United States v. Fletcher , 62 M.J. 175 ( 2005 )

UNITED STATES, Appellee
v.
Terry A. FLETCHER, Technical Sergeant
U.S. Air Force, Appellant
No. 04-0465
Crim. App. No. 34945
United States Court of Appeals for the Armed Forces
Argued January 25, 2005
Decided September 30, 2005
ERDMANN, J., delivered the opinion of the court, in which
GIERKE, C.J., and EFFRON and BAKER, JJ. joined. CRAWFORD, J.,
filed a dissenting opinion.
Counsel
For Appellant: Captain John N. Page III (argued); Colonel
Beverly B. Knott, Lieutenant Colonel Carlos McDade, Major Terry
L. McElyea, and Captain Jennifer K. Martwick (on brief).
For Appellee: Captain Kevin P. Stiens (argued); Colonel Gary F.
Spencer and Lieutenant Colonel Robert V. Combs (on brief).
Military Judge: Harvey A. Kornstein
This opinion is subject to revision before final publication.
United States v. Fletcher, No. 04-0465/AF
Judge ERDMANN delivered the opinion of the court.
Technical Sergeant Terry Fletcher entered a plea of not
guilty to wrongful use of cocaine in violation of Article 112a,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 912a
(2000). He was tried and sentenced by members to a bad-conduct
discharge, one month of confinement and a reduction in grade to
E-1. The convening authority approved the sentence, and the
findings and sentence were affirmed by the United States Air
Force Court of Criminal Appeals in an unpublished opinion.
United States v. Fletcher, No. ACM 34945 (A.F. Ct. Crim. App.
Feb. 27, 2004).
Trial prosecutorial misconduct is behavior by the
prosecuting attorney that “overstep[s] the bounds of that
propriety and fairness which should characterize the conduct of
such an officer in the prosecution of a criminal offense.”
Berger v. United States, 295 U.S. 78, 84 (1935). While
prosecutorial misconduct does not automatically require a new
trial or the dismissal of the charges against the accused,
relief will be granted if the trial counsel’s misconduct
“actually impacted on a substantial right of an accused (i.e.,
resulted in prejudice).” United States v. Meek, 44 M.J. 1, 5
(C.A.A.F. 1996). During the findings argument the trial counsel
offered her personal views, made disparaging comments about
Fletcher and his counsel and drew parallels between Fletcher’s
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United States v. Fletcher, No. 04-0465/AF
case and the legal problems of various entertainers and public
religious figures. We granted review to determine whether the
trial counsel’s acts constituted prejudicial misconduct.1 We
find that the trial counsel’s comments during her findings
argument rose to the level of prosecutorial misconduct and that
the misconduct was prejudicial.
BACKGROUND
Fletcher was accused of wrongfully using cocaine. The
Government’s case was based on the positive results of two
urinalysis tests. The first urinalysis was performed as part of
a random inspection of Fletcher’s unit and he voluntarily
submitted to the second test.
At trial Fletcher produced several character witnesses who
described him as a “truthful person” and a “law abiding citizen”
with a “positive moral character.” Fletcher called witnesses
from his church who testified about his substantial
participation in church activities. Fletcher also took the
stand himself, testifying about his strict religious upbringing,
his nearly twenty years in the Air Force, his family life and
his involvement in the community.
1
We granted review of the following issue:
WHETHER THE CIRCUIT TRIAL COUNSEL’S FINDINGS ARGUMENT
WAS IMPROPER AND MATERIALLY PREJUDICED APPELLANT’S
SUBSTANTIAL RIGHTS.
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United States v. Fletcher, No. 04-0465/AF
After the presentation of the evidence, the trial counsel
made a findings argument. (Attached as Appendix I to this
opinion.) The argument contained a number of references to the
trial counsel’s personal opinions about the believability of the
evidence and personal comments about the trial defense counsel
and Fletcher. In addition, near the end of her argument the
trial counsel spoke to the members about a number of
entertainers and religious leaders, saying:
Is religion an indicator of law abidingness? Is it
okay to play faith for a get out of jail free card ---
nah uh. Do people even with true faith make criminal
mistakes? . . . [D]o they use drugs? Yeah. Do they
commit adultery on their wives? Ask Jessie [sic]
Jackson about his two year old daughter. Ask Jerry
Falwell about the hooker that he got caught with
having intercourse in a car in Palm Springs. Jim
Bakker cheating on his taxes. I challenge you in
findings to come up with the rest. I made a huge list
but I don’t have time to go over them. [Does] the
fact that he’s done good work mean that he can’t use
cocaine, nah uh. Dennis Quaid, prolific actor, needed
inpatient treatment. Friends, Matthew Perry, fabulous
performer, shows up every week. Had to go to
inpatient treatment for drugs. How about this one,
Robert Downey, Jr., wins an Emmy for the performances
that he had during the time . . . he was actually
being arrested, charged and showing up positive for
having used cocaine.2
2
We have included this text and the attached Appendix I because
the words used by the trial counsel are a necessary factual
predicate to our decision. In so doing the court is not
validating the accuracy of the trial counsel’s statements with
respect to the conduct mentioned or whether the persons named
were in fact appropriately linked to such conduct.
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DISCUSSION
I. Prosecutorial Misconduct
The cornerstone for any discussion of prosecutorial misconduct
is Justice Sutherland’s opinion in Berger v. United States:
The [prosecutor] is the representative not of an
ordinary party to a controversy, but of a sovereignty
whose obligation to govern impartially is as
compelling as its obligation to govern at all; and
whose interest, therefore, in a criminal prosecution
is not that it shall win a case, but that justice
shall be done. As such, he is in a peculiar and very
definite sense the servant of the law, the twofold aim
of which is that guilt shall not escape or innocence
suffer. He may prosecute with earnestness and vigor -
- indeed, he should do so. But, while he may strike
hard blows, he is not at liberty to strike foul ones.
It is as much his duty to refrain from improper
methods calculated to produce a wrongful conviction as
it is to use every legitimate means to bring about a
just one.
295 U.S. at 88. The Supreme Court explained that prosecutorial
misconduct occurs when a “prosecuting attorney overstep[s] the
bounds of propriety and fairness which should characterize the
conduct of such an officer in the prosecution of a criminal
offense.” Id. at 84; see also Meek, 44 M.J. at 5
(“Prosecutorial misconduct can be generally defined as action or
inaction by a trial counsel in violation of some legal norm or
standard, e.g., a constitutional provision, a statute, a Manual
rule, or an applicable professional ethics canon.”). Fletcher
identifies four categories of alleged misconduct by the trial
counsel: (1) interjection of her personal beliefs and opinions,
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United States v. Fletcher, No. 04-0465/AF
(2) disparaging comments about defense counsel, (3) disparaging
comments about the defendant, and (4) introduction of facts not
in evidence.
During the prosecution’s findings argument, defense counsel
objected to a series of comments that attacked him personally.
As proper objection was made at the trial level, we will review
those comments for prejudicial error. Article 59, UCMJ, 10
U.S.C. § 859 (2000). There was no objection made to the
remainder of the trial counsel’s comments. Failure to object to
improper argument before the military judge begins to instruct
the members on findings constitutes waiver. Rule for Courts-
Martial (R.C.M.) 919(c). In the absence of an objection, we
review for plain error. United States v. Rodriguez, 60 M.J. 87,
88 (C.A.A.F. 2004). Plain error occurs when (1) there is error,
(2) the error is plain or obvious, and (3) the error results in
material prejudice to a substantial right of the accused. Id.
at 88-89.
1. Interjection of the Trial Counsel’s Personal Beliefs
and Opinions
It is improper for a trial counsel to interject herself
into the proceedings by expressing a “personal belief or opinion
as to the truth or falsity of any testimony or evidence.”
United States v. Horn, 9 M.J. 429, 430 (C.M.A. 1980) (quoting
ABA Standards, The Prosecution Function, § 5.8(b) (1971)); see
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United States v. Fletcher, No. 04-0465/AF
also United States v. Knickerbocker, 2 M.J. 128, 129-30 (C.M.A.
