## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before TOZZI, CELTNIEKS, and BURTON Appellate Military Judges

UNITED STATES, Appellee

v. Major ERIK J. BURRIS United States Army, Appellant

ARMY 20150047

Headquarters, Fort Bragg Tara A. Osborn, Military Judge (arraignment) John T. Rothwell, M ilitary Judge (trial) Lieutenant Colonel Jerre tt W. Dunlap, Jr., Staff Judge Advocate

For Appellant: Mr. Zachary D. Spilman, Esquire (argue d); Major Christopher D. Coleman, JA; Mr. Zachary D. Spilman, Esquire (on brief and reply brief).

For Appellee: Captain Linda Chavez, JA (a rgued); Lieutenant Colonel A.G. Courie III, JA; Major Cormac M. Smith, JA; Captain Linda Chavez , JA (on brief).

8 May 2017

--------------------------------- MEMORANDUM OPINION

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

This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

BURTON, Judge:

In this appeal, we find appellant wa ived his right to claim impermissible character evidence and improp er argument because he failed to object at trial. In addition, we find appe llant failed to meet his burden to prove his defense counsel were ineffective.

An officer panel sitting as a general court-martia l convicted appellant, contrary to his plea s, of one specification of w illfully disobeying a superior commissioned officer, two sp ecifications of rape, one sp ecification of sodomy, and four specifications of assaul t consummated by a battery, in violation of Articles 90, 120, 125, and 1 28, Uniform Code of Mi litary Justice, 10 U.S. C. §§ 890, 920, 925, 928 (2006 & Supp. II I 2010; 2006 & Supp . IV 2011; 2006 & Supp. V 2012; 2012)BURRIS—ARMY 20150047

2 [hereinafter UCMJ]. 1 The panel sentenced appellant to a dismissal, confinement for twenty years, and forfeiture of all pay and allowances. The convening authority approved the sentence as ad judged, but waived automatic forfeitures for six months.

This case is before us for review pursuant to Ar ticle 66, UCMJ. Appellant raises ten assignments of er ror, three of which merit di scussion, but no relief. Appellant personally raised several matters pursuant to United States v. Grostefon

, 12 M.J. 431 (C.M.A. 1982), including ineffective assist ance of c ounsel during sentencing. These matters also warrant no relief, but the cl aim of ineffective assistance of counsel will be discussed in c onjunction with th e assigned error addressing this issue.

BACKGROUND

Appellant, a judge advocate, 2met his second wife, WB , in January 2009 while he was stationed at Fort Hood, Texas. They married in March 2010. From the inception of their marriage through November 2 012, appellant assa ulted, forcibly engaged in sex with, and so domized WB. Initially, WB did not re port these instances of abuse because she was embarr assed and feared no one would believe her. When WB reported ap pellant’s actions, he was serving as th e Chief of Justice (CoJ) for the 82d Airborne Division at Fort Bra gg, North Carolina.

Appellant had a daughter from his first marriage, DB . When his daughter would visit, he engaged in wh at he called “tickle torture. ” Witnesses testified that initially his daught er laughed when he tickled her. As DB grew older, she started to dislike “tickle torture” and believed he enga ged in “tickle tortur e” as punishment. She expressed her dislike to appellant by telling him she did not like it and would try to get away from him when he engaged in “tickle torture.”

In his duties as CoJ, appellant had acce ss to the shared co mputer drive where documents pertaining to on going investigations were stored. When documents pertaining to appellant’s investigation were discovered on his government-issued computer, he was counselled in writing to “return all DVDs or CDs orelectronic media you recently produced or copied fr om the 82d Airborne OSJA.” Appellant

1 Although appellant was ch arged with assaulting and raping his wife “on divers occasions” for two of the assault specificat ions and one of the rape specifications, the panel found him guilty of a single instance in each of the charged offenses.

2According to his Officer Record Brief, ap pellant received a juris doctorate degree from Texas Tech University in 2007, and attended th e Judge Advocate Officer’s Basic Course in 2008. As a judge advocate, appellant served as trial counsel and administrative law attorney atFort Hood, prior to serving as the Co J at Fort Bragg.BURRIS—ARMY 20150047

3 responded in writing, “I w ill get back with LTC Thom son about the CDs mentioned once I look for/find them and have discusse d the same with defense counsel, but will give an update to him befo re COB today.” Appellant never returned any DVDs or CDs to the 82d Airborne Division’s Office of the Staff Judge Advocate.

