

   
   
   
   U.S. v. Grigoruk



UNITED STATES, Appellee
v.
Sean G. GRIGORUK, Staff Sergeant
U.S. Army, Appellant
 
No. 98-1089
Crim. App. No. 9600949
 
United States Court of Appeals for the Armed
Forces
Argued December 9, 1999
Decided March 13, 2000
GIERKE, J., delivered the opinion of the
Court, in which SULLIVAN and EFFRON, JJ., and COX, S.J., joined. CRAWFORD,
C.J. filed an opinion concurring in part and dissenting in part.
Counsel
For Appellant: David P. Sheldon (argued);
Eugene
R. Fidell, Mary Price, and Captain Steven P. Haight (on
brief); Lynmarie Cusack, Gary R. Myers, and Captain
Paul J. Perrone.
For Appellee: Captain Kelly D. Haywood
(argued); Colonel Russell S. Estey, Lieutenant Colonel Eugene
R. Milhizer, and Major Patricia A. Ham (on brief); Captain
Arthur J. Coulter.
Military Judge: Robert F. Holland
 
 


THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE PUBLICATION.


Judge GIERKE delivered the opinion of the Court.
A general court-martial composed of officer
and enlisted members convicted appellant, contrary to his pleas, of 2 specifications
each of rape, sodomy, and indecent acts with a child under the age of 16,
in violation of Articles 120, 125, and 134, Uniform Code of Military Justice,
10 USC §§ 920, 925, and 934, respectively. The adjudged and approved
sentence provides for a dishonorable discharge, confinement for 20 years,
total forfeitures, and reduction to the lowest enlisted grade. The Court
of Criminal Appeals affirmed the findings and sentence without opinion.
This Court granted review of the following
issues:


I
WHETHER TRIAL DEFENSE COUNSEL PROVIDED INEFFECTIVE
ASSISTANCE OF COUNSEL WHEN HE FAILED TO (1) CALL AN EXPERT WITNESS WHO
WOULD PROVIDE CREDIBLE EVIDENCE THAT SUPPORTED THE DEFENSES THEORY OF
THE CASE; (2) CROSS-EXAMINE A NUMBER OF WITNESSES REGARDING PERTINENT FACTS
IN DISPUTE; AND (3) STIPULATED TO DAMNING EVIDENCE.

II
WHETHER THE REVIEWING COURT CONDUCTED MEANINGFUL
APPELLATE REVIEW WHEN IT FAILED TO ORDER TRIAL DEFENSE COUNSEL TO SUBMIT
AN AFFIDAVIT WHEN A VIABLE CLAIM FOR INEFFECTIVE ASSISTANCE OF COUNSEL
HAD BEEN RAISED.

For the reasons set out below, we remand for further
factfinding and review.

