Opinion of the Court
CRAWFORD, Judge:
Appellant was tried by a general court-martial composed of officer members. Contrary to his pleas, he was found guilty of felony murder and carrying a concealed weapon, in violation of Articles 118 and 134, Uniform Code of Military Justice, 10 USC §§ 918 and 934, respectively. He was sentenced to a dishonorable discharge, confinement for life, total forfeitures, and reduction to the lowest enlisted grade. The convening authority approved the sentence. The Court of Military Review affirmed the findings and sentence in an unpublished opinion dated February 28, 1991.
We granted review to determine: (1) whether the evidence at trial was insufficient as a matter of law to support the findings of guilty of felony murder and (2) whether “appellate defense counsel’s waiver of oral argument” before the Court of Military Review “violated appellant’s right to effective assistance of counsel.” We answer both issues in the negative.
I
While stationed at the William 0. Darby Kaserne, Fuerth, Germany, appellant met and fell in love with Lisa. Because of difficulties at home, Lisa lived in a shelter when appellant met her. Appellant later assumed the burden of providing living accommodations and providing for a portion of her support. He appeared to be willing to do anything for her and attempted to meet her expensive tastes. PFC Vincent Duval, a friend of appellant, testified that Lisa constantly needed more money. Appellant and Lisa planned to be married and Lisa had purchased wedding rings in anticipation of that event. Appellant and Lisa also planned on purchasing at least a 3-day travel package so they could be married in Denmark. This package included transportation and accommodations for 1,050 Deutsche marks. There was testimony that they wanted to purchase a 10-day package to Denmark but knew they could not afford even the 3-day package. Additionally, appellant’s 1978 BMW, which had become inoperable, still required him to make monthly payments in excess of $170. Appellant was also obligated to pay $179 to a German video store for video tapes that he had lost. Further, he had borrowed money from other soldiers, sometimes on a weekly basis, and owed one soldier $100 for Lisa’s living accommodations.
On July 12, 1989, appellant returned to his barracks to learn that he was tasked to clean the barracks, for a “GI party.” This meant that he would not be able to spend that evening with Lisa as the couple had planned. Before the cleaning assignment commenced, he went to the Kentucky Fried Chicken where Lisa worked and informed her that he could not be with her that night because he had to return to the barracks. After he had returned to his barracks and contrary to the instructions he had given her, Lisa appeared at the front gate of the Kaserne looking for appellant. Appellant, who was buffing the barracks floor when Lisa arrived, met her and took her into his barracks. There Lisa announced that a stranger in a new red Nisson 300 ZX had offered her a job for more money and she was considering it. In fact, she had resigned her job before going to the Kaserne. Appellant was jealous because twice before Lisa had been unfaithful. They argued about the matter, and he told her not to take the job. While in the barracks, Lisa obtained a survival knife from appellant’s dresser drawer and, in a joking fashion, brandished the knife before the other occupants in the room. But before leaving she returned it to the dresser drawer.
[305]*305When Lisa departed for home, appellant accompanied her to the train
The taxi which returned appellant to the barracks was driven by Monika Nahr. Appellant testified that, when he returned to the Kaserne, he paid Ms. Nahr a fare of 10 marks and asked her to wait for him while he returned to the barracks. He left his hat in the taxi and went into his room. A soldier in the adjoining room heard sounds similar to dresser drawers being opened and closed. Appellant testified he went to his room hoping another soldier would dissuade him from committing suicide. This was not corroborated. After a few moments, appellant departed the room and was observed by the gate guards carrying something under his arm as he returned to the taxi. Appellant reentered the taxi and directed Ms. Nahr to drive him to an area that was relatively isolated.
After they arrived at this secluded spot, a struggle ensued. Ms. Nahr somehow managed to call her dispatcher with a cry for help. Residents in the area heard a staccato horn sound from the taxi and left their homes to investigate. Upon approaching the taxi, they noticed two individuals struggling inside. The taxi door burst open, and the accused, without his hat, escaped across an open field. He threw the knife into the field and scurried underneath a bush where he remained until the next morning. When the neighbors examined Ms. Nahr, she was dead and covered with blood. She had been stabbed eighteen times in the neck, chest, and abdomen. She also had a cut on the left side of her neck running from below her ear to her chin. Later, the police found Ms. Nahr’s money purse in a secret pocket of the driver’s side seat cover. The money pouch had not been disturbed. A cap was found in the taxi with appellant’s name sewn inside. The police recovered appellant’s survival knife from where he had thrown it in the field. Early the next morning, appellant was apprehended when he returned to the Kaserne. He had no hat and his uniform was bloody. A 10-mark bill and his May pay slip with mathematical computations were found hidden in one of his socks.