1977). When a trial counsel offers her personal opinions, they
become “‘a form of unsworn, unchecked testimony and tend to
exploit the influence of [the] office and undermine the
objective detachment which should separate a lawyer from the
cause for which [s]he argues.’” Horn, 9 M.J. at 430 (quoting
ABA Standards, § 5.8(b), Commentary at 128). There are many
ways a trial counsel might violate the rule against expressing a
personal belief or opinion. One is by giving personal
assurances that the Government’s witnesses are telling the
truth. United States v. Young, 470 U.S. 1, 18-19 (1985).
Another is by offering substantive commentary on the truth or
falsity of the testimony and evidence. Id. at 8.
a. Improper vouching
The federal circuit courts are in agreement that improper
vouching occurs when the trial counsel “plac[es] the prestige of
the government behind a witness through personal assurances of
the witness’s veracity.” United States v. Necoechea, 986 F.2d
1273, 1276 (9th Cir. 1993) (citations omitted).3
3
See also United States v. Perez-Ruiz, 353 F.3d 1, 9 (1st Cir.
2003); United States v. Modica, 663 F.2d 1173, 1178 (2d Cir.
1981); United States v. Walker, 155 F.3d 180, 187 (3d Cir.
1998); United States v. Sanchez, 118 F.3d 192, 198 (4th Cir.
1997); United States v. Ramirez-Velasquez, 322 F.3d 868, 874
(5th Cir. 2003); United States v. Francis, 170 F.3d 546, 550
(6th Cir. 1999); United States v. Amerson, 185 F.3d 676, 686
(7th Cir. 1999); United States v. Beaman, 361 F.3d 1061, 1065
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Improper vouching can include the use of personal pronouns
in connection with assertions that a witness was correct or to
be believed. United States v. Washington, 263 F. Supp. 2d 413,
431 (D. Conn. 2003). Prohibited language includes “I think it
is clear,” “I’m telling you,” and “I have no doubt.” Id.“Acceptable language includes ‘you are free to conclude,’ ‘you
may perceive that,’ ‘it is submitted that,’ or ‘a conclusion on
your part may be drawn.’” Id.In this case, the trial counsel repeatedly vouched for the
credibility of the Government’s witnesses and evidence. For
example, after discussing the testing methods and cut-off
levels, she concluded “we know that that was from an amount
that’s consistent with recreational use, having fun and partying
with drugs.” Emphasis added. She referred to another exhibit,
the drug test results, personally characterizing the exhibit as
“a perfect litigation package.” In talking about one of the
prosecution’s main witnesses, she opined, “It’s very apparent
from talking to Doctor Jain that he is the best possible person
in the whole country to come speak to us about this.”
b. Unsolicited personal views of the evidence and
comments on the defendant’s guilt
(8th Cir. 2004); Cargle v. Mullin, 317 F.3d 1196, 1219 (10th
Cir. 2003); United States v. Cano, 289 F.3d 1354, 1365 (11th
Cir. 2002).
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Improper interjection of the prosecutor’s views can also
include “substantive commentary on the truth or falsity of
testimony or evidence.” Washington, 263 F. Supp. 2d at 431. As
the Supreme Court has recognized, “Prosecutors sometimes breach
their duty to refrain from overzealous conduct by commenting on
the defendant’s guilt and offering unsolicited personal views on
the evidence.” Young, 470 U.S. at 7.
During her findings argument, the trial counsel described
the Government’s evidence as “unassailable,” “fabulous,” and
“clear”. With respect to Fletcher’s guilt, the trial counsel
said, “it’s so clear from the urinalyses that he was doing it
over and over,” “He clearly is a weekend cocaine user,” and “He
is in fact guilty of divers uses of cocaine.” When describing
Fletcher’s defense she used words like “nonsense,” “fiction,”
“unbelievable,” “ridiculous” and “phony”.
The trial counsel’s interjection of her personal beliefs
and opinions was error. Comments such as the ones that the
trial counsel made about Dr. Jain and the prosecution’s exhibits
could be perceived as putting the weight of the Government
behind the statements with the result that the testimony or
evidence in question appears stronger than it really is.
Berger, 295 U.S. at 88. This is a dangerous practice because
“when the prosecutor conveys to the jurors his personal view
that a witness spoke the truth, it may be difficult for them to
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United States v. Fletcher, No. 04-0465/AF
ignore his views, however biased and baseless they may in fact
be.” Modica, 663 F.2d at 1178-79.
In addition, when a trial counsel offers her personal views
of a defendant’s guilt or innocence, as trial counsel did in
this case, it may confuse the jurors and lead them to believe
that the issue is whether or not the prosecutor is truthful
instead of whether the evidence is to be believed. Id. at 1181.
As the First Circuit has explained, “Such tactics are not to be
condoned. They tilt the scales of justice, risk prejudicing the
defendant, and carry the potential for distracting the jury from
its assigned task of assessing the credibility based solely on
the evidence presented at trial and the demeanor of the
witnesses.” Perez-Ruiz, 353 F.3d at 9-10. These are results we
seek to avoid.
Because defense counsel did not raise any objection at
trial, the injection of trial counsel’s personal beliefs and
opinions must rise to the level of plain error before relief is
warranted. We find that the errors here are plain and obvious.
Over the course of her findings argument, there are more than
two dozen instances in which the trial counsel offered her
personal commentary on the truth or falsity of the testimony and
evidence. She repeatedly inserted herself into the proceedings
by using the pronouns “I” and “we.” She put the authority of
the Government and her office behind the prosecution’s witnesses
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United States v. Fletcher, No. 04-0465/AF
and she bluntly concluded that Fletcher was in fact guilty.
These errors were blatant and obvious.
2. Disparaging Comments About Defense Counsel
Not only is it improper for a trial counsel to interject
her personal views into a case, it is also improper for a trial
counsel to attempt to win favor with the members by maligning
defense counsel. United States v. Xiong, 262 F.3d 672, 675 (7th
Cir. 2001) (holding that “disparaging remarks directed at
defense counsel are reprehensible”); see also United States v.
Ollivierre, 378 F.3d 412, 418 (4th Cir. 2004) (recognizing that
it is “improper for a prosecutor to launch a personal attack
upon the defense attorney or upon defense lawyers generally”),
vacated and remanded by, 125 S.Ct. 1064 (2005); TJAG Policy
Memorandum, TJAGD Standards – 2, Air Force Rules of Professional
Conduct and Standards for Civility in Professional Conduct,
attachment 2, para. 28 (Oct. 15, 2002) (explaining that a lawyer
should not “degrade the intelligence, ethics, morals, integrity
or personal behavior of others, unless such matters are
legitimately at issue in the proceeding”).
When one attorney makes personal attacks on another, there
is the potential for a trial to turn into a popularity contest.
Rather than deciding the case “solely on the basis of the
evidence presented,” as is required, the members may be
convinced to decide the case based on which lawyer they like
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better. Young, 470 U.S. at 18. Disparaging remarks about
defense counsel may “caus[e] the jury to believe that the
defense’s characterization of the evidence should not be
trusted, and, therefore, that a finding of not guilty would be
in conflict with the true facts of the case.” Xiong, 262 F.3d
at 675. In addition, derogatory comments about opposing counsel
can “detract from the dignity of judicial proceedings.” Id.In this case, trial counsel made disparaging comments about
defense counsel’s style and also made comments suggesting that
Fletcher’s defense was invented by his counsel. Defense counsel
objected to the first group of comments, but not to the second
group. Thus, we will analyze the comments suggesting the
invented defense under the plain error standard. In assessing
prejudice, we will consider the other erroneous comments that
were objected to by defense counsel.
