UNITED STATES, Appellee
Esteven E. RODRIGUEZ, Private
Crim. App. No. 200200740
BAKER, J., delivered the opinion of the Court in which CRAWFORD, C.J., GIERKE, EFFRON, AND ERDMANN, JJ., joined.
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
false official statements, wrongfully selling and disposing of military
property, wrongful appropriation, and larceny, in violation of Articles
107, 108, and 121, Uniform Code of Military Justice [hereinafter UCMJ],
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.
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.”
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
unduly to inflame the passions and prejudices of the sentencing
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
is different from other improper argument.
Where trial counsel makes improper racial comments the error
be tested for prejudice because of the overwhelming prejudice that that
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
unwarranted racial argument: “The Constitution prohibits racially
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
determinations are fact specific. In a
given situation racial or ethnic remarks, including before a military
may deny an accused a fair trial. Race is
different. See, e.g., McCleskey, 481
We answer the certified question in the
negative. The decision of the United
States Navy-Marine Corps Court of Criminal Appeals is affirmed.