United States v. Perez , 2006 CAAF LEXIS 1735 ( 2006 )

UNITED STATES, Appellee
v.
Rafael A. PEREZ, Sergeant First Class
U.S. Army, Appellant
No. 05-0565
Crim. App. No. 9900680
United States Court of Appeals for the Armed Forces
Argued November 14, 2006
Decided December 28, 2006
EFFRON, C.J., delivered the opinion of the Court, in which BAKER
and ERDMANN, JJ., joined.
STUCKY and RYAN, JJ., did not participate.
Counsel
For Appellant: Frank J. Spinner, Esq. (argued); Major Billy B.
Ruhling II and Captain Eric D. Noble (on brief).
For Appellee: Captain Magdalena A. Acevedo (argued); Lieutenant
Colonel Mary M. Foreman, Lieutenant Colonel Natalie A. Kolb and
Major William J. Nelson (on brief).
Military Judges: John P. Galligan and Stephen R. Henley
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Perez, No. 05-0565/AR
Chief Judge EFFRON delivered the opinion of the Court.
A general court-martial composed of a military judge sitting
alone, convicted Appellant, contrary to his pleas, of two
specifications of rape, two specifications of forcible sodomy,
indecent acts with a child under the age of fourteen, and
indecent acts with a child under the age of ten, in violation of
Articles 120, 125, and 134, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. §§ 920, 925, 934 (2000). The adjudged and
approved sentence included a dishonorable discharge, confinement
for twenty-seven years, and reduction to the lowest enlisted
grade.
The Army Court of Criminal Appeals reviewed the case on two
separate occasions. In the initial review, the court determined
that the staff judge advocate’s post-trial recommendation to the
convening authority was defective, set aside the convening
authority’s action, and returned the case for a new
recommendation and action. United States v. Perez, No. ARMY
9900680, slip op. at 4 (A. Ct. Crim. App. Oct. 14, 2003); see
Article 60, UCMJ, 10 U.S.C. § 860 (2000); Rules for Courts-
Martial (R.C.M.) 1106, 1107.
Following preparation of a new recommendation, the convening
authority approved the sentence adjudged at trial. In its
second review of the case, the Court of Criminal Appeals
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affirmed the findings and sentence in an unpublished opinion.
United States v. Perez, No. ARMY 9900680, slip op. at 4 (A. Ct.
Crim. App. Apr. 25, 2005).
On Appellant’s petition, we granted review of the following
issue:
WHETHER APPELLANT RECEIVED INEFFECTIVE ASSISTANCE
OF COUNSEL IN THAT HIS DEFENSE COUNSEL CALLED THE
VICTIM AS A WITNESS; ACKNOWLEDGED CREDIBILITY;
CONCEDED THAT APPELLANT COMMITTED INTERCOURSE,
INDECENT ACTS AND SODOMY; FAILED TO CALL
FAVORABLE SENTENCING WITNESSES; AND FAILED TO
OBTAIN FAVORABLE CLEMENCY MATTERS FOR
PRESENTATION TO THE CONVENING AUTHORITY.
Appellant contends that his civilian defense counsel was
ineffective in three respects: (1) calling the victim as a
witness who provided damaging testimony; (2) failing to call
additional witnesses during sentencing; and (3) failing to
contact Appellant prior to making defense counsel’s post-trial
clemency submission to the convening authority. For the reasons
set forth below, we affirm.
I. BACKGROUND
A. STATEMENTS PRIOR TO TRIAL
When Appellant’s stepdaughter was a teenager, she told her
mother that she had been abused sexually by Appellant. Her
mother brought her to the Army’s Criminal Investigation Division
(CID) at Fort Hood, Texas, where she provided a written
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statement describing sexual abuse over an eight-year period. In
the statement, Appellant’s stepdaughter said that when she was
five or six years old, Appellant engaged in various acts of oral
sodomy and sexual abuse with her at Fort Leonard Wood, Missouri.
The statement described further sexual abuse, including rape, at
Fort Wainwright, Alaska, when she was between ten and twelve
years old. Subsequently, the family moved to Fort Hood.
According to the stepdaughter, Appellant engaged in multiple
incidents of sexual abuse with her at Fort Hood, which continued
into the month in which she made the statement. She estimated
that Appellant had engaged in sexual activity with her several
hundred times over the eight-year period, including sexual
intercourse up to five times a week at Fort Hood.
During the ensuing investigation, Appellant provided a
statement to the CID in which he admitted engaging in sexual
intercourse with his stepdaughter on three occasions, one
incident of oral sodomy, and several incidents of inappropriate
touching. The investigation resulted in charges against
Appellant consisting of three specifications of indecent acts
with a child, three specifications of forcible sodomy on a child
on multiple occasions, and two specifications of rape on
multiple occasions.
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B. CONSIDERATION OF THE CHARGED OFFENSES AT TRIAL
At trial, the prosecution called the stepdaughter as a
witness during the Government’s case-in-chief. Under direct
examination, she said that she could not remember providing a
statement to the CID, and that she could not recall any of the
events described in the statement. Over defense objections, the
military judge admitted into evidence both the stepdaughter’s
pretrial statement and Appellant’s incriminating statement to
the CID. The prosecution also presented evidence that Appellant
had admitted to a nurse that he had sexually abused his
stepdaughter. The admissibility of these matters is not at
issue under the grant of review in the present case.
During the defense case-in-chief, the stepdaughter
testified as a defense witness. In contrast to her inability to
recall information during her earlier appearance as a Government
witness, she provided specific details as a defense witness.
Her testimony as a defense witness at trial presented a
significantly different picture of the scope of sexual activity
than she presented in her pretrial statement.
In response to defense counsel’s questions, she disavowed
significant portions of her pretrial statement. She testified
that at Fort Leonard Wood there had been no sexual intercourse,
although there had been other sexual touching and oral sodomy;
that at Fort Hood, there had been only one instance of sexual
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intercourse, and no incidents of oral sodomy that she could
recall; and that she had not told the CID that she and Appellant
had engaged in sexual intercourse five times a week, as claimed
in her written statement, but that the agents led her to those
statements through their questioning.
Defense counsel’s closing argument focused on the contrast
between the stepdaughter’s testimony in court and her pretrial
statement. The argument sought to convince the military judge,
as factfinder, that the sexual abuse was not as extensive as the
Government alleged.
The military judge found Appellant not guilty of a number
of the charged offenses, including the allegation of indecent
acts with a child at Fort Hood and the allegation of forcible
sodomy at Fort Hood. He found Appellant not guilty of
committing rape at Fort Hood “on diverse occasions,” finding him
guilty of only one incident of rape at Fort Hood. He convicted
Appellant of the remaining charges and specifications, making
minor modifications in the wording to conform to the testimony
at trial.
C. SENTENCING
The defense sentencing case consisted of Appellant’s
unsworn statement and testimony from his stepdaughter and wife.
After defense counsel told the military judge that he had no
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additional sentencing evidence, the military judge questioned
Appellant as to whether there were any other matters that he
should consider. Appellant confirmed that there were no other
witnesses or documentary evidence that he wanted to bring before
the military judge.
In the course of his closing statement on sentencing,
defense counsel asked the military judge to consider the earlier
testimony by First Sergeant KW, a Government witness during the
findings portion of the trial. Defense counsel noted that First
Sergeant KW had testified about Appellant “being a good soldier,
one of the best he ever saw.”
During the Government’s case-in-chief, First Sergeant KW
had testified that he considered Appellant “to be a top-notch
noncommissioned officer, highly dedicated, strong, strong
leadership style”; that Appellant was “[o]utstanding” in terms
of leadership, professionalism, and handling stress; and that on
a scale of one to ten, he would rate Appellant at “a 9 and a
half or 10.” The Government, in its closing argument,
acknowledged that Appellant is “a good soldier” and that “he’s
done magnificent things in his career.”
Appellant faced a maximum sentence that could have included
life in prison. The sentence imposed by the military judge
included twenty-seven years of confinement.
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D. POST-TRIAL PROCEEDINGS
1. The first clemency request
Following trial, defense counsel requested deferral of
forfeitures and reduction in grade pending the convening
authority’s action so that Appellant could provide financial
support for his family during that period. The convening
authority granted the request, subject to Appellant providing
the funds directly to his family. Defense counsel also provided
a clemency submission to the convening authority, asking the
convening authority to disapprove the punitive separation and
limit confinement to no more than ten years. The convening
authority did not grant clemency, and approved the sentence as
adjudged.
2. The second clemency request
During the initial review of this case, the Army Court of
Criminal Appeals set aside the convening authority’s action and
ordered a new staff judge advocate’s post-trial recommendation
and convening authority’s action, based upon errors not at issue
in the present appeal. During the new proceedings before the
convening authority, Appellant obtained representation by a new
defense team, consisting of both civilian defense counsel and
military defense counsel who had not participated in the
original proceedings. Defense counsel submitted a new clemency
packet to the convening authority, urging consideration of legal
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errors at trial as well as numerous clemency matters. The
clemency request included, among other things, Appellant’s legal
brief to the Army Court of Criminal Appeals, Appellant’s letter
to the convening authority, ten award citations, twenty-one
enlisted evaluation reports, twelve positive inmate evaluation
reports, and numerous positive letters from various people,
including the chaplain at the United States Disciplinary
Barracks, his work supervisor in prison, and Appellant’s
civilian pastor. The staff judge advocate prepared a new
recommendation to the convening authority, recommending approval
of the adjudged sentence without modification.
The convening authority approved the adjudged sentence
without modification and the Court of Criminal Appeals affirmed
the findings of guilty and the sentence.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
A defendant who claims ineffective assistance of counsel
“must surmount a very high hurdle.” United States v. Alves, 53
M.J. 286, 289 (C.A.A.F. 2000) (citations and quotation marks
omitted). Judicial scrutiny of a defense counsel’s performance
must be “highly deferential and should not be colored by the
distorting effects of hindsight.” Id. (citing Strickland v.
Washington, 466 U.S. 668, 689 (1984)). To overcome the
presumption of competence, an appellant must satisfy the two-
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part test set forth in Strickland and demonstrate: (1) “a
deficiency in counsel’s performance that is ‘so serious that
counsel was not functioning as the “counsel” guaranteed the
defendant by the Sixth Amendment’”; and (2) that the deficient
performance prejudiced the defense through errors “‘so serious
as to deprive the defendant of a fair trial, a trial whose
result is reliable.’” United States v. Moulton, 47 M.J. 227,
229 (C.A.A.F. 1997) (quoting Strickland, 466 U.S. at 687).
As a general matter, “‘[t]his Court will not second-guess the
strategic or tactical decisions made at trial by defense
counsel.’” United States v. Anderson, 55 M.J. 198, 202
(C.A.A.F. 2001) (quoting United States v. Morgan, 37 M.J. 407,
410 (C.M.A. 1993)).
[A] court must indulge a strong presumption that
counsel’s conduct falls within the wide range of
reasonable professional assistance; that is, the
defendant must overcome the presumption that,
under the circumstances, the challenged action
might be considered sound trial strategy. There
are countless ways to provide effective
assistance in any given case. Even the best
criminal defense attorneys would not defend a
particular client in the same way.
Strickland, 466 U.S. at 689 (citations and quotation marks
omitted).
