UNITED STATES, Appellee
V.
John A. ANDERSON, Jr., Staff Sergeant
U.S. Air Force, Appellant
No. 00-0518
Crim. App. No. 33456
United States Court of Appeals for the Armed Forces
Argued January 10, 2001
Decided June 29, 2001
GIERKE, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., and EFFRON and BAKER, JJ., joined.
SULLIVAN, J., filed a dissenting opinion.
Counsel
For Appellant: Marcus J. Williams (argued); Colonel James R.
Wise, Lieutenant Colonel Timothy W. Murphy, and Captain Karen
L. Hecker (on brief); Captain Michael J. Apol.
For Appellee: Captain Christa S. Cothrel (argued); Colonel
Anthony P. Dattilo and Major Lance B. Sigmon (on brief);
Lieutenant Colonel Ronald A. Rodgers, Major Mitchel Neurock,
and Captain James C. Fraser.
Military Judge: Michael J. Rollinger
This opinion is subject to editorial correction before publication.
United States v. Anderson, No. 00-00518/AF
Judge GIERKE delivered the opinion of the Court.
A general court-martial composed of officer and enlisted
members convicted appellant, contrary to his pleas, of committing
indecent acts with his 13-year-old daughter (2 specifications),
in violation of Article 134, Uniform Code of Military Justice, 10
USC § 934. In addition, he was acquitted of two specifications
alleging that he attempted to rape his daughter, in violation of
Article 80, UCMJ, 10 USC § 880, and one specification alleging
that he raped his daughter, in violation of Article 120, UCMJ, 10
USC § 920, but he was found guilty of committing indecent acts in
violation of Article 134, as lesser-included offenses of the two
attempted rapes and the rape. The adjudged and approved sentence
provides for a dishonorable discharge, confinement for 9 years,
and reduction to the lowest enlisted grade. Automatic
forfeitures were waived for 6 months in accordance with Article
58b, UCMJ, 10 USC § 858b. The Court of Criminal Appeals affirmed
the findings and sentence in an unpublished opinion.
This Court granted review of the following issue:
WHETHER APPELLANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO
EFFECTIVE ASSISTANCE OF COUNSEL BECAUSE: (1) DEFENSE
COUNSEL FAILED TO INVESTIGATE HIS CASE AND ADEQUATELY
PRESENT HIS DEFENSE AT TRIAL, AND (2) DEFENSE COUNSEL
REPEATEDLY CONCEDED HIS GUILT TO THE COURT.
For the reasons set out below, we remand the case for further
proceedings.
Factual Background
At the time of trial, appellant was a married, 34-year-
old staff sergeant with four children: a 13-year-old daughter,
BJA, two 11-year-old boys, and a 6-year-old boy. In April 1998,
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United States v. Anderson, No. 00-00518/AF
while on a church-sponsored trip to Mexico, BJA told a church
official that appellant had been touching her inappropriately.
The church official suggested that BJA attend a church workshop
on forgiveness. BJA attended the workshop and then talked to a
church counselor. After BJA returned to her home at McChord Air
Force Base, Washington, the church pastor reported BJA’s
accusations to her mother. BJA was then interviewed by an agent
of the Office of Special Investigations (OSI). She told the OSI
agent that several times a year for about 3 years, appellant
touched her inappropriately. At trial, she testified that
appellant touched her much more frequently than she first
reported, two or three times a week, and that he forced her to
touch his genitals. She also testified that on two occasions,
appellant attempted to have intercourse with her, and that on one
occasion, he penetrated her.
BJA admitted that she initially did not tell the OSI
everything because she “didn’t think they needed to know any
more.” She hoped that appellant “would admit that he did it and
get help.” At trial, she admitted testifying during the Article
32∗ investigation that she did not remember the “three rapes”
until 3 weeks before the Article 32 hearing. She testified at the
Article 32 hearing that she “started having bad dreams about it”
and then “started remembering more stuff that happened.”
The defense attempted to show that BJA’s accusations were
intended to “get even” with appellant because he refused to allow
her to date a 16-year-old boy. BJA denied telling her brother
∗
Uniform Code of Military Justice, 10 USC § 832.
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United States v. Anderson, No. 00-00518/AF
that she would “get even” with appellant. BJA’s mother denied
telling a neighbor, Sergeant First Class (SFC) Martin Boylan,
that BJA had threatened to “get even” with appellant.
Appellant testified at trial and denied all the allegations.
His testimony consisted solely of “No, Sir” responses to a brief
series of leading, factual questions from his defense counsel.
During closing arguments on the merits, defense counsel
paraphrased a quotation from Sophocles as follows: “[T]here is a
point beyond when even justice becomes unjust. And to find Staff
Sergeant John A. Anderson, Jr., guilty under the facts and
circumstances of this case would amount to just such a point.”
During his sentencing argument, defense counsel asked the
rhetorical question, “Can this person rehabilitate? . . . [Y]es,
John Anderson can rehabilitate. . . . His offenses are only very
recent.”
The defense was assisted at trial by Dr. Bruce Ebert, a
board-certified, clinical and forensic psychologist and a lawyer
licensed to practice in California. Dr. Ebert advised the
defense on trial tactics and observed the testimony of BJA at
trial.
Before the court below and now this Court, appellant
contends that his trial defense counsel were ineffective. Among
his allegations, appellant states that 4 months before the trial,
he told his counsel that BJA told her brother she was going to
“get” appellant, but that his counsel never discussed this matter
with him again. The court below admitted an affidavit from SFC
Boylan, appellant’s former neighbor who had since retired from
active duty, stating that Mrs. Anderson told him BJA threatened
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United States v. Anderson, No. 00-00518/AF
to “get” appellant because he would not allow her to see her
boyfriend. SFC Boylan also stated that he told appellant’s
defense counsel about Mrs. Anderson’s comment and volunteered to
testify about it, but he was never asked to testify.
The court below also admitted an affidavit from Dr. Ebert,
in which he stated that the church group to which BJA first
complained “has been described as extremely fundamentalist and
charismatic to such a degree as to have similarities with a
cult.” Dr. Ebert stated that he suspected “the counselor used
some quasi-hypnotic techniques” that caused BJA to make her
complaints. Dr. Ebert believed that further investigation of
these techniques, as well as the circumstances of BJA’s
complaint, was warranted.
Dr. Ebert stated that “it was critically important for [him]
to conduct an interview with [BJA],” but “[a]pparently, she
refused to speak to [him] or with any member of the defense.” He
opined that “[a] psychological examination of [BJA] by an
independent expert such as [Dr. Ebert] may have been extremely
valuable[.]”
After receiving Dr. Ebert’s affidavit, the court below
ordered Captains (Capts) Hockaday and Davis, appellant’s trial
defense counsel, to respond. In his affidavit, Capt Hockaday
stated:
Although Dr. Ebert states in his affidavit that he
believed that BJA refused to speak with him or any
member of the defense, we told Dr. Ebert of the results
of our interview with her the week before the trial.
In any event, Dr. Ebert was also told of the difficulty
we had experienced in obtaining an interview with BJA,
and that she had been made available for interviews
only after the possibility of a subpoena was raised.
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United States v. Anderson, No. 00-00518/AF
. . . . At no time did Dr. Ebert advise us that he
should personally interview BJA, perform a
psychological evaluation of BJA, personally interview
the church counselor or investigate the church further.
Dr. Ebert advised that he should not be called as a
witness. Had Dr. Ebert provided the advice he
discusses in his affidavit, we would have taken steps
to follow that advice.
Capt Davis’s affidavit stated that he and Capt Hockaday
interviewed BJA’s brother on August 20, 1998, 4 days before
trial, but that the brother did not support appellant’s claim
that BJA threatened to “get” him. Capt Davis also asserted that
“the defense was not authorized to compel a psychological
examination of BJA” because the prosecution did not intend to put
BJA’s mental state in issue. Regarding the importance of having
a psychological examination of BJA, Capt Davis stated:
Dr. Ebert informed us that his review of the
information forwarded to him revealed no evidence
inconsistent with the allegations, except for one
statement by BJA in the Article 32 report regarding
remembering the alleged rape in a dream . . . .
Subsequent to BJA’s direct examination, defense counsel
once again consulted with Dr. Ebert, since he was
present during BJA’s testimony on direct, to determine
whether he had any strategical suggestions. He
informed us that he did not believe we had any real
basis to attack BJA’s testimony from a psychological
standpoint, and that therefore, his testimony would
probably not assist our defense. At that point, we
agreed with Dr. Ebert and did not pursue any possible
psychological issues regarding BJA or call Dr. Ebert as
a witness.
Appellant tendered a second affidavit from Dr. Ebert to the
court below in response to the affidavits of Capt Hockaday and
Capt Davis, but the court refused to admit Dr. Ebert’s second
affidavit. Appellant submitted the affidavit to this Court, and
we admitted it. Dr. Ebert’s second affidavit responded to Capt
Hockaday’s statement that Dr. Ebert did not recommend he
interview BJA and perform a psychological evaluation, and did not
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United States v. Anderson, No. 00-00518/AF
recommend interviewing the church counselor or investigating the
church. Dr. Ebert responded by saying Capt Hockaday’s statement
“is simply false.” Dr. Ebert also stated that he “specifically
requested information on the alleged victim’s church and the
specifics of the events surrounding the alleged victim’s
disclosure made during her trip to Mexico.”
Discussion
Appellant contends that his counsel were ineffective because
they (1) did not interview BJA’s brother in a timely manner
before he “forgot” about BJA’s threats to retaliate against
appellant or was influenced by others to change his story; (2)
did not investigate the circumstances of BJA’s initial
accusations against appellant; (3) did not make reasonable
efforts to permit Dr. Ebert to interview, test, and evaluate BJA
before trial; (4) did not call SFC Boylan as a witness to
contradict BJA and Mrs. Anderson; and (5) improperly conceded
appellant’s guilt in argument.
To prevail on a claim of ineffectiveness of counsel, an
appellant must show that counsel’s performance was deficient and
that the deficient performance prejudiced the defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984). Counsel are
presumed competent. To overcome this presumption, an appellant
must show that counsel made specific errors that were
unreasonable under prevailing professional norms. Id. at 688-90;
see also United States v. Cronic, 466 U.S. 648 (1984).
In United States v. Polk, 32 MJ 150, 153 (CMA 1991), this
Court adopted a three-pronged test to determine if the
presumption of competence has been overcome:
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United States v. Anderson, No. 00-00518/AF
(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 were ineffective, is there “a
reasonable probability that, absent the errors,” there would have
been a different result?
Ineffectiveness of counsel is a mixed question of law and
fact. Factual findings are reviewed under a clearly-erroneous
standard of review, but the ultimate determinations whether
counsel were ineffective and whether their errors were
prejudicial are reviewed de novo. United States v. Wean, 45 MJ
461, 463 (1997).
Appellant’s first three claims are founded on the failure to
investigate. “[A] particular decision not to investigate must be
directly assessed for reasonableness in all the circumstances,
applying a heavy measure of deference to counsel’s judgments.”
Strickland, supra at 691.
In addition, appellant’s third claim involves the
opportunity for Dr. Ebert to interview, test, and evaluate BJA.
In United States v. Owen, 24 MJ 390, 395 (CMA 1987), this Court
opined that a military judge lacks “inherent power” to compel a
victim to undergo nonconsensual examination. This Court noted,
however, that a military judge and a trial counsel can use “the
persuasive powers of [their] office[s] . . . to secure the
witness’ consent” to such examination. Id.
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United States v. Anderson, No. 00-00518/AF
Appellant’s fourth claim concerns his counsel’s failure to
present the testimony of SFC Boylan. The affidavits of defense
counsel did not address this issue. This Court “will not second-
guess the strategic or tactical decisions made at trial by
defense counsel.” United States v. Morgan, 37 MJ 407, 410 (CMA
1993). “On the other hand, where it is not apparent what
decisions were made or even that a strategic or tactical decision
was made, further inquiry may be required.” United States v.
Grigoruk, 52 MJ 312, 315 (2000).
