United States v. Harris

34 M.J. 297, 1992 CMA LEXIS 137, 1992 WL 137389
CourtUnited States Court of Military Appeals
DecidedJune 22, 1992
DocketNo. 66,565; CM 8801579
StatusPublished
Cited by6 cases

This text of 34 M.J. 297 (United States v. Harris) is published on Counsel Stack Legal Research, covering United States Court of Military Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Harris, 34 M.J. 297, 1992 CMA LEXIS 137, 1992 WL 137389 (cma 1992).

Opinion

Opinion of the Court

WISS, Judge:

A general court-martial of officer and enlisted members tried appellant on two specifications that alleged distribution of cocaine on December 21,1987, and January 8, 1988. In a contested trial, the court acquitted him of the first offense but convicted him of the second; and the court sentenced him to a dishonorable discharge, confinement for 8 years, total forfeitures, and reduction to the lowest enlisted grade. After the convening authority had approved these results, the Court of Military Review ordered a new convening authority’s action. 30 M.J. 580 (1990). A different convening authority approved the sentence adjudged, and the Court of Military Review affirmed without opinion.

This Court granted review to consider appellant’s claim that, in several different respects at trial, he was denied effective assistance of counsel by his civilian counsel. As to one aspect, we agree, so further review is necessary.

I

On the evening of December 21, 1987, PFC Curcio—“a registered source on a drug-suppression team ... at Fort Ben[298]*298ning”—went to the barracks room of Sergeant Johnson. Curcio had targeted Johnson as a possible cocaine distributor. He had approached Johnson about purchasing some cocaine, and Johnson had told him to come to his barracks room later that evening. Curcio did so; and, once there, a man whom Johnson referred to as “Coop” joined them. Curcio purchased from Johnson and Coop a plastic bag of cocaine. Subsequently, Curcio turned the drugs over to his coordinator, Military Police Investigator Watson.

A second buy was set up for January 8, 1988. This time, Curcio and Watson both went to Johnson’s barracks room, and Coop joined them. Curcio testified that the person whom he came to know as “Coop” on December 21 was “the same person” called “Coop” who was a part of the January 8 transaction. Once Coop joined the group in Johnson’s room, he and Watson negotiated a price of $500.00 for the 12 packets of cocaine that Coop had brought with him; the exchange of- drugs and money occurred; and Curcio and Watson left. Apparently, each transaction took from 10 to 15 minutes.

Coop’s true identity was not known to either Curcio or Watson. After the December 21 purchase, Curcio described “Coop” to Watson simply as a black male, without any estimation of height or weight or any identification of any specific physical characteristics like facial hair or haircut style. At the Article 321 hearing, he described “Coop” as “a tall, slender black male.” Prior to trial, Watson had described “Coop” as not having a flattop haircut.2 Although Watson “asked around” in an effort to identify “Coop,” he was “never able to put a formal name on Coop.”

For some reason—and the record of trial is silent as to why—appellant was apprehended on February 1, 1988, and was tried on the theory that he was “Coop.” Both Curcio and Watson identified appellant at trial as the man they had met as “Coop” on January 8, and Curcio testified that appellant also was the man called “Coop” from whom he had purchased cocaine on December 21. None of the $500.00 in marked money used in the January 8 transaction, however, ever was recovered, and no cocaine ever was found in appellant’s possession.

Appellant’s defense was straightforward: They’ve got the wrong man. Appellant’s team of defense attorneys—led by a civilian lawyer—hammered at what appeared to be the weaknesses of the prosecution’s case and, as well, presented alibi evidence that appellant was in Atlanta, over 100 miles away from Fort Benning, at the time of the December 21 transaction. Other than appellant’s denial, however, the defense offered virtually no constructive defense to the January charge. Instead, the defense as to that charge rested mainly on attacking the Government’s case and on turning the Government’s sword on itself: If the same man was “Coop” on both occasions and if appellant was in Atlanta on the first, he was not “Coop” on the second, either.

Ultimately, as noted earlier, the members acquitted appellant of the December 21 specification but convicted him of the distribution on January 8, even though the prosecution’s theory throughout trial was that the same man had distributed cocaine on both occasions.

II

To carry his burden of demonstrating that his trial defense counsel failed to provide him with effective representation, appellant “must establish both incompetence and prejudice.” United States v. Scott, 24 MJ 186, 188 (CMA 1987). In Strickland v. Washington, 466 U.S. 668, [299]*299687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), the Supreme Court specifically described this burden as follows:

First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

As to the deficient-performance prong, it must be remembered that

competence of counsel is presumed. To make out a claim of ineffective assistance of counsel, the accused must rebut this presumption by pointing out specific errors made by his defense counsel which were unreasonable under prevailing. professional norms. United States v. Cronic, 466 U.S. 648 [104 S.Ct. 2039, 80 L.Ed.2d 657] (1984). 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. “In making [the competence] determination, the court should keep in mind that counsel’s function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case.” [Strickland v. Washington,] 466 U.S. at 690, 104 S.Ct. at 2066.

United States v. Scott, supra at 188. As to the prejudice prong,

[t]he test ... “is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Strickland v. Washington, supra [466 U.S.] at 695 [104 S.Ct. at 2068].

24 MJ at 189.

With this refresher as to the applicable legal principles in mind, we turn now to appellant’s claim of inadequate performance by his trial attorneys. In light of our conclusion as to part of the first of the four legs of his claim, however, we need not now consider the remaining three. That first contention is that his trial defense counsel “fail[ed] to present relevant and material evidence of appellant’s innocence.” Final Brief at 6. In this regard, he points to two omissions.

Medical Records

The first claimed delict is summarized by the following passage from appellant’s brief in this Court:

The two government witnesses, Curcio and Watson, described two drug transactions which occurred in Room 219 of Barracks # 2837 by a man known only as “Coop” who walked into the room after them and who departed before they did.

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Bluebook (online)
34 M.J. 297, 1992 CMA LEXIS 137, 1992 WL 137389, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-harris-cma-1992.