United States v. Lambert

17 M.J. 773, 1983 CMR LEXIS 723
CourtU S Air Force Court of Military Review
DecidedNovember 18, 1983
DocketACM 24021
StatusPublished
Cited by4 cases

This text of 17 M.J. 773 (United States v. Lambert) 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. Lambert, 17 M.J. 773, 1983 CMR LEXIS 723 (usafctmilrev 1983).

Opinions

DECISION

FORAY, Senior Judge:

The accused was convicted, contrary to his pleas, by a general court-martial consisting of a military judge sitting alone of numerous offenses in violation of Articles 121 and 123,10 U.S.C. §§ 921, 923, Uniform Code of Military Justice. The sentence extends to dishonorable discharge, confinement at hard labor for 2 years, total forfeiture, and reduction to the grade of airman basic.

Charges were preferred against the accused on 9 November 1982 and were forwarded by the accuser with a recommendation for trial by general court-martial. An investigation pursuant to Article 32, Uniform Code of Military Justice was duly conducted and the charges were ordered tried by general court-martial on 7 January 1983. The initial scheduled trial date of 20 January 1983, was continued at the request of the appointed trial defense counsel. A new trial time of 24 February 1983 was established by the military judge. That trial date was further continued until 24 March 1983, at the request of the trial counsel.

Trial began 24 March 1983, and during the initial session conducted pursuant to Article 39(a), 10 U.S.C. § 839(a), Code, supra, the military judge advised the accused of his right to counsel. United States v. Donohew, 18 U.S.C.M.A. 149, 39 C.M.R. 149 (1969); Article 38(b), Code, supra. The accused acknowledged his understanding and when asked by whom he wished to be defended he expressed his desire to be represented by a named individual military counsel and to have his appointed counsel ex[775]*775cused from further participation in the case. Trial defense counsel followed with a move for another continuation of the trial until approximately 18 April 1983, the ostensible availability date of the requested counsel. The military judge denied the motion for further continuance and the trial proceeded to conclusion.

Among the errors claimed appellate defense counsel contend:

THE MILITARY JUDGE ERRED BY DENYING THE APPELLANT THE OPPORTUNITY TO OBTAIN INDIVIDUAL DEFENSE COUNSEL.

We will now examine those matters which were before the military judge relevant to the motion for continuance in order to determine the correctness of his ruling thereon.

The accused first indicated his desire to be represented at trial by an individually named military defense counsel on 23 March 1983. In the morning of that day he communicated his desire to his appointed defense counsel who, in turn, notified in writing the individual counsel’s immediate superior and the convening authority of the accused’s request. The trial counsel and military judge were similarly notified. The individual counsel’s immediate superior determined that counsel to be unavailable for trial on 24 March 1983. The record of trial is devoid of any appeal taken by the accused regarding that determination. Manual for Courts-Martial, 1969 (Rev.Ed.), paragraph 48b (4).

The accused made firm his decision to request counsel by name approximately two weeks prior to trial. This was at a time when his appointed counsel was performing temporary duty at another installation and the accused apparently made no effort to communicate his desire to him. The appointed defense counsel was present for duty at his home base on 21 March 1983.

The accused had received a complete advisement of his right to counsel several times prior to trial beginning as early as 9 November 1982. He acknowledged both receiving and understanding the advice. He also indicated he had not entered into any attorney-client relationship with the requested counsel nor had he talked “directly” with him. The accused’s appointed counsel acknowledged he had sufficient time to prepare the defense case and was ready to proceed with the trial on 24 March. This representation was more than adequately borne out at trial by counsel’s performance.

Trial counsel was likewise ready to proceed with trial on 24 March and offered opposition to any further continuation of the case. He had arranged to have approximately 18 military and civilian witnesses available to testify concerning the 19 separate offenses alleged against the accused. Four of the military witnesses came to Lowry Air Force Base from bases located in the states of New York, New Mexico, North Carolina, and Alaska. It is noted that the prosecution had to marshal 28 documentary exhibits in order to perfect the case against the accused. Trial proceedings began 0935 hours, 24 March, and concluded 1606 hours, 25 March.

Article 38(b), 10 U.S.C. § 838(b), Code, supra, guarantees an accused the right to be represented in his defense before a general or special court-martial by military counsel of his own selection if that counsel is reasonably available. Manual for Courts-Martial, supra, paragraph 48b (1). In United States v. Vanderpool, 4 U.S.C.M.A. 561, 16 C.M.R. 135 (1954), the Court of Military Appeals discussed an accused’s statutory right to a military counsel of his or her own choice and said:

It is thus apparent that the right to military counsel of an accused’s own selection is not an absolute right granted him, but is subject to the exigencies and practicalities of whatever situation may obtain at the time. Of course, the right to choose counsel in the first instance may not be insisted on in such a manner as to obstruct either other important operations of the service concerned or the orderly administration of military justice.

United States v. Ettleson, 13 M.J. 348 (C.M.A.1982); United States v. Montoya, 13 M.J. 268 (C.M.A.1982).

[776]*776Having determined that an accused’s right to be represented by a military counsel of his choosing is not absolute we now must determine whether the military judge under the facts of the case before us properly denied the accused a continuance to obtain representation of his own selection.

The granting or denying of a motion made at trial for a continuance lies within the sound discretion of the military judge. The denial of such a motion will result in reversal upon appellate review where a reasonable delay has been refused and then only if substantial prejudice to the accused results. United States v. Menoken, 14 M.J. 10 (C.M.A.1982); United States v. Kinnard, 21 U.S.C.M.A. 300, 45 C.M.R. 74 (1972); United States v. Potter, 14 U.S.C.M.A. 118, 33 C.M.R. 330 (1963).

The facts which were before the military judge and upon which he based his ruling denying the accused’s motion for a continuance, clearly convince us that his decision was correct. To have ruled otherwise, in our opinion, would have impeded or unreasonably delayed the proceedings. United States v. Vanderpool; United States v. Ettleson; United States v. Montoya, all supra.

Citing United States v. Harville, 14 M.J. 270 (C.M.A.1982) and United States v. Hayes, 8 U.S.C.M.A. 627, 25 C.M.R.

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Bluebook (online)
17 M.J. 773, 1983 CMR LEXIS 723, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-lambert-usafctmilrev-1983.