

   
   
   
   U.S. v. Thompson



UNITED STATES, Appellee
v.
Nicky A. THOMPSON, Master Sergeant
U.S. Army, Appellant
 
No. 99-0656
Crim. App. No. 9600798
 
United States Court of Appeals for the Armed
Forces
Argued May 3, 2000
Decided on August 31, 2000
SULLIVAN, J., delivered the opinion of the
Court, in which CRAWFORD, C.J., GIERKE, and EFFRON, JJ., and COX, S.J.,
joined.
Counsel
For Appellant: William E. Cassara (argued);
Captain
Joshua E. Braunstein (on brief).
For Appellee: Captain William J. Nelson
(argued); Colonel Russell S. Estey, Lieutenant Colonel Eugene R. Milhizer,
and Captain Mary E. Braisted (on brief).
Military Judge: Keith H. Hodges
 
 
This opinion is subject
to editorial correction before publication.
 
 
Judge SULLIVAN delivered the opinion of the
Court.
During the spring of 1996, appellant was tried
by a general court-martial composed of officer and enlisted members at
Fort Hood, Texas. Consistent with his pleas, he was found guilty of making
a false official statement, assault and battery, fraternization, and adultery,
in violation of Articles 107, 128, and 134, Uniform Code of Military Justice,
10 USC §§ 907, 928, and 934, respectively. Contrary to his pleas,
he was found guilty of rape and indecent assault, in violation of Articles
128 and 134, UCMJ, 10 USC §§ 928 and 934, respectively. On May
1, 1996, he was sentenced to a dishonorable discharge, 9 years confinement,
total forfeitures, and reduction to pay grade E-1. The convening authority
on January 10, 1997, approved the adjudged sentence. On April 2, 1999,
the Court of Criminal Appeals affirmed the adjudged findings of guilty
and the sentence in an unpublished opinion, and on July 14, 1999, it reconsidered
its decision but again affirmed.
On February 2, 2000, this Court granted review
on the following two issues of law:



I. WHETHER THE ARMY COURT ERRED WHEN IT RULED
APPELLANT WAS NOT DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL, DESPITE UNCONTESTED
EVIDENCE OF THIS COUNSELS: (1) FAILING TO INTERVIEW WITNESSES, (2) FAILING
TO CROSS-EXAMINE WITNESSES, (3) FAILING TO AGREE ON A DEFENSE STRATEGY,
(4) ENTERING INTO AN ILLEGAL SUB ROSA AGREEMENT WITH THE TRIAL COUNSEL,
(5) ENCOURAGING APPELLANT TO ENTER PLEAS INCONSISTENT WITH APPELLANTS
BEST INTERESTS AND THE DEFENSE STRATEGY, AND (6) PROCEEDING TO TRIAL DESPITE
THE LACK OF PREPARATION.
II. WHETHER THE MILITARY JUDGE ERRED BY ABANDONING
HIS IMPARTIAL ROLE AND BECOMING A PARTISAN ADOCATE FOR THE GOVERNMENT WHICH
DENIED APPELLANT A FAIR TRIAL.



We hold that this case should be returned to the
Court of Criminal Appeals to order affidavits from both civilian and military
defense counsel or to order a DuBay1/
hearing on the question of ineffective assistance of counsel. See
United States v. Sherman, 51 MJ 73 (1999); United States v. Diaz-Duprey,
51 MJ 168 (1999).
The Court of Criminal Appeals made the following
findings of fact pertinent to the first granted issue. It said:



