U.S. v. Daryl A. HAMMER.

No. 02-0498/AF.

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

58 M.J. 214; 2003 CAAF LEXIS 308

 
March 26, 2003, Decided

SUBSEQUENT HISTORY: On remand at United States v. Hammer, 2004 CCA LEXIS 286 (A.F.C.C.A., Dec. 16, 2004)


PRIOR HISTORY:  [*1]   CCA 33663. United States v. Hammer, 2002 CCA LEXIS 42 (A.F.C.C.A., Feb. 25, 2002)


OPINION: On consideration of granted issues I, II, and III concerning Appellant's assertion that his trial defense counsel was ineffective, the affidavits submitted by the parties, the record of trial, and the pleadings, we believe that further inquiry concerning these issues must be undertaken before we can continue our review of this case. See Strickland v. Washington, 466 U.S. 668, 685-86, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984); Kimmelman v. Morrison, 477 U.S. 365, 384, 91 L. Ed. 2d 305, 106 S. Ct. 2574 (1986); United States v. Thompson, 54 M.J. 26, 31 (C.A.A.F. 2000); United States v. Ginn, 47 M.J. 236 (C.A.A.F. 1997). Accordingly, it is ordered that the decision of the United States Air Force Court of Criminal Appeals is set aside; and that the record of trial is returned to the Judge Advocate General of the Air Force for remand to a convening authority for a factfinding hearing solely to determine the following matters: (1) defense counsel's reasons for not interviewing Dr. Boos prior to trial; (2) defense counsel's reasons for not interviewing SW prior to advising Appellant concerning the admission of her testimony via videotape; (3) defense counsel's reasons for not [*2]  interviewing SW's mother; (4) defense counsel's reasons for not investigating the possibility of defending against any or all of the charges based on the mother's possible bias in questioning SW about the incidents involved after Appellant informed defense counsel of the mother's history as a victim of sexual abuse; and (5) defense counsel's reasons for not obtaining expert assistance, expert testimony, or both to counter the conclusion of Dr. Boos as to the cause of the redness in the posterior fourchette. See United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967). If the convening authority determines that a factfinding hearing is impracticable, the convening authority may set aside the findings and sentence and order a rehearing or dismiss the charges. If a factfinding hearing is conducted, the record of trial, including the factfinding hearing, will then be transmitted to the Court of Criminal Appeals for review under Article 66, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866 (2002). Thereafter, Article 67, UCMJ, 10 U.S.C. § 867, shall apply.