UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                           WOLFE, ALDYKIEWICZ, and EWING 1
                               Appellate Military Judges

                            UNITED STATES, Appellee
                                         v.
                           Major CHRISTIAN R. MARTIN
                           United States Army, Appellant

                                    ARMY 20160336

                            Headquarters, Fort Campbell
         Steven Walburn, Andrew Glass, and Michael J. Hargis, Military Judges
                   Colonel Susan K. Arnold, Staff Judge Advocate

For Appellant: William E. Cassara, Esquire (argued); Lieutenant Colonel
Christopher D. Carrier, JA; William E. Cassara, Esquire (on brief and reply brief).

For Appellee: Captain Joshua Banister, JA (argued); Lieutenant Colonel Eric K.
Stafford, JA; Major Wayne H. Williams, JA; Captain Joshua Banister, JA (on brief).


                                       5 March 2019
                                ---------------------------------
                                SUMMARY DISPOSITION
                                ---------------------------------

Per Curiam:

      Appellant, an Army Ranger and Master Aviator, beat and strangled his
stepson when he was between the ages of twelve and fifteen. Appellant also
wrongfully possessed and stored classified information. 2



1
    Judge Ewing decided this case while on active duty.
2
  A panel composed of officer members sitting as a general court-martial convicted
appellant, contrary to his pleas, of two specifications of assault consummated by a
battery upon a child under the age of sixteen years and two specifications of conduct
unbecoming an officer and a gentleman, in violation of Articles 128 and 133,
Uniform Code of Military Justice [UCMJ], 10 U.S.C. §§ 928 and 933 (2012). The
panel sentenced appellant to a dismissal, confinement for ninety days, forfeiture of
all pay and allowances, and a reprimand. The convening authority approved the
sentence as adjudged.
MARTIN—ARMY 20160336

       Appellant asserts four assigned errors on appeal. None merit relief, however,
three merit brief discussion: 3 (1) whether the military judge erred in denying the
defense motion to dismiss due to unlawful command influence [UCI] and
prosecutorial misconduct; (2) whether the military judge abused his discretion in
precluding the defense from eliciting testimony that his wife’s children coached each
other how to testify; and (3) whether the defense counsel’s failures and errors in this
case denied appellant the effective assistance of counsel.

                                  BACKGROUND

                              The “Rear Naked Choke”

       Appellant and JH were married from 2004-2014. JH had three children,
including her son JEH, from a prior marriage. JEH described himself as “nerdy” and
not athletic. In an effort to make JEH “tough,” appellant would wrestle JEH which
led to two instances where appellant, with no prior warning and to JEH’s surprise,
strangled JEH. The most severe assault occurred when appellant came up behind his
stepson and strangled him by placing his arms around his stepson’s neck, in a “rear
naked choke,” lifting him off the ground, and squeezing his neck until his body went
limp and felt numb.

                                  The Belt and Stick

       On another occasion, appellant reacted to JEH tipping a porta potty at a soccer
field. Appellant ordered JEH to clean up the mess and return home afterwards to
shower. After JEH showered, appellant beat his stepson with a looped thick leather
belt and a bamboo stick on his back, arms, shoulders, and face. The photos of JEH’s
bruises, in addition to corroborating JEH’s account of what happened, document that
appellant inflicted significant injury to his stepson.




3
  We do not discuss appellant’s claim that the evidence is legally and factually
insufficient to support the findings of guilt for assault consummated by a battery and
for conduct unbecoming an officer and a gentleman. We find the evidence admitted
at trial overwhelmingly proves appellant’s guilt beyond a reasonable doubt. See,
e.g., United States v. Gutierrez, 73 M.J. 172, 175 (C.A.A.F. 2014); United States v.
Oliver, 70 M.J. 64, 68 (C.A.A.F. 2011). We have also considered the matters
personally asserted by appellant pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982), and find they lack merit.