While in pretrial confinement, he wrote numerous letters acknowledging his need for money. Subsequently, appellant admitted to the police and at trial that he killed the taxi driver. He denied that he had any robbery motive. He testified that he had intended to commit suicide but could only remember having the taxi driver’s hair in his hand and seeing blood on his survival knife.
Several factors strongly suggest that appellant’s true motive was robbery and not suicide. First, appellant directed the taxi driver to wait for him outside his barracks, an indication of his previously formed intent to rob her. Moreover, his purpose for entering the barracks was to retrieve his survival knife with the serrated edge.
Appellant maintained that he decided to commit suicide prior to buffing the barracks floor and prior to escorting Lisa to the train station. He claimed that he had placed the knife, without its sheaf, in his right BDU (utility uniform) pants pocket prior to departing for the train station. Yet inspection of the pants pocket showed no damage to corroborate this claim. Further, Lisa’s own testimony contradicted appellant’s assertion. Appellant additionally claimed that, upon returning from the train station, he entered the barracks to speak to a friend who might dissuade him from committing suicide. This claim is implausible, considering the fact that he directed the taxi driver to wait for him and left his BDU hat in the taxi. Moreover, appellant’s behavior prior to the crime was not viewed as [306]*306unusual by anyone who had seen him that night or on the prior few days.
Free access — add to your briefcase to read the full text and ask questions with AI
Opinion of the Court
CRAWFORD, Judge:
Appellant was tried by a general court-martial composed of officer members. Contrary to his pleas, he was found guilty of felony murder and carrying a concealed weapon, in violation of Articles 118 and 134, Uniform Code of Military Justice, 10 USC §§ 918 and 934, respectively. He was sentenced to a dishonorable discharge, confinement for life, total forfeitures, and reduction to the lowest enlisted grade. The convening authority approved the sentence. The Court of Military Review affirmed the findings and sentence in an unpublished opinion dated February 28, 1991.
We granted review to determine: (1) whether the evidence at trial was insufficient as a matter of law to support the findings of guilty of felony murder and (2) whether “appellate defense counsel’s waiver of oral argument” before the Court of Military Review “violated appellant’s right to effective assistance of counsel.” We answer both issues in the negative.
I
While stationed at the William 0. Darby Kaserne, Fuerth, Germany, appellant met and fell in love with Lisa. Because of difficulties at home, Lisa lived in a shelter when appellant met her. Appellant later assumed the burden of providing living accommodations and providing for a portion of her support. He appeared to be willing to do anything for her and attempted to meet her expensive tastes. PFC Vincent Duval, a friend of appellant, testified that Lisa constantly needed more money. Appellant and Lisa planned to be married and Lisa had purchased wedding rings in anticipation of that event. Appellant and Lisa also planned on purchasing at least a 3-day travel package so they could be married in Denmark. This package included transportation and accommodations for 1,050 Deutsche marks. There was testimony that they wanted to purchase a 10-day package to Denmark but knew they could not afford even the 3-day package. Additionally, appellant’s 1978 BMW, which had become inoperable, still required him to make monthly payments in excess of $170. Appellant was also obligated to pay $179 to a German video store for video tapes that he had lost. Further, he had borrowed money from other soldiers, sometimes on a weekly basis, and owed one soldier $100 for Lisa’s living accommodations.
On July 12, 1989, appellant returned to his barracks to learn that he was tasked to clean the barracks, for a “GI party.” This meant that he would not be able to spend that evening with Lisa as the couple had planned. Before the cleaning assignment commenced, he went to the Kentucky Fried Chicken where Lisa worked and informed her that he could not be with her that night because he had to return to the barracks. After he had returned to his barracks and contrary to the instructions he had given her, Lisa appeared at the front gate of the Kaserne looking for appellant. Appellant, who was buffing the barracks floor when Lisa arrived, met her and took her into his barracks. There Lisa announced that a stranger in a new red Nisson 300 ZX had offered her a job for more money and she was considering it. In fact, she had resigned her job before going to the Kaserne. Appellant was jealous because twice before Lisa had been unfaithful. They argued about the matter, and he told her not to take the job. While in the barracks, Lisa obtained a survival knife from appellant’s dresser drawer and, in a joking fashion, brandished the knife before the other occupants in the room. But before leaving she returned it to the dresser drawer.
