27 M.J. 212 | United States Court of Military Appeals | 1988
Lead Opinion
Opinion of the Court
This is yet another case requiring us to rule upon whether appellant was deprived of his right to a speedy trial under R.C.M. 707, Manual for Courts-Martial, United States, 1984. Staff Sergeant Cook was tried at Tyndall Air Force Base, Florida, by a general court-martial with members, and he contested all the charges. He was convicted of one specification of distribution of 0.936 grams of cocaine, two specifications of larceny by false pretenses, and one specification of presenting a false claim, in vio
We granted review of three issues.
It is clear that this case was not prosecuted with a constant view towards day 120. See United States v. Carlisle, 25 M.J. 426, 428 (CMA 1988). It is only the military judge’s designation of 14 days as
Our examination of the record comports with the findings presented by Senior Judge Sessoms in his dissenting opinion in this case. 23 M.J. at 885. The record reveals that, upon learning that the Government planned to conduct the Article 32 hearing upon written statements alone and without live witnesses, defense counsel made a request that the Government produce its witnesses so they could be cross-examined. The investigating officer denied the defense request. The first Article 32 investigating officer’s report was prepared based solely upon sworn statements provided by the Government.
Upon review of the investigating officer’s report, the staff judge advocate of the next higher command returned the case and directed that a second Article 32 hearing be held to perfect the Government’s case. Defense counsel offered to waive the second Article 32 investigation, but when she learned that it would go forward, she renewed her request that the Government produce its witnesses. Unbeknownst to defense counsel, as part of the process of perfecting the Government’s case, it was suggested that the Government provide its live witnesses in lieu of their statements. The Government’s witnesses were present at the second Article 32 hearing, and a civilian witness, appellant’s ex-wife, was also deposed at that time so that the Government could preserve her testimony in anticipation that she might be unavailable for the court-martial. As trial counsel admitted in his argument contesting the motion to dismiss for lack of speedy trial, the delay to obtain these witnesses for the Article 32 hearing was necessary to the prosecution’s case.
In United States v. Carlisle, supra at 428, we made the point that R.C.M. 707 is not “a numbers game — where days are just added and subtracted, a day or two here or there ... deciding later if the rule has been honored or broken.” We take this opportunity to reiterate that “each day that an accused is available for trial is chargeable to the Government, unless a delay has been approved by either the convening authority or the military judge, in writing or on the record.” Id. (citations omitted).
In this case, defense counsel testified on the motion
MJ: [W]hen you made the request for witnesses, you must have known there was going to be some delay in bringing in people from Washington state, Philip*215 pines, Germany, and New York for the Article 32 investigation.
WIT: Um hum. I didn’t expect it the next week. Certainly not, sir.
MJ: And how long did you expect that there would be a delay at the time of your request?
WIT: I guess I really — I didn’t stop to think how long it would be____
MJ: So you knew that your request was going to cause some delay in the second Article 32 investigation, but you never really formed in your own mind an opinion as to how long that might be?
WIT: Yes, that’s correct, sir.
MJ: Would it be fair to say you assumed it would be a reasonable period of time, whatever a reasonable period of time is? WIT: Sure, sure, absolutely.
This type of informal, after-the-fact allocation to the defense of a “reasonable” period of delay does not meet the demands of R.C.M. 707. The burden is on the Government to bring an accused to trial within 120 days. When the defense moves to dismiss for lack of speedy trial, the burden of persuasion is on the Government to justify the delay. It is, therefore, incumbent upon the Government to make a proper record. See United States v. Burris, supra. The record in this case is insufficient to support the allocation of 14 days of delay to the defense.
The Article 112a offense is not affected by our disposition of the speedy-trial issue,
Ultimately, the Government produced witnesses on the motion, and the defense, to counter the Government’s evidence, opted to have Captain Langley testify on the motion. The military judge explained to the accused that his options were to “relieve Captain Langley from the case” or “we may insist that she remain as your attorney in this case and not testify.” This advice to appellant was in error. See Unit
The decision of the United States Air Force Court of Military Review is reversed. The findings of guilty and the sentence are set aside. Charges I and II and their specifications are dismissed. The record of trial is returned to the Judge Advocate General of the Air Force. A rehearing may be ordered on Charge III and its specification and the sentence.
. We granted review of the following issues:
I
WHETHER THE MILITARY JUDGE ERRED BY DENYING APPELLANT’S MOTION TO DISMISS UNDER R.C.M. 707, BECAUSE THE CHARGES IN QUESTION WERE NOT BROUGHT TO TRIAL WITHIN 120 DAYS OF PREFERRAL. [See 26 MJ 56.]
II
WHETHER THE MILITARY JUDGE ERRED BY HOLDING, IN EFFECT, THAT APPELLANT WAIVED HIS RIGHT TO CONFRONT A GOVERNMENT WITNESS BY FAILING TO TIMELY REQUEST THE WITNESS’ APPEARANCE AT TRIAL.
Ill
WHETHER THE MILITARY JUDGE ERRONEOUSLY REQUIRED APPELLANT TO EITHER PERMIT CAPTAIN LANGLEY’S WITHDRAWAL OR FOREGO HER TESTIMONY ON THE SPEEDY TRIAL MOTION, THEREBY DEPRIVING APPELLANT OF HIS RIGHT TO DESIGNATED COUNSEL.
. The Court of Military Review’s chronology is modified by the items in brackets as follows:
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Deductible delays total [11] days. [11] days sub-traded from 141 days equals [130] days. 23 M.J. 882, 887 (1987).
. In some situations, a lawyer may find it necessary to testify. When it is on a procedural, administrative, or collateral matter, he or she ordinarily need not be disqualified as counsel. See United States v. Baca, 27 M.J. 110, 119 (CMA 1988)(Cox, J., concurring).
. The Government’s alternative theory was that the delay in proceeding to trial was properly excludable under R.C.M. 707(c)(5)(A). This rule provides for exclusion where:
The delay or continuance is granted because of unavailability of substantial evidence relevant and necessary to the prosecution’s case when the Government has exercised due diligence to obtain such evidence and there exists at the time of the delay grounds to believe that such evidence would be available within a reasonable time____
We find the record does not support this theory.
. Charges I and II and their specifications were withdrawn on December 3, 1985. On December 11, 1985, these charges were repreferred, and Charge III and its specification were added. Therefore, the speedy-trial clock was not implicated as to Charge III. Of course, withdrawal and subsequent repreferral of the original charges did not toll the speedy-trial clock. See United States v. Britton, 26 M.J. 24 (CMA 1988).
Concurrence in Part
(concurring in part and in the result):
I agree with the majority opinion except that I find there was sufficient evidence to attribute this 14-day delay to the defense.