United States v. Travels

47 M.J. 596, 1997 CCA LEXIS 525, 1997 WL 690248
CourtUnited States Air Force Court of Criminal Appeals
DecidedOctober 22, 1997
DocketACM 31437 (f rev)
StatusPublished
Cited by2 cases

This text of 47 M.J. 596 (United States v. Travels) is published on Counsel Stack Legal Research, covering United States Air Force 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. Travels, 47 M.J. 596, 1997 CCA LEXIS 525, 1997 WL 690248 (afcca 1997).

Opinion

OPINION OF THE COURT UPON FURTHER REVIEW

SPISAK, Judge:

Contrary to his pleas, members convicted the appellant of housebreaking, burglary, assault, rape, obstruction of justice, and attempted subornation of perjury. The court then sentenced him to a dishonorable discharge, confinement for 10 years, total forfeitures, and reduction to the lowest enlisted grade (E-l). Finding adversely to the appellant on each of five assigned errors, we affirmed both the findings and sentence on 14 June 1996. The United States Court of Appeals for the Armed Forces (USCAAF) returned the case to us for reconsideration of the following assigned error:

Whether the appellant was deprived of HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL BY COUNSEL’S FAILURE TO CHALLENGE CERTAIN COURT MEMBERS WHOSE RESPONSES DURING VOIR DIRE CONCERNING THEIR RESPECTIVE PERSONAL AND PROFESSIONAL EXPERIENCES PLACED THE FAIRNESS AND IMPARTIALITY OF THE COURT-MARTIAL PROCEEDING INTO QUESTION.

We have carefully reconsidered this issue and again, finding no prejudicial error, we affirm.

Our senior court recently said that “[a]s a general rule, defense counsel may not decline to inquire into potentially prejudicial information and then claim on appeal that the information was prejudicial.” United States v. Lavender, 46 M.J. 485, 488 (1997). Here, appellate defense counsel would have us find that having so inquired, counsel may not decline to make challenges warranted by that inquiry. We decline to so find for two reasons. First, we find that the converse of the general rule is true. Counsel who inquires into potentially prejudicial information, may not decline to make a challenge then raise the issue on appeal. Second, ap[598]*598pellate counsel’s argument is contrary to the rule that decisions on “what court members to challenge, ... and all other strategic and tactical decisions are the exclusive province of the defense counsel after consultation with the client.” Air Force Standards for the Administration of Criminal Justice, Standard 4-5.2(b) (1 July 1994).

Moreover, it is well settled that absent a clear showing of specific prejudice, failure to make a challenge at trial waives that ground on appeal. United States v. Wilson, 21 M.J. 193, 197 (C.M.A.1986). See also United States v. Bannwarth, 36 M.J. 265, 268 (C.M.A.1993) (waiver found for failure to challenge member because of friendship with accuser); United States v. Hawkins, 37 M.J. 718, 724 (A.F.C.M.R.1993) (failure to make motion at trial challenging selection of members and failure to challenge any member constituted waiver), pet. denied, 39 M.J. 442 (C.M.A.1994). Allowing appellate defense counsel to label a decision not to challenge court members as “ineffective assistance of counsel,” would both defeat the longstanding waiver rule for challenges and prevent trial defense counsel from making unorthodox, but perhaps effective, tactical decisions related to court membership. We find that when, as here, detailed voir dire is conducted by the defense counsel, counsel’s subsequent failure to challenge a member is a tactical decision which waives any ground for challenge revealed by the voir dire.

While we ordinarily will not second-guess the strategic or tactical decisions made at trial by defense counsel, by remanding this case to us on an “ineffectiveness of counsel” issue, USCAAF has asked us to do just that. United States v. Sanders, 37 M.J. 116, 118 (C.M.A.), cert, denied, 510 U.S. 1010, 114 S.Ct. 600, 126 L.Ed.2d 565 (1993). See also United States v. Morgan, 37 M.J. 407, 410 (C.M.A1993); United States v. Simoy, 46 M.J. 592 (A.F.Ct.Crim.App.1996); United States v. Washington, 42 M.J. 547 (A.F.Ct. Crim.App.1995), affd, 46 M.J. 477. (1997). We assume from its remand that the Court is concerned that “where inaction occurs at a critical point where action is compelled by the situation — where, in other words, defense counsel remains silent where there is no realistic strategic or tactical decision to make but to speak up,” then we should act to correct the wrong. United States v. Rivas, 3 M.J. 282, 289 (C.M.A1977) (emphasis in original). We will, therefore, review counsel’s “inaction” here to determine whether or not it constituted ineffective assistance of counsel or was based on a “realistic strategic or tactical decision.”

The Supreme Court has set forth a two-pronged test to assist appellate courts in determining questions of ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This test was adopted by the US-CAAF in United States v. Ingham, 42 M.J. 218 (1995), cert, denied, — U.S. -, 116 S.Ct. 745, 133 L.Ed.2d 693 (1996). Strickland’s two-prong test requires the appellant to first show that counsel’s performance was so deficient, the errors so serious that the counsel was not functioning as the “counsel” guaranteed by the Sixth Amendment. Next the appellant must show prejudice to his ability to receive a fair trial, the result of which was reliable. Lockhart v. Fretwell, 506 U.S. 364, 369-70, 113 S.Ct. 838, 842-43, 122 L.Ed.2d 180 (1993) (quoted in United States v. Christy, 46 M.J. 47, 50 (1997), cert. denied, — U.S. -, 117 S.Ct. 2484, 138 L.Ed.2d 992 (1997)).

The court convicted the appellant of breaking into the dormitory rooms of two women, raping one woman and assaulting another on two different nights in 1993, and of obstructing justice and attempting to suborn perjury by trying to get a witness either to lie to investigators or refuse to talk to them. At trial, the appellant asserted a defense of diminished capacity and attempted to show that he would not have committed the rape had he been in complete control of his behavior. He denied even being in the room of the assault victim or trying to get a witness to lie for him. The defense introduced medical testimony that the appellant suffered from severe migraine headaches for which three different medications had been prescribed. Evidence from his psychiatrist and his medical records also indicated that the appellant frequently abused alcohol.

[599]*599The appellant testified in his own behalf, telling the members a sad tale of physical and sexual abuse, neglect and hardship. Notwithstanding his testimony, the members convicted him of all charged offenses with the exception of the words “in the nighttime” in one specification of burglary.

During voir dire, five court members indicated that they or their family members were victims of violent crimes. Trial counsel, civilian defense counsel, and the military judge questioned all five members about their own and their family members’ personal experiences with these crimes. Each of the members answered appropriately when asked if they could set aside their personal experiences; could evaluate only the evidence presented; could convict if the government proved its case beyond a reasonable doubt; and could acquit if the government failed in its proof.

Additionally, two members, Colonel M and Lt Col B, had medical backgrounds, Colonel M as a nurse and Lt Col B as a physician. Civilian defense counsel questioned both at length concerning their knowledge of certain prescription drugs and their effects.

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Bluebook (online)
47 M.J. 596, 1997 CCA LEXIS 525, 1997 WL 690248, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-travels-afcca-1997.