U.S. v. Paxton, 64 M.J. 484

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

1. under the two-pronged test of Strickland v. Washington, 466 US 668 (1984), for appellant to establish ineffective assistance of counsel, he first must show that counsel’s performance fell below an objective standard of reasonableness -- that counsel was not functioning as counsel within the meaning of the Sixth Amendment; second, he must demonstrate that there is a reasonable probability that, but for counsel’s error, there would have been a different result
2. appellant did not establish that his defense counsel was ineffective for failing to object to trial counsel’s rebuttal argument on findings, where his defense counsel’s argument equating the offense of indecent acts to appropriate trial preparation was a questionable tactic that was clearly subject to proper rebuttal by the government; although the trial counsel’s remarks were somewhat intemperate, the failure to object to them was not conduct that fell below an objective standard of reasonableness, and an objection in these circumstances would not have impacted the trial’s result
3. appellant did not establish that his defense counsel was ineffective for failing to object to trial counsel’s sentencing argument, where trial counsel did not improperly comment upon appellant’s exercise of his rights to plead not guilty or to remain silent; to the extent that trial counsel may have misstated the evidence, if there was error, it was neither plain nor obvious
4. appellant did not establish that his defense counsel was ineffective for advising him to remain silent during sentencing and not to give an unsworn statement, where the affidavit of trial defense counsel provided a sound tactical basis to explain why they advised him not to submit an unsworn statement -- they advised appellant against submitting an unsworn statement because they observed the mood of the court-martial members and believed that if he gave a statement without taking full responsibility for his crimes and apologizing for them, he would further alienate the members
5. as a general matter, an appellate court will not second-guess the strategic or tactical decisions made at trial by defense counsel
6. appellant did not establish that his defense counsel was ineffective for failing to call his wife or former wife to testify during findings, where the affidavit of trial defense counsel provided a sound tactical reason to justify the decision not to call these women as witnesses - defense counsel reasoned that (1) the current wife’s credibility was questionable at best, and due to her youthful appearance, her background, and certain aspects of her relationship with appellant, her testimony could have instilled in the members a sense that appellant was a man of questionable morals who took an interest in younger women, and (2) because his former wife was unstable, unpredictable, and hostile to defense counsel and to appellant, she could have said any number of things detrimental to appellant if put on the stand, including allegations that he abused her emotionally and physically

Trial Stages: Merits: Argument

1. counsel are cautioned to limit arguments on findings to evidence in the record and to such fair inferences as may be drawn therefrom

Trial Stages: Sentence and Punishment: Argument

1. the prosecution may not comment on an accused’s lack of remorse or on his recalcitrance in refusing to admit guilt after findings unless there is testimony from the accused, an unsworn statement, or other evidence properly before the court members to support the comment; in addition, the comment may not be drawn from an accused’s decision not to testify or from his pleas of not guilty
2. a sentencing argument by trial counsel which comments upon an accused’s exercise of his or her constitutionally protected rights is beyond the bounds of fair comment
3. an accused’s refusal to admit guilt after findings may be an appropriate factor for the members’ consideration in their sentencing deliberation on rehabilitation potential but only if a proper foundation has been laid
4. as a general rule, the predicate foundation for the prosecution to comment on an accused’s lack of remorse or on his recalcitrance in refusing to admit guilt after findings is that an accused has either testified or has made an unsworn statement and has either expressed no remorse or his expression of remorse can be arguably construed as being shallow, artificial, or contrived; in addition, other evidence in the record may also give rise to the inference that an accused is not remorseful, but the inference may not be drawn from his decision not to testify or from his pleas of not guilty
5. counsel are cautioned to limit arguments on sentencing to evidence in the record and to such fair inferences as may be drawn therefrom

Trial Stages: Appeals: Preservation of Error / Plain Error

1. where appellant did not object to the sentencing argument at trial, he must establish plain error to prevail on appeal; and to establish plain error, appellant must demonstrate: (1) that there was error, (2) that the error was plain or obvious, and (3) that the error materially prejudiced a substantial right
2. appellant did not establish that trial counsel’s sentencing argument constituted plain error because there was no error shown; when considered in context, the trial counsel’s remarks were based on the testimony of a clinical psychologist and not on appellant’s decisions to plead not guilty or to remain silent during sentencing; although trial counsel sought to draw the inference that appellant was unwilling to accept responsibility or admit what he had done, he did not do so by commenting on appellant’s decision to exercise those rights; to the extent the argument went beyond the facts established in the record or failed to make clear that counsel was calling for an inference reasonably drawn from the evidence, it would constitute error; however, even if there was error, appellant failed to establish that it was plain and obvious

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

1. under the two-pronged test of Strickland v. Washington, 466 US 668 (1984), for appellant to establish ineffective assistance of counsel, he first must show that counsel’s performance fell below an objective standard of reasonableness -- that counsel was not functioning as counsel within the meaning of the Sixth Amendment; second, he must demonstrate that there is a reasonable probability that, but for counsel’s error, there would have been a different result
2. ineffective assistance of counsel involves a mixed question of law and fact; an appellate court reviews factual findings under a clearly erroneous standard, but it applies a de novo standard of review to the ultimate determination of whether appellant received ineffective assistance of counsel and whether there was prejudice
3. an appellate court’s review of counsel’s performance is highly deferential and is buttressed by a strong presumption that counsel provided adequate professional service
4. as a general matter, an appellate court will not second-guess the strategic or tactical decisions made at trial by defense counsel
5. an appellate court reviews claims of multiplicity de novo

Miscellaneous Matters: Multiplicity and Lesser Included Offenses: Multiplicity

1. multiplicity, a constitutional violation under the Double Jeopardy Clause, occurs if a court, contrary to the intent of Congress, imposes multiple convictions and punishments under different statutes for the same act or course of conduct
2. in this case, the indecent acts offenses and the rape were not multiplicious as a matter of law, where the conduct involved several distinct acts; the acts of touching his daughter’s breast and genitals were discrete acts separate from each other and separate from the rape

Miscellaneous Matters: Multiplicity and Lesser Included Offenses: Unreasonable Multiplication of Charges

1. even if offenses are not multiplicious as a matter of law with respect to double jeopardy concerns, the prohibition against unreasonable multiplication of charges allows courts-martial and reviewing authorities to address prosecutorial overreaching by imposing a standard of reasonableness
2. charging appellant with both indecent acts and rape did not constitute an unreasonable multiplication of charges; although appellant moved to dismiss the specifications on two occasions, the acts at issue were distinct, the case did not involve the piling on of charges but reflected charges for distinct criminal conduct, the indecent act specifications had no effect on appellant’s punitive exposure, and there was no evidence of prosecutorial overreaching or abuse in drafting the charges

Miscellaneous Matters: Multiplicity and Lesser Included Offenses: Tests

1. multiplicity and unreasonable multiplication of charges are two distinct concepts; multiplicity, a constitutional violation under the Double Jeopardy Clause, occurs if a court, contrary to the intent of Congress, imposes multiple convictions and punishments under different statutes for the same act or course of conduct; even if offenses are not multiplicious as a matter of law with respect to double jeopardy concerns, the prohibition against unreasonable multiplication of charges allows courts-martial and reviewing authorities to address prosecutorial overreaching by imposing a standard of reasonableness
2. in addressing whether the government has unreasonably multiplied charges, a court applies a five-part test: (1) did the accused object at trial that there was an unreasonable multiplication of charges and/or specifications; (2) is each charge and specification aimed at distinctly separate criminal acts; (3) does the number of charges and specifications misrepresent or exaggerate the appellant’s criminality; (4) does the number of charges and specifications unreasonably increase the appellant’s punitive exposure; (5) is there any evidence of prosecutorial overreaching or abuse in the drafting of the charges