Petition for Writ of Certiorari — Christy v. United States
Supreme Court brief1997
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Supreme Court, U.8.
FIL & PD
961869 MAY 23 1997
OGFICE OF THE CLERK
IN THE
Supreme Court of the United States
OCTOBER TERM, 1996
STAFF SERGEANT DERRELL A. CHRISTY, PETITIONER
V.
UNITED STATES OF AMERICA, RESPONDENT
Petition for a Writ of Certiorari to the
United States Court of Appeals for the Armed Forces
PETITION FOR WRIT OF CERTIORARI
GERALD R. BRUCE
Major, United States Air Force
Appellate Defense Counsel
Counsel for Petitioner
ORMOND R. FODREA
Major, United States Air Force
Appellate Defense Division
Counsel of Record
Air Force Legal Services Agency
Appellate Defense Division
112 Luke Avenue, Suite 343
Bolling AFB, DC 20332-8000
(202) 767-1562
May 1997
ow. SL mi
QUESTION PRESENTED
Whether the petitioner was denied the right to the
effective assistance of counsel under the Sixth Amendment
when his trial defense counsel, after informing the court
members during opening statement the defense was going to
present evidence of the petitioner’s peaceful, law-abiding
nature and good military character, and establish the suicidal
tendencies of the deceased through expert testimony,
nonetheless failed to present any evidence on the basis that
there “was no defense in this case.”
TABLE OF CONTENTS
BPMRPRMES IT FURS EEPUPRR ERIS fi viv ecvncecnueceesaces iv
SRP EE ico boc ee vee Wk cde eet ween eae oe
EE ener ee Pee eer mee l
CONSTITUTIONAL PROVISIONS INVOLVED ...... l
RPURMIIEEE SAR BORIS POSES 0 eee es ves ese caa ness I
REASON FOR GRANTING THE WRIT ............. 18
lg a har eith oa RSS AA eR COD 40
APPENDIX A (Opinion of the United States
Court of Appeals for the Armed Forces) ............... la
APPENDIX B (Opinion of the United States
Air Force Court of Criminal Appeals) ................ 10a
iV
TABLE OF AUTHORITIES
Supreme Court Cases:
Adams v. U.S. ex Rel. McCann, 317 U.S. 269
GREE: Sa RSPR ER Cae hae Cee UE RAS Rees 24
Edington v. United States, 164 U.S. 361 (1896) ..... 31
Kyles v. Whitley, 115 S.Ct. 1555 (1995) ........... 42
Lockhart v. Fretwell, 113 S.Ct. 838 (1993) ......... 25
Sielaff v. Williams, 423 U.S. 876 (1975) .......... 41
Strickland v. Washington, 466 U.S. 668
GOED hebben oee eee re ees 24, 25, 30, 41
United States v. Chronic, 466 U.S. 648
COE nck We Sie ck Ak ek ae Len pe 24, 41
Federal Cases:
US.
U.S. ex Rel. Emerson v. Gramley,
BOS FUG. 2h) CLUE. BFF cso ec vencacesenr 30
Court of Appeals for the Armed Forces Cases:
United States v. Belz, 20 MJ 33 (CMA 1985) ...... 26
United States v. Benedict, 27 MJ 253 (CMA 1988).. 26
United States v. Brown, 41 MJ 1 (CMA 1994)... 26, 27
United States v. Christy,
SG ME AT CES) eaten eacuswne 1, 14, 21, 37, 41, 42
United States v. Clemons, 16 MJ 44 (CMA 1983)... 26
United States v. Conrad, 15 USCMA 439,
Sr Ge eT LO cs a cae eas ek cee 25
United States v. Court, 24 MJ 11 (CMA 1987) ..... 26
United States v. DuBay, 17 USCMA 147,
Be Ren Ee CET sc kines con ean REG emi 2
United States v. Gnibus, 21 MJ 1 (CMA 1985)..... 25
United States v. Johnson, 21 MJ 211 (CMA 1986)... 25
United States v. McNeil, 17 MJ 451 (CMA 1984)... 26
| United States v. Piatt, 17 MJ 442 (CMA 1984)..... 26
United States v. Phillips, 3 USCMA 137,
| Ee BK Me 4) Rr eres rerurny 25
United States v. Smith, 34 MJ 341 (CMA 1992).... 26
United States v. Stombaugh, 40 MJ 208
iG > RRSP ee rere rer a a nee y" 27
United States v. Van Syoc, 36 MJ 461
CCA RODS 6 ne eee eae a Rea es ple wee 19
United States v. Vanderlinder, 20 MJ 41
(8) eee re ee ee re roc 26, 31
Court of Criminal Appeals Cases:
United States v. Arnold, 40 MJ 744
EU, BOE Riu ook re Oe Ea mk ee 19
United States v. Mansfield, 24 MJ 611
ETE BE vou eh hoe ek es ore oe bx 25, 40
United States v. Mansfield, 33 MJ 972
(AFCMR 1991), aff’d 38 MJ 415 (1993) ......... 36
United States v. Newman, 34 MJ 1100
CRA SE ie 6b va Reh e hae eae be oe eke’ 27
United States v. Williams-Oatman, 38 MJ 602
tit! Oy: rere erage ce rere 27
Uniform Code of Military Justice, 10 U.S.C. §§ 801 et seq.:
RE TE io so iced ee bw ee aur wes 25
vi
Po Doe eR ema eee Paneth Gael ara eee l
SN RINE. i bok ae cue eetan ee kewebens 36
TE NE es do eka k SRE ee eee eee 36
ane EES 6k 66:6. 0's cas See eens 26
es SUE ka 6 Se bna eel KARR Sea 36
es ROORED isa chGchbeuareee Cee han eren 37
Federal Statutes:
SEI 6 oe re ec
USC 6 OO oe ee 1
BT Aan BORG bb nreek cree eee lig hie es 25
The petitioner, Staff Sergeant Derrell A. Christy,
respectfully prays that a writ of certiorari issue to review the
order and judgment of the United States Court of Appeals for
the Armed Forces entered in his case on 10 March 1997.
OPINIONS BELOW
The order and judgment of the United States Court of
Appeals for the Armed Forces, reported at United States v.
Christy, 46 M.J. 47 (1997), is located at Appendix A. The
unpublished opinion of the United States Air Force Court of
Criminal Appeals (A.F. Ct. Crim. App., 14 February 1996), is
located at Appendix B.
JURISDICTION
The judgment of the United States Court of Appeals for
the Armed Forces was entered on 10 March 1997. The
jurisdiction of this Court is invoked under 28 U.S.C.
§ 1259(3) (West Supp. 1996) and 10 U.S.C. § 867(a) (West
Supp. 1996).
CONSTITUTIONAL PROVISION INVOLVED
The Sixth Amendment to the United States Constitution
provides, in relevant part: “In all criminal prosecutions, the
accused shall enjoy the right . . . to have the assistance of
counsel for his defence.”
STATEMENT OF THE CASE
The petitioner was convicted of the unpremeditated
murder of his wife, Lori Christy, in violation of Article 118 of
the Uniform Code of Military Justice. He was sentenced to
confinement for thirty-five years, a dishonorable discharge,
total forfeiture of all pay and allowances, and reduction to the
grade of airman basic. In response to the petitioner’s post-trial
assertion of ineffective assistance of counsel, the convening
authority ordered an unusual post-trial Dubay hearing.! The
record of trial and the post-trial hearing record tell the sad
story of the Christy family and the deficient performance of
petitioner’s defense counsel.
Mothers Day, 9 May 1993, was supposed to include a
shared family outing between the Christy and Miller families
at a park on Whiteman Air Force Base. Indeed, it began tnat
way. The planned events changed, however, when Lori
Christy and Jeanette Miller returned to the Christy household,
ostensibly to pick up baseball gloves for the Christy’s
daughters. Lori and Jeanette had another reason for wanting
be alone; they had been lesbian lovers for severai weeks. R.
188.
What Lori and Jeanette did not realize at the time was
that their husbands, Derrell Christy and George Miller, did not
remain at the park. Instead, they also drove back to the
Christy residence. When the petitioner walked into the
residence, he found Lori and Jeanette in a sapphic embrace on
the couch. R. 189. Upon being interrupted, Lori “jumped up”
and Jeanette disappeared into the bathroom. R. 189. Shortly
thereafter, Lori entered the bathroom and told Jeanette
“{djon’t worry; it’s OK.” R. 189.
Jeanette then walked out of the house followed by the
petitioner. Jeanette asked the petitioner if it would be all right
if the Millers took the Christy children to their home since
'This procedure was unusual in that a post-trial Dubay hearing much more
commonly would be ordered by an appellate court, rather than the
convening authority. Indeed, the so-called Dubay hearing had its genesis
in the appellate context. United States v. Dubay, 17 USCMA 147, 37 CMR
411 (1967). Citations to the record of trial are prefaced with an “R” (e.g.,
R. 31), while citatiens to the post-trial Dubay hearing are prefaced with
“RD” (e.g., RD 195). Exhibits introduced at the post-trial hearing are
prefaced with the letters “HE” (e.g., HE 6).
Lori and the petitioner would probably want to discuss the
homosexual episode and “it would be better that the girls not
be there.” R. 189. Jeanette had no similar concerns with her
own husband; George Miller was not only aware of the
lesbian affair, he had previously joined the two women in a
menage a trois. R. 217.
Once the Christys were alone, the petitioner did not react
the way Lori and Jeanette expected. Within thirty minutes,
Lori called Jeanette to tell her “that everything was OK, that
[petitioner] was acting as though he wasn’t even aware of
what was going on.” R. 189. At around 1700 hours on that
same day, Lori called to ask if Jeanette was going to go to
church with her.” After leaving the church service, the two
women sat in the Miller’s driveway “and talked for awhile.”
R. 190. Jeanette next heard from Lori when she received a
phone call around ten-thirty that evening:
She called my house at about 10:30 or so and
indicated to me at that time that Derrell still was
giving her the impression that he wasn’t aware of
the relationship or hadn’t given her any kind of
indication that he was going to talk about it. I told
her that she was crazy if she didn’t think that he
knew what was going on. She said everything was
OK and he was behaving normally, and then I hung
up the phone.
The subject of the church sermon could not have been on a more timely
subject; the evil of homosexuality. HE. 5. Either as a result of this sermon,
or due to previous spiritual concerns, Lori marked passages in her bible
referencing God’s condemnation of homosexuality. RD. 72. While Capt
Champion, the assistant trial defense counsel, testified that he was
unaware of the bible at the time of trial, it appears to be plainly visible on
the dresser depicted in Pros. Ex. 3. Further, the petitioner’s sister, Pauline
Miller testified that she informed Capt Champion of this. RD. 74.
Ironically, Lori and Jeanette met at the church’s “Vacation Bible School”
in August 1992. R. 187, 203.
R. 190
Apparently the petitioner’s silence was not to last.
Jeanette Miller testified:
At about 12:30 at night, or around that time, [Lori]
called crying and said that he knew—you
know—that he had confronted her, that she had told
him the truth, and that she was very anxious and
upset and indicated that she was going to take the
Flexeril[*] that she had. So I handed the phone to
George who talked to her until I ran up to the house,
which was—it’s just about a block away, if that
much—and when I got in the door, she hung up the
phone with George and then I proceeded to talk to
her.
R. 190.
After Jeanette arrived at the Christy’s residence, she
found that Lori had not exactly “told [petitioner] the truth.”
“She indicated to me that she had told him that it was the first
time that anything had ever happened, it was a mistake, and
had tried to basically pacify him with that kind of
information.” R. 190. According to Jeanette, she convinced
Lori that she shouldn’t take the Flexeril pills, reminding Lori
of her own prior assessment that suicide was “selfish” and
“unfair.” R. 191. Lori was persuaded, expressing her emphatic
agreement: “You’re right, you’re absolutely right.” R. 192.
Jeanette did not want to leave the Christy residence until
the petitioner returned. However, after Lori assured her that
she was no danger to herself, Jeanette returned to her own
home. The next day, Monday, 10 May 1993, Lori went over to
the Miller residence. According to Jeanette:
3Described in the record as a “mild muscle relaxant.” R. 191
She was upset and she was very sad, but she was
calm and rational. She was projecting into the future
and trying to make some decisions about what she
would do with regard to going—continuing her
education—going to school—where she would
live—how she would live. I reminded her of the
calls that she had made about, I would say a week
prior to this, to the Division of Family Services and
Legal Aid and those places where she had already
called to find out information about how you go
about getting a divorce and how you get help. And
we went over again, you know, what she would do
with regard to talking to Derrell, how she would
approach him, and she was very calm.
R. 193. According to Jeanette, the two women visited for
about an hour and a half, during which time Jeanette told Lori
“that she needed to tell [petitioner] the truth about our
relationship and not to leave him with the impression that it
was something that happened just one time.” R. 193.
I told her that she should go up and bring the girls
down so George could watch them so that they
wouldn’t be there at the house while she talked to
Derrell. She went up and got them and brought
them down and then we went back up to the house.
I was under the impression that she was going to tell
Derrell that I was coming with her, but that was not
the case, and, when I arrived at the house, Derrell
was walking out the door, and, as soon as he saw
me in the car, he immediately went back in the
house. He was visibly angry.
R. 194.
Jeanette then “followed Lori into the house. She went in
and sat down in the living room. I sat down in the living room
and listened to their conversation.” R. 194. The petitioner and
his wife talked for “maybe a half an hour or forty-five
minutes, or something like that.” R. 195. They discussed
“getting a thirty day separation” and “the impression was that
they were going to get a divorce.” R. 194.
