UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before
BURTON, RODRIGUEZ, and FLEMING
Appellate Military Judges

UNITED STATES, Appellee
Vv.
Specialist EDWARD GARNER
United States Army, Appellant

ARMY 20180563

Headquarters, U.S. Army Combined Arms Support Command
Andrew J. Glass and Daniel G. Brookhart, Military Judges
Colonel James D. Levine II, Staff Judge Advocate

For Appellant: Colonel Elizabeth G. Marotta, JA; Lieutenant Colonel Tiffany D.
Pond, JA; Captain Paul T. Shirk, JA; Captain Joseph C. Borland, JA (on brief).

For Appellee: Colonel Steven P. Haight, JA; Lieutenant Colonel Wayne H.
Williams, JA; Major Craig Schapira, JA; Captain Brian Jones, JA (on brief).

19 February 2020

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.
RODRIGUEZ, Judge:

Appellant, then thirty-seven years old, had sexual intercourse on multiple
occasions with a fourteen-year-old girl.! On appeal, appellant claims the military
judge abused his discretion in denying appellant’s motion to suppress his statement

 

! A military judge sitting as a general court-martial convicted appellant, contrary to
his pleas, of one specification of sexual abuse of a child and seven specifications of
sexual assault of a child over the age of twelve but under the age of sixteen, in
violation of Article 120b, Uniform Code of Military Justice, 10 U.S.C. § 920b
[UCMJ]. The military judge sentenced appellant to a dishonorable discharge,
confinement for four years, and reduction to the grade of E-1. The convening
authority approved the sentence as adjudged and credited appellant with 211 days
against his sentence to confinement.
GARNER—ARMY 20189563

to law enforcement because he invoked his right to counsel and his statement was
involuntary. Appellant further claims his trial defense counsel were ineffective “due
to their failure to call [appellant’s] mental health counselor to testify to his mental
state” prior to making his statement to law enforcement.” We disagree with both
assertions and will briefly discuss.

LAW AND ANALYSIS
A. Invocation of Right to Counsel and Voluntariness

We find appellant did not invoke his Sixth Amendment right to counsel during
his interview with law enforcement and his statement that followed was voluntary.
Concerning appellant’s right to counsel, we note law enforcement informed
appellant of his right to speak to an attorney before, during, or after his interview
with Army Criminal Investigation Command (CID). Appellant unambiguously stated
that he would like to wait until after his law enforcement interview to speak to an
attorney. See Davis v. United States, 512 U.S. 452, 459 (1994). Any reasonable
officer would have viewed appellant’s statement as a waiver of his right to counsel,
which was confirmed when appellant signed a rights waiver form. See id. Thus, we
find this was not a ground for suppression of appellant’s statement.

In regards to voluntariness, we assessed the totality of all the surrounding
circumstances, including appellant’s characteristics and the details of the interview,
and find appellant’s will was not overborne. See United States v. Freeman, 65 M.J.
451, 453 (C.A.A.F. 2008). Further, appellant’s statement was the “product of [his]
essentially free and unconstrained choice,” highlighted by his statement that he
would first like to proceed with the interview at CID before speaking to an attorney.
See Schneckloth v. Bustamonte, 412 U.S. 218, 225-26 (1973).

 

? Appellant personally raised this claim pursuant to United States v. Grostefon, 12
M.J. 431 (C.M.A. 1982). Also pursuant to Grostefon, appellant argues the military
judge abused his discretion by admitting Mil. R. Evid. 412 testimony without
holding a closed hearing or performing a Mil. R. Evid. 403 balancing test.
Specifically, the victim, MD, testified that she was a virgin before appellant had sex
with her. The defense objected to this testimony. We find the military judge erred
in not holding a closed Mil. R. Evid. 412 hearing regarding the admissibility of this
testimony. See United States v. Sanchez, 44 M.J. 174, 178 (C.A.A.F. 1996) (holding
Mil. R. Evid. 412 is also designed to preclude introduction of evidence of a victim’s
chastity). However, we find appellant was not prejudiced as result of this error.
GARNER—ARMY 20189563
B. Ineffective Assistance of Counsel

Appellant claims his trial defense counsel were ineffective for not calling his
mental health counselor to testify regarding his mental state during his CID
interview. We ordered affidavits from appellant’s trial defense counsel to explain
why they did not present such evidence. United States v. Garner, ARMY 20189563
(Army Ct. Crim. App. 21 Jan. 2020) (order). In response to this court’s order, one
of appellant’s trial defense counsel explained in her affidavit that:

After a review of over 200 pages of records, we decided
not to present testimony from [appellant’s] mental health
provider/counselor as we believed it would contradict
[appellant’s] feelings about his condition. Additionally,
appellant made several admissions while in the mental
health facility to various parties and we worried those
statements would potentially be used against him by the
government... . [W]e believed the [Mil. R. Evid. 513]
privilege would not apply because. . . . [i]f we put
[appellant’s] mental health condition at issue, we would
waive the privilege.

Appellant’s trial defense counsel attached appellant’s mental health records to
their affidavits. Our review of the records confirms the trial defense counsel’s
assertions that appellant made incriminating statements regarding the charged
offenses.

We find that appellant’s trial defense counsel were not deficient. See Wiggins
v. Smith, 539 U.S. 510, 521 (2003). In fact, we find it was objectively reasonable
under these circumstances for appellant’s trial defense counsel not to present
evidence of his mental condition prior to his interview at CID. Jd. Presenting such
evidence may have permitted the government to enter into evidence appellant’s
several incriminating statements he made while at the mental health facility.

CONCLUSION

On consideration of the entire record, the findings of guilty and sentence are
AFFIRMED.

Senior Judge BURTON and Judge FLEMING concur.
GARNER—ARMY 20189563

FOR THE COURT:

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MALCOLM H. SQUIRES, JSR.
Clerk of Court