Appellant’s final claim is that his counsel improperly
conceded his guilt. An unequivocal concession of guilt can so
undermine the adversarial process as to obviate the need for a
separate showing of prejudice. United States v. Swanson, 943
F.2d 1070, 1074 (9th Cir. 1991), citing Cronic, supra. This
Court discussed concessions of guilt during sentencing arguments
in Wean, 45 MJ at 464, cited by appellant. In Wean, this Court
opined:
[D]efense counsel should not concede an accused’s guilt
during sentencing, not only because this can serve to
anger the panel members, but also because defense
counsel may be able to argue for reconsideration of the
findings before announcement of the sentence.
Wean is of limited applicability to appellant’s case, however,
because it was premised on RCM 924(a), Manual for Courts-Martial,
United States (1994 ed.). The version of RCM 924(a) in effect at
the time of appellant’s trial did not permit court members to
reconsider findings after they are announced. See 45 MJ at 464
n. 4; RCM 924(a), Manual for Courts-Martial, United States (1998
& 2000 eds.).
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United States v. Anderson, No. 00-00518/AF
In United States v. Ginn, 47 MJ 236, 248 (1997), this Court
held that conflicting affidavits on an issue of ineffectiveness
of counsel may not be resolved without a factfinding hearing,
unless (1) the facts alleged by the appellant would not result in
relief even if true; (2) the appellant does not assert specific
facts but only speculative or conclusory observations; (3) the
appellant’s factual assertions are not contested; (4) the record
as a whole “compellingly demonstrate[s]” the improbability of the
facts asserted by the appellant; or (5) the appellant’s factual
assertions contradict statements made by the appellant on the
record and the appellant does not “rationally explain why he
would have made such statements at trial but not upon appeal.”
Conclusions
Applying the principles set out in Ginn, we conclude that a
factfinding hearing is required to resolve the factual conflicts
between Dr. Ebert’s two affidavits and the affidavits of Capts
Hockaday and Davis.
Appellant’s trial defense counsel appear to concede the
wisdom and necessity of investigating the circumstances of BJA’s
initial accusations, commenting that if Dr. Ebert had suggested
it, they would have done it. The court members obviously had
some concerns about BJA’s credibility, acquitting appellant of
the two attempted rapes and one consummated rape. We conclude
that further inquiry is required to determine the adequacy of
trial defense counsel’s pretrial investigation of the
circumstances of BJA’s accusations against appellant.
The apparent conflict between SFC Boylan’s affidavit and
Mrs. Anderson’s in-court testimony may be relevant to the defense
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United States v. Anderson, No. 00-00518/AF
theory that BJA’s accusations grew in response to encouragement
by her mother, friends, and counselors. Defense counsel have not
had an opportunity to articulate a tactical reason not to call
SFC Boylan as a defense witness. Further inquiry will give them
such an opportunity.
Capt Davis stated that the defense interviewed BJA’s brother
shortly before trial, but he did not explain why the brother was
not interviewed earlier, at a time more immediate to the events
in question. Further factual inquiry and an opportunity for
defense counsel to explain their pretrial strategy is required.
Defense counsel’s impression that they could not compel BJA
to submit to psychological testing begs the question whether she
would have submitted voluntarily or whether the use of
“persuasive” measures by the military judge or trial counsel
recognized in Owen, supra, could have produced the same result.
Further inquiry is needed into the likelihood that Dr. Ebert
could have interviewed and evaluated BJA and obtained evidence
favorable to appellant.
Defense counsel’s arguments on findings and sentence are
susceptible of being interpreted as concessions, but they are not
the obvious concessions of the sort that were condemned in
Swanson, supra. In our view, the cumulative effect of these
arguments warrants further evaluation after the factual issues
are resolved.
Decision
The decision of the United States Air Force Court of
Criminal Appeals is set aside. The record of trial is returned
to the Judge Advocate General of the Air Force for remand to a
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United States v. Anderson, No. 00-00518/AF
convening authority to conduct a factfinding hearing in
accordance with United States v. DuBay, 17 USCMA 147, 37 CMR 411
(1967). The factfinding hearing should address: (1) the factual
conflicts between the affidavits of Dr. Ebert and those of trial
defense counsel; (2) the adequacy of trial defense counsel’s
pretrial investigation of the circumstances of BJA’s accusations
against appellant, including the delay in interviewing BJA’s
brother until the eve of trial; (3) the reasons for not
presenting the testimony of SFC Boylan; and (4) the circumstances
under which Dr. Ebert could have evaluated BJA and the potential
results of such an evaluation. The record of trial, including
the factfinding hearing, will then be transmitted to the Court of
Criminal Appeals, which will reconsider appellant’s claims of
ineffective representation, including his claim that defense
counsel conceded his guilt. Thereafter, Article 67, UCMJ, 10 USC
§ 867, will apply.
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United States v. Anderson, 00-0518/AF
SULLIVAN, Judge (dissenting):
I agree with the decision of this Court in United States v.
Ginn, 47 MJ 236 (1997). However, I do not agree that Ginn
requires a remand for a Dubay hearing in this case. The
majority’s failure to particularly explain why the legal
principles it cites and the facts it relies on justify a remand
under Ginn leaves me unpersuaded that relief is warranted.
Accordingly, I dissent.
Turning to the posttrial affidavits in this case, I note that
there is no dispute that defense counsel did not interview the
alleged victim’s brother, J, until 4 days before trial.
Moreover, it is not disputed that 4 months prior to trial,
appellant told defense counsel that the alleged victim made
certain statements to her brother. Finally, it is not disputed
that the brother eventually denied knowledge of such statements
by the alleged victim. However, it is utter speculation that
over the 4-month period, J forgot that his sister made statements
threatening to get even with appellant for not letting her date
an older boy. A claim of ineffective assistance of counsel
cannot rest on speculation. See United States v. Ginn, supra at
248 (Second Principle: “[I]f the affidavit does not set forth
specific facts but consists instead of speculative or conclusory
observations, the claim may be rejected on that basis.”).
United States v. Anderson, No. 00-0518/AF
I turn next to the decision of defense counsel not to call
SFC Boylan to testify that the victim’s mother said the victim
said she wanted to get appellant for not letting her date an
older boy. There is no factual dispute on this point. The
evidence, however, could only be used for impeachment of the
mother, who was not a witness to the charged offenses. In any
event, the victim in her testimony admitted being mad at
appellant because he did not permit her to date an older boy.
See United States v. Ginn, supra at 248 (First Principle: “[I]f
the facts alleged in the affidavit allege an error that would not
result in relief even if any factual dispute were resolved in
appellant’s favor, the claim may be rejected on this basis.”).
The remaining reason the majority remands this case is
because of a posttrial conflict in the affidavits of a defense
expert and defense counsel. Doctor Ebert asserts that he
requested defense counsel allow him to interview the alleged
victim for evidence of psychological manipulation by her church
or family. Defense counsel asserts that Dr. Ebert did not make
such a request and ruled out such manipulation by the church
where she revealed her prior abuse by appellant. Clearly, this
is a factual dispute, and it might have some bearing on an
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United States v. Anderson, No. 00-0518/AF
important issue in this case, i.e., the credibility of the
1
alleged victim. However, the resolution of this dispute in
appellant’s favor would not entitle appellant to relief. Even
Dr. Ebert asserts that the alleged victim’s mother would not make
her available for a psychological interview by him unless
required by law to do so. See United States v. Ginn, supra at
239.
Finally, in this case, it was not ineffective assistance of
counsel for defense counsel to fail to request that trial counsel
and the trial judge urge the alleged victim to voluntarily submit
to a defense psychological examination. Cf. United States v.
Owen, 24 MJ 390, 395 (CMA 1987). There is no dispute in this
case that defense counsel did not ask these officers to urge the
victim to take such an examination. However, there is also no
dispute that the victim’s mother would not allow such an
examination unless legally coerced. In my view, the law does not
require the doing of futile acts.
1
Doctor Ebert’s testimony that in his opinion, the alleged
victim was being psychologically manipulated to make false
allegations against appellant might be objectionable on the basis
that he was improperly serving as a validator or human lie
detector. See United States v. Armstrong, 53 MJ 76, 80-81
(2000); cf. United States v. Wright, 53 MJ 476, 485 (2000).
3