United States v. Grigoruk , 2002 CAAF LEXIS 153 ( 2002 )

UNITED STATES, Appellee
V.
Sean G. GRIGORUK, Staff Sergeant
U.S. Army, Appellant
No. 98-1089
Crim. App. No. 9600949
United States Court of Appeals for the Armed Forces
Argued November 28, 2001
Decided February 15, 2002
GIERKE, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., EFFRON and BAKER, JJ., and
SULLIVAN, S.J., joined.
Counsel
For Appellant: Karen L. Hecker (argued); Colonel Adele H.
Odegard (on brief); Eugene R. Fidell and Captain Steven P.
Haight.
For Appellee: Captain Karen J. Borgerding (argued); Colonel
Steven T. Salata, Lieutenant Colonel Denise R. Lind, and
Major Margaret B. Baines (on brief).
Military Judge: Robert F. Holland
This opinion is subject to editorial correction before final publication.
United States v. Grigoruk, No. 98-1089/AR
Judge GIERKE delivered the opinion of the Court.
A general court-martial composed of officer and enlisted
members convicted appellant, contrary to his pleas, of multiple
sexual offenses (rape, forcible sodomy, and committing indecent
acts) with a child under the age of sixteen, in violation of
Articles 120, 125, and 134, Uniform Code of Military Justice, 10
USC §§ 920, 925, and 934, respectively. The adjudged and
approved sentence provides for a dishonorable discharge,
confinement for twenty years, total forfeitures, and reduction to
the lowest enlisted grade. The Court of Criminal Appeals has
twice affirmed the findings and sentence in unpublished opinions.
Before this Court, appellant contends that his trial defense
counsel provided ineffective assistance. For the reasons set out
below, we affirm.
Trial and Appellate History
Appellant’s stepdaughter accused him of child sexual abuse,
beginning when she was four years old and continuing for several
years, until she told a babysitter about it. The victim was nine
years old at the time of appellant’s court-martial. Appellant
testified and denied committing the offenses. There was no
direct medical evidence to support the victim’s accusation, but
the prosecution presented a stipulation of the expected testimony
of Dr. Deborah Bryant, who examined the victim and opined that a
normal, genital-rectal examination does not necessarily mean that
a child has not been abused.
The court-martial was essentially a credibility contest
between appellant and the child. Prior to the trial on the
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merits, the military judge granted a defense request for funds to
hire Dr. Ralph Underwager or a suitable substitute as an expert
witness. Dr. Underwager had not examined the victim, but he was
expected to testify, in response to hypothetical questions, as
follows:
(1) A conflicted family environment, particularly divorce,
and separation from parents may influence a child to
fabricate stories of abuse;
(2) Children are more suggestible than adults, and frequent,
repeated questioning of children can actually teach or
reinforce a false story; and
(3) The initial assumptions of a child interviewer are a
powerful determinant of what the child reports at the
interview.
Despite this favorable ruling, the trial defense counsel did not
present any expert testimony at trial.
On initial review, this Court granted review of two issues:
I. WHETHER TRIAL DEFENSE COUNSEL PROVIDED INEFFECTIVE
ASSISTANCE OF COUNSEL WHEN HE FAILED TO (1) CALL AN EXPERT
WITNESS WHO WOULD PROVIDE CREDIBLE EVIDENCE THAT SUPPORTED
THE DEFENSE’S THEORY OF THE CASE; (2) CROSS-EXAMINE A NUMBER
OF WITNESSES REGARDING PERTINENT FACTS IN DISPUTE; AND (3)
STIPULATED TO DAMNING EVIDENCE.
II. WHETHER THE REVIEWING COURT CONDUCTED MEANINGFUL
APPELLATE REVIEW WHEN IT FAILED TO ORDER TRIAL DEFENSE
COUNSEL TO SUBMIT AN AFFIDAVIT WHEN A VIABLE CLAIM FOR
INEFFECTIVE ASSISTANCE OF COUNSEL HAD BEEN RAISED.
This Court held that appellant had met the threshold for further
inquiry concerning his claim of ineffective assistance of
counsel. The court below was directed to request an affidavit
from trial defense counsel explaining why Dr. Underwager or any
other expert was not called to challenge the victim’s
credibility. The court below was further directed to obtain
additional evidence if necessary, conduct any factfinding
consistent with United States v. Ginn, 47 M.J. 236 (1997), and
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reconsider appellant’s claim of ineffective assistance. 52 M.J.
