(dissenting):
I dissent.
We granted review in this case upon four issues, the last three of which have since been determined adversely to the accused by our opinions in United States v Cleckley, 8 USCMA 83, 23 CMR 307; United States v Giles, 8 USCMA 92, 23 CMR 316; and allied cases. My colleagues, however, on the strength of their views in United States v Lovett, 7 USCMA 704, 23 CMR 168, and United States v Thornton, 8 USCMA 67, 23 CMR 281, elect to reverse this conviction because of ineffective assistance of counsel, and with this disposition I am unable to agree.
On this record, I am not willing to brand trial defense counsel with the stigma of improper representation, as there is no factual base to support that charge. My views on that question are spelled out at length in my separate opinions in Lovett, supra, and Thornton, supra, and they need not be stated anew. The only additional point I care to mention is that in this case we have been furnished with a starting point to remove speculation and conjecture. A petition for new trial has been filed, and affidavits and counter-affidavits have been obtained from the accused and trial defense counsel. If considered by the Court as an inadequate base for an informed opinion, they are sufficient to initiate an appropriate way of reaching the truth. Accordingly, I would proceed on accused’s petition for new trial, which he has urged as alternative relief, in order that we be able to make an enlightened determination of the contested issue.