United States v. Major ERIK J. BURRIS

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
TOZZI, CELTNIEKS, and BURTON
Appellate Military Judges

UNITED STATES, Appellee
v.
Major ERIK J. BURRIS
United States Army, Appellant

ARMY 20150047

Headquarters, Fort Bragg
Tara A. Osborn, Military Judge (arraignment)
John T. Rothwell, Military Judge (trial)
Lieutenant Colonel Jerrett W. Dunlap, Jr., Staff Judge Advocate

For Appellant: Mr. Zachary D. Spilman, Esquire (argued); Major Christopher D.
Coleman, JA; Mr. Zachary D. Spilman, Esquire (on brief and reply brief).

For Appellee: Captain Linda Chavez, JA (argued); Lieutenant Colonel A.G. Courie
III, JA; Major Cormac M. Smith, JA; Captain Linda Chavez, JA (on brief).

8 May 2017

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MEMORANDUM OPINION
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This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

BURTON, Judge:

In this appeal, we find appellant waived his right to claim impermissible
character evidence and improper argument because he failed to object at trial. In
addition, we find appellant failed to meet his burden to prove his defense counsel
were ineffective.

An officer panel sitting as a general court-martial convicted appellant,
contrary to his pleas, of one specification of willfully disobeying a superior
commissioned officer, two specifications of rape, one specification of sodomy, and
four specifications of assault consummated by a battery, in violation of Articles 90,
120, 125, and 128, Uniform Code of Military Justice, 10 U.S.C. §§ 890, 920, 925,
928 (2006 & Supp. III 2010; 2006 & Supp. IV 2011; 2006 & Supp. V 2012; 2012)
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[hereinafter UCMJ]. 1 The panel sentenced appellant to a dismissal, confinement for
twenty years, and forfeiture of all pay and allowances. The convening authority
approved the sentence as adjudged, but waived automatic forfeitures for six months.

This case is before us for review pursuant to Article 66, UCMJ. Appellant
raises ten assignments of error, three of which merit discussion, but no relief.
Appellant personally raised several matters pursuant to United States v. Grostefon,
12 M.J. 431 (C.M.A. 1982), including ineffective assistance of counsel during
sentencing. These matters also warrant no relief, but the claim of ineffective
assistance of counsel will be discussed in conjunction with the assigned error
addressing this issue.

BACKGROUND

Appellant, a judge advocate, 2 met his second wife, WB, in January 2009 while
he was stationed at Fort Hood, Texas. They married in March 2010. From the
inception of their marriage through November 2012, appellant assaulted, forcibly
engaged in sex with, and sodomized WB. Initially, WB did not report these
instances of abuse because she was embarrassed and feared no one would believe
her. When WB reported appellant’s actions, he was serving as the Chief of Justice
(CoJ) for the 82d Airborne Division at Fort Bragg, North Carolina.

Appellant had a daughter from his first marriage, DB. When his daughter
would visit, he engaged in what he called “tickle torture.” Witnesses testified that
initially his daughter laughed when he tickled her. As DB grew older, she started to
dislike “tickle torture” and believed he engaged in “tickle torture” as punishment.
She expressed her dislike to appellant by telling him she did not like it and would
try to get away from him when he engaged in “tickle torture.”

In his duties as CoJ, appellant had access to the shared computer drive where
documents pertaining to ongoing investigations were stored. When documents
pertaining to appellant’s investigation were discovered on his government-issued
computer, he was counselled in writing to “return all DVDs or CDs or electronic
media you recently produced or copied from the 82d Airborne OSJA.” Appellant

1
Although appellant was charged with assaulting and raping his wife “on divers
occasions” for two of the assault specifications and one of the rape specifications,
the panel found him guilty of a single instance in each of the charged offenses.
2
According to his Officer Record Brief, appellant received a juris doctorate degree
from Texas Tech University in 2007, and attended the Judge Advocate Officer’s
Basic Course in 2008. As a judge advocate, appellant served as trial counsel and
administrative law attorney at Fort Hood, prior to serving as the CoJ at Fort Bragg.

2
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responded in writing, “I will get back with LTC Thomson about the CDs mentioned
once I look for/find them and have discussed the same with defense counsel, but will
give an update to him before COB today.” Appellant never returned any DVDs or
CDs to the 82d Airborne Division’s Office of the Staff Judge Advocate.

A. Improper Character Evidence and Argument

In a videotaped Criminal Investigation Command (CID) interview, appellant
told a special agent about his nickname, “The Beast.” At trial, the government used
appellant’s nickname throughout its case to highlight the domestic violence
incidents and to counter appellant’s “good soldier” defense. For example, during
WB’s testimony, she referenced “The Beast” when describing different instances of
assault, rape, and sodomy. According to WB, after the first time appellant raped
her, she asked him, “‘Why did you do that? You hurt me.’ . . . ‘Why didn’t you
stop?’ . . . ‘It hurt me.’” After appellant stopped laughing he responded, “‘Oh, you
must have been talking about The Beast. You met The Beast last night.’ . . . ‘Oh,
that’s a name I nicknamed -- the girls in college that happened to and they
nicknamed -- calls it The Beast.’” The CID interview, which included appellant’s
description about the origins of his nickname, was also admitted into evidence and
played in its entirety to the panel. In closing argument, trial counsel used the term
“The Beast” or “a beast” nine times.

On appeal, appellant alleges the numerous references to him as “The Beast”
were impermissible character evidence and improper argument. Appellant also
argues the government improperly commented on his constitutional right to remain
silent during closing argument. As a threshold matter, we must determine in each
instance whether appellant preserved his right to claim error, or waived his claim by
failing to object at trial.

In general, “‘[d]eviation from a legal rule is error unless the rule has been
waived.’” United States v. Ahern, __ M.J. ___, 2017 CAAF LEXIS 292, at *7
(C.A.A.F. Apr. 20, 2017) (quoting United States v. Girouard, 70 M.J. 5, 10
(C.A.A.F. 2011)). As our superior court has explained, “[while an appellate court]
reviews forfeited issues for plain error, United States v. Gladue, 67 M.J. 311, 313
(C.A.A.F. 2009), [appellate courts] do not review waived issues because a valid
waiver leaves no error to correct on appeal.” Id. (citing United States v. Campos, 67
M.J. 330, 332 (C.A.A.F. 2009)). Whether an appellant has waived an issue is a
question of law we review de novo. Id. at *8 (citing United States v. Rosenthal, 62
M.J. 261, 262 (C.A.A.F. 2005)).

Regarding evidentiary errors, “[a] party may claim error in a ruling to admit
or exclude evidence only if the error materially prejudices a substantial right of the
party and: if . . . a party, on the record: timely objects or moves to strike . . . .”
Military Rule of Evidence [hereinafter Mil. R. Evid.] 103(a) (emphasis added).

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However, “[a] military judge may take notice of a plain error that materially
prejudices a substantial right, even if the claim of error was not properly preserved.”
Mil. R. Evid. 103(f) (emphasis added). Regarding argument by counsel, “[f]ailure
to object to improper argument before the military judge begins to instruct the
members on findings shall constitute waiver of the objection.” Rule for Courts-
Martial [hereinafter R.C.M.] 919(c) (emphasis added).

1. “The Beast”

Appellant failed to object to a single reference of “The Beast” during the
admission of evidence or during argument. Accordingly, this issue is waived and
there is no legal error to correct on appeal. Moreover, there is no cause for us to
exercise our discretionary authority to address this issue notwithstanding appellant’s
waiver. Although “[e]vidence of a person’s character or character trait is not
admissible to prove that on a particular occasion the person acted in accordance with
the character or trait[,]” the term “The Beast” is not a character trait. Mil. R.
Evid. 404(a)(1). It is appellant’s self-imposed nickname, and it is not “‘necessarily
suggestive of a criminal disposition.’” United States v. Farmer, 583 F.3d 131, 145
(2d Cir. 2009) (quoting United States v. Dean, 59 F.3d 1479, 1492 (5th Cir. 1995)). 3
Because the use of appellant’s nickname is not character evidence, there is no reason
for this court to look beyond appellant’s clear waiver.

2. Right to Remain Silent

During closing argument, trial counsel stated the following:

Who is so many people’s source of information in this
case, who didn’t walk into this courtroom and talk to you
-- 95 percent of the time, what was the answer when
asked? “[Appellant] told me.” “[Appellant] told me that
the initial report was just domestic violence.” If you’re
Brandon Hobgood, “[Appellant] called me and told me
that [WB] said these things.” If you’re [appellant’s]
family, Kristin Beilman or her husband, “Well, we met

3
In Farmer, the trial judge overruled the defendant’s objection to the use of his
nickname, “Murder,” even though he was charged with murder and attempted
murder. 583 F.3d at 135. The appellate court found “the main problem was not the
admission of the nickname into evidence. Rather, it was the prosecutors’ frequently
repeated, gratuitous invocation of [the] nickname” that “amounted to a ‘flagrant
abuse.’” Id. at 146-147 (quoting United States v. Coriaty, 300 F.3d 244, 255 (2d
Cir. 2002)). In Farmer, the nickname “Murder” was used nearly thirty times in the
rebuttal argument. Id. at 144. In the case at hand, appellant’s nickname is not
repeated frequently nor is it a gratuitous invocation rising to flagrant abuse.
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[WB] twice; but [appellant] told us these things about
her.”

