3 M.J. 430 | United States Court of Military Appeals | 1977
Lead Opinion
Opinion of the Court
The appellant was convicted of unlawful possession of a switchblade knife, and robbery, in violation of Articles 92 and 122, Uniform Code of Military Justice, 10 U.S.C. §§ 892 and 922, respectively. He was sentenced to a dishonorable discharge, total forfeitures and confinement at hard labor for 2 years. Both the convening authority and the United States Army Court of Military Review approved the findings and sentence. The issue for resolution is the stan
Examination of the record and allied papers
Counsel for the appellant, in reliance upon our decisions of United States v. Lovett, 7 U.S.C.M.A. 704, 23 C.M.R. 168 (1957), and United States v. Thornton, 8 U.S.C.M.A. 57, 23 C.M.R. 281 (1957), argue that, under the facts of this case, the accused was denied effective assistance of counsel. They contend that an accused has a right to undivided loyalty from his attorney,
The principal difficulty for this Court in resolving the questions presented lies with the failure of the trial judge to ascertain on the record the existence of any potential conflicts of interest or divisions of loyalty by the counsel, and to, in turn, advise this accused of the situation as well as its ramifications, and then elicit from him an informed decision as to whether he desired to proceed with his counsel or retain/obtain another. We find the perfunctory inquiry
Examination of the applicable federal case law reveals that the courts in this highly sensitive area have developed a procedure to insure that the dilemma presented to us in this ease does not occur. Recognizing that one of the very fundamental bases of a fair trial is the right of an accused in a criminal prosecution to the effective assistance of counsel,
A problem which has characterized military trial practice and distinguishes it from its federal counterpart is an insensitivity to situations of dual representation, and the attendant conflicts of interests and divisions of loyalty. In both United States v. Evans, 1 M.J. 206 (1975), and United States
In accordance with the foregoing principles, we instruct the district court to follow a procedure akin to that promulgated in F.R.Crim.P. 11 whereby the defend- ■ ant’s voluntariness and knowledge of the consequences of a guilty plea will be manifest on' the face of the record. .
As in Rule 11 procedures, the district court should address each defendant personally and forthrightly advise him of the potential dangers of representation by counsel with a conflict of interest. The defendant must be at liberty to question the district court as to the nature and consequences of his legal representation. Most significantly, the court should seek to elicit a narrative response ■ from each defendant that he has been advised of his right to effective representation, that he understands the details of his attorney’s possible conflict of interest and the potential perils of such a conflict, that he has discussed the matter with his attorney or if he wishes with outside counsel, and that he voluntarily waives his Sixth Amendment protections. Cf. United States v. Foster, 469 F.2d 1 (1st Cir. 1972). It is, of course, vital that the waiver be established by “clear, unequivocal, and unambiguous language.” National Equipment Rental v. Szukhert, 375 U.S. 811, 84 S.Ct. 411, 11 L.Ed.2d 354, 367-8 (1964). Mere assent in response to a series of questions from the bench may in some circumstances constitute an adequate waiver, but the court should nonetheless endeavor to have each defendant personally articulate in detail his intent to forego this significant constitutional protection. Recordation of the waiver colloquy between defendant and judge will also serve the government’s interest by assisting in shielding any potential conviction from collateral attack, either on Sixth Amendment grounds or on a Fifth or Fourteenth Amendment “fundamental fairness” basis.
If the guidance set forth in this procedure is followed, the trial judge would fulfill his
The decision of the United States Army Court of Military Review is reversed. The record of trial is returned to the Judge Advócate General. A rehearing may be ordered.
. Although we are normally precluded from consideration of the allied papers in our review of a case, United States v. Bethea, 22 U.S.C.M.A. 223, 46 C.M.R. 223 (1973), we may consider such evidence and other matters outside the record where the question of effectiveness of counsel is concerned. See United States v. Hancock, 49 C.M.R. 830 (A.C.M.R. 1975); United States v. Gaillard, 49 C.M.R. 471 (A.C.M.R. 1974); United States v. Zuis, 49 C.M.R. 150 (A.C.M.R. 1974).
. Uniform Code of Military Justice, 10 U.S.C. § 832.
