                         UNITED STATES, Appellee

                                         v.

         Matthew W. MAZZA, Boatswain’s Mate Second Class
                       U.S. Navy, Appellant

                                  No. 09-0032
                        Crim. App. No. 200400095

       United States Court of Appeals for the Armed Forces

                          Argued April 28, 2009

                          Decided July 15, 2009

STUCKY, J., delivered the opinion of the Court, in which EFFRON,
C.J., and BAKER, ERDMANN, and RYAN, JJ., joined.


                                     Counsel


For Appellant:   Major Anthony W. Burgos, USMC (argued).

For Appellee: Major Elizabeth A. Harvey, USMC (argued);
Lieutenant Timothy H. Delgado, JAGC, USN, and Brian K. Keller,
Esq. (on brief).

Military Judges:    J. P. Lisiecki and J. G. Meeks


            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Mazza, No. 09-0032/NA


     Judge STUCKY delivered the opinion of the Court.

     We granted review in this case to determine whether the

Appellant’s civilian defense counsel (CDC) was ineffective by:

(1) soliciting human lie detector testimony; (2) failing to

object to admission of the victim’s videotaped interview; and

(3) permitting the videotape to be viewed during deliberations.

We find that the CDC was not ineffective, and affirm the

decision of the United States Navy-Marine Corps Court of

Criminal Appeals (CCA).

                           I.   Background

     Appellant was a boatswain’s mate second class (E-5) at the

time of his offenses.   He was originally convicted at a general

court-martial of repeated indecent acts with his minor daughter,

AM, and of communicating indecent language to her.   Article 134,

Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934 (2000).

Court members sentenced him to a dishonorable discharge,

confinement for 108 months, and reduction to E-1.    The CCA found

that the military judge had erred in denying a defense challenge

for cause against a court member, and authorized a rehearing.

United States v. Mazza, No. NMCCA 200400095, 2005 CCA LEXIS 265,

at *10-*11, 2005 WL 2105296, at *3-*4 (N-M. Ct. Crim. App. Aug.

29, 2005) (unpublished).

     At his retrial, a general court-martial composed of members

convicted Appellant of indecent acts with AM and communicating


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indecent language to her, Article 134, UCMJ, and sentenced him

to a bad-conduct discharge and confinement for four years.

                    II.   Appellant’s Second Trial

      AM was eighteen when she testified at Appellant’s second

court-martial.   She testified that Appellant’s sexual abuse of

her began when she was as young as six.    Furthermore,

Appellant’s wife testified that Appellant had confessed to her

that he had molested their daughter.

A.   Testimony of Dr. Horowitz

      At Appellant’s second court-martial the Government offered

Dr. Sarah Horowitz, who had testified at the first trial, as an

expert witness in child sexual abuse cases.    Dr. Horowitz was

qualified and testified.

      Prior to Dr. Horowitz’s testimony, the military judge

restricted her to a general discussion of delayed disclosure of

child sex abuse cases.    Dr. Horowitz was not to talk about the

particular witnesses in this case, but could discuss generally

delayed and tentative disclosure patterns in child sex abuse

cases.    On direct examination, she did so.

      The CDC’s overall theory was that the accusations made by

AM were false and that both AM and Appellant’s wife had motives

to lie.   Thus, on cross-examination the CDC questioned Dr.

Horowitz concerning disclosure patterns in child sex abuse

cases.    Based on his experience in the first trial, the CDC


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expected certain testimony from Dr. Horowitz on delayed and

false reports and intended to challenge her on those topics.

     Specifically, the CDC asked Dr. Horowitz about a study

which the CDC believed contradicted her conclusions regarding

the delayed reporting of child sexual abuse.   In response, Dr.

Horowitz stated that the study in question involved both adults

and children and that “the dynamics of incest” were “entirely

different.”   The CDC then pursued a line of questioning

regarding “interviewer bias,” “transference,” “secondary gain,”

and “malingering,” implying that such issues could be

responsible for the delayed reporting in the instant case.    Dr.

Horowitz disagreed.

     During the course of these questions, the military judge

stepped in to caution the CDC that if he required a “yes or no

answer” he needed to ask less convoluted questions.    The

military judge instructed the CDC to re-ask his question, but

the CDC instead stated that Dr. Horowitz should respond to his

earlier question regarding the prevalence of malingering and

primary or secondary gains in cases of sexual abuse.    She did,

stating that in cases of child sexual abuse there was a six

percent rate of false accusation and that in cases of false

accusation it was very rarely the child victim who made the

false accusation.   At this point, the military judge instructed




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the members to leave the courtroom and began a colloquy with the

CDC:

       MJ: When I stop somebody, I don’t want you to come
       back to me, and basically say, “I am going to let
       her testify.” I’ve got other concerns that I’ve got
       to worry about.

