*1 STATES, Appellee, UNITED PAALUHI, Gunnery Sergeant,
Keith Corps, Appellant.
U.S. Marine
No. 99-0844.
Crim.App. No. 97-0321.
U.S. Court Armed Forces.
Argued March 2000. Sept.
Decided 2000.
Gierke, J., concurring opinion in the filed Cox, joined. Judge, in which Senior
result
II WHETHER THE LOWER COURT IT ERRED WHEN FOUND EFFEC- TIVE ASSISTANCE OF COUNSEL WHERE TRIAL DEFENSE COUNSEL APPELLANT THAT ADVISED HIS SULLIVAN, J., opinion delivered the COMMUNICATIONS WITH A PSYCHO- Court, CRAWFORD, C.J., which and THERAPIST WOULD BE PRIVI- EFFRON, J., GIERKE, J., joined. filed an UNDER JAFFEE V. RED- LEGED result, opinion concurring in the in which MOND. S.J., COX, joined. Appellant: For Lieutenant M. Eric Ever- III
sole, JAGC, (argued); USNR Lieutenant (on brief). JAGC, Doherty, Frank M. USNR A WHEN RECORDED STATEMENT IS EVIDENCE, ADMITTED INTO Teneate, Appellee: Major For D. Michael THE BE AL- SHOULD MEMBERS (argued); USMC M. Colonel Kevin Sand- LOWED TO VIEW THE kuhler, LISTEN OR USMC, Eugene and Commander E. Irvin, (on brief). RECORDING AGAIN DURING THEIR JAGC, USN
CLOSED
DID
DELIBERATIONS?
THE LOWER
ERR WHEN IT
Judge
COURT
opinion
SULLIVAN delivered the
THAT IT
FOUND
WAS PERMISSIBLE
the Court.
THE MILITARY
FOR
JUDGE TO AL-
1996,
August
During
appellant
was tried
THE
LOW
A
MEMBERS TO VIEW
by general
a
court-martial with officer mem-
VIDEOTAPED
OF THE
INTERVIEW
Hawaii,
bers at Marine
Base
Kaneohe
ALLEGED VICTIM
DELIB-
DURING
Bay,
Contrary
Hawaii.
pleas,
to his
he was
ERATIONS.
guilty
rape,
sodomy,
found
forcible
child,
committing indecent acts on a
in viola-
that appellant’s
We hold
to a
120, 125,
134,
tion of Articles
Uniform Navy psychologist
protected by
Justice,
Military
920,
§§
Code of
10 USC
psychotherapist-patient privi
federal civilian
925,
934,
17,
respectively.
August
On
lege.
v. Rodriguez,
See United States
54 MJ
he
sentenced to a dishonorable
(2000). Nevertheless,
we conclude that
discharge,
years,
for 10
confinement
and re-
he received
ineffective assistance
convening
duction to
authority
E-l.
when his
defense counsel advised
approved
January
sentence
speak
government
him to
psychologist
Navy-Marine Corps
and the United States
officially
who had not been
detailed
assist
Court of Criminal
affirmed. United
the defense.1 See
States v.
United
Paaluhi,
(N.M.Ct.Crim.
States v.
