United States v. McPhaulUnited States v. McPhaul
OPINION OF THE COURT
Pursuаnt to his plea, Private First Class (PFC) McPhaul was convicted of rape in violation of Article 120, Uniform Code of Military Justice [hereinafter cited as UCMJ], 10 U.S.C. § 920 (1982). A general court-martial consisting of officer and enlisted members sentenced him to a bad conduct discharge, confinement for five years, forfeiture of all pay and allowances, and reduction to the grade of Private E-l. The convening authority approved the sentence.
Appellant raises as the first of three assigned errors that the military judge erred by not personally advising him of his several elections with respect to the composition of the court-martial.
Rule for Courts-Martial [hereinafter cited as RCM] 903 pertains to an accused’s elections regarding the composition of a court-martial. It prescribes the military judge’s duty to ascertain whether an accused wants to be tried by a court-martial that includes enlisted members or, in non-capital cases, whether an accused wants to be tried by military judge alone. Rule for Courts-Martial 903 does not require the military judge to explain these elections to an accused, nor does it set forth a procedure to be used by the military judge for determining whether an accused wants an enlisted court or a military judge alone court. We are mindful that the Discussion relating to RCM 903(c) indicates a clear preference for the military judge personally questioning an accused who requests trial by judge alone, to assure a knowing and understanding waiver of his right to a trial by members. However, such is not the case at bar because appellant did not request to be tried by military judge alone.
In this case, although the military judge made оnly a cursory personal inquiry of appellant,
We will not speculate why the military judge did not follow the procedural guide for courts-martial set forth in Appendix 8 of the Manual for Courts-Martial, United States, 1984, or the modified procedures in Chapter 2 of the Military Judges’ Bench-book, Department of the Army Pamphlet 27-9, Change 1 (15 Feb. 1985) [hereinafter referred to as Judges’ Benchbook]. Although we recognize that the use of these procedures is not mandatory, the failure to use them invites needless appellate litigation. If this had been a case where we could not have otherwise determined from the record that appellant’s choice of a member trial forum was understandingly made, the judge’s failure to discuss with and question PFC McPhaul in morе detail about his available elections would have resulted in error, requiring a test for prejudice. Article 59(a), UCMJ, 10 U.S.C. § 859(a) (1982). Therefore, military judges should assure themselves that accused are fully aware of and fully understand their trial forum rights. Use of the procedures in the Judges’ Benchbook currently is the best and most direct method of accomplishing this.
Finally, with respect to this particular assignment of error, even assuming arguendo that the military judge committed procedural error, we are satisfied that it was of little or no consequence in the case at bar. First, it can be assumed that PFC McPhaul’s civilian defense counsel properly advised his client of his available elections relative to the composition of the court-martial. See United States v. Nelson,
Private First Class McPhaul’s second assignment of error stems from the military judge’s denial of a challenge for cause of First Lieutenant (LT) Washington, a military police officer detailed as a court member. It is appellant’s positiоn that the presence of LT Washington created an “appearance of evil” and that the military judge should have granted the defense’s challenge on that ground alone. Moreover, because he failed to do so, the defense was forced to exercise its peremptory challenge against LT Washington rather than against a colonel who, at an earlier time in his career, had commanded a Criminal Investigation Command laboratory in Europe. We hold that the military judge did not err in denying the defense’s challenge of LT Wаshington. During voir dire, the defense elicited the following information from LT Washington: (1) she was a military police platoon leader at an installation other than the one where PFC McPhaul was stationed and being court-martialed; (2) she was not involved in investigating crimes, but dealt with administrative, personnel and training matters; (3) she had a Masters Degree in Criminal Justice; (4) she had worked for a law firm doing antitrust research before entering the Army; and (5) she also had worked for the Department of Licenses as an investigator. In the latter position, LT Washington investigated persоns involved in professional and occupational fields. No information was elicited from this court member to indicate that she would be unable to discharge her sentencing responsibilities fairly and impartially.
“The test for determining the propriety of a challenge for cause is whether the prospective court member is mentally free to render an impartial finding and sentence based upon the law and the evidence presented.” United States v. Cunningham,
In United States v. Swagger,
By this time it can be assumed that staff judge advocates are aware of this court’s position on the appointment of military policemen as court members. See United States v. Swagger,
We would be remiss if we did not go on to observe that the appointment of policemen to courts-martial is not generally a good practice____ Admittedly, there may be some commands wherein it could be extremely difficult to avoid. It is largely to acсommodate those situations that we do not exercise our supervisory authority to establish any per se rules in this area but are content to search for bias or prejudice in individual cases.
