

   
   
   
   U.S. v. Alves



IN THE CASE OF
UNITED STATES, Appellee
v.
Matthew J. ALVES, Corporal
U.S. Marine Corps, Appellant
 
No. 99-0724
Crim. App. No. 97-1610
 
United States Court of Appeals for the Armed
Forces
Argued February 3, 2000
Decided August 16, 2000
EFFRON, J., delivered the opinion of the
Court, in which CRAWFORD, C.J., GIERKE, J., and COX, S.J., joined. SULLIVAN,
J., filed an opinion concurring in part and dissenting in part.
Counsel
For Appellant: Lieutenant Hardy Vieux,
JAGC, USNR (argued); Lieutenant Commander L.J. Lofton, JAGC, USN
For Appellee: Lieutenant Kevin S. Rosenberg,
JAGC, USNR (argued); Colonel Kevin M. Sandkuhler, USMC, and Commander
Eugene E. Irvin, JAGC, USN (on brief).
Military Judge: R.G. Sokoloski
 
 


This opinion is subject
to editorial correction before publication.


Judge EFFRON delivered the opinion of the Court.
A general court-martial composed of a military
judge sitting alone convicted appellant of violating a lawful general regulation
and of two specifications of aggravated assault with a means likely to
produce death or grievous bodily harm, in violation of Articles 92 and
128, Uniform Code of Military Justice, 10 USC §§ 892 and 928,
respectively. He was sentenced to a dishonorable discharge, 18 months'
confinement, forfeiture of all pay and allowances, and reduction to pay
grade E-1.
As a matter of clemency, the convening authority
reduced the dishonorable discharge to a bad-conduct discharge and suspended
all confinement in excess of time served (approximately 8 months) for a
period of 12 months from the date of the action. The convening authority
approved the remaining sentence. The Court of Criminal Appeals reviewed
the record on two separate occasions. The court first affirmed the findings
and sentence after the record was submitted without specific assignments
of error. Subsequently, the court granted appellants "Motion for Reconsideration
and Leave to File Supplemental Pleading," which raised the issues now before
our Court. After considering those issues, the Court of Criminal Appeals
in an unpublished opinion affirmed the findings and sentence approved by
the convening authority.
We granted review of the following issues:



I. WHETHER APPELLANT WAS DENIED HIS SIXTH
AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHERE THE TRIAL DEFENSE
COUNSEL FAILED TO MAKE AN ADEQUATE INVESTIGATION INTO THE FACTS AND CIRCUMSTANCES
OF THE CASE.
II. WHETHER APPELLANT WAS DENIED HIS SIXTH
AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHERE THE TRIAL DEFENSE
COUNSEL WAS PREJUDICIALLY DEFICIENT IN FAILING TO CONTACT AND PRESENT EVIDENCE
FROM ESSENTIAL WITNESSES IN SENTENCING.



We affirm for the reasons set forth below.

