United States v. Mohr

21 C.M.A. 360, 21 USCMA 360, 45 C.M.R. 134, 1972 CMA LEXIS 759, 1972 WL 14143

• Court: United States Court of Military Appeals
• Decided: May 5, 1972
• Docket: No. 24,354
• Status: Published

Opinions

Opinion of the Court

Quinn, Judge:

Initially arraigned on sixteen specifications of wrongdoing, the accused stands convicted of one specification of larceny and four specifications of purchasing cigarettes in tax-exempt military stores for other than personal consumption, in violation of a general regulation, contrary to Articles 121 and 92, Uniform Code of Military Justice, 10 USC §§ 921 and 892, respectively. We granted review to consider two claims of error.

In the first assignment of error, the accused contends he was denied “a speedy trial and a speedy review.” However, his argument further alleges that his motion to dismiss the charges for denial of a speedy trial was denied by the trial judge on the basis of an erroneous rule of law. Although an enlargement on our grant, we think it appropriate to consider the contention.

In a motion to dismiss the charges because of denial of a speedy trial, the “prosecution has the bur-den of establishing that the delay was not unreasonable.” Manual for Courts-Martial, United States, 1969 (Revised edition), paragraphs 68 and 215e; United States v Brown, 10 USCMA 498, 28 CMR 64 (1959). Appellate defense counsel contends the trial judge “subtly placed the burden upon the accused to prove the existence of oppressive design.” The contention is predicated upon the following comment by the trial judge: “From the evidence that is presented here, I see no indication or design by the corn-mand to delay in order to accumulate charges.” The remark concerned charges filed after the original charges for which the accused was placed under pretrial restraint. It impresses us as an indication that the judge was concerned with whether the later charges had been improperly accumulated. See Manual, supra, paragraph 25. It reflects his alertness to the protections accorded the accused by the Manual for Courts-Martial,-not, 'as the accused contends, a misunderstanding, or misapplication, of the burden of proof in disposition of a motion to dismiss for denial of a speedy trial. There is, therefore, no merit in this aspect of the accused’s argument.

Turning to the merits of the motion to dismiss, no useful purpose will be served by summarizing the relevant matters found in the 130 pages of testimony and argument. As alleged by the accused, the period of delay began with the imposition of restriction upon him on October 24, 1968, and ended approximately ten months later. There is some evidence to the effect that the initial restriction was imposed for the accused’s own safety, and that he was thankful for the protection accorded him, but assuming the restriction was disciplinary in nature, it does not settle the beginning of the period of the Government’s accountability.

Other offenses were committed by the accused subsequent to his restriction. The Government argues that this misconduct by the accused justified deferment of all proceedings on the original charges for the period required to complete the investigation of, and the preparation of formal charges on, the later offenses. Military law encourages the joinder in a single trial of all known offenses, including offenses committed and charged after filing of formal charges for earlier misconduct. Manual, supra, paragraphs 246, 30/, and 32c. In the event of conviction, the result of such joinder of charges is usually to the accused’s advantage in regard to the sentence. United States v Keith, 1 USCMA 442, 4 CMR 34 (1952); cf. United States v Thomas, 17 USCMA 22, 24-25, 37 CMR 286 (1967). However, from the standpoint of timeliness of prosecution, delay in proceeding to trial on the original charges, because of a desire to join with them later charges, may result in denial of the accused’s right to speedy disposition of the original charges. We considered that situation in United States v Mladjen, 19 USCMA 159, 161, 41 CMR 159 (1969). We said there that “each set of charges involves a different time of beginning.” In this case, the charges for which the accused was originally restricted, and later confined, have all been dismissed, either at trial or • on review. We need not, therefore, consider the timeliness of the prosecution as to them.

The charges of which the accused stands convicted were filed on May 5, 1969. As indicated earlier, the trial judge had noted that the filing of these charges was not purposefully delayed “to accumulate” charges against the accused. There is ample evidence in the record to support his comment. Absent any such purpose (see Manual, supra, paragraph 25), the date of these charges is the date of the beginning of the period of the Government’s accountability for the timeliness of bringing them to trial.

Trial was held on August 27, 1969. Events between that date and August 15 so compellingly demonstrate the reasonableness of delay in that interval as to require immediate exclusion from the period of accountability. On August 15, defense counsel conferred with the trial judge and trial counsel on a date for trial; it was agreed the trial would be held between August 19 and 21. On August 17, trial counsel was involved in an automobile accident and was hospitalized for his injuries. He was released from the hospital on August 20, and returned to duty that day. Although the record does not clearly indicate the fact, it may fairly be inferred that he conferred with defense counsel and the trial judge to set a new date of trial. The record indicates that trial was rescheduled that day for August 27. Thus, the period of accountability for the offenses of which the accused stands convicted is not ten months, as alleged by the accused, but 100 days, that is, from May 5 to August 15, 1969.

On the day the charges were filed, they were referred to an Article 32 investigating officer. A hearing was held on May 6. On May 22, it was proposed that certain documentary evidence be presented to the investigating officer without formal hearing, but the proposal was rejected by civilian counsel, who had newly-entered the ease. A further hearing was held on June 2; at that hearing, the defense requested reopening of the testimony by the Government witnesses for the purpose of additional cross-examination by civilian counsel. It does not appear what action was taken on the request, but it was withdrawn on June 13. Depositions were taken on June 23 and 24. On July 28, 1969, the staff judge advocate submitted his recommendation and advice to the convening authority; two days later, the convening authority referred the charges to trial. On August 14, another deposition was taken of a Government witness. On August 15, there was the conference with defense counsel which resulted in the scheduling of trial between August 19 and August 21.

Considering the necessity to prepare for the various activities reflected in this partial chronology of events and the time required for preparation of the transcripts of the various hearings and depositions, we have no doubt that the interval of time between each activity was not unreasonably long. We are also certain that the whole course of the prosecution was not so slow as to be condemned as unreasonable or oppressive, as a matter of law. We conclude, on the evidence presented to him, that the trial judge did not err in denying the motion to dismiss those offenses of which the accused still stands convicted. United States v Burton, 21 USCMA 112, 44 CMR 166 (1971).

The accused’s trial ended on October 6, 1969. The reviewing authority acted on the record on December 21, 1970; and the Court of Military Review promulgated its decision on April 9, 1971. Conceding that appellate review “takes time,” the accused contends that the time in this case is so extended as to be unreasonable and presumptively oppressive.

Delay in completion of appellate review is a recurrent and vexatious problem. We have formally confronted the problem in a number of cases, and we have commented on the matter in our 1970 Annual Report to Congress regarding the operation of the Uniform Code of Military Justice. See United States v Davis, 20 USCMA 541, 43 CMR 381 (1971); United States v Richmond, 11 USCMA 142, 28 CMR 366 (1960); Annual Report of the United States Court of Military Appeals and the Judge Advocates General of the Armed Forces and the General Counsel of the Department of Transportation, 1970, pages 11-12. Suffice it to say that, apart from the consequences to the accused in a particular case, unreasonable delay between the charge and its final disposition “contributes to the cancerous growth of disrespect for law.” Quinn, “Law and Order: The Effects of Judicial Delay and the Responsibility of Judges,” 5 Journal of Beverly Hills Bar Association 33 (September 1971); see also United States v Marion, 404 US 307, 30 L Ed 2d 468, 92 S Ct 455, 469 (1971), concurring opinion.

As it affects a convicted accused, unreasonable delay in completion of appellate review “is not enough to warrant a reversal unless the delay has harmed” him. United States v Davis, supra, page 542. The Government has filed a long statement to explain and justify the time for review which covers only the period from October 6, 1969, to August 11, 1970. We need not evaluate that statement.

The accused was released from all restraint on June 24, 1969; and after his conviction, service of the confinement imposed by the court-martial was deferred. Several findings of guilty were disapproved in the course of review, and other than a matter we will consider later in the opinion, no error affecting the validity of the remaining findings of guilty and the sentence has been called to our attention or been noted by us. The Court of Military Review has so modified the sentence that the accused will not face confinement, or other apparent disadvantage, on completion of appellate review. Cf. United States v Weber, 20 USCMA 82, 42 CMR 274 (1970); United States v Ervin, 20 USCMA 97, 42 CMR 289 (1970). Unreasonable or not, therefore, the delay in accomplishment of review by the convening authority and the Court of Military Review has not, and will not, prejudice the accused.

We now turn to the accused’s second assignment of error which deals with the admission in evidence of three depositions. The depositions were taken in anticipation of the transfer of the witnesses, Dunlap, Schwartz, and Grabiel, from the place of trial in the Republic of the Philippines to the United States for discharge from the Navy. The evidence indicates that all three witnesses were, in fact, discharged before the first scheduled date of trial.

Article 49 of the Uniform Code provides for the admission in evidence of testimony by deposition. Its language as to the conditions for admissibility is not free of ambiguity. See dissenting opinion of Chief Judge Quinn in United States v Sutton, 3 USCMA 220, 11 CMR 220 (1953); United States v Jacoby, 11 USCMA 428, 429, 29 CMR 244 (1960). At issue here is the provision that a properly taken deposition may be read in evidence in a noncap-ital case if it appears “that the witness resides or is beyond the . . . Territory ... in which the court . . . is ordered to sit, or beyond 100 miles from the place of trial.” Code, supra, Article 49(d) (1). As applied to persons in the mil-itary, who are “always within the jurisdiction of the military court,” mileage is not the open sesame to admissibility; besides the requisite distance from the courtroom, it must also appear that the witness is not reasonably available to testify in person. United States v Davis, 19 USCMA 217, 223, 41 CMR 217 (1970).

Neither the Government nor the accused has attempted to identify circumstances of unavailability. See concurring opinion of Judge Darden in United States v Davis, 19 USCMA 217, 224, 41 CMR 217 (1970), and United States v Hodge, 20 USCMA 412, 413, 43 CMR 252 (1971). Instead, they have addressed themselves to whether the requirement of unavailability that is applicable to members of the military also applies to witnesses who are not in the armed forces. Government counsel contend that the rule as to nonmilitary witnesses is, or should be, different from that applied to military personnel. They maintain their position is supported by United States v Ciarletta, 7 USCMA 606, 23 CMR 70 (1957). Appellate defense counsel contends for a rule of uniformity and consistency for both military and nonmilitary witnesses, which they say is a requirement of military due process. They rely on United States v Hodge, supra, and United States v Gaines, 20 USCMA 557, 43 CMR 397 (1971) ,¹ Our view of what took place at the depositions makes it unnecessary to resolve the conflicting contentions.

To a degree unmatched in the civilian community, military law imposes upon the Government the obligation to disclose to the accused prior to trial all matters in its possession or within its knowledge which bear significantly upon his guilt or innocence. See Article 32, Uniform 'Code of Military Justice, 10 USC § 832; Manual for Courts-Martial, United States, 1969 (Revised edition), paragraphs 33i(2), 34d and e, 35, 44, 79; United States v Schuller, 5 USCMA 101, 17 CMR 101 (1954); Moyer, “Procedural Rights of the Military Accused: Advantages Over a Civilian Defendant,” 22 Maine Law Review 105 (1970). Constitutional limitations on the right of the Government to procure evidence or information from the accused afford him substantial protection against disclosure, in advance of trial, of evidence or procedures he intends to use at trial. The right of nondisclosure in advance of trial does not, however, give the accused the right to repudiate at one stage of the prosecution the consequences of his conduct at an earlier stage. United States v Jones, 7 USCMA 623, 629, 23 CMR 87 (1957); United States v Wolfe, 8 USCMA 247, 250, 24 CMR 57 (1957). In other words, the doctrine of waiver applies to the accused. We have, in fact, recognized applicability of the doctrine in regard to the right to object to the admission of deposition testimony. United States v Gaines, supra, page 560. The record here impels the conclusion that the accused’s failure to object to departure and discharge of the witnesses constitutes a waiver of evidence of their unavailability after their discharge.

Dunlap’s deposition was taken on August 14. At the outset, he indicated that, as a result of the investigation into his relationships with the accused, he had been retained in the service past the time of his scheduled discharge. He invoked his right to remain silent under Article 31 in regard to cigarette transactions with the accused, and he testified as to the larceny specification only because directed to do so by the Deposition Officer. He indicated he was returning to the United States to be discharged from the service. No objection to his departure or discharge was interposed by either military defense counsel or civilian counsel. The next day, defense counsel agreed on a trial date. There is no evidence they even suggested to trial counsel or the judge that they would require Dunlap’s presence at trial or that they would regard his discharge as insufficient proof of his unavailability.

Defense counsel knew Dunlap was a recalcitrant witness for the Government ; consequently, they knew, or had good reason to believe, that if discharged, he would not voluntarily return as a witness. Defense counsel also knew that if Dunlap was discharged, he would no longer be amenable to direct military order, but only to subpoena. See Code, supra, Article 47. See also Rule 17, Federal Rules of Criminal Procedure. Considering the shortness of the interval between the date of trial and the probable date of Dunlap’s discharge, defense counsel had to know that if they did not take immediate action to stay Dunlap’s discharge, he could not return to the Philippines in time for the trial, even if subpoenaed. Delay of the trial proceedings would inevitably result; yet, at this time, the defense was insisting upon an immediate trial. In our opinion, the circumstances obligated the defense to notify the Government, at least before Dunlap’s discharge, that it would not regard discharge as proof of Dunlap’s unavailability as a witness. Cf. United States v Gaines, supra, page 562; see also United States v Phare, 21 USCMA 244, 45 CMR 18 (1972).

Appellate defense counsel contend that a statement by civilian counsel at the deposition of a witness named Smith, taken on June 23, put the Government on notice that the defense would insist on the actual presence of all the witnesses, including Dunlap. They maintain the statement was “unequivocally plural” and was intended to apply to the deposition of every Government witness. Since Dunlap’s deposition was taken on August 14, the connection between his deposition and Smith’s appears to be exceedingly tenuous. Assuming, however, that the statement applies to all the depositions in issue, we construe it differently from counsel.

Three witnesses testified before a Deposition Officer on June 23. Schwartz was the second of the witnesses ; Smith was the first. Before the questioning of Smith began, civilian counsel objected to the taking of the deposition “because we want a speedy trial.” The objection was noted on the record. At the close of Smith’s testimony, and before Schwartz was called, the following colloquy ensued:

“IC: If it pleases the Deposition Officer, our original objection to taking of deposition is again imposed as this case has not yet been referred to a trial and we would want the witnesses present at the trial when it convenes.

“DO: Yes, mam. Your objection as I understand it, is that if they had the trial now rather than the deposition they could have the witnesses here, is that correct?

“IC: Yes/sir.”

In its opinion, the Court of Military Review found “nothing” in the record to indicate that the accused “wanted” the witnesses to be present at trial. Appellate defense counsel charges the court with “overlook [ing]” the above-quoted remarks, which he construes as a declaration by trial defense counsel that they did not intend to “waive any possible objection” to the admissibility of all depositions. He particularly emphasizes the comment that “we would want the witnesses present [to testify] at the trial.” The argument disregards the context of the comment. First, the remark expressly refers back to defense counsel’s statement about wanting a speedy trial, which was made at the beginning of the deposition. Secondly, the remark must be considered in connection with the defense effort, starting on May 15, to move the case to early trial.

As noted previously, the defense had filed a demand for a speedy trial. Since more than a month had passed without a trial date, it was natural for counsel to suggest, as she did, that proceeding to trial would be better than taking depositions. Also, there was nothing in Dunlap’s testimony or in Schwartz’ which was crucial to the defense. Their testimony concerned the larceny charge, which was defended on the theory that the accused was not the thief. Dunlap and Schwartz had stored property in a locked storage room; neither knew anything about the circumstances of the theft of their property from the room. Thus, there was no cogent reason for the defense to prefer their live testimony over their depositions. Viewed in the light of these circumstances, civilian counsel’s remark as to the witnesses’ presence at trial appears not as a demand that they testify in person, but merely as giving added weight to the on-going effort of the defense to bring the case to trial. Consequently, we agree with the Court of Military Review that nothing in the record indicates that the defense wanted the witnesses to testify personally at trial so that their demeanor as well as their testimony would be subject to the scrutiny of the court members.² Cf. United States v Gaines, page 560. The quoted comment does not, therefore, militate against our conclusion that the defense waived whatever right it may have had to require evidence of unavailability for trial other than the fact of discharge from the service.

The decision of the United States Navy Court of Military Review is affirmed.

1 In United States v Hodge, 20 USCMA 412, 413, 43 CMR 252 (1971), we made certain assumptions for the purpose of disposition of the appeal. One assumption was that a civilian witness physically located in the United States could be subpoenaed to testify before a court-martial convened in a foreign country. A second assumption was that “because the Government procured the witness’ departure from Vietnam and effected his discharge from the service before the expiration of enlistment, it is prevented from asserting the witness’ inability to attend as justification for use of his deposition.” Later, in United States v Gaines, 20 USCMA 557, 43 CMR 397 (1971), we listed various circumstances that indicated that a deposition was improperly admitted in evidence. Included in the list was the fact that the witness’ departure from Vietnam and discharge from the service were “effectuated by the Government and for its convenience.” Id., at page 559.

2 The same situation exists in regard to Grabiel’s deposition. The accused had made a pretrial statement in which he admitted he had Grabiel purchase 21 cartons of cigarettes for him from tax-exempt sources in violation of the general regulation controlling such purchases. In his deposition, Grabiel testified he had purchased a lesser number of cartons than the accused had admitted. At trial, the accused challenged the admissibility of his confession, but he did not dispute Grabiel’s testimony. It may reasonably be inferred that at the time of Grabiel’s deposition, the defense did not expect to challenge Gra-biel’s credibility at any time in the proceedings. There was, therefore, no reason for the defense to believe that Grabiel’s demeanor at trial would be a material factor in the court members’ consideration of his testimony.