United States v. Datavs
2011 CCA LEXIS 425
| A.F.C.C.A. | 2011Background
- Appellant, an AF Special Operations Equipment Maintenance member at Cannon AFB, was convicted by general court-martial of false official statement, forcible anal sodomy, and forcible oral sodomy; sentence: dishonorable discharge, forfeiture of all pay and allowances, reduction to E-1; convening authority approved as adjudged.
- Appellant challenged four issues on appeal; majority affirms with corrective action on improper convening authority action; dissent would grant relief on ineffective assistance.
- Defense sought appointment of a SANE expert; convening authority denied; defense withdrew motion to compel after interviewing SANE; TB testified with injuries supportive of non-consensual acts and was not cross-examined with expert aid.
- Defense argued ineffective assistance under Strickland; trial counsel delayed seeking expert after TB’s testimony changed; majority found deficient performance but no reasonable probability of different outcome.
- Sex offender registration discussed as collateral consequence; military judge excluded it from sentencing arguments; court held no abuse of discretion in limiting discussion.
- Appellant sought reassessment of sentence after improper forfeiture; court reassessed to two-thirds pay per month for two months, plus two-month reduction to E-1; ultimately affirmed sentence as modified.
- Appellant also challenged appellate delay (540 days); court found delay facially unreasonable but harmless beyond a reasonable doubt according to Barker factors.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Effectiveness of counsel for not obtaining SANE expert | Appellant (P) argues deficient trial defense due to lack of SANE expert | Appellee (D) argues strategic choice; withdrawal was reasonable | Deficient performance but no prejudice |
| Withdrawal of motion to compel a SANE expert | P contends withdrawal harmed defense by not addressing TB’s testimony | Counsel acted strategically to limit TB’s vaginal testimony to anal findings | Within reasonable trial strategy; no prejudice to result |
| Sex offender registry as sentencing factor | P asserts registry impact should be considered | Collateral consequence; information insufficient to inform sentencing | Judge did not abuse discretion; collateral impact not proper sentencing factor |
| Improper convening authority action (forfeiture) | Forfeiture exceeded two-thirds pay per month under R.C.M. 1107(d)(2) | Conceivably permissible; reassessment allowed to cure error | Forfeiture corrected via reassessment to two-thirds pay for two months; sentence modified accordingly |
| Sentence severity for non-confinement conviction | Dishonorable discharge too severe without confinement | Individualized consideration; offense gravity supports severity | Sentence not inappropriately severe |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (ineffective assistance standard; two-prong test)
- United States v. Davis, 60 M.J. 469 (C.A.A.F. 2005) (fundamental right to counsel at trial)
- United States v. Polk, 32 M.J. 150 (C.M.A. 1991) (three-part test for assessing defense counsel effectiveness)
- United States v. Warner, 25 M.J. 64 (C.M.A. 1987) (forfeiture/paid status considerations in sentencing)
- United States v. Catt, 1 M.J. 41 (C.M.A. 1975) (invited error doctrine applicable to deliberate waiver)
- United States v. Reed, 54 M.J. 37 (C.A.A.F. 2000) (sentence reassessment standards when error present)