United States v. Davis

STATES, Appellee, UNITED DAVIS, Lieutenant

Charles W.

Commander, Navy, U.S.

Appellant.

No. 98-0497.

Crim.App. No. 96-0585. Court

U.S. Armed Forces. May

Argued Sept.

Decided

THREAT OR INTIMIDATION NECES- SARY FOR FINDINGS OF GUILT OF RAPE OR FORCIBLE SODOMY DUR- ING THE CHARGED PERIODS OF TIME IN THE LIGHT OF VICTIM’S “TENDER YEARS.” II COX, C.J., opinion delivered the Court, SULLIVAN, in EFFRON, WHETHER APPELLANT WAS DE- JJ., joined. CRAWFORD, GIERKE and NIED HIS SIXTH AMENDMENT JJ., dissenting opinions. filed RIGHT THE TO EFFECTIVE ASSIS- Appellant:

For Richard A. Monteith and TANCE OF COUNSEL DURING SEN- Harris, JAGC, Lieutenant Dale 0. TENCING. USNR (argued); Lieutenant L. Eichen- Jennifer muller, JAGC, (on brief); USNR and Lieu- FACTS Ahmad, Syed JAGC, tenant N. USNR. appellant’s The victim this case was Appellee: For Lieutenant William C. stepdaughter, charges J.D. The arose fol- Minick, JAGC, (argued); USNR Colonel lowing appellant’s arrest at a time J.D. had Sandkuler, USMC, Kevin M. and Command- already left home college. Appel- to attend (on Irvin, JAGC, Eugene brief); er E. USN lant tried to university. visit J.D. at her She Kovac, Captain Paul D. USMC. did not want to see and called uni- versity police. security police respond- (cid:127) Judge Chief COX opinion delivered the ed, finding weapon and after a loaded the Court. vehicle, They arrested him. also Appellant, Navy Lieutenant Commander photo- found a number of nude Polaroid with over 15 service the time of graphs of daughter, cap- some of which trial,1 general was convicted at a court-mar- appellant engaging tured in various sexual (after child; raping rape tial of the child acts with photographs her. These were the 16); (2 age sodomy specifi- reached forcible charges basis for the committing indecent cations); taking indecent liberties on a child acts, taking indecent liberties with a (2 specifications); committing indecent minor, appellant pleaded offenses to which (2 specifications), acts against all committed guilty. adopted daughter. He was sentenced partial members to confinement for life and Issue forfeitures. The convening authority ap- proved sentence, suspended the for- Appellant asserts that confusing na- feitures. On December the Court degree-of-force ture of the instructions with of Criminal findings affirmed the respect rape to the offenses of and forcible and sentence. 47 MJ 707. sodomy permitted dispense the members to acthal force. an Such agreed

We to consider two issues: tion, years” combined with the in- “tender struction, is, according appellant, wholly unjustified based on the evidence victim, WHETHER THE Appellant’s MILITARY adopted daugh- JUDGE ease. ter, ERRED BY THE years, underdeveloped, INSTRUCTING MEM- was not of tender BERS, OVER unintelligent; APPELLANT’S OBJEC- argues TION, THAT THEY SHOULD testimony EVALU- the victim’s of violence FORCE, ATE THE parental discipline DEGREE OF threat rather or au- military The Staff Advocate's recommendation lant’s service record indicates that his 23, 1996, January represents began dated service on October and consent. See elements of force thority. this error Appellant concludes that (CMA Palmer, 7, 9 33 MJ found harmless. cannot be 1991). find error in the no We trial, refer- At moved judge’s instructions. years, “tender mental ence the victim’s development” capacity, knowledge, or mental 47 MJ at 711. findings proposed in- removed from the be Nonetheless, military judge the structions. II Issue motion, pro- concluding the denied the that posed rape the offenses Appellant alleges instruction “for both counsel were ineffec- his sodomy and the offenses —the forcible sod- in given respect to certain advice tive with para- the omy properly offenses does include time conjunction sentencing. At the of out, pointed has to graphs that the defense trial, “passed appellant had over twice” been to the in provide a full framework factfinders promotion and have otherwise been would case, upon ... the that this based evidence apply for of Decem- eligible to retirement as presented has been to this court.” The 1,1994. ber judge gave initially as had the instructions he presented court with two lower Appellate in LVII. proposed them Exhibit conflicting concerning affidavits the effective- instructions, challenged The text of the during ness of to counsel’s advice members, to in given the is set forth the sentencing. According appellant, to opinion Appeals. of the Court Criminal him if the members did not counsel told 710. See MJ at dismissal, he would allowed to be The victim in case testified to a this “I informed [T] retire. LCDR period began of sexual abuse which when she if members allowed to retire the did be approximately years old. While this Ime. no idea that there was not dismiss had “uncharged misconduct” sexual abuse oc might possibility not be allowed prior encompassed by to the curred Appellant’s at 2. Ac- to retire.” affidavit court-martial, charges it was of before present- cordingly, in his unsworn statement appel purpose fered for a limited to show sentencing phase the court- during ed Further, “plan, design, or scheme.” it martial, appellant asked the court members put testimony into the victim's context that dismissal, to so that he not sentence to cornered, trapped, had she “felt [and] and, therefore, sup- could be able retire [appellant] do what With the evidence said.” exchange, port family. he asked the in posture, cannot be said that lengthy him to members to sentence a more military judge rendering erred construc period they of confinement otherwise tender-years foree/parental tive control and apparently would have. members com- they instructions as related to the force ele However, plied request. according rape ments sodomy. of both and forcible Government, “appellant was subse- have also reviewed the content of We administratively processed at a quently the instructions rendered. Constructive Inquiry, an other than Board of received force, will, acceding to parental and tender discharge, and was denied honorable years presented as alternatives to actu were Answer Final Brief at tirement benefits.” force, dispense al not as an invitation to 14. necessity finding the force element of contrast, asserted, By defense Thus, counsel rape sodomy. we both forcible they through joint their agree with this conclusion the Court of “a in his Appeals: verdict ease Criminal advised not a dismissal would not which did include Significantly, judge’s retirement, ensure his but instead parental finding tions did mandate salvage step attempting first permitted compulsion, merely family’s Affidavit of defense future.” implications members understand conduct, occurred, counsel such to find it at Ginn, In United States v. MJ 236 giving any of service. Without con-

(1997), required this Court Courts sideration to the affidavit of his two de- Criminal to order a factfinding hear- quite fense we find incredible the ing when conflicting faced with affidavits. claim that he had no idea that However, [appellant’s] “if the affidavit retire, is fac- allowed to if his tually adequate on its face but appellate sentence did not include a dismissal. filings and the record as a ‘compelling- whole supported 713.2 The lower court ly improbability demonstrate’ the of those footnote, in a which averred: facts, the Court discount those factual It knowledge among was common affected assertions and decide the issue.” Id. at that unlike retirement based on duty, of active TERA was and highly remains a discre-

