United States v. Stephenson

30 M.J. 551, 1990 CMR LEXIS 165, 1990 WL 19692
CourtU.S. Army Court of Military Review
DecidedFebruary 27, 1990
DocketACMR 8801449
StatusPublished
Cited by1 cases

This text of 30 M.J. 551 (United States v. Stephenson) is published on Counsel Stack Legal Research, covering U.S. Army 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. Stephenson, 30 M.J. 551, 1990 CMR LEXIS 165, 1990 WL 19692 (usarmymilrev 1990).

Opinion

OPINION OF THE COURT

MYERS, Senior Judge:

Appellant was tried by a general court-martial composed of officer members of one specification of premeditated murder in violation of Article 118, Uniform Code of Military Justice, 10 U.S.C. § 918 (1982) [hereinafter UCMJ or Code]. Contrary to his plea, however, he was convicted by exceptions of unpremeditated murder and was sentenced by the court to a dishonorable discharge, confinement for fifty years, forfeiture of all pay and allowances, and reduction to Private El. The convening authority approved the sentence as adjudged. Appellant asserts in this appeal that his civilian defense counsel, Mr. B, was ineffective, therefore appellant’s sixth amendment right to counsel was denied.

Specifically, appellant complains that, on advice of his counsel, he waived the Article 32, UCMJ, investigation; that at trial Mr. B asked no questions on voir dire, challenged no one, did not let appellant testify in his own behalf, presented no defense case, made only a short unsworn statement on appellant’s behalf during the sentencing phase of the trial, and failed to submit any matters to the convening authority under Manual for Courts-Martial, United States, 1984, Rule for Courts-Martial 1105. Appellant insists that he is innocent of the offense, that he consistently protested his innocence to Mr. B, but that the latter ignored him and insisted on defending on the basis of self-defense and accident. Appellant alleges that he wanted to call certain witnesses for extenuation and mitigation but that Mr. B failed to do so, and that he was “shocked” by Mr. B’s failure to submit any matters in accordance with Rule for Courts-Martial 1105.

The standards by which the effectiveness of counsel is to be evaluated by appellate courts were set forth by the United States Supreme Court [hereinafter Court] in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). There, the Court held that “[T]he Sixth Amendment right to counsel exists, ... in order to protect the fundamental right to a fair trial.” Id. at 684, 104 S.Ct. at 2063. Merely because a person who happens to be a lawyer is present with the defendant in court is not sufficient. Id. at 685, 104 S.Ct. at 2063. “[T]he right to counsel is the right to the effective assistance of counsel.” Id. at 686, 104 S.Ct. at 2063 (citation omitted). However, “the proper standard for attorney performance is that of reasonably effective assistance,” id. at 687, 104 S.Ct. at 2064 (emphasis added), which envisions an objective standard of reasonableness “under prevailing professional norms.” Id. at 688, 104 S.Ct. at 2065. Thus, in evaluating counsel’s performance, an appellate court should recognize that “counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id. at 690, 104 S.Ct. at 2066 (emphasis added).

The Court pointed out that a defendant’s claim of ineffective assistance of counsel has two components:

[553]*553a. Defendant must show that counsel’s performance was deficient, that is, that “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed ... by the Sixth Amendment.”
b. Defendant must show that such errors prejudiced the defense to the extent that they deprived the defendant of a fair trial.

Id. at 687, 104 S.Ct. at 2064. Thus, a conviction may not be set aside even where counsel error was professionally unreasonable, so long as such error “had no effect on the judgment,” id. at 691, 104 S.Ct. at 2066, and it is not sufficient that the error had some “conceivable” effect on the outcome of the case. Id. at 693, 104 S.Ct. at 2067. Stated another way, this standard is “whether there is a reasonable probability that, absent the errors, the factfinders would have had a reasonable doubt respecting guilt.” Id. at 695, 104 S.Ct. at 2068-69.1

It is not necessary to set forth a full exposition of the facts of this case. Suffice it to say that although this is one of the best-tried cases we have seen, the evidence of appellant’s guilt is overwhelming. Appellant’s assertion in his affidavit accompanying his assignment of errors before this court that his girlfriend is actually the one who stabbed the deceased is, to put it charitably, absurd. Mr. B made numerous and timely objections, conducted vigorous cross-examination of key prosecution witnesses, argued the defense position forcefully to the court, was successful in persuading the military judge to instruct on numerous lesser offenses, down to and including negligent homicide, and was successful in getting the instructions that he wanted on self-defense and accident. The evidence was presented clearly, logically, and methodically by the prosecution, which drew a circumstantial picture so damning to the appellant that Mr. B’s only plausible trial strategy was to convince the court that appellant acted in self-defense or, in the alternative, that he stabbed the victim by accident, while simultaneously downplaying the aggravating circumstances of the crime. We hold, therefore, that Mr. B effectively represented the appellant during the trial on the merits.

Appellant also contends, however, that Mr. B ineffectively represented him during the sentencing phase of the trial and by waiving post-trial submissions to the convening authority under R.C.M. 1105.

It is undisputed that an accused person is entitled to the effective assistance of counsel in both the sentencing and post-trial phases of the case. Strickland, 466 U.S. at 668, 104 S.Ct. at 2052. See also United States v. King, 27 M.J. 664 (A.C.M.R.1988), pet. granted, 28 M.J. 340 (C.M.A.1989) (accused has the right to effective assistance of counsel at every stage of adversary proceedings); United States v. Pattugglan, 26 M.J. 762 (A.C.M.R.1988), pet. denied, 28 M.J. 78 (C.M.A.1989) (accused not denied effective assistance of counsel on sentencing). But see United States v. Sadler, 16 M.J. 982 (A.C.M.R.1983) (accused denied effective assistance of counsel on sentencing). The standards for effective assistance on the merits of a case and on sentencing are the same. Strickland, 466 U.S. at 668, 104 S.Ct. at 2052; United States v. Howes, 22 M.J. 704 (A.C.M.R.1986). Here, the only extenuation and mitigation evidence introduced by Mr. B during sentencing was an unsworn statement of the appellant comprising six lines in the record of trial. Appellant contends that he gave Mr. B the names of three extenuation and mitigation witnesses, one of whom was an officer who has known appellant all his life. Thereafter, Mr. B waived submission of matters to the convening authority under R.C.M. 1105, which appellant alleges was contrary to his requests and done without consulting him.

Mr. B submitted an extensive affidavit in response to appellant’s allegations in which he stated, inter alia, that a “vast amount of derogatory information” existed and, as [554]*554a matter of trial tactics, he did not want to open the door to this information coming in by way of cross-examination or rebuttal. Regarding the lack of R.C.M. 1105 submissions, Mr.

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Related

United States v. Stephenson
33 M.J. 79 (United States Court of Military Appeals, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
30 M.J. 551, 1990 CMR LEXIS 165, 1990 WL 19692, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-stephenson-usarmymilrev-1990.