U.S. v. Jameson, 65 M.J. 160

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

1. in order to prove ineffective assistance of counsel, appellant must show that his trial counsel’s performance was deficient and that the deficiency deprived him of a fair trial; with regard to allegations of ineffective assistance of counsel, the burden rests on the accused to demonstrate a constitutional violation; consistent with this principle, when a claim of ineffective assistance of counsel is premised on counsel’s failure to make a motion to suppress evidence, an appellant must show that there is a reasonable probability that such a motion would have been meritorious; in determining whether appellant has a reasonable probability of success on the motion to suppress the results of appellant’s consent to a blood draw, an appellate court considers the totality of the circumstances surrounding the consent
2. appellant did not establish that his defense counsel was ineffective for failing to file a timely motion to suppress the admission of his BAC test, where he failed to show that he would have a reasonable probability of success on his claim that the test violated the Fourth Amendment because his consent to the blood draw was involuntary; to show prejudice in the context of this case, appellant must adduce evidence that his apparent consent was, in fact, involuntary, but there is no evidence in the record that any of the factors marshaled by appellant’s counsel in fact affected appellant’s understanding of his rights or his consent to the blood draw; as a matter of law, the fact that appellant had a BAC of .11 at the time he consented did not make him incapable of consenting; the bare assertions of counsel that appellant was either impaired and incapable of consent at the time he consented, or that that his consent was a mere acquiescence to a claim of lawful authority, compared with the investigator’s trial testimony that appellant was informed of his right to consent or object to the drawing of blood and that he signed a consent form, do not show a reasonable probability that a motion to suppress the evidence would have been meritorious

Core Criminal Law Subjects: Evidence: Suppression

1. MRE 311(d)(2)(A) requires that motions to suppress evidence be made by the defense prior to submission of a plea; the general rule is that a failure to make the motion prior to the plea constitutes a waiver of the motion or objection; the only exception is if good cause is shown by the moving party; no good cause exists when the moving party knew or could have known about the evidence in question before the deadline

Core Criminal Law Subjects: Evidence: Waiver

1. MRE 311(d)(2)(A) requires that motions to suppress evidence be made by the defense prior to submission of a plea; the general rule is that a failure to make the motion prior to the plea constitutes a waiver of the motion or objection; the only exception is if good cause is shown by the moving party; no good cause exists when the defense knew or could have known about the evidence in question before the deadline
2. the military judge did not abuse his discretion in determining that there was no good cause under MRE 311(d)(2) to permit the defense’s untimely evidentiary motion to suppress the results of appellant’s BAC test despite the defense counsel’s allegations that he made two unsuccessful attempts to contact and interview the investigators who presented the consent-to-draw-blood form to appellant in the hospital, where neither the charge, nor the BAC evidence at issue, was a surprise, where the defense counsel knew about the evidence at issue and also knew the general circumstances surrounding appellant’s signing the consent form, where the prosecution did nothing to contribute to the defense’s decision not to file a timely motion to suppress, and where the defense counsel did not request assistance from either the military judge or government counsel in producing either investigator for an interview

Core Criminal Law Subjects: Motions, Generally: Merits

1. MRE 311(d)(2)(A) requires that motions to suppress evidence be made by the defense prior to submission of a plea; the general rule is that a failure to make the motion prior to the plea constitutes a waiver of the motion or objection; the only exception is if good cause is shown by the moving party; no good cause exists when the moving party knew or could have known about the evidence in question before the deadline

Trial Stages: Merits: Motions

1. MRE 311(d)(2)(A) requires that motions to suppress evidence be made by the defense prior to submission of a plea; the general rule is that a failure to make the motion prior to the plea constitutes a waiver of the motion or objection; the only exception is if good cause is shown by the moving party; no good cause exists when the moving party knew or could have known about the evidence in question before the deadline

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

1. an appellate court reviews a military judge’s evidentiary decision on whether good cause was shown for an untimely motion to suppress for an abuse of discretion
2. in order to prove ineffective assistance of counsel, appellant must show that his trial counsel’s performance was deficient and that the deficiency deprived him of a fair trial; with regard to allegations of ineffective assistance of counsel, the burden rests on the accused to demonstrate a constitutional violation; consistent with this principle, when a claim of ineffective assistance of counsel is premised on counsel’s failure to make a motion to suppress evidence, an appellant must show that there is a reasonable probability that such a motion would have been meritorious; in determining whether appellant has a reasonable probability of success on the motion to suppress the results of appellant’s consent to a blood draw, an appellate court considers the totality of the circumstances surrounding the consent