UNITED STATES NAVY-MARINE CORPS
COURT OF CRIMINAL APPEALS
WASHINGTON, D.C.
Before
F.D. MITCHELL, J.R. MCFARLANE, M.C. HOLIFIELD
Appellate Military Judges
UNITED STATES OF AMERICA
v.
DANIEL D. WILT
SONAR TECHNICIAN THIRD CLASS (E-4), U.S. NAVY
NMCCA 201300274
GENERAL COURT-MARTIAL
Sentence Adjudged: 13 December 2012.
Military Judge: CDR Colleen Glaser-Allen, JAGC, USN.
Convening Authority: Commander, Navy Region Mid-Atlantic,
Norfolk, VA.
Staff Judge Advocate’s Recommendation: CDR S.J. Gawronski,
JAGC, USN.
For Appellant: Maj Jason Wareham, USMC.
For Appellee: Maj David N. Roberts, USMC; LT Ann E. Dingle,
JAGC, USN.
19 February 2015
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OPINION OF THE COURT
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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.
MITCHELL, Chief Judge:
A general court-martial consisting of officer and enlisted
members convicted the appellant, contrary to his pleas, of one
specification of rape, two specifications of forcible sodomy,
three specifications of assault consummated by a battery, and
one specification each of kidnapping, obstructing justice, and
wrongfully communicating a threat in violation of Articles 120,
125, 128, and 134, Uniform Code of Military Justice, 10 U.S.C.
§§ 920, 925, 928, and 934. The appellant was sentenced to
confinement for life with the possibility of parole and a
dishonorable discharge. The convening authority (CA) waived
automatic forfeitures for a period of six months. He otherwise
approved the sentence as adjudged and, except for the
dishonorable discharge, ordered it executed.
The appellant now alleges four assignments of error (AOE)
and seven summary AOEs 1:
(1) The trial counsel improperly asked the members to
place themselves in the victim’s shoes when arguing
for a sentence;
(2) The military judge erred by stating when
instructing the members that there was “generally no
reason for reconsideration;”
(3) His sentence is inappropriately severe;
(4) The military judge erred in failing to dismiss a
member for bias;
(5) His defense counsel were ineffective by failing to
seek potentially exculpatory camera footage;
(6) His defense counsel were ineffective by failing to
challenge two members who were both sexual assault
victim advocates;
(7) The military judge erred in failing to give a
consent or mistake of fact instruction on findings;
(8) His defense counsel were ineffective in advising
him not to testify;
(9) His due process rights were violated when his
members panel could convict and sentence him to life
in prison without unanimous vote;
(10) The 207 days of post-trial processing prejudiced
him; and,
1
AOEs IV-IX are submitted pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982). AOEs IV-X were submitted as summary AOEs. AOE XI is a
Supplemental AOE.
2
(11) He was prejudiced when the members of his court-
martial were selected under a regional instruction
that excluded personnel from the members’ pool based
on rank.
After reviewing the record of trial and the pleadings of
the parties, we find that the court-martial order incorrectly
lists the members’ findings as to Charge III, Specification 1
and Charge IV, Specification 2 and will order corrective action
in our decretal paragraph. We otherwise find the findings of
guilty and approved sentence correct in law and fact, and no
errors materially prejudicial to the substantial rights of the
appellant were committed. Arts. 59(a) and 66(c), UCMJ.
Factual Summary
On 26 April 2012, the appellant and DC3 SR were stationed
onboard the USS VELLA GULF (CG 72), which was underway at sea.
After DC3 SR completed her watch around 0145, the appellant
asked her to help him fix a leak. The appellant took her to a
secluded part of the ship, grabbed her, covered her mouth, and
began punching her in the head. She tried to bite him and fight
back, and she screamed for help. However, no one else was in
that area of the ship at that time of the morning. The
appellant walked her to the access trunk and told her they “were
going to go have fun.” Record at 1041-42.
DS3 SR tried to wrestle free. The appellant wrestled back,
tried to kiss her, and told her that he loved her, that he had
looked at her Facebook, and that if she had kids, he would not
do be doing this to her. During the struggle, he also choked
her. The appellant pulled out a precision box cutter and told
her that if she did not do what he said and did not “shut up,”
he would cut her body into pieces, that he had trash bags and
weights, and that he would throw her overboard and no one would
ever know. Id. at 1045.
She begged the appellant to “not make this last long.” Id.
at 1047. He then led her down a vertical ladder well into the
depths of the ship. Id.; Prosecution Exhibit 10. The appellant
then secured the hatch and told her that no one was going to
know she was down there. He told her that he had planned on
attacking another female Sailor in that space the night before
but did not, so he had the room set up for her. He ordered her
to undress, and she complied, taking off all of her clothing
except for her socks. He undressed, grabbed her hand, and made
her fondle his penis.
