United States v. Hutchins

68 M.J. 623, 2010 CCA LEXIS 46, 2010 WL 1619258
CourtNavy-Marine Corps Court of Criminal Appeals
DecidedApril 22, 2010
DocketNMCCA 200800393
StatusPublished
Cited by8 cases

This text of 68 M.J. 623 (United States v. Hutchins) is published on Counsel Stack Legal Research, covering Navy-Marine Corps Court of Criminal Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Hutchins, 68 M.J. 623, 2010 CCA LEXIS 46, 2010 WL 1619258 (N.M. 2010).

Opinions

[624]*624PUBLISHED OPINION OF THE COURT

GEISER, Senior Judge:

A general court-martial with enlisted representation convicted the appellant, contrary to his pleas, of conspiracy, making a false official statement, unpremeditated murder, and larceny, in violation of Articles 81, 107, 118, and 121, Uniform Code of Military Justice, 10 U.S.C. §§ 881, 907, 918, and 921. The approved sentence was for reduction to pay grade E-l, confinement for 11 years, and a dishonorable discharge.

The appellant raised three assignments of error.1 After reviewing the record and considering the parties’ pleadings, this court specified two additional issues and requested briefing by the parties.2 On 20 May 2009, after supplemental briefing by the parties, this court ordered a DuBay3 hearing into the court’s first specified issue involving the appellant’s representation by Captain (Capt) Bass. The ordered DuBay hearing was conducted 18-20 August 2009. This court received the authenticated record of the hearing, to include the military judge’s Findings of Fact and Conclusions of Law, on 5 November 2009. The parties were provided time to submit additional briefs.

We have considered the record of trial, the various pleadings of the parties, and the record of the DuBay hearing. For the reasons cited below, we conclude that the military judge erred when he permitted proceedings to continue after Capt Bass ceased representation of the appellant without either the appellant’s knowing release or a finding of good cause by the military judge. Under the specific facts of this case, we find that any attempt to assess specific prejudice arising from Capt Bass’ unauthorized departure would be speculative. We will, therefore, presume prejudice. We do not reach the issue of whether another set of facts and circumstances would permit a non-speculative assessment of prejudice. We will set aside the findings and sentence in our decre-tal paragraph and return the record to the Judge Advocate General with a rehearing authorized. Arts. 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a) and 866(c).

Background

The appellant was charged and found guilty, inter alia, of conspiring with Marines in his squad to kidnap and murder an Iraqi man in Hamdaniyah, Iraq, in April 2006. The appellant was also charged and found guilty, along with several of his squad members, of carrying out the murder on 26 April 2006.

Assignment of Counsel

In June 2006, pursuant to the convening authority’s standing policy of detailing two [625]*625trial defense counsel for all courts-martial involving a murder charge arising from this incident,4 the appellant was detailed Capt G. Bass, USMC, and Lieutenant Colonel (LtCol) Smith, USMC.5 The appellant was ultimately arraigned on 7 December 2006. After the initial session of court, trial proceeded on 27-28 February 2007, 26 March 2007, 11-13 June 2007, 11-12, 23-27, 30-31 July 2007, and concluded on 1-3 August 2007. Capt Bass did not represent the appellant after 25 May 2007 when he began a terminal leave period. Record at 454. His terminal leave ended upon his release from active duty on 1 July 2007.

Prior to the 11 June 2007 session of court, Capt Bass had not been properly released from representing the appellant. At an Article 39(a) session the following discussion occurred:

MJ: ... Captain Bass is currently not present. I have been informed by counsel that he arrived at his Expiration of Active Service in the Marine Corps, and has been discharged from the Marine Corps and has been relieved as detailed defense counsel in this case; and has been replaced by Lieutenant Colonel Cosgrove.
ADC: Yes, sir. Captain Bass reached the end of his obligated service. He has been relieved of representation of Sergeant Hutchins.

Record at 449. The military judge then asked Trial Defense Counsel (TDC) when Capt Bass left active duty. The remaining detailed counsel indicated that he was “not sure of the exact date, Your Honor. I know that he was — executed orders to — on terminal leave some time around the — before the Memorial Day holiday. I know that, sir. Some time probably around the 25th of May; that could be off a few days one way or the other.” Id. at454.6

The Military judge then explained to the appellant that the he had:

MJ: ... the right to [be represented by] all of your detailed defense counsel including Captain Bass; however, once Captain Bass leaves active duty, there’s no way that the Marine Corps can keep him on as your detailed defense counsel. Do you understand that?
ACC: Yes, I do, sir.
MJ: Have you discussed this issue with [your civilian defense counsel] and Lieutenant Colonel Smith?
ACC: In detail, sir.
MJ: Okay. Do you have any objection to proceeding at this point?
ACC: No, I do not, sir.

Id. at 454-55.

After the initial pleadings were submitted to this court, we concluded that a post-trial hearing into the facts and circumstances involved in the apparent severance of the attorney-client relationship between the appellant and Capt Bass was warranted. A DuBay hearing was ordered, at which the presiding military judge heard the testimony of Capt Bass, his co-counsel, and the (Regional Defense Counsel) (RDC) associated with the case. The military judge made written findings of fact and conclusions of law,7 and authenticated the record. The following findings of fact contained in Appellate Exhibit CL are supported by the record and we adopt them as our own.

“Captain Bass was detailed on 13 July 2006.” AE CL at 2-3, DuBay Hearing Record.
“On 31 Aug 2006 ... Captain Bass tendered a request to resign his commission [626]*626for an effective date of 1 July 2007. The request was approved.” Id. at 5.
“The initial trial dates that had been ordered were before Captain Bass was approved to leave active duty; however, the defense team moved for, and was granted, a continuance of trial dates until July 2007 — beyond Captain Bass’ approved date to leave active duty.” Id.
“In the second defense continuance request, the defense team articulated Captain Bass’ departure from active duty as one of the bases to justify the request.” Id.
“Although Captain Bass had submitted his resignation request in August 2006, he did not inform the appellant that he would be leaving active duty until early May 2007.”

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Related

United States v. Cooper
Navy-Marine Corps Court of Criminal Appeals, 2018
United States v. Hutchins
Navy-Marine Corps Court of Criminal Appeals, 2018
United States v. Hutchins
69 M.J. 282 (Court of Appeals for the Armed Forces, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
68 M.J. 623, 2010 CCA LEXIS 46, 2010 WL 1619258, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-hutchins-nmcca-2010.