Appendices — Hall v. United States

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APPENDIX A

U.S. COURT OF APPEALS

FOR THE ARMED FORCES.

UNITED STATES,

Appellee,

V.

ADRIENNE M. HALL, Captain Air Force,

Appellant.

No. 96-1240

Crim. App. No. 31483.

Submitted March 5, 1997.

Decided June 9, 1997.

Accused was convicted by general court-martial, Dennis

E. Kansala J., of wrongful use of methamphetamines. The

United States Air Force Court of Criminal Appeals af-

firmed. Review was granted. The United States Court of

Appeals for the Armed Forces, Cox, C.J.. held that chal-

lenge to instruction on collateral matter was waived by

lack of objection.

Affirmed.

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Opinion of the Court

COX, Chief Judge:

Captain Hall was tried by a general court-marial with

members at Oflutt Air Force Base, Nebraska. Pursuant to

her pleas, she was found guilty of wrongful use of metham-

phetamines, in violation of Article 112a, Uniform Code of

Military Justice, 10 USC § 912a. During deliberations on

sentence, the military judge, “Should the accused be dis-

mised from the Air Force, what benefits would she be en-

titled to as a dependent?” Captain Hall is the spouse of a

military retiree. The military judge instructed the mem-

bers as follows:

The response to that is, her conviction by this court

or any sentence imposed by this court, including a

dismissal, would not affect any benefits she would be

entitled to as a dependent of a retired military per-

son. In other words, those might be use of commis-

sary, use of BX, medical benefits, as any other de-

pendent of a retired military person.

Having given the above instruction, the military judge

then asked whether either counsel had “any quarrel with

that point of view.” Both the prosecution and the defense

replied in the negative.

Captain Hall was sentenced to dismissal from the Air

Force, without any other punishment. We granted re-

view of the following issue:

WHETHER THE AIR FORCE COURT ERRED

IN IMPLICITLY HOLDING THAT WHERE A

MILITARY JUDGE VIOLATES UNITED STATES

V. GRIFFIN, 25 MJ 423 (CMA 1988) BY AN-

SWERING A MEMBER’S QUESTION ABOUT

COLLATERAL CONSEQUENCES WITHOUT

HAVING PROCURED THE ACCUSED’S AGREE-

MENT TO SUCH A RESPONSE, THERE CAN

BE NO PLAIN ERROR IF THE JUDGE’S AN-

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SWER WAS ESSENTIALLY CORRECT AND

DEFENSE COUNSEL REQUESTED TO _IN-

STRUCTION TO DISREGARD IT; i.e., WHETH-

ER GRIFFIN MEANS WHAT IT SAYS, THAT A

MILITARY JUDGE MAY ONLY ANSWER

MEMBERS’ QUESTIONS REGARDING COL-

LATERAL CONSEQUENCES “IF AN ACCUSED

AGREES.”

[1] This Court has repeatedly held that collateral con-

sequenes of a court-martial conviction should not be the

concern of the court-martial and that instructions thereon

Should be avoided. United States v. McElroy, 40 MJ 368,

371-72 (CMA 1994); United States y. Griffin, 25 MJ

423 (CMA 1988). We agree with Chief Judge Everett’s

observation in his separate opinion in Griffiin that “the

collateral consequences of a sentence—or even of a con-

viction—cannot always be foreseen.” 25 MJ at 425. “On

the other hand, it is. . . not error” for a military judge “to

answer the members’ questions if an accused agrees.” 25

MJ at 424. It is equally clear that these collateral con-

sequences continue to be a concern to members of a court-

martial, for numerous reasons. As this Court observed in

Griffin:

First, in reality, the impact of an adjudged punish-

ment on the benefits due an accused who is eligible

to retire is often the single most important sentencing

matter to that accused and the sentencing authority.

Thus, it is only in a theoretical sense that the effect a

punitive discharge has on retirement benefits can be

labeled collateral. Moreover, the impact on benefits

—whatever it may be—can only be a direct and

proximate consequence of the sentence.