            It would appear to me, as we start throwing out
       statistics and things along these lines, that there
       may be issues that you are not thinking about or
       objecting to, but I’ve got to be concerned about
       contamination of the members.

            I stopped her, and you interrupted me stopping
       her because of concern that what she was talking
       about, statisticwise [sic], was going to perhaps
       damage or present evidence that was not admissible
       to the members.

            . . . .

            Okay. Well again, in the area of false report,
       okay, she brought that up. That’s what I was
       attempting to stop. Okay?

            Because, frankly, I don’t   know why I didn’t
       allow anything to come in, and   two -- are you
       seeking to get that particular   information in front
       of the members so that you can   attack it?

       [CDC]:   Absolutely, yes.

            . . . .

       MJ: You are specifically wanting her -- let me make
       sure I’m track[ing]. You are specifically wanting
       her to get into detail about the Canadian study and
       other studies concerning false reporting, and the
       low level of that reporting?

            Is that -- I just want to make sure --

       [CDC]:   Yes.

            . . . .


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     MJ: And you’ve considered -- you’ve considered the
     consequences?

     [CDC]:    Yes.

     MJ: I am not trying your case, but I want to make
     sure because otherwise, I stopped her because of
     that concern.

     [CDC]: And I appreciate that, sir, and that’s why
     I’ve come with the books that we discussed last time
     when we did the 39(a) with what I think is the
     appropriate information to cross-examination and
     examine her upon the terms of this issue.

     MJ:   Okay.   I understand.

             You are wanting to get into this particular
     area?

     [CDC]:    Yes.

     MJ: Okay. As long as we are clear on that
     particular point, because otherwise I would not
     allow the government to presented [sic] any
     information on false reporting.

     [CDC]:    As long as it is general and educational.

     MJ: Well, the problem is it -- once you’ve opened
     the door, the door is open. I have no idea what the
     government’s going to do in return.

     The CDC asked Dr. Horowitz about studies that showed

false reporting rates in six to eight percent of child

abuse allegations, and that with the hundreds of

thousands of child abuse reports each year that would

equate to at least six to eight thousand false reports.

Dr. Horowitz acknowledged false reporting but maintained

that most false reports are made by parents or other



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adults, children rarely lied about child sex abuse, and

when they did it was usually quite obvious.

     Following the cross-examination of Dr. Horowitz, the

members asked if Dr. Horowitz had interviewed AM and whether a

tape existed of that interview.   The questions also generally

explored Dr. Horowitz’s opinions as to a child’s recollection of

earlier traumatic events.   When the CDC objected to these

questions, the military judge responded:

     [Y]ou got into this area with your cross-
     examination, and that’s why the members are asking
     the question is because [sic] you opened the door to
     that particular area.

          . . . .

          . . . You opened some fairly broad doors, and
     that’s why I asked you the questions that I asked
     during our last 39(a) session after I dismissed the
     members.

           Because you were opening a very, very, very
     large door; one I would not have, without you
     specifically wanting to open up, allowed to be
     opened. That door seems to have engendered a large
     number of questions on the part of the members that
     would not have been there but for you opening that
     door.

     In response to the members’ questions, Dr. Horowitz further

discussed questions of false reporting and false allegations, as

well as markers one might look for to detect such falsehoods.

Again, the CDC objected, and again the military judge stated

that the CDC had opened the door to these questions.   The

military judge did, however, prevent Dr. Horowitz from


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discussing whether she believed or disbelieved any particular

witness.   He also told the members that it was their

responsibility to “determine the credibility of the witnesses,

and what the facts in [the] case are.”    “No expert witness or

other witness,” the military judge said, “can testify that the

alleged victim’s account of what occurred is true or credible.”

      During closing arguments, the CDC returned to Dr.

Horowitz’s testimony.   He noted that even using conservative

figures of the percentage of false reports, when applied to the

very large number of reports of child sex abuse each year, would

yield a large number of false reports.

           And, again, go back to that millions. Even on
      the conservative figure it may not sound like a lot
      when you say 4 to 8 percent, but when you look at
      actual numbers and then you take into account what
      she, Dr. Horowitz, had to agree that, yes, adolescents
      can be good liers [sic].

B.   The Videotaped Interview with AM

      There were two videotapes of interviews with AM; Dr.

