United States v. Specialist JUSTIN P. SWIFT

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
TOZZI, CELTNIEKS, and BURTON
Appellate Military Judges
UNITED STATES, Appellee
v.
Specialist JUSTIN P. SWIFT
United States Army, Appellant
ARMY 20100196
Headquarters, Fort Bliss
Michael J. Hargis, Military Judge (trial)
Timothy P. Hayes Jr., Military Judge (rehearing)
Colonel Michael J. Benjamin, Staff Judge Advocate (trial)
Colonel Karen H. Carlisle, Staff Judge Advocate (rehearing)
For Appellant: Colonel Kevin Boyle, JA; Lieutenant Colonel Jonathan F. Potter, JA;
Major Amy E. Nieman, JA (on brief); Lieutenant Colonel Christopher D. Carrier,
JA; Captain Katherine L. DePaul, JA; Captain Michael A. Gold, JA (on brief and
reply brief following remand).
For Appellee: Colonel Mark H. Sydenham, JA; Captain Jihan Walker, JA (on brief);
Lieutenant Colonel A.G. Courie III, JA; Major Michael E. Korte, JA; Captain
Samuel E. Landes, JA (on brief following remand).
29 August 2017
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MEMORANDUM OPINION ON REMAND
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This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.
TOZZI, Senior Judge:
On 10 March 2010, a panel consisting of officer and enlisted members sitting
as a general court-martial convicted appellant, contrary to his pleas, of two
specifications of indecent acts with a child in violation of Article 134, Uniform
Code of Military Justice, 10 U.S.C. § 934 (2000) [hereinafter UCMJ]. The panel
sentenced appellant to a dishonorable discharge, fourteen years confinement, total
forfeitures, and reduction to the grade of E-1. The convening authority approved the
sentence as adjudged.
SWIFT—ARMY 20100196
On 29 November 2012, this court set aside the findings and sentence and
dismissed the specifications without prejudice because the government failed to
allege the terminal element for both Article 134, UCMJ, offenses. A new trial was
authorized by this court.
On 22 October 2014, a military judge sitting as a general court-martial
convicted appellant, contrary to his pleas, of two specifications of indecent acts with
a child in violation of Article 134, UCMJ. The military judge sentenced appellant to
a dishonorable discharge, eleven years confinement, and reduction to the grade of
E-1. The military judge credited appellant with 1,142 days confinement credit. The
convening authority approved the adjudged sentence and the confinement credit.
This court affirmed the findings and sentence in a memorandum opinion.
United States v. Swift, ARMY 20100196, 2016 CCA LEXIS 26, at *10 (Army Ct.
Crim. App. 21 Jan. 2016) (mem. op.) (Swift I). On 26 April 2017, our superior court
remanded the case to us for another review under Article 66(c), UCMJ, and to
determine whether the military judge erred in admitting uncharged misconduct under
Military Rule of Evidence [hereinafter Mil. R. Evid.] 404(b) and Mil. R. Evid. 414.
United States v. Swift, 76 M.J. 210, 212-18 (C.A.A.F. 2017).
In his second appeal at this court, we considered all the errors assigned and
personally raised by appellant, two of which warrant discussion but no relief. See
United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). The issues warranting
discussion are as follows: (1) the admissibility of Mil. R. Evid. 404(b) and Mil. R.
Evid. 414 evidence, and (2) the effectiveness of defense counsel’s assistance.
Regarding the admissibility of victim “outcry” evidence, we adopt the reasoning in
Swift I. 2016 CCA LEXIS 26, at *5-10.
BACKGROUND
Appellant was convicted of sexually assaulting his natural daughter KS on
two occasions. One sexual assault resulting in conviction occurred between
1 November 2003 and 31 December 2003 at Schofield Barracks, Hawaii. In a sworn
statement to Criminal Investigation Command (CID) special agents, dated
7 September 2007, appellant confessed to touching KS in Hawaii in November or
December of 2003. Appellant stated he arrived home from a long day at work to his
wife and two children already in bed. He then entered his room in the dark and
crawled into his bed. Appellant explained:
I crawled in beside her and reached to touch her. I had a
hard day and needed to feel her close. I wanted to be as
close to her as I could and had a strong desire to make
love to the woman I love more than anyone else in this
world. I felt flesh and reached under her undergarments
but something didn’t feel right. I thought it was my
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imagination and continued. Then I heard my wife say that
[KS] was in bed with her. I pulled my hand away
instantly and went for the light. [KS] had a confused look
on her face like she knew that something was happening
but she didn’t know what. I told her that I did not mean to
touch her. I didn’t even know she was in the bed. I asked
her to forget about it, that daddy made a mistake but that
he would never make that mistake again. She went back
to sleep and I didn’t hear about it again for 4 yrs.”