[305]*305When Lisa departed for home, appellant accompanied her to the train
The taxi which returned appellant to the barracks was driven by Monika Nahr. Appellant testified that, when he returned to the Kaserne, he paid Ms. Nahr a fare of 10 marks and asked her to wait for him while he returned to the barracks. He left his hat in the taxi and went into his room. A soldier in the adjoining room heard sounds similar to dresser drawers being opened and closed. Appellant testified he went to his room hoping another soldier would dissuade him from committing suicide. This was not corroborated. After a few moments, appellant departed the room and was observed by the gate guards carrying something under his arm as he returned to the taxi. Appellant reentered the taxi and directed Ms. Nahr to drive him to an area that was relatively isolated.
After they arrived at this secluded spot, a struggle ensued. Ms. Nahr somehow managed to call her dispatcher with a cry for help. Residents in the area heard a staccato horn sound from the taxi and left their homes to investigate. Upon approaching the taxi, they noticed two individuals struggling inside. The taxi door burst open, and the accused, without his hat, escaped across an open field. He threw the knife into the field and scurried underneath a bush where he remained until the next morning. When the neighbors examined Ms. Nahr, she was dead and covered with blood. She had been stabbed eighteen times in the neck, chest, and abdomen. She also had a cut on the left side of her neck running from below her ear to her chin. Later, the police found Ms. Nahr’s money purse in a secret pocket of the driver’s side seat cover. The money pouch had not been disturbed. A cap was found in the taxi with appellant’s name sewn inside. The police recovered appellant’s survival knife from where he had thrown it in the field. Early the next morning, appellant was apprehended when he returned to the Kaserne. He had no hat and his uniform was bloody. A 10-mark bill and his May pay slip with mathematical computations were found hidden in one of his socks.
While in pretrial confinement, he wrote numerous letters acknowledging his need for money. Subsequently, appellant admitted to the police and at trial that he killed the taxi driver. He denied that he had any robbery motive. He testified that he had intended to commit suicide but could only remember having the taxi driver’s hair in his hand and seeing blood on his survival knife.
Several factors strongly suggest that appellant’s true motive was robbery and not suicide. First, appellant directed the taxi driver to wait for him outside his barracks, an indication of his previously formed intent to rob her. Moreover, his purpose for entering the barracks was to retrieve his survival knife with the serrated edge.
Appellant maintained that he decided to commit suicide prior to buffing the barracks floor and prior to escorting Lisa to the train station. He claimed that he had placed the knife, without its sheaf, in his right BDU (utility uniform) pants pocket prior to departing for the train station. Yet inspection of the pants pocket showed no damage to corroborate this claim. Further, Lisa’s own testimony contradicted appellant’s assertion. Appellant additionally claimed that, upon returning from the train station, he entered the barracks to speak to a friend who might dissuade him from committing suicide. This claim is implausible, considering the fact that he directed the taxi driver to wait for him and left his BDU hat in the taxi. Moreover, appellant’s behavior prior to the crime was not viewed as [306]*306unusual by anyone who had seen him that night or on the prior few days. No evidence from the crime scene or appellant’s room suggested an intent to commit suicide. Clearly appellant’s search for money was disrupted by Ms. Nahr’s actions of calling her dispatcher for help and blowing the taxi horn which alerted nearby residents. Based on the evidence, the court members could very well reject appellant’s lapse of memory as to the events along with his suicide theory.
II
The right to effective assistance of counsel extends to all phases of the court-martial, including appellate proceedings. United States v. Scott, 24 MJ 186 (CMA 1987); United States v. Hullum, 15 MJ 261 (CMA 1983); United States v. Jefferson, 13 MJ 1 (CMA 1982). When assessing claims of ineffective assistance of counsel, a two-prong test must be applied. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “The first prong is competency: was counsel’s assistance reasonable considering all the circumstances? The second prong is prejudice: if counsel’s assistance was not reasonable, was the accused prejudiced by the deficiency?” F. Gilligan and F. Lederer, Court-Martial Procedure § 5-55.10 at 198 (1991). In order for appellant to succeed, he must establish both incompetency and prejudice. Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064. There is “a strong presumption” of adequate representation, and appellant has the burden of proving that he was not effectively represented. Id. at 689, 104 S.Ct. at 2065. Appellant must establish “that counsel’s representation fell below an objective standard of reasonableness.” 466 U.S. at 688, 104 S.Ct. at 2064. Even if appellant satisfies this prong, he must still demonstrate that his counsel’s deficiencies prejudiced his defense. Id. at 693, 104 S.Ct. at 2067. This means that counsel must demonstrate “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome” of the proceedings. Id. at 694, 104 S.Ct. at 2068.
Appellant’s claim in this case is premised solely on counsel’s failure to request oral argument. This claim assumes that, if his counsel had requested oral argument, that request would have been granted and the outcome of his appellate review would have been different.
Oral argument before the Courts of Military Review is not a matter of right but discretionary. See Rule 16, Courts of Military Review Rules of Practice and Procedure, 22 MJ CXXXIII (1985). In United States v. Rodriguez-Amy, 19 MJ 177 (CMA 1985), this Court held that making oral argument discretionary with the Courts of Military Review does not violate a fundamental right of an appellant. Thus counsel's failure to request argument was neither determinative of whether there would be oral argument nor prejudicial to appellant’s representation on appeal so as to constitute ineffectiveness. Appellate judges have disagreed as to the importance of oral argument. Justice Brennan observed that
oral argument is the absolutely indispensable ingredient of appellate advocacy....
[OJften my whole notion of what a case is about crystallizes at oral argument. This happens even though I read the briefs before oral argument;
... Often my idea of how a case shapes up is changed by oral argument____ Oral argument with us is a Socratic dialogue between Justices and counsel.
Harvard Law School Occasional Pamphlet Number Nine 22-3 (1967), quoted in United States v. Willis, 13 MJ 93, 95 (CMA 1982) (Everett, C. J., dissenting).
And on another occasion Justice Brennan plainly noted:
I have had too many occasions when my judgment of a decision has turned on what happened in oral argument, not to be terribly concerned for myself were I to be denied oral argument.
[307]*307Remarks at the Third Circuit Judicial Conference in 1972, quoted in Report of the Commission on Revision of the Federal Court Appellate System, Structure and Internal Procedures: Recommendations for Change (June 1975), 67 F.R.D. 195, 254 (1975), quoted in United States v. Willis, supra at 95 (Everett, C. J., dissenting).
Others have opined that the importance of briefs cannot be overstated. They have a longer shelf life. “Few judges can remember the details of an oral presentation days, weeks, or even months later, but briefs are available until the case is finally disposed of.” R. Stern, Appellate Practice in the United States 227 (2d ed.1989) (footnote omitted). Candidly “judges say that they thought oral argument made a difference in only a small percentage of the cases which come before them.” Id. at 365. There is only a short period of time for oral argument which must be shared with questions from the judges. Briefs are more important for setting forth the arguments “in an orderly and comprehensive fashion.” There is just not enough time for “laypng] out ... arguments ... with the supporting authorities.” Id. at 227. Upon receipt of the briefs, even if argument is not requested by the parties, the judges may still order argument if they feel it is necessary.
In the United States, doubts as to the need for two types of argument, written and oral, have often—and more and more, as the appellate caseloads become heavier—led judges to eliminate the oral arguments, at least for uncomplicated or insubstantial or frivolous appeals. Such cases, and they may comprise a substantial portion or even a majority of the appeals, are likely to be disposed of the same way whichever method of presentation comes first.
Id. at 228.
Balanced against the reasons for oral argument before an appellate court are tactical decisions for not arguing. It may be that appellate counsel thought the Government had not set forth all the evidence it could muster before the Court of Military Review. By seeking argument the defense would allow the Government to bring out in oral arguments issues that had in fact not been mentioned in the briefs. This is a tactical decision by counsel that we will not second guess. Moreover, trial defense counsel’s 17-page argument on findings was outstanding, and there was little appellate counsel could orally argue that was not in the brief before the court below.
As the Court of Appeals of Washington stated, waiver of oral argument might be “sufficient” basis to question counsel’s “commitment” to his client’s defense. However, prior counsel’s filing a brief with the court “adequately raised ... the issues central to [his client’s] defense.” Thus, the court found no ineffective assistance of counsel. State v. Jones, 26 Wash.App. 1, 612 P.2d 404, 409 n. 3 (1980).
Even if appellant in the instant case satisfied the incompetence prong, we hold that there was no prejudice resulting therefrom.
The decision of the United States Army Court of Military Review is affirmed.
Judge COX concurs.
The opinion below says “bus station.” Unpub. op. at 2. However, the record shows he went with her to the nearest bus stop, and they took the bus to the train station, where they took a train to Nuernberg. (R.352.) She then took a street car to her residence.