              UNITED STATES NAVY-MARINE CORPS
                 COURT OF CRIMINAL APPEALS
                      WASHINGTON, D.C.

                                Before
           F.D. MITCHELL, K.J. BRUBAKER, M.C. HOLIFIELD
                      Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                      PATRICK G. EDMOND
           MIDSHIPMAN THIRD CLASS (MIDN 3/C), U.S. NAVY

                           NMCCA 201200168
                       GENERAL COURT-MARTIAL

Sentence Adjudged: 29 September 2011.
Military Judge: Col Daniel Daugherty, USMC.
Convening Authority: Superintendent, United States Naval
Academy, Annapolis, MD.
Staff Judge Advocate's Recommendation: CAPT Robert J.
O’Neill, JAGC, USN.
For Appellant: LT Carrie Theis, JAGC, USN; LT David
Warning, JAGC, USN.
For Appellee: LT James L. Belforti, JAGC, USN; Capt Matthew
M. Harris, USMC.

                             30 April 2015

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                     OPINION OF THE COURT
     ---------------------------------------------------
THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

MITCHELL, Chief Judge:

     A general court-martial composed of officer members
convicted the appellant, contrary to his pleas, of making a
false official statement, two specifications of rape, two
specifications of aggravated sexual assault, and wrongful sexual
contact in violation of Articles 107 and 120, Uniform Code of
Military Justice, 10 U.S.C. §§ 907 and 920. He was sentenced to
6 months’ confinement and a dismissal from the United States
Naval Service. The convening authority (CA) approved the
adjudged sentence and, with the exception of the dismissal,
ordered the sentence executed.

      The appellant asserts the following assignments of error:
(1) that the trial defense counsel committed numerous errors
during trial which denied him effective assistance of counsel as
guaranteed by the Sixth Amendment; (2) that the military judge
abused his discretion when he admitted the appellant’s Facebook
message into evidence; and (3) the military judge abused his
discretion in denying the defense’s motion under MILITARY RULE OF
EVIDENCE 412, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2008 ed.). We
find merit in the appellant’s initial assignment of error and
will take corrective action in our decretal paragraph. 1

                          I. Background of Case

     On Saturday, 30 October 2010, both the appellant and XM
were Midshipmen at the United States Naval Academy and billeted
at the Bancroft Hall dormitory. The appellant and XM were
classmates and had previously been involved in a romantic
relationship. On this day, the appellant came to XM’s dormitory
room where she was working on a school project. Sometime after
the appellant arrived at her dormitory room, XM alleges that the
appellant digitally penetrated and then raped her. Later that
day, XM reported to a friend 2 that she had been sexually
assaulted and eventually went to a civilian hospital for a
sexual assault examination. As part of the ensuing
investigation conducted by the Naval Criminal Investigative
Service (NCIS), the appellant was interviewed on 3 November 2010
and initially indicated that while he did go to XM’s room on 30
October, the only physical contact he had with her was a mutual
kiss. Later that same night, when again interviewed by NCIS,
the appellant admitted that he lied in his earlier statement.
In his second statement the appellant contended that in addition
to mutual kissing, there was mutual, over the clothing caressing
during which XM was saying the appellant’s name in a pleasurable
way. The appellant also indicated that he attempted to put his
hands down XM’s pants, at which time she stopped kissing him and
backed up. The appellant denied inserting his fingers into XM’s
vagina and having sex with her.

1
  Having found that the appellant was denied effective assistance of counsel,
his remaining assignments of error are moot.
2
  The friend, MIDN B, was also a Sexual Assault Victim’s Intervention Guide at
the Naval Academy.

                                      2
     Additional facts pertinent to the resolution of this
assignment of error are provided below.

                     II. Procedural History of Case

     The appellant’s trial, including a post-trial Article 39a,
UCMJ, session, was completed on 27 January 2012. After
receiving the staff judge advocate’s recommendation and the
appellant’s three separate requests for clemency, 3 on 3 April
2012 the CA approved the sentence as adjudged.

     The appellant’s record of trial was originally docketed on
20 April 2012 and his initial appellate defense counsel
submitted the case on its merits, i.e., without assignment of
error, on 7 August 2012. While reviewing the record and allied
documents, we discovered that the clemency matters submitted by
the appellant’s trial defense counsel averred that the appellant
did not receive effective assistance of counsel at trial.
Moreover, the trial defense counsel against whom this claim was
levied was the same counsel who forwarded the appellant’s
concerns to the CA and represented the appellant in his post-
trial matters.

