                       UNITED STATES, Appellee

                                    v.

                  Todd E. JAMESON, Lance Corporal
                    U.S. Marine Corps, Appellant

                              No. 06-0881
                       Crim. App. No. 200401438

       United States Court of Appeals for the Armed Forces

                        Argued April 24, 2007

                        Decided June 21, 2007

RYAN, J., delivered the opinion of the Court, in which ERDMANN
and STUCKY, JJ. joined. EFFRON, C.J., and BAKER, J., filed
separate opinions concurring in part and in the result.


                                 Counsel

For Appellant:   Lieutenant Brian L. Mizer, JAGC, USN (argued).

For Appellee: Major Kevin C. Harris, USMC (argued); Commander
Paul LeBlanc, JAGC, USN.


Military Judges: Jeffrey P. Colwell (arraignment) and P. H.
McConnell (trial).

       THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Jameson, No. 06-0881/MC



    Judge RYAN delivered the opinion of the Court.

    A special court-martial composed of a military judge alone

convicted Appellant, contrary to his pleas, of failure to obey

an order or regulation and drunken operation of a vehicle, in

violation of Articles 92 and 111, Uniform Code of Military

Justice (UCMJ), 10 U.S.C. §§ 892, 911 (2000).   The sentence

adjudged by the court-martial and approved by the convening

authority included a bad-conduct discharge, confinement for

ninety days, forfeiture of $500.00 pay per month for a period of

four months, and a reduction to E-1.   In a supplemental action,

the convening authority suspended the bad-conduct discharge

until the end of Appellant’s obligated service, at which time it

would be remitted.   The United States Navy-Marine Corps Court of

Criminal Appeals affirmed the findings of guilt and approved the

sentence.   United States v. Jameson, No. NMCCA 200401438 (N-M.

Ct. Crim. App. June 26, 2006) (unpublished).

     On Appellant’s petition, we granted review of the following

issues:

     I.     WHETHER THE MILITARY JUDGE ABUSED HIS
            DISCRETION BY NOT ALLOWING DEFENSE COUNSEL
            TO RAISE A MOTION TO SUPPRESS THE RESULTS OF
            APPELLANT’S BLOOD TEST AFTER PLEAS HAD BEEN
            ENTERED.

     II.    WHETHER DEFENSE COUNSEL WAS INEFFECTIVE FOR
            FAILING TO INVESTIGATE THE ISSUE OF CONSENT
            PRIOR TO SUBMISSION OF APPELLANT’S PLEAS AND
            FOR FAILING TO FILE A TIMELY MOTION TO


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United States v. Jameson, No. 06-0881/MC


            SUPPRESS THE RESULTS OF APPELLANT’S BLOOD-
            ALCOHOL TEST.

For the reasons set forth below, we affirm.

                           I.    Background

     The charges in this case arise from a single-vehicle

accident involving Appellant’s truck that occurred around 5:00

a.m. on November 10, 2003.      Appellant had been drinking at two

different parties from 8:30 p.m. the night before until

approximately thirty minutes before the accident.

     Appellant arrived at the first party between 7:00 p.m. and

8:00 p.m.   At this party, Appellant consumed beer and

Jägermeister.1   Around midnight, he went to another party, next

door to the first party, and continued to drink vodka and

Jägermeister.

     Around 5:00 a.m., two Marines found Appellant and another

Marine near Appellant’s wrecked truck off Snead’s Ferry Road on

Camp Lejeune.    They called 911 and attempted to aid both

Marines.

     The military police investigated the accident site.      After

looking at the truck, the skid marks, and indentations in the

ground, police determined that the truck had swerved to the

right, hit a speed limit sign, swerved to the left into a ditch,

and then rolled several times before landing right side up.

1
  Jägermeister is a strong, 70-proof, alcoholic beverage flavored
with herbs.

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United States v. Jameson, No. 06-0881/MC


     Appellant was treated by paramedics and taken to the

hospital for continued treatment.    Around 10:50 a.m. that

morning, after doctors had treated Appellant’s medical needs,

two investigators, Sgt Bowick and Cpl (now Sgt) Luther,

presented Appellant with a form requesting that he consent to a

blood draw to determine his blood alcohol content (BAC) by

chemical analysis.   Sgt Bowick read the form to Appellant and

asked Appellant if he understood what had been read to him.

Appellant told Sgt Bowick that he understood.   Appellant signed

the form and blood was drawn from him for the purpose of

calculating his BAC.   At 11:00 a.m., more than five hours after

Appellant was found at the accident scene, Appellant’s BAC

measured .11.2

     Appellant made no motions to exclude evidence before trial.

In both the opening statement and through cross-examination of

the investigators, Appellant’s counsel raised the possibility

that a third person had been driving the truck.   During its case

in chief, the prosecution presented evidence regarding the

vehicle’s trajectory during the crash, Appellant’s voluntary,


2
  Manual for Courts-Martial, United States pt. IV, para.
35.a.(b)(1)(A)(2005 ed.)(MCM) provides that, for purposes of an
Article 111, UCMJ, violation of the blood alcohol limit is the
lesser of the limit set by the law of the state where the
violation occurred, or the limit in the MCM. The limit in the
MCM is .10 grams of alcohol per 100 milliliters of blood. Id.
at para. 35.a.(b)(3). The BAC limit under North Carolina law is
.08. N.C. Gen. Stat. § 20-138.1(a)(2) (2000).

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United States v. Jameson, No. 06-0881/MC


properly warned admissions to investigators that he had been

drinking the night of the accident, and testimony that

established that the smell of alcohol was emanating from

Appellant at the crash site.   The prosecution also proved that

Appellant’s BAC was beyond the legal limit.

     In order to establish the BAC evidence, the prosecution

first called Sgt Bowick to establish that Appellant had

consented to the blood draw.   When trial counsel attempted to

admit Appellant’s signed consent form into evidence, defense

counsel requested an opportunity to voir dire Sgt Bowick.      After

completing his voir dire, defense counsel objected to both the

admission of the document and any subsequent evidence based on

the blood draw.   Counsel argued that the taking of Appellant’s

blood was an illegal search and that Appellant could not have

consented because, at the time Appellant signed the form, he was

in an impaired state from “drugs administered by the hospital,

his own suspected intoxication,” and his injuries.   Defense

counsel made no offer of proof regarding any of these

allegations, and the record contains no specific medical

evidence concerning Appellant’s injuries or medical condition.

     The military judge asked defense counsel for good cause why

the objection to the evidence had not been made before the

trial, as required by the military rules of evidence.    See

Military Rule of Evidence (M.R.E.) 304(d)(2); M.R.E.


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United States v. Jameson, No. 06-0881/MC


311(d)(2)(A).   Defense counsel responded that his only good

cause was that he had made two unsuccessful attempts to contact

and interview Sgts Bowick and Luther, but had not been able to

speak to either of them about the consent form prior to Sgt

Bowick’s testimony that day.   Defense counsel conceded that he

had the medical document showing Appellant’s BAC long before the

trial began.    Defense counsel also conceded that he had

discussed certain aspects of the taking of blood with Appellant.

Defense counsel further conceded that he had never requested

assistance from the Government or the military judge in

producing either investigator for an interview before trial.

     After considering the motion, the military judge determined

that defense counsel had not articulated good cause why the

motion had not been raised before trial in accordance with

M.R.E. 311(d)(2)(A).   The military judge reasoned that the issue

would have been apparent to the defense early on, and that

defense counsel had not availed himself of assistance available

from the Government or the court to aid in his investigation.

Accordingly, the military judge denied the belated request.

     The prosecution went on to present evidence regarding the

laboratory findings on Appellant’s BAC, thereby establishing

that his BAC did measure .11 at the time of the blood draw.

Defense counsel presented evidence of Appellant’s good military

character only.   The military judge found Appellant guilty.


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United States v. Jameson, No. 06-0881/MC


                             II.    Analysis

                            A.     Good Cause

     The question presented is whether the military judge abused

his discretion when he determined that trial defense counsel had

not shown good cause to make an untimely motion to suppress the

results of Appellant’s BAC test.         Appellant asserts that good

cause was shown because defense counsel made two unsuccessful

attempts to contact the witnesses involved in the seizure of the

blood sample.    We disagree.

     M.R.E. 311(d)(2)(A) requires that motions to suppress

evidence “be made by the defense prior to submission of a plea.”

The general rule is that a failure to make the motion prior to

the plea “constitutes a waiver of the motion or objection.”        Id.

