United States v. Radford

14 M.J. 322, 1982 CMA LEXIS 13868

• Court: United States Court of Military Appeals
• Decided: December 20, 1982
• Docket: No. 39,506; ACM S24841
• Status: Published

Opinions

Opinion

FLETCHER, Judge:

Review was granted in this case¹ in order for this Court to consider the following questions:

I

WHETHER THE ACTIONS OF THE MILITARY JUDGE DENIED THE ACCUSED THE EFFECTIVE ASSISTANCE OF COUNSEL.

II

WHETHER THE MILITARY JUDGE ERRED WHEN HE INSTRUCTED THE COURT MEMBERS THAT THE DEFENSE HAD MADE A “SUDDEN INTRODUCTION OF THE DEFENSE OF ALIBI.”²

Further review of the record indicates that some amplification of these questions is necessary. Accordingly, the issues for review are modified as listed below and will be discussed seriatim:

A. Was it proper for defense counsel to expose before the members his dispute with his client over the importance of his alibi testimony?

B. Did defense counsel properly act with respect to the presentation of appellant’s ease for an alibi?

C. Should the military judge have inquired sua sponte of appellant whether he desired that his defense counsel be excused and a new one appointed?

D. Was appellant denied the effective assistance of counsel?

The first two questions must be answered in the negative and the latter two in the affirmative. In view of the substantial possibility of prejudice to appellant in this case, the decision of the Court below must be reversed.

The Court of Military Review summarized the Government’s case on the charged offense as follows:

Airman Robinson, an informant, working for the Air Force Office of Special Investigations (OSI), testified that on the day of the offense the accused approached him at one o’clock in the afternoon and offered to sell hashish. Both men worked on the flightline and knew each other. Robinson expressed interest, and at 4:00 o’clock, the accused went to Robinson’s barracks room. Robinson then gave the accused «£. 20.00 in British currency, and the accused returned to the room at 5:30 and delivered the hashish. OSI personnel were not notified in advance of the sale, but between 5:30 and 6:00 o’clock Robinson contacted the OSI and gave to them a package containing 6.55 grams of hashish.

9 M.J. 769, 770.

The lower appellate court also found certain facts concerning the events that occurred at trial:

When the accused took the witness stand, the preliminary identification questions were asked by the prosecution, but the defense counsel did not ask any questions. Instead, the accused testified, in a narrative form, that he worked that day until 5:00 o’clock, picked up his mail, ate dinner with a friend at 5:30 and later spent the evening at a local pub. He denied the offense, saying he had never sold hashish in his life and “wouldn’t know where to get it much less sell it.” At the close of cross-examination of the accused, the military judge asked the trial counsel in open court if he had received notice of the defense of alibi. The trial counsel said no. The defense counsel then suggested alibi was not really raised as to the specific times in question and asked for an Article 39(a) session.

In thé out of court session, defense counsel said that if he made an offer of alibi witnesses he would be remiss in his duties, and asked to be excused from the case. The military judge recognized the import of what defense counsel was saying — that he, from what his client told him, knew accused’s testimony was false and that accused’s decision to take the stand was his own, against the advice of counsel. The military judge made no explicit ruling on the request, nor did defense counsel pursue the request to be excused when told he was not expected to produce the alibi witnesses suggested by the accused’s testimony. During the Article 39(a) session, the accused was not asked if he wanted different counsel. When the full court reconvened, the court members were advised that because of the sudden introduction of the defense of alibi, the prosecution was entitled to additional time. In rebuttal, the prosecution presented other evidence which tended to discredit the accused’s testimony that he worked until 5:00 o’clock. Witnesses also testified that the accused’s credibility for truth and veracity was poor, and that they would not believe him under oath.²

Id. at 770-71.

Review of these facts indicates the conflict in testimony presented to the members of the court-martial. Appellant’s testimony contradicted the government witness, Robinson, who had testified that he was with this informant when the sale was arranged (1:00 p.m.), when the money was paid (4:00 p.m.), and when the drugs were delivered (5:30 p.m.). Appellant denied selling the hashish or possessing hashish on May 15, 1979, the day of the alleged sale. He also asserted that on May 15, he did not recall approaching Robinson at any time; that at 4:00 p.m. he was at work and not in Robinson’s room in the barracks; and that at 5:30 p.m. he was eating chow with his friend Bristow, and not in Robinson’s barracks room. He could not recall anyone seeing him at work until 5:00 p.m. but claimed someone should have.

Appellant was cross-examined by trial counsel as to his direct testimony and a court member asked him through the military judge where Don Bristow was then located. Appellant stated that Bristow was still assigned to the base Communications Squadron. A second member asked if appellant’s supervisor, Master Sergeant Skinner, could verify his time on duty on May 15,1979. Appellant said that he believed he could. Bristow was never called by any party or the court, while Skinner was called by the Government and testified that appellant could have worked to 5:00 p.m., but he did not know this for a fact.

This evidence is part unsupported denial and part denial with alibis. See United States v. Jones, 7 M.J. 441, 444 (C.M.A.1979) (Fletcher, C.J., dissenting). The alibi that he was at work averred that he could not have also been at the informant’s room at 4:00 p.m. when the money was allegedly exchanged. The alibi that he was at the chow hall at 5:30 p.m. with Bristow avers that he could not have also been at the informant’s room at the same time delivering the drugs. The Government has the burden to disprove these alibis beyond a reasonable doubt. Id. at 443 n. 1; see para. 6-5, Department of the Army Pamphlet 27-9, Military Judges’ Guide (May 19, 1969).

A

As earlier indicated, when the cross-examination of appellant was finished, the military judge asked defense counsel if he had given notice of an alibi defense to the Government as required by that court’s rule. The following colloquy took place before the members:

MJ: Let me ask you this question, Trial Counsel: Bearing in mind Rule 43 of this court that if the defense intends to offer any sort of alibi defense to a case they are required to notify you of that in advance. Have you been notified in advance of any intent to offer an alibi defense?

TC: I specifically requested that yesterday and I was not told of any alibi. MJ: Very well.

ACC: Your Honor, I’ve been screaming that ever since this came up.

DC: Your Honor, I don’t believe that what the accused is saying is a defense of alibi to the time Robinson says these things occurred. He went on and talked about a lot of other things but I don’t believe he’s offering a defense of alibi as to the specific times. We’re not bringing in any witnesses or anything concerning this. That’s my position, Your Honor; that alibi is not—

MJ: He’s not denying that he was somewhere else when the informant says he was there in the barracks transacting drug deals, or a drug deal?

DC: No, Your Honor — Let’s have a 39a session.

This exchange before the members reflected a serious dispute between appellant and his counsel over whether his testimony established an alibi to the times and places testified to by Robinson. It was erroneous for counsel to expose this dispute in open court before the members. United States v. Winchester, 12 U.S.C.M.A. 74, 78, 30 C.M.R. 74, 78 (1961). If discrepancies between Robinson’s averment of times and those of appellant were immaterial, it was the Government’s burden to establish this fact before the court, and defense counsel had no right to comment on the evidence adversely to his client. See generally Lowery v. Cardwell, 575 F.2d 727 (9th Cir.1978). Even assuming defense counsel was only justifying his failure to comply with an alibi-notice rule, his disagreement with his client in open court and his announcement of his intent not to call further witnesses undermined not only appellant’s testimony but also the confidentiality of their lawyer-client relationship. See ABA Standards, The Defense Function §§ 5.2 and 3.1 (1971).³ This Court, although it has recognized the difficult realities in criminal defense representation, has nonetheless insisted that the form of counsel’s response to these situations be consistent with accepted standards of professional conduct. United States v. Winchester, supra. It was not in the present case.

B

It is now necessary to turn to the responsibility of defense counsel when he believes his client who is testifying on the stand has committed or is committing perjury. ABA Standards, supra,4 state:

§ 7.5 Presentation of evidence.

(a) It is unprofessional conduct for a lawyer knowingly to offer false evidence, whether by documents, tangible evidence, or the testimony of witnesses, or fail to seek withdrawal thereof upon discovery of its falsity.

These standards also state:

§ 7.7 Testimony by the defendant!⁵!

(a) If the defendant has admitted to his lawyer facts which establish guilt and the lawyer’s independent investigation establishes that the admissions are true but the defendant insists on his right to trial, the lawyer must advise his client against taking the witness stand to testify falsely.

(b) If, before trial, the defendant insists that he will take the stand to testify falsely, the lawyer must withdraw from the case, if that is feasible, seeking leave of the court if necessary.

(c) If withdrawal from the case is not feasible or is not permitted by the court, or if the situation arises during the trial and the defendant insists upon testifying falsely in his own behalf, it is unprofessional conduct for the lawyer to lend his aid to the perjury or use the perjured testimony. Before the defendant takes the stand in these circumstances, the lawyer should make a record of the fact that the defendant is taking the stand against the advice of counsel in some appropriate manner without revealing the fact to the court. The lawyer must confine his examination to identifying the witness as the defendant and permitting him to make his statement to the trier or the triers of the facts; the lawyer may not engage in direct examination of the defendant as a witness in the conventional manner and may not later argue the defendant’s known false version of facts to the jury as worthy of belief and he may not recite or rely upon the false testimony in his closing argument.

(Emphasis added.)

During the defense-requested session outside the hearing of the members, the following colloquy occurred:

MJ: Defense counsel.

DC: Your Honor, I believe if I were to make an offer in support of the accused’s story that I would be remiss in my duties, and if you wish the defense to use the defense of alibi and for me to call witnesses and interview them —

MJ: I do not. I understand.

DC: —I request to be excused from this case.

MJ: No, I understand that problem, Counsel. I understand that problem completely.

DC: In any event, Your Honor, I wish to be excused from the case.

MJ: You do?

DC: Well, Your Honor, I have done what I can to represent the accused. Right now I don’t feel that there’s any problem, but if you’re going to suggest that I violated the rules on alibi and what have you—

MJ: No, no; by no means, by no means, Counsel. I’m not suggesting that at all. I understand that the testimony of the accused was of his own doing—

DC: Yes, Your Honor.

MJ: —and that you asked him no questions and had absolutely nothing to do with that.

DC: And I think the case can just move ahead if you hadn’t brought up that particular thing.

MJ: Well, the reason is, that the accused is suggesting that he wasn’t there at that time:. Is that what — ?

Acc: Yes, sir, I am.

MJ: The accused says he wasn’t there at that time. That means that the defense of alibi is, by the accused’s own words, in—

DC: Can we see whether or not the trial counsel will waive the notice as to the defense of alibi. I did tell them that I didn’t think the alibi would apply; last evening he asked me, and I told him all the various things that I could think of that might apply.

MJ: Well, I think the correct thing to do at this point in time—

DC: Maybe if the members want to call these people: Skinner or other people—

MJ: I think the correct thing to do at this point in time is to permit the trial counsel, if he desires, a continuance to look into this alibi allegation.

TC: Your Honor, at this time I don’t know that I’m going to need a continuance but I would ask for about a five-minute recess to verify some information.

MJ: All right. So you may be able to go ahead and meet this allegation headon now?

TC: Yes, Your Honor.

MJ: That may solve the problem. Let’s see what the trial counsel can do here. I certainly understand, Counsel, completely that you had absolutely nothing to do with this story that the accused has brought before us.

The Court is in recess.

On the record before us, it is clear that defense counsel attempted to comply with ABA Standards § 7.5 by requesting permission to withdraw from this case only after appellant testified in this case. Such belated action in the present case must be considered untimely. ABA Standards § 7.7(b). The manner in which he permitted appellant to testify and his statements as to his personal belief concerning the nature of this testimony indicate that he was not caught by surprise. See ABA Standard § 7.7(c). Moreover, his statements on the record further indicate that he had not yet made a complete investigation including the interview of appellant’s purported alibi witnesses prior to informing the military judge of his conflict in professional duties. ABA Standards §§ 4.1⁶ and 7.7(a), supra. Finally, as earlier indicated, his statements before the members also tended to create the impression that his client was testifying falsely. ABA Standards § 7.7(c), supra. Such conduct, no matter how well intentioned, failed to adequately protect appellant’s right to present his defense.

C

The military judge did not ask appellant whether he wished this defense counsel removed and new counsel appointed. Appellant, who was an active participant at trial and at the Article 39(a) 10 U.S.C. § 839(a) session did not request his removal. The military judge also did not expressly rule on the request by the defense counsel that he be excused. The Court of Military Review determined it was error for the military judge not to inquire into the accused’s desires. This was a correct decision. See United States v. Davis, 3 M.J. 430, 434 (C.M.A.1977); United States v. Graves, 1 M.J. 50 (C.M.A.1975); see also United States v. Young, 482 F.2d 993 (5th Cir.1973); United States v. Calabro, 467 F.2d 973 (2d Cir.1972), cert. denied, 410 U.S. 926, 93 S.Ct. 1358, 35 L.Ed.2d 587 (1973); and Brown v. Craven, 424 F.2d 1166 (9th Cir.1970). Thus, in this instance, it was error for the military judge to fail to inquire sua sponte whether appellant wanted new counsel.

D

The final question which must be addressed is whether appellant was denied effective assistance of counsel. See generally United States v. Rivas, 3 M.J. 282 (C.M. A.1977). The preceding parts of this opinion delineate the failures of defense counsel to adequately adhere to accepted standards of professional conduct. In the context of this case, these failures were intimately related to appellant’s defense at court-martial and occurred at the critical point in the proceedings. Id. at 289; United States v. Winchester, supra. The military judge, who had the power and the opportunity to correct this situation at the trial level, failed to act to protect appellant’s right to a fair trial. Upon this record, one can only conclude that fair risk existed that appellant was prejudiced by such errors. Cf. Shepherd v. Hunter, 163 F.2d 872 (10th Cir.1947).

The decision of the United States Air Force Court of Military Review is reversed. The findings and sentence are set aside. The record of trial is returned to the Judge Advocate General of the Air Force. A rehearing may be ordered.

1 . Contrary to his pleas, appellant was found guilty of selling hashish, in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934. He was sentenced to a bad-conduct discharge and confinement at hard labor for 1 month. The convening and supervisory authorities approved this sentence and the Court of Military Review affirmed. 9 M.J. 769 (C.M.A.1980).

2 . It is unnecessary to address this question separately in the present case.

2 Accused’s credibility was also attacked by his admission, on cross-examination, of a conviction by a British court six months previously for possession of hashish.

3 . In February 1979, the American Bar Association’s House of Delegates approved the second edition of Standards for Criminal Justice, The Defense Function. See ABA Standards for Criminal Justice, vol. I, ch. 4 (2nd ed. 1980). These provisions cited in the text from the 1971 approved draft are substantially similar. See ABA Standards §§ 4-5.2 and 4-3.1, supra.

4 . See n. 3, supra, and ABA Standards § 4-7.-5(a), supra.

5 . This Standard was approved by the House of Delegates of the American Bar Association in 1971. In 1978, a similar Standard was proposed and approved by the ABA Standing Committee on Association Standards for Criminal Justice. ABA Standards Relating to Criminal Justice, Defense Function § 4-7.7 (Tentative Draft Fall 1978). Its submission to the House of Delegates, however, was “deferred until the ABA Special Commission on Evaluation of Professional Standards reports its final recommendations.” ABA Standards, § 4-7.7, supra (1980). The Standard in its 1971 form is deemed controlling.

6 . See n. 3, supra, and ABA Standard 4 4.1, supra.