United States v. Chuculate

5 M.J. 143, 1978 CMA LEXIS 11302

• Court: United States Court of Military Appeals
• Decided: June 5, 1978
• Docket: No. 33,341; NCM 76-0813
• Status: Published

Opinions

Opinion of the Court

FLETCHER, Chief Judge:

The present case questions the propriety of the investigating officer’s failure to produce two civilian witnesses for the prosecution at the pretrial investigation.¹ One of these witnesses was the object of the indecent assault² of which appellant was later convicted.

This witness, a Mrs. Hill, in company with her friend, Mrs. Abies, being Marine wives, had utilized the base gymnasium facilities during “ladies night.” After a period of exercise, Mrs. Hill went to the outdoor running track in order to complete a mile course. While she ran, the appellant approached her, running alongside and attempted to engage her in conversation. Then, over her great objection, the appellant attempted to embrace and kiss her, grabbing her person and fondling her breasts. Thereupon, appellant left; Mrs. Hill proceeded to the gymnasium in an hysterical state where she met Mrs. Abies and related to her the details of the assault. As the two women were returning to the gymnasium, appellant burst out and Mrs. Hill told Mrs. Abies, “That’s the guy.” After-wards they reported the incident to the duty non-commissioned officer in charge of the gymnasium.

During the pretrial investigation appellant sought to examine both Mrs. Hill and Mrs. Abies; the government indicated that while both were invited to attend,³ they had nevertheless declined. On the basis of this apparent refusal, the Article 32 Investigating officer denied the defense request for their attendance. Sworn statements covering their testimony were admitted over objection.

Article 32(b) provides in pertinent part: At that investigation full opportunity shall be given to the accused to cross-examine witnesses against him if they are available and to present anything he may desire in his behalf, either in defense or mitigation, and the investigating officer shall examine available witnesses requested by the accused.

Examination of the Uniform Code and the Manual for Courts-Martial reveals no provision expressly authorizing compulsory process for an Article 32 hearing witness’ appearance. However, as we read Article 32, mere refusal of a civilian to testify, even in the face of the apparent failure of the code to provide an Article 32 investigating officer with subpoena power, does not eo ipso nullify the defense right to cross-examine. Cf. United States v. Lemons, 49 C.M.R. 521 (A.F.C.M.R.1974) and United States v. Chavez-Ray, 49 C.M.R. 517 (A.F.C.M.R.1974), both reversed on other grounds, 1 M.J. 34 (C.M.A.1975).

The instant case differs from its predecessors before this Court by involving two civilian witnesses⁴ signaling some intention not to appear voluntarily. It requires us to give some guidance on the application of the concept of “availability” in Article 32(b) as applied to the right to cross-examine adverse Article 32 investigation witnesses beyond military control. Proper understanding of this matter involves examination of this Court’s precedent.

The case of United States v. Mickel, 9 U.S.C.M.A. 324, 26 C.M.R. 104 (1958), answered the certified question of the correctness of the holding of the Board of Review that failure to provide Article 27(b) qualified counsel at an Article 32 hearing constituted reversible error in the absence of specific prejudice and timely objection. The Court agreed with the Board of Review both that the pretrial investigation is integral to the general court-martial proceedings and that the right to counsel is fundamental to a proper Article 32 investigation.

The following language, properly read, is illuminating:

Thus, if an accused is deprived of a substantial pretrial right on timely objection, he is entitled to judicial enforcement of his right, without regard to whether such enforcement will benefit him at the trial. At that stage of the proceedings, he is perhaps the best judge of the benefits he can obtain from the pretrial right. Once the case comes to trial on the merits, the pretrial proceedings are superseded by the procedures at the trial; the rights accorded to the accused in the pretrial stage merge into his rights at trial. If there is no timely objection to the pretrial proceedings or no indication that these proceedings adversely affected the accused’s right at the trial, there is no good reason in law or logic to set aside his conviction. [Mickel, supra at 327, 26

C.M.R. at 107 (emphasis added)] Examining the pertinent facts of the case and finding an absence of timely objection at the trial regarding pretrial deficiencies, the Court reversed the decision of the Board of Review.

