UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                      Before
                      CAMPANELLA, SALUSSOLIA, and FLEMING
                             Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                          Specialist JEFFERY T. PAGE
                          United States Army, Appellant

                                   ARMY 20150505

                             Headquarters, Fort Carson
                       Douglas K. Watkins, Military Judge
            Colonel Paul J. Perrone, Jr., Staff Judge Advocate (pretrial)
            Colonel Gregg A. Engler, Staff Judge Advocate (post-trial)

For Appellant: John N. Maher, Esq.; Captain Katherine L. DePaul, JA (on brief and
reply brief).

For Appellee: Lieutenant Colonel A.G. Courie III, JA; Major Anne C. Hsieh, JA;
Lieutenant Colonel Karen J. Borgerding, JA (on brief).


                                 14 September 2017

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                               SUMMARY DISPOSITION
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FLEMING, Judge:

       In this case we hold that appellant’s defense counsel were not ineffective in
that they made reasonable decisions about evidence at trial.

      A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, 1 of unpremeditated murder in violation of Article 118, Uniform
Code of Military Justice, 10 U.S.C. § 918 (2012) [hereinafter UCMJ]. The convening
authority approved the adjudged sentence of a dishonorable discharge and


1
  Pursuant to a pretrial agreement, appellant pleaded guilty to involuntary
manslaughter in violation of Article 119, UCMJ, in exchange for a sentence cap and
the government’s dismissal of a premediated murder specification. The military
judge accepted appellant’s plea to involuntary manslaughter but ultimately dismissed
the specification, as a lesser-included offense, after entering a finding of guilty to
unpremeditated murder.
PAGE—ARMY 20150505

confinement for twenty-six years and credited appellant with 518 days of
confinement against the sentence to confinement.

       Appellant’s case is now pending review before this court pursuant to Article
66, UMCJ. Appellant asserts four assigned errors, which merit no discussion or
relief. Pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), appellant
personally raises ineffective assistance of counsel (IAC), which merits brief
discussion, but no relief.

                                     BACKGROUND

      While on guard duty in Jordan, appellant placed his M4 rifle on semi-
automatic, pointed and aimed his weapon into the area he was guarding at an
approaching platoon member, Specialist (SPC) JP, who was bringing appellant his
lunch. Appellant squeezed the trigger and shot SPC JP in the head from
approximately fifty-five feet away. Specialist JP later died from his injuries.

        The issue at trial was whether appellant had the specific intent to kill or
inflict great bodily harm on Specialist (SPC) JP and committed the offense of
unpremediated murder. Defense trial strategy centered on trying to present
circumstantial evidence of appellant’s lack of specific intent to kill SPC JP.

       Defense asserted the shooting was accidental because appellant failed to
remember chambering a round in his M4 a day prior to the shooting. He also alleged
the unit had a practice of “dry-firing” at other soldiers. “Dry-firing,” however, was
explained at trial as “you raise your weapon up, aquire something inanimate in your
optic, and then place the selector level to semi, and pull the trigger.” (emphasis
added). Defense profferred that unit leadership failures created fatigued soldiers
who were complacent about weapons safety. This complacency led to appellant’s
failure to remember chambering a round and to clear his weapon.

        Appellant asserts he received ineffective assistance of counsel (IAC) because
his trial defense counsel failed: 1) to call multiple witnesses who testified at the
Article 32, UCMJ, hearing regarding appellant’s lack of motive and/or intent; 2) to
introduce evidence of an alleged finding by Air Force Office of Special
Investigation (AFOSI) agents that appellant negligently discharged his weapon; and
3) to introduce evidence that a Criminal Investigation Command (CID) review of
appellant’s laptop computer did not reveal any evidence that appellant had a motive
or intent to kill SPC JP. 2




2
    This court ordered affidavits from appellant’s defense counsel.


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PAGE—ARMY 20150505

                              LAW AND DISCUSSION

       The Sixth Amendment guarantees an accused the right to the effective
assistance of counsel. United States v. Gooch, 69 M.J. 353, 361 (C.A.A.F. 2011)
(citing United States v. Gilley, 56 M.J. 113, 124 (C.A.A.F. 2001)). To establish that
his counsel was ineffective, appellant must satisfy the two-part test, “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, 361-62 (C.A.A.F. 2010) (citing
Strickland v. Washington, 466 U.S. 668, 687 (1984)). We review both prongs of the
Strickland test de novo. United States v. Mazza, 67 M.J. 470, 474 (C.A.A.F. 2009)
(citing United States v. Anderson, 55 M.J. 198, 201 (C.A.A.F. 2001) and United
States v. Wiley, 47 M.J. 158, 159 (C.A.A.F. 1997)). In evaluating the first
Strickland prong, there is “a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689.
“We also are constrained by the principle that strategic choices made by trial
defense counsel are ‘virtually unchallengeable’ after thorough investigation of the
law and the facts relevant to the plausible options.” United States v. Akbar, 74 M.J.
364, 371 (C.A.A.F. 2015) (citing Strickland, 466 U.S. at 690-91). After reviewing
the verbatim transcript of the Article 32, UCMJ, hearing, 3 the record of trial, and the
affidavits submitted by appellant and trial defense counsel, we find appellant’s trial
defense counsel’s conduct fell within the wide range of reasonable professional
assistance.

                               Failure to Call Witnesses

       Appellant alleges his counsel failed to call witnesses, who testified at the
Article 32, UCMJ, hearing, to testify during the trial’s findings phase as to
appellant’s lack of motive or specific intent. While such testimony is admissible at
an Article 32, UCMJ, hearing, it is impermissible evidence at trial under Military
Rule of Evidence [hereinafter Mil. R. Evid.] 602. See Rule for Courts-Martial
[hereinafter R.C.M.] 405(h) (Mil. R. Evid. 602 does not apply at Article 32, UCMJ,
hearings). A lay witness can testify at trial as to observed acts or possibly even
words spoken by an appellant; however, it is impermissible for a lay witness to
testify as to their personal opinion as to whether appellant possessed a specific
motive or intent to kill.

      The trial defense counsel, through cross-examination of government witnesses
and direct testimony of defense witnesses, attempted to present circumstantial
evidence of not only alleged unit leadership failures that created an unsafe weapons
environment, but also on appellant’s actions and statements immediately before,
during, and after the shooting. Defense argued appellant’s act of shooting SPC JP


3
 The court granted appellant’s motion to attach the verbatim transcript of the Article
32, UCMJ, hearing.


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PAGE—ARMY 20150505

was an accident resulting from culpable negligence, but appellant lacked the specific
intent to kill or inflict great bodily harm. The defense strategy to illicit permissible
lay witness testimony on circumstantial evidence regarding appellant’s lack of
motive or specific intent to kill was a reasonable choice in strategy from the
available alternatives. 4

       Appellant also asserts his defense counsel failed to present testimony as to his
lack of specific motive or intent during the presentencing phase. As stated in one
defense counsel’s affidavit, considering appellant’s unpremeditated murder
conviction, “and with it, the requisite associated intent, such testimony, sought now
by [a]ppellant during pre-sentencing, would at its best, draw relevancy objections,
and at its worst, constitute an impeachment of the findings.” See R.C.M. 923
(limiting the presentation of evidence which impeaches findings). We concur with
trial defense counsel that such an avenue of attack would have, at the most, been
fruitless and, at the worst, been detrimental.

                                 AFOSI Investigation

       The AFOSI conducted only five hours of investigation on what was initially
reported to them as a negligent discharge. One day after the shooting, CID took
over the investigation from AFOSI. Trial defense counsel’s affidavit establishes
that the relevant AFOSI agents were interviewed. AFOSI agents would not testify
that they made any finding that appellant’s actions were a negligent discharge
because “such a characterization would have been premature” and their investigation
was only temporary until the lead agency, CID, assumed the investigation. After a
thorough investigation by CID, appellant was ultimately charged with premediated
murder, among other offenses. Defense counsel’s tactical decision not to present
evidence regarding AFOSI’s minimal and incomplete investigation was reasonable.




4
 Even assuming, arguendo, it was permissible for a lay witness to testify as to their
personal opinion as to appellant’s specific motive or intent or if such testimony
could have been converted and favorably presented as defense evidence on
appellant’s character for peacefulness; this was a likely unsound tactical strategy
because it opened the door for the government to challenge the lay witness’ opinion
with questions as to each favorable governmental circumstantial fact, which were
voluminous, supporting that appellant possessed the specific intent to kill SPC JP.
This government questioning would have decreased or negated the probative value
of the witness’ lay opinion but, more detrimentally, would have undermined the
defense case by providing the government with an opportunity to re-highlight all
unfavorable defense evidence regarding appellant’s specific intent to kill.


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PAGE—ARMY 20150505

Laptop Computer

       Defense counsel’s decision to not present evidence that CID failed to find
evidence on appellant’s computer establishing appellant’s motive or intent to kill
SPC JP was reasonable. The issue at trial was whether appellant committed an
unpremeditated murder. Unpremeditated murder only requires as an element an
intent to commit “an intentional act likely to result in death . . . . The intent need
not be directed toward the person killed, or exist for any particular time before
commission of the act, or have previously existed at all. It is sufficient that it
existed at the time of the act.” See Article 118(b)(2) and (c)(3)(a), UCMJ. 5

       Defense counsel conceded at trial that appellant aimed and fired his weapon at
SPC JP. Therefore, appellant’s state of mind at the exact moment he pulled the
trigger was the key factor. Defense counsel’s strategy to present circumstantial
evidence as to appellant’s mindset immediately before, during, and after he shot SPC
JP, instead of presenting a lack of computer evidence from a different time period,
was reasonable. What appellant did not type on his computer on some previous day
or time had minimal, if any, bearing on whether he committed an unpremeditated
murder.

       While finding appellant’s trial defense counsel’s performance did not fall
below an objective standard of reasonableness, several reasons convince us that even
if counsel’s performance was ineffective, it did not give rise to a “reasonable
probability” the result of the proceeding would have been different. The evidence
appellant asserts his defense counsel failed to present at trial was either inadmissible
or of such minimal probative value that there is no reasonable probability its
presentation at trial would have a created a different result in the proceeding. Under
Strickland’s two-prong test, appellant fails to meet his burden that his trial defense
counsel were ineffective.

                                    CONCLUSION

      The findings of guilty and sentence are AFFIRMED.

      Senior Judge CAMPANELLA and Judge SALUSSOLIA concur.




5
 Department of Army Pamphlet 27-9, Military Judge’s Benchbook, Instruction 3-43-
2(d), states “[t]he intent to kill or inflict great bodily harm may be proved by
circumstantial evidence, that is, by facts or circumstances from which you may
reasonably infer the existence of such an intent. Thus, it may be inferred that a
person intends the natural and probable results of an act he purposely does.”


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PAGE—ARMY 20150505

                     FOR THE
                     FOR THE COURT:
                             COURT:




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




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