Appellant was married, the First Sergeant
of a Military Police Company, had seventeen-plus years of active duty service,
and a general technical (intelligence) test score of 128. His guilty pleas
established that on three occasions, both in garrison and while deployed
with his unit to Honduras, he sexually harassed two women under his supervision
by improperly touching them.
A separate incident, involving a Specialist
(SPC) R, led to appellant pleading guilty to making a false statement,
fraternizing and adultery. However, he denied raping SPC R or committing
any indecent assault upon her.
The essence of appellants defense was to admit
to lecherous activity toward vulnerable women, but deny that his conquest
of SPC R was by force. The evidence showed that SPC R was highly intoxicated
on the night in question and that appellant manipulated circumstances so
that she would accept his offer of a ride to the barracks. Once in his
car, and after appellant suggested going to get something to eat, he drove
SPC R around the area, ending up on a secluded gravel road where he consummated
sex with her.
In his statement to a Criminal Investigation
Command agent, appellant denied having sex with SPC R. Deoxyribonucleic
acid (DNA), and other forms of admissible evidence revealed that claim
to be false. The evidence also showed that collateral claims made by appellant
in the statement were false. Bruising on SPC R was consistent with her
story and supportive of forced sexual activity. Appellant did not testify
in his own defense.
Appellant was represented at trial by a civilian
defense counsel, Mr. B., and detailed military trial defense counsel, Captain
(CPT) P. During the course of presenting appellants defense, counsel suffered
adverse rulings by the military judge on several strenuously contested
matters. The military judge also continuously injected himself into the
proceedings. This included taking over questioning from counsel, shutting
off presentations in the absence of objection, expressions of impatience
and exasperation with counsel, and the making of condescending or berating
comments about counsels performance. While neither side was spared this
conduct, CPT P bore the brunt of the judges comments and his tendency
to over control the proceedings.
Out of apparent frustration, CPT P increasingly
resisted or questioned the military judges actions and rulings. Not surprisingly,
this generated several contentious exchanges with the judge. During those
exchanges, CPT P repeatedly alluded to being "ineffective" or being forced
into providing ineffective representation. She also claimed that the rulings
rendered the defense unprepared or unable to prepare, and requested continuances
to conduct research. However, when questioned further, CPT P was unable
to specifically quantify her concerns and the military judge granted no
delays. Mr. B. volunteered no comments concerning these statements and
was not asked if they comported with his assessment of the situation.
Ultimately, however, the contentious atmosphere
led Mr. B. to request that the military judge recuse himself from further
participation in the trial. See Rules for Courts-Martial 902(a),
902(b)(1), 905. In discussing this request, he noted that appellant had
expressed concern that the strained relations with the military judge might
ultimately intimidate counsel, causing them to be less aggressive in defending
his interests. However, appellant was not asked to address his concerns
on the record.
When questioned about this, Mr. B. expressed
no reluctance to contend with the military judge. However, when CPT P was
asked her position, the following exchange occurred:
 

MJ: Captain P[], do you believe that Ive
intimidated you?
DC: Sir, I believe that you have done everything
that you can to stop me . . . I will tell you that there is no question
that I will think twice before telling you that [pause] before telling
you [pause] before raising an issue before you because I will be yelled
at. . . . I do feel that my ability to represent [appellant] has been impacted
in this case because youre sitting on the case.
MJ: I think then that you need to investigate,
Captain P[], a new line of work.
 

This development induced the military judge to
draw back and seek a degree of reconciliation with counsel as well as resolution
of the pending motion. In doing so, he address his perception of his duties
with respect to controlling the proceedings, expressed the view that both
sides had been treated equally and then gave assurance that he had only
respect for, and confidence in, CPT Ps abilities and integrity. Notwithstanding
these comments, CPT P reiterated that she "would think twice" in addressing
matters to the judge. However, at no time did CPT P seek to withdraw as
counsel for appellant. . . .



Unpub. op. at 2-4.
Before the Court of Criminal Appeals, appellant
submitted an affidavit supporting his post-trial claim of ineffective assistance
of counsel. It stated:




AFFIDAVIT
I, Nicky A. Thompson, hereby make the following
statement under oath. On 5 October 1995, I learned that I had been accused
of rape. On 6 or 7 October 1995, I contacted Mr. Wilbert Byrd and scheduled
an appointment, and retained him as lead counsel. Mr. Byrds qualifications
included a practice limited to military law, and being retired as the Regional
Defense Counsel for Fort Hood, Texas. Mr. Byrd and I met approximately
once a week in his office discussing developments in the case. Mr. Byrd
was extremely optimistic about the outcome of the case. After Specialist
Ramsey failed two polygraph examinations, Mr. Byrd assured me that the
government would not go forward with the rape charge, as they couldnt
prove it. This was especially true, he said, in light of Spec. Ramseys
numerous inconsistent statements.
I also had military counsel appointed to represent
me, CPT Beth Pacella. I met with my two attorneys sporadically, as they
said there was little or no progress on my case. We never discussed case
strategy, either for trial, or for the Article 32 investigation. Prior
to the Article 32 investigation, I was told that CPT Dexter [trial counsel]
had been in my company area on a number of occasions, interviewing members
of my unit. I told Mr. Byrd about this (he didnt know it,) and on numerous
occasions gave him the names of people in the unit he should interview
in regards [sic] my character, the incident in question, and Spec. Ramseys
reputation for dishonesty. To my knowledge, neither of my attorneys
ever went to my company area, or interviewed any of the witnesses I told
them about. During the post-trial Article 39a session, I found out this
was true, as both my lawyers admitted that they did not interview any of
the alleged "victims." I also found out at this time that neither attorney
had investigated Spec. Ramseys medical condition, or any other facts that
would be relevant to my defense.
Whenever I would ask Mr. Byrd about the witnesses,
he always assured me that the government would not take the rape charge
to trial, so I shouldnt worry. It was only a few days before trial that
Mr. Byrd advised me to plead guilty to several charges. He told me "If
we give the government something, by being honest and accepting responsibility,
the case will go in our favor." Again, the dominant theme was that the
rape charge would not got to trial. During one of these meetings, CPT Dexter
phoned Mr. Byrd while I was in his office. She said that if I would plead
guilty to indecent assault, the government would agree to a pre-trial agreement
for no more than ninety days confinement. I told Mr. Byrd that was difficult
for me to do, because the incident with Spec. Ramsey was consensual. Mr.
Byrd replied that I should not plead guilty to that charge and, therefore,
could not accept the governments offer. I told Mr. Byrd I would take the
ninety days for those charges I was pleading guilty to, but he said it
wouldnt work. Nonetheless, Mr. Byrd did advise me to plead guilty to
several charges I did not believe I was guilty of.
I would also like to point out at this time
that, during pre-trial preparations, I was under prescription medication
for depression. The medication was very strong and, at times, I did not
understand what was going on during the pre-trial and trial stages. I relied
heavily on my defense counsel. Although Mr. Byrd was lead counsel, CPT
Pacella did most of the pre-trial work, and handled most of the trial herself.
It got so bad that Col. Hodges, the military judge, mentioned it both during
the trial and the post trial session. Judge Hodges repeatedly attacked
and admonished CPT Pacella, to the point of where she was close to tears
in court, and in tears out of court. I believe this caused her to be very
apprehensive during the trial.
During the article 32 investigation, Mr.
Byrd was very ill prepared, and did not ask any relevant questions of Spec.
Ramsey. This continued at trial. Whenever I would ask him why, he would
tell me "We dont want to attack the victim." This surprised me, as I told
him she was not the victim. During both proceedings, Mr. Byrd seemed lost
in regards to strategy and the line of questioning. It was obvious that
very little preparation was put into my case. I firmly believe that if
I were not under medication at the time, or if I knew a little more about
the law, I would have realized that at the time.
The last time I met with Mr. Byrd was at the
Fort Hood confinement facility. Mr. Byrd told me "If you raise ineffective
assistance of counsel during the appeals, Ill understand why."
I have read the above statement, and agree
with and understand its contents.
 
 





Nicky A. Thompson
[SSN]









(Emphasis added.)
The Court of Criminal Appeals affirmed the
findings of guilty and the sentence in this case without ordering a responding
affidavit from either civilian or military defense counsel. It found no
defective performance by counsel based on the record before it and no abuse
of discretion in the military judges denial of a recusal motion.
We will address the issues in reverse order.

MILITARY-JUDGE RECUSAL CLAIM
The first issue we will address in this case
is whether the military judge erred when he refused to recuse himself as
requested by the defense. (R. 535, 536, 542) The appellate court below
found that "[t]he record of these proceedings is replete with examples
of indecorum and the failure of the participants to maintain an appropriate
judicial atmosphere. Much of the blame for this breakdown stems from the
military judges inappropriate and intemperate remarks to counsel on the
record and his impatience with their efforts to try their respective cases."
Unpub. op. at 4-5. We note, however, that "critical or disapproving. .
. or even hostile" judicial remarks concerning defense counsel do not require
a judge to recuse himself in the ordinary case. See United States
v. Cooper, 51 MJ 247, 251 (1999). Appellant has not persuaded us that
his case was extraordinary in this regard.
We have examined the record of trial in this
case, in particular the portion of the record complained of by appellant.
(R. 500-542.) They reveal that the military judge became concerned with
military defense counsels repeated statements on the record that she was
"ineffective" and the impact these statements might have on appeal. (R.
500.) He was also aware that military defense counsel formerly worked at
"Defense Appellate Division" and was admittedly knowledgeable in ways of
preserving issues for appeal. (R. 538.) The portion of the record cited
by appellant reflects efforts by the military judge to clarify and remedy
previously asserted defense concerns where admissions of ineffectiveness
were made. (R. 541-542.) While nerves may have become frayed during this
give-and-take between the judge and defense counsel, we do not consider
it extraordinary. See Liteky v. United States, 510 U.S. 540,
555-56 (1994) (ordinary admonishments to counsel made during trial not
disqualify judge).
Admittedly, the defense moved the military
judge to recuse himself under RCM 902, Manual for Courts-Martial, United
States (1995 ed.) ("a military judge shall disqualify himself or herself
in any proceeding in which that military judges impartiality might reasonably
be questioned"). Cf. United States v. Cooper, supra
at 251; United States v. Acosta, 49 MJ 14, 18 (1998). However, such
defense action is but one factor to be considered in determining whether
a reasonable person would conclude that doubt existed as to the impartiality
of the military judge. See United States v. Acosta, supra
at 18. Here, the record also shows that the judge was tough on trial counsel
as well as defense counsel, and he made numerous rulings favorable to the
defense. (R. 479, 735) Furthermore, the military judge expressly disclaimed
any bias against military defense counsel (R. 539) and made substantial
effort to particularly address military defense counsels concerns. Finally,
the record shows repeated statements by defense counsel resisting the military
judges attempts to remedy previously asserted errors in this case. (E.g.,
R. 553-59.) In these circumstances, we conclude that no clear error was
made by the judge in refusing to recuse himself. See United States
v. Cooper, supra.

INEFFECTIVE-ASSISTANCE-OF-COUNSEL CLAIM
The next issue we will address is appellants
post-trial claim that his civilian and military defense counsel provided
him ineffective assistance of counsel. See generally Strickland
v. Washington, 466 U.S. 668, 687 (1984). He submitted a signed affidavit
detailing his counsels deficient conduct and asserting that it prejudiced
his defense in this case. See United States v. Ginn, 47 MJ
236 (1997). The Court of Criminal Appeals accepted this affidavit, but
it did not order an affidavit from either defense counsel prior to its
decision denying appellants post-trial claim. See United States
v. Lewis, 42 MJ 1 (1995).
Appellants affidavit makes several factual
allegations that he offers in support of his claim of ineffective assistance
of counsel. The most serious ones were:
(1) Neither military nor civilian defense counsel
interviewed any witnesses in his unit identified by appellant as capable
of providing testimony on his "character, the incident in question," or
the victims "reputation for dishonesty." They also "did not interview
any of the alleged victims" in this case or investigate the victims
medical condition or "other facts . . . relevant to [his] defense."
(2) Civilian defense counsel advised appellant
"to plead guilty to several charges" which appellant "did not believe"
he "was guilty of."
(3) Civilian defense counsel was "ill-prepared"
for trial "and did not ask any relevant questions of" the alleged victim
as part of a trial strategy admitting guilt that appellant did not accept.
We note that these factual assertions, if true,
would support a justiciable legal claim of ineffective assistance of counsel
under our case law. See United States v. Scott, 24 MJ 186
(1987) (ineffective assistance of counsel existed for failure to interview
potential defense witnesses identified by accused); United States v.
Sherman, 51 MJ 73 (1999) (ineffective assistance of counsel to enter
into illegal sub rosa agreement); United States v. Diaz-Duprey,
51 MJ 168 (1999) (ineffective assistance of counsel to admit guilt contrary
to appellants wishes). There remain too many factual questions concerning
the effectiveness of their performance, unresolved on the record of trial,
for us to summarily affirm this case. 2/
See
United States v. Sherman, supra at 76. Therefore, in our
view, it is necessary that affidavits be sought from both defense counsel
on appellants factual allegations. See United States v. Lewis,
supra; see generally United States v. Ginn,
supra.
The decision of the United States Army Court
of Criminal Appeals, as modified by the order of July 14, 1999, is set
aside. The record of trial is returned to the Judge Advocate General of
the Army for remand to that court, which may order affidavits from defense
counsel and then decide whether to order a DuBay hearing, or the
court may order a DuBay hearing. Article 67, UCMJ, 10 USC §
867 (1994), will apply after the court below renders a final decision.
FOOTNOTES:
1/ United States v.
DuBay, 17 USCMA 147, 37 CMR 411 (1967).
2/ We
have considered the post-trial session in this case held to address several
defense claims, including one that it was denied requested discovery by
the Government. (R. 990-1064) (App. Exh. 49-51) It did not address the
question of defense counsels effectiveness, and we do not consider it
adequate to resolve appellants particular post-trial complaints on this
basis. (R. 1042-43)


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