United States v. McIntosh , 74 M.J. 294 ( 2015 )

UNITED STATES, Appellee
v.
Wilber J. McINTOSH Jr., Staff Sergeant
U.S. Air Force, Appellant
No. 14-0685
Crim. App. No. 37977
United States Court of Appeals for the Armed Forces
Argued April 29, 2015
Decided July 8, 2015
STUCKY, J., delivered the opinion of the Court, in which BAKER,
C.J., and ERDMANN, RYAN, and OHLSON, JJ., joined.
Counsel
For Appellant: Captain Lauren A. Shure (argued); Major Grover
H. Baxley (on brief).
For Appellee: Captain Thomas J. Alford (argued); Colonel
Katherine E. Oler and Gerald R. Bruce, Esq. (on brief).
Military Judge: Paula B. McCarron
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. McIntosh, No. 14-0685/AF
Judge STUCKY delivered the opinion of the Court.
Appellant argues that his counsel provided ineffective
assistance by failing to seek admission of the results of two
potentially exculpatory physical examinations of the victim. We
hold that trial defense counsel’s performance was not deficient
and, therefore, not constitutionally ineffective.
I. Background
Appellant raped and assaulted his stepdaughter beginning in
2006 and ending in April 2010. A general court-martial
convicted him of one specification of rape of a child between
twelve and sixteen years of age on divers occasions over a
sixteen-month period; one specification of aggravated sexual
abuse of a child on divers occasions over a thirty-month period;
one specification of assault with the intent to commit rape; and
one specification of communicating a threat, in violation of
Articles 120 and 134, Uniform Code of Military Justice (UCMJ),
10 U.S.C. §§ 920, 934 (2012). The adjudged and approved
sentence consisted of a dishonorable discharge, confinement for
twenty-five years, forfeiture of all pay and allowances, and
reduction to the lowest enlisted grade. The United States Air
Force Court of Criminal Appeals affirmed. United States v.
McIntosh, No. ACM 37977, 2014 CCA LEXIS 29, at *1, 2014 WL
464623, at *1 (A.F. Ct. Crim. App. Jan. 17, 2014).
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II. Discussion
The sole issue in this case is whether defense counsel’s
decision not to introduce into evidence two reports by Sexual
Assault Nurse Examiners (SANE reports) amounted to ineffective
assistance of counsel.
As we explained in United States v. Datavs:
To establish ineffective assistance of counsel,
an appellant must demonstrate both (1) that his
counsel’s performance was deficient, and (2) that this
deficiency resulted in prejudice. In reviewing for
ineffectiveness, the Court looks at the questions of
deficient performance and prejudice de novo.
With respect to [the] first prong, courts must
indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional
assistance.
As to the second prong, a challenger must
demonstrate a reasonable probability that, but for
counsel’s deficient performance the result of the
proceeding would have been different.
71 M.J. 420, 424 (C.A.A.F. 2012) (citations omitted) (internal
quotation marks omitted); see Strickland v. Washington, 466 U.S.
668, 690 (1984).
Appellant argues that these requirements are satisfied, as
the two SANE reports were highly exculpatory and constituted the
only physical evidence in a case that was otherwise premised on
witness testimony. The first exam was completed the day the
conduct was first discovered, when the victim’s mother walked
into her daughter’s locked bedroom and saw Appellant undressed
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United States v. McIntosh, No. 14-0685/AF
with the child. The second exam took place after the victim
reported she had been raped for multiple years, but not
immediately after any assault. The reports concluded with
physical findings that the victim’s genitalia were “without
abnormality” (2007 SANE report) and “normal” (2010 SANE report).
Appellant argues that the reports are especially exculpatory in
that they showed the victim’s hymen to be intact at both times
and because they “bookended” the period of rape and sexual
assault.
We begin by determining whether trial defense counsel’s
performance fell within the “wide range of reasonable
professional assistance.” Id. at 424. While defense counsel
would normally be expected to introduce potentially exculpatory
evidence, their performance is not deficient when a tactical
reason cautions against admission. See Datavs 71 M.J. at 425
(stating that “objectively reasonable” tactical decisions cannot
constitute deficient performance); Strickland, 466 U.S. at 690(creating presumption that challenged action had strategic
purpose); Jackson v. Conway, 763 F.3d 115, 154 (2d Cir. 2014),
cert. denied sub nom., Jackson v. Artus, 135 S. Ct. 1560 (2015)
(holding that decision not to introduce potentially exculpatory
laboratory reports was not deficient performance because the
evidence did not have any exceptional value given victim’s
testimony that Appellant was unable to maintain an erection);
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United States v. McIntosh, No. 14-0685/AF
see also Brown v. State, 490 S.E.2d 75, 80 (Ga. 1997)
(concluding defense counsel did not provide ineffective
assistance in choosing not to present physical evidence from the
crime scene that did not link defendant to the crime scene, but
also did not rule out the possibility that he was there).
Such is the case here. As the two defense counsels’
affidavits reveal, the choice they made was a considered one,
made after consultation with an expert in the field of SANE
examinations and after discussion with Appellant. First, the
defense expert confirmed opinions defense counsel had formed
from previous cases: the lack of abnormal findings in a sexual
assault examination does not conclusively rule out the
possibility that a sexual assault occurred. See Lingle v. Iowa,
195 F.3d 1023, 1025-26 (8th Cir. 1999); see also Poole v. State,
46 So. 3d 290, 296 (Miss. 2010) (holding that evidence of intact
hymen is not conclusive proof that no penetration occurred).
Second, the primary defense theory was that the Government
failed to prove the charges beyond a reasonable doubt, in part
because the Government offered “absolutely no medical evidence
to support the testimony of the complainant.” The Government
itself bolstered this argument by not moving to admit the
reports. Admitting the reports would have undermined this
tactic and opened the door to cross-examination of the SANEs to
the effect that an intact hymen did not preclude Appellant’s
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United States v. McIntosh, No. 14-0685/AF
stepdaughter having been raped. Third, the 2010 SANE report
indicates that the victim suffered pain when her genitalia were
touched, something that a factfinder might see as evidence of
guilt. Fourth, admission of the SANE reports would require
discussion of the intrusiveness of the sexual assault exams --
facts the panel could possibly hold against Appellant. Under
these circumstances, Appellant failed to overcome the strong
presumption that counsel’s performance was within the wide range
of reasonable professional assistance. Without deficient
performance, there can be no ineffective assistance, and the
inquiry is closed.
III. Judgment
The judgment of the United States Air Force Court of
Criminal Appeals is affirmed.
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