     On 26 September 2012, we directed that the appellant file a
brief asserting a position on trial defense counsel’s apparent
conflict of interest during the post-trial processing of his
case. After receiving and considering the appellant’s brief, we
ordered production of affidavits from the appellant’s trial
defense counsel responding to the appellant’s allegation of
ineffective assistance of counsel during the post-trial
processing of his case. After considering the affidavits of the
trial defense counsel, the pleadings of the parties, and the
record of trial, on 7 January 2013, we set aside the original
CA’s action and returned the record of trial to the Judge
Advocate General for remand to an appropriate CA for proper
post-trial processing with a conflict-free counsel. This time,
during the post-trial process, the appellant was afforded



3
  On 22 March 2012, the appellant submitted a request for clemency directly to
the convening authority which included a letter from Ms. Mary C. Wilson dated
11 November 2011. On 25 March 2012, the appellant’s trial defense submitted
a clemency package which included the same letter appellant sent to the
convening authority on his own behalf, and letters from two members who sat
as part of the court-martial panel who decided appellant’s case. Finally,
the appellant requested that the CA consider a letter dated 25 March 2012
sent to the staff judge advocate on his behalf by Ms. Mary C. Wilson.


                                      3
conflict-free counsel who provided clemency matters 4 on behalf of
the appellant to the CA on 25 March 2013. On 4 April 2013, the
CA again approved the sentence and except for the dismissal
ordered it executed.

     The appellant’s case was redocketed with this court on 9
April 2013, and forwarded to the appellate defense division for
the opportunity to file supplemental pleadings or to again
submit the case on its merits. The appellant’s new appellate
defense counsel filed a brief asserting the aforementioned three
supplemental assignments of error on 12 June 2013. After the
Government filed its answer, the record was sent to panel on 11
September 2013

     After considering the pleadings of the parties and the
record of trial, and based in large part upon the detailed trial
defense counsel’s contention that he was ineffective in his
representation of the appellant during the trial, on 8 October
2013, we ordered a hearing in accordance with United States v.
DuBay, 37 C.M.R. 411 (C.M.A. 1968), to provide findings of fact
and conclusions of law as to whether the appellant received
effective assistance of counsel. The DuBay hearing was
conducted from 17-19 December 2013, and the DuBay judge provided
detailed findings of fact and conclusions of law. 5 The
appellant’s case was re-docketed on 19 June 2014 and forwarded
to appellate counsel for supplemental briefing in light of the
DuBay hearing. The last brief in this case, the appellant’s
reply brief to the Government’s supplemental answer, was filed
on 29 December 2014, with the appellant again arguing that he
did not receive effective assistance of counsel at trial.

                III. Ineffective Assistance of Counsel

     The appellant alleges that the trial defense team was
ineffective in its representation at court-martial by:

      (1) failing to use information readily available at

4
  The detailed post-trial defense counsel’s 25 March 2013 clemency petition
also raised issues of ineffective assistance of counsel and contained an
affidavit provided by trial defense counsel detailing the errors he believed
he committed in the representation of appellant during the court-martial
process.

5
   We have independently reviewed the military judge’s finding of fact and
all, with the exception of finding of fact 42, are supported by the record.
With the exception of finding of fact 42, we adopt them as our own.


                                      4
      its disposal to challenge XM’s credibility and
      testimony;

      (2) presenting evidence that affirmatively assisted
      the Government’s case;

      (3) failing to challenge a Government witness’s
      credibility;

      (4) advising the appellant to testify on his own
      behalf without adequate preparation by his counsel;

      (5) performing poorly in front of the members, to
      include delivering a sentencing argument contrary to
      his client’s wishes; and,

      (6) failing to provide adequate pretrial
      representation in that the defense team neglected to
      make a motion to suppress the appellant’s Facebook
      page offered by the Government and waiving the issue
      of multiplicity.

     The appellant also contends that the combination of these
errors had the cumulative effect of depriving him effective
assistance of counsel as guaranteed by the Sixth Amendment. We
agree.

     To effectively evaluate these claims, we must carefully
review every aspect of the appellant’s case and balance these
claims against the total record. In this review, we not only
consider the experience, training, and abilities of the trial
defense team, but also their preparation and presentation
starting with the investigative and pretrial proceedings and
culminating in their representation of the appellant during
post-trial matters. 6

                                IV. The Law

     The Sixth Amendment entitles criminal defendants to
representation that does not fall “below an objective standard
of reasonableness” in light of “prevailing professional norms.”

6
  As stated above, the appellant alleged that his counsel were ineffective in
their representation of him at trial, thereby creating a conflict of interest
in the representation of him during post-trial matters. We set aside the
original CA’s action and the appellant was given new, conflict-free counsel,
to assist him in the new post-trial processing of his case.


                                      5
Strickland v. Washington, 466 U.S. 668, 688 (1984). The Court
of Appeals for the Armed Forces (CAAF) has applied this standard
to military courts-martial, noting that “[i]n order to prevail
on a claim of ineffective assistance of counsel, an appellant
must demonstrate both (1) that his counsel’s performance was
deficient, and (2) that this deficiency resulted in prejudice.”
United States v. Green, 68 M.J 360, 361 (C.A.A.F. 2010)
(citations omitted). In order to show prejudice under
Strickland, “[t]the defendant must show that there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Strickland, 466 U.S. at
694.

     Counsel are presumed to be competent 7 and therefore our
inquiry into an attorney’s representation must be “highly
deferential” to the attorney’s performance and employ “a strong
presumption that counsel’s conduct falls within the wide range
of professionally competent assistance.” Id. at 689. The
appellant has the heavy burden of establishing a factual
foundation for a claim of ineffective representation. United
States v. Grigoruk, 52 M.J. 312, 315 (C.A.A.F. 2000). Strategic
or tactical decisions made by a trial defense counsel will not
be second-guessed on appeal unless the appellant shows specific
defects in counsel’s performance that were unreasonable under
prevailing professional norms. United States v. Mazza, 67 M.J.
470, 475 (C.A.A.F. 2009). The appellant’s burden of proof
requires that he provide a specific, particularized statement of
the errors or deficient performance alleged and that he support
his claim by evidence and facts. Bare allegations based on
speculation, conjecture, and conclusory comments will not
suffice. United States v. Jones, 39 M.J. 815, 818 (A.C.M.R.
1994).

     The CAAF has applied a three-prong test to determine if the
presumption of competence has been overcome:

         (1) Are the allegations true; if so, “is there a
        reasonable explanation for counsel's actions?”

        (2) If the allegations are true, did defense counsel’s
        level of advocacy fall “measurably below the
        performance ordinarily expected of fallible lawyers?”;


7
    United States v. Cronic, 466 U.S. 648, 658 (1984).

                                        6
      (3) If defense counsel was ineffective, is there a
      “reasonable probability that, absent the errors,”
      there would have been a different result?

United States v. Polk, 32 M.J. 150, 153 (C.M.A. 1991) (citations
and internal punctuation omitted). When more than one counsel
is involved, we evaluate the combined efforts of the defense as
a team rather than evaluating the individual shortcomings of any
single counsel. United States v. McConnell, 55 M.J. 479, 481
(C.A.A.F. 2001). The court “looks at the questions of deficient
performance and prejudice de novo.” United States v. Gutierrez,
66 M.J. 329, 330-31 (C.A.A.F. 2008) (citations omitted).

                                V. Analysis

     The appellant provides multiple examples of conduct or
omissions that he claims prejudiced his case, ultimately denying
him effective assistance of counsel. We limit our analysis and
discussion to three basic aspects: (1) the defense team’s
qualifications and capabilities; (2) the defense team’s conduct
in challenging the Government’s case, to include the cross-
examination of key witnesses; and, (3) the presentation of the
defense.

A. The Defense Team’s Experience

     The appellant was represented at court-martial by two
junior defense counsel, Lieutenant (LT) S, as lead counsel, and
LT T as the assistant defense counsel. For LT S, this was his
first contested trial. His only other “litigation” experience
was handling three judge-alone guilty plea cases and negotiating
a nonjudicial punishment in lieu of court-martial in another
case which, in all likelihood, involved no time in court. 8 DuBay
Record at 36. LT T’s only litigation experience involved
handling, as lead counsel, a guilty plea case involving a Sailor
charged with possession of child pornography. While LT T had
significant experience in the Navy as a former surface warfare
officer, she, like LT S, had no real litigation experience.




8
  LT S indicated that he was also assigned as the assistant defense counsel on
a case concerning a gang-rape sexual assault involving many Sailors. LT S
and the lead counsel worked out an agreement with the CA where their client
would testify against the others for a favorable pretrial agreement. LT S
indicated that his participation in the case was limited to sentencing and
that he did not examine any witnesses during direct or cross, and got very
little out of the experience. DuBay Record at 37.

                                      7
     Recognizing their lack of experience and need for
assistance on appellant’s case, LT S submitted a request for the
assignment of an individual military counsel (IMC) to the case.
LT S was insistent upon the IMC having Naval Academy experience
and requested the assignment of LCDR R, a Navy judge advocate
who was a graduate of the Naval Academy and an instructor at the
Naval Justice School. When LCDR R’s commanding officer
determined that he was unavailable and could not serve as an IMC
in this case, the defense team filed and then withdrew a motion
for review of the denial and did not pursue the issue any
further. Additionally, the trial defense team did not make the
military judge aware of their concerns that they lacked the
litigation experience to effectively represent the appellant and
were in over their heads. DuBay Record at 47.

