U.S. v. Gutierrez, 66 M.J. 329

Military Justice Personnel: Defense Function: Effective / Ineffective Assistance of Counsel

1. the test for a claim of ineffective assistance of counsel is (1) whether counsel’s performance fell below an objective standard of reasonableness, and (2) if so, whether, but for the deficiency, the result would have been different; the accused has the burden of demonstrating both deficient performance and prejudice
2. to show prejudice under the test for ineffective assistance of counsel, an accused must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different; in demonstrating this reasonable probability, the accused must show a probability sufficient to undermine confidence in the outcome; in other words, when an accused challenges his conviction based on ineffective assistance of counsel, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt
3. the test for prejudice flowing from ineffective assistance of counsel, and the burden for proving the existence of prejudice, is substantially different from the harmless beyond a reasonable doubt test applied to constitutional errors where the burden is on the government to prove that the error did not contribute to the guilty finding; the proper test for assessing prejudice flowing from ineffective assistance of counsel is to look at all the evidence before the factfinder to determine if the accused has met his burden to demonstrate a reasonable probability that the factfinder’s decision would have been different
4. in this case, even assuming trial defense counsel’s performance was objectively unreasonable by waiving a mistake-of-fact instruction to an assault consummated by a battery as a lesser included offense to the charge of assault with the intent to commit rape, the accused failed to carry his burden to demonstrate prejudice to satisfy the test for ineffective assistance of counsel, where the members found the accused guilty of assault consummated by a battery, which requires proof that he did bodily harm to a certain person and that the bodily harm was done with unlawful force or violence, where the accused confessed to grabbing the victim’s arm and touching her body after she told him to stop, and where the victim’s testimony corroborated his confession; even if the military judge had given a mistake-of-fact instruction as to assault consummated by a battery, it is just as likely that the members would have convicted as it is that they would have acquitted; the burden is on the accused to show a reasonable probability, one sufficient to undermine the confidence in the outcome, that but for the defense counsel’s ineffectiveness in waiving the instruction, he would not been convicted; the fact that the members acquitted the accused of two greater offenses does not, of itself, carry that burden

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. issues involving ineffective assistance of counsel involve mixed questions of law and fact; an appellate court reviews factual findings under a clearly erroneous standard, but looks at the questions of deficient performance and prejudice de novo
2. claims of ineffective assistance of counsel are analyzed by an appellate court under the test outlined by the Supreme Court in Strickland v. Washington, 466 US 668 (1984), and considers (1) whether counsel’s performance fell below an objective standard of reasonableness, and (2) if so, whether, but for the deficiency, the result would have been different; the accused has the burden of demonstrating both deficient performance and prejudice; an appellate court is not required to apply these tests in any particular order; if it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, that course should be followed
3. to show prejudice under the Strickland test, an accused must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different; in demonstrating this reasonable probability, the accused must show a probability sufficient to undermine confidence in the outcome; in other words, when an accused challenges his conviction based on ineffective assistance of counsel, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt
4. the test for prejudice flowing from ineffective assistance of counsel, and the burden for proving the existence of prejudice, is substantially different from the harmless beyond a reasonable doubt test applied to constitutional errors where the burden is on the government to prove that the error did not contribute to the guilty finding; the proper test for assessing prejudice flowing from ineffective assistance of counsel is to look at all the evidence before the factfinder to determine if the accused has met his burden to demonstrate a reasonable probability that the factfinder’s decision would have been different