A. Improper Characte r Evidence and Argument

In a videotaped Criminal Investigati on Command (CID) inte rview, appellant told a special agent about his nickname, “The Beast.” At trial, the government used appellant’s nickname thro ughout its case to highli ght the domestic violence incidents and to coun ter appellant’s “good soldier” defense. For example, during WB’s testimony, she referenced “The Beast” when descri bing different instances of assault, rape, and so domy. According to WB , after the first ti me appellant raped her, she asked him, “‘Why did you do that? Yo u hurt me.’ . . . ‘Why didn’t you stop?’ . . . ‘It hurt me.’” After appellan t stopped laughing he responded, “‘Oh, you must have been talking abou t The Beast. You met The Be ast last night.’ . . . ‘Oh, that’s a name I nicknamed -- the girls in college that happened to and they nicknamed -- calls it The Beast.’” The CI D interview, which in cluded appellant’s description about the origins of his nickname, was also admitted into evidence and played in its entirety to the panel. In closing argumen t, trial counsel used the term “The Beast” or “a beast” nine times.

On appeal, appellan t alleges the numerou s references to him as “The Beast” were impermissible character evidence a nd improper argument. Appellant also argues the government improp erly commented on his consti tutional right to remain silent during closing argument. As a threshold matter, we must determine in each instance whether appellant preserved his righ t to claim error, or waived his claim by failing to obje ct at trial.

In general, “‘[d]eviation from a legal rule is error unless th e rule has been waived.’” United States v. Ahern , __ M.J. ___, 2017 CAAF LEXIS 292, at *7 (C.A.A.F. Apr. 20 , 2017) (quoting United States v. Girouard , 70 M.J. 5, 10 (C.A.A.F. 2011)). As our supe rior court has explained, “[ while an appellate court] reviews forfeited issues for plain error, United States v. Gladue , 67 M.J. 311, 313 (C.A.A.F. 2009), [appellate courts] do not review waived issu es because a valid waiver leaves no error to correct on appeal.” Id. (citing United States v. Campos , 67 M.J. 330, 332 (C.A.A.F. 2009 )). Whether an appellant has waived an issue is a question of law we review de novo. Id. at *8 (citing United States v. Rosenthal , 62 M.J. 261, 262 (C .A.A.F. 2005)).

Regarding evid entiary errors, “[a] pa rty may claim error in a ruling to admit or exclude evidence only if the error materi ally prejudices a subs tantial right of the party and: if . . . a party, on th e record: timely objects or moves to st rike . . . .” Military Rule of Evid ence [hereinafter Mil. R. Ev id.] 103(a) (emphasis added).BURRIS—ARMY 20150047

4 However, “[a] military judge may take notice ofa plain error that materially prejudices a substantial right, even if the claim of error was not properly preserved.” Mil. R. Evid. 103(f) (e mphasis added). Regardin g argument by counsel, “ [f]ailure to object to improper argumentbefore the military judge begins to instruct the members on findings shall constitute waiverof the objection.” Rule for CourtsMartial [hereinafter R.C.M.] 919(c) (emphasis added).

1. “The Beast”

Appellant failed to object to a single reference of “The Beast” during the admission of evid ence or during argumen t. Accordingly, this issue is waived and there is no legal error to correct on appeal . Moreover, there is no cause fo r us to exercise our discretionary au thority to address this issue notwithstanding appellant’s waiver. Although “[e]vidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in acco rdance with the character or trait[,]” the term “The Be ast” is not a character trait. Mil. R. Evid. 404(a)(1). It is appellant’s self-impos ed nickname, and it is not “‘necessarily suggestive of a crim inal disposition.’” United States v. Farmer , 583 F.3d 131, 145 (2d Cir. 2009) (quoting United States v. Dean , 59 F.3d 1479, 1492 (5th Cir. 1995)). 3 Because the use of appellant’s nickname is not character eviden ce, there is no reason for this court to look beyond appell ant’s clear waiver.

2. Right to Remain Silent

During closing argument, trial counsel stated the following:

Who is so many people’s sour ce of information in this case, who didn’t walk into this courtroom and talk to you -- 95 percent of the time, what was the answer when asked? “[Appellant] told me.” “[Appellant] told me that the initial report was just dom estic violence.” If you’re Brandon Hobgood, “[Appellant] called me and told me that [WB] said these things .” If you’re [appellant’s] family, Kristin Beilman or her husband, “Well, we met

3In Farmer , the trial judge overrule d the defendant’s object ion to the use of his nickname, “Murder,” even though he was charged with murder and attempted murder. 583 F.3d at 135. The appellate c ourt found “the main problem was not the admission of the nickname into evidence. Rather, it was the prosecutors’ frequently repeated, gratuitous invocati on of [the] nickname” that “amounted to a ‘flagrant abuse.’” Id . at 146-147 (quoting United States v. Coriaty , 300 F.3d 244, 255 (2d Cir. 2002)). In Farmer , the nickname “Murder” was used nearly thirty times in the rebuttal argument. Id. at 144. In the ca se at hand, appellan t’s nickname is not repeated frequently nor is it a gratuitous invocation rising to flagrant abuse.BURRIS—ARMY 20150047

5 [WB] twice; but [appellant] told us these things about her.”