     In sum, the appellant was represented by two defense
counsel who between them had litigated no contested courts-
martial, let alone a forcible rape case involving expert
testimony and forensic evidence. While the defense team’s
command leadership told LT S that if he needed help he would
receive it, the trial defense team never took advantage of the
offer of assistance. DuBay Record at 280; DuBay Finding of Fact
(FOF) 88. While the DuBay record makes it clear that the
defense team was dedicated to providing the appellant with
competent representation, they could not overcome their lack of
experience and inadequate preparation.

     The trial defense team’s lack of experience and LT S’s
affidavits, as well as his admissions during the DuBay hearing
that he did not provide the appellant with effective counsel at
trial, certainly assists the appellant in meeting the heavy
burden of rebutting the presumption of competence, at least as
it pertains to the first prong of Strickland. LT S’s belief
that he was ineffective, while significant, is but one factor
this court considers in its Strickland analysis. We must look
to the “adequacy of counsels’ performance, rather than viewing
the limited experience of counsel as an inherent deficiency.”
United States v. Murphy, 50 M.J. 4, 9 (C.A.A.F. 1998) (citing
Lockhart v. Fretwell, 506 U.S. 364 (1993)) (additional citations
omitted). However “. . . inexperience -- even if not a flaw per
se -- might well lead to inadequate representation”. Id. In
the final analysis, we must consider whether the defense team’s
errors were so serious that the appellant was deprived “of a
fair trial, a trial whose result is reliable.” Strickland, 466
U.S. at 687.



                                8
B. The Government’s Case in Chief

     Prior to trial commencing, the trial counsel moved the
court to allow NCIS Special Agent (SA) B, the investigating
agent in this case, to remain at counsel table during the trial.
The trial defense team initially opposed this move, but later
acquiesced when the trial counsel stated that the agent would be
called as a witness first, making concerns that SA B could hear
other testimony prior to taking the stand moot. Based upon
trial counsel’s representation, LT S indicated that he planned
his trial strategy around SA B being called first and had
scripted some leading questions designed at pointing out
inconsistencies in statements the victim had made to her. The
Government, however, decided not to call SA B at all during the
trial, which made LT S feel as if his “preparations just [went]
up in the air, and [he] had to readjust.” DuBay Record at 71.
When asked if he was prepared in the event that the Government
did not call SA B as a witness, LT S’s answer was, “No. I
expected she was going to be called first.” Id.; DuBay FOF 28.
LT S indicated that he had difficulty adjusting to this new
development.

     During the presentation of the Government’s case, the
appellant contends that the trial defense team possessed
impeachment information, yet neglected to use it, and therefore
failed to effectively cross-examine the chief prosecution
witnesses, including XM, the alleged victim. The testing of the
Government's proof by counsel “in the form of a thorough,
focused cross-examination of [witnesses], [is] pivotal to the
effective defense of [appellant].” United States v. Gibson, 51
M.J. 198, 201 (C.A.A.F. 1999). We are mindful however, that
strategic or tactical decisions, which include decisions as to
whether and to what extent to cross-examine the Government
witnesses, made by a trial defense counsel, are not normally
second-guessed. Instead, we look to see if defense counsel’s
actions were unreasonable under prevailing professional norms.
Mazza, 67 M.J. at 475.

     The alleged sexual assault occurred in a dormitory room of
Bancroft Hall aboard the United States Naval Academy during a
time when the building was, for the most part, devoid of other
Midshipmen, who were on a field trip. Other than the testimony
of the appellant and XM, there was no evidence that anyone else
heard or saw anything out of the ordinary that day.

     XM testified at both the Article 32 Investigation and at
trial. The appellant argues that she gave inconsistent

                                9
testimony which should have been further developed on cross-
examination to challenge her credibility before the members.
For example, the appellant contends that at trial XM indicated
the appellant was standing and grabbed her arm, told her to “Get
up,” which she did, then sexually assaulted her from behind
while both were standing. She went on to say during her trial
testimony that she tried to remove the appellant’s hands from
her body during the sexual assault, to no avail, and when she
was able to separate from him saw ejaculate on his pants.
Record at 528-36. At the Article 32, XM stated that she
complied with the appellant’s whispered order to get up without
being grabbed; that she froze and did nothing to prevent the
attack; and that the appellant ejaculated on her upon completion
of intercourse. When asked why he didn’t use these inconsistent
statements to challenge the alleged victim’s testimony, LT S
stated that he forgot to do so.

     We note that while LT S contends that he simply forgot to
ask XM about the discrepancies in her testimony at trial and her
testimony at the Article 32 Investigation, the trial defense
team had neither a transcript of her testimony from the Article
32 Investigation, nor a way to play the pertinent sections of
the recording for the members. In other words, while LT S
maintains that he had planned to use this information to impeach
and thereby challenge the credibility of XM, he had no mechanism
in place to do so if XM denied making statements inconsistent
with her Article 32 testimony.

     Perhaps more disturbingly, LT S indicated he had
information that XM confided in Midshipman (MIDN) B and told her
that the appellant sexually assaulted her while she was lying on
the floor – a significant deviation from both her Article 32 and
in-court testimony. This information was never presented to the
members.

     In an attempt to get this inconsistent statement before the
members, the following colloquy occurred during LT S’s cross
examination of XM:

     Q: And then you coordinated with [MIDN B] and you met [MIDN
     B] at the game:
     A: Yes, sir.

     Q: Okay. And did you tell her at the game what happened?
     A: I told [MIDN B] what happened.

     Q:   And did you tell her about the assault?

                                10
     A:    I told her I was raped.

     Q: Did you describe how it happened?
     A: I just said “I was raped in my room,” not how it – like
     the details of what happened.

     Q: You didn’t give her any of the details about where you
     were standing or he was standing?
     A: No, sir.

     Q: So, you didn’t tell her that you were on the floor and
     that he was on top of you?
     TC: Objection, hearsay.

     MJ: What are you offering it for, counsel?
     DC: I’m offering it to impeach the credibility of the
     witness, sir.

Record at 561-62.

     After the military judge called for an Article 39a session
and the members were excused, the following exchange occurred:

     MJ:    Where are we going?

     DC: Sir, it’s my belief I –that [MIDN    B] if called to
     testify will testify that [XM] did, in   fact, describe the
     assault and the events of the assault,   and the incident
     that she reports would be inconsistent   with the testimony
     that she gives today.

     MJ: Well, you’ve already asked her: Did you tell [MIDN B]
     the details?” and she said, “No, texted something bad
     happened…Coordinated with Lieutenant – with [MIDN B] to
     meet at the football game. I told the [MIDN B] I was raped
     in my room.” So, have you not answered –the witness has
     not already answered your questions?
     DC: Understood, sir, thank you.

     MJ: You want to ask her one more time, “Did you give the
     details to [MIDN B] on the 30th of October …
     DC: That would be a fair question, sir.

     MJ: ...while at the football game?”
     DC: Yes, sir, that would get to my point.

     MJ:   You are more than welcome to go down that road.

                                  11
     DC:   Yes, sir

     MJ: And then your case or, you know, if [MIDN B] testifies
     in the government’s case, you can cross-examine her with a
     prior inconsistent statement at that point.

Id. at 563-64.

When the members reassembled and the cross-examination of XM
continued, she was asked if she remembered telling MIDN B about
the details of what happened that day, to which XM answered:
“Not really details, no, sir.” Id. at 566.

     Unable to get this information before the members via the
cross-examination of XM, later in the trial, as part of their
case in chief, the defense team called MIDN B. The only
questions of any substance MIDN B was asked by LT S was if she
thought XM was truthful to which she replied: “My opinion is
that she’ll be fully truthful in some situations, but not fully
truthful in other situations.” Id. at 812.

     At the Article 39(a) session called by the military judge
during the cross-examination of XM, the defense team intimated
that their strategy was to challenge the credibility of the
alleged victim by demonstrating that she gave varying accounts
of the alleged sexual assault. They even gave an offer of proof
as to what MIDN B would say if called to testify. The only way
to get this information before the members was either through
the cross-examination of XM, which failed, or the direct
examination of MIDN B. The trial defense team failed to fully
develop this inconsistent statement theory that they had
cultivated by the cross-examination of XM and instead myopically
focused on XM’s truthfulness. At the DuBay hearing, the trial
defense counsel indicated that his failure to inquire about the
prior inconsistent statement was not a strategic decision.
DuBay Record at 742-43. As a consequence, this information
never made it to the members.

     Similarly, the appellant argues that the trial defense team
had impeachment information and failed to use it in the cross-
examination of Nurse B, the nurse who examined XM after the
alleged sexual assault. Trial defense counsel had knowledge
that Nurse B had a federal conviction for conspiracy to pass
counterfeit United States currency, and knew that conviction was
admissible for impeachment. DuBay FOF 35, 98; DuBay Record at
101-02. The trial defense team not only failed to obtain a
certified copy of the conviction to use at trial, they also

                               12
failed to confront Nurse B about its existence during cross-
examination. DuBay FOF 35; DuBay Record at 101-02, 449.

