UNITED STATES ARMY COURT 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, Military Judge (trial) 

Lieutenant Colonel Jerrett W. Dunlap, Jr., Staff Judge Advocate 

For Appellant: Mr. Zachary D. Spilman, Esquire (argued); Major Christopher D. 

Coleman, JA; Mr. Zachary D. Spilman, Esquire (on brief and reply brief). 

For Appellee: Captain Linda Chavez, JA (argued); 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This opinion is issued as an unpublished opinion and, as such, does not serve as precedent. 

BURTON, Judge: 

In this appeal, we find appellant waived his right to claim impermissible 

character evidence and improper argument because he failed to object at trial. In 

addition, we find appellant failed to meet his burden to prove his defense counsel 

were ineffective. 

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

contrary to his pleas, of one specification of willfully disobeying a superior 

commissioned officer, two specifications of rape, one specification of sodomy, and 

four specifications of assault consummated by a battery, in violation of Articles 90, 

120, 125, and 128, Uniform Code of Military Justice, 10 U.S.C. §§ 890, 920, 925, 

928 (2006 & Supp. III 2010; 2006 & Supp. IV 2011; 2006 & Supp. V 2012; 2012) 
BURRIS—ARMY 20150047 

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[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 adjudged, but waived automatic forfeitures for six months. 

This case is before us for review pursuant to Article 66, UCMJ. Appellant 

raises ten assignments of error, three of which merit discussion, but no relief. 

Appellant personally raised several matters pursuant to United States v. Grostefon,

12 M.J. 431 (C.M.A. 1982), including ineffective assistance of counsel during 

sentencing. These matters also warrant no relief, but the claim of ineffective 

assistance of counsel will be discussed in conjunction with the assigned error 

addressing this issue. 

BACKGROUND

Appellant, a judge advocate,2 met 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 2012, appellant assaulted, forcibly 

engaged in sex with, and sodomized WB. Initially, WB did not report these 

instances of abuse because she was embarrassed and feared no one would believe 

her. When WB reported appellant’s actions, he was serving as the Chief of Justice 

(CoJ) for the 82d Airborne Division at Fort Bragg, North Carolina. 

Appellant had a daughter from his first marriage, DB. When his daughter 

would visit, he engaged in what he called “tickle torture.” Witnesses testified that 

initially his daughter laughed when he tickled her. As DB grew older, she started to 

dislike “tickle torture” and believed he engaged in “tickle torture” 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 access to the shared computer drive where 

documents pertaining to ongoing 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 or electronic 

media you recently produced or copied from the 82d Airborne OSJA.” Appellant 

                                                            

1

 Although appellant was charged with assaulting and raping his wife “on divers 

occasions” for two of the assault specifications and one of the rape specifications, 

the panel found him guilty of a single instance in each of the charged offenses. 

2

 According to his Officer Record Brief, appellant received a juris doctorate degree 

from Texas Tech University in 2007, and attended the Judge Advocate Officer’s 

Basic Course in 2008. As a judge advocate, appellant served as trial counsel and 

administrative law attorney at Fort Hood, prior to serving as the CoJ at Fort Bragg. 
BURRIS—ARMY 20150047 

3 

responded in writing, “I will get back with LTC Thomson about the CDs mentioned 

once I look for/find them and have discussed the same with defense counsel, but will 

give an update to him before COB today.” Appellant never returned any DVDs or 

CDs to the 82d Airborne Division’s Office of the Staff Judge Advocate. 

A. Improper Character Evidence and Argument 

In a videotaped Criminal Investigation Command (CID) interview, appellant 

told a special agent about his nickname, “The Beast.” At trial, the government used 

appellant’s nickname throughout its case to highlight the domestic violence 

incidents and to counter appellant’s “good soldier” defense. For example, during 

WB’s testimony, she referenced “The Beast” when describing different instances of 

assault, rape, and sodomy. According to WB, after the first time appellant raped 

her, she asked him, “‘Why did you do that? You hurt me.’ . . . ‘Why didn’t you 

stop?’ . . . ‘It hurt me.’” After appellant stopped laughing he responded, “‘Oh, you 

must have been talking about The Beast. You met The Beast last night.’ . . . ‘Oh, 

that’s a name I nicknamed -- the girls in college that happened to and they 

nicknamed -- calls it The Beast.’” The CID interview, which included appellant’s 

description about the origins of his nickname, was also admitted into evidence and 

played in its entirety to the panel. In closing argument, trial counsel used the term 

“The Beast” or “a beast” nine times. 

On appeal, appellant alleges the numerous references to him as “The Beast” 

were impermissible character evidence and improper argument. Appellant also 

argues the government improperly commented on his constitutional right to remain 

silent during closing argument. As a threshold matter, we must determine in each 

instance whether appellant preserved his right to claim error, or waived his claim by 

failing to object at trial. 

In general, “‘[d]eviation from a legal rule is error unless the 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 superior 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 issues 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 evidentiary errors, “[a] party may claim error in a ruling to admit 

or exclude evidence only if the error materially prejudices a substantial right of the 

party and: if . . . a party, on the record: timely objects or moves to strike . . . .” 

Military Rule of Evidence [hereinafter Mil. R. Evid.] 103(a) (emphasis added). 
BURRIS—ARMY 20150047 

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However, “[a] military judge may take notice of a plain error that materially 

prejudices a substantial right, even if the claim of error was not properly preserved.” 

Mil. R. Evid. 103(f) (emphasis added). Regarding argument by counsel, “[f]ailure 

to object to improper argument before the military judge begins to instruct the 

members on findings shall constitute waiver of 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 evidence or during argument. Accordingly, this issue is waived and 

there is no legal error to correct on appeal. Moreover, there is no cause for us to 

exercise our discretionary authority 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 accordance with 

the character or trait[,]” the term “The Beast” is not a character trait. Mil. R. 

Evid. 404(a)(1). It is appellant’s self-imposed nickname, and it is not “‘necessarily 

suggestive of a criminal 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 evidence, there is no reason 

for this court to look beyond appellant’s clear waiver. 

2. Right to Remain Silent 

During closing argument, trial counsel stated the following: 

Who is so many people’s source 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 domestic 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 

                                                            

3

 In Farmer, the trial judge overruled the defendant’s objection to the use of his 

nickname, “Murder,” even though he was charged with murder and attempted 

murder. 583 F.3d at 135. The appellate court found “the main problem was not the 

admission of the nickname into evidence. Rather, it was the prosecutors’ frequently 

repeated, gratuitous invocation 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 case at hand, appellant’s nickname is not 

repeated frequently nor is it a gratuitous invocation rising to flagrant abuse. 
BURRIS—ARMY 20150047 

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[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 video. 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 out 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 counsel’s argument. 

After trial counsel finished her closing argument and before defense started his 

argument, the military judge sua sponte excused the members and stated the 

following: 

[MJ:] Counsel, during closing -- 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 way 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 understand. 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 something that the government put 

in. I’d like to be able to speak to my [co-counsel] 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, and I don’t think it was an intentional if 

it was ---- 

CDC: I’m not saying it was but ---- 

MJ: I understand. 

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

. . . . 

MJ: May I listen to the tape? 

[The court reporter conferred with the military judge.] 

MJ: Court’s in recess. 

The military judge recessed the court-martial and held a R.C.M. 802 

conference during which the parties and the military judge listened to the audio 

recording of trial counsel’s closing argument. Following the recess, the military 

judge held an Article 39(a), UCMJ, session during which the following ensued: 

[MJ:] During the recess, both I and counsel listened to the 

audio. I believe it can be interpreted 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 something that might alleviate 

the problem during the next session. 

Is there anything that either party wishes to add to this on 

this issue? 

TC: No, Your Honor. 

CDC: No, Your Honor. 
BURRIS—ARMY 20150047 

7 

ATC: Actually -- I apologize, sir. Just to make -- that the 

defense’s plan was to do that prior to any of this popping 

up on the record either. You know what I mean, it wasn’t 

like ---- 

MJ: Right. 

ATC: ---- this concern changed 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. When the court-martial was called to order 

and the panel returned, defense counsel gave his closing argument in which he 

stated: “[Appellant] didn’t testify in this case because that says it best. That video4

was pure and raw and honest. There was no need.” 

Based on the facts in this case, 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 the ‘intentional 

relinquishment or abandonment of a known right.’” Gladue, 67 M.J. at 313 (quoting 

Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). When the military judge directed 

defense counsel’s attention to trial counsel’s potentially improper argument, the 

right to object became a “known right.” After listening to the audio recording of 

trial counsel’s argument and conferring with co-counsel during a recess, appellant, 

through counsel, intentionally abandoned his right to object and obtain a judicial 

remedy. Instead of a judicial remedy, defense counsel chose to address the 

potentially improper argument with counter-argument.5

 

Even assuming appellant preserved this issue for appellate review by simply 

agreeing with the military judge, we find neither error in nor prejudice from trial 

counsel’s argument. As the military judge correctly observed, trial counsel’s 

comments could be interpreted multiple ways. In its full context, trial counsel’s 

                                                            

4

 The video of appellant’s interview with CID was admitted into evidence and played 

in its entirety during the government’s case. 

