United States v. King

28 M.J. 855, 1989 CMR LEXIS 417, 1989 WL 56292

• Court: U.S. Army Court of Military Review
• Decided: April 28, 1989
• Docket: ACMR 8701093
• Status: Published

Opinions

MEMORANDUM OPINION ON FURTHER REVIEW

WERNER, Judge:

The appellant was convicted of forcible sodomy of another soldier, aggravated assault with a dangerous weapon and violation of a lawful general regulation by possessing a switchblade knife in violation of Articles 92, 125, and 128 of the Uniform Code of Military Justice, 10 U.S.C. §§ 892, 925 and 928 (1982). His approved sentence included a dishonorable discharge, confinement for ten years, and forfeiture of all pay and allowances. This court affirmed the findings and sentence and denied appellant’s petition for a new trial. United States v. King, 27 M.J. 545 (A.C.M.R.1988). The appellant subsequently filed an affidavit with this court alleging ineffective representation by one of his two defense counsel and petitioned for reconsideration of our decision. We treated appellant’s petition as a request for leave to file a supplemental assignment of error and, in the interests of judicial economy, granted it. We have considered the matters raised by appellant and conclude that there is no merit to his allegations of inadequate representation.

Appellant has failed to demonstrate that his attorneys did not perform their duties with the requisite degree of skill and competence normally expected of a competent attorney under similar circumstances. Moreover, even assuming his counsel’s efforts were ineffective, appellant has not shown how those inadequacies prejudiced the defense of his case. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); United States v. Scott, 24 M.J. 186 (C.M.A.1987); United States v. Wheeler, 18 M.J. 823 (A.C. M.R.1984), affirmed 22 M.J. 76 (C.M.A. 1986). Professional decisions by counsel which are tactically sound do not amount to ineffectiveness merely because they fail to achieve their intended aim. United States v. Rivas, 3 M.J. 282 (C.M.A.1977); United States v. Koonce, 16 M.J. 660 (A.C.M.R.) petition denied, 17 M.J. 277 (C.M.A.1983). We will not second-guess a trial attorney merely because his decisions in the course of representing an accused were abortive. Neither precedent, nor Code of Professional Responsibility, nor sound policy considerations warrant such action. See United States v. Hancock, 49 C.M.R. 830 (A.C.M.R.1975); United States v. Zuis, 49 C.M.R. 150 (A.C.M.R.1974).

The evidence of record and the post-trial affidavits clearly support the conclusion that appellant was not ineffectively represented by his trial defense counsel. To the contrary, it is apparent that the decisions of which appellant complains were well-considered, carefully weighed, and finalized after consultation with the appellant. In several instances, the appellant rejected counsel’s advice and they were constrained to comply with his wishes. Under the circumstances, we are unable to agree with his attack on their competence.

The decision of this Court in this case, dated 13 October 1988, is reaffirmed and remains in effect.

Judge KENNETT concurs.