United States v. Evans

31 M.J. 927, 1990 CMR LEXIS 1434, 1990 WL 193967
CourtU.S. Army Court of Military Review
DecidedNovember 30, 1990
DocketACMR 8901538
StatusPublished
Cited by5 cases

This text of 31 M.J. 927 (United States v. Evans) 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. Evans, 31 M.J. 927, 1990 CMR LEXIS 1434, 1990 WL 193967 (usarmymilrev 1990).

Opinion

OPINION OF THE COURT

GRAVELLE, Judge:

Contrary to his pleas, the appellant was convicted by a general court-martial composed of members of two specifications of conspiracy to commit larceny and five specifications of larceny, in violation of Articles 81 and 121, Uniform Code of Military Justice, 10 U.S.C. §§ 881 and 921 (1982) [hereinafter UCMJ], The convening authority approved the adjudged sentence of a bad-conduct discharge, confinement for three years and total forfeitures.

We are asked to decide, among other issues, whether the appellant was denied effective assistance of counsel and whether it was error to admit into evidence three pretrial statements of an unavailable wit[929]*929ness. We find that the appellant was not denied his right to effective assistance of counsel and that it was not error to admit the statements.

I. Facts

The charges arose from the appellant’s off-duty employment as a dice table “stick man” for a local contractor who organized and conducted Monte Carlo Nights for the military club system in Germany. As “stick man,” the appellant operated the dice table, controlling all bets on the table to include paying out house losses and taking in house winnings in the form of chips. These chips were exchanged for dollars by a cashier located elsewhere at the Monte Carlo Night location. During the course of dice games held on several nights at different locations in Germany, the appellant clandestinely passed extra chips to three fellow soldiers who cashed them and gave the proceeds to the appellant. The scheme came to light when the wife of one of the recipients noticed that her husband, SGT Moore, was receiving more chips than he had won. She noticed this because he had asked her to cash the extra chips on several occasions during the evening. When she asked her husband about it later, SGT Moore revealed the details of the scheme to her. A day later SGT Moore, in the presence of his wife, also made a self-incriminating statement to SSG Parks, a neighbor, in an effort to recruit SSG Parks into the scheme. SGT Moore was about to complete his Army enlistment and would soon be returning to the United States for discharge. Consequently, a new participant in the scheme was needed. SGT Moore generally described the workings of the scheme to SSG Parks.

After two weeks of soul-searching and unbeknownst to her husband, SGT Moore’s wife reported the activity to her supervisor and to the Criminal Investigation Command (CID). When confronted by a CID investigator, SGT Moore initially denied being involved in the scheme, but subsequently gave a written statement describing the criminal enterprise. The CID investigation uncovered one other noncommissioned officer who had also received extra chips from the appellant and who later paid the appellant the proceeds of his “extra chip” windfall. SGT Moore’s wife, SSG Parks and the other noncommissioned officer testified at the appellant’s court-martial. At trial, the appellant denied any wrongdoing, but admitted he paid out more chips than these players had won as part of his technique of increasing business. He asserted — and still asserts — that he enhanced certain players’ winnings to create excitement at the table and thus attract more players to increase the size and probability of house winnings. The appellant’s employer testified that he did not and would not ever give permission to give away extra chips, and also testified that it was impossible, given the nature of the business, to determine the extent to which money had been siphoned off.

II. Ineffective Assistance of Counsel

The appellant, by affidavit, appellate pleadings and oral argument, asserts that he was denied the effective assistance of counsel because of serious errors and omissions by his civilian defense counsel throughout the criminal proceedings. We disagree.

The appellant asserts the following specific errors: (1) failing to elicit appellant’s version of the facts at the first interview with appellant; (2) failing to keep appointments with appellant; (3) making two requests for delay in the Article 32, UCMJ, proceedings and then recommending waiver of that pretrial investigation; (4) usurping the appellant’s right to select a court composed of officer and enlisted members; (5) failing to interview all available witnesses and interviewing of one key government witness only on the day preceding trial; (6) excusing the detailed defense counsel against the appellant’s wishes; (7) erroneously relying on the expected suppression of SGT Moore’s statement; (8) poorly defending the appellant after SGT Moore’s statement was admitted into evidence; (9) failing to adequately prepare the appellant to testify on the merits; (10) employing an unsworn statement made through counsel during the sentencing phase of trial; (11) making a cursory presentencing argument; [930]*930(12) failing to coordinate clemency submissions after trial; and, (13) submitting a cursory clemency statement after trial.

Effectiveness of counsel is measured by a two-part standard:

a. Defendant must show that counsel’s performance was deficient; that is, “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.

United States v. Scott, 24 M.J. 186, 188 (C.M.A.1987), citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 reh’g denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984). See also United States v. Griffith, 27 M.J. 42 (C.M.A.1988); United States v. Brothers, 30 M.J. 289 (C.M.A.1990). The standard for evaluation of counsel’s performance is that of reasonably effective assistance, an objective standard to be measured “under prevailing professional norms.” Strickland, 466 U.S. at 687-88, 104 S.Ct. at 2064. “The reasonableness of counsel’s performance is to be evaluated from counsel’s perspective at the time of the alleged error and in light of all the circumstances.” United States v. Scott, at 188; United States v. Brothers, at 291. Counsel is presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. To make out a case of ineffectiveness of counsel, the appellant must rebut this presumption by pointing out specific errors made by his defense counsel which were unreasonable under prevailing professional norms. Id. 466 U.S. at 690, 104 S.Ct. at 2065; United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984); United States v. Scott, at 188.

A. Counsel’s Actions Prior to Findings

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Cite This Page — Counsel Stack

Bluebook (online)
31 M.J. 927, 1990 CMR LEXIS 1434, 1990 WL 193967, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-evans-usarmymilrev-1990.