IN THE
CASE OF
UNITED
STATES, Appellee
v.
Fernando
GARCIA, Staff Sergeant
No.
03-0151
Crim. App.
No.
9901513
Argued
Decided
ERDMANN,
J., delivered the opinion of the Court, in which GIERKE, EFFRON, and
BAKER JJ.,
joined. CRAWFORD, C.J., filed a
dissenting opinion.
Counsel
For Appellant:
Lieutenant
Robert E. Salyer, JAGC, USNR (argued);
Lieutenant
Glenn Gerding, JAGC, USNR, and Lieutenant
Colin A. Kisor, JAGC, USNR (on brief).
For Appellee: Lieutenant Lars C. Johnson, JAGC, USNR
(argued); Colonel R. M. Favors, USMC, and Commander Robert
P. Taishoff, JAGC, USN (on brief).
Amicus Curiae:
Alexander
N. Pickands (law student) (argued); Frederic
I. Lederer, Esq. (supervising
attorney), John
M. Hackel and Christopher R.
Clements (law
students) (on brief) – for the College of William & Mary School of
Law.
Military Judge:
R. E. Nunley
This
opinion is subject to editorial correction before final publication.
Judge
ERDMANN delivered the opinion of the Court.
Appellant,
Staff Sergeant Fernando Garcia, was charged with two specifications of
attempted robbery, five specifications of conspiracy to commit robbery,
one
specification of conspiracy to commit larceny, three specifications of
larceny,
six specifications of robbery, one specification of housebreaking, four specifications of interstate transport
of stolen property, and four specifications of receiving stolen
property in
violation of Articles 80, 81, 121, 122, 130, and 134 of the Uniform
Code of
Military Justice [UCMJ], 10 U.S.C. §§ 880, 881, 921, 922, 930, and 934
(2000),
respectively. Garcia entered pleas of
not guilty to all specifications and charges and was tried before a
general
court-martial. He was found guilty of
all charges, other than the four specifications of receiving stolen
property
which were withdrawn prior to findings.
Garcia
was sentenced by a panel of members to a dishonorable discharge,
confinement
for 125 years, forfeiture of all pay and allowances, a fine of $60,000
and
reduction to the lowest enlisted grade (E-1).
The convening authority reduced the term of confinement to 75
years,
suspended all confinement in excess of 40 years, and otherwise affirmed
the sentence. The Navy-Marine Corps Court
of Criminal
Appeals affirmed the findings of guilty and the sentence.
We
granted review of the following issues pursuant to Article 67(b), UCMJ,
10 U.S.C. § 867(b) (2000):1
I.
WHETHER THE
II. WHETHER THE
III. WHETHER APPELLANT
RECEIVED EFFECTIVE
ASSISTANCE OF COUNSEL. (IN ADDITION TO
THE SEVEN MATTERS RAISED BY APPELLANT IN HIS PETITION SUPPLEMENT, THE
PARTIES
SHOULD ADDRESS THE FOLLOWING: (1) WHETHER TRIAL DEFENSE COUNSEL WAS
INEFFECTIVE
IN NOT OBJECTING TO ADMISSION OF EVIDENCE OBTAINED FROM THE SEARCH
DESCRIBED IN
ISSUE I; (2) WHETHER TRIAL DEFENSE COUNSEL WAS INEFFECTIVE IN NOT
OBJECTING TO
THAT PORTION OF TRIAL COUNSEL'S SENTENCING ARGUMENT DESCRIBED IN ISSUE
IV; AND
(3) WHETHER TRIAL DEFENSE COUNSEL WAS INEFFECTIVE IN NOT ADVISING
APPELLANT
REGARDING THE POSSIBILITY OF OBTAINING A PLEA AGREEMENT BEFORE OFFERING
THE
CONFESSIONAL TESTIMONY DESCRIBED IN ISSUE V).
IV. WHETHER THE
V.
WHETHER THE LOWER COURT ERRED WHEN IT HELD THAT THE MILITARY
JUDGE HAD
NO DUTY TO ADVISE APPELLANT OF HIS RIGHTS PURSUANT TO UNITED STATES V.
BERTELSON, 3 M.J. 314 (C.M.A. 1977) AND UNITED STATES V. WILLIAMS, 18
M.J. 186
(C.M.A. 1984) AND RULED THAT APPELLANT'S CONFESSIONAL STIPULATION DID
NOT
AMOUNT TO A CONFESSIONAL STIPULATION AND A DE FACTO GULTY PLEA.
