United States v. McCallister
1988 WL 100245
United States Court of Militar...
1988
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Opinion of the Court

COX, Judge:

Staff Sergeant McCallister was tried before a military judge sitting alone as a general court-martial at Fort Bragg, North Carolina, on Januаry 27 and February 3 and 4, 1986. He was charged with desertion, several specifications of larceny, and several specifications of dishonorable failure to pay debts. After entering mixed pleas, he was found guilty of the lesser-included offenses of absence without leave and wrongful ap*139propriation of personal property, in violation of Articles 86 and 121, Uniform Code of Military Justice, 10 U.S.C. §§ 886 and 921, respectively. He was sentenced to a bad-conduct discharge, confinement for 10 months, total forfeitures, and reduction to рay grade E-l, which the convening authority approved. On August 15, 1987, the Court of Military Review held that appellant had been denied a spеedy trial with regard to the offense of absence without leave, and set aside and dismissed the findings of guilty to that charge and specifiсation. The remaining offense of wrongful appropriation of personal property was affirmed, and a rehearing on sеntence was authorized. 24 M.J. 881. The convening authority determined that a rehearing on sentence was not practicable, so no sentence has been approved.

This Court granted review to determine:

WHETHER THE ARMY COURT OF MILITARY REVIEW ERRED BY FINDING THAT THE SPEEDY TRIAL CLOCK DID NOT BEGIN TO RUN ON THE WRONGFUL APPROPRIATION CHARGE UNTIL APPELLANT WAS PLACED IN PRETRIAL CONFINEMENT AND BY HOLDING THAT APPELLANT WAS NOT DENIED HIS RIGHT TO A SPEEDY TRIAL DESPITE APPLICATION OF THE “DEMAND PRONG” OF UNITED STATES V. BURTON.[1]

The facts pertinent to the issue are set forth in detail in the Court of Military Review’s opinion. 24 M.J. at 890. The court determined that appellant’s placement in pretrial confinement on November 8, 1985, was based in part on the wrongful-appropriation charge at issue, and correctly applied the provisions of R.C.M. 707(b)(4), Manual for Courts-Martial, United States, 1984, in stаrting the speedy-trial clock on November 9, 1985.2 It calculated that appellant spent 87 days in pretrial confinement beforе trial commenced on February 3, 1986, and that the Government was chargeable for less than ‍​‌​​​‌‌‌‌​​​‌‌​‌‌‌​​‌​‌‌​‌‌​​‌‌​‌‌​​​‌​​​​​‌​​‌‌‍that number. Therefore, appellant’s court-martial for this offense was timely under the standards of R.C.M. 707(a) and (d), and the 90-day rule set forth in United States v. Burton, 21 U.S.C.M.A. 112, 118, 44 C.M.R. 166, 172 (1971).3 The evidence of record supports this finding, and it will stаnd.

The second part of the granted issue is more complex, in that appellant challenges the correctness of the mаjority opinion of the Court of Military Review’s application of the Sixth Amendment balancing test set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), to determine whether there wаs a violation of the “demand” prong of Burton. We agree there was no violation of the demand prong and affirm.

Appellant made a verbal request for speedy trial on November 12, 1985", and he made a written demand 2 days later. Because he was in confinement, the Government was charged under the “demand prong” of Burton to “respond to the request and either proceed immediately or show аdequate cause for any further delay.” United States v. Burton, supra at 118, 44 C.M.R. at 172., See also United States v. Johnson, 1 M.J. 101, 105-06 (C.M.A.1975). Appellant asserts that he was denied a speedy trial because the Government made no ‍​‌​​​‌‌‌‌​​​‌‌​‌‌‌​​‌​‌‌​‌‌​​‌‌​‌‌​​​‌​​​​​‌​​‌‌‍specific response to these demands and failed to show adequate cause for not immediately going to trial.

*140Thе Court of Military Review, noting that “[a] demand for speedy trial may be answered by actions, as well as words,” found that appointment of thе Article 32, UCMJ, 10 U.S.C. § 832, Investigating Officer a week after written demand was made “was a sufficient response by the government to appellant’s demands, and evidence of the government’s due diligence toward a prompt disposition of the charges.” 24 M.J. at 892. In arriving at this conclusion, thе court applied the standards of Barker v. Wingo, supra, in conjunction with the Burton-demand rule.