[WB] is isolated, and she is not controlling the dialogue.
[Appellant] is controlling the dialogue. And you saw that,
too. Watch that CID video. Watch that push of
information. Watch that display with [Special Agent AT]
about what he knows and how he knows it. It’s exactly
what [WB] feared. And it is reasonable to think, “If I
leave and the person -- if I call someone and the very
person they are going to turn to, to find out what’s going
on is linked with my husband, who am I really turning to
at all?” That isn’t an option. She doesn’t have an option.

Defense counsel did not object to this portion of trial counsel’s argument.
After trial counsel finished her closing argument and before defense started his
argument, the military judge sua sponte excused the members and stated the
following:

[MJ:] Counsel, during closing -- and it may have been
inadvertent and I may be paraphrasing here but I believe
the statement was made, “Who is the person giving them
all the information, who didn’t walk in here and talk to
you? [Appellant].” I mean, I don’t know -- I may have
misinterpreted that.

ATC: No, sir. That was not what I -- yeah.

MJ: But I didn’t raise it then. I didn’t hear an objection.
Obviously, my concern is, you know, it could be
interpreted as a comment on the accused’s failure to
testify.

Defense, do you want me to give any kind of curative
instruction based on that?

....

CDC: Judge, I heard it the way you heard it. I heard it as
an impermissible instruction on the accused’s failure to
testify. We didn’t want the instruction.

MJ: No. I understand. That’s why ----

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CDC: Now we are put into a bit of a box because we have
to make a decision on something that the government put
in. I’d like to be able to speak to my [co-counsel] and see
what we can proffer up to be a reasonable -- see if there is
any solution. We didn’t poison the well, Judge,
obviously.

MJ: I understand, and I don’t think it was an intentional if
it was ----

CDC: I’m not saying it was but ----

MJ: I understand.

CDC: But I heard it in the same vain you did.

....

MJ: May I listen to the tape?

[The court reporter conferred with the military judge.]

MJ: Court’s in recess.

The military judge recessed the court-martial and held a R.C.M. 802
conference during which the parties and the military judge listened to the audio
recording of trial counsel’s closing argument. Following the recess, the military
judge held an Article 39(a), UCMJ, session during which the following ensued:

[MJ:] During the recess, both I and counsel listened to the
audio. I believe it can be interpreted a couple of different
ways. One as was described, another with respect to a
voice inflection and intonation and pause in the argument.

Also during the [R.C.M. 802 conference], I believe
defense counsel indicated something that might alleviate
the problem during the next session.

Is there anything that either party wishes to add to this on
this issue?

TC: No, Your Honor.

CDC: No, Your Honor.

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ATC: Actually -- I apologize, sir. Just to make -- that the
defense’s plan was to do that prior to any of this popping
up on the record either. You know what I mean, it wasn’t
like ----

MJ: Right.

ATC: ---- this concern changed the tides or anything like
that.

MJ: Okay. Thank you, Government.

Defense counsel offered no additions or corrections to the military judge’s
summary of the R.C.M. 802 conference. When the court-martial was called to order
and the panel returned, defense counsel gave his closing argument in which he
stated: “[Appellant] didn’t testify in this case because that says it best. That video 4
was pure and raw and honest. There was no need.”

Based on the facts in this case, we conclude appellant waived his right to raise
this issue on appeal. “Waiver is different from forfeiture. Whereas forfeiture is the
failure to make the timely assertion of a right, waiver is the ‘intentional
relinquishment or abandonment of a known right.’” Gladue, 67 M.J. at 313 (quoting
Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). When the military judge directed
defense counsel’s attention to trial counsel’s potentially improper argument, the
right to object became a “known right.” After listening to the audio recording of
trial counsel’s argument and conferring with co-counsel during a recess, appellant,
through counsel, intentionally abandoned his right to object and obtain a judicial
remedy. Instead of a judicial remedy, defense counsel chose to address the
potentially improper argument with counter-argument. 5

