United States v. Puckett

32 M.J. 783, 1991 CMR LEXIS 550, 1991 WL 63635
CourtU S Coast Guard Court of Military Review
DecidedApril 23, 1991
DocketCGCM 0030; Docket No. 943
StatusPublished
Cited by5 cases

This text of 32 M.J. 783 (United States v. Puckett) is published on Counsel Stack Legal Research, covering U S Coast Guard 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. Puckett, 32 M.J. 783, 1991 CMR LEXIS 550, 1991 WL 63635 (cgcomilrev 1991).

Opinion

BAUM, Chief Judge:

At a trial held on 12 June 1989 and 24, 25 and 28 July 1989, appellant pled not guilty to numerous drug related offenses before a general court-martial composed of officer and enlisted members. Despite his pleas, the Court convicted appellant of eleven specifications of wrongful use of marijuana under Article 112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 912a and four specifications of failure to obey a lawful general regulation in wrongfully not [785]*785reporting unauthorized drug use by Coast Guard personnel in violation of Article 92, UCMJ, 10 U.S.C. § 892. The Court acquitted appellant of two out of three specifications alleging solicitation of Coast Guard members to use marijuana in violation of Article 134, UCMJ, 10 U.S.C. § 934. The third specification was withdrawn before findings. Also, appellant was found not guilty of one specification of LSD use and not guilty of three specifications of marijuana use in violation of Article 112a, UCMJ. One specification of marijuana use was withdrawn before findings. Appellant was sentenced to a bad conduct discharge, confinement for one year, reduction to E-2, and forfeiture of all pay and allowances, except $100.00 per month for the length of confinement. The convening authority disapproved the findings of guilty for the four specifications of failure to obey a lawful general regulation under Article 92, UCMJ and dismissed those four offenses. The convening authority then reduced the forfeitures to $683.60 per month for one year and approved the remainder of the adjudged sentence. Before this Court, appellant has assigned the following errors, which have been orally argued:

I

APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AMENDMENT TO THE U.S. CONSTITUTION AND ARTICLE 27, UCMJ, 10 U.S.C. § 827

II

THE MILITARY JUDGE COMMITTED PREJUDICIAL ERROR BY ALLOWING A GOVERNMENT WITNESS TO TESTIFY AS TO THE REHABILITATIVE POTENTIAL OF APPELLANT BASED SOLELY UPON THE NATURE OF APPELLANT’S OFFENSES AND AS PART OF THE GOVERNMENT’S CASE IN AGGRAVATION PURSUANT TO R.C.M. 1001(b)(5)

III

THE CONVENING AUTHORITY, IN TAKING HIS ACTION, ILLEGALLY INCREASED APPELLANT’S ADJUDGED PUNISHMENT

IV

THE MEMBERS OF APPELLANT’S COURT-MARTIAL PANEL MAY HAVE OVERHEARD WITNESSES IN THE CASE AGAINST HIM DISCUSSING THEIR TESTIMONY IN OUT-OF-COURT SITUATIONS THEREBY IMPERMISSIBLY TAINTING THE FINDINGS

Effective Assistance of Counsel

In assignment one, appellant asserts that he was denied the effective assistance of counsel at trial. In making this assertion, appellant cites U.S. v. Scott, 24 M.J. 186 (C.M.A.1987) for the established principle that both the Sixth Amendment to the U.S. Constitution and Article 27, UCMJ, 10 U.S.C. § 827, guarantee military accused the right to effective counsel assistance. He also cites Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) for the appropriate standard in reviewing claims of ineffective assistance:

“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 deficient performance prejudiced the defense. This requires showing that counsel errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.”

Id. 466 U.S. at 686, 104 S.Ct. at 2064

Appellant, thereafter, sets out numerous instances of asserted omissions and mistakes by his individual military counsel, which in the view of appellant, were so serious that they deprived him of a fair trial.

In response, government counsel acknowledges the applicability to military personnel of the Constitutional right to ef[786]*786fective assistance of counsel and agrees that the appropriate standard for measuring such effectiveness is set forth in Strickland v. Washington, supra. He goes on, however, to cite Strickland for the additional proposition that in evaluating counsel’s performance there is a strong presumption of adequate representation which appellant has the burden of proof in overcoming. Id. 466 U.S. at 690, 104 S.Ct. at 2066. Furthermore, the government argues that, even if appellant satisfies that burden, Strickland also requires appellant to show prejudice to the defense from the asserted performance deficiencies and that the test for determining such prejudice is whether there is a reasonable probability that, absent the errors, the result would have been different. The Government contends that in both respects appellant has failed to make his case.

Instead of counsel incompetence and prejudice, the government asserts that the record reflects a sound trial strategy, mutually agreed upon by counsel and client, and adhered to in a competent manner by defense counsel to appellant’s benefit. In this regard, we find the views expressed by the U.S. Court of Appeals in U.S. v. Weaver, 882 F.2d 1128 (7th Cir.1989) cert. denied — U.S. -, 110 S.Ct. 415, 107 L.Ed.2d 380 (1989) particularly pertinent:

Where a defendant, fully informed of the reasonable options before him, agrees to follow a particular strategy at trial, that strategy cannot later form the basis of a claim of ineffective assistance of counsel. U.S. v. Williams, 631 F.2d 198, 204 (3d Cir.1980) (no ineffective assistance of counsel where defendant ultimately concurred in his trial counsel’s tactical decision.) To allow that would be to exempt defendants from the consequences of their actions at trial and would debase the right to effective assistance of counsel enshrined in the sixth amendment.

Id. at 1140.

Trial defense counsel has outlined his strategy clearly in an affidavit submitted by the Government in response to appellant’s assertions of ineffectiveness. In essence, the defense deliberately chose to allow the government to “ramble on” to induce the members to conclude that the government was over-reaching and overcharging and that the accused was the “scapegoat” in a situation where almost everyone at the unit was using drugs.

Pursuing that plan of action, Individual Military Counsel made it a point not to constantly interrupt the proceedings with unnecessary objections. This strategy apparently offended a civilian attorney who was observing appellant’s trial as counsel for a prosecution witness also facing court-martial.

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35 M.J. 687 (U S Coast Guard Court of Military Review, 1992)
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Cite This Page — Counsel Stack

Bluebook (online)
32 M.J. 783, 1991 CMR LEXIS 550, 1991 WL 63635, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-puckett-cgcomilrev-1991.