United States v. Evans

U.S. Army Court of Military Review

United States v. Evans

25 M.J. 699, 1987 CMR LEXIS 790, 1987 WL 3470

CourtU.S. Army Court of Military Review

DecidedNovember 20, 1987

DocketACMR CM 447204

StatusPublished

This text of 25 M.J. 699 (United States v. Evans) 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. Evans, 25 M.J. 699, 1987 CMR LEXIS 790, 1987 WL 3470 (usarmymilrev 1987).

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Opinion

OPINION OF THE COURT ON MOTION FOR ORAL ARGUMENT PRO SE

PER CURIAM:

Appellant has requested that this court hear oral argument in his case. He has further requested that he be permitted personally to present oral argument.

Appellant was convicted of rape, forcible sodomy, and aggravated assault in violation of Articles 120, 125, and 128, Uniform Code of Military Justice, 10 U.S.C. §§ 920, 925, and 928 (1982), respectively. His adjudged sentence to a dishonorable discharge, confinement for life, forfeiture of all pay and allowances, and reduction to the grade of Private E-l was approved by the convening authority. His case was previously reviewed by this court. United States v. Evans, 23 M.J. 665 (A.C.M.R.1986). The case is again before this court, on remand from the Court of Military Appeals, United States v. Evans, 25 M.J. 210 (C.M.A.1987), following a government request for remand based on issues raised at the Court of Military Appeals which were not previously raised before this court. Because of the implications of the request for pro se argument, we have chosen to specify, in some detail, our decision on the motion. For the reasons stated, appellant’s request to personally argue his case is denied. However, appellate defense counsel, if they desire, may request oral argument.

The Court of Military Appeals has recognized the importance of appellate oral argument. United States v. Rodriguez-Amy, 19 M.J. 177 (C.M.A.1985). Oral argument provides this court an efficient forum where appellate issues may be distilled and clarified. It has long been held, however, that a criminal defendant has no due process right to be present at appellate argument. Schwab v. Berggren, 143 U.S. 442, 448, 12 S.Ct. 525, 527, 36 L.Ed. 218 (1892). [700]*700From that proposition has grown the position that a criminal defendant has no absolute right to argue his own appeal. Price v. Johnston, 334 U.S. 266, 285, 68 S.Ct. 1049, 1059, 92 L.Ed. 1356 (1948); see also Faretta v. California, 422 U.S. 806, 816, 95 S.Ct. 2525, 2531, 45 L.Ed.2d 562 (1975). This is not to say appellate argument is deemed inconsequential and may be disregarded. In fact, it is a rare occurrence indeed when oral argument is not permitted. It is clear, however, that whether argument is heard is usually within the sound discretion of the appellate court.

We have been unable to find military cases which address the issue of whether an appellant, confined and serving a sentence of confinement for life, may appear and argue his appeal. However, in exercising our discretion we have taken particular note of certain relevant factors gleaned from Price v. Johnston. Such considerations include: what is in the best interests of both appellant and the government; what are appellant’s true motives; is appellant capable of conducting an intelligent argument; and, can his presence be secured without undue inconvenience. Price v. Johnston, 334 U.S. at 284-85, 68 S.Ct. at 1059-60. If “any of those factors” are found to be contrary to appellant’s appearance, then the court may well decline to order that the appellant be produced. Price v. Johnston, 334 U.S. at 285, 68 S.Ct. at 1059. Also, and of particular importance here, the Price Court recognized that lawful incarceration brings about the necessary limitation of many privileges and rights. One such right, oral argument on appeal, “may be circumscribed as to prisoners where reasonable necessity so dictates.” Price v. Johnston, 334 U.S. at 286, 68 S.Ct. at 1060.

We are convinced securing appellant’s presence at appellate argument would cause an unreasonable inconvenience to the government: appellant’s presence is simply not necessary. Additionally, although appellant has proffered several pro se pleadings, to include many fact-based allegations, we believe many of the errors asserted will require that a trained legal professional address the issues. United States v. Gillis, 773 F.2d 549, 560 (4th Cir.1985). Often one so tied to the facts can not distance himself from the affray to properly address complicated appellate issues. Finally, appellant has at his disposal appellate attorneys who have developed specific skills and expertise in the area of appellate practice and military criminal law. Defense appellate attorneys can ensure appellant will be afforded an effective appeal. Id. See e.g. Evitts v. Lacey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821, reh’g denied, 470 U.S. 1065, 105 S.Ct. 1783, 84 L.Ed.2d 841 (1985).