      During the DuBay, LT S admitted that he had informed the
appellant of the importance of said conviction pretrial and
intended to employ it as impeachment evidence. When questioned
by the appellant as to why he did not confront Nurse B with this
impeaching information, he stated he had simply forgotten about
it. DuBay FOF 35. While learned jurists might debate the point
as to what, if any, effect this evidence would have had on the
members, as well as the admissibility of such evidence, 9 we
decline to engage in such speculation. The fact remains that
this was part of the defense team’s strategy that they failed to
utilize due to oversight, thus highlighting their lack of
experience and/or preparation. In other words, the failure to
utilize a crimen falsi conviction for a federal offense
involving dishonesty to attack the witness’s credibility was
clearly not a strategic choice but a glaring omission.

     The appellant additionally contends that the trial defense
team had information at their disposal which suggested that
Nurse B had a tendency to “chart[] a little too much” and wanted
to use this to challenge XM’s sexual assault examination
findings. Record at 127. The trial defense team again failed
to explore or develop this information on cross-examination.
The trial defense team additionally neglected to review XM’s
medical record to see whether any of the bruises or abrasions
were documented prior to the alleged assault, as XM was a member
of one of the Naval Academy’s sports teams. The trial defense
team, while acknowledging that this information could have been
important and useful, indicated that they simply neglected to
review XM’s medical record prior to trial. Thus, the members
were left with uncontroverted evidence that her bruises and
abrasions were caused by the alleged sexual assault. 10

      In the appellant’s case, the fact that sexual intercourse

9
  Nurse B was convicted in 1991 and sentence to three years’ probation in
1993. MILITARY RULE OF EVIDENCE 609(b), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2008
ed.), generally restricts admissibility of criminal convictions if more than
ten years old. Evidence of a conviction more than ten years old is not
admissible unless the court determines, in the interest of justice, that the
probative value outweighs its prejudicial effect.
10
   At trial, XM indicated that although she played a sport at the Naval
Academy, most injuries from her position are located on the legs and below
the knees, not above the waist. Record at 587. However, the record suggests
that she had documentation in her medical record of a concussion from playing
this sport.

                                          13
occurred was not in dispute by either side and thus the only
issue was one of consent. That fact is critical to the analysis
of the defense team’s performance. The Government’s proof of
sexual assault, arguably, rested on the testimony and the
credibility of XM, the alleged victim, and the medical findings
recorded by the sexual assault nurse examiner. The trial
defense team’s failure to bring out the aforementioned salient
points during cross-examination had the practical effect of
allowing the testimony of the alleged victim and the nurse
examiner to go, for all intents and purposes, unchallenged.
When asked why he failed to challenge their testimony on cross-
examination with the impeachment evidence he had at his
disposal, LT S again stated that he forgot and that they were
not strategic or tactical decisions by the defense team.

C.   Presentation of the Defense

     Lastly, we look at the case the defense put before the
members in the representation of their client. As noted above,
the fact that sexual intercourse occurred was not in dispute,
with the defense contending that it was consensual. Throughout
his opening statement, however, LT S consistently referred to
the sex act as a “sexual assault” and concluded his opening
statement by telling the members: “[T]here is only one witness
to the sexual assault, [XM].” Record at 441. Throughout the
court-martial, LT S continued to refer to the event in question
as an “assault.” Record at 561, 568, 582. Defense counsel’s
reinforcing to the members that the sexual encounter was an
assault had the effect of assisting the Government and
bolstering the case against the appellant. See United States v.
Garcia, 59 M.J. 447, 452 (C.A.A.F. 2004).

     After LT S completed the defense’s opening statement, the
assistant trial defense counsel pulled him aside and told him
that he needed to get past the issues he had in his opening and
“focus on what’s coming up next” and asked their command’s
senior defense counsel if she needed to “do anything right now,
to step in, or alert the judge, or alert [her] client?” DuBay
Record at 600-01; DuBay FOF 254.

     The day the court-martial commenced was the day after the
new commanding officer of Defense Service Office North took
command. After witnessing the opening statement delivered by LT
S, she became immediately concerned that LT S “was either
unprepared, or too nervous to be able to conduct himself
appropriately in the trial.” DuBay Record at 512; DuBay FOF
215. As a result of this observation she immediately directed

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that the trial defense team receive assistance and that LT S
receive remedial training before trying another case. DuBay
Record at 513; DuBay FOF 217.

     The trial defense team continued to struggle throughout the
remainder of the trial. The record reflects that LT S labored
to think on his feet and did not show a command of the basic
rules of evidence. The record is replete with many instances
where LT S attempted to enter matters into evidence - either
documentary or testimonial - and the military judge would recess
the hearing and direct him to consult with his senior defense
counsel so that he could receive instruction as to how to
complete his objective within the rules of evidence.

     With the defense’s theory that this was a case of
consensual sex, credibility was the critical issue for both
sides. In an attempt to bolster his client’s credibility, the
trial defense counsel called MIDN D, the appellant’s ex-
girlfriend, to the stand and asked her if she trusted the
appellant; she answered that she did not. Record at 735. The
impact of this testimony was so damaging that the military judge
halted the examination sua sponte, calling an Article 39a
session in which he told LT S, “I just watched you take a
broadside hit,” directed that he speak to his supervisory
counsel and offered to recess the court for the day in order for
counsel to take time to prepare. Id. at 736.    This damaging
testimony is directly attributable to LT S’s failure to properly
prepare this witness prior to her taking the stand. LT S
admitted that even though he spoke with MIDN D prior to calling
her as a witness, he never asked her the question as to the
appellant’s trustworthiness prior to her taking the stand, and
did not know what her response would be.

     Next the appellant alleges that trial defense counsel put
him on the stand and did so “without advice or proper
preparation.” Appellant’s Brief of 17 Jul 2014 at 23. It is
not in dispute that trial defense counsel advised and ultimately
persuaded the appellant to take the stand despite the
appellant’s original desire not to testify. DuBay FOF 281, 282;
DuBay Record at 712-13.   We recognize that the accused has the
ultimate authority to make certain fundamental decisions
regarding the case, including whether or not to testify in his
own defense. Jones v. Barnes, 463 U.S. 745, 751 (1983) (citing
Wainwright v. Sykes, 433 U.S. 72, 93, n. 1 (1977) (Burger, C.J.,
concurring)) (additional citation omitted). However, equally as
notable are counsel’s duties which “include consulting with the
defendant on important decisions, keeping the defendant informed

                               15
of important developments, and bringing to bear ‘such skill and
knowledge as will render the trial a reliable adversarial
testing process.’” Garcia, 59 M.J. at 452 (quoting Strickland,
466 U.S. at 688). Additionally, Judge Advocate General
Instruction 5803.1C, Rule 1.4(b) (Ch-1, 10 May 2010) states an
attorney must explain matters to their client to the extent that
allows them to make “informed decision[s] regarding the[ir]
representation.”

     There is evidence that the trial defense team advised and
convinced the appellant to testify without informing him of the
consequences. For example, the appellant was not informed that
his previously suppressed statement to NCIS would come into
evidence to impeach his testimony. DuBay FOF 64, 66, 269; DuBay
Record at 187. Secondly, trial defense counsel failed to
account for the fact that the appellant’s testimony would
contradict the forensic evidence presented by the Government. 11
The trial defense team also failed to recognize a number of
inconsistencies in the appellant’s own statements. DuBay FOF
108; DuBay Record at 486, 686-87, 745; Record at 1016-20.

     Trial defense counsel’s advice to the appellant to take the
stand in spite of his reluctance to do so directly resulted in:

     (1) a previously suppressed statement in which he lied
     to NCIS being placed into evidence;

     (2) a number of inconsistencies in the appellant’s own
     account of the matter being highlighted to the
     members; and,

     (3) the appellant directly contradicting forensic
     evidence in a trial that largely hinged on
     credibility.

     Finally, the appellant points out that he testified during
sentencing and indicated that he wanted to remain in the Naval
service, namely at the Naval Academy, and yet LT S argued for a



11
  At trial, the appellant contended that while he engaged in consensual sex
with XM, he did not ejaculate on her or in her but rather returned to his
room where he masturbated and then ejaculated, outside the presence and
proximity of XM. The forensic evidence presented at trial by the Government
found semen on XM and her clothing, confirming that he did ejaculate on her
and in her presence. The glaring inconsistencies in the appellant’s
testimony and the forensic evidence had the practical effect of making the
appellant’s account of the sexual encounter less credible to the members.

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dismissal, in direct contravention of his wishes.   The appellant
testified:

     Q: Would you – if you could, would you still want to
        be in the Marine Corps?
     A: Yes, sir.

     Q: Is there anything else you want to tell the court-
        martial here today?
     A: . . . at this point, when I say the Naval Academy
     is all I have, it really is all I have (Crying).

Record at 1293.

     In arguing for an appropriate sentence, LT S stated,
“Certainly, dismissal from the Naval Academy, I mean your
judgment wouldn’t be complete without it.” Id. at 1314. The
military judge sua sponte asked for clarification of defense’s
argument. LT S stated, “I am asking for a dismissal and . . .
zero punishment besides a dismissal.” Id. at 1315. The
military judge then called an Article 39a session in which he
addressed LT S, saying “[Y]our client testified that he wanted
to stay in the Navy and even wanted to even become a Marine
Corps Officer, and that’s the sworn testimony of your client on
the stand, and yet you’re standing in front of the members
saying give him a dismissal.” Id. at 1316. “Counsel may not []
ask a court-martial to impose a punitive discharge when the
accused’s wishes are to the contrary.” United States v. Dresen,
40 M.J. 462, 465 (C.M.A. 1994) (citing United States v.
Robinson, 25 M.J. 43, (C.M.A. 1987)) (additional citations
omitted). The military judge then gave the members a curative
instruction on the record and allowed LT S to reargue sentencing
in which he again referenced the option of a discharge. Record
at 1316, 1318-20.

D. Cumulative Effect of Errors.

     In the appellant’s case, the evidence was not overwhelming.
While there was some medical evidence of bruising supporting the
alleged victim’s account of the sexual contact, this case
ultimately boiled down to the issue of credibility. It was on
this point that the trial defense team failed in several
significant ways summarized as follows:

     (1) The defense team failed to effectively cross-
     examine the alleged victim in that it had evidence of
     inconsistent statements made by XM during the Article

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     32 Investigation that differed significantly from her
     testimony at trial but had no mechanism in place to
     challenge her on cross-examination;

     (2) While the trial defense team planted the seed in
     the minds of the members that the alleged victim told
     MIDN B yet another account of the sexual assault, they
     forgot to follow up with this line of questioning
     after calling her as a witness;

     (3) The trial defense team’s attempt to bolster their
     client’s credibility had the opposite effect when they
     asked MIDN B if she thought the appellant was
     trustworthy and she responded in the negative; and

     (4) Finally, while we do not second-guess the
     defense’s tactical decision to put the appellant on
     the stand, the record strongly suggests that they did
     so without fully considering or advising him of the
     ramifications of doing so, including opening the door
     to the use of his previously suppressed statement,
     which was replete with inconsistencies, as impeachment
     evidence.

     Based on the foregoing, we have little difficulty
concluding that the trial defense team’s level of advocacy fell
“measurably below the performance [] (ordinarily expected) of
fallible lawyers.” Polk 32 M.J. at 153 (citation omitted).

E. Prejudice

     Having found the trial defense team deficient in their
representation of the appellant, we next test for prejudice.
That is, is there a “reasonable probability that, absent the
errors,” there would have been a different result. Id.
(citations omitted)

     In United States v. Dollente, 45 M.J. 234 (C.A.A.F. 1996)
the CAAF found that a combination of three evidentiary errors
cumulatively affected the case and prejudiced the appellant.
The CAAF wrote: “although individually each error in this case
does not warrant reversal, the ‘combined effect of these . . .
errors was so prejudicial so as to strike at the fundamental
fairness of the trial.’” Id. at 236 (quoting United States v.
Parker, 997 F.2d 219, 222 (6th Cir. 1993)). “In sum, the
‘cumulative effect of these errors denied appellant a fair
trial.’” Id. (quoting United States v. Banks, 36 M.J. 150, 152

                               18
(C.M.A. 1992)). The Ninth Circuit in Harris v. Wood, 64 F.3d
1432, 1438 (9th Cir. 1995) stated, “Prejudice may result from
the cumulative impact of multiple deficiencies.” (Citation and
internal quotation marks omitted). Similarly, the CAAF has
found that it is appropriate “to consider whether defense
counsel's conduct of the trial as a whole might have been
defective within the meaning of Strickland, even though
individual oversights or mistakes standing alone might not
satisfy Strickland.” United States v. Loving, 41 M.J. 213, 252
(C.A.A.F. 1994) (citing Frey v. Fulcomer, 974 F.2d 348, 361 n.12
(3d Cir. 1992) (prejudice determined by review of all of
counsel’s errors combined).

     While the aforementioned errors standing alone may not get
over the “high hurdle” established in Strickland, “[w]e cannot
say with any certainty that the cumulative effect of these
errors did not affect the outcome of this case.” See Dollente,
45 M.J. at 243 (citations omitted). Accordingly, we concur with
the DuBay judge’s conclusion of law that the appellant was not
afforded effective assistance of counsel as guaranteed by the
Sixth Amendment.

                           Conclusion

     The findings and the sentence are set aside. The record is
returned to the Judge Advocate General of the Navy. A rehearing
may be ordered.

     Senior Judge BRUBAKER and Judge HOLIFIELD concur.


                                For the Court



                                R.H. TROIDL
                                Clerk of Court




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