More--sort of--on VIS

Friday, August 25, 2023
Petition for Grant of Review - Summary Disposition
 
No. 23-0004/AF. U.S. v. Humphrey Daniels III. CCA 39407. On further consideration of the granted issue, 83 M.J. (C.A.A.F. 2023), and in view of United States v. Harrington, 83 M.J. ___ (C.A.A.F. 2023), it is ordered that the decision of the United States Air Force Court of Criminal Appeals is affirmed as to findings but set aside as to sentence. The case is returned to the Judge Advocate General of the Air Force for remand to that court for a new review under Article 66(c), Uniform Code of Military Justice, 10 U.S.C. § 866(c) (2016).  In its review, the AFCCA should consider whether any of Appellant's challenges to the delivery of the unsworn victim statement during the sentencing phase of his court-martial have been waived, forfeited, or preserved, and address them accordingly.  See United States v. Steele, 83 M.J. 188, 191 (C.A.A.F. 2023) (explaining that "[w]hether an issue is waived or forfeited is an issue of law that this Court could decide" but concluding that it was preferable to "remand the case to allow the [CCA] to rule on th[at] question in the first instance").

Appellant’s case is before us (AFCCA) for the second time. A general court-martial composed of officer members convicted Appellant, contrary to his pleas, of one specification of negligent dereliction of duty, one specification of rape, and four specifications of conduct unbecoming an officer and a gentleman in violation of Articles 92, 120, and 133, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 892, 920, 933, corresponding to Charges I, II, and III, respectively. The court members adjudged a sentence of a dismissal, confinement for three years, and a reprimand.

Daniels initially benefitted from Manangahas but then didn't because of Briggs. Among the issues was an IAC claim,

whether Appellant’s lead civilian trial defense counsel was ineffective by failing to challenge a court member, failing to fully cross-examine the alleged rape victim, failing to request a certain findings instruction, failing to object to the alleged victim presenting her unsworn statement in question-and-answer format through trial counsel, and failing to disclose to Appellant a personal conflict of interest[.]

Here is, partly, what seems to have drawn the remand.

During presentencing proceedings, trial defense counsel objected to TS being permitted to give an unsworn statement to the court pursuant to R.C.M. 1001A on the grounds that the rule did not exist and unsworn victim statements were not authorized at the time of the offense in 1998. Trial defense counsel also objected to TS providing her unsworn statement orally in a question-and-answer format, on the grounds that R.C.M. 1001A did not specifically enumerate such an option, and to not being given an advance written copy of the unsworn statement. The trial judge ultimately overruled the first two objections, but she did require TS to present her oral unsworn statement in an Article 39(a), UCMJ, 10 U.S.C. § 839(a), session before providing it to the court members. During this Article 39(a), UCMJ, session, the military judge observed that R.C.M. 1001A(e)(2) “seem[ed] to require the victim’s own counsel do the questioning.” In response, trial defense counsel clarified that the Defense “d[id] not have an objection to the government counsel doing the question and answer.” After trial counsel additionally represented that the proposed question-and-answer presentation had been coordinated with TS’s Special Victims’ Counsel (SVC) and that it was what TS wanted, the military judge allowed it.

But,

In their declarations, all three trial defense counsel state Mr. AC made a “strategic decision” not to object to trial counsel’s participation. As Mr. AC explained, the evident alternative was that TS’s SVC would conduct the questioning, and trial defense counsel believed questioning by the trial counsel would lead to a “more tightly constrained” and “less emotional” unsworn statement, which was preferable from the Defense’s perspective. We find this was a reasonable strategic decision to forego the objection.

I dunno. The DC statement contains sufficient language of waiver based on a reasonable tactical choice.

​Perhaps the earlier objection to the TC lead Q&A confuses things, "Trial defense counsel also objected to TS providing her unsworn statement orally in a question-and-answer format, on the grounds that R.C.M. 1001A did not specifically enumerate such an option[.]"