Factual Background
The charges in this case were based on accusations
by appellants stepdaughter, DW. She was 4 years old at the time of the
first alleged incidents, between 5 and 8 years old at the time of the second
alleged incidents, and 9 years old at the time of trial.
Appellant and his ex-wife, an Army sergeant,
were married for about 5 years and divorced about 1 year before the court-martial.
DW was the natural daughter of appellants wife and was about 2 years old
when appellant married her mother. The subsequent divorce was the result
of frequent separations and deployments, and appellants extramarital affair.
In a pretrial statement to agents of the U.S. Army Criminal Investigation
Command (CID), appellant characterized the divorce as "coupled with animosity."
Anticipating a credibility battle between appellant
and DW, defense counsel requested the convening authority to employ Dr.
Ralph Underwager, a child psychologist, as an expert witness for the defense.
After the convening authority denied the request, defense counsel asked
the military judge for relief. Defense counsel represented that Dr. Underwager
would support the defense theory that the accusations were fabricated by
explaining the factors that cause a child to make false accusations. Specifically,
the defense proffered that Dr. Underwager would provide expert testimony
on four points relevant to the defense theory of the case:
(1) A conflicted family environment, particularly
divorce and separation from parents, may influence a child to fabricate
stories of abuse;
(2) Because children are more suggestible than
adults, repeated questioning can teach or reinforce a false accusation;
(3) The initial assumptions of a child interviewer
are a powerful determinant of what the child reports; and
(4) Consistent repetition is more indicative
of learned behavior than actual memory.
The military judge ruled that the first three
points were permissible areas of expert testimony. He ordered the Government
to produce Dr. Underwager or a suitable substitute. He conditioned his
ruling on the defenses ability to produce evidence of the underlying hypothetical
facts on which Dr. Underwager would base his expert opinion.
DW testified at trial, describing the conduct
on which the charges were based in graphic detail. She testified that appellant
told her not to tell anyone about his conduct with her, but that she told
a babysitter "[c]ause I had to tell somebody."
The prosecution presented the stipulated testimony
of a medical doctor who had conducted a genital-rectal examination of DW
and found her condition "normal." The doctor also stated that a "normal"
diagnosis is not inconsistent with an allegation of sexual abuse.
The prosecution also presented the stipulated
testimony of a CID agent who questioned appellant twice. The first time
appellant categorically denied DWs accusations. Responding to questions
about the source of DWs sexual knowledge, he told the CID that DW had
entered his bedroom while he and his wife were engaged in sexual intercourse.
He further stated that DW had entered the bedroom while appellant and his
current girl friend were having sexual intercourse and that he had caught
DW looking through the crack of the bedroom door when appellant thought
she was asleep.
According to the CID agent, appellant was later
confronted with the evidence and said, "I know something happened but not
all that." After being advised that it would be in his best interest to
cooperate with the investigation, appellant said, "I guess all I can do
is try to plea bargain." Appellants second statement was not reduced to
writing. Appellants ex-wife testified that she learned of appellants
conduct from the babysitter. She testified that she initially "could not
believe that something of that nature had taken place." She admitted that
employees of the Tennessee Department of Human Services had mentioned the
possibility that DW would be placed in a foster home if she did not support
her daughter. She testified that DW had "told lies in the past." She testified
that when DW had lied in the past, she and appellant "would usually confront
her and drill her and, you know, question her over and over until she told
the truth."
Appellant testified in his own defense and
categorically denied the allegations. He described an incident of DWs
destructive behavior, where, shortly after the birth of her younger brother,
she went into the kitchen and destroyed everything related to the baby
and his food. Appellant described a second incident when DW hit her younger
brother in the back with a large toy. She initially blamed it on the babysitter,
but finally admitted doing it. Appellant admitted having an extramarital
affair and fathering a child by another woman. He testified that, as his
marriage deteriorated, DW became hostile, and they grew distant.
The defense presented evidence of good character.
A first sergeant testified that appellant was "a very good noncommissioned
officer" and "a very good parent." Another first sergeant testified that
appellant was a good soldier and "very honest." A friend and fellow noncommissioned
officer testified that appellant was "a very good parent." A subordinate
characterized him as "a great parent." Appellants father characterized
him as "a stern parent" but "a fair parent."
The defense did not present evidence from Dr.
Underwager or any other expert in child psychology. In a post-trial affidavit
filed with the court below, appellant asserts that his defense counsel
told him shortly before the trial that he had decided not to use Dr. Underwager.
According to appellant, defense counsel "believed the prosecution had some
dirt on our intended expert which would be used in an attempt to discredit
him and make him out as a hired gun going to the highest bidder." There
is no affidavit from defense counsel in the record.
Appellant now asserts that his defense counsel
were ineffective in three particulars: (1) failure to use Dr. Underwager,
or any other expert, to challenge DWs credibility; (2)failure to cross-examine
the CID agents about the context of appellants oral statements; and (3)
stipulating to damning testimony of the medical doctor that a normal genital-rectal
examination was not inconsistent with sexual abuse.

Discussion
This Court has adopted the Supreme Courts
test for effectiveness of counsel articulated in Strickland v. Washington,
466 U.S. 668, 687 (1984), including the presumption of competence announced
in United States v. Cronic, 466 U.S. 648, 658 (1984). See
United States v. Scott, 24 MJ 186, 188 (1987). In United States
v. Polk, 32 MJ 150, 153 (1991), our Court adopted this three-pronged
test to determine if the presumption of competence has been overcome:
(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.
Our Court "will not second-guess the strategic
or tactical decisions made at trial by defense counsel." See United
States v. Morgan, 37 MJ 407, 410 (1993). On the other hand, where it
is not apparent what decisions were made or even that a strategic or tactical
decision was made, further inquiry may be required. We will not, however,
compel a defense counsel to justify decisions made at trial --

until a court of competent jurisdiction reviews
the allegation of ineffectiveness and the government response, examines
the record, and determines that the allegation and the record contain evidence
which, if unrebutted, would overcome the presumption of competence.

United States v. Lewis, 42 MJ 1, 6 (1995).
We will also require an appellant to establish a factual foundation for
a claim of ineffective representation. Sweeping, generalized accusations
will not suffice. See United States v. Moulton, 47 MJ 227,
229 (1997).
Applying the foregoing principles, we hold
that appellant has met the threshold for ordering further inquiry. This
case was a classic credibility contest between appellant and DW. The record
reflects that defense counsel prevailed on a contested motion to compel
the production of Dr. Underwager or another equivalent expert. The defense
established the factual predicate for the proffered expert testimony. Inexplicably,
however, defense counsel did not call Dr. Underwager or any other expert
to challenge DWs credibility. We hold that appellant has met the Lewis
threshold for compelling defense counsel to explain his actions. See
United States v. Clark, 49 MJ 98 (1998) (failure to call accident-reconstruction
expert was ineffective representation).
With respect to appellants remaining complaints
about his counsels performance, we hold that appellant has not met the
Lewis
threshold. Failure to cross-examine the CID agents is not ineffective representation,
in the absence of evidence showing what that cross-examination might reasonably
have accomplished. Similarly, stipulating to the medical doctors testimony
is not ineffective representation, in the absence of a showing that her
testimony in person would have been more favorable to appellant.