3
The appellant opened the door to a storeroom, where the
deck and lighting were covered with trash bags. In the
storeroom, he put his penis inside of DC3 SR’s mouth and told
her to perform oral sex on him. He then tried to insert his
penis into her vagina. When he could not, he told her to get on
top of him, and she complied. She did not consent to any of
these acts; rather, she complied because she thought she had a
better chance of making it out of that space alive if she did
so. He then got behind her and inserted his penis into her
vagina and then her anus. He then pulled out of her anus and
ejaculated into her vagina. He zip-tied one of her hands to the
net that was in the overhead. He left her in the space and
dogged the doors behind him. Coming into and out of the space,
he eventually zip-tied her other wrist and then her feet and
duct-taped her mouth. The duct-tape was not very tight, so she
could still converse with the appellant.
She then heard him sawing something. When the appellant
came back into the room, he started to get nervous and stated,
“I knew I was going to be able to rape you. But this next part,
I--I don’t know if I could do this.” Record at 1077.
He came back into the room wearing a trash bag that had
holes for his head and his arms. He rubbed the inner part of
her thigh and told her that he was going to cut her there
because that is where she would bleed the most. He pulled out
the box cutter and kept moving the blade in and out.
DC3 SR could tell the appellant was nervous, so she told
him that she promised not to tell anyone. He put his hand
around her waist, and she kept repeating that she would not tell
anyone. He then told her that he was not going to murder her
and that he needed to clean her up. He cut the zip-ties leaving
only one of her hands restrained. She said she was cold, so he
allowed her to put her underwear and bra back on and he put the
plastic bag that was on him over her. He told her that he would
have killed her if he had not forgotten his hatchet.
The appellant left the space and then came back with water
and a sponge and had DC3 SR wipe her vaginal and chest area
twice. He allowed her to get dressed, and he cleaned the trash
bags, zip ties, and duct tape. He said he would kill her if she
told anyone. He went behind a piece of machinery, pulled out a
saw, and told her, “I was going to do this. I was going to kill
you tonight.” Id. at 1101. He then retrieved a face shield and
said, “I had everything together. I was going to do this. I
4
will kill you if you tell anybody.” Id. She repeated that she
would tell no one.
After they reached the top of the ladder well, he pulled
out a dagger and said, “Don’t do anything. Don’t . . . try to
run away. Don’t try screaming. I’ll kill you.” Id. at 1103-
04. He then told her to bring her clothes to be washed in
twenty minutes and that he would be watching. She went to
berthing and immediately reported the incident to another
Sailor. She did not know the appellant, but remembered his last
name from his name tape on his coveralls.
Although she did not specifically remember being cut by the
blade of the box-cutter, DC3 SR’s DNA was found on the edge of
the blade of a box-cutter found at the scene of the assault.
Further facts relevant to the AOEs are developed below.
Improper Argument
In his first AOE, the appellant argues that the trial
counsel committed plain error and prosecutorial misconduct in
his sentencing argument when he improperly asked the members to
place themselves in the victim’s shoes and interjected his
personal opinions into the case by the use of personal pronouns.
We disagree.
A. Background
During presentencing, the trial counsel argued for a
sentence of life with the possibility of parole. He argued,
“[N]one of us in this room can really honestly say that when
[the appellant] is released, that we will be safe. When I say,
we, I’m talking about the public at large.” Id. at 2240. He
utilized the personal pronoun “we” and “us” on several occasions
throughout his argument. He concluded:
It concerns government counsel that we sentence in a
vacuum. What I mean by that is the fact that when we
come up with a sentence, in this environment, eight
months later. It’s easier for us because we have
carpet, a bailiff, safety, people, time’s passed,
people have gone on with their lives. It’s not as
fresh.
. . . .
5
How many hours did she have to sit there and look at
the hatch and wonder, when he came back in, after he
did [sic] to her, what he did? How many hours did she
have to sit there and stare at that hatch on the bag
wondering, “Am I going to get out of here alive?”
So we ask you, when you come back in from the
deliberation room and you give a just sentence, that
please do it not in the pristine area of this [sic],
Consider sitting where she was sitting in that hatch.
So when a sentence is decided, we would be able to
turn to then DC3 [SR] as she is sitting on those totes
covered in plastic, zip-tied up, hoping not to die, we
say, “This is the proper sentence in this case for
what he did to you. Just survive.”
Id. at 2244-45. During this argument, trial counsel showed the
members a picture of the closed hatch door DC3 SR saw from the
space where she was assaulted. Id. at 2244; PE 17. The defense
did not object to the Government’s presentencing argument.
B. Law
The failure of the trial defense counsel to object to improper
argument by the trial counsel constitutes forfeiture of the
issue on appeal absent plain error. RULE FOR COURTS-MARTIAL
1001(g), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.). To show
plain error, the appellant must persuade this court that: “‘(1)
there was error; (2) the error was plain or obvious; and (3) the
error materially prejudiced a substantial right of the
accused.’” United States v. Tunstall, 72 M.J. 191, 193-94
(C.A.A.F. 2013) (quoting United States v. Girouard, 70 M.J. 5,
11 (C.A.A.F. 2011)). The plain error doctrine is “to be used
sparingly, solely in those circumstances in which a miscarriage
of justice would otherwise result.” United States v. Causey, 37
M.J. 308, 311 (C.M.A. 1993) (citations and internal quotation
marks omitted). “[T]he argument by a trial counsel must be
viewed within the context of the entire court-martial. The
focus of our inquiry should not be on words in isolation, but on
the argument as ‘viewed in context.’” United States v. Baer, 53
M.J. 235, 237 (C.A.A.F. 2000) (quoting United States v. Young,
470 U.S. 1, 16 (1985)).
1. Interjecting Personal Opinions
It is improper for a trial counsel to interject himself or
herself into the proceedings by expressing a personal belief or
opinion as such is “a form of unsworn, unchecked testimony and
6
tend[s] to exploit the influence of his office and undermine the
objective detachment which should separate a lawyer from the
cause for which he argues.” United States v. Horn, 9 M.J. 429,
430 (C.M.A. 1980). The appellant contends that the trial
counsel in this case did so by using pronouns such as “we” and
“I” during his presentencing argument. While the trial counsel
did explain to the members that when he said “we” he was talking
about the “public at large,” he went on to express his personal
concerns that members tend to sentence “in a vacuum.” Record at
2240-45.
2. “Golden Rule” Arguments
“[M]embers are not to be asked to fashion their sentence
‘upon blind outrage and visceral anguish,’ but upon ‘cool, calm
consideration of the evidence and commonly accepted principles
of sentencing.’” Baer, 53 M.J. at 237 (quoting United States v.
Clifton, 15 M.J. 26, 30 (C.M.A. 1983)). “Golden Rule arguments
asking the members to put themselves in the victim's place are
improper and impermissible in the military justice system.” Id.
at 238. However, “asking the members to imagine the victim’s
fear, pain, terror, and anguish is permissible, since it is
simply asking the members to consider victim impact evidence.”
Id. (citation omitted). The appellant contends that the trial
counsel’s statement during summation to “consider sitting where
she was sitting in that hatch,” Record at 2245, was tantamount
to asking the member’s to put themselves in the victim’s place.
Assuming arguendo that the trial counsel’s aforementioned
comments and use of personal pronouns during his presentencing
argument constituted error and that such error was “plain or
obvious,” taken in the context of the entire argument and the
compelling evidence of the crimes committed by the appellant and
their impact on his victim, we do not find them so inflammatory
as to have materially prejudiced the appellant’s substantial
rights. Defense counsel’s failure to object is indicative of
the minimal impact the trial counsel’s remarks made on the court
members. Furthermore, we do not believe the trial counsel’s
words were so inflammatory as to activate the military judge’s
sua sponte duty to intervene and neutralize their impact. Id.
at 238-39. We are convinced beyond a reasonable doubt that any
error was harmless and that the appellant suffered no material
prejudice to a substantial right. Accordingly, we find this
assignment of error to be without merit.
7
3. Prosecutorial Misconduct
Finally, with respect to the appellant’s assertion that the
trial counsel’s presentencing arguments constituted
prosecutorial misconduct, we note that prosecutorial misconduct
is “action or inaction by a prosecutor in violation of some
legal norm or standard.” United States v. Rodriguez-Rivera, 63
M.J. 372, 378 (C.A.A.F. 2006) (citations and internal quotation
marks omitted). We find that the instances of argument cited by
the appellant do not rise to the level of prosecutorial
misconduct, either individually or cumulatively, and they merit
no relief. See United States v. Doctor, 21 C.M.R. 252, 261
(C.M.A. 1956) (“It is a little difficult for us to find
misconduct which compels a reversal when it purportedly arises
out of an argument which had so little impact on defense counsel
that they sat silently by and failed to mention it . . . at the
time of trial.”).
