U.S. v. Davis, 52 M.J. 201

Military Justice Personnel: Defense Function: Effective / Ineffective Assistance of Counsel

1. appellant’s claim that counsel were ineffective for misleading him to believe that if he was not dismissed by a court-martial, he would be allowed to retire, would not be disregarded for lack of prejudice where: (1) it was remarkable that sentence did not include dismissal; (2) the most logical explanation for no dismissal being that the members followed appellant’s request to given him more confinement in exchange for no dismissal; and, (3) appellant asserted he would not have made the request had he known that his retirement was not secure

Trial Stages: Merits: Instructions › Generally

1. where testimony about uncharged sexual abuse of 9-year-old stepdaughter put her testimony into context that she “felt cornered, . . . trapped, [and] had to do what [appellant] said”, it cannot be said that military judge erred in rendering constructive force/parental control and tender years instructions as they related to the force elements of both rape and forcible sodomy
2. (instructions on constructive force, acceding to parental will, and tender years were presented as alternatives to actual force, and did not invite the members to dispense with the necessity of finding the force element of both rape and forcible sodomy

Trial Stages: Appeals: Generally

1. when faced with conflicting affidavits, a factfinding hearing must be ordered unless the appellate filings and the record of trial was a whole compellingly demonstrate the improbability of facts in an appellant’s otherwise adequate affidavit, in which case, appellant’s factual assertions may be discounted and the legal issues decided on the record
2. appellant’s case is remanded for a factfinding hearing relating to his claim of ineffective assistance of counsel - his affidavit indicated that he was misled by his counsel to believe that if he was not dismissed by a court-martial, he would be allowed to retire, and that affidavit cannot be dismissed or discounted where: (1) an understanding of the Temporary Early Retirement Authority could not be imputed to appellant; (2) appellant’s unsworn statement focused on retention of retirement benefits; (3) trial counsel’s sentencing argument indicated that appellant would be able to retire if he was not dismissed; and, (4) nothing said during sentencing indicates that appellant was on notice that despite being adjudged no dismissal his retirement eligibility would remain in peril

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. to support a claim of ineffective assistance of counsel an appellant must demonstrate that his counsel’s performance was so deficient that he was not functioning as counsel within the meaning of the Sixth Amendment and he must show that his counsel’s deficient performance prejudiced him