UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                              PEDE, TOZZI, and HAIGHT
                               Appellate Military Judges

                   UNITED STATES OF AMERICA, Appellee
                                        v.
                Private First Class MAURICE MCCORMICK, JR.
                          United States Army, Appellant

                                  ARMY 20120029

           Headquarters, U.S. Army Special Forces Command (Airborne)
            Karin G. Tackaberry and Tiernan P. Dolan, Military Judges
            Lieutenant Colonel Alison C. Martin, Staff Judge Advocate


For Appellant: Major Jacob D. Bashore, JA; Captain John L. Schriver, JA (on
brief); Major Vincent T. Shuler, JA; Captain Brian D. Andes, JA (on reply brief);
Colonel Kevin Boyle, JA; Major Vincent T. Shuler, JA; Captain Brian D. Andes, JA
(on supplemental brief); Lieutenant Colonel Jonathan F. Potter, JA; Captain Brian D.
Andes, JA (on specified issue).

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Major Robert A. Rodrigues, JA; Captain Benjamin W. Hogan, JA (on brief and
supplemental brief); Colonel John P. Carrell, JA; Lieutenant Colonel James L.
Varley, JA; Captain Benjamin W. Hogan, JA (on specified issue).


                                 19 December 2014
                              ---------------------------------
                               OPINION OF THE COURT
                              ---------------------------------

PEDE, Chief Judge:

       A military judge sitting as a general court -martial convicted appellant,
contrary to his pleas, of accessory after the fact to attempted unpremeditated murder,
violation of a lawful regulation, and three specifications of aggravated assault, in
violation of Articles 78, 92, and 128, Uniform Code of Military Justice, 10 U.S.C.
§§ 878, 892, 928 (2006) [hereinafter UCMJ], respectively. The military judge
sentenced appellant to a dishonorable discharge, confinement for twelve years,
forfeiture of all pay and allowances, and reduction to the grade of E -1. The
convening authority approved eight years of confinement and the remainder of the
sentence as adjudged.
MCCORMICK – ARMY 20120029

        This case is before us for review under Article 66, UCMJ. The parties
submitted their initial briefs, and this Court specified three more issues.
Collectively, two issues briefed by the parties warrant discussion but no relief. 1 The
first issue we address concerns an allegation of ineffective assistance of counsel in
the pre-sentencing portion of appellant’s trial. Additionally, in our Order we
specified the following issue:

             WHETHER THIS COURT CAN AFFIRM APPELLANT’S
             AGGRAVATED ASSAULT CONVICTIONS AND HIS
             CONVICTION FOR ACCESSORY AFTER THE FACT
             TO ATTEMPTED MURDER, WHERE APPELLANT WAS
             A PRINCIPAL TO THE AGGRAVATED ASSAULTS
             BUT WAS AN ACCESSORY AFTER THE FACT TO
             ATTEMPTED MURDER, AND THE CRIMES AROSE
             FROM THE SAME COURSE OF CONDUCT. SEE
             UNITED STATES v. FOUSHEE, 13 M.J. 833 (A.C.M.R.
             1982); UNITED STATES v. MCCREA, 50 M.J. 194
             (A.C.M.R. 1975).

                                LAW AND DISCUSSION

                      I.        Ineffective Assistance of Counsel

       Appellant alleges that he was denied his Sixth Amendment right to effective
assistance of counsel at his pre-sentencing hearing when defense counsel failed to
conduct a proper investigation and present vita l evidence to the military judge.
Under the two-prong test to establish ineffective assistance of counsel, we find that
the performance of appellant’s trial defense counsel was neither deficient, nor did
appellant suffer prejudice. Strickland v. Washington, 466 U.S. 668, 694 (1984);
United States v. Wean, 45 M.J. 461, 463-64 (C.A.A.F. 1997).

                           a.       Performance of Counsel

       In a sworn affidavit, appellant states that he gave his civilian defense counsel,
Mr. H, a list of people that appellant wanted to testify o n his behalf at his pre-
sentencing hearing. Appellant states that the list included twelve noncommissioned
officers and enlisted soldiers, four of whom provided affidavits containing what



1
 Appellant’s other assignments of error do not warrant relief. The matters
personally raised by appellant pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982) do not warrant relief.