FACTS
In
October 1997 Garcia was apprehended outside of his home in
Prior
to trial, Garcia’s civilian defense
counsel advised Garcia that he should not agree to enter into a
pretrial
agreement that called for confinement of more than four to six years. Garcia’s military defense counsel, on the
other hand, advised him that a sentence in excess of 40 years was
likely if
they went to trial and informed him that the Government would probably
agree to
a plea agreement limiting confinement to 20-25 years.3 Garcia,
apparently relying on the advice of
his civilian attorney, chose not to enter into a plea agreement. Approximately three weeks before the
court-martial, Mr. Cockshoot’s
representation ended
and Garcia was represented only by his military defense counsel for the
remainder of the proceedings.
Initially,
Garcia did not admit to his military counsel the degree of his
involvement in
the charged offenses. However, after
three days of the trial, military defense counsel met with Garcia and
indicated
to Garcia that the defense was getting “killed” by the Government
evidence. At this point, Garcia informed
his military counsel of the full extent of his culpability. Faced with this disclosure in mid-trial,
defense counsel advised Garcia that they should allow the Government to
finish
its case and then have Garcia testify that he had committed the charged
activity, in the hope that the members would
be lenient if Garcia candidly accepted responsibility.
Garcia followed this advice. His
attorney did not discuss any other
possible options available to him at that time, and Garcia later stated
that he
was unaware that he could have changed his plea to guilty.
During
sentencing arguments, the Government
asked the members to return a sentence that included a fine of $23,000
and
confinement for 86 years. The members
returned
a sentence that included a fine of $60,000 and confinement for 125
years.
DISCUSSION
Garcia
alleges that he received ineffective assistance of counsel at his
court-martial. Under Strickland
v. Washington, 466
This
Court applies a three prong test to determine if the presumption of
competence
has been overcome:
(1)
Are the allegations true; if so,
"is there a reasonable explanation for counsel's actions?";
(2)
If the allegations are true, did
defense counsel's level of advocacy fall "measurably below the
performance
. . . [ordinarily expected] of fallible lawyers?";
and
(3)
If defense counsel was ineffective, is
there a "reasonable probability that, absent the errors," there would
have been a different result?
United States v. Grigoruk, 56 M.J. 304, 307
(C.A.A.F. 2002) (citing United States v. Polk, 32 M.J. 150, 153
(C.M.A.
1991)). We evaluate the combined efforts
of the defense as a team rather than evaluating the individual
shortcomings of
any single counsel.
Applying
the Grigoruk
three prong test, we find that Garcia received ineffective assistance
of
counsel in two significant respects: (1) his civilian defense counsel
waived
the Article 32 investigation without Garcia’s agreement; and (2) his
military
defense counsel inexplicably failed to advise Garcia of the range of
options he
faced when he eventually confessed his full involvement to counsel near
the
conclusion of the Government’s case-in-chief and thereafter failed to
demonstrate a sound trial strategy in the presentation of Garcia’s
case. We will consider each of these
deficiencies
separately. Given our conclusion that
these two deficiencies prejudiced Garcia, we need not address the other
alleged
deficiencies in the defense team performance.
1. The Article
32 Investigation
Article
32 requires “a thorough and impartial investigation” before any charges
or
specifications may be referred to a general court-martial.
At the investigation, the accused has the right
to be represented by counsel, to cross-examine witnesses, and “to
present
anything he may desire in his own behalf.” Article 32, UCMJ. The
Article 32 investigation “operates as a
discovery proceeding for the accused and stands as a bulwark against
baseless
charges.”
Pursuant
to R.C.M. 405(k), “[t]he accused may waive an [Article 32]
investigation under
this rule.” The precise form or
procedure for a waiver is not specified, and whether the accused’s
right to an Article 32 investigation is personal to the accused is an
issue of
first impression at this Court. As the
Supreme Court has noted, “What suffices for waiver depends on the
nature of the
right at issue. ‘Whether the defendant must participate personally in
the
waiver; whether certain procedures are required for waiver; and whether
the
defendant's choice must be particularly informed or voluntary, all
depend on
the right at stake.’" New York
v. Hill, 528
On
this record, it is undisputed that Garcia’s civilian defense counsel
waived
Garcia’s right to an Article 32 investigation without Garcia’s personal
consent. We recognize that in many
situations
consent or waiver by counsel is binding, whether or not the client has
personally consented or explicitly agreed to waive a matter. “As to many decisions pertaining to the
conduct of the trial [e.g., what evidentiary objections to raise
or what agreements to conclude regarding the admission of evidence],
the
defendant is ‘deemed bound by the acts of his lawyer-agent . . . .’” Hill, 528
However,
the decision whether to waive a pretrial investigation is unlike the
many
routine decisions a lawyer must make as the trial progresses. It is, rather, a decision fundamentally
impacting a “substantial pretrial right” of the accused.
See
It
is possible that under other circumstances waiver of an Article 32
investigation without the client’s personal consent would not
constitute
ineffective assistance of counsel under either or both prongs of Strickland,
for example where there is good cause for the failure to obtain
personal
consent, a sound tactical decision or a lack of resultant prejudice. Here, however, we see no such saving
circumstances. We perceive no sound
strategic reasons for the waiver itself, and the record reveals no
benefit for
Garcia in exchange for giving up his right to an Article 32
investigation.
On
the contrary, the record demonstrates that Garcia was prejudiced. He did not have the opportunity to hear the
Government’s case against him and to assess the potential strength of
that
case. If he had seen the case against
him prior to rather than in the midst of the trial, he might have
sought a plea
agreement which would have limited his sentence. The
Government argues that it could have
chosen to put on only a “bare-bones” case at the Article 32
investigation, and
thus Garcia still might not have seen enough of the Government’s case
to
persuade him to enter into a plea agreement. This
argument is based on a faulty premise: it
is not the Government that controls the Article 32 investigation, but
rather an
investigating officer charged with making a thorough and impartial
investigation into the form and substance of the charges, which
includes the
examination of available witnesses requested by the accused. Article 32, UCMJ; R.C.M.
405.
Under
these circumstances, we find that defense counsel’s action in waiving
Garcia’s
right to an Article 32 investigation without Garcia’s personal consent
fell
measurably below the performance ordinarily expected of fallible
lawyers, and
that there is a reasonable probability of a different result absent
that
action. See Grigoruk,
56 M.J. at 307.
2.
The Mid-Trial Advice to Confess
As
noted, Garcia did not disclose the full
extent of his involvement to his military counsel until three days into
the
presentation of the Government’s evidence. At
that point, defense counsel, who remained
bound by the requirement to take only those actions that were in the
best
interests of his client, was left with a range of problematic options,
including exploring of the possibility of a plea agreement, changing
his plea
to guilty, having Garcia remain silent, or having Garcia confess and
throw
himself on the mercy of the court without changing his plea. At this strategic crossroads, defense counsel
had the responsibility of explaining these options to his client and
obtaining
the client’s fully informed consent as to which path to follow. See Strickland, 466 U.S. at 688
(noting that counsel’s duties include consulting with the defendant on
important decisions, keeping the defendant informed of important
developments,
and bringing to bear “such skill and knowledge as will render the trial
a
reliable adversarial testing process”).
Instead,
defense counsel inexplicably chose to advise Garcia of a single and
arguably
the least tenable option. Counsel failed
to inform or discuss with Garcia any other options. We
find no reasonable explanation for defense
counsel’s failure to advise his client of the range of options open to
him. His performance in this regard fell
measurably below that standard ordinarily expected of fallible lawyers.
Relying
on this limited, deficient advice,
Garcia, the sole witness in the defense case-in-chief, fully detailed
his
involvement and the actions of his co-conspirators in the charged
offenses. Defense counsel explained to
the members that his intent in having Garcia testify was for the
members to know
“the whole thing, the good, the bad, the worst, the ugly and the uglier
all
together” in order to make an informed judgment. The
adversarial nature of our system of
justice depends on partisan advocacy by both parties: the right to
effective
assistance of counsel includes the right of the accused to a counsel
who is
acting as an advocate for the accused, as opposed to a friend of the
court.
During
his lengthy and detailed examination of Garcia’s criminal activity,
defense
counsel’s actions exhibited a clear lack of a sound trial strategy that
would
have served the best interests of his client.
