Today, CAAF will hear oral arguments in United States v. Harpole. Seaman Koda M. Harpole's case is based upon two assignments of error:
(1) whether the victim advocate was required to advise Appellant of his rights under Article 31(b), UCMJ?; and
(2) whether the trial defense counsel was ineffective when they failed to move to suppress Appellant's statement to the victim advocate when such statement was taken in violation of Article 31(b), UCMJ?
Harpole briefs here.
In December 2014, a general court-martial convicted Appellant of one specification of making a false official statement, two specifications of sexual assault, and one specification of housebreaking. Although the military judge conditionally dismissed one specification of sexual assault, Appellant was sentenced to confinement for seven years, reduction to E-1, and a dishonorable discharge. On February 14, 2018, CAAF set aside the decision of the CGCCA and returned the record of trial to develop the record regarding Appellant’s ineffective assistance of counsel claim. On December 18, 2019, the court found no ineffective assistance of counsel as there was not a reasonable probability a motion to suppress would have succeeded.
Aboard the USCGC POLAR STAR, Storekeeper Third Class (SK3) GR made a report to the senior victim advocate that Appellant had sexually assaulted her. Subsequently, SK3 GR was transferred ashore. Later, Appellant sought out Yeoman First Class (YN1) HN as his victim advocate and explained that while in SK3 GR's berthing area, he blacked out and that he felt that she had sexually assaulted him while he was blacked out. In accordance with policy, YN1 HN did not take any notes or direct Appellant to provide a written statement. At the Dubay hearing, YN1 HN testified that she recalled asking Appellant two questions: (1) Was it “okay that SNBM [SC] [was] in the room?” and (2) “[W]hat was going on?” However, Appellant contends that YN1 HN asked him four questions: (1) why did he need his backpack; (2) what was in his backpack; (3) who did he recall seeing when he entered the berthing area; and (4) what else could he remember. A portion of the trial defense counsel’s file introduced at the Dubay hearing reveals that on November 18, 2014, one or both counsel interviewed SNBM SC. He responded that YN1 HN interrupted Appellant and asked him, “So what was your business in female berthing anyway,” but then said, “Never mind, besides the point.” Appellant’s counsel never filed a motion to suppress Appellant’s statement taken in violation of Article 31(b), UCMJ.
Coast Guard Court of Criminal Appeals Decision
The appeals court affirmed the previous decision and concluded that “YN1 HN did not ‘interrogate, or request any statement from’ Appellant within the meaning of Article 31(b), so a motion to suppress on that basis would not have succeeded. As such, Appellant has failed to show either deficient performance or prejudice from his counsel’s decision not to pursue such a motion.”
Appellant argues that “[a]s a senior petty officer and a victim advocate, YN1 HN’s interaction with Appellant carried with it the marks of officiality and law enforcement/disciplinary responsibility.” Appellant further contends that any suspicion on the part of YN1 HN transformed her question regarding Appellant’s reason for being in the female berthing area to “an interrogation and should have been preceded with an advisement of his rights.” Lastly, Appellant argues that TDC’s failure to file a motion to suppress constituted ineffective assistance of counsel.
On the other side, the Government relying on the Dubay judge, contends that the “finding of fact regarding Appellant’s statements to YN1 HN are not clearly erroneous.” The Government also rejected the contention that YN1 HN was conducting an investigation and asserts that the decision of “the [lower courts] and the Dubay Judge correctly found, YN1 HN did not ask questions for those purposes, but rather to effectuate her duties as a VA.” Finally, the Government argues that “even if there was an Article 31(b), UCMJ, violation, Appellant has not rebutted the strong presumption TDC’s actions were within the wide range of reasonable professional assistance.”
Final thoughts: Generally, claims asserting ineffective assistance of counsel are met with high bars. Here, the question is whether Appellant would have a reasonable probability of success. At nearly every level, Appellant has fallen short of proving his claims. It is not unreasonable to conclude that Appellant will face the same fate on appeal as he has in the lower courts.