                       UNITED STATES, Appellee

                                    v.

                  Manasses A. PAIGE, Lance Corporal
                     U.S. Marine Corps, Appellant

                              No. 08-0805

                       Crim. App. No. 200600587

       United States Court of Appeals for the Armed Forces

                        Argued March 17, 2009

                         Decided July 1, 2009

ERDMANN, J., delivered the opinion of the court, in which
EFFRON, C.J., and BAKER, J., joined. STUCKY, J., filed a
separate opinion dissenting in part and concurring in the
result, in which RYAN, J., joined in Part II.

                                 Counsel


For Appellant:    Captain Kyle R. Kilian, USMC (argued).

For Appellee: Lieutenant Commander Paul D. Bunge, JAGC, USN
(argued); Lieutenant Timothy H. Delgado, JAGC, USN (on brief);
Brian K. Keller, Esq.

Military Judge:   Daniel J. Daugherty


       This opinion is subject to revision before final publication.
United States v. Paige, No. 08-0805/MC

     Judge ERDMANN delivered the opinion of the court.

     Lance Corporal Manasses A. Paige entered a not guilty plea

to the offense of rape.    A general court-martial with members

found him guilty.1   At trial, the Government’s theory was that

the victim was incapable of consent as a result of alcohol

intoxication.   Both parties presented witnesses to describe the

victim’s condition on the night of the incident.   During closing

argument, trial counsel argued that evidence of the victim’s

condition at the time of the rape and immediately following the

rape was uncontradicted.   Arguably, Paige himself was the only

person who might have had information to contradict the

Government’s evidence on the victim’s condition during the

relevant time period, and Paige did not testify.   Trial counsel

also argued that to establish a mistake of fact defense as to

consent, Paige would have to “assert that his mistake was

honest.”

     “Members of the armed forces, like their civilian

counterparts, may not be compelled to incriminate themselves in

a criminal case.”    United States v. Carter, 61 M.J. 30, 33

(C.A.A.F. 2005) (citing U.S. Const. amend. V; Article 31(a),

Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 831(a)

(2000)).   A military accused has the right not to testify, and

1
  Paige was also convicted, consistent with his pleas, of
dereliction of duty, disrespecting a noncommissioned officer,



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United States v. Paige, No. 08-0805/MC

“trial counsel may not comment directly, indirectly, or by

innuendo, on the fact that an accused did not testify in his

defense.”   United States v. Mobley, 31 M.J. 273, 279 (C.M.A.

1990) (citing Griffin v. California, 380 U.S. 609, 615 (1965)).

We granted review to consider whether trial counsel’s remarks

amounted to an improper comment on the fact that Paige exercised

his Fifth Amendment right to not testify in his defense.

     We conclude there was no plain error in trial counsel’s

references to uncontradicted evidence during closing argument.

We further conclude that while trial counsel committed plain and

obvious error in arguing that to establish a mistake of fact

defense as to consent, Paige has to “assert that his mistake was

honest,” this error was harmless beyond a reasonable doubt.

Therefore we affirm the decision of the United States Navy-

Marine Corps Court of Criminal Appeals.   United States v. Paige,

No. NMCCA 200600587, 2008 CCA LEXIS 223, 2008 WL 2620094 (N-M.

Ct. Crim. App. July 1, 2008) (unpublished).2




misusing e-mail, assault, and breaking restriction. This appeal
only involves the rape conviction.
2
  On appeal before the Court of Criminal Appeals, Paige raised
ten assignments of error. See Paige, 2008 CCA LEXIS 223, at *2,
2008 WL 2620094, at *1. The lower court ordered a hearing
pursuant to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411
(1967), to address Paige’s allegations of ineffective assistance
of counsel. Id. The lower court ultimately found
that all Paige’s claims, including the ineffective assistance of




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United States v. Paige, No. 08-0805/MC

                             BACKGROUND

      At trial, Paige stipulated to the fact that he had

intercourse with a female private, Private First Class (Pfc) C.

The incident occurred in Pfc C’s room at the barracks after

several hours of drinking.   Paige also stipulated to the fact

that one hour after the incident Pfc C’s blood alcohol level was

292 mg/DL.   Relying on testimony of witnesses who described Pfc

C’s condition before, during, and after the incident, as well as

the testimony of a substance abuse expert, the Government’s

theory was that Pfc C was too intoxicated to be capable of

consent.   The defense, also relying on the testimony from

witnesses and substance abuse experts, raised the possibility

that Pfc C cycled through different states of consciousness.

Paige’s defense was that the Government failed to prove lack of

consent.   The defense also maintained that the defense of

mistake of fact as to consent applied.

1.   Trial Testimony Regarding Pfc C’s Condition

      During the trial, the Government called Pfc C as a witness.

She testified that the last thing she remembered before waking

up in the hospital was playing a drinking game with Paige.    Pfc

C said that she did not remember having sex with Paige and

denied that she consented to sex.



counsel claim, lacked merit. Id. at *17-*18, 2008 WL 2620094,
at *6. The lower court summarily disposed of the issue now
before us. Id.

                                 4
United States v. Paige, No. 08-0805/MC

     A number of individuals who observed and interacted with

Pfc C before and after the rape testified about her condition

and appearance.   The Government’s witnesses included: Lance

Corporal Richardson, one of Pfc C’s roommates; Lance Corporal

Hobbs and Lance Corporal Creaser, two Marines who lived in the

barracks; two corpsmen who responded to the scene; and a

military policeman who responded to the scene.   The defense

witnesses who described Pfc C’s condition included Lance

Corporal Coon, Pfc C’s other roommate, and the emergency room

doctor who treated Pfc C.3

     Lance Corporal Coon described what happened in the hours

before the intercourse.   Coon testified that she and Pfc C were

in their barracks room with Paige for about two to three hours.

