                         UNITED STATES, Appellee

                                         v.

                      Jamaal A. LEWIS, Specialist
                          U.S. Army, Appellant

                                  No. 10-0484
                         Crim. App. No. 20061070

       United States Court of Appeals for the Armed Forces

                        Argued December 15, 2010

                       Decided February 15, 2011

EFFRON, C.J., delivered the opinion of the Court, in which
BAKER, ERDMANN, STUCKY, and RYAN, JJ., joined.


                                     Counsel


For Appellant: William E. Cassara, Esq. (argued); Captain
Michael E. Korte (on brief); Captain Kristin McGrory.


For Appellee: Captain Madeline F. Yanford (argued); Major
Christopher B. Burgess, Captain Stephen E. Latino, and Captain
Benjamin M. Owens-Filice (on brief).



Military Judge:    Debra L. Boudreau



            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Lewis, No. 10-0484/AR


    Chief Judge EFFRON delivered the opinion of the Court.

    A general court-martial composed of officer and enlisted

members convicted Appellant, contrary to his pleas, of two

specifications of attempted robbery with a firearm, two

specifications of murder while attempting to perpetrate a

robbery, and aggravated assault with a firearm, in violation of

Articles 80, 118, and 128, Uniform Code of Military Justice

(UCMJ), 10 U.S.C. §§ 880, 918, 928 (2006).   The sentence

adjudged by the court-martial and approved by the convening

authority included a dishonorable discharge, confinement for

life, and reduction to the lowest enlisted grade.   The United

States Army Court of Criminal Appeals affirmed.   United States

v. Lewis, No. ARMY 20061070, (A. Ct. Crim. App. May 5, 2010)

(unpublished).

     On Appellant’s petition, we granted review of the following

issue:

     WHETHER APPELLANT’S RIGHT TO DUE PROCESS WAS VIOLATED
     WHEN THE TRIAL COUNSEL ASKED A DEFENSE EXPERT WHETHER
     HE FOUND EXCULPATORY EVIDENCE, AND ARGUED TO THE
     MEMBERS THAT THE DEFENSE EXPERT FAILED TO FIND
     EVIDENCE SUGGESTING ANYONE OTHER THAN APPELLANT
     COMMITTED THE OFFENSES.

     For the reasons set forth below, we hold that the military

judge did not err in permitting the prosecution’s questioning

and argument, and we affirm.




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United States v. Lewis, No. 10-0484/AR


                          I.    BACKGROUND

     The granted issue concerns the prosecution’s cross-

examination of a defense expert witness and the prosecution’s

rebuttal during closing argument.     Part A provides background

concerning the underlying charges and investigation.      Part B

describes the central theories offered by the parties at the

outset of the trial.   Part C describes the circumstances

involving the questioning of the defense expert.      Part D

describes the pertinent aspects of the closing argument.

             A.   THE INCIDENTS AND THE INVESTIGATION

     The charges against Appellant stemmed from two incidents

involving the use of a firearm in the course of attempted

robbery, assault, and murder.    In the first incident, a drive-by

shooting, a civilian suffered a gunshot wound.      The second

incident, an attempted robbery, resulted in the shooting deaths

of a servicemember and a civilian.

     During the subsequent investigation, law enforcement

officials focused on four individuals:       Appellant; the driver of

the car in the first incident involving the drive-by shooting;

the driver of the car in which Appellant fled the scene of the

second incident involving the double homicide; and the owner of

the car in which part of the murder weapon was found.      Appellant

provided a statement to investigators denying culpability.         The

three other individuals made statements implicating Appellant,


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and subsequently testified for the prosecution at trial under

grants of immunity.

     The primary evidence against Appellant developed in the

investigation, later produced at trial, consisted of statements

by these three witnesses describing Appellant’s act of shooting

during the drive-by, Appellant’s expression of intent to rob the

victims of the murder, his efforts to dispose of the weapon in

Puget Sound, and his repeated confessions regarding both events.

Additional evidence included the testimony of eyewitnesses who

supported portions of the lead witnesses’ testimony, and

evidence concerning the DNA of a victim found on the recovered

weapon.

     During the investigation, two of the witnesses led

authorities to the location where the rest of the weapon had

been thrown into Puget Sound.   Special Forces divers recovered

parts of the weapon from that location.    Ballistic evidence

linked the pistol to both shootings.   The Government obtained

evidence showing that Appellant had purchased the weapon and

used it at a firing range at least once.

                      B.   OPENING STATEMENTS

     At the beginning of the trial, the military judge advised

the panel that the Government bore the burden of proving the

accused’s guilt by legal and competent evidence.   The military

judge asked the members of the panel, “Does each member


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United States v. Lewis, No. 10-0484/AR


understand that the burden of proof to establish the accused’s

guilt rests solely upon the prosecution and the burden never

shifts to the defense to establish the accused’s innocence?”

The military judge then followed up by asking:   “Does each

member understand, therefore, that the defense has absolutely no

obligation to present any evidence or to disprove the elements

of the offenses?”   The panel members responded in the

affirmative to both questions.

     The prosecution’s opening statement summarized the

evidence, noting that the panel would hear testimony evidence

from the investigators, forensic experts, and eyewitnesses.    The

Government emphasized it would rely upon the recovered murder

weapon and incriminating statements made by Appellant to other

witnesses.

     Defense counsel emphasized in his opening sentence that the

defense would not only challenge the sufficiency of the

Government’s proof, but also that “we are going to prove to you

that Specialist Lewis is not guilty of these offenses.”   Defense

counsel added:    “As the judge explained to you, we don’t have a

burden, but we are going to bring forward evidence and we are

going to prove to you that he is not guilty.”

     After stating that the defense would demonstrate the bias

and unreliability of the prosecution’s witnesses, defense

counsel stated:   “We’re then going to talk about the police


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United States v. Lewis, No. 10-0484/AR


investigation that was done in this case.”    After noting that

“the police did some good police work,” he added:    “But the

evidence is going to make very clear that they did some very,

very poor work as well.”   At that point, he summarized the

defense view of deficiencies in the investigation, asserting

that the police focused unduly on Appellant without examining

other possibilities, that they performed an incomplete

examination of the alleged “getaway car,” and that they

performed forensic tests only on Appellant and his clothes but

not on any of the other participants, and that fingerprints were

checked only against Appellant and not against the others.

Defense counsel again emphasized:     “So we’re going to show you,

through evidence, the holes and mistakes and faulty pointing --

faulty direction of the police investigation.”

     In the balance of the opening statement, defense counsel

promised to provide “some affirmative evidence of [their] own.”

Among other matters, counsel discussed the lack of blood, gun

residue, or DNA tied to Appellant.

               C.   EXAMINATION OF THE EXPERT WITNESS

     The prosecution’s case proceeded as outlined in trial

counsel’s opening statement.   Defense counsel subjected the

prosecution’s law enforcement witnesses to vigorous cross-

examination about conduct and results of their investigative

activities.   Throughout the trial, defense counsel attacked the


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United States v. Lewis, No. 10-0484/AR


credibility of the chief Government witnesses and seized on the

lack of direct physical evidence, arguing that the Government’s

investigation had focused on Appellant to the exclusion of other

potential suspects and was therefore unreliable.

     After the prosecution rested, the defense presented its

case, including testimony in furtherance of the promise in

defense counsel’s opening statement to provide affirmative

evidence of Appellant’s innocence.   The defense presentation

included testimony from James Pex, offered by the defense as a

qualified expert on crime scene investigation, blood spatter

analysis, and various forensic laboratory procedures.

     The testimony from Mr. Pex focused primarily on the

components of proper investigative procedures.   He also

testified concerning the results of his own examination of the

evidence, including the vehicles in the case and the victim’s

clothing.   He provided detailed testimony regarding his

evaluation of the blood spatter in the murder victims’ vehicle.

His testimony included numerous slides containing his views on

the appropriate steps in an investigation and his independent

findings with respect to the evidence in the case.

     The prosecution’s cross-examination of Mr. Pex included the

following question:   “During the course of your investigation,

you didn’t find anything that you would consider exculpatory of

Specialist Lewis, did you?”   After Mr. Pex answered in the


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United States v. Lewis, No. 10-0484/AR


negative, the prosecution then asked:    “Conversely, you didn’t

find anything that would make you think that somebody else was

the actual shooter?”   Mr. Pex responded:   “I couldn’t say one

way or another.”

     Following examination by the parties, the military judge

presented a panel member’s question to Mr. Pex concerning his

examination of the vehicles involved in the incident.     After Mr.

Pex described the vehicles that he had examined, the military

judge narrowed the scope of vehicles at issue and asked whether

Mr. Pex had found anything of “evidentiary significance” in the

vehicles.   Mr. Pex described his investigation of the vehicles

and answered the question in the negative.      The military judge

then asked the panel member whether the interchange had answered

the member’s question, and the member replied in the

affirmative.   The defense counsel did not object to the

questions from the prosecution, the panel member, or the

military judge.

                       D.   CLOSING ARGUMENTS

     The prosecution’s closing statement focused on the evidence

presented during the Government’s case.     The prosecution did not

offer any pertinent comments regarding the granted issue.

     Defense counsel, during closing argument, reminded the

panel that his opening statement had promised that the defense

would make an affirmative showing of Appellant’s innocence.     He


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United States v. Lewis, No. 10-0484/AR


further assured the panel that the defense had delivered on that

promise during its presentation of the evidence.    Early in the

closing argument, defense counsel told the panel, “Listen, we

set out to prove to you that Specialist Lewis is not guilty.       I

believe we did that and I’m going to explain to you how . . . .”

Defense counsel then provided a detailed critique of the

prosecution’s case, focusing on witness credibility,

inconsistencies, and the lack of direct physical evidence.

After stating that “the government has failed,” defense counsel

then said, “So what ought to happen is I ought to just be done,

just shut up now, it’s been long enough and you probably all

would appreciate that.”    He decided, however, to not rest on his

critique of the prosecution’s case, adding, “But I can’t help

myself.    I’m going to go on.   So brace yourselves.”

        He followed this by stating that it would be sufficient for

the panel to conclude that the prosecution had not met its

burden, and that it was the panel’s duty to do so.       Then he

said:

        But listen, I want to give you more. Some
        affirmative evidence of innocence. Some
        affirmative evidence of innocence. [Sic] Because
        you see, I could just -- like I said before, I
        could just keep my mouth shut. The government’s
        case has already failed, but here’s -- we’re
        going to go on the offense now and try to give
        you something to hang you hats on. We’re going
        to try. . . . I mean, we’re trying to give you
        some affirmative evidence of innocence.



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United States v. Lewis, No. 10-0484/AR

Counsel proceeded to discuss evidence that the defense

highlighted as demonstrating deficiencies in the investigation.

He also pointed to the lack of DNA, fingerprints, or other

physical evidence linking Appellant to the crimes, stating,

“[t]he absence of any link is significant evidence in and of

itself.”   He added that the Government had used numerous

forensic methods to examine the accused, but had failed to

examine other potential suspects with the same rigor.    He then

stated:

     They looked at Lewis in every discipline that
     they understand and they found nothing. They did
     not look at these other folks. They didn’t even
     make pictures of them. That is affirmative
     evidence of innocence, the evidence that was
     transferred from the crime scene to the killer
     was never found because it was never looked for
     in the right place.

     On rebuttal, the prosecution offered an observation

regarding the testimony from Mr. Pex, the defense’s expert

witness.   Trial counsel stated, “The defense’s own witness,

their expert witness, Mr. Pex went through every single piece of

evidence that [law enforcement officials] had processed looking

to find anything that would be exculpatory.”   Counsel then

argued, “After his long process, he did not find anything that

would exclude [Appellant] as the shooter.”   Defense counsel

offered no objection.




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United States v. Lewis, No. 10-0484/AR

     After closing arguments, the military judge gave the

following instruction:    “The burden is on the prosecution to

prove each and every element of each offense beyond a reasonable

doubt.”   The military judge further instructed the jury that

“the burden of proof to establish guilt of the accused beyond a

reasonable doubt is on the government.     The burden never shifts

to the accused to establish innocence or to disprove the facts

necessary to establish each element of each offense.”    Appellant

did not request any other instructions regarding the burden of

proof or prosecutorial comment.



                            II.   DISCUSSION

     On appeal, Appellant contends that trial counsel’s cross-

examination of Mr. Pex and his closing statement both suggested

that the defense bore the burden of proof to demonstrate that he

was not guilty, thereby violating the Due Process Clause of the

Fifth Amendment.   In support of this argument, Appellant

contends that the questions posed by the military judge to Mr.

Pex compounded the problem.

     The issue of whether such questioning and comment would

constitute a due process violation involves a question of law

that we review de novo.   See United States v. Moran, 65 M.J.

178, 181 (C.A.A.F. 2007).    In the absence of defense objection,

we review for plain error.    United States v. Maynard, 66 M.J.


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United States v. Lewis, No. 10-0484/AR

242, 244 (C.A.A.F. 2008).   Under the plain error standard an

appellant must show, “(1) an error was committed; (2) the error

was plain, or clear, or obvious; and (3) the error resulted in

material prejudice to substantial rights.”   Id.   “An error is

not ‘plain and obvious’ if, in the context of the entire trial,

the accused fails to show the military judge should be faulted

for taking no action even without an objection.”   United States

v. Burton, 67 M.J. 150, 153 (C.A.A.F. 2009) (quoting Maynard, 66

M.J. at 245) (quotation marks omitted).

     Under the Due Process Clause of the Fifth Amendment, the

government must prove a defendant’s guilt beyond a reasonable

doubt.   United States v. Czekala, 42 M.J. 168, 170 (C.A.A.F.

1995); see also Rule for Courts-Martial (R.C.M.) 920(e)(5)(A)

(providing that the “accused must be presumed to be innocent

until the accused’s guilt is established by legal and competent

evidence beyond a reasonable doubt”).

     An improper implication that the defendant carries the

burden of proof on the issue of guilt constitutes a due process

violation.   United States v. Mason, 59 M.J. 416, 424 (C.A.A.F.

2004).   The limitation on comments regarding the burden of proof

does not apply, however, in circumstances where the defense has

the burden of proof on a particular matter, such as an alibi

defense.   See United States v. Webb, 38 M.J. 62, 66 (C.A.A.F.

1993).   Likewise, the limitation on comments cannot be used by


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United States v. Lewis, No. 10-0484/AR

the defense as both a shield and a sword.   See United States v.

Carter, 61 M.J. 30, 33 (C.A.A.F. 2005) (noting that “[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”) (citing United States

v. Gilley, 56 M.J. 113, 120-21 (C.A.A.F. 2001)).

     When determining whether prosecutorial comment was

improper, the statement “must be examined in light of its

context within the entire court-martial.”   Id.    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.”     Gilley,

56 M.J. at 121 (citation and quotation marks omitted).

      In the present case, from the outset of defense counsel’s

opening statement, the defense articulated a strategy expressly

promising an affirmative showing of innocence.    In that regard,

defense counsel assured the panel that the defense would go

beyond demonstrating that the Government had failed to meet its

burden of proof, and that the defense would make an affirmative

showing of Appellant’s innocence.    See supra Part I.B.

     As part of that strategy, the defense presented the

testimony of an expert witness who criticized the Government’s

investigation.   In addition, the defense’s expert testified as


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United States v. Lewis, No. 10-0484/AR

to the results of his own investigation and analysis of

important items of evidence.   See supra Part I.C.   The defense

posture and the evidence opened the door to exploration of these

matters.   In the context of the defense presentation of evidence

from the Pex investigation, the prosecution’s questions to Mr.

Pex about the results of his investigation fell well within the

range of permissible cross-examination.   The question from the

panel member, and the ensuing question posed by the military

judge both reflected reasonable inquiries based upon the

testimony from Mr. Pex about his investigation of the vehicles.

       During closing arguments, defense counsel presented a

closing statement consistent with the strategy outlined in the

opening argument and addressed in the defense evidence.     The

closing argument from defense counsel expressly stated that the

defense not only had demonstrated the Government’s failure to

meet its burden, but also that the defense had provided the

panel with “affirmative evidence of innocence.”   See supra Part

I.D.

       On appeal, the defense asks us to view the defense

statements at trial as nothing more than inartful commentary on

the Government’s failure to meet its burden of proof which, in

that posture, did not open the door to the prosecution’s

questions and comments.   In this case, however, we are not

dealing with a stray comment by the defense.   Here, the defense


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United States v. Lewis, No. 10-0484/AR

counsel chose to open the case with a promise of affirmative

evidence.   After the prosecution completed its case, the defense

sought to fulfill that promise by presenting evidence that

included testimony from an expert regarding his own

investigation.

     Defense counsel expressly reminded the members in the

closing statement that the defense had presented more than a

critique of the Government’s case by providing “affirmative

evidence of innocence.”

     In summary, the prosecution could rely on the defense

posture and the evidence presented during the defense case as

providing the basis for the questions posed to the expert

witness.    The military judge also could rely on those matters as

the basis for posing questions on his own and from the panel.

Likewise, during rebuttal of closing argument, the prosecution

could rely on the defense counsel’s closing argument, which

highlighted the earlier defense presentation, as providing the

basis for the comments offered by the prosecution in rebuttal.

     In evaluating these matters with respect to the granted

issue, which involves the burden of proof, we also take into

account the instructions provided by the military judge.    Here,

the military judge provided the members with appropriate

guidance and instructions at two important points in the trial.

He advised the members at the outset of trial that the


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United States v. Lewis, No. 10-0484/AR

Government bore the burden of proving the accused’s guilt by

legal and competent evidence, and that the burden would never

shift to the accused.   He later provided a similar instruction

after closing arguments.    See supra Parts I.A., I.D.

      Under the circumstances of this case, the military judge

was not obligated to treat the prosecution’s actions as

objectionable and intervene on his own motion.   Accordingly,

Appellant has not met his burden of establishing error, much

less plain error.



                           III.   CONCLUSION

     The decision of the United States Army Court of Criminal

Appeals is affirmed.




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