United States v. Sauk

• Court: United States Air Force Court of Criminal Appeals
• Decided: January 20, 2015
• Docket: ACM 38398
• Status: Unpublished

Opinion

UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS

UNITED STATES

v.

Technical Sergeant JAMES P. SAUK United States Air Force

ACM 38398

20 January 2015

Sentence adjudged 23 March 2013 by GCM convened at Joint Base Andrews, Maryland. Military Judge: Mark L. Allred.

Approved Sentence: Bad-conduct discharge, confinement for 5 years, and reduction to E-1.

Appellate Counsel for the Appellant: Captain Michael A. Schrama.

Appellate Counsel for the United States: Major Daniel J. Breen; Captain Collin F. Delaney; and Gerald R. Bruce, Esquire.

Before

HECKER, WEBER, and CONTOVEROS Appellate Military Judges

OPINION OF THE COURT

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent under Air Force Rule of Practice and Procedure 18.4.

HECKER, Senior Judge:

A general court-martial composed of officer and enlisted members convicted the appellant, contrary to his pleas, of involuntary manslaughter, aggravated assault, assault, and negligent homicide, in violation of Articles 119, 128 and 134, UCMJ, 10 U.S.C. §§ 919, 928, 934. The court sentenced the appellant to a bad-conduct discharge, confinement for five years, and reduction to E-1. The convening authority approved the sentence as adjudged. On appeal, pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), the appellant contends (1) the evidence is factually and legally insufficient to sustain his convictions, (2) his trial defense counsel were ineffective, (3) unlawful command influence made it impossible for him to receive a fair trial and clemency consideration, (4) he is entitled to relief pursuant to Article 13, UCMJ, 10 U.S.C. § 813, and (5) the sentence is inappropriately severe. He also contends three of the specifications should be dismissed as an unreasonable multiplication of charges.

Background

The charges in this case stemmed from the death of the appellant’s two month old son. The infant had been rushed to a local emergency room by paramedics after his parents called 911 early on the morning of 10 January 2011. When the infant arrived at the emergency room, he was not breathing, had no pulse, and was not responsive. A pediatrician was eventually able to restore the infant’s heartbeat, but she observed indications the child had suffered what she believed to be non-accidental head trauma (lack of pupil response to light, eye hemorrhages, low body temperature, and seizures). The infant was transferred to Johns Hopkins Hospital where he could be treated at a pediatric intensive care unit. His brain began to swell, causing irreversible brain damage. On 11 January 2011, his parents agreed to take him off life support.

The appellant was charged with six offenses involving the death of his son: unpremeditated murder, involuntary manslaughter by culpable negligence, aggravated assault by force likely to cause death or grievous bodily harm, negligent homicide, assault, and child endangerment. He was acquitted of the murder charge and child endangerment charges.

Multiple Offenses

As noted above, the Government charged the appellant with six separate offenses for the death of his child, with each offense listing a different level of culpability as to the death.1 After the panel convicted the appellant of four of these charges, the military judge merged them for sentencing and instructed the members that they must consider them as one offense. The appellant now contends the military judge erred when he failed to sua sponte dismiss the aggravated assault, assault, and negligent homicide offenses.

We agree these three offenses must be dismissed. The government is authorized to charge multiple offenses in the alternative based on exigencies of proof. See United States v. Morton, 69 M.J. 12, 16 (C.A.A.F. 2010). When a panel returns guilty verdicts as to those alternative charges, however, “‘it [is] incumbent’ either to

1 Except for the child endangerment specification, the offenses each alleged a single (non-divers) action occurring between 13 November 2010 (the day the child was born) and 11 January 2011 (the day the child died).

2 ACM 38398 consolidate or dismiss a specification.” United States v. Elespuru, 73 M.J. 326, 329 (C.A.A.F. 2014) (quoting United States v. Mayberry, 72 M.J. 467, 467–68 (C.A.A.F. 2013)) (alteration in original).

