United States v. Burdine

29 M.J. 834, 1989 CMR LEXIS 971, 1989 WL 146048
CourtU.S. Army Court of Military Review
DecidedNovember 29, 1989
DocketACMR 8800562, ACMR 8901139 and ACMR 8702187
StatusPublished
Cited by19 cases

This text of 29 M.J. 834 (United States v. Burdine) is published on Counsel Stack Legal Research, covering U.S. Army Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Burdine, 29 M.J. 834, 1989 CMR LEXIS 971, 1989 WL 146048 (usarmymilrev 1989).

Opinion

OPINION OF THE COURT ON MOTION TO STAY ORDERS

MYERS, Senior Judge:

On 20 September, 27 September, and 28 September 1989, respectively, this court issued orders directing appellate government counsel to obtain affidavits from trial defense counsel in the above-captioned cases in response to personally-asserted allegations of the appellants, pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.1982), of ineffective assistance of trial defense counsel. On 10 October 1989 an in-chambers hearing was held at the request of appellate government counsel whereat they requested a stay of our said orders and reconsideration thereof. Counsel for both sides presented arguments on the propriety of our methods of resolving these issues.

Briefly stated, government contends that appellant should do more than merely state that counsel was ineffective. Appellant should specify in exactly what manner trial defense counsel was ineffective and in what manner appellant was prejudiced thereby. The government urges that appellant be offered the opportunity to present his allegations in affidavit form and that if appellant declines to do so, that fact may be considered by this court in resolving the issue. Defense, on the other hand, contends that under Grostefon appellant need do no more than articulate his assertions in whatever manner he chooses and that he should not be expected to submit an affidavit, thereby subjecting himself to possible charges of perjury. At the conclusion of the hearing, government counsel were granted the opportunity to submit a motion to stay our said orders and brief issues to be specified by us for the purpose of reconsidering our orders. Government counsel did file such a motion on 12 October 1989, recommending'issues to be specified by us to them for briefing. Defense did not respond to said motion.

In Grostefon the Court of Military Appeals (court) enunciated the now-familiar rule:

Henceforth, ... when the accused specifies error in his request for appellate representation or in some other form, the appellate defense counsel will, at a minimum, invite the attention of the Court of Military Review to those issues and, in its decision, the Court of Military Review will, at a minimum, acknowledge that it has considered those issues enumerated by the accused and its disposition of them.

Id. at 436. The court went on to require that, after adverse decision of the Court of Military Review, appellate defense counsel will so advise the accused and ascertain whether the accused wishes to petition the court on those issues.

Unless the accused consents to withdrawal or abandonment of the issues before this Court, appellate defense counsel will, in the petition for review, identify the issues ... [I]n no case will the issues submitted by the accused be ignored without evidence of the accused’s concurrence in that decision.

Id. at 437.

The court has been careful to emphasize, however, that

... the requirement placed on appellate defense counsel is only that he identify those issues which his client wishes to have raised on appeal. The extent of his argument in support of the various issues is a matter of the attorney’s sound professional judgment.... Grostefon still leaves a lawyer considerable leeway to emphasize the points of law which, in his professional judgment, are the most meritorious.

United States v. Arroyo, 17 M.J. 224, 226-227 (C.M.A.1984). See also United States v. Williams, 22 M.J. 584 (A.C.M.R.1986).

[836]*836What was the court’s rationale in creating this highly unusual appellate procedure?

... [T]he purpose of our holding in Grostefon was to assure that an accused had the opportunity to bring to the attention of the appellate court any issue he wished to have considered with respect to the findings and sentence, as finally approved by the convening authority____ Thereby, we have sought to guarantee that no accused would be left with the belief that his lawyer had not raised an issue which he wished to have considered. Imposition of this requirement was viewed as especially important in military justice, because the defense counsel at both the trial and appellate levels usually are military officers, and an accused whose issues have not been raised on appeal might conclude that the omission was the result of command influence.

United States v. Healy, 26 M.J. 394, 397 (C.M.A.1988).

Having established what the court expects of appellate defense counsel and this court and why, we must then determine exactly what appellant must do to trigger that responsibility. The court’s own language in creating this requirement, “in his request for appellate representation or in some other form,” leaves little doubt that the court was not particularly concerned with the technical form of appellant’s assertions. Grostefon, 12 M.J. at 436 (emphasis added). Thus, while clemency materials may not be admissible in a Court of Military Review under the Grostefon criteria, Healy, 26 M.J. at 397, a fifty-five page document submitted by accused’s mother and signed by her on accused’s behalf and at his request, has been held admissible as a proper Grostefon submission. United States v. Peel, 29 M.J. 235 (C.M.A.1989). However, some reasonable rules of practice, such as timeliness of submissions, may be imposed at the discretion of the appellate courts. United States v. Mitchell, 20 M.J. 350 (C.M.A.1985); Williams, 22 M.J. at 587.

With particular regard to allegations of ineffective assistance of counsel, the court expressed its concerns in United States v. McGillis, 27 M.J. 462 (C.M.A.1988) as follows:

Accused frequently submit for appellate review the allegation that they have been ineffectively assisted at trial by defense counsel. However, unless such claims are investigated below or briefs are filed by both sides, we have no means for determining if they amount to “good cause shown,” thereby entitling appellant to a review of his case by this Court.

Id. at 462 (citation omitted).

Allegations of ineffective assistance of counsel are distinct from most other allegations in that they are not always susceptible of resolution by review of the record of trial. Obviously, if trial defense counsel failed to call certain witnesses, failed to present a certain issue or argument, or failed to introduce a certain piece of evidence, those issues cannot be resolved from the trial record since there is nothing in the record about them. Thus, unresolved allegations of ineffective assistance of counsel leave the court with three basic dilemmas:

1. Are the allegations true?
2. If so, did trial defense counsel’s performance meet minimum standards?
3. If not, could such performance have affected the verdict of the trial court?

Id. Rather than merely speculate on those questions, the court deems it “appropriate for the court below to resolve these matters initially ... [by] ... further proceedings, as deemed appropriate, to determine if appellant’s allegations are true, and, if so, if he is entitled to any relief.” Id. at 463.

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Cite This Page — Counsel Stack

Bluebook (online)
29 M.J. 834, 1989 CMR LEXIS 971, 1989 WL 146048, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-burdine-usarmymilrev-1989.