United States v. Knickerbocker

2 M.J. 128, 1977 CMA LEXIS 10630

• Court: United States Court of Military Appeals
• Decided: February 28, 1977
• Docket: No. 32,192; SPCM 11280
• Status: Published

Opinions

Opinion of the Court

COOK, Judge:

The accused was convicted by a special court-martial on three charges, including arson of building 2305 at Fort Benning, Georgia. On this appeal, the Government concedes that, in trial counsel’s final arguments to the court members in connection with the verdict, he improperly interjected personal comments on matters that were for the court members to determine. However, it contends the accused cannot urge reversal of his conviction on that ground because defense counsel did not object at trial to the improper remarks and the remarks were not so patently prejudicial to the accused as to justify our taking notice of them as “plain error” requiring corrective action in the interest of justice. See United States v. Nelson, 1 M.J. 235 (1975); United States v. Poteet, 50 C.M.R. 73 (N.C. M.R.1975).

On December 28, 1974, several fires occurred at Fort Benning. Testifying as a Government witness, Private Adams stated he had obtained a flammable wax from the accused and had used it in setting fire to building 2305. Other witnesses testified to different circumstances tending to link the accused to the fire. Testifying in his own behalf, the accused denied any criminal conduct. In his closing argument as to the merits, trial counsel conceded there “were several individuals who were suspected . and it is certainly understandable that . . . you [the court members] could be confused as to what transpired and [in] what sequence.” He then attempted to reconcile certain aspects of the testimony of the Government witnesses that “appear[ed] to be” inconsistent. Turning to the accused’s testimony, he said:

Now, I m sure as I was attempting to cross-examine, and that is all I can say it was, an attempt, to cross-examine Knickerbocker you noticed that, and I’m sure it was quite obvious to everyone, that I was sort of at a loss as to what questions to ask. And certainly as I listened to that fairy tale, I didn’t know where to start. And I think, possibly in looking back at in retrospect, the best thing I could have said was to have said nothing at all. Let the man’s testimony speak for itself. It is, by any stretch of one’s imagination, incredible at the very least. Now, he tells us that, specific incidents for example, the reason he didn’t sign in is because he was with two people, Annie Bangbang and some other girl. Now, I give the man credit for being imaginative. That’s foolishness. I don’t know quite what to say about the whole gist of his testimony other than, well beyond the grounds of anything reasonable I know about.

Elsewhere in the argument, the trial counsel expressed his personal reaction to parts of the testimony of the accused and other witnesses. The general implication of these is apparent in the lingua lapsa that appears in his comment that common sense would have the “biggest role” in determination of the facts “when you retire to consider your sentence." (Emphasis supplied.) Finally, in concluding his remarks on the arson charges, he said:

I think that having listened to all of the evidence in this case, there is very little doubt, in fact in my mind there is no doubt whatsoever, that the man sitting over there at the defendant’s table, Mr. Terry Knickerbocker, was in fact the individual who was involved in this matter as a principal. [Emphasis supplied.]

At the very least, the judge should have interrupted the trial counsel before he ran the full course of his impermissible argument. Corrective instructions at an early point might have dispelled the taint of the initial remarks. As it stands, the record leads to the uncomfortable conclusion that the accused was patently denied a fair trial as to the arson charges, and requires that we take cognizance of the error and its effects, despite the absence of timely objection at trial.

With the arson charges, the accused was convicted of breach of restriction. That offense was committed more than a week after the arson events, and trial counsel made only a brief reference to it. He acknowledged that the offense was “certainly a small part” of the case, but nevertheless he stressed that it was “indicative” of the “entire matter.” His peroration included the declaration, “Now again, the incredibility of this entire fabrication is such that I find it almost insulting.” In view of trial counsel’s Siamese-joinder of the offenses, we are unable to conclude that the court members’ findings as to the restriction offense were uninfluenced by his extended impermissible argument on the arson charges.

The decision of the United States Army Court of Military Review is reversed, and the findings of guilty of all the charges and the sentence are set aside. A rehearing may be ordered by a competent court-martial authority.

Judge PERRY concurs.