Although we set aside these specifications, the appellant remains convicted of involuntary manslaughter by culpable negligence. Because the military judge instructed the panel that they were multiplicious for sentencing and calculated the maximum confinement as 15 years (based on involuntary manslaughter of a child), we find the approved and adjudged sentence would have been the same even if these specifications were dismissed at the trial level.2 See United States v. Moffeit, 63 M.J. 40, 41 (C.A.A.F. 2006) (stating that an appellate court can reassess the sentence if it “can determine to its satisfaction that, absent any error, the sentence adjudged would have been of at least a certain severity” as a “sentence of that severity or less will be free of the prejudicial effects of error”); see also United States v. Winckelmann, 73 M.J. 11 (C.A.A.F. 2013).

Factual and Legal Sufficiency

The appellant argues that the evidence is legally and factually insufficient to support his conviction for involuntary manslaughter. We disagree.

Under Article 66(c), UCMJ, 10 U.S.C. § 866(c), we review issues of legal and factual sufficiency de novo. See United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). “The test for legal sufficiency of the evidence is ‘whether, considering the evidence in the light most favorable to the prosecution, a reasonable factfinder could have found all the essential elements beyond a reasonable doubt.’” United States v. Humpherys, 57 M.J. 83, 94 (C.A.A.F. 2002) (quoting United States v. Turner, 25 M.J. 324 (C.M.A. 1987)). The test for factual sufficiency is “whether, after weighing the evidence in the record of trial and making allowances for not having personally observed the witnesses, [we are] convinced of the [appellant]’s guilt beyond a reasonable doubt.” Turner, 25 M.J. at 325.

The appellant was convicted of involuntary manslaughter which, as charged here, required the prosecution to prove beyond a reasonable doubt that (1) the appellant’s son is dead; (2) his death resulted from the act of the accused in striking him on the head, or

2 Although not raised as an issue by the appellant, we note the staff judge advocate recommendation (SJAR) erroneously advised the convening authority that the maximum sentence included twenty-five years confinement. The defense asked that the findings be set aside or, in the alternative, that his sentence be reduced by ten months. He did not object to the SJAR or mention the incorrect maximum in the clemency submission. Failure to raise this issue in a timely manner waives it unless it is plain error. Rule for Courts-Martial 1106(f); United States v. Scalo, 60 M.J. 435, 436 (C.A.A.F. 2005). Although the staff judge advocate was clearly mistaken when he misinformed the convening authority about the maximum confinement time, the appellant has not made a colorable showing of possible prejudice. See United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000). Under the circumstances of this case, we do not believe correct advice on the maximum punishment would have foreseeably led the convening authority to take any action other than the one he did, i.e., approving the sentence as adjudged.

3 ACM 38398 by asserting some other excessive force against his head between on or about 13 November 2010 and on or about 11 January 2011; (3) this act amounted to culpable negligence; (4) the killing of the child by the appellant was unlawful; and (5) the child was under the age of 16 years. “Culpable negligence” is defined as a degree of carelessness, greater than simple negligence, and is a negligent act or omission accompanied by a culpable disregard for the foreseeable consequences to others of that act or omission. Manual for Courts-Martial, United States, Part IV, ¶ 44.c.(2)(a)(i). (2008 ed.). The basis for this charge “may be a negligent act or omission which, when viewed in the light of human experience, might foreseeably result in the death of another, even though death would not necessarily be a natural and probable consequence of the act or omission.” Id.

It was undisputed that the appellant was alone with his son when the child became critically ill and stopped breathing. The appellant argues, however, that the evidence is insufficient to prove he was the person who caused the injuries that resulted in his son’s death. He notes that the Government and defense experts disagreed about when the fatal injury was inflicted and that the evidence therefore cannot prove he was the perpetrator. The appellant further notes that his wife had anger management issues, had acted out violently towards him, and was under stress due to post-partum depression. He also points to the testimony of his expert who indicated the appellant’s routine handling of his son that night could have triggered a re-bleed from a preexisting hemorrhage caused by someone else.

