United States v. Curtis

46 M.J. 129, 1997 CAAF LEXIS 38

Opinions

On Reconsideration

PER CURIAM:

A general court-martial convened at Camp Lejeune, North Carolina, convicted appellant, contrary to his pleas, of two premeditated murders, three larcenies, wrongful appropriation, burglary, two housebreakings, indecent assault, and willfully damaging government property, in violation of Articles 118, 121, 129, 130, 134, and 108, Uniform Code of Military Justice, 10 USC §§ 918, 921, 929, 930, 934, and 908, respectively. Pursuant to a plea of guilty, appellant was also convicted of disobeying a general order, in violation of Article 92, UCMJ, 10 USC § 892. The court-martial sentenced him to death, and the convening authority approved the sentence.

The Court of Military Review (now the Court of Criminal Appeals) affirmed the findings and sentence. 28 MJ 1074 (1989). We conducted a bifurcated review. In our first review we upheld the constitutionality of the capital punishment procedures for courts-martial. 32 MJ 252 (1991). The Supreme Court upheld the constitutionality of those procedures in Loving v. United States,-U.S.-, 116 S.Ct. 1737, 135 L.Ed.2d 36 (1996). After a plenary review of all remaining issues, we remanded this case to the court below for further review of several issues. 33 MJ 101 (1991). The court below again affirmed. 38 MJ 530 (1993).

After our second plenary review, we affirmed the decision of the court below, with one judge concurring separately and one judge concurring in part and dissenting in part. 44 MJ 106 (1996). Appellant then requested reconsideration, and this Court ordered further oral argument thereon.

We now grant appellant’s petition for reconsideration. After reconsideration, we adhere to our prior decision affirming the findings of guilty, but we reverse the decision of the court below as to sentence.

We conclude that trial defense counsel’s performance during the sentencing hearing was deficient and that there is a reasonable probability that there would have been a different result if all available mitigating evidence had been exploited by the defense. See Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984); see also United States v. Curtis, 44 MJ 106, 171-73 (1996) (Gierke, J., concurring in part and dissenting in part). Accordingly, we need not address the other issues raised in appellant’s petition for reconsideration.

For the reasons set out by Judge Crawford in this Court’s previous opinion, we adhere to that decision as to findings.

The decision of the United States Navy-Marine Corps Court of, Military Review is reversed as to sentence. The record of trial is returned to the Judge Advocate General of the Navy for remand to ,the United States Navy-Marine Corps Court of Criminal Appeals. That court may affirm a sentence of life imprisonment and accessory penalties, or order a rehearing on sentence.