Here, the trial counsel openly criticized defense counsel
by accusing him of scaring witnesses, cutting off witnesses and
suborning perjury from his own client. At the start of her
rebuttal argument the trial counsel said, “Well, we sure do have
different styles. And I think it actually is going to play for
once in the case. I will not shout at you. I will reason with
you. I will present evidence and what’s fair.” A few pages
later, she characterized the defense counsel as “the one with
the overpowering and yelling and cutting people off cross
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United States v. Fletcher, No. 04-0465/AF
examinations and the wild argument.” She then said, “He’s the
one that could have scared a witness and freaked them out. Me,
I won’t cut them off. I’ll apologize if I do.” She later
stated, “Well, ask yourselves, do I scare you?”
Defense counsel properly objected to these comments because
it was error for the trial counsel to make this type of personal
attack. See United States v. Rodriguez-Estrada, 877 F.2d 153,
159 (1st Cir. 1989) (recognizing that “the prosecutor’s
obligation to desist from the use of pejorative language . . .
is every bit as solemn as his obligation to attempt to bring the
guilty to account.”). Defense counsel’s objections were
sustained by the military judge.
The defense counsel did not object when the trial counsel
suggested that Fletcher’s defense was invented by his counsel.
The trial counsel referred to Fletcher’s arguments as “fiction”
at least four times and called one of Fletcher’s arguments a
“phony distraction.” She also called the defense case “that
thing they tried to perpetrate on you.” As the district court
explained in Washington, “[a] prosecutor must be careful not to
characterize a defense as fabricated.” 263 F. Supp. 2d at 434(internal quotation marks and citation omitted). It is error
for a trial counsel to disparage defense counsel by accusing him
of “intentionally omitting unfavorable evidence in aid of
spinning a ‘yarn’ more favorable to [the defendant].” Id. at
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United States v. Fletcher, No. 04-0465/AF
436-37; see also United States v. White, 486 F.2d 204, 206 (2d
Cir. 1973) (criticizing the prosecutor’s repeated suggestions
that the defense was “fabricated” as “unwise and unnecessary”).
The trial counsel’s disparaging remarks about defense
counsel were less incendiary than her other comments and carried
with them a greater likelihood of having been provoked. Yet
when combined with the erroneous comments made about defense
counsel’s style, the trial counsel’s other comments disparaging
defense counsel constitute error that was plain and obvious.
Trial counsel’s attacks on defense counsel’s courtroom manner
and integrity were gratuitous and obviously intended to curry
favor with the members. She drew direct comparisons between her
style and that of defense counsel, painting herself as less
“scary,” more polite and more honest. The trial counsel’s
obvious attempts to win over the jury by putting herself in a
favorable light while simultaneously making defense counsel look
like a mean and nasty person who would say anything to get his
client off the hook were plainly improper. The trial counsel
erroneously encouraged the members to decide the case based on
the personal qualities of counsel rather than the facts. Not
only did her comments have the potential to mislead the members,
but they also detracted from the dignity and solemn purpose of
the court-martial proceedings.
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3. Disparaging Comments About Fletcher’s Credibility
Disparaging comments are also improper when they are directed to
the defendant himself. For example, this court has said that
calling the accused a liar is a “dangerous practice that should
be avoided.” United States v. Clifton, 15 M.J. 26, 30 n.5
(C.M.A. 1983). As the Second Circuit has explained, ”Although
we might expect a character in a Perry Mason melodrama to point
to a defendant and brand him a liar, such conduct is
inconsistent with the duty of the prosecutor to ‘seek justice,
not merely to convict.’” White, 486 F.2d at 206 (quoting ABA
Code of Professional Responsibility, Final Draft, 1969, Ethical
Consideration 7-13, at 79).
Here, the trial counsel told the members that Fletcher had
“zero credibility” and that his testimony was “utterly
unbelievable.” In rebuttal the trial counsel also said, “[W]hen
the Accused gets up on the stand and he lies who in fact was
asking him the question? His own lawyer. Not me. And that was
the first lie.” Fletcher argues that these comments were plain
error because they branded him a liar, unfairly disparaging and
demeaning him in the eyes of the members. Fletcher argues that
the trial counsel’s comments were similar to those made in
Knickerbocker, where this court held that the trial counsel
acted inappropriately by offering his personal opinion that the
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United States v. Fletcher, No. 04-0465/AF
accused’s testimony was a “fairy tale” that he found
“insulting.” 2 M.J. at 129.
The lower court found that “[t]hese comments were proper
and relevant when viewed in the context of the trial as a
whole.” We disagree. We find that the trial counsel’s comments
crossed the “exceedingly fine line which distinguishes
permissible advocacy from improper excess.” White, 486 F.2d at
207. Fletcher’s defense rested heavily on the claim that he was
a good airman with an excellent reputation for truthfulness, and
Fletcher provided testimony that could readily be viewed as
incorrect or even as a lie. He first testified that he had
never used drugs, but later admitted that he had experimented
with marijuana. The trial counsel then properly impeached
Fletcher on the stand. Thus, the defense opened the door and it
was appropriate for the trial counsel to comment on Fletcher’s
conflicting testimony during her findings argument. It was
improper, however, for the trial counsel to use the language
that she did, language that was more of a personal attack on the
defendant than a commentary on the evidence.
The question is whether this error rises to the level of
plain error. Although the trial counsel should have avoided
characterizing Fletcher as a liar and confined her comments
instead to the plausibility of his story, her comments were not
so obviously improper as to merit relief in the absence of an
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objection from counsel. Accordingly, we find that the trial
counsel’s comments about Fletcher’s credibility did not rise to
the level of plain error.
4. Introduction of Facts Not in Evidence
It has long been held that a court-martial must reach a
decision based only on the facts in evidence. United States v.
Bouie, 9 C.M.A. 228, 233, 26 C.M.R. 8, 13 (1958). It is also
well established that arguments made by counsel are not
evidence. Clifton, 15 M.J. at 29. “When counsel argues facts
not in evidence, or when he discusses the facts of other cases,
he violates both of these principles.” Id. at 29-30.
There is, however, an exception to this general rule. This
court has held that it is proper for a trial counsel to comment
during argument on “contemporary history or matters of common
knowledge within the community.” United States v. Kropf, 39
M.J. 107, 108 (C.M.A. 1994). In the past, “common knowledge”
has included “knowledge about routine personnel actions,”
United States v. Stargell, 49 M.J. 92, 94 (C.A.A.F. 1998);
knowledge of ongoing military actions overseas, United States v.
Meeks, 41 M.J. 150, 158-59 (C.M.A. 1994); knowledge of the
Navy’s “zero tolerance” policy for drug offenses, Kropf, 39 M.J.
at 108-09; the existence in the United States of a “war on
drugs,” United States v. Barrazamartinez, 58 M.J. 173, 175-76
(C.A.A.F. 2003); and any other matter “upon which men in general
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United States v. Fletcher, No. 04-0465/AF
have a common fund of experience and knowledge, through data
notoriously accepted by all.” United States v. Jones, 2 C.M.A.
80, 87, 6 C.M.R. 80, (1952) (quoting Wigmore, Evidence § 2570 3d
ed.).
At the same time, counsel are prohibited from making
arguments calculated to inflame the passions or prejudices of
the jury. Barrazamartinez, 58 M.J. at 76. For example, in
Clifton, the accused was charged with adultery. 15 M.J. at 27.
During the findings argument, the trial counsel used an analogy
to try to persuade the members that they could infer prejudice
to good order and discipline. Id. at 28. The trial counsel
argued that adultery is like heroin use, that both are charged
as violations of Article 134, UCMJ, 10 U.S.C. § 834 (2000), and
that in both cases prejudice to good order and discipline can be
inferred. Id. On appeal, this court found that trial counsel’s
argument improperly drew a connection between the accused’s
actions and drug use in order to inflame the passions and
prejudices of the court members. Id.In this case Fletcher argues that it was plain error for
the trial counsel to refer to Jesse Jackson, Jerry Falwell, Jim
Bakker, Dennis Quaid, Matthew Perry and Robert Downey Jr.
because there were no facts in evidence regarding any of these
individuals and their names were used only for their sensational
value. The Government maintains that such matters are within
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the common knowledge of the community and that Fletcher opened
the door by arguing that he could not be a drug user because he
had a reputation for doing good work and regularly attending
church.