[WB] is isolated, and she is not controlling the dialogue. [Appellant] is controlling the dialogue. And you saw that, too. Watch that CID vide o. Watch that push of information. Watch that display with [Special Agent AT] about what he knows and how he knows it. It’s exactly what [WB] feared. And it is reasonable to think, “If I leave and the person -- if I call someone and the very person they are going to turn to, to find ou t what’s going on is linked with my husband, who am I really turning to at all?” That isn’t an option. She doesn’t have an option.

Defense counsel did not object to this portion of trial co unsel’s argument. After trial counsel finished her closing argument and before defense started his argument, the military judg e sua sponte excused the members and stated the following:

[MJ:] Counsel, during clos ing -- and it may have been inadvertent and I may be paraphrasing here but I believe the statement was made, “Who is the person giving them all the information, who didn’t walk in here and talk to you? [Appellant].” I mean, I don’t know -- I may have misinterpreted that.

ATC: No, sir. That was not what I -- yeah.

MJ: But I didn’t raise it then. I didn’t hear an objection. Obviously, my concern is , you know, it could be interpreted as a comment on the accused’s failure to testify.

Defense, do you want me to give any kind of curative instruction based on that?

. . . . CDC: Judge, I heard it the wa y you heard it. I heard it as an impermissible instruction on the accused’s failure to testify. We didn’t want the instruction.

MJ: No. I understan d. That’s why ----BURRIS—ARMY 20150047

6 CDC: Now we are put into a bit of a box because we have to make a decision on some thing that the government put in. I’d like to be able to sp eak to my [co-co unsel] and see what we can proffer up to be a reasonable -- see if there is any solution. We didn’t poison the well, Judge, obviously.

MJ: I understand, an d I don’t think it wa s an intentional if it was ----

CDC: I’m not sayi ng it was but ----

MJ: I understand.

CDC: But I heard it in th e same vain you did.

. . . . MJ: May I listen to the tape?

[The court reporter conferre d with the mi litary judge.]

MJ: Court’s in recess.

The military judge rece ssed the court-martial and held a R.C.M. 802 conference during wh ich the parties and the military judge listened to the audio recording of trial counsel’s closing argume nt. Following the r ecess, the military judge held an Article 39(a) , UCMJ, session during wh ich the follow ing ensued:

[MJ:] During the r ecess, both I and coun sel listened to the audio. I believe it can be in terpreted a couple of different ways. One as was described, another with respect to a voice inflection and intonation and pause in the argument.

Also during the [R.C.M. 802 conference], I believe defense counsel indicated some thing that might alleviate the problem during th e next session.

Is there anything that either party wishes to a dd to this on this issue?

TC: No, Your Honor.

CDC: No, Your Honor.BURRIS—ARMY 20150047

7 ATC: Actually -- I apologize, si r. Just to ma ke -- that the defense’s plan was to do that prior to any ofthis popping up on the record eith er. You know what I mean, it wasn’t like ----

MJ: Right.

ATC: ---- this concern change d the tides or anything like that.

MJ: Okay. Thank you, Government.

Defense counsel offered no additions or corrections to the military judge’s summary of the R.C.M. 802 conference. Wh en the court-martial was called to order and the panel returned, defense counsel ga ve his closing argu ment in which he stated: “[Appellant] didn’t te stify in this case be cause that says it best. That video 4 was pure and raw a nd honest. There was no need.”

Based on the facts in this ca se, we conclude appellant waived his right to raise this issue on appeal. “Waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right , waiver is th e ‘intentional relinquishment or abandonm ent of a known right.’” Gladue , 67 M.J. at 313 (quoting Johnson v. Zerbst , 304 U.S. 458, 464 (1938)). Wh en the military judge directed defense counsel’s attention to trial counsel’s potentia lly improper argument, the right to object became a “ known right.” After listening to the au dio record ing of trial counsel’s argument and conferring with co-counsel during a recess, appellant, through counsel, intentionally aban doned his right to object and obta in a judicial remedy. Instead of a j udicial remedy, defense coun sel chose to address the potentially improper argum ent with counter-argument. 5

Even assuming appellant pr eserved this issue for ap pellate review by simply agreeing with the military judge, we findneither error in no r prejudice from trial counsel’s argument. As the military ju dge correctly observed, trial counsel’s comments could be interpreted multiple ways . In its full cont ext, trial counsel’s

4The video of appellant’s in terview with CID was admitted into evidence and played in its entirety during the government’s case.