The standard of review of a claim of tionary program with the service secretary ineffective assistance of counsel is that set concerned, requiring application, individual by Supreme out Court in Strickland v. review, individual discretionary ap- 668, Washington, 687, 466 U.S. 104 S.Ct. proval. (1984).. 80 L.Ed.2d 674 (CMA Scott, 24 1987); MJ 186 see also 47 at n. 713 7. (1995); Ingham, United States v. 42 MJ 218 only lower court’s assertion not lacks McCastle, United States v. 40 MJ 763 record, support in the but also it is under- (AFCMR 1994), affd, 43 MJ 438 by mined documents attached to the record two-pronged first, test of Strickland requires reflecting the challenge Navy serious attor- that demonstrate that his counsel’s neys experienced in interpreting tempo- performance was so deficient that he was not rary retirement statute at issue in this case. functioning as counsel within meaning short, In the court below resolved the matter the Sixth Amendment and that counsel’s con by imputing nonlawyer-appellant to this a objective duct “fell below an standard of degree familiarity personnel law far reasonableness.” 466 U.S. at 104 S.Ct. beyond that by experienced exhibited service Second, appellant 2052. must show that his attorneys, as reflected in the record of trial performance counsel’s “deficient prejudiced appeal. and on the defense.” Id. at 104 S.Ct. 2052. appeal At issue on is under deciding In the issue of ap whether of, standing regarding, counsel’s advice pellant was denied the effective assistance of Temporary Early Authority Retirement counsel, the Court of Criminal con (TERA).3 supplemented *****TERA 10 cluded that it unnecessary to resolve the provided that “[a]n officer of conflict in the grounds affidavits on the applies ... who for retirement recruit, not seaman completing after years more than 20 of active rather a lieutenant commander with may, 15 service ... in the discretion of the Notably, despite protestations 4403(c), that it had not eligibility Section entitled “Additional considered defense counsel’s the lower requirement," requirements perti- lists two court summarized the content of that affidavit in nent here. opinion. a footnote to the 47 MJ at 713 n. 6. authority, Pursuant to this NAVADMIN 09%s promulgated by message Apr dated 25 Temporary Early 3. The Authorify Retirement (sentence 95), proceedings Sept subject: were in (TERA) 23, 1992, by was enacted on October Temporary Early Program Retirement for Offi 102-484, § 4403 of Public Law No. 106 Stat. preamble cers. The states: "This NAVADMIN It is set out in full as note to 10 USC temporary early pro announces retirement § 1293. gram entitlement____” eligible officers in FY-96. It is not an 4403(d) provides: Secretary Section "The military department may prescribe regula- each Paragraph provided eligibility additional policies regarding eligi- tions and the criteria for quirements: "B. An officer who bility is under ad- early by retirement reason of disciplinary pursuant verse ... action under the may [UCMJ] to this section.... Such criteria service, years apply early grade, include factors such as retirement until the and skill.” action is resolved in favor of the member." retired____” have manner that would President, in a to effect within be order forces, appellant. is TERA amended What a drawdown to the attention come provide of “offi- perspective for retirement important statute most years 15 but less than 20 least cer[s] complex legal anal- present appeal is that the years’ ‘at substituting least of service the fact ysis decision and accompanying the ” years’ for ‘at least statute. options treated as these matters were Correspondence indicates unreasonable for the in the record that it was demonstrate Bureau Naval Personnel wrestled average that the presume court below question of whether in 1993 with the officer, officer outside particularly an years more with 15 entitlement officers channels, known personnel would have service, who for retirement were less retirement-eligible officers with program, temporary treated of service who treated the same manner officers retirement-eligible differently from more for retirement with 20 or more than 20 of service. A permanent law.4 years of service under affidavit from trial defense by an Assistant Chief of Naval memorandum Government, Personnel, 22, 1993, further helping rather than September noted dated year a “20 an entitle- of the court below. undermines decision and that officer for 20 eligible ment” “[a]n The affidavit notes that defense counsel year processed to retirement can by Bureau of Naval Person- been advised grade.” determine retirement The memo- policy “pending, largely nel that was analysis randum included a detailed change input subject and to unclear to specifically “requirement noted the within Bureau.” from various factions in lieu of retirement-eligible retire a officer Bureau’s sim- affidavit from the counsel discharge” permanent under the law. telling ply notes that he “cannot remember The memorandum from the Assistant subject unclear to her that the issue was and provided of Naval the Chief Chief Personnel year to change,” but that it took over a adds options of Naval Personnel with two concerning develop policy retirement than members more but less facing disciplinary or action adverse 20, years eligible of service while otherwise these temporary program. under Under pro- temporary for retirement under the circumstances, clearly erred the court below (1) gram: persons facing “potential treat or was suggesting the law so clear pending administration action” [sic] adverse position is not credible. in the same as those with or more manner (2) service; appel- program or treat The record of trial is consistent with unique “disapprove” requests for retire- was assertion that he informed by persons “potential pending if be allowed to retire counsel that would disciplinary ac- adverse administrative and/or did a dismissal. De- the court chose tion.” Chief of Naval Personnel appellant dur- questioning fense counsel’s option. the latter Because decision-mak- largely on ing his unsworn statement focused ing process generated as of a was a result preservation of his retirement benefits: officer, like- personnel action another it is Davis, DC: Lieutenant Commander matter, ly that it was treated as an internal you are for retirement? nothing in the to indicate and there is record Yes, I widely am. ACCUSED: decision disseminated (Feb. 1996) (codified pertinent part at Subsequent appellant's to court-martial 1167). 1161(b)(2) provision attorney-client §§ 10 USC This discussions at issue legislative authority under present appeal, was cre- was intended address circumstances new then-existing person law could contin- permit separation of an in which ated to administrative confinement, duty, pay drawing facing active long-term even if ue to remain on officer allowances, despite long-term con- a sentence to not include Na- officer’s sentence did Cong., 1st S.Rep. Act Year finement. See No. 104th tional Defense Authorization for Fiscal 104-106, 563(b)(1), 245-46 110 Stat. Sess. Pub.L. No.

$ $ retirement under TERA should treated ^ the same as an officer Okay. you DC: Would rather have more law, permanent it prison is unreasonable to money time rather than have taken your family? resolve this matter on the basis that any lant should knowledge have had about Yes, I ACCUSED: would. way, tirement, ACCUSED: The same reas —the same for their sary, family dismissal so that DC: direct a third If the members did not daily living expenses. how deposit, deposit ^[*] get you # allotment, or, to administrate you money? could save ensure that sj: give you if neces- your [sic] your was reasonable should The failure to do so was error. counsel determine what advice If, retire as he effect advice. The Court of Criminal have ordered a advised contends, presumptively competent a dismissal was not a conviction on his that he would be allowed appellant factfinding hearing appellant adjudged, rely upon eligibility. given. it you DC: asking Are the members then for agree We also do not with the lower prison more time so that will limit the performance court that counsel’s you forfeitures or to not dismiss so that deficient, appellant prejudiced by was not money go your can family? sentencing. unsworn statement at The lower Yes, ACCUSED: it is [sic]. court stated that argument, In his trial counsel also indicat- received confinement for life ed a belief that would be able to from these members because of retire if a the vile adjudged, dismissal was not stat- offenses, ing: despicable nature of his because calculus in government his unsworn respectfully requests you statement of trading sentence increased confine- prison, this accused to 40 to be dismissed from ment the naval service for lesser forfeitures and no dismiss- based on his heinous acts. He’s retire- Any al. nexus between the claimed lack of and that’s unfortunate. His defense counsel advice or mis-advice as to crimes, pattern repetitive his of criminal possibility the of administrative processing years, strips conduct over almost four adjudged and the sentence is tenuous and will, right, you whatever he had to speculative. retire as a naval officer from the United description 47 MJ at 714. Given the court’s Navy States ... He must be dismissed despicable”— acts as “vile and from the service for these crimes. adjudged and the fact that the members a Significantly, argument trial counsel made no sentence that included confinement for life— they to the members that should dismiss what is remarkable about this case is the appellant because he get be able to absence of a dismissal the sentence. in any During retirement benefits case. explanation The most rational for the mem- sentencing argument, her defense counsel bers’ failure to a dismissal in this implored “protect the [appel- members to they appellant’s request case is that followed family” by sending prison “him lant’s] for give him exchange more confinement in long you necessary, as think is add extra Appellant for no dismissal. has asserted you give family money.” the —to if he had known his retirement would not be Nothing during was said sentencing pro- secure, he request. would not have made this ceeding appellant that indicates was on no- That assertion is sufficient to demonstrate that, despite tice being adjudged no dismiss- prejudice. al, his retirement would remain in peril. Navy- The decision of the United States Corps Marine Court of Criminal

Considering the record as a whole and The trial considering that even set aside. record of is returned to those who adminis- program tered the TERA Advocate for difficulty General of the determining convening authority whether an officer for con- submission to the majority cites no authori- at 204. The disputed ques- 52 MJ hearing to resolve the duct a of Crimi- DuBay, ty proposition that a Court v. for the tions of fact. (1967). USCMA147, make a factual Appeals may not 37 CMR 411 nal knowledge in common matters of regarding authority convening In that the the event no in law or fact Navy. It basis recites hearing he or impracticable, deems such a conclusion, court's other rejecting rehearing on sentence. order a she of the issue. point complexity than to below, proceedings Upon completion all court below were members of the directly to trial shall be sent record of duty active officers on senior Appeals for review. the Court of Criminal much better situated than question and are Thereafter, be returned the record shall say common knowl- what was this Court 67, UCMJ, this Art. Court. at the time. court edge dispute legally that TERA was did not below was common complex; it found that it GIERKE, Judge (dissenting): discretionary. knowledge that it was States United principle fourth Second, previously applied appellant had Ginn, (1997), controls TERA, indicating early retirement The record as whole and the case. poli- generally familiar with that he filings “‘compellingly demonstrate’ late early procedures requesting cies appellant’s post-trial asser- improbability” of TERA. tirement under tions. Third, two mili- I think it incredible that Appellant says his men- counsel never lawyers conduct extensive re- tary possibility an administrative tioned the applicability investigation into search discharge, they unequivocally told appellant, and tell of TERA to then him he would be allowed to retire if he were retiring that he could if he were not count joint not sentenced to In a dismissed. Unlike most claims ineffective they explained say his counsel not assert that representation, does process the administrative elimination incompetent; lawyers negligent eligi- told him they lied to him. he asserts that bility Navy’s interpretation would turn on the phrase mem- “resolved favor view, my takes more than bare Capt Morgan, ber.” The affidavit from professional compe- impugn assertion BUPERS, Navy Legal Assistant Counsel for Appellant’s counsel had tence of counsel. corroborates defense counsel’s affidavit gain lying Appellant nothing to him. respects. Capt Morgan is Although some gain by everything has this incredible vague as dates to the on which consulted attack on counsel. appellant's affidavit defense is consistent with and corroborates the state- CRAWFORD, Judge (dissenting): affidavit that BU- LCDR Tinker’s interpretation phrase PERS’ “resolved Gierke agree the dissent of in favor was unclear at the member” separately point pertinent out and write pending. court-martial statutory regulatory provisions. Both support the advice regulation and statutes agree the court below that might that he not be al given to incredible,” 47 MJ “quite lant’s assertions are his sentence did not lowed to retire 713, First, corut for three reasons. Additionally, 10 include USC discretionary na- below concluded (enacted 1161(b)(2) appel §§ after knowledge. The ture of TERA was common trial), predecessors, which have majority the lower court’s conclu- dismisses years,* permit for tens of Presi- support it “lacks the record.” existed sion because * Goldsmith, 529, jurisdiction enjoin U.S. 119 S.Ct. Court lacked President Clinton v. Cf. 1, dropping officials from Gold- This and other 1541 n. L.Ed.2d drop dent to an officer from the retire, rolls not be allowed to if his sentence member was sentenced to confinement. The did not include a dismissal.” 47 MJ implemented statutes are by Naval Military If any question there is regarding implemen- Personnel Manual Secretary tation of these statutes and the Instruction 1920.6A. It is unfortunate that tion, this Court has option remanding the majority give judicial will not deference question Ap- Court of Criminal below, court,

to the court a factfinding Art. peals, which would be more familiar than this 66(c), Justice, Uniform Military Code of Court 866(e)(1994), § with the implementing as to instructions their that it is “incredible [Davis] had no idea regulations. that he

smith, who was tried in id. at 1161(b)(2). the rolls under 10 USC

Case Details

Case Name: United States v. Davis

Court Name: Court of Appeals for the Armed Forces

Date Published: Sep 30, 1999

Citation: 1999 CAAF LEXIS 1274

Docket Number: 98-0497/NA

Court Abbreviation: C.A.A.F.