United States v. Lopez

37 M.J. 702, 1993 CMR LEXIS 249, 1993 WL 213042
CourtU.S. Army Court of Military Review
DecidedJune 16, 1993
DocketACMR 9102826
StatusPublished
Cited by3 cases

This text of 37 M.J. 702 (United States v. Lopez) 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. Lopez, 37 M.J. 702, 1993 CMR LEXIS 249, 1993 WL 213042 (usarmymilrev 1993).

Opinion

OPINION OF THE COURT

De GIULIO, Senior Judge:

Appellant was tried by a general court-martial composed of officer and enlisted members. Contrary to his pleas, he was found guilty of conspiracy to possess and distribute cocaine and wrongful use of cocaine, in violation of Articles 81 and 112a, Uniform Code of Military Justice, 10 U.S.C. §§ 881 and 912a (1982 and Supp. V 1987) [hereinafter UCMJ], He was sentenced to a bad-conduct discharge. The convening authority approved the sentence.1

Appellant asserts, inter alia, that his trial defense counsel was rendered ineffective by the military judge’s refusal to grant a continuance to allow counsel time to review statements of witnesses prior to cross-examination. He also asserts that the members should have been challenged by the military judge because they all agreed that a soldier who reported positive [704]*704during a unit urinalysis must be found guilty of knowing and wrongful use, and that trial defense counsel was ineffective for not making these challenges. He further alleges that the military judge failed to instruct the members that he must have known the contraband nature of the substance in order to be found guilty of the conspiracy. Finally, he challenges the legal and factual sufficiency of the evidence as to wrongful use of cocaine, maintaining that the government did not establish that he used cocaine within the time charged. We find no merit to appellant’s assertions and affirm.

I

The Request for a Continuance

At a pretrial Article 39(a), UCMJ, session, appellant’s civilian defense counsel requested copies of the transcripts of two proceedings involving the co-conspirator in which an undercover agent testified. Trial counsel informed the military judge that the proceedings were being transcribed and therefore had not been provided defense counsel. It was subsequently determined that only part of the proceedings were transcribed and the tape recordings of all the proceedings were available and would be provided to the civilian defense counsel. The court recessed. When the court was reconvened over an hour later, civilian defense counsel requested, “[mjore time to adequately prepare the cross based upon that and as I stated in chambers, I’m willing to let the government go forward with their other witnesses and reserve cross ...”2 This request was made after the undercover agent had testified on direct but before cross-examination.

At the request of the trial judge, trial counsel recited for the record that several of the witnesses were from out of country and out of state. In denying the motion, the military judge stated,

[I] note the lack of defense requesting delay before this time; I note the government witnesses from out of town; I’ve considered the availability of the tapes since the trial prior to today, which were apparently available for examination; I notice that two counsel prepared to review it and the ability to consult with counsel. You may proceed with cross-examination.”

Counsel proceeded to cross-examine the witness extensively. His cross-examination occupies approximately seventy pages of the record of trial.

The decision to grant or deny a motion for a continuance is within the sound discretion of the military judge, and his decision will not be overturned except for a clear abuse of discretion. United State v. Menoken, 14 M.J. 10 (C.M.A.1982); United States v. Phillips, 37 M.J. 532, 536 (A.C.M.R.1993). After considering the military judge’s reasons for denying the motion, we find no dear abuse of discretion.

In order to support an allegation of ineffective assistance of counsel, appellant must show that counsel’s performance was deficient, and but for the deficiency, there would have been a different result. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Here, we find that counsel’s cross-examination of the witness was extensive and was not ineffective. Appellant has failed to show any deficiency. We hold that the military judge’s denial of the motion for a continuance did not render counsel ineffective.

II

Failure to Challenge Members

During voir dire, the military judge asked the following questions:

[705]*705Does any member feel that if a service member is reported positive for cocaine on the urinalysis program that that person must be found guilty of knowing and wrongful use of cocaine, just by the fact they’d been reported? All members agree? All members agree. Does any member feel that if a service member is reported positive for cocaine or any drug in urinalysis, that it’s the burden on that member to come in and prove his innocence? Any member believe that the burden’s on an accused to show he’s innocent if he comes up positive or been reported positive by a urinalysis program? Okay, all members agree that an accused has no burden to come in and prove innocence after they'd been reported, right?

During the remaining voir dire, the members agreed that they would follow the instructions of the military judge, that appellant had to prove nothing, that the burden of proof was on the government, and that the urinalysis collection and laboratory process must be conducted without substantial irregularities. They also agreed that the laboratory could make mistakes. The responses of Master Sergeant B, however, indicated that he may have retained a belief that an accused was required to prove his innocence after testing positive in a urinalysis. Subsequently, a challenge for cause against Master Sergeant B was granted.

Appellant’s assertion of error has two parts. He asserts that the military judge should have challenged the members and that the trial defense counsel was ineffective for not challenging the members.

Appellant’s basis for requiring a challenge to the members is the catchall provision of Manual for Courts-Martial, United States, 1984, Rule for Courts-Martial 912(f)(l)(N) [hereinafter R.C.M.] which provides that a member should not sit in the interest of having the court-martial free from substantial doubt, as to legality, fairness, and impartiality. “[A] claim of unfairness dissipates if defense counsel could have reasonably discovered the grounds for his untimely challenges and examined these members on them through voir dire.” United States v. Lake, 36 M.J. 317, 324 (C.M.A.1993). A challenge is waived if the party knew of the ground and failed to raise it in a timely manner. R.C.M. 912(f)(4). A military judge is not required to sua sponte excuse members the trial defense counsel did not challenge. United States v. Davis, 29 M.J. 1004, 1007 (A.F.C.M.R.1990), aff'd 33 M.J. 13 (C.M.A. 1991).

In this case, the trial defense counsel was aware of the possible grounds for challenge. After further examination by the military judge, Master Sergeant B was challenged and the challenge was granted by the military judge. Failure to challenge other members on this ground waived the issue. We hold that the military judge was not required to excuse the members sua sponte.

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Cite This Page — Counsel Stack

Bluebook (online)
37 M.J. 702, 1993 CMR LEXIS 249, 1993 WL 213042, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-lopez-usarmymilrev-1993.