## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before TOZZI, CELTNIEKS, and BURTON Appellate Military Judges

UNITED STATES, Appellee

v. Major DAVID L. JERKINS United States Army, Appellant

ARMY 20140071

Headquarters, Fort Hood Rebecca K. Connally, Military Judge Colonel Stuart W. Risch, Staff Judge Advocate

For Appellant: Captain Cody Cheek, JA; Mr. James S. Tr ieschmann, Jr., Esquire (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colone l A.G. Courie III, JA; Major Melissa Dasg upta Smith, JA; Captain Vincent S. Scalfani, JA (on brief).

30 November 2016

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MEMORANDUM OPINION

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This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

TOZZI, Senior Judge:

An officer panel sitting as a general court-mart ial convicted appellant, contrary to his pleas, of one specificatio n of assault consumat ed by battery upon a child, in violation of Article 128, Uniform Code of Military Justice, 10 U.S.C. § 928 (2012) [hereinafter UCMJ]. The panel sentenced appellant to a dismissal and confinement for six months. The convening authority approved on ly so much of the sentence as provided for a dismissa l and confinement for five months.

This case is before us for review under Article 66, UCMJ. Appellate defense counsel assigns six errors to this cour t, one of which warrants discussion but no relief. Appellant personally raised matters pursuant to United States v. Grostefon

, 12 M.J. 431 (C.M.A. 1982) that we find, after due consid eration, to be without

merit.JERKINS—ARMY 20140071

2 BACKGROUND

On 13 May 2013, the Unit ed States Army Crimin al Investigative Command (CID) and Ms. NM, an investig ator with child protective services (CPS ), responded to an allegation of child abuse regarding appellant’s th ree-year-old step-son, TB. Appellant’s neighbors called CID after they noticed significant bruising across TB’s arms and back. TB told them appellant “bea t [him] with a belt.” Ms. JJ, appellant’s wife, later took TB to the emergency room and he made a similar statement to the forensic nurse. Appe llant was charged and convicted based on TB’s allegations.

CID interviewed Ms. JJ and she told them appellant admitted to spanking her

son with the belt. Ms. JJ also retrieved th e leather belt appellant used to discipline the children. Appellant arrived at the house whil e CID and Ms. NM were investigating. Ms. NM showed appellant pi ctures of TB and as ked if he spanked him. Appellant was not advi sed of his Article 31 rights . Appellant subsequently replied that he did spank TB with a belt and he descri bed and demonstrated how he disciplined him.

At trial, the government’s opening statement quoted appellant’s statement to Ms. NM as follows: “I held him down by his arm, and raised my right hand, and looped the belt, and spanked him five times. He kept wiggling and pulling away.”

Ms. NM later testified that appellant made these statemen ts. The government also reiterated appellant’s statements in its closing argument.

The defense theory of the case was that appellant was disciplining his child. Appellant did not testify duri ng the merits porti on of the trial. The defense used appellant’s statement to argue the parental discipline defense.

LAW AND DISCUSSION

Appellant was represented by ci vilian defense counsel, Ms. SK * and military defense counsel, Captain (C PT) CC and Major (MAJ) JM. Appellant voluntarily

released CPT CC. The seni or defense counsel, MAJ JM represented appellant along with Ms. SK at trial. Appe llate defense counsel assert appellant received ineffective

assistance at trial when hi s defense counsel fa iled to move to su ppress appellant’s

admission to Ms. NM and that the government’s use of these admissions undermines

the confidence in the outcome of the case. In support of this argument, appellate

defense counsel and appellant offered sw orn affidavits.

Upon order from this court, Ms. SK, CPT CC, and MAJ JM individually filed

sworn affidavits. While refu ting claims of ineffective assistance, Ms. SK and MAJ

* Ms. SK’s law partne r, Mr. WJ, was also retained bu t Ms. SK was th e lead civilian

attorney.JERKINS—ARMY 20140071

3 JM attest to the fact that ev en if appellant’s admissions were suppressed, they were aware of alternative methods for the pros ecution to admit essentially the same information (i.e. testimony from TB, Ms. JJ, the ne ighbors, or the fo rensic nurse). Ms. SK explained, “the strategy was to be ‘honest’ with the panel and present the ‘parental discipline’ defense . . . .” As a result, the defense was able to use appellant’s admissions and place his “favorab le explanation” in front of the panel without requiring appe llant to testify. Major JM fu rther noted that allowing the statement to come in was a better strategy than having appellan t testify because he

“would not have made a good witness and would ha ve been impeached by the

statement” if he testified. Defense counsel also noted that appella nt was fully aware of this strategy before trial as appellant was included in strategic discussions with all of the lawyers. Furthe rmore, Ms. SK stated, “Muc h discussion was had on the issue, and [appellant] was well awar e and approved of the strategy.”

The Sixth Amendment guarantees an accused the right to the effective

assistance of counsel. United States v. Gooch , 69 M.J. 353, 361 (C.A.A.F. 2011) (citing United States v. Gilley , 56 M.J. 113, 124 (C.A.A.F. 2001)). To es tablish that his counsel was ineffective, appellant must satisfy the two-part test, “both (1) that his counsel’s performance was deficient, and (2) that this deficiency resulted in prejudice.” United States v. Green , 68 M.J. 360, 361-62 (C .A.A.F. 2010) (citing Strickland v. Washington , 466 U.S. 668, 687 (1984)). “We review both prongs of

the Strickland analysis de novo.” United States v. Mazza, 67 M.J. 470, 474 (C.A.A.F. 2009) (citatio ns omitted). The Strickland framework was adopted by the military justice system and further develope d into a three-pronge d test to determine whether an appellant has overcome the presumption of competence and shown prejudice:

(1) Are appellant’s allegations true; if so, “is there a reasonable explanation fo r counsel’s actions?”;

(2) If the allegations are true, did defense counsel’s level of advocacy fall “measurabl y below the performance . . . [ordinarily expected] of fa llible lawyers?”; and

(3) If defense counsel was ineffective, is there a “reasonable probability that, absent the errors,” there

would have been a different result?

United States v. Grigoruk , 56 M.J. 304, 307 (C.A .A.F. 2002) (quoting United States

v. Polk , 32 M.J. 150, 153 (C.M.A. 1991)).

“We do not measure deficiency ba sed on the success of a trial defense counsel’s strategy, but instead examine whether co unsel made an objectively

reasonable choice in strate gy from the available alternat ives. Similarly, we mustJERKINS—ARMY 20140071

4 remain mindful that counsel have wide la titude in making tac tical decisions.”

United States v. Akbar , 74 M.J. 364, 379 (C.A.A.F. 2 015) (internal citations and quotation marks omitted). Our analysis of counsel’s performance is highly

deferential. Strickland , 466 U.S. at 689. We are no t to assess counsel’s actions through the distortion of hi ndsight; rather we are to c onsider counsel’s actions in light of the circumstances of the trial and under the “strong presumption that

counsel’s conduct falls within the wide range of profession al assistance; that is, the

defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be co nsidered sound trial strategy.’” Id . (quoting Michel v.

Louisiana , 350 U.S. 91, 101 (1955)). As a general matte r we “‘will not second guess the strategic or tactical decision s made at trial by defense counsel.’” United

States v. Anderson , 55 M.J. 198, 202 (C .A.A.F. 2001) (quoting United States v. Morgan , 37 M.J. 407, 41 0 (C.M.A. 1993)).

It is clear from the record in this ca se and the sworn affida vits of appellant’s counsel that they made a co nsidered, tactical decision not to litiga te a motion to suppress appellant’s statemen t to Ms. NM. Their rationale included consideration of how such a motion would comport with th eir overarching tria l strategy. They

considered how evidence of the same natu re as appellant’s st atement could have been introduced through othe r trial witnesses, and how such evidence would not have appeared favorable to appellant without his statemen t explaining his actions in a more favorable light. This tactical de cision supported their trial strategy in focusing on the parental discipline defens e. Absent extraordinary circumstances, this is exactly the type of strategic, tactic al decision relevant case law instructs us not to second guess. As such , we will not do so here.

Based upon the entire record and the affidavits s ubmitted by the parties, we find there is a reasonable explanation for defense counsel’s decision not to litigate a motion to suppress appellant’s statement to Ms. NM. Appellant’s defense counsel

made a tactical decision not to litigate a motion to suppress appell ant’s statement to Ms. NM only after weighing th e relative merits of that co urse of action against its potential risks, and consid ering how litigation of the mo tion fit into their trial strategy. Appellant’s trial defense team “made an object ively reasonable choice in strategy from available alternatives.” Akbar , 74 M.J. at 379 (i nternal citations and quotation marks omitted). Appellant’s assertion that his defense counsel provided

ineffective assistance la cks merit.JERKINS—ARMY 20140071

5 CONCLUSION

The findings of guilty and th e sentence are AFFIRMED.

Judge CELTNIEKS and Judge BURTON concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: