22 M.J. 640 | U.S. Army Court of Military Review | 1986
OPINION OF THE COURT
Appellant pled not guilty and was tried by a military judge sitting alone. The trial defense counsel made an unsuccessful pretrial motion, to withdraw, had appellant testify in narrative form, and did not argue appellant’s testimony to the trial judge on findings. Even though counsel’s actions might have inferentially signaled to the judge that he did not believe all of appellant’s testimony was truthful, we hold that appellant was not deprived of the effective assistance of counsel. The Sixth Amendment to the Constitution does not guarantee either the right to present perjured testimony or to be aided by counsel in doing so. See Nix v. Whiteside, — U.S. -, 106 S.Ct. 988, 89 L.Ed.2d 123 (1986); American Bar Association Commission on Evaluation of Professional Standards, Proposed Final Draft, Model Rules of Professional Conduct 132-134 (May 30, 1981).
When a counsel knows that his client’s testimony will be false, counsel must take appropriate action to prevent a fraud on the court. Rules 3.3(a) and 1.2(d), American Bar Association, Model Rules of Professional Conduct [hereinafter referred to as Model Rules]; Disciplinary Rule 7-102(A), American Bar Association, Model Code of Professional Responsibility [hereinafter referred to as ABA Model Code]. When a counsel reasonably believes that his client’s testimony will be false, counsel may refuse to participate in submitting it to the court. Rule 3.3(c), Model Rules. In either case, only the attorney himself can decide what he believes and what he knows. Since we have no indication that appellant’s attorney assessed the situation dishonestly or unreasonably, we are satisfied that he acted in accordance with “accepted norms of professional conduct.” While Nix v. Whiteside is not directly on point, we believe that the majority opinion stands for the proposition that compliance with the “accepted norms of professional conduct” in this area does not constitute “failure to adhere to reasonable professional standards that would in any sense make out a deprivation of the Sixth Amendment right to counsel.” 106 S.Ct. at 997. We therefore find that counsel effectively represented appellant under the standards prescribed in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), United States v. Jefferson, 13 M.J. 1 (C.M.A.1982), and United States v. Davis, 20 M.J. 1015 (A.C.M.R.1985).
The next question is whether the trial judge erred by continuing to serve as the finder of fact under the circumstances. The leading case from the United States Court of Military Appeals in this general area, United States v. Radford, 14 M.J. 322 (C.M.A.1982), does not answer that question. Not only did Radford involve significantly different facts, but it resulted in three divergent opinions with no two
We prefer to rest our decision on a straightforward disagreement with the approach adopted in Lowery v. Cardwell, supra. There, the court held that “if ... counsel informs the fact finder of his belief [that his client’s defense is based on false testimony] he has, by that action, disabled the fact finder from judging the merits of the defendant’s defense” and also held that this principle applies in a bench trial as well as in a jury trial. 575 F.2d at 730. The court went on to hold, however, that only an “unequivocal” announcement by counsel would “disable” a fact finder. Id.
We believe that the Lowery court attempted to draw too fine a distinction between an “unequivocal” announcement of a counsel’s belief that his client has lied and the inferences to be drawn from counsel’s passive non-participation and non-use of such testimony. If a reasonable judge or juror can be expected to draw the conclusion that a counsel disbelieves his client, then the result should be the same whether the message is delivered directly or by implication.
But we also believe that the Lowery court took too pessimistic a view of the capabilities and the integrity of trial judges. In our view, a military judge can be relied on to either disregard the fact that a counsel disbelieves his client’s testimony or take appropriate action if such “evidence” would affect his deliberations. With respect to the first alternative, we believe that trial judges are well aware that trial defense counsel are no more infallible than anyone else and that their opinions do not constitute evidence in any event. After all, trial judges are routinely presumed to disregard expressions of counsel’s personal opinions about facts in issue, cf. United States v. Montgomery, 42 C.M.R. 227 (C.M.A.1970), and it must be kept in mind that the issue we are now discussing is the ability of a judge to disregard inadmissible matter, not adequacy of representation. It must also be recalled that a counsel’s actions may be dictated by his mere “reasonable belief” as well as by a certainty on his part that the client’s testimony is false. Second, we are confident that military judges appreciate the overriding imperative of fairness and will resort to recusal, mistrial, or requiring trial
The discretion we envision is not, of course, unfettered. As with other cases involving recusal, the actions of the trial judge in this situation are subject to the abuse of discretion standard. United States v. Roberts, supra, 20 M.J. at 691. Here, we find no evidence of such an abuse.
Appellant contends, and we agree, that simultaneous possession and distribution of a controlled substance is multiplicious for findings purposes and that convictions for both cannot stand. United States v. Zubko, 18 M.J. 378 (CMA 1984). We are satisfied appellant was not prejudiced as to sentencing by this error since the military judge considered the offenses as one for punishment purpose.
The remaining assigned errors, including those raised by appellant, have been considered and determined to be without merit.
The finding of guilty of Specification 1, Charge II (wrongful possession of methamphetamine) is set aside and that specification is dismissed. The remaining findings of guilty and the sentence are affirmed.
. The Model Rules have not been made applicable to counsel practicing in the United States Army; that matter is presently under consideration by the Office of The Judge Advocate General of the Army. Paragraph 5-8, Department of Army Regulation Number 27-10, still makes the ABA Model Code applicable to Army counsel. This is irrelevant to the issue before us, however, because we are here concerned with norms of professional conduct which have been deemed constitutionally acceptable by the Supreme Court and these specifically include Rules 1.2(d) and 3.3(a). Nix v. Whiteside, 106 S.Ct. at 995-96.
. In Lowery, the court found counsel's request for withdrawal, made immediately after the defendant testified, to be "unequivocal.”
. In contrast, the trial defense counsel in Roberts had explained to the judge in compelling terms just why he believed his client’s proposed testimony was false and the accused himself had told the judge that "most of my testimony, if I do testify, is not false.” 20 M.J. at 691 (emphasis added). We certainly agree that on those facts it would have been an abuse of discretion for the judge to continue to sit as the finder of fact.
