5 M.J. 385 | United States Court of Military Appeals | 1978
Lead Opinion
Opinion
Appellant was originally convicted of premeditated murder and sentenced to confinement at hard labor for life and accessory penalties. The findings and sentence were approved by the convening authority. In an interim order, dated May 28, 1974, the Navy Court of Military Review held that, although appellant’s mental responsibility had been litigated at trial, evidence submitted after conviction warranted a further inquiry into both his mental responsibility at the time of the offense and his capacity to participate in the proceedings. Subsequently, a sanity board concluded appellant was both mentally responsible for the criminal act and possessed sufficient capacity to participate in the proceedings. In an opinion, dated January 26,1976, the Navy Court of Military Review reversed the conviction on the basis that the Government had improperly denied appellant’s request for defense counsel. A rehearing was conducted and, pursuant to his plea of guilty, appellant was convicted of unpremeditated murder and sentenced to confinement at hard labor for 18 years and accessory penalties. The convening authority, pursuant to the terms of a pretrial agreement, reduced the period of confinement to 10 years and his action was approved by the Court of Military Review. We granted review to determine whether the appellant was denied a speedy trial during the original hearing and whether the change in the standard of mental responsibility set forth in United States
We first address the speedy trial issue which is raised in the following factual context. Private First Class McCrory was murdered on September 22, 1972, and his remains were found on October 4. Appellant was apprehended in Burley, Idaho, on October 13 and was transferred to Treasure Island on the following day. He consulted with counsel, Lieutenant Johnson, on October 18 and departed Treasure Island on October 23 for Subic Bay, Philippines; the situs of the offense was U.S. Naval Air Station, Cubi Point, Philippines. He arrived at Subic Bay on October 25, where he was placed in pretrial confinement. On October 26 charges were preferred; appellant was informed of the charges and an Article 32
The pretrial investigation reconvened on November 3, and appellant was informed by the Article 32 investigating officer that his requested counsel would not be available until a later date. Appellant expressed a desire to await the arrival of this counsel and the Government stated that it was ready to proceed. The Article 32 hearing was held on November 20; the report of that hearing was forwarded on November 29. The pretrial advice of the staff judge advocate was completed on December 15 and the charge was referred to trial on December 27.
The initial Article 39(a)
Although the speedy trial issue was raised and litigated during the original hearing, it was not raised during the rehearing. Government counsel submit that the failure to raise a speedy trial issue during a. rehearing as it relates to an original hearing constitutes a waiver of such issue upon further appellate review. See United States v. Sloan, 22 U.S.C.M.A. 587, 48 C.M.R. 211 (1974); see generally United States v. Flint, 1 M.J. 428 (C.M.A.1976). However, we need not now resolve that issue as the record before us, which includes the transcript of the original hearing, reflects that appellant was accorded a speedy trial.
In the present case the appellant was in continuous confinement from the date of his apprehension on October 13, 1972, to the date of the speedy trial motion, which was made on March 29, 1973. As the previous Article 39(a) sessions dealt with the preliminary matters, they were not the functional equivalents of a trial for the purpose of assessing the period of pretrial confinement. United States v. Cole, 3 M.J. 220, 225 n. 4 (C.M.A.1977); United States v. Beach, 1 M.J. 118, 120 (C.M.A.1975) (Cook, J., dissenting). Thus, pretrial confinement extended to 167 days. However, the delay in the Article 32 investigation from November 3 to November 20, 1972, was occasioned by appellant’s desire to await the arrival of his requested defense counsel, Lieutenant Johnson.
The initial Article 39(a) session of January 8, 1973, was adjourned until January 15 or the first week of February for the purpose of awaiting the arrival of Lieutenant Johnson. Additional Article 39(a) sessions were held from January 22 to March 29. During this period it became obvious that a sanity board evaluation of the appellant was required before trial on the merits, but the defense refused to allow the appellant to be evaluated until it had obtained a psychiatric examination by a civilian psychiatrist. Indeed, even after the appellant had been examined by a civilian psychiatrist, the defense obtained a second examination by another civilian psychiatrist. The only delay requested by the Government was from January 29 to January 30 for the purpose of preparing argument on the defense motion made on January 29. In any event, absent this delay of one day, the defense continued to avoid a psychiatric examination by a sanity board by insisting that appellant be examined by a civilian psychiatrist. Thus, the present case involves more than the Government’s attempt to explain a pretrial delay by the necessity to conduct a sanity board evaluation of the
Thus, the entire period of the delay with the exception of one day from January 22, 1973, to March 29, was attributable to the defense (65 days), and we will deduct this delay and the delay in the Article 32 hearing from November 3, 1972, to November 20 (17 days) from the period of the Government’s accountability.
We turn now to the issue of whether the change in the mental responsibility standard set forth in United States v. Frederick, supra, requires a rehearing.
The decision of the United States Navy Court of Military Review is affirmed.
. Article 32, Uniform Code of Military Justice, 10 U.S.C. § 832.
. Lieutenant Johnson was stationed at Treasure Island.
. Appellant was originally charged with both conspiracy to commit murder and the substantive offense of murder. However, he was tried only for the offense of murder.
. Article 39(a), UCMJ, 10 U.S.C. § 839(a).
. See paragraph 121, Manual for Courts-Martial, United States, 1969 (Revised edition).
. The military judge subsequently instructed the court members that the maximum imposable sentence was confinement for life.
. Although the Article 39(a) session of January 8, 1973, was continued for the purpose of permitting Lieutenant Johnson to join the defense as counsel, he participated in the Article 39(a) session of January 29, and there is nothing in the record to indicate that his absence delayed the Government’s preparation for trial.
. Our resolution of the issue renders it unnecessary to address the Government’s argument that the present case involved extraordinary circumstances which would justify a delay in excess of 90 days. See United States v. Cole, 3 M.J. 220 (C.M.A.1977).
. In United States v. Frederick, 3 M.J. 230 (C.M.A.1977), the Court adopted the standard of mental responsibility recommended by the American Law Institute in the Model Penal Code § 4.01, Proposed Official Draft (May 4, 1962), which provides:
(1) A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law.
(2) As used in this Article, the terms “mental disease or defect” do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.
Id. at 234. Prior to our opinion in Frederick, the standard applied at military trials was the M’Naghten standard (M’Naghten’s Case, 10 Cl. & F. 200, 8 Eng.Rep. 718 (H.L.1843)), with the addition of the irresistible impulse test. See paragraph 120b, Manual, supra.
Concurrence Opinion
(concurring):
I concur. However, consideration of the speedy trial issue here is, in my view, inappropriate because it was not asserted at the trial. It is true that at an earlier trial on the same charge, the appellant unsuccessfully litigated the speedy trial issue which he presents here. But the finding of guilty which flowed from that trial was reversed by the United States Navy Court of Military Review because of an error unrelated to the speedy trial issue, committed by the trial judge. At his new trial, in accordance with a pretrial agreement, the appellant pleaded guilty to the lesser included offense of unpremeditated murder. The Navy Court of Military Review has affirmed.
Concurrence Opinion
(concurring in the result):
Speedy trial is never a matter of mere mathematics, whether the total falls short of or exceeds an arbitrary magic figure.
I find that there is nothing disclosed in the record as to a statutory prerequisite which shows a lack of diligence on the part of the Government to bring this matter to trial.