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MCCORMICK – ARMY 20120029

testimony they would have provided had they taken the stand. 2 Appellant claims that
he expected Mr. H to contact these individuals and that they would have testified on
his behalf. Appellant also claims that he later found out that Mr. H did not contact
the potential witnesses. None of these putative witnesses te stified at his trial.

         Of the numerous potential witnesses listed by appellant, only two of these
potential witnesses completed affidavits expressly providing the expected content of
their expected testimony, stating that they were not contacted by appellant’s defense
counsel, and expressing their willingness to testify at trial. Thus, appellant has not
established “the truth of the factual allegations that would provide the basis for
finding deficient performance” for the other potential witnesses. United States v.
Tippit, 65 M.J. 69, 76 (C.A.A.F. 2007); see also United States v. Clemente, 51 M.J.
547, 551 (Army Ct. Crim App. 1999) (“To establish that his counsel’s performance .
. . fell below an objective standard of reasonableness, the appellant must
demonstrate that the witnesses were available to testify and that their testimony
would have assisted the defense.”) (citing United States v. Russell, 48 M.J. 139, 141
(C.A.A.F. 1998)).

       Staff Sergeant (SSG) KF stated that she was not contacted by an attorney
prior to trial and was available to testify. She worked in the same headquarters
building as appellant and never saw him get mad or lose his temper. She believes
that a lengthy prison sentence was not appropriate in this case and that appellant has
rehabilitative potential. Staff Sergeant MT was a supervisor and friend to appellant.
He states that appellant was non-violent, humble, peaceful, and calm. He has a
positive view of appellant’s rehabilitative potential. Both SSG KF and SSG MT
would deploy with appellant.

        To address appellant’s claims, this court ordered affidavits from appellant’s
former defense counsel. In his affidavit, Mr. H states that appellant did not give him
a list of military members; rather, Mr. H states this list was provided to appellant’s
initial military defense counsel who passed it on to a subsequently assigned military




2
  Appellant also attached affidavits to his brief from three individuals that were not
listed. Two of these affidavits only confirm they were not contacted by paralegals
or counsel on appellant’s behalf. The third was from a co -accused, SPC J, who was
the primary subject in the case. He states in his affidavit that appellant had no
knowledge of what was going to take place and had nothing to do with the shooting
or committing an assault. However, this co -accused testified as a government
witness during the merits of appellant’s trial, and his testimony was inconsistent
with his affidavit attached to appellant’s appellate brief.




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MCCORMICK – ARMY 20120029

defense counsel. 3 In the affidavits from appellant’s former military defense counsel,
they confirm appellant provided them a list of military members, and counsel
indicated (in detail) that the defense team made reasonable attempts to contact all of
the potential witnesses provided by appellant. While they were able to make contact
with some of the potential witnesses, they were unsuccessful with others. 4

       Within the affidavits, appellant’s defense counsel state that their sentencing
theme (“that one night should not define PFC McCormick”) drove their tactics for
the pre-sentencing hearing and that they evaluated witnesses accordingly. They also
focused on family and friends “to show that he had a very good support system in
the civilian community, back at home, and that this evidence would best demonstrate
his potential to re-enter society and be a productive citizen.”

       During the pre-sentencing hearing, the defense called one military witness,
Sergeant First Class Smith, two of appellant’s sisters, and appellant for an unsworn
statement. Sergeant First Class Smith had over twenty years of service, including
nearly daily professional interactions with appellant for n ine to ten months. His
opinion was that appellant’s duty performance was “exceptional” and his knowledge
of appellant’s crimes did not change his opinion. The sisters testified that appellant
had a tough childhood while raised in a single parent househol d, but that he was
raised with good values, was a good student, and attended college before entering
the military. The defense also introduced six letters from appellant’s family and
friends depicting his good character and asserting that he was deserving of a second
chance.

