Petition for Writ of Certiorari — Robertson v. United States

Supreme Court, Th. a

FILED

94 355 AUG 26 om

No. OFFICE OF THE CLERK

In the Supreme Court of the United States

OCTOBER TERM, 1994

TOMMY L. ROBERTSON, PETITIONER

v.

UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

PETITION FOR WRIT OF CERTIORARI

JAY LINDSEY COHEN

Colonel, United States Air Force

Chief, Appellate Defense Division

Counsel of Record

J. KNIGHT CHAMPION, III

Captain, United States Air Force

Appellate Defense Counsel

Counsel for the Petitioner

AIR FORCE LEGAL SERVICES AGENCY

Appellate Defense Division

172 Luke Avenue, Suite 208

Bolling AFB, DC 20332-5113

August 1994

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QUESTION PRESENTED

Whether petitioner was denied effective assistance of

counsel, since his counsel abandoned his duties during the

post-trial process.

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

SUPREME COURT CASES:

Geders y. United States, 425 U.S. 80 (1976)

Perry v. Leche, 488 U.S. 272 (1989) ....---.+-->>

Strickland v. Washington, 466 U.S. 668 (1984) ...

MILITARY CASES:

United States yv. Spurlin, 33 M.J. 443

en |) Se cc

United States v. Robertson, 34 M.J. 1206

(A.F.C.M.R. 1992); 39 M.J. 211 (C.M.A.

0 Oe Fae ae er rer ee ee

Page

In the Supreme Court of the United States

OcTOBER TERM, 1994

No.

TOMMY L. ROBERTSON, PETITIONER

Vv.

UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

PETITION FOR WRIT OF CERTIORARI

The petitioner, Tommy L. Robertson, respectfully

prays that a writ of certiorari issue to review the order and

judgment of the United States Court of Military Appeals

entered in his case on 31 May 1994.

OPINIONS BELOW

The order and judgment of the United States Court of

Military Appeals, reported at 39 M.J. 211 (C.M.A. 1994)

is located at Appendix A. The decision of the United

States Air Force Court of Military Review, reported at 34

M.J. 1206 (A.F.C.M.R. 1992) is located at Appendix B.

JURISDICTION

The final order of the United States Court of Military

Appeals was entered on 31 May 1994. The jurisdiction of

this Court is invoked under 28 U.S.C.A. § 1259(3) (Supp.

1993) and 10 U.S.C.A. § 867(a) (Supp. 1993).

l

CONSTITUTIONAL PROVISION ENVOLVED

The Sixth Amendment of the Constitution of the United

States provides in relevant part: “In all criminal prosecu-

trons, the accused shall enroy the right .. . to have the

Assistance of Counsel for his defense.”

STATEMENT OF THE CASE

At a general court-martial convened at McConnell Air

Force Base, Kansas, petitioner was convicted, by a panel

ot officer members, of wrongful use of cocaine. He was

sentenced to a bad conduct discharge, six months confine-

ment, forfeiture of all pay and allowances, and reduction

to the lowest enlisted grade.

The Petitioner was represented at trial by a civilian

defense counsel, Mr. Howard L. Jenkins, Jr., and by a

detailed military counsel, Captain Stanley E. Field. After

the president announced the sentence, the judge asked

which defense counsel would be handling the post-trial

representation, and Mr. Jenkins replied, “At this time,

your honor, I will.” When the government sought to serve

the Staff Judge Advocate’s recommendation on both Mr.

Jenkins and Captain Field, Captain Field refused to be

served. The 10-day period to submit a response (pursant to

R.C.M. 1106(f)) and clemency matters (pursuant to

R.C.M. 1105) began running in this case upon service of

the recommendation to Mr. Jenkins on 28 September

1990, and it expired on 9 October 1990, the first business

day after the 10 days elapsed. On 10 October 1990, Mr.

Jenkins asked for an extension of 36 days until 15

November 1990. In this request, he stated, “[djue to the

pressing responsibilities, counsel for the appellant was

distracted and his failure to file the response in a timely

manner was due to excusable neglect.”

Although the convening authority did not have to grant

this request, he did grant il, in part, until 17 October 1990.

Mr. Jenkins failed to submit any clemency matters, OF

anything in response to the Staff Judge Advocate’s recom

mendation.

Petitioner did prepare and submit a 17 page handwritten

response to the Staff Judge Advocate’s recommendation,

without the assistance of counse’ Petitioner did not sub-

mit any clemency matters. Nunm.crous attempts to contact

Mr. Jenkins after the 17 October 1990 deadline and before

2§ October 1990 were unsuccessful.

The Air Force Court of Military Review held that peti-

tioner was denied the effective assistance of counsel. The

Court stated:

[T]he civilian defense counsel, who had performed

respectably at trial, apparently made no effective ef-

forts to learn about the post-conviction procedures.

His request for an extension of time, for example,

asked a period greater than that permitted by the

statute [R.C.M. 1105(c)(1)], and it is phrased in the

language of a civilian’s request for permission to file

notice of an appeal. Nothing in the record permits us

to infer that Sergeant Robertson had the benefit of

consultation with competent counsel, and chose, as a

matter of strategy, to remain silent. Instead, every in-

dication suggests that this valuable opportunity was

lost because the civilian defense counsel didn’t know

what he was doing.

The detailed military defense counsel appears to have

abandoned his client after trial, but we cannot be cer-

tain. It is true, for example, that “[a] lawyer may limit

the objectives of the representation if the client con-

sents after consultation.” However, in military prac-

tice, there is a very strong theme that defense

4

counsel’s representation must continue through the

post-trial activities until counsel is succeeded. . . . It

appears to us that military counsel quit too soon.

United States v. Robertson, 34 M.J. 1206, 1211

(A.F.C.M.R. 1992). (Citations omitted)

The Court, however, held that the petitioner was not

prejudiced by the ineffectiveness, since he did not inform

the Court that he instructed his counsel to prepare or sub-

mit anything. Also, the matters submitted by the peti-

tioner, without the assistance of counsel, did not raise

anything that would have been likely to result in any relief

from the convening authority. Robertson, 34 M.J. at

1211-1212.

The United States Court of Military Appeals granted

review of the decision of the Air Force Court of Military

Review. In that opinion, the Court of Military Appeals

held that the petitioner did not meet the burden of show-

ing that counsel did not exercise reasonable diligence in

submitting post-trial matters for appellant. United States

v. Robertson, 39 M.J. 211, 218 (CM.A. 1994).

REASON FOR GRANTING THE WRIT

t. tloner’s case raises important questions concerning

the Sixth Amendment right to counsel in post-trial pro-

ceedings. It is axiomatic in military and civilian law that an

accused is entitled to effective assistance of counsel

throughout the entire trial, post-trial and appellate pro-

cess.

In Strickland v. Washingion, 466 U.S. 668 (1984), this

Court set out a two-part test to review claims of ineffective

assistance of counsel: 1) Whether the counsel’s perfor-

mance was deficient, and 2) Whether the deficient perfor-

mance prejudiced the defense.

5

The standard of review is different in a case where an

accused has been denied counsel. Actual or constructive

denial of assistance of counsel altogether is not subject to

the kind of prejudicial analysis that is appropriate in deter-

mining whether the quality of a lawyer’s performance

itself has been constitutionally inef fective. Perry v. Leche,

488 U.S. 272 (1989). Actual or constructive denial of the

assistance of counsel altogether is legally presumed to

result in prejudice. Strickland, at 692.

Another case involving denial of assistance of counsel

was Geders v. United States, 425 U.S. 80 (1976). In that

case, the petitioner testified on his own behalf, and the

trial judge recessed for the night before cross-

examination. The judge ordered the petitioner not to

discuss the case with his attorney during the overnight

recess. This Court held that this was a denial of assistance

of counsel.

The military courts have addressed the importance of

post-trial and clemency submissions. In one case, the

defense counsel was late in submitting post-trial matters,

and the convening authority did not consider them. The

Court of Military Appeals held that the failure to consider

the post-trial clemency submission prejudiced accused and

justified the return of the trial record to the Judge Ad-

vocate General of the Army. United States v. Spurlin, 33

M.J. 443 (C.M.A. 1991).

In the case sub judice, the facts are more egregious,

since the defense counsel never submitted any matters.

Mr. Jenkins’ failure to submit any post-trial matters

demonstrates that the petitioner was not only denied the

effective assistance of counsel, but that he was denied

assistance of counsel altogether. The record is clear that

Mr. Jenkins requested an extension of the deadline to sub-

mit post-trial matters. This indicates that the petitioner in-

tended to submit something. In addition, the petitioner’s

6

17 page submission indicates that he wanted the convening

authority to at least consider exercising his discretion and

granting clemency or some other form of relief. Although

the petitioner submitted matters alleging errors at trial, he

did not submit any clemency matters.

The Court of Review held that the petitioner was denied

the effective assistance of counsel, but that there was no

prejudice. The Court also held that the petitioner’s own

submission, prepared without the assistance of counsel,

did not raise anything that was likely to result in any relief

from the convening authority. Robertson, 34 M.J. at

1211-1212. This reasoning seems circular, since the peti-

tioner’s own response should not be expected to be of the

caliber that would convince the convening authority to

grant relief —that is the purpose of counsel. The petitioner

attempted to legally analyze everything at trial that he

perceived as error; he was not qualified to do so.

The petitioner also did not submit any clemency mat-

ters. Clemency was the means of relief most likely to be

granted, especially since the petitioner had 19 years of ser-

vice. Being just one year away from being retirement eligi-

ble, the petitioner was a prime candidate for clemency. If

the petitioner had been afforded the assistance of counsel,

he would have known that submitting clemency matters

was crucial.

If a convening authority has not seen a convicted ser-

vicemember’s clemency submission, it is well estab-

lished that he has not been afforded his best hope for

sentence relief.

Spurlin, at 445.

The Court of Military Appeals held that the petitioner

had not met his burden of showing that counsel did not ex-

ercise reasonable diligence in submitting post-trial matters

for appellant. Robertson, 39 M.J. at 218. The Court made

this ruling without explanation or analysis.

CONCLUSION

A clear understanding of what constitutes ineffective

assistance of counsel, denial of counsel, and the difference

between the two is crucial to an understanding of the Sixth

Amendment right to counsel, as it applies to the post-

sentencing process. The resolution of this case will settle

the question of whether counsel’s abandonment of duties

during the post-trial process constitutes ineffective

assistance of counsel.

Respectfully submitted,

JAY LINDSEY COHEN

Colonel, United States Air Force

Chief, Appellate Defense Division

Counsel of Record

J. KNIGHT CHAMPION, III

Captain, United States Air Force

Appellate Defense Counsel

Counsel for the Petitioner

AIR FORCE LEGAL SERVICES AGENCY

172 Luke Avenue, Suite 208

Bolling AFB, DC 20332-5113

(202) 767-1562

August 1994

APPENDIX

APPENDIX A

U.S. COURT OF MILITARY APPEALS

No. 68,330.

CRM No. 28955.

UNITED STATES, APPELLEE,

Vv.

TOMMY L. ROBERTSON, TECHNICAL SERGEANT,

U.S. AiR FORCE, APPELLANT.

Argued Oct. 6, 1993.

Decided May 31, 1994.

Accused was convicted by a general court-martial,

Gregg H. Reinecke, J., of using cocaine. The United

States Air Force Court of Military Review, affirmed, 34

M.J. 1206. Review was granted. The United States Court

of Military Appeals, Crawford, J., held that: (1) error in

permitting trial counsel to attack credibility of defense

witness based on arrest was harmless; (2) testimony re-

garding accused’s character for truthfulness was properly

excluded; and (3) accused was not denied posttrial effec-

tive assistance of counsel.

Affirmed.

For Appellant: Captain Ursula P. Moul (argued); Col-

onel Terry J. Woodhouse (on brief); Colonel Jay L.

Cohen and Major Mary C. Yastishock.

(la)

2a

For Appellee; Captain Timothy G. Buxton (argued);

Colonel Richard L. Purdon and Colonel Jeffrey T. In-

felise (on brief); Lieutenant Colonel Thomas E. Schlegel,

Lieutenant Colonel Brenda J. Hollis, Major Morris D.

Davis, Captain David C. Wesley.

Opinion of the Court

CRAWFORD, Judge:

Contrary to his pleas, appellant was found guilty, by a

general court-martial with members, of using cocaine, in

violation of Article 112a, Uniform Code of Military

-Justice, 10 USC § 912a. He was sentenced to a bad-

conduct discharge, confinement for 6 months, total

forfeitures, and reduction to the lowest enlisted grade. The

convening authority approved the sentence, and the Court

of Military Review affirmed the findings and sentence. 34

MJ 1206 (1992). We granted review on the following

issues:

I

WHETHER THE AIR FORCE COURT OF

MILITARY REVIEW ERRED IN HOLDING NO

MATERIAL PREJUDICE RESULTED WHEN

THE MILITARY JUDGE ALLOWED THE TRIAL

COUNSEL, OVER OBJECTION, TO ATTACK

THE CREDIBILITY OF MS. MINTER BASED ON

HER ARREST FOR CONSPIRACY TO COMMIT

FRAUD.

II

WHETHER THE AIR FORCE COURT OF

MILITARY REVIEW ERRED IN HOLDING NO

MATERIAL PREJUDICE RESULTED WHEN

THE MILITARY JUDGE DID NOT ALLOW A

DEFENSE WITNESS TO TESTIFY THAT AP-

PELLANT WAS LAW-ABIDING.

heen

3a

itl

WHETHER THE AIR FORCE COURT OF

MILITARY REVIEW ERRED IN HOLDING NO

MATERIAL PREJUDICE RESULTED WHEN

THE APPELLANT WAS DENIED POST-TRIAL

EFFECTIVE ASSISTANCE OF COUNSEL.

For the reasons set forth herein, we affirm.

