United States v. Weathersby , 1998 CCA LEXIS 212 ( 1998 )

OPINION OF THE COURT

JOHNSTON, Judge:

Contrary to his pleas, the appellant was convicted by a military judge sitting as a general court-martial of attempted forcible sodomy, two specifications of rape, and two specifications of assault, in violation of Articles 80, 120, and 128, Uniform Code of Military Justice, 10 U.S.C. §§ 880, 920, and 928 (1988) [hereinafter UCMJ]. The convening authority approved the adjudged sentence to a dishonorable discharge, confinement for twenty-six years, forfeiture of all pay and allowances, and reduction to Private El.

The appellant asserts, inter alia, that both of his trial defense counsel were ineffective because they presented no evidence during the sentencing phase of his court-martial. We conclude that appellant was deprived of the effective assistance of counsel during sentencing, and that the result of this trial was unreliable as to sentence.

Facts and Background

The appellant culminated his twenty-four-year Army career as the first sergeant of a Ranger training company. He had completed outproeessing and had attended his own retirement ceremony. He was on terminal leave awaiting discharge when the allegations that resulted in his court-martial came to light.

The appellant was being investigated for using excessive force in disciplining his children when an allegation arose concerning sexual abuse of his daughter, M, on numerous occasions. Ultimately, he was charged with numerous specifications concerning assault, attempted sodomy, rape, and adultery. During the trial on the merits, the defense counsel never placed good soldier evidence on the record. They objected when it appeared the prosecution would rebut a good soldier defense.

The critical issues in this ease arose during the sentencing phase of the court-martial. At the conclusion of the government ease on sentencing, trial defense counsel asked for a thirty-minute recess. When the court-martial resumed, the appellant took the witness stand and testified as follows:

ACC: Sir, I’m absolutely shocked. M you’ve always been my daughter and you know that. And you know I’ll always love you. Girl, God bless you. To my family you all are going to have to be strong. My friends, you know me. That’s all I have to say. Tell M that I love her.

The defense rested without offering any documentary evidence or presenting other witnesses. The government had no rebuttal.

The military judge did not question the trial defense counsel and the accused to determine whether this extraordinarily abbreviated defense presentation during sentencing was an intentional tactical decision. Instead, he recalled the victim and questioned her about her testimony. He concluded by asking her:

MJ: [Y]our father would not be convicted and therefore I would not be able to punish him and shouldn’t be able to punish him except based upon your sworn testimony. Do you understand that?

M: Yes.

MJ: Did your father do to you what you said that he did?

M: Yes he did.

MJ: Okay. You may resume your seat.¹

Immediately thereafter, counsel presented their sentencing arguments. Government counsel repeatedly emphasized the egregious nature of the offenses. Counsel urged the military judge to impose a dishonorable discharge, total forfeitures, reduction to El, and confinement “for at least 50 years.” Defense argument, on the other hand, apparently lasted approximately two minutes.² Counsel urged the military judge to impose no more than ten years of confinement.

On appeal, the appellant supported his assertion of ineffective assistance of counsel with numerous affidavits from persons who could have been witnesses during the sentencing phase of his court-martial. On 30 January 1997, we reviewed the record and the materials submitted by the appellant and found, in accordance with United States v. Lewis, 42 M.J. 1, 6 (1995), sufficient evidence, which if unrebutted, would overcome the presumption of competence of counsel. Consequently, we ordered the production of affidavits from both trial defense counsel to answer the allegations of ineffective assistance raised by the appellant.

Ineffective Assistance of Counsel

In order to prevail on an ineffective assistance of counsel claim, the appellant bears the heavy burden of meeting both prongs of a two-part test: that the performance of his counsel was deficient and that he was prejudiced thereby. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); United States v. Scott, 24 M.J. 186 (C.M.A.1987).

The deficient performance prong of this test requires a showing that counsel’s errors were so serious that they were not functioning as the “counsel” guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. The competence of counsel is presumed. To make out a claim of ineffective assistance of counsel, the accused must rebut the presumption by pointing out specific errors made by his defense counsel which were unreasonable under prevailing professional norms. United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). The reasonableness of counsel’s performance is to be evaluated from counsel’s perspective at the time of the alleged error and in light of all the circumstances. In making the competence determination, we are required to keep in mind the guidance of the Supreme Court: “[C]ounsel’s function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case.” Strickland, 466 U.S. at 690, 104 S.Ct. 2052. See also Scott, 24 M.J. at 188.

The prejudice prong of the test for ineffective assistance of counsel requires a showing that the counsel’s errors were so serious as to deprive the accused of a fair trial, a trial whose result is reliable. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. The test is whether “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.” Id., 466 U.S. at 694, 104 S.Ct. 2052. We ensure that the result of trial is reliable by “ensuring that the trial process was truly adversarial.” United States v. Holt, 33 M.J. 400, 409 (C.M.A.1991). This involves advocacy.

The appellant contends, in part, that both of his counsel were deficient in their performance because they did not present any evidence of good military character and failed to present any evidence during the sentencing phase of trial.

We agree with appellant’s assertion that counsel failed to present evidence of his good military character during the defense presentation on the merits. Military practice allows the introduction of good military character evidence by the defense in order to create reasonable doubt about the allegations against an accused. United States v. Benedict, 27 M.J. 253 (C.M.A.1988); United States v. Court, 24 M.J. 11 (C.M.A.1987); United States v. Belz, 20 M.J. 33 (C.M.A.1985).

The affidavits supplied by counsel in responding to assertions of ineffective assistance, however, indicate that the decision not to use good military character evidence was premised on concerns about rebuttal in the form of information about an adulterous relationship with a subordinate. Portions of those affidavits appear to be based on hindsight rather than on an accurate appraisal of the trial tactics as they existed at the time of the court-martial.³

While the decision not to use good military character evidence may or may not have been wise, we are not prepared to say that counsel’s performance departed significantly from the standard expected. Counsel evaluated the good character evidence, at least in part, and decided not to pursue that tactic at trial. That decision was based on a reasoned evaluation of the good or bad results at trial that could flow from using such evidence. We will not second-guess defense counsel’s tactical decisions. United States v. Rivas, 3 M.J. 282, 289 (C.M.A.1977).⁴ Thus, counsel’s tactical decision during the findings phase of trial not to use good character evidence did not run afoul of prong one of the ineffective assistance of counsel standard.

Although counsel’s performance during the merits of the case was not deficient, their failure to present matters in extenuation and mitigation during the sentencing phase of trial raises concerns about a breakdown in the adversarial process. The American Bar Association (ABA) Standards of Criminal Justice specify the duties of defense counsel during sentencing. Defense counsel should:

take particular care to make certain that the record of the sentencing proceedings will accurately reflect all relevant mitigating circumstances relating either to the offense or to the characteristics of the defendant which were not disclosed during the guilt phase of the case.

3 American Bar Association Standards for Criminal Justice, 18-6.3(f)(n)(2d ed.l980)[hereinafter ABA Standards]. The standards note the importance of the record for both the trial judge and others.

The attorney should satisfy himself or herself that the factual basis for the sentence will be adequate both for the purposes of the sentencing court and, to the extent ascertainable, for the purposes of subsequent dispositional authorities.

ABA Standard 18-6.3(f)(ii). The ABA Standards are applicable to military trial and defense counsel to the extent they do not conflict with the Manual for Courts-Martial, United States, or the UCMJ. See Army Reg. 27-10, Legal Services: Military Justice, para. 5-8e (24 June 1996).

Rule for Courts-Martial 1001 governs pre-sentencing procedure during courts-martial. Rule for Courts-Martial 1001(c)(1)(B) allows the defense to present matter in mitigation. Such matter is introduced in order to lessen the punishment to be adjudged by the court-martial, or to furnish grounds for a recommendation of clemency. Matter in mitigation includes:

particular acts of good conduct or bravery and evidence of the reputation or record of the accused in the service for efficiency, fidelity, subordination, temperance, courage, or any other trait that is desirable in a servicemember.

R.C.M. 1001(c)(1)(B).

Although the appellant had twenty-four years of service at the time of trial, trial defense counsel failed to present any matter in mitigation to the military judge during the sentencing phase of trial. Based on our review of the record and affidavits supplied by counsel, we conclude that counsel also failed to take adequate steps to identify potential matter in mitigation or to evaluate adequately information that had been brought to their attention. See United States v. Palenius, 2 M.J. 86, 90 (C.M.A.1977).

Counsel seek to excuse their deficient performance, in part, by placing the burden of effective advocacy on the appellant — i.e., he did not provide them with any documents or tell them of any good witnesses, so they did not call any witnesses or present any matter in mitigation. An accused, however, may not fully understand the sentencing process and may act contrary to his own interests by being uncooperative and closemouthed. Counsel do not satisfy their professional obligation to zealously represent their client’s interests during sentencing merely by reacting to information supplied by a reluctant client. Whether the client is unable or unwilling to assist them, counsel must exert reasonable efforts on behalf of their client.⁵

Trial defense counsel’s efforts during sentencing also must be commensurate with the potential sentence and its collateral consequences. The appellant’s assertion that his counsel failed in this regard is corroborated by the trial transcript. The record consists of 1021 pages reflecting a hotly contested trial covering seven separate days of hearings. Although the appellant was facing the maximum punishment of confinement for life and the potential loss of all retirement benefits, the defense case during sentencing consisted of only fifty-four words contained in the appellant’s unsworn statement to the court. While trial defense counsel have sought to justify their actions and lack of a significant sentencing case as tactical decisions, not all their conduct conforms with the goals expressed by the ABA Standards.

Counsel state many times in them affidavits rebutting alleged ineffective assistance of counsel that matters in mitigation would have made no difference in this trial before this particular military judge. One counsel’s belief was based upon his association with the trial judge and his knowledge of the trial judge’s sentencing philosophy. Counsel’s belief, if accurate, involves circular reasoning, as the military judge may not properly consider that which is not presented to him.⁶ A military judge must consider all matters in extenuation, mitigation, and aggravation, whether introduced before or after findings.⁷ Trial defense counsel’s reason for failing to submit matter in mitigation — a categorical determination that mitigation evidence would have no effect on this particular military judge — is unacceptable.⁸

Matter in mitigation is presented not only for the benefit of the trial judge, but also for the convening authority in determining whether to grant clemency, and for this court in fulfilling its obligation under Article 66, UCMJ. Matter in mitigation has the effect of placing the “whole man” before the military judge and other sentencing authorities. Counsel’s obligation in this regard is to present to the court all factors and circumstances necessary to ensure the proper functioning of the adversarial process.

We could affirm the sentence in this case if we were satisfied that counsel had: (1) exerted reasonable means to identify potentially favorable evidence for use during sentencing; (2) adequately evaluated such evidence in the light of professional judgment and experience as applied to this particular case; and (3) made a reasoned tactical decision to use or not to use such evidence on the merits or during sentencing. See, e.g., Burger v. Kemp, 483 U.S. 776, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987). In this case, the first step may have required the preparation of witnesses and affidavits, the discovery and perusal of documentary evidence, and consultation with psychiatric or other clinical experts to evaluate the appellant’s sexual predilections. Because counsel apparently failed to do the first, they could not do the second or third in an adequate manner.⁹

Because of our disposition of the assigned error, we need not consider the other errors raised by the appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.1982).

The findings of guilty are affirmed.¹⁰ The sentence is set aside. A rehearing on the sentence may be ordered by the same or a different convening authority.

1 . We are satisfied that the questions by the military judge amounted to reconsideration of the findings of guilt.

2 . The duration of an argument during sentencing may have no relationship to its effectiveness. We are satisfied that the sentencing argument presented in this case by trial defense counsel, although not a model for emulation, was not deficient performance per se. Our analysis of a deficient performance during sentencing focuses on the failure to present witnesses and documentation that could be referred to during argument.

3 . The concern about rebuttal may not have been well-founded. Appellate defense counsel stated during oral argument that the affair began after the appellant had his retirement ceremony and was on terminal leave. He had been separated from his wife for several years at that time. These facts would not support an adultery charge under Article 134, UCMJ. According to counsel, the child was born four months after trial. Appellant’s clemency submission pursuant to Rule for Courts-Martial 1105 [hereinafter R.C.M.] indicates that the appellant acknowledged paternity and named the child Albert Jr.

4 . "Where inaction occurs at a critical point where action is compelled by the situation— where, in other words, defense counsel remains silent where there is no realistic strategic or tactical decision to make but to speak up — then the accused has been denied " 'the exercise of the customary skill and knowledge that prevails ... ’ 'within the range of competence demanded of attorneys in criminal cases.’ ” ” Rivas, 3 M.J. at 289 (quoting United States v. Walker, 21 U.S.C.M.A. 376, 45 C.M.R. 150, 152, 1972 WL 14145 (1972)). See also McMann v. Richardson, 397 U.S. 759, 770-71, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970).

5 . What is reasonable may depend, in part, on the degree of cooperation by the client. This is especially true if counsel explain the need for cooperation and the potential effect if it is lacking.

6 . Trial defense counsel confuse the role of an advisor — i.e., what the likely outcome will be— with that of an advocate who must represent an accused’s interest in creating a complete record that may shape disposition by reviewing and appellate authorities.

7 . If a military judge refuses, as a matter of course, to adequately consider matter in mitigation, then that judge could be challenged for having an inelastic attitude toward sentencing.

8 . A military judge must consider the "whole man” during sentencing to ensure that individualized sentencing occurs based on the facts and the particular accused before the trial court. If a military judge discourages counsel from performing their sentencing obligations because of a known or perceived affinity for "succinct, pointed presentations" that expedite sentencing, then the sentencing proceedings may not be reliable in producing a just result. See United States v. Holt, 33 M.J. 400, 412 (C.M.A.1991). As Senior Judge Fulton noted, it is not appropriate that "expediting the trial should be made to loom larger in the sentencing process than those factors relating to the individual accused and the circumstances surrounding his offense.” United States v. Caruth, 4 M.J. 924, 929 (A.C.M.R.1978).

9 . We reach this conclusion on the basis of un-controverted facts in the affidavits and the record of trial. See United States v. Ginn, 47 M.J. 236 (1997).

10 . Ineffective assistance of counsel after findings of guilty may be sufficiently isolated as to permit affirming the findings of guilt. Holt, 33 M.J. 400.