He did not attempt to elicit from Garcia any expressions of
remorse or
contrition; this judicial confession had no mitigating impact. In fact, defense counsel’s direct examination
opened the door for the prosecution in its cross-examination to elicit
aggravating and damaging details not previously established, such as
the fact
that the escape route of a planned armored-vehicle robbery went by a
child
day-care center. Moreover, while the
defense counsel argued during his sentencing argument that Garcia was
remorseful, he also made arguments that served only to highlight
Garcia’s
culpability. For example, defense
counsel argued:
Was he three-and-a-half-pounds of trigger
pull away from [killing or injuring someone]? Yes. He’s admitted to you
that he
has put people’s lives in danger, and he has told you how he feels
about that,
but the bottom line is that we are not here to punish him for that
possibility.
It is difficult to
discern a sound trial strategy in reminding the members that Garcia was
only
“three-and-a-half-pounds of trigger pull away from” homicide. Although we are not prepared to say that the
strategy chosen by defense counsel was per se ineffective, under the
circumstances before us, and given that Garcia was not informed of
other
possible options, defense counsel’s performance fell measurably below
the
performance ordinarily expected of fallible lawyers.
The
extreme harshness of the sentence returned by the members is strong
evidence
that Garcia was prejudiced by the aggravating testimony elicited from
him as he
followed defense counsel’s advised course of action.
The Government asked for a $23,000 fine and
confinement for 86 years, and the members returned a sentence which
included a
fine of $60,000 and a sentence of 125 years - $37,000 and 39 years more
than
even what the Government thought was appropriate. Such
an exceptionally harsh sentence leads us
to believe that there is a reasonable probability of a different
outcome to the
court-martial had defense counsel explored the range of available
options with
his client. See Grigoruk, 56 M.J. at
307.
In
conclusion, we find that the “strong presumption that counsel's conduct
falls
within the wide range of reasonable professional assistance” has been
overcome.
Strickland, 466
DECISION
We
therefore set aside findings and
sentence and the decision of the Navy-Marine Corps Court of Criminal
Appeals. This case is returned to the
Judge Advocate
General. A rehearing may be ordered upon
completion of an Article 32 investigation and pretrial advice.
1 We heard
oral argument in this case at the William and Mary School of Law,
2 The Government
was unable to locate
Mr. Cockshoot to obtain his version of
events and
military defense counsel was unable to remember many details due to the
passage
of time. Thus, the facts relevant to
representation offered by Garcia in a post-trial declaration are unrebutted. See
3 We note that
Garcia was exposed to a substantial maximum sentence in this case. Based upon the findings of guilty, the
military judge instructed the members that the maximum sentence
included, inter
alia, confinement for 260 years.
CRAWFORD,
Chief Judge (dissenting):
I respectfully dissent from the majority’s unprecedented treatment of (1) the waiver of the investigation pursuant to Article 32, Uniform Code of Military Justice, 10 U.S.C. § 832 (2000), and (2) the accused’s right to a mid-trial continuance, as well as from the majority’s (3) hasty and fundamentally unfair resolution of the ineffectiveness of counsel issue without first ordering a hearing pursuant to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967). I fear the unintended consequence of these actions will place this Court’s opinion outside the judicial mainstream and undermine public confidence in its decision-making.
The
opinion fails to recognize that a majority of federal courts have
indicated
that counsel may waive a preliminary hearing and an indictment by a
grand
jury. See, e.g.,
New York v. Hill, 528
The majority also resolves the allegation of ineffectiveness based on an unchallenged affidavit from Appellant, who over a number of months admittedly lied to both his civilian and military defense counsel about his involvement in the offenses, and only changed his mind mid-trial after the Government’s three-day presentation of evidence to the court members. The majority’s action is not only premature, but also fundamentally unfair to defense counsel. To resolve the ineffectiveness issue as to advice of counsel concerning a guilty plea and a pretrial agreement, I would order a DuBay hearing, rather than reverse at this level.
In
United States v. Lewis, 42 M.J. 1 (C.A.A.F. 1995), military and
civilian
defense counsel resisted the request for an affidavit.
This Court in Lewis chose to treat the
pleadings as a motion for intervention, and rejected defense counsel’s
assertion
that the defense did not have to cooperate.
In the instant case, civilian defense counsel, a member of our
bar, did
not furnish an affidavit as to the facts surrounding Appellant’s plea. As in Lewis, this Court may
legitimately request that both counsels participate in a DuBay
hearing to resolve the facts surrounding their advice on the guilty
plea,
testimony at trial, and a cap on any sentence.
I feel it is inappropriate to hold that counsel is ineffective
without
giving them a chance to respond at a court-ordered DuBay
hearing.