UNITED STATES ARMY COURT 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 Kevin Boyle, JA; Major Amy E. Nieman, JA; Captain 

Patrick J. Scudieri, JA (on brief); Lieutenant Colonel Melissa R. Covolesky, JA; 

Lieutenant Colonel Charles D. Lozano, JA; Major Christopher 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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SUMMARY DISPOSITION ON RECONSIDERATION 

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MULLIGAN, Senior Judge: 

An enlisted panel sitting as a general court-martial convicted appellant, 

contrary to his pleas, of various specifications involving resisting apprehension, 

making a false official statement, premeditated murder, larceny of non-military 

property of a value of less than $500.00, larceny of military property of a value of 

less than $500.00, and wrongful appropriation of a motor vehicle in violation of 

Articles 95, 107, 118, and 121, Uniform Code of Military Justice, 10 U.S.C. §§ 895, 

907, 918, and 921 (2006) [hereinafter UCMJ]. The panel sentenced appellant to a 

dishonorable discharge, confinement for life without the possibility 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. 2016). In a 

footnote to that decision, we noted appellant failed to submit “accompanying 

affidavits, unsworn declarations under penalty 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 additional matters, to include his sworn 

declaration, and his request to reconsider our prior opinion. We again find 

appellant’s assignments of error without merit. However, we take the opportunity 

here to briefly address one issue, personally raised by appellant, that his defense 

counsel provided deficient representation by conceding certain facts during her 

closing argument. 

BACKGROUND 

Appellant and Private (PVT) TL spent the night of 12 May 2013 at the home 

of an NCO where appellant was temporarily residing. Private TL asked to stay the 

evening as he was going to take appellant to the motor pool in the morning where 

appellant was scheduled to perform extra duties beginning at 0900. Appellant and 

PVT TL departed early on the morning of 13 May 2013. Later that day, PVT TL was 

discovered in his barracks room, stabbed to death. Key card logs showed PVT TL’s 

room was last entered at around 0919 hours that morning. 

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

TL’s car. Later that morning or early afternoon, appellant took a HMMMV off post, 

which eventually broke down. After a series of events, appellant was apprehended 

by military police who found among appellant’s possessions PVT TL’s military ID 

card and barracks room key card. The ensuing investigation also linked a knife, set 

down by appellant prior to his attempt to flee from the military police, that later 

tested positive for both appellant’s and PVT TL’s DNA. Appellant’s fingerprint was 

found in PVT TL’s room. 

Defense counsel’s overarching theme during closing argument centered on the 

many questions left unanswered by the government’s investigation of the murder and 

the evidence presented at trial. Early in the argument, defense counsel posited one 

theory of how the evidence could be read, 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 suggested, PVT TL decided to “crash,” and 

gave appellant his room key card and keys so as not to disturb PVT TL when 

appellant returned them. Defense counsel then explored the many aspects of the 

evidence that simply did not make sense, such as the fact appellant showed up for 

extra duty, the apparent lack of any motive for the crime, the sloppiness of the 

evidence collection and testing, and other possible explanations for the murder. 
HUGHES—ARMY 20130783 

3 

LAW AND ANALYSIS 

Appellant asserts his counsel during closing argument “conceded” that 

appellant was at the crime scene. Appellant claims he was not informed by his 

counsel that such a concession would be made and would not have granted his 

counsel permission to make such a concession. This raises the question whether 

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

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

counsel. Under the circumstances of this case, we do not find defense counsel’s 

argument constituted a concession—much less deficient performance.

To prevail on an ineffective assistance claim, appellant bears the burden of 

proving that (1) defense counsel’s performance in making this concession was 

deficient, and (2) appellant was prejudiced by this deficient performance. Strickland 

v. Washington, 466 U.S. 668, 698 (1984). As to the first prong, there is a strong 

presumption that counsel’s conduct “falls within the wide range of reasonable 

professional assistance.” Id. at 689. As to the second prong, appellant’s burden is 

to show “a reasonable probability that, but for counsel’s [deficient performance] the 

result of the proceeding would have been different.” Id. at 694. To demonstrate this 

prejudice, the question is “whether there is a reasonable probability that, absent the 

errors, the factfinder would have had a reasonable doubt 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 exercise or waive basic 

trial rights, including “whether to plead guilty, waive a jury, testify in his or her 

own behalf, or take an appeal.” Florida v. Nixon, 543 U.S. 175, 187 (2004) (quoting 

Jones v. Barnes, 463 U.S. 745, 751 (1983); Wainright v. Sykes, 433 U.S. 72, 93 n. 1 

(1977) (Burger, J., concurring)). Defense counsel must consult with an accused 

about these decisions, and obtain his consent to the course 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 the immediate - and 

ultimate - responsibility 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 attorney, but such decisions must as a 

practical matter, be made without consulting the client. The trial 

process simply does not permit the type of frequent and protracted 
HUGHES—ARMY 20130783 

4 

interruptions which would be necessary if it were required that clients 

give knowing and intelligent approval to each of the myriad tactical 

decisions as a trial proceeds. 

Wainwright, 433 U.S. at 93, (Burger, J., concurring). 

Defense counsel’s strategy of conceding a fact in accordance with evidence 

presented at trial is not ineffective if her representation does not fall below an 

objective standard of reasonableness. Nixon, 543 U.S. at 688. For example, in 

Nixon, defense counsel conceded the accused’s guilt after 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 Supreme Court found that 

when counsel took reasonable steps to defend the accused, counsel’s admission of 

the accused’s guilt did not amount to deficient performance. Id. at 188. 

Here, the government’s case, while strong, relied largely on circumstantial 

evidence. Nobody witnessed the murder. The evidence did not tie appellant to the 

crime scene at the exact moment when PVT TL died. Appellant made no admissions 

or statements implicating himself in the crime. In short, while the government’s 

evidence was strong, it could not rule out many possible explanations of what 

happened to PVT TL. 

Far from conceding appellant was in PVT TL’s room, defense counsel’s 

argument simply pointed out another, plausible, 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 reasonable doubt in the minds of the members. We do not need 

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

we focus on counsel’s conduct objectively, rather than by submitting 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 trial, even the most experienced counsel may 

find it difficult to resist asking whether a different strategy might have been better. . 

. . Strickland, however, calls for an inquiry into the objective reasonableness of 

counsel’s performance, not counsel’s subjective state of mind.”). 

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

reflected in the assumption that “counsel’s attention 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 decisions during 

closing argument—and during the rest of trial—to be objectively reasonable. We 

therefore find appellant has failed in the first instance to demonstrate that his 

counsel’s performance was deficient under Strickland.

CONCLUSION
HUGHES—ARMY 20130783 

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The findings of guilty and the 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: