United States v. Dewrell , 2001 CAAF LEXIS 675 ( 2001 )

UNITED STATES, Appellee
v.
Daniel R. DEWRELL, Master Sergeant
U.S. Air Force
No. 00-0203
Crim. App. No. 33085
United States Court of Appeals for the Armed Forces
Argued November 8, 2000
Decided June 13, 2001
CRAWFORD, C.J., delivered the opinion of the Court, in which
SULLIVAN, GIERKE, EFFRON, and BAKER, JJ., joined.
Counsel
For Appellant: Gayleen McCallum (argued); Lieutenant Colonel
James R. Wise, Lieutenant Colonel Timothy W. Murphy, and Captain
Natasha V. Wrobel (on brief); Major Maria A. Fried.
For Appellee: Captain Peter J. Camp (argued); Colonel
Anthony P. Dattilo and Lieutenant Colonel Ronald A. Rodgers
(on brief); Major Lance B. Sigmon.
Military Judge: James A. Young, III
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Dewrell, No. 00-0203/AF
Chief Judge CRAWFORD delivered the opinion of the Court.
Contrary to his pleas, appellant was convicted by a general
court-martial composed of officer members of committing an
indecent act on A, a female less than 16 years of age, in
violation of Article 134, Uniform Code of Military Justice, 10
USC § 934. Appellant was acquitted of raping J, a female less
than 16 years of age. While reducing the forfeitures, the
convening authority approved the sentence of a dishonorable
discharge, 7 years’ confinement, and reduction to the lowest
enlisted grade. The Court of Criminal Appeals affirmed the
findings and sentence. 52 M.J. 601 (1999). We granted review of
the following issues:
I. WHETHER APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF
COUNSEL GUARANTEED BY THE 6TH AMENDMENT OF THE CONSTITUTION.
II. WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY
REFUSING TO ALLOW ANY DEFENSE VOIR DIRE QUESTIONS
CONCERNING THE MEMBERS’ PRIOR INVOLVEMENT IN ANY CHILD
ABUSE CASES AND POSSIBLE PRECONCEIVED NOTIONS REGARDING USE
OF FORCE AND FABRICATION WHEN ALLEGATIONS OF SEXUAL
MISCONDUCT INVOLVE TEEN AND PRETEEN AGE GIRLS.
III. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED
TO THE SUBSTANTIAL PREJUDICE OF APPELLANT IN UPHOLDING THE
MILITARY JUDGE’S ERRONEOUS ADMISSION OF UNCHARGED OTHER
SEXUAL MISCONDUCT UNDER MIL.R.EVID. 404(b), 413, AND 414.
For the reasons contained herein, we affirm the decision of
the court below.
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I. STATEMENT OF THE FACTS
Appellant is a 38-year-old, divorced Master Sergeant with
almost 19½ years of active service. At the time of the offense,
he was assigned to Supreme Headquarters, Allied Powers, Europe
(SHAPE) in Belgium. He became a friend of Army Specialist S,
who was also assigned to Forces command at SHAPE. Eventually,
they began seeing each other and developed an intimate
relationship. Specialist S had a 10-year-old daughter, A.
Appellant, Specialist S, and A frequently did things together.
On one occasion in September or October 1995, Specialist S and A
spent the night at appellant’s residence. A slept in the
bedroom where appellant’s daughter from a previous marriage
slept when she came to visit him. Sometime during the night,
appellant went into the bedroom in which A was sleeping. He
placed his hands under her shirt and fondled her breasts. He
took her hands and placed them on his penis and moved them up
and down. Several months later, A told her mother what
appellant had done. Specialist S reported the assault to the
Air Force Office of Special Investigations (OSI).
While the OSI was investigating the sexual assault upon A,
it received information that appellant may have assaulted a
babysitter, J, nearly 10 years earlier, during the time he lived
in Midwest City, Oklahoma. J stated that she had a sexual
relationship with appellant, consisting of heavy petting and
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oral sex. She also claimed that appellant placed her hand on
his penis and masturbated him. When informed by the OSI that
these indecent acts could not be prosecuted because of the
statute of limitations, J stated that appellant also engaged in
sexual intercourse with her sometime between February 1 and
April 30, 1988. She was 15 at the time. As a result, appellant
was charged with raping J.
At trial, the prosecution also called Army Specialist C.
Specialist C was one of appellant’s neighbors in Midwest City.
She testified that appellant sexually assaulted her on two
occasions. Once while he was working in his garage, he pulled
his penis out of his shorts and put her hand on it and made her
masturbate him. On another occasion, she went to appellant’s
home to borrow a cup of sugar. He took her into the bathroom
and made her masturbate him, and rubbed her vagina with his
hands. These incidents were also barred from prosecution by the
statute of limitations.
II. DISCUSSION
A. WHETHER APPELLANT WAS DENIED
EFFECTIVE ASSISTANCE OF COUNSEL
GUARANTEED BY THE 6TH AMENDMENT OF THE
CONSTITUTION.
To establish a claim of ineffectiveness, “the defendant must
show that counsel’s performance was deficient. This requires
showing that counsel made errors so serious that counsel was not
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functioning as the ‘counsel’ guaranteed the defendant by the
Sixth Amendment.” Strickland v. Washington, 466 U.S. 668, 687
(1984); see also Williams v. Taylor, 529 U.S. 362, 390 (2000).
In satisfying this burden, the “defendant must show that
counsel’s representation fell below an objective standard of
reasonableness.” Id. at 688. Appellant must establish that the
acts identified by him “were outside the wide range of
professionally competent assistance.” Burger v. Kemp, 483 U.S.
776, 795 (1987), quoting Strickland, supra at 690. That is,
counsel’s performance was unreasonable “under prevailing
professional norms ... considering all the circumstances.”
Strickland, supra at 688.
“Judicial scrutiny of counsel’s performance must be highly
deferential.” Id. at 689. “[C]ounsel is strongly presumed” to
have given “adequate assistance.” Id. at 690. The Strickland
Court warned: “It is all too tempting ... to second-guess” a
lawyer’s performance, and appellate courts should try to
“eliminate the distorting effects of hindsight.” Id. at 689.
Acts or omissions that fall within a broad range of reasonable
approaches do not constitute a deficiency. The Court in
Strickland held that “strategic choices made after thorough
investigation of law and facts relevant to plausible options are
virtually unchallengeable.” Id. at 690.
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The defendant must also demonstrate that the deficient
performance prejudiced the defense. The prejudice prong
“requires showing that counsel’s errors were so serious as to
deprive the defendant of a fair trial, a trial whose result is
unreliable.” Id. at 687.
In his first asserted issue, appellant claims that defense
counsel failed to attack the credibility of the government
witnesses. Appellant suggests that his counsel did not
vigorously attack the victim, A, regarding a story she
previously made up about a kidnapping, nor did defense counsel
press A on a false statement to a friend that appellant
threatened to kill her. To the contrary, the record of trial
shows that defense counsel did question A about these items, and
her responses showed that she was impressionable, and that maybe
some of her stories were at least partially fabricated.
Further claims by appellant as to the advanced sexual knowledge
or curiosity on the part of A are unsubstantiated.
Appellant also claims that A’s mother’s testimony could
have been contradicted. However, the only person that was in a
position to challenge the mother’s statement that she and
appellant had only been intimate on one occasion was appellant
himself. Neither at trial nor during the clemency process did
he contradict A’s mother.
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As for Specialist C’s testimony, defense counsel argued
that her statements were inconsistent and amounted to uncharged,
prejudicial misconduct. The military judge disagreed and
allowed Specialist C to testify, but limited her testimony.
The court below ordered defense counsel to submit
affidavits answering a few questions, including why there was
not a more rigorous cross-examination of A. Civilian defense
counsel (CDC) responded that he was concerned that a clumsy or
vicious cross-examination of A would be devastating to his
client, based on her videotaped deposition, as well as CDC’s
many years in criminal defense work.
As to all of the Government’s witnesses, including A, CDC’s
affidavit explains that despite the defense’s investigation, no
evidence surfaced that would create even an inference that the
witnesses were lying or had any motivation to lie. The record
clearly shows that the defense acted to minimize damaging
testimony.
Appellant further contends that his defense counsel did not
do enough to limit the spillover effects of the rape testimony
of J. However, the spillover instruction given by the military
judge was adequate and, presumably, was followed by the members.
See United States v. Holt, 33 M.J. 400, 408 (CMA 1991).
Appellant also claims that defense counsel did not inform
the members about the precise consequences of a punitive
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discharge. Yet the record establishes that defense counsel
informed the members a punitive discharge would “deprive him of
everything that he has worked for and everything that he has
contributed; everything that he is or thought he was.” Based on
the nature of appellant’s felony conviction, the evidence
presented during sentencing, the military judge’s instructions,
and argument of counsel, we are convinced that the officer
members had sufficient information to understand the
ramifications associated with awarding appellant a punitive
discharge.
Appellant argues that defense counsel failed to present a
case on his behalf during findings by not allowing him to
testify and by refusing to put forth a “good soldier” defense.
Appellant avers that he discussed the matter of testifying with
his attorney, and that they planned to make the final decision
after seeing how the case progressed. However, according to
appellant, his attorney rested the defense case immediately
after the Government rested without further discussion with
appellant.
Defense counsel stated in his affidavit that his client was
fully informed of his right to testify and chose to accept his
counsel’s strong recommendation that he should not take the
stand. This was reiterated in military defense counsel’s (MDC)
affidavit. MDC stated that appellant was advised he had the
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final decision on testifying, and he agreed that he would not
testify.
Appellant argues that his counsel failed to present a “good
soldier” defense during the case-in-chief. Appellant had over
19 years of active service and worked at SHAPE Headquarters.
Upon motion, he presented affidavits to the court below from
Colonel Clark P. Wigley, Lieutenant Colonel Leonard F. Benson,
and Master Sergeant (Ret) George L. Davis. All three of the
affiants worked with appellant at SHAPE, and all three vouched
for his competence, professionalism, and integrity. Both
officers indicated that they would have gladly testified for
appellant at his trial. However, CDC did not believe that a
“good soldier” defense would be very persuasive in this type of
case. CDC was also concerned that character witnesses would
open the door for uncharged misconduct.1 Defense counsel had the
benefit and knowledge of the pretrial investigation, including
OSI reports, medical reports, and other discoverable material.
He stated that appellant understood his analysis and accepted
it. Deciding to forgo live witnesses in order to avoid
potentially damaging evidence being brought in under cross-
examination does not amount to incompetence.
1
Right to Counsel: En Banc Eleventh Circuit Denies Habeas to Federal Prisoner
Sentenced to Death, 67 BNA CRIM. L. REP. at 658 (Aug. 9, 2000) (“A reasonable
lawyer … could have decided that presentation of mitigation evidence would be
counterproductive because it would open the door to potentially harmful
cross-examination and nullifying rebuttal.”).
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We need not order a hearing pursuant to United States v.
Ginn, 47 M.J. 236, 248 (1997), since these matters may be resolved
based on the “appellate filings and the record.” 47 M.J. at 248.
All parties agree that appellant's counsel advised him
against testifying. CDC states that appellant wanted to
testify, and that it was only after a heated discussion that
appellant agreed to remain silent. He states that when the
prosecution rested, he leaned over to appellant and appellant
"once again, confirmed that he would be taking our advice and
that he would be remaining silent." MDC states that after the
Government rested its case, the defense "took a moment to concur
one last time that we were not putting on any further evidence."
Appellant asserts that CDC stood up immediately after the
Government rested and announced that the defense also rested.
The record does not indicate whether a brief pause and
conference took place among appellant and his two counsel before
the defense rested. The record does reflect, however, that
there was a 2-hour break after both sides rested, followed by a
session under Article 39(a), UCMJ, 10 USC § 839(a), on
instructions, during which there was ample opportunity for
appellant to express his desire to testify. While appellant may
have continued to entertain the idea of testifying in spite of
his counsel's advice, there is no indication that he told his
counsel he rejected their advice. Appellant made no complaint
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about his defense counsel in his post-trial submission to the
convening authority. Appellant's failure to speak up at or
after trial belies his assertion that his desire to testify was
improperly cut off by his counsel. We conclude that "the
appellate filings and the record as a whole 'compellingly
demonstrate' the improbability" of appellant's assertions. See
Ginn, 47 M.J. at 248.
As to the abridgement of appellant’s right to testify, we
agree with the court below. “[T]his barebones assertion by a
defendant, albeit made under oath, is insufficient to require a
hearing.... Some greater particularity is necessary -- and also
we think some substantiation is necessary, such as an affidavit
from the lawyer who allegedly forbade his client to testify --
to give the claim sufficient credibility to warrant a further
investment of judicial resources in determining the truth of the
claim....” 52 M.J. at 614, quoting Underwood v. Clark, 939 F.2d
473, 475-76 (7th Cir. 1991); see also United States v. Boyd, 86
F.3d 719, 722-23 (7th Cir. 1996).
Appellant claims similar error during the sentencing
portion of the trial. Yet, CDC indicated that he discussed the
sentencing strategy with appellant, and this seems probable from
the record, which states:
CIV DC: Yes, Your Honor, we have discussed
[with] Master Sergeant Dewrell his rights to
present evidence and to make a sworn or unsworn
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statement through counsel. And, in doing so, we
have reviewed the Defense Exhibits that we have
marked as Defense Exhibit D for identification,
which we will be offering to the military judge.
We have explained that the prosecution, of
course, will be offering the enlisted personnel
records of the accused, reflecting his entire
service career. And, we have determined that for
tactical reasons we will not be presenting any
other evidence beyond that, to include the
accused exercising his right to remain silent.
We hold that CDC’s and MDC’s tactics were well within their
discretion. “We do not look at the success of a criminal
defense attorney’s trial theory, but rather whether counsel made
an objectively reasonable choice in strategy from the
alternatives available at the time.” United States v. Hughes,
48 M.J. 700, 718 (A.F. Ct. Crim. App. 1998), citing United States
v. Ingham, 42 M.J. 218 (1995).
Appellant has not met his burden of showing error on the
part of defense counsel. As the first prong of Strickland was
not met, we hold that the court below correctly determined that
appellant was not denied effective assistance of counsel as
guaranteed by the Sixth Amendment. We also hold that it did so
in compliance with this Court’s decision in Ginn.
B. WHETHER THE MILITARY JUDGE ABUSED HIS
DISCRETION BY REFUSING TO ALLOW ANY DEFENSE
VOIR DIRE QUESTIONS CONCERNING THE MEMBERS’
PRIOR INVOLVEMENT IN ANY CHILD ABUSE CASES
AND POSSIBLE PRECONCEIVED NOTIONS REGARDING
USE OF FORCE AND FABRICATION WHEN ALLEGATIONS
OF SEXUAL MISCONDUCT INVOLVE TEEN AND PRETEEN
AGE GIRLS
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The standard of review on this issue is an abuse of
discretion. United States v. Belflower, 50 M.J. 306, 309 (1999);
United States v. Jefferson, 44 M.J. 312, 317 (1996).
The military judge in this case did not allow either
counsel to conduct group voir dire. Appellant argues that the
military judge abused his discretion by refusing to allow any
defense voir dire questions concerning the members’ prior
involvement in any child abuse cases and possible preconceived
notions regarding use of force and fabrication when allegations
of sexual misconduct involve teen and preteen age girls.
Prior to trial, the military judge sent a letter to counsel
advising them to submit voir dire questions to him at least 7
days prior to trial since he would question the members. While
both the defense and the Government submitted questions pursuant
to the military judge’s instructions, both sides stated their
objection to this procedure and their desire to question the
members personally. However, the military judge denied both
requests. Neither the UCMJ nor the Manual for Courts-Martial,
United States (2000 ed.), gives the defense the right to
individually question the members. Jefferson, supra at 317-19;
RCM 912(d), Manual, supra.2
2
The current version of this rule is identical to the one in effect at the
time of appellant’s court-martial.
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After the military judge questioned the members, defense
counsel specifically asked the military judge to ask them:
* * *
4. Is there any member of the panel who
has a close friend, neighbor or relative,
(to include spouse), who works in the
field of law enforcement, teaching,
medicine, psychology, psychiatry, or
social work services?;
* * *
8. Is there any member of the panel who
believes that teenage girls, solely
because of their age, are not mentally
capable of manifesting lack of consent
to sexual advances?;
9. Is there any member of the panel who
believes that teenage girls, because of
their age, believe that they are required
to acquiesce to sexual advances of an
adult because that person is an adult?;
and
10. Is there any member of the panel who
believes that preteen age girls would not
fabricate allegations of sexual misconduct?
Trial defense counsel stated that question four was
designed to determine “whether or not any member of the panel is
close enough with someone who would be necessarily involved in
child abuse cases and who might have knowledge that would come
to bear during the course of the discussions in the jury room,”
thereby affecting his/her deliberation in the case. Defense
counsel stated he would use this information to “intelligently
exercise our peremptory challenge.” Defense counsel commented
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United States v. Dewrell, No. 00-0203/AF
that the purpose of questions eight and nine was to determine
whether any member believed that a teenager is not capable of
manifesting a lack of consent to sexual approaches. He noted
that in some cases, court members believed this. Defense
counsel urged the military judge to ask question ten because
“there are many jury members out there who believe that a pre-
teenage girl would never fabricate an allegation of sexual
misconduct.” The military judge did not address defense
counsel’s concern but simply stated, “I believe I have
adequately covered these areas in my questions.”
The military judge’s questions properly tested for a fair
and impartial panel and allowed counsel to intelligently
exercise challenges. He asked about members’ family and close
friends; he asked whether any member served as a “family
advocacy team member or who works on some type of committee such
as that”; he asked whether “anyone on the panel . . . believes
that any particular person, whether they are an adult or a
minor, simply because of their status, would automatically be
telling the truth or not telling the truth”; and he asked
whether any member had any experience in legal or law
enforcement matters. We hold that the questions asked by the
military judge were clearly adequate to cover the statutory
qualification of the members. Thus, there was no abuse of
discretion by the military judge.
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C. WHETHER THE AIR FORCE COURT OF CRIMINAL
APPEALS ERRED TO THE SUBSTANTIAL PREJUDICE
OF APPELLANT IN UPHOLDING THE MILITARY
JUDGE’S ERRONEOUS ADMISSION OF UNCHARGED
OTHER SEXUAL MISCONDUCT UNDER MIL.R.EVID.
404(b), 413, AND 414.
Lastly, appellant contends that the court below erred in
upholding the military judge’s admission of uncharged other
sexual misconduct under Mil.R.Evid. 404(b), 413, and 414,
Manual, supra.3 We review the military judge’s ruling on the
admissibility of evidence under an abuse of discretion standard.
See United States v. Acton, 38 M.J. 330, 332 (CMA 1993).
At the beginning of the trial, defense counsel made a
motion in limine to preclude the testimony of Specialist C as
impermissible under Mil.R.Evid. 404(b). Although appellant was
not charged with any offenses relating to Specialist C, the
prosecution wanted her to testify that appellant had her
masturbate him on a couple of occasions between 1987 and 1989
when she was between 10 and 12 years of age. The military judge
ruled that the portion of her testimony relating to the
masturbation was admissible. He stated:
I find that the acts of having young girls, between
the ages of 10 and 15 - - grabbing their hands,
putting their hands on his penis, and masturbating
him – that evidence is of such similar nature that
3
Mil.R.Evid. 413 and 414 did not exist at the time of appellant’s court-
martial. However, Fed.R.Evid. 413 and 414 applied, by virtue of Mil.R.Evid.
1102, and they are virtually the same as Mil.R.Evid. 413 and 414. See United
States v. Wright, 53 M.J. 476, 480 n.4 (2000).
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I believe it is admissible under both 404(b) and
Military Rule of Evidence 414. Now, in my balancing
test under Military Rule of Evidence 403, I decided
that the full scope of the testimony of Specialist [C]
will not be admitted. In other words, the statements
concerning trapping her in the bathroom and the other
acts don’t go to the acts that we are talking about,
especially with regard to [A]. Again, part of my
reasoning here is that the prejudicial effect of that
type of evidence would outweigh the probative value –
substantially outweigh the probative value. However,
on the masturbating, I think that is very probative
and by limiting it I don’t think the prejudicial
effect substantially outweighs the probative value.
Although the military judge’s determination in this case
was made prior to our decision in United States v. Wright, 53 M.J.
476 (2000), we note that the list of factors in Wright is
neither exclusive nor exhaustive. The military judge’s careful
and reasoned analysis on the record satisfied the constitutional
requirement that evidence offered under Rule 413 be subjected to
a thorough balancing test pursuant to Mil.R.Evid. 403. United
States v. Enjady, 134 F.3d 1427, 1433 (10th Cir. 1998); see also
United States v. Guardia, 135 F.3d 1326, 1331 (10th Cir.
1998)(Although the trial court is not required to make detailed
findings of fact under Rule 403, it is important that the court
“fully evaluate the proffered Rule 413 evidence and make a clear
record of the reasoning behind its findings.”).
Following our decision in Wright, we hold that the military
judge properly admitted the contested testimony. The threshold
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findings were met under Rule 413(a)4, the evidence was found to
be relevant to the immediate charges under Mil.R.Evid. 401 and
402, and the military judge clearly found that the probative
value of specific portions of the testimony outweighed any
prejudicial effect, as required under Mil.R.Evid. 403.
We review a military judge’s evidentiary rulings for an abuse of
discretion. However, when the judge does not articulate the
balancing analysis on the record, we give the evidentiary ruling
less deference than we do where, as in this case, the balancing
analysis is fully articulated on the record. United States v.
Manns, 54 M.J. 164, 166 (2000).
Additionally, the military judge instructed the
members as follows:
Each offense must stand on its own and you must keep
the evidence of each offense separate. The burden is
on the prosecution to prove each and every element of
each offense beyond a reasonable doubt. As a general
rule, proof of one offense carries with it no
inference that the accused is guilty of any other
offense. However, you may consider any similarities
in the testimony of Ms. [P, A,] and Specialist [C]
concerning masturbation with regard to the
Specification of Charge II [rape].
(Emphasis added.) As the members acquitted appellant of
the rape charge, this Court finds no reason to doubt that
the members followed the instructions given them.
4
As Rules 413 and 414 are essentially the same in substance, the analysis for
proper admission of evidence under either should be the same.
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III. DECISION
The decision of the United States Air Force Court of
Criminal Appeals is affirmed.
19