## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before KERN, ALDYKIEWICZ, and MARTIN Appellate Military Judges

UNITED STATES, Appellee

v. Private First Clas s AMANDA N. MOSS United States Army, Appellant

ARMY 20110337

Headquarters, 3d Infantry Di vision and Fort Stewart Tiernan P. Dolan, Military Judge

Colonel Jonathan C. Guden, Staff Judge A dvocate (pre-trial) Colonel Randall J. Bagwell, St aff Judge Advocate (post-trial)

For Appellant: Colonel Patr icia A. Ham, JA; Lieutenant Colonel Imogene M. Jamison, JA; Major Jacob D. Bashore, JA ; Captain Ian M. Guy, JA (on brief & supplemental brief).

For Appellee: Li eutenant Colonel Amber J. Roach, JA; Major Robert A. Rodrigues, JA; Captain Steve T. Nam, JA (on brief)

17 January 2013

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This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

MARTIN, Judge:

A panel of officers sitting as a special court-martial convic ted appellant, in absentia, of desertion in vi olation of Article 85, Unifor m Code of Milita ry Justice, 10 U.S.C. § 885 (2006) [hereina fter UCMJ]. The panel sentenced appellant to a badconduct discharge, confinem ent for six months, forfeiture of $ 978.00 pay per month for 12 months, and reduction to the grade of E-1. The convening authority approved the sentence as adjudged and credited the appellant with eighteen days of confinement against the sentence to confinem ent. Appellant’s case is now before us for review pursuant to Article 66, UCMJ.

This case involves the propriety of givi ng an unsworn statement on behalf of an accused being tried in ab sentia. Appellate defense co unsel raise a total of four assignments of error related to the unswo rn statement given by appellant’s trialMOSS—ARMY 20110337

2 defense counsel during presentencing. Primarily, appellate defens e counsel claim that appellant was denied her Sixth Amendment right to effective assistance of counsel, due to both the deci sion to give an unsworn stat ement and the content of the statement given. Our resolution of this issue obviates the need to address the additional allegati ons raised as assignments of error. 1

BACKGROUND

Trial and Post-Trial Proceedings

After being absent for almost three years, appellant was apprehended and

returned to her unit at Fort Stewart, Georgia. Upon he r return to mi litary control, appellant made several sworn and unsworn statements regarding the mitigating

reasons for her lo ng absence. Captain (CPT) AS wa s appellant’s assigned defense counsel, and he worked with PFC Moss to prepare for he r pending court-martial. Approximately two weeks befo re her scheduled trial date , appellant again absented

herself from her unit. The court-martial then proceede d in her absence. After appellant was convicted of desertion, CPT AS read an unsworn stat ement to the panel on appellant’s behalf during presentencing. Th e unsworn statement focused almost exclusively on the re asons why appellant was absent from her unit for almost three years. Reading the statement in the first person, CPT AS st ated that appellant left in order to care for her “aunt,” Ms . VM, who had essentially raised appellant and was suffering from variou s serious physical illnesses and mental h ealth issues making her unable to care for herself.

In rebuttal, the gov ernment called appellant’s fa ther, Sergeant First Class (SFC) DM. Sergeant First Cl ass DM testified that neither he nor his wife had a

sister named Ms. VM and that he and his wife had raised appellant. On crossexamination, SFC DM admitted that he had heard of situ ations where close family

friends were sometimes referred to as an “aunt, ” but also testifie d that he was not aware of a close family friend named Ms. VM.

1 We find the additional assignments of error—that th e military judge abused his discretion by allowing the unsworn statement, that th e military judge erred by not instructing the jury to disregard the unsworn statement (a nd related rebuttal testimony), and that appellant was deprived of her right to confli ct-free counsel

when her trial defens e counsel subsequently invoke d his Fifth Amendment rights after being questioned by the military judge about the unsworn statement—to be

without merit.MOSS—ARMY 20110337

3 During their presentencing argument, both government co unsel and CPT AS referenced Ms. VM. The trial counsel argued that appellant invented the story about having an “aunt” named Ms. VM to reduce her culpability. The trial counsel further argued that the te stimony from appellant’s father , SFC DM, demonstrated that appellant’s explanation for be ing absent was false. De spite SFC DM’s testimony to the contrary, CPT AS argued that, while not excused, appellant’s absence was mitigated by her actions to care for her a iling, beloved aunt. Captain AS repeated this theme in appellant’s post-trial matt ers to the convening authority, requesting clemency on appellant’s behalf.

