United States v. Mons

14 M.J. 575, 1982 CMR LEXIS 917
CourtU.S. Navy-Marine Corps Court of Military Review
DecidedJuly 27, 1982
DocketNMCM 81 2018
StatusPublished
Cited by5 cases

This text of 14 M.J. 575 (United States v. Mons) is published on Counsel Stack Legal Research, covering U.S. Navy-Marine Corps 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. Mons, 14 M.J. 575, 1982 CMR LEXIS 917 (usnmcmilrev 1982).

Opinion

CEDARBURG, Chief Judge:

Appellant was convicted, contrary to his pleas, by a general court-martial composed of officer members. The charges were unpremeditated murder, murder while perpetrating a robbery, robbery, and violation of U. S. Navy Regulations by introducing marijuana aboard the U. S. Naval Base, Philadelphia, Pennsylvania, violations of Articles 118, 122 and 92, Uniform Code of Military [576]*576Justice (UCMJ), 10 U.S.C. §§ 918, 922, 892. He was sentenced to a dishonorable discharge, confinement at hard labor for life, forfeiture of all pay and allowances and reduction to pay grade E-l. The convening authority approved the sentence as imposed.

Appellant was represented at trial by appointed defense counsel, Lieutenant Michael K. Mixon, and individual military counsel, Lieutenant Commander Lawrence J. Rosintoski, both certified as counsel in accordance with Article 27(b), UCMJ, 10 U.S.C. § 827(b). Appellant has retained a civilian attorney, Samuel C. Stretton, Esquire, along with appointed appellate defense counsel, to represent him on appeal.

Appellant assigns as error:

I

THE CONVICTION OF THE APPELLANT SHOULD BE REVERSED AND A NEW TRIAL GRANTED SINCE HE DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL DURING HIS TRIAL.

II

THE COURT ERRED WHEN IT DENIED THE DEFENSE’S MOTION TO SUPPRESS ALL EVIDENCE RELATED TO THE ENTRY AND SEARCH OF THE BARRACKS ROOM AND SUBSEQUENT SEARCH OF THE APPELLANT’S CLOTHING.

III

THE COURT ERRED IN NOT SENTENCING MR. MONS UNDER THE FEDERAL YOUTH CORRECTIONS ACT.

We determine that appellant received adequate representation, that the trial judge did not err when he denied the. defense motion to suppress all evidence related to the entry and search of Room B-101, and that the Federal Youth Corrections Act is inapplicable to the Uniform Code of Military Justice proceedings. We therefore affirm.

On 13 December 1980 the duty manager of Barracks 972, U. S. Naval Base, Philadelphia, Pennsylvania, accompanied by a master-at-arms and residents of the barracks, used his master key to open Room B-101 in response to a report from one of the barracks residents of shuffling noises and an emotional cry for help emanating from the room. Appellant was lying on the floor, apparently unconscious and apparently experiencing a seizure. Blood was scattered over a wide area and the room was in disarray. A knife was lying on a desk in a closed position. A base master-at-arms, also summoned to the scene, opened a locker and Seaman Apprentice James E. Johnson, Jr. was discovered, barely alive, stuffed head down in a large Navy issue laundry bag. Seaman Apprentice Johnson, suffering multiple stab wounds to the head, chest, back and arms, and a blow to the head inflicted by a blunt instrument, died shortly thereafter.

Appellant complains that he did not receive effective assistance of counsel during his trial, which, he asserts, requires reversal of his conviction. At issue, principally, is the defense handling of the rebuttal testimony of Lieutenant Commander Tommy Swinney, MC, USNR, called by the prosecution after the defense case-in-chief. The defense team did not present testimony of a medical doctor to refute the rebuttal testimony of Dr. Swinney concerning his opinion that there was no clinical evidence that appellant was under the influence of LSD or suffering from an LSD induced trauma at the time he was admitted to the Navy Regional Medical Center, Philadelphia, on 13 December 1980. Appellant contends “. . . Dr. Swinney’s testimony was devastating to the defense since essentially Dr. Swinney was stating Samuel Mons was not telling the truth when he said he took a drug and then went into a drug related coma”. It is contended, citing United States v. Rivas, 3 M.J. 282 (C.M.A.1977), that the decision of the defense team not to call a medical doctor to attempt to repudi[577]*577ate Dr. Swinney’s testimony constituted inaction at a critical stage of the trial where action was compelled, and resulted in inadequate representation. Appellant also contends in support of his allegation of inadequate representation that defense counsel were ineffective in failing to object to the expertise of Dr. Swinney and his professional opinion, and the failure to cross-examine him in a proper fashion. Finally, appellant argues that the defense counsel was ineffective by asking appellant, during direct examination, about an inculpatory statement which previously had been suppressed. Appellant testified in his defense that he had ingested LSD on the night in question and recalled very little which occurred after his arrival at Room B-101, and did not recall any events connected with any criminal conduct in the room.

Dr. Swinney was called as a rebuttal witness by the Government. He testified that he was a resident physician at the Navy Regional Medical Center, Philadelphia on 13 December 1980. His duties on that evening included being on call for treatment of internal medicine cases. He was called upon to examine and assess the function of appellant who had been admitted to the emergency room and was reported to be unresponsive. He examined appellant to check his vital signs and to see if he was in a state of coma. Dr. Swinney was of the opinion that appellant’s vital signs were stable and that he was not suffering from an LSD induced trauma or any state of trauma. He testified he found no clinical evidence to indicate appellant had been under the influence of LSD.

On cross-examination, Lieutenant Commander Rosintoski elicited Dr. Swinney’s limited experience with LSD patients and specifically those who had experienced adverse reactions — “bad trips”. He obtained an admission from the doctor that factors such as increased vital signs, visual and auditory hallucinations and euphoria which he had used to describe symptoms of LSD intoxication, and which the doctor had not observed in appellant, were associated with “good trips”, not “bad trips”. Dr. Swinney conceded that persons on “bad trips” sometimes get psychotic, exhibit violent behavior and have to be restrained. He admitted that usually a psychiatric examination is not made until the persons are stable. Dr. Swinney, in response to questions asked on cross-examination, did not preclude the possibility that appellant had ingested some drug, but he stated he didn’t believe appellant had taken LSD. He confirmed that the diagnosis he had made and which was recorded in the narrative summary signed by him was “suspected drug ingestion”. Dr. Swinney further conceded on cross-examination that in the narrative summary he had recorded that “[t]he pulses were adequate, however, somewhat disorientated.” Dr. Swinney, upon being questioned, defined “disorientated” as meaning that a person in that condition is not aware of time, place or person. Questioned further he explained, “[i]f he’s not of all three then the person is not too orientated.” From the record, it is clear that Lieutenant Commander Rosintoski had previously interviewed Dr. Swinney, and utilized his interview and the clinical record in preparation for his cross-examination.

Beyond the cross-examination, the defense submitted surrebuttal to Dr. Swinney’s testimony through two nurses, Lieutenant Julie Wagen, NC, USNR, and Lieutenant Brenda Payne, NG, USN, both of whom had treated appellant after his admission to the emergency room at about 2130, 13 December.

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Bluebook (online)
14 M.J. 575, 1982 CMR LEXIS 917, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-mons-usnmcmilrev-1982.