25 MJ at 424.

[2] Captain Hall was tried on August 18, 1994. She

made an unsworn statement to the members that she had

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prior enlisted service, had obtained a commission through

ROTC, had married an individual who was then retired

from the Air Force, and was eligible to retire from the

Air Force on December 4, 1994. She asked the court

members to impose punishment only on herself and not on

her family. The military judge, without objection, in-

structed the members that a dismissal could deprive ap-

pellant “of substantially all benefits administered by the

Veterans Administration and the Air Force establishment.”

We have recently addressed the issue of instructing on

retirement benefits in United States v. Sumrall, 45 MJ 207

(1996); see United States v. Graves, 46 MJ 133 (1997).

It is clear that members of courts-martial, military judges,

and the parties do not consider loss of these benefits to

be collateral or immaterial. However, we need not address

this issue, because we conclude that objections to the mili-

tary judge’s instruction were waived by failure of appellant

to- object or seek a curative instruction. See McElroy,

supra at 372 (waiver by failure to object); United States

v. Griffin, supra. The sentence will be set aside only if the

instruction by the military judge constituted plain error.

[3-5] Plain error is a doctrine that “is to be used spar-

ingly, solely in those circumstances in which a miscarriage

of justice would otherwise result.” United States v. Stra-

chan, 35 MJ 362, 364 (CMA 1992), quoting United

States v. Fisher, 21 MJ 327, 328-29 (CMA 1986), quot-

ing United States v. Frady, 456 U.S. 152, 163 n. 14, 102

S.Ct 1584, 1592 n. 14, 71 L.Ed.2d 816 (1982). “To

establish plain error, appellant must demonstrate: that

there was ‘error’; that such error was ‘plain, clear, or ob-

vious’; and that the error ‘affect[ed]’ appellant’s ‘substan-

tial rights.”” United States v. Czekala, 42 MJ 168, 170

(1995), quoting United States v. Olano, 507 U.S. 725,

732, 734, 113 S.Ct. 1770, 1777-78, 123 L.Ed.2d 508

(1993). Appellant has failed to satisfy her burden of

showing that an obvious, substantial error ovcurred and

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that the error had an unfairly prejudicial impact on her

case. United States v. Strachan, supra.

The decision of the United States Air Force Court of

Criminal Appeals is affirmed.

Judges SULLIVAN, CRAWFORD, GIERKE, and

EFFRON concur.

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APPENDIX B

UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

ACM 31483

UNITED STATES

Vv.

CAPTAIN ADRIENNE M. HALL, 572-98-0554FV

United States Air Force

17 June 1996

Sentence adjudged 18 August 1994 by GCM convened

at Offutt Air Force Base, Nebraska. Military Judge:

Dennis E. Kansala.

Approved sentence: Dismissal.

Appellate Counsel for Appellant: Captain Todi S. Garnes

(argued), Colonel Jay L. Cohen, and Freddy B. Ruiz.

Appellate Counsel for the United States: Captain Libby

A. Brown (argued), Colonel Jeffrey T. Infelise, and Lieu-

tenant Colonel Michael J. Breslin.

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Before

HEIMBURG, GAMOA, and SENANDER

Appellate Military Judges

OPINION OF THE COURT

SENANDER, Judge:

The appellant was convicted, by a general court-martial,

in accordance with her pleas of wrongful use of metham-

phetamine. Article 112a, UCMJ, 10 U.S.C. § 912a

(1994). Her approved sentence is a dismissal. Appellant

asserts two errors by the military judge: his incorrect rul-

ing that admission of certain defense exhibits would permit

the government to offer appellant’s confession; and his

failure to give proper instructions. The appellant also

alleges that she received ineffective assistance from her

trial defense counsel, and that the sentence was inappro-

priately severe. We find none of her arguments persuasive

and affirm.

The appellant was randomly selected on February 8,

1994, for urinalysis testing. Her sample tested positive for

the methamphetamine metabolite. When questioned by

agents of the Air Force Office of Special Investigations,

she confessed to use of methamphetamine duriag January

1994. She additionally told agents she used methamphe-

tamine during 1988 and 1989, another stressful period in

her life.

