

   
   
   
   U.S. v. Brownfield



IN THE CASE OF
UNITED STATES, Appellee
v.
Craig D. BROWNFIELD, Seaman Apprentice
U. S. Navy, Appellant
 
No. 98-0795
Crim. App. No. 93-1483
 
THE UNITED STATES COURT OF APPEALS FOR THE
ARMED FORCES
Argued May 12, 1999
Decided September 28, 1999
COX, C.J., delivered the opinion of the
Court, in which SULLIVAN, CRAWFORD, GIERKE, and EFFRON, JJ., joined.

Counsel
For Appellant: Lieutenant Junior Grade M.
Eric Eversole, JAGC, USNR (argued); Lieutenant Commander R.C. Klant,
JAGC, USN (on brief); Lieutenant Jeffrey K. Van Nest, JAGC, USN.
For Appellee: Lieutenant Margaret E. Jolly,
JAGC, USNR (argued); Colonel Kevin M. Sandkuhler, USMC, and Commander
Eugene E. Irvin, JAGC, USN (on brief); Captain Paul D. Kovac,
USMC.
Military Judges: D.J. Slown and N.H. Kelstrom
 

THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE PUBLICATION.
 
 

Chief Judge COX delivered the opinion of the Court.
Contrary to his pleas, appellant was convicted
at special court-martial by a military judge sitting alone of one specification
of making a false official statement and three specifications of carnal
knowledge.1/
Appellant was sentenced to confinement for 3 months, forfeiture of $520.00
pay per month for a period of 3 months, reduction to paygrade E-1, and
to be discharged from the Navy with a bad-conduct discharge. The convening
authority approved the adjudged sentence.
The Court of Criminal Appeals ordered a DuBay
2/
hearing on December 21, 1994, to investigate appellants claim of ineffective
assistance of counsel. At the DuBay hearing, three persons testified:
(1) the original detailed trial defense counsel; (2) appellants former
Navy friend -- Mr. David Belton; and (3) appellant. Additionally, the parties
entered into a stipulation of expected testimony to address the substance
of appellants meeting during trial with defense counsels supervisor.
If called to testify, the supervisor would have stated that she had a conversation
with appellant during trial, in which appellant appeared upset because
he perceived his defense counsel was angry at him for not accepting a favorable
plea agreement, and was yelling at him. She also stated, however, that
appellant did not complain about his defense counsels performance and
stated to her that he believed his defense counsel was competent and ready
to go to trial.
After the DuBay hearing was completed,
the court below affirmed appellants convictions, essentially finding that
while appellants trial defense counsel was deficient in some areas, these
deficiencies did not prejudice appellant under all of the circumstances.
That court also found that the military judge did not abuse his discretion
in denying a continuance request to locate the alibi witness, although
that court opined that if the military judge had granted the request, he
could have avoided the expenditure of significant resources in connection
with this litigation. Unpub. op. at 8.
We granted three issues.3/
Appellant asks this Court to set aside his convictions because: (1) he
alleges that he received
ineffective assistance of counsel when his
counsel failed to interview and secure the presence of an alibi witness
for the trial; (2) his counsel failed to properly assist him in submitting
clemency matters; and (3) the military judge erred in not providing appellant
a continuance to secure production of the alibi witness.
We address these issues seriatim.

