

   
   
   
   U.S. v. Gibson



IN THE CASE OF
UNITED STATES, Appellant
v.
Timothy B. GIBSON, Corporal
U.S. Army, Appellee
 
No. 98-5030
Crim. App. No. 9600274
 
United States Court of Appeals for the Armed
Forces
Argued February 10, 1999
Decided August 2, 1999
GIERKE, J., delivered the opinion of the
Court, in which COX, C.J., and SULLIVAN, CRAWFORD, and EFFRON, JJ., joined.

Counsel
For Appellant: Captain Mary E. Braisted
(argued); Colonel Russell S. Estey and Captain Joel A. Novak
(on brief); Colonel Joseph E. Ross.
For Appellee: Captain Jodi E. Terwilliger-Stacey
(argued); Colonel John T. Phelps, II and Major Holly S.G. Coffey
(on brief); Lieutenant Colonel Adele H. Odegard and Captain Kirsten
Campbell-Brunson.
Military Judge: Craig S. Schwender

THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE PUBLICATION.

Judge GIERKE delivered the opinion of the Court.
A general court-martial composed of officer
and enlisted members convicted appellant, contrary to his pleas, of rape
and adultery, in violation of Articles 120 and 134, Uniform Code of Military
Justice, 10 USC §§ 920 and 934, respectively. The adjudged and
approved sentence provides for a dishonorable discharge, confinement for
12 years, total forfeitures, and reduction to the lowest enlisted grade.
The Court of Criminal Appeals set aside the findings and sentence on the
ground that appellant did not receive effective representation. The Judge
Advocate General of the Army certified the following issues:


I
WHETHER THE ARMY COURT OF CRIMINAL APPEALS
ERRED IN FINDING INEFFECTIVE ASSISTANCE OF COUNSEL ON THE BASIS OF TRIAL
DEFENSE COUNSELS FAILURE TO LEARN OF WITNESSES WHO MIGHT HAVE IMPEACHED
THE PROSECUTRIXS VERACITY, WHERE THERE WAS OVERWHELMING AND UNREBUTTED
INDEPENDENT EVIDENCE THAT APPELLANT, A MARRIED MAN, AND THE 15-YEAR-OLD
PROSECUTRIX WHO WAS NOT HIS SPOUSE, UNDRESSED IN HIS VEHICLE DURING DAYLIGHT
HOURS AND ENGAGED IN SEXUAL RELATIONS.

II
WHETHER, ASSUMING THE ARMY COURT OF CRIMINAL
APPEALS CORRECTLY DECIDED THAT DEFENSE COUNSEL WERE INEFFECTIVE IN NOT
LEARNING OF WITNESSES WHO MIGHT HAVE QUESTIONED THE TRUTH OF THE PROSECUTRIXS
ALLEGATIONS AND VERACITY, THAT COURT NONETHELESS ERRED BY SETTING ASIDE
ALL FINDINGS OF GUILTY, WHERE THE ALLEGED INEFFECTIVENESS COULD HAVE ONLY
CAUSED A REASONABLE DOUBT AS TO SOME ELEMENTS, BUT COULD NOT HAVE CAUSED
A REASONABLE DOUBT AS TO THE LESSER-INCLUDED OFFENSES OF CARNAL KNOWLEDGE,
INDECENT ACTS (OR LIBERTIES) WITH A CHILD, AND INDECENT ACTS WITH ANOTHER,
AND TO THE INDEPENDENT OFFENSE OF ADULTERY.

For the reasons set out below, we answer both
certified questions in the negative, and we affirm the decision of the
court below.

Factual Background
The Court of Criminal Appeals summarized the
evidence on the merits as follows:

The governments proof of rape rested primarily
on the testimony, and thus the credibility, of the fifteen-year-old victim,
L. She stated that she initially noticed appellant because of the music
coming from his sport utility vehicle, thought he was nice, and readily
accepted his offer of a ride home. Her statements concerning lack of consent
and force, while meeting the requirements of legal and factual sufficiency,
were far from being overwhelming proof on both issues. Fiber and DNA evidence
circumstantially corroborated sexual activity, including an ejaculation,
in appellants vehicle. However, in the absence of direct evidence of penetration,
this scientific evidence provided, at best, only tenuous corroboration
of that aspect of her allegations.

* * *
Appellant did not take the stand and presented
his defense solely through cross-examination of the governments witnesses.
The defense theory of the case asserted that there was insufficient evidence
to prove, beyond a reasonable doubt, that sexual intercourse occurred,
but that if it did occur, it was not through force, but with the consent
of L. The emphasis of the defense presentation by cross-examination sought
to discredit or reframe the laboratory evidence. The cross-examination
of L focused on resistance and consent.

Unpub. op. at 2-3 (footnotes omitted).
After the trial, appellees wife obtained a
copy of the final Criminal Investigation Command (CID) report, which contained
summaries of witness interviews that raised questions about Ls credibility.
The detailed defense counsel, Captain (CPT) Boyd, then accused trial counsel
of failing to disclose material favorable to the defense. The convening
authority ordered a post-trial Article 39(a)1
session to consider the accusation of nondisclosure.
The evidence at issue was a series of interviews
with teachers and classmates of the alleged victim that were summarized
in the final CID report. They were captioned, "Significant Interviews."
The interviews reflect the following information:
(1) L was expelled from school for 1 year,
and a teacher suggested that the rape allegation was her way of distracting
attention from her misbehavior;
(2) L told some classmates that she was a virgin
before the encounter with appellee, and she told others an "off the wall"
story about being raped in the United States and becoming pregnant;
(3) L told conflicting versions of the alleged
rape by appellee; and
(4) L had a poor reputation for truthfulness
among some of her classmates.
At the Article 39(a) session, civilian defense
counsel, Mr. Cohen, asserted "as an officer of the court" that neither
he nor detailed defense counsel had seen the final CID report. Mr. Cohen
asserted that, if he had known about the material in the final CID report,
he could have cross-examined L and destroyed the image of a "young schoolgirl
who was embarrassed about what happened." On examination by the military
judge, Mr. Cohen conceded that, if he had received the final report but
failed to read it and attempt to interview the witnesses listed, he was
"not merely negligent, but [he] failed to discharge [his] responsibilities
as a defense counsel in this case."
Captain (CPT) Flowers was the trial counsel
for the case. When the Article 322
investigation convened, CPT Flowers was pending deployment to the Balkans,
and CPT Vandeveld was detailed to replace him in the event that the case
was referred to a court-martial. CPT Flowers testified that, on the day
of the Article 32 hearing, he gave CPT Vandeveld the final CID report,
who copied it and returned it to him, and then CPT Flowers personally gave
it to Mr. Cohen.
During the Article 32 hearing, Mr. Cohen referred
to a laboratory report that was contained in the final CID report, but
was not included in the initial or interim reports. CPT Flowers testified
that the defense made no written discovery requests before the Article
32 investigation. A tape recording of the Article 32 hearing was played
at the Article 39(a) session, in which Mr. Cohen referred to a serology
report contained in the final CID report.
The laboratory report was in two parts, a trace
evidence report and a serology report. The trace evidence report concluded
that fibers found on two pairs of Ls panties were microscopically consistent
with the fabric in appellees vehicle. The serology report concluded that
there was semen on appellees underwear and on a blue towel found in appellees
vehicle. The semen matched appellees DNA profile. There was no semen found
in vaginal and cervical swabs taken from L, on Ls clothing, or in a condom
found in appellees vehicle.
CPT Boyd testified that the laboratory report
was in his case file at the time of the Article 32 investigation. He testified
that he became "physically ill" when he read the summarized witness statements
pertaining to Ls credibility. CPT Boyd also testified that CPT Flowers
had an open discovery policy, and that "you could walk in anytime and ask
him and hed give you anything he had."
Mr. Cohen testified that, when he read the
final report, he was shocked. He thought that appellee had been unjustly
convicted because Mr. Cohen "had failed to properly either investigate
or to get materials."
The military judge made the following findings
of fact:

1. The final CID report, dated 21 September
1995, was received by trial counsel in early October 1995.
2. Detailed defense counsel, CPT Boyd, had
complete access to the entire government case file at all times.
3. Before the Article 32 Investigation, on
13 November 1995, CPT Boyd may not yet have been provided a copy of the
final CID report, but it had been available for defense to review and photocopy
for about a month.
4. At the Article 32 Investigation, CPT Flowers
directed that a complete copy of the case file, including the final CID
report be photocopied for Mr. Cohen. CPT Vandeveld copied the case file
and returned it to CPT Flowers who personally handed the complete case
file to Mr. Cohen.
5. The final CID report looks very much like
the interim CID report, and much of the final report is identical to the
interim report. The several new paragraphs, at issue here, were sandwiched
between such identical entries. When CPT Boyd read the final report after
trial she testified that at first she thought it was the report she had
already read.
6. The final CID report referenced, and has
as attachments, photographs and certain lab reports that were not previously
available or disclosed, including a trace evidence/serology report dated
29 August 1995.
7. CPT Flowers testimony, that he gave to
Mr. Cohen a complete copy of the case file, to include the final CID report,
is corroborated by the audio recording of the Article 32 in which he is
heard to say to Mr. Cohen, "I think Ive given yall every scrap of paper
on this case . . .," and then confirmed that defense had received the lab
reports dated 29 August.
8. Both before and after the Article 32 Investigation,
CPT Flowers made available to the defense everything in the governments
case file, including witness statements, witness lists, CID reports, lab
reports, photos, and physical evidence. CPT Flowers had this "open discovery"
procedure, in this and every other case, and the defense was aware of it.
9. There was no evidence presented as to where
SSG Gibson, wife of the accused, acquired the copy of the final CID report.
10. The defense received complete discovery
of all documents in the governments possession, including the final CID
report, but apparently did not recognize a few paragraphs in that final
CID report that were added to the interim report.

Based on the evidence adduced at the post-trial
Article 39(a) session, the Court of Criminal Appeals concluded that appellee
had not received effective representation within the meaning of Strickland
v. Washington, 466 U.S. 668 (1984). On the question of prejudice, the
court below held:

[T]his was legally and factually a close
case. The governments proof relied heavily on the testimony, and therefore
the credibility, of the victim, L. Thus, the testing of the governments
proof by counsel in the form of a thorough, focused cross-examination of
L, was pivotal to the effective defense of [appellee]. Overlooking, or
failing to pursue, the statements of nine potential adult and juvenile
witnesses questioning the truth of Ls allegations, as well as her general
veracity, cannot be viewed as harmless, non-prejudicial error.

Unpub. op. at 7. The court then set aside the
findings and sentence and authorized a rehearing.

