16 C.M.A. 568 | United States Court of Military Appeals | 1967
Opinion of the Court
This is an application for relief in the nature of coram nobis. See United States v Frischholz, 16 USCMA 150, 153, 36 CMR 306. The accused seeks to set aside a 1956 conviction for assault with intent to commit rape and other offenses, in violation of the Uniform Code of Military Justice. He contends he was deprived of due process of law by the admission in evidence of deposition testimony detrimental to him. The contention rests upon United States v Jacoby, 11 USCMA 428, 29 CMR 244, which was decided more than three years after this Court denied his direct appeal of the conviction. Jacoby determined that Article 49 of the Uniform Code, supra, 10 USC § 849, does not authorize the admission in evidence of deposition testimony, taken without the presence of the accused or his counsel; it overruled previous decisions to the contrary, which were in force at the time of the accused’s trial.
Appellate Government counsel contend the present application concerns a question of law, not fact, and is, therefore, outside, the scope of the collateral relief traditionally accorded by the writ of coram nobis. As they view the issue, it deals only with a change in decisional law, which is not a proper ground for collateral relief. See Warring v Colpoys, 122 F2d 642 (CA DC Cir) (1941), certiorari denied, 314 US 678, 86 L ed 543, 62 S Ct 184 (1941); Gaitan v United States, 317 F2d 494, 497 (CA 10th Cir) (1963). Appellate defense counsel maintain that Jacoby’s reinterpretation of Article 49 was predicated upon the Sixth Amendment and, therefore, an issue of constitutional dimensions is presented, which can be vindicated only by retroactive application of the Jacoby decision. See Gideon v Wainwright, 372 US 335, 9 L ed 2d 799, 83 S Ct 792 (1963); cf. Johnson v New Jersey, 384 US 719, 16 L ed 2d 882, 86 S Ct 1772 (1966). We need not choose between the competing arguments,
The petition is denied.