Air Force Court of Criminal Appeals

Appellant Nix was convicted MJA of an assault and battery on his ex-wife, for which the MJ sentenced him to 135 days, RiR, a BCD, and a reprimand.

Appellant raises one assignment of error with six underlying allegations that trial defense counsel was constitutionally ineffective during his representation of Appellant by failing to: (1) object to improper findings testimony; (2) call a defense expert witness; (3) object to admission of incomplete personnel records; (4) object to an improper victim impact statement; and (5) investigate favorable defense witnesses. In addition, Appellant claims (6) trial defense counsel’s “misplaced concern for the named victim amounted to an actual conflict of interest which adversely impacted his representation” of Appellant by withdrawal of a valid objection during sentencing.

​Although the rationale given by trial defense counsel to explain his advocacy during sentencing is perplexing, Appellant has not shown that any of his allegations constituted a deficiency of a constitutional scale or error that materially prejudiced his substantial rights. We thus affirm the findings and sentence. 

Initially the IAC claims items (1) - (5) was a Grosty. The court ordered DC declarations. Upon receipt of the declaration, appellant's counsel added item (6) and also moved the issues from the Grosty table to a merits issue. (Note. This is another case where sometimes a Grosty issue gets the court's attention and sometimes, although not here, gets relief.)

1. Improper findings testimony.

A witness testified about lingering pain and about the appellant's "personal morals." There was no objection. However, the MJ sua sponte said he'd only consider the testimony for the limited purpose of "why the witness remembers the conversation." Even if error, no prejudice on these facts.

​2. Not calling an expert.

​Appellant next alleges that a defense expert in oral and maxillofacial surgery could have rebutted the Government’s theory that Appellant caused JN’s injuries by striking her with his hand. Appellant contends that this expert would have testified the force that caused JN’s injuries was the equivalent of a car crashing into a wall at 40 miles per hour. Appellant argues that this testimony would have shown that he could not have caused JN’s injuries and thereby created reasonable doubt.

In his declaration, trial defense counsel explains his rationale as follows:

​[A]fter speaking with [Appellant] and reviewing documentation, I made the decision to request an expert in psychology based on the fact [Appellant] maintained the position that he did not remember what occurred after pouring water on his ex-wife and that he came to in a closet. Between the conversations with our expert [in psychology] and the conclusions made by the court after the results of the sanity board, the proposed explanation appeared to have limited effective range. In a best[-]case scenario a maxillofacial expert could provide information on how an injury occurred, but definitely attributing an injury to a single action is unlikely, and our case lacked surrounding context to make any alternative injury origin theories reasonable. A worst[-]case scenario [of] requesting such an expert would only provide the Government with multiple opportunities with an expert to further bolster [its] case.
. . . Trial defense counsel’s decision here constituted a strategic decision regarding which defenses to mount. This decision was reasonable and also avoided the possibility of enabling the Government to bolster its case through cross-examination of a defense expert at the expense of presenting expert testimony of limited defense value.

As with any witness, including the accused, the DC here was presented with the normal questions of what is the value added and what is the potential for devaluation.

3. Not objecting to an LOC that did not have the rebuttal letter attached (or, not raised, offering it under Mil. R. Evid. 106). The DC admitted error. "Appellant states his written response would have mitigated the counseling but fails to identify how or explain why. The written response was not included in a post-trial declaration of Appellant and is not before the court." (Pity the TC didn't offer a complete record from the official personnel file.)

4. Not objecting to the VIS.

During sentencing and before JN delivered her three-page victim impact statement, trial defense counsel objected that some parts of the impact statement fell outside of that allowed. The military judge recited the rules applicable to victim impact statements and asked trial defense counsel to specify which portions of the statement he considered impermissible. Trial defense counsel then withdrew his objection. Thereafter, the military judge emphasized that the court was well-versed in the admissibility of victim impact statements and would be able to “parse the permissible from the impermissible.”

​Appellant contends trial defense counsel’s withdrawal of a valid objection to the victim impact statement fell “measurably below the performance standards ordinarily expected of fallible lawyers,” because the inadmissibility of “large portions of JN’s victim impact statement” should have been obvious to even inexperienced counsel, and because the military judge highlighted the boundaries of impact statements just before trial defense counsel withdrew his objection. Appellant argues this alleged failure prejudiced him because he presumes the court considered inadmissible information and because the objection’s withdrawal waived the issue on appeal. 

Not a guide to the perplexed.

​In his declaration, trial defense counsel states: With withdrawing a valid objection to the victim impact statement, in the moment I was cognizant of the fact that JN was without a Special Victims’ Counsel and that it was likely she could perceive sustained objections as an attempt to “silence her,” therefore reflecting poorly on the parties or the institution of military justice as a whole. Coupled with my own internal frustrations at being unable to relay my objection clearly without taking the unsworn line by line, I withdrew my objection believing the military judge capable of discerning what was and was not appropriate for consideration at that time

This part of the declaration is where the question of abdicating the DC role and a conflict of interest appears to come from.

​Like Appellant, we question the logic behind trial defense counsel’s decision to withdraw his objection. On this record, we are disinclined to give much weight to the claim that a lengthy evidentiary objection during the sentencing phase of a court-martial would cause a victim to feel silenced, or either the victim or general public to view the military justice system poorly. We also question why trial defense counsel made a tactical trial decision based on the victim’s potential feelings and how such a decision might reflect poorly on the military justice system. However, we must place this decision in context. Regardless of his thought process, trial defense counsel withdrew an evidentiary objection during judge-alone sentencing, after the military judge had cited the applicable rule, and he did not renew his objection after the military judge conveyed that he would not consider any improper portions of the victim statement. In context, trial defense counsel cannot have prejudiced Appellant.

After rehearsing the many good things DC did for the case, "​Despite his questionable logic in deciding to withdraw his objection to the impermissible portions of the victim impact statement, trial defense counsel provided Appellant with thorough representation."

5. Failure to investigate.

Appellant asserts in his declaration that he provided trial defense counsel with names of several witnesses who would have testified favorably on his behalf during both the findings and sentencing portions of his court-martial. These witnesses were an unnamed medical case manager and two of Appellant’s friends. Appellant argues his counsel’s failure to call these witnesses prejudiced him. Appellant, however, fails to provide any detail regarding what, if anything, these witnesses would have said if they were called to testify or provide a statement on his behalf.

​6. Conclusion In addition to the above, trial defense counsel secured for Appellant an acquittal on Charge I and its specification. Given trial defense counsel’s thorough, if less than perfect, representation of Appellant, we find Appellant was neither deprived of a fair trial nor was the trial outcome unreliable. See Strickland, 466 U.S. at 696. While we may question one part of trial defense counsel’s rationale when he withdrew his objection to the victim impact statement, we conclude that trial defense counsel’s overall level of advocacy did not fall measurably below the performance ordinarily expected of fallible lawyers. Therefore, we conclude from our review of the record and all post-trial declarations that Appellant was not denied constitutionally effective assistance of counsel. Accordingly, and for the reasons given, we find Appellant’s claims do not warrant relief.