United States v. Watson

15 M.J. 784, 1983 CMR LEXIS 971
CourtU.S. Army Court of Military Review
DecidedFebruary 28, 1983
DocketCM 441667
StatusPublished
Cited by2 cases

This text of 15 M.J. 784 (United States v. Watson) is published on Counsel Stack Legal Research, covering U.S. Army Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Watson, 15 M.J. 784, 1983 CMR LEXIS 971 (usarmymilrev 1983).

Opinion

OPINION OF THE COURT

PER CURIAM:

Contrary to his pleas, appellant stands convicted of rape and forcible sodomy, in violation of Articles 120 and 125, Uniform Code of Military Justice, 10 U.S.C. §§ 920 and 925 (1976). He was sentenced by a panel with officers and enlisted members to a dishonorable discharge, confinement at hard labor for 10 years, total forfeitures, and reduction to the grade of Private E-l. On appeal he attacks: (1) his appointed defense counsel, whose “representation denied him effective assistance of counsel”; (2) the military judge, who “did not conduct his court or himself with impartiality, denying appellant due process of law”; and (3) the court members, who were “compromised by their knowledge of an offense committed by appellant entirely external to the [trial] proceeding.” We affirm.

I

The appellant asserts that his appointed military counsel inadequately represented him by failing to call two witnesses on the merits and by failing to respond to the staff judge advocate’s post-trial review or file a petition for clemency. The two witnesses involved were a Specialist Four Frank, who had been acquitted of rape and sodomy charges stemming from the same event, and a Major Miles Wilson, Jr., M.D., the physician who examined the victim of the rape and sodomy shortly after the event. Dr. Wilson was called as a defense witness at appellant’s first court-martial which had ended in a mistrial; his testimony was inter alia that Denise B., the victim, did not report any acts of sodomy during his examination.

Appellant’s trial defense counsel, in a post-trial affidavit, explained his strategy in not calling the witnesses at trial. He had observed both witnesses testify earlier in Frank’s court-martial, and additionally, observed Dr. Wilson testify in appellant’s earlier court-martial. As to Frank, counsel found that although his testimony tracked appellant’s in many ways, it was Frank’s testimony that Watson was to blame for the injuries suffered by Denise. Frank appeared to be a credible witness. It would be counterproductive to call Frank and have him place the blame for the injuries on appellant and possibly lead the court members to conclude that each accused was lying to save himself at the expense of the other or the victim. Counsel’s strategy was to present the court members with a single uncontroverted theory of the occurrence— appellant’s — and by implication lay the blame on Frank. This strategy was used at Frank’s trial with apparent success. It would be a conundrum in logic to argue that Watson’s attorney was inadequate in failing to call Frank, while conceding that [786]*786Frank’s attorney adequately represented his client though failing to call Watson. As to Dr. Wilson, counsel observed that in calling Wilson, he was “stuck with the good and the bad of his testimony.” The “good” was that the victim had not reported any acts of sodomy to Dr. Wilson, suggesting that she had fabricated at least that portion of her testimony. The “bad” was that Dr. Wilson would have, in counsel’s estimation, corroborated the victim’s account in other respects —“her demeanor, mental state and physical condition,”1 all of which were consistent with the reported sexual misconduct of the accused.

The record of trial demonstrates that the representation of appellant was diligent and conscientious and that counsel exercised his skills well within the range of competence demanded of attorneys in criminal cases. United States v. Rivas, 3 M.J. 282 (C.M.A.1977). There is no colorable claim that appointed military counsel was totally or partially ill-prepared for trial or that he had failed to follow any reasonable leads or possible avenues of defense.2 United States v. Jefferson, 13 M.J. 1 (C.M.A. 1982); United States v. DeCoster, 624 F.2d 196 (D.C.Cir.1979). In the light of his observations and evaluations of the witnesses, counsel concluded that it would not be in his client’s best interests to call them as witnesses for the defense. With the confidence of a “Monday morning quarterback,” as attorneys, we might have played the “game” differently, choosing to call either Frank or Dr. Wilson or both. It is not, however, the function of appellate courts to “second-guess the strategies or tactical decisions made at trial by defense counsel ... [unless counsel] remains silent where there is no realistic strategical or tactical” basis for counsel’s decision. Rivas, 3 M.J. at 289; see United States v. Nelson, 582 F.2d 1246 (10th Cir.1978), cert. denied 439 U.S. 1079, 99 S.Ct. 860, 59 L.Ed.2d 49 (1979). We conclude that the record in its entirety reveals that appellant received effective assistance of counsel.

Appellant has additionally asserted that trial defense' counsel was deficient in his post-trial representation by failing to submit a rebuttal to the post-trial review or a petition for clemency. By affidavit, counsel responds that he orally submitted clemency information to the staff judge advocate who conveyed this information to the general court-martial convening authority in a memorandum. We wonder at the efficacy of a post-trial petition for clemency which is drafted and submitted by the staff judge advocate. The practice of delegating post-trial duties to the staff judge advocate is to be condemned, but under the facts of this case, we perceive no prejudice to appellant.

II

Appellant contends that “[t]he military judge did not conduct his court or himself with impartiality, denying appellant due process of law.” Appellant’s attack, raised for the first time on appeal, is based, in part, on the Government trial counsel’s challenge for cause against the military judge. The challenge was based not on any specific facts as to bias, but rather on speculations of prejudgment arising from the military judge’s presiding over the acquittal of appellant’s accomplice and the mistrial at appellant’s first court-martial. An attempt to avoid the consequences of an expected adverse decision is not a proper basis for a challenge. United States v. Kincheloe, 14 M.J. 40, 50 n. 14 (C.M.A.1982). Appellant [787]*787expressly refused to challenge the military judge and, thus, waived his right to object on appeal. United States v. Airhart, 23 U.S.C.M.A. 124, 48 C.M.R. 685 (1974); cf. United States v. Harris, 530 F.2d 576 (4th Cir.1976).

Appellant’s remaining objection to the military judge’s conduct relates to impatience expressed by the military judge concerning unnecessary defense caused delays in resolving a defense raised motion to dismiss the charges on the grounds of double jeopardy. We do not consider, under the circumstances, that the military judge’s comments were wholly inappropriate, but, in any event, his intimations of impatience, occurring almost two full weeks before the court members were impaneled, in no way prejudiced the appellant. Other allegations of judicial impropriety occurring before the members are, in our opinion, totally frivolous and without merit.

Ill

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Bluebook (online)
15 M.J. 784, 1983 CMR LEXIS 971, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-watson-usarmymilrev-1983.