United States v. Purdy

42 M.J. 666, 1995 CCA LEXIS 120, 1995 WL 232671
CourtArmy Court of Criminal Appeals
DecidedApril 19, 1995
DocketARMY 9301153
StatusPublished
Cited by3 cases

This text of 42 M.J. 666 (United States v. Purdy) is published on Counsel Stack Legal Research, covering Army 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. Purdy, 42 M.J. 666, 1995 CCA LEXIS 120, 1995 WL 232671 (acca 1995).

Opinion

OPINION OF THE COURT

EDWARDS, Senior Judge:

Pursuant to his plea, the appellant was found guilty by a military judge of consensual sodomy in violation of Article 125, Uniform Code of Military Justice, 10 U.S.C. § 925 (1988) [hereinafter UCMJ]. Contrary to his pleas, the appellant was found guilty by a general court-martial composed of officer and enlisted members of attempting to commit sodomy with a male under sixteen years of age, wrongful solicitation of a male under sixteen years of age to commit sodomy, and indecent liberties with a male under sixteen years of age in violation of Articles 80 and [668]*668134, UCMJ.1 The convening authority approved the adjudged sentence of a bad-conduct discharge, confinement for five years, and reduction to Private El.

Before this court, the appellant asserts six errors, and, in an appendix attached to the Brief on Behalf of the Appellant, the appellant personally asserts five additional matters pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.1982). In addition, a brief of Amicus Curiae was filed by the Military Law Task Force of the National Lawyers Guild on behalf of the appellant. This brief asserts that three reversible errors were committed by the military judge.

We have carefully reviewed the record of trial, the issues raised on behalf of and by the appellant, the government’s answer thereto, and the oral arguments presented to this court. The following issues raised on behalf of the appellant warrant a brief discussion.

I. Ineffective Assistance of Counsel

The Sixth Amendment guarantees an accused the assistance of competent counsel in trials by court-martial. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); United States v. Scott, 24 M.J. 186, 188 (C.M.A.1987). Counsel is presumed competent, and the latitude accorded counsel in the many decisions which must be made while preparing for defending a case is, by necessity, wide. To prevail on a claim of ineffective representation, appellant must first demonstrate errors committed by his counsel, and demonstrate that the error or errors were prejudicial, that is, but for the errors of counsel the outcome of the trial would have been different. Id. However, tactical decisions made by counsel, if reasonable, are not second-guessed on appeal, and they are viewed from counsel’s perspective under the then prevailing circumstances. United States v. Morgan, 37 M.J. 407, 410 (C.M.A.1993).

Before accepting the appellant’s pleas of guilty to soliciting an unknown male to commit sodomy (Specification 1 of Charge I) and sodomy with Sergeant (SGT) M (Charge III and its Specification), the military judge assured himself that the appellant was satisfied with his trial defense counsel in all respects. Moreover, the appellant informed the military judge that he had no complaints regarding his trial defense counsel. The pleas of guilty were then accepted by the military judge.

The appellant asserts that his defense counsel, Captain (CPT) M, was not a zealous advocate and that CPT M was ineffective at virtually every stage of the proceedings. We find that the appellant’s assertions are without merit.

Contrary to the appellant’s allegations, we find CPT M’s advocacy to have been commendable. He began by extensively litigating nine pretrial motions including: a motion for a new Article 32(b), UCMJ, investigation; a motion requesting that the court appoint a psychiatric expert to the defense team; a motion to suppress pretrial statements; a motion in limine to exclude uncharged misconduct; a motion to suppress three photographic identifications; a motion that Charge III (consensual sodomy with SGT M) was improperly preferred; a motion to sever Charge III; a motion to dismiss and/or consolidate charges on the grounds of multiplicity; and a motion to compel discovery. Captain M argued each motion persuasively and was successful in obtaining a court-appointed psychiatric expert for the defense team and suppressing two of the three photographic identifications made of the appellant by the fourteen-year-old victim.

The appellant also alleges that CPT M was particularly ineffective during the voir dire portion of his court-martial. We find that CPT M’s conduct before the panel in voir dire was excellent. Furthermore, his approximately 106 questions were likewise very effective and appropriately directed at touching upon the members qualifications. [669]*669It was from these questions that CPT M was successful in having two members removed for cause before the defense exercised its preemptory challenge against a third member.

We further disagree with the appellant’s dual assertions that his counsel was ineffective for failing to object to comments made by the military judge during voir dire, and that these comments were disparaging toward homosexuals. In his initial questions CPT M asked if any member believed that homosexuals are bad people. The military judge interrupted and said, “the question is too broad ... homosexual acts are against the law in the military ... someone who did something against the law would be potentially a bad person.” Shortly thereafter, CPT M asked if any member believed that homosexuals should not be trusted. The military judge again interrupted stating that there are security implications in the Army surrounding homosexuals. Captain M responded that there was no hard data on that issue, and the military judge told him to “move on.”

We find that while the military judge’s comments were not artful, they did not equate to a bias or prejudice by the military judge toward homosexuals. We further find that the military judge’s comments were not per se disparaging. The appellant was charged with committing four sexual offenses which violated the law. He had entered provident pleas of guilty to two of the offenses. We find that the appellant’s sexual orientation and/or preference neither caused nor controlled the destiny of the charges against him.

We note that a court member who harbors an inelastic attitude or bias toward a certain offense, or a particular type punishment for an offense is not qualified to sit as a member of a court-martial. United States v. Heriot, 21 M.J. 11 (C.M.A.1985); Rule for Court-Martial 912(f)(l)(N) [hereinafter R.C.M.]. On the other hand, a member is not automatically disqualified if he is candid enough to admit to an unfavorable inclination toward a particular offense. United States v. Reynolds, 23 M.J. 292, 294 (C.M.A.1987). The test to be applied is whether any bias evidenced by a member is such that “it will not yield to the evidence presented and the judge’s instructions.” Reynolds, 23 M.J. at 294; United States v. Davenport, 17 M.J. 242 (C.M.A.1984).

The voir dire of the members was extensive and thorough. Therefore, we look at their responses as a whole, rather than isolating on one particular response. We find that every member who remained on the appellant’s court-martial panel was appropriately qualified. Moreover, they assured the military judge that they would follow his instructions. The law does not require a court member to forget or disavow one’s life experiences or views.

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Cite This Page — Counsel Stack

Bluebook (online)
42 M.J. 666, 1995 CCA LEXIS 120, 1995 WL 232671, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-purdy-acca-1995.