Horowitz did not participate in either interview, nor had she

viewed the tapes of the interviews.     During their questioning of

Dr. Horowitz the members requested to view the videotapes, and

the CDC objected to the tapes admission on hearsay grounds.     The

military judge considered whether the videotape could be seen as

a prior consistent or inconsistent statement under Military Rule

of Evidence (M.R.E.) 801(d)(1)(B) or M.R.E. 801(d)(1)(A); or as



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United States v. Mazza, No. 09-0032/NA


a rebuttal of accusations of inconsistencies on the part of AM

under M.R.E. 613.    Following review of the tape and a Rule for

Courts-Martial (R.C.M.) 802 conference, the military judge

admitted only one tape, as the other was determined to be

irrelevant and to have been made after a motive to fabricate

could have arisen.   Although portions of the videotape were

found by the military judge to potentially be “subject to

objection,” neither party ultimately objected to the admission

of the tape.    When he admitted the tape, the military judge told

the members that it would be made available to them during

deliberations.

     In closing arguments, the CDC encouraged the members to

review the videotape and compare the taped allegations to the

statements AM made in court and elsewhere.   Summarizing the

Government’s case as one of “false allegation[s]” and “false

report[s],” the CDC encouraged the members to “compare that

video to what’s been said in this room and what’s been said at

other times.”    “Ask yourselves,” the CDC continued, “does what

she says in the video itself make sense and how inconsistent it

is with what she now presents to you . . . .”

     Finally, in the standard jury instructions, the military

judge instructed the members that it was their responsibility to

assess the credibility of the witnesses, and they could not rely

on an expert witness to make that determination for them.


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                         III.   Discussion

A.   Appellant’s Arguments

      Appellant argues that the CDC provided ineffective

assistance of counsel (IAC) by (1) soliciting the testimony from

Dr. Horowitz -- which the CDC characterized as “human lie

detector testimony”; (2) failing to object to the admission of

the videotape; and (3) allowing the videotape to be viewed

during deliberations without supervision.

      Appellant argues that these errors “were well beyond the

range of reasonably, competent” assistance of counsel.

Appellant argues that the CDC’s performance was deficient as

this Court’s decisions indicate that “human lie detector

testimony,” or “credibility quantification testimony,” is

inadmissible as it invades the members’ exclusive province of

determining credibility and violates the rule that witnesses may

only testify regarding a victim’s character for truthfulness.

United States v. Brooks, 64 M.J. 325, 330 (C.A.A.F. 2007).

Appellant further argues that this alleged error by the CDC

prejudiced Appellant as this was a case which turned on the

credibility of Appellant’s accuser.   There were no third-party

witnesses to the alleged abuse and no corroborating physical

evidence.   Furthermore, the military judge’s instruction to the

members regarding their limited use of Dr. Horowitz’s testimony

was not timely and was insufficiently specific as he did not


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explicitly tell them to disregard the statistical evidence cited

by Dr. Horowitz.

      It was also error, Appellant asserts, for the CDC to fail

to object to the admission of the videotaped interview as it was

“devastating to Appellant’s case.”   Appellant argues that proper

foundation was not laid for the videotape, and it was hearsay.

Furthermore, Appellant argues that the interview seen on the

videotape did not support defense counsel’s theory of

fabrication as AM’s statements on the videotape were not

inconsistent with her later statements.   Allowing the members to

view the videotape during deliberations, Appellant argues, only

compounded these errors, and additionally was error itself as

the videotape ought to have been prohibited from the

deliberation room.

B.   Analysis

      To prevail on a claim of IAC, an appellant must show both

that the counsel’s performance was deficient and that the

deficiency resulted in prejudice.    United States v. Strickland,

466 U.S. 668, 687 (1984); United States v. Scott, 24 M.J. 186,

188 (C.M.A. 1987).   Ultimately, “[t]he benchmark for judging any

claim of ineffectiveness must be whether counsel’s conduct so

undermined the proper functioning of the adversarial process

that the trial cannot be relied on as having produced a just

result.”   Strickland, 466 U.S. at 686.   A successful


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ineffectiveness claim requires a finding of both deficient

performance and prejudice; there is no requirement that we

address “both components of the inquiry if the defendant makes

an insufficient showing on one.”      Id. at 697.   We review both

prongs of the Strickland analysis de novo.     United States v.

Anderson, 55 M.J. 198, 201 (C.A.A.F. 2001); United States v.

Wiley, 47 M.J. 158, 159 (C.A.A.F. 1997).

     Our analysis of counsel’s performance is highly

deferential.   Strickland, 466 U.S. at 689.    We are not to assess

counsel’s actions through the distortion of hindsight; rather we

are to consider counsel’s actions in light of the circumstances

of the trial and under the “strong presumption that counsel’s

conduct falls within the wide range of reasonable professional

assistance; that is, the defendant must overcome the presumption

that, under the circumstances, the challenged action ‘might be

considered sound trial strategy.’”     Id. (quoting Michel v.

