
122, 128, 81, 134, and 118, Uniform Code of Military Justice, 10 USC §§
922, 928, 881, 934, and 918, respectively.
2Although
the trial defense counsel did not specifically object to the second quotation
after being overruled on the first, for the purposes of our analysis, we
are treating the initial objection as applying to both of the quotations.
3"The
Government asserts that the touchstone determination of improper argument
should not turn on the words spoken, but on the intent of the prosecutor
in using those arguably offending words." Answer to Final Brief at 6.


EFFRON, Judge, with whom SULLIVAN, Judge, joins
(concurring in part and in the result):
I agree with the majority's prohibition against
"Golden Rule" arguments and with the observation that counsel's argument
must be reviewed in context rather than in isolation. I do not agree with
the majority's view that, in the context of this case, there was no error.
After trial counsel made the first statement
encouraging the jurors to "imagine being" the victim, the defense counsel
objected to the improper argument. The military judge at that point should
have admonished trial counsel about the limits of such argument, rather
than overruling the objection. Given free rein by the military judges
erroneous ruling, trial counsel went on to violate the rule several more
times, asking the members to:



Imagine. Just imagine the pain and the agony.
Imagine the helplessness and the terror, I mean the sheer terror of being
taped and bound, you cant move. Youre being taped and bound almost like
a mummy. Imagine as you sit there and they start binding.



The foregoing passage underscores the import and
context of trial counsels remarks. Repeatedly urging the members to imagine
themselves as the victim reflects trial counsel's request that the members
"judge the issue from the perspective of personal interest," which is impermissible.
United States v. Shamberger, 1 MJ 377, 379 (1976), quoting United
States v. Wood, 18 USCMA 291, 296, 40 CMR 3, 8 (1969).
Under these circumstances, the content and
context of trial counsel's argument was clear, and the military judge erred
by failing to act in light of the defense objection. Nonetheless, although
the facts and circumstances reflected in the majority opinion do not show
an absence of error, I agree that they demonstrate that the error was harmless
in the context of this case. See Art. 59(a), Uniform Code of Military
Justice, 10 USC §859(a).


Home
Page  |  Opinions
& Digest  |  Daily
Journal  |  Scheduled
Hearings