. As will be detailed in later portions of this opinion, this record is barren of the essential underlying facts surrounding the manner in which Grady’s grant of immunity was secured. The trial judge and counsel engaged in only the most perfunctory colloquy on an issue as to the apparent conflict of interest which obviously merited a full discussion and inquiry by the judge. In so doing, they have failed to provide us with a fully developed record upon which to judge the contentions presented.
We are obliged to find that a conflict did, in fact, exist as the accused’s counsel represented both the key government witness who testified against the accused pursuant to a grant of immunity and the accused. Representation of two such clearly antagonistic interests on the same case can not be regarded by us as a conflict-free situation. Absent evidence to the contrary and complaint from either defense counsel, we must assume that the government acted properly in its role of securing the grant of immunity for Grady, and therefore, it was secured with the knowledge and/or assistance of counsel.
. The robbery victim also testified for the prosecution.
. Captain Wiley even conducted the sentencing phase of the trial for both men which raises different questions of conflicts not pertinent to the resolution of this case.
. ABA Standards, The Defense Function §§ 1.6 and 3.5. See ABA Code of Professional Responsibility, EC 7-9 and 7-17, and DR 7-101(A).
. The real problem is not improper motive or intent on the part of counsel, but instead insensitivity to issues of conflicts of interest by not only the counsel but also the trial judiciary. See United States v. Evans, 1 M.J. 206 (1975).
. It is clear from both the record oi trial and the allied papers that an attorney-client relationship between Captain Sano and the accused and Private Grady existed; hence our inquiry cannot be limited to the actions or inactions of Captain Wiley as suggested by the government.
. As detailed in note'3, there is no evidence to support this contention. As such, the fact that Grady ultimately testified for the government does not mootthe issue in and of itself. The principles regarding the protections of the Sixth Amendment are not made academic by such formalistic changes in the status of the given witness. See United States v. McCord, 509 F.2d 334 (D.C.Cir. 1974), cert. denied, 421 U.S. 930, 95 S.Ct. 1656, 44 L.Ed.2d 87 (1975). Further, the conflict does not end as the government suggests, for there is a continuing duty for a counsel to refrain from taking actions adverse to the interest of a former client in those matters in which the attorney represented him. United States v. Gaines, 529 F.2d 1038 (7th Cir. 1976); ABA Code of Professional Responsibility, EC 4-5 and DR 5-105(A). We decline to follow United States v. Donatelli, 484 F.2d 505 (1st Cir. 1973), to the extent that it suggests an opposite view.
. The entire discussion is set forth below: MJ: Now, have you discussed the possibility of a conflict of interest in this case with your clients and among yourselves?
DC: Yes, we have, Your Honor.
MJ:' Are you satisfied that there is no conflict of interest in the representation of the accused?
DC: Yes, Your Honor.
MJ: Very well. It appears that counsel for both sides have the requisite qualifications. Proceed.
This terse inquiry should be compared to the standard set forth long ago by the Supreme Court in Von Moltke v. Gillies, 332 U.S. 708, 723-24, 68 S.Ct. 316, 323, 92 L.Ed. 309 (1948), concerning the need for affirmative judicial involvement in the waiver process:
[A] judge must investigate as long and as thoroughly as the circumstances of the case before him demand. The fact that an accused may tell him that he is informed of his right to counsel and desires to waive his right does not automatically' end the judge’s responsibility ... A judge can make certain that an accused’s professed waiver of counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstances under which such a plea is tendered.
We feel that the military’s actions as demonstrated by the trial judge’s inquiry speak louder than the dissenting judge’s words on the question of insensitivity. See also note 7.
. United States v. Thornton, 8 U.S.C.M.A. 57, 61, 23 C.M.R. 281, 285 (1957).
. Id.
. It has long been the rule that if the right to counsel is to be meaningful it must mean the right to the effective assistance of counsel. Powell v. Alabama, 287 U.S. 45, 71, 53 S.Ct. 55, 77 L.Ed. 158 (1932). Clearly, the trial court is obliged to maintain proper standards of performance by attorneys representing defendants in criminal cases. McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); United States v. Rivas, 3 M.J. 282 (C.M.A. 1977).
. The Court in a long series of decisions has repeatedly held that in instances of conflicts between the rights of the state and the protections contemplated by the Sixth Amendment, these conflicts must be resolved in favor of the right to the assistance and guidance of counsel. Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976); Brooks v. Tennessee, 406 U.S. 605, 92 S.Ct. 1891, 32 L.Ed.2d 358 (1972).
. See Brookhart v. Janis, 384 U.S. 1, 4, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966). As the Court noted in Glasser v. United States, 315 U.S. 60, 70, 62 S.Ct. 457, 86 L.Ed. 680 (1942), the presumption against waiver is so compelling that- not even the fact that a defendant is an experienced attorney will be held to be conclusive on the question of whether there was a valid waiver of his right to the assistance of counsel.
. Certainly if a defendant can knowingly and intelligently waive his right to counsel, Farretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), there should be little doubt that upon proper apprisal by the trial judge, he can waive his right to a conflict-free counsel. United States v. Garcia, 517 F.2d 272 (5th Cir. 1975).
. As noted in United States v. Jeffers, 520 F.2d 1256 (7th Cir. 1975), cert. denied, 423 U.S. 1066, 96 S.Ct. 805, 46 L.Ed.2d 656 (1975), the privilege belongs to the witness, not the defendant.
. The decision in United States v. Alberti, 470 F.2d 878 (2d Cir. 1972), cert. denied, 411 U.S. 919, 93 S.Ct. 1557, 36 L.Ed.2d 311 (1973), raises two additional factors for consideration by the trial judge in instances of privileged materials: (1) whether the privileged material could possibly have been discovered through any other avenue of discovery; and/or, (2) whether the facts suggest that the witness in question had •no interest left for the’ attorney" to protect, which obviates the conflict.
. See United States v. James, 505 F.2d 898 (5th Cir. 1975), cert. denied, 421 U.S. 1000, 95 S.Ct. 2397, 44 L.Ed.2d 667 (1975); United States v. Mackin, 163 U.S.App.D.C. 427, 502 F.2d 429 (1974), cert. denied, 419 U.S. 1052, 95 S.Ct. 629, 42 L.Ed.2d 647 (1974); United States v. Rispo, 460 F.2d 965 (3d Cir. 1972). As these cases make clear, the hearing will develop the essential facts, not mere allegations, for the trial court and appellate courts to evaluate. However, absent such a record, we must adhere to the principle enunciated in Glasser v. United States, supra 315 U.S. at 76, 62 S.Ct. at 467, that “[t]he right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.”
. In adopting as mandatory this procedure of affirmative judicial involvement we decline appellate defense counsel’s invitation to simply create a per se rule for evaluation. Both the needs of society and the protections of the Sixth Amendment are better served by informed and open litigation of such questions at the trial forum rather than resolution by either adherence to a rule automatically calling for reversal as suggested by counsel, or by conducting a method of analysis which fails to comport with the guidance of the Supreme Court concerning the protections of Sixth Amendment rights by examining the performance of counsel, in essence, in a vacuum. This latter method of resolution has the unfortunate result of placing “the defendant in the ironic position of having to ‘prove what the disregard of his constitutional right has made it impossible for him to learn.’ United States ex rel. Bennett v. Rundle, 419 F.2d 599, 608 (3d Cir. 1969).” United States v. Grunden, 25 U.S.C.M.A. 327, 330, 54 C.M.R. 1053, 1056, 2 M.J. 116, 120 (1977) (footnote omitted).
Dissenting Opinion
(dissenting):
On the basis of my familiarity with military trial practice as counsel to the House Armed Services Committee and, more recently, as a Judge of this Court, I disagree with the majority’s assertion that the practice is characterized by “insensitivity to situations of dual representation, and the attendant conflicts of interests and divisions of loyalty.” I wrote the opinion for the Court in United States v. Evans.
As to the merits, I agree with the Court of Military Review’s determination that Captain Wiley indisputably aligned himself with the accused; and, his examination of Grady, the government witness, “[djemonstrated his loyalty” to the accused. Consequently, if Captain Wiley sacrificed an interest of any of his clients, it was the interest of Grady, not that of the accused. On the record, therefore, the situation is precisely opposite to that in Evans, where we could “say with assurance that important tactical decisions made by defense counsel were dictated by counsel’s desire to further the interests of Evans’ co-accused, not those of Evans.”
As I perceive no possibility of prejudice to the accused, I would affirm the decision of the Court of Military Review.
. 1 M.J. 206 (1976).
. Id. 1 M.J. at 208.