United States v. Army

11 M.J. 907, 1981 CMR LEXIS 679
CourtU.S. Army Court of Military Review
DecidedJuly 29, 1981
DocketCM 438532
StatusPublished
Cited by8 cases

This text of 11 M.J. 907 (United States v. Army) is published on Counsel Stack Legal Research, covering U.S. Army Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Army, 11 M.J. 907, 1981 CMR LEXIS 679 (usarmymilrev 1981).

Opinions

OPINION OF THE COURT

PER CURIAM:

The appellant was convicted of a number of offenses relating to blackmarketing activities while a member of the 2d Infantry Division in the Republic of Korea. He was sentenced to be dismissed from the service and to pay a fine of $10,000.00. Before us, he raises several assignments of error, four of which merit discussion.

[909]*909I

The appellant urges the Court to set aside the findings as to Specifications 1 and 3, Charge I because the trial judge erroneously instructed the court that solicitation under Article 134 requires only a general intent as opposed to a specific intent. Relying upon the rationale contained in United States v. Benton, 7 M.J. 606 (N.C.M.R.1979), pet. denied, 8 M.J. 227 (C.M.A.1980), the appellant maintains that the offense of solicitation requires a specific intent which must be determined by a subjective test rather than the objective test permitted by the trial judge’s instructions. We disagree.

The proscribed conduct is the inducing, enticing, or influencing of another to commit an offense punishable under the Code. While, as a general rule, negligent and unintentional acts do not constitute an offense, a person’s acts or words which seriously portray and convey to another an earnest request or desire to commit a crime constitutes solicitation. Obviously, such conduct must be accompanied by a culpable mental state commonly described as mens rea. We view the gravamen of the offense to be the corruption caused by planting the seed or idea to commit a crime. This can be determined by the objective test requiring only a general intent. See Clark and Marshall, Law of Crimes, Sections 4.02-4.04 (7th Ed. 1967). Read as a whole, the trial judge’s instructions adequately portrayed this standard and provided sufficient guideposts for an informed consideration of the essential element of the offenses.

II

The next contention is that the military judge improperly denied the defense request for three witnesses. Two of them were character witnesses who were expected to testify on the merits as well as at the sentencing portion of the trial.1 The other witness was expected to provide testimony attacking the credibility of one of the key prosecution witnesses. Based upon the adverse ruling of the military judge, the defense introduced stipulations of expected testimony as to each witness.

The first of the requested character witnesses, a retired colonel, had served with the appellant for approximately one and a half years during a period commencing two years previous to the offenses. He regarded the appellant as “an honest, outstanding, responsible commander.” The other character witness, a former captain, had known the appellant as an enlisted man in 1970. He believed the appellant to be honest, reliable, and highly capable.

The defense presented numerous other character witnesses — some by live testimony and others by stipulated testimony. Also, numerous exhibits evidencing good character were admitted. Among the live witnesses were the appellant’s wife, a brigadier general who knew the appellant during his officers’ basic course, an Air Force lieutenant colonel who had served with the appellant for six weeks in 1976, and a major and four noncommissioned officers who were currently serving with the appellant.

The basic rule for determining whether an accused is entitled under the Sixth Amendment to the production of witnesses is that their testimony must be material and noncumulative. United States v. Williams, 3 M.J. 239, 243 (C.M.A.1977); United States v. Carpenter, 1 M.J. 384 (C.M. A.1976). See United States v. Tangpuz, 5 M.J. 426 (C.M.A.1978). If the criteria for production are met, the compelled stipulation of their testimony is not an adequate substitute for the personal appearance of the witnesses. Carpenter, supra, at 386. However, a defense witness whose testimony, albeit material, is merely cumulative need not be produced by the government.

The testimony of the two character witnesses was merely cumulative; their testimony was well supplemented by the testimony of others. In view of the live testimony presented, the stipulated testimony, and the extensive documentary evidence, we hold that the military judge did not abuse his discretion in denying the defense [910]*910request for production of these two witnesses.

The remaining witness, a Staff Sergeant Chadwell, was expected to testify that a prime government witness had a motive to falsify his testimony. Sergeant Chadwell’s testimony would be both material and independent of any other testimony. The defense request for his production, however, was untimely, having been made only after the government had rested.2 The defense had known of Sergeant Chad-well’s expected testimony for two months prior to trial. The defense assertion of surprise that the accomplice was to testify is unfounded as the witness was granted immunity before trial and could reasonably have been expected to be called as a government witness.

The timeliness of a defense request for a witness may be considered by the military judge, although untimeliness per se is not a grounds for denying a request for a witness whose testimony is material and noncumulative. See United States v. Green, 2 M.J. 823 (A.C.M.R.1976). As the Court of Military Appeals noted in United States v. Hawkins, 6 U.S.C.M.A. 135, 142, 19 C.M.R. 261, 268 (1955), the “touchstone for untimeliness should be whether the request is delayed unnecessarily until such a time as to interfere with the orderly prosecution of the case.” See United States v. Qualls, 9 M.J. 662 (N.C.M.R.1980).

Our reading of the record convinces us that the defense delay in requesting the witness was such as to interfere with the orderly prosecution of this case. As no good cause was shown for the delay, we find that the judge did not abuse his discretion in denying production of the witness. Even if we were to hold that the judge erred, reversal is not required as we are convinced beyond a reasonable doubt that production of the witness would not have benefitted the appellant in view of the overwhelming credible evidence of guilt.3

Ill

The appellant also asserts that the military judge improperly denied a defense challenge to two court members. The first member was a special court-martial convening authority with a close professional relationship with the trial counsel.4 The court member stated he had a high regard for the judgment and advice of the trial counsel and that the trial counsel had obtained convictions in all eighty of the courts-martial he had convened. However, he also stated in essence that the relationship he had with the trial counsel would not affect his presumption of the appellant’s innocence, his ability to abide by the military judge’s instructions, or his determination to base his decision on the evidence presented. He added that even though he was a convening authority, he did not believe that the appellant’s presence in court indicated he must be guilty of something.

While we discourage the practice of detailing a convening authority to courts-martial where he has a close professional relationship with the trial counsel, the practice does not provide a ground per se for challenge. United States v. Baker, 2 M.J. 773, 776 (A.C.M.R.1976).

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