Even assuming appellant preserved this issue for appellate review by simply
agreeing with the military judge, we find neither error in nor prejudice from trial
counsel’s argument. As the military judge correctly observed, trial counsel’s
comments could be interpreted multiple ways. In its full context, trial counsel’s

4
The video of appellant’s interview with CID was admitted into evidence and played
in its entirety during the government’s case.
5
Defense counsel claimed during the Article 39(a), UCMJ, session that he
recognized trial counsel’s potentially improper argument before the military judge
intervened sua sponte. Defense counsel also indicated during the R.C.M. 802
conference that he originally intended to address the potentially improper argument
with counter-argument. Essentially, the military judge’s intervention did not change
defense counsel’s initial preference to forego a judicial remedy.

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reference to appellant as the common source of information for defense witnesses,
“did not manipulate or misstate the evidence, nor did it implicate other specific
rights of the accused such as the right to counsel or the right to remain silent.”
Darden v. Wainwright, 477 U.S. 168, 182 (1986). Even if this argument indirectly
or by innuendo commented on appellant’s exercise of a fundamental right, the
comments were a reasonable inference drawn from the testimony of Mr. Hobgood,
Mrs. Beilman, and Mr. Aaron Beilman.

Further assuming constitutional error, we are convinced beyond a reasonable
doubt appellant suffered no prejudice. After the defense team consulted with each
other during a recess, they made a tactical decision to decline a curative instruction
from the military judge. Instead, defense counsel chose to address the issue with
counter-argument, which was their original strategy. In short, the military judge not
only elicited defense counsel’s preferred remedy on the record, he also acquiesced to
their post-consultation preference.

Under the circumstances of this case, we find appellant failed to preserve a
claim of error by merely agreeing with the military judge’s sua sponte identification
of potential error. Even assuming, arguendo, appellant did not waive the issue, we
find no error and no prejudice. Accordingly, appellant is not entitled to relief.

B. Ineffective Assistance of Counsel

Whether counsel provided ineffective assistance is a question of law reviewed
de novo. United States v. Datavs, 71 M.J. 420, 424 (C.A.A.F. 2012) (quoting United
States v. Gutierrez, 66 M.J. 329, 330-31 (C.A.A.F. 2008)). “Even under de novo
review, the standard for judging counsel’s representation is a most deferential one.”
Harrington v. Richter, 562 U.S. 86, 105 (2011) (emphasis omitted).

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 that
his counsel was ineffective, appellant must satisfy the two-part test, “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 v. Washington, 466 U.S. 668, 687 (1984)).

Judicial scrutiny of counsel’s performance must be highly
deferential. 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
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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; that is, the defendant
must overcome the presumption that, under the
circumstances, the challenged action might be considered
sound trial strategy. There are countless ways to provide
effective assistance in any given case. Even the best
criminal defense attorneys would not defend a particular
client in the same way.

Strickland, 466 U.S. at 689 (internal quotation marks and citations omitted).

The Strickland framework was adopted by the military justice system and
further developed into a 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 tactical 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.’”).

Moreover, our review of ineffectiveness is not based on a single act of
counsel, but by considering counsel’s overall performance. See United States v.
Murphy, 50 M.J. 4, 8 (C.A.A.F. 1998) (“When we look for effective assistance, we
do not scrutinize each and every movement or statement of counsel. Rather, we
satisfy ourselves that an accused has had counsel who, by his or her representation,

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made the adversarial proceedings work.”). Similarly, where an appellant was
represented by multiple counsel, their performance is judged as a team, not by
considering only one or more individual counsel. United States v. McConnell, 55
M.J. 479, 481 (C.A.A.F. 2001).

Regarding counsel’s performance after findings, “defense counsel may be
ineffective at the sentencing phase when counsel either ‘fails to investigate
adequately the possibility of evidence that would be of value to the accused in
presenting a case in extenuation and mitigation or, having discovered such evidence,
neglects to introduce that evidence before the court-martial.’” United States v.
Alves, 53 M.J. 286, 289 (C.A.A.F. 2000) (quoting United States v. Boone, 49 M.J.
187, 196 (C.A.A.F. 1998)). When assessing the second prong, appellant “‘must
show that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.’”
Green, 68 M.J. at 362 (quoting Strickland, 466 U.S. at 698).

In this case, appellant was represented by a military defense counsel (DC), an
individual military counsel (IMC), and a civilian defense counsel (CDC). During
the trial, the CDC became ill and was taken to a hospital. Although the CDC later
returned to trial, he was not present when the panel announced its findings. In
addition, the CDC was not present during presentencing because he was excused by
appellant since the DC and IMC “were comfortable” going forward without him.

On appeal, appellant, both personally and through appellate defense counsel,
alleges his trial defense counsel were ineffective during presentencing because they
did not prepare for the possibility of his conviction. Specifically, appellant claims
his defense counsel failed to investigate possible matters in extenuation and
mitigation, identify a sufficient number of potential witnesses, prepare and control
the few witnesses who did testify, present a “good soldier book,” and advise him to
apologize in his unsworn statement.

1. Investigating Matters in Extenuation and Mitigation, and Presentencing
Witness Identification and Preparation

In his affidavit, appellant states:

Everyone on my defense team was blown away by the
findings. They only considered the possibility of an
assault of my wife as a possible conviction. They did
minimal pre-trial sentencing preparation based only on
that possibility. When the findings were announced, there
was total disbelief from my counsel. They were totally
unprepared to handle a sentencing case that involved sex
offense convictions.
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....

At no point in the preparation of the case did my defense
counsel ask about witnesses who would testify to
accomplishments of my military career. We discussed
character witnesses for the merits portion of the case, but
we never discussed calling witnesses who could describe
the things I did during my military career. We did not
even put together the sentencing materials until we were
waiting for findings to be announced. They had a
paralegal print out photographs for me to submit.

First, we reject appellant’s factual assertion that sentencing was not
considered until after findings. Appellant acknowledges as much in his affidavit:

The first time I had a substantive conversation about pre-
sentencing proceedings with my counsel was when I
brought up sentencing about a week or a week and a half
before my court-martial. I asked them what we were
going to do if I was convicted of any of the charges. I
asked them specifically about a Good Soldier Book. They
said we should probably get something together, including
letters of support and awards. However I was the person
who reached out to people through email and Facebook
asking for letters of support.

(emphasis added). In the post-trial affidavits ordered by this court, the IMC and DC
admitted they, too, were “shocked” and “surprised” by the verdict. However, despite
their disappointment, it is clear from the record and defense counsel’s sworn
affidavits that their strategic decision to raise the “good soldier defense” on the
merits involved the investigation and presentation of evidence typically reserved for
presentencing. As our superior court has held, even defense counsel’s post-findings
surprise and regret, without more, do not establish deficient performance by counsel.
See United States v. Smith, 48 M.J. 136, 137-38 (C.A.A.F. 1998) (“We hold that the
assertions of appellant’s trial defense counsel, which reflect counsel’s remorse and
disappointment with the ultimate resolution of the case, do not establish ineffective
assistance of counsel under [Strickland.] . . . A post-trial attack, even when self-
initiated by trial defense counsel, requires more than counsel’s regret as support.”).

Second, appellant has failed to show a reasonable probability his sentence
would have been different even if his claims were true—that his counsel were
“unprepared to handle a sentencing case that involved sex offense convictions” as
opposed to one that involved “an assault of [WB.]” The “good soldier defense” his
counsel put forth was equally applicable during presentencing to sex offense

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convictions as domestic violence convictions. Specifically, defense counsel called
ten witnesses who testified about appellant’s good military character. Defense
counsel also used a government witness to discuss appellant’s good duty
performance. Although testifying on the merits, these witnesses covered appellant’s
entire military career, including his time as a field artillery officer and a judge
advocate. They testified about his good duty performance at various duty locations
including his deployment to Iraq and his attendance at The Judge Advocate
General’s Officer Graduate Course.

Defense counsel referenced the testimony of these witnesses in their
presentencing argument. The military judge instructed the panel prior to sentencing
they could consider all the witnesses who testified on the merits as to appellant’s
character. Accordingly, it was a reasonable tactical decision for defense counsel not
to recall all of these witnesses during presentencing. In similar circumstances, our
superior court has found counsel’s decision to reference, rather than repeat, the
earlier testimony of a merits witness was not ineffective for sentencing. See United
States v. Perez, 64 M.J. 239, 244 (C.A.A.F. 2006) (“[W]e note that defense
counsel’s sentencing argument expressly referenced the ‘good soldier’ testimony
that the witness had provided during the findings portion of trial. Moreover, by
referring to earlier testimony rather than recalling the witness, the defense was able
to avoid the risk of cross-examination.”).

