United States v. Babcock

14 M.J. 34, 1982 CMA LEXIS 16184

• Court: United States Court of Military Appeals
• Decided: August 30, 1982
• Docket: No. 40148/NA; NCM 80-0998
• Status: Published

Opinions

Opinion of the Court

EVERETT, Chief Judge:

In November 1979, a general court-martial composed of officer and enlisted members tried appellant at the Naval Legal Service Office on Guam. Contrary to his pleas, he was found guilty of various drug-related offenses — under 11 specifications of a charge alleging violation of Article 92 of the Uniform Code of Military Justice, 10 U.S.C. § 892, and one specification which involved Article 134, U.C.M.J., 10 U.S.C. § 934. The court members sentenced Babcock to a bad-conduct discharge, confinement and partial forfeitures for 3 years, and reduction to the lowest enlisted grade. Immediately after sentence was adjudged on November 10, 1979, appellant requested deferment of confinement; but on November 13, this request was denied by the convening authority at Guam.

A substitute convening authority, who performed the post-trial review, dismissed the charge under Article 134; reduced the duration of confinement and partial forfeitures to 30 months; and otherwise approved the sentence. Subsequently, the United States Navy Court of Military Review set aside the findings of guilty on three other specifications; reduced the period of confinement and forfeitures to 27 months; but otherwise approved the sentence. 10 M.J. 503. In turn, we granted review to consider this issue:

WHETHER THE PETITIONER WAS DENIED OF HIS RIGHTS UNDER United States v. Goode, 1 M.J. 3 (C.M.A. 1975)?

I

During the Article 32 investigation and at his trial, appellant was represented by Lieutenant Hurley, his detailed defense counsel, who was assigned to the Naval Legal Service Office (NLSO) at Guam, and by Lieutenant Commander Turner, his individual military counsel, who was stationed in the NLSO at Subic Bay in the Philippines. On December 28, Lieutenant Hurley directed a request for clemency to the substitute convening authority. However, for some unexplained reason, this request was not received at that time, and no action was taken thereon.

On January 7, 1980, the military judge received the record of trial at Subic Bay, where he was assigned, and he authenticated it on January 14,1980. According to his receipt in the original record of trial, appellant obtained his copy on January 18, 1980. See Article 54(c), UCMJ, 10 U.S.C. 854(c). On January 21, 1980, Lieutenant Hurley, the detailed defense counsel, certified that he had examined the record of trial.

Because the original convening authority was disqualified by his grant of immunity to a witness who testified at appellant’s trial, the case was referred for post-trial review to the Commander, Naval Base, Pearl Harbor, Hawaii. The review by his staff judge advocate — a 29-page document — was prepared on February 21, 1980; forwarded the next day to the individual military counsel at Subic Bay; and received by him on February 27,1980. On that same day, Lieutenant Commander Turner

drafted a message to Commander Naval Base, Pearl Harbor, HI, requesting an authenticated copy of the record of trial so that I could prepare my Goode response.

This message drafted in smooth, was typed by my assistant LN1 Lovelace. I initialed it and it was sent upstairs for release by the Commanding Officer.

At this time I put this case out of my mind and returned to my normal duties. It would have been impossible for me to do my comments without the record of trial.

Around March 26, Lieutenant Commander Turner decided that the requested copy of the record was overdue and “I casually mentioned to my Commanding Officer that I hadn’t received the record of trial and asked his advice on a follow-up message. He recommended I call the SJA personally on the matter.” On his third attempt, Turner was able on March 28 to talk with Commander Powell, the staff judge advocate at Pearl Harbor, who “indicated he had received no message but agreed to mail the record of trial.”

According to- Commander Powell, he waited until March 12,1980, before submitting the case to the convening authority for his “consideration ... in order to provide Defense Counsel additional time in view of the need to use the mails.” The convening authority acted on the case that same day “and the record of trial was forwarded to the Judge Advocate General [of the Navy] on 17 March 1980 for review by the Court of Military Review.”

On April 4,1980, Lieutenant Commander Turner completed a Goode¹ response which was received by Commander Powell on April 8, 1980. However, in his supplemental review dated April 23,1980, Commander Powell advised the substitute convening authority that “you have no legal obligation at this juncture to reconsider your action since the Goode response was not submitted in a timely fashion.”

