United States v. Edmond , 63 M.J. 343 ( 2006 )

UNITED STATES, Appellee
v.
Stanley E. EDMOND, Staff Sergeant
U.S. Army, Appellant
No. 03-0086
Crim. App. No. 9900904
United States Court of Appeals for the Armed Forces
Argued April 20, 2006
Decided August 9, 2006
ERDMANN, J., delivered the opinion of the court, in which
GIERKE, C.J., and CRAWFORD, EFFRON, and BAKER, JJ., joined.
Counsel
For Appellant: Captain Scott T. Ayers (argued); Colonel John T.
Phelps II, Colonel Robert D. Teetsel, Lieutenant Colonel Kirsten
V. C. Brunson, Lieutenant Colonel E. Allen Chandler Jr., Major
Imogene M. Jamison, Major Charles L. Pritchard Jr., Major Billy
B. Ruhling II, and Captain Kathy Martin (on brief).
For Appellee: Captain Mason S. Weiss (argued); Lieutenant
Colonel Margaret B. Baines, Lieutenant Colonel Theresa A.
Gallagher, and Major William J. Nelson (on brief).
Amicus Curiae for Appellant: John Heck (law student) (argued);
Kathleen A. Duignan, Esq. (supervising attorney), Eugene R.
Fidell, Esq., Marisa Guevara (law student), Eric Iverson (law
student), and Tae Hwi Lee (law student) (on brief) – for the
National Institute of Military Justice.
Military Judges: Ferdinand Clervi (arraignment), Theodore Dixon
(trial), and Robert L. Swann (DuBay hearing).
This opinion is subject to revision before final publication.
United States v. Edmond, No. 03-0086/AR
Judge ERDMANN delivered the opinion of the court.1
Staff Sergeant Stanley E. Edmond was tried at a general
court-martial by a panel of officer and enlisted members. He
was convicted of conspiracy to commit larceny, absence without
leave, false official statements, wrongful disposition of
military property, wrongful use of controlled substances,
larceny, and theft of services, in violation of Articles 81, 86,
107, 108, 112a, 121 and 134, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. §§ 881, 886, 907, 908, 912a, 921, 934 (2000).
He was sentenced to a reduction in grade to E-1, confinement for
seventy-three days, and a bad-conduct discharge. The convening
authority approved the sentence and credited Edmond with
seventy-three days of pretrial confinement credit. The United
States Army Court of Criminal Appeals set aside and dismissed a
charge affected by an erroneous staff judge advocate’s post-
trial recommendation but affirmed the remaining findings and the
sentence. United States v. Edmond, No. ARMY 9900904, slip op.
at 3 (A. Ct. Crim. App. Sept. 17, 2002).
This court initially granted Edmond’s petition for review
on the issue of witness interference and concluded that further
1
We heard oral argument in this case at the Washington College
of Law, American University, as part of the Court’s “Project
Outreach.” See United States v. Mahoney, 58 M.J. 326, 347 n.1
(C.A.A.F. 2003). This practice was developed as part of a
public awareness program to demonstrate the operation of a
federal court of appeals and the military justice system.
2
United States v. Edmond, No. 03-0086/AR
inquiry was necessary. United States v. Edmond, 58 M.J. 237(C.A.A.F. 2003). We set aside the decision of the Army court
and directed the lower court to obtain affidavits and, if
necessary, to conduct additional factfinding pursuant to United
States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967). Id.After reviewing the affidavits submitted by the trial
participants, the lower court ordered a DuBay hearing. United
States v. Edmond, No. ARMY 9900904, slip op. at 3 (A. Ct. Crim.
App. June 2, 2005). Following the DuBay hearing, the military
judge issued “Essential Findings and Conclusions of Law” which
found no prosecutorial misconduct. On appeal to the Army court,
Edmond argued that the DuBay judge erred in finding no
prosecutorial misconduct and also asked the court to conclude
that his defense attorney had provided ineffective assistance of
counsel. Id. The Army court agreed with the DuBay judge that
there was “no evidence of prosecutorial misconduct” and further
concluded that Edmond’s defense counsel was not ineffective.
