United States v. Scott

21 M.J. 859
CourtU.S. Navy-Marine Corps Court of Military Review
DecidedJanuary 22, 1986
DocketNMCM 84 0447
StatusPublished

This text of 21 M.J. 859 (United States v. Scott) is published on Counsel Stack Legal Research, covering U.S. Navy-Marine Corps 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. Scott, 21 M.J. 859 (usnmcmilrev 1986).

Opinions

RAPP, Judge:

This case had its genesis in a vicious attack on Mrs. Wendy S, the wife of a Marine lance corporal, which occurred on 20 April 1983 on board Marine Corps Development and Education Command (MCDEC), Quantico, Virginia.1 Ultimately the appellant, a staff member in the Provost Marshal’s Office (PMO), was convicted of attempted murder, rape, forcible sodomy, and kidnapping. On 12 October 1983 he was sentenced to a dishonorable discharge, confinement for 30 years, forfeiture of all pay and allowances, and reduction to pay grade E-l. Upon initial appeal to this Court the appellant asserted that he had been denied effective assistance of counsel. Rather than deciding the case on the basis of post-trial affidavits, this Court returned the case2 for a DuBay3 hearing, specifying several areas of inquiry. The extensive record of that hearing has now been returned to us including findings of fact by the military judge. Along with oral argument, both sides have submitted further briefs for our consideration.

I

The appellant was assigned Major R as detailed defense counsel and hired Mr. K, a civilian attorney practicing in the vicinity of the base.

In pretrial proceedings and at trial the appellant was represented by Mr. K, as lead counsel, and by Major R. After trial the appellant discharged Mr. K and hired his present civilian appellate counsel.

The starting point for our analysis is the sixth amendment of the United States Constitution which entitles an accused “to have the Assistance of Counsel for his defence.” In the military context, such assistance has been effectuated by Articles 27 and 38, Uniform Code of Military Justice, 10 U.S.C. §§ 827, 838, which provide an accused with a variety of options to ensure the availability of defense counsel, whether provided by the military service or hired by the accused. While these provisions are of foundational value, the right to counsel is more than the mere physical presence or the availability of counsel — it is the “right to the effective assistance of counsel.” McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). The definition of “effective assistance” has shown wide variance in its evolution. The same tendency to variation has been apparent in the case law delineating when ineffective assistance warrants a remedy. In comparison to the federal courts, military case law is reasonably consistent. In United States v. Rivas, 3 M.J. 282 (C.M.A.1977), the Court of Military Appeals (CMA) applied a standard requiring a defense counsel to exercise the customary skill and knowledge which normally prevails within the range of competence demanded of attorneys in criminal cases, i.e., to “act as a diligent and conscientious advocate on behalf of his client.” 3 M.J. at 288. A requirement for prejudicial effect, although not specifically discussed, was nevertheless implied. Later, in United [861]*861States v. Jefferson, 13 M.J. 1 (C.M.A.1982), CMA approvingly noted the standard of competence set forth in Rivas and also cited the two-part test of competence and prejudice delineated in United States v. DeCoster, 624 F.2d 196 (D.C.Cir.1979) (en banc), cert. denied, 444 U.S. 944, 100 S.Ct. 302, 62 L.Ed.2d 311 (1979), that “before an accused could prevail on the issue of ineffectiveness of counsel he had to demonstrate: (1) ‘serious incompetency’ on the part of his attorney; and (2) that such inadequacy affected the trial result.” Jefferson, 13 M.J. at 5 (quoting DeCoster, 624 F.2d at 208). Recently the U.S. Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), reviewed the various positions of the lower federal courts and announced a definitive federal rule. Military courts have historically looked to federal standards on the issue of effectiveness of counsel. The military rule drawn from Rivas and Jefferson is not at variance with Strickland and appears to emanate from a common philosophy, so we conclude that the Strickland rule is applicable to courts-martial. See United States v. Davis, 20 M.J. 1015 (ACMR 1985).

II

The Strickland rule has two components: deficient performance and resulting prejudice to the accused. 466 U.S. at ---, 104 S.Ct. at 2064, 80 L.Ed.2d at 693.

A

First we will look at the alleged inadequacies of Mr. K. Strickland specifies that the requirement for attorney performance is “reasonably effective assistance,” applying an “objective standard” of reasonableness “in comparison to prevailing professional norms.” Reasonableness must be judged in the context “of the particular case, viewed as of the time of counsel’s conduct,” evaluating that conduct “from counsel’s perspective at the time.” To avoid the temptation of second-guessing and distortion from hindsight, judicial scrutiny must be “highly deferential,” and courts “must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id., 466 U.S. at ---, 104 S.Ct. at S.Ct. at 2064-2066, 80 L.Ed.2d at 693-695.

The trial and DuBay records are replete with actions, inactions, and explanations by Mr. K which the appellant now utilizes in a broadside attack on Mr. K’s representation going far beyond the original assignment of error, which focused on Mr. K’s failure to prepare and present a viable alibi defense at the appellant’s trial. We will concentrate on the original assignment of error, in particular examining Mr. K’s development of the alibi defense in relation to Pam B and Cynthia A, both employees at Zayres Department Store where the appellant alleges he was present at the time of the crimes for which he was convicted. This is the only issue we believe is sufficiently supported by the evidence to warrant consideration.

According to the appellant, Mr. K failed to interview a single potential alibi witness personally or even by telephone and took no steps to seek out any such witnesses, for instance by retracing the appellant’s claimed movements on the evening in question. The record supports this contention except for (1) the possibility of a brief meeting by Mr. K with the key alibi witness (Cynthia A) shortly before her testimony; and (2) perusal by Mr. K of a report by Naval Investigative Service (NIS) agents outlining fruitless attempts to verify the appellant’s alibi. Although Major R, an apparently well-qualified counsel, was available and willing to assist, Mr. K purposely excluded him from the investigation of an alibi defense except for an hour or two spent by Major R in a time/distance study of the appellant’s claimed activities on the evening in question. On the basis of these scant activities by Mr. K it is hard for us to see how he was developing any kind of credible alibi defense until as late as two to three weeks before trial (about five months after the crimes). At that time Lori J, a self-described civil rights activist, entered the case at the request of the ap[862]*862pellant and offered her services to Mr. K free of charge.

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Related

McMann v. Richardson
397 U.S. 759 (Supreme Court, 1970)
Cuyler v. Sullivan
446 U.S. 335 (Supreme Court, 1980)
United States v. Cronic
466 U.S. 648 (Supreme Court, 1984)
Strickland v. Washington
466 U.S. 668 (Supreme Court, 1984)
Gratton Earl Moore v. United States
432 F.2d 730 (Third Circuit, 1970)
Earnest Lee Langston v. Donald Wyrick
698 F.2d 926 (Eighth Circuit, 1983)
United States v. DuBay
17 C.M.A. 147 (United States Court of Military Appeals, 1967)
United States v. Rivas
3 M.J. 282 (United States Court of Military Appeals, 1977)
United States v. Jefferson
13 M.J. 1 (United States Court of Military Appeals, 1982)
United States v. Dupas
17 M.J. 689 (U.S. Army Court of Military Review, 1983)
United States v. Bowie
17 M.J. 821 (U.S. Army Court of Military Review, 1984)
United States v. Scott
18 M.J. 629 (U.S. Navy-Marine Corps Court of Military Review, 1984)
United States v. Davis
20 M.J. 1015 (U.S. Army Court of Military Review, 1985)

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Bluebook (online)
21 M.J. 859, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-scott-usnmcmilrev-1986.