## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before MULLIGAN, FEBBO, and WOLFE Appellate Military Judges

UNITED STATES, Appellee

v. Private E2 JOHN-BRIAN HUGHES United States Army, Appellant

ARMY 20130783

Headquarters, 1st Infantry Division and Fort Riley Jeffery R. Nance, Military Judge Lieutenant Colonel John A. Hamner, Staff Judge Advocate

For Appellant: Colonel Ke vin Boyle, JA; Ma jor Amy E. Nieman, JA; Captain Patrick J. Scudieri, JA (on brief); Lieutenant Colonel Melissa R. Covolesky, JA;

Lieutenant Colonel Charle s D. Lozano, JA; Major Ch ristopher D. Coleman, JA; Captain Cody D. Cheek, JA (on supplemental brief).

For Appellee: Colonel Mark H. Sydenham , JA; Major Steven J. Collins, JA; Major Lionel C. Martin, JA (on brief).

28 July 2017

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MULLIGAN, Senior Judge:

An enlisted panel sitting as a genera l court-martial convicted appellant, contrary to his plea s, of various specifications i nvolving resistin g apprehension, making a false official statement, prem editated murder, larc eny of non-military property of a value of less than $500.00, larc eny of military prop erty of a value of less than $500.00, an d wrongful appropriation of a mo tor vehicle in violation of Articles 95, 107, 118, and 121, Uniform Code of Military Justice, 10 U.S.C. §§ 895, 907, 918, and 9 21 (2006) [hereinafter UCMJ]. Th e panel sentenced appellant to a dishonorable discharge, confinement for life without the poss ibility of parole, forfeiture of all pay and allowances, and a reduction to the grade of E-1. The convening authority approved the adjudged sentence.HUGHES—ARMY 20130783

2 We previously considered appellant’s various assignments of error, including those submitted pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982), and summarily affirmed the findings of guilty and sentence in this case. United States v. Hughes , ARMY 20130783 (Army Ct. Crim . App. 23 Jun. 2 016). In a

footnote to that decisi on, we noted appellant fail ed to submit “accompanying affidavits, unsworn declarations under penalt y of perjury, or any signed statements to support [his] claims ” in support of his Grostefon claims. Id. n2. Thereafter, we granted appellant’s request to submit ad ditional matters, to include his sworn declaration, and his request to recons ider our prior opin ion. We again find appellant’s assignments of er ror without merit. However, we take th e opportunity here to briefly address one issue, persona lly raised by appellan t, that his defense counsel provided deficient representation by conceding certain facts during her closing argument.

BACKGROUND

Appellant and Private (PVT ) TL spent the ni ght of 12 May 201 3 at the home of an NCO where appellant wa s temporarily residing. Priv ate TL asked to stay the evening as he was going to take appellant to the moto r pool in the morning where appellant was scheduled to perform extra duties beginning at 0900. Appellant and PVT TL departed early on th e morning of 13 May 2013. Later that day, PVT TL was

discovered in his barracks ro om, stabbed to death. Ke y card logs sh owed PVT TL’s

room was last ente red at around 0919 ho urs that morning.

Appellant showed up to the motor pool late, at ar ound 1000 hours, in Private

TL’s car. Later that mornin g or early afternoon, appell ant took a HMMMV off post, which eventually broke down. After a series of events , appellant was apprehended by military police who foun d among appellant’s possessi ons PVT TL’s military ID card and barracks room key car d. The ensuing investigati on also linked a knife, set down by appellant prior to his attempt to flee from the military police, that later tested positive for both appe llant’s and PVT TL’s DNA. Appellant’s fingerprint was

found in PVT TL’s room.

Defense counsel’s overarchi ng theme during closing ar gument center ed on the many questions left un answered by the government’s in vestigation of the murder and the evidence presented at trial. Early in the argument, defens e counsel pos ited one theory of how the evidence could be re ad, suggesting PVT TL’s plans to drive appellant directly to extra duty changed so that appellant could go to the barracks and change. Once there, defense counsel sugge sted, PVT TL decided to “crash,” and gave appellant his room ke y card and keys so as not to disturb PVT TL when appellant returned them. De fense counsel then explored the many aspects of the evidence that simply did no t make sense, such as the fact appellant showed up for extra duty, the apparent lack of any motive for the crim e, the sloppi ness of the evidence collection and testing, and othe r possible explanations for the murder.HUGHES—ARMY 20130783

3 LAW AND ANALYSIS

Appellant asserts his coun sel during closing argu ment “conceded” that appellant was at the crime scene. Appell ant claims he was no t informed by his

counsel that such a conce ssion would be made and w ould not have granted his counsel permission to make such a concession. This raises the question whether

defense counsel must consult with an accu sed on every strategic decision during the

course of a trial and whether the failure to do so constitutes ineffect ive assistance of

counsel. Under the circumst ances of this case , we do not find defense counsel’s argument constituted a concession—m uch less defici ent performance.

To prevail on an ineffective assistance claim, appellant b ears the burden of proving that (1) defense c ounsel’s performanc e in making this concession was deficient, and (2) appellant was prejudi ced by this defici ent performance. Strickland v. Washington , 466 U.S. 668, 698 (19 84). As to the first prong, there is a strong presumption that coun sel’s conduct “falls within the wide ra nge of reasonable professional assistance.” Id . at 689. As to the second pr ong, appellant’s burden is to show “a reasonable probab ility that, but for counsel’s [d eficient performance] the result of the proceeding woul d have been different.” Id . at 694. To demonstrate this prejudice, the question is “w hether there is a reasonable probability that, absent the errors, the factfinder woul d have had a reasonable do ubt respecting guilt.” Id . at 695. “It is not enough to show that the errors had some conceivable effect on the

outcome.” United States v. Datavs , 71 M.J. 420, 424 (C.A .A.F. 2012) (emphasis added).

A defendant has the “ultimate authority” in decisions to exerci se or waive basic trial rights, including “wheth er to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal.” Florida v. Nixon , 543 U.S. 175, 18 7 (2004) (quoting

Jones v. Barnes , 463 U.S. 7 45, 751 (1983); Wainright v. Sykes , 433 U.S. 72, 93 n. 1 (1977) (Burger, J., concurring)). Defens e counsel must consult with an accused about these decisions, and obtain his consent to the cour se of action. Id

.

Defense counsel also has a duty to discuss overarching defense strategies with a

defendant. See Strickland v. Washington , 466 U.S. 668, 688 (1984). However, counsel is not required to obtain the accused’ s consent to “every tactical decision.” Taylor v. Illinois , 484 U.S. 400, 417- 18 (1988). Indeed,

Once counsel is appointed, the day- to-day conduct of the defense rests with the attorney. He, not the client, has th e immediate - and ultimate - responsibilit y of deciding if and when to object, which witnesses, if any, to call, and what defenses to develop. Not only do

these decisions rest with the attorn ey, but such deci sions must as a practical matter, be made without consulting the cl ient. The trial process simply does not permit the type of frequent and protractedHUGHES—ARMY 20130783

4 interruptions which would be necessar y if it were requi red that clients give knowing and intellig ent approval to each of the myriad tactical

decisions as a trial proceeds.

Wainwright

, 433 U.S. at 93, (Burge r, J., concurring).

Defense counsel’s st rategy of concedin g a fact in accord ance with evidence presented at trial is not in effective if her representati on does not fall below an objective standard of reasonableness. Nixon , 543 U.S. at 688. For example, in

Nixon , defense counsel conc eded the accused’s guilt afte r assessing the strength of the prosecution’ s evidence was strong enough to convict the accused of murder beyond a reasonable doubt. 543 U.S. at 189. There, the Supr eme Court found that when counsel took reasonable steps to de fend the accused, coun sel’s admission of the accused’s guilt di d not amount to defici ent performance. Id . at 188.

Here, the government’s case , while strong, relied la rgely on circumstantial evidence. Nobody witn essed the murder. Th e evidence did not ti e appellant to the

crime scene at the exact moment when PVT TL died. Appellant made no admissions or statements implicating himself in the cr ime. In short, wh ile the government’s evidence was strong, it coul d not rule out many possib le explanations of what happened to PVT TL.

Far from conceding appell ant was in PVT TL’s r oom, defense counsel’s argument simply pointed out another, plausibl e, explanation of the evidence that did not involve appellant committing murder. Her closing argument, when read in its entirety, was an exercise in identifying the many holes in the government ’s case in
an attempt to create re asonable doubt in the minds of the members. We do not need

to determine defense counsel ’s actual strategic purpos e in making these arguments;

we focus on counsel’s conduc t objectively, rather than by submitti ng the conduct to a subjective after-the-fact evaluation. See Harrington v. Richter , 562 U.S. 86, 109- 10 (2011) (“After an adverse verdict at tria l, even the most experienced counsel may find it difficult to resist asking whether a different strategy migh t have been better. .

. . Strickland , however, calls for an inquiry into the objecti ve reasonableness of counsel’s performance, not counsel’s subjective state of mind.”).

Further, the strong presumpt ion that counsel’ s performance was reasonable is

reflected in the assu mption that “counsel’s attenti on to certain issues to the exclusion of others reflects trial tactics rather than ‘sheer neglect.’” See Harrington , 562 U.S. at 109 (citing Yarborough v. Gentry , 540 U.S. 1, 8 (2003)). Viewing the case as a whole, we find defense counsel’s tactical deci sions during closing argument—and during the rest of trial—to be ob jectively reas onable. We therefore find appellant ha s failed in the first instan ce to demonstrate that his counsel’s performance was deficient under Strickland.

CONCLUSIONHUGHES—ARMY 20130783

5 The findings of guilty and th e sentence are AFFIRMED.

Judge FEBBO and Judge WOLFE concur.

FOR THE COURT:

JOHN P. TAITT Chief Deputy Clerk of Court JOHN P. TAITT Chief Deputy Clerk of Court FOR THE COURT: