United States v. Specialist KAWATHA C. GETER

UNITED STATES ARMY COURT OF CRIMINAL APPEALS Before CONN, HOFFMAN, and GIFFORD Appellate Military Judges UNITED STATES, Appellee v. Specialist KAWATHA C. GETER United States Army, Appellant ARMY 20061061 7th Army Joint Multinational Training Command Michael J. Nelson and James L. Pohl, Military Judges For Appellant: Captain Alison L. Gregoire, JA; Frank J. Spinner, Esquire (on brief). For Appellee: Colonel Norman F.J. Allen III, JA; Lieutenant Colonel Martha L. Foss, JA; Major Sara M. Root, JA; Captain Sarah J. Rykowski (on brief). 23 February 2010 --------------------------------- SUMMARY DISPOSITION --------------------------------- Per Curiam: In appellant’s brief on the merits, appellant asserts that an abuse of discretion standard applies to Assignment of Error II. Appellant alleges the military judge abused his discretion when he determined the government’s failure to turn over certain material required by United States v. Brady v. Maryland, 373 U.S. 83 (1963) was harmless beyond a reasonable doubt. The government’s reply brief, in contrast, initially asserts the proper standard is de novo review while later referring to “abuse of discretion” in the brief. This Court applied a de novo standard of review in our assessment of Assignment of Error II. See United States v. Charles, 40 M.J. 414, 417 (C.M.A. 1994). We have considered those matters personally raised by appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). These are attached to appellant’s brief in the form of an unsworn, unsigned affidavit raising six matters including, inter alia, an allegation that trial defense counsel provided ineffective assistance. In the absence of a properly sworn statement, we must decide this issue only upon those facts contained in the record of trial. See generally United States v. Gunderman, 67 M.J. 683 (Army Ct. Crim. App. 2009) (declining to consider the contents of an unsigned, unsworn affidavit as “extrinsic facts”). Based upon this we find no merit in those issues raised in the unsigned affidavit. On consideration of the entire record, including those issues personally specified by the appellant, we hold the findings of guilty and the sentence as approved by the convening authority correct in law and fact. Accordingly, those findings of guilty and the sentence are AFFIRMED. FOR THE COURT: MALCOLM H. SQUIRES, JR. Clerk of Court