(concurring in part and in the result):
The majority and I walk the same road, observe the same scenery, and arrive together at the same destination. It is only at the end do we diverge. I enter the city of affirmance by the gate marked harmless error and walk down the street of intent. The majority stands at the city limits and declares they have arrived.
To start with, I completely agree with the majority on the law to the effect that a prosecutor may not comment in his or her closing argument about the courtroom demeanor of an accused who does not testify. See, e.g., United States v. Schuler, 813 F.2d 978, 980 (9th Cir.1987) (defendant laughing in courtroom); United States v. Carroll, 678 F.2d 1208, 1209-10 (4th Cir.1982) (defendant examining a court exhibit of a photograph of a crime scene and appearing to explain photograph to his lawyer). Thus, in the case at bar, the prosecution’s remarks about appellant’s yawning during a witness’s description of his daughter’s death were improper comments.
However, this error was harmless and not substantial in light of the overwhelming evidence of appellant’s guilt. Art. 59(a), Uniform Code of Military Justice, 10 USC § 859(a). How one views the evidence is critical. Appellant’s defense was that he did not intend to harm his daughter. Intent was key. When I look at the evidence, I focus on intent. The evidence showed that Lance Corporal Cook had the intent to kill or cause great bodily injury to his 14-month-old daughter. The pictures admitted as exhibits at the trial showed the impact of severe blows to her head, face, and body. The evidence showed that Cook (6'3" tall), experienced in Tae Kwan Do (a martial art), battered his daughter (14 pounds) repeatedly. The jury saw evidence that Cook’s distinctive ring left a similar imprint found on his daughter’s head. The jury heard evidence that Cook’s daughter suffered massive internal bleeding, tears in her kidneys, bowels and mesentery, distention of her stomach, and two broken ribs. There was evidence that these internal injuries were sufficient to cause death. In addition, the jury heard testimony that appellant squeezed his daughter’s head for 15 seconds and then “whipped her body out behind her” while holding her *68head with both hands. Pros. Exh. 39. The jury heard medical evidence that this resulted in fractures of his daughter’s skull, causing inflammation and hemorrhaging of the brain as well as blood loss through her nose. (R. 946)
The above evidence,* plus the evidence of Cook’s First Sergeant’s prior warnings about previous beating of his daughter, showed in abundant measure to the jury that Cook intended to kill or cause great bodily harm to his daughter. In light of this overwhelming evidence of guilt, the trial counsel’s improper comment on “yawning” could not have had any effect on the jury’s decision. I am convinced that the error here was harmless under Article 59(a). In answering the granted issue, I say Lance Corporal Cook did receive a fair trial.
The Government’s Final Brief at 7-8 was very helpful in summarizing the evidence for the prosecution at trial. Good briefs are important in our Court.