UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                         Before
                             TOZZI, CELTNIEKS, and BURTON
                                Appellate Military Judges

                              UNITED STATES, Appellee
                                           v.
                              Major DAVID L. JERKINS
                             United States Army, Appellant

                                     ARMY 20140071

                               Headquarters, Fort Hood
                         Rebecca K. Connally, Military Judge
                     Colonel Stuart W. Risch, Staff Judge Advocate


For Appellant: Captain Cody Cheek, JA; Mr. James S. Trieschmann, Jr., Esquire (on
brief).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III,
JA; Major Melissa Dasgupta Smith, JA; Captain Vincent S. Scalfani, JA (on brief).


                                    30 November 2016

                                -----------------------------------
                                 MEMORANDUM OPINION
                                -----------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

TOZZI, Senior Judge:

       An officer panel sitting as a general court-martial convicted appellant,
contrary to his pleas, of one specification of assault consumated by battery upon a
child, in violation of Article 128, Uniform Code of Military Justice, 10 U.S.C. § 928
(2012) [hereinafter UCMJ]. The panel sentenced appellant to a dismissal and
confinement for six months. The convening authority approved only so much of the
sentence as provided for a dismissal and confinement for five months.

       This case is before us for review under Article 66, UCMJ. Appellate defense
counsel assigns six errors to this court, one of which warrants discussion but no
relief. Appellant personally raised matters pursuant to United States v. Grostefon,
12 M.J. 431 (C.M.A. 1982) that we find, after due consideration, to be without
merit.
JERKINS—ARMY 20140071

                                  BACKGROUND

       On 13 May 2013, the United States Army Criminal Investigative Command
(CID) and Ms. NM, an investigator with child protective services (CPS), responded
to an allegation of child abuse regarding appellant’s three-year-old step-son, TB.
Appellant’s neighbors called CID after they noticed significant bruising across TB’s
arms and back. TB told them appellant “beat [him] with a belt.” Ms. JJ, appellant’s
wife, later took TB to the emergency room and he made a similar statement to the
forensic nurse. Appellant was charged and convicted based on TB’s allegations.

       CID interviewed Ms. JJ and she told them appellant admitted to spanking her
son with the belt. Ms. JJ also retrieved the leather belt appellant used to discipline
the children. Appellant arrived at the house while CID and Ms. NM were
investigating. Ms. NM showed appellant pictures of TB and asked if he spanked
him. Appellant was not advised of his Article 31 rights. Appellant subsequently
replied that he did spank TB with a belt and he described and demonstrated how he
disciplined him.

       At trial, the government’s opening statement quoted appellant’s statement to
Ms. NM as follows: “I held him down by his arm, and raised my right hand, and
looped the belt, and spanked him five times. He kept wiggling and pulling away.”
Ms. NM later testified that appellant made these statements. The government also
reiterated appellant’s statements in its closing argument.

      The defense theory of the case was that appellant was disciplining his child.
Appellant did not testify during the merits portion of the trial. The defense used
appellant’s statement to argue the parental discipline defense.

                              LAW AND DISCUSSION

       Appellant was represented by civilian defense counsel, Ms. SK * and military
defense counsel, Captain (CPT) CC and Major (MAJ) JM. Appellant voluntarily
released CPT CC. The senior defense counsel, MAJ JM represented appellant along
with Ms. SK at trial. Appellate defense counsel assert appellant received ineffective
assistance at trial when his defense counsel failed to move to suppress appellant’s
admission to Ms. NM and that the government’s use of these admissions undermines
the confidence in the outcome of the case. In support of this argument, appellate
defense counsel and appellant offered sworn affidavits.