Appellant further stated: “I think she [KS] was 4 years old, and this happened
around Nov or Dec of 2003, when we were stationed at Schofield Barracks, Hawaii.”
When asked what he noticed was different when fondling his daughter’s genitals,
appellant stated: “Smooth skin, and no hair. Position, when my wife lays down she
has a certain body size and my daughter has a certain body size.” When asked how
long he was fondling his daughter’s genitals, appellant stated: “10 to 15 seconds.
Then my wife said [KS] was in the bed. That is when I stopped.” Appellant stated
he did not insert his fingers into KS’s vagina, but was “just rubbing it.”
The other incident for which appellant was convicted occurred between 1 May
2007 and 5 September 2007 at Fort Bliss, Texas. Appellant stated in the same sworn
statement to CID agents cited above that he experienced blackouts and there were
times that he fell asleep in one room and woke up in another. Appellant explained:
There was an incident that happened back in May. One
night I was laying next to [KS] in her bed reading her a
Harry Potter book. The next thing I consciously remember
was being woke up by my wife on the couch with no
recollection on how I got there. My wife asked me if it
was possible that I could have maybe touched her by
accident but I wouldn’t listen to her. . . . During that
blackout spell I had a dream about an old flame. She and I
had never touched intimately in real life but I had wanted
to. I lived out part of that fantasy in my dream. . . . We
always enjoyed time out as friends but she would not let it
go further than that. In my dream we almost did get that
far. I laid my head on her chest and she smiled. In my
dream this made me bolder. I reached down to touch on
her vagina. She said to stop, this wasn’t right. I have a
wife and it would be wrong for us to engage in intercourse
so I stopped. As this was happening in my dream, I was
performing it in real life with my daughter who in my
dream was [my old flame]. I never have and never will
have any desire to touch my daughter or any other child in
a sexual manner.
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When asked when this incident occurred, appellant stated “[h]ere on Fort Bliss, in
our current house, and that was around 6 Jun 07.” When asked if he inserted his
finger into [KS’s] vagina on this occasion, appellant stated, “I don’t know.”
Our superior court held that the military judge did not err in admitting
appellant’s confession in this case, and appellant waived the issue of corroboration
at trial. Swift, 76 M.J. at 217-18.
There were other incidents of uncharged misconduct introduced into evidence
during appellant’s trial. The government’s summary of the three instances of
uncharged misconduct it intended to introduce pursuant to Mil. R. Evid. 404(b) and
Mil. R. Evid. 414 is listed below.
The Couch Peeing Incident:
[KS’s] therapist, [CR], (now [CL]) called Child Protective
Services to report an incident in which [KS] straddled the
Accused while he was laying on the sofa. The Accused
had his penis exposed. According to [KS], the Accused
“peed” on the couch on her night gown. [KS] then cleaned
up the mess and stated, “Here we go again!” The Accused
then made the statement, “I hope no one gets the wrong
idea about this,” or words to that effect.
The Hawaii Van Incident:
During a forensic interview on 29 June 2006, [KS]
revealed that the Accused touched her vulva in the back
seat of a van when she was four.
The Texas Pool Incident:
[KS] remembers an incident where the Accused touched
her vagina while she was changing in her bedroom.
According to [KS], she had been mean to her sister by
pushing her into a pool and was put in time-out in her
room. When her time-out was over, the Accused told her
to change out of her bathing suit. While she was
changing, the Accused told her to stop and sat her on the
bed. The Accused then fondled her vulva and rubbed his
finger between her labia.
