

   
   
   
   U.S. v. Scott



United States, Appellee
v.
Charlie SCOTT, Private First Class
U.S. Army, Appellant
 
No. 98-0987
Crim. App. No. 9502201
 
United States Court of Appeals for the Armed
Forces
Argued May 12, 1999
Decided August 19, 1999
CRAWFORD, J., delivered the opinion of the
Court, in which COX, C.J., and SULLIVAN, GIERKE, and EFFRON, JJ., joined.
 


Counsel
For Appellant: Captain David S. Hurt
(argued); Colonel John T. Phelps II, Lieutenant Colonel Adele
H. Odegard, and
Major Leslie A. Nepper (on brief);
Captain
Paul J. Perrone, Jr.
For Appellee: Captain Joseph A. Pixley
(argued);
Colonel Russell S. Estey, Lieutenant
Colonel Eugene R.
Milhizer, and Captain Mary E. Braisted
(on brief).
Military Judge: Buris C. Dale
 


THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.


Judge CRAWFORD delivered the opinion
of the Court.
Contrary to his pleas, appellant was
convicted by officer and enlisted members of attempted escape from confinement,
fraudulent enlistment, desertion (2 specifications), escape from confinement,
rape (6 specifications), larceny, wrongful appropriation of an automobile,
robbery, robbery with a firearm (2 specifications), housebreaking, wrongful
possession of a military identification card, wrongful and willful impersonation
of a noncommissioned officer, escape from custody (2 specifications), indecent
assault, and kidnapping (2 specifications).1
The convening authority approved the sentence of a dishonorable discharge,
40 years confinement, total forfeitures, and reduction to the lowest enlisted
grade. The Court of Criminal Appeals affirmed the findings and sentence
in an unpublished opinion on May 29, 1998. We granted review of the following
issue:

WHETHER THE MILITARY JUDGE COMMITTED PLAIN
ERROR BY ALLOWING THE GOVERNMENT TO PRESENT EXPERT TESTIMONY ON SENTENCING
AS TO APPELLANTS FUTURE DANGEROUSNESS BECAUSE THE EXPERT UTILIZED INFORMATION
OBTAINED FROM APPELLANTS PSYCHIATRIC EVALUATIONS IN VIOLATION OF APPELLANTS
FIFTH AND SIXTH AMENDMENT RIGHTS.

We also specified the following issue:

WHETHER TRIAL DEFENSE COUNSEL RENDERED INEFFECTIVE
ASSISTANCE OF COUNSEL BY ALLOWING THE GOVERNMENT TO PRESENT EXPERT TESTIMONY
ON SENTENCING AS TO APPELLANTS FUTURE DANGEROUSNESS BECAUSE THE EXPERT
UTILIZED INFORMATION OBTAINED FROM APPELLANTS PSYCHIATRIC EVALUATIONS
IN VIOLATION OF APPELLANTS FIFTH AND SIXTH AMENDMENT RIGHTS.

For the reasons set forth below, we decide against
appellant on both issues.

FACTS
On August 14, 1992, appellant was apprehended
by civilian authorities for felony theft and held for a psychiatric examination
to determine his competence to stand trial. He escaped and was recaptured
by United States Marshals. On September 17, 1992, the United States Magistrate
held a hearing and found appellant competent to conduct his initial appearance
in federal court. On September 23, 1992, he was transferred into United
States military custody. Appellants federal indictment was dismissed,
and he was charged as noted above. Again, appellant escaped on March 16,
1993, and was recaptured on September 8, 1995.
During a pre-sentencing Article 39(a)2
session, the Government indicated that it would call Dr. Ann Burgess to
testify as to the "rehabilitative potential of the accused." Assistant
trial counsel stated that Dr. Burgess was "going to discuss the factors
that lead to recidivism" by sex offenders and would testify that appellant
lacked rehabilitative potential. The military judge noted that, earlier,
Dr. Burgess had been qualified as an expert in the area of rape trauma.
However, defense counsel stated:



We would definitely object to her testifying
in that capacity [on rehabilitative potential]. She has not even so much
as interviewed PFC Charlie Scott and cannot therefore testify about his
rehabilitative potential. Your Honor, we would cite RCM 1001. It looks
like its - I think its 1001(b)5(c), Your Honor.



