Name: Sean G. Grigoruk
Case: United States v. Grigoruk No. 98-1089
Date Of Appeal: December 9, 1999
Plea: Not Guilty
Charges: Indecent Acts Upon A Child
Military Branch: U.S. Army
Listed In National Sex Offenders Registry? NO - Absconder
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Sean G. Grigoruk
Staff Sergeant U.S. Army
Convicted Sex Offender
Indecent Acts Upon A 4-Year-Old Child
A general court-martial composed of officer and enlisted members convicted appellant, contrary to his pleas, of 2 specifications each of rape, sodomy, and indecent acts with a child under the age of 16, in violation of Articles 120, 125, and 134, Uniform Code of Military Justice, 10 USC §§ 920, 925, and 934, respectively. The adjudged and approved sentence provides for a dishonorable discharge, confinement for 20 years, total forfeitures, and reduction to the lowest enlisted grade. The Court of Criminal Appeals affirmed the findings and sentence without opinion.
The charges in this case were based on accusations by appellant’s stepdaughter, DW. She was 4 years old at the time of the first alleged incidents, between 5 and 8 years old at the time of the second alleged incidents, and 9 years old at the time of trial.
Appellant and his ex-wife, an Army sergeant, were married for about 5 years and divorced about 1 year before the court-martial. DW was the natural daughter of appellant’s wife and was about 2 years old when appellant married her mother. The subsequent divorce was the result of frequent separations and deployments, and appellant’s extramarital affair. In a pretrial statement to agents of the U.S. Army Criminal Investigation Command (CID), appellant characterized the divorce as "coupled with animosity."
DW testified at trial, describing the conduct on which the charges were based in graphic detail. She testified that appellant told her not to tell anyone about his conduct with her, but that she told a babysitter "[c]ause I had to tell somebody."
The prosecution also presented the stipulated testimony of a CID agent who questioned appellant twice. The first time appellant categorically denied DW’s accusations. Responding to questions about the source of DW’s sexual knowledge, he told the CID that DW had entered his bedroom while he and his wife were engaged in sexual intercourse. He further stated that DW had entered the bedroom while appellant and his current girl friend were having sexual intercourse and that he had caught DW looking through the crack of the bedroom door when appellant thought she was asleep.
According to the CID agent, appellant was later confronted with the evidence and said, "I know something happened but not all that." After being advised that it would be in his best interest to cooperate with the investigation, appellant said, "I guess all I can do is try to plea bargain."
The Court’s action today expands the first prong of the test we adopted in Polk, 32 MJ at 153, to now require a written explanation for counsel’s actions in the defense of a court-martial, at least when dealing with expert testimony. It is clear that the majority will "second-guess" the strategic and tactical decisions of a trial defense counsel, contrary to our decision in United States v. Morgan, 37 MJ 407, 410 (1993). When use of expert testimony is at issue, I cannot agree that the requirement for a "reasonable explanation for counsel’s actions," set out in Polk (32 MJ at 153) contemplated a written explanation from the trial defense counsel when the record of trial otherwise provides a cogent reason for a tactical decision. As I fear that this Court has fashioned a rule that will lead us back down the slippery slope of "battling affidavits," a practice we wisely discarded in United States v. Lewis, 42 MJ 1 (1995), and United States v. Ginn, 47 MJ 236 (1997), I respectfully dissent. Having found a plausible explanation within the pages of appellant’s record of trial for trial defense counsel’s failure to call Dr. Underwager as a witness, I would affirm the findings and sentence now.
