United States v. Huxhold

20 M.J. 990, 1985 CMR LEXIS 3288
CourtU.S. Navy-Marine Corps Court of Military Review
DecidedAugust 30, 1985
DocketNMCM 84 1614
StatusPublished
Cited by4 cases

This text of 20 M.J. 990 (United States v. Huxhold) is published on Counsel Stack Legal Research, covering U.S. Navy-Marine Corps 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. Huxhold, 20 M.J. 990, 1985 CMR LEXIS 3288 (usnmcmilrev 1985).

Opinion

GORMLEY, Chief Judge:

At a general court-martial consisting of military judge alone, appellant was found guilty, contrary to his pleas, of arson of a C-118 aircraft at Naval Station, Keflavik, Iceland, a violation of Article 126, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 926. He was sentenced to a dishonorable discharge, confinement at hard labor for seven years, forfeiture of $450.00 per month for the period of confinement, and reduction to pay grade E-l. The convening authority approved the sentence as adjudged.

Before this Court, appellant assigns the following errors:

I
APPELLANT’S GUILT WAS NOT ESTABLISHED BEYOND A REASONABLE DOUBT.
II
THE MILITARY JUDGE ERRED
WHEN HE OVERRULED A DEFENSE
OBJECTION TO TRIAL COUNSEL’S ATTEMPT TO IMPEACH PETTY OFFICER D WITH A PRIOR INCONSISTENT STATEMENT.
Ill
APPELLANT’S SENTENCE TO 7 YEARS CONFINEMENT IS INAPPROPRIATELY SEVERE.
IV
APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.
V
THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL PREJUDICE OF THE APPELLANT, IN DENYING THE DEFENSE MOTION TO SUPPRESS THE STATEMENTS MADE BY THE APPELLANT.

At approximately 0531 on 1 October 1983, from his security post in Hangar 885, Naval Station, Keflavik, Iceland, Airman First Class (A1C) W, United States Air Force (USAF), observed an individual who was “relatively short, about 5'2" or so, maybe about 130, 145 pounds, around there, slim build, blond hair, wearing what appeared to be a black leather jacket, blue jeans and tennis shoes” running at a hurried pace from behind Tower 2 to a south exit at the rear of the hangar. Seconds after this unidentified individual exited, A1C W received a radio call from another security policeman that he saw what he believed to be flames in between Towers 2 and 3. A1C W immediately went around Tower 2 to investigate and observed that the C-118 aircraft housed in that area was on fire. A1C W then provided a description of the individual seen running from the area to his flight chief who relayed the information to other security policemen.

Staff Sergeant (SSGT) S, USAF, was on duty in a mobile unit that morning and responded to a radio report that there was smoke emanating from Hangar 885. Upon arriving at the scene he was given the [992]*992description of the individual who had been seen running from the hangar moments before the fire was initially reported. SSGT S immediately commenced a search of the area outside the rear of the hangar where the individual had exited. Driving along the road by the hangar in the darkness of the early morning, SSGT S “noticed an odd shape in the terrain features.” Stopping the vehicle, he recognized the odd shape as being an individual laying in a narrow ditch. From this position in the ditch, the person was peering out at the hangar which was about 75 yards away. SSGT S left his vehicle and asked the individual to come towards him. The individual fled. SSGT S hollered to him to halt but the individual continued to run away. SSGT S pursued and apprehended him, frisked him, and read him his rights. The individual spoke incoherently in what sounded to SSGT S to be an Icelandic speech pattern. When SSGT S radioed for Icelandic police assistance, however, the individual clearly stated he was an American. He was turned over to Naval Station Security and was identified as the appellant in the instant case.

EFFECTIVE ASSISTANCE OF COUNSEL

Appellant now claims that the findings and sentence should be set aside on the grounds that he was denied his 6th Amendment right to the assistance of counsel. Although appellant was represented by two qualified military attorneys at trial, he alleges that their representation did not amount to the requisite “reasonably effective assistance.” Strickland v. Washington, — U.S.-, 104 S.Ct. 2052, 2054, 80 L.Ed.2d 674 (1984). Appellant asserts that his trial defense counsels’ representation was deficient in the following respects:

(1) they made no motion for a change of venue as requested by the appellant;
(2) they made no objection to the introduction of glass particles obtained as the result of the government’s allegedly illegal search and seizure of appellant’s clothes;
(3) they made an untimely suppression
motion on an allegedly illegally obtained admission of the accused; ¶
(4) they failed to object to the continuous leading questions of trial counsel;
(5) they failed to object to the government witness’s allegedly improper statement during the government’s case in aggravation.

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court addressed the issue of ineffective assistance of counsel. The Court stated that the “benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Id. at 2064. Whether or not counsel’s assistance was so defective as to require reversal of a conviction was determined to be dependent upon two components:

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.

Strickland, at 2064. Appellant asserts that the alleged errors committed by his defense counsel, delineated above, rendered “his defense not only ineffective, but virtually nonexistent.” After examining the record of trial and carefully considering these alleged errors, we disagree. The purported instances of ineffectiveness are discussed seriatim.

A. Trial Defense Counsel’s Failure To Move For A Change Of Venue

Appellant states that his civilian defense counsel requested his military counsel to request a change of venue for two purposes: (1) to ensure impartial members [993]*993who were not familiar with the case; and (2) to permit civilian counsel to be present for trial in order to represent appellant. Paragraph 69e, Manual for Courts-Martial 1969 (Rev.) (MCM), states the standard for a change of venue:

If the accused demonstrates that there exists at the place of trial where the prosecution is pending so great a general atmosphere of prejudice against him that he cannot obtain a fair and impartial trial in that place, he is entitled, upon a motion for a change of venue, to be tried at some other place.

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Related

United States v. Ingham
42 M.J. 218 (Court of Appeals for the Armed Forces, 1995)
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25 M.J. 653 (U S Air Force Court of Military Review, 1987)
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24 M.J. 186 (United States Court of Military Appeals, 1987)
United States v. Stinde
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Cite This Page — Counsel Stack

Bluebook (online)
20 M.J. 990, 1985 CMR LEXIS 3288, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-huxhold-usnmcmilrev-1985.