United States v. Gardiner
201600337
| N.M.C.C.A. | Dec 28, 2017Background
- Appellant convicted at a general court-martial of multiple specifications of aggravated sexual abuse and sexual assault of his stepdaughter (charges under Arts. 120 and 120b, UCMJ); sentence: 25 years confinement, total forfeitures, reduction to E-1, dishonorable discharge; convening authority approved.
- Alleged abuse occurred 2011–2014 when the victim (HS) was 13–15; government presented HS, the victim’s mother (JG), physical evidence (hotel receipt for 5 July 2013), and photos including a distinctive ceiling tile at the appellant’s work center identified by HS.
- Defense called one witness (a coworker) and introduced a house diagram; appellant later submitted declarations claiming trial counsel prevented him from testifying and failed to call several defense witnesses and an expert.
- Trial defense counsel (TDC) submitted an affidavit explaining tactical reasons for not calling family members, an expert psychologist, the victim’s boyfriend, and other witnesses (concern about damaging cross-examination, opening door to harmful evidence, and limited value of testimony).
- Military Court of Criminal Appeals applied Strickland/Ginn frameworks, reviewed trial record and affidavits, and found the TDC’s choices were reasonable tactical decisions; also found the appellant did not rebut the presumption that counsel honored the appellant’s right to testify.
- Court rejected three supplemental Grostefon assignments (biased panel, NCIS agent testimony beyond knowledge, Jencks Act violation) as without merit and affirmed findings and sentence.
Issues
| Issue | Appellant's Argument | Government / TDC Argument | Held |
|---|---|---|---|
| Ineffective assistance for failing to call family witnesses (JG, SG, AS) | TDC failed to call available pivotal witnesses who would have created reasonable doubt | TDC feared testimony would harm defense (JG inconsistent, AS could open door to porn to minor, SG emotional and would highlight unexplained hotel receipt); strategic decision | No deficient performance or prejudice; tactical choices reasonable and will not be second-guessed |
| Failure to call defense expert (Dr. MW) on merits and sentencing | Expert would explain victim’s sexual knowledge could be from peers (not appellant) and low recidivism risk for sentencing | TDC worried expert testimony would open harmful cross-examination, suppressed evidence, or diagnostic findings that could hurt sentencing | No error; reasonable to forego expert given potential harm and deference to counsel’s judgment |
| Denial of appellant’s right to testify | Appellant asserts he was told he would testify, received minimal prep, then was not allowed to testify | TDC says he conducted multiple prep sessions, advised against testifying due to cross-examination risk, asked appellant who acquiesced; record shows recesses and Article 39(a) opportunities to object | Claim improbable under Ginn/Dewrell; appellant failed to show counsel overrode his unequivocal desire to testify; no relief warranted |
| Supplemental Grostefon claims (biased panel, NCIS agent testimony beyond scope, Jencks violation) | Panel was prejudiced/ inflamed; NCIS agent testified outside knowledge; government withheld family advocacy statements (Jencks) | Government and record show no prejudice, testimony within scope, and no Jencks violation established | Rejected as without merit; no relief granted |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong ineffective assistance standard: deficient performance and prejudice)
- Ginn v. United States, 47 M.J. 236 (C.A.A.F. 1997) (standards for resolving post-trial affidavits alleging ineffective assistance)
- Akbar v. United States, 74 M.J. 364 (C.A.A.F. 2015) (deference to tactical decisions on witness calls)
- Green v. United States, 68 M.J. 360 (C.A.A.F. 2010) (applying Strickland in courts-martial)
- Mazza v. United States, 67 M.J. 470 (C.A.A.F. 2009) (strategic decisions by counsel not second-guessed absent unreasonableness)
- Datavs v. United States, 71 M.J. 420 (C.A.A.F. 2012) (trial counsel performance not deficient when reasonable strategic risks are taken)
- Adams v. United States, 59 M.J. 367 (C.A.A.F. 2004) (presumption of competent performance by counsel)
- Paxton v. United States, 64 M.J. 484 (C.A.A.F. 2007) (defense counsel strategy review framework)
- Perez v. United States, 64 M.J. 239 (C.A.A.F. 2006) (deference to tactical choices)
- Curtis v. United States, 44 M.J. 106 (C.A.A.F. 1996) (warning against hindsight review of strategic choices)
- Dewrell v. United States, 55 M.J. 131 (C.A.A.F. 2001) (relying on record to resolve conflicting post-trial claims about right to testify)
- Belizaire v. United States, 24 M.J. 183 (C.M.A. 1987) (right to testify belongs to accused)
- Clifton v. United States, 35 M.J. 79 (C.M.A. 1992) (standards for reviewing supplemental assignments of error)