In cases involving attacks on defense counsel’s trial
tactics, an appellant must show specific defects in counsel’s
performance that were “unreasonable under prevailing
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professional norms.” United States v. Quick, 59 M.J. 383, 386
(C.A.A.F. 2004) (citation and quotation marks omitted). An
appellant must also show prejudice. Strickland, 466 U.S. at
687. The test for prejudice is whether there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. Id. We
consider whether counsel was ineffective and whether any errors
were prejudicial under a de novo standard of review. Anderson,
55 M.J. at 201.
III. DISCUSSION
A. TESTIMONY BY THE VICTIM
Appellant contends that his defense counsel’s decision to
call the stepdaughter as a defense witness constituted
ineffective assistance of counsel. A decision by trial defense
counsel to call the victim as a witness entails risks that must
be assessed under the particular circumstances of each case.
In the present case, defense counsel acted in light of a
prosecution case that included: (1) the victim’s pretrial
statement alleging extensive sexual misconduct; (2) Appellant’s
statement to the CID that he had engaged in sexual misconduct
with his stepdaughter; and (3) Appellant’s incriminating
admissions to a nurse. Under defense counsel’s direct
examination, the stepdaughter testified that the sexual activity
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was not as frequent or as extensive as described in her
statement to the CID. See supra Part I.B. The decision by the
military judge to find Appellant not guilty of certain offenses
and to modify others directly reflects the testimony presented
by the stepdaughter at trial. See id. Under these
circumstances, we conclude that Appellant has not demonstrated
that defense counsel was ineffective under the first prong of
Strickland.
B. SENTENCING
Appellant contends that defense counsel was ineffective in
not recalling First Sergeant KW to testify on his behalf during
the sentencing hearing. He also contends that he provided
defense counsel with a list of military officers,
noncommissioned officers and members of his church who would
have testified on his behalf on sentencing, and that defense
counsel failed to contact any of these individuals.
With respect to First Sergeant KW, we note that defense
counsel’s sentencing argument expressly referenced the “good
soldier” testimony that the witness had provided during the
findings portion of trial. Moreover, by referring to earlier
testimony rather than recalling the witness, the defense was
able to avoid the risk of cross-examination. Under the
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circumstances of this case, the decision to reference, rather
than repeat, the earlier testimony was not ineffective.
We shall assume, without deciding, that Appellant provided
defense counsel with the list of witnesses described in his
affidavit, and that defense counsel was deficient for not
contacting those witnesses. See Alves, 53 M.J. at 289-90.
Appellant has not provided any specificity as to what those
witnesses would have said if they had been called to testify at
trial. In that posture, Appellant has not demonstrated
prejudice under the second prong of Strickland. See Moulton, 47
M.J. at 229.
C. POST-TRIAL CLEMENCY MATTERS
Appellant contends that during the initial post-trial
process, the defense counsel did not consult with him and did
not return his phone calls. According to Appellant, he was
attempting to contact defense counsel in order to put counsel in
touch with individuals who would have submitted letters in
support of his clemency request. Appellant further contends
that the clemency request did not represent his views or
desires.
We shall assume, without deciding, that defense counsel
failed to consult with Appellant before submitting a clemency
petition, and that such performance was deficient under the
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first prong of Strickland. See United States v. Lee, 52 M.J.
51, 52 (C.A.A.F. 1999); United States v. Hood, 47 M.J. 95, 97
(C.A.A.F. 1997). Appellant, however, has not provided specific
information about what he or others would have submitted. In
the absence of such information, Appellant has not demonstrated
prejudice under Strickland. Moulton, 47 M.J. at 229. Moreover,
Appellant has not demonstrated any prejudice in light of the
decision by the Army Court of Criminal Appeals to set aside the
first convening authority’s action and return his case for a new
action -- the very relief he would have been given had the Court
of Criminal Appeals determined that the first action was tainted
by ineffective assistance of counsel. In the second clemency
petition, Appellant, in coordination with his new military and
civilian defense counsel, provided the convening authority with
extensive documentation of his successful military career and
many positive letters from family and prison officials. No
further relief is warranted.
IV. CONCLUSION
The decision of the United States Army Court of Criminal
Appeals is affirmed.
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