      Upon review of all of the material in this case, including the appellate and
supplemental briefs of both parties, appellant’s affidavit, the affidavits of the
potential witnesses attached to appellant’s brief, the affidavits of appel lant’s defense
counsel 5, and the transcript and evidence presented during appellant’s pre -sentencing

3
 Mr. H states he was given a list of civilian witnesses, family, and friends, and he
contacted everyone on that list.
4
  The list of potential witnesses from appellant’s military defense counsel contains
eleven of the twelve witnesses mentioned in appellant’s affidavit as well as two of
the three affiants to the affidavits submitted with appellant’s brief that were not
included in appellant’s affidavit list.
5
 We note conflicts between appellant’s affidavit and the affidavits of defense
counsel in appellant states he gave a list of military witnesses to his civilian counsel,
Mr. H and that this list included SSG KF. Mr. H states that he was not given a list
of military members, but instead that list was given to military defense counsel.

                                                                         (continued . . .)


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MCCORMICK – ARMY 20120029

hearing (including appellant’s enlisted records brief showing he was at his first
military duty station for less than one year when the crimes occurred), w e do not
find the level of advocacy by any of appellant’s defense counsel fell below the
standards set for practitioners before military courts. United States v. Polk, 32 M.J.
150, 153 (C.M.A. 1991). Therefore, we find appellant received effective assistance
of counsel. Id.

                                          b. Prejudice

       Finally, even were defense counsel’s performance deficient, we are convinced
that under the totality of all the circumstances in this case (to specifically include
appellant’s brief military career, the offenses of which he was convicted, the
maximum sentencing exposure, and the pre-sentencing case), appellant did not suffer
prejudice from the performance of his defense counsel, and appellant was not
deprived of a fair trial “whose result is reliable.” Strickland, 466 U.S. at 687.
Therefore, appellant is not entitled to relief for his claim of ineffective assistance of
counsel.

                           II.      Accessory After the Fact

                                 a. Additional Background

       In short, appellant was the driver (but not the shooter) in a drive -by-shooting
targeting another occupied vehicle. As the driver, appellant aided and abetted the
shooter, precipitating appellant’s convictions for aggravated assault. The shooter
himself, however, ultimately fired thirteen rounds into the targeted vehicle,
evidencing the shooter’s intent to commit murder. Appellant then drove away from
the scene and helped cover up the shooting, arguably making appellant an accessory
after the fact to the shooter’s attempted murder of the targeted vehicle’s occupants.

       The events unfolded as follows: after an altercation with Specialist (SPC) H in
a bar near Fort Bragg, North Carolina, appellant and SPC J concluded they would
follow SPC H. After the altercation, SPC J re -gained possession of a handgun that
he had loaned to another soldier earlier in the evening, and SPC J carried the


(. . . continued)
Also, the military defense counsel state the list they were given did not include SSG
KF. Applying the principles set out by our superi or court in United States v. Ginn,
47 M.J. 236, 248 (C.A.A.F. 1997) we do not order a hearing pursuant to United
States v. DuBay, 17 U.S.C.M.A. 147, 37 C.M.R. 411 (1967), because appellant
cannot establish prejudice, even assuming that appellant provided h is counsel with
SSG F’s contact information.




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MCCORMICK – ARMY 20120029

handgun into a car driven by appellant (and also occupied by SPC S). Specialist J
testified that he told appellant he wanted to fight SPC H, that he wanted to hurt SPC
H, and that he wanted to do grievous bodily harm to SPC H. After following a
vehicle occupied by SPC H onto Fort Bragg, appellant maneuvered his vehicle
beside the vehicle occupied by SPC H. Specialist J testified that he believed he and
appellant were agreeing to “. . . shoot out the window.” Specialist J then fired
thirteen rounds into the SPC H-occupied vehicle. Specialist J further testified that
he intended severe harm to SPC H and knew that SPC H and others in the targeted
vehicle could be killed by those shots. Specialist J testified that appellant told him
that he hid the pistol. Specialist J also testified that appellant came up with a false
alibi for all three occupants of the vehicle.