I. Background
Appellant, who had been drinking heavily with
fellow Marines in a barracks room, was involved in three related altercations
in rapid succession, which led to the charges against him. He pled guilty
to each of the charges. During the providence inquiry, he stated that he
could remember some but not all of the circumstances as a result of his
consumption of alcoholic beverages prior to the altercations. In particular,
he could not remember the critical moments related to the aggravated assault
charges during which, according to witnesses, he pointed a loaded pistol
at a fellow Marine and then placed it against the head of another Marine.
In response to the military judge's inquiry, he stated that to the extent
he could not remember specific details, he relied upon and accepted as
true the statements provided to the Naval Criminal Investigative Service
by witnesses to his actions.
During the post-trial proceedings before the
convening authority, appellant was represented by a civilian defense counsel
who had not represented him at trial. Appellants new attorney provided
a substantial post-trial submission to the convening authority, pursuant
to RCM 1105 and 1106, Manual for Courts-Martial, United States (1995 ed.).
The post-trial submission specifically addressed deficiencies in trial
defense counsels performance, including failure to interview witnesses
and failure to present various matters in extenuation and mitigation during
the sentencing phase. The post-trial submission included 10 character letters
written by military members and civilians on behalf of appellant, three
of which were from individuals appellant had previously identified to his
trial defense counsel as potential character witnesses. The convening authority,
after considering appellant's post-trial submission, mitigated the dishonorable
discharge to a bad-conduct discharge and suspended any further confinement.
In his appeal to the Court of Criminal Appeals,
appellant argued that he had been denied effective assistance of counsel,
both at trial and during the sentencing phase, focusing on the same deficiencies
raised by the civilian counsel in the post-trial submission. The trial
defense counsel submitted an affidavit which did not dispute appellant's
assertion that he had not interviewed any witnesses to the incidents, even
though his client did not recall the critical moments of the alleged assaults.
In the affidavit, trial defense counsel stated that he saw no reason to
personally interview the victims in view of the written statements provided
by the victims and witnesses to the Naval Criminal Investigative Service,
as well as appellants limited recollection.
Trial defense counsel added in the affidavit
that he had made one attempt to submit a pretrial agreement to the convening
authority. After it was rejected, he told appellant that it was still in
his best interest to plead guilty without the benefit of a pretrial agreement.
He also advised appellant that the court would look favorably upon a waiver
of his pretrial investigation pursuant to Article 32, UCMJ, 10 USC §
832, because it would appear that appellant was willing to take responsibility
for his actions by not being a burden on the Government.
With regard to the sentencing hearing, trial
defense counsel acknowledged in the affidavit that appellant had provided
him with a list of witnesses for sentencing, but that he had limited the
presentation to testimony of appellant and his father. He stated that he
had not interviewed the other witnesses because he made a "tactical decision
to not call any witness[es] . . . who [were] of equal or lesser rank than
[appellant.]" With respect to one potential witness, a staff sergeant who
was superior in grade to appellant, trial defense counsel said that he
made a tactical decision to not have him testify. He said that the staff
sergeant, who worked in the armory, would have been cross-examined regarding
appellants violations of the rules pertaining to proper handling of weapons.

