United States v. Gardner

9 C.M.A. 48, 9 USCMA 48, 25 C.M.R. 310, 1958 CMA LEXIS 646, 1958 WL 3152

• Court: United States Court of Military Appeals
• Decided: March 21, 1958
• Docket: No. 10,135
• Status: Published

Opinions

Opinion of the Court

ROBERT E. Quinn, Chief Judge:

This appeal challenges the effectiveness of the accused’s representation by his appointed counsel.

The accused was brought to trial before a special court-martial on three specifications of larceny, in violation of Article 121, Uniform Code of Military Justice, 10 USC § 921 (Charge I), and one specification of failing to obey an order, in violation of Article 92, 10 USC § 892 (Charge II). He was represented by two officers who were appointed defense counsel and assistant defense counsel, respectively. They were not lawyers in the sense of Article 27 of the Uniform Code.

After arraignment, defense counsel entered a plea of guilty to each of the specifications of Charge I and a plea of not guilty to Charge II and its specification. As soon as he announced the pleas, he requested a “short recess.” The request was granted and the court recessed for five minutes. On reconvening, defense counsel asked to change the plea to accord with what “the accused desires.” The new plea changed the plea of guilty to specification 1, Charge I, to not guilty; in other respects it was the same as the original. The president of the court thereupon reiterated the pleas, and explained the effect of a plea of guilty to the accused. He also advised the accused that he was entitled to plead not guilty and have the Government prove his guilt. In response to questions put to him by the president, the accused indicated that he understood the meaning and effect of a plea of guilty and that he desired to adhere to his plea.

To prove the two offenses to which the accused pleaded not guilty, the prosecution called two witnesses. One testified in connection with Charge II; the other, Lieutenant T. G. Harty, testified to a pretrial statement made by the accused regarding the circumstances of specification 1, Charge I, which alleges that the accused stole an allotment check belonging to Lora Butt, the wife of a Navy Aviation Machinist.

In the statement to Lieutenant Harty, the accused said that Mrs. Butt roomed with his wife and himself. When she moved, she asked the accused to forward her mail to her new home. Several weeks later, the accused picked up her allotment check at the Foley (Alabama) Post Office. He signed and cashed the check. Some of the proceeds were used to pay his bills and the remainder was spent on what “was more or less a honey moon” for his wife. He maintained that he did not think that he would have “gone so far” in using the money “if it wasn’t that my wife had her heart set on a vacation and cried” when it appeared that they would not have enough money. “I want,” said the accused, “to pay back the money to Lora Butt and hope to make some kind of arrangement with her.”

When the prosecution rested, defense counsel made a brief statement in which he indicated that he intended to prove certain facts in regard to Charge II. He further indicated that “after consulting” Article 121 of the Uniform Code he was going to try “to answer the question” of whether the accused wanted to keep the money “in a permanent fashion.” He called the accused and his wife as witnesses. The accused testified initially only on Charge II, of which he was ultimately acquitted. Defense counsel then asked permission to “renew an examination” in regard to the larceny specification. By appropriate questions he had the accused review his acquaintanceship with Mrs. Butt, and led him through a restatement of the substance of his pretrial confession. The only material questions which bear upon the “permanency” of the accused’s taking, which counsel said he would try to answer, are as follows:

“Q. Upon taking this money to the bank, what was your purpose?

“A. Well, I have $500.00 up home in bonds and we owed a lot of bills and we were going home on leave to get the money, and I did not see anything wrong with taking the money to her.

“Q. Your intentions were to do so?

“A. Yes, sir.

“Q. You have sent $91.30 to Mrs. Butts.

“A. I have, sir.”

Most of Mrs. Gardner’s testimony is irrelevant to the issues. Asked whether she knew to what use the accused had put the proceeds of the check, she replied that she “only found out the other day,” and that it went “to pay gas bills and to. finance” a trip to Lansing, Michigan.

Unquestionably skilled counsel would not have allowed the accused and his wife to testify in regard to specification 1. The prosecution’s case consisted only of a pretrial statement by the accused. Without independent evidence that the offense charged had probably been committed, this showing did not establish a prima facie case of guilt. United States v Mims, 8 USCMA 316, 24 CMR 126. However, with the accused’s judicial admissions the evidence is clearly sufficient to support the findings of guilty. United States v Shell, 7 USCMA 646, 23 CMR 110; United States v Rushlow, 2 USCMA 641, 10 CMR 139. This raises the question whether defense counsel’s conduct in the case was “so tainted with negligence” (United States v Hunter, 2 USCMA 37, 41, 6 CMR 37), or demonstrates such “palpable inexperience” (United States v Dupree, 1 USCMA 665, 670, 5 CMR 93), as to amount to a denial of the effective assistance of counsel. The matter is not one which lends itself to an easy solution. Each case must be decided upon its own facts. United States v Allen, 8 USCMA 504, 25 CMR 8. Here, the facts divided the board of review below.

The Government describes the alleged inadequacies of defense counsel as “tactical indiscretions.” Among other things, it argues that the change in plea might have resulted simply from a “sudden change in tactics at the whim of the accused.” It is distinctly possible that the change in plea resulted from the sudden disposition of the accused, but even if we attribute the change to him we must still consider counsel’s actions in the later stages of the trial. What makes the problem particularly difficult is that we are dealing with both sophisticated aspects of the law and persons who are untrained in the law. Considerable training and experience in the conduct of a trial is necessary to learn that a confession is not ordinarily admissible until independent evidence of the probable commission of the offense has been introduced, Manual for Courts-Martial, United States, 1951, paragraph 140a; United States v April, 7 USCMA 594, 23 CMR 58; that a motion for a finding of not guilty is appropriate when the prosecution has failed to make out a prima facie case; and that evidence presented by the defense can be used to fill in gaps in the prosecution’s case. United States v Shell, supra. In reading this record of trial, we are convinced that the appointed defense counsel did as well as they could, but their knowledge of the law relating to the case on trial was so deficient as to result in inadequate representation of the accused on specification 1.

In United States v Best, 6 USCMA 39, 19 CMR 165, we pointed out that under ordinary conditions a denial of the effective assistance of counsel affects the entire proceedings. However, we also noted that “different factual settings . . . may have different effects.” Ibid, page 45. The accused pleaded guilty to two specifications alleging thefts which were entirely unrelated to the contested issues. He does not contend that he entered the plea of guilty upon the mistaken advice of counsel; nor does he say that he has any valid defense to those charges. The record of trial shows that he had explained to him the meaning and effect of the plea by the president of the court, and he persisted in it. And he was sufficiently well-defended on Charge II to obtain an acquittal. These circumstances, coupled with the nature of counsel’s deficiency, demonstrate that counsel’s lack of assistance was confined to his representation of the accused on specification 1. Consequently, the interests of justice do not require that we set aside the findings of guilty as to which the accused entered a plea of guilty.

The findings of guilty of specification 1 of Charge I and the sentence are set aside. The record of trial is returned to The Judge Advocate General of the Navy for resubmission to the board of review. In its discretion, the board of review may dismiss specification 1 and reassess the sentence upon the basis of the remaining findings of guilty, or order a rehearing on the specification and the sentence.

Judge Ferguson concurs.