Appellate Proceedings

Before this court, appella te defense counsel argue, inter alia , that the record does not contain any ev idence that CPT AS was author ized to provid e an unsworn statement on appellant’s behalf. Furthermor e, appellate defense counsel aver that

the content of the unsworn statement—re garding the existenc e of Ms. VM, which was rebutted by appellant’s fa ther—indicates CPT AS did not adequately investigate appellant’s presentencing case . Appellant did not file a supporting affidavit.

After reviewing the record and appellate defense co unsel’s allegations of ineffectiveness, this court concluded that appellant’s allegation s, “if unrebutted, would overcome the presumption of competence” of de fense counsel. United States

v. Lewis , 42 M.J. 1, 6 (C.A.A.F. 1995). C onsequently, we ordered CPT AS to provide an affidavit a ddressing whether or not appellant authorized him to make an

unsworn statement on he r behalf prior to her absence at the court-martial. We also directed CPT AS to detail his investig ation regarding Ms. VM; to describe any interviews conducted with appellant’s fath er, SFC DM; and to discuss the reasons he decided upon the conten t and use of the unsw orn statement, especi ally in light of

SFC DM’s disavowal of a ny person named Ms. VM.

In response to this cour t’s order, CPT AS provided an affidavit and numerous supporting documents, to in clude witness interv iew notes, a memorandum for record, and supporting emails. In his affidavit, CPT AS stated that he and appellant “extensively discussed presenting an unsworn statement at trial,” and that the “chief evidence PFC Moss desired to present in extenuation and mitiga tion was the reason

for which she was absent during the durati on alleged in the charged offense— namely, that she was caring for Ms. [VM], to whom she referred as her aunt, and who was seriously ill.” This was the same explanation fo r her absence that she had previously provided u pon her return to mili tary control, and wa s consistent with

statements she made to her command. Captain AS further stated that appellant “was insistent in presenting this evidence, and wa nted to do so in la rge part through an unsworn statement,” which appellant practiced with CPT AS.MOSS—ARMY 20110337

4 Captain AS also stated th at he confirmed the existence of Ms. VM, primarily through a separa te witness, Ms. DC, w ho was very close to bo th appellant and Ms. VM. “Ms. [DC] confirmed the story and further descri bed the infirmities of Ms. [VM], whom she knew personally, as well as the relationship between PFC Moss and Ms. [VM].” Captain AS was un able to reach Ms. VM personally. In the days before trial, however, CPT AS receive d further confirmation of the existence and condition of Ms. VM through g overnment counsel. Pursuant to the request for defense witnesses, government counsel worked with the federal marsha ls to secure the presence of both Ms . DC and Ms. VM at the court-ma rtial. The federal marshals’ investigation revealed that, in fact, Ms. VM did exist and that she suffered from severe physical and mental health conditi ons. While confirming her existence, the

federal marshals were unable to locate and serve a subpoena on Ms. VM prior to

trial.

Finally, CPT AS stated that he interv iewed appellant’s fa ther, SFC DM, and questioned him about Ms. VM . During CPT AS’s inte rview of him, SFC DM,

consistent with hi s later sworn testimony, professe d no knowledge of any person named Ms. VM. Despite this fact, Captain AS noneth eless decided to use the evidence: “The evidence regarding PFC Mo ss caring for Ms. [VM] was the strongest extenuation and mitiga tion evidence that was presented at trial, and I did not and do not feel that SFC [DM]’s testimony denying knowledge of Ms. [VM] outweighed it to the degree that I should de cline to argue it to the panel in my presentencing argument.” Furthermore, duri ng his pre-trial witness interview, SFC DM admitted to CPT AS that during differe nt periods of her life, he had lost contact with his daughter.