The only exception is if “good cause” is shown by the moving

party.    Id.   We review the military judge’s evidentiary decision

on whether good cause was shown for an abuse of discretion.

See, e.g., United States v. Howard, 998 F.2d 42, 52 (2d Cir.

1993) (describing standard of review with respect to a decision

under the analogous federal rule as “clear legal error” or

“abuse of discretion”).

         Fed. R. Crim.P. 12(e) is analogous to M.R.E. 311(d)(2).

It states, inter alia, that a motion to suppress evidence must

be raised before trial or by the deadline set by the trial judge

unless good cause is shown.      Id.; see Fed. R. Crim.P.


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United States v. Jameson, No. 06-0881/MC


12(b)(3)(c).   Federal courts have determined that no good cause

exists when the defense knew or could have known about the

evidence in question before the deadlines imposed under Fed. R.

Crim.P. 12.    See, e.g., Howard, 998 F.2d at 52 (finding no good

cause when defense counsel could have found out the necessary

information by interviewing defendant); United States v. Kessee,

992 F.2d 1001, 1003 (9th Cir. 1993) (finding no good cause when

the defense had access to evidence before trial).   We see no

reason why the same reasoning should not apply in this Court.

See United States v. McCollum, 58 M.J. 323, 341 (C.A.A.F.

2003)(noting that M.R.E. 101 instructs military courts to look

to federal rules for guidance); see also M.R.E. 101.

     In United States v. Coffin, this Court determined that

there was good cause when the government “sandbag[s]” the

defense.   25 M.J. 32, 34 n.3 (C.M.A. 1987).   In Coffin, the

government told defense counsel that one of the charges against

the defendant would be dropped.   Id. at 33.   The evidence for

which a motion to suppress would have pertained was relevant

only to that charge.   The day before trial, and after the

arraignment, the government informed defense counsel that the

charge would not be dropped.   At that point, a motion to

suppress was untimely.   Because there was a possibility that

defense counsel reasonably believed that the charge to which the

motion to suppress pertained was dropped, we held that the facts


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United States v. Jameson, No. 06-0881/MC


in Coffin constituted good cause for purposes of M.R.E.

311(d)(2).   Id. at 33-34.

     Coffin is inapposite to this case.    Here, the military

judge fully probed defense counsel’s reasons for not making a

timely motion to exclude the evidence.    It is apparent from

defense counsel’s responses that neither the charge, nor the BAC

evidence at issue, was a surprise.    The defense counsel knew

about the evidence at issue and also knew the general

circumstances surrounding Appellant’s signing the consent form.

Furthermore, the prosecution did nothing to contribute to the

defense decision not to file a timely motion to suppress.   While

defense counsel alleged that he left messages for the

investigators, there is nothing in the record to suggest that

Government counsel, or even the investigators, knew of those

efforts.   And defense counsel did not request assistance from

either the military judge or Government counsel.

     Given these facts, and the law in this Court and the

federal courts, we conclude that the military judge did not

abuse his discretion in determining that there was no good cause

under M.R.E. 311(d)(2) to permit the defense’s untimely

evidentiary challenge.

               B.   Ineffective Assistance of Counsel

     Appellant alleges that his trial counsel’s failure to file

a motion in limine preventing the admission of Appellant’s BAC


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United States v. Jameson, No. 06-0881/MC

test rendered him ineffective.   We analyze ineffective

assistance of counsel claims under the test outlined by the

Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984).

In order to prove ineffective assistance of counsel, Appellant

must show that his trial counsel’s performance was deficient and

that the deficiency deprived him of a fair trial.    United States

v. Garcia, 59 M.J. 447, 450 (C.A.A.F. 2004).   With regard to

allegations of ineffective assistance of counsel, “the burden

rests on the accused to demonstrate a constitutional violation.”

United States v. Cronic, 466 U.S. 648, 658 (1984).    Consistent

with this principle, this Court has stated that, “‘[w]hen a

claim of ineffective assistance of counsel is premised on

counsel’s failure to make a motion to suppress evidence, an

appellant must show that there is a reasonable probability that

such a motion would have been meritorious.’”   United States v.

McConnell, 55 M.J. 479, 482 (C.A.A.F. 2001) (quoting United

States v. Napoleon, 46 M.J. 279, 284 (C.A.A.F. 1997)).    Given

this standard, the decisional issue is whether Appellant has

carried his burden to show that his counsel would have been

successful if he had filed a timely motion preventing the

admission of Appellant’s BAC test.

     Appellant asserts that he would have succeeded at trial on

a Fourth Amendment claim to suppress this evidence because his

consent to the blood draw was involuntary.   In determining


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United States v. Jameson, No. 06-0881/MC

whether Appellant has a “reasonable probability” of succeeding

on this claim, this Court considers the totality of the

circumstances surrounding the consent.    See United States v.

Wright, 52 M.J. 136, 142 (C.A.A.F. 1999).     As noted by Judge

Breyer in another case involving a drunk driving blood draw,

“[p]etitioner’s mere speculation that a motion to suppress may

have proved meritorious is not enough to ‘affirmatively prove

prejudice.’”    Travasso v. Clark, 162 F. Supp. 2d 1106, 1118

(N.D. Cal. 2001) (citing Strickland, 466 U.S. at 693).

        Here, Sgt Bowick testified that he informed Appellant of

his right to consent or object to the drawing of blood.    He

further testified that he observed Appellant sign the consent

form.    At trial, Sgt Bowick authenticated the signed consent

form.    To show prejudice under Strickland in the context of this

case, it is Appellant who must adduce evidence that his apparent

consent was, in fact, involuntary.     McConnell, 55 M.J. at 484.

But there is no evidence in the record that any of the factors

marshaled by Appellant’s counsel in fact affected Appellant’s

understanding of his rights or his consent to the blood draw.

        We decline to hold as a matter of law that Appellant was

incapable of consenting because he had a BAC of .11.    See, e.g.,

United States v. Lindsey, 158 F. App’x 757, 759 (8th Cir. 2005)

(holding that the “‘mere fact that one has taken drugs, or is

intoxicated, or mentally agitated, does not render consent


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United States v. Jameson, No. 06-0881/MC

involuntary’”) (quoting United States v. Rambo, 789 F.2d 1289,

1297 (8th Cir. 1986)); United States v. Scheets, 188 F.3d 829,

839 (7th Cir. 1999) (holding that “[t]he mere fact that an

individual is intoxicated does not render consent involuntary”);

United States v. Gay, 774 F.2d 368, 377 (10th Cir. 1985)

(reasoning that “[o]ne can be too intoxicated to operate a motor

vehicle, but rational enough to understand requests [to consent

to a search] and to give plausible explanations”).

     We are left to compare the bare assertions of counsel that

Appellant was either impaired and incapable of consent at the

time he consented, or that that his consent was a mere

acquiescence to a claim of lawful authority, with Sgt Bowick’s

trial testimony and the signed consent form.   In a similar case,

addressing “appellant’s word against that of the investigator in

possession of a signed acknowledgement form,” we reasoned that

“[w]ithout more, appellant has failed to show a reasonable

probability that a motion to suppress this evidence would have

been meritorious.”   McConnell, 55 M.J. at 482.

     Appellant has not met his burden to show a reasonable

probability of success on the Fourth Amendment issue.

Consequently, Appellant has failed to make the required showing

to succeed on his Sixth Amendment ineffective assistance of

counsel claim.   Id. at 484; see United States v. Del Rosario-

Puente, 41 F. App’x 483, 484 (1st Cir. 2002) (holding that


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United States v. Jameson, No. 06-0881/MC

“appellant has failed to show that the motion to suppress was

likely to succeed” and, therefore, counsel was not ineffective).

                         III.   Decision

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed.




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United States v. Jameson, 06-0881/MC


     EFFRON, Chief Judge (concurring in part and in the
result):

     I concur with Part II.B. of the majority opinion,

which rejects Appellant’s claim of ineffective assistance

of counsel (Issue II).   As noted in the majority opinion,

Appellant consented to the blood alcohol test, the

voluntariness of his consent is supported by evidence in

the record, and the defense has not demonstrated that he

had a viable claim that his consent was involuntary.

     The same considerations apply with respect to the

question of whether the military judge erred in denying

trial defense counsel’s belated motion to litigate a

suppression motion at the court-martial (Issue I).

Although the test for prejudice with respect to any error

by the military judge is less burdensome on the defense

than the test for prejudice with respect to ineffective

assistance of counsel, the difference is not material here.

In light of the state of the record on the issue of

consent, Appellant has not demonstrated that he had a

viable suppression motion.   Any error by the military judge

in addressing defense counsel’s belated motion at trial was

harmless.   See Article 59(a), Uniform Code of Military

Justice (UCMJ), 10 U.S.C. § 859(a) (2000).
United States v. Jameson, 06-0881/MC


     In that context, we need not reach the issue of

whether the military judge erred, particularly in light of

United States v. Coffin, 25 M.J. 32, 34 (C.M.A. 1987)

(observing that Military Rule of Evidence (M.R.E.)

311(d)(2)(A), regarding belated suppression motions,

“should be liberally construed in favor of permitting an

accused the right to be heard fully in his defense”), and

in the absence of any indication in the record that defense

counsel withheld the motion in order to sandbag the

prosecution or for any other tactical reason.   Accordingly,

with respect to Issue I, I concur in the result.




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United States v. Jameson, No. 06-0881/MC


     BAKER, Judge (concurring in part and in the result):

     For the reasons stated in the majority opinion and in the

Chief Judge’s separate opinion, I concur with Part II.B. of the

majority opinion and in the result.    Like the Chief Judge, I

would not reach the issue of whether the military judge erred by

denying defense counsel’s tardy suppression motion. However, I

think this case is factually distinguishable from United States

v. Coffin, 25 M.J. 32 (C.M.A. 1987).    Among other things,

Coffin’s counsel relied on government representations that it

would not bring the charge in question.    Id. at 33.   Here,

defense counsel had forty-four days from referral until his

arraignment to consider the charge and identify a basis for

suppression.   Moreover, Appellant’s counsel had the wherewithal

to identify the necessary facts before trial, even without

access to the law enforcement witnesses, including access to and

knowledge gained from his client, as well as potential access to

witnesses at the hospital.   Therefore, I find it unnecessary to

rely on Coffin or the statement in that opinion that Military

Rule of Evidence (M.R.E.) 311(d)(2)(A) “should be liberally

construed in favor of permitting an accused the right to be

heard fully in his defense.”   25 M.J. at 34.

     I would not reach Issue I based on the facts of this case.

It is clear that defense counsel was flirting with a potential
United States v. Jameson, No. 06-0881/MC


ineffective assistance claim.   Indeed, the military judge helped

to frame the claim:

     MJ:   All right. And presumably you had -– knew many of the
           facts that you’re alleging regarding voluntariness
           from speaking to your own client, correct?

     DC:   Yes, sir, we had discussions concerning certain
           aspects of that, but -–

     MJ:   And did you ever request any assistance from the
           government in having these witnesses return your calls
           or come to your office or anything along those lines?

     DC:   I did not do that, sir.

     MJ:   Did you request any assistance from the court along
           those lines?

     DC:   I never filed any notice or motion with the court.

     MJ:   And just to make sure everything is clear, the first
           time you objected or raised this motion was on the
           merits today, correct?

     DC:   Yes, sir, based upon the testimony of Sergeant Bowick.

The military judge might quickly have determined whether counsel

was engaged in a tactical gambit, was providing fallible

representation regarding a claim without merit, or had failed to

timely pursue a credible claim.   Instead, the door was left open

for Appellant to litigate an ineffective assistance claim during

three years of appellate litigation, based on facts and

arguments arguably not fully developed at trial.   For example,

some question remains whether counsel sought to contact

personnel at the hospital who could address Appellant’s status




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United States v. Jameson, No. 06-0881/MC


and treatment at the time his consent to draw blood was

obtained.

     Certainly, as a matter of legal policy it would have been

better for the military judge to close and secure the door

otherwise left opened.    “A military judge can eliminate such a

claim merely by giving an accused the opportunity to be heard

and, then, after trial, the judge can deal with the attorney who

is not abiding by the rules.”   Id. at 34 n.3.   Nonetheless, we

need not ultimately decide whether the military judge erred by

not closing the door.    In the final analysis, and for the

reasons stated in the majority opinion, the record as it is

demonstrates that Appellant’s ineffective assistance claim fails

on the basis of the second prong of Strickland v. Washington,

466 U.S. 668 (1984).    Accordingly, I concur in the result.




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