      Upon order from this court, Ms. SK, CPT CC, and MAJ JM individually filed
sworn affidavits. While refuting claims of ineffective assistance, Ms. SK and MAJ


*
 Ms. SK’s law partner, Mr. WJ, was also retained but Ms. SK was the lead civilian
attorney.
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JERKINS—ARMY 20140071

JM attest to the fact that even if appellant’s admissions were suppressed, they were
aware of alternative methods for the prosecution to admit essentially the same
information (i.e. testimony from TB, Ms. JJ, the neighbors, or the forensic nurse).
Ms. SK explained, “the strategy was to be ‘honest’ with the panel and present the
‘parental discipline’ defense . . . .” As a result, the defense was able to use
appellant’s admissions and place his “favorable explanation” in front of the panel
without requiring appellant to testify. Major JM further noted that allowing the
statement to come in was a better strategy than having appellant testify because he
“would not have made a good witness and would have been impeached by the
statement” if he testified. Defense counsel also noted that appellant was fully aware
of this strategy before trial as appellant was included in strategic discussions with
all of the lawyers. Furthermore, Ms. SK stated, “Much discussion was had on the
issue, and [appellant] was well aware and approved of the strategy.”

       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 analysis de novo.” United States v. Mazza, 67 M.J. 470, 474
(C.A.A.F. 2009) (citations omitted). The Strickland framework was adopted by the
military justice system and further developed into a three-pronged test to determine
whether an appellant has overcome the presumption of competence and shown
prejudice:

             (1) Are appellant’s 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?”; and

             (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. Grigoruk, 56 M.J. 304, 307 (C.A.A.F. 2002) (quoting United States
v. Polk, 32 M.J. 150, 153 (C.M.A. 1991)).

       “We do not measure deficiency based on the success of a trial defense
counsel’s strategy, but instead examine whether counsel made an objectively
reasonable choice in strategy from the available alternatives. Similarly, we must

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JERKINS—ARMY 20140071

remain mindful that counsel have wide latitude in making tactical decisions.”
United States v. Akbar, 74 M.J. 364, 379 (C.A.A.F. 2015) (internal citations and
quotation marks omitted). 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 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.’” United
States v. Anderson, 55 M.J. 198, 202 (C.A.A.F. 2001) (quoting United States v.
Morgan, 37 M.J. 407, 410 (C.M.A. 1993)).

        It is clear from the record in this case and the sworn affidavits of appellant’s
counsel that they made a considered, tactical decision not to litigate a motion to
suppress appellant’s statement to Ms. NM. Their rationale included consideration of
how such a motion would comport with their overarching trial strategy. They
considered how evidence of the same nature as appellant’s statement could have
been introduced through other trial witnesses, and how such evidence would not
have appeared favorable to appellant without his statement explaining his actions in
a more favorable light. This tactical decision supported their trial strategy in
focusing on the parental discipline defense. Absent extraordinary circumstances,
this is exactly the type of strategic, tactical decision relevant case law instructs us
not to second guess. As such, we will not do so here.

       Based upon the entire record and the affidavits submitted by the parties, we
find there is a reasonable explanation for defense counsel’s decision not to litigate a
motion to suppress appellant’s statement to Ms. NM. Appellant’s defense counsel
made a tactical decision not to litigate a motion to suppress appellant’s statement to
Ms. NM only after weighing the relative merits of that course of action against its
potential risks, and considering how litigation of the motion fit into their trial
strategy. Appellant’s trial defense team “made an objectively reasonable choice in
strategy from available alternatives.” Akbar, 74 M.J. at 379 (internal citations and
quotation marks omitted). Appellant’s assertion that his defense counsel provided
ineffective assistance lacks merit.




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JERKINS—ARMY 20140071


                              CONCLUSION

    The findings of guilty and the sentence are AFFIRMED.

    Judge CELTNIEKS and Judge BURTON concur.

                                  FORTHE
                                 FOR  THECOURT:
                                          COURT:




                                 MALCOLM
                                  MALCOLMH.H.SQUIRES,
                                                  SQUIRES,JR.
                                                           JR.
                                 Clerk
                                  ClerkofofCourt
                                            Court




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