For the reasons set forth above the appellant’s motion for pro se argument is DENIED.

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OPINION OF THE COURT ON MOTION FOR ORAL ARGUMENT PRO SE

PER CURIAM:

Appellant has requested that this court hear oral argument in his case. He has further requested that he be permitted personally to present oral argument.

Appellant was convicted of rape, forcible sodomy, and aggravated assault in violation of Articles 120, 125, and 128, Uniform Code of Military Justice, 10 U.S.C. §§ 920, 925, and 928 (1982), respectively. His adjudged sentence to a dishonorable discharge, confinement for life, forfeiture of all pay and allowances, and reduction to the grade of Private E-l was approved by the convening authority. His case was previously reviewed by this court. United States v. Evans, 23 M.J. 665 (A.C.M.R.1986). The case is again before this court, on remand from the Court of Military Appeals, United States v. Evans, 25 M.J. 210 (C.M.A.1987), following a government request for remand based on issues raised at the Court of Military Appeals which were not previously raised before this court. Because of the implications of the request for pro se argument, we have chosen to specify, in some detail, our decision on the motion. For the reasons stated, appellant’s request to personally argue his case is denied. However, appellate defense counsel, if they desire, may request oral argument.

The Court of Military Appeals has recognized the importance of appellate oral argument. United States v. Rodriguez-Amy, 19 M.J. 177 (C.M.A.1985). Oral argument provides this court an efficient forum where appellate issues may be distilled and clarified. It has long been held, however, that a criminal defendant has no due process right to be present at appellate argument. Schwab v. Berggren, 143 U.S. 442, 448, 12 S.Ct. 525, 527, 36 L.Ed. 218 (1892). [700]*700From that proposition has grown the position that a criminal defendant has no absolute right to argue his own appeal. Price v. Johnston, 334 U.S. 266, 285, 68 S.Ct. 1049, 1059, 92 L.Ed. 1356 (1948); see also Faretta v. California, 422 U.S. 806, 816, 95 S.Ct. 2525, 2531, 45 L.Ed.2d 562 (1975). This is not to say appellate argument is deemed inconsequential and may be disregarded. In fact, it is a rare occurrence indeed when oral argument is not permitted. It is clear, however, that whether argument is heard is usually within the sound discretion of the appellate court.

We have been unable to find military cases which address the issue of whether an appellant, confined and serving a sentence of confinement for life, may appear and argue his appeal. However, in exercising our discretion we have taken particular note of certain relevant factors gleaned from Price v. Johnston. Such considerations include: what is in the best interests of both appellant and the government; what are appellant’s true motives; is appellant capable of conducting an intelligent argument; and, can his presence be secured without undue inconvenience. Price v. Johnston, 334 U.S. at 284-85, 68 S.Ct. at 1059-60. If “any of those factors” are found to be contrary to appellant’s appearance, then the court may well decline to order that the appellant be produced. Price v. Johnston, 334 U.S. at 285, 68 S.Ct. at 1059. Also, and of particular importance here, the Price Court recognized that lawful incarceration brings about the necessary limitation of many privileges and rights. One such right, oral argument on appeal, “may be circumscribed as to prisoners where reasonable necessity so dictates.” Price v. Johnston, 334 U.S. at 286, 68 S.Ct. at 1060.

We are convinced securing appellant’s presence at appellate argument would cause an unreasonable inconvenience to the government: appellant’s presence is simply not necessary. Additionally, although appellant has proffered several pro se pleadings, to include many fact-based allegations, we believe many of the errors asserted will require that a trained legal professional address the issues. United States v. Gillis, 773 F.2d 549, 560 (4th Cir.1985). Often one so tied to the facts can not distance himself from the affray to properly address complicated appellate issues. Finally, appellant has at his disposal appellate attorneys who have developed specific skills and expertise in the area of appellate practice and military criminal law. Defense appellate attorneys can ensure appellant will be afforded an effective appeal. Id. See e.g. Evitts v. Lacey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821, reh’g denied, 470 U.S. 1065, 105 S.Ct. 1783, 84 L.Ed.2d 841 (1985).

For the reasons set forth above the appellant’s motion for pro se argument is DENIED.

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