The judge, citing United States v. Stinson,
34 MJ 233 (CMA 1992), indicated that it was not necessary for an expert
to conduct an interview to testify about a person. Dr. Burgess then testified,
outside of the presence of the members, as to her studies concerning recidivism
by sexual offenders. She was cross-examined extensively as to these studies.
After the judge ensured she was not going to testify that appellant "should
go to jail," the judge overruled the defense objection to Dr. Burgess
testimony as to recidivism and the potential for rehabilitation of sexual
offenders. He noted that the defense concern about Dr. Burgess failure
to interview appellant personally would go to the weight of her testimony.
Dr. Burgess testified before the court members
that she never talked to appellant, his family or friends, or even to the
doctor that conducted the competency evaluation of appellant. Though she
reviewed statements made by appellant, she never testified as to the content
of any of those statements. Dr. Burgess testified as follows:



A. I have three brief documents from 1987
that  I have I think its a statement by him. Its an unsworn statement,
and its an evaluation done in November of 1987, and then from 1992 I have
a psychiatrists report of an examination that he did in 1982 (sic) and
then I have the results of that from December 16th, 1992.
Q. In your opinion is the accused at a high
risk or a low risk for re-offense?
A. My opinion ...
ADC. I object, Your Honor.
MJ. Overruled. Go on.
A. My opinion is he is at high risk for re-offense.
Q. And why is that?
A. That is based on the evidence on those three
variables, that impulsivity. The evidence of that is his escape behavior
in terms of four actually - one attempt and three completed. Thats impulsivity.
On anti-social behavior, the variables there are evidence of lying, evidence
of manipulation, evidence of deception and I found evidence there of lying
in terms of entrance into the military, also deception in terms of impersonating
people that he was not, and manipulation, I found evidence of that in just
reading one of the military records, and escalation of aggression. There
was that in the offenses.
Q. Is there an absolute cure for a sexual offender?
A. There is no absolute cure, not only sex
offenders but many other situations, but there is always the hope of rehabilitation
to reduce the risk. What we try to do in any health situation is to reduce
the risk of that behavior occurring again.



She concluded by stating that appellant exhibits
several of the various risk factors for re-offense, including his age -
earlier intervention being better, and the "multiple types of assault."
On cross-examination, the defense elicited
that she was being paid $8,000 for 13 days work. She testified that part
of the basis for her opinion was her interviews with the various rape victims
in this case. She also admitted that the documents she examined were "provided
... by the government."
Later, on redirect examination, she noted that
these documents included a mental status evaluation in September 1987 and
another one in 1992 completed by Dr. John Sparks. Defense counsel's objection
on the basis of hearsay was overruled by the judge. Neither the direct,
cross, or redirect examination produced any evidence that Dr. Burgess had
access to privileged portions of a psychiatric examination of appellant.

DISCUSSION
Servicemembers are guaranteed the right to
effective assistance of counsel, regardless of indigence. Art. 27, UCMJ,
10 USC § 827; United States v. MacCulloch, 40 MJ 236, 238 (CMA
1994). In determining whether there is a violation of this right, the Supreme
Court and this Court have applied a two-prong test. Strickland v. Washington,
466 U.S. 668 (1984); United States v. Scott, 24 MJ 186 (CMA 1987).
An appellant must first show that "counsel's representation fell below
an objective standard of reasonableness," 466 U.S. at 688; and second,
if so, that there was prejudice. Id. at 692.
In United States v. Loving, 41 MJ 213,
248-49 (1994), this Court adopted the clarification of Strickland
made by Lockhart v. Fretwell, 506 U.S. 364, 369 (1993), as follows:



[W]hen ineffective assistance is alleged,
"a criminal defendant alleging prejudice must show 'that counsel's errors
were so serious as to deprive the defendant of a fair trial, a trial whose
result is reliable.'"



The Strickland Court emphasized that "[j]udicial
scrutiny of counsel's performance must be highly deferential." Supra
at 689. "[C]ounsel is strongly presumed" to have given "adequate assistance."
Id.
at 690. In applying this test, an appellate court should seek to avoid
second-guessing counsels actions and presume counsel are competent.
Recently, in Mitchell v. United States,
___ U.S. ___, 119 S. Ct. 1307 (1999), the Supreme Court held that a defendants
right under the Self-Incrimination Clause of the Fifth Amendment applies
during sentencing in a criminal case. Article 31, UCMJ, 10 USC § 831,
which similarly prohibits compulsory self-incrimination, likewise makes
no distinction as to pretrial and trial stages. Additionally, the Sixth
Amendment right to counsel codified under Article 27 applies to the pretrial,
trial, and post-trial stages.
The disclosure requirements in the Manual for
Courts-Martial, United States (1998 ed.), protect a military defendant's
rights. Mil. R. Evid. 304(d)(1), Manual, supra, provides for government
disclosure to the defense of all statements made by the accused which are
relevant to the case and within the control of the armed forces. Likewise,
Mil. R. Evid. 304(d)(4) requires any motion to suppress or objection to
statements made by the accused to be submitted prior to the pleas. These
motions or objections may be deferred for good cause.
We begin from the presumption that defense
counsel were well aware of the charges against appellant and planned a
competent defense accordingly. Based on the evidence presented, we cannot
say that the representation appellant received was objectively unreasonable.
Furthermore, given the crime spree waged by appellant, a 40-year sentence
is far from excessive. Therefore, even assuming sub-standard performance,
appellant fails to show how he could have been prejudiced in sentencing.
As for the granted issue, even when Dr. Burgess
testified that her opinion in part was predicated on "a psychiatrists
report of an examination" done on appellant in 1992, the defense never
objected to her use of any of appellants psychiatric evaluations. Nor
did the defense object on the basis of privilege, involuntariness, or any
other Fifth or Sixth Amendment grounds. On the contrary, the defenses
only ground for objecting to Dr. Burgess was that she did not have a basis
for giving an opinion concerning appellants rehabilitative potential -
i.e.,
that he was "at high risk for re-offense" - because she had not interviewed
him. Consequently, appellants instant objections based on the Fifth and
Sixth Amendments were forfeited, absent plain error. See Mil. R.
Evid. 103. Furthermore, we can presume that counsel realized there was
no valid objection on those grounds if the question of incompetency or
lack of mental responsibility was raised by the defense and litigated.
See
United States v. Babbidge, 18 USCMA 327, 40 CMR 39 (1969).
In addition, the judge was correct in overruling
the objections based on hearsay, see United States v. Raya,
45 MJ 251 (1996), and Dr. Burgess failure to interview appellant. Stinson,
34 MJ 233. Dr. Burgess testimony was legitimate sentencing evidence. And
appellants claim that Dr. Burgess had improperly used the full sanity
board report is unsubstantiated. In fact, much of what Dr. Burgess said
about appellants impulsivity, manipulation, and lying was evident on the
face of the offenses for which appellant had already been found guilty.
Thus, there was no error, plain or otherwise.
United
States v. Powell, 49 MJ 460 (1998). Furthermore, even assuming error,
the testimony of Dr. Burgess did not materially prejudice a substantial
right of appellant. Id. The gist of Dr. Burgess' testimony was that
appellant would be a recidivist. Appellant was convicted of more than 20
offenses committed over a 2-year period of time. These included two successful
escapes from confinement and six rapes. When the overwhelming evidence
in this case is considered, Dr. Burgess testimony is only a small fraction
of the sentencing evidence considered by the members.
The decision of the United States Army Court
of Criminal Appeals is affirmed.
FOOTNOTES:
1 Articles 80, 83,
85, 95, 120, 121, 122, 130, and 134, Uniform Code of Military Justice,
10 USC §§ 880, 883, 885, 895, 920, 921, 922, 930, and 934, respectively.
2
UCMJ, 10 USC § 839(a).

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