United States v. McCarty

25 M.J. 667, 1987 WL 21255
CourtU S Air Force Court of Military Review
DecidedNovember 20, 1987
DocketACM 26048
StatusPublished
Cited by3 cases

This text of 25 M.J. 667 (United States v. McCarty) is published on Counsel Stack Legal Research, covering U S Air Force 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. McCarty, 25 M.J. 667, 1987 WL 21255 (usafctmilrev 1987).

Opinion

DECISION

HODGSON, Chief Judge:

The appellant was convicted of using and distributing marijuana. The government’s case rests on the testimony of Sergeant Alan Hrabe and his wife, Kathy. Sergeant Hrabe admitted to using marijuana “possibly a thousand times,” and Kathy acknowledged substantial use of marijuana, lysergic acid diethyamide (LSD), cocaine, and amphetamines. In late April 1986, Kathy Hrabe became an Office of Special Investigations (OSI) informant in return for protection from local drug dealers to whom she owed money. Mrs. Hrabe testified that she first met the appellant at the base gas station on 28 May, when she and a friend, Bridget Dorsch, stopped to put air in the tires. The appellant was driving a 1968 Mustang which he indicated was for sale. During the course of the conversation about the car, the appellant stated he used marijuana as well as cocaine, LSD and amphetamines.1 While at the gas station, Mrs. Hrabe saw a bag of marijuana and a smoking device in the center console of the appellant’s car.

Mrs. Hrabe displayed an interest in buying the appellant’s car for the asking price of $3,000.00 and offered to lend him an additional $1,500.00 so he could buy a 1980 Chevelle for $4,500.00. Apparently, she thought she would be given a substantial reward, i.e., approximately $200,000.00 from civilian police authorities for information regarding the Green River killer — a serial murderer whose victims are generally found buried in the vicinity of the Green River which is near Tacoma, Washington. She also indicated if the reward money was not immediately available, the $1,500.00 could be borrowed from her grandmother. The next day, Mrs. Hrabe told the OSI of her conversation with the appellant.

That same day, 29 May, the appellant drove his car to the Hrabe residence where he met Sergeant Hrabe for the first time. Sergeant Hrabe looked at the car, drove it and the appellant left with his car.

Two days later Sergeant Hrabe drove to the appellant’s house to get his wife. While he was there, the appellant took some marijuana from a tupperware dish, and, using a waterpipe he borrowed from a neighbor, used the substance. In addition to the incident just described, Mrs. Hrabe testified she saw the appellant use marijuana at a parly at his house on 31 May. On 2 June, Mrs. Hrabe gave the OSI a quantity of marijuana she stated she had received from the appellant. Subsequently, on 9 June, Mrs. Hrabe made a “controlled buy”2 of a small amount of marijuana from the appellant which she gave to the OSI.

[669]*669The appellant has assigned eight errors ranging from ineffective assistance of counsel to the insufficiency of the evidence to support the conviction. While none of those claimed errors justifies overturning his conviction, a discussion of some is warranted.

I

Appellate defense counsel contend that the trial defense counsel did not provide “effective assistance” to the appellant at trial. The basis for this assertion is, in their view, the failure of counsel at trial to call the appellant as a witness to testify as to entrapment which appellate counsel suggest was the only viable defense. They buttress this argument by claiming that it is virtually impossible to successfully use an entrapment defense without putting the defendant on the stand.” Without assessing how successful any entrapment defense may be viewed by members, the issue of entrapment may be raised by the accused either through his own evidence or through cross-examination of government witnesses. United States v. VanZandt, 14 M.J. 332 (C.M.A.1982). Here the trial judge found that the defense of entrapment had been fairly raised and he fully and correctly instructed the members on this issue.

In United States v. Mansfield, 24 M.J. 611 (A.F.C.M.R.1987), we discussed at length the standard to be applied to claims of ineffective representation by counsel. We said that “Disagreements as to the strategic or tactical decisions made at the trial level by defense counsel will not support a claim of ineffective assistance of counsel so long as the challenged conduct has some reasoned basis.” (Emphasis in original.) Mansfield at 617.

In responding to this claim of ineffective assistance of counsel, the trial defense counsel stated that the appellant was fully aware of his right to testify on the merits. The option of his testifying was discussed throughout the trial. Defense counsel indicated he considered the reasonable doubt defense to be the better choice in light of Kathy Hrabe’s prior drug usage and reputation. He told the appellant that if he did testify he would have to admit to drug involvement prior to the time he met Mrs. Hrabe. This, in counsel’s opinion, would corroborate substantial portions of her testimony and seriously lessen the effectiveness of an attack on her credibility. Finally, the appellant, when testifying during a pretrial motion, displayed a flippant and disrespectful attitude. All of these factors convinced his attorney that having the appellant take the stand was not an acceptable risk.

Appellate defense counsel also argue that the appellant’s trial defense counsel failed to call other witnesses who would have supported his version of the facts. One of these witnesses was the appellant’s sister who knew the appellant was a marijuana user and who herself had used amphetamines with Mrs. Hrabe during a visit with the appellant. Trial defense counsel concluded that her association with the drug culture would adversely affect the court’s perception of her brother. The appellant’s neighbor could have also been called as a witness, but he would have had to admit that he provided the marijuana the appellant gave Mrs. Hrabe and would have corroborated her testimony. All in all, the testimony of the appellant’s sister and next door neighbor created a high level of risk with little corresponding gain.

As we stated in Mansfield, supra, appellate courts will not review the wisdom of a defense tactic if it has a plausible basis which in turn rests on the facts and circumstances before the defense counsel. On the facts before us we find that the appellant’s trial defense counsel displayed the competence and skill one expects of a trial advocate. His defense of the appellant reflects a reasoned basis for his decisions and shows a carefully weighed assessment of the strengths and weaknesses of his evidence as well as the government’s. The claim of ineffective assistance of counsel is totally lacking in merit.

II

The pretrial investigating officer took Kathy Hrabe’s testimony for approximate[670]*670ly three hours before she left the hearing stating she had to go to work. She never returned although the investigating officer delayed the proceeding twice in an attempt to secure her presence.

The appellant now argues he was denied his right to a “thorough and impartial [pretrial] investigation” because Mrs. Hrabe was never available for cross-examination.

Article 32b of the Uniform Code of Military Justice states that a pretrial investigation shall afford an accused a full opportunity to cross-examine the witnesses against him if they are available. We will assume, arguendo, that Mrs. Hrabe’s initial appearance at the pretrial investigation made her available as a witness and thus subject to cross-examination. We will also assume that her subsequent refusal to return to the hearing extinguished that right. We find authority for this conclusion in

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Bluebook (online)
25 M.J. 667, 1987 WL 21255, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-mccarty-usafctmilrev-1987.