Military Judge’s Instructions
In his second AOE, the appellant argues the military judge
erred by instructing the members on the merits that there was
“generally no reason for reconsideration.” Record at 1974. In
his seventh AOE, he argues the military judge erred in failing
to give a consent or mistake of fact instruction on findings.
We disagree with both assertions.
“Military judges have substantial discretionary power in
deciding on the instructions to give.” United States v.
Stanley, 71 M.J. 60, 62 (C.A.A.F. 2012). “We review the judge’s
decision to give or not give a specific instruction, as well as
the substance of any instructions given, to determine if they
sufficiently cover the issues in the case and focus on the facts
presented by the evidence.” United States v. McDonald, 57 M.J.
18, 20 (C.A.A.F. 2002) (citations and internal quotation marks
omitted). “Whether a panel was properly instructed is a
question of law reviewed de novo.” United States v. Garner, 71
M.J. 430, 432 (C.A.A.F. 2013) (citation and internal quotation
marks omitted).
A. Consent and Mistake of Fact Instructions
Before the defense rested their case, the military judge
informed them that she did not believe there was enough evidence
of consent or mistake of fact as to consent to warrant those
instructions unless they presented testimony by the appellant on
those issues. The appellant did not testify. After the close
8
of the evidence, the military judge heard argument on whether
consent and mistake of fact as to consent instructions were
warranted. The defense argued that the instructions were
warranted because the victim claimed she did not know the
appellant even though they worked in the same department for two
weeks to three months, the injuries that the victim had were not
consistent with the force she alleged, and the instructions
would combat the Government’s allegation of force. The military
judge found that, although there was some evidence of the
appellant and DC3 SR being in the same department, there was no
evidence of anything more than that they “may have exchanged
pleasantries.” Record at 1854. As a result, the military judge
found that “some evidence” of consent or mistake of fact as to
consent was not presented at trial and did not give those
instructions to the members. Id. at 1855, 1861-63.
Consent and mistake of fact as to consent are affirmative
defenses in prosecutions under Article 120(c), UCMJ. Art.
120(r), UCMJ. “When an affirmative defense is raised by the
evidence, an instruction is required.” McDonald, 57 M.J. at 20.
An affirmative defense is “‘in issue’ when ‘some evidence,
without regard to its source or credibility, has been admitted
upon which members might rely if they chose.’” Stanley, 71 M.J.
at 61 (quoting United States v. Lewis, 65 M.J. 85, 87 (C.A.A.F.
2007)).
Consent means “words or overt acts indicating a freely
given agreement to the sexual conduct at issue by a competent
person.” Art. 120(t)(14), UCMJ. Lack of resistance resulting
from an appellant’s placing the victim in fear does not
constitute consent. Id. Mistake of fact as to consent means
that “the accused held, as a result of ignorance or mistake, an
incorrect belief that the other person engaging in the sexual
conduct consented,” and that belief must be reasonable. Art.
120(t)(15), UCMJ.
We agree with the military judge that consent and mistake
of fact as to consent were not “in issue” under the facts of
this case. At most, the evidence presented at trial showed the
appellant and victim had limited professional interaction. No
witnesses testified to knowledge of a personal relationship
between the appellant and the victim. Having found no error, we
need not address whether there was prejudice. See Stanley, 71
M.J. at 64.
9
B. Instructions on Reconsideration
While reading the standard instructions prior to findings,
the military judge stated:
You may reconsider any finding prior to its being
announced in open court. However, after you vote, if
any member expresses a desire to reconsider any
finding, the President of the court will tell the
court that “a reconsideration has been proposed”. Do
not state whether the finding proposed to be
reconsidered is a finding of guilty or not guilty, or
which specification and charge is involved. I will
then give you specific instructions on how to
reconsider a finding.
Okay, I’m going to be straight up with you about
reconsideration. There is generally no reason for
reconsideration if you’ve had a really full and free
discussion on the evidence before you. So my advice
to you is to have a full and free discussion about
everything you’ve heard in the case. You’ll have a
computer to look at the discs as far as the evidence
and pictures. You’ll have all of the hard copy
exhibits. You’ll have all of the physical evidence.
Take the time to talk through the case and
everything you’ve heard and take a look at the
evidence if you like to, there’s no requirement that
you do that but if you have a question about something
you heard or saw, take the time to look at it and talk
about it. If you do those things I think you’ll avoid
any concerns about reconsideration.
Record at 1974-75. The trial defense counsel did not object to
the military judge’s instructions on reconsideration. The
members deliberated for a little over two and a half hours and
did not seek reconsideration during their deliberations. Record
at 1984-85; 1988-89.