DISCUSSION
I
For counsel to be found ineffective at trial,
two questions must be answered: (1) whether counsel was reasonably competent,
and (2) if not, whether the accused was prejudiced. Strickland v. Washington,
466 U.S. 668, 687 (1984); see United States v. Scott, 24
MJ 186, 188 (CMA 1987). A conclusion that prejudice occurred is measured
by whether counsels performance was so deficient that the trial is unreliable
and the result unjust. 466 U.S. at 686. Counsel is strongly presumed to
be competent unless an appellant can rebut this presumption and show otherwise.
Id.
at 689. To accomplish this, an appellant must point out specific errors
made by his defense counsel that were unreasonable "under prevailing professional
norms." Id.
In this case, appellant alleges that his counsels
failure to track down an "alibi" witness constituted ineffective assistance
of counsel. At trial, appellant defended against one of the carnal knowledge
specifications by asserting that he was not in the specified barracks room
on the date charged and at the times alleged. Appellant told his counsel
that Seaman Belton, who was a friend of appellants from the barracks,
would corroborate appellants testimony that he was not present in the
specified barracks room with the victim on one of the relevant dates. Counsel
attempted to repeatedly phone this witness in an attempt to interview him,
but to no avail.
We first examine whether counsels actions
were deficient in that he failed to pursue this witness. Defense counsel
must perform a reasonable investigation, or make a reasonable decision
that an avenue of investigation is unnecessary. Scott, 24 MJ at
188. In United States v. Wean, and in Scott, we held that
not pursuing the existence of a potential alibi witness is deficient performance.
45 MJ 461, 466, 473-77 (1997); 24 MJ at 193.
In Scott, civilian defense counsel had
not initiated investigation to support the accuseds alibi that he was
shopping at various local stores for birthday presents for his wife while
the crime Scott was charged with -- the abduction and rape of a co-workers
wife -- was taking place. The victim-wife had equivocally identified the
assailant as being Scott. She chose him from a photo line-up in what was
a cross-racial identification, initially made under stressful conditions,
and at night. 24 MJ at 193. We held that, under these circumstances, failure
to pursue the alibi defense cast doubt on the reliability of the "adversarial
testing process of the trial." Id.
In Wean, the accused was charged with
and convicted of committing various indecent acts with children under the
age of 16. In that case, civilian defense counsel failed to call rebuttal
child sexual abuse experts, failed to challenge proposed theories based
on controversial "play therapy," and failed to interview and consider presenting
the testimony of an "alibi" witness who was present in the accuseds home
daily for extended periods of time. 45 MJ at 464. Weans wife provided
the civilian defense counsel with a list of potential witnesses, including
Mrs. Weans next door neighbor, Mrs. Price, who was present in the Wean
home every day for up to 12 hours. Mrs. Price had her own newborn baby
and would visit and sometimes assist the accuseds wife in her home-based
daycare operation.
The charges in Wean were partially substantiated
by suggestive identification methods and the accuseds access to these
children in his home. Mrs. Price would have testified that the accused
did not have sufficient opportunity to be alone with the children while
they were at his home. We held that failure to pursue this witness, in
addition to the cumulative effect of other deficiencies by civilian defense
counsel in this case, led to an unreliable result. Id.
Prejudice was apparent in both of these cases
because of the specific weaknesses in each case. Thus, we reversed based
upon the prejudice caused by failure to introduce this evidence to contradict
the government weaknesses in each of these cases.
In the case at hand, we once again apply the
two-part test of Strickland to determine whether counsel was ineffective,
and if so, whether counsels deficiencies resulted in prejudicial error
requiring reversal. 466 U.S. at 687. This case, however, is distinguishable
from both Scott and Wean. In the case sub judice,
we need not address the first prong of the Strickland test, because
here there was no discernible prejudice.
Defense counsel was notified by his client
that Seaman Belton, a friend and barracks mate of appellant, would testify
that appellant did not know the complainant in this case at the time that
two of the three offenses allegedly occurred, and he was never alone with
the complainant in Seaman Beltons barracks room, as she had alleged. During
the pretrial preparations in this case, defense counsel attempted to contact
Seaman Belton on many occasions, but to no avail. However, he never enlisted
the aid of the command to order Seaman Belton to come to his office, nor
did he include Seaman Beltons name on the list of witnesses submitted
to trial counsel for production at the court-martial.
It is apparent here that counsel exercised
some effort to locate Seaman Belton in this case, but counsel was unable
to locate this witness. In fact, the DuBay judge opined that this
witness most likely did not want to be found. It is thus unclear and unnecessary
to determine whether the first prong of Strickland has been met.
It is the second part of the Strickland test requiring prejudice
in which appellants claim lacks. Seaman Belton was called as a witness
at the DuBay hearing that had been ordered by the lower court. At
this hearing, Seaman Belton testified partially consistently with the way
that appellant suggested he might testify, but then also contradicted appellants
version of events in several instances. For example, Seaman Belton testified
that on one of the nights in question, appellant was not alone with the
complainant in his barracks room. This testimony provides some support
for appellants version of events. On the other hand, Seaman Belton contradicted
appellants claim about when he first met the complainant. Belton placed
the date approximately 10 days earlier than appellant claimed. This testimony
would have severely undermined appellants credibility and case.
Moreover, the military judge at the DuBay
hearing found that Seaman Belton had "credibility problems" of his own.
In his findings of fact, the military judge mentioned that Seaman Belton
testified the victim and her friend came by his barracks room looking for
appellant. Seaman Belton also stated that he had never met the victim prior
to this date. When questioned by the military judge as to how the victim
would have known where Seaman Beltons room was, Belton responded that
he had "no idea."
The military judge found that Beltons testimony
in this regard was "unbelievable." Especially noteworthy is the fact that
there was testimony given by the victims friend at trial that she had
engaged in sexual relations with Belton on the same evening that the victim
and appellant were also engaged in intercourse on the other side of the
same room. Even Belton corroborated that he had had intercourse with the
victims friend on the evening of December 27, 1992. He merely denied that
anyone else was in his barracks room at the time.
These credibility problems caused the Court
of Criminal Appeals to conclude that Seaman Beltons testimony would not
have provided much assistance to appellant.
We accept the factual findings of the DuBay
military judge unless clearly erroneous. Here, there is no reason to second-guess
the credibility determinations of the DuBay military judge. The
record clearly supports his findings and conclusions. Moreover, we agree
with the legal analysis made by the court below.
Clearly, under these circumstances, there was
no prejudice in not calling Belton as a witness at trial.

