United States v. Grant

38 M.J. 684, 1993 CMR LEXIS 588, 1993 WL 517270
CourtU S Air Force Court of Military Review
DecidedDecember 10, 1993
DocketACM 30119
StatusPublished
Cited by15 cases

This text of 38 M.J. 684 (United States v. Grant) is published on Counsel Stack Legal Research, covering U S Air Force 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. Grant, 38 M.J. 684, 1993 CMR LEXIS 588, 1993 WL 517270 (usafctmilrev 1993).

Opinions

[687]*687OPINION OF THE COURT

SNYDER, Senior Judge:

Sergeant Grant, contrary to his pleas, was convicted of rape and attempted sodomy, and committing an indecent act upon his 6-year-old stepdaughter, H.1 Appellant has submitted five assignments of error, all of which we find are without merit.

I. DENIAL OF CONTINUANCE

A. Facts

Appellant avers the military judge abused his discretion by denying a defense request for continuance, thereby depriving appellant of his civilian counsel of choice. We disagree.

Appellant’s detailed military defense counsel was Captain K. The original trial date was 25 February 1992. A mental evaluation of appellant requested by Captain K resulted in a continuance from 25 February 1992 to 26 March 1992. In February 1992, appellant’s parents retained Mr. J to represent him. At that time, Mr. J knew he was facing disciplinary action by his bar association. He had appealed his initial penalty of 2 years’ suspension from the practice of law to the Supreme Court of Washington, whose decision was pending, when he accepted this retainer. When the trial convened on 26 March 1992, Mr. J’s suspension was reduced by the Supreme Court of Washington to 60 days and 2 years probation. Captain K requested a 60 day continuance to 1 June 1992 to allow Mr. J’s suspension to expire and to allow for Captain K’s availability. Further, Captain K informed the military judge that appellant was willing to remain in pretrial confinement and waive any accountability the government may have for speedy trial purposes in order for Mr. J to serve his suspension.

Mr. J advised the military judge2 that his attorney had requested a 1-week stay in the effective date of his suspension to allow him time to wind down his practice, but he directed his attorney to withdraw the request. He also advised that he had three personal and two telephone conferences with appellant, had obtained a copy of the case file from Captain K, reviewed the video interviews of H, and conferred with Captain K in person and telephonically. Mr. J arranged for other attorneys to take over representation of a number of his clients, but he did not seek to refer appellant to another attorney. He informed the military judge he could prepare for future work during the suspension, but he could not hold himself out as an attorney nor practice law during the suspension.

After ascertaining Captain K was fully familiar with and prepared to defend appellant’s case, and making allowances for Captain K’s schedule, the military judge granted a continuance until 7 April 1992. Upon convening on 7 April 1992, however, appellant informed the military judge he released Captain K on 1 April 1992 because “I’m very unhappy with Captain [K’s] performance as my defense counsel.” The Chief Circuit Defense Counsel of the circuit concerned agreed to detail another military counsel, Captain S. Because of his recent detailing to represent appellant, Captain S was not prepared to proceed to trial and requested a delay. Further, he advised the military judge appellant still desired Mr. J’s services and requested a continuance sufficient to allow that. The military judge adhered to his ruling denying a continuance until Mr. J’s suspension expired and set trial for 30 April 1992.

As of 24 April 1992, appellant had retained another civilian counsel, Mr. K. To allow for adequate preparation by Mr. K, an additional continuance from 30 April 1992 to 6 May 1992 was granted. Trial [688]*688commenced on 6 May 1992, but appellant again voiced his desire that Mr. J be part of his defense team. On the other hand, he did not voice any dissatisfaction with the services of either Captain S or Mr. K. Neither Captain S nor Mr. K asserted the need for additional time to adequately represent appellant.

Prior to issuing his 26 March 1992 ruling, the military judge entered extensive essential findings of fact, many of which are set forth supra. He found in part:

Most of the government’s witnesses are in the local area. The alleged victim in the case is a 7-year-old girl who is currently living with a foster family____ Captain K would be prepared to start the trial in two weeks.
The American Bar Association Model Rules of Professional Conduct, Rule 5.5, prohibits the unauthorized practice of law. Rule 5.5 says a lawyer will not assist a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law. This prohibition applies to Captain K. In the opinion of the court, both defense counsel can work independently of one another, and only Captain K can advise or confer with the accused during the suspension period. If counsel work together on the case during the suspension period, they will both be violating Rule 5.5.
The accused has been in pretrial confinement since 3 January 1992, although he expressed a willingness to stay there in order to have a trial date of 1 June 1992. There has been one continuance in this case already from 25 February 1992 to 26 March 1992. The alleged victim in this case is a 7-year-old girl who is coping with all of the emotional issues involved in a sexual molestation case and has been placed in a foster home. A lengthy delay will not only inconvenience the witnesses, but may have a direct impact on the memory of a 7-year-old witness to accurately recall the events. Although the accused has retained Mr. J, and he has established an attorney-client relationship, Mr. J is no longer a practicing attorney until 17 May 1992. This is analogous for purposes of scheduling this trial to a busy practitioner who is unavailable for a lengthy time period because of his schedule. This case is different though, because unlike the busy practitioner, Mr. J is unable to confer with either his client or co-counsel until 17 May 1992. Finally, Captain K can be available for trial within two weeks. Decision: Balancing all of these factors, it is the decision of this court to deny your request for a continuance until 1 June 1992. I am granting you a delay until 7 April 1992. I am not severing the attorney-client relationship between Mr. J and the accused.

(Emphasis added).

Where the trial judge’s findings of fact are supported by the evidence of record we fully accept them, unless clearly erroneous. United States v. Burris, 21 M.J. 140 (C.M.A.1985). In the instant case, except where specifically indicated, we find the trial judge’s factual findings and conclusions fully supported by the evidence of record.

B. Discussion

Our standard of review on this issue is abuse of discretion. United States v. Browers, 20 M.J. 356 (C.M.A.1985). When testing for an abuse of discretion, this Court does not substitute its judgment for the military judge’s. More than a difference of opinion is necessary to constitute an abuse of discretion. Instead, this Court tests for whether the ruling is arbitrary, clearly unreasonable, or clearly erroneous. United States v. Andrews, 36 M.J. 922 (A.F.C.M.R.1993); see United States v. Pabon, 37 M.J. 836 (A.F.C.M.R.1993).

A military judge may grant a continuance whenever fairness renders it appropriate. Article 40, UCMJ, 10 U.S.C. 840 (1988); RCM 906(b)(1).

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Bluebook (online)
38 M.J. 684, 1993 CMR LEXIS 588, 1993 WL 517270, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-grant-usafctmilrev-1993.