The conversation ended a little before 1800 hours when
Lori told the petitioner that she was still intending to go on a
pre-planned trip with Jeanette. Upon hearing this, the
petitioner “slammed down his hands on the chair and
immediately got up and stormed out of the house and
slammed the kitchen door, and Lori followed him out there.”
R. 195. The petitioner told the women that he was going to
“get gas and would meet us up at the [Whiteman Elementary
School] program” scheduled for 1900 hours. R. 195. After the
petitioner left, Jeanette remained with Lori for about fifteen
more minutes and reminded “her of the plans that she had and
how everybody would be supportive of her...” R. 195.
Jeanette left the Christy home around 1815 hours. Prior
to leaving, she told Lori that she would pick out some clothes
for the Christy children to wear to the school program and
“Lori could take a shower and get ready.” R. 196. The
agreement was that Jeanette would return and pick up Lori at
1845 hours and they would attend the program together. At
the appointed time, Jeanette called the Christy home but no
one answered. The Millers then drove over to the Christy
home. Upon arriving, Jeanette noticed that the kitchen door
was open, but the screen door was closed. When no one
responded to her knocks on the door, Jeanette entered the
residence. R. 197.
Jeanette walked through the Christy home while calling
out for Lori. When she entered the master bedroom, she
noticed that Lori had indeed taken a shower; water was
dripping in the shower and a towel was sitting out. See Pros.
Ex. 3, R. 197. Jeanette also noted that the bed was unmade
and an alarm clock was “flashing and going off at 6:45 PM.”
R. 198, 199. She also checked the other bedrooms for Lori, to
no avail.
According to Jeanette, she then “went downstairs into
the basement and when I walked down the stairs, I stopped at
the bottom of the stairs.” See Pros. Ex. 1, R. 197, 198. When
she reached this area, Jeanette stopped and yelled Lori’s
name. “I didn’t go any further into the basement, other than to
look around the corner to the laundry area, and I couldn’t see
anything in the laundry area, and I didn’t go any further, and
then I went upstairs.” R. 197. Jeanette testified that she was in
the Christy home for “[n]o more than two minutes, probably.”
R. 197. Jeanette explained what she did next:
I ran up the stairs and ran out and slammed the
kitchen door and walked towards the car feeling a
really bad feeling, but recognizing that I had to stay
calm because all of the kids were looking at me
kind of expectantly. I got in the car and said, “I
guess that maybe Derrell came to pick her up and
take her up there; I don’t know. She’s not there; I
don’t know where she is.”
R. 199.
The Miller family, along with the Christy children, then
drove to the school. Although there is some discrepancy
between the testimony of Jeanette and George Miller as to
what occurred when they first arrived, they both testified that
George looked around outside for the petitioner’s car.
According to Jeanette:
. .. [W]e went and sat down in the auditorium, and
after about maybe ten minutes, George came back
in, and, by this time, I would say ten to fifteen
minutes, Derrell had come into the auditorium, and
I had sent Raegan [Christy] over to get him and
show him where we were seated. He was sitting
down two to maybe three seats away from us.
George came in and knelt beside me and talked to
me and said, “I couldn’t find their cars—he’s
here—but where is she?” By this time I was very
panicky, and I said, “I don’t know were she is;
please g0 back to the house and look for her.” And
so he went back to the house.
R. 200.
As George Miller later testified, he then went back to the
Christy home on his own:
I entered the house. I pushed open the kitchen
door, and I started yelling Lori’s name. I
remembered that my wife had said that she
planned on taking a shower, so I headed back
towards the master bath. . . . I stood at the front
entrance of the master bathroom and I looked all
the way in to the end of it. The shower curtain was
open and I thought maybe she had fallen and hit
herself and was hurt in the shower. When the
shower curtain was open, I could see everything in
there, so I knew she wasn’t in there.
* * *
... [A]s I walked into the room and looked into the
bathroom, I also noticed the alarm going off, the
alarm clock that my wife had mentioned earlier. As
I turned to leave, continually calling her name, |
turned around and noticed a—I believe it was
black—step ladder in front of the closet that was
facing the—well, the same wall as the door.
* * *
Well, we live in identical units on base and it is the
same closet that I use, plus I probably saw uniforms
hanging there. I immediately got concerned
because—the step ladder being in front of the
closet—if I had a weapon in my home, that is where
I would put it to keep it away from my children—it
would be the top shelf of my closet. So |
immediately got concerned that there may have
been a weapon in the house and that it may have
been taken from the closet.
*x* * *
I immediately went directly out of the bedroom and
directly across the hall to, I believe, the oldest
daughter’s room. I pushed open the door yelling
Lori’s name, looking for her. I then went to the
youngest daughter’s room and looked in there and
also the bathroom, the hall bathroom.
* * *
I then went to the basement door, opened the door,
and, as I opened the door, I was startled by the dog
running up the stairs. I started down the stairs and
the dog turned and went down the stairs and then
proceeded to head off—at the bottom of the stairs,
headed right towards the little family room they had
set up down there, and I went to the left into a
laundry room.
* * *
Then I left the laundry room and was met by the
dog at the base of the stairs again. The dog turned
around and immediately ran in front of the sofa. I
followed the dog around the sofa and upon clearing
the back of the sofa, I saw Mrs. Christy crouched
down into the sofa. I started calling her name and
10
moved around to the front of her and noticed that
her complexion was very gray, her eyes were half
open and her mouth was slightly cracked open,
slumped in the couch, not moving.
* * *
I believe that I reached down to touch her to see if
she was sleeping or unconscious or anything and
upon reaching my hand down, I noticed about a
quarter size hole in her shirt with a little ring of
blood around it and some flesh. . . . I did notice a
large black shotgun.
* * *
I then—I was very upset at this time. I then
proceeded to leave the house. I backed up from
Mrs. Christy and pretty much ran out of the house.
R. 225-226.
According to Miller, he was so disquieted by the
discovery that he could not remember the phone number to
security police. Therefore, he got into his car and “sped off to
the law enforcement desk” to report his find. R. 226. Miller
testified that he arrived at the LE desk at between 1905 and
1915 hours. R. 227.
Jeanette Miller testified that after George had been gone
five to ten minutes, she “saw through the gym windows four
or five police cars go by with their lights on.” Jeanette “just
assumed they were connected [with Lori] somehow.” R. 200.
She gained entry to the school office and called the Christy
residence. The phone “was answered by a law enforcement
troop who indicated that there was a problem at the house.” R.
200. Jeanette returned and told the petitioner, “You have to go
home; there is a problem at your house.” R. 200.
1]
Sgt Duane Holmes testified that he was the third security
policeman to arrive at the scene after being notified that “there
was a possible suicide attempt” at the Christy residence. R.
231. After beginning a search of the upstairs portion of the
residence, Sgt Holmes and the other offficers received a radio
call “saying the person was downstairs.” R. 232. Sgt Holmes
explained what happened next:
At that time, we reversed order and Sergeant
Hermann opened up the door and he went
downstairs first. 1 was behind him and Sergeant
Latta covered up the rear. We got down to the end
of the steps and Sergeant Hermann went off to the
left into like a laundry room that was curtained off;
myself and Sergeant Latta went off to the right.
* * *
When we went off to the right, we—Sergeant Latta
went off to the left-hand side and I went off to the
right, and, when we approached the couch, that’s
when we found Mrs. Christy.
* * *
At that time, Sergeant Latta felt for a pulse and
there was no pulse. The hospital clinic came
downstairs; they verified that she was deceased.
When they were coming around by the shotgun,
that’s when I picked it up, because they were getting
too close to it, and moved it over to the north wall.
* * *
It [the shotgun] was laying on, more or less, the
victim’s lap. It was not in her lap, but it was in front
of her left knee. The butt of the gun itself was
laying on the floor next to her right foot and the
barrel itself went across from her front knee—in
front of it—and laid on the couch.
R. 232,239:
After moving the shotgun, the officers tried to “clear” it.
However, they found that “the charging handle itself wouldn’t
go down.” R. 234. After hitting the slide release, they were
able to eject the fired round. This indicated that the action had
been opened and shut sometime after the round had been
fired. R. 234-237. They also found an unfired shotgun shell
between Lori’s feet. R. 237.
The cause of death was determined to be the discharge of
the shotgun into Lori’s chest. R. 315. It was determined that at
the time the shotgun was fired, the barrel was either in
contact, or near-contact, with Lori’s chest. R. 314. It was also
determined that the angle of the wound was slightly
downward 20-25 degrees. R. 315.
The initial focus of the OSI investigation was on a theory
that Lori had committed suicide. R. 35-36. There was good
reason for this. First, it wasn’t until the next evening that the
security police officers informed the lead OSI investigator,
SA Messick, that they had found the shotgun in a cocked
condition.* Second, it was known that Lori had threatened to
commit suicide the night before. Third, what could be
interpreted as a suicide note, in Lori’s handwriting, was found
on a “computer hutch” in the upstairs living room. R. 252,
Pros Ex 7, 10. Fourth, as mentioned above, the wound was of
the contact or near contact variety. Fifth, Lori’s left hand had
visible gunpowder residue. R. 250, 251, 285, Pros. Ex. 5.
Another possible theory was a “double” suicide pact
between the two lovers, Jeanette Miller and Lori Christy. R.
*Even when SA Messick was informed of the condition of the shotgun, he
still considered “that maybe the security police had done something which
they felt bad about and were now shading things” to conceal it because
“that’s happened in the past.” R. 36.
13
37. This theory was circumstantially supported by the results
of gun powder residue testing conducted on the petitioner,
George Miller, and Jeanette Miller. R. 14, 250. SA Messick
explained the results of that testing:
Derrell came back as—basically, there was nothing
on his hands, but it was consistent of somebody
walking around normally every day. Jeanie’s hands,
as the examiner told me, were too clean. | guess you
pick up organic compounds and those will come out
during their testing, in whatever procedure they use
for that. George Miller’s they noted as unusual
because there was a slight increase in the organic
compound, whatever is consistent with gunpowder,
I believe, on his right hand, but it did not meet a
threshold high enough to come back and
conclusively say he had, in fact, been in close
proximity to the weapon. So there were basically
two, Jeanie and George, that were questionable and
arose suspicion in the back of my mind.
R. 38-39 (emphasis added). See also R. 285.
SA Messick testified that he did not consider the
petitioner a suspect prior to 2 July 1993. R. 74. The OSI
investigator had established that petitioner had an alibi before
he even interviewed him. R. 16. This alibi consisted of
statements obtained by the security police from Darren
Barnard and Ray Ferraer.
They accounted for Derrell’s—essentially—his
whereabouts—from—I guess—to clarify—Derrell
left his residence. Jeanie Miller was still inside the
residence. She departed about 6:15. Derrell had left
prior to that. I believe he had stated about 15
minutes until 6 PM. He left the house while Jeanie
was still there. He was never seen returning to the
14
residence until the security police had already
arrived on the scene. He left the school and had
driven up into his driveway. To me there was
nothing that showed that. Witnesses had identified
George Miller’s vehicle returning to the residence
on a couple of occasions. Derrell’s car was never
seen.
R. 17.
The witness identifications of the Miller car included that
made by SSgt Peter J. Felis, Jr. He wrote: “. . . I walked to
approx 713 Earhart and my daughter was ahead of me on her
bike, I told her we (my son and [) were turning around to go
home, just as I turned I heard the screech of tires. I yelled to
my daughter to get to the side of the road. I looked down the
road and saw a dark, compact type car speed off. See item 16,
“Index to Preliminary Documentary Evidence,” United States
v. Christy, Allied Papers (emphasis added).° This “screech of
tires” was also heard by Alice L. Seemuth, who added that
shortly before the sound of the car speeding off, she heard “a
loud bang.” /d., item 17.
There were other factors which pointed to the presence
of someone other than the petitoiner in the Christy household
during the relevant time period. As Jeanette testified, the bed
in the master bedroon was unmade when she returned at 1845
hrs. While this might, at first glance, indicate only that Lori
laid down for a short nap, the autopsy revealed a different
interpretation. It was discovered that Lori was wearing a
vaginal diaphragm which had “several cc of a thick creamy
material on its surface.” 1.0. Exhibit 13, Allied Papers. While
it appears the “thick creamy material” was never analyzed, it
The peitioner’s vehicle was a Pontiac Firebird Trans Am. See, e.g., R.
240.
15
seems reasonable to assume that it was some type of
spermicidal jelly or foam normally used in conjunction with
diaphragms. Further, vaginal swabs were taken from Lori’s
body and a “moderate level of acid phosphatase activity
(indicative of semen) was present on these swabs.” I.O. Ex.
11, Allied Papers. While the laboratory report states that
“DNA comparisons to any seminal contributor can be
attempted on these swabs,” id., apparently no such tests were
conducted. Given the tension in the Christy marriage as a
result of Lori’s bisexual infidelities, it seems unlikely that the
petitioner was the recipient of ber sexual affections. Further,
given the sexual relationship between Lori and both of the
Millers, George Miller would seem a likely source of the
semen.°
The course of the investigation changed on 6 July 1993
when the petitioner made his first statement, placing him on
the scene when his spouse was shot. On that date, following a
polygraph examination conducted by SA Cain, the petitioner
“asked the question, ‘Was Lori’s eyes partially open and was
her mouth open when she was found.’” “At that point” SA
Cain “was convinced . . . that [petitioner] was present in the
house the day of her death.” R. 105. SA Cain also testified
that:
Further into the interview, he admitted that he did
return to the house that day, that when he returned,
he found Lori Christy in the basement with the
shotgun, leaning over the shotgun, in the process of
committing suicide. He said he bolted for the gun
°There is also the question about how, if George Miller fied the house in
such a panicked fog, the Christy dog ended up in the master bedroom with
the door shut. R. 232. It should be recalled, George Miller had testified
that upon discovering the body, he fled the Christy residence, leaving the
dog in the basement. R. 225-226.
16
and yelled “No” in the process, and when he hit the
gun or grabbed the gun, it fired.
R. 106.
On 8 July 1993, the petitioner was again interviewed by
SA Cain and SA Messick. R. 107. “At that point, we asked
him for the written statement and he said that he did not want
to make one but he was willing to continue the interview. He
wanted an opportunity to give the remaining details of what
happened, and, so, he said on the 10th that he would provide
this statement, which he did.” R. 108.
The interview conducted on 10 July 1993 lasted for
thirteen hours. R. 108. SA Cain testified that the petitioner
made changes from the statement provided on 8 July 1993.
The changes that he made was, on the 8th of July,
he stated that when he left Harbor Motors that he
went home and had the confrontation with Lori and
then the shooting occurred, and then he proceeded
to Darren Barnard’s house. On the 10th, he said that
he was mistaken, that he went to Darren Barnard’s
house before he went home because he said, during
the conversation with Mr. Barnard, that he had
mentioned something about clothes and what was
he going to do, because they had been discussing
divorce, and that reminded him that he probably
should go home and get some clothes, and that’s
why he went back to the house.
R. 109. See Pros. Ex. 14.
Another interview was conducted on 13 July 1993:
Initially, in the other statement, he was unsure of
who loaded the weapon; in his statement, he said
that he did load the shotgun. He also stated that they
argued and that she had made a comment about that
she would have been better off if she had committed
17
suicide. He said he called her bluff to that and that
they proceeded to the basement. He loaded the
weapon and handed the weapon to her. He said that
she leaned over the weapon, but that at no time did
she ever put her toe in the trigger guard. He said
that he was sitting in the chair, and, at that point, he
told her, “See, this is just another lie; you’ve lied
about everything else and you’re lying about this
also.” He said, at that point, he got up from the chair
and walked over to the gun and he bent down and
picked the gun up with his right hand. He said that
Lori Christy held onto the barrel of the gun with her
left hand and that the shotgun had pivoted against
her chest as he was bringing it up. He said as he
pulled the gun away, it fired because his thumb was
on the trigger guard.
* * *
He said that he brought his hand up to the gun [after
it was fired] and he thinks that the shell was ejected
from the gun at that point. He said that in panic that
he decided to reload the shell in the gun because he
didn’t think anyone would believe him, so he put
the spent shell back into the shotgun and he said he
did recall that she had written a suicide note
because she had shown him the note when they
were in the living room, so he said he put the spent
shell back in the shotgun and he straightened the
body up more in a sitting position and he placed the
gun at her foot and departed.
R. 111-112. See Pros. Ex. 15. Additional facts necessary for
the disposition of the question presented are set forth in
argument below.
18
REASON FOR GRANTING THE WRIT
THE PETITIONER WAS DENIED THE
RIGHT TO THE EFFECTIVE ASSISTANCE
OF COUNSEL UNDER THE SIXTH
AMENDMENT WHEN HIS TRIAL DEFENSE
COUNSEL, AFTER INFORMING THE
MEMBERS DURING OPENING STATEMENT
THE DEFENSE WAS GOING TO PRESENT
EVIDENCE OF THE PETITIONER’S
PEACEFUL, LAW-ABIDING NATURE AND
GOOD MILITARY CHARACTER, AND
ESTABLISH THE SUICIDAL TENDENCIES
OF THE DECEASED THROUGH EXPERT
TESTIMONY, NONETHELESS FAILED TO
PRESENT ANY EVIDENCE ON THE BASIS
THAT THERE “WAS NO DEFENSE IN THIS
CASE.”’
1. Background and the DuBay Hearing.
On 14 July 1993, the petitioner was ordered into pretrial
confinement by Capt Paul L. Dorsey, 353 MSS/CC. See DD
Form 497, Allied Papers. After petitioner’s incarceration, Capt
Jasper Knight Champion, III, the local area defense counsel,
was appointed as defense counsel.
Capt Champion was advised that a pretrial confinement
hearing was scheduled for that Friday, 16 July 1993. RD. 98.
He requested a delay until Monday, 19 July 1993 in order to
read the “case file” (which included the petitioner’s
statements) and to enable circuit defense counsel, Capt Robert
Scott Howard, to be present at the hearing. RD 97, 98.
’RD. 233-234 (trial defense counsel testified at the DuBay hearing, inter
alia, “we had no defense in this case.”’)
19
Upon discussing the case with the petitioner, Capt
Howard and Capt Champion recognized a problem. Petitioner
told them that, notwithstanding the statements he provided to
the OSI, he was not home at the time Lori Christy was fatally
shot. RD 216. This, obviously, posed a problem with regards
to trial strategy. On the one hand, they could pursue an alibi
defense and try to convince the members that the petitioner’s
statements were unreliable. On the other hand, they could
accept that the statements represented an insurmountable
obstacle, and pursue an “accident” defense. See, e.g., United
States v. Van Syoc, 36 M.J. 461 (C.M.A. 1993); United States
v. Arnold, 40 M.J. 744 (A.F.C.M.R. 1994).
At the DuBay hearing, both Champion and Howard
testified that they believed the first approach was not likely to
prevail, and advised the petitioner accordingly. RD 241.
“With the other theory, which we ultimately went with, the
theory of accident, there was a full spectrum of what he could
be convicted of, you know, . . . murder, involuntary
manslaughter, voluntary manslaughter, negligent homicide.”
RD 100.
The chosen approach was based on two prongs. The first
involved presenting evidence of the petitioner’s character:
Q: During the course of preparing for trial, did you
and Captain Champion have discussions with your
client concerning character witnesses?
A: Sure we did.
Q: And what, if anything, did you tell him about
your desire to use character witnesses?
A: I indicated to Staff Sergeant Christy that we
would like to have the names of several individuals
that we knew that we might be able to use as
character witnesses at a trial. Obviously, what I told
him was that character witnesses can be used in this
20
kind of case, because we are dealing with a violent
crime, and that any kind of character witnesses we
can use can be used to indicate that you are a
non-aggressive individual, that you are a peaceful
individual, that you are a law-abiding individual,
and that these were the kind of character witnesses
that I would be after, as an attorney, to possibly use
in the case.
RD 227-228.
Although Capt Howard was lead counsel, he did not
actively engage in the preparation of the character evidence.
Instead, he left that aspect of trial preparation to Capt
Champion. R. 228. Champion testified that the petitioner
provided him with a list of nine names.® RD. 114, HE 7. Capt
Champion testified that he contacted eight of those witnesses.
RD. 114. The one he did not contact was Capt James
Edwards, the only commissioned officer on the list. Capt
Champion gave the following rationale for not contacting
Edwards:
Because I knew they were—all nine of those
witnesses were basically the same thing, they were
people with whom Derrell had worked; Captain
Edwards was a potential character reference and
Derrell told me that, and I decided since he was the
only one that was not stationed on base, I decided
that eight was enough to contact, because one more
would not be that significant and the reason why I
decided not on Captain Edwards was because he
was off base.
AARNE ONT Py Orne
PREP Y CHAT Nee
‘Petitioner testified that he gave many more names to Capt Champion.
See, e.g., RD. 13-14, 44-45. However, resolution of this issue requires
only the consideration of the information which defense counsel admitted
they possessed.
a
21
RD. 115. From the eight witnesses contacted, Capt Champion
testified that “I picked out what I thought were the four best
ones and I had those four on telephone standby to come
testify.” RD. 115. This information was then passed on to
Capt Howard. RD. 228.
The second prong of the planned defense involved the
presentation of an expert witness, Dr (Col) Kamal K. Raisani.
See, letter dated 22 November 1992, “SUBJ: Central Witness
Funding, U.S. v. Christy,” Allied Papers. The purpose of Dr
Raisani’s anticipated testimony was to “demonstrate that Lori
was suicidal. He did what’s called a psychological autopsy
and he looked . . . at a lot of things pertaining to Lori that
would show her propensity to be suicidal, and he spoke to
Jeanette Miller too.” RD. 116, 123, 128, 231-234.
During opening statements, Capt Champion laid out the
two pronged defense theory to the members. According to
Capt Howard, both defense counsel “went over that opening
statement in detail” before trial. RD. 260. The opening
statement included the following representations:
Now, the evidence is this case will show that Lori
Christy was a very troubled young woman. She was
troubled about both her marriage and her sexual
orientation. You will hear evidence of her suicidal
tendencies. The evidence will show that she did not
want her entire family to find out that she was
having a lesbian affair with Jeanette Miller. You will
hear evidence about the mental therapy that Lori
was undergoing, as well as some of the things she
wrote as part of her therapy. The evidence will also
show that on the day before Lori died, Sergeant
Christy found her and Jeanette Miller on the couch
embracing. And on the night before she died, she
talked about committing suicide and she even had
some pills laid out on the table and was ready to
take them.
22
In addition, you will see a note that was found after
Lori’s body was discovered. And Colonel Raisani,
an Air Force forensic psychiatrist, will testify that
this note was, in fact, a suicide note... .
* * *
Finally, you will hear evidence and see evidence of
Sergeant Christy’s good military character and that
he has never been in trouble before. . . . )
R. 184-185 (emphasis added).
None of the emphasized evidence was introduced.
Indeed, the defense rested without calling a single witness. R.
340. The only defense evidence introduced during findings
consisted of diagrams and photographs of the alleged crime
scene. Def Exh. A-F. While Champion and Howard asserted
that the decision not to present a defense case was made
primarily out of a fear of rebuttal (see discussion infra), an
examination of their DuBay testimony suggests that defense
counsel knew, or should have known, from the outset that they
would not be presenting evidence to support their accident
theory as promised in opening statement:
Q: Were you satisfied with the witnesses he [Capt
Champion] had lined up?
A: Sure. Yes, totally satisfied. | mean character
witnesses, in a case like this, you want to use
character witnesses if you have any kind of defense
case whatsoever. | mean, if you’ve got a defense
case, a viable defense theory that you can support
with independent evidence, and in terms of this
case, we had accident as a theory of the case; if we
had independent evidence that this was an accident,
then, certainly, character witnesses, three or four
character witnesses, talking about Staff Sergeant
Christy’s peaceful character, his non-violent nature,
23
his law-abidingness, would, I believe, indeed have
some impact on a jury. How much impact, I don’t
know, but they might, indeed, have some impact on
a jury if we had some kind of independent evidence
to indicate that this was indeed an accident.
RD. 229 (emphasis added).
Now, had we been able to present a solid accident
defense, it would have been worth the risk to put
Doctor Raisani on the witness stand and allow the
prosecution to cross-examine Doctor Raisani on
possibly all this damaging evidence. But we were
unable to present any kind of defense whatsoever
concerning accident. Doctor Raisani was quickly
becoming just a shell of a witness around nothing at
all for the defense to center or to anchor their case
on. I mean, based on my professional judgment, and
my experience as a defense counsel, this was
quickly coming into a damage control case. We had
no defense on this case...
* * *
.. . Again, from a defense perspective, if we had
had something to anchor our case on, a good
accident defense, character witnesses would
certainly have been a viable option for the defense
to use in this particular case. Being as we had no
defense in this case, simply putting on a bunch of
character witnesses to indicate that Staff Sergeant
Christy was a law-abiding, peaceful, non-violent
individual posed several problems. . . .
R. 233-234 (emphasis added).
Q: Now, the theory of your case was accident?
A: Yes.
24
Q: But you had no defense of accident?
A: That’s right.
Q: And you had no evidence whatsoever, I believe
you Said, to support an accident theory?
A: Other than Staff Sergeant Christy’s statements.
R. 254 (emphasis added).
The problem is, if there was no viable defense of
accident because of a lack of “independent evidence” to
support an accident theory, surely this is a circumstance which
should have been apparent to Captains Howard and Champion
before the trial commenced. But if this was the case, why did
trial defense counsel promise to present evidence to advance
an accident defense? Contrary to the assertion of trial defense
counsel, it was the assistance of competent counsel, not a
defense, which the petitioner was lacking.
2. Analysis
In Strickland v. Washington, 466 U.S. 668 (1984), the
Court observed that “the right to counsel plays a crucial role
in the adversarial system embodied in the Sixth Amendment,
since access to counsel’s skill and knowledge is necessary to
accord defendants the ‘ample opportunity to meet the case of
the prosecution’ to which they are entitled.” /d. at 685,
quoting Adams v. United States ex rel. McCann, 317 U.S. 269,
275-276 (1942). A violation of the right to counsel, as defined
by the Sixth Amendment, denies an accused the right to a fair
trial as guaranteed by the Due Process Clause of the Fifth
Amendment. Strickland, 466 U.S. at 684, 685. See also,
United States v. Chronic, 466 'J.S. 648, 658 (1984)(“the right
to the effective assistance of counsel is recognized not for its
own sake, but because of the effect it has on the ability of the
accused to receive a fair trial”). The right to counsel applies
fully to service members facing trial by courts-martial. See
a a a area
25
e.g., Article 38, Uniform Code of Military Justice, 10 U.S.C.