FACTS

Appellant tested positive for cocaine as the result of a

lawful mandatory urinalysis drug test. His defense was in-

nocent ingestion. His roommate, Ms. Minter, a recovering

drug addict, testified that several days before appellant’s

urinalysis test, she had visited a park where she drank beer

and purchased almost a gram of cocaine. When the police

started to close down the park, she put the cocaine in her

beer to avoid being caught with it and drank about half of

the beer on her way home. At home she placed the beer on

the coffee table and went to the bathroom. When she

returned, the beer was gone, and she assumed that ap-

pellant had taken it. Appellant testified that he drank the

beer, not knowing that it was laced with cocaine.

Dr. Wallace, a government expert witness who testified

as to the laboratory report, indicated that the accused’s

urine showed 628 nanograms of cacaine. Dr. Wallace

opined that, even if appellant had ingested the entire

amount of cocaine purchased by Ms. Minter in the park

and dumped into her can of beer, statistical projections in-

dicated that only 50 to 150 nanograms of cocaine

metabolite would be present in appellant’s urine 66 hours

later. Dr. Wallace further opined that the accused would

have had to ingest a “near fatal” amount of cocaine for

628. nanograms of the metabolite to have been present 66

hours later.

4a

Issue I

{1, 2] At trial, trial counsel asked Ms. Minter on cross-

examination:

Q. Now, you’ve had some problems with honesty be-

fore, haven’t you, Miss Minter?

A. No.

Q. Do you remember back in September of ’84, having

some problems — you were arrested for conspiracy to

commit fraud, and attempted burglary?

A. Id’ rather—I plead the Fifth on that. I don’t want

to have anything—answer anything about my past

that doesn’t have anything to do with this case.

After a motion to strike her testimony, the military judge

convened a session under Article 39(a), UCMJ, 10 USC

§ 839(a), without the members present. At this session the

prosecutor argued that both conspiracy to commit fraud

and attempted burglary were “directly [related] to her

character for truthfulness.” He also indicated there was a

“good-faith basis” for the question because it was based

upon an FBI report, although he did noy know the

underlying facts.

Civilian defense counsel argued that a mere arrest not

amounting to a conviction could not be used for impeach-

ment purposes. Defense counsel also argued that the

evidence was inadmissible under Mil.R.Evid. 404(b),

Manual for Courts-Martial, United States, 1984.' The

judge overruled defense counsel’s objection.

' Evidence admissible under Mil.R.Evid. 404(b), Manual for Court-

Martial, United States, 1984, is admissible as substantive evidence on

the merits, whereas evidence admissible under Mil.R.Evid. 608(b) is

only admissible to determine the credibility of the witness. Likewise,

Mil.R.Evil. 608(b) prohibits proving the act by extrinsic evidence,

whereas under Mil.R.Evid. 404(b), the cross-examiner need not “take

the answer” the witness gives concerning MI.R.Evil. 404(b) matters

since extrinsic evidence is admissible.

Sa

When the court members reconvened, the prosecutor

renewed and emphasized his question and asked Ms.

Minter:

| was asking a line of questions about, if you had

problems in the past with honesty or truthfulness, and

you said no. And I asked you if you didn’t think that

having been arrested in September of 1984 for con-

spiracy to commit fraud would be something involv-

ing honesty and truthfulness. I ask you that again?

She replied, “No.” Trial counsel accepted this answer

without follow-up questions.

The court below determined that “[a]n arrest is govern-

mental conduct, not conduct of the witness.” Therefore,

they found error in using an arrest for impeachment pur-

poses but found the error to be harmless. Jd. at 1208. In

United States v. Toro, 37 MJ 313, 315 (CMA 1993), we

said, “There are three evidentiary stages which concern the

credibility of witnesses at trial: bolstering, impeachment,

and rehabilitation.”

Issue 1 concerns the impeachment stage. There are

numerous methods of impeachment, including use of

specific instances of misconduct,prior convictions, con-

tradition, inconsistent statements, inconsistent acts, bias,

and deficiencies in the elements of competency. Id. at 315.

The method at issue here is impeachment by specific in-

stances of conduct —in this case an arrest for conspiracy to

commit fraud and attempted burglary. Mil.R.Evid.

608(b), which is substantially the same as Fed.R.Evil.

608(b), provides:

Specific instances of conduct of a witness, for the

purpose of attacking or supporting the credibility of

the witness, other than conviction of crime as pro-

vided in Mil.R.Evid. 609, may not be proved by extin-

sic evidence. They may, however, in the discretion

6a

of the military judge, if probative of truthfulness or

untruthfulness, be inquired into on cross-examination

of the witness (1) concerning character of the witness

for truthfulness or untruthfulness. .. .

(Emphasis added.) Impeachment under Mil.R.Evid.

608(b) and Fed.R.Evid. 608(b) may not be based merely

upon any instance of misconduct but, rather, upon con-

duct that relates to untruthfulness.?

{3, 4] In order to have proper cross-examination as to

misconduct relating to untruthfulness: (1) there must be a

good-faith belief by the opponent that the conduct oc-

curred; and (2) the conduct must relate to instances of un-

truthfulness. Cf. Michelson v. United States, 335 U.S.

469, 69 S.Ct. 213, 93 L.Ed. 168 (1948). As to (1), a rap

sheet from a law enforcement agency, in this case the FBI,

can furnish the good-faith belief that conduct occurred if

it details the underlying facts for the arrest. People v.

Williams, 228 Cal.App.3d 146, 152, 278 Cal.Rptr. 801,

804 (1991). A prosecutor who is not using a detailed rap

sheet or is not acting in good faith can be called to the

witness stand at an Article 39(a) session to furnish the

basis for his information. See United States v. Cardarella,

570 F.2d 264, 268 (8th Cir.1978), cert. denied, 435 U.S.

997 , 98 S.Ct. 1651, 56 L.Ed.2d 87 (1978). The problem in

this case was that the rap sheet did not recite the underly-

ing facts for the arrest. Further trial counsel told the

military judge he did not know the underlying facts but

only that Ms. Minter was arrested for conspiracy to com-

mit fraud and attempted burglary. It is difficult for us to

hold that trial counsel had a good-faith belief that Ms.

Minter participated in the alleged crimes when trial

counsel did not know the underlying facts of the arrest.

[5] As to (2) and as the Court of Military review implied,

an arrest alone without showing the underlying cir-

* In my personal riew, there are different degrees of probativeness

relating to truthfulness starting with a lie, statement of an informant

as to misconduct, an arrest, and a conviction.

Ta

cumstances is not probative of cedibility. 34 MJ at 1208.

See also Michelson v. United States, 335 U.S. at 482, 69

S.Ct. at 221; 3A Wigmore, Evidence § 980a at 835-36

(Chadbourn rev.1970). The questioner must demonstrate

that the arrest was based on acts affecting credibility,

United States v. Amahia, 825 F.2d 177, 181 (8th

Cir.1987), or the arrest record impeaches a witness’ asser-

tion that the arrestee enjoys a reputation as a law-abiding

person, Michelson v. United States, 335 U.S. at 483-84, 69

S.Ct. at 222, or that the arrest shows prior untruthful

statements by a testifying defendant, United States v.

Farias-Farias, 925 F.2d 805, 809-11 (Sth Cir.1991).

Mil.R.Evil. 608(b) does not define what acts relate to

truthfulness or untruthfulness. However, Mil.R.Evid.

609(a)(2) speaks in terms of “dishonesty or false state-

ment.” As to what has a bearing on truthfulness, this

Court stated in United States v. Weaver, 1 MJ itl, 118 n.

6 (1975), the following:

Acts of perjury, subornation of perjury, false state-

ment, or criminal fraud, embezzlement or false

pretense are, for example, generally regarded as con-

duct reflecting adversely on an accused’s honesty and

integrity. Acts of violence or crimes purely military in

nature, on the other hand, generally have little or no

direct bearing on honesty and integrity.

6] Likewise, in United States v. Leake, 642 F.2d 715,

719 (4th Cir.1981), the Court held it was improper for the

trial judge to preclude the defense from cross-examining

the key witness about defrauding an innkeeper and failure

to repay loans. These offenses involved instances of un-

truthfulness. See also United States v. Owens, 21 MJ 117,

123 (CMA 1985) (court permitted cross-examination of

appellant about “international falsehood under oath” in a

warrant-officer application); United States v. Page, 808

F.2d 723, 730 (10th Cir.1987) (including within

8a

Fed.R.Evil. 608(b) would be forgery, uttering forged in-

struments, bribery, suppression of evidence, false

pretense, cheating, and embezzlement), cert. denied, 482

U.S. 918, 107 S.Ct. 3195, 96 L.Ed.2d 683 (1987), disap-

proved sub nom. United States v. Williams, USS.

" , 112 S.Ct. 1735, 1737, 1746, 118 L.Ed.2d

352 (1992): United States v. Amahia, 825 F.2d at 181

(“Rule 608(b) will permit inquiry into the specific acts

which may have led to an arrest if those acts related to

crimen falsi, e.g., perjury, subornation or perjury, false

statement, embezzlement, false pretenses”); United States

v. Beros, 833 F.2d 455, 463 (fid Cir.1987) (lying on mar-

riage license). Cf. United States v. Newman, 849 F.2d 156,

161 (Sth Cir.1988) (failure to reveal possible arrest for

shoplifting and misdemeaner arrest for theft/destruction

of private property does not violate Brady v. Maryland,

373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) because

they may not be used for impeachment). Thus, the key to

the impeachment question is not the fact of the arrest itself

but, instead, whether the underlying facts of the arrest

relate to truthfulness or untruthfulness. The record of ap-

pellant’s trial does not reveal the underlying facts of the

conspiracy to commit fraud or the attempted burglary.

Obviously, there are various degrees of offenses. We do

not know whether the conspiracy to commit fraud was

based upon an allegation that the witness signed her

spouse’s income tax return wherein they took an improper

deduction of $25.00 or whether it was based upon

something more. We also do not know how far the witness

had allegedly gone to commit attempted burglary. Thus,

we are unable to determine whether those offenses relate

to untruthfulness.

[7-9] Even where there has been a proper showing of the

underlying circumstances there are still some limitations

on impeachment by instances of conduct. For example,

9a

if the witness denies the conduct, it “may not be proved by

extrinsic evidence.” Mil.R.Evid. 608(b). This is unlike im-

peachment by prior convictions which may be proven

through a third party or through appropriate documents.

Additionally, the judge has the discretion to require

counsel to ask only about the underlying conduct without

mentioning the term “arrest.” Mil.R.Evid. 403. The judge

may also exercise discretion and exclude the testimony

altogether, depending on the importance or lack of impor-

tance of the testimony, the age of the conduct, the rela-

tionship of the misconduct to truthfulness or un-

truthfulness, wether the matter would lead to a time-

consuming and distracting explanation on cross-

examination or recross-examination and undue prejudice.

Cf. United States v. Frazier, 14 MJ 772, 779 (ACMR

1982), pet. denied, 16 MJ 93 (1983).

We hold that the prosecutor met neither prong of the

iwo-prong test for impeachment by specific instances of

conduct under Mil.R.Evid. 608(b). Because he did not

know the underlying facts, trial counsel was unable to

relate them to Ms. Minter’s untruthfulness. We hold the

questioning of Ms. Minter about her prior arrest was er-

ror. Under the facts of this case, however, we agree with

the Court of Military Review that the error was harmless.

Issue Il

[10] While Issue I concerned impeachment of the

witness’ credibility, this issue concerns bolstering a

witness’ credibility by introducing reputation evidence or

opinion evidence as to truthfulness and the interrelation-

ship with the character-evidence rules.

The defense called Mrs. McCullough as a character

witness. She was a friend of the accused and his landlady

at the time of trial. She knew him for 2 years and had

Per seinen niin sliiiaitiiatiiainia cai

10a

shared a residence with appellant for 3 months. After

establishing that Mrs. McCullough had known appellant

for 2 years, defense counsel asked, “Have you had the op-

portunity to ever see or hear about Sergeant Robertson

ever using any type of drugs?” After a government objec-

tion, the defense made an offer of proof that the purpose

of the question was to establish “that the defendant is

against the use of drugs.” The judge sustained the objec-

tion and asked counsel to reword the question. The

defense rephrased the question asking, during the time

you’ve known him, “how would you describe your rela-

tionship with him?” Mrs. McCullough responded, and the

following colloquy ensued:

As good friends. I don’t — you know, I lived, I was liv-

ing by myself when we was neighbors, and he would

take time with my grandkids, or if I needed a ride to

the grocery store or to the laundry, or something like

that, you know he would take time out and do this for

me. And my son was there staying with me, and he

was on drugs, and he was stealing from me, and you

know, I was going through problems, and I would sit

and talk to him about it. And even though he was so

dead-set against people on drugs —

TC: We renew our objection, your honor.

MJ: Objection sustained. Members, disregard that

tesitmony as to specific instances of conduct. Mr.

Jenkins, lay the foundation and elicit either opinion,

or testimony as to the accused’s reputation for a perti-

nent character trait.

+ * *

[CDC]: Mrs. McCullough, do you have an opinion

as to the defendant’s character and honesty in the

community?

lla

A: Well, like I said, he lives with me now, and he

goes to church with me, and I know I can speak for

while he’s living with me, because, you know, he goes

to church with me, and everything, and he doesn’t do

anything there.

CDC: Just a moment, your honor.

Q: What is your opinion of his character?

TC: Your honor, what character trait?

MJ: Mr. Jenkins, what character trait are we ask-

ing about?

CDC: How do you describe his character as far as

honesty?

TC: Your honor, the accused hasn’t placed his

character for honesty in issue, because he hasn’t taken

the stand.

MJ: Mr. Jenkins, what’s your response to that?

CDC: Your honor, I think the defendant’s honesty

is in question because his credibility, as well as

whether or not he ingested cocaine back on, or at least

had cocaine in his system back on April 18th, 1990,

whether or not he did knowingly. I would suggest to

this court that his honesty is in question, as to

whether or not he’s telling the truth.

MJ: Well, the government objection is sustained.

His character for honesty and veracity hasn’t been

placed in issue because he hasn’t testified.

CDC: I agree with that.

MJ: At this point in time it’s not a pertinent

character trait.

CDC: Okay, your honor. Those are all the ques-

tions I have at this time, your honor.

12a

{11] There are three character-evidence rules that comes

into play: Mil.R.Evid. 608(a); > Mil.R.Evil. 404(a); * and

Mil.R.Evil. 405(a).° Mil.R. Evid. 608(a) addresses bolster-

ing or impeaching with opinion and reputation-type

evidence of truthfulness or untruthfulness. Mil.R.Evid.

404(a) and 405(a) deal with introduction of character

evidence on the merits. As to admissibility of evidence to

prove the accused’s character, the key is held by the ac-

cused. The prosecution may not in the first instance in-

troduce this kind of evidence, not because it is irrelevant

but because it may be too prejudicial. Michelson v. United

> Mil.R.Evil. 608(a) provides:

Opinion and reputation evidence of character. The credibility of

a witness may be attacked or supported by evidence in the form

of opinion or reputation, but subject to these limitations: (1) the

evidence may refer only to character for truthfulness or un-

truthfulness, and (2) evidence of truthful character is admissible

only after the character of the witness for truthfulness had been

attacked by opinion or reputation evidence or otherwise. |

* Mil.R.Evid. 404(a) provides: ,

Character evidence generally. Evidence of a person’s character

or a trait of a person’s character is not admissible for the purpose

of proving that the person acted in conformity therewith on a

particular occasion, except:

(1) Character of the accused. Evidence of a pertinent trait of the

character of the accused offered by an accused, or by the prosecu-

tion to rebut the same... .

> Mil.R.Evid. 405(a) provides:

————————————aeeowrrrrreereor

Reputation or opinion. In all cases in which evidence of character

or a trait of character of a person is admissible, proof may be

made by testimony as to reputation or by testimony in the form

of an opinion. On cross-examination inquiry is allowable into

relevant specific instances of conduct.

l3a

States, 335 U.S. at 475-76, 69 S.Ct. at 218-19.°

The Court of Military Review interpreted the witness’

testimony that “he was so deadset against people on drugs”

as “analogous to ‘law-abiding-ness.’ ” The court found:

[We] are confident that the witness would have

testified that she believed Sergeant Robertson to be

intolerant of drug abuse and abusers. That trait of

character would have been relevant as tending to

make more probable the defense theory that his inges-

tion was innocent. We will assume that the inquiry

should have been permitted.

34 MJ at 1209. However, the burden is upon the propo-

nent to set forth or make an offer of proof of his or her

evidence. Mil.R.Evid. 103(a)(2). Here the judge specifical-

ly asked defense counsel to lay a proper foundation for

Mrs. McCullough’s opinion of appellant’s reputation, but

defense counsel failed to do so. In order to be admitted on

the merits, character evidence must relate to a “pertinent

[character] trait.” Mil.R.Evid. 404(a). The judge asked

6 “Courts that follow the common-law tradition almost unanimous-

ly have come to disallow resort by the prosecution to any kind of

evidence of a defendant’s evil character to establish a probability of

his guilt. Not that the law invests the defendant with a presumption of

good character, but it simply closes the whole matter of character,

disposition and reputation on the prosecution’s case-in-chief. The

State may not show defendant’s prior trouble with the law, specific

criminal acts, or ill name among his neighbors, even though such facts

might logically be presuasive that he is by propensity a probable

perpetrator of the crime. The inquiry is not rejected because character

is irrelevant; on the contrary, it is said to weigh too much with the jury

and to so overpersuade them as to prejudge one with a bad general

record and deny him a fair opportunity to defend against a particular

charge. The overriding policy of excluding such evidence, despite its

admitted probative value, is the practical experience that its

disallowance tends to prevent confusion of issues, unfair and undue

prejudice.” (Footnotes and citation omitted.)

l4a

what character trait civilian defense counsel was seeking to

prove by Mrs. McCullough’s testimony; counsel asserted it

was “character as far as honesty.” The judge responded

that this would not be admissible because appellant’s

character for honesty had not yet been placed in issue

because appellant had not testified. Counsel neither

sought to have Mrs. McCullough’s testimony introduced

to prove what was at issue nor to recall her following ap-

pellant’s testimony or ask for conditional admission of the

evidence based on appellant’s anticipated testimony.

Based on the responses from defense counsel, we hold

that the judge did not err in precluding testimony as to the

accused’s honesty.

Issue Ill

{12} At trial civilian defense counsel indicated that he

would represent the accused concerning the staff judge ad-

vocate (SJA)’s post-trial recommendation. After the

statutory 10-day response period had expired, defense

counsel asked for approximately a 36-day delay to respond

to the SJA’s post-trial recommendations. This was denied,

but defense counsel was granted an 8-day delay. In the

meantime appellant filed a 17-page handwritten personal

commentary on his trial. Civilian defense counsel never

filed a document.

{13, 14] Military defendants are entitled to the effective

assistance of counsel during the post-trial appellate pro-

cesses. United States v. palenius, 2 MJ 86 (CMA 1977).

After trial, when there is representation by civilian

counsel, it is advisable for the military judge, as was done

in this case, to determine on the record who will represent

appellant.

In determining whether this counsel was effective we ap-

ply the two-prong Strickland v. Washington, 466 U.S.

Pan go Lae

1Sa

668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) standard: (1)

whether counsel was reasonably competent and (2) if not,

whether the accused was prejudiced. See also Lockhart v.

Fretwell, U.S. , 113 S.Ct. 838, 122 L.Ed.2d 180

(1993); United States v. Scott, 24 MJ 186 (CMA 1987).

[15] There are various post-trial responsibilities of

defense counsel during the four levels of post-trial review.

There are two mandatory reviews, first by the convening

authority and second by the Court of Military review. The

third review is, in most cases, by a discretionary appeal to

the United States Court of Military Appeals. Finally, if the

case is decided by our Court, then the fourth review is by a

writ or a discretionary appeal to the United States

Supreme Court.

As to the first review, the one at issue here, there are

numerous actions appellant’s counsel can take. Counsel

may petition for deferment of confinement, respond to the

SJA’s recommendation, or even assist appellant in putting

family affairs in order. Regardless of indigency, an ap-

pellant whose sentence included a punitive discharge is en-

titled to a verbatim record of trial. Art. 54, UCMJ, 10

USC § 854. This record of trial is to be served on the

defense, along with the SJA’s recommendation. Certainly

there is a denial of effective assistance of counsel when

counsel is not “conflict free.” United States v. Leaver, 36

MJ 133 (CMA 1992).