The Mickel decision was the principal decisional basis for United States v. Donaldson, 23 U.S.C.M.A. 293, 49 C.M.R. 542 (1975), which contributes to a correct reading of the previously cited Mickel language. Donaldson presented once again an instance of deprivation of a substantial pretrial, right: a properly convened Article 32 investigation. At trial, there .was a defense objection that the officer who convened the pretrial investigation was not empowered to do so.⁵ Citing the first sentence of the above quotation from Mickel the Court set aside the findings regarding charges involved in the improper Article 32 investigation, applying an automatic reversal rule upon timely objection even “without regard to whether such enforcement will benefit [an accused] at the trial.” Then, with respect to two additional charges not included in the investigation but successfully prosecuted at trial, the court determined that failure to object constituted waiver under the authority of the last sentence of the Mickel rubric we have cited.

It was with this background in mind that we made our decision regarding the Article 32 witness dispute in United States v. Led-better, 2 M.J. 37 (C.M.A.1976). • After weighing the significance of the testimony of a key military witness for the prosecution in an Article 32 investigation against the difficulty and expense of his live appearance, we determined that to deny his presence was to deprive the accused of a substantial pretrial right. Thus we held that the trial judge prejudicially erred in failing to grant the appellee’s motion to reopen the investigation and order appearance of the witness.

Most recently we decided the case of United States v. Chestnut, 2 M.J. 84 (C.M. A.1976). There the prosecutrix of a rape charge had not refused appearance at a pretrial hearing but was. determined unavailable by the trial judge’s adoption of the investigating officer’s mere assumption of unavailability. Failure to grant a motion for continuance to depose the witness⁶ required reversal by this Court. Our perception of the trial judge’s denial in that case was that it manifested an arbitrary decision of unavailability antithetical to his judicial function. Our footnote four in that case was bottomed on the antecedent decisions of this Court which we have discussed and which support the proposition that in the face of timely and proper objection to deprivation of substantial pretrial rights this Court simply will not test for prejudice.

Turning to the instant case, we see no evidence of a proper defense motion for deposing the absent civilian witnesses. It cannot be doubted that their absence deprived the accused of a substantial pretrial right.⁷ However, we perceive that the Mickel rule, as clarified by succeeding cases, mandates that where a defense counsel fails to timely urge⁸ appellant’s substantial pretrial right — in this instance, the opportunity to depose in lieu of sworn personal cross-examination — -with no adverse effect at trial,⁹ then, “. . . there is no good reason in law or logic to set aside his conviction.” Mickel, supra at 327, 26 C.M.R. at 107.

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

Judge PERRY concurs.

1 . Article 32, Uniform Code of Military Justice, 10 U.S.C. § 832.

2 . At trial by general court-martial, Chuculate was found guilty of two specifications of unauthorized absence in violation of Article 86, UCMJ, 10 U.S.C. § 886, and of indecent assault, in violation of Article 134, UCMJ, 10 U.S.C. § 934. His sentence, approved by the convening authority and affirmed by the U. S. Navy Court of Military Review, included a bad-conduct discharge, confinement at hard labor for 6 months, forfeiture of $300.00 pay per month for 6 months and reduction to pay grade E-1.

3 . While some ambiguity exists in the record regarding the disinclination of these two women to attend the Article 32 sessions, the Court ' of Military Review, in its role of fact finder, found that these individuals had refused.

4 . No military command compulsion was available to encourage these reluctant civilians to appear at the investigatory hearing.

5 . See Manual for Courts-Martial, United States, 1969 (Revised edition), paragraph 33e.

6 . She was then actually present for trial purposes.

7 . We acknowledge that the statutory standard of confrontation for Article 32 investigations is different from the constitutional standard applicable to criminal trials. Under different facts it may be that absence of the prosecutrix, whose identification of the assailant and personal veracity are quintessential, may invalidate the proceeding. Here the unusual nature of the identification of the accused, as put forth in the sworn statements in the Article 32 investigation, constitute sufficient pretrial identification of the accused. Mrs. Hill identified appellant to Mrs. Abies as they were entering to report the incident. Mrs. Abies earlier had seen appellant in the gymnasium. She learned his identity from the gymnasium NCO who identified him as Chuculate, a brig parolee registrant.

8 . Unlike defense counsel in Chestnut, this counsel seemed unaware of his right to preserve his Article 32 rights to cross-examination by means other than live appearance.

9 . Prior to trial in this case the defense counsel had extensive interviews with both of the witnesses in question here and as a consequence was given sufficient discovery of their knowledge.