Failure to object to an instruction before the members
close to deliberate constitutes forfeiture of the objection
absent plain error. R.C.M. 920(f). To establish plain error,
the appellant “must demonstrate that there was error, that the
error was obvious and substantial, and that the error materially
prejudiced his substantial rights.” United States v. Smith, 50
M.J. 451, 456 (C.A.A.F. 1999) (citation omitted).
10
Here, the appellant has demonstrated no clear, obvious
errors by which he was prejudiced with regard to the military
judge’s additional instructions concerning reconsideration. As
noted by our sister court, a “court-martial is not a scripted
procedure but a dynamic event.” United States v. Cannon, 39
M.J. 980, 983 (A.F.C.M.R. 1994). Military judges have the
flexibility to speak outside of a set script in order to
facilitate the needs of the courtroom. Military “judges are not
mere robots; they are presumed to appreciate the law of the
appellate courts, military or civilian, and the effect these
decisions have on the matter then presently before them.”
United States v. Warren, 13 M.J. 278, 287 (C.M.A. 1982)
(Fletcher, J., concurring). Here, the military judge instructed
the members to carefully consider every matter presented to
them, which could avoid the need for reconsideration. She
additionally properly instructed the members that they could
reconsider any finding before such finding was announced as
required under R.C.M. 924. Accordingly, we do not find error.
Sentence Appropriateness
In his third AOE, the appellant contends that his sentence
is inappropriately severe. The appellant argues that a sentence
including no more than thirty years of confinement is
appropriate in his case. 2 We disagree.
“Sentence appropriateness involves the judicial function of
assuring that justice is done and that the accused gets the
punishment he deserves.” United States v. Healy, 26 M.J. 394,
395 (C.M.A. 1988). This requires “‘individualized
consideration’ of the particular accused ‘on the basis of the
nature and seriousness of the offense and character of the
offender.’” United States v. Snelling, 14 M.J. 267, 268 (C.M.A.
1982) (quoting United States v. Mamaluy, 27 C.M.R. 176, 180-81
(C.M.A. 1959)).
This case involves multiple crimes that were perpetrated
upon a shipmate onboard a warship deployed at sea. The crimes
were premeditated, extended over a period of hours, and gravely
2
The appellant also argues that his sentence is disparate from sentences in
cases involving similar misconduct. We find this argument to be without
merit. In raising the issue of sentence disparity, the appellant has the
burden of “demonstrating that any cited cases are ‘closely related’ to his or
her case and that the sentences are ‘highly disparate.’” United States v.
Lacy, 50 M.J. 286, 288 (C.A.A.F. 1999). To be closely related, “the cases
must involve offenses that are similar in both nature and seriousness or
which arise from a common scheme or design.” United States v. Kelly, 40 M.J.
558, 570 (N.M.C.M.R. 1994). The appellant failed to meet this burden.
11
impacted the victim and the crew. At least two witnesses and
DC3 SR testified that she was not the same person after the
assault: she was scared to be alone and was anxious. She woke
up to the slightest noises at night, had nightmares, and feared
black trash bags. Her relationship with her boyfriend was
negatively impacted, and she no longer trusted men or felt
comfortable engaging in a normal romantic relationship. She
went to individual and group therapy after the incident. Her
greatest fear was the appellant’s release, which would enable
him to follow through with his threat to kill her or to attack
someone else.
The assault significantly impacted the crew’s morale and
left them unfocused. Some female Sailors began carrying knives
for protection. DC3 SR’s division was also negatively impacted.
She left the ship without a relief, leaving the Damage Control
Department with fewer people to accomplish its mission.
In mitigation and extenuation, the defense presented
evidence that the appellant had been a hard-working Sailor with
good military bearing and no conduct issues prior to this
incident. The appellant has two minor children with special
health needs. His daughter was born while he was deployed, so
he had not met her at the time of trial. As a result of the
appellant’s family’s circumstances, the members recommended and
the CA granted appellant’s request that automatic forfeitures be
paid to the appellant’s dependents for a period of six months.
On balance and after considering the entire record, given
the heinous nature of the appellant’s offenses, we find life
imprisonment with the possibility of parole and a dishonorable
discharge to be appropriate for this offender and his offenses.
United States v. Baier, 60 M.J. 382, 384-85 (C.A.A.F. 2005);
Healy, 26 M.J. at 395-96; Snelling, 14 M.J. at 268.
Accordingly, we decline to grant relief.
Challenges of Members
The appellant next claims that the military judge abused
her discretion by denying the defense challenge for cause
against a Lieutenant Commander (LCDR) P, who had previously been
a victim of an assault at knifepoint. We disagree.
We will not overturn a denial of a challenge for cause
unless there is “a clear abuse of discretion by the judge in
applying the liberal-grant policy.” United States v.
Napolitano, 53 M.J. 162, 166 (C.A.A.F. 2000) (citation omitted).
12
“Actual and implied bias are ‘separate legal tests, not separate
grounds for challenge.’” United States v. Clay, 64 M.J. 274,
276 (C.A.A.F. 2007) (quoting United States v. Armstrong, 54 M.J.
51, 53 (C.A.A.F. 2000)). We give great deference to the
military judge “when deciding whether actual bias exists because
it is a question of fact, and the judge has observed the
demeanor of the challenged member.” Napolitano, 53 M.J. at 166
(citation omitted). “Less deference is given to the military
judge’s determination when this Court is reviewing a finding on
implied bias because it is objectively ‘viewed through the eyes
of the public.’” Id. (quoting United States v. Warden, 51 M.J.
78, 81 (C.A.A.F. 1999)).
Considering the record as a whole, we find that the
appellant did not establish that grounds for challenge against
LCDR P based on implied or actual bias existed. LCDR P’s
situation was factually different from this case: LCDR P was in
a foreign country and was approached by young men with a knife.
He then took his money out of his wallet, threw it, and walked
the other way. The men did not follow him, and there was no
physical contact. Further, during voir dire, LCDR P
demonstrated his willingness to judge the appellant’s case based
on the evidence presented at trial in accordance with the
military judge’s instructions and understood that the burden was
not on the appellant to prove his innocence. Record at 334,
362, 389. As the military judge adhered to the proper legal
tests for actual and implied bias, utilizing the liberal grant
mandate, we find no abuse of discretion by the military judge.
See Clay, 64 M.J. at 277.
Ineffective Assistance of Counsel
AOEs 5, 6, and 8 pertain to the appellant’s claims of
ineffective assistance of trial defense counsel made for the
first time on appeal. He argues his defense counsel were
ineffective by failing to seek potentially exculpatory camera
footage, failing to challenge two members who were trained as
sexual assault victim intervention representatives, and advising
the appellant not to testify. The appellant did not provide an
affidavit or any other support for his assertions.
A military accused is entitled to the effective assistance
of counsel. Art. 27(b), UCMJ; United States v. Tippit, 65 M.J.
69, 76 (C.A.A.F. 2007). The court “looks at the questions of
deficient performance and prejudice de novo.” United States v.
Gutierrez, 66 M.J. 329, 330-31 (C.A.A.F. 2008) (citations
omitted).
13
We analyze the appellant’s claim of ineffective assistance
of counsel under the test outlined by the Supreme Court in
Strickland v. Washington, 466 U.S. 668 (1984). To prevail on a
claim of ineffective assistance of counsel, “an appellant must
demonstrate both (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, 466 U.S. at 687) (additional citation
omitted).
Trial defense counsel enjoys a strong presumption that he
or she “was competent, rendered adequate assistance at trial,
and made all significant decisions in the exercise of reasonable
professional judgment.” United States v. Lowe, 50 M.J. 654, 656
(N.M.Ct.Crim.App. 1999) (citations omitted). Courts of appeal
normally should not “second-guess the strategic or tactical
decisions made at trial by defense counsel.” United States v.
Grigoruk, 52 M.J. 312, 315 (C.A.A.F. 2000) (citation omitted).
In this case, the appellant and his trial defense counsel
made a tactical decision not to have the appellant testify in
his own defense. That this was a deliberate choice and not the
result of oversight was specifically stated on the record.
Record at 1824-26.
Based on our careful analysis of the record, we find that
the appellant has failed to meet his burden of establishing a
“factual foundation for [his] claim of ineffective
representation[,]” Grigoruk, 52 M.J. 315, and has failed to
meet the threshold for compelling defense counsel to explain
their actions, United States v. Lewis, 42 M.J. 1 (C.A.A.F.
1995). Because the appellant’s post-trial submission alleges
facts that even if true would not result in relief, we reject
his claim on that basis and need not order a post-trial
evidentiary hearing. United States v. Ginn, 47 M.J. 236, 248
(C.A.A.F. 1997).
In sum, the appellant's ineffective assistance of counsel
assertions constitute nothing more than bare allegations and
speculation concerning his trial defense counsel’s claimed
errors and omissions. The record supports that the trial
defense counsel team rendered adequate assistance and exercised
reasonable professional judgment in the pretrial, trial,
sentencing and post-trial representation they provided to the
appellant. In light of the evidence in the record and the
appellate filings, we conclude the appellant has demonstrated
neither deficient performance nor prejudice.