United States v. Brown,
Appellant’s third and last assignment of error is that the military judge erred in denying the defense’s motion for a mistrial because trial counsel’s presentencing argument was inflammatory. Private First Class McPhaul pleaded guilty as an aider and abettor to the rape of an unconscious fifteen year old girl. Although he himself was unable to consummate intercourse with the victim, he hеlped another soldier rape the girl by holding one of her legs and verbally encouraging the soldier who was committing the rape. He then watched as two other soldiers raped the victim, and as they and other soldiers committed various sexual acts on her person to include anal and oral sodomy. Another soldier who also was watching the gang rape and other sexual attacks got his camera and took photographs. One of these color photographs shows PFC McPhaul holding the unconscious girl’s leg while another soldier rаpes her and a third soldier watches. In another photograph a smiling PFC McPhaul is one of four soldiers clustered around the victim.
The graphic depiction of PFC McPhaul’s participation in and presence during these continuing and despicable sexual attacks does not end with the foregoing two photo
Marshaling this evidence, the trial counsel made the following remarks as part of his presentencing argument. He told the members that “[t]he crime was so filled with depravity and perversion that only the most severe sentence would suffice____”; that the Army did not tolerate “degenerate scum” like PFC McPhaul; that McPhaul might be a good worker but he was a “miserable human being,” and that his actions were “subhuman.” Trial counsel went on to characterize PFC McPhaul as a Dr. Jekyll and Mr. Hyde, and then stated that on the night of the сrime McPhaul was the “most beastly old Mr. Hyde.” Later in his argument, trial counsel made these comments about PFC McPhaul:
The accused’s character as good character is only skin deep. He sloughed off the veneer of civilization in a matter of seconds that night. Turning into Mr. Hyde, drooling over his naked victim. He is a chameleon that shed his skin, he shedded [sic] it in an instant, gleefully attacking this girl.
At one point during his argument, trial counsel referred to the color photographs that were in evidence and asked rhetorically whether appellant looked rеmorseful or had the look of “some slavering animal.” Trial counsel also referred to the photographs in asking two court members by name, again rhetorically, if PFC McPhaul was smiling at them. In the concluding portion of his argument trial counsel stated:
The defense counsel, in voir dire and in argument, indicated that the accused has been punished enough, he has been convicted. A federal felony conviction and somehow that is enough. His mother also agrees, she doesn’t think any punishment is necessary. The defense, the accused obviously agrees, he doesn’t want to be punished. So, the defense counsel is, more or less, saying you are irrelevant, you are just a rubber stamp, he’s already been punished enough. Just go ahead and sign off on it, the man is punished. Well, none of this, thankfully, it’s not the accused’s say as to what happens to him today.
Appellant’s civilian defense counsel did not object to trial counsel’s argument. Appellant’s counsel had made the opening presentencing argument and was given the opportunity to make a rebuttal argument. During this rebuttal argument, the civilian counsel commented on trial counsel’s characterization of his client as a “slavering animal” and a “Jekyll and Hyde,” and told the members that trial counsel’s argument was “totally baseless and “unsupported by any evidence or testimony.” When the defense had finished its rebuttal argument, the military judge instructed the members on sentencing without objection by either side. The defense then asked for an out-of-court hearing and in the hearing moved for a mistrial. The grounds for the motion were that trial counsel had made an inflammatory argument that substantially prejudiced PFC McPhaul and that, further, trial counsel had argued uncharged misconduct. The military judge denied the motion and we are satisfied that he did not err in doing so in this case.
Although RCM 905(e) states as a general principle that objections not made before a court-martial is finally adjourned are waived, RCM 1001(g) specifically provides that “[f]ailure to object to improper argument before the military judge begins to instruct the members on sentencing shall constitute waiver of the objection” (emphasis added). We find RCM 1001(g) controlling. At no point in the course of trial counsel’s allegedly inflammatory argument did the defense interpose an objection, notwithstanding that such an objection could have obviated the problem immediately. Instead, defense counsel, in rebuttal, elected to repeat some of the trial counsel’s “inflammatory” characterizations of PFC
This is not the issue before us, however, since the defense chose as a matter of trial strategy to move for a mistrial. Rule for Courts-Martial 915(a) is the governing rule as to when a military judge should declare a mistrial. It provides, in part, that “[t]he military judge may, as a matter of discretion, declare a mistrial when such action is manifestly necessary in the interest of justice because of circumstances arising during the proceedings which cast substantial doubt upon the fairness of the proceedings.” The Discussion relating to RCM 915(a) pertinently provides that “[t]he power to grant a mistrial should be used with great caution, under urgent circumstances, and for plain and obvious reasons. As examples, a mistrial may be appropriate when inadmissible matters so prejudicial that a curative instruction would be inadequate are brought to the attention of the members____”
It is axiomatic that a trial counsel is permitted to make forceful argument, commenting both on the evidence and the reasonable inferences that are supported by the evidence. He is charged with being as zealous an advocate for the Government as defense counsel is for the accused. “He may strike hard blows, but they must be fair.” United States v. Doctor,
Trial counsel’s sentencing argument was solidly grounded on a stipulation of fact agreed to by PFC McPhaul, which included as enclosures four color photographs depicting his involvement in the sordid gang rape. Comments that appellant was a Dr. Jekyll and Mr. Hyde were in response to the defense’s representation of PFC McPhaul as a model young man who suffered a temporary moral lapse. The defense counsel portrayed appellant as having yielded to peer pressure, while, based on the stipulation of fact, the trial counsel fairly countered that it was McPhaul who had initiated the sexual attacks on the unconscious teenage girl. Although references to PFC McPhaul as a “slavering animal” and “degenerate scum” were inartful, they were not improper in light of the depraved nature of the crime and appellant’s continued presence during its commission. Photographs depicting PFC McPhaul grinning while crowded around the nude victim with three other grinning soldiers, and mugging for the camera with his tongue stuck out while the girl apparently was being orally sodomized in the background, merited forceful comment. As recorded on film, appellant appeared to affect a jaunty insouciance about the victim.
