United States v. Washington

29 M.J. 536, 1989 CMR LEXIS 744, 1989 WL 108605
CourtU S Air Force Court of Military Review
DecidedAugust 2, 1989
DocketACM 27234
StatusPublished
Cited by2 cases

This text of 29 M.J. 536 (United States v. Washington) is published on Counsel Stack Legal Research, covering U S Air Force 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. Washington, 29 M.J. 536, 1989 CMR LEXIS 744, 1989 WL 108605 (usafctmilrev 1989).

Opinion

DECISION

HODGSON, Chief Judge:

The appellant was convicted of willfully damaging government property, impeding [538]*538a non-judicial punishment proceeding, absence without leave, failing to go to an appointed place of duty, and stealing government documents. Most of these offenses are related to a major fire that extensively damaged the Maxwell Air Force Base, Alabama, legal office on 13 March 1988. The approved sentence is a dishonorable discharge, five years confinement, total forfeitures, and reduction to airman basic.

On appeal the appellant contends that his defense counsel did not adequately represent him at trial, the evidence is insufficient to support a guilty finding of willfully damaging government property and larceny, his court-martial was not properly convened, the damaging government property and impeding a non-judicial proceeding allegations are multiplicious for punishment, and that he was denied a fair trial. While none of the claimed errors justify overturning the appellant’s conviction, an extended discussion of some is warranted.

I

Because persons convicted of crimes are apt to blame their lawyers rather than themselves for their plight, the law presumes that counsel are effective and places the burden of establishing otherwise on an appellant. United States v. Scott, 24 M.J. 186 (C.M.A.1987); United States v. Mansfield, 24 M.J. 611 (A.F.C.M.R.1987). To rebut this presumption an appellant must identify specific conduct which was unreasonable under acceptable professional standards. United States v. Scott, supra.

Appellate defense counsel argue that their client’s trial lawyer was deficient in not seeking a psychiatric examination of the appellant when he made a suicide gesture after the trial began. In his affidavit1 the trial defense counsel pointed out that the appellant underwent a series of mental examinations beginning with an evaluation on 9-11 March 1988. These examinations revealed no mental disorder and the examiners concluded that the appellant was able to participate in his own defense.

On 17 March, trial defense counsel requested a sanity board which was completed on 11 April. The board concluded the appellant had no severe disease or defect, understood the nature of the proceeding against him, and could cooperate in his defense. The defense counsel also stated that a third psychiatric evaluation of the appellant was requested and obtained on 18 May with him being hospitalized on 25 May. This evaluation was completed on 9 June and once again the appellant was determined to be competent to stand trial and free from any disqualifying disease or defect.

On 16 June 1988, the appellant made a suicide gesture by nicking his wrists with a disposable razor. The cuts were superficial and did not require stitches. , The appellant also told medical personnel that he had ingested sleeping pills he obtained while he was in the hospital. There was no evidence that the appellant had in fact swallowed sleeping pills.

At trial the appellant’s counsel informed the trial judge that the defense was “satisfied” with the appellant’s mental state, and was ready to proceed with trial without requesting an additional sanity board. Appellate defense counsel contend that this statement by trial defense counsel amounted to acting against his client’s best interest by “effectively removing] the issue of mental responsibility from the case.”

The situation here is not like that in Mansfield, supra, where there was no plausible basis on which to forgo a sanity defense. Here the appellant had met a sanity board and at least three other mental evaluations, none of which cast doubt on his mental responsibility or his ability to cooperate in his own defense. Accord United States v. Massey, 26 M.J. 671 (A.F.C.M.R.1988), aff'd 27 M.J. 371 (C.M.A.1989). The record is clear that the appellant’s mental state was thoroughly investigated before and during the trial. Trial defense counsel’s decision not to pursue a sanity issue had a “reasoned basis,” and thus was well within that wide range of “strategic or tactical decisions made at the [539]*539trial level” that appellate courts will not disturb. United States v. Mansfield, supra at page 617.

Appellate defense counsel also claim that the trial defense counsel failed to make “several suppression motions which would have prevented illegally seized, and damaging information from being introduced against the appellant.” They specifically refer to items found in the appellant’s car, the result of a search to which he had consented, a search of his house made in compliance with a civilian warrant, and a statement he gave police investigators after a proper advisement of rights. Regarding the lack of a suppression motion as to the search of the appellant’s car and house, trial defense counsel avers that he had investigated both situations, interviewed the witnesses and researched the law. In doing so, he found no basis on which to challenge either search. The appellant consented to the search of his ear and there is nothing to suggest that his consent to do so was involuntary. The search of his house was pursuant to a search warrant issued by the United States District Court, Middle District of Alabama.

While appellate defense counsel maintain the trial defense counsel was negligent in not attempting to suppress the items found in the two searches, they have not alleged any facts or case law that suggest that a suppression motion would have been granted if it had been timely made. Decisions made at trial are evaluated in light of the facts known to the counsel involved. Trial defense counsel states he investigated both searches and determined that a suppression motion on each would be unsuccessful. Indeed, appellate defense counsel do not argue that the motions would have been successful, only that they should have been made. Challenges to evidence are tactical decisions made in the heat of battle, and we will not second guess a trial advocate on his choice of tactics where there is a reasonable basis. Further, we will not fault a defense counsel for declining to make motions which in his judgement have no merit, especially where there is no evidence to show he was wrong in that assessment.

Next, appellate defense counsel contend that the appellant’s statement to investigators should have been challenged because “[the appellant] was physically injured as the result of his apprehension and was suffering from smoke inhalation.” Here also, trial defense counsel indicated he had investigated the circumstances surrounding the taking of the statement and concluded it was voluntary. Further, the contents of the statement were a complete denial of any wrongdoing, and were consistent with the appellant’s testimony at trial. Whether to challenge the admissibility of a statement under these circumstances is a tactical decision within the range of professional judgement. United States v. Moses, 26 M.J. 980 (A.F.C.M.R.1988).

Finally, appellate defense counsel claims that the trial defense counsel “functioned as an investigative agent for the command and for OSI [Office of Special Investigations] ... [by] hastily delivering potentially incriminating evidence to the government.” This allegation is the result of the trial defense counsel giving investigators an anonymous letter he had received absolving the appellant of any responsibility for the recent fires on base.

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Cite This Page — Counsel Stack

Bluebook (online)
29 M.J. 536, 1989 CMR LEXIS 744, 1989 WL 108605, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-washington-usafctmilrev-1989.