UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                          Before
                              MULLIGAN, FEBBO, and WOLFE
                                 Appellate Military Judges

                             UNITED STATES, Appellee
                                         v.
                         Private E2 JOHN-BRIAN HUGHES
                           United States Army, Appellant

                                       ARMY 20130783

                 Headquarters, 1st Infantry Division and Fort Riley
                         Jeffery R. Nance, Military Judge
             Lieutenant Colonel John A. Hamner, Staff Judge Advocate


For Appellant: Colonel Kevin Boyle, JA; Major Amy E. Nieman, JA; Captain
Patrick J. Scudieri, JA (on brief); Lieutenant Colonel Melissa R. Covolesky, JA;
Lieutenant Colonel Charles D. Lozano, JA; Major Christopher D. Coleman, JA;
Captain Cody D. Cheek, JA (on supplemental brief).

For Appellee: Colonel Mark H. Sydenham, JA; Major Steven J. Collins, JA; Major
Lionel C. Martin, JA (on brief).


                                          28 July 2017
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                   SUMMARY DISPOSITION ON RECONSIDERATION
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MULLIGAN, Senior Judge:

       An enlisted panel sitting as a general court-martial convicted appellant,
contrary to his pleas, of various specifications involving resisting apprehension,
making a false official statement, premeditated murder, larceny of non-military
property of a value of less than $500.00, larceny of military property of a value of
less than $500.00, and wrongful appropriation of a motor vehicle in violation of
Articles 95, 107, 118, and 121, Uniform Code of Military Justice, 10 U.S.C. §§ 895,
907, 918, and 921 (2006) [hereinafter UCMJ]. The panel sentenced appellant to a
dishonorable discharge, confinement for life without the possibility of parole,
forfeiture of all pay and allowances, and a reduction to the grade of E-1. The
convening authority approved the adjudged sentence.
HUGHES—ARMY 20130783

       We previously considered appellant’s various assignments of error, including
those submitted pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982),
and summarily affirmed the findings of guilty and sentence in this case. United
States v. Hughes, ARMY 20130783 (Army Ct. Crim. App. 23 Jun. 2016). In a
footnote to that decision, we noted appellant failed to submit “accompanying
affidavits, unsworn declarations under penalty of perjury, or any signed statements
to support [his] claims” in support of his Grostefon claims. Id. n2. Thereafter, we
granted appellant’s request to submit additional matters, to include his sworn
declaration, and his request to reconsider our prior opinion. We again find
appellant’s assignments of error without merit. However, we take the opportunity
here to briefly address one issue, personally raised by appellant, that his defense
counsel provided deficient representation by conceding certain facts during her
closing argument.

                                 BACKGROUND

      Appellant and Private (PVT) TL spent the night of 12 May 2013 at the home
of an NCO where appellant was temporarily residing. Private TL asked to stay the
evening as he was going to take appellant to the motor pool in the morning where
appellant was scheduled to perform extra duties beginning at 0900. Appellant and
PVT TL departed early on the morning of 13 May 2013. Later that day, PVT TL was
discovered in his barracks room, stabbed to death. Key card logs showed PVT TL’s
room was last entered at around 0919 hours that morning.

       Appellant showed up to the motor pool late, at around 1000 hours, in Private
TL’s car. Later that morning or early afternoon, appellant took a HMMMV off post,
which eventually broke down. After a series of events, appellant was apprehended
by military police who found among appellant’s possessions PVT TL’s military ID
card and barracks room key card. The ensuing investigation also linked a knife, set
down by appellant prior to his attempt to flee from the military police, that later
tested positive for both appellant’s and PVT TL’s DNA. Appellant’s fingerprint was
found in PVT TL’s room.

       Defense counsel’s overarching theme during closing argument centered on the
many questions left unanswered by the government’s investigation of the murder and
the evidence presented at trial. Early in the argument, defense counsel posited one
theory of how the evidence could be read, suggesting PVT TL’s plans to drive
appellant directly to extra duty changed so that appellant could go to the barracks
and change. Once there, defense counsel suggested, PVT TL decided to “crash,” and
gave appellant his room key card and keys so as not to disturb PVT TL when
appellant returned them. Defense counsel then explored the many aspects of the
evidence that simply did not make sense, such as the fact appellant showed up for
extra duty, the apparent lack of any motive for the crime, the sloppiness of the
evidence collection and testing, and other possible explanations for the murder.



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HUGHES—ARMY 20130783

                               LAW AND ANALYSIS

      Appellant asserts his counsel during closing argument “conceded” that
appellant was at the crime scene. Appellant claims he was not informed by his
counsel that such a concession would be made and would not have granted his
counsel permission to make such a concession. This raises the question whether
defense counsel must consult with an accused on every strategic decision during the
course of a trial and whether the failure to do so constitutes ineffective assistance of
counsel. Under the circumstances of this case, we do not find defense counsel’s
argument constituted a concession—much less deficient performance.

     To prevail on an ineffective assistance claim, appellant bears the burden of
proving that (1) defense counsel’s performance in making this concession was
deficient, and (2) appellant was prejudiced by this deficient performance. Strickland
v. Washington, 466 U.S. 668, 698 (1984). As to the first prong, there is a strong
presumption that counsel’s conduct “falls within the wide range of reasonable
professional assistance.” Id. at 689. As to the second prong, appellant’s burden is
to show “a reasonable probability that, but for counsel’s [deficient performance] the
result of the proceeding would have been different.” Id. at 694. To demonstrate this
prejudice, the question is “whether there is a reasonable probability that, absent the
errors, the factfinder would have had a reasonable doubt respecting guilt.” Id. at
695. “It is not enough to show that the errors had some conceivable effect on the
outcome.” United States v. Datavs, 71 M.J. 420, 424 (C.A.A.F. 2012) (emphasis
added).

      A defendant has the “ultimate authority” in decisions to exercise or waive basic
trial rights, including “whether to plead guilty, waive a jury, testify in his or her
own behalf, or take an appeal.” Florida v. Nixon, 543 U.S. 175, 187 (2004) (quoting
Jones v. Barnes, 463 U.S. 745, 751 (1983); Wainright v. Sykes, 433 U.S. 72, 93 n. 1
(1977) (Burger, J., concurring)). Defense counsel must consult with an accused
about these decisions, and obtain his consent to the course of action. Id.

     Defense counsel also has a duty to discuss overarching defense strategies with a
defendant. See Strickland v. Washington, 466 U.S. 668, 688 (1984). However,
counsel is not required to obtain the accused’s consent to “every tactical decision.”
Taylor v. Illinois, 484 U.S. 400, 417-18 (1988). Indeed,

      Once counsel is appointed, the day-to-day conduct of the defense
      rests with the attorney. He, not the client, has the immediate - and
      ultimate - responsibility of deciding if and when to object, which
      witnesses, if any, to call, and what defenses to develop. Not only do
      these decisions rest with the attorney, but such decisions must as a
      practical matter, be made without consulting the client. The trial
      process simply does not permit the type of frequent and protracted



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HUGHES—ARMY 20130783

      interruptions which would be necessary if it were required that clients
      give knowing and intelligent approval to each of the myriad tactical
      decisions as a trial proceeds.

Wainwright, 433 U.S. at 93, (Burger, J., concurring).

       Defense counsel’s strategy of conceding a fact in accordance with evidence
presented at trial is not ineffective if her representation does not fall below an
objective standard of reasonableness. Nixon, 543 U.S. at 688. For example, in
Nixon, defense counsel conceded the accused’s guilt after assessing the strength of
the prosecution’s evidence was strong enough to convict the accused of murder
beyond a reasonable doubt. 543 U.S. at 189. There, the Supreme Court found that
when counsel took reasonable steps to defend the accused, counsel’s admission of
the accused’s guilt did not amount to deficient performance. Id. at 188.

       Here, the government’s case, while strong, relied largely on circumstantial
evidence. Nobody witnessed the murder. The evidence did not tie appellant to the
crime scene at the exact moment when PVT TL died. Appellant made no admissions
or statements implicating himself in the crime. In short, while the government’s
evidence was strong, it could not rule out many possible explanations of what
happened to PVT TL.

        Far from conceding appellant was in PVT TL’s room, defense counsel’s
argument simply pointed out another, plausible, explanation of the evidence that did
not involve appellant committing murder. Her closing argument, when read in its
entirety, was an exercise in identifying the many holes in the government’s case in
an attempt to create reasonable doubt in the minds of the members. We do not need
to determine defense counsel’s actual strategic purpose in making these arguments;
we focus on counsel’s conduct objectively, rather than by submitting the conduct to
a subjective after-the-fact evaluation. See Harrington v. Richter, 562 U.S. 86, 109-
10 (2011) (“After an adverse verdict at trial, even the most experienced counsel may
find it difficult to resist asking whether a different strategy might have been better. .
. . Strickland, however, calls for an inquiry into the objective reasonableness of
counsel’s performance, not counsel’s subjective state of mind.”).

       Further, the strong presumption that counsel’s performance was reasonable is
reflected in the assumption that “counsel’s attention to certain issues to the
exclusion of others reflects trial tactics rather than ‘sheer neglect.’” See
Harrington, 562 U.S. at 109 (citing Yarborough v. Gentry, 540 U.S. 1, 8 (2003)).
Viewing the case as a whole, we find defense counsel’s tactical decisions during
closing argument—and during the rest of trial—to be objectively reasonable. We
therefore find appellant has failed in the first instance to demonstrate that his
counsel’s performance was deficient under Strickland.
                                     CONCLUSION



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HUGHES—ARMY 20130783


    The findings of guilty and the sentence are AFFIRMED.

    Judge FEBBO and Judge WOLFE concur.

                                      FORTHE
                                     FOR  THECOURT:
                                              COURT:



                                     JOHN P. TAITT
                                       JOHN
                                     Chief    P. TAITT
                                           Deputy Clerk of Court
                                       Chief Deputy Clerk of Court




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