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Non-Unanimous Voting and Due Process
In his ninth AOE, the appellant argues his due process
rights were violated when his members’ panel could convict and
sentence him to life in prison without a unanimous vote. We
disagree.
Because the death penalty was not mandatory for any of the
appellant’s charged offenses, a two-thirds vote by his seven-
member panel, and not unanimity, was the minimum required to
convict him of any charged offense. Art. 52(a)(2), UCMJ; R.C.M.
921(c)(2)(B). A three-fourths vote by the panel was the minimum
required to convict the appellant of a sentence of life
imprisonment. Art. 52(b)(2), UCMJ. The military judge properly
instructed the members on these voting requirements. A non-
unanimous voting requirement is constitutional in the
appellant’s case. See United States v. Viola, 26 M.J. 822, 830
(A.C.M.R.), aff’d, 27 M.J. 456 (C.M.A. 1988); United States v.
Guilford, 8 M.J. 598, 601-02 (A.C.M.R. 1979) (finding the
Supreme Court has “expressly eschewed any intimation of its
views as to the constitutionality of non-unanimous verdicts
rendered by juries of more than six members”). Therefore, we
find this AOE to be without merit.
Post-Trial Delay
The appellant also argues he has been denied speedy post-
trial review because it took 207 days from the date of trial to
the date of the CA’s action. We additionally note that
completion of appellate review exceeded the 18-month guideline
outlined in United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F.
2006). Appellate review in this case was completed in nineteen
months and two days, which triggers the four-part analysis set
forth in Barker v. Wingo, 407 U.S. 514, 530 (1972) and a
presumption of unreasonable delay. Moreno, 63 M.J. at 142. The
four-part Barker analysis includes: “(1) the length of the
delay; (2) the reasons for the delay; (3) the appellant’s
assertion of the right to timely review and appeal; and (4)
prejudice.” Id. at 135 (citations omitted).
We find this case has “present[ed] specific circumstances
warranting additional time, thus making [the timeframe of post-
trial action and appellate review] reasonable upon assessment of
the Barker factors.” Id. at 143. Delay in post-trial
processing was caused by substantial errors in the transcription
of several sections of the record, requiring hours of rework by
the military judge, who also had a substantial caseload during
that timeframe. The record of trial contains over 2,200 pages
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of transcribed record and approximately 1,500 pages in exhibits.
After the record of trial was authenticated on 14 May 2013,
trial defense counsel requested, and the CA granted, an
additional twenty days to submit clemency matters. The serious
nature of the case and the sentence the appellant received
warranted additional time to prepare matters in clemency. The
defense submitted clemency on 13 June 2013. The staff judge
advocate completed her recommendation (SJAR) on 19 June 2013 and
served it on defense counsel that same day. The defense counsel
signed for receipt of the SJAR on 20 June 2013 and did not
submit further clemency. The addendum SJAR was completed on 8
July 2013, and the CA took action the same day. We note that
the CA, as a matter of clemency matters, deferred the automatic
reduction in rate and automatic forfeitures from the date they
would have become effective until the date he took his action,
and also waived automatic forfeitures for a period of six months
from the date of his action.
Concerning appellate review, we note that this case was
complicated and resulted in eleven AOEs. Appellate defense
requested and was granted five enlargements of time to file his
initial brief and was granted leave to file a supplemental AOE,
which resulted in the defense having the case for seven of the
nineteen months of appellate review. The Government’s brief was
filed with this court on 16 June 2014. After the defense
received another enlargement of time, their reply brief was
filed on 2 July 2014.
During the appellate review process, the appellant did not
file a motion to expedite appellate review until 12 February
2015 and the appellant’s consent to the three enlargements of
time filed by the Government is noted in those motions. The
appellant’s sentence was and remains, after our appellate
review, life imprisonment with the possibility of parole. As
such, he has suffered no prejudice by these delays.
Accordingly, we hold the delays in this case, the 207 days
it took to transcribe, authenticate, and take action on the
record, and the nineteen months it took to complete the
appellate review process, were “justifiable, case-specific
delays supported by the circumstances of th[is] case and not
delays based upon administrative matters, manpower constraints
or the press of other cases.” Moreno, 63 M.J. 129.
Furthermore, if we were to determine that there was a
denial of due process due to the post-trial processing of the
case, we would also find that the denial was harmless beyond a
reasonable doubt. United States v. Allison, 63 M.J. 365, 370-71
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(C.A.A.F. 2006). The appellant has not identified, nor do we
find, any harm from the delays in this case. The appellant has
not suffered “oppressive incarceration pending appeal[;]” he has
not shown, or even alleged, he has suffered any “particularized
anxiety or concern” related to the delays, distinct from the
anxiety and concern normal for persons awaiting appellate
decisions; and “his incarceration was not lengthened by the
delay and he is in no worse position due to the delay.” See
United States v. Toohey, 63 M.J. 353, 361 (C.A.A.F. 2006)
(citations omitted). Consequently, we find the delays in this
case are harmless beyond a reasonable doubt.
Panel Member Selection
In his final assignment of error, the appellant avers that
he was prejudiced when the members of his court-martial were
selected under a regional instruction that per se excluded
personnel from the members’ pool based on rank. We disagree.
In June of 2002, Commander, Naval Region Mid-Atlantic
issued an instruction to subordinate commands establishing the
procedure for nominations of prospective court-martial members.
That instruction directed each subordinate command, except for
one, to provide a certain number of nominees in the ranks of E-6
and above. The instruction only called for three nominees below
E-6 from one command.
The standard of review for the proper selection of a court-
martial panel is de novo. United States v. Kirkland, 53 M.J.
22, 24 (C.A.A.F. 2000). We look at three primary factors to
determine whether an impermissible member selection has taken
place:
1. Improper motive in packing a member pool;
2. Systematic exclusion of potential members based on
rank or other impermissible variable; and,
3. Good faith attempts to be inclusive and open the
court-martial process to the entirety of the military
community.
United States v. Dowty, 60 M.J. 163, 171 (C.A.A.F. 2004). If
either of the first two criteria is present, the process is
impermissible. Id. These criteria are not only considered in
the actual panel selection process, but also in the process of
presenting nominations to the CA. United States v. Roland, 50
M.J. 66, 69 (C.A.A.F. 1999).
In a case of systematic exclusion of members by rank, it is
the responsibility of the defense to establish the improper
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exclusion. Kirkland, 53 M.J. at 24. Once improper exclusion
has been established, the burden is placed on the Government “to
demonstrate that the error did not ‘materially prejudice the
substantial rights of the accused.’” Dowty, 60 M.J. at 173
(quoting Art. 59(a), UCMJ).
Assuming arguendo that junior enlisted service members were
impermissibly excluded from the member selection process by
virtue of their rank, the question remains whether that improper
nomination process materially prejudiced the appellant. In
reviewing this case we find:
(1) No evidence that the errant instruction was issued
with an improper motive;
(2) No evidence that the CA had an improper motive
when detailing the members assigned to the appellant’s
court-martial;
(3) The CA was a person authorized to convene a
general court-martial;
(4) The CA was properly advised of his Article 25
responsibilities and that he could pick any member of
his command, not just those who had been nominated;
(5) The court members were personally chosen by the CA
from a pool of eligible candidates;
(6) The court members all met the criteria in Article
25, UCMJ;
(7) The instruction only limited some E-5’s and E-4s
junior to the appellant from consideration in this
case because the appellant was an E-4 and members have
to be senior to the accused; and,
(8) The members were selected after a rigorous voir
dire process wherein the military judge granted
several defense challenges for cause.
Under these circumstances, we are convinced that the appellant’s
case was heard by a fair and impartial panel and that the error
in this case was harmless. See United States v. Bartlett, 66
M.J. 426, 431 (C.A.A.F. 2008).
Promulgating Order
Although not raised as an AOE, the promulgating order in
this case does not accurately list two of the charges and
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specifications of which the appellant was convicted. As to
Charge III, Specification 1, the appellant was charged with an
aggravated assault but was convicted of the lesser included
offense of assault consummated by a battery. However, the
promulgating order states that the appellant was convicted of
the aggravated assault. The promulgating order also does not
correctly list the exceptions and substitutions found by the
members under Charge IV, Specification 2.
We test this error under a harmless error standard. United
States v. Crumpley, 49 M.J. 538, 539 (N-M.C.C.A. 1998). We are
convinced that this scrivener’s error did not amount to plain
error materially prejudicing appellant’s substantial rights
because no prejudice was alleged or is apparent. See Id.
However, the appellant is entitled to have his official record
correctly reflect the results of his court-martial. See Id. We
therefore order corrective action in our decretal paragraph.
Conclusion
The findings and the sentence as approved by the CA are
affirmed. We direct that the supplemental court-martial order
correctly state that the appellant was convicted of the lesser
included offense of assault consummated by a battery under
Charge II, Specification 1 and reflect the exceptions and
substitutions the members found under Charge IV, Specification
2.
Senior Judge MCFARLANE and Judge HOLIFIELD concur.
For the Court
R.H. TROIDL
Clerk of Court
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