Initially they were just talking and playing video games.   At

some point Paige went out and came back with alcohol.   Pfc C and

Paige started playing a drinking game.   After Pfc C consumed one

beer and an unspecified amount of liquor, the three of them went

to the barracks’ smoke pit for about fifteen minutes.

     Coon testified that when they were at the smoke pit Pfc C

was hugging everybody, talking to a lot of different people,

laughing, and giggling.   She testified that Pfc C stumbled from

3
  Other witnesses testified on matters not related to personal
observations of Pfc C’s condition that night, such as the
investigating officer who took Richardson’s statement; a witness
on Richardson’s character for truthfulness; and a servicemember



                                 5
United States v. Paige, No. 08-0805/MC

person to person and needed help to stand.   When they left, Coon

and Paige helped Pfc C into the building, “dragging [her] up the

steps.”   Coon indicated that Pfc C’s speech was not clear and

she was “[k]ind of mumbling.”    Coon explained that when they got

to the third deck, “I was on one side and Paige was on the other

side and she was leaning on us . . . we basically had to drag

her . . . .”

     Lance Corporal Hobbs provided another perspective as to Pfc

C’s demeanor at the smoke pit.   Hobbs testified that Pfc C was

constantly moving when he saw her, although he did not notice

any lack of balance or see any stumbling.    He also confirmed

that she hugged some friends, was constantly laughing and

giggling but was coherent when she spoke.    In describing Pfc C’s

exit from the smoke pit, Hobbs testified that she walked about

fifteen feet to the barracks and once she got to the stairs,

“[s]he stumbled up the first set of steps and used the railing

and one other Marine as assistance getting up those back steps.”

     While Coon and Pfc C were at the smoke pit, their roommate

Lance Corporal Richardson returned to their room.   She found it

in disarray with a liquor bottle, shot glasses and a six pack on

the floor.   As Coon and Pfc C were underage, Richardson went

looking for them to find out what was going on.




who had interacted with Paige but not Pfc C. Both sides
presented testimony from substance abuse experts.

                                  6
United States v. Paige, No. 08-0805/MC

     Coon testified that when she and Paige brought Pfc C to the

room they laid her “on her rack,” which was the lower level of

the bunk beds in her room.    Coon agreed with trial counsel’s

characterization during cross-examination that Pfc C was quiet,

that her body looked “lifeless” and “limp,” that she had no

movement in her arms, legs, or hips, and that Pfc C could not

pick up her head to turn and look at her.

     Richardson returned to the room and encountered Coon, Paige

and Pfc C.4    Richardson testified that Pfc C was “lifeless,”

“just laying there.”    She said that “[h]er eyes were just rolled

back in her head and she was just sprawled out and there’s no

movement”; “[h]er eyes were just fluttering and she was . . .

mumbling [and] not making any sense . . . .”    At Richardson’s

request Paige left the room.    Richardson then left to talk with

a friend, Lance Corporal Creaser, who lived across the hall.

Coon testified that she started to clean the room and left to

take the trash to the dumpster.    At that point Pfc C was alone

in the room.

     Richardson testified that she was gone about five minutes

and when she returned to her room, she found Paige on top of Pfc

C having intercourse with her.    Richardson told him to get off



4
  Richardson testified that when she first returned to the room
Coon was there but she did not remember whether Pfc C was there.
She went to take a shower and when she returned, Coon and Paige
were in the room and Pfc C was laying on her rack.

                                  7
United States v. Paige, No. 08-0805/MC

and he said something like “nah, nah, it’s cool.   She wants it,

she said she wants it.”   Richardson described Pfc C as “just

lifeless,” “in really bad shape and her eyes rolled back in her

head.”    She testified that Pfc C did not react when she walked

into the room or when Paige got off her.   In describing Pfc C’s

condition, Richardson testified that “she was just laying there

limp the whole time with her arms out to her side . . . she

wasn’t moving at all.”    Richardson testified that Pfc C’s pants

were lowered to her knees and she made no attempt to pull her

pants up or roll over.    Richardson yelled at Paige to get out.

He fumbled to get his pants up and ran out of the room.

Richardson called the duty NCO to report the incident and then

went down to the duty desk to make sure the military police were

coming.

     Coon testified that she had been gone from the room for

about five to ten minutes and when she returned “[Pfc C] was on

her bed and Richardson was on the phone.   [Pfc C] had one pant

leg off and she had one boot off.”    Coon testified that Pfc C

was “[n]ot responsive.    She was more like in her own little

world . . . off in a daze.”   Coon indicated that Pfc C had not

moved from the spot that she was in before Coon left to go to

the dumpster, that Pfc C was exposed and not moving, and that

Pfc C “was dazing off into space” as Coon tried to put her




                                  8
United States v. Paige, No. 08-0805/MC

clothes back on her.   Coon also testified that she “had to drag”

Pfc C to the bathroom at Pfc C’s request.

     When Pfc C was informed that the military police had

arrived she became combative and violent and gave Coon a bloody

nose as she swung her elbows around.   Lance Corporal Creaser saw

Pfc C stumbling down the hall and restrained her until the

corpsmen arrived.   The various witnesses testified that Pfc C

looked “[j]ust like a rag doll,” that she was drooling,

mumbling, slurring words and obscenities, and not making any

sense.   There was testimony that her eyes were slightly rolled

back in her head, that her head was straight down and her hair

was in her face, that she was bobbing her head, that she could

not hold her head up or stand by herself, and that the corpsman

could not “get a real good response” to his questions.

     One corpsman testified that during the ambulance ride, Pfc

C was not coherent.    When they stimulated her physically or

verbally she would respond with a head turn or opening her eyes.

Her verbal responses were “just cursing” and her speech was

“real slurred.”   On cross-examination, however, the corpsman

testified that he checked the box on a form turned over to the

hospital indicating that she was “responsive.”

     The second corpsman testified that for the majority of the

ride Pfc C was unresponsive and had vomit coming out of her

mouth.   When they tried to wake up Pfc C using verbal stimuli



                                  9
United States v. Paige, No. 08-0805/MC

she did not usually respond.   When they administered painful

stimuli “she would just kind of slur out the cuss word and . . .

then she’d just try and go back to sleep.”   She became more

responsive at the hospital as medical personnel started treating

her.   At that time, Pfc C was cursing at everyone.

       The emergency room doctor testified that Pfc C answered

questions intermittently, telling the doctor “her name and that

she probably knew where she was and the year that it probably

was at that point.”   The doctor testified that he rated Pfc C at

eleven on the Glasgow Coma Scale because she was not

spontaneously opening her eyes and it would take painful stimuli

to arouse her.   The rating for a normal person is fifteen, while

the rating for a typical drunk person is around thirteen.5

2.   Trial Counsel’s Closing Argument

       During closing, trial counsel argued that Pfc C was

incapable of consent.   He recounted the trial testimony

describing Pfc C’s condition from the time she began drinking in

the barracks room with Paige and Coon until she was being

treated by the corpsmen outside the bathroom.   Trial counsel

characterized the moments immediately before and immediately

after the rape as “crucial time periods.”    He emphasized that

Richardson was an eyewitness to the rape itself.


5
  The Glasgow Coma Scale is a measurement that physicians use to
reflect the mental status of a patient, based on such things as
motor function, verbal communications and eye movement.

                                 10
United States v. Paige, No. 08-0805/MC

     During his argument, trial counsel characterized facts and

evidence related to Pfc C’s appearance during these crucial time

periods as “uncontradicted.”   He stated:

          These are what the facts are that you have in
     front of you. You don’t have -- and I say these are
     uncontradicts [sic] facts.

          . . . They’re uncontradicted because there’s not
     someone else there saying that’s not what was going
     on. You don’t have something confronting Lance
     Corporal Richardson and saying, uh-uh. She wasn’t in
     her rack, she was sitting up. I walked by and I saw
     it, she was looking out the window, they were having a
     conversation, or they were dry humping even.

          There’s is [sic] nothing like that. You’ve got
     Richardson in the room arms are limp and lifeless, no
     movement of her hips, head, legs; and when the accused
     gets off of her, she remains exposed. So there’s
     really -- there’s a few critical -- there’s sort of
     three parts to this: What was she like just before
     the rape? What was she like during the rape? What
     was she like immediately after the rape?

          . . . .

          Gentleman, Richardson was there, and the farther
     you get away from the time that he is humping her, the
     farther you get away from it, the more –- other
     stimuli you start to get and the weaker any sort of
     evidence from the Monday morning quarterback and say
     she wasn’t alert.

          Uncontradicted evidence at the time of the rape.
     Uncontradicted evidence moments after the rape; and
     this isn’t just Richardson, Coon is saying this too.

     Trial counsel showed slides to the members, two of which

used the concept of “uncontradicted evidence.”    One read:

     UNCRADICTED [sic] EVIDENCE AT THE TIME OF THE RAPE

          •   “EYES ROLLED IN BACK OF HER HEAD”



                                 11
United States v. Paige, No. 08-0805/MC

          •    NO REACTION AT ALL WHEN RICHARDSON WALKS
               IN OR ACCUSED DISMOUNTS
          •    “ARMS ARE LIMP, LIFELESS”
          •    “NO MOVEMENT OF HIPS, HEAD, LEGS”
          •    REMAINS EXPOSED
          •    “LIKE A RAG DOLL”

Another slide read:

     UNCRADICTED [sic] EVIDENCE MOMENTS AFTER THE RAPE

          •    VICTIM REMAINS EXPOSED
          •    VICTIM REMAINS MOTIONLESS
          •    VICTIM NOT COMMUNICATING CLEARLY
          •    “LIKE A RAG DOLL”

     During his argument in rebuttal, trial counsel maintained

that there were three “centers of gravity” -- the time

immediately before the rape as witnessed by Richardson and Coon,

the rape, which was witnessed in part by Richardson, and the

time immediately after the rape when Richardson and Coon both

confirmed she was unresponsive.    Trial counsel argued that in

all three centers of gravity Pfc C was the same:     “unresponsive,

she’s in her rack in the same position, she ain’t moving.     She’s

not communicating coherently.    She doesn’t know what is going

on; . . . .”

     Trial counsel also talked about how Richardson and Coon

were the “last eyes” on Pfc C and “the evidence shows it wasn’t

long” until the rape.    Trial counsel stated:    “Her center of

gravity is going to be the evidence in front of you and this is

the evidence, uncontradicted evidence of what her state was like

last eyes on just before the rape.”


                                  12
United States v. Paige, No. 08-0805/MC

     During rebuttal, trial counsel also addressed the mistake

of fact defense argued by defense counsel.   He stated:

          If the accused had a honest and mistaken belief
     that [Pfc C] consented to the act of sexual
     intercourse, he is not guilty of rape. If the belief
     was reasonable. So step one this guy has to honestly
     believe that -- he’s got to honestly believe and
     assert that his mistake was honest.

          I’ll leave that to you, gentlemen. My focus is
     going to be on the reasonableness of it. . . .

     Defense counsel did not object to any of the comments made

by trial counsel during his closing argument or to any of the

slides.    The military judge instructed the members:   “The

accused has an absolute right to remain silent.   You will not

draw any adverse inference to the accused from the fact that he

did not testify as a witness.   You must disregard the fact that

the accused has not testified.”

                             DISCUSSION

     The privilege against self-incrimination provides an

accused servicemember with the right not to testify at his

court-martial and precludes comment by trial counsel on his

silence.   U.S. Const. amend. V; Article 31(a), UCMJ; see Carter,

61 M.J. at 33.   Nevertheless, it is permissible for trial

counsel to comment on the defense’s failure to refute government

evidence or to support its own claims.    See Carter, 61 M.J. at

33; cf. Rule for Court-Martial (R.C.M.) 919(b) (“Arguments may

properly include reasonable comment on the evidence in the case,



                                  13
United States v. Paige, No. 08-0805/MC

including inferences to be drawn therefrom, in support of a

party’s theory of the case.”).

     As we have repeatedly recognized:   “A constitutional

violation occurs only if either the defendant alone has the

information to contradict the government evidence referred to or

the [members] ‘naturally and necessarily’ would interpret the

summation as comment on the failure of the accused to testify.”

Carter, 61 M.J. at 33 (quoting United States v. Coven, 662 F.2d

162, 171 (2d Cir. 1981) (quotation marks omitted)); see also

United States v. Webb, 38 M.J. 62, 66 (C.M.A. 1993) (quoting

same).6   We examine a prosecutorial comment “within the context

of the entire court-martial.”    United States v. Baer, 53 M.J.

235, 238 (C.A.A.F. 2000).

      Paige contends that trial counsel’s argument that there

was uncontradicted evidence “at the time of the rape” and

“moments after the rape” amounted to constitutional error.

According to Paige, because Pfc C testified that she could not

remember events immediately before, during, or after

penetration, Paige was the only person who could testify as to



6
  The Discussion to R.C.M. 919 suggests a similar rule: “Trial
counsel may not argue that the prosecution’s evidence is
unrebutted if the only rebuttal could come from the accused.”
Although the Discussion is non-binding, we have previously
recognized that this statement reflects applicable judicial
precedent. See Carter, 61 M.J. at 33 (citing Manual for Courts-
Martial, United States, Analysis of the Rules for Courts-Martial
app.21 at A21-66 (2002 ed.)).

                                 14
United States v. Paige, No. 08-0805/MC

Pfc C’s physical and mental state just prior to and at the time

of penetration and was also the only person who could contradict

the testimony of Richardson, who saw Paige and Pfc C having

sexual intercourse.   Paige also contends that trial counsel’s

argument that Paige has “got to honestly believe and assert that

his mistake was honest” followed by the comment, “I’ll leave

that to you, gentlemen,” is a clear reference to his failure to

testify.

     The Government responds that the entire court-martial was

focused on Pfc C’s demeanor, her level of intoxication, and

whether she was coherent at the time of the rape.   The

Government contends that this case involved a number of

witnesses who observed Pfc C just before the rape and

immediately after the rape, as well as an eyewitness to the rape

itself.    According to the Government, when examined in the

context of the entire court-martial, trial counsel’s comments

were directed at the competing evidence introduced by the

parties and the defense’s failure to support its own claims.

They were fair comment on the strength of the Government’s case

and the failure of the defense to rebut the Government’s

evidence through its witnesses.

     Whether trial counsel’s comments improperly invoked Paige’s

constitutional right not to testify is a question of law that we

review de novo.   See United States v. Moran, 65 M.J. 178, 181



                                  15
United States v. Paige, No. 08-0805/MC

(C.A.A.F. 2007).   In this case, defense counsel did not object

to any of trial counsel’s comments, so we review for plain

error.   See Carter, 61 M.J. at 33.   Paige meets the plain error

standard if he establishes that “‘(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.’”    United

States v. Maynard, 66 M.J. 242, 244 (C.A.A.F. 2008) (quoting

United States v. Hardison, 64 M.J. 279, 281 (C.A.A.F. 2007)).

“Once [Paige] meets his burden of establishing plain error, the

burden shifts to the Government to convince us that this

constitutional error was harmless beyond a reasonable doubt.”

Carter, 61 M.J. at 33 (citing United States v. Carpenter, 51

M.J. 393, 396 (C.A.A.F. 1999)).7


7
  As to the intersection of the plain error standard and the
constitutional test for prejudice, the dissent asserts that “the
majority incorrectly shifts the burden of persuasion from
Appellant to the Government.” United States v. Paige, ____ M.J.
____ (6) (Stucky, J., dissenting in part and concurring in the
result, joined in Part II by Ryan, J.). The standard that we
apply here is the constitutional standard as it has been
articulated by this court in plain error cases since United
States v. Powell, 49 M.J. 460, 465 n.* (C.A.A.F. 1998). See,
e.g., United States v. Harcrow, 66 M.J. 154, 160 (C.A.A.F.
2008); United States v. Brewer, 61 M.J. 425, 432 (C.A.A.F.
2005); United States v. Carpenter, 51 M.J. 393, 396 (C.A.A.F.
1999); cf. United States v. Davis, 64 M.J. 445, 449 (C.A.A.F.
2007) (noting that “Article 59(a) is applied through standards
of review and appellate burdens tailored to the issue on appeal”
and that “[i]f the error is of constitutional dimension . . . the
government must show that the error was harmless beyond a
reasonable doubt”). In this case, the granted issue does not
involve a challenge to the application of the constitutional
test for prejudice in the context of plain error review, nor
have the parties raised it in their briefs or argument before

                                16
United States v. Paige, No. 08-0805/MC

       In this case, there were numerous witnesses who testified

as to Pfc C’s condition while she was in the smoke pit before

the intercourse and while she was in the hallway after the

intercourse.    Moreover, there were two witnesses who testified

as to Pfc C’s condition during what trial counsel characterized

as the “crucial time periods” in the case -- immediately before

and immediately after intercourse.     One of these witnesses,

Richardson, testified for the Government; the other, Coon,

testified for the defense.    Richardson was the only witness to

testify about the act of intercourse itself and she was not

present at its onset.

1.    Whether the Defendant Alone Had the Information to
      Contradict the Government’s Evidence

a)    Time Period When Paige and Pfc C Were Alone in the Room

     The record does not support Paige’s assertion of error that

trial counsel improperly argued that there was uncontradicted

evidence “just prior to and at the instance of penetration.”

While Paige was the only person who could testify as to Pfc C’s

condition just prior to and at the instance of penetration,

trial counsel’s closing argument did not focus on the time

period when Pfc C and Paige were alone.    Trial counsel’s

comments were directed to the period of time when either

Richardson or both Richardson and Coon were in the room.     The



this court. As such, consideration of this issue is best left
for another day.

                                  17
United States v. Paige, No. 08-0805/MC

Government did not put on any evidence describing Pfc C’s

condition at the point of penetration and none of trial

counsel’s references to uncontradicted evidence can be

attributed to that moment in time.

b)   Time Period When Richardson Was in the Room with Paige and
     Pfc C

      Trial counsel did argue that Richardson’s testimony as to

what she observed after she returned to the room was

uncontradicted, as did the slide entitled “UNCRADICTED [sic]

EVIDENCE AT THE TIME OF THE RAPE.”   While Coon returned to the

room minutes later, for that brief period of time when

Richardson was alone with Paige and Pfc C, Paige was the only

person who could have contradicted Richardson’s testimony.8    We


8
  The dissent criticizes the majority for “chopping the trial
counsel’s argument into three segments -- before, during, and
after the rape -- and then analyzing them separately.” Paige,
____ M.J. at ____ (7) (Stucky, J., dissenting in part and
concurring in the result, joined in Part II by Ryan, J.).
According to the dissent, this approach fails to view trial
counsel’s argument “‘in its entire context.’” Id. (quoting
Baer, 53 M.J. at 239).   We agree that to analyze the alleged
error, we must view trial counsel’s remarks in the entire
context of trial counsel’s argument. Contrary to the dissent’s
position, however, that is precisely what we are doing. In this
case, trial counsel’s closing argument repeatedly focused on
these “crucial time periods” and emphasized their separateness,
as made clear, for example, by separate slides entitled
“UNCRADICTED [sic] EVIDENCE AT THE TIME OF THE RAPE” and
“UNCRADICTED [sic] EVIDENCE MOMENTS AFTER THE RAPE.” See supra
pp. 11-13. In the circumstances of this case, to consider
whether trial counsel’s use of the phrase “uncontradicted
evidence” amounted to an improper comment on the fact that Paige
exercised his Fifth Amendment right not to testify in the
context of trial counsel’s entire argument, we cannot ignore
this aspect of trial counsel’s presentation.

                                18
United States v. Paige, No. 08-0805/MC

therefore conclude that as to this brief period of time, the

“defendant alone has the information to contradict the

government evidence referred to” and trial counsel’s comments

were in error.9    Carter, 61 M.J. at 33 (citation and quotation

marks omitted).

     While we determine that these references were error, we

easily reach the conclusion that this error was not plain or

obvious.   Richardson’s testimony established that Pfc C did not

respond when Richardson entered the room or when Paige

“dismounted.”     It also established that Pfc C’s eyes were rolled

back in her head, that she looked lifeless, that her whole body

was limp, that she was not moving at all, and that she remained

exposed on her rack.

     The observations of Coon, a defense witness who returned to

the room minutes later, corroborated almost all of Richardson’s


9
  Pfc C testified that before waking up in the hospital after the
incident, the last thing she remembers was playing a drinking
game with Paige. She specifically had no recollection of having
sexual intercourse with Paige. Under these circumstances, we
conclude that the victim herself, who cannot remember the
incident, cannot be considered a person who has “information to
contradict the government evidence referred to.” Carter, 61
M.J. at 33 (citation and quotation marks omitted). We recognize
that her own testimony as to memory loss induced by alcohol
consumption could potentially be seen as evidence that
corroborates Richardson’s description of her condition during
this time period. However, in this case, there was expert
testimony that her memory loss is attributable to a “phenomena
known as blackout” where a person is aware of what they are
doing and alert at the time but then cannot remember their
behavior or any of the activities they engaged in during that
time period.

                                  19
United States v. Paige, No. 08-0805/MC

testimony as to this period of time immediately after the

intercourse.    Coon testified that Pfc C was lying in the same

place as she had been when Coon left the room, she was not

moving, she did not respond when Coon walked over to her, she

was off in a daze, she was exposed and Coon tried to put her

clothes back on, and when Coon took her to the bathroom she had

to drag her across the floor.   In comparing Richardson’s

testimony with Coon’s, we note that the two witnesses made

nearly all the same observations about Pfc C’s unresponsive

condition.

     The primary exception is that since Richardson returned to

the room minutes before Coon, Richardson’s testimony also

addressed Pfc C’s condition at the point in time that Richardson

entered the room and at the point in time that Paige

“dismounted.”   However, even this testimony went to Pfc C’s

unresponsiveness, an issue on which the testimony of Richardson

–- the Government witness -- and the testimony of Coon -- the

defense witness -- were consistent, tending to justify trial

counsel’s characterization of such evidence as “uncontradicted.”

As trial counsel emphasized:    “[T]his isn’t just Richardson,

Coon is saying this too.”   In these circumstances, while we

conclude that trial counsel’s references to uncontradicted

evidence during this brief period of time constitute error, the

error was not plain and obvious.



                                 20
United States v. Paige, No. 08-0805/MC

c)   Period of Time When Both Richardson and Coon Are in the Room

      After intercourse occurred, Paige left the room shortly

after Richardson returned and before Coon returned.   Paige could

not testify as to the observations of either Richardson or Coon

during the period of time when he was not in the room.   As such,

this obviously is not a period of time where the “defendant

alone has the information to contradict the government evidence

referred to.”   Carter, 61 M.J. at 33 (citation and quotation

marks omitted).

2.   Whether the Members “Naturally and Necessarily” Would
     Interpret the Summation as a Comment on the Failure of the
     Accused to Testify

      We are not persuaded that the members would “naturally and

necessarily. . . interpret the summation as comment on the

failure of the accused to testify.”   Carter, 61 M.J. at 33

(citation and quotation marks omitted).   Trial counsel’s closing

argument addressed the evidence raised through direct and cross-

examination of numerous Government and defense witnesses who

provided extensive observations of Pfc C’s condition as a

sequence through time.   The testimony of the defense’s own

witnesses contributed to the development of the sequence, which

extended beyond the “crucial time periods” immediately preceding

and following the rape to the point where Pfc C was receiving

medical attention at the barracks, in the ambulance, and at the

hospital.   In emphasizing that the evidence at the time of the



                                21
United States v. Paige, No. 08-0805/MC

rape and immediately after the rape was uncontradicted, trial

counsel’s summation stressed consistency between the

observations of Richardson and Coon, contrasting it with the

more varied nature of the testimony surrounding the witnesses’

observations as the evening progressed.

3.   Trial Counsel’s Comment on the Mistake of Fact Defense

     Mistake of fact as to consent is an affirmative defense

that can be raised even in the absence of the defendant’s

testimony.   See United States v. Sellers, 33 M.J. 364, 368

(C.M.A. 1991).   In discussing the mistake of fact defense in

this case, trial counsel argued that Paige has to “assert” that

his mistake was honest and then commented, “I’ll leave that to

you, gentleman.”   Trial counsel’s choice of words suggests that

Paige had to testify to establish the defense, and we believe

the members would naturally and necessarily interpret this

aspect of trial counsel’s summation as comment on Paige’s

failure to testify.   As such, we determine that these remarks

were plain and obvious error.

     On the facts of this case, however, we conclude that this

error was harmless beyond a reasonable doubt.   In Moran, 65 M.J.

at 186-87, we addressed the harmless beyond a reasonable doubt

standard when the error involved, among other things, remarks

that trial counsel made during closing argument pertaining to an

accused’s decision to exercise his Fifth Amendment rights.    In



                                22
United States v. Paige, No. 08-0805/MC

Moran, we recognized that whether the error is harmless beyond a

reasonable doubt “will depend on whether there is a reasonable

possibility that the evidence [or error] complained of might

have contributed to the conviction.”   Id. at 187 (citation and

quotation marks omitted, brackets in original).    We recognized

further:

     “To say that an error did not ‘contribute’ to the
     ensuing verdict is not, of course, to say that the
     jury was totally unaware of that feature of the trial
     later held to have been erroneous.” It is, rather,
     “to find that error unimportant in relation to
     everything else the jury considered on the issue in
     question, as revealed in the record.”

Id. (quoting Yates v. Evatt, 500 U.S. 391, 403 (1991), overruled

on other grounds by Estelle v. McGuire, 502 U.S. 62, 72 n.4

(1991)).

     The evidence, much of which is recounted in detail above,

strongly supports that Pfc C was incapable of consenting to

sexual intercourse.   Moreover, the extensive and consistent

testimony addressing Pfc C’s condition immediately before the

intercourse, strongly supports that the defense of mistake of

fact as to consent did not exist in this case.10   Also, Lance

Corporal Hobbs testified that he talked to Paige at the smoke


10
  At the time of Paige’s trial, the Government had the burden to
prove beyond a reasonable doubt that the affirmative defense did
not exist.   See R.C.M. 916(b) (2000), amended by R.C.M. 916(b)
(2008). This case does not implicate the recent change to this
rule, which places the initial burden upon the accused to prove
mistake of fact as to consent in a rape case by a preponderance
of the evidence. See R.C.M. 916(b)(4) (2008).

                                23
United States v. Paige, No. 08-0805/MC

pit before the sexual intercourse occurred, and in reference to

Pfc C, Paige stated that he “was going to try and hit that

shit.”   Further, the military judge instructed the members:

“The accused has an absolute right to remain silent.      You will

not draw any adverse inference to the accused from the fact that

he did not testify as a witness.       You must disregard the fact

that the accused has not testified.”       This generalized

instruction may not always be enough to overcome harm that

arises when trial counsel improperly comments on the fact that

an accused did not testify.    See Carter, 61 M.J. at 35.

However, considering this instruction together with the strength

of the evidence tending to establish that the defense of mistake

of fact as to consent did not exist in this case, we have no

difficulty in reaching the conclusion that trial counsel’s

remark was unimportant in relation to everything else the

members considered.

                              CONCLUSION

     The testimony of Richardson, a Government witness, included

observations of Pfc C’s condition that addressed the brief

period of time in which she was alone in the barracks room with

Pfc C and Paige.   Because Pfc C testified that she could not

remember this period of time, Paige was the only person with

information that could have contradicted Richardson’s

observations.   By characterizing that portion of Richardson’s



                                  24
United States v. Paige, No. 08-0805/MC

testimony as uncontradicted, trial counsel infringed on Paige’s

Fifth Amendment right to not testify.    In the context of this

case, however, which included overlapping and consistent

observations by a defense witness, we conclude that the error

was neither plain nor obvious.

     We further conclude that when addressing the defense of

mistake of fact as to consent during closing argument, trial

counsel infringed on Paige’s Fifth Amendment right not to

testify by arguing that Paige had to “assert” that his mistake

was honest.   While we find this constitutes plain and obvious

error, we conclude that in the context of this case, it was

harmless beyond a reasonable doubt.

