United States v. Marshall

52 M.J. 578, 1999 CCA LEXIS 314, 1999 WL 1000674
CourtNavy-Marine Corps Court of Criminal Appeals
DecidedMarch 11, 1999
DocketNMCM 97 00533
StatusPublished

This text of 52 M.J. 578 (United States v. Marshall) is published on Counsel Stack Legal Research, covering Navy-Marine Corps Court of Criminal Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Marshall, 52 M.J. 578, 1999 CCA LEXIS 314, 1999 WL 1000674 (N.M. 1999).

Opinion

COOPER, Judge:

The appellant was tried on 9 and 24 September, and 5 and 6 November 1996 by a general court-martial, military judge alone. He was convicted, contrary to his pleas, of one specification of sodomy with JM, a child under the age of 16, in violation of Article 125, Uniform Code of Military Justice, 10 U.S.C. § 925 (1994).1 We have reviewed the record of trial, the appellant’s assignments,2 of error and the Government response. After careful consideration, we conclude that error materially prejudicial to the substantial rights of the appellant was committed. We set aside the findings and sentence and authorize a rehearing. Arts. 59(a) and 66(c), UCMJ.

Ineffective Assistance of Counsel

The appellant contends that his military defense counsel were ineffective for the following reasons: 1) not contacting and calling witnesses the appellant identified and requested; 2) failing to elicit relevant facts from a material witness and settling for a written stipulation; 3) failing to call the character witnesses previously agreed upon to support his defense; 4) failing to present a case on sentencing; and 5) not being committed to his case.3 Brief and Assignment of Errors of 31 July 1998 at 5; Affidavit of M.W. Marshall of 26 February 1998.

In Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the U.S. Supreme Court articulated [580]*580the following standard for evaluating claims of ineffective assistance of counsel:

First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Strickland, 466 U.S. at 687, 104 S.Ct. 2052.

Background

The Government’s case was one primarily of hearsay and circumstantial evidence. It presented the testimony of the five-year-old victim, JM. We find insufficient evidence in the record to establish that she understood the difference between truth and falsity. Her answers were confusing, and we are unconvinced of her reliability.4 In essence, however, she testified that her father had not touched her inappropriately and never came into her bedroom except to tuck her in bed and to kiss her goodnight. The Government also offered JM’s out-of-court statements to her daycare provider, her social worker, and Captain Craig, Medical Corps, U.S. Navy, who is a Navy pediatrician and expert in child abuse.5 These statements implicated both the appellant and her stepbrother as persons who may have sexually abused her. Captain Craig presented medical evidence that the victim’s buttocks and anus showed abnormalities which, in her opinion, could have been caused and were consistent with anal sexual abuse. Notably absent were any admissions of the appellant or testimony of witnesses who ever saw the appellant mistreat his daughter.

The defense theories were first that JM was not abused; and second even if she was, the appellant did not do it. In support of the first theory the defense called an expert in child abuse, Lieutenant Colonel Boos, U.S. Air Force. He testified that the physical findings were consistent with sexual abuse but were not strong evidence of sexual abuse and occurred naturally in a small percentage of children. In support of the second theory, the defense relied primarily on the cross-examination of the Government witnesses: the daycare provider, JM’s mother, and Captain Craig. During cross-examination the defense attempted to show that JM’s stepbrother was physically aggressive towards JM, that he had abused JM and another child, and that both JM and the stepbrother were accomplished liars. JM’s mother testified on cross-examination that JM told her in June 1996 that the appellant, her father, had never touched her. Record at 41. Two other witnesses, Mrs. FW and Mrs. V, testified that JM adored her father, and that her stepbrother knew and used adult sexual language. A stipulation of expected testimony from POl VW, U.S. Navy provided evidence of a good relationship between the appellant and both of his children.6

During the sentencing phase, the Government presented evidence regarding the long-term effects of abuse on a child. The defense called no witnesses, and presented [581]*581nothing from the appellant’s service record.7 The defense presented no matters in mitigation even though the appellant had no negative matters in his service record and had a number of potential witnesses available to testify in mitigation. The defense counsel only presented one document regarding the availability of rehabilitative treatment at a Navy brig.

In his post-trial affidavit, the appellant indicates that he gave his defense counsel a list of nine potential witnesses who could vouch for his good character, his positive relationship with his children, and his daughter’s propensity to tell lies. These issues are all relevant to the defense theories. It appears that only three of the nine persons were contacted or interviewed prior to trial. The appellant presented affidavits from P02 H, U.S. Navy, and Mr. S, a former Navy petty officer, both of whom supervised appellant and indicated that they were willing to testify on his behalf, but were never contacted by the defense. Their affidavits provided information which counsel failed to discover. We find that this information meets the appellant’s burden to provide specific information that counsel should have discovered with reasonable investigation. See United States v. Russell, 48 M.J. 139, 141 (1998). Additionally, appellant presented the affidavits of two other witnesses: P03 H, U.S. Navy, and POl VW, U.S. Navy, who did talk with defense counsel. P03 H was present at trial, waiting to testify, but was not called on either the merits or on sentencing. POl VW’s affidavit and clemency letter indicate she was potentially a valuable witness to rebut JM’s out-of-court statements. We find disturbing POl VW’s comment that the defense counsel told her that her presence would not make a difference in this trial. The clemency letters contain favorable information which would have been useful for the military judge on the merits and if necessary, on sentencing. The fact that most of the witnesses were available during the trial compounds the error. Appellant’s affidavit and those of these other witnesses were not rebutted.8

Analysis

We start with the presumption that counsel was competent. United States v. Scott, 24 M.J. 186, 188 (C.M.A.1987). But after reviewing the record as a whole, including the unrebutted affidavits submitted by the appellant, we find that counsel’s performance was so deficient as to not meet prevailing professional norms. In particular, we find that counsel’s failure to recognize, investigate, and present evidence of the appellant’s good character falls below any objective standard of reasonableness.

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Related

Strickland v. Washington
466 U.S. 668 (Supreme Court, 1984)
United States v. Gagan
43 M.J. 200 (Court of Appeals for the Armed Forces, 1995)
United States v. Christy
46 M.J. 47 (Court of Appeals for the Armed Forces, 1997)
United States v. Russell
48 M.J. 139 (Court of Appeals for the Armed Forces, 1998)
United States v. Weathersby
48 M.J. 668 (Army Court of Criminal Appeals, 1998)
United States v. Rivas
3 M.J. 282 (United States Court of Military Appeals, 1977)
United States v. Belz
20 M.J. 33 (United States Court of Military Appeals, 1985)
United States v. LeMere
22 M.J. 61 (United States Court of Military Appeals, 1986)
United States v. Deland
22 M.J. 70 (United States Court of Military Appeals, 1986)
United States v. Court
24 M.J. 11 (United States Court of Military Appeals, 1987)
United States v. Scott
24 M.J. 186 (United States Court of Military Appeals, 1987)
United States v. Benedict
27 M.J. 253 (United States Court of Military Appeals, 1988)

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Bluebook (online)
52 M.J. 578, 1999 CCA LEXIS 314, 1999 WL 1000674, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-marshall-nmcca-1999.