LAW AND DISCUSSION

Th e Supreme Court in Strickland v. Washington , 466 U.S. 668 (1984), set out a two-prong test for ineffect ive assistance of counsel:

First, the defendant must show that counsel’s performance was deficient. This requ ires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendan t by the Sixth Amendm ent. Second, the

defendant must show th at the deficient perfor mance prejudiced the defense. This requir es showing that counse l’s errors were so serious as to deprive the defendant of a fair trial, a trial whose

result is reliable.

Id. at 687. See United States v. Green , 68 M.J. 360 (C.A.A.F. 2010);

United States v. Wean , 45 M.J. 461, 463 (C.A.A.F. 1997); United States

v. Polk , 32 M.J. 150, 153 (C.M.A. 1991).MOSS—ARMY 20110337

5 In analyzing CP T AS’s performance in the case at hand, we have before us the record of trial, an d CPT AS’s affidavit with supp orting documents—this is not a case of competi ng affidavits. See United States v. Ginn , 47 M.J. 236 (C.A.A.F. 1997). Although our init ial review of the r ecord of trial and ap pellant’s assignments

of error raised concerns that CPT AS ’s performance was inadequate , upon examination of CPT AS’s a ffidavit and supporting inform ation, we do not find defense counsel’s performance defi cient under the first prong of Strickland

.

Decision to Provide an Unsworn Statement on Appellant’s Behalf

In United States v. Marcum , our superior c oncluded the “decis ion to make an unsworn statement is pers onal to the accused.” United States v. Marcum , 60 M.J. 198, 209 (C.A.A.F. 2004). The court further explained that “if an accuse d is absent without leave his right to make an unsworn statement is forfeited unle ss prior to his

absence he authorized his co unsel to make a specific st atement on his behalf.” Id. at 210. Indeed, there ar e several pitfalls in volved with giving an unsworn statement when a client is not present for trial. See, e.g.

, Id. at 209 (holding that the defense

counsel’s unsworn statement rendered on the appellant’s behalf disclosed

confidential communicatio ns and constituted deficient performance); United States

v. Brewer , ARMY 20040625, 2008 WL 8104044, at *3 n.2 (Army Ct. Crim. App. 28 Aug. 2008) (finding that the defense counsel’s use of a draft unsworn statement on the appellant’s behalf was without appe llant’s express consent and therefore erroneous).

In this case, CPT AS’s a ffidavit and notes convince us that CPT AS did not err by providing an unsworn statement. Instead, we find that appellant impliedly consented to CPT AS giving an unsworn statement on he r behalf. Captain AS and appellant discussed the contents of the unsw orn statement, appellant’s desire to give an unsworn statement, and they even prac ticed delivering an unsworn statement. Additionally, the close proximity of what turned out to be the last pre-trial preparation meeting—fifteen days before the date of the original trial date—reflects the fact that the parties were in the final stages of trial preparation. Therefore, we

conclude that CPT AS wa s not deficient in giving an unsworn statement on appellant’s behalf.

Decision to Use Mitigating Facts Re garding Ms. VM

Next, we review CPT AS’s decision re garding the contents of the unsworn statement he ultimately de livered. Initially, we note that, unlike the unsworn

statement delivered by the counsel in Marcum , there was no disclosure of

confidential communicatio ns in this case. All the in formation provided by CPT AS in the unsworn statement essentially reflected previous sworn statements appellant provided to her unit upon her return to milita ry control. Thus, the issue is simplyMOSS—ARMY 20110337

6 whether CPT AS was ineffec tive in deciding what inform ation to include in the unsworn statement. “In weighing such matt ers, we must give deference to counsel’s tactical judgment an d not substitute our view with the benefit of hindsight.” United States v. Stephenson , 33 M.J. 79, 82 (C.M .A. 1991) (quoting United States v. Bono

, 26 M.J. 240, 242 (C.M .A. 1988) (citing Strickland , 466 U.S. at 689; United States v.

