                       UNITED STATES, Appellee

                                    v.

                 Stanley E. EDMOND, Staff Sergeant
                        U.S. Army, Appellant

                              No. 03-0086

                        Crim. App. No. 9900904

       United States Court of Appeals for the Armed Forces

                        Argued April 20, 2006

                        Decided August 9, 2006

ERDMANN, J., delivered the opinion of the court, in which
GIERKE, C.J., and CRAWFORD, EFFRON, and BAKER, JJ., joined.

                                 Counsel

For Appellant: Captain Scott T. Ayers (argued); Colonel John T.
Phelps II, Colonel Robert D. Teetsel, Lieutenant Colonel Kirsten
V. C. Brunson, Lieutenant Colonel E. Allen Chandler Jr., Major
Imogene M. Jamison, Major Charles L. Pritchard Jr., Major Billy
B. Ruhling II, and Captain Kathy Martin (on brief).

For Appellee: Captain Mason S. Weiss (argued); Lieutenant
Colonel Margaret B. Baines, Lieutenant Colonel Theresa A.
Gallagher, and Major William J. Nelson (on brief).

Amicus Curiae for Appellant: John Heck (law student) (argued);
Kathleen A. Duignan, Esq. (supervising attorney), Eugene R.
Fidell, Esq., Marisa Guevara (law student), Eric Iverson (law
student), and Tae Hwi Lee (law student) (on brief) – for the
National Institute of Military Justice.

Military Judges: Ferdinand Clervi (arraignment), Theodore Dixon
(trial), and Robert L. Swann (DuBay hearing).




       This opinion is subject to revision before final publication.
United States v. Edmond, No. 03-0086/AR

     Judge ERDMANN delivered the opinion of the court.1

     Staff Sergeant Stanley E. Edmond was tried at a general

court-martial by a panel of officer and enlisted members.   He

was convicted of conspiracy to commit larceny, absence without

leave, false official statements, wrongful disposition of

military property, wrongful use of controlled substances,

larceny, and theft of services, in violation of Articles 81, 86,

107, 108, 112a, 121 and 134, Uniform Code of Military Justice

(UCMJ), 10 U.S.C. §§ 881, 886, 907, 908, 912a, 921, 934 (2000).

He was sentenced to a reduction in grade to E-1, confinement for

seventy-three days, and a bad-conduct discharge.   The convening

authority approved the sentence and credited Edmond with

seventy-three days of pretrial confinement credit.   The United

States Army Court of Criminal Appeals set aside and dismissed a

charge affected by an erroneous staff judge advocate’s post-

trial recommendation but affirmed the remaining findings and the

sentence.   United States v. Edmond, No. ARMY 9900904, slip op.

at 3 (A. Ct. Crim. App. Sept. 17, 2002).

     This court initially granted Edmond’s petition for review

on the issue of witness interference and concluded that further


1
  We heard oral argument in this case at the Washington College
of Law, American University, as part of the Court’s “Project
Outreach.” See United States v. Mahoney, 58 M.J. 326, 347 n.1
(C.A.A.F. 2003). This practice was developed as part of a
public awareness program to demonstrate the operation of a
federal court of appeals and the military justice system.



                                 2
United States v. Edmond, No. 03-0086/AR

inquiry was necessary.     United States v. Edmond, 58 M.J. 237

(C.A.A.F. 2003).     We set aside the decision of the Army court

and directed the lower court to obtain affidavits and, if

necessary, to conduct additional factfinding pursuant to United

States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967).      Id.

After reviewing the affidavits submitted by the trial

participants, the lower court ordered a DuBay hearing.      United

States v. Edmond, No. ARMY 9900904, slip op. at 3 (A. Ct. Crim.

App. June 2, 2005).     Following the DuBay hearing, the military

judge issued “Essential Findings and Conclusions of Law” which

found no prosecutorial misconduct.      On appeal to the Army court,

Edmond argued that the DuBay judge erred in finding no

prosecutorial misconduct and also asked the court to conclude

that his defense attorney had provided ineffective assistance of

counsel.   Id.     The Army court agreed with the DuBay judge that

there was “no evidence of prosecutorial misconduct” and further

concluded that Edmond’s defense counsel was not ineffective.

