United States v. Harris

12 M.J. 707, 1981 CMR LEXIS 590
U.S. Navy-Marine Corps Court of Military Review·Decided November 30, 1981·No. NMCM 81 0171·Published·Cited by 3 cases

Opinions

CEDARBURG, Chief Judge:

This case was originally submitted without specific assignment of errors. This Court requested briefs from appellate counsel as to whether the advice given by the military judge satisfies the requirements established by United States v. Donohew, 18 U.S.C.M.A. 149, 39 C.M.R. 149 (1969), “that the record should contain the accused’s personal response to direct questions [regarding counsel rights] incorporating each of the elements of Article 38(b), as well as his understanding of his entitlement thereunder.” Id. at 152, 39 CMR at 152. Government counsel moved, pursuant to Rule 18 b, Courts of Military Review Rules of Practice and Procedure, 10 M.J. LXXXVI, to have the matter heard by this Court sitting as a whole to secure uniformity of its decisions, citing recent decisions by a panel of this Court differing from those of two other panels. The Court, by a majority of all judges present for duty, determined to hear the matter sitting as a whole.

Article 38(b), Uniform Code of Military Justice, 10 U.S.C. § 838(b) provides:

The accused has the right to be represented in his defense before a general or special court-martial by civilian counsel if provided by him, or by military counsel of his own selection, if reasonably available or by the defense counsel detailed under section 827 of this title (article 27). Should the accused have counsel of his own selection, the defense counsel and assistant defense counsel, if any, who were detailed, shall, if the accused so desires, act as his associate counsel; otherwise they shall be excused by the military judge or by the president of a court-martial without a military judge.

Appellant’s case was referred to trial on 12 May 1980 by the Commanding Officer, Marine Barracks, Naval Weapons Station, Charleston, South Carolina, before the special court-martial appointed by his Convening Order 8-80, dated 12 May 1980. Lieutenant Commander Thomas W. Mitchell, Jr., JAGC, USN, was designated as defense counsel on the appointing order. On 14 May 1980, Special Court-Martial Amending Order 8a-80 modified Convening Order 8-80 by substituting Lieutenant Edward P. Gibson, JAGC, USNR, as defense counsel, and relieving Lieutenant Commander Mitchell. Appellant and the convening authority negotiated a pretrial agreement which was signed on 30 May 1980. Appellant was arraigned and pleaded guilty, in accordance with the pretrial agreement, on 12 June 1980.

[709] The Donohew advice, inquiry and responses consist of the following:

MJ: Now, Lance Corporal Harris, before proceeding further I want to ensure that you understand your rights concerning counsel at your trial. You have the option to be represented at your trial by a civilian lawyer provided by you at no expense to the government. You also have the right to be represented at your trial by a military lawyer of your own selection, provided by the government at no expense to you if that counsel is reasonably available. If you are defended by a civilian lawyer or by military lawyer of your own selection then Lieutenant Gibson, who is your detailed counsel, he may act as associate counsel or he may be excused, if you wish, with your consent. Now, do you understand your rights concerning counsel?
ACCUSED: Yes, sir.
MJ: By whom do you wish to be defended?
ACCUSED: Lieutenant Gibson, sir.
MJ: Would you like to hire a civjlian lawyer at your own expense?
ACCUSED: No, sir.
MJ: Would you like to make a written request for individual military counsel of your own selection?
ACCUSED: No, sir.
MJ: Are you satisfied then with Lieutenant Gibson?
ACCUSED: Yes, sir.

(R.3).

The question is whether the mandate of Donohew has been minimally satisfied in this case. We conclude Donohew's requirements have been met. Appellant cites United States v. McGovern, 11 M.J. 582 (N.C.M.R.1981) and United States v. Snow, 10 M.J. 742 (N.C.M.R.1981), in support of his contention that the inquiry was so deficient so as to require corrective action. In Snow, the military judge, after noting that the accused was being represented by a substituted counsel, asked if he had ever discussed his case with the initially detailed defense counsel and was told that he had on one occasion. No further inquiry was made. No inquiry whatsoever regarding the substitution of counsel was made in McGovern by the military judge. The facts of the latter case track very closely with the facts before us now.

Appellant’s counsel at oral argument conceded a point contended by government counsel: an accused does not have an absolute right to be represented at trial by each lawyer who has been detailed as defense counsel on separate convening orders. The concession is appropriate and entirely correct. A convening authority can legally replace counsel. Paragraph 37a, Manual for Courts-Martial, 1969 (Rev.) (MCM). In actual practice, this occurs quite frequently. Cases are referred to courts-martial in existence, and then, based on actual counsel assignments later determined or factors effecting the availability of judges, counsel, and court members contemporaneous with the actual trial date, modifications are made to the original convening order to reflect the change. When a modification is made in the usual situation, the order has the effect it specifies. In the case before us, Amending Order 8a-80 of 14 May 1980 specified:

My special Court-Martial Convening Order Number 8-80, dated 12 May 1980, is modified as follows:
COUNSEL
Lieutenant Edward P. GIBSON, Judge Advocate General’s Corps, U. S. Navy Reserve, Defense Counsel, certified in accordance with Article 27(b), and previously sworn in accordance with Article 42(a), UCMJ, is hereby detailed.
Lieutenant Commander Thomas W. MITCHELL, Junior, Judge Advocate General’s Corps, U. S. Navy, Defense Counsel, certified in accordance with Article 27(b), and previously sworn in accordance with Article 42(a), U.C.M.J. is hereby relieved.

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United States v. Harris, 12 M.J. 707, 1981 CMR LEXIS 590 (usnmcmilrev 1981).

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