Id. at 4-6. The lower court once again affirmed the findings
and sentence. Id. at 6.
In a due process analysis of prosecutorial misconduct this
court looks at the fairness of the trial and not the culpability
of the prosecutor. See Smith v. Phillips, 455 U.S. 209, 219
(1982). Even where we find misconduct on the part of the
prosecutor, this court will go on to look at the “overall effect
3
United States v. Edmond, No. 03-0086/AR
of counsel’s conduct on the trial, and not counsel’s personal
blameworthiness.” United States v. Thompkins, 58 M.J. 43, 47
(C.A.A.F. 2003). The first granted issue addresses whether the
lower court erred in concluding that there was no prosecutorial
misconduct in this case.2
When reviewing claims of ineffective assistance of counsel,
we are guided by the two-pronged test set forth by the United
States Supreme Court in Strickland v. Washington, 466 U.S. 668(1984).
First, an appellant must show that counsel’s
performance fell below an objective standard of
reasonableness -– that counsel was not
functioning as counsel within the meaning of the
Sixth Amendment.
The second prong of an appellant’s burden
requires a showing of prejudice flowing from
counsel’s deficient performance. The appellant
must demonstrate such prejudice as to indicate a
denial of a fair trial or a trial whose result is
unreliable.
United States v. Davis, 60 M.J. 469, 473 (C.A.A.F. 2005)
(citations omitted). The second granted issue addresses whether
2
We granted review of the following issue:
WHETHER THE ARMY COURT ERRED WHEN IT
CONCLUDED THAT THERE WAS NO EVIDENCE OF
PROSECUTORIAL INTERFERENCE IN APPELLANT’S
CASE, AND AS A RESULT, APPELLANT WAS
DEPRIVED OF HIS FIFTH AMENDMENT RIGHT TO DUE
PROCESS AND SIXTH AMENDMENT RIGHT TO
COMPULSORY PROCESS.
4
United States v. Edmond, No. 03-0086/AR
trial defense counsel was ineffective when he failed to inquire
into a defense witness’s decision not to testify at trial.3
BACKGROUND
Edmond was convicted of numerous charges, including
conspiring to commit larceny of two cellular telephones and the
larceny of two cellular telephones. These two charges are
central to this appeal. Edmond’s alleged coconspirator was
Derrick McQueen,4 a friend with whom he worked in the supply
shop. Prior to Edmond’s trial, Captain Jason Libby, Edmond’s
trial defense counsel, spoke with McQueen about testifying on
behalf of Edmond. McQueen told Libby that he did not believe
his testimony could help Edmond and that he did not want to
testify. Libby nonetheless subpoenaed McQueen.
When McQueen arrived at the courtroom on the day of
Appellant’s trial he met not with Libby but with Major Jeffery
Bovarnick, the trial counsel. McQueen testified that he did not
3
We granted review of the following issue:
WHETHER APPELLANT’S TRIAL DEFENSE COUNSEL
WAS INEFFECTIVE WHEN HE FAILED TO PERSONALLY
INQUIRE WHY A MATERIAL DEFENSE WITNESS
REFUSED TO TESTIFY AFTER THE WITNESS SPOKE
WITH THE PROSECUTOR, AND AFTER TRIAL DEFENSE
COUNSEL WAS INFORMED THAT THE SAME WITNESS
HAD ALLEGEDLY INVOKED HIS FIFTH AMENDMENT
RIGHT AGAINST SELF-INCRIMINATION.
4
At the time of the alleged offense, McQueen was a sergeant in
the United States Army. At the time of Edmond’s trial he was a
civilian, having been administratively discharged from the Army
in lieu of facing court-martial charges.
5
United States v. Edmond, No. 03-0086/AR
specifically remember the conversation that he had with
Bovarnick, but he remembered being told that “if you perjure
yourself or if new information comes out, new charges can be
brought against you.” He said that he did not feel threatened
by Bovarnick, but he felt if he testified his administrative
discharge could be revoked and he “could . . . be charged
again.” McQueen said that he had planned to testify at the
court-martial, but Bovarnick told him he could either testify or
not testify, so he chose not to because he “didn’t want to be
there anyway.” After McQueen told Bovarnick he was going to
leave, Bovarnick told McQueen that he would “inform who I need
to inform that you don’t want to testify.” Bovarnick left the
room, and when he returned told McQueen he was “free to go.”