Id. at 4-6.      The lower court once again affirmed the findings

and sentence.     Id. at 6.

     In a due process analysis of prosecutorial misconduct this

court looks at the fairness of the trial and not the culpability

of the prosecutor.     See Smith v. Phillips, 455 U.S. 209, 219

(1982).    Even where we find misconduct on the part of the

prosecutor, this court will go on to look at the “overall effect



                                    3
United States v. Edmond, No. 03-0086/AR

of counsel’s conduct on the trial, and not counsel’s personal

blameworthiness.”    United States v. Thompkins, 58 M.J. 43, 47

(C.A.A.F. 2003).    The first granted issue addresses whether the

lower court erred in concluding that there was no prosecutorial

misconduct in this case.2

       When reviewing claims of ineffective assistance of counsel,

we are guided by the two-pronged test set forth by the United

States Supreme Court in Strickland v. Washington, 466 U.S. 668

(1984).

       First, an appellant must show that counsel’s
       performance fell below an objective standard of
       reasonableness -– that counsel was not
       functioning as counsel within the meaning of the
       Sixth Amendment.

       The second prong of an appellant’s burden
       requires a showing of prejudice flowing from
       counsel’s deficient performance. The appellant
       must demonstrate such prejudice as to indicate a
       denial of a fair trial or a trial whose result is
       unreliable.

United States v. Davis, 60 M.J. 469, 473 (C.A.A.F. 2005)

(citations omitted).    The second granted issue addresses whether




2
    We granted review of the following issue:

            WHETHER THE ARMY COURT ERRED WHEN IT
            CONCLUDED THAT THERE WAS NO EVIDENCE OF
            PROSECUTORIAL INTERFERENCE IN APPELLANT’S
            CASE, AND AS A RESULT, APPELLANT WAS
            DEPRIVED OF HIS FIFTH AMENDMENT RIGHT TO DUE
            PROCESS AND SIXTH AMENDMENT RIGHT TO
            COMPULSORY PROCESS.



                                  4
United States v. Edmond, No. 03-0086/AR

trial defense counsel was ineffective when he failed to inquire

into a defense witness’s decision not to testify at trial.3

                              BACKGROUND

        Edmond was convicted of numerous charges, including

conspiring to commit larceny of two cellular telephones and the

larceny of two cellular telephones.    These two charges are

central to this appeal.    Edmond’s alleged coconspirator was

Derrick McQueen,4 a friend with whom he worked in the supply

shop.    Prior to Edmond’s trial, Captain Jason Libby, Edmond’s

trial defense counsel, spoke with McQueen about testifying on

behalf of Edmond.    McQueen told Libby that he did not believe

his testimony could help Edmond and that he did not want to

testify.    Libby nonetheless subpoenaed McQueen.

        When McQueen arrived at the courtroom on the day of

Appellant’s trial he met not with Libby but with Major Jeffery

Bovarnick, the trial counsel.    McQueen testified that he did not


3
    We granted review of the following issue:

             WHETHER APPELLANT’S TRIAL DEFENSE COUNSEL
             WAS INEFFECTIVE WHEN HE FAILED TO PERSONALLY
             INQUIRE WHY A MATERIAL DEFENSE WITNESS
             REFUSED TO TESTIFY AFTER THE WITNESS SPOKE
             WITH THE PROSECUTOR, AND AFTER TRIAL DEFENSE
             COUNSEL WAS INFORMED THAT THE SAME WITNESS
             HAD ALLEGEDLY INVOKED HIS FIFTH AMENDMENT
             RIGHT AGAINST SELF-INCRIMINATION.
4
  At the time of the alleged offense, McQueen was a sergeant in
the United States Army. At the time of Edmond’s trial he was a
civilian, having been administratively discharged from the Army
in lieu of facing court-martial charges.

                                   5
United States v. Edmond, No. 03-0086/AR

specifically remember the conversation that he had with

Bovarnick, but he remembered being told that “if you perjure

yourself or if new information comes out, new charges can be

brought against you.”   He said that he did not feel threatened

by Bovarnick, but he felt if he testified his administrative

discharge could be revoked and he “could . . . be charged

again.”    McQueen said that he had planned to testify at the

court-martial, but Bovarnick told him he could either testify or

not testify, so he chose not to because he “didn’t want to be

there anyway.”   After McQueen told Bovarnick he was going to

leave, Bovarnick told McQueen that he would “inform who I need

to inform that you don’t want to testify.”   Bovarnick left the

room, and when he returned told McQueen he was “free to go.”