We have reviewed all the evidence, including the extensive expert testimony, and taken into account the arguments raised by the appellant. The medical evidence convincingly revealed that the infant suffered non-accidental injuries, including significant damage to his brain from blunt force trauma. Despite significant efforts by the defense to portray the appellant’s wife as the cause of the infant’s death, the members were convinced beyond a reasonable doubt that the appellant caused the infant’s death though his own culpable negligence. Viewing the evidence in the light most favorable to the Government, we are convinced a rational factfinder could find beyond a reasonable doubt the appellant was guilty of this offense. Upon our own review of the evidence in the record of trial, we are personally convinced of the appellant’s guilt beyond a reasonable doubt.

Ineffective Assistance of Counsel

The appellant contends his three trial defense counsel were ineffective because they failed to properly handle voir dire and member challenges and failed to present a good military character defense. We disagree.

This court reviews claims of ineffective assistance of counsel de novo. United States v. Mazza, 67 M.J. 470, 474 (C.A.A.F. 2009). When reviewing such claims,

4 ACM 38398 we follow the two-part test outlined by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687 (1984). United States v. Tippit, 65 M.J. 69, 76 (C.A.A.F. 2007). Our superior court has applied this standard to military courts-martial, noting that “[i]n order to prevail on a claim of ineffective assistance of counsel, an appellant must demonstrate both (1) that his counsel’s performance was deficient, and (2) that this deficiency resulted in prejudice.” United States v. Green, 68 M.J. 360, 361 (C.A.A.F. 2010) (citing Strickland, 466 U.S. at 687; Mazza, 67 M.J. at 474).

The appellant bears the burden of establishing his trial defense counsel were ineffective. See United States v. McConnell, 55 M.J. 479, 484 (C.A.A.F. 2001). The law presumes counsel actions to be appropriate, and we will not second-guess a trial defense counsel’s reasonable strategic or tactical decisions. See United States v. Morgan, 37 M.J. 407, 410 (C.M.A. 1993); United States v. Mazza, 67 M.J. 470, 475 (C.A.A.F. 2009). To prevail on a claim of ineffective assistance of counsel, the appellant “must rebut this presumption by pointing out specific errors made by his defense counsel which were unreasonable under prevailing professional norms. The reasonableness of counsel’s performance is to be evaluated from counsel’s perspective at the time of the alleged error and in light of all the circumstances.” United States v. Scott, 24 M.J. 186, 188 (C.M.A. 1987) (citation omitted). We need not decide if defense counsel was deficient during post-trial representation if the second prong of Strickland regarding prejudice is not met. See United States v. Saintaude, 61 M.J. 175, 183 (C.A.A.F. 2005).

1. Voir dire and member challenges

The appellant argues his trial defense counsel were ineffective for not specifically asking the potential panel members about a December 2012 Air Force Times article that referred to his case and for leaving certain panel members on the case.

In response to a question from the military judge, all prospective panel members said they had no knowledge of the facts or events of the case. The appellant’s senior defense counsel conducted a limited follow-up by asking if any of them thought they had heard about the case or “read about it in the Air Force Times or anywhere else.” All the potential members answered negatively. In their court-ordered declarations, two of the appellant’s defense counsel state the defense deliberately made the strategic decision to not specifically draw the members’ attention to the actual article. The defense team believed the members would answer truthfully if they knew about the case from that article and the defense did not want to refresh their memory if they could not recall reading it. The counsel’s declarations provide sound and reasonable explanations for the approach taken during voir dire which we will not second-guess. Morgan, 37 M.J. at 410; United States v. Datavs, 71 M.J. 420, 424 (C.A.A.F. 2012) (“Defense counsel do not perform deficiently when they make a strategic decision to accept a risk or forego a potential benefit, where it is objectively reasonable to do so.”)

5 ACM 38398 In his declaration, the appellant also indicates that several panel members had identified professional and personal experience in “investigative, abuse, and medical issues” which could have given them a bias which rendered them incapable of impartially weighing the evidence in the case. We disagree that his counsel were ineffective for not challenging these members for cause or exercising the defense’s sole peremptory challenge on one of them. First, defense counsel did successfully challenge one prospective member based on his friend’s previous exposure to child abuse. The defense also concurred in two challenges involving prospective members’ experience in law enforcement and another member’s indication of bias. As to the panel members who remained, these members did not possess an actual or implied bias that would require their excusal from the case. See Rule for Courts-Martial (R.C.M.) 912(f)(1)(N) (“A member shall be excused for cause whenever it appears that the member . . . [s]hould not sit as a member in the interest of having the court-martial free from substantial doubt as to legality, fairness, and impartiality.”); United States v. Napoleon, 46 M.J. 279, 283 (C.A.A.F. 1997) (stating that actual bias exists where any bias will not yield to the evidence presented and the judge’s instructions); United States v. Bagstad, 68 M.J. 460, 462 (C.A.A.F. 2010) (stating that even if a panel member disclaims bias, implied bias exists when most people in the same position would be prejudiced). All the members affirmed their impartiality and ability to decide the case solely on the evidence before them. The defense thoroughly explored any issues of possible bias in individual voir dire, including one member who had previously served in security forces. As there was no evidence of actual or implied bias on the part of these panel members, the defense counsel’s decision to not challenge these panel members falls within the bounds of reasonable performance. Additionally, all three defense counsel stated that the appellant was actively involved in the defense team’s discussion about the results of the voir dire process and who they should challenge. By failing to challenge these members at trial, the appellant waived this issue. See R.C.M. 912(f)(2)(B) and (f)(4) (failing to raise a challenge to a panel member in a timely manner waives the issue); United States v. Stone, 26 M.J. 401, 403 (C.M.A. 1988).

Lastly, the appellant contends MSgt K should have been challenged as a panel member during the court-martial because the panel member had a professional relationship with the appellant. While the panel was reviewing the appellant’s performance reports during the sentencing phase, MSgt K sent a note to the military judge indicating he had just realized he was stationed at Scott Air Force Base at the same time as the appellant and the two worked in the same building for a short period of time. The parties agreed MSgt K did not need to be questioned about this note. In his declaration, the appellant says the note triggered his own memory and he recalled having weekly contact with MSgt K over a two-year period. He contends MSgt K could have had a preconceived bias against the appellant based on this work history. In his declaration, one of the appellant’s trial defense counsel states he had no concerns about MSgt K being biased against the appellant because MSgt K did not recall knowing the appellant and the appellant had not had any disciplinary or other problems at that base.

6 ACM 38398 Trial defense counsel’s affidavit also notes the defense considered MSgt K to be a favorable member based on his answers to questions in voir dire. These are sound and reasonable explanations for the decision which we will not second-guess. See Morgan, 37 M.J. at 410; Datavs, 71 M.J. at 424. Likewise, we see nothing about MSgt K’s previous contact with the appellant that causes any concern that MSgt K might be biased against him in actuality or in appearance.

2. Good character defense

The appellant’s declaration simply states his counsel were ineffective for not pursuing a good military character defense. He has not provided any specificity as to what any such witnesses would have said if they had been called to testify at trial. In that posture, the appellant has not demonstrated prejudice under the second prong of Strickland. See United States v. Perez, 64 M.J. 239, 244 (C.A.A.F. 2006).

Additionally, the declarations from his trial defense counsel explain the process they undertook in an effort to procure the evidence necessary to raise this defense. After considerable effort, the defense team had not found any witnesses willing to give this type of testimony in a persuasive manner. The declarations further discuss the defense’s concern about what the appellant’s wife may say in response to this defense, especially because she refused to meet with the defense counsel prior to her testimony in court. The decision to forgo putting on this evidence on the merits had a reasonable, tactical basis. While the appellant may disagree with the decision in retrospect, it did not fall below Strickland’s objective standard of reasonableness. See United States v. McConnell, 55 M.J. 479, 485 (C.A.A.F. 2001).

Unlawful Command Influence (UCI)

We review allegations of UCI de novo. United States v. Wallace, 39 M.J. 284, 286 (C.M.A. 1994). Article 37(a), UCMJ, 10 U.S.C. § 837(a), states in part: “No person subject to this chapter may attempt to coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case . . . .” The appellant has the initial burden of raising UCI. United States v. Stombaugh, 40 M.J. 208, 213 (C.M.A. 1994). Once the issue of command influence is properly placed at issue, “no reviewing court may properly affirm findings and sentence unless [the court] is persuaded beyond a reasonable doubt that the findings and sentence have not been affected by the command influence.” United States v. Thomas, 22 M.J. 388, 394 (C.M.A. 1986). At the appellate level, we evaluate UCI in the context of a completed trial using the following factors: “[T]he defense must (1) show facts which, if true, constitute [UCI]; (2) show that the proceedings were unfair; and (3) show that [UCI] was the cause of the unfairness.” United States v. Biagase, 50 M.J. 143, 150 (C.A.A.F. 2003) (citing Stombaugh, 40 M.J. at 213); see also United States v. Simpson, 58 M.J. 368, 374 (C.A.A.F. 2003); United States

7 ACM 38398 v. Reynolds, 40 M.J. 198, 202 (C.M.A. 1994).

The appellant contends the publishing of the Air Force Times article and its distribution on base and amongst members of his unit made it impossible for him to receive a fair trial and fair consideration from the convening authority during the clemency stage of his case. The appellant elected not to raise this issue at trial; the sole evidence of his claims comes from his affidavit submitted on appeal. We find the appellant has not met his burden of establishing facts that would constitute unlawful command influence. To the extent he is arguing that pretrial publicity adversely affected his court-martial, we also find he has failed to meet his burden in that regard. United States v. Simpson, 58 M.J. 368, 372 (C.A.A.F. 2003) (stating that the defense may raise the issue of unfair pretrial publicity by demonstrating either presumed or actual prejudice). As noted above, the members of the court-martial panel had no knowledge of this article. Furthermore, even assuming the convening authority was exposed to the purported article, there is no reason to believe that the convening authority would be adversely affected by a newspaper article when deciding whether to grant clemency to the appellant. Pretrial Punishment

Article 13, UCMJ, prohibits pretrial punishment:

No person, while being held for trial, may be subjected to punishment or penalty other than arrest or confinement upon the charges pending against him, nor shall the arrest or confinement imposed upon him be any more rigorous than the circumstances required to insure his presence, but he may be subjected to minor punishment during that period for infractions of discipline.

At trial, the appellant and his defense counsel told the military judge that the appellant had not been subjected to illegal pretrial punishment under Article 13, UCMJ. Through two declarations submitted on appeal, the appellant now argues he is entitled to sentence credit because he was illegally punished prior to trial. He also argues his counsel were ineffective for not raising this issue.

The appellant contends he was subjected to punishment when, after law enforcement became aware that his infant daughter had been injured,3 he was

3 After the death of their infant son, the appellant and his wife had a second baby in late April 2012. On 24 September 2012, after noticing that the infant’s arm was limp, the appellant’s wife took her to a pediatrician. Full skeletal surveys found seventeen arm and leg fractures of a type that are caused by pulling, yanking, or twisting the extremities and were highly specific for child abuse. The appellant was acquitted of aggravated assault and child endangerment regarding his daughter.

8 ACM 38398 (1) restricted to a dormitory room for 72 hours and then required to stay on base for 30 days, (2) required to live on base until his trial, and (3) issued a protection order that prohibited him from seeing and calling his children. The defense counsel’s detailed declarations describe their investigation of these events, what they found during that investigation, and the reasons they believed the commander’s actions in requiring the appellant to live on base and have restricted access to his children were undertaken to protect the appellant and his children, and not as punishment, and could actually benefit the appellant.

Our superior court has held that an appellant’s failure to raise the issue of illegal pretrial confinement at trial “waives that issue for purposes of appellate review absent plain error.” United States v. Inong, 58 M.J. 460, 465 (C.A.A.F. 2003). In subsequent case law, however, that court clarified that it is forfeiture that is tested for plain error; waiver is not. See United States v. Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009) (stating that military courts had failed to “consistently distinguish between the terms ‘waiver’ and ‘forfeiture.’”). Waiver is the “intentional relinquishment or abandonment of a known right,” which precludes appellate review of an issue. Id. (quoting United States v. Olano, 507 U.S. 725, 733 (1993)) (internal quotation marks omitted). Forfeiture is “the failure to make the timely assertion of a right” leading to plain error review on appeal. Id.

Here, the appellant and his three defense counsel did not raise any issue associated with any aspects of the appellant’s pretrial treatment. When specifically asked by the military judge regarding illegal pretrial punishment, the appellant and his defense counsel specifically disavowed any Article 13, UCMJ, issue. Under these circumstances, we find the appellant waived this issue. Furthermore, while the appellant’s waiver of this issue prevented a full development of his claims on the record, based on the information that is available, we find defense counsel’s conclusions to be rational and their decision not to raise an Article 13, UCMJ, issue to be reasonable. Accordingly, defense counsel were not ineffective for not raising this issue at trial.

The appellant also argues he should be given confinement credit for 22 March 2013 (the day findings were announced) as he was restricted to his room overnight while awaiting the sentencing proceeding the following day. We agree and order this relief in our decretal paragraph. See United States v. Mason, 19 M.J. 274 (C.M.A. 1985).

Sentence Severity

This court reviews sentence appropriateness de novo. United States v. Lane, 64 M.J. 1, 2 (C.A.A.F. 2006). We “may affirm only such findings of guilty and the sentence or such part or amount of the sentence, as [we find] correct in law and fact and determine[], on the basis of the entire record, should be approved.” Article 66(c), UCMJ, 10 U.S.C. § 866(c). “We assess sentence appropriateness by considering the particular appellant, the nature and seriousness of the offense[s], the appellant’s record of service,

9 ACM 38398 and all matters contained in the record of trial.” United States v. Anderson, 67 M.J. 703, 705 (A.F. Ct. Crim. App. 2009). Although we are accorded great discretion in determining whether a particular sentence is appropriate, we are not authorized to engage in exercises of clemency. United States v. Nerad, 69 M.J. 138, 146 (C.A.A.F. 2010).

The appellant next avers his sentence is inappropriately severe. We disagree. We consider whether the appellant’s sentence was appropriate “judged by ‘individualized consideration’ of [the appellant] ‘on the basis of the nature and seriousness of the offense and the character of the offender.’” United States v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982) (quoting United States v. Mamaluy, 27 C.M.R. 176, 180–81 (C.M.A. 1959)). We have given individualized consideration to this particular appellant, the nature and seriousness of his offense, the appellant’s record of service, and all other matters contained in the record of trial. We find the approved sentence was clearly within the discretion of the convening authority, was appropriate in this case, and was not inappropriately severe.

Conclusion

The appellant will be credited with one day against his sentence to confinement. The findings of guilty as to Charge III (Specifications 1 and 2) and Charge IV (Specification 1) are set aside, and those Charges and Specifications are dismissed. Accordingly, the remaining findings (Charge II and its Specification) and the approved sentence are correct in law and fact, and no error materially prejudicial to the substantial rights of the appellant occurred. Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the modified findings and the approved sentence are AFFIRMED.

FOR THE COURT

STEVEN LUCAS Clerk of the Court

10 ACM 38398