28 M.J. 125 | United States Court of Military Appeals | 1989
Bradford was tried by a general court-martial with officer members; and contrary to his pleas, he was found guilty of possessing a switch-blade knife, in violation of a lawful general regulation, and assaulting another, thereby intentionally inflicting grievous bodily harm, in violation of Articles 92 and 128, Uniform Code of Military Justice, 10 USC §§ 892 and 928, respectively. His sentence was a bad-conduct discharge and confinement for 9 months. The convening authority approved the sentence; and the Court of Military Review affirmed the findings and sentence in a short-form opinion.
In the Court of Military Review appellate defense counsel did not independently assign error; but they did present in footnote form issues which appellant wished to have raised. Cf. United States v. Grostefon, 12 MJ 431 (CMA 1982). Similar pleadings were filed in this Court after the accused had petitioned for review. We specified two issues for review:
I
WHETHER THE EVIDENCE IS SUFFICIENT AS A MATTER OF LAW TO REBUT THE DEFENSE OF SELF-DEFENSE.
II
WHETHER APPELLANT RECEIVED EFFECTIVE ASSISTANCE OF COUNSEL IN HIS POST-TRIAL REPRESENTATION.
Appellant had been at a dancing club on the evening of February 3, 1987, when a friend who was dancing asked Bradford to hold his knife, which was falling from his pocket while he danced. Later that evening, Bradford began to argue with Specialist Four Mark J. Robertson. Ultimately, Robertson hit appellant, who then brandished the knife in self-defense. The two men fell to the floor and began to scuffle. During the scuffle, the victim was stabbed.
According to the evidence, Robertson had a reputation for being aggressive and had engaged in other altercations prior to his encounter with appellant. Moreover, Robertson did not appear at the Article 32, UCMJ, 10 USC § 832, hearing and was absent without leave at the time of appellant’s trial. Bradford’s chain of command
After we granted review of this case, appellate defense counsel filed an unopposed motion to remand to the Court of Military Review. However, we decided to hear argument on the motion, in order to determine whether any need existed to remand the case; or whether we could dispose of the case a this time. During oral argument on the motion, we directed the attention of appellate defense counsel to the same concerns which we have discussed in United States v. Baker, 28 MJ 121 (CMA 1989), and we received similar responses from those counsel. Just as in Baker, we conclude here that appellate defense counsel did not fail in their duty to provide effective representation.
However, since the motion to remand is unopposed by the Government, we remand this case to the Court of Military Review to allow counsel an opportunity to file any additional pleadings there, if they choose to do so.
The decision of the United States Army Court of Military Review is set aside. The record of trial is returned to the Judge Advocate General of the Army for submission to that court for further proceedings. Thereafter, the record will be returned to this Court.