McQueen then left the courthouse.

     McQueen stated that had he testified at Edmond’s trial, he

“planned on telling the truth,” and he did not recall having

refused to testify because he did not want to incriminate

himself.   When asked what he would have said if he had

testified, McQueen said that he and Edmond were tasked with

obtaining cell phones for the battalion and that he believed

they were authorized to obtain them.    He stated that at the time

they obtained the phones they intended to return the cell phones

to the unit for their authorized use.   He also testified that

there was no agreement between the two of them to keep the cell



                                  6
United States v. Edmond, No. 03-0086/AR

phones before they returned to the unit, but after they were

told the unit no longer wanted the cell phones they decided to

keep the phones for their own personal use.    He could not recall

any conversation between the two of them during which they

agreed to misuse the telephones they had obtained.

        Bovarnick testified that prior to the trial he met with

McQueen and that during the meeting he called Captain Karen

Beyea, a Special Assistant United States Attorney, into the

room.    He stated that during that meeting he asked McQueen what

his testimony would be and McQueen told him he would testify

that he and Edmond were authorized by the command to obtain the

phones.    Based on the expected testimony of two Government

witnesses who would testify that McQueen and Edmond were not

authorized to obtain or use the phones, Bovarnick concluded that

McQueen was lying and would commit perjury if he testified.       As

McQueen was a civilian, Bovarnick asked Beyea to “let him

[McQueen] know what the potential repercussions would be for

committing perjury.”

        Bovarnick testified that he did not inquire any further

into McQueen’s expected testimony but based on what McQueen told

him, he did not believe that the testimony McQueen would give

would have been exculpatory because “that is not what happened

by all the facts that are present in the case. . . .    It

wouldn’t have been because that is just not what happened.”       He



                                   7
United States v. Edmond, No. 03-0086/AR

did agree, however, that if McQueen testified that there was no

conspiracy between McQueen and Edmond before they obtained the

phones to acquire them for personal use, then that would be

exculpatory testimony.

     In regard to McQueen’s decision not to testify, Bovarnick

stated that following their conversation, McQueen apparently

decided to “change his mind and not testify.”   He stated that

the stipulation of fact was entered into because the defense

wanted to call McQueen to the stand, but was informed by someone

that McQueen would invoke his Fifth Amendment privilege.

Bovarnick testified that he did not know who told trial defense

counsel that McQueen would invoke his rights, but that McQueen

“told somebody.”

     Edmond’s trial defense counsel, Libby, testified that he

could not remember what exculpatory information McQueen could

have provided to the members, but he stated that at the time of

Edmond’s court-martial he believed McQueen’s testimony would be

favorable to Edmond.   He also testified that on the day of trial

he did not speak to McQueen, but was informed by trial counsel

that McQueen did not want to testify in the case.   He admitted

he did not speak to McQueen and receive this information

himself, though he “probably should have.”   He also stated that

he should have done more to preserve the record on the question

of whether and why McQueen was invoking his Fifth Amendment



                                 8
United States v. Edmond, No. 03-0086/AR

rights in refusing to testify.

     In lieu of having Beyea testify the parties agreed the

DuBay judge could consider her affidavit.    In her affidavit

Beyea explained that Bovarnick told her that based on McQueen’s

attitude and demeanor he did not believe McQueen was going to

tell the truth and she agreed with that assessment.   She stated

that based on their conclusion that McQueen was untrustworthy,

they determined they had an obligation to inform McQueen “of the

consequences of perjury based on our information and belief that

McQueen was not going to be truthful.”    She said she then

informed McQueen of the consequences of perjury and explained

that if he perjured himself “the government would seek justice”

even though he was a civilian.   She also stated she explained to

McQueen that they were not pressuring him not to testify, but

that “as officers of the court, [they] merely wanted to make

sure that he was informed before he testified.”

