United States v. Scott

24 M.J. 186, 1987 CMA LEXIS 2557
CourtUnited States Court of Military Appeals
DecidedJuly 6, 1987
DocketNo. 54253; NMCM 84-0447
StatusPublished
Cited by385 cases

This text of 24 M.J. 186 (United States v. Scott) is published on Counsel Stack Legal Research, covering United States Court of Military Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Scott, 24 M.J. 186, 1987 CMA LEXIS 2557 (cma 1987).

Opinions

Opinion of the Court

COX, Judge:

Contrary to his pleas, appellant was convicted by a general court-martial, composed of officer members, of attempted murder, rape, forcible sodomy, and kidnapping, in violation of Articles 80, 120, 125, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 880, 920, 925, and 934, respectively. His sentence to confinement for 30 years, forfeiture of $500.00 pay per month for 36 months, reduction to E-l, and a dishonorable discharge was approved by the convening authority.1 On June 18, 1984, the United States Navy-Marine Corps Court of Military Review returned the case to the convening authority for an evidentiary hearing in accordance with United States v. DuBay, 17 U.S.C.M.A. 147, 37 C.M.R. 411 (1967), on the issue of ineffective assistance of defense counsel. 18 M.J. 629. Upon conclusion of the hearing on March 1, 1985, the record was returned to the Court of Military Review for further review. On January 22, 1986, with one judge dissenting, the Court of Military Review affirmed the findings and sentence. 21 M.J. 889.

This Court granted review of these two related issues:

I
WHETHER APPELLANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL BECAUSE OF COUNSEL’S FAILURE TO INVESTIGATE, PREPARE, AND PRESENT HIS SOLE DEFENSE OF ALIBI.
II
WHETHER THE NAVY-MARINE CORPS COURT OF MILITARY REVIEW COMMITTED PREJUDICIAL ERROR BY INCORRECTLY APPLYING THE TEST FOR PREJUDICE ESTABLISHED BY THE UNITED STATES SUPREME COURT IN STRICKLAND V. WASHINGTON

We hold that the standard for review of claims of ineffective assistance of counsel in trials by courts-martial is that set out by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Applying the Strickland standard to the facts of this case, we hold that civilian counsel’s performance was deficient and prejudiced the defense.

Appellant was represented at trial by Mr. Ervan E. Kuhnke, Jr., a civilian lawyer personally retained by him, and Major A. J. Roach, U. S. Marine Corps, his detailed military counsel. All parties considered the civilian attorney to be the lead counsel, with the military lawyer acting as associate counsel. After trial, appellant discharged his civilian attorney and retained the services of other civilian counsel. Affidavits were then filed with the Court of Military Review alleging, among other things, that alibi witnesses were not interviewed by a defense representative until 5 months after appellant’s lawyer was on notice of a potential alibi defense and that neither civilian nor military counsel interviewed any alibi witnesses prior to trial. An evidentiary hearing was ordered to determine the extent of assistance provided by defense counsel to appellant. Before this Court, as well as the Court of Military Review, the thrust of appellant’s attack on the adequacy of counsel centers on the civilian attorney’s failure to prepare and present an effective alibi defense, although an alibi defense was available and alibi was selected by counsel as the sole defense.

A

Proper Standard for Reviewing Ineffectiveness Claims

By virtue of Article 27, UCMJ, 10 U.S.C. § 827, as well as the Sixth Amendment of the Constitution, a military accused is guaranteed the effective assist[188]*188anee of counsel. United States v. DiCupe, 21 M.J. 440 (C.M.A.), cert. denied, — U.S. —, 107 S.Ct. 101, 93 L.Ed.2d 52 (1986); United States v. Wattenbarger, 21 M.J. 41 (C.M.A. 1985), cert. denied, — U.S. —, 106 S.Ct. 3272, 91 L.Ed.2d 563 (1986); United States v. Jefferson, 13 M.J. 1 (C.M.A. 1982); United States v. Rivas, 3 M.J. 282 (C.M.A. 1977). This guarantee applies whether counsel is detailed, or selected by the accused. United States v. Walker, 21 U.S.C.M.A. 376, 45 C.M.R. 150 (1972).

This Court has followed the standards utilized by the federal courts in evaluating claims of ineffective assistance of counsel, stating that an accused is entitled to “reasonably competent counsel” and requiring a showing of “serious incompetency” which affected the trial result in order to reverse a conviction. See United States v. DiCupe, supra at 442; United States v. Jefferson, supra at 5; and United States v. Rivas, supra at 288.

In Strickland v. Washington, supra, the Supreme Court for the first time set forth a test for reviewing claims of ineffective assistance of counsel. The two-pronged test articulated in Strickland has been applied by the Courts of Military Review and is compatible with existing military standards. See United States v. Haston, 21 M.J. 559 (A.C.M.R. 1985); United States v. Huxhold, 20 M.J. 990 (N.M.C.M.R. 1985); United States v. Rogan, 19 M.J. 646 (A.F.C.M.R. 1984). In order to prevail on an ineffectiveness of counsel claim, an accused must establish both incompetence and prejudice, as follows:

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

466 U.S. at 687, 104 S.Ct. at 2064.

The competence of counsel is presumed. To make out a claim of ineffective assistance of counsel, the accused must rebut this presumption by pointing out specific errors made by his defense counsel which were unreasonable under prevailing professional norms. United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). The reasonableness of counsel’s performance is to be evaluated from counsel’s perspective at the time of the alleged error and in light of all the circumstances. “In making [the competence] determination, the court should keep in mind that counsel’s function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case.” 466 U.S. at 690, 104 S.Ct. at 2066.

Because “[investigation is an essential component of the adversary process,” Wade v. Armontrout, 798 F.2d 304, 307 (8th Cir. 1986), that testing process generally will not function properly unless defense counsel has done some investigation. Thus, “counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary ...

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Bluebook (online)
24 M.J. 186, 1987 CMA LEXIS 2557, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-scott-cma-1987.