                                   b.     Discussion

       A “perpetrator of [a] substantive offense, either as the princi pal actor or aider
and abettor, . . . cannot be an accessory after the fact to his own offense.” United
States v. Foushee, 13 M.J. 833, 835 (A.C.M.R. 1982). Because appellant was a
principal only to aggravated assault, however, he could also potentially be an
accessory after the fact to the more serious (but distinct) offense of attempted
murder, even though the shooting was one transaction.

      Both appellant’s conviction under Article 78 (accessory after the fact to
attempted murder) and his conviction under Article 128 (aggravated assault) involve
the conduct of SPC J, the principal actor, who fired the actual shots. We note that
although the principal’s underlying conduct is similar for both charges, the
underlying charged offenses themselves are diffe rent – attempted murder versus
aggravated assault. Therefore, the time-honored rule that one cannot commit an
offense and, as a consequence, be an accessory after the fact to commission of the
same offense does not apply, particularly under the facts in t his case. See id.

       Due apparently to exigencies of proof, the government charged appellant as a
principal in the alternative under both Article 80 (attempted murder) and Article 128
(aggravated assault). Our superior court has noted “that attempted murd er requires a
specific intent to kill.” United States v. Roa, 12 M.J. 210, 212 (C.M.A. 1982)
(citation omitted). Appellant was convicted of Article 128, but acquitted of Article
80. We find it was reasonable for the military judge to have concluded that at the
time the principal fired the shots, appellant did not share the principal’s intent to kill
the passengers in the automobile, and therefore appellant was not guilty of attempted
murder. See id. (“[A] person may be an aider and abettor to a lesser d egree than the
principal if he did not share the criminal intent or purpose as the active
perpetrator.”)

       It is also reasonable, however, to conclude that after SPC J fired thirteen
shots, but before appellant started assisting in covering the tracks of SPC J’s crime,



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MCCORMICK – ARMY 20120029

appellant realized SPC J intended to kill the occupants. Therefore, appellant’s
actions to cover up the shooting attack made him guilty of attempted murder as an
accessory after the fact. See id. at 835-36 (“[T]here is no legal reason why [one]
could not be an accessory after the fact to the greater offense as well as [be]
individually guilty as an aider and abettor to the lesser offense.”) In this case, the
military judge found the appellant guilty of the aggravated assaults but not the
attempted murder. The appellant was then found guilty as an accessory to the
attempted murder – a separate and more serious offense. 6 We find no error in the
findings of guilt to both the Article 78 and Article 128 charges. 7

       While the conduct in question, that is, the driving of the car and the shooting
constitute the basis for both the aggravated assault and the attempted murder
charges, the requisite intent differs between them. As a matter of law, this is a
critical point in determining whether an accessory after the fact charge may stand
after a finding of guilt on the lesser offense of aggravated assault.

       Importantly, the military judge apparently recognized this point of law, and
given the identical conduct supporting both charges, merged the cha rges for
sentencing, but let them stand for findings. Appellant’s intent and the timing of that
intent permit us to affirm the accessory after the fact conviction.




6
  After the military judge announced general findings, civilian defense counsel
moved for special findings, arguing in part that one cannot “be convicted as a
principal and accessory [after the fact] for the same conduct.” (emphasis added).
The military judge noted that the “crime of attempted murder is a different
substantial [sic] offense than that of aggravated assault with a dangerous weapon . . .
and leave it at that.” While a military judge shall make special findings upon
request by a party, that request must be made before general findings are announced.
Rule for Courts-Martial 918(b). Here, civilian defense counsel made an untimely
request for special findings and the military judge need not h ave provided them.
7
  We also note that the military judge granted a defense motion to treat the Article
78 and Article 128 offenses as multiplicious for sentencing. However, this case was
tried before our superior court decided United States v. Campbell, 71 M.J. 19, 23
(C.A.A.F. 2012), where it held “[a]s a matter of logic and law, if an offense is
multiplicious for sentencing it must necessarily be multiplicious for findings as
well.” In our view, the military judge’s ruling merged the offenses for se ntencing.
Had the case been tried after Campbell, we are convinced the military judge would
have applied the doctrine of unreasonable multiplication of charges for sentencing.
See id. (applying that doctrine to sentencing).




