United States v. Radford

COOK, Judge

(dissenting):

I am not at all averse to application of the ABA Standards to military justice practice, but I have cautioned that such standards cannot be applied mechanically as a ground for reversal of an otherwise valid conviction. See my separate opinion in United States v. Heard, 3 M.J. 14, 25 (C.M. A.1977). Here, the majority’s identification of appropriate ABA Standards for application to military practice is only part of the inquiry required. The Court must examine the record of trial in its entirety to determine whether the accused was deprived of effective assistance of counsel, in violation of the Sixth Amendment, and whether he was deprived of a fair trial, in violation of the due-process protection accorded by the Fifth Amendment. United States v. Clayborne, 509 F.2d 473 (D.C.Cir.1974); United States v. Young, 482 F.2d 993 (5th Cir. 1973); Thornton v. United States, 357 A.2d 429 (D.C.1976); Kime v. Brewer, 182 N.W.2d 154 (Iowa 1970); see also Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L. Ed. 680 (1942); United States v. Brooks, 2 M. J. 102 (C.M.A.1977).

My examination of the record, which covers two trials, leads me to conclude that the accused received a vigorous and effective defense by his counsel. United States v. Young, supra at 996. The case against the accused was largely dependent upon the testimony of an informer. At both trials, counsel conducted a spirited cross-examination of the informer and the other prosecution witnesses; he argued cogently against evidence of uncharged misconduct, which came from an answer by a prosecution witness in open court, and succeeded in securing a mistrial. At the second trial, counsel challenged an additional charge and obtained its dismissal by the trial judge; he conducted a thorough voir dire of the court members and succeeded in having challenges for cause sustained; he resisted the introduction of prosecution exhibits and managed to exclude a memorandum of a conviction from a British magistrates’ court.1 Considering the record as a whole, defense counsel conducted himself in an able and professional manner. The question of the adequacy of his representation was raised for the first time on appeal. Accused did not specifically complain of his representation at trial; in fact, aside from one statement made to the military judge during a closed session, accused appears to have willingly cooperated and to have been well-satisfied with his counsel throughout the case.

As to the matter highlighted by the majority, it appears that defense counsel did not anticipate the extent of the testimony to be presented by the accused. At the conclusion of the prosecution’s case, defense counsel informed the court that “the accused would like to take the stand and tell his side of the story.” Accused proceeded to do so in a narrative manner, without participation by the defense counsel. Only toward the end of the narrative did accused testify that he got off work at 5:00 p.m., and that he had dinner with a friend, showered, and accompanied the friend to a British pub later in the evening. He did not specifically, during the testimony-in-chief, relate his actions to the times specified by the informer as to when the sale of hashish took place. He did, however, deny outright selling the hashish to the informer.

*330Upon cross-examination by the trial counsel, the accused went into further detail and stated that he did not get off work until after 5:00 p.m. After that, in responding to questions from the court, he became more specific as to times during which he was in the company of his friend. Also during this testimony, there was evidence presented as to when he had turned in his tool box on the flight line. It was only after a further recross-examination by trial counsel that the military judge raised the point that the defense was apparently offering an alibi defense and asked if it had given notice to the prosecution in advance, as required by local court rule. Defense counsel responded that the accused was not raising an alibi defense as to the specific times related by the informer. When the military judge asked if the accused were not denying that he was somewhere else in contradiction to the informer’s testimony, defense counsel requested and was granted a hearing out of the presence of the court members. It was at this point that the defense counsel indicated that he could not ethically present an alibi defense and told the judge that if he were forced to use the defense of alibi and call witnesses in support of it, he wished to be excused.

I agree that the military judge, in the face of defense counsel’s request to be excused, should have conducted an inquiry of the accused to determine whether there had been an irreconcilable conflict between them which might impair defense counsel’s ability to adequately provide assistance to the accused;2 however, I do not believe the failure to do so mandates reversal in light of defense counsel’s action following this interchange. Thornton v. United States, supra; Brown v. United States, 264 F.2d 363, 367-69 (D.C.Cir.1959) (Burger, J., concurring in part), cert. denied, 360 U.S. 911, 79 S.Ct. 1299, 3 L.Ed.2d 1262 (1959).

When the prosecution brought in evidence concerning the records of accused’s squadron which reflected times for returning tool boxes, defense counsel strongly resisted the inferences which might be drawn by the factfinders from the evidence showing the accused had turned in his toolbox at 4:00 p.m. on the day in question. When the prosecution called witnesses who attempted to testify as to the duty hours and the normal procedures for tool box turn-in within the squadron, defense counsel was able, through cross-examination, to bring out the fact that none of the witnesses could specifically testify as to when the accused left the flight line on the particular day. Further, in rebuttal, the defense called a witness to testify to the fact that the tool boxes were often turned in before the users went off duty because of the shortage of tools in the squadron. When the prosecution brought in witnesses to testify as to the accused’s reputation for truth and veracity, defense counsel materially minimized the effect of their testimony by clever cross-examination. In closing, defense counsel argued against the credibility of the informer and in support of the lack of specificity as to times related by the prosecution witnesses. In total, it can fairly be said that he did use “all honorable means to see that justice .. . [was] done.” United States v. Clayborne, supra at 478; United States v. Mitchell, 16 U.S.C.M.A. 302, 36 C.M.R. 458 (1966). I believe that he provided adequate and effective assistance to the accused throughout the trial. Thornton v. United States and United States v. Young, both supra.

*331Turning to whether the accused received a fair trial, we must examine the possibility of prejudice to the accused which flowed from the military judge’s announcement before the triers of fact that the accused had presented “the sudden introduction of the defense of alibi.” It is clear that counsel cannot indicate before the triers of fact his belief that his client is committing perjury. See United States v. Winchester, 12 U.S.C.M.A. 74, 30 C.M.R. 74 (1961); Lowery v. Cardwell, 575 F.2d 727 (9th Cir.1978). Here, all defense counsel did before the triers of fact was to characterize the accused’s narrative testimony as not raising an alibi as to the specific times. However, this statement of the defense counsel must be read in context with the later declaration of the military judge in deciding whether the accused was denied a fair trial because of any unfair implications as to the veracity of his testimony. I note that the trial counsel went to considerable effort to disprove the accused’s assertions that he was not in his room at the time the informer said he purchased the hashish from him. In point of fact, a considerable portion of the trial was taken up with this issue. Considered in its totality, I do not believe that either the defense counsel’s comments or the trial judge’s statement could have conveyed the impression to the court members that the accused had lied on the stand. Instead, the record indicates all the trial participants considered this a factual issue which the Government was required to disprove as part of the overall burden of proof beyond a reasonable doubt. The issue of alibi was argued by both counsel in closing arguments on the findings and was instructed upon by the military judge correctly prior to the closing of the court for deliberation. The possible indication of the weight given by the court members to the aforementioned remarks is found in the fact that the court acquitted the accused of the specification alleging possession of hashish and convicted only on the specification of sale of hashish. Obviously some members of the court must have given some credit to the accused’s testimony to have arrived at such a verdict.

Applying the tests that I believe are mandated here, I am convinced that the accused was not denied effective representation by counsel; I am also convinced that he received a fair trial. Accordingly, I would affirm the decision of the United States Air Force Court of Military Review. See Articles 59(a) and 67(d), Uniform Code of Military Justice, 10 U.S.C. §§ 859(a) and 867(d), respectively.

. The fact of accused’s conviction was used by trial counsel on cross-examination to impeach the accused’s credibility.

. When the question of continued effective assistance of counsel is voiced, the Court has a duty to inquire into its basis. Thornton v. United States, 357 A.2d 429 (D.C.1976); Brown v. United States, 264 F.2d 363 (D.C.Cir.1959), cert. denied, 360 U.S. 911, 79 S.Ct. 1299, 3 L.Ed.2d 1262 (1959). The trial judge is required to ascertain the basis of the request and to rule on the reasons rather than on a naked request. Thornton v. United States and Brown v. United States, both supra. There must be good cause for change of counsel after trial has begun, such as conflict of interest, a complete breakdown of communications, or an irreconcilable conflict which leads to an apparently unjust verdict. United States v. Catabro, 467 F.2d 973 (2d Cir.1972), cert. denied, 410 U.S. 926, 93 S.Ct. 1358, 35 L.Ed.2d 587 (1973). However, the decision whether to appoint a different counsel is within the sound discretion of the trial judge, absent a clear Sixth-Amendment violation. United States v. Young, 482 F.2d 993 (5th Cir.1973). See United States v. Evans, 1 M.J. 206 (C.M.A.1975).