DeCoster , 624 F.2d 196, 208 (D.C. Cir. 1976) (en banc) (p lurality opinion))). Moreover, “heavy deference is given to tr ial defense counsel’s judgments, and this Court presumes coun sel’s conduct falls within th e wide range of reasonable professional assistance.” United States v. Morgan , 37 M.J. 407, 410 (C.M.A. 1993) (citing Strickland , 466 U.S. at 689).

Before this court, appella te defense counsel claim th at CPT AS’s performance fell below an objective standa rd of reasonableness when he argued that appellant’s absence was mitigated by her care of her a iling “aunt,” Ms. VM, and persisted with this argument after rebuttal testimony by SFC DM that the family did not have an aunt by that name. Specifi cally, appellate defe nse counsel argue that CPT AS did not properly “fact check or investigate the contents of the statement that he presented to the panel.” Ho wever, we conclude that CP T AS conducted a reasonable investigation. First, CPT AS specifically disc ussed with appellan t the propriety of including information about Ms. VM in the unsworn statement. Next, CPT AS

confirmed the existence of Ms . VM and her illness by inte rviewing a clos e friend of appellant’s, Ms DC. In th e days before trial, the su bpoena proce ss initiated by

federal marshals esta blished the existence and condition of Ms. VM. Finally, CPT AS interviewed appellant’s father, SFC DM, and asked him about Ms. VM. From this investigation, CPT AS wa s in a position to make an informed, tactical decision

about the contents of the unsworn statement.

In this case, we conclude that CPT AS ’s decision to includ e information about

Ms. VM in the unswor n statement does no t fall outside the ra nge of reasonable professional assist ance. Although SFC DM did not know Ms. VM, and could therefore potentially give unf avorable testimony, CPT AS ma de the tactical decision to present the mitiga tion evidence about Ms . VM after a thorough investigation. Moreover, CPT AS cross-examined SFC DM about the extent of his knowledge, so as to improve the quality of the mitigation evidence. For example, although not fully developed on th e record, SFC DM testified that appellant had some problems

with her mother and lived outside the home at a young age. He al so admitted that he lost touch with appellant for several years. Finally, SFC DM te stified that he was familiar with the practice of referring to a friend of the family as an “aunt.”

In retrospect, some may argu e that if the trial defense counsel intended to rely so heavily on appellant’s rela tionship with and care for Ms. VM in extenuation, he

should have elicited more evidence from appellant’s father and others that would have provided more support for that theory. However, by all a ccounts, the defenseMOSS—ARMY 20110337

7 counsel was in a challenging position. Ms. DC, who coul d verify the existence of Ms. VM, had proven to be a difficult witness, indicating an unwillingness to testify in appellant’s case notwithstanding having been subpoenaed. 2 Sergeant First Class DM was one of the few defense witnesses, and while CPT AS ch allenged him on his understanding of appe llant’s living situat ion during cross-examin ation, he could not completely undermine his ow n witness’s credibility without weakening the defense case. In his post-trial affidavit, defens e counsel explained his trial strategy as one where he sought to pr ovide as much favora ble information as possible to help explain his client’s absence, while limiti ng exposure to the mo re damaging facts surrounding appella nt’s behavior. 3 Captain AS accompli shed this strategy by offering an unsworn statem ent and by controlling the extent of the testimony he elicited from appellant’s fa ther. As the Supreme Cour t noted, “strategic choices made after thorough investigat ion of law and fact s relevant to plau sible options are virtually unchallengeable.” Strickland

, 466 U.S. at 690.

Ultimately, we conclude th at CPT AS’s strategy “was tactically sound and not

unreasonable.” Stephenson , 33 M.J. at 82. Accordingly, defense appellate counsels’

claim that the trial defense counsel acted unreasonably by cont inuing to rely on the theory that extenuat ing facts surrounded appellant’s absence, despite rebuttal testimony to the contrary, do es not reach the level of seriously deficient performance contemplated by Strickland

.

2 While Ms DC confirmed the existence and medical condition of Ms. VM as well as appellant’s care for Ms. VM, Ms. DC was a challenging witness. CPT AS struggled to keep in regular contact with Ms. DC and when the federal marshals served the subpoena for the court-martial, she became very agitated with CPT AS and refused to appear for trial. CPT AS made the tact ical decision to not force her to appear, anticipating that she would be an adverse witness.

3 The affidavit and accompanying notes of CPT AS show that he attempted to carefully navigate the potential minefi eld of appellant’s complicated home and personal life. For example, he tried to highli ght appellant’s reha bilitative potential through testimony by her father, further bo lstered by the fact th at he was an active duty SFC. At the same time, CPT AS sought to limit testimony by SFC DM that

would reveal some addition al difficult circumstances during her childhood that might reflect poorly on his client. Additionally, CP T AS successfully limited the

disclosure of some of the more damaging information surrounding appe llant’s arrest that terminated her absence. Specifically , that she had been arrested for simple battery and family violence for physically assaulting Ms. DC, the same Ms. DC that was an important witness in this case. She pleaded nolo contendere and served twenty days in county ja il for these offenses.MOSS—ARMY 20110337

8 Decision to Use Miti gating Facts in Post-Trial Submission

Finally, we review defense counsel’s deci sion to continue to rely on the same facts in appellant’s post-tri al submission despite the gov ernment’s clear challenge to the veracity of that information. Gene rally, “[w]e will no t second-guess the strategic or tactical decisions ma de at trial by de fense counsel.” United States v.

Rivas , 3 M.J. 282, 289 (C.M.A. 1977). Here, defense couns el clearly articulated a

reasonable basis for his decision to main tain his adherence to the extenuating matters surrounding a ppellant’s prolonged ab sence. Captain AS continued to try to contact appellant during this period but was unsu ccessful. He also demonstrated due diligence in pursuing letters of support from appellant’s father and several soldiers from her unit. Ultimately, everyone he contacted declined to provide further assistance, so he was left with limited opti ons. Captain AS chos e to continue with the same explanation for appe llant’s absence, an ticipating that the theory might garner clemency for his client from the co nvening authority. Al though unsuccessful, this tactic was sensible given the limiting circumstances of the case.

Conclusion

The record reflects that the trial defense counsel wa s very dilige nt in every phase of this case—from pret rial investigation, to the pre-trial motions, to his advocacy throughout the court-martial, to his post-trial effort s on behalf of his client. Although some may qu estion his tactical decisions , there is cl ear evidence

here that CPT AS made thos e choices after thorough inve stigation and preparation,

and his actions were reasonable in light of the si tuation in which he found himself.

We therefore find that und er the unique circumstance s of this case, defense counsel’s performance was not deficient.

Assuming arguendo that CPT AS’s performance was deficient and he made

errors so serious that he was not functioning as “counsel” guaranteed by the Sixth Amendment, we do not find th at his errors were so seriou s as to deprive appellant of a fair trial. Appellant was found guilty of desertion te rminated by apprehension. She was gone for almost thre e years, and during her abse nce, she missed her unit’s deployment. This cour t regularly reviews sentences related to this type of offense, and we find that the adjudged sentence was very consistent with similarly situated cases. Appellant has not shown that if deficient, that defens e counsel’s performance prejudiced the defense.

DECISION

Upon review of the entire record, to include defens e counsel’s affidavit and supporting documents, we do not find the performance of appellant’s defense

counsel to be deficient. As such, we need not address appellant’s remainingMOSS—ARMY 20110337

9 assignments of error. We hold appellant received effect ive assistance of counsel, and the findings of guilt and the senten ce as approved by th e convening authority

correct in law and fact. Accordingly, the findi ngs of guilty and the sentence are

AFFIRMED.

Senior Judge KE RN and Judge AL DYKIEWICZ concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR

Clerk of Court

MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: