United States v. Davis

5 M.J. 451, 1978 CMA LEXIS 9757

• Court: United States Court of Military Appeals
• Decided: October 16, 1978
• Docket: No. 34,284; NCM 76-1968
• Status: Published

Opinions

Opinion of the Court

PERRY, Judge:

The appellant was represented at trial both by privately retained civilian defense counsel and by detailed military defense counsel. Subsequent to trial but before completion of the staff judge advocate’s post-trial review, the military defense counsel was discharged from the service. Upon completion of the review, a substitute defense counsel was designated to represent the appellant; and he was served with the post-trial review pursuant to United States v. Goode, 1 M.J. 3 (C.M.A.1975). The substitute defense counsel responded to the review, indicating that he noted no errors therein. However, he neither contacted the civilian defense counsel who continued to represent the appellant after trial, see United States v. Palenius, 2 M.J. 86 (C.M.A.1977) , in order to aid the civilian counsel to respond to the review, nor contacted the appellant in order to enter into an attorney-client relationship with him, see United States v. Iverson, 5 M.J. 440 (C.M.A.1978) , and United States v. Brown, 5 M.J. 454 (C.M.A.1978).

Under these circumstances, “the substitute defense counsel improperly purported to represent the appellant at that stage of the proceedings,” United States v. Brown, supra, with the result that, as a matter of law, no one reviewed the post-trial review on the appellant’s behalf, see United States v. Hill, 3 M.J. 295 (C.M.A.1977).

The decision of the United States Navy Court of Military Review is reversed and the action of the convening authority is set aside. The record is returned to the Judge Advocate General of the Navy for further action consistent with United States v. Iverson, supra, and United States v. Brown, supra.