Lead Opinion
delivered the opinion of the Court.
A gеneral court-martial composed of officer and enlisted members convicted appellant, contrary to his pleas, of 2 specifications each of rape, sodomy, and indecent acts with a child under the age of 16, in violation of Articles 120, 125, and 134, Uniform Code of Military Justice, 10 USC §§ 920, 925, and 934, respectivеly. The adjudged and approved sentence provides for a dishonorable discharge, confinement for 20 years, total forfeitures, and reduction to the lowest enlisted grade. The Court of Criminal Appeals affirmed the findings and sentence without opinion.
This Court granted review of the following issues:
I
WHETHER TRIAL DEFENSE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL WHEN HE FAILED TO (1) CALL AN EXPERT WITNESS WHO WOULD PROVIDE CREDIBLE EVIDENCE THAT SUPPORTED THE DEFENSE’S THEORY OF THE CASE; (2) CROSS-EXAMINE A NUMBER OF WITNESSES REGARDING PERTINENT FACTS IN DISPUTE; AND (3) STIPULATED TO DAMNING EVIDENCE.
II
WHETHER THE REVIEWING COURT CONDUCTED MEANINGFUL APPELLATE REVIEW WHEN IT FAILED TO ORDER TRIAL DEFENSE COUNSEL TO SUBMIT AN AFFIDAVIT WHEN A VIABLE CLAIM FOR INEFFECTIVE ASSISTANCE OF COUNSEL HAD BEEN RAISED.
For the reasons set out below, we remand for further factfinding and review.
Factual Background
The charges in this case were based on accusations by appellant’s stepdaughter, DW. She was 4 years old at the time of the first alleged incidents, between 5 and 8 years old at the time of the second alleged incidents, and 9 years old at the time of trial.
Appellant and his ex-wife, an Army sergeant, were married for about 5 yeаrs and divorced about 1 year before the court-martial. DW was the natural daughter of appellant’s wife and was about 2 years old when appellant married her mother. The subsequent divorce was the result of frequent separations and deployments, and appellant’s extramarital affair. In a pretriаl statement to agents of the U.S. Army Criminal Investigation Command (CID), appellant characterized the divorce as “coupled with animosity.”
Anticipating a credibility battle between appellant and DW, defense counsel requested the convening authority to employ Dr. Ralph Underwager, a child psychologist, as аn expert witness for the defense. After the convening authority denied the request, defense counsel asked the military judge for relief. Defense counsel represented that Dr. Under-wager would support the defense theory that the accusations were fabricated by explaining the factors that cause а child to make false accusations. Specifically, the defense proffered that Dr. Underwager would provide expert testimony on four points relevant to the defense theory of the case:
(1) A conflicted family environment, particularly divorce and separation from parents, may influencе a child to fabricate stories of abuse;
(2) Because children are more suggestible than adults, repeated questioning can teach or reinforce a false accusation;
(3) The initial assumptions of a child interviewer are a powerful determinant of what the child reports; and
The military judge ruled that the first three points were permissible areas of expert testimony. He ordered the Government to produce Dr. Underwager or a suitable substitute. He conditioned his ruling on the defense’s ability to produce evidence of thе underlying hypothetical facts on which Dr. Underwager would base his expert opinion.
DW testified at trial, describing the conduct on which the charges were based in graphic detail. She testified that appellant told her not-to tell anyone about his conduct with her, but that she told a babysitter “[clause I had to tell somebody.”
The prosecution presented the stipulated testimony of a medical doctor who had conducted a genital-rectal examination of DW and found her condition “normal.” The doctor also stated that a “normal” diagnosis is not inconsistent with an allegation of sexual abuse.
The prosecution also presented the stipulated testimony of a CID agent who questioned appellant twice. The first time appellant categorically denied DWs accusations. Responding to questions about the source of DWs sexual knowledge, he told the CID that DW had entered his bedroom while he and his wife were engaged in sexual intercourse. He further stated that DW had entered the bedroom while appellant and his current girl friend were having sexual intercourse and that he had caught DW looking-through the crack of the bedroom door when appellant thought she was asleep.
According to the CID agent, appellant was later сonfronted with the evidence and said, “I know something happened but not all that.” After being advised that it would be in his best interest to cooperate with the investigation, appellant said, “I guess all I can do is try to plea bargain.” Appellant’s second statement was not reduced to writing. Appellant’s ex-wife testified thаt she learned of appellant’s conduct from the babysitter. She testified that she initially “could not believe that something of that nature had taken place.” She admitted that employees of the Tennessee Department of Human Services had mentioned the possibility that DW would be placed in a foster hоme if she did not support her daughter. She testified that DW had “told lies in the past.” She testified that when DW had lied in the past, she and appellant “would usually confront her and drill her and, you know, question her over and over until she told the truth.”
Appellant testified in his own defense and categorically denied the allegations. He described an incident of DW’s destructive behavior, where, shortly after the birth of her younger brother, she went into the kitchen and destroyed everything related to the baby and his food. Appellant described a second incident when DW hit her younger brother in the back with a large toy. She initially blamed it on the babysitter, but finally admitted doing it. Appеllant admitted having an extramarital affair and fathering a child by another woman. He testified that, as his marriage deteriorated, DW became hostile, and they grew distant.
The defense presented evidence of good character. A first sergeant testified that appellant was “a very good noncommissioned officer” and “a very good parent.” Another first sergeant testified that appellant was a good soldier and “very honest.” A friend and fellow noncommissioned officer testified that appellant was “a very good parent.” A subordinate characterized him as “a great parent.” Appellant’s father сharacterized him as “a stem parent” but “a fair parent.”
The defense did not present evidence from Dr. Underwager or any other expert in child psychology. In a post-trial affidavit filed with the court below, appellant asserts that his defense counsel told him shortly before the trial that he had decided not to use Dr. Underwager. According to appellant, defense counsel “believed the prosecution had some dirt on our intended expert which would be used in an attempt to discredit him and make him out as a hired gun going to the highest bidder.” There is no affidavit from defense counsel in the record.
Appellant now asserts that his defense counsel were ineffective in three particulars: (1) failure to use Dr. Underwager, or any
Discussion
This Court has adopted the Supreme Court’s test for effectiveness of counsel articulated in Strickland v. Washington,
(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.
Our Court “will not second-guess the strategic or tactical decisions made at trial by defense counsel.” See United States v. Morgan,
until a court of competent jurisdiction reviews the allegation of ineffectiveness and the government response, examines the record, and determines that the allegation and the record contain evidence which, if unrebutted, would overcome the presumption of competence. United States v. Lewis,
Applying the foregoing principles, we hold that appellant has met the threshold for ordering further inquiry. This case was a classic credibility contest between appellant and DW. The record reflects that defense counsel prevailed on a contested motion to compel the production of Dr. Underwager or another equivalent expert. The defense established the factual predicate for the proffered expert testimony. Inexplicably, however, defense counsel did not call Dr. Underwagеr or any other expert to challenge DW’s credibility. We hold that appellant has met the Lewis threshold for compelling defense counsel to explain his actions. See United States v. Clark,
With respect to appellant’s remaining complaints about his counsel’s performance, we hold that appellant has not met the Lewis threshold. Failure to cross-examine the CID agents is not ineffective representation, in the absence of evidence showing what that cross-examination might reasonably have accomplished. Similarly, stipulаting to the medical doctor’s testimony is not ineffective representation, in the absence of a showing that her testimony in person would have been more favorable to appellant.
Decision
The decision of the United States Army Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Army for remand to the court below. That court will request an affidavit from defense counsel explaining why Dr. Underwager or any other expert in child psychology was not called to challenge DW’s credibility. The court will obtain additional evidence if necessary, conduct further fact-finding in a manner consistent with United States v. Ginn,
Concurrence Opinion
(concurring in part and dissenting in part):
The majority has again
In applying the Supreme Court’s test for effectiveness of counsel, the starting point for examining counsel’s presumed competence is ‘Whether counsel had a reasonable trial strategy — one supported by the law and evidence.” Ingham, supra at 224. My analysis of this record of trial shows the trial defense counsel had a reasonable strategy — attack the victim’s credibility and put her truthfulness “squarely before the court members.” Id. at 227. Since counsel is presumed competent, United States v. Cronic,
I completely agree with the majority’s evaluation of this case as “a classic credibility contest between appellant and DW.”
As the majority notes, the military judge’s ruling, granting trial defense cоunsel’s request for Dr. Underwager or other expert testimony, was “conditioned ... on the defense’s ability to produce evidence of the underlying hypothetical facts on which Dr. Underwager would base his expert opinion.”
Even if Dr. Underwager, a witness who had never interviewed the victim, had testified within those parametеrs laid out by the military judge and in accordance with his post-trial affidavit, his testimony would have been cumulative. In comparing Dr. Under-wager’s opinion, which trial defense counsel had during his pretrial preparations, to the defense counsel’s trial strategy, the evidence of record convinces me that appellant’s counsel effectively utilized Dr. Underwager’s advice in his presentation of the defense case.
The Court’s action today expands the first prong of the test we adоpted in Polk,
Notes
. See United States v. Clark, 49 MJ 98, 101 (1998)(Crawford, J., dissenting).
. Ingham, supra at 226.