                         UNITED STATES, Appellee

                                         v.

                  James M. GREEN, Technical Sergeant
                       U.S. Air Force, Appellant

                                  No. 09-0523
                           Crim. App. No. 37074

       United States Court of Appeals for the Armed Forces

                         Argued January 12, 2010

                       Decided February 24, 2010

STUCKY, J., delivered the opinion of the Court, in which EFFRON,
C.J., and BAKER, ERDMANN, and RYAN, JJ., joined.


                                     Counsel


For Appellant: Captain Andrew J. Unsicker (argued); Colonel
James B. Roan and Major Shannon A. Bennett (on brief); Captain
Tiffany M. Wagner.

For Appellee: Captain Michael T. Rakowski (argued); Colonel
Douglas P. Cordova, Lieutenant Colonel Jeremy S. Weber, and
Gerald R. Bruce, Esq. (on brief).

Military Judge:    Ronald A. Gregory

            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Green, No. 09-0523/AF


     Judge STUCKY delivered the opinion of the Court.

     We granted review to determine whether Appellant’s counsel

was ineffective, and whether the United States Air Force Court

of Criminal Appeals (CCA) erred in not granting Appellant’s

request for the victim’s (CM) mental health records.    We hold

that Appellant has failed to demonstrate prejudice under

Strickland v. Washington, 466 U.S. 668 (1984).   Because

Appellant has not demonstrated ineffective assistance of

counsel, we need not reach the issue of whether the CCA erred in

not obtaining CM’s records.

                                I.

     A panel of officer members sitting as a general court-

martial convicted Appellant, contrary to his pleas, of one

specification of sodomy with a child between the ages of twelve

and sixteen, three specifications of assault consummated by a

battery of a child under the age of sixteen, and two

specifications of committing indecent acts with a child under

the age of sixteen, in violation of Articles 125, 128, and 134,

Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 925, 928,

934 (2006).   The members sentenced Appellant to a dishonorable

discharge, confinement for four years, forfeiture of all pay and

allowances, reduction to E-1, and a reprimand.   The convening

authority approved the findings and sentence, and the CCA

affirmed in an unpublished opinion.   United States v. Green, No.


                                 2
United States v. Green, No. 09-0523/AF


ACM 37074, 2009 CCA LEXIS 54, 2009 WL 367577 (A.F. Ct. Crim.

App. Feb. 10, 2009).

                                 II.

     Appellant’s convictions largely stem from his conduct

towards CM, his wife’s younger sister.   When CM was thirteen

years old, she moved from her parents in order to live with

Appellant and his wife.   CM testified at trial that Appellant

began sexually abusing her when she was fourteen years old, and

this abuse continued for the next nine months.   According to

CM’s testimony, this sexual abuse included regular sexual

intercourse, fellatio, cunnilingus, and touching her vagina and

breasts.   CM’s testimony also alleged that Appellant choked her,

threw a remote control at her head, slammed a door into her

shoulder, and hit her.    CM’s close friend, LS, testified that

Appellant fondled her breast on one occasion.    An Air Force

Office of Special Investigations (AFOSI) agent and a forensic

expert testified that Appellant’s semen was found on the carpet

in an area where, according to CM, Appellant ejaculated

following one of their sexual encounters.

     Immediately before CM moved in with Appellant, her parents

forced her to spend approximately one and a half to two months

at a lock-down facility called Lakeside Behavioral Health System

(Lakeside).   Appellant and his civilian defense counsel have

submitted conflicting affidavits concerning what Appellant and


                                  3
United States v. Green, No. 09-0523/AF


his wife had told the civilian defense counsel prior to trial

about Lakeside.   Appellant’s affidavit claims that he told his

civilian defense counsel that Lakeside was a psychiatric

facility.   The civilian defense counsel’s affidavit states that

Appellant and his wife never told her that Lakeside is a

psychiatric facility.   The CCA did not resolve the conflicting

affidavits, instead finding that Appellant could not demonstrate

prejudice from any deficiency in his counsel’s performance

regardless of whether the performance was actually deficient.

Green, 2009 CCA LEXIS 54, at *8, 2009 WL 367577, at *3.     The

record does not disclose whether any mental health records

relating to CM exist at Lakeside.

                                III.

     Appellant argues that he received ineffective assistance of

counsel because his civilian defense counsel did not seek to

subpoena CM’s mental health records from Lakeside.

     In order to prevail on a claim of ineffective assistance of

counsel, an appellant must demonstrate both (1) that his

counsel’s performance was deficient, and (2) that this

deficiency resulted in prejudice.      Strickland, 466 U.S. at 687;

United States v. Mazza, 67 M.J. 470, 474 (C.A.A.F. 2009)

(citations omitted).    We may address these prongs in any order

we choose, because Appellant must meet both in order to prevail.

