

   
   
   
   U.S. v. Thompson



IN THE CASE OF
UNITED STATES, Appellee
v.
Dirk J. THOMPSON, Senior Airman
U.S. Air Force, Appellant
 
No. 98-0594/AF
Crim. App. No. 32630
 
United States Court of Appeals for the Armed
Forces
Argued December 17, 1998
Decided September 17, 1999
 

SULLIVAN, J., delivered the opinion of
the Court, in which COX, C.J., and CRAWFORD, GIERKE, and EFFRON, JJ., joined.

Counsel
For Appellant: Captain Stephen P. Kelly
(argued); Colonel Douglas H. Kohrt, Lieutenant Colonel Ray T. Blank,
Jr., and Captain Patience E. Schermer (on brief); Captain
W. Craig Mullen.
For Appellee: Major Bryan T. Wheeler
(argued); Lieutenant Colonel Anthony P. Dattilo, Major Ronald A. Rodgers,
and Captain Tony R. Roberts (on brief); Lieutenant Colonel Michael
J. Breslin and Major Steven B. Thompson.
Military Judge: Willard L. Pope, Jr.
 
 


THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE PUBLICATION.
 
 

Judge SULLIVAN delivered the opinion of the Court.
On December 17, 1996, appellant was tried by
a military judge sitting alone as a general court-martial at Mountain Home
Air Force Base, Idaho. In accordance with his pleas, he was found guilty
of committing forcible sodomy against a child under the age of 16, in violation
of Article 125, Uniform Code of Military Justice, 10 USC § 925. See
para. 51b and d(2), Part IV, Manual for Courts-Martial, United States (1995
ed.). He was sentenced to a dishonorable discharge, confinement for 48
months, forfeiture of all pay and allowances, and reduction to E-1. On
March 25, 1997, in accordance with the terms of appellants pretrial agreement,
the convening authority reduced the term of confinement to 30 months but
otherwise approved the sentence. On February 5, 1998, the Court of Criminal
Appeals affirmed the findings and sentence in an unpublished opinion.
This Court granted review on July 20, 1998,
on the following issue assigned by appellant:



WHETHER APPELLANT WAS DENIED EFFECTIVE ASSISTANCE
OF COUNSEL BY TRIAL DEFENSE COUNSELS INADEQUATE PRETRIAL ADVICE AND CONFLICT
OF INTEREST.



We hold that a pretrial complaint against defense
counsel, made by appellants wife, did not create a conflict of interest
disqualifying him from further participation in this case. See United
States v. Cornelious, 41 MJ 397 (1995). We also hold that appellant
was not denied effective assistance of counsel when military defense counsel
cautioned him about retaining civilian counsel and discouraged him from
getting help from a psychologist. See United States v. Montoya,
13 MJ 268, 275 n.3 (CMA 1982); United States v. Mansfield, 38 MJ
415, 418 (CMA 1993).
Appellant pleaded guilty to committing forcible
sodomy against a child under the age of 16 and he now challenges the effectiveness
of his defense counsel. In a post-trial affidavit (dated Sept. 29, 1997),
appellant states:



When I sought information regarding the availability
of civilian defense counsel he [trial defense counsel] advised me not to
seek a civilian defense counsel by telling me that he had seen three or
four cases in which Airman [sic] had fired their civilian defense counsel
because they did not know the military system. Because of his advice I
felt I had no other option than to continue with Captain Santa Teresa.
Because of my concern with the way Captain Santa Teresa was handling my
case, my wife complained to the IG on or about the 7th of December
1996. Captain Santa Teresa then chewed me out for going to the IG. Although
he stated that I could fire him, because of his earlier advice I felt I
had no option. Then also when my chaplain, that I have been talking to,
advised me to seek the help of a psychologist my attorney said that was
a bad idea and told me we wont do that. That is funny cause [sic] the
first thing I did when I got to Miramar was see a psychologist.



In response, defense counsel filed a sworn affidavit
indicating that he did not prohibit appellant from seeking civilian counsel.
Rather, he asserted that he "fully explained his rights to counsel on numerous
occasions." In his affidavit, he states that on November 5, 1996,



I remember AB Thompson making a disappointing
side comment about having to pay a civilian attorney when I was advising
him about his rights. He asked for my opinion about civilian attorneys.
I told him that based on my experience, most civilian attorneys I have
encountered do not know how the military justice system works. However,
some are very good. This is when I told him that if he was going to hire
a civilian attorney he should make sure that he finds someone who has a
lot of military justice experience and knows how the UCMJ works. I told
him to let me know if he was going to hire one. A few days passed and I
asked him whether he wanted to hire a civilian attorney and he stated he
did not and was satisfied with me as his counsel.



Defense counsel further attests to advising appellant
of his rights again on December 5, 1996, and submits an undated "Pretrial
Advisement of Rights" memorandum signed by appellant prior to preferral
of charges. In addition, he submitted a form signed by appellant on December
5, 1996, specifically requesting Captain Santa Teresa as counsel and acknowledging
his option of hiring civilian counsel.
Finally, in his affidavit, defense counsel
addresses his actions on December 15, 1996, when he was informed about
a complaint regarding his representation of appellant:



. . . I received a message from MSgt Bruce
Palmer, the IG, NCOIC, to contact him. When I called, MSgt Palmer informed
me that "Thompson" made a complaint against me. He did not tell me all
the specifics. He just wanted to give me a "heads up." At that time I did
not know what it was all about and I was shocked, because AB Thompson left
the office appearing satisfied and knowledgeable about the whole process.
Based upon the conversation with MSgt Palmer, I assumed that AB Thompson
was the one who made the complaint. . . .
. . . AB Thompson arrived that afternoon. I
asked him direct and pointed questions about the IG complaint. I told him
I thought he was comfortable with and understood the entire process. I
told him if he was not satisfied with the process, including my representation
to let me know now and not wait until the trial. He was correct when he
claimed I told him that he could fire me if he was not satisfied. I also
told him if he did not want to plead guilty, we would proceed with a litigated
trial; and if he was not satisfied with me to let me know, because I had
to call my CCDC to find another attorney for him or he could hire a civilian
attorney. I told him we could ask for a delay if he decided to fire me
and get another attorney. He responded by denying having anything to
do with the IG complaint. He apparently did not know his wife made the
complaint. He also maintained he was satisfied with me as his counsel.
I told him to make sure of it because I did not want any surprises. If
he had any problems whatsoever, he should let me know at that time. He
insisted he was satisfied with everything. I then informed my chain of
command about the situation and they saw no problem. The next day, I again
questioned him about having second thoughts. He said he had no questions
and no problems.

* * *
On or about 2 Jan 97, I learned the civilian
counsel AB Thompson hired was planning to "attack" me in his post-trial
matters. After receiving advice from Maj (then Capt) Doug Cox, Maj Townsend,
and my CCDC, I called AB Thompson at his confinement facility. I told him
I learned that his civilian counsel was planing to attack me in his post-trial
matters. I informed him if that was his approach, then I would be conflicted
out and could no longer represent him. I told him if he thinks it would
do him good to attack me, that was fine. I told him I would hold nothing
against him and that was an option. He gave me a sigh of relief. He told
me I did not know how much that meant to him for me to say that. He said
he had problems attacking me and he really did not want to do it. I told
him he had to do what is best for him and I would not take it personally.
However, if he was going to attack me then it was best he released me.
He agreed. Before we ended our conversation, he thanked me for everything
I had done for him, including getting a deferment of his forfeitures and
arranging for his household goods and his family to be moved within two
weeks after the trial.
Finally, regarding his complaint about seeking
psychological help, I do not recall dissuading him from seeing a psychologist.
I remember him being distraught and informed him I was not a counselor.
However, I advised him to talk with a priest or a chaplain, because of
the penitent-priest privilege. I informed him there would be no confidentiality
with mental health. It has been my habit to inform my clients they could
talk to anybody, but I recommend they talk only to my paralegal, a chaplain,
or me about the case, because of confidentiality. I never prohibited a
client from speaking to or seeking help from someone other than myself,
my defense paralegal, or chaplain; however, I always warned them of the
possible consequences.



