

   
   
   
   U.S. v. Voorhees



IN THE CASE OF
UNITED STATES, Appellee
v.
Aaron S. VOORHEES, Lance Corporal
U. S. Marine Corps, Appellant
 
No. 98-0309
Crim. App. No. 97-0831
 
United States Court of Appeals for the Armed
Forces
Argued December 2, 1998
Decided July 15, 1999
SULLIVAN, J., delivered the opinion of
the Court, in which COX, C.J., and CRAWFORD, GIERKE, and EFFRON, JJ., joined.

Counsel
For Appellant: Lieutenant Dale
O. Harris, JAGC, USNR (argued).
For Appellee: Lieutenant Kevin
S. Rosenberg, JAGC, USNR (argued); Colonel Kevin M. Sandkuhler,
USMC and Commander D. H. Myers, JAGC, USN (on brief); Colonel
Charles Wm. Dorman, USMC, and Lieutenant Commander Christian L. Reismeier,
JAGC, USN.
Military Judge: R. E. Nunley
 
 


THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE PUBLICATION.


Judge SULLIVAN delivered the opinion of the
Court.
Appellant was tried by a special court-martial
composed of a military judge sitting alone at Marine Corps Recruit Depot,
Parris Island, S.C., on September 24, 1996. Pursuant to a pretrial agreement,
he pleaded guilty to introduction, distribution, and use of a small amount1
of Lysergic Acid Diethylamide (LSD), in violation of Article 112a, Uniform
Code of Military Justice, 10 USC § 912a. He was found guilty and sentenced
to a bad-conduct discharge, confinement for 90 days, forfeiture of $583
per month for 3 months, and reduction to E-1. On March 31, 1997, the convening
authority approved this sentence but suspended confinement in excess of
75 days for a period of one year from the date of his action. On November
25, 1997, the Court of Criminal Appeals affirmed the findings of guilty
and the sentence as approved but amended the suspension to include confinement
in excess of 45 days.2
This Court granted review on the following
three issues of law:




I
WHETHER THE CONVENING AUTHORITY WAS AN ACCUSER
DUE TO HIS PERSONAL INTEREST IN APPELLANTS CASE, AND THEREFORE COULD NOT
ENTER INTO A PRETRIAL AGREEMENT WITH APPELLANT.

II
WHETHER THE CONVENING AUTHORITY WAS AN ACCUSER
DUE TO HIS PERSONAL INTEREST IN APPELLANTS CASE, AND THEREFORE COULD NOT
PERFORM THE POST-TRIAL REVIEW OF APPELLANTS CASE.

III
WHETHER APPELLANT WAS DENIED EFFECTIVE ASSISTANCE
OF COUNSEL WHERE CIVILIAN DEFENSE COUNSEL AND TRIAL DEFENSE COUNSEL BOTH
FAILED TO OBJECT TO THE CONVENING AUTHORITYS POST-TRIAL REVIEW WHEN THE
CONVENING AUTHORITY BECAME AN ACCUSER PRIOR TO TRIAL.



We hold that the record of trial does not reasonably
show that the convening authority in this case was an accuser within the
meaning of Article 1(9), UCMJ, 10 USC § 801(9). See United
States v. Thomas, 22 MJ 388, 394 (CMA 1986) (misguided prosecutorial
zeal alone not sufficient to show convening authority was an accuser),
cert. denied, 479 U.S. 1085 (1987).
The record of trial in this case contains the
following dialogue between the military judge and appellant concerning
his pleas of guilty:



MJ: Lance Corporal Voorhees, are you entering
into this pretrial agreement voluntarily?
ACC: Yes, sir.
Q. Has anyone tried to force or threaten you
to enter into this agreement?
A. (No response from accused.)
Q. Would you like for me to repeat that?
A. Yes, sir.
Q. Youre also very soft spoken; you need to
speak up a little bit.
A. Aye, sir.
Q. Has anyone tried to force or threaten you
to enter into this agreement?
A. [Accused and counsel confer.]
CC: Would Your Honor allow me to make a brief
statement?
MJ: At this point, sir, I kind of want to hear
from your client.
CC: Hes having a problem with the question.
MJ: What would be the nature of the problem?
CC: Well, my brief statement will not go to
his answer at all. He did have two discussions and hes afraid not to tell
you about them; he thinks they may be germane and . . .
MJ: I will certainly ask him about them, if
they are germane.
CC: Thank you, Your Honor.
MJ: Lance Corporal Voorhees, you are evidently
having some hesitation in answering whether someones tried to force or
threaten you to enter into this agreement. Its not uncommon that people
will tell you that if you dont enter into a particular agreement, you
dont get the benefit of the agreement or that youre going to be tried
in a certain fashion. In your particular case has someone done something
different than that? Someone threatens your life or in some way tried to
force you to enter into this agreement?
ACC: Not threaten my life, sir, no.
Q. Had they threatened you with prosecution?
A. Yes, sir.
Q. In other words, you were already facing
prosecution, correct?
A. Yes, sir.
Q. And what they have told you is, unless you
plead guilty, they are not going to give you the benefit of whatever is
in Appellate Exhibit II, the sentence-limitation portion.
A. Yes, sir.
Q. Have they done more than that?
A. Sir, the comment "If you dont, youll
be burned," sir. I dont know if that means what you think it does,
sir. I dont know.
Q. Well, in my 18-plus years on active duty,
what that means to me is that you will be prosecuted and punished.
A. Yes, sir.
Q. Is that what it means to you?
A. Yes, sir, but it seems a little more
harsh than that, sir. To be "burned," sir, as like everything they could
get on me, sir.
Q. In other words, you were told if you
didnt take the pretrial agreement, they were going to hit you as hard
as the government could hit you.
A. Yes, sir.
Q. Now, would you agree with me that the governments
entitled to seek the maximum punishment, if they want?
A. Yes, sir.
Q. So is in essence this pretrial agreement
an attempt by you to get the government not to get the maximum they could
get against you?
A. Yes, sir.
Q. Has anyone threatened you with anything
other than prosecuting you to the fullest extent that they could?
A. No, sir.
Q. More specifically, has anyone forced you
to admit things that are not true?
A. No, sir.
Q. Has anyone forced you to give up rights
you didnt want to give up in this case?
A. No, sir.
Q. Basically, what youre telling me, then,
is when they said that if you didnt plead guilty that they were going
to burn you, they were going to seek the maximum punishment against you.
A. Yes, sir.
Q. They were merely threatening what they could
do in any event. Correct?
A. Yes, sir.
Q. So you entered into a pretrial agreement
with them to protect yourself from the maximum punishment, is that correct?
A. Yes, sir.
MJ: Do counsel see anything . . . or are counsel
aware of anything in this case that was improper insofar as the entering
of this pretrial agreement by the parties? Merely threatening to fully
prosecute an individual would not, on its face, to the Court appear to
be the threat or force contemplated by my question, causing someone to
admit something they didnt do or causing someone to give up rights. Here
hes getting a benefit for the bargain. In other words, hes being given
some protection or some forum option in exchange for his pleas of guilty.
Is that true?
CC: May I address the Court, Your Honor?
MJ: Yes.
CC: The problem here is weve got a young man
thats trying to be punished, wants to be punished. He knows he made a
mistake; he does not deny it, has not denied it since day one. He was
approached, absent the presence of counsel, on two occasions, and I know
what occurred, and I can, to some degree, understand it, but it was probably
very improper. If the Court would like to inquire, I suggest a line
of questions asking him specifically who contacted him, when and why might
be helpful. But it was done absence [sic] the presence of counsel, without
the knowledge or the benefit of counsel, and it was done after the attorney-client
privilege was created, and that fact was well known to the parties that
approached him.
MJ: Who talked with you about a pretrial agreement?
ACC: Sir.
Q. Other than your counsel, who has talked
to you about a pretrial agreement?
A. My Headquarters Company commander, sir,
and my battalion commander, sir.
Q. Lieutenant Colonel Christopher talked
to you?
A. Yes, sir.
Q. When and where did he talk to you about
this?
A. I dont have the date exactly, sir. I was
called across the street to talk to my captain, Captain Vindyard, sir--
Q. Captain who?
A. Vindyard.
Q. Can you spell that?
A. V-y-n...pardon me, V-i-n-d-y-a-r-d.
Q. Okay, and what occurred when you talked
with the captain?
A. He just wanted to make sure that I was all
right, sir, make sure I was okay as in how I was holding up under the pressure
and stress, sir, making sure that one of his troops was doing okay, sir.
Q. [sic] Okay. He asked me if I knew that
Mr. Montis could be considered a hindrance more than a help sometimes.
Q. Because youre hiring a civilian counsel?
A. Yes, sir.
Q. All right, what happened after that discussion?
A. I told him I was doing okay, sir, and the
stress was okay, sir, and that my job duties were okay, sir, and that I
was okay, sir. He dismissed me and as I was walking out of the S-1 hatch,
I dont know if youve been to second battalion, sir; theres two hatches;
I was walking out of the S-1 hatch to go back to my mess hall, sir,
and the colonel was in the hallway, sir, and he said, "Lance Corporal Voorhees,"
and I stopped and came to the position of attention, sir. He was walking
into the head, and he asked me, he said, "Have you signed off on that pre-agreement
. . ." I dont know what its called exactly, sir.
Q. Pretrial agreement?
A. Pretrial agreement. The 45 days and I said--
Q. Okay, first of all, I dont want any discussion
about what the terms of the agreement are, okay? Whatever your agreement
is, I dont want to know. Do you understand that?
A. Yes, sir.
Q. So dont mention anything about whats in
your agreement. I just want to know in general terms what your discussion
is [sic] with the colonel.
A. Aye, sir. He asked me if I was going
to take the agreement, sir, and I said that my counsel was still in question
on it and he looked at me and he said, "If you dont take it, Im going
to burn you." And it kind of made me upset, so I went back to my mess
hall and I called Mr. Montis.
MJ: Counsel, were at a good point for a short
recess. Courts in recess.



(Emphasis added.)
The military judge then conducted an extensive
inquiry of appellant concerning his pleas of guilty in light of the above
disclosures. He subsequently ruled as follows:



MJ: At this point I do find the pretrial
agreement to be in accord with appellate case law, not contrary to public
policy or my own notions of fairness, and the agreement is accepted.
For the appellate courts, I specifically find
that if the statement was made, as the accused alleges, by the battalion
commander, at that point the agreement was already on the table so far
as any terms, and that the accused thereafter had an opportunity to discuss
with his counsel his concerns regarding that comment, as well as his options;
that he was aware of his options to elect trial by military judge alone
or members and to plead guilty or not guilty, and that having consulted
with his counsel, he made a free and voluntary decision to nevertheless
enter into the pretrial agreement and that the impetus causing him to do
so was not the threat by the battalion commander, but more the desire to
protect himself from a possible maximum punishment from this Court. So
at this point the agreement is accepted.
Do you have any questions, Lance Corporal Voorhees,
regarding the meaning and effect of your pleas of guilty?
ACC: No, sir.
MJ: Do you still wish to plead guilty?
ACC: Yes, sir.
MJ: I find that you have knowingly, intelligently,
and consciously waived your rights against self-incrimination, to a trial
of the facts by this court-martial, and to confront the witnesses against
you. I further find that your pleas are made voluntarily and with a factual
basis, and they are accepted.



No objection was lodged by appellant as to this
ruling or later to the convening authoritys qualification to conduct the
post-trial review in this case.

___ ___ ___
I
Appellant challenges the findings of guilty
and sentence in his case on the basis that his convening authority was
an "accuser" who was disqualified from entering a pretrial agreement with
him. He cites this Courts decision in United States v. Nix, 40
MJ 6, 7 (1994), for the proposition that the findings of guilty and the
sentence in his case should be set aside and the pretrial negotiations
begun again. In Nix, a commanding officer who was an accuser was
disqualified from making a pretrial-disposition recommendation, so the
findings and sentence had to be set aside. Appellant further argues that
the military judges acceptance of his guilty pleas based on such a pretrial
agreement was plain error because it would send a dangerous "message to
military commanders and diminish[] the publics perception of the military
justice system." Final Brief at 11. He generally cites United States
v. Berry, 34 MJ 83, 88 (CMA 1992) for this proposition (appearance
of fairness, as well as actual fairness, required for court-martial). Accordingly,
he asserts that the appellate court below erred in affirming his conviction
and that the findings and sentence of his court-martial should now be set
aside.
Appellant and his defense counsel were obviously
aware of his convening authoritys conduct prior to this court-martials
opening session and his proffer of pleas of guilty. Moreover, they both
clearly indicated on the record that they waived any claim that this conduct
created any issue concerning the convening authoritys prior referral of
the charges in his case. (R. 37) However, his later claims on appeal, at
least arguably, go beyond his referral waiver and permit at least limited
consideration of his accuser claim. See United States v. Nix,
supra; cf. United States v. Shiner, 40 MJ 155 (CMA
1994); United States v. Jeter, 35 MJ 442, 447 (CMA 1992) (issue
of convening authoritys disqualification to refer case waived by knowing
failure to raise it at court-martial).
Article 1(9) states:



(9) The term "accuser" means
a person who signs and swears to charges, any person who directs that charges
nominally be signed and sworn to by another, and any other person who
has an interest other than an official interest in the prosecution of the
accused.



(Emphasis added.)
Appellant asserts that Lieutenant Colonel Christophers
conduct caused him to "abdicate[] his role as Convening Authority and assume[]
the role of an accuser." In particular, he notes the convening authoritys
threat to burn him, which "communicated his anger in very dramatic terms"
to appellant. Final Brief at 11. He argues that such conduct disqualified
the convening authority from further involvement in this case, including
participation in the plea-agreement process, and thus invalidated the findings
of guilty and the sentence. See United States v. Nix, supra.
Article 23, UCMJ, 10 USC § 823, delineates
those commanding officers or officers in charge who are authorized to convene
a special court-martial. This codal provision, however, also provides:



(b) If any officer is an accuser,
the court shall be convened by superior competent authority, and may in
any case be convened by such authority if considered advisable by him.



(Emphasis added.)
The test for determining whether a convening
authority is an "accuser" under Articles 1(9) and 23(b) is whether he "was
so closely connected to the offense that a reasonable person would conclude
that he had a personal interest in the matter." United States v. Jackson,
3 MJ 153, 154 (CMA 1977)(citing United States v. Reed, 2 MJ 64,
68 (CMA 1976)). Personal interests relate to matters affecting the convening
authoritys ego, family, and personal property. A convening authoritys
dramatic expression of anger towards an accused might also disqualify the
commander if it demonstrates personal animosity. Jackson, supra
at 154. "[M]isguided zeal," alone, however, is not sufficient. See
Thomas, 22 MJ at 394.
Unlike Nix, this record contains no
evidence of personal interest on the part of the officer acting in appellants
case or evidence of personal bias on that officers part towards him. It
does show a convening authority directly involved in the pretrial-negotiation
process and one familiar with the language or jargon of plea bargaining.
However, whether the words used by the convening authority made him an
accuser or circumstantially demonstrated impermissible bias on his part
involves an assessment of additional matters such as demeanor, tone, and
context. See United States v. Jackson, supra. All
these circumstances appellant could have evidenced or contested at trial,
but he chose not to do so. The military judge here focused the attention
of everyone in the courtroom on the accuser issue, and appellant and his
defense counsel simply passed up the opportunity to fully litigate it.
In this context, nothing more is required to resolve his post-trial complaint
concerning the validity of his pretrial agreement with this convening authority.
See United States v. Jeter, supra.

II
The second granted issue essentially asks whether
it was plain error for the convening authority to take the post-trial action
in this case. See also United States v. Edwards, 45
MJ 114 (1996) (staff judge advocates performance of post-trial review
was plain error). It is premised on the same complained of conduct of the
convening authority which appellant avers made him an accuser. See
RCM 1107(a), Discussion, Manual for Courts-Martial, United States (1995
edition). Again, we disagree.
Appellant and his counsel clearly knew about
the convening authoritys statement and the possibility that it might impact
on his qualifications to take action in this case. No objection, however,
was made at trial. On the contrary, they only preserved this issue as to
possible future action. Later, however, there was no objection to the convening
authoritys taking the post-trial action in this case on this basis or
any other. Finally, the record shows that appellant, without expressed
reservation, actively sought clemency from this convening authority by
means of letters from himself and his counsel. We conclude that no plain
error occurred in these circumstances. See United States v. Powell,
49 MJ 460, 465 (1998) (material prejudice required for plain error).

III
The third issue before us is whether appellants
defense counsel were ineffective for failing to object to the qualifications
of LtCol Christopher to take post-trial action as a convening authority
in this case. As noted above, the military judge and defense counsel expressly
indicated that they did not consider this issue waived by appellants guilty
pleas. Nevertheless, the record shows that LtCol Christopher subsequently
took post-trial action in this case without any objection by appellant
or his attorneys.
We find no deficient performance by counsel
in this case for two reasons. First, as noted above, the record of trial
does not reasonably establish that the convening authority was an accuser
in this case or that he was disqualified to perform the post-trial review
on this basis. See RCM 1107(a), Discussion ("It would be impracticable
for the convening authority to take initial action . . . when the convening
authority is disqualified because the convening authority has other than
an official interest in the case."); see also Art. 64(b),
UCMJ, 10 USC § 864(b). A finding of ineffective assistance of counsel
cannot be based on failure to raise a claim that is without legal merit.
See United States v. Flack, 47 MJ 415, 417-18 (1998).
Second, although defense counsel may object
to a convening authoritys performing a post-trial review when he is disqualified
as an accuser, they were not legally required to make such a claim. See
Jeter, 35 MJ at 447 (accuser disqualification not jurisdictional).
Here, as pointed out by the appellate court below, the convening authority
had otherwise demonstrated a favorable disposition toward appellant including
a favorable pretrial agreement which significantly limited the punishment
that appellant would face for his various drug offenses. We will not second-guess
trial defense counsels tactical decision to forgo possible objection and
draw from that well one more time. See United States v. Sylvester,
47 MJ 390, 393 (1998) (no deficient performance to pursue clemency with
potentially challengeable convening authority who was sympathetic to accused
in past); cf. United States v. Newman, 14 MJ 474, 482 (CMA
1983) (notes disadvantages affecting clemency chances which may result
from action by substitute convening authority).
The decision of the United States Navy-Marine
Corps Court of Criminal Appeals is affirmed.
FOOTNOTES:
1 Two hits of LSD were
introduced; one hit was distributed; and some was consumed, all on or about
July 19, 1996, at Marine Corps Recruit Depot, Parris Island, S.C.
2
The Court of Criminal Appeals concluded that the convening authoritys
action contained a typographical error with respect to the amount of confinement
suspended and took corrective action. Unpub. op. at 6.

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