United States v. Smith, ACM 38971

Background

Appellant, a Master Sergeant and acting first sergeant, was tried by general court-martial for misusing a government travel card (guilty plea) and for multiple sexual misconduct offenses involving A1C AH; members convicted him of attempting and intentionally exposing genitalia and maltreating AH, acquitting him of one touching charge.
Adjudged and approved sentence: bad-conduct discharge, six months confinement, reduction to E-3, and a reprimand.
Appellant raised five assignments of error on appeal, principally alleging ineffective assistance of counsel (failure to call witnesses, counsel drafting/delivering an unwished unsworn statement, inadequate sentencing preparation), erroneous exclusion of certain text messages, and legal/factual insufficiency of a sexual-assault conviction.
The Court reviewed affidavits from appellant and his trial defense counsel and a paralegal; defense counsel described extensive pretrial investigation, witness interviews, and strategic decisions about which witnesses to call.
The military judge excluded the text messages at trial (following defense counsel’s objection); appellant later argued that exclusion was erroneous on appeal.
The Court concluded appellant failed to meet Strickland/Moulton burdens to show deficient performance or prejudice, found no error in exclusion of texts, found no sufficiency issue (the sexual-assault specification reviewed was the one of which he was acquitted), and affirmed findings and sentence.

Issues

Issue	Smith's Argument	Government's Argument	Held
Whether counsel were ineffective for failing to call Maj QN and Ms GG to impeach AH	Counsel omitted key witnesses who would have undermined AH’s timeline and credibility	Defense investigated, called multiple witnesses impeaching AH; appellant proffered no specifics or affidavits from the proposed witnesses	Denied — appellant failed to show what testimony would have been given or that omission was prejudicial (Moulton standard)
Whether counsel were ineffective by drafting/reading an unsworn statement against Smith’s wishes	Counsel read an unsworn statement conceding guilt without Smith’s authorization	Written unsworn statement matched oral statement; counsel credibly stated Smith asked counsel to read it when emotional; no specific concession identified	Denied — no evidence counsel acted without authorization or that any purported concession caused prejudice
Whether counsel were ineffective in sentencing preparation/mitigation presentation	Counsel failed to contact or call proposed sentencing witnesses (Maj QN, SrA MH, TSgt AC)	Paralegal and counsel interviewed witnesses; many refused or would have provided unfavorable or damaging information	Denied — Smith failed to specify proffered testimony; defense attempted to contact witnesses and reasonably declined those who would hurt defense
Whether the military judge erred in excluding text messages between Smith and AH	Texts would have rebutted AH’s testimony and were wrongly excluded	Defense objected at trial; judge sustained objection and excluded them; no showing of preserved error favorable to appellant	Denied — appellant invited the ruling by requesting exclusion at trial and cannot complain on appeal

Key Cases Cited

United States v. Green, 68 M.J. 360 (establishes appellate standard for ineffective assistance review in military cases)
United States v. Edmond, 63 M.J. 343 (discusses objective standard of reasonableness for counsel performance)
United States v. Moulton, 47 M.J. 227 (requirement that appellant proffer specific testimony from uncalled witnesses)
United States v. Campos, 67 M.J. 330 (appellant cannot complain on appeal about a ruling the appellant invited at trial)
United States v. Tippit, 65 M.J. 69 (prejudice prong: errors must render trial result unreliable)
United States v. Turner, 25 M.J. 324 (factual sufficiency standard for courts-martial)
United States v. Reed, 54 M.J. 37 (legal sufficiency standard for courts-martial)
United States v. Matias, 25 M.J. 356 (appellate consideration of non-preserved or irregular briefing matters)