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MCCORMICK – ARMY 20120029

       Finally, this case demonstrates that when a common criminal enterprise
escalates beyond the original plan, it is possible for a participant’s criminal liability
to devolve, that is, it is passed or transmitted from one actor to another. In such a
case, it is not enough to say that the same course of conduct makes co -actors equally
culpable of the same offense. In other words, the actus reus may be identically
shared, but the mens rea may diverge. See, e.g., United States v. Simmons, 63 M.J.
89, 93-94 (C.A.A.F. 2006) (concluding that an appellant did not share his co -actor’s
intent to commit assault and that therefore aider and abettor liability did not attach).
One of the parties may in fact be totally surprised by the escalation. In such a case,
the conduct – and the crime – at least for one of the participants transforms. With
such a ‘break’ in common intent, the less culpable actor’s post -offense conduct in
the enterprise may reduce his culpability from that of a principal, to that of an
accessory after the fact. Such was the result in this case. See Foushee, 13 M.J. at
835.

                                    CONCLUSION

       After consideration of the entire record of trial, appellant’s assignments of
errors, and the matters personally raised by appellant pursuant to Grostefon, the
findings and sentence as approved by the convening authority are AFFIRMED.

      Senior Judge TOZZI concurs.

HAIGHT, Judge, concurring in part and dissenting in part :

       I concur with the majority’s resolution of the claim of ineffective assistance
of counsel. I also agree with the majority that there is a legally viable exceptio n to
the general legal principle that a principal cannot be an accessory after the fact to
his own offense. However, I disagree with the majority that we should apply that
particular exception to the facts and circumstances of this case. Accordingly, I
would dismiss the accessory after the fact offense as an unreasonable multiplication
of charges or as factually insufficient.

       Appellant aided and abetted his co-actor in the shooting of a firearm into a
vehicle with three occupants. After that intentional aggravated assault with a loaded
firearm, appellant then was an accessory after the fact by, among other activities,
assisting the shooter in hiding “the weapon and creating a false story of the events to
mislead an investigation by local authorities.” F or this criminal behavior, the
government charged appellant with a perplexing combination of offenses. Among
other charged offenses, appellant was charged as a principal with three counts of
attempted premeditated murder and three separate counts of the l esser included
offense of aggravated assault by shooting at his victims with a loaded firearm.
Appellant was also charged with accessory after the fact to attempted premeditated
murder for his aforementioned efforts to “cover up the shooting.”



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MCCORMICK – ARMY 20120029

        All three of the aggravated assaults were lesser included offenses of the
greater three attempts of premeditated murder and should not have been separately
charged. See Rule for Courts-Martial 307(c)(4) discussion (“In no case should both
an offense and a lesser included offense thereof be separately charged”); United
States v. Nealy, 71 M.J. 73, 76 (C.A.A.F. 2012) (“[W]hen a convening authority
refers a charge to a court-martial, any [lesser included offenses] of that charge are
referred with it, and need not be separately charged and referred.”) (citations
omitted); see also generally United States v. Dacus, 66 M.J. 235 (C.A.A.F. 2008);
United States v. Grijalva, 55 M.J. 223 (C.A.A.F. 2001); United States v. Weymouth,
43 M.J. 329 (C.A.A.F. 1995). I wholly reject any notion that the government
charged these offenses in the alternative or due to “exigencies of proof.” Any such
presumption is completely undercut by trial counsel’s concluding remark of his
opening statement, “The government is confident that after hear ing all of the
evidence in this case, you will find the accused guilty, first and foremost, of
attempted premeditated murder and then you will also find the accused guilty of the
remaining charges and specifications.” It is plain that from preferral of ch arges to
trial, the government fully intended to impermissibly convict appellant not only of
separately charged lesser included offenses but also as an accessory after the fact to
his own charged crime of attempted premeditated murder. This overreaching s hould
not be condoned.