(Emphasis added.)
The record of trial states the following:



MJ: Now, at this time Id like to go over
your rights to counsel. Im sure youve already had them explained to you
but its important that we go over them on the record. You have the right
to be represented by Captain Santa Teresa--I assume, your detailed counsel.
Is that correct Captain Santa Teresa?
DC: Yes, your honor.
MJ: He is your detailed military counsel. Hes
provided to you at no expense to you. You also have the right to request
a different military lawyer to represent you. If the person you request
is reasonably available, he or she would be appointed to represent you
free of charge. . . .
ACC: Yes, your honor.
MJ: In addition, you have the right to be
represented by a civilian lawyer. A civilian lawyer would have to be
provided by you at no expense to the Government. If you are represented
by a civilian lawyer, you can also keep your military lawyer on the case
to assist your civilian lawyer or you could excuse your military lawyer
and be represented only by your civilian lawyer. Do you understand your
rights to counsel?
ACC: Yes, your honor.
MJ: Do you have any questions at all?
ACC: No, sir.



(Emphasis added.)
___ ___ ___
Appellant initially asks this Court to set
aside his guilty pleas because his military defense counsel had a disqualifying
conflict of interest which prejudiced his defense. He contends that his
wifes complaint to a local Inspector General and his subsequent confrontation
with defense counsel created a conflict of interest. This conflict, he
further asserts, resulted in defense counsel conducting no pretrial investigation,
calling no witnesses, and pleading him guilty, i.e., taking "the
path of least resistance resolving Appellants case." In sum, he contends
that "Capt ST advanced his own interests in getting rid of Appellant easily
and quickly ahead of Appellants interests." Final Brief at 6.
To prevail on a conflict of interest claim,
appellant must demonstrate that defense counsel faced an "actual conflict
of interest" which "affected the adequacy of [the attorneys] representation."
United States v. Bruce, 89 F.3d 886, 893 (D.C. Cir. 1996), quoting
Cuyler v. Sullivan, 466 U.S. 335, 349-50 (1980). An accuseds complaint
about counsels performance may in certain circumstances create such a
conflict of interest. See United States v. Lindsey, 48 MJ
93 (1998) (three separate opinions). However, if such a complaint is resolved
by the accused and his counsel, defense counsel is freed from the competing
interests which constitute the conflict. See United States v.
Cornelious, 41 MJ 397, 398-99 (1995); see also United
States v. Carter, 40 MJ 102 (CMA 1994); United States v. Greene,
44 MJ 93 (1996) (absence of knowledge of complaint renders possible conflict
not disqualifying).
For example, in Cornelious, defense
counsel became aware that his client made an ineffectiveness complaint
in his clemency submission. However, there was nothing in the authenticated
record or in post-trial affidavits showing any advisement to the accused
of his legal rights, or any resolution between the accused and counsel
of this dispute. We remanded Cornelious for further proceedings
to determine those issues.
Here, defense counsels affidavit provides
additional details concerning a possible conflict of interest which are
not contradicted by appellant. Cf. United States v. Ginn,
47 MJ 236, 245 (1997). He asserts that once he became aware of a possible
conflict, he confronted appellant and quickly ascertained its status. He
states that he inquired as to the source of dissatisfaction and discovered
that appellant did not make the complaint, but that his wife did so without
his knowledge. He further determined that appellant was satisfied with
the quality of his representation. Thus, while the pretrial complaint against
counsel raised a potential conflict, defense counsels prompt action rendered
him "mentally free from competing interests" and, thus, avoided an actual
conflict. Cf. Carter, supra at 105; United States
v. Cornelious, supra. Contrary to appellants suggestion, his
wifes pretrial complaint simply did not create an irrevocable conflict
of interest for defense counsel. See generally United
States v. Bruce, supra.
Appellants second claim of ineffective assistance
of counsel is that his military defense counsel improperly discouraged
him from retaining civilian counsel. See Art. 38(b)(2), UCMJ, 10
USC § 838(b)(2). The test for ineffective assistance of counsel generally
requires appellant to demonstrate that counsels performance was deficient
and that the deficiency prejudiced the defense to such an extent that appellant
was denied a fair trial. United States v. Marshall, 45 MJ 268, 270
(1996). None of the affidavits in this case assert such advice was expressly
given by defense counsel, and his affidavit provides additional, uncontradicted
details as to the totality of his advice. Cf. United States v.
Ginn, supra. Moreover, no legal authority is cited that the
entire advice as delineated by defense counsel was deficient. Cf.
Montoya, 13 MJ at 275 n.3 (military defense counsel can make recommendations
on qualified civilian counsel). Lastly, we note that the trial judge fully
advised appellant of his right to civilian counsel, and appellant acknowledged
this advice and his understanding of it without reservation. We find no
prejudicial error here.
Finally, appellant contends that his military
defense counsel provided him ineffective assistance when he "told him not
to seek help from mental health professionals." Final Brief at 2. In a
post-trial declaration, he stated:



Then also when my chaplain, that I have been
talking to, advised me to seek the help of a psychologist my attorney said
that was a bad idea and told me we wont do that. That is funny cause [sic]
the first thing I did when I got to Miramar was see a psychologist.



A similar claim, but not identical, was made by
a civilian attorney hired by appellant after his trial for purposes of
the post-trial review by the convening authority. He asserted that military
defense counsel provided ineffective assistance by "fail[ing] to seek a
psychiatric evaluation of [appellant]." Based on a post-trial mental health
evaluation acquired by the defense, he contended that the convening authority
should give appellant sentence relief because "the Trial Judge imposed
a sentence that was more severe than was actually appropriate considering
the possibility of rehabilitation and deterrence." (Civilian Defense Counsels
RCM 1106 Response dated March 12, 1997.) We reject both arguments.
Initially, we note that appellants claim,
as framed in his brief and in his post-trial affidavit, does not provide
a sufficient factual basis for legal relief. See Ginn, supra
at 248 (affidavit does not raise factual issue requiring a hearing). Both
his declaration and military defense counsels affidavit state that his
request for mental health assistance was for his treatment during the pretrial
and trial process. Absent an allegation and showing that the absence of
this treatment somehow prejudiced him at trial, his claim is legally inadequate
and can be dismissed on this basis alone. Id. at 246-47; see
generally United States v. Boone, 49 MJ 187, 195-96 (1998);
cf. United States v. Breese, 47 MJ 5, 7 (1997).
We further note that defense counsels advice
to appellant in this matter was substantially correct. Military law did
not recognize an accused-psychologist privilege at the time of appellants
trial in 1996. See Mil. R. Evid. 501(d), Manual, supra; cf.
Mil. R. Evid. 706. Moreover, appellant had not yet pleaded guilty, and
his disclosures to a psychologist could possibly have been used against
him. See Mansfield, 38 MJ at 418. While appellant was faced
with a difficult decision to acquire treatment at the expense of confidentiality
(see Bordenkircher v. Hayes, 434 U.S. 357 (1978) (criminal
defendants face hard choices)), his defense counsels recognition of this
peril hardly constituted ineffective assistance.
Finally, civilian counsels post-trial submissions
raise a related question whether military defense counsel should have disregarded
this self-incrimination peril and sought favorable defense psychological
evidence for sentencing. In this regard, we note that appellant subsequently
pleaded guilty, and after trial, a mental health professional did provide
some favorable defense evidence in his report. In particular, he reported
appellants own sexual molestation at the age of 11 and gave his opinion
that appellant had "very good rehab potential . . . [and he] should prove
to be an excellent therapy candidate." However, evidence of appellants
prior molestation was presented at his court-martial, and numerous lay
witnesses testified to his otherwise good character. In our view, defense
counsels advice, i.e., to avoid unprivileged medical assistance,
was a reasonable tactical decision which we will not second-guess. See
generally United States v. Bray, 49 MJ 300, 305 (1998); cf.
United States v. Clark, 49 MJ 98, 100-01 (1998).
The decision of the United States Air Force
Court of Criminal Appeals is affirmed.

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