McQueen then left the courthouse.
McQueen stated that had he testified at Edmond’s trial, he
“planned on telling the truth,” and he did not recall having
refused to testify because he did not want to incriminate
himself. When asked what he would have said if he had
testified, McQueen said that he and Edmond were tasked with
obtaining cell phones for the battalion and that he believed
they were authorized to obtain them. He stated that at the time
they obtained the phones they intended to return the cell phones
to the unit for their authorized use. He also testified that
there was no agreement between the two of them to keep the cell
6
United States v. Edmond, No. 03-0086/AR
phones before they returned to the unit, but after they were
told the unit no longer wanted the cell phones they decided to
keep the phones for their own personal use. He could not recall
any conversation between the two of them during which they
agreed to misuse the telephones they had obtained.
Bovarnick testified that prior to the trial he met with
McQueen and that during the meeting he called Captain Karen
Beyea, a Special Assistant United States Attorney, into the
room. He stated that during that meeting he asked McQueen what
his testimony would be and McQueen told him he would testify
that he and Edmond were authorized by the command to obtain the
phones. Based on the expected testimony of two Government
witnesses who would testify that McQueen and Edmond were not
authorized to obtain or use the phones, Bovarnick concluded that
McQueen was lying and would commit perjury if he testified. As
McQueen was a civilian, Bovarnick asked Beyea to “let him
[McQueen] know what the potential repercussions would be for
committing perjury.”
Bovarnick testified that he did not inquire any further
into McQueen’s expected testimony but based on what McQueen told
him, he did not believe that the testimony McQueen would give
would have been exculpatory because “that is not what happened
by all the facts that are present in the case. . . . It
wouldn’t have been because that is just not what happened.” He
7
United States v. Edmond, No. 03-0086/AR
did agree, however, that if McQueen testified that there was no
conspiracy between McQueen and Edmond before they obtained the
phones to acquire them for personal use, then that would be
exculpatory testimony.
In regard to McQueen’s decision not to testify, Bovarnick
stated that following their conversation, McQueen apparently
decided to “change his mind and not testify.” He stated that
the stipulation of fact was entered into because the defense
wanted to call McQueen to the stand, but was informed by someone
that McQueen would invoke his Fifth Amendment privilege.
Bovarnick testified that he did not know who told trial defense
counsel that McQueen would invoke his rights, but that McQueen
“told somebody.”
Edmond’s trial defense counsel, Libby, testified that he
could not remember what exculpatory information McQueen could
have provided to the members, but he stated that at the time of
Edmond’s court-martial he believed McQueen’s testimony would be
favorable to Edmond. He also testified that on the day of trial
he did not speak to McQueen, but was informed by trial counsel
that McQueen did not want to testify in the case. He admitted
he did not speak to McQueen and receive this information
himself, though he “probably should have.” He also stated that
he should have done more to preserve the record on the question
of whether and why McQueen was invoking his Fifth Amendment
8
United States v. Edmond, No. 03-0086/AR
rights in refusing to testify.
In lieu of having Beyea testify the parties agreed the
DuBay judge could consider her affidavit. In her affidavit
Beyea explained that Bovarnick told her that based on McQueen’s
attitude and demeanor he did not believe McQueen was going to
tell the truth and she agreed with that assessment. She stated
that based on their conclusion that McQueen was untrustworthy,
they determined they had an obligation to inform McQueen “of the
consequences of perjury based on our information and belief that
McQueen was not going to be truthful.” She said she then
informed McQueen of the consequences of perjury and explained
that if he perjured himself “the government would seek justice”
even though he was a civilian. She also stated she explained to
McQueen that they were not pressuring him not to testify, but
that “as officers of the court, [they] merely wanted to make
sure that he was informed before he testified.”