In addition to documentary evidence and appellant’s unsworn statement,
defense counsel did recall three witnesses during presentencing—Dr. Mark
Whitehill, a licensed psychologist and certified sex offender treatment provider;
Mr. Galen Burris, appellant’s father; and Mrs. Beilman, appellant’s sister.
Dr. Whitehill explained his clinical assessment that appellant has a personality
disorder, but is a low-level risk to reoffend and commit sexual violence. Even
ignoring whether his testimony offers further proof counsel were prepared for a
sentencing case involving sex offenses, appellant has failed to show what else
Dr. Whitehill could have testified to if he had been more fully prepared by counsel. 6

6
While appellant asserts that Dr. Whitehill only spoke with him between the
announcement of findings and the presentencing proceedings, it is clear from the
record that Dr. Whitehill prepared for testifying as an expert witness. Dr. Whitehill
reviewed the complete report from appellant’s mental examination by the
R.C.M. 706 board. Although the government elicited information pertaining to
appellant’s personality disorder, this is not evidence of a lack of preparation. The
DC admits in her affidavit that she considered this matter prior to calling
Dr. Whitehill and made a tactical decision to call him because she believed the
benefits from his opinion about appellant’s low risk of recidivism outweighed
information about a personality disorder.

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Although appellant attempts to show prejudice by reference to other
witnesses, we find those efforts similarly inadequate and mere speculation.
Appellant admits he did not provide counsel with a list of “numerous individuals
who” he claims “would have testified on [his] behalf in sentencing.” While
appellant now states his desire to call additional witnesses, with the exception of his
sister, there are no affidavits confirming the desired witnesses were willing to testify
favorably on his behalf. Essentially, appellant asks this court to presume he was
prejudiced when counsel failed to discover unspecified witnesses or recall merits
witnesses to provide unspecified testimony. We cannot presume what appellant has
the burden to show. See Alves, 53 M.J. at 289-90.

2. Control of Witness Testimony

Appellant now claims counsel did “almost no preparation with my sister
[Mrs. Beilman.]” He believes his sister should have been asked about aspects of his
life including: his childhood, times he defended women against violence, rescued
animals, coached a girls soccer team, and his numerous volunteer activities. He also
alleges his counsel did not discuss with Mrs. Beilman the relevance of attacking WB
and the trial counsel, or the wisdom of commenting “about evil women or what it
would be like to be married to an evil woman.”

Mrs. Beilman submitted an affidavit in which she stated, “I recall [the IMC]
approaching me and asking me if I was going to be able to testify for [appellant’s]
sentencing as I was noticeably distraught and crying, but he did not prepare me.”
She further states:

I know that [appellant] was wrongfully convicted. I have
regrets about some of the statements I made during my
sentencing testimony and I believe that my words, while
spoken in grief, are not in my true character and also
contributed to the length of [appellant’s] sentence. I
really had no understanding how all the words I said on
the stand could affect that decision. Prior to [the IMC’s]
affidavit I had never heard the term “impeaching the
verdict.” When I testified in the sentencing proceeding I
simply reacted to the pain that I and my family were
experiencing. I was not guided through the range of
emotions I was experiencing or helped to convey the
message I really wanted to.

If I could do it again, my testimony would be different.

While Mrs. Beilman’s post-trial reflection on her testimony with the benefit of
hindsight is understandable, we cannot rely on the same benefit in our appellate
review. Furthermore, her belief, no matter how deeply felt, that the panel increased
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appellant’s punishment because she “impeached the verdict” and criticized the trial
counsel is speculation. In contrast to her post-trial assessments, her claim that she
was inadequately prepared by counsel before testifying during presentencing
requires closer examination of the record.

During presentencing, Mrs. Beilman was very responsive to the IMC’s
questions despite the fact she was emotional and crying. After she answered the
IMC’s final question, neither the government nor the panel members had any
questions for her. As she was about to be permanently excused, Mrs. Beilman asked
the military judge, “May I say something?” The military judge responded,
“Counsel? You can answer questions from counsel.” She responded, “I will.” It is
clear from the context that Mrs. Beilman’s request to make a final comment was not
planned. At this juncture, the IMC had little time to make a critical decision in front
of the panel. The IMC could have concluded his examination without giving her the
opportunity to express her final thought. However, this may have left the panel
confused and possibly prompted a panel member to ask a question to allow her to
continue to speak. If counsel had chosen this tactic, we could be faced with a
similar question whether counsel were ineffective because they prevented a witness
from providing additional mitigation evidence. In the alternative, the IMC could
have requested a recess to determine what Mrs. Beilman wanted to say, but even if
granted it could undermine her testimony as overtly crafted and prescreened. Under
these circumstances, the IMC made a tactical decision to permit her final comment
and asked, “Ma’am, do you have anything else you want to say?” The following
colloquy occurred:

A: Yes. When his oldest daughter was a few years old,
[appellant] was in law school; and he was studying hard
and he was exhausted. . . .

....

And for [WB], [DB] was proof that he could have
children. That’s what [DB] was to [WB]. And her time
was running out. I am a woman, and I know women. And
I’m ashamed to be one of them sometimes because they
have no moral class anymore.

And for [WB], once she got her kids, I always knew that
for her if it worked out, it worked out. And, if not, she
had Daddy welfare; and that is who [WB] is. And she
managed to sit up here and cry those tears. They are not
real -- they’re not real.

And that prosecutor -- that blonde prosecutor with the
bun, can smirk during my testimony and comment that -- I
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see something in someone’s eyes -- so disrespectful. And I
want you to think about this and that when you sleep --
and when my niece’s grow up, maybe they’ll marry your
son. Then you’ll know what it feels like to know an evil
woman ----

MJ: Counsel?

WIT: I’m done. [Crying.]

IMC: Thank you, ma’am.

WIT: My brother is worthy of wonderful things in his
life. [Crying.]

I love you, and I am proud of you. And you keep fighting
because you’re my hero.

[Pause.]

MJ: Let’s take a brief recess. Court’s in recess.

[The witness withdrew.]

(emphasis added). Appellant’s criticism of the IMC’s decision to permit
Mrs. Beilman’s to make a final comment is based entirely on hindsight. Even in
hindsight, the IMC believes he made the correct decision in not abruptly terminating
Mrs. Beilman’s final statement. The IMC states in his affidavit:

I did not intervene because in my personal and
professional opinion, the panel got it wrong; I felt that any
uneasiness by panel members in their findings may
potentially have resulted in a more lenient sentence.
Moreover, I figured that allowing a third party witness to
impeach the verdict versus doing it myself – or through
[appellant] – would be an effective way to plant the seed
while not overtly making that argument, potentially
offending the members. In other words, as litigation
strategy, I attempted to walk the fine line.

We do not rely on the hindsight of appellant, the witness, or counsel to
resolve this question. It is clear from the record of trial that Mrs. Beilman was
sufficiently prepared to understand counsel’s questions and, apart from her
impromptu concluding remarks, to provide favorable testimony. Without more, an
affiant’s post-trial regret and speculation, like lack of memory, are far too equivocal

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and ambiguous a complaint to overcome the strong presumption of counsel’s
competence. See United States v. Key, 57 M.J. 246, 249 (C.A.A.F. 2002) (finding
broad, generalized accusations from an affiant are insufficient to prove counsel were
ineffective). Moreover, there is no evidence to suggest the panel rejected the
military judge’s instructions on the proper basis for a sentence and instead punished
appellant for the errant comments from his sister.

3. Good Soldier Book

There is no blueprint for the contents of a “good soldier book.” Although not
in book format, defense counsel submitted twelve letters of support and appellant’s
military awards and certificates, which included two Bronze Stars, a Meritorious
Service Medal, a Joint Service Commendation Medal, and two Army Achievement
Medals. Defense counsel also submitted appellant’s academic awards and
certifications from the Texas Tech University School of Law. In addition, the panel
received pictures of appellant with his family and appellant’s officer record brief.
These documents, combined with the “good soldier” testimony on the merits, paint a
picture of appellant’s military career and served the same purpose as a “good soldier
book.” Although appellant notes he had to request letters of support, this is not an
uncommon or unreasonable practice as appellant would know people who would be
willing to support him. Significantly, appellant does not proffer any additional
evidence he wanted to submit on his behalf. Accordingly, appellant has failed to
show deficient conduct or prejudice.

4. Unsworn Statement

While not wholly unfettered, an accused has a broad right to make an unsworn
statement during presentencing, and may not be cross-examined by the trial counsel
or the court-martial. United States v. Grill, 48 M.J. 131, 133 (C.A.A.F. 1998);
R.C.M. 1001(c)(2). While R.C.M. 1001(c)(2)(A) purports to limit an accused’s
unsworn statement to matters “in extenuation, in mitigation or to rebut matters
presented by the prosecution,” this limit has never been strictly enforced in light of
its traditional place as “an important right at military law.” Grill, 48 M.J. at 133.
Accordingly, the unsworn statement remains “an opportunity for an accused to bring
information to the attention of the members or a military judge . . . without ordinary
evidentiary constraints.” United States v. Johnson, 62 M.J. 31, 37 (C.A.A.F. 2005).

Appellant is clear that he briefly discussed with his counsel what he would
say if he made an unsworn statement, which included an emphatic resolve that he
“was not going to apologize for anything.” Instead, appellant exercised his broad
right to make an unsworn statement as follows:

Members of the Panel, thank you. Thank you for listening
to this case. Thank you for deliberating on the evidence
that you heard. Thank you for reaching a decision.
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I want to believe, I have to believe, and I trust that each of
you are great officers, great Americans and you believe
you did the right thing. I trust that.

To the extent that you found me guilty of rape and spousal
abuse, I must apologize to you, because I cannot offer you
an apology. I do not challenge your decision. I do not
challenge any of you. But I have never, nor shall I ever,
admit to having raped my wife or beaten her. Whatever
vestiges of honor I have left, whatever shreds of honor I
may have left, I’m going to fight to cling onto. And one
of those is the truth.

What I did hear, what hurts me unbelievably is that -- that
excessive horseplay, being too rough with my eldest
daughter has caused her any pain, has caused her any
grief and, as the letter you’ve just heard, has caused her to
ultimately hate me.

There is nothing more precious in this world to me than
those that I love, and there is nothing more precious to me
than my three girls. I love them dearly.

As a result of this court-martial, it’s safe to say I will not
be seeing them again. To that end, I would ask one
woman in this courtroom that I see, please take care of
those girls. I will love them beyond my lifetime.

Again, I want to thank you for what you’ve done, and I
trust you did what you felt was right.

In addition to that, though I have just a few friends in the
-- in the gallery right now. I want to say that I have
experienced an unbelievable, overflowing show of
support, trust, faith, confidence, from -- from friends that
I could never have imagined.

At this moment, I should probably feel some kind of -- at
this moment, honestly, I think more than -- I feel more joy
than anything else for the friends and my family that have
supported and have believed me through this entire
process. To that end, thank you.

To my counsels who have been with me so long now, I can
actually call them friend. I am overwhelmed.

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I’m not going to take up more of your time. I’m not going
to ask you to give me some ridiculously short sentence.
You’ve convicted me of some serious things and you need
to think about that and an appropriate sentence.

But I’ve served my country, my community, and my
family, my entire life. I ask that you give me a chance to
return to doing those same things in some capacity at some
point. Thank you.

(emphasis added). Appellant chose not to apologize, as is his right. There is no
requirement for an appellant to apologize during an unsworn statement or forfeit the
right to make one. Confronted with appellant’s emphatic refusal to apologize, it was
reasonable for defense counsel to encourage him to express remorse in his own
words as opposed to pressuring him to make an insincere apology. 7 Ultimately,
defense counsel had no authority to prevent appellant from making an unsworn
statement, or advising him that he must apologize or forego his right altogether.
Absent extraordinary circumstances, these decisions made by counsel are exactly the
type of tactical decisions relevant case law instructs us not to second guess. As
such, we will not do so here.

Under the circumstances of this case, we see no need to order a fact-finding
hearing pursuant to United States v. DuBay, 17 U.S.C.M.A. 147, 37 C.M.R. 411
(1967). The facts in appellant’s allegations—even if true—would not result in
relief. United States v. Ginn, 47 M.J. 236, 248 (C.A.A.F. 1997). Furthermore, “the
appellate filings and the record as a whole ‘compellingly demonstrate’ the
improbability of [appellant’s allegations].” Id. Applying the first, second, and
fourth Ginn principles to appellant’s submission, we reject appellant’s ineffective
assistance claim. In short, defense counsel made objectively reasonable choices in
strategy from available alternatives. Appellant’s assertions that his defense counsel
provided ineffective assistance lack merit.

7
Whether to give an accused the generally prudent advice to apologize to the victims
during an unsworn statement is a tactical decision that requires case-specific
analysis by defense counsel. While the benefits of a genuine expression of remorse
are obvious, a “shallow, artificial, or contrived” expression of remorse can have
potentially negative effects during the government’s rebuttal. United States v.
Edwards, 35 M.J. 351, 355 (C.M.A. 1992).
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CONCLUSION

On consideration of the entire record, the findings of guilty and the sentence
are AFFIRMED.

Senior Judge TOZZI and Judge CELTNIEKS concur.

FOR THE COURT:
FOR THE COURT:

MALCOLM H.
MALCOLM H.SQUIRES,
SQUIRES,JR.JR.
Clerk of
Clerk ofCourt
Court

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