take initial interview commenced her Center, facility appropri cy that had rooms *3 ff.) (R. ff., 388, 5, 393 1996. 369 on June in a for the interview of children non ate meetings During June 5 and 26 (R. 124-25, 174) their on threatening environment. 30, 1996, Hill July appellant told Lt on 5 mother, 1996, victim, 4, April the On with the victim having been sex that he had to the younger and her sister traveled Child give specific years, the but did for last 5 Center, they Advocacy where were intro- (R. 372, 425) judge military details. Holmes, Russell, Agent duced to Ms. sup- pretrial motion to appellant’s denied (R. 127-28, special agent. another NCIS (R. 407) to Lt Hill. press of his statements all 174-75) the Holmes interviewed victim Ms. at court-martial appellant’s Lt Hill testified room, telling private in a the victim that the that he had been appellant that told her being videotaped watched 5 having the victim for the last sex with Agent special by and the NCIS Russell other 425) (R. years. two-way agent, who located a were behind (R. 175) 127, mirror. Ms. Holmes subse-
quently Lynn the Mrs. referred victim to Kux, worker, a met clinical social who first must consider whether evi approximately victim times the 10 between Hill, appellant’s to Lt a dence of statements (R. 354) 22, 337, May July 1 and 1996. Navy by psychologist, was barred the clinical privilege recognized psychotherapist-patient placed Appellant pretrial in confine- Redmond, v. Supreme the Court in Jaffee 5, Sheet; April (Charge ment on 1996. R. 1, 1923, 337 518 116 S.Ct. 135 L.Ed.2d U.S. 27) Captain (Capt) K was detailed as de- (1996). today in In this Court’s decision (R. 3, 25, 392, During fense counsel. Rodriguez, supra, we held United States case, pretrial preparation appellant’s ap- of by a that member communications pellant’s defense counsel contacted Lieuten- psychotherapist on military to a or before (Lt) Hill, Navy ant a Medical Suzanne Ser- privileged on were not November psychologist, vice officer and clinical military Appel this as a matter of basis assigned military to a who was local medical incriminating to Lt Hill lant’s (R. 421, 424) 369, 399, Capt K clinic. testi- date, i.e., during prior to were made this that, Hill, fied time he Lt he at the contacted they July Accordingly, June and 1996. anticipated presenting only in a case sentenc- psycho were not inadmissible because ing looking provide expert and was for an to therapist-patient privilege and the (R. 399) testimony appellant. to favorable sup judge’s of the motion to denial defense requesting convening that au- Without press appellant’s pretrial statements on thority military judge assign or Lt Hill to 514-17) basis was correct. defense, assist defense counsel convinced Lt Hill to meet with and evaluate
appellant appellant cooper- and he advised to II 293-95, Lt ate with Hill. argues ad Appellant next that his May 31, 1996, Hill Lt Hill faxed a missions to Lt were inadmissible because
On document Question they History made as of ineffective “Initial Personal were a result entitled his This brig. to assistance of defense counsel. naire” ques with the Court ineffective-assistance-of-eoun Included reviews Understanding novo. sel claims de See United States tionnaire was “Statement 1987). (CMA Scott, In order Confidentiality 24 Regarding Limits of within Military prevail upon an ineffective-assistance-of- Departments,” Health which Mental claim, appellant must demonstrate “suspect counsel indicated that disclosures related deficient, performance that counsel’s ed child abuse” must be turned over “med- i.e., counsel, functioning he performance that was not as and whether or not the coun- deficiency seriously prejudiced performance that any way, sel’s was deficient his defense. See Strickland v. necessary judge it is facts and cir- U.S. S.Ct. 80 L.Ed.2d they cumstances known to the (1984). counsel at the time of the conduct. In this connection, I think it’s clear from the testi- dispute Capt There is no K failed mony representations and also from the team, assigned to have Lt Hill to the defense stages at proceed- earlier of these a requirement confidentiality mili under ings, reality that in for much of the time tary attorney-elient-privilege law. pending, this case was it was the 401, 405-07) See United States strategy intention and 275-76, 25 MJ at on reconsider aff'd negotiate plea-bargain behalf of *4 ation, 703(d); 26 MJ at RCM Mil. accused that would involve sort some of 502(a), Courts-Martial, R.Evid. Manual for negotiated plea accompanied guilty by a of ed.). (1995 Moreover, United States he sent hearing. sentencing in And it’s that con- government psychologist his to client this text, find, I the that defense counsel initial- (8 days Supreme June 1996 before the ly contacted Lieutenant Hill with a view Redmond, Court decision in supra), Jaffee trying arrange toward to for sentenc- when psychotherapist-patient there was no ing testimony. Clearly, Cap- the focus of 401) (R. privilege military under Fi strategy contacting tain K’s in Lieutenant nally, KCapt understanding testified that his Hill at all persua- has been times to build of the concerning confidentiality law the of sentencing sive effective case on behalf his client’s communications was erroneous. the of defendant. the circum- Under Nevertheless, the stances, course, strategy of that of sort judge found that was there no ineffective presupposes it that is the intention and of Capt assistance counsel because K had “a strategy of plea the defense to enter a of very very reasonable tactical basis” and “a guilty charges to substantive