     At the conclusion of the defense case, the defense entered

a stipulation of fact into evidence that stated that if he were

called to testify, McQueen would invoke his Fifth Amendment

right against self-incrimination.    The military judge questioned

Edmond regarding his wish to enter into the stipulation of fact,

asking whether his trial defense counsel had explained the

stipulation to him, whether he knew that he had “an absolute

right to refuse” to enter into the stipulation, and whether he



                                 9
United States v. Edmond, No. 03-0086/AR

believed it was in his best interest to enter into the

stipulation of fact.   Edmond responded that he did, and the

stipulation of fact was entered into evidence.

                            DISCUSSION

      The two granted issues in this case -- whether there was

prosecutorial misconduct in interfering with and releasing a

subpoenaed defense witness and whether Edmond’s defense attorney

was ineffective by failing to talk with a potentially

exculpatory defense witness before agreeing to release the

witness -- are closely intertwined.

I.   PROSECUTORIAL MISCONDUCT

      We turn first to the question of whether the trial counsel

engaged in misconduct in his discussions with McQueen on the day

of Edmond’s trial.   In evaluating issues of prosecutorial

misconduct we review the military judge’s findings of fact to

determine whether they are clearly erroneous.    United States v.

Argo, 46 M.J. 454, 457 (C.A.A.F. 1997).     “The questions whether

the facts found by the military judge constitute prosecutorial

misconduct and whether such misconduct was prejudicial error are

questions of law that we review de novo.”    Id. (citing United

States v. Meek, 44 M.J. 1, 5-6 (C.A.A.F. 1996); United States v.

Sullivan, 42 M.J. 360, 363 (C.A.A.F. 1996)).     “Prosecutorial

misconduct is ‘action or inaction by a prosecutor in violation

of some legal norm or standard, e.g., a constitutional



                                10
United States v. Edmond, No. 03-0086/AR

provision, a statute, a Manual rule, or an applicable

professional ethics canon.’”   Id. (quoting Meek, 44 M.J. at 5).

     As the DuBay judge noted in his conclusions of law, this

court has held that “[s]everal legal norms are violated when a

trial counsel attempts to or unlawfully dissuades a defense

witness from testifying at a court-martial.”   Meek, 44 M.J. at

5; see also Webb v. Texas, 409 U.S. 95, 98 (1972) (holding that

the defendant’s due process rights were violated when the trial

judge singled out the only defense witness and indicated to that

witness that he expected the witness to lie and would personally

ensure that the witness was prosecuted for perjury and thereby

“effectively drove that witness off the stand”); United States

v. Vavages, 151 F.3d 1185, 1189 (9th Cir. 1998) (concluding that

although perjury warnings are not improper per se, it may be

prosecutorial misconduct if “the prosecutor or trial judge

employs coercive or intimidating language or tactics that

substantially interfere with a defense witness’ decision whether

to testify”); United States v. Heller, 830 F.2d 150, 153-54

(11th Cir. 1987) (concluding that when a government agent

intentionally threatened and attempted to scare a defense

witness concerning his testimony on behalf of the defendant, the

defendant had “been deprived of an important defense witness by

substantial interference on the part of the government” and was

therefore entitled to a new trial); United States v. Hammond,



                                11
United States v. Edmond, No. 03-0086/AR

598 F.2d 1008, 1012-13 (5th Cir. 1979) (noting that

“‘substantial government interference with a defense witness’

free and unhampered choice to testify violates due process’

rights of the defendant” and concluding that a government

statement to a witness that he would have “nothing but trouble”

if he testified on behalf of defense requires reversal (quoting

United States v. Henricksen, 564 F.2d 197, 198 (5th Cir.

1977))); United States v. Morrison, 535 F.2d 223, 229 (3d Cir.

1976) (“[P]rosecutorial misconduct caused the defendant’s

principal witness to withhold out of fear of self-incrimination

testimony which would otherwise allegedly have been available to

the defendant.”).