II
We next turn to whether the military judge
abused his discretion in not granting the defense request for a continuance
to allow for the production of Seaman Belton.
At trial, in a motion for continuance made
to the military judge, defense counsel represented that this witness would
corroborate appellants position that he was not alone with the victim
in the barracks room on the alleged dates. Defense counsel requested the
continuance in order to secure this witnesss presence at trial, asserting
that the witness had been allowed to go on leave and could be relevant
to appellants defense. Upon further questioning by the military judge
about the particulars of what this witness would say, defense counsel admitted
that he had not yet had the opportunity to speak personally with this proposed
witness. Defense counsel also admitted he had not included this witnesss
name on his formal request to produce witnesses because the Government
had originally intended to call this witness. The Government notified defense
counsel before trial that it had decided not to call this witness, even
though there is no legal requirement to do so.
The military judge denied the request for a
continuance, but left counsel the opportunity to reopen his request if
he could provide further information about this witnesss necessity after
counsel took the opportunity to contact and interview the witness. Counsel
never located the witness, and thus, did not renew his request for a continuance.
A judges decision to deny a continuance is
reviewed for an abuse of discretion. United States v. Weisbeck,
50 MJ 461, 464 (1999).
Even if the military judge erred in not allowing
defense counsel a greater window of opportunity to locate this witness
for an interview, which we do not decide here, there is no prejudice to
appellant for the reasons articulated in Part I of this opinion.

III
Finally, we address whether defense counsel
was ineffective in failing to assist appellant in submitting clemency matters
under RCM 1105, Manual for Courts-Martial, United States (1994 ed.). We
hold that counsel was not ineffective under the specific factual circumstances
of this case, but note that the actions of this defense counsel are far
from a model of advocacy.
According to defense counsel, appellant informed
him after trial that he wanted to submit clemency matters. In this conversation,
appellant indicated that he did not wish defense counsel to submit the
matters, but would do so himself. However, sometime during this process,
defense counsel failed to notify appellant that he had received the staff
judge advocates (SJA) recommendation and that the 10-day clock for submitting
clemency matters had begun ticking.
Evidently, at some time during this lack of
communication, appellant or the SJA had sent a copy of appellants intended
submission to the defense counsel. Upon receiving appellants proposed
submission, defense counsel had several choices. First, he could have worked
with this document to rewrite a suggested clemency petition for appellants
review, and with appellants approval, eventually could have submitted
this document. Second, after speaking with appellant, defense counsel could
have forwarded appellants document to the convening authority with a cover
letter. Or, finally, defense counsel could have secured a signature from
appellant that released defense counsel from representation and forwarded
a copy of the SJAs recommendation to appellant for his use in drafting
the petition, or having another attorney assist him with this.
Instead, defense counsel merely returned the
matters to appellant with a cover letter indicating that the submission
was improperly styled and that appellant would not receive clemency anyway.
Defense counsel based this last opinion on a telephone conversation that
he had had with the SJA. Despite the likely denial of clemency here, defense
counsel was not free to ignore his duties without his client releasing
him from representation.
Many times, defense counsel are called upon
to represent clients with whom they have a personality conflict. That seems
to be what occurred here. In these cases, there are two choices: (1) try
to resolve the conflict and press forward with full and zealous representation,
or (2) seek relief from the obligation to represent the client. Here, the
miscommunication between defense counsel and his client was more than unfortunate,
it also resulted in no communication with the convening authority on appellants
behalf by way of a clemency submission.
However, although defense counsel did not fully
discharge his obligations here, appellant cannot demonstrate how he was
prejudiced. In United States v. Wheelus, we noted that there were
those cases where, although there is an error in the post-trial proceedings,
the appellant has not been prejudiced. 49 MJ 283, 289 (1998). In Wheelus,
we also stated that Courts of Criminal Appeals should preferably analyze
any prejudice and articulate reasons supporting a rationale for finding
no prejudice. Id. Here, this advice was aptly applied to evaluate
any prejudice in appellants case.
The Court of Criminal Appeals analyzed appellants
claim that his counsel was ineffective by not submitting clemency matters
and found that it was not necessarily convinced there was deficient performance,
but if so, then there was no prejudice. Unpub op. at 6. The Court of Criminal
Appeals clearly stated that the SJAs recommendation "did a good job of
summarizing the nature of the offenses and the occasionally credible performance
of this offender." Id. Additionally, the court relied upon the fact
that defense counsel contacted the SJA and ascertained there was no chance
of clemency in appellants case. The court below opined that the SJAs
response was not surprising "because of the serious nature of the offenses,
the appellants refusal to plead guilty to any of the offenses, and his
poor-to-mediocre military record, which contained two non-judicial punishments."
Id.
We note that these reasons alone do not support
a failure to submit clemency. The court below merely considered them as
part of its no-prejudice analysis. While we adopt the same no-prejudice
analysis, reliance on an SJAs opinion about the likelihood for clemency
in a particular case, or relying upon the accuseds right to plead not
guilty, are never sufficient reasons to forgo a clemency submission.
Moreover, the court below further supported
its rationale by stating that appellants clemency package, even if he
had submitted it, would not have been beneficial to his cause. It stated
that appellant was more likely to have been granted clemency in the absence
of his proposed petition. After reviewing the entire record and appellants
record, it is clear that the Court of Criminal Appeals did not abuse its
discretion in making this finding.4/
The detailed rationale given by the Court of Criminal Appeals here clearly
supports our finding of no prejudice.
The decision of the United States Navy-Marine
Corps Court of Criminal Appeals is affirmed.
FOOTNOTES:
1/ The false official
statement was in violation of Article 107, Uniform Code of Military Justice
(UCMJ), and the carnal knowledge offenses were in violation of Article
120, UCMJ, 10 USC §§ 907 and 920, respectively.
2/ SeeUnited
States v. DuBay, 17 USCMA 147, 37 CMR 411 (1967).
3/ The
granted issues are:


I. WHETHER THE LOWER COURT
ERRED IN FINDING THAT APPELLANT WAS NOT DENIED HIS SIXTH AMENDMENT RIGHT
TO EFFECTIVE ASSISTANCE OF COUNSEL WHERE TRIAL DEFENSE COUNSEL WAS DEFICIENT
IN FAILING TO TAKE ALL NECESSARY STEPS TO OBTAIN AN INTERVIEW WITH A KEY
ALIBI WITNESS AND TO ENSURE HIS PRESENCE AT TRIAL.
II. WHETHER THE LOWER COURT ERRED
IN FINDING THAT APPELLANT WAS NOT DENIED EFFECTIVE ASSISTANCE OF COUNSEL
IN THE POST-TRIAL REVIEW OF HIS CASE WHERE TRIAL DEFENSE COUNSEL FAILED
TO ASSIST APPELLANT IN PREPARING AND SUBMITTING CLEMENCY MATTERS.
III. WHETHER THE MILITARY JUDGE
ABUSED HIS DISCRETION IN DENYING APPELLANTS MOTION FOR A CONTINUANCE IN
ORDER TO SECURE THE PRESENCE OF A KEY ALIBI WITNESS.


4/ The Court
of Criminal Appeals included a footnote in its opinion illustrating why
appellants submission could have been detrimental. It stated:



We are also completely confident
that the appellant [sic] clemency package, which he alleges the convening
authority never saw because the trial defense counsel failed to advise
him of the deadline for submitting it, would have not helped him at all.
After a series of denials and attributions of bad faith on the part of
just about everyone involved with the court-martial, the appellant explained
his prior adverse disciplinary record as follows:
 

I know my past record of NJP
Article 15s UA indicates only isolated or minor offenses but for every
story there is two-sides [sic] to a story an [sic] I appealed an [sic]
no justice was done for me to explain mine fairly based on Petty Officers
with rank is always advantage an [sic] they are always right in the Higher
Navy Chain of commands [sic] eyes.
 

Letter from appellant to Commanding
Officer of 2 June 1993. In our experience, the appellant was more likely
to receive clemency without the SJA and convening authority having considered
that particular document.



Unpub. op. at 6-7, n.3.

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