Court of Appeals for the Armed Forces

​No. 23-0085/AF. U.S. v. Jonel H. Guihama. CCA 40039. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:
 
WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION BY ADMITTING A CONFESSION THAT WAS NOT TRUSTWORTHY BECAUSE IT LACKED SUFFICIENT CORROBORATION. An issue of note,

Consistent with that authority, in United States v. Perkins, the CAAF acknowledged “[a] familiar principle of appellate practice is that an appellee or respondent may defend the judgment below on a ground not earlier aired.” 78 M.J. 381, 386 n.8 (C.A.A.F. 2019) (alteration, internal quotation marks, and citations omitted); see also United States v. Bess, 80 M.J. 1, 11–12 (C.A.A.F. 2020) (approving Court of Criminal Appeals’ decision to uphold the ruling of a military judge for a different reason than the ones on which the military judge relied). We also find persuasive the concurring opinion by Judge Hardy in Whiteeyes, which considered the findings testimony of an expert witness even though “the military judge did not have the benefit of the expert witness’ testimony when he ruled on Appellant’s motion.” 82 M.J. at 180 (Hardy, J., concurring in the judgment). Judge Hardy noted that testimony was “properly included in the joint appendix and can be considered by this Court.” Id. The opinion of the court in Whiteeyes similarly relied on that expert witness’s testimony.

No. 23-0206/AF. U.S. v. Ryan M. Palik. CCA 40225. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:
 
THE GOVERNMENT LOST THE ONLY TWO VIDEO-RECORDED STATEMENTS FROM SM, THE COMPLAINING WITNESS FOR EVERY CONVICTED OFFENSE. DID DEFENSE COUNSEL PROVIDE INEFFECTIVE ASSISTANCE BY FAILING TO FILE AN RCM 914 MOTION AFTER SM'S TESTIMONY?

We find that Appellant has failed to meet his burden to demonstrate deficient performance by his trial defense counsel. Applying the Polk factors to the present case, it is uncontroverted that trial defense counsel did not file a motion under R.C.M. 914 for production of SM’s video-recorded statements to AFOSI. That said, we find that Appellant’s trial defense counsel have articulated a reasonable rationale for not doing so—they could not confirm that the video recordings in question ever existed, and feared they might exist. We also find that it was reasonable for Appellant’s defense counsel to question whether the video recorded interviews existed because the videos had never been viewed by AFOSI agents or any member of the prosecution team.

Trial defense counsel have further articulated that they strategically chose not to press the Government to either search for the videos or produce the videos because they did not think it would be helpful to Appellant’s defense. On this point, we find it reasonable for Maj AN to conclude that she “did not want to give trial counsel the ability to use a video recording for prior consistent statements with a potentially sympathetic victim visually depicted in the video.” Further, she feared the “likelihood that [SM] would appear distraught, disheveled, or injured in any video recording given her immediate reporting of the assault” would garner sympathy from the members. Finally, she explained her strategy was to “highlight that [AF]OSI did not have the video recordings in an effort to discredit the investigation.” We do not find these strategic decisions by Appellant’s trial defense counsel unreasonable or based on inadequate investigation