United States v. Gibson , 1997 CAAF LEXIS 23 ( 1997 )

Opinion of the Court

COX, Chief Judge:

Appellant was tried at Fort Lewis, Washington, by a special court-martial composed of officer members. Contrary to his pleas, he was convicted of making a false official statement and wearing an unauthorized military badge (the parachutist badge), in violation of Articles 107 and 134, Uniform Code of Military Justice, 10 USC §§ 907 and 934, respectively. He was sentenced to a bad-conduct discharge and reduction to E-l. The convening authority approved the sentence. The Court of Criminal Appeals affirmed without opinion.

Appellant claims that he was denied effective assistance of counsel because trial defense counsel failed to offer certain service-record documents into evidence or call a personnel officer as an expert witness to testify regarding preparation of those documents. We disagree with appellant’s contention.

Appellant bears the burden of proving ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Counsel is presumed competent until proven otherwise. Id. at 689, 104 S.Ct. at 2065; United States v. Jefferson, 13 MJ 1 (CMA 1982). In order to prevail on a claim of ineffective assistance of counsel, appellant must present evidence that satisfies the two-prong test set out by the Supreme Court in Strickland. See United States v. Ingham, 42 MJ 218, 223 (1995); United States v. Babbitt, 26 MJ 157,158 (CMA 1988); United States v. Scott, 24 MJ 186, 188 (CMA 1987). First, appellant must show that counsel’s performance was deficient. “This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Second, appellant must demonstrate that this deficient performance resulted in prejudice. “This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Failure to meet both prongs of the test is fatal to appellant’s claim. Strickland, supra at 687, 104 S.Ct. at 2064.

Here, appellant has failed even to meet the first prong. There is no indication anywhere in the record how trial defense counsel’s failure to introduce documents, that were cumulative to the evidence already adduced by the defense, resulted in “errors so serious that counsel was not functioning as the ‘counsel’ guaranteed ... by the Sixth Amendment.” Strickland, supra at 687, 104 S.Ct. at 2064. Additionally, the documents that appellant argues were vital to his defense were not original service documents. Rather, they were documents that had been reconstructed, based primarily on second-hand information provided by appellant to the personnel clerks who prepared the records. Thus, the documents would have added nothing to appellant’s testimony during trial and, in fact, were based upon that exact same evidence. As to appellant’s claim that an expert witness in service-record document preparation should have been called, use of an “expert” witness regarding this practice could have severely undercut appellant’s claim of entitlement to the parachutist badge. Therefore, it is just as probable that counsel made a tactical decision not to introduce the service records rather than compound the evidence that appellant had falsely claimed entitlement to the parachutist badge.

Regardless, appellant has not met the first prong of the Strickland test requiring that he show counsel deficiency. Therefore, we need not address any claim of prejudice.

The decision of the United States Army Court of Criminal Appeals is affirmed.

Judges CRAWFORD, GIERKE, and EFFRON concur.