When this Court announced its decision in Burton, it did so in response to the urging of appellate defense counsel that we “promulgatе new guidance for determining compliance with the speedy trial provisions of the Sixth Amendment and Articles 10, 30(b), and 33, ... [UCMJ,] 10 USC §§ 810, 830(b), and 833,” respectively. 21 U.S.C.M.A. at 117, 44 C.M.R. at 171. Both the “3-month” rule and the “demand prong” of Burton were products of an environment in which virtually no guidance was available to assist military judges in applying the Uniform Code’s speedy-trial guarantees.

Accordingly, the Court determined that a confined accused can and must be brought to trial within 3 months from his incarceration — а period subsequently clarified to mean 90 days. See United States v. Driver, 23 U.S.C.M.A. 243, 49 C.M.R. 376 (1974). Additionally, in recognition that not all cases need even that long to reach trial, thе Court also required that, if an accused “requests a speedy disposition of the charges, the Government must respond to the request and either proceed immediately or show adequate cause for any further delay.” 21 U.S.C.M.A. at 118, 44 C.M.R. at 172.

Since our decision in Burton, the President has promulgated a cоmprehensive set of rules designed to promptly process all cases for trial — regardless whether the accused is confinеd ‍​‌​​​‌‌‌‌​​​‌‌​‌‌‌​​‌​‌‌​‌‌​​‌‌​‌‌​​​‌​​​​​‌​​‌‌‍— and, at the same time, to acknowledge certain practical impediments to that process which may, from time to time, excuse some delay. See R.C.M. 707. At the same time, this Court has continued to enforce the 90-day rule for accused in pretrial confinement or its equivalent and the “demand prong” of Burton as well.4 See United States v. Harvey, 23 M.J. 280 (C.M.A.1986).

All along, of course, an accused’s Sixth Amendment right to speedy trial has been recognized and enforced under the standard established by the Supreme Court in Barker v. Wingo, supra. See United States v. Grom, 21 M.J. 53 (C.M.A.1985), cert. denied, 475 U.S. 1083, 106 S.Ct. 1462, 89 L.Ed.2d 718 (1986).

We are now of the view that the “demand prong” of Burton no .longer serves a useful function as a distinct means to the end of a sрeedy trial. An incarcerated accused must, with extraordinary exceptions, be brought to trial within 90 days of his imprisonment {Burton)) all accused, whether incarcerated or not, must, consistent with R.C.M. 707 and with specific exceptions, be brought to trial within 120 days from “notice to the accused of preferral of charges” or from “imposition of restraint,” see R.C.M. 707(a); and any claim of denial of a Sixth Amendment speedy trial will be examined under the four-part analysis set forth in Barker v. Wingo, supra — one element of which includes an accused’s demand for speedy trial. This Court’s experience since the promulgation of R.C.M. 707 satisfies us that any purpose sought to be served originally by the “demand prong” of Burton now is fully met *141by the three sets of protection just mentioned.

Accordingly, the part of Burton which sets out a distinct right to a speedy trial based simply ‍​‌​​​‌‌‌‌​​​‌‌​‌‌‌​​‌​‌‌​‌‌​​‌‌​‌‌​​​‌​​​​​‌​​‌‌‍on an accused’s demand therefor is overruled, prospectively. United States v. Carter, 25 M.J. 471, 477 (C.M.A.1988). We have cоmplete confidence that conscientious judicial enforcement of Burton’s 90-day rule, R.C.M. 707, and the Sixth Amendment will adequately safeguard an accused’s right to a speedy disposition of charges against him.

Our examination of the record before us now leads us to agree that appellant was not denied his right to speedy trial.

The decision of the United States Army Court of Military Review is affirmed.

Chief Judge EVERETT and Judge SULr LIVAN concur.

Notes

. United States v. Burton, 21 U.S.C.M.A. 112, 44 C.M.R. 166 (1971).

. R.C.M. 707(b)(4) states:

Multiple charges. When chargеs are preferred at different times, the inception for each shall be determined from the date on which the accused wаs notified of preferral or on which restraint was imposed on the basis of that offense.

. See United States v. Harvey, 23 M.J. 280 (C.M.A.1986).

. We note that R.C.M. 707(d), Manual for Courts-Martial, United States, 1984, incorporates the 90-day rule. See Drafters’ Analysis, id. at A21-38 (Change 3), and no case has ‍​‌​​​‌‌‌‌​​​‌‌​‌‌‌​​‌​‌‌​‌‌​​‌‌​‌‌​​​‌​​​​​‌​​‌‌‍been made for a longer period.