

   
   
   
   U.S. v. Garren



UNITED STATES, Appellee
v.
Donald L. GARREN, Sergeant
U.S. Army, Appellant
 
No. 99-0418
Crim. App. No. 9700732
 
United States Court of Appeals for the Armed
Forces
Argued January 13, 2000
Decided June 29, 2000
CRAWFORD, C.J., delivered the opinion of
the Court, in which SULLIVAN, GIERKE, and EFFRON, JJ., and COX, S.J., joined.

Counsel
For Appellant: Captain Donald P. Chisholm
(argued); Colonel Adele H. Odegard and Major Scott R. Morris
(on brief); Colonel John T. Phelps II and Captain Kirsten V.
Campbell-Brunson.
For Appellee: Captain Katherine M. Kane
(argued); Colonel
Russell S. Estey, Lieutenant Colonel
Eugene R. Milhizer and
Captain Kelly R. Bailey (on brief).
Military Judge: Larry R. Dean
 


THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.

Chief Judge CRAWFORD delivered the opinion
of the Court.
Contrary to his pleas, appellant was convicted
by an officer and enlisted panel of conspiracy, larceny of a motorcycle,
and false swearing, in violation of Articles 81, 121, and 134, Uniform
Code of Military Justice, 10 USC §§ 881, 921, and 934, respectively.
Appellant was sentenced to a bad-conduct discharge, 5 years confinement,
total forfeitures, and reduction to the lowest enlisted grade. The convening
authority reduced the confinement to 3 years but otherwise approved the
sentence. The Court of Criminal Appeals affirmed the findings and sentence.
49 MJ 501 (1998). We granted review of the following issue:



WHETHER THE TRIAL COUNSEL IMPERMISSIBLY
COMMENTED UPON APPELLANT'S INVOCATION OF
HIS FUNDAMENTAL, CONSTITUTIONAL RIGHT TO
PLEAD NOT GUILTY AT THE BEGINNING OF THE
OPENING STATEMENT, CLOSING ARGUMENT, AND
ARGUMENT ON THE SENTENCE, WHEN THE TRIAL
COUNSEL ARGUED THAT THIS CASE IS ABOUT A
NONCOMMISSIONED OFFICER WHO HAS REFUSED
TO ACCEPT RESPONSIBILITY FOR HIS ACTIONS.



FACTS
In his opening statement, trial counsel said:
"Mr. President, members of the panel, this case is about an NCO who has
refused to accept responsibility for his actions." Also in his opening
statement, trial counsel referred to three separate statements appellant
made to criminal investigators, two on December 2, 1996, and one on December
4, 1996, ranging from denying participation in the larceny to denying any
belief that the motorcycle would be stolen to finally claiming he thought
it was all a joke.
Trial counsel also opened his final argument
with the same theme:


Mr. President, members of the panel. This
morning when we started this case I told you this case was about an NCO
who has failed to accept responsibility for his actions. Thats what the
proof has been.


Further, trial counsels closing argument focused
on appellants lack of credibility, based upon the three statements made
by appellant to criminal investigators, as well as his trial testimony
that he thought his suggestion to steal the motorcycle was a joke.
Finally, trial counsel used the same theme
during his sentencing argument. He opened as follows:


Thank you. Mr. President, members of the
panel, the constant theme in this case has been an NCO who has failed to
accept responsibility for what he has done. Even in his unsworn statement,
he still is not accepting responsibility for what he has done.


The basis for this comment was appellants sentencing
testimony during his unsworn statement in which he said, "[D]eep down in
my heart, I still believe that, you know, I didnt have nothing to do with
this. I really do."

DISCUSSION
In his opening statement, closing argument
on findings, and sentencing argument, trial counsel repeated the theme
that appellant was a noncommissioned officer who would not accept responsibility
for his conduct. Appellant did not object at trial, but now styles trial
counsels theme as inappropriate comment upon appellants constitutional
right to plead not guilty. Appellants argument is premised on his conclusion
that trial counsels argument commented on appellants right to plead not
guilty.
All of the charges upon which appellant was
arraigned related to a stolen motorcycle. The false swearing charge, however,
was based upon appellants three varying statements to criminal investigators.
Thus, from the outset, this trial dealt with appellants lies about his
criminal responsibility.
In the absence of any objection that would
have shed additional light on the meaning and intent of trial counsels
argument, we will evaluate whether appellant has met his burden to establish
that there was plain or obvious error materially prejudicing his substantial
rights. United States v. Powell, 49 MJ 460 (1998).
It is telling that in the findings argument,
trial counsel referred immediately to "proof" that appellant did not take
responsibility for his criminal conduct. The opening statement was fair
comment on what trial counsel expected to show and what he was in fact
required to show to establish guilt beyond a reasonable doubt. The findings
argument simply affirmed that trial counsel met his burden as he promised
in his opening statement.
As the Army Court of Criminal Appeals stated
in its opinion:


We find that the trial counsel's reference
to the appellant "not accepting responsi-
bility for what he has done" during his
opening statement and findings argument
did not constitute an impermissible comment
on the appellant's exercise of his right to
plead not guilty. Rather, the trial counsel's
remarks called attention to the appellant's
inconsistencies in his statements to the
criminal investigators.


49 MJ at 503-04. We agree that trial counsels
opening remarks and final argument, under these facts, did not constitute
improper comment on appellants right to plead not guilty.
As to the sentencing argument, trial counsel
continued to comment fairly upon the evidence, the charges, and appellants
unsworn statement. The Army Court of Criminal Appeals noted that,


[a]dditionally, trial counsel may comment
upon,
and the court may consider, an accused's lack
of remorse in determining an accused's rehabilita-
tive potential if the following foundation
has been laid: "an accused has either testified
or has made an unsworn statement and has either
expressed no remorse or his expression of remorse
can be arguably construed as being shallow,
artificial, or contrived." United States
v. Edwards, 35 MJ 351, 355 (CMA 1992) (cites omitted).


Id. at 504. We agree that trial counsels
sentencing argument that appellant did not accept responsibility was wholly
fair and accurate under the circumstances of this case and did not constitute
improper comment on appellants right to plead not guilty.
The evidence in this case was overwhelming.
The issue centered around appellants statements to investigators as to
whether he was merely joking or really instigating the theft of the motorcycle.
There is adequate reason on the record to reject appellants "joking" explanation.
Thus, we hold that appellants substantial rights were not materially prejudiced,
and there was no plain error.
The decision of the United States Army Court
of Criminal Appeals is affirmed.


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