I. EXCLUSION OF REBUTTAL EVIDENCE

Trial defense counsel made a motion in limine to ex-

clude the use by trial counsel of that portion of the ap-

pellant’s confession which related to the uncharged mis-

conduct in 1988 and 1989 and the two purchases of am-

phetamines. The motion was made to preclude trial coun-

sel from using these statements from appellant’s confes-

sion in rebuttal to certain character letters which the de-

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fense intended to introduce. The appellant asserts that the

character letters in question were substitutes for an Officer

Performance Report for the period May 16, 1993 to Au-

gust 18, 1994, and that no rebuttal should have been per-

mitted, since trial counsel was required to present evidence

of duty performance. R.C.M. 1001(a)(1) (A) (ii).

During an Article 39(a), 10 U.S.C. § 839(a) (1994),

session the military judge stated that he believed the letters

in question contained statements that would make them

character letters rather than merely statements of duty

performance from May 16, 1993 to August 18, 1994. The

military judge specifically found the character letters would

open the door to rebuttal by evidence of prior uncharged

drug use because the letters portrayed the appellant as a

good military officer and a professional, and reflected

numerous qualities of leadership.

The military judge gave the trial defense counsel the

opportunity to redact those portions of the statements

which covered the appellant’s entire career rather than

the period May 16, 1993 to August 18, 1994. If the trial

defense counsel had redacted the statements as suggested,

it appears likely that the military judge would not have

permitted appellant’s confession to methamphetamine use

in 1988 and 1989 to be used as rebuttal. However, the

appellant did not offer the character letters in any form.

Therefore, there was no evidence for the trial counsel to

attempt to rebut. Trial defense counsel basically requested

the military judge to give an advisory opinion, and when

his preliminary opinion was not favorable, the defense

counsel decided not to offer the character letters. Failure

to offer the exhibits waived any issue. See United States

v. Gee, 39 M.J. 311 (C.M.A. 1993) (Failure to call char-

acter witnesses barred review of denial of defense motion

in limine to prevent cross examination of character wit-

nesses on their knowledge of appellant’s drug use). This

assignment of error is rejected.

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II. IMPROPER SENTENCING INSTRUCTIONS

During sentence deliberations the President of the court-

martial panel asked the following question: “Should the

accused be dismissed from the Air Force, what benefits

would she be entitled to as a dependent. That being be-

cause her husband is a retired member of the Air Force.”

The military judge responded: “Her conviction by this

court, including a dismissal, would not affect any benefits

she would be entitled to as a dependent of a retired mili-

tary person. In other words, those might be use of com-

missary, use of BX, medical benefits, as any other depend-

ent of a retired military person. Does that answer the

question?” The military judge then asked: “Does counsel

for either side have any quarrel with that point of view?”

Both counsel answered in the negative.

Appellant asserts for the first time on appeal that the

military judge committed plain error by answering the

President’s question. The standard of review for sen-

tencing instructions is whether the military judge abused

his discretion in giving or failing to give an instruction.

United States v. Dubose, 19 M.J. 877 (A.F.C.M.LR.

1985), pet. denied, 21 M.J. 147 (C.M.A. 1985). Absent

a timely objection, an error in sentencing instructions is

waived unless such error rises to the level of “plain error.”

United States v. Griffin, 25 M.J. 423 (C.M.A. 1988),

cert. denied, 487 U.S. 1206, 108 S.Ct. 2849 (1988). In

order to constitute plain error, appellant must show that

an obvious, substantial error occurred and that the error

had an unfairly prejudicial impact on his case. United

States v. Strachan, 35 M.J. 362, 364 (C.M.A. 1992),

cert. denied, 507 U.S. 990, 113 S.Ct. 1595 (1993).

Ordinarily, the appropriate reply for a military judge

faced with such a question is to simply to affirm that “col-

lateral consequences are not germane” to the sentencing

process. Griffin, 25 M.J. at 424. The trial defense coun-

sel waived any objection, however, by indicating he had

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no quarrel with the military judge’s answer. We find no

plain error: the military judge’s answer was essentially

correct, and trial defense counsel did not request further

instructions. To establish plain error, the appellant must

also establish the error had an unfair impact on the

courts members’ deliberations. United States v. Fisher,

21 M.J. 327, 328 (C.M.A. 1986). We find there is no

reasonable probability that the members would not have

adjudged a dismissal. Illegal drug use has long been con-

sidered a serious offense and particularly perilous for offi-

cers, who are expected to set the standards for others to

follow. United States v. Holt, 28 M.J. 835 (A.F.C.M.R.

1989), pet. denied, 28 M.J. 434 (C.M.A. 1989). This

assignment of error is without merit.

lil. INEFFECTIVE ASSISTANCE OF COUNSEL

Appellant asserts that her trial defense counsel were in-

effective by failing to investigate appellant’s mental and

medical history. Appellant argues that her husband had

informed trial defense counsel that appellant should be

evaluated by a psychiatrist due to emotional and physical

problems of which they were not aware. Specifically, ap-

pellant was diagnosed after trial as having a sleep dis-

order. She now contends that the use, of amphetamines

was necessitated by her inability to sleep at night and the

need to be alert to function during duty hours. Appellant

believes if the court members had been made aware of

her sleep disorder they would not have imposed a dis-

missal.

Trial defense counsel responded to the allegation by

affidavit in which he described a comment by appellant’s

husband that “there was a history there that we [defense

counsel] were not aware of.” The husband would not

elaborate when asked what he meant and the appellant

sat silent. Trial defense counsel affirmed the defense

strategy, approved by appellant, was to ensure that the

members saw her usage as a one-time foolish response to

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a stressful situation. This was a sound strategy and, in

our opinion, was superior to appellate defense counsel’s

argument, that appellant’s long time use of methampheta-

mine resulted from a sleep disorder.

The standard for measuring a claim of ineffective as-

sistance of counsel is set forth by the Supreme Court in

Strickland v. Washington, 466 U.S. 668, 687 (1984).

See also United States v. Scott, 24 M.J. 186 (C.M.A.

1987). Appellant must show counsel’s performance was

deficient and also show resulting prejudice. We find no

evidence that trial defense counsel’s performance was de-

ficient. Trial defense counsel’s strategy was reasonable

and therefore does not support appellant’s claim of ineffec-

tiveness of counsel. United States v. Mansfield, 24 M.J.

611, 617 (A.F.C.M.R. 1987). Tactical decisions will not

be second-guessed. United States v. Sanders, 37 M.J. 116,

118 (C.M.A. 1993), cert. denied, USS. , 114

S.Ct. 600 (1993). We reject this assignment of error.

IV. SENTENCE APPROPRIATENESS

Appellant argues that her sentence is in excess of what

is appropriate in this case given her superior duty per-

formance, her sleep disorder and methamphetamine addic-

tion. Under Article 66(c), UCMJ, our statutory mandate

is to determine sentence appropriateness to ensure that

justice is done. United States v. Healy, 26 M.J. 394

(C.M.A. 1988). A higher standard of conduct may be

required of officers because of their special status. United

States v. Tedder, 24 M.J. 176, 182 (C.M.A. 1987). The

Court of Military Appeals has endorsed subjecting officers

to more stringent punishments for their violations of the

UCMJ than might be appropriate for an enlisted mem-

ber under the same circumstances. United States v. Moul-

tak, 24 M.J. 316, 318 (C.M.A. 1987). We find no

merit in this assignment of error. We conclude that the

findings and the sentence are correct in law and fact, the

sentence is not inappropriate, and no error prejudicial to

the substantial rights of the appellant was committed.

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Accordingly, the findings of guilty and the sentence are

correct in law and fact and are

AFFIRMED.

Senior Judge HEIMBURG and Judge GAMBOA concur.

[SEAL]

OFFICIAL

s/ Alvin J. Stribling

ALVIN J. STRIBLING

Technical Sergeant, USAF

Chief Court Administrator

S. GOVERNMENT PRINTING OFFICE; 1997 90176 66004