Decision
The decision of the United States Army Court
of Criminal Appeals is set aside. The record of trial is returned to the
Judge Advocate General of the Army for remand to the court below. That
court will request an affidavit from defense counsel explaining why Dr.
Underwager or any other expert in child psychology was not called to challenge
DWs credibility. The court will obtain additional evidence if necessary,
conduct further factfinding in a manner consistent with United States
v. Ginn, 47 MJ 236 (1997), and then reconsider appellants claim of
ineffective representation. Thereafter, Article 67(a), UCMJ, 10 USC §
867(a) (1994), will apply.


CRAWFORD, Chief Judge (concurring in part and
dissenting in part):
The majority has again1
lost track of the real issue and refused to heed then-Chief Judge Coxs
admonition in United States v. Ingham: the issue "is not what a
certain expert might or might not have opined, but whether defense counsel
was ineffective in contesting the assertions of the victim. Thus the question
is  how did counsel deal with the witness testimony." 42 MJ 218, 226
(1995), cert. denied, 516 U.S. 1063 (1996). Instead, this
Court appears to be fashioning a rule that requires a trial defense counsel
to submit a written explanation for his or her strategy whenever
experts are used by defense counsel in pretrial preparation, but are not
called to testify at trial. As I do not agree that this or any appellant
can meet the first prong of the test set forth in United States v. Polk,
32 MJ 150 (CMA 1991), and establish ineffective representation by merely
showing "some expert would have said something consistent with an accuseds
views,"2 I dissent from
so much of the Courts opinion as holds that appellant has met the threshold
for compelling defense counsels explanation for not calling Dr. Underwager
to testify.
In applying the Supreme Courts test for effectiveness
of counsel, the starting point for examining counsels presumed competence
is "whether counsel had a reasonable trial strategy  one supported by
the law and evidence." Ingham, supra at 224. My analysis
of this record of trial shows the trial defense counsel had a reasonable
strategy  attack the victims credibility and put her truthfulness "squarely
before the court members." Id. at 227. Since counsel is presumed
competent, United States v. Cronic, 466 U.S. 648, 658 (1984), this
Court should accord trial defense counsel the presumption that he evaluated
all the evidence and selected the strategy that would most likely be successful.
See
United States v. Fluellen, 40 MJ 96, 98 (CMA 1994).
I completely agree with the majoritys evaluation
of this case as "a classic credibility contest between appellant and DW."
___ MJ ___ at (8). Cross-examination of DW showed the factfinders
that DW held appellant responsible for breaking up her home, for taking
her brother away, and for marital fights. She further explained that appellant
had treated her less fairly than he treated his natural child. Finally,
both DW and appellants father labeled him as a strict, no-nonsense disciplinarian.
Coupled with testimony from the victims mother that DW had made false
statements in the past, trial defense counsels strategy was to portray
DW as a revenge-seeking liar and convince the court members that her allegations
of being raped and sodomized by her stepfather were more falsehoods.
As the majority notes, the military judges
ruling, granting trial defense counsels request for Dr. Underwager or
other expert testimony, was "conditioned . . . on the defenses ability
to produce evidence of the underlying hypothetical facts on which Dr.
Underwager would base his expert opinion." ___ MJ at (4). By returning
this case to the lower court for additional factfinding concerning defense
counsels failure to produce expert testimony, the majority appears to
assume that defense counsel could have laid the foundation that would have
permitted Dr. Underwager to testify. I can make no such assumption.
Even if Dr. Underwager, a witness who had never
interviewed the victim, had testified within those parameters laid out
by the military judge and in accordance with his post-trial affidavit,
his testimony would have been cumulative. In comparing Dr. Underwagers
opinion, which trial defense counsel had during his pretrial preparations,
to the defense counsels trial strategy, the evidence of record convinces
me that appellants counsel effectively utilized Dr. Underwagers advice
in his presentation of the defense case. Finally, had Dr. Underwager testified,
the record of trial shows that the Government would have been allowed to
counter with an expert of its own.
The Courts action today expands the first
prong of the test we adopted in Polk, 32 MJ at 153, to now require
a written explanation for counsels actions in the defense of a court-martial,
at least when dealing with expert testimony. It is clear that the majority
will
"second-guess" the strategic and tactical decisions of a trial defense
counsel, contrary to our decision in United States v. Morgan, 37
MJ 407, 410 (1993). When use of expert testimony is at issue, I cannot
agree that the requirement for a "reasonable explanation for counsels
actions," set out in Polk (32 MJ at 153) contemplated a written
explanation from the trial defense counsel when the record of trial otherwise
provides a cogent reason for a tactical decision. As I fear that this Court
has fashioned a rule that will lead us back down the slippery slope of
"battling affidavits," a practice we wisely discarded in United States
v. Lewis, 42 MJ 1 (1995), and United States v. Ginn, 47 MJ 236
(1997), I respectfully dissent. Having found a plausible explanation within
the pages of appellants record of trial for trial defense counsels failure
to call Dr. Underwager as a witness, I would affirm the findings and sentence
now.
FOOTNOTES:
1 See United
States v. Clark, 49 MJ 98, 101 (1998)(Crawford, J., dissenting).
2Ingham,
supra at 226.

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