     The DuBay judge found no unlawful attempts by Bovarnick and

Beyea to dissuade McQueen from testifying, but rather found that

the purpose of the meeting among Bovarnick, Beyea and McQueen

was to inform McQueen that he could be prosecuted as a civilian

if he perjured himself.   He also found that this warning was

given “to protect Mr. McQueen and not for the purpose of

influencing him against testifying” and that McQueen was not

threatened or intimidated in any way.   Finally, he found that

McQueen did not testify because he did not want to be involved

in the prosecution of his friend and that regardless, “whatever

Mr. McQueen would have said, he could not have helped this

accused.”



                                12
United States v. Edmond, No. 03-0086/AR

     Initially, it is questionable whether it was proper for

Bovarnick to warn McQueen about the consequences of perjury.

McQueen told Bovarnick he would have testified that he believed

he and Edmond had authorization to obtain the phones in

question.   Bovarnick testified that this was contrary to the

testimony of two Government witnesses who would testify that

McQueen and Edmond did not have authority to obtain the phones,

but only the authority to look into getting the phones.

Bovarnick stated that because McQueen’s potential testimony

contradicted that of his witnesses, he believed it was a lie.

He told McQueen he knew McQueen was lying and if McQueen

testified as he proposed then he would be prosecuted for

perjury.

     The United States Court of Appeals for the Ninth Circuit

has stated:

            That [the witness]’s testimony would have
            contradicted the testimony of the
            government’s own witnesses does not form a
            sufficient basis for the prosecutor’s
            warning. Rather, unusually strong
            admonitions against perjury are typically
            justified only where the prosecutor has a
            more substantial basis in the record for
            believing the witness might lie -- for
            instance, a direct conflict between the
            witness’ proposed testimony and her own
            prior testimony.

Vavages, 151 F.3d at 1190.   Bovarnick has provided no basis for

concluding that McQueen’s testimony would be a lie other than

McQueen’s “demeanor” and the fact that his testimony


                                 13
United States v. Edmond, No. 03-0086/AR

contradicted the testimony of Government witnesses.   Bovarnick

did not testify that he relied on any evidence that McQueen had

previously stated he did not actually believe he and Edmond were

authorized to obtain the phones when they did so.   In fact,

McQueen’s potential testimony was consistent with Edmond’s

version of events surrounding the acquisition of the cell phones

in his sworn statements made to investigators.

      Even if the proposed testimony of the Government’s

witnesses was truthful -- that McQueen did not actually have

authority to obtain the phones -- that would not automatically

lead to the conclusion that McQueen was lying when he said that

he believed he had the authorization.   It is not uncommon in

litigation, or in life in general, for individuals to have

different perceptions of the same event.   The fact that two

witnesses have conflicting views of an event does not mean,

without more, that either witness is intentionally testifying

falsely.   Here the difference in the testimony was that the

Government witnesses would testify that Edmond and McQueen were

only authorized to look into obtaining the cell phones while

McQueen would testify that he thought they had authority to

acquire the cell phones.

      In addition, Bovarnick did more than simply give a perjury

warning to McQueen.   He told him, “I know that that is a lie. .

. .   I am going to make sure that the S.A.U.S.A. [Special



                                14
United States v. Edmond, No. 03-0086/AR

Assistant United States Attorney] sits in and listens to you

testify to that and then basically admonish you -- not admonish

you, but let him know what the potential repercussions would be

for committing perjury.”   Following that, Beyea, the Special

Assistant United States Attorney, informed McQueen “of the

consequences of perjury based upon our information and belief

that McQueen was not going to be truthful.”   She explained if he

perjured himself “the government would seek justice” even though

he was a civilian.

     The United States Court of Appeals for the Ninth Circuit

has held that a prosecutor “substantially interfered” with a

witness’s decision to testify where he “combined a standard

admonition against perjury -- that [the defense witness] could

be prosecuted for perjury in the event she lied on the stand --

with an unambiguous statement of his belief that [the witness]

would be lying if she testified in support of [the defendant’s]

alibi.”   Vavages, 151 F.3d at 1190.   The court concluded that

“the additional statement served as no more than a thinly veiled

attempt to coerce a witness off the stand.”   Id.

     Bovarnick and Beyea speculated that McQueen’s proposed

testimony was a lie and combined it with a warning that the

Government would prosecute McQueen if he testified.   This

combination substantially interfered with McQueen’s decision to

testify by causing him to believe that if he went into the



                                15
United States v. Edmond, No. 03-0086/AR

courtroom and testified as he intended he would be “charged

again,” despite the fact that there were no grounds established

at the DuBay hearing to believe that he intended to do anything

other than testify truthfully.

     We conclude, therefore, that the DuBay judge’s finding that

the purpose of the warning was to protect McQueen and not to

influence him not to testify was clearly erroneous.   We conclude

that the trial counsel’s actions substantially interfered with

McQueen’s decision whether to testify and had the effect of

unlawfully dissuading a subpoenaed defense witness from

testifying at Edmond’s court-martial.   See Meek, 44 M.J. at 5

(“Several legal norms are violated when a trial counsel attempts

to or unlawfully dissuades a defense witness from testifying at

a court-martial.”).5

     We next turn to the DuBay judge’s finding that “McQueen did

not testify because he didn’t want to testify.   Although I can’t

identify who gave Mr. McQueen the option to testify or not

testify, no one forced his decision one way or another.”   This


5
  We emphasize that our analysis is fact-specific, and that
prosecutors and military judges may provide appropriate
information to witnesses about the consequences of perjury.
“‘It is not improper per se for a trial court judge or
prosecuting attorney to advise prospective witnesses of the
penalties for testifying falsely. But warnings concerning the
dangers of perjury cannot be emphasized to the point where they
threaten and intimidate the witness into refusing to testify.’”
United States v. Hooks, 848 F.2d 785, 799 (7th Cir. 1988)
(quoting United States v. Blackwell, 694 F.2d 1325, 1334 (D.C.
Cir. 1982)).

                                 16
United States v. Edmond, No. 03-0086/AR

finding is also inconsistent with the evidence before us.

Beyea’s affidavit clearly states that she and Bovarnick told

McQueen it was his “his decision about testifying at Edmond’s

court-martial.”   McQueen testified Bovarnick told him he could

testify or not testify and he chose not to because he “didn’t

want to be there anyway.”   The finding that it was impossible to

identify who gave McQueen the option to testify or not testify

is clearly erroneous as the record reflects that Bovarnick and

Beyea told him he had that option.

     This conversation and the subsequent release of McQueen as

a witness are particularly problematic as McQueen was under a

subpoena requested by the defense and could not choose to leave

without testifying unless the defense agreed to release him and

the subpoena was quashed by the military judge.   Under Rule for

Courts-Martial (R.C.M.) 703(b)(1), a party “is entitled to the

production of any witness whose testimony on a matter in issue

on the merits . . . would be relevant and necessary.”   The trial

counsel is obligated to arrange for the presence of any witness

requested by the defense “unless the trial counsel contends that

the witness’ production is not required under this rule.”

R.C.M. 703(c)(2)(D).   After subpoenaing McQueen on behalf of the

defense, Bovarnick was not authorized to tell McQueen that he

could choose to either testify or not testify.




                                17
United States v. Edmond, No. 03-0086/AR

     While the record concerning the advisement and invocation

of McQueen’s Fifth Amendment rights is unclear, one thing is

certain -- nothing in the record reflects that any attorney

involved in this proceeding advised McQueen of his Fifth

Amendment rights and McQueen does not remember either being

advised of those rights or invoking them.   Bovarnick testified

he did not advise McQueen of his rights nor did he know who

McQueen told that he was invoking his Fifth Amendment rights,

but that “he told somebody.”    McQueen, however, only met that

day with Bovarnick and Beyea.   Defense counsel did not meet with

McQueen at all that day and did not remember how he found out

that McQueen was going to invoke his rights.   His only

recollection regarding McQueen’s decision not to testify was

that Bovarnick informed him that McQueen chose not to testify in

the case, but he did not inquire further into McQueen’s reasons

for this decision.

     In summary, Bovarnick’s speculation that McQueen would

perjure himself does not provide a basis for telling McQueen he

did not have to testify.   There is no evidence that McQueen had

been advised of or was invoking his Fifth Amendment rights when

Bovarnick told McQueen he was free to leave.   Bovarnick’s

release of McQueen from the subpoena added to the substantial

interference with McQueen’s decision not to testify on behalf of

the defense.



                                 18
United States v. Edmond, No. 03-0086/AR

      Although we conclude that the prosecution’s actions

substantially interfered with McQueen’s decision whether or not

to testify, that does not end the prosecutorial misconduct

analysis.   Even if we were to find misconduct on the part of the

prosecutor, this court will go on to look at the “overall effect

of counsel’s conduct on the trial, and not counsel’s personal

blameworthiness.”   Thompkins, 58 M.J. at 47.   “In assessing

prejudice, we look at the cumulative impact of any prosecutorial

misconduct on the accused’s substantial rights and the fairness

and integrity of his trial.”   United States v. Fletcher, 62 M.J.

175, 184 (C.A.A.F. 2005).   Our prosecutorial misconduct analysis

is closely intertwined with the question of whether Edmond’s

defense attorney was ineffective by failing to talk with a

potentially exculpatory defense witness before agreeing to

release the witness.   We therefore need to assess the impact of

trial counsel’s actions on the integrity and fairness of

Edmond’s trial in light of the defense counsel’s inaction and

acquiescence in entering into the stipulation of fact that

McQueen would invoke his Fifth Amendment rights if called to

testify without personally discussing that decision with

McQueen.

II.   INEFFECTIVE ASSISTANCE OF COUNSEL

      As noted, we apply the two-pronged test for ineffective

assistance of counsel set forth by the United States Supreme



                                19
United States v. Edmond, No. 03-0086/AR

Court in Strickland.   Under this test “an appellant must show

that counsel’s performance fell below an objective standard of

reasonableness -- that counsel was not functioning as counsel

within the meaning of the Sixth Amendment” and the appellant

must demonstrate that “there is a reasonable probability that,

but for counsel’s error, there would have been a different

result.”   Davis, 60 M.J. at 473.    Our review of counsel’s

performance is highly deferential and is buttressed by a strong

presumption that counsel provided adequate professional service.

See United States v. Garcia, 59 M.J. 447, 450 (C.A.A.F. 2004).

The presumption of competence is rebutted by a showing of

specific errors made by defense counsel that were unreasonable

under prevailing professional norms.    United States v.

McConnell, 55 M.J. 479, 482 (C.A.A.F. 2001).

     We note that Appellant’s trial defense counsel, Libby,

testified at the DuBay hearing that he was informed by trial

counsel that McQueen did not want to testify in the case.      He

admitted he did not speak to McQueen and receive this

information himself, but that he “probably should have.”       He

also conceded he should have done more to preserve the record on

the question of whether and why McQueen was invoking his Fifth

Amendment rights in refusing to testify.

     These admissions are striking in light of Libby’s stated

belief that McQueen had testimony that was favorable to his



                                20
United States v. Edmond, No. 03-0086/AR

client, even if he could not remember what that testimony would

have been.    In fact, McQueen’s testimony at the DuBay hearing

revealed that he would have corroborated Edmond’s statements to

investigators that they believed they had been authorized to

obtain the cell phones and that they had no agreement to keep

the phones.

        At the time of trial Libby requested that McQueen be

subpoenaed so that he could obtain his testimony on behalf of

Edmond.    Despite this initial effort to secure McQueen’s

testimony, when Libby was informed that McQueen would not

testify he did not ask to meet with McQueen to determine the

substance of his testimony or whether he had been properly

advised of his Fifth Amendment rights or was in fact asserting

those rights.    Instead, he entered into a stipulation of fact

that had the effect of releasing McQueen from his obligation to

testify and allowing a corroborating witness to leave the

courthouse without testifying.

        The lower court concluded that entering into the

stipulation of fact was a reasonable tactical decision by the

defense.    Edmond, No. ARMY 9900904, slip op. at 5-6.     Libby,

however, never alleged at the DuBay hearing that he had made a

tactical decision, but rather admitted that he should have made

further inquiry into the events surrounding the stipulation of

fact.    Furthermore, even if Libby ultimately might not have



                                  21
United States v. Edmond, No. 03-0086/AR

chosen to have McQueen testify, he certainly -- as Libby himself

admits -- “should have” looked into the question further and

taken “a better course of action for preserving the record.”     We

see no reasonable explanation for his failure to look into the

issue further before entering into the stipulation of fact.