5

 Defense counsel claimed during the Article 39(a), UCMJ, session that he 

recognized trial counsel’s potentially improper argument before the military judge 

intervened sua sponte. Defense counsel also indicated during the R.C.M. 802 

conference that he originally intended to address the potentially improper argument 

with counter-argument. Essentially, the military judge’s intervention did not change 

defense counsel’s initial preference to forego a judicial remedy. 
BURRIS—ARMY 20150047 

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reference to appellant as the common source of information for defense witnesses, 

“did not manipulate or misstate the evidence, nor did it implicate other specific 

rights of the accused such as the right to counsel or the right to remain silent.” 

Darden v. Wainwright, 477 U.S. 168, 182 (1986). Even if this 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 beyond a reasonable 

doubt appellant suffered no prejudice. After the defense 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 strategy. In short, the military judge not 

only elicited defense counsel’s preferred remedy on the record, he also acquiesced to 

their post-consultation preference. 

Under the circumstances of this case, we find appellant failed to preserve a 

claim of error by merely agreeing with the military judge’s sua sponte identification 

of potential error. Even assuming, arguendo, appellant did not waive the issue, we 

find no error and no prejudice. Accordingly, appellant is not entitled to relief. 

B. Ineffective Assistance of Counsel 

Whether counsel provided 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 judging counsel’s representation is a most deferential one.” 

Harrington v. Richter, 562 U.S. 86, 105 (2011) (emphasis omitted). 

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)). 

Judicial scrutiny of counsel’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 defense after it has proved 

unsuccessful, to conclude that a particular act or omission 

of counsel was unreasonable. A fair assessment of 

attorney performance requires that every effort be made to 
BURRIS—ARMY 20150047 

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eliminate the distorting effects of hindsight, to reconstruct 

the circumstances of counsel’s challenged conduct, and to 

evaluate the conduct from counsel’s perspective at the 

time. Because of the difficulties inherent in making the 

evaluation, a court must indulge a strong presumption that 

counsel’s conduct falls within the wide range of 

reasonable professional assistance; that is, the defendant 

must overcome the presumption 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 would not defend a particular 

client in the same way. 

Strickland, 466 U.S. at 689 (internal quotation marks and 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)). In adopting the Strickland framework, 

our superior court has maintained the strong deference to counsel’s tactical decisions 

and rejected the advantages of hindsight. See United States v. Akbar, 74 M.J. 364, 

379 (C.A.A.F. 2015) (“Thus, our scrutiny of a trial defense counsel’s performance is 

‘highly deferential,’ and we make ‘every effort . . . to eliminate the distorting effects 

of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and 

to evaluate conduct from counsel’s perspective at the time.’”). 

Moreover, our review of ineffectiveness is not based on a single act of 

counsel, but by considering counsel’s overall performance. See United States v. 

Murphy, 50 M.J. 4, 8 (C.A.A.F. 1998) (“When we look for effective assistance, we 

do not scrutinize each and every movement or statement of counsel. Rather, we 

satisfy ourselves that an accused has had counsel who, by his or her representation, 
BURRIS—ARMY 20150047 

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made the adversarial proceedings work.”). Similarly, where an appellant was 

represented by multiple counsel, their performance is judged as a team, not by 

considering only one or more individual counsel. United States v. McConnell, 55 

M.J. 479, 481 (C.A.A.F. 2001). 

Regarding counsel’s performance after findings, “defense counsel may be 

ineffective at the sentencing phase when counsel either ‘fails to investigate 

adequately the possibility of evidence that would be of value to the accused in 

presenting a case in extenuation and mitigation or, having discovered such evidence, 

neglects to introduce that evidence before the court-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. 1998)). When assessing the second prong, appellant “‘must 

show that there is a reasonable probability that, but for counsel’s unprofessional 

errors, the result of the proceeding would have been different. A reasonable 

probability is a probability sufficient to undermine confidence in the outcome.’” 

Green, 68 M.J. at 362 (quoting Strickland, 466 U.S. at 698). 

In this case, appellant was represented by a military defense counsel (DC), an 

individual military counsel (IMC), and a civilian defense counsel (CDC). During 

the trial, the CDC became ill and was taken to a hospital. Although the CDC later 

returned to trial, he was not present when the panel announced its findings. In 

addition, the CDC was not present during presentencing because he was excused by 

appellant since the DC and IMC “were comfortable” going forward without him. 

On appeal, appellant, both personally and through appellate defense counsel, 

alleges his trial defense counsel were ineffective during presentencing because they 

did not prepare for the possibility of his conviction. Specifically, appellant claims 

his defense counsel failed to investigate possible matters in extenuation and 

mitigation, identify a sufficient number of potential witnesses, prepare and control 

the few witnesses who did testify, present a “good soldier book,” and advise him to 

apologize in his unsworn statement. 

1. Investigating Matters in Extenuation and Mitigation, and Presentencing 

Witness Identification and Preparation 

In his affidavit, appellant states: 

Everyone on my defense team was blown away by the 

findings. They only considered the possibility of an 

assault of my wife as a possible 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 

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. . . . 

At no point in the preparation of the case did my defense 

counsel ask about witnesses who would testify to 

accomplishments of my military career. We discussed 

character witnesses for the merits portion of the case, but 

we never discussed calling witnesses who could describe 

the things I did during my military career. We did not 

even put together the sentencing materials until we were 

waiting for findings to be announced. They had a 

paralegal print out photographs for me to submit. 

First, we reject appellant’s factual assertion that sentencing was not 

considered until after findings. Appellant acknowledges as much in his affidavit: 

The first time I had a substantive conversation about presentencing proceedings 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 about a Good Soldier Book. They 

said we should probably get something together, including 

letters of support and 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 affidavits ordered by this court, the IMC and DC 

admitted they, too, were “shocked” and “surprised” 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 soldier defense” on the 

merits involved the investigation and presentation of evidence typically reserved for 

presentencing. As our superior court has held, even defense counsel’s post-findings 

surprise and regret, without more, do not establish deficient performance by counsel. 

See United States v. Smith, 48 M.J. 136, 137-38 (C.A.A.F. 1998) (“We hold that the 

assertions of appellant’s trial 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 attack, even when selfinitiated by trial defense counsel, requires more than counsel’s regret as support.”). 

Second, appellant 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 sentencing case that involved sex offense convictions” as 

opposed to one that involved “an assault of [WB.]” The “good soldier defense” his 

counsel put forth was equally applicable during presentencing to sex offense 
BURRIS—ARMY 20150047 

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convictions as domestic violence convictions. Specifically, defense counsel called 

ten witnesses who testified about appellant’s good military character. Defense 

counsel also used a government witness to discuss appellant’s good duty 

performance. Although testifying on the merits, these witnesses covered appellant’s 

entire military career, including his time as a field artillery officer and a judge 

advocate. They testified about his good duty performance at various duty locations 

including his deployment to Iraq and his attendance at The Judge Advocate 

General’s Officer Graduate Course. 

Defense counsel referenced the testimony of these witnesses in their 

presentencing argument. The military judge instructed the panel prior to sentencing 

they could consider all the witnesses who testified on the merits as to appellant’s 

character. Accordingly, it was a reasonable tactical decision for defense counsel not 

to recall all of these witnesses during presentencing. In similar circumstances, our 

superior court has found counsel’s decision to reference, rather than repeat, the 

earlier testimony of a merits 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 argument expressly referenced the ‘good soldier’ testimony 

that the witness had provided during the findings portion of trial. Moreover, by 

referring to earlier testimony rather than recalling the witness, the defense was able 

to avoid the risk of cross-examination.”). 

In addition to documentary evidence and appellant’s unsworn statement, 

defense counsel did recall three witnesses during presentencing—Dr. Mark 

Whitehill, a licensed psychologist and certified sex offender treatment provider; 

Mr. Galen Burris, appellant’s father; and Mrs. Beilman, appellant’s sister. 

Dr. Whitehill explained his clinical assessment that appellant has a personality 

disorder, but is a low-level risk to reoffend and commit sexual violence. Even 

ignoring whether his testimony offers further proof counsel 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 prepared by counsel.6

                                                            

6

 While appellant asserts that Dr. Whitehill only spoke with him between the 

announcement of findings and the presentencing proceedings, it is clear from the 

record that Dr. Whitehill prepared for testifying as an expert witness. Dr. Whitehill 

reviewed the complete report from appellant’s mental examination by the 

R.C.M. 706 board. Although the government elicited information pertaining to 

appellant’s personality disorder, this is not evidence of a lack of preparation. The 

DC admits in her affidavit that she considered this matter prior to calling 

Dr. Whitehill and made a tactical decision to call him because she believed the 

benefits from his opinion about appellant’s low risk of recidivism outweighed 

information about a personality disorder. 
BURRIS—ARMY 20150047 

13 

Although appellant attempts to show prejudice by reference to other 

witnesses, we find those efforts similarly inadequate and mere speculation. 

Appellant admits he did not provide counsel with a list of “numerous individuals 

who” he claims “would have testified on [his] behalf in sentencing.” While 

appellant now states his desire to call additional witnesses, with the exception of his 

sister, there are no affidavits confirming the desired witnesses were willing to testify 

favorably on his behalf. Essentially, appellant asks this court to presume he was 

prejudiced when counsel failed to discover unspecified witnesses or recall merits 

witnesses to provide unspecified testimony. We cannot presume what appellant has 

the burden to show. See Alves, 53 M.J. at 289-90. 

2. Control of Witness Testimony 

Appellant now claims counsel did “almost no preparation with my sister 

[Mrs. Beilman.]” He believes his sister should have been asked about aspects of his 

life including: his childhood, times he defended women against violence, rescued 

animals, coached a girls soccer team, and his numerous volunteer activities. He also 

alleges his counsel did not discuss with Mrs. Beilman the relevance of attacking WB 

and the trial counsel, or the wisdom of commenting “about evil women or what it 

would be like to be married to an evil woman.” 

Mrs. Beilman submitted an affidavit in which she stated, “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 noticeably distraught and crying, but he did not prepare me.” 

She further states: 

I know that [appellant] was wrongfully convicted. I have 

regrets about some of the statements I made during my 

sentencing testimony and I believe 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 affect that decision. Prior to [the IMC’s] 

affidavit I had never heard 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 was not guided through the range of 

emotions I was experiencing or helped to convey the 

message I really wanted to. 

If I could do it again, my testimony would be different. 

While Mrs. Beilman’s post-trial reflection on her testimony with the benefit of 

hindsight is understandable, we cannot rely on the same benefit in our appellate 

review. Furthermore, her belief, no matter how deeply felt, that the panel increased 
BURRIS—ARMY 20150047 

14 

appellant’s punishment because she “impeached the verdict” and criticized the trial 

counsel is speculation. In contrast to her post-trial assessments, her claim that she 

was inadequately prepared by counsel before testifying during presentencing 

requires closer examination 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, neither the government nor the panel members had any 

questions for her. As she was about to be permanently excused, Mrs. Beilman asked 

the military judge, “May I say something?” The military judge responded, 

“Counsel? You can answer questions from counsel.” 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 juncture, the IMC had little time to make a critical decision in front 

of the panel. The IMC could have concluded his examination without giving her the 

opportunity to express her final thought. However, this may have left the panel 

confused and possibly prompted 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 mitigation 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 tactical decision to permit her final comment 

and asked, “Ma’am, do you have anything else you want to 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 proof 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 them 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 worked out. And, if not, she 

had Daddy welfare; and that is who [WB] is. And she 

managed to sit up here and cry those tears. They are not 

real -- they’re not real. 

And that prosecutor -- that blonde prosecutor with the 

bun, can smirk during my testimony and comment that -- I 
BURRIS—ARMY 20150047 

15 

see something in someone’s eyes -- so disrespectful. And I 

want you to think about this and that when you sleep -- 

and when my niece’s grow up, maybe they’ll marry your 

son. Then you’ll know what it feels 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 am proud of you. And you keep fighting 

because you’re my hero. 

[Pause.] 

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

[The witness withdrew.] 

(emphasis added). Appellant’s criticism of the IMC’s decision to permit 

Mrs. Beilman’s to make a final comment is based entirely on hindsight. Even in 

hindsight, the IMC believes he made the correct decision in not abruptly terminating 

Mrs. Beilman’s final statement. The IMC states in his affidavit: 

I did not intervene because in my personal and 

professional opinion, the panel 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 allowing a third party witness to 

impeach the verdict versus doing it myself – or through 

[appellant] – would be an effective way to plant the seed 

while not overtly making that 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 appellant, the witness, or counsel to 

resolve this question. It is clear from the record of trial that Mrs. Beilman was 

sufficiently prepared to understand counsel’s questions and, apart from her

impromptu concluding remarks, to provide favorable testimony. Without more, an 

affiant’s post-trial regret and speculation, like lack of memory, are far too equivocal 
BURRIS—ARMY 20150047 

16 

and ambiguous a complaint to overcome the strong presumption of counsel’s 

competence. See United States v. Key, 57 M.J. 246, 249 (C.A.A.F. 2002) (finding 

broad, generalized accusations from an affiant are insufficient to prove counsel were 

ineffective). Moreover, there is no evidence to suggest the panel rejected the 

military judge’s instructions on the proper basis for a sentence and instead punished 

appellant for the errant comments from his sister. 

3. Good Soldier Book 

There is no blueprint for the contents of a “good soldier book.” Although not 

in book format, defense counsel submitted twelve letters of support and appellant’s 

military awards and certificates, which included two Bronze Stars, a Meritorious 

Service Medal, a Joint Service Commendation Medal, and two Army Achievement 

Medals. Defense counsel also submitted 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 appellant’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 purpose as a “good soldier 

book.” Although appellant notes he had to request letters of support, this is not an 

uncommon or unreasonable practice 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. Accordingly, 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 cross-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) purports to limit an accused’s 

unsworn statement to matters “in extenuation, in mitigation or to rebut matters 

presented by the prosecution,” this limit has never been strictly enforced in light of 

its traditional place as “an important right at military law.” Grill, 48 M.J. at 133. 

Accordingly, the unsworn statement remains “an opportunity for an accused to bring 

information to the attention of the members 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 his counsel what he would 

say if he made an unsworn statement, which included an emphatic resolve that he 

“was not going to apologize for anything.” Instead, appellant 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 deliberating on the evidence 

that you heard. Thank you for reaching a decision. 
BURRIS—ARMY 20150047 

17 

I want to believe, I have to believe, and I trust that each of 

you are great officers, great Americans and you believe 

you did the right thing. I trust that. 

To the extent that you found me guilty of rape and 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, nor shall I ever, 

admit to having raped my wife or beaten her. Whatever 

vestiges of honor I have left, whatever shreds of honor I 

may have left, I’m going to fight to cling onto. 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 world 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-martial, it’s safe to say I will not 

be seeing them again. To that end, I would ask one 

woman in this courtroom that I 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, confidence, from -- from friends that 

I could never have imagined. 

At this moment, I should probably feel some kind of -- at 

this moment, honestly, I think more than -- I feel more joy 

than anything else for the friends and my family that have 

supported and have believed 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 friend. 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 give me a chance to 

return to doing those same things in some capacity at some 

point. Thank you. 

(emphasis added). Appellant chose not to apologize, as is his right. There is no 

requirement for an appellant to apologize during an unsworn statement or forfeit the 

right to make one. Confronted with appellant’s emphatic refusal to apologize, it was 

reasonable for defense counsel to encourage him to express remorse in his own 

words as opposed to pressuring him to make an insincere apology.7 Ultimately, 

defense counsel had no authority to prevent appellant from making an unsworn 

statement, or advising him that he must apologize or forego his right altogether. 

Absent extraordinary circumstances, these decisions made by counsel are exactly the 

type of tactical decisions relevant case law instructs us not to second guess. As 

such, we will not do so here. 

Under the circumstances of this case, we see no need 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 allegations—even if true—would not result in 

relief. United States v. Ginn, 47 M.J. 236, 248 (C.A.A.F. 1997). Furthermore, “the 

appellate filings and the record as a whole ‘compellingly demonstrate’ the 

improbability of [appellant’s allegations].” Id. Applying the first, second, and 

fourth Ginn principles to appellant’s submission, we reject appellant’s ineffective 

assistance claim. In short, defense counsel made objectively reasonable choices in 

strategy from available alternatives. Appellant’s assertions that his defense counsel 

provided ineffective assistance lack merit. 

                                                            

7

 Whether 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 counsel. 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 government’s rebuttal. United States v. 

Edwards, 35 M.J. 351, 355 (C.M.A. 1992). 
BURRIS—ARMY 20150047 

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CONCLUSION 

On consideration of the entire record, the findings of guilty and the sentence 

are AFFIRMED. 

Senior Judge TOZZI and Judge CELTNIEKS concur. 

FOR THE COURT: 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: