Zimmerman has a couple of interesting points.
(3) Did the Appellant receive ineffective assistance of counsel.
(5) Did the military judge abuse his discretion when admitting propensity evidence under Military Rules of Evidence (Mil. R. Evid.) 404(b) and 413.
(6) Did the military judge abuse his discretion in admitting certain sentencing evidence.
(7) Did trial counsel commit prosecutorial misconduct during his argument on sentencing.
The defense had information that
[A]pproximately seven months before the sexual assault she had gone on one date with Appellant. SP told the agents that during the date she and Appellant had “made out,” and that he had consensually kissed her when he dropped her off at a friend’s house after the date. However, Appellant and SP did not continue to date thereafter and had no further romantic relationship.
The defense made a deliberate choice not to make a Mil. R. Evid. 412 motion, nor did they raise the 412 information during cross-examination.
DC explained that not seeking to confront SP with evidence of her prior date with Appellant was an intentional strategic and tactical choice. DC explained the Defense assessed the date had low probative value as to whether SP was attracted to Appellant and consented to sexual intercourse approximately seven months later. To the contrary, the fact that there was only one date followed by seven months of inactivity could be interpreted as evidence of SP’s lack of sexual interest in Appellant. In addition, trial defense counsel anticipated SP would be a canny adverse witness who would likely portray her date with Appellant in a negative light on cross-examination, potentially further damaging the Defense’s case. DC explained how he intended to use other methods—such as the perceived improbability of certain aspects of SP’s account, certain allegedly inconsistent statements SP made about the sexual assault, and her motives to fabricate the allegation—to undermine SP’s credibility, such that attempting to confront SP about the date was unnecessary, risky, and of dubious probative value.
Not unreasonably, the court did not find IAC. The opinion suggests the DC did what we do in making a value-added--devaluation analysis. The analysis can be more important to the defense. What value is added to the defense case, how might the prosecution case be devalued, and, just as importantly, what value-added tax may be imposed by the prosecution's rebuttal or use of that evidence?
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