15 C.M.A. 522 | United States Court of Military Appeals | 1965
Opinion of the Court
At his separate trial by general court-martial, accused pleaded not guilty but was convicted of attempted robbery and one specification of robbery, in violation of Articles 80 and 122, Uniform Code of Military Justice, 10 USC §§ 880 and 922. He was sentenced to bad-conduct discharge, total forfeitures, and confinement at hard labor for five years. The convening authority approved, and a board of review affirmed the findings and sentence except for the period of confinement, which it reduced to two years.
Upon Baylor’s prayer for reconsideration of our initial action on his petition for grant of review, we elected to hear his hapeal on substantially the same question involved in the companion case of United States v Mitchell, 15 USCMA 516, 36 CMR 14, this day decided.
Except that the written request for counsel submitted by Baylor was for representation by Captain Johnson, the facts pertinent to the instant ease are essentially identical to those recounted in the Mitchell opinion, supra. The Article 32 investigation report form reflects, without explanation, that counsel requested by name was not reasonably available, and the record is otherwise silent on that score. The report shows that, instead, the general court-martial authority appointed a certified lawyer, Lieutenant Hagedorn, as counsel for the accused. He acted in that capacity both at the pretrial investigation and at trial, and at neither level did Baylor raise any objection of any sort with regard to the question of counsel.
It is evident that the instant case is controlled by our decision in United States v Mitchell, supra. Here, as there, appellate defense counsel have moved to strike affidavits attached to the Government’s brief but, as in Mitchell, we find it unnecessary to rule on said motion.
The decision of the board of review is affirmed.