United States v. Saintaude , 61 M.J. 175 ( 2005 )

IN THE CASE OF
UNITED STATES, Appellee
v.
Jacques SAINTAUDE Jr., Private First Class
U.S. Army, Appellant
No. 04-0178
Crim. App. No. 9801647
United States Court of Appeals for the Armed Forces
Argued January 26, 2005
Decided June 23, 2005
EFFRON, J., delivered the opinion of the Court, in which GIERKE,
C.J., and CRAWFORD, BAKER, and ERDMANN, JJ., joined.
Counsel
For Appellant: Mary T. Hall, Esq., (argued); Captain Eilin J.
Chiang and Captain Karen W. Riddle (on brief); Colonel Robert D.
Teetsel, Lieutenant Colonel Mark Tellitocci, and Major Allyson
G. Lambert.
For Appellee: Captain Edward E. Wiggers (argued); Colonel
Steven T. Salata, Lieutenant Colonel Mark L. Johnson, Major
Natalie A. Kolb, and Captain Janine P. Felsman (on brief).
Military Judges: Richard J. Hough (trial) and Donna L. Wilkins
(sentence rehearing)
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION .
United States v. Saintaude, No. 04-0178/AR
Judge EFFRON delivered the opinion of the Court.
At a general court-martial composed of officer members,
Appellant was convicted, contrary to his pleas, of rape, robbery
(two specifications), adultery, and communication of a threat
(three specifications), in violation of Articles 120, 122, and
134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 920,
922, 934 (2000). He was sentenced to a dishonorable discharge,
confinement for forty-eight years, forfeiture of all pay and
allowances, and reduction to the grade of E-1. The convening
authority approved these results and credited Appellant with 194
days of confinement for pretrial confinement served. The United
States Army Court of Criminal Appeals set aside the three
specifications of communicating a threat, and affirmed the
remaining findings. The court also concluded that Appellant’s
trial defense counsel provided ineffective assistance during
sentencing, and ordered a rehearing on the sentence. United
States v. Saintaude, 56 M.J. 888 (A. Ct. Crim. App. 2002).
At the rehearing, a panel consisting of officers and
enlisted members sentenced Appellant to a dishonorable
discharge, confinement for thirty-five years, forfeiture of all
pay and allowances, and reduction to the grade of E-1. The
convening authority approved the sentence and credited Appellant
with 1,615 days of presentence confinement credit and 196 days
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of administrative credit for illegal presentence confinement.
The Court of Criminal Appeals affirmed in an unpublished
opinion. United States v. Saintaude, Army 9801647 (A. Ct. Crim.
App. Oct. 15, 2003).
On Appellant’s petition, we granted review of the following
issues, which primarily concern the findings phase of
Appellant’s initial court-martial:
I. WHETHER APPELLANT WAS DEPRIVED OF HIS RIGHT
TO CONFLICT-FREE COUNSEL WHEN ALL FIVE OF
HIS COUNSEL LABORED UNDER MENTALLY-
COMPETING PERSONAL INTERESTS.
II. WHETHER APPELLANT RECEIVED INEFFECTIVE
ASSISTANCE OF COUNSEL ON THE MERITS
WHEN HIS COUNSEL FAILED TO PREPARE AND
EXECUTE A REASONABLE DEFENSE STRATEGY,
INCLUDING FAILURE TO USE CRITICAL
IMPEACHMENT EVIDENCE, AND WHEN HIS
MILITARY COUNSEL FAILED TO ADVISE
APPELLANT THAT HE BELIEVED THAT
CIVILIAN COUNSEL WAS INCOMPETENT,
INEFFECTIVE, AND UNPROFESSIONAL.
We shall first consider Issue I, Appellant’s contention
that the personal interests of his attorneys conflicted with
their duty of professional loyalty to their client. We shall
then turn to Issue II, in which Appellant alleges specific
deficiencies in the performance of the various attorneys who
represented him before and during trial. For the reasons set
forth below, we conclude that neither the alleged conflicts of
interest nor the alleged defects in performance of counsel
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resulted in prejudicial error, and we affirm. See Strickland v.
Washington, 466 U.S. 668, 686, 694 (1984).
I. BACKGROUND
From the time Appellant was charged until the beginning of
the trial on the merits, Appellant was represented by a number
of different attorneys, at different times, in various
combinations. The relationships among counsel, and between
counsel and Appellant, were not always harmonious.
A. Representation in the separate military and civilian
proceedings
Initially, Appellant faced separate civilian charges and
military criminal charges. In the civilian proceedings, brought
by Colorado state authorities, he was represented by two
civilian attorneys, Mr. HG and Ms. C. The civilian charges,
which consisted of two robbery specifications, alleged that
Appellant robbed two 7-Eleven convenience stores while
pretending to be concealing a firearm.
In the military proceedings, Appellant was represented
initially by Captain (CPT) L, who withdrew from the case because
he previously represented one of the alleged victims. CPT L was
replaced by CPT RB. The military charges consisted of rape,
adultery, and three specifications of the communication of a
threat.
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B. Representation in the exclusive military proceedings
After civilian authorities relinquished jurisdiction over
the two robbery charges, Appellant retained Mr. HG and Ms. C to
represent him in the military proceedings. Appellant continued
to retain CPT RB as his military counsel. In addition, CPT MC,
a defense attorney stationed at Fort Leavenworth, Kansas, was
eventually detailed as an assistant defense counsel at CPT RB’s
request.
C. The prosecution’s motion to disqualify civilian counsel
At the initial pretrial session under Article 39(a), UCMJ,
10 U.S.C. § 839(a) (2000), the prosecution moved to disqualify
the civilian defense counsel, Mr. HG, based on allegations that
he had attempted to bribe a prosecution witness. The
prosecution also recommended disqualification of the other
civilian counsel, Ms. C, who was engaged to Mr. HG and shared
his law practice. In a subsequent investigation, the Army
determined that the bribery allegations against Mr. HG were
unsupported.
D. Replacement of civilian counsel
At the next Article 39(a) session, while the prosecution’s
disqualification motion was pending, the two civilian counsel
moved to withdraw from representing Appellant. They also
identified Mr. D, who was present as a spectator in the
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courtroom, as the attorney who would replace them as Appellant’s
civilian counsel. After determining that Appellant agreed to
the withdrawal of his civilian defense counsel, and that he
intended to retain Mr. D, the military judge granted the motion
by Mr. HG and Ms. C to withdraw.
E. Defense request to remove military counsel
At the same session, Appellant asked the military judge to
remove his military defense counsel, CPT RB, based on
Appellant’s assertion that CPT RB had revealed confidences to
the prosecution. The military judge declined the request,
noting that CPT RB was needed as a liaison between the new
civilian defense counsel, Mr. D, and the remaining military
defense counsel, CPT MC, neither of whom were located in the
Fort Carson area. The military judge added, however, that he
would reconsider Appellant’s request to remove CPT RB after the
other counsel had an opportunity to prepare for trial. In a
subsequent proceeding, at the outset of the trial on the merits,
the military judge specifically addressed the issue of whether
Appellant wanted CPT RB to serve as his military defense
counsel. Appellant responded that he wanted to retain CPT RB.
The Army conducted a separate investigation into the allegation
that CPT RB improperly revealed defense confidences and
concluded that the allegation was unfounded.
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F. Disagreements regarding trial strategy
During preparations for trial, the relationship between
CPT MC and Mr. D deteriorated to the point where CPT MC filed a
memorandum with the Regional Defense Counsel asserting that Mr.
D was “incompetent and intend[ed]to represent the accused in a
manner that [was] ineffective and unprofessional.” The
memorandum primarily criticized Mr. D’s intent to focus on what
CPT MC viewed as unsubstantiated allegations of unlawful command
influence and command-level drug abuse. CPT MC stated that the
unlawful command influence allegation initially was raised by
Mr. HG, who apparently claimed that there was a conspiracy to
frame Appellant. CPT MC added that Mr. D improperly accepted
the assertion that the entire case was infected with unlawful
command influence without ascertaining the facts or considering
the relevant principles of law. CPT MC stated that he
repeatedly told Mr. D that he did not agree with his assessment
and repeatedly tried to focus Mr. D away from the conspiracy and
onto the relevant issues of the case. CPT MC viewed the
unlawful command influence strategy as being dictated by Mr. D’s
friendship with the prior defense counsel, Mr. HG.
The memorandum also criticized Mr. D for delays in
obtaining relevant files from Mr. HG. CPT MC attributed the
delay to Mr. D’s unwillingness to press the issue in light of
his friendship with Mr. HG. According to CPT MC, Mr. D’s
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representation was marred by an inability to address the
conflict between the duties to his client and his desire to
vindicate his friend, Mr. HG.
The memorandum also expressed CPT MC’s concern that Mr. D’s
performance reflected unfamiliarity with the military and
military justice system. CPT MC stated he “repeatedly explained
to [Mr. D] the procedure for obtaining expert assistance[,]” yet
Mr. D failed “to acknowledge the necessary steps that needed to
be taken to secure expert assistance.” He also mentioned that
Mr. D previously had been suspended from the practice of law
based upon substance abuse and that CPT MC had heard unfavorable
comments from a public defender familiar with Mr. D’s practice.
CPT MC concluded his memorandum with the notation: “I do not
believe my efforts to focus [Mr. D] on the relevant issues of
the case have been successful or will be successful in the
future . . . . I believe further participation in this case
could jeopardize CPT [RB’s] and my good standing to practice
law.”
CPT MC asked the regional defense counsel to arrange either
for the decertification of Mr. D or to permit the military
defense counsel to withdraw from the case. The record does not
reflect what action, if any, the regional defense counsel took
in response to CPT MC’s memorandum.
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Ultimately, Mr. D was not decertified; neither CPT MC nor
CPT RB asked the military judge for permission to withdraw; nor
did they bring any of these matters to the attention of the
military judge or Appellant. The defense obtained expert
assistance; Mr. HC transmitted the requested files to the
defense; and the defense did not file any motions regarding
unlawful command influence or command-level drug abuse.
G. Evidence on the merits presented by the prosecution
During Appellant’s trial, the prosecution introduced
evidence concerning two convenience store robberies that
occurred on the same day, each committed by a male pretending to
have a concealed firearm. The prosecution presented evidence
that each of the robberies was committed by Appellant, including
recorded surveillance videos and the testimony of employees
working at the convenience stores at the time of the robberies.
Additionally, Private (PVT) D, a fellow servicemember and friend
of Appellant, identified the robbery perpetrator in the
surveillance videos as Appellant. PVT D also stated that the
person in the videos was wearing a jacket he had loaned to
Appellant.
With respect to the rape charge, the prosecution presented
the testimony of Ms. P, who provided details of the charged
offense and identified Appellant as the perpetrator. Ms. P
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testified that she received a call from a man who said that he
was from her husband’s unit. Shortly thereafter, the man came
to her apartment and said that Ms. P’s husband had spoken to him
about needing automobile insurance. During their conversation,
she became uncomfortable with the situation and asked him to
leave. He refused and raped her while her five-month old son
was nearby. In the course of leaving the apartment, he told her
that if she reported the incident her husband would lose his job
and she would lose her family. The sexual assault nurse who
examined Ms. P testified that the results of the examination
were consistent with rape.
A friend of Ms. P, who lived in the same apartment complex,
provided testimony of a similar incident on the same day. She
testified that a man called her, identified himself as from her
husband’s unit, and then came to her apartment. She did not let
him in. Later in the day, while at a gas station, a man
approached her and said that he had been at her apartment
earlier. She subsequently reported the incident to the police,
provided a description of the man similar to the description
given to the police by Ms. P, and identified Appellant as this
man.
A DNA expert testified that there was a positive match
between Appellant’s DNA and the sperm extracted from Ms. P
during her sexual assault exam. The expert stated that a
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positive match between the two samples would only occur in “1 in
4 million 500 thousand African-Americans; 1 in 5 million 300
thousand Caucasians; and 1 in 1 million 900 thousand
Southwestern Hispanics.”
H. The defense position on the merits
The defense endeavored to convince the court-martial that
Appellant was not the perpetrator of the robberies or of the
rape. The defense raised the possibility that another soldier
from Appellant’s unit, Private First Class JJ -- who bore a
strong resemblance to Appellant -- committed the crimes. The
defense also offered an alibi defense through the testimony of a
coworker that Appellant was at work at the time Ms. P was raped.
The defense challenged the reliability of the evidence
identifying Appellant as the perpetrator of the charged crimes.
The defense sought to undermine the testimony of the convenience
store employees on the grounds that their identification
testimony was biased and tainted. The defense challenged the
identifications of Appellant by Ms. P and her friend on grounds
that the photo lineup was biased and the identifications were
tainted by the discussion of the lineup between Ms. P and her
friend. The defense also sought to demonstrate that Ms. P’s
identification was further tainted by a discussion that she had
with her husband regarding Appellant’s presence in the lineup.
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The defense challenged the testimony of PVT D, who had
identified Appellant on the convenience store’s surveillance
videotapes. According to the defense, PVT D was biased, and was
trying to protect himself from prosecution. The defense noted
that PVT D had tested positive for cocaine, and, at one point,
had been considered a suspect for the charges facing Appellant.
The defense also challenged the DNA evidence, focusing on
Appellant’s origins in the Virgin Islands. According to the
defense, the DNA database maintained by the FBI did not provide
an accurate basis for matching the DNA of Appellant because
Appellant came from a subpopulation not proportionately
represented in the database.
II. CONFLICTS OF INTEREST
A. Standard of review
In the first granted issue, Appellant asserts that his
attorneys labored under conflicts of interest, and that these
conflicts resulted in the denial of his constitutional right to
the effective assistance of counsel. U.S. Const. amend. VI. In
particular, Appellant claims his counsel had the following
conflicts: CPT RB leaked confidential defense information; Mr.
HG and Ms. C were more concerned with allegations of bribery
than with his case; CPT MC placed his concern for his license
over his loyalty to Appellant; and Mr. D placed his friendship
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with Mr. HG and Ms. C over his duty to Appellant. We review
such claims de novo. See United States v. Key, 57 M.J. 246, 249
(C.A.A.F. 2002).
An appellant “who seeks to relitigate a trial by claiming
ineffective assistance of counsel must surmount a very high
hurdle.” United States v. Moulton, 47 M.J. 227, 229 (C.A.A.F.
1997). Such an appellant must demonstrate: (1) a deficiency in
counsel’s performance that is “so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the
Sixth Amendment”; and (2) that the “deficient performance
prejudiced the defense . . . [through] errors . . . so serious
as to deprive the defendant of a fair trial, a trial whose
result is reliable.” Id. at 229 (quoting Strickland, 466 U.S.
at 687). If we conclude that any error would not have been
prejudicial under the second prong of Strickland, we need not
ascertain the validity of the allegations or grade the quality
of counsel’s performance under the first prong. 466 U.S. at
697. See also United States v. McConnell, 55 M.J. 479, 481
(C.A.A.F. 2001).
Conflicts of interest, like other actions by an attorney
that contravene the canons of legal ethics, do not necessarily
demonstrate prejudice under the second prong of Strickland. See
Mickens v. Taylor, 535 U.S. 162, 175-76 (2002); Nix v.
Whiteside, 475 U.S. 157, 165 (1986). Although cases involving
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concurrent representation of multiple clients have been treated
as inherently prejudicial, see Cuyler v. Sullivan, 446 U.S. 335,
348-49 (1980), “‘not all attorney conflicts present comparable
difficulties,’ and . . . most cases will require specifically
tailored analyses in which the appellant must demonstrate both
the deficiency and prejudice under the standards set by
Strickland.” United States v. Cain, 59 M.J. 285, 294 (C.A.A.F.
2004) (quoting Mickens, 535 U.S. at 175-76).
Appellate courts have applied varying approaches to the
question of whether a conflict of interest should be viewed as
inherently prejudicial if the conflict does not involve multiple
representation. Compare United States v. Hearst, 638 F.2d 1190,
1193 (9th Cir. 1980) (applying an inherent prejudice standard to
a conflict arising outside a multiple representation situation),
with Beets v. Sullivan, 65 F.3d 1258, 1265-66 (5th Cir. 1995)
(applying the Strickland standard to a conflict arising outside
the multiple representation situation). Under our precedents,
the question of whether there is inherent prejudice in a
conflict between the self-interest of an attorney and the
interests of the client must be assessed on a case-by-case
basis. In United States v. Babbitt, 26 M.J. 157 (C.M.A. 1988),
for example, we concluded that a conflict involving sexual
relations during trial between a male civilian attorney and his
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married female military client should be tested for actual
prejudice, and we determined that there was no prejudice.
In Cain, 59 M.J. at 295, we focused on the specific
circumstances of the case -- a homosexual relationship between a
military attorney and a military client, “involving an
attorney’s abuse of a military office, a violation of the duty
of loyalty, fraternization, and repeated commission of the same
criminal offense for which the attorney’s client was on trial,”
all of which was left unexplained as a result of defense
counsel’s suicide, which occurred shortly after being questioned
about these matters by a superior. In light of those factors,
we concluded that “[t]he uniquely proscribed relationship before
us was inherently prejudicial and created a per se conflict of
interest . . . .” Id. The present case does not involve the
unusual combination of factors that led us to determine in Cain
that the conflicts were inherently prejudicial. Under these
circumstances, we conclude that the present case should be
reviewed for specific prejudice under Strickland.
B. Potential conflicts of interest
Appellant has identified a number of potential conflicts
between the self-interests of his attorneys and his interests as
their client. Under Strickland, identification of a potential
deficiency is not sufficient. To surmount the high hurdle
presented by the second prong of Strickland, an appellant must
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demonstrate specific prejudice. In the present case, Appellant
has not done so because he has not demonstrated that any of the
potential conflicts described below developed into deficiencies
so serious as to deprive him of a fair trial, that is, a trial
whose result was reliable. See Strickland, 466 U.S. at 687.
1. CPT RB
Appellant originally moved to remove CPT RB based on a
belief that she had revealed confidences in Appellant’s case to
trial counsel. According to Appellant, CPT RB was conflicted
because the accused thought she had committed an ethics
violation. Prior to trial on the merits, however, Appellant
decided not to pursue this course of action, and affirmatively
advised the military judge that he wished to retain CPT RB as
counsel. A subsequent Army investigation found that the
allegation of improper disclosure was unsupported. The results
of that investigation, which have not been challenged by
Appellant, are consistent with Appellant’s decision to retain
CPT RB as counsel.
2. Mr. HG and Ms. C
Appellant contends that Mr. HG and Ms. C were conflicted as
a result of the allegation that Mr. HG had attempted to bribe a
witness. After the Government made the allegation, however,
both counsel withdrew from Appellant’s representation. The
allegation against Mr. HG subsequently was found to be
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unsupported. Mr. HG and Ms. C did not abandon Appellant, but
instead assisted him in obtaining new civilian counsel, Mr. D.
At that time, Appellant was represented by two military counsel,
CPT RB and CPT MC, as well as having a new civilian defense
counsel recommended by Mr. HG and Ms. C.
3. CPT MC -- Trial strategy
Relying on a pretrial memorandum sent by CPT MC to the
Regional Defense Counsel, Appellant contends that CPT MC’s
interest in his professional standing conflicted with his duty
of loyalty to Appellant. Appellant also contends that CPT MC
violated his duty of loyalty by not informing Appellant of these
concerns. In the memorandum, CPT MC requested the
decertification of Mr. D and asserted that his reputation would
suffer from association with Mr. D. The primary substantive
issue in the memorandum concerned CPT MC’s assertion that Mr. D
intended to pursue an unsubstantiated allegation of unlawful
command influence. At trial, however, the defense did not raise
the issue of unlawful command influence, focusing instead on the
merits of the prosecution case. These circumstances indicate
that the concerns of CPT MC were resolved prior to trial. The
record does not otherwise demonstrate that CPT MC was
unsuccessful in properly focusing the efforts of the defense
team. Absent evidence demonstrating that he was unable to
resolve his initial concerns about Mr. D, CPT MC was not
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obligated to communicate those initial concerns to Appellant.
See Dep’t of Army, Military Justice, Army Reg. 27-10 app. C-2
b.(3) (Apr. 27, 2005) (indicating that military counsel is
obligated to only inform the client of problems with civilian
counsel’s tactics only if the problems cannot first be resolved
between counsel).
4. CPT MC -- Information about Mr. D
Appellant also notes that CPT MC did not inform him of the
concern, raised in CPT MC’s letter to the Regional Defense
Counsel, that Mr. D’s license to practice law previously had
been suspended. At the time of trial, however, Mr. D was
licensed to practice law. Appellant does not identify a
specific obligation on the part of co-counsel to inform a client
about a past disciplinary action against the lead counsel who,
at the time of trial, was licensed to practice law. Even if CPT
MC had been under such an obligation, Appellant has not
identified the details of the past disciplinary action against
Mr. D. As such, we have nothing more than speculation as to the
impact that any such information might have had on Appellant’s
rights under Strickland.
5. Mr. D
Appellant contends that Mr. D faced a conflict between his
friendship with Appellant’s prior counsel, Mr. HG, and his duty
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of loyalty to Appellant. In particular, Appellant claims that
Mr. D was reluctant to press Mr. HG for files necessary to
prepare for trial motions because of their friendship. The
record, however, reflects that the documents were turned over to
the defense counsel, and that pertinent motions were filed and
argued by the defense at trial. Even assuming that there was
some delay in obtaining the records, whether as a result of Mr.
D’s reluctance or for some other reason, Appellant has not
demonstrated that any such delay had any effect on the trial
proceedings.
III. ISSUES CONCERNING PERFORMANCE OF COUNSEL
Aside from the concerns related to potential conflicts of
interest, Appellant alleges a number of deficiencies in the
performance of his attorneys. We review these contentions under
the Strickland test, discussed in Section II.B., supra. When
we apply Strickland to the alleged deficiencies in performance,
we ask the following questions:
1. Are the allegations made by appellant true; and,
if they are, is there a reasonable explanation for
counsel′s actions in the defense of the case?
2. If they are true, did the level of advocacy
“fall[] measurably below the performance . . .
[ordinarily expected] of fallible lawyers”?
3. If ineffective assistance of counsel is found to
exist, “is . . . there . . . a reasonable probability
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that, absent the errors, the factfinder would have
had a reasonable doubt respecting guilt?”
McConnell, 55 M.J. at 481 (quoting United States v. Polk, 32
M.J. 150, 153 (C.M.A. 1991)).
In this appeal, Appellant identifies a number of specific
problems with the performance of his counsel. First, Appellant
contends that his military counsel were deficient in not
bringing to his attention their concerns about the manner in
which Mr. D performed his duties as counsel. We have addressed
this matter in Section II, supra.
Second, Appellant contends that Mr. D was unfamiliar with
military practice, which led to difficulties in presenting
motions, preserving challenges, compiling witness lists,
addressing Military Rule of Evidence 412, providing notice of an
alibi defense, obtaining expert witnesses, and participating in
sidebar conferences. Appellant’s contention consists of a list
of alleged deficiencies and he does not detail how these matters
relate to the substantive issues at trial.
Third, Appellant contends that defense counsel erroneously
opened the door to negative testimony during the cross-
examination of PVT D. During the prosecution’s case-in-chief,
PVT D testified in connection with the rape charge, stating that
Appellant often used a fake name. The testimony of PVT D aided
the prosecution by corroborating the assertions of Ms. P and Ms.
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H, who testified that Appellant used a false name during his
initial contact with them on the day of the rape. During cross-
examination, defense counsel attempted to impeach PVT D by
showing that he had a motive to lie so he could avoid
prosecution for drug abuse. In response to this line of
questioning, the prosecution during redirect examination
elicited testimony from PVT D that his cooperation with the
Government did not stem from potential drug charges, but because
Appellant’s former counsel had tried to bribe him. Appellant
contends that this negative testimony emerged because defense
counsel erroneously opened the door during cross-examination of
PVT D about his motives. In addition, Appellant contends that
his counsel erred by asking a question which led PVT D to state
that one of the false names used by Appellant was “Mike
Robinson,” which enabled the prosecution to link PVT D’s
testimony to Ms. P and Ms. H’s statements that Appellant had
used a similar fake name during his encounters with them.
Fourth, Appellant contends that his counsel failed to
exploit inconsistencies between Ms. P’s testimony at trial and
her pretrial statements. At trial, Ms. P testified that the
rape occurred in front of the TV in the living room and that her
assailant unbuttoned his pants. Appellant contends that defense
counsel could have cast doubt on her testimony by questioning
her about pretrial statements in which she said that the rape
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occurred in the bedroom and that her assailant had unzipped his
pants.
Fifth, Appellant contends that his counsel erred by not
asking the husband of Ms. P to testify as to her character for
untruthfulness. Appellant also asserts that the defense could
have more aggressively exploited the husband’s testimony that he
had an advance view of the photo lineup and discussed it with
her before she identified Appellant.
The Government takes the position that the defense team
prevailed on a variety of motions, offered an aggressive defense
both through cross-examination and direct presentation of
witnesses, made reasonable strategic choices regarding the
examination of PVT D, Ms. P, and her husband, that any alleged
deficiencies involved evidence that was peripheral or
cumulative, and that any other deficiencies were not outside the
range of performance covered by either the first or second prong
of Strickland.
The primary evidence against Appellant consisted of the
forensic evidence matching his DNA to the sperm extracted from
Ms. P during her sexual assault exam. According to the
prosecution’s expert witness, this match would occur only in 1
in 4,500,000 African-Americans; 1 in 5,300,000 Caucasians; and 1
in 1,900,000 Southwestern Hispanics. In addition, the
prosecution connected Appellant to the convenience store
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robberies through direct testimony and the video surveillance
tapes. Appellant has not demonstrated that any of the
deficiencies raised in this appeal would have altered the
powerful import of the DNA and identification evidence in
establishing Appellant’s guilt. Under these circumstances, we
need not determine whether any of the alleged errors established
constitutional deficiencies under the first prong of Strickland,
because any such errors would not have been prejudicial under
the high hurdle established by the second prong of Strickland.
IV. CONCLUSION
The decision of the United States Army Court of Criminal
Appeals is affirmed.
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