We find that the trial counsel’s references to religious
figures and entertainers improperly invited comparison to other
cases, the facts of which were not admitted into evidence and
which bore no similarity to Fletcher’s case. Although
references to public figures and news stories may be allowed,
the specificity and detail of her comments went well beyond the
generic comments we have allowed in the past. See
Barrazamartinez, 58 M.J. at 175-76; Kropf, 39 M.J. at 108-09.
The trial counsel did not make generalized references to current
events to give her argument some context. She made specific
references to sensational events not in evidence in order to
support her contention that Fletcher was guilty. Fletcher’s
good citizen defense may have opened the door to an appropriate
response, but the comments of the trial counsel were “outside
the bounds of fair comment.” Barrazamartinez, 58 M.J. at 178
(Baker, J., dissenting).
Moreover, this error was plain and obvious. When the trial
counsel asked the members to “ask Jesse Jackson about his two
year old daughter,” and to “[a]sk Jerry Falwell about the hooker
that he got caught having intercourse with in a car in Palm
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United States v. Fletcher, No. 04-0465/AF
Springs,” she was not drawing legitimate inferences based on the
evidence nor was she referring to matters within the common
knowledge of the members. She was instead inviting the members
to accept new and inflammatory information as factual based
solely on her authority as the trial counsel. These arguments
were clearly improper and should have been prohibited or
stricken by the military judge.
To summarize, we find error in trial counsel’s open
criticism and personal attack upon defense counsel. Because
this error was properly preserved by objection, we will test for
prejudice under Article 59(a). We also find error that is
“plain and obvious” in trial counsel’s arguments that vouched
for evidence, injected unsolicited personal views of the
evidence and Fletcher’s guilt, suggested that the defense was a
fabrication, and introduced facts not in evidence. Because
there was no objection to these “plain and obvious” errors, we
will test them under the plain error doctrine to determine
whether they resulted in material prejudice to a substantial
right of the accused.
II. Prejudice
We have previously held that “it is not the number of
legal norms violated but the impact of those violations on the
trial which determines the appropriate remedy for prosecutorial
misconduct.” Meek, 44 M.J. at 6. In assessing prejudice, we
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look at the cumulative impact of any prosecutorial misconduct on
the accused’s substantial rights and the fairness and integrity
of his trial. Id. at 5. The federal circuit courts use a
variety of different tests to determine the impact of
prosecutorial misconduct on a trial. We believe the best
approach involves a balancing of three factors: (1) the
severity of the misconduct, (2) the measures adopted to cure the
misconduct, and (3) the weight of the evidence supporting the
conviction. In other words, prosecutorial misconduct by a trial
counsel will require reversal when the trial counsel’s comments,
taken as a whole, were so damaging that we cannot be confident
that the members convicted the appellant on the basis of the
evidence alone.
1. Severity of the Misconduct
Indicators of severity include (1) the raw numbers -– the
instances of misconduct as compared to the overall length of the
argument, (2) whether the misconduct was confined to the trial
counsel’s rebuttal or spread throughout the findings argument or
the case as a whole; (3) the length of the trial; (4) the length
of the panel’s deliberations, and (5) whether the trial counsel
abided by any rulings from the military judge. See Modica, 663
F.2d at 1181.
Here, the trial counsel’s improper comments permeated her
entire findings argument. In twenty-one pages there are several
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dozen examples of improper argument. The improper comments do
not stand as isolated incidents of poor judgment in an otherwise
long and uneventful trial. Fletcher’s court-martial lasted less
than three days and the members deliberated for less than four
hours. Accordingly, the trial counsel’s misconduct was both
pervasive and severe.
2. Curative Measures
The military judge’s curative efforts were minimal and
insufficient to overcome the severity of the trial counsel’s
misconduct. Before the findings argument began the military
judge gave a generic limiting instruction reminding the members
that “what the attorneys say is not evidence.” This instruction
was not a targeted, curative response as it was given before the
findings arguments rather than in response to a given statement
or at the end of the argument. On a single occasion during the
findings argument, the military judge chastised the trial
counsel for her personal attacks on defense counsel. This
single rebuke was not curative and was not enough to remedy the
trial counsel’s severe and pervasive misconduct. See Horn, 9
M.J. at 430.
The military judge did not make any effort to remedy any
misconduct other than the few statements to which defense
counsel objected. As this court has recognized, “the judge
should have interrupted trial counsel before [s]he ran the full
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course of [her] impermissible argument. Corrective instructions
at an early point might have dispelled the taint of the initial
remarks.” Knickerbocker, 2 M.J. at 129. On the facts of this
case, “[i]t is impossible to say that the evil influence upon
the [members] of these acts of misconduct was removed by such
mild judicial action as was taken.” Berger, 295 U.S. at 85.
3. Weight of the Evidence
Fletcher argues that the court should view the strength of
the Government’s case absent any misconduct by the trial counsel
with some skepticism. Fletcher argues that there were no
testifying eyewitnesses who saw him use cocaine, he never
admitting to using cocaine, he readily consented to the second
drug test after the first positive result, he had a long and
distinguished military career, and there were numerous character
witnesses who testified to both his reputation for truthfulness
and his law-abiding character. Although this court has upheld
convictions in which a urinalysis test was the primary evidence,
we have never said that a positive drug test automatically leads
to a conviction. In addition, Fletcher not only testified
directly that he had not used cocaine, he presented
circumstantial evidence concerning his religious and family life
that could reasonably have raised questions in the members’
minds about the strength of the prosecution’s evidence.
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When the three factors set out above are weighed against
one another, the balance is firmly in Fletcher’s favor. The
trial counsel made multiple improper arguments. She violated
the rules against vouching for witnesses, offering of personal
views, attacking opposing counsel, and arguing based on
scandalous facts not in evidence. In addition, her argument
based on facts not in evidence was not extraneous commentary,
but it was aimed directly at Fletcher’s good citizen/good
character defense. The trial counsel’s “excess zeal [was] so
egregious that it taint[ed] the conviction.” White, 486 F.2d at
204. Her misconduct was not “slight or confined to a single
instance, but . . . pronounced and persistent, with a probably
cumulative effect upon the jury which cannot be regarded as
inconsequential.” Berger, 295 U.S. at 89. In this case, trial
counsel’s statements were so inflammatory and damaging that we
cannot be confident that the members convicted Fletcher on the
basis of the evidence alone.
Accordingly, we find that the errors here were materially
prejudicial to Fletcher’s substantial rights under both Article
59(a) and the plain error doctrine. In light of this prejudice,
the findings and sentence must be reversed.
DECISION
The decision of the United States Air Force Court of
Criminal Appeals is reversed. The findings and sentence are set
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aside, and the record of trial is returned to the Judge Advocate
General of the Air Force. A rehearing is authorized.
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APPENDIX I
United States v. Fletcher
04-0465/AF
FINDINGS ARGUMENT BY THE GOVERNMENT
CTC: Good morning. As we told you in our opening statement
of this case, the Accused had a secret and his urine told that
the Accused used cocaine on diverse occasions in April of 2001.
As we turn and look at the evidence in this case, it’s going to
be apparent that Prosecution Exhibits 1, 2, 3, 4, the bottles,
they’re all reliable. They’re all trustworthy. They are all
well done. He in fact went in, gave his urine and it was his
urine that was sent to the lab and it was his urine that was
tested at the lab. So, we don’t really have to worry about what
happened, because of the triple locks, the ciphers. The fact
that the Accused’s sample was collected according to the
military standards, the exacting standards that we set for this.
