UNITED STATES, Appellee
v.
Esteven E. RODRIGUEZ, Private
No. 04-5003
Crim. App. No. 200200740
Argued
Decided
BAKER,
J., delivered the opinion of the Court in which CRAWFORD, C.J., GIERKE,
EFFRON,
AND ERDMANN, JJ., joined.
Counsel
For
Appellant: Lieutenant Colin A. Kisor,
JAGC, USNR (argued).
For Appellee: Captain
Wilbur Lee, USMC (argued); Colonel Michael E. Finnie, USMC
(on
brief).
Military
Judges: S.
A. Folsom and R. C. Harris
THIS
OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
Judge BAKER delivered the opinion of the
Court.
Appellant was tried by a military judge
sitting as a general court-martial. He
was convicted in accordance with his pleas of conspiracy to commit
larceny,
false official statements, wrongfully selling and disposing of military
property, wrongful appropriation, and larceny, in violation of Articles
81,
107, 108, and 121, Uniform Code of Military Justice [hereinafter UCMJ],
10
U.S.C. §§ 881, 907, 908, and 921 (2000), respectively.
Appellant’s sentence was adjudged on
The Judge Advocate General of the
Navy
certified the following issue to this Court:
WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL
APPEALS ERRED WHEN IT FOUND THAT THE PORtion OF THE Trial counsel’s
sentencing
argument comparing PRIVATE RODRIGUEZ’ ACTIONS TO A “Latin Movie” was
“merely a
‘gratuitous’ reference to race” as opposed to an argument based upon
racial
animus and therefore did not require reversal of the sentence.
Based on the specific facts of this case,
including the nature of the improper argument and the fact that it
occurred
before a judge alone during sentencing, we conclude Appellant did not
suffer
material prejudice to a substantial right as a result of trial
counsel’s
improper argument.
Background
According to his brief, “Appellant
is of
Mexican descent and is Latino.” At the
time of trial, Appellant was a 21-year-old private, and married with
one
child. During closing argument on
sentencing before the military judge, trial counsel stated: “These are
not the
actions of somebody who is trying to steal to give bread so his child
doesn’t
starve, sir, some sort of a [L]atin movie
here. These are the actions of somebody
who is
showing that he is greedy.” Trial
counsel’s closing statement covers approximately three and one half
pages in
the record. The comment in question
appears half way through the first page of the statement.
Defense counsel objected to trial counsel’s
argument regarding the use of the term “steal” and on the ground that
trial
counsel was commenting on pretrial negotiations. Defense
counsel did not object to the
prosecutor’s reference to “some sort of a [L]atin
movie.”
The Court of Criminal Appeals
(CCA) “discern[ed] no logical basis for the
trial counsel’s ‘[L]atin movie’ comment.”
Rodriguez, NMCCA 200200740, slip op. at 6.
As a result, the CCA concluded that “the
comment was improper and erroneous.”
Discussion
The certified question asks
whether the CCA
erred when it characterized trial counsel’s statement as “merely a ‘gratuitous’
reference to
race as opposed to an argument based upon racial animus.” However,
we believe
the parties have framed a different question in their briefs and
arguments:
whether or not unwarranted references to race during a sentencing
argument are
subject to prejudice analysis.
It is improper for trial counsel
to seek
unduly to inflame the passions and prejudices of the sentencing
authority.
The Government concedes that the
remark “had
no clear relationship to any issue in the case” and that it could be
misinterpreted as an “indirect reference” to race.
Although in its brief the Government assumed arguendo that there might be error, at oral
argument it
conceded that trial counsel’s argument constituted error, whether or
not the
statement was “gratuitous” or based on animus.
The thrust of the Government’s argument is that in accordance
with Powell
an improper reference to race or ethnicity, like other improper
argument,
should be tested for material prejudice.
In this case, the Government concludes that the error is not
prejudicial
because Appellant pleaded guilty before a court-martial consisting of a
judge
alone; he failed to object to the statement; and he received an
appropriate
sentence.
In Appellant’s view, a statement
about race
is different from other improper argument.
Where trial counsel makes improper racial comments the error
“need not
be tested for prejudice because of the overwhelming prejudice that that
kind of
error causes to the military system of criminal justice.”
Further, Appellant invites our attention to
the Army Court of Criminal Appeals’ application of United States v.
Olano, 507 U.S. 725 (1993): that
“certain errors may
‘affect substantial rights’ without a concomitant showing of prejudice.”
Appellant’s argument is attractive
for the
clarity of its message. As this Court
has made clear, there is no room at the bar of military justice for
racial bias
or appeals to race or ethnicity. See,
e.g., United States v. Witham,
47 M.J.
297, 303 (C.A.A.F. 1997)(accused does not have right to discriminate
against
prospective members based on race); United States v. Green, 37
M.J. 380,
384 (C.M.A. 1993)(race is an inappropriate factor for determining a
sentence); United
States v. Diffoot, 54 M.J. 149, 154
(C.A.A.F.
2000)(Cox, J., dissenting)(“There is no question that race, ethnicity,
or
national origin may not be used to obtain a conviction.”); United
States v.
Greene, 36 M.J. 274, 282 (C.M.A. 1993)(Wiss,
J.,
concurring)(“Racial discrimination is anathema to the military justice
system.”). We are cognizant that if zero
tolerance means zero tolerance there is a risk that some may surmise a
mixed
signal where a court condemns with one hand but affirms with the other.
The Supreme Court has emphatically
condemned
unwarranted racial argument: “The Constitution prohibits racially
biased
prosecutorial arguments.” McCleskey v. Kemp, 481
In our view, unwarranted
references to race
or ethnicity have no place in either the military or civilian forum. The Supreme Court has not suggested
otherwise. However, we see no reason not
to adhere to the prevailing approach. See
generally Military Rule of Evidence 101 (applying rules of evidence
consistent with rules of evidence in federal district courts). Our holding acknowledges the importance of a
fair trial and the insidious impact that racial or ethnic bias, or
stereotype,
can have on justice. At the same time,
our holding acknowledges that where, in fact, there is no prejudice to
an
accused, we should not forsake society’s other interests in the timely
and
efficient administration of justice, the interests of victims, and in
the
military context, the potential impact on national security deployment.
Therefore, we agree with the CCA. Appellant did not suffer material prejudice
to a substantial right. Trial counsel’s
statement was before a military judge alone. Military judges
are presumed to know the law and to follow it absent clear evidence to
the
contrary. United States v. Mason,
45 M.J. 483, 484 (C.A.A.F. 1997)(citation
omitted). Finally, there is no indication
in the record
that the statement affected the military judge or impacted Appellant’s
sentence. Appellant was convicted of
conspiracy to
steal over $1,000 worth of military property, three specifications of
wrongfully disposing of military property, four specifications of
wrongful
appropriation of military property, three specifications of stealing
hundreds
of dollars worth of military property, and making false official
statements on
two occasions. Appellant’s maximum
exposure for these offenses was, among other punishments, over 54 years
of
confinement and a dishonorable discharge.
As noted earlier, Appellant’s adjudged sentence included three
years of
confinement, total forfeitures, a fine, and a dishonorable discharge.
We caution, however, that such
prejudice
determinations are fact specific. In a
given situation racial or ethnic remarks, including before a military
judge,
may deny an accused a fair trial. Race is
different. See, e.g., McCleskey, 481
Decision
We answer the certified question in the
negative. The decision of the United
States Navy-Marine Corps Court of Criminal Appeals is affirmed.