United States v. Moore

9 C.M.A. 284, 9 USCMA 284, 26 C.M.R. 64, 1958 CMA LEXIS 566, 1958 WL 3297

• Court: United States Court of Military Appeals
• Decided: May 29, 1958
• Docket: No. 10,604
• Status: Published

Opinions

Opinion of the Court

ROBERT E. Quinn, Chief Judge:

The accused contends that he was denied the effective assistance of counsel because his lawyer previously represented the two principal witnesses for the prosecution. Among other things he alleges that one of the Government witnesses who was a junior drill instructor in his platoon unqualifiedly testified in his own earlier trial that he had never received any money or contribution from the recruits in the platoon. However, at the accused’s trial he testified that with the knowledge of the accused, who was the senior drill instructor, he had received “approximately $250.00” as a “gift” from the recruits. He was not confronted with his previous inconsistent testimony during the cross-examination by the accused’s counsel.

The Government does not specifically deny the duality of counsel’s representation but it argues that this Court cannot take notice of the fact because the records' in the other cases are not part of the record here. Each witness brought his case to this Court and, consequently, we can consider those records of trial in connection with the issues in this case. United States v Lovett, 7 USCMA 704, 23 CMR 168. When so considered there is no question but that the accused was prejudiced by his counsel’s representation of conflicting interests. United States v Eskridge, 8 USCMA 261, 24 CMR 71; United States v Thornton, 8 USCMA 57, 23 CMR 281.

The decision of the board of review is reversed and the findings of guilty and sentence are set aside. A rehearing may be ordered.

Judge Ferguson concurs.