United States v. Gutierrez

UNITED STATES, Appellant
v.
Juan R. GUTIERREZ, Private First Class
U.S. Army, Appellee
No. 08-5004
Crim. App. No. 20040596
United States Court of Appeals for the Armed Forces
Argued March 17, 2008
Decided May 27, 2008
STUCKY, J., delivered the opinion of the Court, in which ERDMANN
and RYAN, JJ., joined. EFFRON, C.J., and BAKER, J., each filed
a separate dissenting opinion.
Counsel
For Appellant: Captain Trevor B. A. Nelson (argued); Colonel
John W. Miller II, Major Elizabeth G. Marotta, and Captain Larry
W. Downend (on brief).
For Appellee: Captain Patrick B. Grant (argued); Colonel
Christopher J. O’Brien, Lieutenant Colonel Steven C. Henricks,
and Major Teresa L. Raymond (on brief).
Military Judge: Stephen R. Henley
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Gutierrez, No. 08-5004/AR
Judge STUCKY delivered the opinion of the Court.
The Judge Advocate General of the Army certified an issue
to this Court under Article 67(a)(2), Uniform Code of Military
Justice (UCMJ), 10 U.S.C. § 867(a)(2) (2000), asking whether the
Army Court of Criminal Appeals erred in concluding that trial
defense counsel was ineffective by waiving a mistake-of-fact
instruction to an assault consummated by a battery as a lesser
included offense to the charge of assault with the intent to
commit rape. We hold that, even assuming trial defense
counsel’s performance was objectively unreasonable, Appellee was
not prejudiced from the lack of a mistake-of-fact instruction.
I.
Private First Class (PFC) EM returned to her barracks room
after a night drinking at a local club. She met Appellee in the
hallway and he offered to help her to her room. She accepted
and Appellee walked her home. PFC EM thanked Appellee as he
left, then laid on her bed fully clothed. Appellee re-entered
PFC EM’s room, got into her bed and told her to wake up.
Appellee rolled PFC EM over and tried to kiss her. Despite her
protestations and attempts to move away, Appellee continued to
kiss PFC EM and fondled her breasts and vagina. When PFC EM
pretended to vomit Appellee backed off and left the room as PFC
EM got off the bed and fled toward the bathroom.
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Appellee provided a written statement to investigators
admitting that he met PFC EM, that they were both intoxicated,
and that he helped her to her barracks room. Appellee admitted
kissing PFC EM and touching her upper body. According to
Appellee, PFC EM said, “No stop,” yet he “grabed [sic] her” and
“touched her body” and then stopped.
At trial, Appellee was charged with assault with the intent
to rape PFC EM. After hearing all the evidence, the trial
counsel asked the military judge to instruct on the charged
offense of assault with the intent to commit rape, as well as
two lesser included offenses, indecent assault and assault
consummated by a battery. The defense counsel did not oppose
the request, and the military judge gave the requested
instructions. The parties also agreed that it was appropriate
to instruct on mistake of fact regarding the assault with the
intent to commit rape and the lesser included indecent assault.
In discussing the affirmative defense, the military judge said
that “there doesn’t appear to be any mistake of fact instruction
with regard to battery” and asked the defense counsel if he
wanted the instruction. The defense counsel said, “Your Honor,
I simply do not want to request one for the battery.”
On appeal, Appellee submitted his case to the Army Court of
Criminal Appeals (ACCA) on its merits. The ACCA specified an
issue asking whether the military judge erred in not sua sponte
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instructing the members on a mistake-of-fact defense as it
applied to the assault and battery lesser included offense.
United States v. Gutierrez, 63 M.J. 568, 569 (A. Ct. Crim. App.
2006). On April 27, 2006, the ACCA set aside the findings and
sentence, finding that the military judge erred in not giving
the affirmative defense instruction, and that trial defense
counsel had not waived the instruction. Id. at 574-75.
In response to the ACCA decision, the Judge Advocate
General of the Army certified an issue to this Court asking
whether the ACCA erred in finding the trial defense counsel had
not affirmatively waived the mistake-of-fact instruction.
United States v. Gutierrez, 64 M.J. 374, 375 (C.A.A.F. 2007).
This Court reversed the ACCA decision and remanded the case to
that court, holding that the trial defense counsel’s declination
for a mistake-of-fact instruction constituted affirmative
waiver. Id. at 378.