5Defense counsel claimed during the Article 39(a), UCMJ, session that he recognized tr ial counsel’s potentially improper argument before the military judge intervened sua sponte. De fense counsel also indicated during the R.C.M. 802 conference that he original ly intended to address the potentially improper argument with counter-argument. Essen tially, the military judge’s intervention did not change defense counsel’s initial preferen ce to forego a judicial remedy.BURRIS—ARMY 20150047

8 reference to appellant as the common source of informa tion for defens e witnesses, “did not manipulate or miss tate the evidence, nor did itimplicate ot her specific rights of the accus ed such as the ri ght to counsel or the right to remain silent.” Darden v. Wainwright , 477 U.S. 168, 1 82 (1986). Even if th is argument indirectly or by innuendo commented on appellant’s exercise of a fundamental right, the comments were a reasonable inference drawn from the testimony of Mr. Hobgood, Mrs. Beilman, and Mr . Aaron Beilman.

Further assuming constitutional error, we are convinced beyo nd a reasonable doubt appellant suffered no prejudice. After the defens e team consulted with each other during a recess, they made a tactical decision to decline a curative instruction from the military judge. Instead, defense counsel chose to address the issue with counter-argument, which was their original st rategy. In short, the military judge not only elicited defense co unsel’s preferred reme dy on the record, he also acquiesced to their post-consultation preference.

Under the circumstance s of this case, we find appellant fail ed to preserve a claim of error by merely agr eeing with the military judge’s sua sponte identification of potential error. Even assuming, arguendo , appellant did not wa ive the issue, we find no error and no prejudice. Accordin gly, appellant is notentitled to relief.

B. Ineffective Assistance of Counsel

Whether counsel provid ed ineffective assistance is a question of law reviewed de novo. United States v. Datavs , 71 M.J. 420, 424 (C .A.A.F. 2012 ) (quoting United States v. Gutierrez , 66 M.J. 329, 330-31 (C.A.A.F. 2008)). “Even under de novo review, the standard for judg ing counsel’s representation is a most deferential one.” Harrington v. Richter , 562 U.S. 86, 10 5 (2011) (emphasis omitted).

The Sixth Amendment guarantees an accused the right to the effective assistance ofcounsel. 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)).

Judicial scrutiny ofcounsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defe nse after it has proved unsuccessful, to conclude that a particular act or omission of counsel wa s unreasonable. A fair assessment of attorney performance requires th at every effort be made toBURRIS—ARMY 20150047

9 eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduc t from counsel’s perspective at the time. Because of the difficu lties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls wi thin the wide range of reasonable professional assistance; that is, the defendant must overcome the pres umption that, under the circumstances, the challenged action might be considered sound trial strategy. There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys wo uld not defend a particular client in the same way.

Strickland , 466 U.S. at 689 (inter nal quotation marks and citations omitted).

The Stricklandframework was adopted by the military justice system and further developed into a thre e-pronged test to determin e whether an appellant has overcome the presumptio n 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. 19 91)). In adopting the Stricklandframework, our superior court has maintained the strong deference to counsel’s tactical decisions and rejected the advant ages of hindsight. See United Stat es v. Akbar , 74 M.J. 364, 379 (C.A.A.F. 2015) (“Thus, ou r scrutiny of a trial defens e counsel’s performance is ‘highly deferential,’ a nd we make ‘every effo rt . . . to eliminate the distorting effects of hindsight, to r econstruct the circumst ances of counsel’s ch allenged conduct, and to evaluate conduct fro m counsel’s perspective at the time.’”).

Moreover, our review of ineffectiven ess is not based on a single act of counsel, but by considering coun sel’s overall pe rformance. See United States v. Murphy , 50 M.J. 4, 8 (C.A.A.F. 1998) (“When we look for effect ive assistance, we do not scrutinize each and ev ery movement or statement of counsel. Rather, we satisfy ourselves that an ac cused has had counse l who, by his or he r representation,BURRIS—ARMY 20150047

10 made the adversarial proceed ings work.”). Similarly, where an appellant was represented by multiple coun sel, their performance is judged as a team, not by considering only one or more indi vidual counsel. United States v. McConnell , 55 M.J. 479, 481 (C.A .A.F. 2001).

Regarding counsel’s perfor mance after findings, “d efense counsel may be ineffective at the sentenci ng phase when counsel either‘fails to investigate adequately the possibility of evidence th at would be of value to the accused in presenting a case in extenuat ion and mitigation or, having discover ed such evidence, neglects to introduce that eviden ce before the cour t-martial.’” United States v. Alves , 53 M.J. 286, 289 (C.A .A.F. 2000) (quoting United States v. Boone , 49 M.J. 187, 196 (C.A.A.F. 1 998)). When assessing the se cond prong, appe llant “‘must show that there is a reason able probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a pr obability sufficient to undermine co nfidence in th e outcome.’” Green , 68 M.J. at 362 (quoting Strickland , 466 U.S. at 698).