At trial, KS testified appellant touched her inappropriately on “two or three”
occasions, including the “Hawaii Van Incident,” the “Texas Pool Incident,” and
another incident that occurred in Texas when she was seven, involving appellant
fondling her genitals as she was in bed with her mother after having a nightmare (the
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“Texas Bedside Incident”). This incident is distinct from the similar misconduct
charged in Specification 1 of The Charge, which occurred in Hawaii in 2003. KS
also testified about the “Couch Peeing Incident” in relation to a counseling session
she had with Ms. CL. Ms. CL testified and filled in details of this incident. None of
this misconduct was charged by the government.
Eventually, when KS was eight years old, she made a disclosure to her third-
grade teacher, Ms. VA, indicating that her father touched her inappropriately. At the
time of appellant’s rehearing, KS was fifteen years old and could no longer recall
the name of her third-grade teacher or making the disclosure. Ms. VA testified that
KS disclosed she was sexually assaulted by appellant. Ms. VA also testified she
notified the school counselor and filed a report with Child Protective Services.
LAW AND DISCUSSION
A. Admissibility of Mil. R. Evid. 404(b) and Mil. R. Evid. 414 Evidence
The military judge admitted the evidence of uncharged misconduct, consisting
of the “Couch Peeing Incident,” the “Hawaii Van Incident,” and the “Texas Pool
Incident,” all described above. Normally, we review a military judge’s decision to
admit or exclude evidence for an abuse of discretion. United States v. Barnett, 63
M.J. 388, 394 (C.A.A.F. 2006). In this case, as directed by our superior court, we
must conduct a de novo review of the admissibility of the uncharged misconduct
since the military judge did not make findings of fact and conclusions of law
regarding the admission of this evidence. See Swift I, 76 M.J. at 218 (citing United
States v. Berry, 61 M.J. 91, 96 (C.A.A.F. 2005)).
1. Mil. R. Evid. 404(b) and the Reynolds Test
As a general rule, “[e]vidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show action in conformity
therewith.” Mil. R. Evid. 404(b) (emphasis added). However, the rule goes on to
provide that prior acts of an accused may “be admissible for other purposes, such as
proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident . . . .” Mil. R. Evid. 404(b) (emphasis added). This
rule embodies the traditional limitations on the admissibility of character evidence—
through prior acts or otherwise—to prove an accused possessed a propensity to
commit the bad act for which he or she is now charged. It allows this evidence to be
considered for non-character purposes, and only if the government can demonstrate
its admissibility under United States v. Reynolds, 29 M.J. 105 (C.M.A. 1989), and its
progeny.
In Reynolds the Court of Military Appeals adopted the following test for
determining whether prior uncharged misconduct of an accused is admissible under
Mil. R. Evid. 404(b):
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(1) Whether the evidence reasonably supports a finding by
the court members that appellant committed the prior
crimes, wrongs, or acts;
(2) Whether the evidence makes a “fact of consequence”
more or less probable; and
(3) Whether the probative value of the evidence is
substantially outweighed by the danger of unfair prejudice
under Mil. R. Evid. 403.
United States v. Morrison, 52 M.J. 117, 121-22 (C.A.A.F. 1999) (citing Reynolds, 29
M.J. at 109). Our superior court explained that “[p]roof of the first prong is
satisfied if the conduct is proven by a preponderance of the evidence.” Id. at 122.
In analyzing the second prong, a “fact of consequence” that is made more or less
probable must be one or more of the non-propensity bases provided for in Mil. R.
Evid. 404(b). Id. The third prong involves a conventional balancing test under Mil.
R. Evid. 403. Id. at 123. “The evidence at issue must fulfill all three prongs to be
admissible.” Barnett, 63 M.J. at 394.
Here, the evidence supports a finding that appellant committed the prior acts
by a preponderance of the evidence. See Huddleston v. United States, 485 U.S. 681,
690 (1988) (determining whether the trier of fact could find by the preponderance of
the evidence the conditional facts—the other criminal offenses—actually occurred).
The testimony of KS alone is sufficient to support a finding that appellant committed
the instances of uncharged misconduct by a preponderance of the evidence. In
addition, the testimony of KS’s counselor regarding the “Couch Peeing Incident”
bolsters the conclusion that particular incident occurred.
There is also no doubt that the uncharged misconduct in this case does make a
fact of consequence—whether appellant sexually assaulted his biological daughter—
more probable. Finally, the probative value of this evidence is not outweighed by
the danger of unfair prejudice. Appellant’s assertion that a large portion of the trial
transcript deals with the uncharged misconduct is accurate but not dispositive. The
purpose of Mil. R. Evid. 404(b) is to allow admissibility for certain purposes. Here,
the uncharged misconduct was relevant to appellant’s opportunity, intent, and to the
absence of mistake or accident in the charged misconduct. Particularly with regard
to absence of mistake or accident, the uncharged misconduct is relevant to
determining the veracity of appellant’s assertions that he thought he was touching
his wife and an “old flame” during the course of the charged misconduct. These are
legitimate and relevant purposes for admission of the uncharged misconduct.
2. Mil. R. Evid. 414 and the Yammine Test
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The incidents of uncharged misconduct are also admissible under Mil. R.
Evid. 414, which “permits the admission of evidence of a prior act of ‘child
molestation’ to show propensity to commit a charged act of ‘child molestation.’”
United States v. Yammine, 69 M.J. 70, 73 (C.A.A.F. 2010) (quoting Mil. R.
Evid. 414). See Mil. R. Evid. 414 (“In a court-martial in which the accused is
charged with an offense of child molestation, evidence of the accused’s commission
of one or more offenses of child molestation is admissible and may be considered for
its bearing on any matter to which it is relevant.”). Mil. R. Evid. 414 was “intended
to provide for more liberal admissibility of character evidence in criminal cases of
child molestation where the accused has committed a prior act of sexual assault or
child molestation.” Mil. R. Evid. 414 analysis at A22-38.
Admission of evidence under Mil. R. Evid. 414 requires a two-step analysis.
United States v. Ediger, 68 M.J. 243, 248 (C.A.A.F. 2010). First, the military judge
must make three threshold findings:
(1) whether the accused is charged with an act of child
molestation as defined by [Mil. R. Evid.] 414(a);
(2) whether the proffered evidence is evidence of his
commission of another offense of child molestation as
defined by the rule; and (3) whether the evidence is
relevant under [Mil. R. Evid.] 401 and [Mil. R. Evid.] 402.
Yammine, 69 M.J. at 73-74 (quoting Ediger, 68 M.J. at 248).
Second, once all three of the threshold factors are met, the military judge
must then apply a balancing test under Mil. R. Evid. 403. Ediger, 68 M.J. at 248.
“‘The importance of careful balancing arises from the potential for undue prejudice
that is inevitably present when dealing with propensity evidence.’” Id. (quoting
United States v. James, 63 M.J. 217, 222 (C.A.A.F. 2006)). “Inherent in [Mil. R.
Evid.] 414 is a ‘general presumption in favor of admission.’” Id. (quoting Berry, 61
M.J. at 95).
In this case, the essential requirements of Mil. R. Evid. 414 and its controlling
case law are met. Appellant was charged with two specifications of child
molestation. The uncharged misconduct in this case is also evidence of the
commission of other acts of child molestation. Appellant characterizes the “Couch
Peeing Incident” as an act not constituting child molestation, but the testimony of
KS, when considered through the lens of a child, could reasonably be interpreted as
the act of appellant masturbating while KS straddled him, thereby constituting an
offense of child molestation by a preponderance of the evidence. Furthermore, the
uncharged misconduct is relevant to the charged offenses as described above.
In addition, the uncharged misconduct also passes the Mil. R. Evid. 403
balancing test. Berry, 61 M.J at 95. The probative value of the uncharged
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misconduct was high under the circumstances of appellant’s claim of mistake
regarding the charged misconduct, and was not substantially outweighed by the
danger of unfair prejudice. The proof of the prior acts was strong, considering the
testimony of KS and her counselor. While the cross-examination of government
witnesses did show potential bias of KS and the possibility of a motive to fabricate
to remove herself from child neglect and an unclean home, the probative weight of
the evidence remained high. There was little potential for less prejudicial evidence
relevant to the charged offenses. While there was considerable time spent during
trial proving the uncharged misconduct, in the context of the entire case the time
spent was not disproportionate or unduly confusing to the panel. Moreover, each of
the instances of charged misconduct occurred close in time to one of the instances of
uncharged misconduct. In light of the above, the evidence of uncharged misconduct
in this case was admissible under Mil. R. Evid. 414.
B. Ineffective Assistance of Counsel
The Sixth Amendment guarantees an accused the right to the effective
assistance of counsel. United States v. Gooch, 69 M.J. 353, 361 (C.A.A.F. 2011)
(citing United States v. Gilley, 56 M.J. 113, 124 (C.A.A.F. 2001)). To establish his
counsel was ineffective, appellant must satisfy the two-part test, “(1) that his
counsel’s performance was deficient, and (2) that this deficiency resulted in
prejudice.” United States v. Green, 68 M.J. 360, 361-62 (C.A.A.F. 2010) (citing
Strickland v. Washington, 466 U.S. 668, 687 (1984)).
Although appellate courts review both prongs of the Strickland analysis de
novo, judicial scrutiny of counsel’s performance is highly deferential. See
Harrington v. Richter, 562 U.S. 86, 105 (2011) (“Even under de novo review, the
standard for judging counsel’s representation is a most deferential one.”).
It is all too tempting for a defendant to second-guess
counsel’s assistance after conviction or adverse sentence,
and it is all too easy for a court, examining counsel’s
defense after it has proved unsuccessful, to conclude that a
particular act or omission of counsel was unreasonable. A
fair assessment of attorney performance requires that
every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate the conduct from
counsel’s perspective at the time. Because of the
difficulties inherent in making the evaluation, a court must
indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional
assistance . . . .
Strickland, 466 U.S. at 689 (internal quotation marks and citations omitted).
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The Strickland framework was adopted by the military justice system and
further developed into the following three-pronged test to determine whether an
appellant has overcome the presumption of competence and shown prejudice:
(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. Grigoruk, 56 M.J. 304, 307 (C.A.A.F. 2002) (quoting United States
v. Polk, 32 M.J. 150, 153 (C.M.A. 1991)).
In adopting the Strickland framework, our superior court has maintained the
strong deference to counsel’s reasonable decisions and rejected the advantages of
hindsight. See United States v. Akbar, 74 M.J. 364, 379 (C.A.A.F. 2015) (“Thus, our
scrutiny of a trial defense counsel’s performance is ‘highly deferential,’ and we
make ‘every effort . . . to eliminate the distorting effects of hindsight, to reconstruct
the circumstances of counsel’s challenged conduct, and to evaluate conduct from
counsel’s perspective at the time.’”). In so doing, our superior court has recognized
the appropriate deference to the normal conduct of counsel that may at times be
mistaken, incorrect, confused, or less than ideal—essentially fallible. What it has
not done is to defer to advocacy that falls so measurably below expectations for
fallible attorneys that the conduct was unreasonable under the circumstances. This
distinction captures the basis for this constitutional protection. “[T]he purpose of
the effective assistance guarantee of the Sixth Amendment is not to improve the
quality of legal representation, although that is a goal of considerable importance to
the legal system. The purpose is simply to ensure that criminal defendants receive a
fair trial.” Strickland, 466 U.S. at 689. Accordingly, our superior court has echoed
the need for deference by explaining: “‘[appellate courts] address not what is
prudent or appropriate, but only what is constitutionally compelled.’” Akbar, 74
M.J. at 380 (citations omitted).
Moreover, there is no need for us to address both components of the
Strickland inquiry if an appellant makes an insufficient showing on either one.
Strickland, 466 U.S. at 697.
In particular, a court need not determine whether
counsel’s performance was deficient before examining the
prejudice suffered by the defendant as a result of the
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alleged deficiencies. The object of an ineffectiveness
claim is not to grade counsel’s performance. If it is easier
to dispose of an ineffectiveness claim on the ground of
lack of sufficient prejudice, which we expect will often be
so, that course should be followed. Courts should strive to
ensure that ineffectiveness claims not become so
burdensome to defense counsel that the entire criminal
justice system suffers as a result.
Id. Essentially, “[a]n error by counsel, even if professionally unreasonable, does not
warrant setting aside the judgment of a criminal proceeding if the error had no effect
on the judgment.” Id. at 691. “Accordingly, any deficiencies in counsel’s
performance must be prejudicial to the defense in order to constitute ineffective
assistance under the Constitution.” Id. at 692.
1. Defense counsel did not object to a lack of corroboration.
Defense counsel were not ineffective in their judgment that appellant’s
admissions had been sufficiently corroborated because, even if in error, their
assessment was not unreasonable. A brief examination of the requirement for
independent corroboration of an accused’s confession or admission supports the
reasonableness of defense counsel’s professional judgement.
The essential facts of a confession or admission must be independently
corroborated before being admitted into evidence. United States v. Adams, 74 M.J.
137, 140 (C.A.A.F. 2015); Mil. R. Evid. 304(c). The corroboration requirement
“‘does not necessitate independent evidence of all the elements of an offense or even
the corpus delicti of the confessed offense. Rather, the corroborating evidence must
raise only an inference of truth as to the essential facts admitted.’” Id. (quoting
United States v. Cottrill, 45 M.J. 485, 489 (C.A.A.F. 1997)). “[N]o mathematical
formula exists to measure sufficient corroboration.” United States v. Melvin, 26
M.J. 145, 146 (C.M.A. 1988). However, the “inference [of truthfulness] may be
drawn from a quantum of corroborating evidence that [our superior court] has
described as ‘very slight.’” United States v. Arnold, 61 M.J. 254, 257 (C.A.A.F.
2005) (quoting Melvin, 26 M.J. at 146). The reason for this modest level of
corroboration is rooted in the practical purpose for the rule, which is to establish the
reliability of the confession so as to prevent convictions based on false confessions.
See United States v. Yeoman, 25 M.J. 1, 4 (C.M.A. 1987).
Moreover, “[w]hat constitutes an essential fact of an admission or confession
necessarily varies by case.” Adams, 74 M.J. at 140. The type of essential facts that
our superior court has “previously considered include the time, place, persons
involved, access, opportunity, method, and motive of the crime.” Id. (citations
omitted). For example, in Cottrill, the “appellant admitted to touching his
daughter’s vaginal area in the process of bathing and powdering her.” 45 M.J.
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at 487. In a second statement the next day, the appellant confessed to digitally
penetrating “his daughter’s vagina for 10-15 seconds on several occasions . . . .” Id.
at 487, 489. The corroborating evidence included his daughter’s statement to a
physician that “her ‘privates’ hurt” and “‘[her] Daddy touches [her] privates,’”
which caused her pain. Id. at 489. The physician also testified that “there appeared
to be an unnatural opening in [the victim’s] hymen” that “was caused by sexual
abuse.” Id. Even though this corroborating evidence did not address the time,
place, access, opportunity, method, or motive for the offense, our superior court held
the corroborating evidence was sufficient. Id. at 489-90.
Similarly, in United States v. Rounds, an appellant admitted to marijuana and
cocaine use. 30 M.J. 76, 78-79 (C.M.A. 1990). Our superior court held there was
sufficient corroboration for some of the admitted drug use even though no witness
observed the appellant actually using drugs. Id. at 77-79. Although the government
witnesses “did not personally see appellant use marijuana or cocaine” nor could they
prove “he consumed, ingested, or otherwise used drugs as he confessed[,]” the court
found the corroborating testimony “did establish appellant’s presence at the scene of
active drug use and his direct access to the drugs being used by others . . . .” Id.
at 80. The court also found their testimony “dovetail[ed] with the time, place, and
persons involved in the criminal acts admitted by appellant in his confession.” Id.Essentially, their testimony proved the “appellant had both access and the
opportunity to ingest the very drugs he admitted using in his confession.” Id.In light of these examples, even if incorrect, defense counsel were not
unreasonable to conclude the quantum of evidence had been met to corroborate the
essential facts in appellant’s admission. Here, appellant admitted to committing two
sexual offenses against his daughter. First, appellant admitted when KS “was
4 years old . . . around Nov or Dec of 2003,” when “stationed at Schofield Barracks,
Hawaii[,]” he “felt flesh and reached under her undergarments” and felt “[s]mooth
skin, and no hair” and although “something didn’t feel right” he “continued” to rub
her genitals for “10 to 15 seconds.” Second, “around 6 Jun 07” at “Fort Bliss,” in
his house, he again touched KS’s genitals. These essential facts were directly or
circumstantially corroborated by the government’s witnesses, which testified to the
time, place, perpetrator’s identity, access, and opportunity.
Beyond these essential incriminating facts, the remainder of appellant’s
statement was self-serving and formed the basis for the mistake-of-fact defense his
counsel asserted during closing argument. This is not a case where the
corroboration of a few essential facts is used to admit a confession filled with
incriminating statements under a flawed view of a “tipping point” in corroboration.
As our superior court has made clear, “[t]here is no ‘tipping point’ of corroboration
which would allow admission of the entire confession if a certain percentage of
essential facts are found corroborated . . . .” Adams, 74 M.J at 140. Instead,
appellant’s statement contained few incriminating facts, with the vast majority
articulating a mental responsibility or mistake-of-fact defense. As a result, defense
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counsel specifically argued as one of its alternative theories: “So, you know, as you
look at his statement, Judge, and it’s been admitted and we didn’t contest its
admissibility, . . . [appellant] truthfully told CID and has a mistake of fact defense
. . . .” (emphasis added). Essentially, defense counsel did not oppose the admission
of appellant’s statement—waiving any objection to the few incriminating facts they
believed were susceptible to corroboration—and utilized the opportunity to argue
potential defenses that would otherwise require appellant’s testimony to establish.
Therefore, under the facts and circumstances in this case, defense counsel’s
professional judgement about the corroboration of appellant’s admission—even if in
error—was not unreasonable. Accordingly, appellant has failed to show his defense
counsel were ineffective in this matter.
2. Defense counsel did not request a bill of particulars.
Defense counsel were not ineffective when they failed to request a bill of
particulars to clarify the distinction between the charged and uncharged misconduct
because this failure, even if unreasonable, did not prejudice appellant in his judge-
alone court-martial. At the beginning of trial, the trial and defense counsel had a
R.C.M. 802, UCMJ, conference with the military judge. When the military judge
recounted on the record the substance of the conference, defense counsel reminded
the military judge about an issue related to a bill of particulars. The military judge
responded by stating, “if necessary, the defense may request a bill of particulars
from the government as to which misconduct that they are actually charging in the
case. And, we will take that up as it comes, but we should be able to resolve that as
well.” Defense counsel, however, never requested a bill of particulars. Instead, at
the conclusion of the trial on the merits, defense counsel made the following closing
argument:
So, now let’s talk about the incidents that are before
the court. And, it is, granted, a little bit confusing as to
drawing that line between what is 404(b) and where the
allegations are and, you know, we have obviously got a
good handle on it now. And, we are basically left with a
couple of different things, Your Honor.
In his summation of the “different things” at issue, defense counsel talked about all
the instances of charged and uncharged misconduct. Defense counsel cast the issues
as a credibility contest. In so doing, counsel argued the uncharged misconduct was a
fabrication and the charged misconduct was covered by the mistake-of-fact defense.
Although appellant is correct that his defense counsel “proceeded to argue the
uncharged [misconduct,]” defense counsel did not argue the uncharged misconduct
to the exclusion of the charged misconduct, thereby falling prey to the type of
confusion a bill of particulars is intended to prevent. Instead, counsel argued
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SWIFT—ARMY 20100196
against both the charged and uncharged misconduct. Therefore, even if we presume
defense counsel were deficient for failing to request a bill of particulars, appellant
has not shown prejudice when counsel argued against both the charged and
uncharged misconduct. Accordingly, without a sufficient showing of prejudice,
appellant has failed to establish his claim of ineffective assistance of counsel.
CONCLUSION
On consideration of the entire record and the submissions of the parties, the
findings of guilty and the sentence are AFFIRMED.
Judge CELTNIEKS and Judge BURTON concur.
FOR THE COURT:
MALCOLM H.
MALCOLM H. SQUIRES,
SQUIRES, JR.
JR.
Clerk of
Clerk of Court
Court
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