United States v. Dunavent

11 M.J. 69, 1981 CMA LEXIS 15146

• Court: United States Court of Military Appeals
• Decided: May 4, 1981
• Docket: No. 38608/AF; ACM 22537
• Status: Published

Opinion

Opinion of the Court

PER CURIAM:

In this case we granted review (9 M.J. 59) of the following issues:

I

WHETHER THE MILITARY JUDGE ERRED BY FAILING TO ADVISE THE APPELLANT, ONE OF TWO CO-ACCUSEDS REPRESENTED BY THE SAME COUNSEL, OF HIS RIGHT TO CONFLICT-FREE COUNSEL.

II

WHETHER THE MILITARY JUDGE ERRED BY ALLOWING TRIAL COUNSEL TO ARGUE, OVER DEFENSE OBJECTION, THAT THE COURT-MARTIAL SHOULD DRAW ADVERSE INFERENCES FROM THE APPELLANT’S EXERCISE OF HIS RIGHT TO MAKE AN UNSWORN STATEMENT.

However, these issues have now been disposed of by our holdings in the companion case of United States v. Breese, 11 M.J. 17 (C.M.A.1981). There, we held that no actual or even apparent conflict of interest existed when the same defense attorneys represented both Dunavent and Breese, and that, under the circumstances, the military judge was not required to ascertain on the record the propriety of their joint representation. We also held that trial counsel’s challenged comments were proper and, in any event, nonprejudicial in light of the military judge’s instructions. Accordingly, we affirm the decision of the United States Air Force Court of Military Review.