       McQueen was present at the courthouse on the day of the

trial and Libby could easily have questioned him regarding his

decision not to testify.   Because McQueen was a subpoenaed

defense witness, if Libby wanted him to testify he needed only

ask the military judge for a hearing regarding the reasons

behind McQueen’s refusal to testify and further inquiry would

have been made.   See R.C.M. 703(b)(3); Military Rule of Evidence

804(a)(1).   Instead, he entered into the stipulation of fact

without any objection thereby signifying his agreement to

McQueen’s departure.   Libby’s failure to take simple steps to

secure the testimony of a witness that he had previously deemed

relevant and necessary to Edmond’s case fell measurably below

the level of performance we would expect of a lawyer, and

overcomes our presumption of competence.   McConnell, 55 M.J. at

482.

       The appropriate test for prejudice under Strickland is

whether there is a reasonable probability that, but for

counsel’s error, there would have been a different result.

Davis, 60 M.J. at 473; United States v. Quick, 59 M.J. 383, 387



                                 22
United States v. Edmond, No. 03-0086/AR

(C.A.A.F. 2004).    The result of Libby’s errors was that

McQueen’s testimony was never heard by the members.      McQueen

would have testified that he and Edmond were tasked with

obtaining cell phones for the battalion and he believed they

were authorized to obtain them.    He also would have stated that

at the time they obtained the phones they intended to return the

cell phones to the unit for their authorized use.    He would have

testified there was no agreement between the two of them to keep

the cell phones, but after they were told the unit no longer

wanted the cell phones they simply kept the phones for their own

personal use.    Finally, McQueen could not recall any

conversation between Edmond and himself during which they agreed

to misuse the telephones they had obtained.

     McQueen’s proposed testimony raises questions as to certain

elements of Charge I (conspiracy to commit larceny) and Charge

IV (larceny).    The specification of Charge I alleging a

conspiracy to commit larceny required that the two “entered into

an agreement . . . to commit an offense under the code.”      Manual

for Courts-Martial, United States pt. IV, para. 5.b.(1) (2005

ed.) (MCM).     McQueen specifically testified that the two never

formed an agreement and his testimony therefore could have

raised a question in the members’ minds as to whether this

element was met.    Additionally, the second element of the

conspiracy charge, and the basis for the charge of larceny in



                                  23
United States v. Edmond, No. 03-0086/AR

Charge IV, required that the Government prove Edmond committed

larceny by “wrongfully” obtaining the cell phones using a

“misrepresentation” that he “knows . . . to be untrue. . . .”

See MCM pt. IV, para. 5.b.(2); MCM pt. IV, para. 46.b.(1),

c.(1)(e).   McQueen’s testimony that he believed they were

authorized to obtain the phones could have raised a question in

the members’ minds as to whether the two of them obtained the

phones “wrongfully.”

     We also cannot ignore the fact that trial defense counsel

did not just fail to secure McQueen’s testimony, he went on to

enter the stipulation of fact into evidence, thereby placing

before the members the information that Edmond’s coconspirator

could not testify without incriminating himself.   Nor can we

ignore the fact that Bovarnick specifically told the members in

his closing argument that they could not hear from McQueen about

whether there was an agreement between him and Edmond to obtain

the cell phones because he had invoked his “right against self-

incrimination.”

     Because McQueen’s testimony could have raised these

questions in the members’ minds, there is a reasonable

possibility that without Libby’s error there would have been a

different result.   Therefore, we conclude that trial defense




                                24
United States v. Edmond, No. 03-0086/AR

counsel provided ineffective assistance and we set aside the

guilty findings for Charge I and Charge IV.6

                            CONCLUSION

     The decision of the United States Army Court of Criminal

Appeals is reversed as to Charge I and Charge IV, and the

findings of guilty to those charges and the sentence are set

aside.   The record of trial is returned to the Judge Advocate

General of the Army for remand to the Court of Criminal Appeals.

That court may either dismiss Charge I and Charge IV and

reassess the sentence, or it may order a rehearing.




6
  We note that Edmond was charged separately for wrongfully
disposing of the cellular telephones and wrongfully obtaining
service for the phones, and that these charges are not affected
by our decision today.

                                25