Strickland, 466 U.S. at 697; Loving v. United States, 68 M.J. 1,


                                  4
United States v. Green, No. 09-0523/AF


6 (C.A.A.F. 2009).   We review ineffective assistance of counsel

claims de novo.    United States v. Anderson, 55 M.J. 198, 201

(C.A.A.F. 2001); United States v. Wiley, 47 M.J. 158, 159

(C.A.A.F. 1997).

     In order to show prejudice under Strickland, “[t]he

defendant 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.”   Strickland, 466 U.S. at 698; Loving, 68 M.J. at 6-7.

     The civilian defense counsel conducted a thorough cross-

examination of CM in which she elicited the following

information:   CM had spent between a month and a half to two

months at a lock-down facility for children with drug and

alcohol abuse problems or with significant behavioral problems;

CM talked with her father every day and never told him about the

alleged sexual abuse; CM initially said that she had sex with

Appellant ten times a week, but she later reduced this number to

two to three times a week; CM stated at the Article 32, UCMJ, 10

U.S.C. § 832 (2006), hearing that Appellant had not punched her

in the face with his fist, even though she later testified on

direct examination that he had punched her with his fist; CM had

regular fights with Appellant and his wife because they grounded

her too much for having bad grades and not doing work around the


                                  5
United States v. Green, No. 09-0523/AF


house; and CM enjoyed her life with Appellant and his wife more

than her life with her parents.     Most notably, CM admitted

during cross-examination that she had told someone that she had

never had sexual intercourse or oral sex with Appellant and that

Appellant had never touched her in any sexual sort of way.

     Appellant’s attorney was successful in obtaining his

acquittal of seven of the thirteen specifications of which he

was charged, and two of his convictions excepted the language

charging that he committed offenses “on divers occasions.”

Appellant was not convicted of any offense for which CM’s

testimony was the only evidence.1     For example, CM testified that

Appellant had sexual intercourse with her twice a week for a

year, but the members acquitted Appellant of the carnal

knowledge charge.   CM testified that she and Appellant had

performed oral sex on each other five to six times; yet the

members excepted “on divers occasions” from the specification

and specifically noted that the conviction was based on the

alleged instance of sodomy where AFOSI later identified semen on

the carpet.   CM testified to many occasions on which Appellant

had committed indecent acts with her, but the members convicted

Appellant of only two of the five specifications alleged.       Both

of these specifications stemmed from an incident in which


1
  In reaching this conclusion, we did not consider the post-trial
statements of the court members to that effect.

                                  6
United States v. Green, No. 09-0523/AF


Appellant grabbed CM’s and LS’s breasts when they were all in

the room together.   Appellant was charged with four

specifications of assaulting CM, yet the members only convicted

Appellant of three of these.   LS testified that she witnessed

the acts that resulted in two of these assault convictions, and

the third was based on Appellant choking CM, which was

corroborated by the AFOSI finding fluids on the floor where CM

testified that she vomited during the choking episode.

     We do not believe that CM’s mental health records, if any

existed, would have further discredited her to the extent that

there is a reasonable probability that Appellant would have been

acquitted of additional specifications.

                                IV.

     In determining that there was no reasonable probability

that the result of the trial would have been different if CM’s

psychiatric records had existed and had been introduced, the CCA

noted that the court members had advised counsel in post-trial

discussions that they had only convicted Appellant of offenses

for which there was corroborating evidence.   Green, 2009 CCA

LEXIS 54, at *8, 2009 WL 367577, at *3.   Courts in the military

justice system may not consider members’ testimony about their

deliberative processes.   Military Rule of Evidence (M.R.E.) 509;

M.R.E. 606(b); see United States v. Matthews, 68 M.J. 29

(C.A.A.F. 2009).   However, this error did not affect the factual


                                 7
United States v. Green, No. 09-0523/AF


sufficiency review, and only affected the CCA’s legal analysis

to the extent that the CCA determined that Appellant had not met

the prejudice prong of Strickland.   This error does not affect

our legal analysis because we review ineffective assistance of

counsel claims de novo.

     In light of our decision that Appellant suffered no

prejudice from the failure of his counsel to obtain CM’s mental

health records, we need not determine whether the CCA erred in

not granting Appellant’s request to subpoena those records on

appellate review.   Appellant sought to obtain these records to

support his argument that he received ineffective assistance of

counsel.   As Appellant did not demonstrate prejudice under

Strickland, the issue of whether the CCA erred in not

subpoenaing these records is moot.

                                V.

     The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




                                 8