§ 838, United States v. Gnibus, 21 MJ 1 (CMA 1985), United
States v. Johnson, 21 MJ 211 (CMA 1986), United States v.
Mansfield, 24 MJ 611 (AFCMR 1987).
Strickland established a two pronged test to be applied
when a court is confronted with allegations of ineffective
assistance of counsel.
First, the defendant must show that counsel’s
performance was deficient. This requires showing
that counsel made errors so serious that counsel was
not functioning as the “counsel” guaranteed by the
Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced the
defense. This requires showing that counsel’s errors
were So serious as to deprive the defendant of a fair
trial, a trial whose result is reliable.
Strickland, 466 U.S. at 687. With limited exceptions, such as
the complete denial of counsel, an accused can establish a
claim of ineffective assistance “only by pointing to specific
errors made by trial counsel.” Cronic 466 U.S. at 666. An
analysis of errors cannot focus solely on outcome
determination “without attention to whether the result of the
proceeding was fundamentally unfair or unreliable.” Lockhart
v. Fretwell, 113 S.Ct. 838, 842 (1993). The actions, as well as
inactions, of trial defense counsel in the case sub judice did
result in a “fundamentally unfair or unreliable” proceeding for
the petitioner.
With regards to the use of character evidence, it has long
been recognized that “evidence of good character is often the
best, if not the only defense the accused can produce.” United
States v. Conrad, 15 USCMA 439, 35 CMR 411, 420 (1965),
quoting United States v. Phillips, 3 USCMA 137, 11 CMR
137, 142 (1953). While character evidence is not unique to the
military, it does have an added dimension in trial by courts-
26
martial. Evidence of an accused’s good military character may
be introduced to demonstrate the unlikelyhood that he or she
would have committed the charged offense. See, e.g., United
States v. Brown, 41 MJ 1, 4 (CMA 1994)(“Appellant sought to
admit evidence of his religious beliefs as part and parcel of
his ‘good soldier’ defense. . . . The evidence was not mere
credibility evidence; it would have been admissible whether
appellant testified.”); United States v. Smith, 34 MJ 341, 342
(CMA 1992)(“Upon request, an accused is entitled to an
instruction « :ling attention to evidence of good military
character.”); United States v. Benedict, 27 MJ 253, 262 (CMA
1988)(Error to exclude accused’s “awards, decorations, and
officer effectiveness reports as evidence of the specific
character trait of ‘good conduct as an officer.’”); United States
v. Court, 24 MJ 11 (CMA 1987); United States v. Belz, 20 MJ
33 (CMA 1985); United States v. Vanderlinder, 20 MJ 41, 45
(CMA 1985)(“We believe, therefore, that the factfinder could
reasonably infer that a person of ‘good military character’
would be unlikely to participate in an activity that is so
harmful to military effectiveness.”); United States v. Piatt, 17
MJ 442, 446 (CMA 1984)(“In this context, a person’s military
character is properly considered a particular trait of his
general character and a fact which may be relevant at a
court-martial depending upon the issue for which it is
offered.”); United States v. McNeil, 17 MJ 451 (CMA 1984);
United States v. Clemons, 16 MJ 44 (CMA 1983).
The authority for such evidence is Mil.R.Evid. 404(a)(1);
See Vanderlinder, 24 MJ at 44 (“The Drafters Analysis makes
clear that—whatever the term ‘trait’ means in Mil.R.Evid.
404(a)(1—‘good military character’ is a ‘trait.’”). Of course,
“good military character” was not the only trait available to
the defense in this case. The witnesses could have established
“Staff Sergeant Christy’s peaceful character, his non-violent
nature, his law-abidingness. . . .” RD. 229. Indeed, Capt
27
Champion testified that the witnesses he contacted were “very
adamant about peacefulness and things like that... .” RD.
116, 141. These traits would likewise have been relevant and
admissible. See, e.g., Brown, 41 MJ at 4 (“In a drug case, an
accused is entitled to present evidence of being a good soldier
or a law-abiding person.”)(Emphasis added); United States v.
Stombaugh, 40 MJ 208, 214 (CMA 1994)(“Eleven witnesses
testified for the defense concerning petitioner’s character for
peacefulness and truthfulness.”)(Emphasis added); United
States v. Newman, 34 MJ 1100, 1102 (ACMR 1992)
(“‘Character trait’ refers to elements of one’s disposition,
‘such as honesty, temperance or peacefulness.”)(Emphasis
added) quoting United States v. West, 670 F.2d 675, 682 (7th
Cir. 1982); United States v. Williams-Oatman, 38 MJ 602, 604
(ACMR 1993)(“The military judge repeatedly informed the
appellant that, if evidence of her reputation for peacefulness
was presented, there could be cross-examination as to the
knife.”)(Emphasis added).
At the DuBay hearing, Captains Champion and Howard
asserted two bases for not introducing this critical character
evidence, both of which were utterly without merit. First, they
asserted a fear that the members would perceive this as
“blowing smoke.” See, e.g., RD. 119, 131. However, as they
testified, they had “no defense.” Thus, they incredibly decided
to reject a valid character defense and proceed with a “no
defense” defense! The predictable result was that the
petitioner was convicted of unpremeditated murder as
charged.
The second basis was an asserted fear of rebuttal
evidence in the form of “did you know” type questions. This
purported rebuttal consisted of (1) the alleged hearsay
statements of Lori Christy that the petitioner had tried to force
anal sex upon her and “was rough with her during sex,” RD
234, and; (2) that the petitioner allegedly had a girlfriend
28
Shortly after his wife’s death. Addressing the alleged
attempted sodomy and “rough sex” incidents first, Champion
and Howard made it clear that the only source for this
information was Lori’s lesbian lover, Jeanette Miller:
Q: And what the government had [for rebuttal] was
that one statement by Jeanette Miller; is that
correct?
A: Yeah.
Q: That’s all the government had?
A: Well, and, also, Lori’s—some of the things Lori
said about Derrell being rough with her during
sex—
Q: That was from Jeanette Miller; that information
came from Jeanette Miller—
A: And about Lori being afraid—yeah—it’s from
one source, but it’s a lot of information.
RD. 141-142.
Even if this information was admissible, defense counsel
could have easily diffused the impact by preparing their
witnesses for the question in advance. Further, the provider of
this purported information, Jeanette Miller, was far from an
unimpeachable source. She, along with her husband, had been
engaged in a sexual relationship with Lori and was
encouraging her to leave the petitioner and move into the
Miller home. R. 193. Quite obviously, Jeanette Miller would
be biased against the man accused of killing her lover.
In addition, the defense could have diffused this
testimony simply by introducing the evidence that they
promised the members was going to be introduced:
“... evidence about the mental therapy that Lori was
undergoing, as well as some of the things she wrote as part of
her therapy.” R. 184 (emphasis added). These writings were
ic
29
introduced during the DuBay hearing as Hearing Exhibits 6
and 8. Besides detailing how wonderful Lori felt the petitioner
was as a husband, these writings also describe her need to be
dominated during sex:
I’ve always held a great desire to control every
aspect of my life except one. Ironically the book I
read claims many sexual abuse victims need to
control the bedroom. i am opposite. / like to be
controlled during sex and feel very uncomfortable
when Derrell gives me some control. I really like for
him to totally control the love-making.
HE 6, p. 25-26.
I found it rather amazing that sexual abuse victims
tend to have a need to control the sexual
experiences. / have no desire to control Derrell, and
prefer to be controlled in that area. After 8 years, |
am still a little embarrassed to talk about fantasies,
and desire, but like to hear Derrell talk about them.
Being controlled excites me. We seem to be pretty
compatible in that area.
HE 8, p. 36. In other words, the members would probably
have chalked up the “rough sex” allegation as being nothing
more than an aspect of Lori’s character traits, the need to de
totally controlled sexually, which found expression within the
privacy of the marital bed.
With regards to the issue of whether the petitioner may
have had a girlfriend after his wife’s death, defense counsel
never elucidated what theory they feared the information
would be admissible under. RD 269-270. Are people who
begin seeing members of the opposite sex following the death
of their spouse less peaceable? Less law-abiding? What is the
required period of mourning service members must observe
before evidence of resumed dating is foreclosed from being
30
introduced to rebut their “good military character”? There
was, of course, no evidence of any extramarital dalliances on
the part of the petitioner.
Beyond all this, as trial defense counsel admitted, not all
of the character witnesses which the petitioner referred to his
counsel were even contacted for interview by his attorneys.
Notably the single commissioned officer on the list provided
by petitioner, Captain Edwards, was never interviewed. The
only explanation given by his counsel for this lack of
investigative effort was that this witness lived off-base and
there were other character witnesses available in any event.
Surely Captain Edwards’ status as a commissioned officer
was enough to render his testimony non-cumulative and the
mere inconvenience of having to contact and request the
production of a military witness living off-base was not
sufficient to justify trial defense counsels’ lack of
investigative effort, even when applying “a heavy measure of
deference to counsel’s judgments” as we must when assessing
investigative choices. Strickland v. Washington, 466 U.S. at
691. This lack of investigative effort made it impossible for
trial defense counsel to properly advise their client to forgo
the presentation of character evidence, a circumstance which,
standing alone, can amount to ineffective assistance of
counsel. See U.S. ex Rel. Emerson v. Gramley, 883 F.Supp
225, 244 (N.D. Ill. 1995) citing Blanco v. Singletary, 943 F.2d
1477 (11th Cir.1991). Even though the military judge
presiding over the DuBay hearing deemed the decision not to
call character witnesses “sound,” he admitted that “Captain
Champion should have contacted Captain Edwards to
determine what exactly he had to say .. .” Findings of Fact &
Conclusions—DuBay Hearing, p. 11.
Finally, the critical role that character evidence can play
in a defense should never be overlooked. This Honorable
Court has itself recognized that “[c]haracter evidence may
—————————— ae enn
3]
itself generate reasonable doubt in the factfinder’s mind.”
Vandelinder, 20 M.J. at 47 citing Michaelson v. United States,
335 U.S. 469 (1948); Edgington v. United States, 164 U.S.
361 (1896). The petitioner submits that such evidence,
coupled with the defense of accident, would have, at the very
least, created sufficient doubt as to lead to an acquittal on the
greater offense. As trial defense counsel pointed out, one
advantage of an accident defense was that it would permit the
factfinder to render findings on lesser included offenses,
involving a lower degree of mental culpability (i.e.
involuntary manslaughter, voluntary manslaughter, and
negligent homicide).
Turning to the issue of Dr Raisani’s testimony
concerning Lori’s suicidal tendencies, the asserted defense
position was again two-fold. First, they believed the
information was adequately developed through the
prosecution’s witnesses. Second, they feared such testimony
would open the door to rebuttal evidence. They were wrong
on both counts.
It can hardly be gainsaid that establishing the suicidal
state of mind of Lori Christy was the linchpin to any defense
in this case.” The petitioner’s statements to the OSI asserted
that Lori had placed the shotgun against her chest and was
preparing to shoot herself. Lori’s death occurred, according to
the statements, when the shotgun inadvertently discharged
while the petitioner was trying to take the shotgun away from
her as she maintained a grip on the barrel. If the suicidal
°As the Air Force Court correctly points out, “under the accident theory of
the case, it was essentially conceded that Lori had not, in fact, committed
suicide.” Christy, at 9 (Appendix). However, evidence of Lori’s suicidal
state of mind was still critical evidence corroborating the petitioner’s
account that Lori was accidentally killed during a suicidal gesture gone
awry.
32
tendencies could be established, the physical evidence at the
scene would support the petitioner’s explanation. The wound
was a contact or near contact type of wound and Lori had
considerable gunpowder residue on her left hand.
Contrary to the assertions of trial defense counsel at the
DuBay hearing, the prosecution did not establish that Lori was
suicidal. In fact, Jeanette Miller testified that Lori was not
genuinely suicidal, had never mentioned suicide in anything
more than a “jesting way,” and had never threatened to take
her own life. R. 207, 213. Indeed, according to Jeanette, Lori
“firmly” felt that “suicide was the most selfish thing that
anyone could ever do.” R. 191.
Jeanette testified that after Lori made the threats to take
the Flexeril pills, Jeanette reminded her of her opposition to
suicide, to which Lori replied “You're right, you’re absolutely
right.” R. 192. Jeanette also stressed that when she left she
“was completely confident in leaving—that Lori wasn’t
appearing to be suicidal and seemed to be herself. I wasn’t—I
had no fear. I would not have left if | had.” R. 213. Jeanette
further testified that when she left Lori at around 1815 hours
on 10 May 1993, she was “calm” and making plans for the
future. “She was talking about going on our trip to Virginia.
She was taiking about what she was going to do with regards
to the girls and where they were going to go and what they
were going to do.” R. 198.
This testimony hardly portrays the disposition of a
woman contemplating committing suicide within the hour.
The prosecution argued that Lori was not suicidal; rather it
was a “scenario,” created by the petitioner. R. 355. Trial
counsel argued that it “was very likely [that the petitioner]
goaded her with the gun. It is very likely that he did as he
said—loaded the shotgun and was trying to get her—talk her
into, or goad her into, committing suicide. But, even from his
33
own statement, it would look like she was having none of
that.” R.357.
The members never saw or heard about Lori’s writings
expressing her emotional distress and anguish, originating in
her childhood and continuing into the time shortly before her
death. HE 6 and 8. The members never heard from Karen
Protratz, Lori’s counselor, about the “therapy that Lori was
undergoing.” R. 184. Indeed, it appears from the DuBay
hearing that Protratz was never even contacted by the defense.