In this case, appellant wa s represented by a military defense counsel (DC), an individual military counsel (IMC), and a civilian de fense counsel (C DC). During the trial, the CDC became il l and was taken to a hospital. Although the CDC later returned to tr ial, he was not present when the panel announced it s findings. In addition, the CDC was not pr esent during presentencing be cause he was excused by appellant since the DC and IMC “were comfortable” going forward without him.

On appeal, appellant, both personally and through ap pellate defense counsel, alleges his trial defense counsel were ine ffective during presente ncing because they did not prepare for th e possibility of his conviction. Specifically, appellant claims his defense counsel failed to investigate possible ma tters in exte nuation and mitigation, identify a sufficient number of potential witnesses, prepare and control the few witnesses who did testify, present a “good soldie r book,” and advise him to apologize in his unsworn statement.

1. Investigating Matters in Extenuation an d Mitigation, and Presentencing Witness Identificatio n and Preparation

In his affidavit, appellant states:

Everyone on my defense teamwas blown away by the findings. They on ly considered the possibility of an assault of my wife as a po ssible conviction. They did minimal pre-trial sentencing preparation based only on that possibility. When the findings were announced, there was total disbelief from my counsel. They were totally unprepared to handle a sentencing case that involved sex offense convictions.BURRIS—ARMY 20150047

11 . . . . At no point in the preparatio n of the case did my defense counsel ask about witnesse s who would testify to accomplishments of my milita ry career. We discussed character witnesses for the meri ts portion of the case, but we never discussed calling wi tnesses who could describe the things I did during my m ilitary career. We did not even put together the sentenci ng materials until we were waiting for findings to be announced. They had a paralegal print out photograp hs for me to submit.

First, we reject appellant’s factua l assertion that sentencing was not considered until after findings . Appellant acknowledges as much in his affidavit:

The first time I had a substantive co nversation about presentencing proceedi ngs with my counsel was when I brought up sentencing about a week or a week and a half before my court-martial . I asked them what we were going to do if I was convicted of any of the charges. I asked them specifically abou t a Good Soldier Book. They said we should probably get so mething togeth er, including letters of support an d awards. However I was the person who reached out to people through email and Facebook asking for letters of support

. (emphasis added). In the post-trial affida vits ordered by this court, the IMC and DC admitted they, too, were “shocked” and “surpr ised” by the verdict. However, despite their disappointment, it is clear from the record and defense counsel’s sworn affidavits that their strategic decision to raise the “good sold ier defense” on the merits involved the i nvestigation and pr esentation of evidence typically reserved for presentencing. As ou r superior court has held, even defense counsel’s post-findings surprise and regret, without more, do not establish deficien t performance by counsel. See United States v. Smith , 48 M.J. 136, 137-38 (C.A.A.F . 1998) (“We ho ld that the assertions of appellant’s tr ial defense counsel, which reflect counsel’s remorse and disappointment with the ultimate resolution of the case, do not establish ineffective assistance of counsel under [ Strickland .] . . . A post-trial at tack, even when selfinitiated by trial defense counse l, requires more than counsel’s regret as support.”).

Second, appellan t has failed to show a reasonable probability his sentence would have been different even if his claims were true—that his counsel were “unprepared to handle a sent encing case that in volved sex offense convictions” as opposed to one th at involved “an assault of [WB.]” The “good sold ier defense” his counsel put forth was equa lly applicable during presentencing to sex offenseBURRIS—ARMY 20150047

12 convictions as domestic violen ce convictions. Specifically, defe nse counsel called ten witnesses who testified about appellant’s good milit ary character. Defense counsel also used a gove rnment witness to discus s appellant’ s good duty performance. Althou gh testifying on the merits, these witnesses covered appellant’s entire military career , including his time as a field artiller y officer and a judge advocate. They testified about his good du ty performance at va rious duty locations including his deployment to Iraq and his attendance at The Judge Advocate General’s Officer Gr aduate Course.

Defense counsel referenc ed the testimony of thes e witnesses in their presentencing argument. The military judge inst ructed the panel pr ior to sentencing they could consider all the witnesses who te stified on the merits as to appellant’s character. Accordingly, it wa s a reasonable tactical deci sion for defense counsel not to recall all of these witnes ses during presentencing. In similar circum stances, our superior court has found coun sel’s decision to reference, rather than repeat, the earlier testimony of a meri ts witness was not ineffective for sentencing. See United States v. Perez , 64 M.J. 239, 244 (C .A.A.F. 2006) (“[W]e note that defense counsel’s sentencing argumen t expressly referenced th e ‘good soldier’ testimony that the witness had provided during the findings portion of trial. Moreover, by referring to earlier testimony ra ther than recalling the witn ess, the defe nse was able to avoid the riskof cross-examination.”).