                             DECISION

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed.




                                 25
United States v. Paige, No. 08-0805/MC


      STUCKY, Judge, with whom RYAN, Judge, joins in Part II

(dissenting in part and concurring in the result):

      I agree with the majority in affirming the decision of the

Court of Criminal Appeals, but I respectfully dissent from its

analysis of the plain error doctrine and from its conclusion

that trial counsel’s argument was error.

                          I.   Plain Error

      The plain error doctrine grants “authority for an appellate

court to reverse on the basis of error even though that error

was not properly raised and preserved at the trial level.”

Wayne R. LaFave et al., Criminal Procedure § 27.5(d), at 87-88

(3d ed. 2007).   “[R]ecourse” to the plain error doctrine may be

had

      only on appeal from a trial infected with error so
      “plain” the trial judge and prosecutor were derelict
      in countenancing it, even absent the defendant’s
      timely assistance in detecting it. The [doctrine]
      thus reflects a careful balancing of our need to
      encourage all trial participants to seek a fair and
      accurate trial the first time around against our
      insistence that obvious injustice be promptly
      redressed.

United States v. Frady, 456 U.S. 152, 163 (1982).

      To establish plain error under military law, an appellant

has the burden of demonstrating that (1) there is error, (2) the

error is clear or obvious, and (3) the error materially

prejudiced a substantial right of the accused.   United States v.
United States v. Paige, No. 08-0805/MC


Maynard, 66 M.J. 242, 244 (C.A.A.F. 2008) (citing United States

v. Hardison, 64 M.J. 279, 281 (C.A.A.F. 2007)).

     The plain error doctrine “‘is to be used sparingly, solely

in those circumstances in which a miscarriage of justice would

otherwise result.’”   United States v. Fisher, 21 M.J. 327, 328-

29 (C.M.A. 1986) (quoting Frady, 456 U.S. at 163 n.14); accord

United States v. Ruiz, 54 M.J. 138, 143 (C.A.A.F. 2000).    When

an appellant establishes the three-part plain error test, an

appellate court such as ours has discretion to grant relief if

it determines that the error “‘seriously affect[s] the fairness,

integrity or public reputation of judicial proceedings.’”

United States v. Olano, 507 U.S. 725, 736 (1993) (quoting United

States v. Atkinson, 297 U.S. 157, 160 (1936)); United States v.

Powell, 49 M.J. 460, 465 (C.A.A.F. 1998).   Further, the Supreme

Court has suggested that courts can deny relief in a case in

which the alleged error did not seriously affect the fairness,

integrity, or public reputation of judicial proceedings without

deciding that an appellant’s substantial rights were prejudiced

by the alleged error.   See United States v. Cotton, 535 U.S.

625, 632-33 (2002); Johnson v. United States, 520 U.S. 461, 470

(1997).

     The majority asserts that once an appellant has established

plain, constitutional error, “the burden shifts to the

Government” to establish that the error was harmless beyond a


                                 2
United States v. Paige, No. 08-0805/MC


reasonable doubt.   United States v. Paige, __ M.J. __ (16)

(C.A.A.F. 2009) (citing United States v. Carter, 61 M.J. 30, 33

(C.A.A.F. 2005)).   But that language from Carter was derived

from dictum in Powell, 49 M.J. at 464-65, that was based on

United States v. Adams, 44 M.J. 251, 252 (1996), a case in which

neither the issue granted for review nor this Court’s opinion

discussed plain error.1

     The third prong of the military plain error test is derived

from Article 59(a), Uniform Code of Military Justice (UCMJ), 10

U.S.C. § 859(a) (2000).   See Powell, 49 M.J. at 465.   It

requires an appellant to establish that “the error materially

prejudice[d] the substantial rights of the accused.”    Article

59(a), UCMJ (emphasis added).   The term “materially,” as used in

Article 59(a), UCMJ, is best defined as “significantly.”     See

Bryan A. Garner, A Dictionary of Modern Legal Usage 551 (2d ed.

1995).

     The federal plain error rule is similar.   The appellant

must establish that the error “affect[s] substantial rights,”

Olano, 507 U.S. at 734 (quoting Fed. R. Crim. P. 52(b)), which,

unless the error is structural, requires a showing of



1
  This Court reached a similar conclusion in United States v.
Moran, 65 M.J. 178, 185 (C.A.A.F. 2007), by citing to United
States v. Alameda, 57 M.J. 190, 198 (C.A.A.F. 2002), a case in
which the defense clearly preserved the error by objecting at
trial to the trial counsel’s closing argument.

                                 3
United States v. Paige, No. 08-0805/MC


“prejudicial effect on the outcome of a judicial proceeding.”

United States v. Dominguez Benitez, 542 U.S. 74, 81 (2004).

To demonstrate this prejudicial effect, the appellant must

demonstrate “‘a reasonable probability that, but for [the error

claimed], the result of the proceeding would have been

different.’”   Id. at 81-82 (quoting United States v. Bagley, 473

U.S. 667, 682 (1985) (opinion of Blackmun, J.)).

     The language used in the third prong of the military and

federal plain error doctrines differ, but they arrive at the

same relative definition of prejudice.   While prejudice under

the federal rule requires the appellant to show a “prejudicial

effect on the outcome of a judicial proceeding,” id. at 81, the

military rule defines prejudice under the third prong to require

the appellant to show the error “‘had an unfair prejudicial

impact on the jury's deliberations.’”    Fisher, 21 M.J. at 328

(quoting United States v. Young, 470 U.S. 1, 16 n.14 (1985)).

Based on these similarities, I would adopt the Supreme Court’s

holding in Dominguez Benitez to military jurisprudence.   An

appellant satisfies the prejudice prong of the plain error test

by demonstrating “‘a reasonable probability that, but for [the

error claimed], the result of the proceeding would have been

different.’”   542 U.S. at 81-82 (citation omitted).

     Although the Supreme Court has not spoken directly on this

issue, it has suggested that the plain error test need not be


                                 4
United States v. Paige, No. 08-0805/MC


changed to accommodate non-structural, constitutional errors.

See Johnson, 520 U.S. at 463 (trial judge failed to instruct the

jury on materiality, an essential element of the perjury offense

of which the appellant was convicted).   If the error alleged is

constitutional, the standard is the same; it just becomes easier

for the appellant to meet his burden of showing “a reasonable

probability that, but for the error, the result of the

proceeding would have been different.”   See Dominguez Benitez,

542 U.S. 81-82 n.7 (citation and quotation marks omitted).

     In a plain error case, as opposed to one in which the error

is preserved, the burden of persuasion never shifts to the

government;2 it remains with the appellant, although the

government has the opportunity to argue why the error is not

prejudicial.   When a military appellant meets the heavy burden

of establishing “material” (significant) prejudice -- a

reasonable probability that, but for the error the result would

have been different -- it is impossible for the government to

show the error was harmless beyond a reasonable doubt.     By

conflating the third prong of the plain error standard with the

harmless beyond a reasonable doubt test for constitutional




2
  Dominguez Benitez, 542 U.S. at 82; Olano, 507 U.S. at 734-35
(noting that, in a plain error case, the normal burden on the
government to show an error is harmless shifts to the appellant
to show prejudice).

                                 5
United States v. Paige, No. 08-0805/MC


error, the majority incorrectly shifts the burden of persuasion

from Appellant to the Government.

                      II.   The Alleged Errors

     On appeal of his conviction for rape, Appellant contends

that the trial counsel committed plain error by arguing that (1)

the evidence was uncontradicted, and (2) to establish the

defense of mistake of fact as to consent, Appellant had to

assert that his mistake was honest.

          It is well established that the government may
     comment on the failure of a defendant to refute
     government evidence or to support his own claims. “A
     constitutional violation occurs only if either the
     defendant alone has the information to contradict the
     government evidence referred to or the jury ‘naturally
     and necessarily’ would interpret the summation as
     comment on the failure of the accused to testify.”

Carter, 61 M.J. at 33 (quoting United States v. Coven, 662 F.2d

162, 171 (2d Cir. 1981)).

     This is not a case in which an appellant presented no

evidence at trial.   In an effort to contradict the Government’s

case and establish that PFC C may have been conscious, the

defense counsel vigorously cross-examined Government witnesses

and presented several witnesses of their own, including Lance

Corporal Coon, one of Private First Class (PFC) C’s roommates,

who had observed PFC C before and after the alleged rape.

Furthermore, it appears that this trial strategy of contesting

the credibility of the prosecution’s witnesses may have had some



                                  6
United States v. Paige, No. 08-0805/MC


effect on the members; after rebuttal, the members recalled the

prosecution’s two main witnesses for further questioning.

                    A.   Uncontradicted Evidence

     Before closing arguments, the military judge instructed the

members that they had “the duty to determine the believability

of the witness.”   In making such determinations, the members

were to “[c]onsider also the extent to which each witness is

either supported or contradicted by other evidence in the case.”

     The majority finds error in the trial counsel’s argument,

that certain evidence was uncontradicted, by chopping the trial

counsel’s argument into three segments -- before, during, and

after the rape -- and then analyzing them separately.    But “the

touchstone of whether an argument is improper is . . . the

argument itself viewed in its entire context.”     United States v.

Baer, 53 M.J. 235, 239 (C.A.A.F. 2000).

     The defense turned the trial into a referendum on the

credibility of the Government’s witnesses by showing

inconsistencies in their statements.    Facing such a defense

trial strategy, it was appropriate for the trial counsel to

forcefully assert, in accord with the military judge’s

instruction on witness credibility, that on the important facts

establishing the elements of the offense, the Government’s

witnesses were uncontradicted.   When “viewed in its entire

context,” the argument was not error.


                                  7
United States v. Paige, No. 08-0805/MC


                        B.   Mistake of Fact

     Before closing argument, the military judge informed the

members that the evidence had raised the issue of mistake on the

part of Appellant as to whether PFC C had consented to sexual

intercourse and that the Government had the burden of proving

beyond a reasonable doubt that such was not the case.   In his

closing argument, the defense counsel argued that the members

should acquit because it was reasonable under the circumstances

for Appellant to believe that PFC C had consented.   He neither

argued that Appellant honestly believed PFC C consented to

sexual intercourse nor pointed to any evidence from which the

court members could infer that he did.   Appellant now objects to

the following statement from trial counsel’s rebuttal argument:

          If the accused had a [sic] honest and mistaken
     belief that [PFC C] consented to the act of sexual
     intercourse, he is not guilty of rape. If the belief
     was reasonable. So step one this guy has to honestly
     believe that -- he’s got to honestly believe and
     assert that his mistake was honest.

     While the trial counsel’s argument could have been more

artfully drawn, it did not amount to error, let alone plain

error.   The government is permitted to comment on the failure of

an accused to support his own claims.    Carter, 61 M.J. at 33

(quoting Coven).   The trial counsel was merely responding to

defense counsel’s closing argument that asserted Appellant may

have been operating under a mistake of fact as to consent



                                  8
United States v. Paige, No. 08-0805/MC


because, under the circumstances, a reasonable man would have

done so.   Trial counsel had a right to remind the members that

the mistake of fact defense requires a subjective, as well as

objective, belief that PFC C consented to the sexual

intercourse, and that Appellant had neither pointed to any

evidence nor asserted that such was the case.   The trial

counsel’s argument was not error.




                                 9
