United States v. Kurz

DECISION BAUM, Chief Judge: Appellate Defense counsel has submitted this case without specific assignment of error but urges that the bad conduct discharge is inappropriately severe. We have examined the record of trial and have concluded that the findings and the sentence are correct in law and fact and no error materially prejudicial to the substantial rights of the appellant was committed. We have specifically considered the appropriateness of the sentence awarded in this case for an unauthorized absence in excess of seven months. We find the sentence is appropriate for the offense and the accused, giving due weight to all matters of record both in aggravation and extenuation and mitigation. Furthermore, we expressly find from the record of trial and the stipulation filed with this court that trial defense counsel was, in fact, the individual military counsel requested by the accused and that, as requested counsel, he provided effective representation. Prior to trial, defense counsel submitted three written motions on behalf of his client, requests for discovery and a [858] bill of particulars and a motion in limine, all of which produced results favorable to the accused. Proceeding to trial on a charge of desertion, trial defense counsel successfully limited the finding of guilty to the lesser included offense of unauthorized absence. Thereafter, in the face of this conviction for more than seven months unauthorized absence, along with a previous conviction for four months absence, trial defense counsel mounted a strong and persuasive case in extenuation and mitigation, resulting in a sentence that included only two months confinement and no forfeiture of pay, in conjunction with the punitive discharge and reduction. By any standard, trial defense counsel’s representation of the accused must be considered effective. Moreover, it meets in all respects the judicial tests set forth in U.S. v. Jefferson, 13 M.J. 1 (C.M.A.1982). Accordingly, we believe any inference that may be drawn from the two dissents that would characterize trial defense counsel’s performance as something less than adequate would be unwarranted. Moreover, we expressly reject the view in one of the dissents that admission in evidence of a service record entry relating to the accused’s referral to a counseling center for evaluation of a drug abuse problem, based on reports of observed marijuana use, constituted plain error or the implications in both dissents that defense counsel was somehow remiss in not objecting to this exhibit. Assuming, without deciding, that there may have been some basis for defense to object to this entry, it appears that it was more consistent with the thrust of his case in extenuation and mitigation not to object. In any event, it ill behooves us at this stage to be second guessing defense counsel in this regard. In the words of U.S. v. Kelley, 19 M.J. 946, 947 C.M.R. (A.C.M.R.1985): “appellate courts should not play Monday morning quarterback with the decisions of the trial defense counsel.” The findings and sentence as approved on review below are affirmed. Judges BURGESS and BRIDGMAN concur.