UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                          KERN, ALDYKIEWICZ, and MARTIN
                              Appellate Military Judges

                            UNITED STATES, Appellee
                                         v.
                           Specialist DAVID M. DERJAN
                           United States Army, Appellant

                                   ARMY 20101039

                             Headquarters, Fort Riley
                         Susan K. Arnold, Military Judge
          Lieutenant Colonel Robert A. Borcherding, Staff Judge Advocate

For Appellant: Captain Stephen J. Rueter, JA; Mr. David A. Wagner, Esquire (on
brief).

For Appellee: Lieutenant Colonel Amber J. Roach, JA; Major Catherine L. Brantley,
JA; Captain Jessica J. Morales, JA (on brief).

                                    31 January 2013
                               ---------------------------------
                               SUMMARY DISPOSITION
                               ---------------------------------

Per Curiam:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of failing to go to his appointed place of duty and failing to
obey a lawful order, in violation of Articles 86 and 92, Uniform Code of Military
Justice, 10 U.S.C. §§ 886, 892 (2006) [hereinafter UCMJ]. Contrary to his pleas, a
panel of officer and enlisted members convicted appellant of failing to obey a lawful
order and aggravated assault with a loaded firearm, in violation of Articles 92 and
128, UCMJ. The panel sentenced appellant to a bad-conduct discharge, confinement
for five years, forfeiture of all pay and allowances, and reduction to the grade of
E-1. The convening authority approved the sentence and credited appellant with 102
days of confinement credit.

       Appellant raises two assignments of error for our review under Article 66,
UCMJ. In his first assignment of error, appellant asserts, inter alia, that his trial
defense counsel provided ineffective assistance by committing a “multitude of
serious errors that significantly contributed to the appellant receiving a harsh
sentence.” In his second assignment of error, appellant alleges that, in the face of a
DERJAN—ARMY 20101039

discovery request, the trial counsel failed to disclose derogatory information on a
government witness. These assignments of error merit discussion but not relief.

       Ineffective assistance of counsel allegations are reviewed by this court de
novo. United States v. Gooch, 69 M.J. 353, 362 (C.A.A.F. 2011). We review these
allegations using a two-prong test, first determining if counsel’s performance was
deficient and then whether the deficient performance prejudiced appellant.
Strickland v. Washington, 466 U.S. 668 (1984). Appellant sets forth numerous
arguments in support of his ineffective assistance of counsel claim, of which we will
comment on two: (1) that his trial defense counsel failed to object to SP’s testimony
that appellant sought to purchase drugs for recreational use on the day of the
incident involving the aggravated assault; and (2) that his trial defense counsel
failed to object to SP’s testimony that appellant had a drug addiction.

       We find no deficiency with the trial defense counsel’s failure to object to
testimony concerning appellant’s purchase of drugs and alleged addiction.
Furthermore, we find no prejudice to appellant in either the findings or the
sentencing stages as a result of his defense counsel’s tactical decision to allow the
testimony at issue. It was clearly the defense counsel’s theory to discredit SP. The
defense sought to paint her as a drug addict, someone capable of stealing drugs, and
someone capable of using the knife that was found in her possession. In doing so,
the defense bolstered their argument that appellant only pointed a gun at SP in self-
defense. The avenue for adducing evidence regarding the victim’s own drug
addiction and use was through her testimony concerning her instigating appellant’s
drug purchase, and her concerted conduct with appellant in purchasing and then
using the drugs to feed both of their addictions. An objection to SP’s testimony
would have put at risk those negative impressions of SP, and consequently,
appellant’s theory of self-defense.

        We further find neither deficient performance nor prejudice with regard to
trial defense counsel’s decision not to try to limit, during presentencing, the prior
testimony about appellant’s acquisition of drugs and his drug addiction. It is readily
apparent from the record that the defense’s theory on sentencing was that appellant
was addicted to prescription drugs and needed help. Appellant himself stated in his
unsworn statement that he became addicted to pain killers after a motorcycle
accident and that this addiction led to his poor decision making and misconduct.
Therefore, we reject appellant’s claim of ineffective assistance of counsel.

       In his second assignment of error, appellant claims that the government failed
to disclose that appellant’s supervisor, who testified negatively regarding appellant
at sentencing, “was at that time attending treatment sessions for alcohol and drug
abuse stemming from a drunk driving conviction and an assault of a female service
member. . . .” “Appellant bears the burden of proving that the Government withheld
discoverable evidence.” United States v. Guthrie, 53 M.J. 103, 105 (C.A.A.F. 2000).

                                          2
DERJAN—ARMY 20101039

In an affidavit appended to his brief, appellant alludes to the existence of the
aforementioned derogatory information and having discussed it with his trial defense
counsel. Appellant has not provided any substantiation as to the existence, much
less the truth, of this derogatory information, nor has he shown that any such
information was in the possession of the government. At first glance, a review of
appellant’s official affidavit could lead one to conclude that the alleged discovery
violation is confirmed by appellant’s trial defense counsel—suggesting, at a
minimum, that this court further inquire into said allegation. Upon closer
examination, however, the affidavit reveals nothing more than an unsupported,
unverified allegation made by appellant which he allegedly discussed with his
defense counsel and which his defense counsel acknowledged, if true, would
constitute error.

       We hold appellant has not made a colorable showing that the alleged
derogatory information at issue exists, and we conclude that no further inquiry is
warranted. See United States v. Campbell, 57 MJ 134, 138 (C.A.A.F. 2002).
Furthermore, given the serious nature of the aggravated assault charge and its
occurrence in the barracks, we are convinced that even if such information did exist,
there is no reasonable probability it would have affected appellant’s sentence. Id.

                                  CONCLUSION

      On consideration of the entire record, appellant’s assigned errors, and the
matters personally raised by appellant pursuant to United States v. Grostefon, 12
M.J. 431 (C.M.A. 1982), we hold the findings of guilty and sentence as approved by
the convening authority correct in law and fact. Accordingly, the findings of guilty
and the sentence are AFFIRMED.


                                       FOR
                                        FORTHE
                                            THECOURT:
                                                COURT:




                                        MALCOLMH.
                                       MALCOLM      H.SQUIRES,
                                                       SQUIRES,JR.
                                                                JR.
                                        Clerkof
                                       Clerk  ofCourt
                                                 Court




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