       “A person may not be found guilty of that [accessory after the fact] offense if
he was the perpetrator of the substantive offense, either as the principal actor or as
an aider and abettor, because he cannot be an accessory after th e fact to his own
offense.” United States v. Foushee, 13 M.J. 833, 835 (A.C.M.R. 1982) (citing
LaFave and Scott, Criminal Law, § 66, p. 523 (1972); United States v. Taylor, 11
M.J. 840 (A.C.M.R. 1980)). After acknowledging this general rule, our predeces sor
court continued that if an aider and abettor had a lesser criminal intent or purpose
than the active perpetrator, then “[i]n that event, there is no legal reason why he
could not be an accessory after the fact to the greater offense as well as being
individually guilty as an aider and abettor to the lesser offense.” 13 M.J. at 835 -6.
I do not disagree but do find the facts of Foushee provide enlightening context to
this dicta.

        In that case, the accused was charged with both assault with intent to c ommit
murder and accessory after the fact to assault with intent to commit murder. “After
both sides rested, the trial judge required the prosecution to elect between the two
charges, whereupon the trial counsel chose to proceed with the accessory offense .”
Id. at 834-35. The evidence revealed that Private (PV1) Foushee assisted his co -
actor in a fist fight and his culpability as an aider and abettor consequently extended
only to an assault and battery. Id. at 836. During the affray, PV1 Foushee’s co -
actor increased the level of violence and, unbeknownst to PV1 Foushee, stabbed
their victim with a knife. Id. Thereafter, upon learning of the stabbing, PV1
Foushee was an accessory after the fact to his co -actor’s greater crime by, among



                                           9
MCCORMICK – ARMY 20120029

other things, helping clean blood off the knife. Id. The facts in Foushee are vastly
different than in the current case.

       Here, appellant aided and abetted the discharge of a firearm at close range
into an occupied vehicle. Then, he attempted to conceal that firearm. Whereas PV1
Foushee’s assistance after the fact extended to a knife with which he had zero prior
involvement, appellant’s assistance after the fact extended to a firearm of which he
had full knowledge and which was the very criminal instrument used to perp etrate
appellant’s own crime of aggravated assault. In other words and more simply stated,
I do not believe appellant was assisting his co -actor to cover up some greater crime
committed independently by that co-actor. To the contrary, I believe appellant was
endeavoring to cover up his own offense: the shooting into a vehicle. The assistance
rendered to his co-actor was incidental.

       In that light, because dual convictions of the lesser crime of aggravated
assault and of accessory after the fact to the greater crime of attempted murder may
be legally viable under facts different than those found here, I turn to the concept of
unreasonable multiplication of charges. In United States v. Quiroz, 55 M.J. 334, 338
(C.A.A.F. 2001), our superior court endorsed several factors to guide our analysis of
whether charges have been unreasonably multiplied. Three of these factors convince
me that appellant’s convictions of an aggravated assault by shooting and of
accessory after the fact to that shooting constitute an unreasonable multiplication of
charges. First, appellant objected at trial that the assaults and the accessory after the
fact offense addressed the “same transaction and occurrence” and requested special
findings as well as merger for purposes of sentenc ing. The military judge did
consider the two offenses as one for sentencing. Second, as outlined above, these
offenses are not aimed at distinctly separate criminal acts. Instead, these offenses
address the same criminal conduct, just at different point s along the time continuum.
The two principals acted in concert to shoot into a vehicle and then the two
continued to act in concert to cover up their crime. Third, also as outlined above,
the prosecution overreached in the drafting of these charges. Th is overreaching
evidenced itself at trial when the government intended and attempted to secure
separate convictions not only of lesser included offenses but also a conviction of
accessory after the fact to one’s own crimes. It was only the military judge that
noted, after the entry of findings, the different levels of intent required for attempted
murder than for aggravated assault with a dangerous weapon.

      I would dismiss the accessory after the fact offense either as an unreasonable
multiplication of charges or as factually insufficient, reassess the sentence, and
because the military judge considered the two offenses as “multiplicious for
sentencing,” I would affirm the approved sentence.




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MCCORMICK – ARMY 20120029

                            FOR
                            FOR THE
                                THE COURT:
                                    COURT:




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




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