# Petition for Writ of Certiorari — Robertson v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1995
- **Citation:** 513 U.S. 1076

## Text

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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REASON FOR GRANTING THE WRIT ........... 4
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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0327%3A1. Public record. Not legal advice.