In addition to documentary evidence and appellant’s unsworn statement, defense counsel did reca ll three witnesses during presentencing—Dr. Mark Whitehill, a licensed psycho logist and certified sex offender treatm ent provider; Mr. Galen Burris, appellant ’s father; and Mrs. Beil man, appellant’s sister. Dr. Whitehill expl ained his clinical assessment th at appellant has a personality disorder, but is a low-leve l risk to reoffend and commit sexual violence. Even ignoring whether his testimony offers further proof coun sel were prepared for a sentencing case involving sex offenses, appellant has failed to show what else Dr. Whitehill could have testified to if he had been more fully prep ared by counsel. 6

6While appellant asserts that Dr. White hill only spoke with him between the announcement of findings a nd the presentencing proceeding s, it is clear from the record that Dr. Whitehill prep ared for testifying as an ex pert witness. Dr. Whitehill reviewed the complete report from a ppellant’s mental ex amination by the R.C.M. 706 board. Althou gh the government elicited in formation pertaining to appellant’s personality disorder , this is not evid ence of a lack ofpreparation. The DC admits in her affidavit that she considered this matter prior to calling Dr. Whitehill and made a t actical decision to call hi m because she believed the benefits from his opinion ab out appellant’s low risk of recidivism outweighed information about a pe rsonality disorder.BURRIS—ARMY 20150047

13 Although appellant attemp ts to show prejudice by reference to other witnesses, we find those efforts simila rly inadequate and mere speculation. Appellant admits he did no t provide counsel with a lis t of “numerous individuals who” he claims “would ha ve testified on [his] behalf in sentencing.” While appellant now states his desire to call add itional witnesses, with the exception of his sister, there are no affidavits confirming th e desired witnesses were willing to testify favorably on his behalf. Essentially, appe llant asks this cour t to presume he was prejudiced when counsel faile d to discover unspecified witnesses or recall merits witnesses to provide unspecified testimony. We can not presume what appellant has the burden to show. See Alves , 53 M.J. at 289-90.

2. Control of Witness Testimony

Appellant now claims coun sel did “almost no preparation with my sister [Mrs. Beilman.]” He believes his sister sh ould have been asked about aspects of his life including: his childhood, times he defended wo men against viol ence, rescued animals, coached a gi rls soccer team, and his numerous volunt eer activities. He also alleges his counsel did not discuss with Mr s. Beilman the relevance of attacking WB and the trial counsel, or the wisdom of commenting “ab out evil women or what it would be like to be married to an evil woman.”

Mrs. Beilman submitted an affidavit in which she stat ed, “I recall [the IMC] approaching me and asking me if I was going to be able to testify for [appellant’s] sentencing as I was noticea bly distraught and crying, buthe did not prepare me.” She further states:

I know that [appellant] was wr ongfully convicted. I have regrets about some of the st atements I made during my sentencing testimony and I belie ve that my words, while spoken in grief, are not in my true character and also contributed to the length of [appellant ’s] sentence. I really had no understanding how all the words I said on the stand could affectthat decision. Prior to [the IMC’s] affidavit I had never hear d the term “impeaching the verdict.” When I testified in the sentencing proceeding I simply reacted to the pain that I and my family were experiencing. I wa s not guided thr ough the range of emotions I was experiencing or helped to convey the message I really wanted to.

If I could do it agai n, my testimony woul d be different.

While Mrs. Beilman’s post-trial reflection on her test imony with the benefit of hindsight is understa ndable, we cannot rely on the same benefit in our appellate review. Furthermore, her belie f, no matter how deeply fe lt, that the panel increasedBURRIS—ARMY 20150047

14 appellant’s punishment because she “impeached the verd ict” and criticiz ed the trial counsel is speculation. In contrast to he r post-trial assessments, her claim that she was inadequately prepared by counsel before testifying during presentencing requires closer examin ation of the record.

During presentencing, Mrs. Beilman was very responsive to the IMC’s questions despite the fact she was emotional and crying. After she answered the IMC’s final question, neit her the government nor th e panel members had any questions for her. As she was about to be permanently excuse d, Mrs. Beilman asked the military judge, “May I say something?” The military judge responded, “Counsel? You can answ er questions from coun sel.” She responded, “I will.” It is clear from the context that Mrs. Beilman’ s request to make a final comment was not planned. At this ju ncture, the IMC ha d little time to ma ke a critical decision in front of the panel. The IMC could have concluded his examination without giving her the opportunity to express her fina l thought. However, this may have left the panel confused and possibly prompt ed a panel member to ask a question to allow her to continue to speak. If counsel had chosen this tactic, we could be faced with a similar question whether counsel were ineffective because they prevented a witness from providing additional miti gation evidence. In the alternative, the IMC could have requested a recess to determine what Mrs. Beilman wanted to say, but even if granted it could undermine her testimony as overtly crafted and prescreened. Under these circumstances, the IMC made a tactic al decision to perm it her final comment and asked, “Ma’am, do you have anything else you wantto say?” The following colloquy occurred:

A: Yes. When his oldest daughter was a few years old, [appellant] was in law school; and he was studying hard and he was exhausted. . . .

