United States v. Dorsey

30 M.J. 1156, 1990 CMR LEXIS 632, 1990 WL 91353
CourtU.S. Army Court of Military Review
DecidedJune 29, 1990
DocketACMR 8802148
StatusPublished
Cited by13 cases

This text of 30 M.J. 1156 (United States v. Dorsey) 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. Dorsey, 30 M.J. 1156, 1990 CMR LEXIS 632, 1990 WL 91353 (usarmymilrev 1990).

Opinion

OPINION OF THE COURT

MYERS, Senior Judge:

Tried by general court-martial composed of members, appellant was convicted of one specification of rape and one specification of kidnapping in violation of Articles 120 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 920 and 934 (1982) [hereinafter UCMJ].1 His sentence, approved by the convening authority, included a dismissal, confinement for twenty-five years, and forfeiture of $1,500.00 pay per month for 300 months. Appellant contends on appeal that the evidence was insufficient to convict him of kidnapping and that his trial defense counsel, Mr. B, a civilian attorney, was ineffective in the presentencing and post-trial phases of the proceedings.

I. SUFFICIENCY OF THE EVIDENCE

The standard for reviewing the sufficiency of the evidence has been clearly set forth by the Court of Military Appeals:

The test for [legal sufficiency] is whether, considering the evidence in the light most favorable to the prosecution, a reasonable factfinder could have found all the essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). For factual sufficiency, the test is whether, after weighing the evidence in the record of trial and making allowances for not having personally observed the witnesses, the members of the Court of Military Review are themselves convinced of the accused’s guilt beyond a reasonable doubt.

United States v. Turner, 25 M.J. 324, 325 (C.M.A.1987); United States v. Rivera-Cintron, 29 M.J. 757, 760 (A.C.M.R.1989). Utilizing this standard, we find the evidence of record to be both legally and factually sufficient to sustain the findings of guilty of kidnapping.

II. INEFFECTIVE ASSISTANCE OF COUNSEL

Following findings, the prosecution presented testimony that appellant was a poor officer whose duty performance was below average, who was deficient in leader[1158]*1158ship ability, who was moved from company to company and who “basically had a very tough time holding a job, and doing anything other than just [sic] present for duty.” Appellant was further described as the worst lieutenant in the battalion. For the defense, the only evidence presented was the testimony of Mrs. Dorsey, who testified that she and the appellant had been married for three years, that they had a nineteen-month-old daughter, that appellant was a great husband and father, that appellant did not kidnap or rape the victim, and that their daughter needs a father growing up. Mr. B’s argument on sentencing extended to twenty-two lines in the record.2 The record of trial was duly served on Mr. B who waived submission of post-trial matters.

In an affidavit admitted as Defense Appellate Exhibit A, appellant alleges that:

a. Individual defense counsel, Mr. B, never discussed sentencing with him and that if he had, appellant could have given him the names of eight individuals as favorable character witnesses;

b. That Mr. B offered no documents on appellant’s behalf in extenuation and mitigation, and for that purpose appellant could have provided two letters of appreciation, certificates of appreciation from German authorities for excellence in a shooting competition and for leading his platoon on a twenty-five mile road march, and a German ARTEP3 certificate.

c. Mr. B. neither prepared a post-trial clemency submission nor assisted appellant in preparing one. Although appellant requested Mr. B’s assistance, Mr. B told appellant that the convening authority would merely “rubber stamp” the court-martial results and therefore Mr. B did not intend to submit anything. Appellant called Mr. B in Germany from Fort Leavenworth to inquire into the status of the post-trial submissions and when Mr. B advised that he did not intend to submit any, appellant prepared a brief letter of his own to the convening authority requesting clemency.

Mr. B submitted a lengthy rebuttal affidavit, admitted as Government Appellate Exhibit 1, wherein he asserted, inter alia:

a. After receiving a copy of appellant’s affidavit, Mr. B attempted to locate the eight individuals named by appellant. Five had departed the command, one was unknown in the command, and two stated that they would not give favorable testimony for appellant.

b. Mr. B and appellant agreed before trial that appellant’s military records would “adequately cover [appellant’s] military career,” and that appellant’s letters and German certificates “were so incidental that they would not impress the jury” and would, in fact, make them “look ridiculous putting in such minor matters.”

c. Immediately after trial appellant asked Mr. B whether it would do any good to present matters to the convening authority. Mr. B “opined in the negative, ... bas[ing] his opinion upon twenty-five years of specializing and teaching military jus[1159]*1159tice.” Mr. B told appellant that he would do so if appellant wanted him to, but the latter declined. Mr. B subsequently visited appellant in the Mannheim stockade but appellant did not request any post-trial submissions.

d. Mr. B denied telling appellant in the telephone call from Fort Leavenworth that he refused to submit anything.

It is by now axiomatic that where an accused is entitled to the assistance of counsel, that means the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); United States v. Scott, 24 M.J. 186 (C.M.A.1987) (Strickland standards applicable to trials by courts-martial). Such effective assistance extends not only to the trial on the merits, but to the sentencing, post-trial and appellate phases as well. Strickland v. Washington, 466 U.S. at 668, 104 S.Ct. at 2052; United States v. Jefferson, 13 M.J. 1 (C.M.A.1982) (accused is entitled to competent assistance of counsel throughout the trial); United States v. Rivas, 3 M.J. 282 (C.M.A.1977) (defense counsel must act as diligent and conscientious advocate throughout the trial); United States v. Palenius, 2 M.J. 86 (C.M.A.1977) (trial defense counsel should act on accused’s behalf during post-trial proceedings until appellate counsel commence representation).

The Court in Strickland established a two-part standard for determining counsel effectiveness:

a. Defendant must show that counsel’s performance was deficient, that is, that “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed ... by the Sixth Amendment.
b. Defendant must show that such errors prejudiced the defense to the extent that they deprived the defendant of a fair trial.

Id., 466 U.S. at 687, 104 S.Ct. at 2064. The standard for evaluating counsel performance is that of reasonably effective assistance, an objective standard to be measured “under prevailing professional norms.” Id.

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Cite This Page — Counsel Stack

Bluebook (online)
30 M.J. 1156, 1990 CMR LEXIS 632, 1990 WL 91353, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-dorsey-usarmymilrev-1990.