II. Discussion
A defendant who claims ineffective assistance
of counsel "must surmount a very high hurdle." United States v. Moulton,
47 MJ 227, 229 (1997), citing Strickland v. Washington, 466 U.S.
668, 689 (1984). A defense counsel is presumed to be competent. Id.
Judicial scrutiny of such a claim is highly deferential and should not
be colored by the distorting effects of hindsight. Id. To overcome
the presumption of competence, an appellant must satisfy the two-part test
set forth in Strickland and demonstrate: (1) "a deficiency in counsels
performance that is `so serious that counsel was not functioning as the
"counsel" guaranteed the defendant by the Sixth Amendment'; and (2) that
the `deficient performance prejudiced the defense [through] errors. . .so
serious as to deprive the defendant of a fair trial, a trial whose result
is reliable." Id., quoting Strickland, supra at 687.
The Strickland two-part test applies
to guilty pleas and sentencing hearings that may have been undermined by
ineffective assistance of counsel. See Hill v. Lockart, 474
U.S. 52, 58 (1985); see also United States v. Ginn,
47 MJ 236, 246-47 (1997); United States v. Boone, 49 MJ 187 (1998).
Trial defense counsel may be ineffective at the sentencing phase when counsel
either "fails to investigate adequately the possibility of evidence that
would be of value to the accused in presenting a case in extenuation and
mitigation or, having discovered such evidence, neglects to introduce that
evidence before the court-martial." Id. at 196 (footnotes omitted).
At their first meeting, appellant provided
his trial defense counsel the names of six Marines, not including the alleged
victims, that may have witnessed the alleged assault or the events that
led up to it. Under the facts and circumstances of this case, the trial
defense counsels performance was deficient because he failed to interview
any witnesses or conduct any investigation. See Kimmelman v.
Morrison, 477 U.S. 365, 384 (1986)("[C]ounsel has a duty to make reasonable
investigations or to make a reasonable decision that makes particular investigations
unnecessary."). Although it may be reasonable in the circumstances of a
particular case for counsel, without making further investigation, to rely
upon a clients recollection of events and the pretrial statements of eyewitnesses
before advising the client how to plead, this is not such a case. In the
present case, the finite number of witnesses, the role of alcohol in the
incident, and appellant's inability to remember critical moments of the
offense, underscore the responsibility of the defense counsel to interview
the witnesses prior to advising his client whether to plead guilty to the
charges. Trial defense counsel's actions fell below the standard that "[d]efense
counsel should conduct a prompt investigation of the circumstances of the
case and explore all avenues leading to facts relevant to the merits of
the case and the penalty in the event of conviction." ABA Standards for
Criminal Justice, Standard 4-4.1 (3d ed. 1993).
Even though counsel's performance was deficient,
appellant must also meet the prejudice prong under Strickland, which
requires appellant to show specifically that "there is a reasonable probability
that, but for counsels errors, he would not have pleaded guilty and would
have insisted on going to trial." Hill, 474 U.S. at 59. Appellant
has failed to demonstrate that had these witnesses been interviewed, he
would not have pleaded guilty. He had an unregistered gun in his room.
He remembered retrieving the gun from a locked container, loading it with
a magazine clip, and returning to Lance Corporal Halls room in order "to
scare Lance Corporal Hall so that the fight would stop." Appellant has
failed to bring to the attention of this Court specific information  such
as the substance of expected testimony from the victims  that would advise
us precisely what the witnesses would have said that would have influenced
appellant to plead not guilty to the charged offenses. See Moulton,
47 MJ at 229. Without such a showing, appellant has not demonstrated that
counsels error was prejudicial. Strickland v. Washington, supra.
With regard to sentencing, trial defense counsel
should have explored the potential for introducing at trial good-military-character
evidence for the purpose of demonstrating that appellants actions on the
night in question were out of character. Trial defense counsels only explanation
for the failure to interview sentencing witnesses recommended by appellant
was that he made a tactical decision not to present the testimony of appellants
peers because they would carry little weight with the military judge. Without
interviewing the witnesses, however, trial defense counsel was not in a
position to make a tactical decision as to whether the witnesses would
or would not have been valuable character witnesses. We also have reservations
about trial defense counsels suggestion that there was a tactical reason
not to call the staff sergeant in order to prevent cross-examination regarding
the weapon rules violation. In view of the fact that appellant testified
under oath during sentencing and was questioned both during direct and
cross-examination on the very subjects that defense counsel claimed he
was attempting to avoid, it is not apparent how the testimony of the staff
sergeant could have harmed appellant.
Normally, ineffective assistance of counsel
at the sentencing phase is prejudicial and requires a new sentencing hearing
because the record does not contain the evidence that an effective counsel
would have presented. Boone, 49 MJ at 198. In contrast to Boone,
the evidence is available in the record of the present case. Appellant's
new counsel during the post-trial proceedings effectively used the opportunity
to interview pertinent witnesses and make a presentation to the convening
authority that resulted in substantial sentence relief. On appeal, appellant
has relied upon the matters contained in his post-trial submissions to
demonstrate the deficiencies in his trial defense counsels performance,
and has not indicated that any additional evidence would have been presented
by competent counsel.
In light of the substantial clemency given
to appellant as a direct result of his civilian counsels post-trial submission,
the sentence was reduced to a bad-conduct discharge, confinement of time
served (approximately 8 months), total forfeitures, and a reduction to
pay-grade E-1. The convening authoritys action was taken in the context
of a post-trial submission that highlighted trial defense counsels failure
to present mitigation evidence at trial. By providing significant relief,
he adequately addressed any prejudice appellant may have suffered as a
result of his counsels deficient performance at trial. See United
States v. Bono, 26 MJ 240 (CMA 1988)(convening authoritys reduction
of sentence post-trial rendered deficient representation at trial harmless
and prevented appellant from suffering substantial prejudice). Under the
specific circumstances of this case, no further relief is warranted.

III. Conclusion
The decision of the United States Navy-Marine
Corps Court of Criminal Appeals is affirmed.


SULLIVAN, Judge (concurring in part and dissenting
in part):
I disagree with the majoritys conclusion under
prong one of the Strickland test that the performance of Capt S
was deficient. I think it is appropriate to quote the affidavit of Capt
S:



8. That between 25 November 1996, the day
I met Cpl Alves, and his trial date of 12 February 1997, I met with
Cpl Alves approximately 12 times to discuss his case and prepare him for
trial.
9. That during our discussions, Cpl Alves and
I discussed pleading not guilty, but came to a mutual agreement that
the evidence against Cpl Alves was overwhelming.
10. That during our discussion, Cpl Alves and
I discussed pleading not guilty because he could not recollect pointing
the weapon at anyone. However, when asked about the victims statements,
Cpl Alves could not foresee any reason for the victims to lie in their
sworn statements.
11. That based on our discussions, Cpl Alves
and I agreed that it would be in his best interest to plead guilty because
it appeared very likely he would be convicted of all charges. We agreed
that a plea of guilty was Cpl Alves best chance for leniency in sentencing.
12. That I explained to Cpl Alves that he could
only plead guilty if he was willing to rely on the victims statements
because he could not remember pointing the weapon at them. Cpl Alves
indicated to me that he understood and had no reason not to believe what
was in the victims statements.
 