312, 315-16 (2000).
Trial defense counsel submitted an affidavit in which he
recited that his initial decision to request Dr. Underwager was
on recommendation of another lawyer. He obtained some written
information from Dr. Underwager to support his request for
funding to hire him. He found the information “very basic, but
helpful.” He used the information “to develop witness questions,
organize [his] argument, and generally support the theory of the
case.” In his affidavit, trial defense counsel states that,
after speaking with Dr. Underwager “on more than one occasion,”
he became concerned about Dr. Underwager’s references to “false
claims” and the “documents” he carried to rebut them.
Trial defense counsel’s decision to seek an expert was “in
large measure” to counter the anticipated testimony of the
Government’s expert, Mr. Richard Pitcock, a psychological
examiner who interviewed and evaluated the victim. Mr. Pitcock
testified at the pretrial investigation1 that the victim “had age
inappropriate knowledge of sexual activities.”
At a pretrial motion hearing, the prosecution informed the
military judge that “if this court’s ruling, concerning Doctor
Underwager, is triggered by our proffer or intent to call Mr.
Pitcock, the Government would state that it would not call Mr.
Pitcock in that event.” The prosecution proffered that if Mr.
Pitcock testified, his testimony would be limited to stating that
he gave the victim various tests and that “she’s a child of
1
See Art. 32, UCMJ, 10 USC § 832.
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normal intellect and normal ability to recall and understand
events.” The prosecution also indicated that it would offer the
victim’s statements to Mr. Pitcock. Finally, the prosecution
indicated that Mr. Pitcock might testify in rebuttal, “depending
on how the case -- the defense case came out.”
After the motions hearing, the prosecution agreed to
stipulate to the testimony of Dr. Bryant, who had conducted the
genital-rectal examination of the victim. In his affidavit,
trial defense counsel explains, “At that point, any tactical need
to balance their expert’s testimony at trial was gone.” When the
case ultimately was tried on the merits, the prosecution did not
call any experts to testify in person.
The prosecutor also showed trial defense counsel “a detailed
format for attacking Dr. Underwager.” Trial defense counsel
recites in his affidavit that, “by that time, [he] had pretty
much already decided against using him.” He recites further that
he was concerned with the court members thinking he was “trying
to pass off a ‘quack’ on them.” Finally, trial defense counsel
explains that “[t]he potential danger of having to litigate Dr.
Underwager’s credibility or having another expert open the door
for Mr. Pitcock’s appearance far outweighed the foreseeable
impact of the granted testimony, the substance of which I argued
to the panel anyway.”
After considering trial defense counsel’s affidavit and
determining that no additional factfinding hearing was necessary,
the court below concluded, in an unpublished opinion, that trial
defense counsel had established reasonable, tactical and
strategic reasons for forgoing the testimony of Dr. Underwager or
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any other expert. Appellant again petitioned this Court for
review, and we granted review of the following issue:
WHETHER TRIAL DEFENSE COUNSEL PROVIDED INEFFECTIVE
ASSISTANCE OF COUNSEL WHEN THEY FAILED TO EMPLOY A REPUTABLE
EXPERT TO CONSULT WITH THEM ON THE CASE AND TO PROVIDE
CREDIBLE EVIDENCE THAT SUPPORTED THE DEFENSE’S THEORY OF THE
CASE, WHICH MANDATES THAT THIS COURT SET ASIDE APPELLANT’S
CONVICTION.
In this second review of appellant’s claim of ineffective
assistance of counsel, he has broadened his attack on trial
defense counsel, adding an allegation that he failed to employ a
reputable expert for consultation.
Discussion
We review issues of ineffective assistance of counsel de
novo. United States v. Wean, 45 M.J. 461, 463 (1997). On
appellate review, there is a “strong presumption” that counsel
was competent. Strickland v. Washington, 466 U.S. 668, 689
(1984). This Court applies the following three-pronged test to
determine if the presumption of competence has been overcome:
(1) Are appellant’s allegations true; if so, “is there
a reasonable explanation for counsel’s actions?”;
(2) If the allegations are true, did defense counsel’s
level of advocacy fall “measurably below the
performance . . . [ordinarily expected] of fallible
lawyers?”; and
(3) If defense counsel was ineffective, is there a
“reasonable probability that, absent the errors,” there
would have been a different result?
United States v. Polk, 32 M.J. 150, 153 (CMA 1991).
Applying this test, we hold that trial defense counsel was
not ineffective. Trial defense counsel did not elaborate on Dr.
Underwager’s reference to “false claims” and his rebuttal
“documents.” Likewise, he did not describe the prosecution’s
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plan to discredit Dr. Underwager. Nevertheless, trial defense
counsel’s concerns about litigating Dr. Underwager’s credibility
as a witness were not unfounded.
In Underwager v. Salter, 22 F.3d 730 (1994), the Seventh
Circuit rejected Dr. Underwager’s appeal from an adverse summary
judgment against him in a defamation lawsuit. Dr. Underwager
sued the authors of an article in the Journal of the American
Medical Association (JAMA) criticizing his work. The Seventh
Circuit observed that “Underwager’s approach has failed to carry
the medical profession, but it has endeared him to defense
lawyers.” Id. at 732. The court summarized an interview on a
television program, “60 Minutes Australia,” in which the JAMA
reviewer mentioned Dr. Underwager’s view that ninety percent of
all accusations of child molestation are unfounded and
characterized it as “gobbledygook.” Id.2 The court’s opinion
also recites, “Underwager served on the board of the False Memory
Syndrome Foundation until resigning after being quoted as telling
a Dutch journal that sex with children is a ‘responsible choice
for the individual.’” Id. at 734; see also Commonwealth v.
Perkins, 658 N.E.2d 975, 978 (Mass.App.Ct. 1995) (holding that it
was not improper to impeach Dr. Underwager by referring to his
statements endorsing pedophilia as an “acceptable and reasonable
lifestyle”); State v. Swan, 790 P.2d 610, 632 (Wash. 1990)
(Supreme Court of Washington upheld trial court’s ruling that Dr.
Underwager’s proffered testimony was not based on independent
2
This comment resulted in another defamation action, which also was summarily
resolved against Dr. Underwager. See Underwager v. Channel 9 Australia, 69
F.3d 361 (9th Cir. 1995).
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research, but was undertaken at the behest of the insurance
industry for use in civil claims for child sexual abuse, and that
the record “does not sufficiently establish the reliability of
the expert’s methodology, factors, or the principles which he
proposed to use in his testimony.”).
The record before us demonstrates that trial defense counsel
sought an expert to counter anticipated government experts. He
contacted Dr. Underwager on the recommendation of a colleague.
He obtained written information from Dr. Underwager as the basis
for his request to the military judge. He found Dr. Underwager’s
written information “very basic, but helpful.” He also talked to
Dr. Underwager on the telephone and used the information obtained
from Dr. Underwager to prepare for trial.
Trial defense counsel concluded that he might not need Dr.
Underwager to testify as an expert after the Government decided
not to present expert testimony. He concluded, based on his
review of the prosecution’s plan of attack, that Dr. Underwager’s
credibility would be heavily attacked, and that the credibility
of the defense case might be undermined if the defense was
perceived as using a “quack” as an expert. Based on all these
factors, trial defense counsel decided not to use Dr. Underwager
as an expert witness. We hold that there was a reasonable
explanation for this action.
Regarding the failure of trial defense counsel to request
another suitable expert witness, we note that, even though over
five years have passed since appellant’s conviction, and his case
has worked its way up the appellate chain twice, neither
appellant nor his counsel have demonstrated that any other expert
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could have provided expert testimony sufficient to raise the
reasonable probability of a more favorable result. Cf. United
States v. McAllister, 55 M.J. 270 (2001) (defense informed military
judge that requested expert could not provide needed assistance
and identified another expert who could).
Regarding trial defense counsel’s failure to employ another
expert for consultation, his affidavit states that he talked with
Dr. Underwager and obtained helpful information, which he used to
develop his trial strategy. Appellant has not asserted or
demonstrated that what Dr. Underwager told trial defense counsel
was incorrect or deficient, nor has appellant identified any
other consultant, by name or qualifications, who should have been
consulted.
Based on this appellate record, we hold that appellant has
not overcome the strong presumption of competence. He has not
demonstrated that trial defense counsel’s performance was
“outside the wide range of professionally competent assistance.”
Strickland, 466 U.S. at 690.
Decision
The decision of the United States Army Court of Criminal
Appeals is affirmed.
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