that are al- (R. 306-07) viable basis” for his actions. leged charge on the I find sheet. that that military judge explained his tactical- in strategy was fact the intention and of decision rationale as follows: time, the defense the at and under the Now there is before the court a defense circumstances, course, of the accused if to suppress motion all of the statements judicial planning was aon in confession by the defendant to Hill Lieutenant open guilt, pretty clearly court his then of in the of her meetings course various with the would have little reason to be defense the suppress defendant. That motion to is concerned not about whether or Lieuten- in entirety. denied its Now in this connec- ant Hill be in a position would to make tion, find, I that ivas any there neither disclosures these statements to other of doctor-patient privilege any attorney- nor I per- individuals. that counsel’s So find privilege client that existed the between not within the formance deficient and Lieutenant Hill at the time defendant meaning Strickland v. of these interviews and these statements. of In reason, I that find defendant connection, simply find the Toledo denied the assistance coun- effective of factually indistinguishable [sic] to be from in sel this case. any at in meaningful the case bar sense added)). (emphasis 407-08 word, really the and I think it’s the con- trolling case. agree military judge’s cannot performance. assessment defense counsel’s regard With to the issue of the claim Washington, supra See Strickland v. at 698- ineffective assistance of counsel in con- (no dispute 104 nection, I S.Ct. 2052 tactical deci- find that there no ineffective made). counsel, Admittedly, sion assistance counsel and that act- counsel evidence, competent professional seeking sentencing ed in a man- favorable effec- course, judging tively ner. Of standard advised to confess to commit-
185 rors, would proceeding result of the v. Fair ting charged offenses. See Toro (7th Cir.1991); man, F.2d different. 940 been have Dugger, 847 Huckelbury v. generally see MJ at 789. 50 Cir.1988). (11th However, it fur- F.2d 732 However, is usual- a defendant’s confession did so awareness ther that he without shows devastating evidence. ly lim- the most Navy Department’s Medical considered of the local confidentiality he er- policy (Here because of sex with ited to confession it amounted roneously believed their communications years.) Arizona v. daughter for See attorney-client protected under the would be Fulminante, S.Ct. U.S. Roger privilege. Smith Moreover, (1991). Cf. we L.Ed.2d Cir.1999) (not (8th 569, 572-73 171 F.3d son court’s characteriza- disagree with lower defendant assistance advise ineffective this case as other of the evidence tion much police where so make statement “devastating.” Still “overwhelming” and Cf. him). Fur- damaging against other evidence Cir.1990). (8th Lockhart, 915 F.2d thermore, record that defense shows case, erroneously neces- absent evidence of failed take the The Government’s sary steps protect “confession,” these statements vic- consisted assigned team having Lt Hill to the defense Mrs. Kux’s videotaped tim’s by military attorney-client-privi- required *5 testimony victim’s out-of-court as lege su- See United States v. VII; statements. (R. 398-401) view, In pra. our this record The statement made victim’s clearly attorney performance, shows deficient court, subject was not outside of and she not reasonable tactics. United Cf. by Mrs. Kux the defense. cross-examination Thompson, States victim 10 times between met with the about (1999) (defense tac- reasonable hour July one each May 1 and speak to tical not to have his client decision testimony served Her session. government psychotherapist of self- because out-of-court state- corroborate victim’s problems). incrimination such, but, it cannot be as ments “overwhelming” as and “devas- characterized support prong of To the second view, tating.” In our there is a reasonable Washington, supra, appellant Strickland v. appel- probability that without admission proba “is must show there a reasonable Hill, that, errors, bility inculpatory to Lt absent the the factfinder lant’s respect have had reasonable doubt would would had a reasonable doubt members have ing guilt.” Strickland appellant’s guilt. respect appel lower U.S. at S.Ct. 2052. The Navy- The decision the United States appellant’s late court resolved ineffective-as is Marine Court of Criminal claim alternative sistance-of-counsel on the findings guilty and the reversed. stating: grounds prejudice, that there was no of trial is are set aside. The record sentence perfor- if Captain find that even [K]’s We Judge to the Advocate General of returned deficient, found error was mance was may Navy. rehearing A be ordered. deprived serious as have not so whose of a fair trial: a trial reliable. LT Hill’s testi-
result is Without COX, GIERKE, Judge, with whom Senior mony, evidence the Government’s result): joins Judge, (concurring in the overwhelming and established nonetheless I. on Issue For I would resolve this case guilt beyond a reasonable appellant’s my set out in dissent United the reasons taped [N] doubt. The (2000), I Rodriguez, 54 MJ States simply testimony Mrs. Kux devas- military judge erred that the would hold probability tating. find no reasonable appellant’s to Lt Hill. that, admitting er- admissions unprofessional for counsel’s but Because I appellant’s believe that in holding conversa- defense counsel tions with Lt Hill protected should have been permitting ineffective for him to talk to privileged communications, join I cannot Lt Hill.