At the conclusion of the defense case, the defense entered
a stipulation of fact into evidence that stated that if he were
called to testify, McQueen would invoke his Fifth Amendment
right against self-incrimination. The military judge questioned
Edmond regarding his wish to enter into the stipulation of fact,
asking whether his trial defense counsel had explained the
stipulation to him, whether he knew that he had “an absolute
right to refuse” to enter into the stipulation, and whether he
9
United States v. Edmond, No. 03-0086/AR
believed it was in his best interest to enter into the
stipulation of fact. Edmond responded that he did, and the
stipulation of fact was entered into evidence.
DISCUSSION
The two granted issues in this case -- whether there was
prosecutorial misconduct in interfering with and releasing a
subpoenaed defense witness and whether Edmond’s defense attorney
was ineffective by failing to talk with a potentially
exculpatory defense witness before agreeing to release the
witness -- are closely intertwined.
I. PROSECUTORIAL MISCONDUCT
We turn first to the question of whether the trial counsel
engaged in misconduct in his discussions with McQueen on the day
of Edmond’s trial. In evaluating issues of prosecutorial
misconduct we review the military judge’s findings of fact to
determine whether they are clearly erroneous. United States v.
Argo, 46 M.J. 454, 457 (C.A.A.F. 1997). “The questions whether
the facts found by the military judge constitute prosecutorial
misconduct and whether such misconduct was prejudicial error are
questions of law that we review de novo.” Id. (citing United
States v. Meek, 44 M.J. 1, 5-6 (C.A.A.F. 1996); United States v.
Sullivan, 42 M.J. 360, 363 (C.A.A.F. 1996)). “Prosecutorial
misconduct is ‘action or inaction by a prosecutor in violation
of some legal norm or standard, e.g., a constitutional
10
United States v. Edmond, No. 03-0086/AR
provision, a statute, a Manual rule, or an applicable
professional ethics canon.’” Id. (quoting Meek, 44 M.J. at 5).
As the DuBay judge noted in his conclusions of law, this
court has held that “[s]everal legal norms are violated when a
trial counsel attempts to or unlawfully dissuades a defense
witness from testifying at a court-martial.” Meek, 44 M.J. at
5; see also Webb v. Texas, 409 U.S. 95, 98 (1972) (holding that
the defendant’s due process rights were violated when the trial
judge singled out the only defense witness and indicated to that
witness that he expected the witness to lie and would personally
ensure that the witness was prosecuted for perjury and thereby
“effectively drove that witness off the stand”); United States
v. Vavages, 151 F.3d 1185, 1189 (9th Cir. 1998) (concluding that
although perjury warnings are not improper per se, it may be
prosecutorial misconduct if “the prosecutor or trial judge
employs coercive or intimidating language or tactics that
substantially interfere with a defense witness’ decision whether
to testify”); United States v. Heller, 830 F.2d 150, 153-54
(11th Cir. 1987) (concluding that when a government agent
intentionally threatened and attempted to scare a defense
witness concerning his testimony on behalf of the defendant, the
defendant had “been deprived of an important defense witness by
substantial interference on the part of the government” and was
therefore entitled to a new trial); United States v. Hammond,
11
United States v. Edmond, No. 03-0086/AR
598 F.2d 1008, 1012-13 (5th Cir. 1979) (noting that
“‘substantial government interference with a defense witness’
free and unhampered choice to testify violates due process’
rights of the defendant” and concluding that a government
statement to a witness that he would have “nothing but trouble”
if he testified on behalf of defense requires reversal (quoting
United States v. Henricksen, 564 F.2d 197, 198 (5th Cir.
1977))); United States v. Morrison, 535 F.2d 223, 229 (3d Cir.
1976) (“[P]rosecutorial misconduct caused the defendant’s
principal witness to withhold out of fear of self-incrimination
testimony which would otherwise allegedly have been available to
the defendant.”).
The DuBay judge found no unlawful attempts by Bovarnick and
Beyea to dissuade McQueen from testifying, but rather found that
the purpose of the meeting among Bovarnick, Beyea and McQueen
was to inform McQueen that he could be prosecuted as a civilian
if he perjured himself. He also found that this warning was
given “to protect Mr. McQueen and not for the purpose of
influencing him against testifying” and that McQueen was not
threatened or intimidated in any way. Finally, he found that
McQueen did not testify because he did not want to be involved
in the prosecution of his friend and that regardless, “whatever
Mr. McQueen would have said, he could not have helped this
accused.”
12
United States v. Edmond, No. 03-0086/AR
Initially, it is questionable whether it was proper for
Bovarnick to warn McQueen about the consequences of perjury.
McQueen told Bovarnick he would have testified that he believed
he and Edmond had authorization to obtain the phones in
question. Bovarnick testified that this was contrary to the
testimony of two Government witnesses who would testify that
McQueen and Edmond did not have authority to obtain the phones,
but only the authority to look into getting the phones.
Bovarnick stated that because McQueen’s potential testimony
contradicted that of his witnesses, he believed it was a lie.
He told McQueen he knew McQueen was lying and if McQueen
testified as he proposed then he would be prosecuted for
perjury.
The United States Court of Appeals for the Ninth Circuit
has stated:
That [the witness]’s testimony would have
contradicted the testimony of the
government’s own witnesses does not form a
sufficient basis for the prosecutor’s
warning. Rather, unusually strong
admonitions against perjury are typically
justified only where the prosecutor has a
more substantial basis in the record for
believing the witness might lie -- for
instance, a direct conflict between the
witness’ proposed testimony and her own
prior testimony.
Vavages, 151 F.3d at 1190. Bovarnick has provided no basis for
concluding that McQueen’s testimony would be a lie other than
McQueen’s “demeanor” and the fact that his testimony
13
United States v. Edmond, No. 03-0086/AR
contradicted the testimony of Government witnesses. Bovarnick
did not testify that he relied on any evidence that McQueen had
previously stated he did not actually believe he and Edmond were
authorized to obtain the phones when they did so. In fact,
McQueen’s potential testimony was consistent with Edmond’s
version of events surrounding the acquisition of the cell phones
in his sworn statements made to investigators.
Even if the proposed testimony of the Government’s
witnesses was truthful -- that McQueen did not actually have
authority to obtain the phones -- that would not automatically
lead to the conclusion that McQueen was lying when he said that
he believed he had the authorization. It is not uncommon in
litigation, or in life in general, for individuals to have
different perceptions of the same event. The fact that two
witnesses have conflicting views of an event does not mean,
without more, that either witness is intentionally testifying
falsely. Here the difference in the testimony was that the
Government witnesses would testify that Edmond and McQueen were
only authorized to look into obtaining the cell phones while
McQueen would testify that he thought they had authority to
acquire the cell phones.
In addition, Bovarnick did more than simply give a perjury
warning to McQueen. He told him, “I know that that is a lie. .
. . I am going to make sure that the S.A.U.S.A. [Special
14
United States v. Edmond, No. 03-0086/AR
Assistant United States Attorney] sits in and listens to you
testify to that and then basically admonish you -- not admonish
you, but let him know what the potential repercussions would be
for committing perjury.” Following that, Beyea, the Special
Assistant United States Attorney, informed McQueen “of the
consequences of perjury based upon our information and belief
that McQueen was not going to be truthful.” She explained if he
perjured himself “the government would seek justice” even though
he was a civilian.
The United States Court of Appeals for the Ninth Circuit
has held that a prosecutor “substantially interfered” with a
witness’s decision to testify where he “combined a standard
admonition against perjury -- that [the defense witness] could
be prosecuted for perjury in the event she lied on the stand --
with an unambiguous statement of his belief that [the witness]
would be lying if she testified in support of [the defendant’s]
alibi.” Vavages, 151 F.3d at 1190. The court concluded that
“the additional statement served as no more than a thinly veiled
attempt to coerce a witness off the stand.” Id.Bovarnick and Beyea speculated that McQueen’s proposed
testimony was a lie and combined it with a warning that the
Government would prosecute McQueen if he testified. This
combination substantially interfered with McQueen’s decision to
testify by causing him to believe that if he went into the
15
United States v. Edmond, No. 03-0086/AR
courtroom and testified as he intended he would be “charged
again,” despite the fact that there were no grounds established
at the DuBay hearing to believe that he intended to do anything
other than testify truthfully.
We conclude, therefore, that the DuBay judge’s finding that
the purpose of the warning was to protect McQueen and not to
influence him not to testify was clearly erroneous. We conclude
that the trial counsel’s actions substantially interfered with
McQueen’s decision whether to testify and had the effect of
unlawfully dissuading a subpoenaed defense witness from
testifying at Edmond’s court-martial. See Meek, 44 M.J. at 5
(“Several legal norms are violated when a trial counsel attempts
to or unlawfully dissuades a defense witness from testifying at
a court-martial.”).5
We next turn to the DuBay judge’s finding that “McQueen did
not testify because he didn’t want to testify. Although I can’t
identify who gave Mr. McQueen the option to testify or not
testify, no one forced his decision one way or another.” This
5
We emphasize that our analysis is fact-specific, and that
prosecutors and military judges may provide appropriate
information to witnesses about the consequences of perjury.
“‘It is not improper per se for a trial court judge or
prosecuting attorney to advise prospective witnesses of the
penalties for testifying falsely. But warnings concerning the
dangers of perjury cannot be emphasized to the point where they
threaten and intimidate the witness into refusing to testify.’”
United States v. Hooks, 848 F.2d 785, 799 (7th Cir. 1988)
(quoting United States v. Blackwell, 694 F.2d 1325, 1334 (D.C.
Cir. 1982)).
16
United States v. Edmond, No. 03-0086/AR
finding is also inconsistent with the evidence before us.
Beyea’s affidavit clearly states that she and Bovarnick told
McQueen it was his “his decision about testifying at Edmond’s
court-martial.” McQueen testified Bovarnick told him he could
testify or not testify and he chose not to because he “didn’t
want to be there anyway.” The finding that it was impossible to
identify who gave McQueen the option to testify or not testify
is clearly erroneous as the record reflects that Bovarnick and
Beyea told him he had that option.
This conversation and the subsequent release of McQueen as
a witness are particularly problematic as McQueen was under a
subpoena requested by the defense and could not choose to leave
without testifying unless the defense agreed to release him and
the subpoena was quashed by the military judge. Under Rule for
Courts-Martial (R.C.M.) 703(b)(1), a party “is entitled to the
production of any witness whose testimony on a matter in issue
on the merits . . . would be relevant and necessary.” The trial
counsel is obligated to arrange for the presence of any witness
requested by the defense “unless the trial counsel contends that
the witness’ production is not required under this rule.”
R.C.M. 703(c)(2)(D). After subpoenaing McQueen on behalf of the
defense, Bovarnick was not authorized to tell McQueen that he
could choose to either testify or not testify.
17
United States v. Edmond, No. 03-0086/AR
While the record concerning the advisement and invocation
of McQueen’s Fifth Amendment rights is unclear, one thing is
certain -- nothing in the record reflects that any attorney
involved in this proceeding advised McQueen of his Fifth
Amendment rights and McQueen does not remember either being
advised of those rights or invoking them. Bovarnick testified
he did not advise McQueen of his rights nor did he know who
McQueen told that he was invoking his Fifth Amendment rights,
but that “he told somebody.” McQueen, however, only met that
day with Bovarnick and Beyea. Defense counsel did not meet with
McQueen at all that day and did not remember how he found out
that McQueen was going to invoke his rights. His only
recollection regarding McQueen’s decision not to testify was
that Bovarnick informed him that McQueen chose not to testify in
the case, but he did not inquire further into McQueen’s reasons
for this decision.
In summary, Bovarnick’s speculation that McQueen would
perjure himself does not provide a basis for telling McQueen he
did not have to testify. There is no evidence that McQueen had
been advised of or was invoking his Fifth Amendment rights when
Bovarnick told McQueen he was free to leave. Bovarnick’s
release of McQueen from the subpoena added to the substantial
interference with McQueen’s decision not to testify on behalf of
the defense.
18
United States v. Edmond, No. 03-0086/AR
Although we conclude that the prosecution’s actions
substantially interfered with McQueen’s decision whether or not
to testify, that does not end the prosecutorial misconduct
analysis. Even if we were to find misconduct on the part of the
prosecutor, this court will go on to look at the “overall effect
of counsel’s conduct on the trial, and not counsel’s personal
blameworthiness.” Thompkins, 58 M.J. at 47. “In assessing
prejudice, we look at the cumulative impact of any prosecutorial
misconduct on the accused’s substantial rights and the fairness
and integrity of his trial.” United States v. Fletcher, 62 M.J.
175, 184 (C.A.A.F. 2005). Our prosecutorial misconduct analysis
is closely intertwined with the question of whether Edmond’s
defense attorney was ineffective by failing to talk with a
potentially exculpatory defense witness before agreeing to
release the witness. We therefore need to assess the impact of
trial counsel’s actions on the integrity and fairness of
Edmond’s trial in light of the defense counsel’s inaction and
acquiescence in entering into the stipulation of fact that
McQueen would invoke his Fifth Amendment rights if called to
testify without personally discussing that decision with
McQueen.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
As noted, we apply the two-pronged test for ineffective
assistance of counsel set forth by the United States Supreme
19
United States v. Edmond, No. 03-0086/AR
Court in Strickland. Under this test “an appellant must show
that counsel’s performance fell below an objective standard of
reasonableness -- that counsel was not functioning as counsel
within the meaning of the Sixth Amendment” and the appellant
must demonstrate that “there is a reasonable probability that,
but for counsel’s error, there would have been a different
result.” Davis, 60 M.J. at 473. Our review of counsel’s
performance is highly deferential and is buttressed by a strong
presumption that counsel provided adequate professional service.
See United States v. Garcia, 59 M.J. 447, 450 (C.A.A.F. 2004).
The presumption of competence is rebutted by a showing of
specific errors made by defense counsel that were unreasonable
under prevailing professional norms. United States v.
McConnell, 55 M.J. 479, 482 (C.A.A.F. 2001).
We note that Appellant’s trial defense counsel, Libby,
testified at the DuBay hearing that he was informed by trial
counsel that McQueen did not want to testify in the case. He
admitted he did not speak to McQueen and receive this
information himself, but that he “probably should have.” He
also conceded he should have done more to preserve the record on
the question of whether and why McQueen was invoking his Fifth
Amendment rights in refusing to testify.
These admissions are striking in light of Libby’s stated
belief that McQueen had testimony that was favorable to his
20
United States v. Edmond, No. 03-0086/AR
client, even if he could not remember what that testimony would
have been. In fact, McQueen’s testimony at the DuBay hearing
revealed that he would have corroborated Edmond’s statements to
investigators that they believed they had been authorized to
obtain the cell phones and that they had no agreement to keep
the phones.
At the time of trial Libby requested that McQueen be
subpoenaed so that he could obtain his testimony on behalf of
Edmond. Despite this initial effort to secure McQueen’s
testimony, when Libby was informed that McQueen would not
testify he did not ask to meet with McQueen to determine the
substance of his testimony or whether he had been properly
advised of his Fifth Amendment rights or was in fact asserting
those rights. Instead, he entered into a stipulation of fact
that had the effect of releasing McQueen from his obligation to
testify and allowing a corroborating witness to leave the
courthouse without testifying.
The lower court concluded that entering into the
stipulation of fact was a reasonable tactical decision by the
defense. Edmond, No. ARMY 9900904, slip op. at 5-6. Libby,
however, never alleged at the DuBay hearing that he had made a
tactical decision, but rather admitted that he should have made
further inquiry into the events surrounding the stipulation of
fact. Furthermore, even if Libby ultimately might not have
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United States v. Edmond, No. 03-0086/AR
chosen to have McQueen testify, he certainly -- as Libby himself
admits -- “should have” looked into the question further and
taken “a better course of action for preserving the record.” We
see no reasonable explanation for his failure to look into the
issue further before entering into the stipulation of fact.
McQueen was present at the courthouse on the day of the
trial and Libby could easily have questioned him regarding his
decision not to testify. Because McQueen was a subpoenaed
defense witness, if Libby wanted him to testify he needed only
ask the military judge for a hearing regarding the reasons
behind McQueen’s refusal to testify and further inquiry would
have been made. See R.C.M. 703(b)(3); Military Rule of Evidence
804(a)(1). Instead, he entered into the stipulation of fact
without any objection thereby signifying his agreement to
McQueen’s departure. Libby’s failure to take simple steps to
secure the testimony of a witness that he had previously deemed
relevant and necessary to Edmond’s case fell measurably below
the level of performance we would expect of a lawyer, and
overcomes our presumption of competence. McConnell, 55 M.J. at
482.
The appropriate test for prejudice under Strickland is
whether there is a reasonable probability that, but for
counsel’s error, there would have been a different result.
Davis, 60 M.J. at 473; United States v. Quick, 59 M.J. 383, 387
22
United States v. Edmond, No. 03-0086/AR
(C.A.A.F. 2004). The result of Libby’s errors was that
McQueen’s testimony was never heard by the members. McQueen
would have testified that he and Edmond were tasked with
obtaining cell phones for the battalion and he believed they
were authorized to obtain them. He also would have stated that
at the time they obtained the phones they intended to return the
cell phones to the unit for their authorized use. He would have
testified there was no agreement between the two of them to keep
the cell phones, but after they were told the unit no longer
wanted the cell phones they simply kept the phones for their own
personal use. Finally, McQueen could not recall any
conversation between Edmond and himself during which they agreed
to misuse the telephones they had obtained.
McQueen’s proposed testimony raises questions as to certain
elements of Charge I (conspiracy to commit larceny) and Charge
IV (larceny). The specification of Charge I alleging a
conspiracy to commit larceny required that the two “entered into
an agreement . . . to commit an offense under the code.” Manual
for Courts-Martial, United States pt. IV, para. 5.b.(1) (2005
ed.) (MCM). McQueen specifically testified that the two never
formed an agreement and his testimony therefore could have
raised a question in the members’ minds as to whether this
element was met. Additionally, the second element of the
conspiracy charge, and the basis for the charge of larceny in
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United States v. Edmond, No. 03-0086/AR
Charge IV, required that the Government prove Edmond committed
larceny by “wrongfully” obtaining the cell phones using a
“misrepresentation” that he “knows . . . to be untrue. . . .”
See MCM pt. IV, para. 5.b.(2); MCM pt. IV, para. 46.b.(1),
c.(1)(e). McQueen’s testimony that he believed they were
authorized to obtain the phones could have raised a question in
the members’ minds as to whether the two of them obtained the
phones “wrongfully.”
We also cannot ignore the fact that trial defense counsel
did not just fail to secure McQueen’s testimony, he went on to
enter the stipulation of fact into evidence, thereby placing
before the members the information that Edmond’s coconspirator
could not testify without incriminating himself. Nor can we
ignore the fact that Bovarnick specifically told the members in
his closing argument that they could not hear from McQueen about
whether there was an agreement between him and Edmond to obtain
the cell phones because he had invoked his “right against self-
incrimination.”
Because McQueen’s testimony could have raised these
questions in the members’ minds, there is a reasonable
possibility that without Libby’s error there would have been a
different result. Therefore, we conclude that trial defense
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United States v. Edmond, No. 03-0086/AR
counsel provided ineffective assistance and we set aside the
guilty findings for Charge I and Charge IV.6
CONCLUSION
The decision of the United States Army Court of Criminal
Appeals is reversed as to Charge I and Charge IV, and the
findings of guilty to those charges and the sentence are set
aside. The record of trial is returned to the Judge Advocate
General of the Army for remand to the Court of Criminal Appeals.
That court may either dismiss Charge I and Charge IV and
reassess the sentence, or it may order a rehearing.
6
We note that Edmond was charged separately for wrongfully
disposing of the cellular telephones and wrongfully obtaining
service for the phones, and that these charges are not affected
by our decision today.
25