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MARTIN—ARMY 20160336

                              LAW AND DISCUSSION

            A. Unlawful Command Influence and Prosecutorial Misconduct

       Appellant’s claim of prosecutorial misconduct cites to a combination of
actions by the Special Victim Prosecutor (SVP) and trial counsel which he asserts
were prosecutorial misconduct and resulted in apparent adjudicative UCI. See
United States v. Weasler, 43 M.J. 15, 17-18 (C.A.A.F. 1995) (distinguishing between
UCI in the accusatorial stage and the adjudicative stage of a court-martial).

       An appellant claiming apparent UCI on appeal must show “some evidence that
unlawful command influence occurred.” United States v. Boyce, 76 M.J. 242, 249
(C.A.A.F. 2017) (internal quotation marks omitted) (citation omitted). If appellant
makes the requisite showing, the burden shifts to appellee to prove beyond a
reasonable doubt “that either the predicate facts proffered by appellant do not exist,
or the facts as presented do not constitute [UCI].” Id. at 249 (citing United States v.
Salyer, 72 M.J. 415, 423 (C.A.A.F. 2013).

       We first address the actions appellant claims amount to prosecutorial
misconduct. First, appellant claims the SVP and trial counsel “harassed” and tried
to influence the local county prosecutor not to bring charges for bigamy against JH.
He bases this claim on the SVP’s and trial counsel’s frequent e-mails and phone
calls to the local prosecutor. We do not find any evidence in the record to support
appellant’s claim the SVP and trial counsel harassed or tried to influence the local
prosecutor. It appears to us that the Army prosecutors diligently prepared
appellant’s case for trial. In fact, it is recommended that Army prosecutors
communicate with prosecutors in other jurisdictions when they have witnesses in
common and one prosecution could impact the other. Sharing information between
offices is simply not improper. And, in any event, we see no prejudice.

       Second, appellant frivolously claims the SVP and trial counsel failed to timely
disclose the local prosecutor’s personal opinion that JH and JEH lacked credibility.
Although the government did not disclose this information to the defense for six
months, it was nevertheless disclosed fifteen months prior to trial. We are doubtful
the professional opinion of another attorney as to the credibility of a witness
constituted Brady evidence. See, e.g., Brady v. Maryland, 373 U.S. 83 (1963). We
need not decide this issue, however, as appellant cannot point to any prejudice this
“delayed” disclosure had on his trial.

       Third, appellant claims the trial counsel should have advised members of the
Criminal Investigation Command (CID) against searching appellant’s residence as
part of an illegal “safety check.” Consistent with the military judge’s finding, we
find no evidence that the trial counsel endorsed CID’s search. Furthermore, no
evidence was seized as part of the search and there was no motion to suppress



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MARTIN—ARMY 20160336

evidence at trial. We fail to see any link between CID’s search and the prosecution
of appellant’s case.

       Fourth, appellant asserts the trial counsel had a prohibited conversation with
him, as a represented party, outside the presence of his counsel. This interaction
occurred after appellant’s “first reading” of his Article 15, when the trial counsel
asked appellant if he wished to make an election regarding whether to demand trial
by court-martial. Ultimately, appellant turned down the Article 15 and demanded
trial by court-martial. Regardless of whether this communication was prohibited or
was a ministerial communication, the communication in no way prejudiced
appellant.

       Accordingly, we find appellant failed to raise “some evidence” of facts that
constitute UCI. See Boyce, 76 M.J. at 249. Appellant’s claims of prosecutorial
misconduct are “mere allegation[s]” and “speculation.” Id. Having found no
prosecutorial misconduct in this case, we find that the actions by the trial counsel
and SVP in this case did not constitute UCI.

                   B. Children Coaching Each Other How to Testify

        Appellant claims the military judge should have allowed two witnesses to
testify that they overheard JH’s children talking to each other about what their
mother, JH, told them to say when they testified at an Emergency Protective Order
(EPO) hearing. On appeal, appellant raises a basis for admissibility which was not
raised at trial. Appellant contends these two witnesses should have been permitted
to testify regarding what they heard the children say to each other pursuant to the
hearsay exceptions in Mil. R. Evid. 803(1) and (3) as a present sense impression and
then existing state of mind.