On further review after remand, the ACCA specified an issue
asking whether trial defense counsel provided ineffective
assistance by waiving the mistake-of-fact instruction as it
applied to assault consummated by battery. United States v.
Gutierrez, No. ARMY 20040596, slip op. at 2 (A. Ct. Crim. App.
Oct. 31, 2007). The ACCA ordered trial defense counsel to
provide an affidavit answering specific questions regarding
trial tactics. After receiving the affidavit, the ACCA held
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that Appellee’s counsel was ineffective for waiving the mistake-
of-fact instruction and they again set aside the findings and
sentence. Id. slip. op. at 13-14.
The Judge Advocate General of the Army has again certified
an issue to this Court, asking whether the ACCA erred in
concluding that trial defense counsel was ineffective for
waiving the mistake-of-fact instruction.
II.
Issues involving ineffective assistance of counsel involve
mixed questions of law and fact. United States v. Paxton, 64
M.J. 484, 488 (C.A.A.F. 2007); United States v. Davis, 60 M.J.
469, 473 (C.A.A.F. 2005). This Court reviews factual findings
under a clearly erroneous standard, but looks at the questions
of deficient performance and prejudice de novo. Paxton, 64 M.J.
at 488; Davis, 60 M.J. at 473.
This Court analyzes claims of ineffective assistance of
counsel under the test outlined by the Supreme Court in
Strickland v. Washington, 466 U.S. 668 (1984), and considers (1)
whether counsel’s performance fell below an objective standard
of reasonableness, and (2) if so, whether, but for the
deficiency, the result would have been different. Paxton, 64
M.J. at 488; see United States v. Jameson, 65 M.J. 160, 163
(C.A.A.F. 2007). Appellee has the burden of demonstrating both
deficient performance and prejudice. Paxton, 64 M.J. at 488.
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This Court is not required to apply these tests in any
particular order. United States v. Quick, 59 M.J. 383, 386
(C.A.A.F. 2004). As the Supreme Court said in Strickland, “[i]f
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.” 466 U.S. at 697.
In this case, we need not address whether counsel’s waiver of a
mistake-of-fact instruction constituted deficient performance
because Appellee has not carried his burden to demonstrate
prejudice.
To show prejudice under the Strickland test, Appellee must
show that “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. at 694. In demonstrating this
“reasonable probability,” Appellee must show a “probability
sufficient to undermine confidence in the outcome.” Id.; see
Paxton, 64 M.J. at 488. In other words, when a member
challenges his conviction based on ineffective assistance of
counsel, “the question is whether there is a reasonable
probability that, absent the errors, the factfinder would have
had a reasonable doubt respecting guilt.” Strickland, 466 U.S.
at 695.
The Supreme Court has said that “[t]he governing legal
standard plays a critical role in defining the question to be
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asked in assessing the prejudice.” Id. In this case, the ACCA
applied a “harmless beyond a reasonable doubt” test to assess
prejudice. Gutierrez, No. ARMY 20040596, slip op. at 13.
However, the test for prejudice flowing from ineffective
assistance of counsel, and the burden for proving the existence
of prejudice, is substantially different from the “harmless
beyond a reasonable doubt” test applied to constitutional
errors. United States v. Kreutzer, 61 M.J. 293, 300 (C.A.A.F.
2005); United States v. Dominguez Benitez, 542 U.S. 74, 81-82
nn.7, 8 (2004) (recognizing a difference in who carries the
burden of proof between the “reasonable probability” test for
assessing prejudice in ineffective assistance of counsel cases
and the “harmless beyond a reasonable doubt” test for some
constitutional errors). By applying a “harmless beyond
reasonable doubt” test for prejudice, the ACCA improperly
shifted the burden to the Government to prove that the defense
counsel’s waiver did not contribute to the guilty finding.
Gutierrez, No. ARMY 20040596, slip op. at 13-14.
Applying the proper test for assessing prejudice, we look
at all the evidence before the factfinder to determine if
Appellee has met his burden to demonstrate a “reasonable
probability” that the factfinder’s decision would have been
different. Strickland, 466 U.S. 695-96. We hold that Appellee
failed to meet that burden. The members found Appellee guilty
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of assault consummated by a battery, which requires proof that
Appellee did bodily harm to a certain person and that the bodily
harm was done with unlawful force or violence. Manual for
Courts-Martial, United States pt. IV, para. 54.b.(2) (2005 ed.).