RD. 123. What Lori said and wrote in therapy was a virtual
gold mine as far as the petitioner’s accident—suicide defense
was concerned. As defense counsel said in opening statement,
the deceased was a very troubled young woman. Her therapy
notes reveal a tragic and self-destructive life. She had been
sexually abused at home by her brother—and this fact
naturally tormented her for years. She was burdened with low
self-esteem and a strong sense of guilt. She also described
being abused by a neighbor. She discussed her destructive use
of alcohol and drugs. She confessed to confusion about her
sexual orientation as well as an unusual sexual appetite. She
had a very troubled relationship with her mother and other
family members. She had contemplated suicide even before
her last attempt or gesture. The deceased was constantly angry
and impatient with her two daughters and felt tremendous
guilt as a result. It seems the lone bright spot in the deceased’s
life was her love for and devotion to the petitioner. She wrote
she probably would have ended her life if it wasn’t for
petitioner’s love for her. Dr Raisani’s testimony and this
“therapy evidence” was critical to demonstrate that Lori’s
destructive tendencies, as revealed by the “psychological
autopsy,” were long-standing and not subject to being turned
off like a light switch. Yet, the defense turned their backs on
this critical evidence and on the petitioner. After abandoning
the petitioner, trial defense counsel might as well have
scooted their chairs over to the prosecution table.
34
With regards to the concerns about rebuttal evidence,
Capt Champion explained:
Q: Would there have been potentially some harm to
your client had Raisani testified, in your mind?
A: There was potential harm, I mean, there was a
risk. We didn’t want to open the door to a lot of
Lori’s—a lot of things about Lori; primarily, some
of the things that Lori claims—Derrell had
threatened her to do certain things, and we didn’t
know—I’m not sure if it would have come in in
rebuttal, but we couldn't predict what the judge’s
ruling would be, so we decided that since we had
nothing to gain by putting him on, why take the risk
of bringing in potential rebuttal evidence. And there
was also—we were aware that you all had spoken to
a Doctor Grant and that, I believe, he was an
telephone standby,['’] and he could provide some
rebuttal evidence, depending on what Doctor
Raisani said, and, so, we thought, why bother, why
risk it.
Q: Had Doctor Raisani been provided a copy of the
complete sanity board?
A: Yes. I believe so, yes.
Q: Did you consider the impact of having Doctor
Raisani testify knowing that he might have based
‘Incredibly, :t appears from this testimony that the defense never
interviewed this potentially important prosecution expert. Even if the
prosecution had called Dr Grant in an attempt to rebut Dr Raisani’s
“psychological autopsy,” it would have posed little concern for the
defense. A “battle of the experts” is nothing unusual in trials and the
defense certainly had good evidence to cross-examine Dr Grant upon,
including the suicide note, the incident with the Flexeril pills, and the
contents of Lori’s writings.
ve)
n
part of his opinion on the contents of that sanity
board?
A: I'm sorry; ask me one more time.
Q: Was there information contained in that sanity
board report that Doctor Raisani reviewed which
you felt might, in some way, have harmed your
client?
A: Yes, at the time, Doctor Raisani was aware of
what Derrell had told the psychologist, and, that is,
that he wasn’t there; so, Doctor Raisani had access
to all this, and, so we felt like that was fair game for
you, the prosecution.
RD. 117-118.
Breaking these concerns down into component parts, it
must first be recognized that Lori wasn’t “claiming” anything;
She was dead. What Capt Champion meant was that someone
else was “claiming” that Lori made some statements. Again, it
appears that the source of this information was none other
than Jeanette Miller, the deceased’s lesbian lover. For the
Same reasons set forth above, this should have been of de
minimus concern to the defense.
With regards to Dr Raisani having seen the petitioner’s
sanity board report wherein the petitioner continued to deny
he was at the scene, defense counsel’s concerns are
perplexing. As Capt Howard testified:
At this point in time, it was obvious to me that the
prosecution was only going to cross-examine
Doctor Raisani on one thing and that was the fact
that, during his interviews, Sergeant Christy’s
interviews with the psychiatrist, he had completely
denied being at the house, completely denied any
kind of participation in the death, and that the
psychological reports that were on Sergeant Christy
OS EES EES te eer
36
indicated that he was malingering and creating these
ideas of any kind of amnesia, in other words, not
owning up to the responsibility of what had
occurred.
RD. 233 (emphasis added). If the issue was the petitioner’s
state of mind, then the information Dr Raisani gained from
the report regarding any denial might have been relevant and
admissible. See, e.g, United States v. Mansfield, 33 MJ 972
(AFCMR 1991), aff'd 38 MJ 415 (1993); Mil.R.Evid. 302
(accused has privilege to prevent disclosure of statements
made during sanity board hearing, except where he opens the
door by introducing such statements or places his mental state
at issue through expert testimony). However, it is difficult to
imagine how the petitioner would have opened the door to
such evidence by putting on evidence of the purported
victim’s mental state. In any event, when the time came for
the defense to present its case, evidence of the petitioner’s
prior inconsistent alibi, denying his presence at the scene of
the shooting, was already admitted! Pros.Exh. 11.
Most damning with respect to the quality of defense
counsels’ representation, however, is that they made these
so-called tactical decisions concerning the use of character
evidence and the presentation of Dr Raisani’s testimony on
mere guess and speculation. Trial defense counsel never even
attempted to confront these questions through the simple
expediency of a motion in limine. See, R.C.M. 906(b)(13)
(“Preliminary ruling on admissibility of evidence”);
Mil.R.Evid. 104. This is clearly reflected by the following
exchange:
Q: Captain Howard, did you at any time—it seems
like throughout yours and Captain Champion’s
testimony, you seem concerned about this one
statement out there by Jeanette Miller about some
sort of misconduct on the part of Staff Sergeant
37
Christy toward his wife; did you ever, at any time,
think, during your pretrial discussions, talk about
doing a motion in limine to keep the uncharged
misconduct out under any circumstances?
A: Sure we did.
Q: Did you present that motion to the court?
A: We did not present a motion in limine on that
uncharged misconduct at all.
Q: Couldn’t you have presented that to the court
and found out under what circumstances the judge
wouldn’t have allowed that information in?
A: That’s one option we could have done.
RD. 269. Not only “could” they have submitted the motion,
they “should” have done so. In any event, trial defense
counsels’ explanation for why they decided not to present the
evidence referred to in opening statement does not hold water
because information regarding uncharged misconduct was
known, or at least available, to defense counsel before the
start of trial. If the presentation of defense witnesses was
really “chilled” by the potential admission of such evidence,
trial defense counsel should never have promised that the
witness testimony would be produced.
The ineffectiveness of defense counsel carried over into
other aspects of the trial. As post-trial defense counsel pointed
out, trial defense counsel failed to bring documentation to
the court’s attention showing that the petitioner was regarded
a suspect by law enforcement from the very beginning of
the joint military/civilian investigation. R.C.M. 1105-1106
Matters, 15 Feb 1994, para. 2e; Item 25, “Index to
Preliminary Documentary Evidence,” United States v. Christy,
Allied Papers. For purposes of the motion to exclude the
petitioner’s statement of 12 May 1993 (R. 10-66;
Pros.Exh.11) this was critical evidence. The military judge,
38
finding no rights advisement was required since the petitioner
was not a suspect at the time of this statement, admitted this
statement in which the petitioner essentially denied being
present when Lori Christy was killed, contrary to his later
statements. (R. 69-70). The admission of this inconsistent
statement undoubtedly hampered the petitioner in presenting
his accidental death theory.
Further, a key portion of the prosecution’s case rested on
a theory of “consciousness of guilt”:
We don’t know what the intent of the accused was.
We can’t look inside his mind. And the government
must prove to you an intent to kill Lori Christy.
How do we prove intent? We look at his actions. We
look at what he did. Because, in this case, actions
do speak louder than words. His words tell it was a
suicide; his actions tell you that he felt guilty, that
he was aware that he was guilty, and everything he
did pointed to his guilt. Innocent people don’t
tamper with evidence. If it was truly an accident,
there was no need to tamper with evidence. If it
truly was an accident, there was reason to call 911.
If it was truly an accident, you don’t leave the
scene. If it was truly an accident, you don’t lie to
OSI repeatedly. .. .
R. 356-357. The task of the defense, of course, was to
demonstrate that these actions were nothing more than a
panicked response to tragic and unexpected events.
The prosecution had an important witness to establish
their “consciousness of guilt” theory; Sgt Holmes. Sgt
Holmes testified that he saw the petitioner’s car drive by the
scene five minutes before the petitioner arrived. R. 238. This,
according to the prosecution, was “because he knew what had
happened to his wife, and he just wanted to give himself a few
extra minutes to pull himself together.” R. 356.
ar a ee
39
Yet the defense could have easily established that Sgt
Holmes was mistaken about seeing the petitioner’s car. This is
due, in part, because his view was obstructed by trees. More
importantly, if the car was traveling in the direction he
described, Sgt Holmes could not have seen the identifying
“primer” spots on the car. R. 240, RD. 136. These points were
strenuously pointed out by the petitioner to his counsel. RD.
10. Trial defense counsel, however, felt that cross-examining
Sgt Holmes would make the defense “look desperate.” RD.
109. Indeed, at the DuBay hearing, even after having heard
the prosecution’s closing arguments, trial defense counsel still
could not recognize the importance of diminishing the impact
of Sgt Holmes testimony. Capt Champion testified that he
“still” didn’t understand petitioner’s “hang-up about it.” RD.
109.
What Capt Champion failed to appreciate was the true
damage to the defense from Sgt Holmes’ testimony, which,
came from his description of the petitioner’s demeanor when
returned to the house. Sgt Holmes testified:
Q: And what happened when the accused pulled up
on the—
A: Sergeant Christy got out of the car; he
approached me and said he needed to go inside. |
told him he couldn’t go in at the time and he goes,
“Come on, man, it’s my wife in there.” I just told
him—that’s when the chaplain and my flight chief
walked up, and I said, “/f you need to talk to
anybody, ask them.”
Q: And then where did he go?
A: He went over and sat down in his car and had a
Cigarette.
R. 238 (emphasis added).
40
The implication, of course, is that instead of being an
individual who panicked after the accidental shooting of his
wife, the petitioner was calm and rational; i.e., scheming and
devious. Testimony, however, could have easily been
presented to rebut such an implication. Petitioner testified that
he gave Capt Champion the names of the chaplain and a
Major Lake (apparently the referenced “flight chief”):
DC: Did you also give them the name of Major
Lake?
ACC: Yes, that was dealing with when I was
waiting at the house, when I first arrived at the
house. Sergeant Holmes testified that I was not
emotional, just standing and leaning against the car
smoking a cigarette, you know. Major Lake saw me
crying and also Chaplain Duncan was there talking
with me.
RD. 15 (emphasis added).'! While Capt Champion denied
being furnished these names, that hardly fosters confidence in
the abilities of trial defense team. Sgt Holmes certainly had
the information, as reflected by his trial testimony. It is
difficult to imagine competent counsel not even interviewing
the witnesses to whom the petitioner may have made
statements on the day of the alleged crime!
CONCLUSION
The decision to forego valid defense strategies and
instead pursue a “no defense” defense displayed “a serious
lack of skills that are regularly found in the performance of
fallible lawyers.” United States v. Mansfield, 24 MJ 611, 616
(AFCMR 1987). The result was comparable to the “sacrifice
''The prosecution offered no evidence at the DuBay hearing to rebut the
petitioner's asserted emotional state.
iittala
41
of unarmed prisoners to gladiators.” C hronic, 466 U.S. at 657,
citing United States ex rel. Williams v. Twomey, 510 F.2d 634,
640 (7th Cir. 1975), cert. denied sub nom. Sielaff v. Williams,
423 U.S. 876 (1975). Contrary to the assertion of the Air
Force Court, the petitioner does not contend that “trial defense
counsel could have or should have pursued an alibi defense”
(Christy, at 23a, Appendix B), but only that counsel were
deficient in failing to adequately pursue the accident defense,
as initially promised, or any defense at all.
Throughout its opinion, the Air Force Court below
emphasizes the finding of the military judge that the petitioner
approved or “blessed” the tactical decisions made by his trial
defenders which are now at issue. (Christy, at 22a, 25a,
Appendix B). The petitioner questions whether such a
consideration has any place at all in analyzing a claim of
ineffective assistance. If a lay person/client were in a position
to evaluate and approve his counsel’s tactical decisions, that
client likely would not need the assistance of counsel. To the
extent that SSgt Christy did concur in the tactical decisions at
issue, he was only doing what most clients justifiably do:
placing his trust in counsel, with deference to counsel’s
experience, judgment, and qualifications. In this case, this
trust was betrayed. Notwithstanding the Air Force Court’s
conclusions to the contrary, trial defense counsels’
explanations for their performance were insufficient to render
the lack of a defense presentation “reasonable” under the total
circumstances.
The United States Court of Appeals for the Armed
Forces was not so generous in evaluating the trial defense
counsels’ performance:
An analysis of this case under the first prong of
Strickland reveals some unsettling circumstances.
* * KK *
While unexpected events at trial may lead to
changed circumstances or different trial tactics,
there is no indication of such unexpected events in
appellant’s case.
Trial defense counsel should have realized the
tactical risks and benefits of calling Dr. Raisani and
character witnesses well before they presented the
defense’s opening statement. The character
witnesses may have been particularly important to
appellant’s defense because evidence of appellant’s
good military character may be sufficient to raise
reasonable doubt as to appellant’s guilt, thereby
bolstering appellant’s accident defense.
United States v. Christy, 46 M.J. 47, 50 (1997).
Unfortunately, the Court of Appeals made an overly rigid
application the second prong of the Strickland test and
concluded petitioner was not prejudiced by the trial defense
counsel’s deficient performance because the other evidence
presented strongly indicated his guilt. /d. However, the Court
of Appeals disregarded the very reasonable possibility that the
defense failures cost the petitioner all chances of a lesser
included offense finding, if not an acquittal.
Trial defense counsel conceded away petitioner’s
innocence by promising crucial, exculpatory evidence and
then failed to produce anything. In doing so, the defense
counsel deprived petitioner of a fundamentally fair trial and
greatly undermined the confidence we can have in petitioner’s
verdict. “The question is not whether the defendant would
more likely than not have received a different verdict with the
evidence, but whether in its absence he received a fair trial,
understood as a trial resulting in a verdict worthy of
confidence.” Kyles v. Whitley, 115 S.Ct. 1555, 1566 (1995).
May 1997
43
Respectfully submitted,
GERALD R. BRUCE
Major, United States Air Force
Appellate Defense Counsel
Counsel for the Petitioner
ORMOND R. FODREA
Major, United States Air Force
Appellate Defense Counsel
Counsel of Record
Appellate Defense Division
112 Luke Avenue, Suite 343
Bolling AFB, DC 20332-8000
(202) 767-1562
la
APPENDIX A
UNITED STATES, Appellee
Vv.
Derrell A. CHRISTY, Staff Sergeant,
U.S. Air Force, Appellant
No. 96-0713
Crim. App. No. 31200
U.S. Court of Appeals for the Armed Forces
Argued Dec. 3, 1996
Decided March 10, 19°7
Counsel
For Appellant: Major Gerald R. Bruce (argued); Colonel
David W. Madsen, Colonel Jay L. Cohen, and Captain Harold
M.Vaught (on brief); Lieutenant Colonel Kim L. Sheffield.
For Appellee: Captain Libby A. Brown (argued); Colonel
Theodore J. Fink, Colonel Jeffery T. Infelise, Colonel Thomas
E. Schlegel, and Lieutenant Colonel Michael J. Breslin (on
brief).
Opinion of the Court
CRAWFORD, Judge:
Contrary to his plea, appellant was found guilty of the
unpremeditated murder of his wife in violation of Article 118,
Uniform Code of Military Justice, 10 U.S.C. § 918. The
convening authority approved the sentence of a dishonorable
discharge, 35 years’ confinement, total forfeitures, and
2a
reduction to the lowest enlisted grade. The Court of Criminal
Appeals affirmed the findings and the sentence after a hearing
on the issue of ineffectiveness of counsel was conducted
pursuant to United States v. DuBay, 17 USCMA 147, 37 CMR
411, 1967 WL 4276 (1967).
We granted review on the following issue:
WHETHER THE APPELLANT WAS DENIED
HIS RIGHT TO THE EFFECTIVE ASSISTANCE
OF COUNSEL WHEN HIS TRIAL DEFENSE
COUNSEL, AFTER INFORMING THE
MEMBERS THAT THEY WERE GOING TO
PRESENT EVIDENCE OF THE APPELLANT’S
PEACEFUL LAW-ABIDING NATURE AND
GOOD MILITARY CHARACTER, AND
ESTABLISH THE SUICIDAL TENDENCIES OF
LORI CHRISTY THROUGH THE EXPERT
TESTIMONY OF DR. RAISANI,
NONETHELESS FAILED TO PRESENT ANY
SUCH EVIDENCE ON THE BASIS THAT
THERE “WAS NO DEFENSE IN THIS CASE.”
We hold that appellant was not prejudiced by any of the
alleged errors.
FACTS
Lori Christy was found dead from a shotgun wound on
May 10, 1993. The weapon was found next to her body.
What appeared to be a suicide note was found in a computer
hutch in the Christy home. The day before her death, Lori
Christy had threatened to commit suicide by ingesting
Flexeril pills.
Investigating officials surmised that Lori Christy’s death
was not a suicide when they discovered that someone had
ejected both the spent shotgun shell and a live shell from the
3a
gun and then had reinserted the spent shell into the gun. The
live shotgun shell was found on the floor between Lori
Christy’s feet.
Within the next two months, events led police to the
conclusion that appellant was responsible for his wife’s death.
On May 12, 1993, appellant signed a sworn statement in
which he stated that he had visited two friends during the time
frame in which his wife died. Appellant “helped”
investigators by suggesting possible suspects. On May 28, he
suggested that his wife and another woman might have had a
suicide pact (thus explaining the two shells). On June 2,
appellant called investigators and told them that his oldest
daughter believed a friend of Lori Christy’s had killed her. On
June 17 and 18, appellant again told investigators that he was
not present when his wife died.
Then, during an interview on July 8, appellant asked
investigators whether his wife’s mouth and eyes were open
when her body was found. Appellant had not been allowed to
view the crime scene or photos of the scene. At that time,
investigators became convinced that appellant knew more
about his wife’s death than he was telling. Appellant
explained to investigators that he returned to his home and
found his wife in the basement trying to pull the trigger of the
shotgun with her toe. He told investigators that the gun fired
when he tried to grab it away from her.
On July 10, 1993, appellant changed his story again.
Appellant claimed that he returned to the house and argued
with Lori Christy, that she threatened to commit suicide, and
that he called her bluff by retrieving the shotgun shells and
the shotgun for her. Appellant told investigators that Lori
Christy then tried to pull the trigger with her toe, that he
grabbed the gun away from her, and that the gun fired.
According to this statement, appellant realized the spent shell
had ejected from the gun. He put the shell back and placed the
4a
gun next to his dead wife. He then left the house and attended
his daughters’ school program.
On July 13, appellant gave a somewhat different version
of the story to investigators. In this statement, appellant
informed investigators that he now remembered loading the
shotgun shells into the gun. Also, he remembered that his wife
had held on to the barrel of the gun and his thumb hit the
trigger of the shotgun as he was pulling it away from her.
There was other damaging evidence against appellant as
well. Specifically, Lori Christy told appellant on the day she
died that she was having an affair and that she was leaving
him. Appellant felt “good” and “happier” after his wife’s
death. Five unfired shotgun shells were found in appellant’s
trash. An expert at trial testified that if appellant had
accidentally pulled the six and a half pound trigger with his
thumb while pulling the gun away from Lori Christy, he
would most likely have severely damaged or broken his
thumb when the gun recoiled.
There was also testimony at trial that Lori Christy was
not suicidal on the day of her death. She had agreed the
evening before that suicide was selfish. She had made plans to
go to Virginia with a friend. An alarm was set in the Christy
bedroom for 6:45 p.m., the time Lori Christy was supposed to
leave to attend her daughters’ school program.
Appellant’s actions after Lori Christy’s death were
perhaps the most damaging to his case. Appellant altered the
scene so that it would appear that Lori Christy had committed
suicide. He placed the gun by his wife’s body, straightened the
body, replaced the spent shell in the shotgun, and put a ladder
in front of his closet so that it would appear that the 5’1” Lori
Christy could reach the shotgun shells.
At appellant’s trial, defense counsel stated the following
during opening arguments:
Sa
Now, the evidence in this case will show that Lori
Christy was a very troubled young woman... . You will also
hear evidence of her suicidal tendencies. . . . You will also
hear evidence about the mental therapy that Lori was
undergoing, as well as some of the things she wrote as part of
her therapy. . . .
In addition, you will see a note that was found after
Lori’s body was discovered. And Colonel Raisani, an Air
Force forensic psychiatrist, will testify that this note was, in
fact, a suicide note. . . .
* * *
Finally, you will hear evidence and see evidence of
Sergeant Christy’s good military character and that he has
never been in trouble before.
Despite these assertions, trial defense counsel did not
call any witnesses. In its case in chief, the prosecution
introduced the alleged suicide note into evidence and also
elicited testimony regarding Lori Christy’s suicidal state the
day before her death. Trial defense counsel] introduced
appellant’s military record into evidence during the
sentencing phase of the trial but did not call any character
witnesses.
DISCUSSION
The Sixth Amendment guarantees a criminal defendant
“Assistance of Counsel for his defence.” This Court has
unanimously adopted the test for ineffective assistance of
counsel established by the Supreme Court in Strickland y.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984). See United States v. Ingham, 42 MJ 218, 223 (1995).
Strickland creates a two-prong test to determine whether
an accused was denied effective assistance of counsel. The
first prong is whether counsel’s conduct “fell below an
objective standard of reasonableness.” Strickland y.
6a
Washington, supra at 688, 104 S.Ct. at 2064. We “strongly
presume[]” that counsel has provided “adequate assistance.”
Id. at 690, 104 S.Ct. at 2066.
The second prong is whether there was prejudice. /d. at
692, 104 S.Ct. at 2067. An appellant who alleges prejudice
must show that “counsel’s errors were so serious as to deprive
the defendant of a fair trial, a trial whose result in reliable.”
Id. at 687, 104 S.Ct. at 2064. As the Supreme Court noted in
Lockhart v. Fretwell, 506 U.S. 364, 369-70, 113 S.Ct. 838,
842-43, 122 L.Ed.2d 180 (1993)(footnote omitted):
[A]n analysis focusing solely on mere outcome
determination, without attention to whether the
result of the proceeding was fundamentally unfair
or unreliable, is defective. To set aside a conviction
or sentence solely because the outcome would have
been different but for counsel’s error may grant the
defendant a windfall to which the law does not
entitle him.
An analysis of this case under the first prong of
Strickland reveals some unsettling circumstances. As we
stated in United States v. Fluellen, 40 MJ 96, 98 (CMA 1994),
“It is important for counsel to evaluate all of the evidence and
determine the strategy that is most likely to be successful.”
Prior to trial, counsel should decide, as a tactical matter,
“which witnesses not to call because of their potential for
impeachment and corroboration of the prosecution’s case.” /d.
Opening statements are a “critical part of the trial... . It is
during the opening statement that the parties set forth their
theory and theme of the case.” United States v. Turner, 39 MJ
259, 265 (CMA 1994). While unexpected events at trial may
lead to changed circumstances or different trial tactics, there
is no indication of such unexpected events in appellant’s case.
Trial defense counsel should have realized the tactical
risks and benefits of calling Dr. Raisani and character
7a
witnesses well before they presented the defense’s opening
statement. The character witnesses may have been particularly
important to appellant’s defense because evidence of
appellant’s good military character may be sufficient to raise a
reasonable doubt as to appellant’s guilt, thereby bolstering
appellant’s accident defense. See United States v. Breeding, 44
MJ 345 (1996), and cases cited therein. However, we do not
need to decide whether defense counsel’s conduct fell below
an objective standard of reasonableness because it is clear that
appellant was not prejudiced by the conduct of his trial
defense counsel.
Appellant made numerous incriminating and
contradictory statements to the police. He informed his
defense counsel that he was not at the house when his wife
died, despite the three detailed statements to the police in
which he admitted that he was present. Defense counsel had
their hands tied. Had they put appellant on the stand, the
members would have been even more skeptical of appellant’s
ever-changing stories. Appellant’s statements significantly
strengthened the case against him because they indicated
guilt. “We have little patience, generally, with appellate calls
for a penalty flag from an accused who, when all is said and
done, was mugged—if at all—largely by his own lack of
candor with his counsel.” United States v. Meadows, 42 MJ
132, 138 (1995).
The Government’s case against appellant was very
strong. Appellant lied to investigators. Appellant tried to make
Lori Christy’s death look like a suicide. Appellant misled
investigators by suggesting that another person had killed his
wife. There was evidence of appellant’s anger at Lori Christy.
Appellant did not appear upset when he arrived at his
daughters’ school program after his wife’s death, and he felt
“good” and “happier” after his wife died. Further, appellant
admitted that he retrieved the gun and shells, and admitted
Sa
that he loaded the gun. An expert testified that if things had
occurred as appellant claimed, appellant would most likely
have severely damaged or broken his thumb when the gun
recoiled. In sum, appellant’s actions before and after Lori
Christy’s death provide ample evidence that the results of the
trial were reliable.
Appellant’s trial was not fundamentally unfair. See
Strickland v. Washington, supra at 668, 104 S.Ct. at 2052;
United States v. MacCulloch, 40 MJ 237 (CMA 1994).
The decision of the United States Air Force Court of
Criminal Appeals is affirmed.
Chief Judge COX and Judges GIERKE and EFFRON
concur.
SULLIVAN, Judge (concurring in the result):
The majority appears to resolve this claim of ineffective
assistance of counsel on the basis of the strength of the
Government’s case. __MJ (/0). However, I agree with the
appellate court below and its initial approach to this claim,
which focus on the reasonableness of defense counsel’s
conduct in the context of the entire trial. It said:
This leaves two issues in need of further comment. First,
in their opening statement counsel! did, indeed, promise to put
on Col (Dr.) Raisani, who had reviewed the results of the
sanity board, and who would have testified as to his
conclusion that Lori was genuinely suicidal at the time of her
death. Defense counsel explained at the DuBay hearing that it
was their belief that, as the government’s case-in-chief
unfolded, there was more than ample evidence of this,
including the testimony as to the Flexeril pills and the suicide
note. They were concerned that cross-examination of Dr.
Raisani might well have produced adverse testimony,
including the disclosure that appellant had told the sanity
board that he was not in the house, and that, at least part of
9a
what may have contributed to Lori’s suicidal ideation was
appellant’s having recently attempted to force her to
participate in anal sex. In addition, under the accident theory
of the case, it was essentially conceded that Lori had not, in
fact, committed suicide. While not as inevitable as, say, the
decision to go with the accident defense, not appearing to
unnecessarily denigrate a murder victim is entirely defensible.
The military judge, after conducting an exhaustive post-trial
hearing, found that this decision was fully discussed with
appellant, and he agreed to it. Under the circumstances,
therefore, it was well within the deference we afford defense
counsel in the conduct of a trial. See !/ -ited States v. Brothers,
30 MJ 289, 291 (CMA 1990).
The decision not to put on any favorable character
testimony following the government’s case in chief was also
not unreasonable. Counsel knew that “did you know, have
you heard” questions, including the allegation of forced anal
sex, appellant’s expression of satisfaction to the AFOSI after
his wife’s death, his feeling of “arrogance” when he saw
Jeanette at the auditorium in the immediate aftermath of the
killing, evidence of recent bruising on Lori’s body, and other
similar indicia, could nullify any help offered by character
evidence, and might well prove disastrous. This, too.
according to the findings of the judge, was comprehensively
discussed with the appellant before the decision was made to
rest, and met with his approval.
Unpub. op. at 9, 1996 WL 75832.
I affirm the decision of the lower court.
10a
APPENDIX B
UNITED STATES
v.
Staff Sergeant DERRELL A. CHRISTY,
FR48 1-92-9881, United States Air Force
United States Air Force Court of Criminal Appeals
ACM 31200
14 February 1996
Sentence adjudged 3 December 1993 by GCM convened at
Whiteman Air Force Base, Missouri, Military Judge: Michael
B. McShane.
Approved sentence: Dishonorable discharge, confinement for
35 years, forfeiture of all pay and allowances, and reduction
to E-1.
Appellate Counsel for Appellant: Colonel Jay L. Cohen and
Captain Robert E. Watson.
Appellate Counsel for the United States: Colonel Jeffery T.
Infelise and Colonel Thomas E. Schlegel.
Before
PEARSON, SCHREIER, and MORGAN
Appellate Military Judges
OPINION OF THE COURT
MORGAN, Judge
Convicted of the unpremeditated murder of his wife and
sentenced to a dishonorable discharge, confinement for 35
years, total forfeitures and reduction to E-1, appellant
lla
complains of the ineffective assistance of counsel and that the
evidence was factually insufficient to sustain his conviction.
Disagreeing as to both allegations of error, we affirm.
FACTS
On May 9, 1993, the appellant walked into his quarters at
Whiteman Air Force Base (AFB) to find his wife, Lori, locked
in a sapphic embrace with their neighbor, Mrs. Jeanette
Miller, wife of SrA George Miller. It came out during trial that
Jeanette and Lori had only recently become physically
involved, which included at least one ménage 4 trois with SrA
Miller, Jeanette and Lori.
At first appellant affected not to notice anything amiss,
but shortly after midnight, May 10, 1993, Lori called Jeanette,
despondent. Confronted by the appellant, she had confessed to
a physical attraction to Jeanette, but claimed it was a one-time
event. Appellant had left the quarters, angry, and Lori spoke
of suicide. Jeanette put her husband on the phone to continue
to speak with Lori while she rushed over to the Christy
quarters, about a block away. She found Lori with 27 Flexeril
tablets (a muscle relaxant). She testified that she reminded
Lori of her responsibility to the two Christy daughters, of her
religious scruples, and of her earlier declaration that suicide,
however convenient, was ultimately the most selfish of all
acts. Jeanette testified that this soothed Lori, and that when
she finally left, Lori seemed cheered and had put aside any
thought of destroying herself.
Later that day, Lori returned to the Millers, explaining
that she and appellant had undergone a cathartic discussion,
and that appellant has sent her over there to declare that it was
over between her and the Millers. But Jeanette would have
none of this. She instead convinced (the apparently malleable)
Lori to return to her quarters, confront her husband, and seek
12a
a divorce. To ensure Lori would follow through, Jeanette
accompanied her back to the Christy household. There,
according to Jeanette, Lori did as she had been told, and
reminded appellant, in addition, that she and Jeanette would
be going off together for a weekend. Furious, appellant
departed the quarters at approximately 1755 hours, leaving
Lori and Jeanette alone. (The Christy girls were at the
Millers.) Jeanette left the quarters to return to her own at 1815
hours.
There was a school program at Whiteman Elementary
School that evening at 1900 hours, and the daughters of both
families were to perform. Before leaving, appellant said that
he would meet everybody at the school at 1900 hours.
Jeanette and SrA Miller were to pick Lori up to take her to the
school at 1845 hours.
At about 1845 hours the Millers drove to the Christy
quarters. Lori was not waiting, and appellant’s Firebird was
not in the driveway. Finding the door unlocked, Jeanette went
into the house, calling for Lori. Proceeding to the master
bedroom, she noted a dripping, wet shower stall, a wet towel
on the unmade bed. An alarm clock, pulled the full extent of
its cord, was laying beside the bed, beeping and flashing
“1845.” She did a hasty tour of the house, calling Lori’s name,
but received no response. Assuming that appellant had already
picked her up and taken her to the school, the Millers
departed.
At the school, which apparently was only blocks away,
the Millers did not see either of the Christys. SrA Miller
departed at his wife’s urging, searching for the appellant’s car.
He drove by the Christy quarters and knocked on the door, but
received no answer. It was now about 1850 hours. Returning
to the auditorium, he noted that appellant was now seated a
few chairs away from his wife, without Lori. Again, at his
ee
13a
wife’s urging, he returned to the Christy household. This time,
he went in. As his wife had done a few minutes earlier, he
noted the still-wet shower off the master bedroom. A step-
stool was positioned in front of the closet in the master
bedroom. Proceeding downstairs to the basement, he walked
around to a position in front of a high-backed plaid-
upholstered couch. There he discovered the body of Lori
Christy, slouched on the left hand side of the couch, her head
below the high back so that she could not be seen from the
stairwell (from which Jeanette had earlier quickly surveyed
the basement). A 12 gauge shotgun was leaning against her,
butt on the floor, barrel across her knee. An unexpended
shotgun shell was lying on the floor at her feet.
Panicked, SrA Miller couldn’t remember the number for
the police, so he ran upstairs and drove to the security police
Station to report his discovery. Minutes later, Jeanette Miller,
hearing sirens and seeing flashing lights from a vantage point
at the school gym, suspected the worst and called the Christy
household. When a security policeman answered the phone,
she hung up and returned to appellant, who had never asked
the whereabouts of his wife since coming to the school
auditorium. She advised him that there was trouble and he
needed to go right home. Appellant departed, according to
Jeanette, looking angry, but strangely calm.
Sergeant (Sgt) Holmes was one of the first security
policemen on the scene. Upon the arrival of medical
personnel, Sgt Holmes, unthinking, moved the shotgun from
Lori Christy to get it out of the way of emergency personnel.
At some point he attempted to rack the pump on the shotgun
to clear it, but was unable to do so. This was because, as it
turned out, the shotgun had already been racked after the fatal
shot had been fired. Somebody had pumped the gun after the
shot, ejecting the spent shell, and had then racked it again,
l4a
ejecting the unspent cartridge found at Lori’s feet. The spent
cartridge had then been replaced in the chamber.!
Sgt Holmes also testified that he saw the appellant drive
by the house, slowly, but then proceed on. A few minutes
later, the car returned from the opposite direction, and
appellant emerged. He testified that appellant seemed
unnaturally calm about the whole thing and did not protest
much when he was restrained from visiting the scene of his
wife’s death. Instead, appellant returned to his car and had a
cigarette. The police discovered a “suicide” note,
subsequently found to be in Lori’s handwriting, in which she
professed her undying love for her children, and remorse for
how she had hurt her husband.
An autopsy revealed that Lori had been killed instantly
by a single shotgun blast which exploded her heart and her
left lung. Scorching on her chest and powder on her left hand
indicated that the gun had been up against her chest, and that
she had her left hand at or near the muzzle when the gun
discharged.
Appellant appeared to have an airtight alibi. He gave the
AFOSI a statement in which he indicated the he had gone first
'Forensic testing subsequently revealed that the spent cartridge had two
sets of extractor marks on it. Once for when it had been initially ejected
after the fatal shot, once more when Sgt Holmes ejected it after pushing
the release. The unspent cartridge had one set of extractor marks, indicat-
ing that it had been loaded, but that somebody had ejected it. The signifi-
cance of this—that it virtually precluded the possibility of suicide, was
apparently lost. Special Agent (SA) Messick of the Air Force Office of
Special Investigations (AFOSI), who assumed principal responsibility for
the investigation of the case, was not told of this anomaly until the next
day, May 11. While he appreciated its significance, he testified that he sus-
pected that Sgt Holmes may have ejected both cartridges, then, realizing
his blunder, had attempted to restore the crime scene by putting the spent
cartridge back in the chamber. Later, Sgt Holmes was polygraphed on his
account of what happened and no deception was indicated.
lh hat oe
15a
to visit a friend and “business partner” at Harbor Motors, Mr.
Ray Ferraer, and then visited another friend, Sgt Bernard.
Between the two of them, his time was fully accounted for
between 1755 and 1900 hours, when he had appeared at the
school auditorium.”
Investigators had nowhere to go. Although the position
of the shotgun and the re-chambered spent round were
inconsistent with a suicide, there was nothing to tie either of
the Millers or appellant to the crime. In addition, those two
inconsistencies were attributable, potentially, to the luckless
Sgt Holmes, who, it was thought, may have disturbed the
scene more than he was willing to admit.
Both of the Millers and the appellant consented to be
polygraphed. SA Dorothy Cain administered the polygraphs
to appellant on June 17-18, 1993, and preceded each with the
appropriate rights advisement. Both of the Millers “passed,”
but appellant, asked if he shot Lori, was “deceptive” when he
answered “no.” Retested the following day, a similar result
obtained. He explained to SA Cain that, as he left the house
on May 10, Lori had touched him on the shoulder and told
him she loved him. He had coldly rebuffed her. When he
thinks of her being shot, he blames himself for precipitating
her suicide.
SA Cain testified that this explanation was at least
plausible, and she endeavored to construct questions which
would skirt the emotionally freighted shooting. Appellant
consented to do another interview on July 8. This time she
asked if appellant had been in the house between 1800 and
1900 hours on May 10. He was descriptive in responding to
this, as well. In the post-polygraph interview, appellant asked
?Mr. Ferraer’s account of the times that appellant was with him proved
later to be quite adaptable, and more or less specific as the occasion
demanded. But in the immediate aftermath of the crime, he was taken at
his word.
16a
if Lori had been found with her eyes half open, her mouth
slightly agape. For the first time, SA Cain became convinced
that appellant was in some fashion culpable, knowing that he
had not been admitted to the crime scene, and had no way of
knowing how Lori had looked in death.
By the conclusion of the 8 July interview appellant was
tired, but agreed to reduce his statement to writing when he
returned on 10 July. Again advised of his rights, and waiving
same, appellant executed a hand-written sworm statement in
which he admitted that he returned to the quarters, and found
Lori preparing to kill herself with the shotgun. He claimed
that either she or he loaded the shotgun with two shells, he
didn’t remember which. She then seated herself on the couch
and began to put her toe in the trigger, holding the shotgun up
against her chest with her left hand, the butt resting on the
floor. Realizing she was serious, the appellant shouted “no!”
and made a grab for the rifle, but somehow it went off.
Panicked, he racked the gun, ejecting the spent cartridge,
which he subsequently replaced. He did not remember why he
racked the shotgun following the accident, or why or how the
unspent cartridge was ejected.
Appellant’s handwritten draft was transcribed into a
typewritten statement, which appellant edited, corrected,
swore to, and signed. On July 13, tested on the substance of
the 10 July version, he again was “deceptive” on critical
questions. He executed a second, signed sworn statement, in
which he now remembered that he returned home and Lori
showed him the suicide note. Thinking she is “bluffing” he
loads the shotgun, removing the shells from the top shelf of
the closet in the master bedroom.’ He hands Lori the shotgun,
‘There was evidence that Lori was quite short, only 5’1” or 5'2”, and
would have been unable to reach the top shelf of the closet. The
prosecution theorized that placement of the stepstool at the location, given
appellant's declaration that he got the shells down, was a contrivance
intended to reinforce the suicide theory.
ela tin 10 1 — .
te YAEL Cg te RE
17a
and she leans into it, holding it against her chest with her left
hand. But, according to this version, she withdraws, “chickens
out.” Appellant, angered, strides over to her Saying, “you’re
lying about this [the Suicide] just like you're lying about
everything else.” He grabs the shotgun with his right hand,
fingers curled over the top. Somehow, his thumb slides inside
the trigger guard. In the course of picking up the gun, with
Lori continuing to hold it against her chest, his thumb pulls
the trigger and the gun goes off. Shocked and horrified,
appellant replaces the spent cartridge into the receiver,
Straightens her body on the couch, leans the gun against the
body of his wife, and departs for the school auditorium
As before, after making the oral Statement, appellant
wrote a longhand version, which was Subsequently reduced to
a typed statement, edited, and swom. At this point, appellant
was placed into pretrial confinement, accused of the murder of
his wife.
INEFFECTIVE ASSISTANCE OF COUNSEL
Appellant first met with counsel, Captain (Capt) C, the
Area Defense Counsel, and Capt H, the Circuit Defense
Counsel, after he had already delivered two rights-advised,
Sswom, written statements to the AFOSI. However, to his
counsel, appellant insisted that, in fact, he had not been back
to the quarters at all, and that the AFOSI had somehow tricked
him into confessing (twice) to something he didn’t do.
Counsel asked for and received a sanity board, but the board
concluded that he suffered from no mental disease or defect
which impaired his ability to appreciate the nature or
criminality of his act. During the Sanity board, appellant
insisted that he had not been in the quarters at the time, and
claimed a memory loss during the relevant 30 minutes Or so
(although his memory was perfectly intact for all events up
18a
until that time and all after.) The board concluded he was
“malingering” on his claimed loss of memory.
Nevertheless, appellant’s counsel were faced with a
Hobson’s choice: either they went with a defense of
“accident” and attempted to incorporate and reconcile
appellant’s statements; or they returned to the alibi defense,
with the obvious consequence that they would have to
somehow suppress or explain-away appellant’s two sworn
statements.
If they were able to suppress the two statements, the alibi
defense became very appealing, because in the absence of
appellant’s admissions, there was almost nothing with which
to pin the crime on him. At a lengthy pretrial session, defense
counsel moved to suppress the two statements, arguing that an
8 July “view questionnaire” given to appellant without
advisement of rights, tainted the succeeding two statements.
The military judge suppressed the view questionnaire itself
(which contained nothing incriminating) holding that the
failure to advise appellant of his rights after his ambiguous
performance in mid-June violated his rights under Article 31,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 831.
But he declined to suppress the 10 and 13 July statements,
noting that the view questionnaire had no logical connection
to appellant’s subsequent admissions, and that he was fully
advised of his rights before each.
It was under this circumstance that appellant’s counsel
faced trial. After conferring with and securing the approval of
their client, they elected to go with the “accident” defense,
necessitating keeping appellant off the stand, as he insisted
that he would testify to the effect that he hadn’t been in the
quarters at all during the relevant time period. It is in the
context of this factual and legal situation that appellant now
asks this Court to hold that his two counsel failed io render
him effective assistance.
19a
At the conclusion of the case, appellant complained to
the convening authority that he was inadequately represented.
The convening authority ordered a hearing under United
States v. DuBay, 17 U.S.C.A. 147, 37 CMR. 411 (1967) and
Rule for Courts-Martial (R.C.M.) 1102. Distilled to their
essentials, appellant complained his defense counsel:
1. Failed to seek to suppress the 10 and 13 July
Statements on the basis of voluntariness:
2. Ignored the possible defense of alibi:
3. Disregarded appellant’s observation that the
president of the court appeared to be nodding off;
4. Failed to present evidence as to Lori’s suicidal
disposition and his own good character during
findings, despite indicating an intention to do so in
opening statement;
5. Failed to contact a proposed witness to good
character;
6. Conducted an inadequate cross-examination of
Sgt Holmes, SA Messick and a government expert;
7. Failed to investigate a sermon heard by Lori the
day before her death condemning homosexuality.
We hasten to add at this point that we have no intention
of “getting into the weeds” and joining appellant in peering
over the shoulder at the performance of defense counsel with
the preternatural focus of hindsight. The law does not require
it; time and judicial economy forbid it. Some of the asserted
errors were found by the military judge conducting the DuBay
hearing to be factually unsupported—specifically, he found
that although appellant believed that he saw the president
beginning to nod off, there was insufficient evidence to
substantiate that he had fallen asleep. Every member of the
court save one (who was TDY) was questioned under oath,
20a
and none had seen the president fall asleep. The bailiff,
members of the gallery, and others were questioned. Only
appellant, his sister, his niece, and the ever-helpful Ray
Ferraer claimed to have seen the sleeping, and their testimony
contradicted each other as to time, place, and duration. Under
the circumstances we do not find that the military judge was
clearly erroneous in finding that “Col [C] was not asleep or
inattentive during any portion of the trial.”
The military judge further found that every significant
decision on trial strategy, including the key decisions not to
pursue the alibi defense and (consequently) not to put
appellant on the stand, was accompanied by thoroughgoing
discussions between counsel and appellant, and received
appellant’s blessing.
Standards for Evaluating an Ineffective Assistance Claim
In Strickland v. Washington, 466 U.S. 668 (1984), the
Supreme Court annunciated the standards by which claims of
ineffective assistance of counsel are to be measured.
Simplified, they are that counsel’s performance must be so
deficient, so unreasonable, and the errors so serious, as to
conclude that counsel was not functioning as the “counsel”
contemplated by the Sixth Amendment. Second, counsel’s
errors must be so serious as to deprive the defendant of a fair
trial, a trial whose result is reliable. /d. at 687.
The Court was mindful that such a standard constituted a
significant barrier to an appellant wishing to assert ineffective
assistance as an error, and candidly admitted that to be
intentionally so, writing:
The availability of intrusive post-trial inquiry into
attorney performance or of detailed guidelines for
its evaluation would encourage the proliferation of
ineffectiveness challenges. Criminal trials resolved
2la
unfavorably to the defendant would increasingly
come to be followed by a second trial, this one of
counsel’s unsuccessful defense.
Id. at 690.4
The Court of Appeals of the Armed Forces has
assiduously applied the guidance of the Supreme Court on
this issue, most recently in United States vy. Ingham, 42 M.J.
218 (1995). There, as here, appellant had complained of a
failure to cross-examine certain witnesses as appellant would
have liked, failure to call other witnesses, and failure to object
to the admissibility of certain evidence. The Ingham court,
although not furnished the benefit of a DuBay hearing on the
issue, nor ever an affidavit from the defense counsel, began its
analysis by asking whether the trial defense counsel had a
reasonable trial strategy—not whether it was the best Strategy,
nor even a good one, but whether it was reasonable.
Appellant Received Effective Assistance of Counsel
We have no difficulty in deciding that, confronted with
two virtual confessions by the appellant, an accident theory,
however it might have offended the laws of physics, common
sense, and human nature, was not merely a reasonable
Strategy, but indeed, it was virtually the only Strategy
availing. In this respect, we dismiss categorically appellant’s
near-ludicrous postulate that trial defense counsel could have
or should have pursued an alibi defense in the face of
appellant’s two sworn statements in which he admitted to
being, at the very least, an inadvertent instrumentality in his
wife’s shooting.
“The Court was hardly straining at gnats. The danger of double litigation is
exemplified by this case, where the trial itself consumed approximately
400 pages of transcript, not including exhibits, and the DuBay hearing,
which essentially tried appellant’s lawyers, took another 300 pages.
22a
Defense counsel reasoned, and experience has indeed
shown, that court members are extremely skeptical of
recanted confessions, and that they may well consider an
attempt to do so as an affront to their intelligence and
common sense. See, e.g., United States v. Burks, 36 M.J. 447
(C.M.A. 1993), cert. denied, _U.S_—, 114 S.Ct. 187 (1993).
Not pursuing evidence, or cross-examining witnesses, where
the evidence or the cross-examination would contribute
nothing to the accident theory, was not only reasonable, it was
sound trial strategy. Counsel wisely reflected on the known
consequences of alienating court members through the
peddling of absurd or inconsistent theories, and were
scrupulous not do so.
In addition, the defense of accident, if even partially
believed, afforded the appellant the possibility of conviction
of a lesser included offense, including voluntary
manslaughter, involuntary manslaughter, or negligent
homicide. Alibi was an all-or-nothing proposition.
This leaves two issues in need of further comment. First,
in their opening statement counsel did, indeed, promise to put
on Col (Dr.) Kaisani, who had reviewed the results of the
sanity board, and who would have testified as to his
conclusion that Lori was genuinely suicidal at the time of her
heath. Defense counsel explained at the. DuBay hearing that it
was their belief that, as the government’s case-in-chief
unfolded, there was more than ample evidence of this,
including the testimony as to the Flexeril pills and the suicide
note. They were concerned that cross-examination of Dr.
Raisani might well have produced adverse testimony,
including the disclosure that appellant had told the sanity
board that he was not in the house, and that, at least part of
what may have contributed to Lori’s suicidal ideation was
appellant’s having recently attempted to force her to
participate in anal sex. In addition, under the accident theory
Oe Se ee ee ee ee ee
lt pee tear
23a
of the case, it was essentially conceded that Lori had not, in
fact, committed suicide. While not as inevitable as, say, the
decision to go with the accident defense, not appearing to
unnecessarily denigrate a murder victim is entirely defensible.
The military judge, after conducting an exhaustive post-trial
hearing, found that this decision was fully discussed with
appellant, and he agreed to it. Under the circumstances,
therefore, it was well within the deference we afford defense
counsel in the conduct of a trial. See United States v. Brothers,
30 M.J. 289, 291 (C.M.A. 1990).
The decision not to put on any favorable character
testimony following the government’s case in chief was also
not unreasonable. Counsel knew that “did you know, have
you heard” questions, including the allegation of forced anal
Sex, appellant’s expression of satisfaction to the AFOSI after
his wife’s death, his feeling of “arrogance” when he saw
Jeanette at the auditorium in the immediate aftermath of the
killing, evidence of recent bruising on Lori’s body, and other
similar indicia, could nullify any help offered by character
evidence, and might well prove disastrous. This, too,
according to the findings of the judge, was comprehensively
discussed with the appellant before the decision was made to
rest, and met with his approval.
Finally, we agree with the military judge that defense
counsel took their best shot at suppressing the two statements
when they attempted to link them with the view questionnaire.
The trial defense counsel concluded that a motion to suppress
those statements on the grounds that they were involuntary, in
the face of repeated reading and waiver of rights, frequent
breaks for food, rest, and cigarettes, and the appeliant’s own
admissions that he was never put into physical discomfort, or
his liberty restricted, was doomed. The military judge agreed,
and so do we. Under the circumstances, it was hardly
unreasonable for defense counsel to decide that making such a
24a
motion might destroy their credibility with the military judge
and jeopardize other, more meritorious efforts.
In Strickland, the Court stated that an appellant was
required to meet both criteria to succeed in an ineffective
assistance gambit. Failure to meet one or the other of the
Strickland tests was dispositive of the issue. The Court,
sensitive to judicial economy and the high threshold imposed
by the second of the two prongs, encouraged appellate courts
to decide cases on that prong alone—that is, for a claim of
ineffective assistance to succeed, there must be a “reasonable
probability that, but for counsel’s unprofessional errors, the
results of the proceedings would have been different.”
Strickland, 466 U.S. at 692. The Court continued:
If it is easier to dispose of an ineffectiveness claim
on the ground of lack of sufficient prejudice, which
we expect will often be so, that course should be
followed.
Id. at 697. In this case, appellant set his counsel a near
Sisyphean task—to gain an acquittal in the face of two near-
confessions, or to sell an implausible theory of accident
without any assistance from his own testimony. Neither the
Sixth Amendment nor Article 27 of the UCMJ requires
counsel to do the impossible. “If there is no bona fide defense
to the charge, counsel cannot create one and may disserve the
interests of his client by attempting a useless charade.” United
States v. Cronic, 466 U.S. 648, 659 (1984). We can conceive
of no possibility, no unexplored avenue, no trial strategy, and
no tactical gambit, which could reasonably have changed the
result here, or which diminishes even slightly our confidence
in it. Much less do we perceive any error by defense counsel
which raises even a remote possibility of a different result.
:
4
1
25a
FACTUAL SUFFICIENCY
With the preceding as backdrop, we need not tarry on the
obvious conclusion that we are ourselves satisfied beyond a
reasonable doubt of the appellant’s guilt of unpremeditated
murder, United States v. Turner, 25 MJ. 324 (C.M.A. 1987).
Expert testimony indicated that the shotgun was held against
Lori’s chest at an angle of approximately 22 degrees from the
horizontal—an angle consistent with the image of Lori sitting
on the couch, and appellant standing over her, the muzzle
pressed against her heart, the butt against his shoulder, her
hand on the barrel in an ultimately ineffectual attempt to push
it away. The shotgun had a normal trigger pull of around 6
pounds. Appellant’s own expert could not replicate the
Situation postulated by appellant’s 13 July statement. The
government’s expert testified that, if the shotgun had been
somehow triggered by appellant’s thumb in the position he
described, the ensuring recoil would likely have broken his
thumb, or at the very least caused him severe and obvious
injury.
Along the same vein, appellant’s post-mortem actions
were entirely inconsistent with even a personal belief that
what had happened was an accident. No effort was made to
secure emergency medical assistance to possibly save Lori’s
life. Particularly damning was the ejection of the spent shell
and the second shell, the reinsertion of the spent shell, the
too-neat placement of the shotgun, and the subsequent
planting of a step-stool at the master bedroom closet to make
it appear that Lori had retrieved the shotgun shells. No
fingerprints, not even Lori’s, were found anywhere on the
shotgun. Appellant’s obvious lack of Curiousity as to the
whereabouts of his wife when he arrived at the school,
notwithstanding his earlier agreement that the Millers were to
bring her with them, and his drive-by past his quarters are
26a
consistent with one who knew himself to be a murderer, not
the unwitting witness to a terrible accident.
CONCLUSION
The findings and sentence are correct in law and fact, the
sentence is appropriate, and the same are hereby
AFFIRMED.
Senior Judges PEARSON and SCHREIER concur.
OFFICIAL
LAURA L. GREEN
Clerk of Court
Court of Criminal Appeals
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