       We review a military judge’s decision to admit or exclude evidence for abuse
of discretion. United States v. Ediger, 68 M.J. 243, 248 (C.A.A.F. 2010). The
theories of admissibility appellant now advances on appeal were never offered to the
military judge at trial. It should be needless to say the military judge did not abuse
his discretion by failing to intuit and apply appellant's now-proffered theories of
admissibility. Further, the theories appellant now advances would have been
unavailing even if appellant had offered them at trial. The hearsay exceptions
appellant now advances did not apply to the children's conversation about what their
mother allegedly told them to say at a civilian court hearing. The children's alleged
statements did not describe or explain any then-existing event or condition under
Mil. R. Evid. 803(1). Similarly, the children's alleged statements about what their
mother allegedly told them did not show the children's then-existing state of mind,
much less any state of mind of their mother. See Mil. R. Evid. 803(3).




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MARTIN—ARMY 20160336


                           C. Ineffective Assistance of Counsel

        Appellant asserts his original military defense counsel was ineffective
because he notified appellant that he was attending Air Assault School and his
schedule was limited to meet with appellant. Appellant released his original military
defense counsel on 16 April 2015, over a year prior to when appellant’s case went
to trial. During the pre-trial Article 39(a) sessions, appellant was represented by
two civilian defense counsel and a new military defense counsel. Appellant claims
one of the civilian defense counsel was ineffective during an Article 39(a) session
due to his ill health. That counsel, however, withdrew from representing appellant
five months prior to trial. At trial, appellant was represented by two civilian
defense counsel and one military defense counsel. No member of appellant’s actual
trial team ever demonstrated any lack of preparedness in representing appellant.

       Ineffective assistance of counsel claims are reviewed de novo. United States
v. Akbar, 74 M.J. 364, 379 (C.A.A.F. 2015); United States v. Datavs, 71 M.J. 420,
424 (C.A.A.F. 2012). “To prevail on a claim of ineffective assistance of counsel the
appellant bears the burden of proving that the performance of defense counsel was
deficient and that the appellant was prejudiced by the error.” United States v.
Captain, 75 M.J. 99, 103 (C.A.A.F. 2016) (citing Strickland v. Washington, 466 U.S.
668, 698 (1984)).

       Assuming, without deciding, deficient performance on the part of appellant’s
original military defense counsel and ill civilian counsel, both of whom were
released by appellant well before trial on the merits, appellant has failed to show
how the alleged deficiencies prejudiced his trial or its outcome. See, e.g., Captain,
75 M.J. at 103 (“[T]he question is whether there is a reasonable probability that,
absent the errors, the factfinder would have had a reasonable doubt respecting
guilt.”) (quoting Strickland, 466 U.S. at 695). Appellant fails to point to any action
or inaction by the two named counsel that resulted in prejudice. Perhaps most
telling vis-à-vis the meritless, if not frivolous nature of appellant’s claim is that his
complaint is silent regarding counsel who actually represented him at trial.

       When multiple counsel represent an accused, as occurred in this case, we
evaluate the “combined efforts of the defense team as a whole.” United States v.
Boone, 42 M.J. 308, 313 (C.A.A.F. 1995). Despite appellant’s asserted deficiencies
of individual counsel, the combined efforts of appellant’s defense team provided him
effective representation at trial. See, e.g., United States v. Adams, 59 M.J. 367, 371
(C.A.A.F. 2004) (“We do not look at the shortcomings of any single counsel and
speculate about the impact of individual errors.”).




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MARTIN—ARMY 20160336

                              CONCLUSION

    The findings of guilty and the sentence are AFFIRMED.


                                  FOR
                                  FOR THE
                                      THE COURT:
                                          COURT:




                                  MALCOLM H.
                                  MALCOLM     H. SQUIRES,
                                                 SQUIRES, JR.
                                                          JR.
                                  Clerk of Court
                                  Clerk of Court




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