Under the facts of this case, we hold that appellant has

not met his burden of showing that counsel did not exer-

cise reasonable diligence in submitting post-trial matters

for appellant. Based on the presumption of competence

set forth in Strickland, see 466 U.S. at 689, 104 S.Ct. at

2065, appellant has the burden of showing that his counsel

was deficient and that the deficiency prejudiced him, see

id. Appellant has not carried that burden.

_

l6a

The decision of the United States Air Force Court of

Military Review is affirmed.

Chief Judge SULLIVAN and Judges Cox, GIERKE, and

Wiss concur.

17a

U.S. AIR FORCE

COURT OF MILITARY REVIEW

ACM 28955.

UNITED STATES, APPELLEE,

Vv.

TOMMY L. ROBERTSON, TECHNICAL SERGEANT,

FR449-84-6693, U.S. AIR FORCE, APPELLANT.

Sentence Adjudged 29 Aug. 1990.

Decided 11 June 1992.

Accused was convicted by a general court-martial,

Gregg H. Reinecke, J., of having using cocaine. Accused

appealed. The United States Air Force Court of Military

Review, James, J., held that: (1) error in permitting im-

peachment of defense witness by witness’ prior arrest was

not prejudicial; (2) assuming that defense counsel should

have been permitted to question witness regarding ac-

cused’s character, there was no prejudice; and (3) failure

of defense counsel to give effective posttrial representation

did not prejudice accused.

Affirmed.

Appellate Counsel for the Appellant: Colonel Jeffrey R.

Owens and Major Bernard E. Doyle, Jr.

Appellate Counsel for the United States: Colonel

William R. Dugan, Jr., Lieutenant Colonel Brenda J.

Hollis, Major Paul H. Blackwell, Jr., and Major Morris

D. Davis.

18a

Before LEONARD, RIVES, and JAMES, Appellate Military

Judges.

OPINION OF THE COURT

JAMES, Judge:

Technical Sergeant Robertson was convicted of having

used cocaine.' On review he appeals two rulings on

evidence, the instructions on findings, and the effec-

tiveness of the post-trial representation he received. We

find errors but not prejudice, and we affirm.’

I. Impeachment By Arrest

{1] Sergeant Robertson called his female housemate (a

platonic friend) to establish his defense that his ingestion

of cocaine was innocent, without knowledge and uninten-

tional. She admited to having been a user of cocaine. Ac-

cording to her, she bought for herself the cocaine that

Sergeant Robertson eventually ingested, panicked at the

sight of police, and poured it all into a can of beer that she

had. She said that she went home with the beer, left it

unattended, and that Sergeant Robertson drank the beer,

not knowing what was in it. Trial counsel sought to im-

peach her:

' Article 112a, UCMJ, 10 U.S.C. § 912a (1988). Sergeant Robert-

son was sentenced by the general court-martial, composed of

members, to be discharged from the service with a bad-conduct

discharge, to be confined for 6 months, to forfeit all pay and

allowances for 6 months, and to be reduced to E-1. The sentence was

approved as adjudged.

2 Sergeant Robertson also invites our attention to the denial of a

challenge for cause. We find no abuse of discretion. See United States

v. Jobson, 31 M.J. 117, 122 (C.M.A.1990).

19a

TC: Now, you’ve had some problems with honesty be-

fore, haven’t you. . .?

Wit: No.

TC: Do you remember back in September of ’84, having

some problems — you were arrested for conspiracy to

commit fraud, and attempted burglary?

Wit: I’d rather —I plead the Fifth on that. I don’t want

to have anything—answer anything about my past

that doesn’t have anything to do with this case.

TC: Motion to strike this witness’ testimony.

The motion to strike led to discussion of the admissibility

of the answer sought. Trial counsel maintained (as we

understand his remarks) that the arrest was evidence of

“some problems with honesty” and would show that the

witness’ denial was false. Accordingly, trial counsel denied

any intent to impeach under Mil.R.Evid. 609 by showing a

prior conviction. In his view, the prior arrest was evidence

of a specific instance of conduct by the witness into which

he was permitted to inquire under Mil.R.Evid. 608(b). Of

course, just as the defense counsel noted, the arrest is not

an instance of conduct by the witness; it is conduct by the

authorities.2 The defense entered a specific objection

> Apparently trial counsel, Captain J. Bryan Howell, never grasped

the significance of the distinction. He had no evidence of a conviction

or of the underlying conduct by the witness, if any. When asked

whether he did, he twice referred to the process as a game, once Say-

ing, “If we’re going to play these stupid little games, we can do it the

whole schmear.” We do not regard the application of the President’s

rules of evidence to events at a felony trial as games of any sort.

However, we recall the stresses of trials, and we notice that neither the

ABA Model Rules of Professional Conduct, rule 3.5 and commen-

tary, nor its corollary, Air Force Rules of Professional Responsibility,

rule 3.5 (4 December 1989), include such unfortunate phraseology as

misconduct. Nonetheless, Captain Howell’s remarks added nothing to

his argument and detracted from the dignity of this trial. See also

20a

during the discussion, belatedly but nonetheless timely

enough to preserve the issue. See Mil.R.Evid. 103(a). The

military judge overruled the objection. The question was

posed anew, and the witness answered:

TC: . . . Lasked you if you didn’t think that having been

arrested in September of 1984 for conspiracy te com-

mit fraud would be something involving honesty and

truthfulness. I ask you that again?

Wit: No.

{2] Now, in the peaceful and orderly review of the

transcript on appeal, it is clear that the objection should

have been sustained, and it was error to permit the ques-

tion.* An arrest is governmental conduct, not conduct

Air Force Regulation 111-1, “Military Justice Guide,” para. 12-16 (30

September 1988).

Mere seconds later, Captain Howell sought to impeach the same

witness by showing that her testimony was inconsistent with a state-

ment she made earlier to police. He unnecessarily asked her whether

she recalled telling the officer that Robertson “has slapped her,” too.

The defense moved in limine to foreclose any further such revelations,

and the military judge asked for trial counsel’s comments on the mo-

tion:

MJ: [Summing up] Okay, so you want to restrict the govern-

ment. Trial counsel, what’s your response?

TC: Well, why don’t we just let them ask my questions for me?

Taking the reply in context, without the benefit of inflection, we give

Captain Howell the benefit of the doubt and assume that his rhetorical

question was simply a forensic device to emphasize his disagreement

with the defense motion, which he then stated. Even so, it was in poor

taste and uncivil. Military Judges must intervene to assure that trials

are conducted by the professional members of courts-martial with the

dignity that our tradition deserves. R.C.M. 801(a)(2), (3).

* Trial counsel’s subtle change, soliciting agreement that such an ar-

rest would affect trustworthiness, is transparent and does not affect

our view.

Pa Te of ee a ne eT

—-—. a, .S eS eee

ee ee eee

a

2la

of the witness, and it says nothing about the witness’

credibility.’ The extent to which a witness may be im-

peached is within the discretion of the trial judge, United

States v. Tyler, 26 M.J. 680, 681-82 (A.F.C.M.R.1988),

afffd, 28 M.J. 253 (C.M.A.1989), cert. denied, 493 U.S.

814, 110 S.Ct. 62, 107 L.Ed.2d 29 (1989), and the same

standard applies to methods of impeachment, see United

States v. Brenizer, 20 M.J. 78 (C.M.A.1985). The logical

connection between credibility and an arrest is so distant

that we hold that it is an abuse of discretion to permit a

witness to be impeached by evidence of a mere arrest or, in

military parlance, apprehension.

{3] Having found error, we must determine whether

any material prejudice to a substantial right resulted. Arti-

cle 59(a), UCMJ, 10 U.S.C. § 859(a) (1988). We conclude

that it did not. First, the witness answered the question

and denied the embedded assertion. Thus, if we trust court

members at all to discriminate between counsels’ questions

an witnesses’ answers, we must conclude that any error in

permitting the question was nullified by the answer. Sec-

ond, we note that this witness’ credibilty was limited by

other aspects of the case. She confessed to having been a

frequent abuser of drugs and alcohol. She was accused of

‘> The underlying conduct of the witness might have, but trial

counsel was apparently unable to address it. Cf. United States v.

Wilson, 12 M.J. 652, 653 (A.C.M.R.1981) (“The Article 15 [punish-

ment imposed for the underlying misconduct] . . . represents an ac-

cusation of misconduct and a determination by the commanding of-

ficer that the misconduct occurred even when it may not in fact have

taken place. . . .”). Both the distinction between arrest and miscon-

duct and the inappropriateness of impeachment by arrest are dis-

cussed well at IIIA J. Wigmore, Wigmore on Evidence § 980a (Chad-

bourn rev. 1970). Of course, a conviction does say something about a

witness. That is why Mil.R.Evid. 609 exists. We find facetious trial

counsel’s theory that he might do under Mil.R.Evid. 608 what he ob-

viously was unprepared to do under Mil.R.Evid. 609.

22a

having often taken Sergeant Robertson’s car without per-

mission, and he wanted her to move out of the house in

which they resided together because of her behavior. She

does not appear from the record —ignoring the prior ar-

rest—te be a person of pure character. Instead, her

testimony needed help to be credible. As we see below, the

converse happened: Other, internal defects in the defense

case detracted from its credibility. This error was

harmless.

Il. Character for Truthfulness

14] Sergeant Robertson called another resident of the

house in which he lived, and she was asked about his

character:

DC: Have you had the opportunity to ever see or hear

about Sergeant Robertson ever using any type of

drugs?

Trial counsel objected that the inquiry sought to prove

chracter by specific acts and that it did not focus on a trait

of character in controversy, both in violation of

Mil.R.Evid. 405(a). The military judge sustained the ob-

jection and invited the defense to rephrase, and it did, first

eliciting the witness’ relationship with Sergeant Roberison.

In the course of her reply, the witness volunteered:

Wit: ... . And even though he was so deadset against

people on drugs —

TC: We renew our objection, your honor.

MJ: Objection sustained. Members, disregard that tes-

timony as to specific instances of conduct. [Defense

counsel], lay the foundation and elicit another opin-

ion, Or testimony as to the accused’s reputation for a

pertinent character trait.

23a

The defense then turned from Sergeant Robertson’s at-

titude about insobriety to his character for honesty. That

inquiry was properly foreclosed without objection because

he had not yet testified.

On appeal Sergeant Robertson argues by analogy to

decisions that hold admissible one’s good military

character and character for the trait of being law-abiding.

See United States v. Hurtt, 22 M.J. 134 (C.M.A.1986)

(good military character admissible in NCO’s trial for drug

offenses); United States v. Clemons, 16 M.J. 44

(C.M.A.1983) (good military character admissible when

accused, charge of quarters, sought to teach subordinates

a lesson). See generally United States v. Wilson, 28 M.J.

48, 49 n. 1 (C.M.A.1989) (collects cases). Nothing

resembling good military character is involved here, but

the testimony sought, volunteered, and excluded is

analogous to “law-abiding-ness.” We can tell only a little

of what would have been elicited, cf. Mil.R.Evid.

103(a){2), but we are confident that the witness would

have testified that she believed Sergeant Robertson to be

intolerant of drug abuse and abusers. That trait of

character would have been relevant as tending to make

more probable the defense theory that his ingestion was in-

nocent. We will assume that the inquiry should have been

permitted.

We still find no harm. Article 59(a), UCMJ, 10 U.S.C.

§ 859(a)(1988). Our conclusion results from the four-

factor analysis in United States v. Weeks, 20 M.J. 22, 25

(C.M.A.1985). The evidence did put Sergeant Robertson’s

credibility, “law-abiding-ness,” and sobriety in contest,

but one witness’s opinion would not have tipped the scales;

the contest was settled by inconsistencies in Sergeant

Robertson’s own account and by the inconsistency of his

version with the science explained by the prosecution’s tox-

icologist.. A little bolstering of Sergeant Robertson’s

24a

credibility would have been nice, but it would never have

made the difference. Thus, while the prosecution’s case

was not conclusive, it was strong, and the defense theory

was enfeebled by its internal defects. Even though there

was no substitute for the excluded testimony, its quality

was hardly pivotal. Accordingly, relief is not warranted.

lil. The Instructions

15] Sergeant Robertson contends that the military

judge’s instructions to the members on how to deal with

permissible inferences of wrongfulness were flawed.

Perhaps they were, but any error in those instructions was

waived by the failure of the accused to assert it below or to

propose alternative instructions. R.C.M. 920(f); United

States v: Smith, 34 M.J. 200 (C.M.A.1992) (decided

recently, well after this case was briefed). We have com-

pared the posture of this case and the instructions in it to

those in Smith, and we find them to be virtually identical.

Accordingly, there is no plain error here that would excuse

the appellant from the consequences of his waiver. /d.

IV. Post-Trial Representation

[6] Finally, Sergeant Robertson asserts that he was

denied his Sixth Amendment right to counsel because he

did not have the effective assistance of counsel’s represen-

tation after trial. We agree, but we find no prejudicial ef-

fect.

The results of a court-martial are examined by the com-

mander who convened the court-martial, and that com-

mander has the responsibility for acting on the sentence,

approving it as adjudged, reducing it, or disapproving it

altogether. Article 60, UCMJ, 10 U.S.C. § 860 (1988);

R.C.M. 1107. The accused may submit “matters for con-

sideration” to the convening authority, which typically ask

ee a Raed ot

thn 0 sen Shits ana

25a

clemency but may also include claims of legal error. Arti-

cle 60(b), UCMJ, 10 U.S.C. § 860(b) (1988); R.C.M.

1105. Furthermore, the commander has the recommenda-

tions of his staff judge advocate, and the accused is entitl-

ed to comment on those recommendations. R.C.M.

1106(f). The accused has (in this case) 10 days from the

service of the record of trial or of the recommendations

(whichever is later) in which to reply, and the commander

may, for good cause shown, extend the period for 20 days.

Article.60(b), UCMJ, 10 U.S.C. § 860(b) (1988); R..M.

1105(c)(1), 1106(f)(5).

During trial the military judge asked which defense

counsel would be handling the post-trial representation,

and the civilian defense counsel replied, “At this time,

your honor, I will.” When the government sought to serve

the recommendations on both the civilian and the detailed

military defense counsel, the military lawyer refused to be

served.© The 10-day period began running in this case

upon service of the recommendations upon the civilian

defense counsel on 28 September 1990, and it would have

expired on 9 October 1990, the first business day after the

10 days elapsed. Defense counsell asked an extension of

about 36 days until 15 November 1990. The request was

granted in part, giving counsel until 17 October. During

the period, Sergeant Robertson filed 17 pages of com-

ments on the trial, to which the staff judge advocate

replied in his addendum, see R.C.M. 1106(d)(4), but the

6 We do not understand such a reaction. The agreements between

co-counsel delineating who will do what do not relieve either from

vulnerability to service of notices required by law. While R.C.M.

1 106(f)(2) sets an order in which the required service must be sought, it

does not prohibit the government’s effort to serve all counsel. Such an

effort to do more than is required is commendable. While the un-

necessary service might have no legal consequence, it helps assue that

the accused is best helped by his counsel.

26a

defense counsel never filed anything.’ Though Sergeant

Robertson signed the universal request for appellate

representation, no one assigned any errors in the space

provided on that form.®

{7] There is no doubt that the right to effective as-

sistance of counsel continues after trial. See, e.g., United

States v. Calderson, 34 M.J. 501 (A.F.C.M.R.1991).

Civilian counsel need not be competent in every aspect of

military criminal law before they accept a client whose

case will be tried by a court-martial: “A lawyer can provide

adequate representation in a wholly novel field through

necessary study. Competent representation can also be

provided through the association of a lawyer of establish-

ed competence in the field in question.” ABA Model Rules

of Professional Conduct, commentary accompanying rule

1.1 (1983). Nevertheless, it is apparent to us that the

defense counsel in this case failed to provide competent

post-trial representation. See also id., rule 1.3 (diligence).

’ There are papers filed with the record after it was received at the

Office of The Judge Advocate General but not moved by either party

on appeal. Accordingly, we have not regarded them as part of this

record, and we have not considered them. Were we to consider them,

they would explain that the staff judge advocate’s reply to the request

for an extension was received at civilian defense counsel’s office but

filed by his secretary, who did not bring it to his attention. He main-

tains that he thought all was well, but such a posture is inconsistent

with the notice provided to him by Article 60, UCMJ, 10 U.S.C. § 860

(1988); R.C.M. 110S5(c)(1), 1106(f)(S), and the written advice to

Sergeant Robertson dated 29 August 1990 and on which the civilian

defense counsel was listed as an intended recipient of an information

copy.

* Regretably, the large space provided for that purpose rarely has

any entries.

27a

Instead, the civilian defense counsel, who had per-

formed respectably at trial, apparently made no effective

efforts to learn about the post-conviction procedures. His

request for an extension of time, for example, asked a

period greater than that permitted by the statute, and it is

phrased in the language of a civilian’s request for permis-

sion to file notice of an appeal. Nothing in the record per-

mits us to infer that Sergeant Robertson had the benefit of

consultation with competent counsel and chose, as a mat-

ter of strategy, to remain silent. Instead, every indication

suggests that this valuable opportunity was lost because

the civilian defense counsel didn’t know what he was

doing.

The detailed military defense counsel appears to have

abandoned his client after trial, but we cannot be certain.

It is true, for example, that “[a] lawyer may limit the ob-

jectives of the representation if the client consents after

consultation.” Air Force Rules of Professional Respon-

sibility, rule 1.2(c) (4 December 1989); accord, ABA

Model Rules of Professional Conduct, rule 1.2(c) (1983).

However, in military practice there is a very strong theme

that defense counsel’s representation must continue

through the post-trial activities until counsel is succeeded.

See, e.g., United States v. Palenius, 2 M.. 86, 92-93

(C.M.A.1977) (“fragmented, noncontinuous representa-

tion,” “maintain the attorney-client relationship . . . until

. . appellate counsel have been designated and have com-

menced the performance of their duties”). It appears to us

that military defense counsel quit too soon. At the very

minimum, he should have assured that the civilian defense

counsel was acquainted with the procedure and aware of

the time limits for the post-trial submissions and

responses.

We need not reach any conclusions of fact or law about

military counsel’s perfrmance to dispose of this case, for it

28a

is clear that Sergeant Robertson did not get the representa-

tion to which he was entitled after trial. This situation did

not become clear to the staff judge advocate and conven-

ing authority until after action had been taken. After that

point, it became impossible for the convening authority to

fix the problem without our intervention. See R.C..

1107(g).

Accordingly, we hold that the failure of the defense

counsel to give timely assistance to Sergeant Robertson in

the preparation of his post-trial submissions to the con-

vening authority under Article 60 constituted ineffective

assistance of counsel. However, the inquiry does not end

there. As we discussed in Calderon, 34 M.J. at 504-505, we

must examine the events to see whether there was any pre-

judicial effect.

{8] An appellant who complains of ineffective assistance

bears the burden of showing that the ineffectiveness pre-

judiced him. See generally United States v. Barnard, 32

M.J. 530 (A.F.C.M.R.1990), pet. denied, 33 M.J. 484

(C.M.A.1991). Despite the present assistance of appellate

counsel, Sergeant Robertson has not brought to our atten-

tion what other matters he would have submitted to the

convening authority, had he been helped as he should have

been. Cf. United States v. Curry, 31 M.J. 359, 376-77

(C.M.A.1990); United States v. Rogers, 21 M.J. 435, 437,

439 (C.M.A.1986); United States v. Smart, 21 M.J. 15, 18

(C.M.A.1985); Calderon, 34 M.J. at 504. He has not in-

formed us that he instructed his counsel to prepare or sub-

mit anything. Cf. Curry, 31 M.J. at 376-77. We have ex-

amined the matters that Sergeant Robertson submitted,

and they raise nothing which would have been likely to

result in any relief from the convening authority. Cf.

United States v. Reddick, 32 M.J. 967, 968

(A.C.M.R.1991), pet. denied, 34 M.J. 68 (C.M.A.1991).

We have also examined the entire record for legal érror,

29a

factual sufficiency, and matters affecting the appro-

priateness of the sentence, as we always must, Article 66(c)

UCMJ, 10 U.S.C. § 866(c) (1988), and we found nothing

which we think would have warranted any relief had they

been brought to the convening authority’s attention. Ac-

cordingly, we conclude that Sergeant Robertson has not

sustained his burden of showing that the ineffectiveness of

counsel had any prejudicial effect. No relief is warranted.

The findings of guilty and the sentence are correct in law

and fact and, on the basis of the entire record, are

AFFIRMED.

Senior Judge LEONARD and Judge RIVES concur.

U.S. GOVERNMENT PRINTING OFFICE: 1994—379-705/87038