United States v. Lucas

2 M.J. 387, 1977 CMR LEXIS 850
CourtU S Air Force Court of Military Review
DecidedMarch 1, 1977
DocketACM 22126
StatusPublished
Cited by1 cases

This text of 2 M.J. 387 (United States v. Lucas) 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. Lucas, 2 M.J. 387, 1977 CMR LEXIS 850 (usafctmilrev 1977).

Opinion

DECISION

ORSER, Judge:

Tried by a general court-martial, with members, the accused stands convicted, despite his not guilty pleas, of two specifications charging multiple instances of heroin [388]*388use and possession1 over a protracted period of time, in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934. The adjudged and approved sentence is a bad conduct discharge, forfeiture of all pay and allowances, confinement at hard labor for one year and reduction to the grade of airman basic.

Appellate defense counsel have asserted two errors on appeal; however, only one merits our consideration. In this assignment counsel contend:

THE FAILURE OF THE GOVERNMENT TO PROVIDE DEFENSE COUNSEL AN OPPORTUNITY TO INTERVIEW CERTAIN POTENTIAL WITNESSES WAS A DENIAL OF DUE PROCESS OF LAW.

Although, as will be seen, the Government representatives involved were somewhat careless in their conduct respecting the issue, upon careful consideration of the record, we find no denial of due process or other basis for relief to the accused.

During the Article 32 investigation2 which preceded referral of the charges to trial, an Airman Lane was among the witnesses who appeared and gave sworn testimony bearing on the charges against the accused. In addition, a sworn written statement Lane had earlier provided to the Air Force Office of Special Investigations (OSI) was considered by the investigating officer and incorporated into his report. At the time Lane testified and when his written statement was introduced, the accused was represented by appointed military counsel. Thereafter, but while the investigation was still in progress, the accused retained a civilian attorney, and the military counsel withdrew from the case with the accused’s consent. The civilian attorney solely represented the accused during the remainder of the investigation as well as during the trial of the case.

Following the investigation, the accused’s counsel submitted a written request to the convening authority’s staff judge advocate that seven specified individuals who “were named during the Article 32 hearing” be made available for defense interviews. The defense letter further requested the full name and home address of each individual and asked that they all be present if and when the accused were brought to trial. One of the individuals requested was Airman Lane.

On the same date the charges were referred to trial, the staff judge advocate responded in writing to counsel’s requests. In denying counsel’s request for the presence of the individuals named, the staff judge advocate stated in pertinent part:

This request does not comply with the requirements of paragraph 115 of the Manual for Courts-Martial, 1969 (Rev.), in that you failed to set forth a concise synopsis of the expected testimony of each witness. You must contact these individuals and provide us a written synopsis of their expected testimony.

The staff judge advocate did supply the full names and last known home address of six of the seven individuals.3 Inexplicably, Airman Lane’s name and address were not included in the staff judge advocate’s response.

During trial, counsel for the accused moved to dismiss the charges on the basis of the pretrial denial of his request for the referenced personnel, all or many of whom, averred counsel, possibly possessed some knowledge concerning the charges against the accused. Counsel contended that the Government’s failure to make them available for interview and possible use as witnesses on the accused’s behalf constituted a denial of due process. He asserted that he had made an attempt to locate the individuals, but had not been successful in such effort.

[389]*389In reply to the motion, trial counsel relied primarily on the response the staff judge advocate had previously furnished civilian counsel. He urged denial of the motion because of the defense failure to comply with the Manual requirement for a synopsis of the requested witnesses’ expected testimony. Trial counsel further pointed out that the Government had furnished the full name and last known address of the individuals requested, and the indication he had was that the defense counsel planned to make a personal effort to contact them. He added that he had received no additional defense requests for assistance in the matter.

Following these arguments, the military judge asked whether any of the requested witnesses had made written statements relating to the case. The trial counsel responded in the negative. Counsel for the accused made no response. The military judge then denied the motion. However, he granted the defense leave to renew their request for any of the individuals provided such request was accompanied by a synopsis of expected testimony. The accused’s counsel indicated his understanding of the judge’s ruling. He at no time thereafter renewed his request for the presence of Lane or any of the other individuals mentioned in his pretrial letter.

As is readily apparent from the foregoing, all participants except the military judge should have known that one of the requested witnesses, Lane, had made a sworn written statement to the OSI and had also given sworn testimony during the Article 32 investigation. Unlike Lane, none of the other six individuals requested by defense counsel testified during the investigation, nor does the record indicate the existence of any written statements of pertinence that any may have made. They were merely mentioned by those who testified during the investigation as either having been culpably involved with the accused or at least present on one or more occasions when he allegedly used heroin.

We initially find that the denial of the request for all witnesses except Lane was proper. As correctly noted in the response of the staff judge advocate to counsel’s request, paragraph 115a of the Manual for Courts-Martial, supra, requires that a request for a witness be accompanied by:

. (1) a synopsis of the testimony that it is expected the witness will give, (2) full reasons which necessitate the personal appearance of the witness, and (3) any other matter showing that the expected testimony is necessary to the ends of justice.

The defense counsel did no more than apprise the staff judge advocate of the last names of the individuals requested. His request provided no indication that if called as witnesses their testimony would have been in any degree material or relevant to issues in the case.

Though an accused is guaranteed the right to compel the attendance of witnesses who it is believed may offer proof to negate the evidence of guilt or support the defense,4 before the Government is obliged to make an effort to secure their appearance there must be some reliable representation of what their expected testimony will be. See United States v. Young, 49 C.M.R. 133 (A.F.C.M.R.1974); United States v. Carey, 51 C.M.R. 688, 1 M.J. 761 (A.F.C.M.R. 1975). Here, the defense made no representations whatever. We consequently perceive no merit in the assertion of error as it relates to these individuals.

With reference to the remaining requested witness, Lane, the issue is not so easily resolved.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Palmer
16 M.J. 501 (United States Court of Military Appeals, 1983)

Cite This Page — Counsel Stack

Bluebook (online)
2 M.J. 387, 1977 CMR LEXIS 850, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-lucas-usafctmilrev-1977.