Now, that brings us then to what happens at the lab, which
is where we hear from Doctor Narish Jain, and that’s Prosecution
Exhibit number 6. It’s very apparent from talking to Doctor
Jain that he is the best possible person in the whole country to
come speak to us about this. He’s the father of GCMS for urine
testing for drugs. He was there at the beginning and he’s
there now. And the defense would want to say that he’s an old
man. Well, you saw him. He’s on the top of his game. He’s
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United States v. Fletcher, No. 04-0465/AF
never been better. The defense would like to say, well, the
machines are old. Don’t trust the man, don’t trust the
machines. Neither the man nor the machines are old. They are
both on the top of their game and the Air Force is using the
best ones possible. The defense would like to say “Hey, Doctor
Jain, he’s not even from the lab.” Isn’t that great though?
He’s independent. He’s not there from Brooks Laboratory
representing a lab that he doesn’t want to turn in for not being
good. He’s an independent person who is a civilian, who doesn’t
work for Brooks Laboratory, but is deeply and intimately
involved in the setting up and the oversight. He is utterly
reliable. So, Doctor Jain is the perfect person, who we are
very fortunate to have heard from him in this matter.
Let me turn to Prosecution Exhibit number 7, which is the
first test of the Accused’s urine. And this is a perfect
litigation package. Prosecution Exhibit number 7, shows that 22,
excuse me, 200 samples were tested. Only the Accused showed up
with cocaine in it. Another sample was taken from the original
bottle. A whole different aliquot was poured and it was
actually put into a whole different machine. The testing was
performed, and it again showed up BZE, just the same amount of
benzoylecgonine. Why is it that we’re testing for
benzoylecgonine? Well, it’s the smart and scientifically sound
thing to do. You’ll recall that during the defense’s opening,
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he said that they don’t even test for cocaine. Aren’t you glad?
If for example, cocaine were to be flying through the
atmosphere, which we know it doesn’t anymore than cyanide does
and we’re all still breathing, then fine, you know, we’re not
testing for cocaine. Why? Because the human body doesn’t
excrete cocaine. It puts out the metabolite for it. So we want
to know if the man’s body processed the cocaine, and yes, it
did.
And you compared the immunoassay, which are the first two
tests and their quantities versus the gas chromatography mass
spectrometry, which will test only for BZE, and you can see that
he had the processed metabolite of cocaine in his urine, not
cocaine. Very, very reliable, and of course I’ve come to the
last part of the first test which is the gas chromatography and
mass spectrometry portion which quantifies his urine at 208
nanograms per milliliter, twice the cut off limit. The cut off
limit, what does it mean? You can’t pick it up from the
atmosphere. You can’t walk by a guy cracking smoke [sic]. You
can’t even dip your hands in cocoa paste even if you are a nail
biter, even if you do have cuts in your hands, it won’t go to a
hundred, let alone 208. So, we know that that was from an
amount that’s consistent with recreational use, having fun and
partying on drugs. And Doctor Jain has testified for us, that if
the sample was given on a Monday, it is consistent with him
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United States v. Fletcher, No. 04-0465/AF
having used it over the weekend, Friday night, Saturday night.
It is in fact, what we told you from the beginning, the urine
tells on the Accused’s use of cocaine.
Now, the defense would like you to think about log
discrepancies. Okay, let’s talk about lab discrepancies. And
the lab discrepancies aren’t scary. They’re actually very
comforting. They do in fact show us how incredibly good the lab
is. They have a whole bunch of checks and balances and they
work. And they showed us that they work. There are internal
standards. There are quality controls. There is quality
assurance. There is blind quality controls. And there are
external quality controls, i.e., the samples sent in disguised
as members’ samples. And they all test out exactly right.
Now the defense has pointed to the lab discrepancy reports.
Let’s talk about those. And I would point you towards when we
were talking about and going over actually and in my redirect,
what lab discrepancy reports truly are. And if you look at
Prosecution Exhibit number 8, on page 25, when the internal
standard didn’t have an exact high peak on a water blank, that’s
an internal standard discrepancy. It’s great. It shows us that
the machine is working. And even if it isn’t exactly perfect,
which Doctor Jain said it’s forensically important, he wouldn’t
have done it over again. But the lab, hey, they’re going to do
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United States v. Fletcher, No. 04-0465/AF
it over again. How many times do things like that happen a
month at the laboratory? Well, we talked about it and we
revealed the numbers. About 12 in April and 18 or so in May of
2001. And we know that they test 30,000 samples per month. You
do the math. It’s about .05 percent of discrepancies like that,
internal standards, calibration off. And we don’t even go
forward and test it if the calibration isn’t perfect. How would
you know the calibration was perfect? It’s in the reports for
that machine, for that test for that day for his sample. It’s
comforting.
Now, how do you know you’ve got everything to do with the
Accused’s sample? Well, again, Prosecution Exhibit number 8,
even when the printer didn’t print out the first page cause
there was some sort of a problem with the printer, you’re going
to have to suffer through looking at starting the printer over
again. And they include that. Paperwork thrown away. Does it
make any difference if we would have thrown away that paperwork?
Well, now it’s included for you. Even a reprint, just because
the first page didn’t come out. It’s unassailable.
Now, Greystone’s report, and that’s amusing, because when
you actually heard it for the first time from the defense it
sounded rather spook-tacular, but it’s not. What were the
problems? Okay, have you ever had an opportunity to have an
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inspection in your unit? Even if it’s tip, tip top, the people
who come through and inspect have got to find something, they’ve
got to. Why are they doing an inspection if they don’t really
look for something? What do we have in the Greystone report?
Inconspicuously posted, set of people who are allowed in the
room. Well, we know that there 80 people who work at the lab.
Each people [sic] have to do a card swipe to get into each
particular section. And it only works by the hours. So if they
were to come back after close of business, they don’t get to get
in. Conspicuously posted, and of course let’s shine the true
light of what that really means. The elevator permit wasn’t
posted right by the door. It was posted some other place.
Okay, the equivalent of sign in logs not completely filled out.
You ever had two people come to your unit, you put the names
down, but they’re both from the same location and they have the
same phone number, so you draw a line and do dittos. They don’t
accept that there. So, you get written up. A secondary alarm
system, after the ones that we talked about, not responded to
when it went off in the middle of the day. Okay, and that’s
what they got for the whole report. Excellent.
Picking on the lab employees for stuff like 1998 problems
with chain of custody annotations with Mr. Colunga was cheap, it
was cheap. There’s nothing wrong with the chain of custody on
the Accused’s sample. And really there was nothing wrong back
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United States v. Fletcher, No. 04-0465/AF
in ‘98, but he wasn’t too swift with the paperwork. That was a
long time ago.
Tube swapping, it’s a rather sexy term isn’t it? It could
get your attention at the beginning? Nonsense. We know that
the Accused’s tube can’t be swapped because a scanner from the
machine will pick it up. It’s bar coded like the supermarket.
And you can check everywhere yourselves. Tube swapping doesn’t
happen. But you know it isn’t going to happen because it would
say so when a water blank shows up glowing with cocaine and the
Accused’s shows up looking like water. Of course, it didn’t
happen. Sometimes when it’s fed into a machine. But the
internal standards and quality controls are in place. At the
hospital here at the base, has anybody ever been late to work
there? Has anybody ever gotten a letter of reprimand for
financials or whatever or anybody ever dropped a tube there?
Does that mean that you wouldn’t go and get your teeth clean and
trust that they’re clean. This is a lot simpler. There is no
human error once you feed it into the machine. These machines
are properly calibrated every time. There’s every possible
control on them. Their error rates are miniscule. They’ve got
water blanks, and the gas chromatography mass spectrometry are
new machines, state of the art, and gas chromatography is the
gold standard. We’ve got the best and the newest.
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And the lab is starving for work. They’re not overworked
and rushing to get this done. They’ve done a magnificent job.
Prosecution Exhibit number 8, same, same, except for we’ve got
that water blank, a little bit of a flat peak, but starts over
again on that run and that’s of course what they do when an
internal standard is off, they start over and do a new one. And
of course, the printer page went out. That’s not very
impressive. The results are fabulous. And they’re what we’d
expect from that lab and their exacting forensic standards.
Now, the Accused tested positive for cocaine metabolite in his
sample.
And we don’t know, we’ve never presented who it was that he
was using with; how much he bought it for or how much he was
using, or whether he was having a good time when he was getting
high. We don’t know. But the law does in fact allow you to
infer that he was using it knowingly. That’s the law, you can do
that. And it makes sense if you think about it, because folks
use drugs in private. They’re not going to do it at the unit.
He’s not going to show up at the office and stick something up
his nose or light up a crack pipe. He’s not going to do it at
the office or do it in public. Any potential witnesses for this
are probably other drug users themselves and are arguably in
hiding distancing themselves from him as he goes through this,
whoever his dealer is. Why should you make this inference in
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United States v. Fletcher, No. 04-0465/AF
this case though, and that’s where we’re going to ask you to
apply good old fashion common sense.
Taking a look, what alternates would the defense have you
believe, well for goodness sake, that he ate hundreds and
thousands of dollar bills and metabolized them all about an hour
before he took his urine sample; right. At 8:30 -- at 9:30
a.m., in the morning, he spend the wee hours munching dollar
bills, no. Cocaine in the air at Cape Canaveral, in his home,
in his car. Well, we know that doesn’t even work anyway. The
pizza guy took his hard earned pizza delivery money and
sprinkled it on his pizza? Fiction, fiction. How about that
hand washing thing that they tried to perpetrate on you? Hand
washing, it’s not going to skew it to a positive result if
somebody has spiked their hands. It’s going to skew it for a
negative result.
Now, we know that Mr. Varoz tells everyone, including the
Accused, wash your hands with just water. The fact that the
Accused may or may not have done that, does or doesn’t remember,
doesn’t go in his favor if he chooses not to wash his hands and
follow the rules before he gives his urine sample. Now, not to
be crude, but you gentlemen have the advantage over us. You’ve
got the opportunity and equipment to aim right in the bottle and
not even go on your hands. Women, not such a good luxury. We
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United States v. Fletcher, No. 04-0465/AF
don’t stand as good a chance. Gender bias in favor of the
Accused’s sample. Don’t give him the benefit of that doubt.
Now, the argument of cocaine falling from the ceiling and
going into the -- or from his clothes even, if he has cocaine on
this clothes, going into the sample and then somehow 100 percent
metabolizing for BZE is preposterous considering the fact that
he isn’t old enough to make the alkaline urine -- that the
conditions were not such that a hot temperature to cook it, and
it happened twice. Did cocaine actually fall from the ceiling,
from the Patrick bathroom as well as from our laboratory here,
or excuse me, as well as from the bathroom up at the Cape,
another fiction. That thing about well, you could have been
exposed to a tiny amount and it just metabolized, or entered the
urine and suddenly, you know, at the exact right time you give
the urine in the cup to reach 202 and 136 [sic] two weeks in a
row. Hmm, no, not at all, it’s ridiculous. You know what it is,
it’s as stupid as a teenager coming to you and saying dad, I got
pregnant from a toilet seat at a gas station. And then coming
around to you later and then saying the same thing again. If
you’re not convinced from the first urinalysis, how about by the
second? Do you need a third? Do you need a fourth? A dozen,
do we pee him every two weeks and keep testing? No.
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Now, we’ve seen some nice people come in and testify on his
behalf, and he’s a good worker. And I’m not taking anything
away from his family or his church or his duty performance. And
the Accused is probably a nice person. But nice persons [sic]
can use drugs. Church goers can use drugs. And people can be
other than what they present themselves to be at work and on
Sunday mornings. All the times that he was possible to do these
things, unaccounted for.
You know, the guy knew since the 24th of April that he was
hot for urinalysis. He’s had the opportunity to reconstruct and
when he testifies to you “I don’t know.” Where was he? Why’d
you take leave? “I don’t know.” How reliable, how believable
and credible is that. Are we to believe that he didn’t check it
out? We get 30 days of leave a year. We use them very
judiciously, especially when we’re coming around to retirement.
We want to have a big blowout of time at the end where you get
terminal leave. And you get paid. I don’t know what I did with
my leave. I don’t think so.
Should we trust him? Well, let’s look back on one of the
most telling factors about who he really is. He sure did give a
nice speech. It’s almost seemed genuine, but he didn’t know
that I had on my desk under the paperwork, researched back to
1983, and discovered that he had used marijuana. He didn’t know
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United States v. Fletcher, No. 04-0465/AF
I had that. So when he stood up there and he sat down and he
just looked you all right straight in the face with the most
integrity appearance he could muster and said, “I have never
used drugs and I never will.” You really want to go for it.
Fiction, and I knew it. Why? Because it’s in his paperwork, but
he didn’t know that I knew. And he didn’t know that I would
tell him.
Now, I went a long time cross examining him, gave him the
opportunity to have integrity or to make another fiction for
you, all the way through at the very end of my cross
examination, I asked him about why? And his excuse showed that
he had no integrity. He could have come forward and said, look
it was a long time ago. And I just didn’t think you’d find out
about it, and it really shouldn’t matter because I was a
teenager. Ha -- he said I thought the defense counsel was
asking me about the military only. And if that were true, then
his answer should have been, while in the military I have never
used drugs. And while in the military I never will. Nuh uh,
that’s not what he said. His impression wasn’t impressive and a
complete fiction. And it shows how he tricks all of these other
nice people who came in to say he’s a good guy.
Now, let’s go back and reconstruct, what was the defense
counsel’s question. The third time he asked it, I didn’t even
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United States v. Fletcher, No. 04-0465/AF
object asked and answered, let’s see what happened. Sergeant
Fletcher between the 1st of April and the 24th of April did you
knowingly use cocaine? That was the question. His answer, I
did not. It was designed to build credibility with you all.
Okay, but there are other indicators into his lack of
credibility and it’s not too bad to deal with just on it’s own.
How about the joke, I’ve never opened my personal emails,
because right then I was working in the orderly room. Oh yeah,
when have you been in the orderly room since? January, he’s
trying to pass it off that he doesn’t check his emails since
January. Nuh uh, is that actually possible? Well the witnesses,
his friends say not. We all know that we’re networked. You can
check your email even if you’re not on your own computer.
How about with all those extra taskings he was trying to
impress you with, he doesn’t check his email? Or how about,
yeah, get this one, I don’t know where I took leave to. There’s
another indicator. Do you know where you took leave to this
year? Sure you do. Last year, probably. The year before,
likely. Would you be darn good and certain where you took leave
to if your urinalysis had come up positive? Absolutely. He’s
got zero integrity and he’s telling us that he didn’t knowingly
use cocaine is utterly unbelievable.
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Well, how about the idea of well, I got, he might have used
the wife’s prescriptions -- for arthritis meds? For back pain --
nah uh. We know what the process is if you do something like
that. A guy has a medical issue, uses his wife’s scrip, tests
positive for something. Well, they don’t give out prescriptions
for cocaine. They got this laboratory -- or at this base here,
but let’s say that even if something like that had happened in
the past, what’s the process? They guy says okay, this is
probably where I got it from, and we investigate and drop the
charges, and admonish him for using somebody else’s scrip.
That’s what you do. You don’t take him to court. And it’s
funny that it just comes up here where the wife who loves him
very much, would very much like to have his retirement. And she
doesn’t remember anything either. As Doctor Jain told us, only
cocaine yields cocaine results. Not Solarcane or Lanacane or
Novocain or Coca-Cola or anything to do with coffee or caffeine
or anything other than coke.
Okay, does his religion hide him? Well, no, he had those
beliefs since he was a child and he was also in Junior ROTC, in
high school that didn’t stop him from using drugs back in high
school. Is a religion an indicator of law abidingness? Is it
okay to play faith for a get out of jail free card -- nah uh. Do
people even with true faith make criminal mistakes? Do they or
they or criminal actions, do they use drugs? Yeah. Do they
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United States v. Fletcher, No. 04-0465/AF
commit adultery on their wives? Ask Jessie Jackson about his
two year old daughter. Ask Jerry Falwell about the hooker that
he got caught with having intercourse with in a car in Palm
Springs. Jim Bakker cheating on his taxes. I challenge you in
findings to come up with the rest. I made a huge list but I
don’t have time to go over them.
Is the fact that he’s done good work mean that he can’t use
cocaine, nah uh. Dennis Quaid, prolific actor, needed inpatient
treatment. Friends, Matthew Perry, fabulous performer, shows up
every week. Had to go to inpatient treatment for drugs. How
about this one, Robert Downey, Jr., wins an Emmy for the
performances that he had during the time with which he was
actually being arrested, charged and showing up positive for
having used cocaine. Sure, you can function, as Doctor Jain
said. You can use it in the morning and you won’t know by your
testimony in the afternoon if the man sitting next to you could
have used it last night and you wouldn’t know today. Besides
the Accused’s samples are consistent with weekend use, not being
buzzed in the office.
We gave you various calendars, things to think over and as
far as whether or not he was in fact trying to avoid the
urinalysis, sure he was. Sure he was. And why wouldn’t he?
He’s got a cocaine problem and it’s going to show up in his
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urine. Sure. And that’s where the defense exhibits A, B, C, D,
E, whatever, A through D come in. And I was glad that this
hearsay was admitted, that you could take a look at it. Because
it shows that as of the 22nd, Mr. Varoz had selected the Accused
and he didn’t test until the 9th. Some of it, I would ask you
not to consider, okay. March 30th, please don’t hold that one
against the Accused. It appears strongly to be a unit sweep.
And we don’t think that he tried to avoid a unit sweep. It
wasn’t his unit. So don’t hold that one against him. But let’s
look at the 26th, and the 28th and the times that he took leave,
not a bad idea. And just go get yourself into class. And
you’re home free. He was awfully close in the science. One
more urination cycle and it would have been out of his system.
It was his time to get caught. And it’s now time to
convict. He clearly is a weekend cocaine user, on divers
occasions. There is no way that that second use of cocaine, or
that second urinalysis could have come from the one that began
or that was taken on the 9th of April. He is in fact guilty of
divers uses of cocaine. The system has worked exactly as
planned. And we ask you to find him guilty as charged.
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REBUTTAL ARGUMENT BY THE GOVERNMENT
CTC: Well, we sure do have different styles. And I think
it actually is going to play for once in the case. I will not
shout at you. I will reason with you. I will present evidence
and what’s fair. I ask you to consider that. And in the
overwhelming light of what you know now, the defense’s shouting
fails and here’s why. Yes, we do have to prove that he
knowingly and consciously used drugs. But you can infer that in
the absence of evidence to the contrary. What is he going to do
about those two positive urinalyses? Nothing. Dad, I got
pregnant from a toilet seat, twice. No, way. Now, whether or
not he was selected and he read his email is almost academic.
Because it’s so clear from the urinalyses that he was doing it
over and over. But the emails and whether or not he knows, is
very clear, he was dodging the test. And he was dodging it
because he knew it was in his urine. He dodged it on the 26th,
dodged it on the 28th and took a class for the next week. He
was good to go. Of course, he knew that that was his duty and
of course he knew that his first sergeant wasn’t going to be
there that week. Now the defense’s attempt at persuading you by
saying, “Hey, if he knew he was going to take a test, well then,
he knew that he knew he had a bullet with his name on it. And
he wouldn’t have done cocaine.” That’s why it’s illegal. It’s
addictive. And it’s a strong addiction. And it’s something
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that once you’ve gotten involved in it, you like it in your life
and that’s where Sergeant Fletcher was at the time. And he
thinks he’s a pretty smart fellow, Sergeant Fletcher does. He’s
gotten some real positive feedback in his life about how smart
he is. So he thought he knew the test and he knew how to beat
it. Except for he miscalculating it by one urination. Why did
he consent? Well, he thought it was going to be negative. It’s
Tuesday, it should have been out by then, unless he was doing it
on Saturday night or a big batch on Friday. Lab errors and
mistakes, Doctor Jain, a cheerleader for Brooks. Hah, Ha, Ha.
That’s rich. Doctor Jain is involved in inspecting the lab.
He’s one the folks who look into it to see, and mark them down
when their naughty. When they’re doing the inspections for
whether or not there’s QCs or whether or not there’s
conspicuously posted who gets in and who gets out signs. Now
the tracking numbers changing from 2 to 7, was it caught at the
Brooks lab? I don’t know. Do you care, no. If that’s the best
they can point to, it’s a pretty super test. Doesn’t shake
anyone’s confidence in sending their urine sample over. You
know that the lab tests, and I’m showing you Prosecution Exhibit
5 for example, the lab doesn’t test for the base’s number of
228. The lab tests from their bar codes and their scanner. So
what’s on the bottle, other than the Accused’s social, isn’t
what the lab goes by. It makes pretty good sense that they
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United States v. Fletcher, No. 04-0465/AF
wouldn’t catch that. If they didn’t, they didn’t. The Basalt
Study is just my favorite. I have a package of Sweet’N Low
here. I’m going to dump it all out. Now, we’re talking about
in the Basalt study, 1/20th of a package of Sweet’N Low, so
let’s see, oops I dropped some, a little tiny bit. It’s back on
now. Let’s see what happens when we take a 20th from the
package of Sweet’N Low --
CDC: Your Honor, I’m going to object regarding this, how
that she’s going to divide this into 1/20th.
MJ: Sustained.
CTC: Well, member’s, you’ve got Sweet’N Low. You can
think about it. You can take 1/20th except for don’t take
1/10th of it and line it out and see if it doesn’t look just
like Miami Vice. Why would you take a 1/10th of it, because
street purity is only about 50 percent. It looks exactly like
what a drug user would stick up his nose. Under the Basalt
Study it wasn’t even about that. The Basalt Study was about
catching and orally ingested cocaine in urine, and how do we
know that? Because Doctor Jain and Doctor Basalt worked
together. And they are professional associates and well
acquainted with all the procedures. And that’s on the test.
No, you can’t take that much orally even dissolved in a liquid
and not feel it.
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United States v. Fletcher, No. 04-0465/AF
CDC: Objection, Your Honor. Facts not in evidence.
MJ: Overruled.
CTC: You get a numb mouth. You get a racing heart. You
get increased alertness. And that is what you get and that is
what Doctor Jain testified to. And that’s just a little amount.
But certainly, if you do the test you’ll see. Are you scared of
your pizza delivery guy now? I don’t think so. Drug users like
their drugs. They’re not going to be the cocaine fairy jumping
around giving it away as an Easter gift. Who’s going to give
away cocaine? It’s contraband. It’s hard to come by. It’s a
very expensive item, and it’s very dangerous to get it from the
kind of people who sell it. They don’t give that away. Plus,
it’s addictive, so you want to hang onto it. Twice, the cocaine
fairy visits him twice? No way. Now the part about the Accused
lying is really funny because the defense attorney who is the
one with the overpowering and yelling and cutting people off
cross examinations and the wild argument that he just gave
you --
MJ: Five minutes.
CTC: -- okay. He’s the one that could have scared a
witness and freaked them out. Me, I won’t cut them off. I’ll
apologize if I do.
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United States v. Fletcher, No. 04-0465/AF
CDC: Objection, Your Honor, improper argument.
MJ: Sustained. Don’t comment on the character of the
defense attorney.
CTC: I’m commenting -- yes, Your Honor, I’m commenting on
myself though, sir.
MJ: Just comply.
CTC: Well, ask yourselves, do I scare you? Am I going
to --
CDC: Again, objection, Your Honor.
MJ: Overruled.
CTC: Will I cause you to lie?
MJ: Sustained.
CTC: Now --
MJ: Hold on a second. I’m sustaining the objection.
We’re not trying the character of counsel.
CTC: Yes, Your Honor.