On April 10, Lieutenant Hurley had filed several post-trial documents as enclosures to a letter which was received by the staff judge advocate on April 14. Among these enclosures was a request for clemency, dated December 28, 1979, which had never been received by the substitute convening authority. In connection with these matters Commander Powell advised “that to act on the clemency request at this late date is neither required nor desirable and further once your action was taken in the case and the accused was transferred to Norfolk, your jurisdiction over the accused terminated.” Accordingly, in his supplemental review, Commander Powell recommended that the substitute convening authority “take no additional action in this case at this time and that the best interests of justice would be served by the forwarding this supplemental review and the accompanying documentation to the Court of Military Review for its consideration of such matters as it determines require attention.” This advice was followed by the convening authority.

II

Appellate defense counsel now argues that the 5-day period for submitting a Goode response never commenced to run until Lieutenant Commander Turner had received a copy of the record of trial. The premise for this argument is that a defense counsel cannot be expected to prepare a Goode response unless he is in possession of a record of trial.

We agree that a record of trial should be available to the defense counsel in connection with the proper performance of his post-trial duties. See United States v. Cruz, 5 M.J. 286 (C.M.A.1978); United States v. Cruz-Rijos, 1 M.J. 429, 432 (C.M.A. 1976). Moreover, we recognize that because Lieutenant Commander Turner was the lead counsel during trial, the staff judge advocate apparently had anticipated that he would prepare the Goode response. However, we cannot ignore the fact that the detailed defense counsel was never excused by appellant and continued to perform his duties throughout the trial and thereafter. Indeed, immediately after the trial was completed on November 10, Lieutenant Hurley apparently was involved in preparing the request for deferment of confinement; in December, he had drafted a request for clemency; in January, he examined the record in behalf of the defense; and in April, he renewed appellant’s December request for clemency. In every way, “he remained part of the defense team.” United States v. Jeanbaptiste, 5 M.J. 374, 377 n.4 (C.M.A.1978). Significantly, we have heard no claim that the copy of the record of trial — for which appellant signed a receipt on January 18 — was not fully available to Lieutenant Hurley from that time forward. Moreover, Commander Powell, the staff judge advocate at Pearl Harbor, was not placed on notice that this copy furnished to Babcock pursuant to Article 54(c) would not be available to Lieutenant Commander Turner, the individual military counsel. Until he had reason to believe that Turner lacked access to the record, Powell had no obligation to mail a copy to him in the Philippines. The principle enunciated in Cruz and Cruz-Rijos that a record of trial should be available to the defense counsel for his post-trial duties does not include any requirement that, without request, the staff judge advocate provide a copy to an accused and all defense counsel. Instead, the defense counsel bear some responsibility for coordination with their client and between themselves. Therefore, under the circumstances of this case any requirements of Goode and Cruz that the record be available to defense counsel were satisfied.

Appellate defense counsel also insists that, even so, we should direct remand for further review of this case by the substitute convening authority, in order that he might take into account the comments of defense counsel with respect to the staff judge advocate’s review.² In appellant’s view, he should not be prejudiced by the administrative error which delayed his counsel’s response until after the convening authority had acted, even though the Government was not at fault. We rejected a similar argument in United States v. Kincheloe, Dkt. No. 37,772 (C.M.A.1982). While the Court of Military Review is free under such circumstances to remand for further review by the convening authority, it also may proceed to review the record without remand. Of course, if that court determines that the absence of a Goode response was not by choice, it should not invoke the waiver which usually would result from failure to submit a Goode response.³

Ill

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

1 . United States v. Goode, 1 M.J. 3 (C.M.A. 1975).

2 . After his action was promulgated, the convening authority was not entitled to review the case further. United States v. Shulthise, 14 U.S.C.M.A. 31, 33 C.M.R. 243 (1963). Thus, he could take no action on the Goode response, unless the case was remanded to him.

3 . We reiterate this passage from United States v. Kincheioe, Dkt. No. 37,772 (C.M.A.1982).

[I]f trial defense counsel believes that his client has been prejudiced in some way by the post-trial review, he must not sit idle. Instead, he should bring the situation to the attention of appellate defense counsel, who may, in turn, move to file with the Court of Military Review suitable documents explaining why the Goode response was not filed in a timely manner. Once aware of the reason for the failure of defense counsel to file a Goode response, the Court of Military Review, unlike the convening authority, is empowered to take remedial action, if it finds that to be appropriate, and at least, the Court will not infer erroneously that defense counsel filed no Goode response because he believed the post-trial review to be accurate.