Discussion
Before this Court, the Government argues that
"defense counsels failure to notice the slight differences in the Final
CID Report during the Article 32 investigation did not depart from prevailing
norms to such an extent that the adversarial process failed." Final Brief
at 20. Government appellate counsel point out that the list of witnesses
was contained within a pile of "approximately sixty papers, about two inches
thick." Id. at 5. They argue that the deficiencies in the defense
performance were not prejudicial because "the governments case . . . was
virtually incontrovertible [sic]." Id. at 6. Finally, the Government
argues that the evidence of penetration needed to prove carnal knowledge
was "irrefutable," and that, at the very least, the court below should
have affirmed a lesser-included offense of carnal knowledge or indecent
acts, as well as the conviction of adultery. Id. at 28.
Appellee asserts that the failure of trial
defense counsel to investigate the evidence summarized in the CID report
left the alleged victims testimony unchallenged and, thus, made the outcome
of the court-martial unreliable. Answer to Final Brief at 3-4.
This Court has adopted the two-pronged test
of Strickland to determine if an accused has received the "effective
assistance of counsel" guaranteed by the Sixth Amendment. United States
v. Scott, 24 MJ 186, 188 (CMA 1987). Counsel are presumed competent.
Id.
To prevail on a claim of ineffective representation, an accused must show
(1) deficient performance and (2) prejudice. Id.
Regarding the first prong, the Supreme Court
has held that "counsel has a duty to make reasonable investigations or
to make a reasonable decision that makes particular investigations unnecessary."
Strickland,
supra at 691, quoted in United States v. Loving, 41 MJ 213,
242 (1994); see also United States v. Polk, 32 MJ 150, 153
(CMA 1991). Both military and civilian counsel conceded during the post-trial
hearing that their failure to investigate would satisfy the first prong
of Strickland, if they received the final CID report. The military
judge found that they received the report, and the record supports his
findings.
We agree with military and civilian defense
counsels concession of deficient performance. Their failure to investigate
information strongly suggesting that L was not a credible witness was deficient
within the meaning of the first prong of Strickland. Their failure
to investigate was not a tactical decision; it was a serious oversight
caused by their failure to carefully read the final CID report.
With respect to the second prong, we agree
with the court below that defense counsels failure to investigate the
evidence in the CID report deprived appellee of "a fair trial, a trial
whose result is reliable." Unpub. op. at 7, quoting Scott, 24 MJ
at 188, and Strickland, 466 U.S. at 687. The prosecutions case
rested on Ls credibility. The evidence summarized in the CID report suggested
that she had serious disciplinary problems in school; that she may have
alleged rape to distract school officials from her behavior; that she had
a record of exaggerating her sexual experience; that she related conflicting
versions of the alleged rape; and that she did not enjoy a good reputation
for truthfulness. This evidence was relevant not only to the greater offense
of rape, but also to the lesser-included offense of carnal knowledge and
the related offense of adultery, because her testimony was the only direct
evidence of vaginal penetration.
We reject the Governments fallback argument
that the court below erred by not affirming a conviction of indecent acts.
Under Article 66(c), UCMJ, 10 USC § 866(c), a Court of Criminal Appeals
"may affirm only such findings of guilty . . . as it finds correct in law
and fact and determines, on the basis of the entire record, should be approved."
Commenting on this broad grant of appellate authority, our Court has said,
"A clearer carte blanche to do justice would be difficult
to express." United States v. Claxton, 32 MJ 159, 162 (CMA 1991).
Our Court explained: "If the Court of Military Review [now the Court of
Criminal Appeals], in the interest of justice, determines that a certain
finding or sentence should not be approved -- by reason of the receipt
of improper testimony or otherwise -- the court need not approve such finding
or sentence." Id. In United States v. Cauley, 45 MJ 353,
356 (1996), we declined to disturb a determination regarding factual sufficiency
at the trial and at the court below, stating that "factual sufficiency
is a question for the factfinder at [the] court-martial and the Court of
Criminal Appeals, not this Court."
We hold that the court below did not abuse
the discretion given to it by Article 66(c). Proof of indecent acts depended
almost entirely on L's testimony. The fiber evidence was of marginal value.
There was no evidence that the fiber from the seat cover was unique or
rare. Traces of the same or similar fiber were also found on a second pair
of Ls panties that she was not wearing at the time of the alleged offenses.
The semen on the towel shows only that appellant ejaculated at some time
and place, but tells us nothing about the circumstances. The scientific
evidence had corroborative value when combined with Ls testimony. Standing
alone, however, it proves little. In light of the broad appellate authority
conferred on the court below by Article 66(c), and the importance of Ls
testimony in proving any lesser-included offenses, the decision of the
court below to not affirm a lesser-included offense was within its statutory
authority. The certified questions are answered in the negative.

Decision
The decision of the United States Army Court
of Criminal Appeals is affirmed.
FOOTNOTES:
1 Uniform Code of
Military Justice, 10 USC § 839(a).
2
UCMJ, 10 USC § 832.

Home
Page  |  Opinions
& Digest  |  Daily
Journal  |  Public
Notice of Hearings