MJ: Talk about the evidence.
CTC: Well, and then when the Accused gets up on the stand
and he lies who in fact was asking him the question? His own
lawyer. Not me. And that was the first lie. Well, bladder and
kidney problems, that’s another phony distraction. Colonel
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United States v. Fletcher, No. 04-0465/AF
Torrent’s stipulation of expected testimony shows that there was
no way that any medications or bladder and kidney problems could
possibly have caused a positive result. Like Doctor Jain
testified, cocaine tests for cocaine metabolites, nothing else.
And when you come down to the end of this case, there’s just
nothing that the defense can tell you, there’s nothing that I
can tell you that the evidence doesn’t already show you. If you
take urine from the Accused on a Monday or a Tuesday, it’s going
to show up positive for cocaine. And you need to find him
guilty as charged. And we ask you to do just that. Thank you.
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United States v. Fletcher, No. 04-0465/AF
CRAWFORD, Judge (dissenting):
While I agree that trial counsel’s argument was at times
improper and unprofessional, there is nothing to indicate that
any such error materially prejudiced Appellant’s substantial
rights. Thus, whether or not defense counsel’s objections are
preserved for appeal, I agree with the United States Air Force
Court of Criminal Appeals (CCA) that “[v]iewed in the context of
the case as a whole, including the strength of the government’s
evidence . . . the prosecution argument did not ‘undermine the
fundamental fairness of the trial and contribute to a
miscarriage of justice.’” United States v. Fletcher, No. ACM
34945, slip op. at 8 (A.F. Ct. Crim. App. Feb. 27, 2004). For
this reason, I find that any improprieties by trial counsel in
this case were harmless, and I therefore respectfully dissent.
Objections by Defense Counsel
As noted, defense counsel remained silent during the
Government’s primary findings argument, and made only two
objections relevant here during the Government’s rebuttal. The
military judge promptly sustained both objections, and
admonished trial counsel not to remark further on defense
counsel’s character. There were no objections to the remaining
three categories of alleged prosecutorial misconduct.
Significantly, this Court has previously noted that “‘the
lack of defense objection is relevant to a determination of
United States v. Fletcher, No. 04-0465/AF
prejudice’ because the lack of an objection ‘is some measure of
the minimal impact of a prosecutor's improper comment.’” United
States v. Gilley, 56 M.J. 113, 123 (C.A.A.F. 2001) (quoting
United States v. Carpenter, 51 M.J. 393, 397 (C.A.A.F. 1999));
see also United States v. Doctor, 7 C.M.A. 26, 135, 21 C.M.R.
252, 261 (1956) (“It is a little difficult for us to find
misconduct which compels a reversal when it purportedly arises
out of an argument which had so little impact on defense counsel
that they sat silently by and failed to mention it . . . at the
time of trial.”).
Here, aside from the probable minimal impact of trial
counsel’s remarks, defense counsel had independent reasons to
believe that any objections would be futile. Trial counsel’s
references to religious figures, for example, were “fair
response” defense witness testimony concerning Appellant’s
affiliation with the Baptist church and his living a “Christian
life.” Gilley, 56 M.J. at 120. Other courts have found
harmless error under a theory of “invited response” where the
Government included religious statements in the closing
argument. See, e.g., Boyd v. French, 147 F.3d 319, 329 (4th
Cir. 1998) (biblical references by prosecution were invited by
appellant’s testimony concerning his salvation while in prison
awaiting trial, and statement that Satan beguiled him into
committing the murder); Fahy v. Horn, 2003 U.S. Dist. LEXIS
2
United States v. Fletcher, No. 04-0465/AF
14742, at *152, 2003 WL 22017231, at *53 (E.D. Pa. 2003)
(prosecutor’s statement that defendant was the “representative
of Satan who committed this act” was invited by defense
counsel’s remark that “[s]omeone, some representative of Lucifer
or Satan went into that house and did this unconscionable
deed.”).
Strength of the Government’s Case
In finding plain error below, the majority assigns undue
significance to the Government’s findings argument, and not
enough weight to the trial as a whole. Trial counsel’s
allegedly improper comments are limited to twenty-one pages of
the transcript, among what the majority characterizes as “an
otherwise long and uneventful trial.” Whether or not eventful,
the CCA concluded -- and I agree -- that the Government’s case
against Appellant was strong. Notwithstanding Appellant’s
efforts to attack the laboratory and the results of his two drug
tests, the CCA found:
[T]he uncontroverted testimony of [Dr. Jain]
established that the urine testing was done properly,
that any mistakes attributable to the laboratory were
minimal and did not impugn the reliability of the
results, and that the two tests were sufficiently far
apart so as to reflect two separate and distinct
ingestions of cocaine.
Fletcher, No. ACM 34945, slip op. at 7.
By contrast, Appellant’s innocent ingestion theory was
relatively weak. The members could very reasonably have
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United States v. Fletcher, No. 04-0465/AF
dismissed Appellant’s suggestion that the cocaine he ingested
was placed in his food by a drug-handling chef: “[I]s it so
preposterous that here in Cocoa Beach . . . a cook, a chef, a
bartender, the delivery person using cocaine . . . could be
using [it] on food preparation surfaces. It could be in a bar
and people wiping it clean and it falling into glasses. . . .”
As the CCA noted, “appellant’s own testimony provided no reason
seriously to believe or even suspect that an unknowing ingestion
had occurred.” Fletcher, No. ACM 34945, slip op. at 7. We have
previously considered the plausibility of an appellant’s defense
theory in determining prejudice from error. See e.g., United
States v. Walker, 42 M.J. 67, 74 (C.A.A.F. 1995) (finding
“patently feeble” appellant’s innocent ingestion theory based on
“consumption of ‘crumb cake’ during a drinking party,” testimony
that “his lips were ‘numb and tingly,’ and the subsequent
discovery that a drug dealer attended the party.”); United
States v. Brooks, 26 M.J. 28, 29 (C.M.A. 1988) (considering
appellant’s “weak” theory of the case and “implausible”
suggestion that the Army investigator’s confidential informant
planted evidence on him in determining harmlessness).
Appellant’s failure to seriously challenge the Government’s case
against him is relevant to my determination that he suffered no
material prejudice from trial counsel’s comments.
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Limiting Instructions
In addition to the strong case against Appellant, the
military judge took appropriate steps to limit any potential
harm resulting from trial counsel’s remarks. After the findings
argument, the military judge instructed the members: “Remember,
that the arguments of counsel are not evidence, but they may
assist you in forming your view of the evidence. . . . It is
your own independent recollection of the evidence that you must
rely upon in deciding the facts in the case.” Jurors generally,
and perhaps our “blue ribbon” military panels particularly, are
presumed to follow a military judge’s instructions. Nothing
demonstrates to me that the members in this case were unwilling
to or incapable of understanding and complying with the
instruction above.
Plain Error
Finally, for the same reasons that Appellant cannot show
material prejudice to his substantial rights under Article
59(a), Uniform Code of Military Justice, 10 U.S.C. § 859(a)
(2000), he cannot succeed on plain error.
Before an appellate court can correct an error not
raised at trial, there must be (1) “error,” (2) that
is “plain,” and (3) that “affect[s] substantial
rights.” If all three conditions are met, an
appellate court may then exercise its discretion to
notice a forfeited error, but only if (4) the error
“seriously affect[s] the fairness, integrity, or
public reputation of judicial proceedings.”
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United States v. Fletcher, No. 04-0465/AF
United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000) (Crawford,
C.J., concurring) (quoting Johnson v. United States, 520 U.S.
461, 466-67 (1997)) (citation omitted). As I stated in Kho, I
see no difference between an error that “materially prejudices
. . . substantial rights” under Article 59(a), and an error that
“affects substantial rights,” as contemplated in Johnson. Kho,
54 M.J. at 66. Therefore, the facts of Appellant’s case,
applied to the above test, do not require this Court to take
corrective action. For these reasons, I respectfully dissent.
6