United States v. Davis

20 C.M.A. 353, 20 USCMA 353, 43 C.M.R. 193, 1971 CMA LEXIS 742, 1971 WL 12756

• Court: United States Court of Military Appeals
• Decided: February 12, 1971
• Docket: No. 23,672
• Status: Published

Opinion

Opinion of the Court

FERGUSON, Judge:

The issue in this case is the same as in United States v Bowman, 20 USCMA 119, 42 CMR 311 (1970), where we reversed for failure of the law officer to comply with the requirements laid down by this Court in United States v Donohew, 18 USCMA 149, 39 CMR 149 (1969). In lieu of conducting a personal inquiry of the accused concerning his knowledge of his entitlement to counsel (Article 38(b), Uniform Code of Military Justice, 10 USC § 838), the law officer utilized a printed form, initialed and signed by the accused and his counsel, certifying that the latter had advised the accused with regard to his right to counsel. The Government concedes error and agrees that a rehearing is necessary. We accept the concession of error as properly made. United States v Goodin, 20 USCMA 160, 42 CMR 352 (1970), and cases cited at page 161. Cf. United States v Johnson, 20 USCMA 290, 43 CMR 130 (1971). In view of the action we take, we need not consider the other errors alleged by appellate defense counsel. They can be raised at the rehearing if trial defense counsel believes they have merit.

The decision of the Court of Military Review is reversed. The record of trial is returned to the Judge Advocate General of the Army. A rehearing may be ordered.

Judge Darden concurs. Chief Judge Quinn concurs in the result.