* * *
16. That in preparing for his trial, I concentrated
on getting Cpl Alves through providency and on his sentencing case. Based
on Cpl Alves numerous representations that he had no reason to disbelieve
the victims statements, and based on his account of the incidents just
prior to and just after the alleged incident, and the fact that the trial
counsel had indicated no intentions of calling the victims to testify on
sentencing, I saw no reason to personally interview the victims.
17. That in preparation for sentencing, I asked
Cpl Alves to provide me with names of Marines he would like to have called
on his behalf. He provided me Enclosure 4.
18. That I made a tactical decision not to
call any witness on Enclosure 4 who is of equal or lesser rank than that
of Cpl Alves.
19. That based on Cpl Alves prior page 11s
(Enclosure 5) and the fact that he worked in the armory, I made a tactical
decision not to call SSgt Cole. The Government would have been able to
cross-examine SSgt Cole on everything Cpl Alves did that went against what
he had been taught while working in the armory. Additionally, Marines are
taught proper weapons handling continuously and there simply is no way
for any Marine witness to say anything positive about the way Cpl Alves
handled his weapon that evening (which is worsened by the fact that he
was illegally storing his personal weapon in his barracks room).
20. That I specifically addressed the issue
of intoxication as a defense to his actions. I went over Enclosure 6 with
Cpl Alves in detail. He indicated that he understood that his voluntary
intoxication could not be used in his defense.



(Emphasis added.) It was not deficient performance
for Capt S to rely on his conversations with appellant in deciding not
to interview any of the victims or witnesses to the event. See Strickland
v. Washington, 466 U.S. 668, 691 (1984); United States v. Scott,
24 MJ 186, 192 (CMA 1987); Turner v. Williams, 35 F.3d 872, 898
(4th Cir. 1994), overruled on other grounds by Odell v. Netherlard,
95 F.3d 1214 (4th Cir. 1996); State v. Thomas, 946 P.2d 140, 143-44
(Mont. 1997).
As the Supreme Court noted in Strickland,
"[A] particular decision not to investigate must be directly assessed for
reasonableness in all the circumstances, applying a heavy measure of deference
to counsels judgments." Strickland, 466 U.S. at 691. Furthermore,
"when a defendant has given counsel reason to believe that pursuing certain
investigations would be fruitless or even harmful, counsels failure to
pursue those investigations may not later be challenged as unreasonable."
Id. It was reasonable for Capt S not to have interviewed the witnesses
who had already given statements because appellant told Capt S that there
was no reason they would be lying. See State v. Thomas, supra;
cf. Kimmelman v. Morrison, 477 U.S. 365, 385 (1985) (finding
counsels performance deficient where "[r]espondents lawyer neither investigated,
nor made a reasonable decision not to investigate, the States case
through discovery") (emphasis added).
I also do not believe that Capt Ss performance
during sentencing was deficient. Most ineffective assistance of counsel
claims at the sentencing phase arise in situations where counsel fails
either to call any witnesses at sentencing or fails to respond to
character attacks by the Government. See United States v. Boone,
49 MJ 187, 196, n.10 (1998). Capt S presented a case in mitigation at sentencing;
it may not have been what appellant now asserts should have been presented,
but it was not deficient, and Capt Ss tactical decisions cannot now be
second-guessed.
I agree with the majoritys conclusions on
the prejudice prong of the Strickland test. I would add, however,
that as to prejudice, appellant is merely asserting that the prejudice
to him is inherent because he was forced to rely on statements from unreliable
witnesses. Aside from being a legally inadequate argument, see United
States v. Ginn, 47 MJ 236, 247 (1997)("conclusory argument that prejudice
is clear from his counsels defective performance is legally inadequate"),
appellant is now trying to refute what he specifically stated to the contrary
at trial: that there was no reason for him to believe that the witnesses
were lying. The record does not indicate "there was a reasonable probability"
that had Capt S interviewed the witnesses, appellant would have changed
his plea. Id. Appellant himself stated to the military judge that
he knew Capt S had not interviewed the witnesses and that if he had, the
witnesses would just reiterate what was in their statements.
For the above reasons, I join the majoritys
affirmance of appellants case.


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