Louisiana, 350 U.S. 91, 101 (1955)).     As a general matter, we

“‘will not second-guess the strategic or tactical decisions made

at trial by defense counsel.’”   Anderson, 55 M.J. at 202

(quoting United States v. Morgan, 37 M.J. 407, 410 (C.M.A.

1993)).   Where, as here, an appellant attacks the trial strategy

or tactics of the defense counsel, the appellant must show

specific defects in counsel’s performance that were

“unreasonable under prevailing professional norms.”      United


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United States v. Mazza, No. 09-0032/NA

States v. Perez, 64 M.J. 239, 243 (C.A.A.F. 2006) (citations and

quotation marks omitted).

1)   Dr. Horowitz’s Testimony

      Appellant relies on Brooks, 64 M.J. 325, for the

proposition that it was error for the CDC to discuss the rates

of false accusations of sexual abuse among child victims.      In

Brooks -- which post-dates the trial in this case -- we

determined that testimony by an expert regarding the percentage

of false claims of sexual abuse made by children was the

“functional equivalent of vouching for the credibility or

truthfulness of the victim.”    Id. at 326-27.   We found that the

testimony was the equivalent of human lie detector testimony and

reversed.    Id. at 326, 328-30.

      There are key differences between this case and Brooks.

The testimony in the instant case was not extracted by the

Government, but rather by the defense itself.    The defense

specifically questioned Dr. Horowitz as to the rates of false

reporting.   The record clearly establishes that the CDC’s theory

of the case was that AM’s testimony was fabricated and

inconsistent.   When the military judge questioned the CDC as to

whether he truly wanted to pursue this line of argument, the CDC

responded affirmatively.    He specifically intended to question

Dr. Horowitz whether child-accusations of sex abuse were

reliable.


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United States v. Mazza, No. 09-0032/NA

      Given that this case was essentially a credibility contest

between Appellant and his daughter, Appellant has not overcome

the presumption that it was a reasonable strategic decision,

under the circumstances of this case and prevailing professional

norms, for the defense counsel to seek to establish that the

daughter’s testimony could be a false allegation.   Appellant has

failed to demonstrate that it was unreasonable, under the

circumstances and prevailing professional norms, for counsel to

argue that AM was lying in this specific case by citing evidence

showing that among more than 100,000 reports there were at least

six to eight thousand false reports.   Further, defense counsel

used the statistical testimony during closing argument to remind

the court members that thousands of false reports occur every

year, even using conservative estimates.

2)   Admission of the Videotape

      Appellant asserts that admission of the videotape

compounded the error created during the cross-examination of Dr.

Horowitz, and it resulted in the members viewing the videotape

during deliberations.   Additionally, the CDC failed to preserve

his objection to the admission of the videotape as hearsay, and

failed to object to the admission of the videotape on

foundational grounds.

      Whether or not the videotape was properly authenticated or

admitted, the question before us is whether counsel’s


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United States v. Mazza, No. 09-0032/NA

performance with regard to it was deficient.   It was not.   It

was the CDC’s strategy to have the members view the videotape

and consider the testimony therein.   During his closing

argument, the CDC advanced a theory that AM had fabricated her

allegations and that her statements were inconsistent.     He asked

the members to “Go back and at least start out and replay that

video and compare that video to what was said in this room and

what’s been said at other times and see where that brings you.”

Simply put, the videotape was part of the CDC’s trial strategy -

- a strategy that Appellant has failed to show was unreasonable

under prevailing professional norms; whether Appellant now

agrees with that strategy is beside the point.

3)   Viewing the Videotape during Deliberations

      As noted above, the CDC obviously wished the members to

view the tape during their deliberations, going so far as to

specifically request that they do so.    Appellant cites R.C.M.

921(b) to argue that what evidence members may take into the

deliberation room with them is limited.   But that rule states:

“Unless otherwise directed by the military judge, members may

take with them in deliberations their notes, if any, any

exhibits admitted in evidence, and any written instructions.”

Id. (emphasis added).   As the videotape was admitted into

evidence and the military judge specifically told the members




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United States v. Mazza, No. 09-0032/NA

that they could view the tape during deliberations, there was no

violation of R.C.M. 921(b).

     It has been said that hard cases make bad law.      It may be

said with equal truth that hard cases may make otherwise

questionable trial tactics reasonable.      The CDC in this case had

a difficult assignment:   to defend an accused whose daughter

testified to repeated instances of abuse performed upon her, and

whose wife testified to his admission to such abuse.     Attacking

the credibility of this testimony and suggesting its fabrication

was one of the few options the CDC had.     While a different

defense counsel might have chosen different tactical steps, the

tactics used were part of a trial strategy that Appellant failed

to show was unreasonable under the circumstances and prevailing

professional norms.   Because Appellant has not satisfied the

first Strickland prong, we need not address the second prong.

                           IV.   Decision

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed.




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