. . . . And for [WB], [DB] was pr oof that he could have children. That’s what [DB] was to [WB]. And her time was running out. I am a woman, and I know women. And I’m ashamed to be one of th em sometimes because they have no moral class anymore.

And for [WB], once she got her kids, I always knew that for her if it worked out, it wo rked out. And, if not, she had Daddy welfare; and that is who [WB] is. And she managed to sit up here and cr y those tears. They are not real -- they’re not real.

And that prosecutor-- that blonde prosecutor with the bun, can smirk during my tes timony and comment that -- IBURRIS—ARMY 20150047

15 see something in someone’s eyes -- so disrespectful. And I want you to think ab out this and that when you sleep -- and when my niece’s grow up , maybe they’ll marry your son. Then you’ll know what itfeels like to know an evil

woman ----

MJ: Counsel?

WIT: I’m done. [Crying.]

IMC: Thank you, ma’am.

WIT: My brother is worthy of wonderful things in his life. [Crying.]

I love you, and I amproud of you. An d you keep fighting because you’re my hero.

[Pause.]

MJ: Let’s take a brief r ecess. Court’s in recess.

[The witness withdrew.]

(emphasis added). Appell ant’s criticism ofthe IMC’s deci sion to permit Mrs. Beilman’s to make a fi nal comment is based entirel y on hindsight. Even in hindsight, the IMC believes he made the corr ect decision in not ab ruptly terminating Mrs. Beilman’s final st atement. The IMC stat es in his affidavit:

I did not intervene because in my personal and professional opin ion, the pane l got it wrong; I felt that any uneasiness by panel members in their findings may potentially have resulted in a more lenient sentence. Moreover, I figured that allowi ng a third party witness to impeach the verdict versus do ing it myself – or through [appellant] – would be an effective way to plant the seed while not overtly making th at argument, potentially offending the members. In other words, as litigation strategy, I attempted to walk the fine line.

We do not rely on the hindsight of ap pellant, the witnes s, or counsel to resolve this question. It is clear from the record of trial that Mrs. Beilman was sufficiently prepared to understand coun sel’s questions and, apart from her impromptu concluding remark s, to provide favorable te stimony. Without more, an affiant’s post-trial regret a nd speculation, like lack of memory, are far too equivocalBURRIS—ARMY 20150047

16 and ambiguous a complaint to overcome the strong presumpt ion of counsel’s competence. See United States v. Key , 57 M.J. 246, 249 (C.A .A.F. 2002) (finding broad, generalized accusation s from an affiant are insuffi cient to prove counsel were ineffective). Moreover, there is no evid ence to suggest the panel rejected the military judge’s instructions on the properbasis for a sentence and instea d punished appellant for the errant co mments from his sister.

3. Good Soldier Book

There is no blueprint for the contents of a “good soldier boo k.” Although not in book format, defens e counsel submitted tw elve letters of supp ort and appellant’s military awards and certificates, which in cluded two Bronze St ars, a Meritorious Service Medal, a Joint Serv ice Commendation Medal, and two Army Achievement Medals. Defense counsel also submit ted appellant’s academic awards and certifications from the Texas Tech University School of Law. In addition, the panel received pictures of appellant with his family and appe llant’s officer record brief. These documents, combined with the “good soldier” testimony on the merits, paint a picture of appellant’s military career and served the same purpos e as a “good soldier book.” Although appellant notes he had to request letters of support, this is not an uncommon or unreasonable pr actice as appellant would know people who would be willing to support him. Significantly, appellant does not proffer any additional evidence he wanted to submit on his behalf. Accord ingly, appellant has failed to show deficient conduct or prejudice.

4. Unsworn Statement

While not wholly unfettered, an accused has a broad right to make an unsworn statement during presentencing, and may not be cr oss-examined by the trial counsel or the court-martial. United States v. Grill , 48 M.J. 131, 133 (C.A.A.F. 1998); R.C.M. 1001(c)(2). While R.C.M. 1001(c)(2)(A) pur ports to limit an accused’s unsworn statement to matters “in extenuat ion, in mitigation orto rebut matters presented by the prosecution,” this limit has never been stri ctly enforced in light of its traditional place as “an impo rtant right at military law.” Grill , 48 M.J. at 133. Accordingly, the unsworn statement remains “an opportunity for an accused to bring information to th e attention of the memb ers or a military judge . . . without ordinary evidentiary constraints.” United States v. Johnson , 62 M.J. 31, 37 (C.A.A.F. 2005).

Appellant is clear that he briefly discussed with hi s counsel what he would say if he made an unsworn statement, wh ich included an emphatic resolve that he “was not going to apologize for anything.” Instead, a ppellant exercised his broad right to make an unsworn statement as follows:

Members of the Panel, thank you. Thank you for listening to this case. Thank you for de liberating on the evidence that you heard. Thank you for reac hing a decision.BURRIS—ARMY 20150047

17 I want to believe, I have to be lieve, and I trus t that each of you are great officers, great Americans and you believe you did the right th ing. I trust that.

To the extent that you found me guilty ofrape an d spousal abuse, I must apologize to you, because I cannot offer you an apology . I do not challenge your decision. I do not challenge any of you. But I have never, no r shall I ever, admitto having raped my wife or beaten her. Whatever vestiges of honor I have left , whatever shre ds of honor I may have left, I’m going to fi ght to cling on to. And one of those is the truth.

What I did hear, what hurts me unbelievably is that -- that excessive horseplay, being too rough with my eldest daughter has caused her any pain, has caused her any grief and, as the letter you’ve just heard, has caused her to ultimately hate me.

There is nothing more precious in this worl d to me than those that I love, and there is nothing more precious to me than my three girls. I love them dearly.

As a result of this court-martia l, it’s safe to say I will not be seeing them again. To that end, I would ask one woman in this courtroom thatI see, please take care of those girls. I will love them beyond my lifetime.

Again, I want to thank you for what you’ve done, and I trust you did what you felt was right.

In addition to that, though I have just a few friends in the -- in the gallery right now. I want to say that I have experienced an unbelievable, overflowing show of support, trust, faith, confiden ce, from -- from friends that I could never have imagined.

At this moment, I should probab ly feel some kind of -- at this moment, honestl y, I think more than -- I feel more joy than anything else fo r the friends and my family that have supported and have believe d me through this entire process. To that end, thank you.
To my counsels who have been with me so long now, I can actually call them frie nd. I am overwhelmed.BURRIS—ARMY 20150047

18 I’m not going to take up more of your time. I’m not going to ask you to give me some ridiculously short sentence. You’ve convicted me of some serious things and you need to think about that and an appropriate sentence.

But I’ve served my country, my community, and my family, my entire life . I ask that you gi ve me a chance to return to doing those same things in some capacity at some point. Tha nk you.

(emphasis added). Appell ant chose not to apolog ize, as is his right. There is no requirement for an appellant to apologiz e during an unsworn stat ement or forfeit the right to make one. Confronted with appellant’s emphatic re fusal to apologize, it was reasonable for defens e counsel to encourage him to express remorse in his own words as opposed to pr essuring him to make an insincere apology. 7Ultimately, defense counsel had no authority to prev ent appellant from making an unsworn statement, or advi sing him that he mustapologize or forego his right altogether. Absent extraordinary circumstances, these decisions made by c ounsel are exactly the type of tactical decisions re levant case law instructs us not to second guess. As such, we will not do so here.

Under the circumstance s of this case, we see no ne ed to order a fact-finding hearing pursuant to United States v. DuBay , 17 U.S.C.M.A. 147, 37 C.M.R. 411 (1967). The facts in appellant’s allegati ons—even if true—wou ld not result in relief. United States v. Ginn , 47 M.J. 236, 248 (C .A.A.F. 1997). Furthermore, “the appellate filings a nd the record as a whole ‘compellingly demonstrate’ the improbability of [appellant ’s allegations].” Id . Applying the fi rst, second, and fourth Ginn principles to appellant ’s submission, we reject appellant’s ineffective assistance claim. In short, defense counsel made object ively reasonable choices in strategy from available altern atives. Appellant’s asserti ons that his defense counsel provided ineffective assi stance lack merit.

7Whether to give an accused the generally prudent advice to apologize to the victims during an unsworn statement is a tactical decision that requires case-specific analysis by defense c ounsel. While the benefits of a genuine expression of remorse are obvious, a “shallow, artificial, or contrived” expression of remorse can have potentially negative effects during the gove rnment’s rebuttal. United States v. Edwards , 35 M.J. 351, 355 (C.M.A. 1992).BURRIS—ARMY 20150047

19 CONCLUSION

On consideration of the entire record, the findings of guilty and the sentence are AFFIRMED.

Senior Judge TOZZI and Judge CELTNIE KS concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR. Clerk of Court MALCOLM H. SQUIRES, JR. Clerk of Court FOR THE COURT: