UNITED STATES ARMY COURT 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. Trieschmann, Jr., Esquire (on 

brief). 

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III, 

JA; Major Melissa Dasgupta Smith, JA; Captain Vincent S. Scalfani, JA (on brief). 

30 November 2016 

----------------------------------- 

MEMORANDUM OPINION 

----------------------------------- 

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

TOZZI, Senior Judge: 

 An officer panel sitting as a general court-martial convicted appellant, 

contrary to his pleas, of one specification of assault consumated 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 only so much of the 

sentence as provided for a dismissal and confinement for five months. 

This case is before us for review under Article 66, UCMJ. Appellate defense 

counsel assigns six errors to this court, 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 consideration, to be without 

merit. 
JERKINS—ARMY 20140071 

2

BACKGROUND 

On 13 May 2013, the United States Army Criminal Investigative Command 

(CID) and Ms. NM, an investigator with child protective services (CPS), responded 

to an allegation of child abuse regarding appellant’s three-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 “beat [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. Appellant 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 the leather belt appellant used to discipline 

the children. Appellant arrived at the house while CID and Ms. NM were 

investigating. Ms. NM showed appellant pictures of TB and asked if he spanked 

him. Appellant was not advised of his Article 31 rights. Appellant subsequently 

replied that he did spank TB with a belt and he described 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 statements. 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 during the merits portion of the trial. The defense used 

appellant’s statement to argue the parental discipline defense. 

LAW AND DISCUSSION 

Appellant was represented by civilian defense counsel, Ms. SK*

 and military 

defense counsel, Captain (CPT) CC and Major (MAJ) JM. Appellant voluntarily 

released CPT CC. The senior defense counsel, MAJ JM represented appellant along 

with Ms. SK at trial. Appellate defense counsel assert appellant received ineffective 

assistance at trial when his defense counsel failed to move to suppress 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 sworn affidavits. 

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

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

 

*

 Ms. SK’s law partner, Mr. WJ, was also retained but Ms. SK was the lead civilian 

attorney.
JERKINS—ARMY 20140071 

3

JM attest to the fact that even if appellant’s admissions were suppressed, they were 

aware of alternative methods for the prosecution to admit essentially the same 

information (i.e. testimony from TB, Ms. JJ, the neighbors, or the forensic 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 “favorable explanation” in front of the panel 

without requiring appellant to testify. Major JM further noted that allowing the 

statement to come in was a better strategy than having appellant testify because he 

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

statement” if he testified. Defense counsel also noted that appellant was fully aware 

of this strategy before trial as appellant was included in strategic discussions with 

all of the lawyers. Furthermore, Ms. SK stated, “Much discussion was had on the 

issue, and [appellant] was well aware 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 establish 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) (citations omitted). The Strickland framework was adopted by the 

military justice system and further developed into a three-pronged 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 for counsel’s actions?”; 

(2) If the allegations are true, did defense counsel’s level 

of advocacy fall “measurably below the performance . . . 

[ordinarily expected] of fallible 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 based on the success of a trial defense 

counsel’s strategy, but instead examine whether counsel made an objectively 

reasonable choice in strategy from the available alternatives. Similarly, we must 
JERKINS—ARMY 20140071 

4

remain mindful that counsel have wide latitude in making tactical decisions.” 

United States v. Akbar, 74 M.J. 364, 379 (C.A.A.F. 2015) (internal citations and 

quotation marks omitted). Our analysis of counsel’s performance is highly 

deferential. Strickland, 466 U.S. at 689. We are not to assess counsel’s actions 

through the distortion of hindsight; rather we are to consider 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 professional assistance; that is, the 

defendant must overcome the presumption that, under the circumstances, the 

challenged action ‘might be considered sound trial strategy.’” Id. (quoting Michel v. 

Louisiana, 350 U.S. 91, 101 (1955)). As a general matter we “‘will not second 

guess the strategic or tactical decisions 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, 410 (C.M.A. 1993)). 

 It is clear from the record in this case and the sworn affidavits of appellant’s 

counsel that they made a considered, tactical decision not to litigate a motion to 

suppress appellant’s statement to Ms. NM. Their rationale included consideration of 

how such a motion would comport with their overarching trial strategy. They 

considered how evidence of the same nature as appellant’s statement could have 

been introduced through other trial witnesses, and how such evidence would not 

have appeared favorable to appellant without his statement explaining his actions in 

a more favorable light. This tactical decision supported their trial strategy in 

focusing on the parental discipline defense. Absent extraordinary circumstances, 

this is exactly the type of strategic, tactical 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 submitted 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 appellant’s statement to 

Ms. NM only after weighing the relative merits of that course of action against its 

potential risks, and considering how litigation of the motion fit into their trial 

strategy. Appellant’s trial defense team “made an objectively reasonable choice in 

strategy from available alternatives.” Akbar, 74 M.J. at 379 (internal citations and 

quotation marks omitted). Appellant’s assertion that his defense counsel provided 

ineffective assistance lacks merit. 

 
JERKINS—ARMY 20140071 

5

CONCLUSION 

The findings of guilty and the 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: