

   
   
   
   U.S. v. Paaluhi



UNITED STATES, Appellee
v.
Keith R. PAALUHI, Gunnery Sergeant
U.S. Marine Corps, Appellant
 
No. 99-0844
Crim. App. No. 97-0321
 
United States Court of Appeals for the Armed
Forces
Argued March 2, 2000
Decided September 25, 2000
SULLIVAN, J., delivered the opinion of the
Court, in which CRAWFORD, C.J., and EFFRON, J., joined. GIERKE, J., filed
an opinion concurring in the result, in which COX, S.J., joined.
Counsel
For Appellant: Lieutenant M. Eric Eversole,
JAGC, USNR (argued); Lieutenant Frank M. Doherty, JAGC, USNR (on
brief).
For Appellee: Major Michael D. Tencate,
USMC (argued); Colonel Kevin M. Sandkuhler, USMC, and Commander
Eugene E. Irvin, JAGC, USN (on brief).
Military Judge: W. P. Hollerich
 
 


This opinion is subject
to editorial correction before publication.
 
 

Judge SULLIVAN delivered the opinion of the
Court.
During August of 1996, appellant was tried
by a general court-martial with officer members at Marine Corps Base Hawaii,
Kaneohe Bay, Hawaii. Contrary to his pleas, he was found guilty of rape,
forcible sodomy, and committing indecent acts on a child, in violation
of Articles 120, 125, and 134, Uniform Code of Military Justice, 10 USC
§§ 920, 925, and 934, respectively. On August 17, 1996, he was
sentenced to a dishonorable discharge, confinement for 10 years, and reduction
to E-1. The convening authority approved this sentence on January 15, 1997,
and the United States Navy-Marine Corps Court of Criminal Appeals affirmed.
United States v. Paaluhi, 50 MJ 782 (N.M.Ct.Crim.App. 1999).
On October 27, 1999, this Court granted review
on the following issues:




I
WHETHER THE LOWER COURT ERRED WHEN IT CONCLUDED
THAT THE SUPREME COURTS RECOGNITION OF A FEDERAL PSYCHOTHERAPIST-PATIENT
PRIVILEGE DOES NOT APPLY TO THE MILITARY.

II
WHETHER THE LOWER COURT ERRED WHEN IT FOUND
EFFECTIVE ASSISTANCE OF COUNSEL WHERE TRIAL DEFENSE COUNSEL ADVISED APPELLANT
THAT HIS COMMUNICATIONS WITH A PSYCHOTHERAPIST WOULD BE PRIVILEGED UNDER
JAFFEE V. REDMOND.

III
WHEN A RECORDED STATEMENT IS ADMITTED INTO
EVIDENCE, SHOULD THE MEMBERS BE ALLOWED TO LISTEN OR VIEW THE RECORDING
AGAIN DURING THEIR CLOSED DELIBERATIONS? DID THE LOWER COURT ERR WHEN IT
FOUND THAT IT WAS PERMISSIBLE FOR THE MILITARY JUDGE TO ALLOW THE MEMBERS
TO VIEW A VIDEOTAPED INTERVIEW OF THE ALLEGED VICTIM DURING DELIBERATIONS.



We hold that appellants statements to a Navy
psychologist were not protected by the federal civilian psychotherapist-patient
privilege. See United States v. Rodriguez, No. 99-0224, ___
MJ ___ (Sept. 25, 2000). Nevertheless, we conclude that he received ineffective
assistance of counsel when his military defense counsel advised him to
speak to this government psychologist who had not been officially detailed
to assist the defense. 1 See
United States v. Toledo, 25 MJ 270, 275-76 (CMA 1987), affd
on reconsideration, 26 MJ 104, 105 (CMA 1988).
The record of trial in this case shows that
on March 31, 1996, the victim made an entry in her journal recounting how
she felt after having just had sexual relations with her father, the appellant.
(Prosecution Exhibit 4) On April 3, 1996, the victims mother read the
journal and reported this situation to Ms. Kimberly Holmes, a child sexual
abuse investigator with the Hawaii Department of Human Services, Child
Protective Services. (R. 115-18) Ms. Holmes contacted the Naval Criminal
Investigative Service (NCIS). (R. 124, 161) NCIS Special Agent Deborah
Russell arranged for an interview of the victim to take place the next
day at the Child Advocacy Center, a facility that had rooms appropriate
for the interview of children in a non-threatening environment. (R. 124-25,
174)
On April 4, 1996, the victim, her mother, and
her younger sister traveled to the Child Advocacy Center, where they were
introduced to Ms. Holmes, Agent Russell, and another NCIS special agent.
(R. 127-28, 174-75) Ms. Holmes interviewed the victim in a private room,
telling the victim that the interview was being watched and videotaped
by Agent Russell and the other NCIS special agent, who were located behind
a two-way mirror. (R. 127, 175) Ms. Holmes subsequently referred the victim
to Mrs. Lynn Kux, a clinical social worker, who met with the victim approximately
10 times between May 1 and July 22, 1996. (R. 337, 354)
Appellant was placed in pretrial confinement
on April 5, 1996. (Charge Sheet; R. 27) Captain (Capt) K was detailed as
defense counsel. (R. 3, 25, 392, 398) During pretrial preparation of appellants
case, appellants defense counsel contacted Lieutenant (Lt) Suzanne Hill,
a Navy Medical Service Corps officer and clinical psychologist, who was
assigned to a local military medical clinic. (R. 369, 399, 421, 424) Capt
K testified that, at the time he contacted Lt Hill, he anticipated presenting
only a case in sentencing and was looking for an expert to provide testimony
favorable to appellant. (R. 399) Without requesting that the convening
authority or military judge assign Lt Hill to assist in appellants defense,
defense counsel convinced Lt Hill to meet with and evaluate appellant and
he advised appellant to cooperate with Lt Hill. (R. 293-95, 399-400)
On May 31, 1996, Lt Hill faxed a document entitled
"Initial Personal History Questionnaire" to appellant in the brig. (Appellate
Exhibit 15; R. 386) Included with the questionnaire was a "Statement of
Understanding Regarding Limits of Confidentiality within Military Mental
Health Departments," which indicated that disclosures related to "suspected
child abuse" must be turned over to "medical, legal or other authorities."
(Appellate Exhibit 15; R. 369 ff., 388, 393 ff.) Lt Hill ensured that appellant
had read and signed the Statement of Understanding before she commenced
her initial interview of appellant on June 5, 1996. (R. 369 ff., 388, 393
ff.) During their meetings on June 5 and 26 and on July 5 and 30, 1996,
appellant told Lt Hill that he had been having sex with the victim for
the last 5 years, but did not give specific details. (R. 372, 425) The
military judge denied appellants pretrial motion to suppress all of his
statements to Lt Hill. (R. 407) Lt Hill testified at appellants court-martial
that appellant told her that he had been having sex with the victim for
the last 5 years. (R. 425)

___ ___ ___
I
We first must consider whether evidence of
appellants statements to Lt Hill, a Navy clinical psychologist, was barred
by the psychotherapist-patient privilege recognized by the Supreme Court
in Jaffee v. Redmond, 518 U.S. 1 (1996). In this Courts decision
today in United States v. Rodriguez, supra, we held that
communications made by a member of the military to a psychotherapist on
or before November 1, 1999, were not privileged on this basis as a matter
of military law. Appellants incriminating statements to Lt Hill were made
prior to this date, i.e., during June and July of 1996. Accordingly,
they were not inadmissible because of the psychotherapist-patient privilege
and the military judges denial of the defense motion to suppress appellants
pretrial statements on this basis was correct. (R. 407, 514-17)

II
Appellant next argues that his admissions to
Lt Hill were inadmissible because they were made as a result of ineffective
assistance of his defense counsel. This Court reviews ineffective-assistance-of-counsel
claims de novo. See United States v. Scott, 24 MJ
186, 188 (CMA 1987). In order to prevail upon an ineffective-assistance-of-counsel
claim, appellant must demonstrate that his counsels performance was deficient,
i.e., that he was not functioning as counsel, and that this deficiency
seriously prejudiced his defense. See Strickland v. Washington,
466 U.S. 668, 687 (1984).
There is no dispute that Capt K failed to have
Lt Hill assigned to the defense team, a requirement for confidentiality
under military attorney-client-privilege law. (R. 294, 304, 306, 401, 405-07)
See United States v. Toledo, 25 MJ at 275-76, affd on
reconsideration, 26 MJ at 106; RCM 703(d); Mil. R. Evid. 502(a), Manual
for Courts-Martial, United States (1995 ed.). Moreover, he sent his client
to this government psychologist on June 5, 1996 (8 days before the Supreme
Court decision in Jaffee v. Redmond, supra), when there was
no psychotherapist-patient privilege under military law. (R. 401) Finally,
Capt K testified that his understanding of the law concerning the confidentiality
of his clients communications was erroneous. (R. 294, 401) Nevertheless,
the military judge found that there was no ineffective assistance of counsel
because Capt K had "a very reasonable tactical basis" and "a very viable
basis" for his actions. (R. 306-07)
The military judge explained his tactical-decision
rationale as follows:



Now there is before the court a defense motion
to suppress all of the statements made by the defendant to Lieutenant Hill
in the course of her various meetings with the defendant. That motion to
suppress is denied in its entirety. Now in this connection, I find,
that there was neither any doctor-patient privilege nor any attorney-client
privilege that existed between the defendant and Lieutenant Hill at the
time of these interviews and these statements. In this connection,
I simply find the Toledo [sic] to be factually indistinguishable from the
case at bar in any meaningful sense of the word, and I think its really
the controlling case.
With regard to the issue of the claim of ineffective
assistance of counsel in this connection, I find that there was no ineffective
assistance of counsel and that counsel acted in a competent and professional
manner. Of course, in judging the standard of performance and whether or
not the counsel's performance was deficient in any way, it is necessary
to judge the facts and circumstances as they were known to the counsel
at the time of the conduct. In this connection, I think its clear from
the testimony and also from the representations of counsel at earlier stages
of these proceedings, that in reality for much of the time that this case
was pending, it was the intention and strategy of the defense to negotiate
a plea-bargain on behalf of the accused that would involve some sort of
negotiated plea of guilty accompanied by a sentencing hearing. And
its in that context, I find, that the defense counsel initially contacted
Lieutenant Hill with a view toward trying to arrange for her sentencing
testimony. Clearly, the focus of Captain Ks strategy in contacting Lieutenant
Hill at all times has been to build a persuasive and effective sentencing
case on behalf of the defendant. Under the circumstances, of course, that
sort of strategy presupposes that it is the intention and strategy of the
defense to enter a plea of guilty to substantive charges that are alleged
on the charge sheet. I find that that was in fact the intention and strategy
of the defense at the time, and under the circumstances, of course, if
the accused was planning on a judicial confession in open court of his
guilt, then pretty clearly the defense would have little reason to be concerned
about whether or not Lieutenant Hill would be in a position to make disclosures
of these statements to other individuals. So I find that counsels performance
was not deficient within the meaning of Strickland v. Washington, and for
that reason, I find that defendant was not denied the effective assistance
of counsel in this case.



(R. 407-08 (emphasis added)).
We cannot agree with the military judges assessment
of defense counsels performance. See Strickland v. Washington,
supra at 698-99 (no dispute tactical decision made). Admittedly,
defense counsel, in seeking favorable sentencing evidence, effectively
advised appellant to confess to committing the charged offenses. See
Toro v. Fairman, 940 F.2d 1065, 1068-69 (7th Cir. 1991);
see generally Huckelbury v. Dugger, 847 F.2d 732 (11th
Cir. 1988). However, it further shows that he did so without awareness
of the local Navy Medical Departments limited confidentiality policy and
because he erroneously believed that their communications would be protected
under the attorney-client privilege. (R. 393, 401) Cf. Smith
v. Rogerson, 171 F.3d 569, 572-73 (8th Cir. 1999) (not ineffective
assistance to advise defendant to make statement to police where so much
other damaging evidence against him). Furthermore, the record shows that
defense counsel erroneously failed to take the necessary steps to protect
these statements by having Lt Hill assigned to the defense team as required
by military attorney-client-privilege law. See United States
v. Toledo, supra. (R. 398-401) In our view, this record clearly
shows deficient attorney performance, not reasonable defense tactics. Cf.
United States v. Thompson, 51 MJ 431, 435-36 (1999) (defense counsel
made reasonable tactical decision not to have his client speak to government
psychotherapist because of self-incrimination problems).
To support the second prong of Strickland
v. Washington, supra, appellant must show that there "is a reasonable
probability that, absent the errors, the factfinder would have had a reasonable
doubt respecting guilt." Strickland v. Washington, 466 U.S. at 695.
The lower appellate court resolved appellants ineffective-assistance-of-counsel
claim on the alternative grounds that there was no prejudice, stating:



We find that even if Captain [K]s performance
was found deficient, his error was not so serious as to have deprived the
appellant of a fair trial: a trial whose result is reliable. Without LT
Hills testimony, the Governments evidence was nonetheless overwhelming
and established the appellants guilt beyond a reasonable doubt. The taped
interview of [N] and the testimony of Mrs. Kux were simply devastating.
We find no reasonable probability that, but for counsels unprofessional
errors, the result of the proceeding would have been different.



50 MJ at 789.
However, a defendants confession is usually
considered the most devastating evidence. (Here it amounted to a confession
of sex with his daughter for 5 years.) See Arizona v. Fulminante,
499 U.S. 279, 296 (1991). Moreover, we disagree with the lower courts
characterization of the other evidence in this case as "overwhelming" and
"devastating." Cf. Still v. Lockhart, 915 F.2d 342, 344 (8th
Cir. 1990).
The Governments case, absent evidence of appellants
"confession," consisted of the victims videotaped interview and Mrs. Kuxs
testimony as to the victims out-of-court statements. (Appellate Exhibit
VII; R. 312, 336-60) The victims statement was made outside of court,
and she was not subject to cross-examination by the defense. Mrs. Kux met
with the victim about 10 times between May 1 and July 22, 1996, for one
hour each session. (R. 337, 354) Her testimony served to corroborate the
victims out-of-court statements (R. 349, 351) but, as such, it cannot
be characterized as "overwhelming" and "devastating." In our view, there
is a reasonable probability that without admission of appellants inculpatory
statements to Lt Hill, the members would have had a reasonable doubt with
respect to appellants guilt.
The decision of the United States Navy-Marine
Corps Court of Criminal Appeals is reversed. The findings of guilty and
the sentence are set aside. The record of trial is returned to the Judge
Advocate General of the Navy. A rehearing may be ordered.
FOOTNOTE:
1 Issue III need not be answered
at this time.


GIERKE, Judge, with whom COX, Senior Judge,
joins (concurring in the result):
I would resolve this case on Issue I. For the
reasons set out in my dissent in United States v. Rodriguez, No.
99-0224, ___ MJ ___, ___ (Sept. 25, 2000), I would hold that the military
judge erred by admitting appellants admissions to Lt Hill. Because I believe
that appellants conversations with Lt Hill should have been protected
as privileged communications, I cannot join in holding that appellants
defense counsel was ineffective for permitting him to talk to LT Hill.


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