Appellee confessed to grabbing the victim’s arm and touching her
body after she told him to stop. PFC EM’s testimony
corroborated his confession. This evidence is sufficient to
convict Appellee of the assault consummated by a battery.
Even if the military judge had given a mistake-of-fact
instruction as to assault consummated by a battery, it is just
as likely that the members would have convicted as it is that
they would have acquitted. Thus, Appellee failed to carry his
burden to show a reasonable probability that the result would
have been different. Unlike the two greater charges, evidence
of the assault consummated by a battery was not based solely on
PFC EM’s testimony, which the members appeared to find not
totally credible. In her testimony PFC EM admitted that she was
intoxicated to the point that she stumbled and tripped, and that
she had lied to investigators. She testified under a grant of
immunity. These factors could have led the members to discount
her testimony and acquit of the charged offense of assault with
the intent to rape and the other lesser included offense of
indecent assault, especially when Appellee’s statement did not
admit to either offense. The members did, however, have
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Appellee’s statement that he had “grabed [sic]” PFC EM and
touched her after she said “No.”
The burden is on Appellee to show a reasonable probability,
one sufficient to undermine the confidence in the outcome, that
but for the defense counsel’s ineffectiveness in waiving the
instruction, he would not been convicted. Strickland, 466 U.S.
at 694. The fact that the members acquitted Appellee of the two
greater offenses does not, of itself, carry that burden.
III.
We answer the certified question in the affirmative. The
decision of the United States Army Court of Criminal Appeals is
reversed. The record of trial is returned to the Judge Advocate
General of the Army for remand to the court for further review
pursuant to Article 66(c), UCMJ, 10 U.S.C. § 866(c) (2000).
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EFFRON, Chief Judge (dissenting):
Appellee was charged with assault with intent to commit
rape. The military judge instructed the members on two lesser
included offenses, indecent assault and assault consummated by a
battery. Defense counsel requested that the military judge
instruct the members on the defense of mistake-of-fact as to
consent with respect to the primary charge, as well as to the
lesser included offense of indecent assault. Defense counsel
waived the mistake-of-fact instruction with respect to the
offense of assault consummated by a battery. United States v.
Gutierrez, 64 M.J. 374, 375-76 (C.A.A.F. 2007). The members
found Appellee not guilty of assault with intent to commit rape.
They found Appellee guilty of one of the two lesser included
offenses, assault consummated by a battery.
The United States Army Court of Criminal Appeals concluded
that the actions of defense counsel, in waiving the mistake-of-
fact defense instruction with respect to the offense of assault
consummated by a battery, deprived Appellee of his
constitutional right to the effective assistance of counsel.
United States v. Gutierrez, No. ARMY 20040596, slip op. at 13-14
(A. Ct. Crim. App. Oct. 31, 2007). The question before us is
whether the error was prejudicial.
The two lesser included offenses at issue shared the common
elements of infliction of bodily harm with unlawful force or
United States v. Gutierrez, 08-5004/AR
violence by “touching [PFC EM’s] breasts and vagina with his
hands.” For these common elements, the military judge provided
the same instructions for both of the lesser included offenses.
Each offense also involved the issue of whether Appellee
mistakenly believed that PFC EM consented to the touching at
issue. Mistake-of-fact would have been a complete defense to
each offense. See Gutierrez, 64 M.J. at 377. As noted by the
court below, the record does not establish that defense counsel
had a reasonable strategic basis for waiving the mistake-of-fact
instruction for only one of the lesser included offenses:
assault consummated by a battery. Gutierrez, No. ARMY 20040596,
slip op. at 10-13.
The majority concludes that any error was not prejudicial,
relying on admissions in a pretrial statement made by Appellee.
United States v. Gutierrez, ___ M.J. ___ (8-9) (C.A.A.F. 2008).
I respectfully disagree. The admissions in the pretrial
statement applied to all of the offenses, not just the offense
of which Appellee was found guilty -- assault consummated by a
battery. The only offense of which Appellee was found guilty
was the offense for which the members did not receive a mistake-
of-fact instruction. In that context, the court below correctly
concluded that Appellee demonstrated a reasonable probability
that the result of his court-martial would have been different
absent counsel’s inappropriate waiver.
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BAKER, Judge (dissenting):
I would decide this case on the basis of my separate
opinion in United States v. Gutierrez, 64 M.J. 374, 378
(C.A.A.F. 2007) (Baker, J., dissenting). As a result, I would
affirm the decision of the United States Army Court of Criminal
Appeals, and therefore respectfully dissent.