A less than aggressive argument by the trial counsel would have been inconsistent with the barbaric acts depicted, and would have tended to create the impression that the Government did not view PFC
Further, trial counsel’s remarks that the defense counsel was saying that the court members were “irrelevant” and “just a rubber stamp” must be considered in the context in which they were made. These remarks were an attempt to counter the defense’s position that appellant had been punished enough by his conviction, and that additional punishment would serve no useful purpose.
Nor did trial counsel’s rhetorical question about whether PFC McPhaul, as depicted in the prosecution’s photographic evidence, was smiling at certain court members amount to an appeal for the members to adjudge a sentence based on personal considerations. We are satisfied that no member reasonably could have believed that trial counsel was asking him to visualize either his wife or daughter as the victim, and to sentence PFC McPhaul accordingly. See United States v. Shamberger,
Since we hold that trial counsel’s presentencing argument did not exceed the bounds of fair comment under the circumstances of this case, any defense strategy of withholding timely objection to the trial counsel’s argument, of highlighting in rebuttal аrgument several of the remarks defense apparently found objectionable, and of moving for a mistrial after the members had received sentencing instructions, in a word, failed. But even assuming arguendo that trial counsel’s presentencing argument was improper, the cumulative effect of the argument from beginning to end did not prejudice the substantial rights of PFC McPhaul. See Article 59(a), UCMJ, 10 U.S.C. § 859(a) (1982); cf. Darden v. Wainwright, — U.S.-,---,
In reviewing trial counsel’s entire presentencing argument, we do not find its content to be a circumstance casting substantial doubt on the fairness of appellant’s sentencing proceedings. Accordingly, we find that the military judge did not abuse his discretion in denying the defense’s motion for a mistrial in this case. See RCM 915(a); United States v. Matthews,
Appellant personally contends that his sentence is excessive. We disagree. Appellant’s offense of rape subjected him to a possible sentence of life imprisonment. He negotiated a pretrial agreement which provided that the convening authority could
With the foregoing factors in mind, we have considered the trial record in its entirety and have evaluated with great care appellant’s impressive character evidence against the serious nature of his offense. Having done so, we conclude that PFC McPhaul’s sentence is not excessive. See United States v. Hendon,
Accordingly, the finding of guilty and the sеntence are affirmed.
Notes
. The military judge, after determining that PFC McPhaul had submitted a written request to have enlisted members on his court, addressed him directly concerning his understanding of the types of trial forums that were available to him. The judge stated that apparently PFC McPhauTs civilian defense counsel had discussed with him the "various types of trial” encompassed by a general court-martial, and proceeded to confirm appellant's knowledge of his several elections by conducting the following inquiry:
MILITARY JUDGE: [D]o the words there [in the written request for enlisted mеmbers] mean that you are requesting that you have at least one-third enlisted persons detailed to your case?
ACCUSED: Yes, sir.
MILITARY JUDGE: I’m assuming that Mr. O’Dowd [PFC McPhaul’s civilian defense counsel] has informed you basically of the three different types of trial that you could have. Is that correct, PFC McPhaul?
ACCUSED: Yes, sir.
MILITARY JUDGE: And do I correctly assume that by submitting this written request, that means you are making the decision to be tried by a panel with officers and enlisted persons. Is that correct?
ACCUSED: Yes, sir.
. We reserve judgment on whether a military judge would meet the present requirements of military law by addressing his inquiries solely to an accused’s defense counsel. An example would be where the military judge inquired of counsel if he had advised his client of his three elections on the composition of the court-martial; if counsel specifically had advised his client of his right to be tried by members, to include enlisted members (assuming his client were an enlisted soldier); if counsel had informed.his client of his right to waive a trial by members and request trial by military judge alone; and whether his client understood his several elections and, if so, what election had his client made.
. We note that the use of the "appearance of evil” standard by this court in ruling that an individual was not competent to sit as a member has been infrequent. See United States v. Swagger, 16 M.J. at 760; United States v. Hampton,
This court, however, consistent with current regulatory policy and absent extreme factors similar to those found in Swagger and Hampton, will continue to consider issues challenging the impartiality of court members against the actual bias Or prejudice appearing in the record.