United States v. Pao

1 M.J. 1009, 1976 CMR LEXIS 759

• Court: U.S. Navy-Marine Corps Court of Military Review
• Decided: August 25, 1976
• Docket: NCM 76 1348
• Status: Published

Opinions

MURRAY, Judge:

Tried to a general court-martial with members, the appellant was convicted, pursuant to his pleas, of the wrongful introduction and possession of 1027 (buddha) sticks of marijuana on board a naval vessel and sentenced to a bad conduct discharge, confinement at hard labor for four months, and forfeiture of $300 pay per month for four months.

Appellant assigns four errors for our consideration:

I

THE MILITARY JUDGE ERRONEOUSLY DENIED APPELLANT’S CHALLENGE OF A COURT MEMBER DISQUALIFIED BY PROSECUTORIAL DUTIES.

II

THE MILITARY JUDGE ERRONEOUSLY DENIED APPELLANT’S REQUEST FOR MILITARY WITNESSES WHO WERE CRUCIAL TO LITIGATION OF A PLEA IN BAR.

III

THE CONVENING AUTHORITY AND THE MILITARY JUDGE ERRONEOUSLY AND PREJUDICIALLY DECLINED TO COMPEL THE ATTENDANCE OF AN IMPORTANT CIVILIAN DEFENSE WITNESS AT TRIAL.

IV

TRIAL COUNSEL IMPROPERLY AND PREJUDICIALLY ARGUED BEFORE THE COURT MEMBERS FOR A SENTENCE BASED UPON GENERAL DETERRENCE OF OTHER NAVAL PERSONNEL.

While we have serious misgiving about the propriety of the denial of the two service witnesses requested to support appellant’s motion in bar of trial based upon matters relevant to the Navy’s Drug Exemption Program and the questionable development of evidence adverse to the appellant through information obtained as a result of the procedures outlined in that program, we need not detain ourselves on any other assignment of error since our determination with respect to assignment of error III, supra, is dispositive.

A written request was submitted by trial defense counsel to the convening authority in accordance with Paragraph 115a of the Manual for Courts-Martial, asking that appellant’s older brother, Mr. Roland Pao, be summoned “as a witness in extenuation and mitigation, and as a character witness on the merits.” The convening authority never responded to the demand, but according to trial counsel’s representations to the court, the convening authority refused to approve the request. Appellant renewed the request at trial by a motion, prior to pleas, that process be issued for the attendance of Mr. Pao. The motion was denied by the trial judge.

At the time of appellant’s requests for the attendance of the witness, no pleas had been entered. The witness was sought both for testimony on the merits of the case and in the presentencing phase of the trial. In particular, the witness was desired for character testimony on the merits of the case. Both the request and an accompanying letter from the prospective witness (App.Ex. VII) set forth the specific factual predicate for the expected testimony. The witness, who had acted in loco parentis after the deaths of appellant’s parents, was uniquely qualified to address the nature of appellant’s character and personality.

Denial of process to compel the attendance of a defense character witness creates a risk of potential prejudice to the rights of an accused, for “the weight to be given to testimony upon an accused’s character is based in large part upon the personal appearance and the manner of testifying of the witness.” United States v. Sweeney, 14 U.S.C.M.A. 599, 604, 34 C.M.R. 379, 384 (1964). The importance of character testimony — and the prejudice resulting from its denial — were emphasized by the High Court in United States v. Sears, 20 U.S.C.M.A. 380, 43 C.M.R. 220 (1971), and most recently in United States v. Carpenter, 1 M.J. 384 (1976).

Appellant’s pleas of guilty were entered after the military judge was advised of the convening authority’s refusal to provide for attendance of the requested witness, and the judge in turn denied the renewed request. The government contends that this negates the requirement to produce the witness on the merits of the case, citing decisions of this Court in support, United States v. Feeley, 47 C.M.R. 581 (N.C.M.R. 1973) and United States v. Ray, No. 75 0936 (N.C.M.R. 27 February 1976).

In both Feeley and Ray, supra, the accused was convicted on provident pleas of guilty which were not induced or compelled by the government’s refusal to subpoena requested defense witnesses on the merits, and thus no finding of prejudice arising out of such refusal was made. We do not find such a clear cut delineation in trial strategy and tactics in the instant case, however, and a fair reading of the record suggests that the appellant could well have been forced into avoidance of litigation of the merits of the case because of the denial of a material character witness.

Assuming a position most favorable to the government, however, and hypothesizing that the material witness was necessary only with respect to presentencing matters, the denial of appellant’s request nevertheless constitutes prejudicial error.

The Sixth Amendment is the source of the fundamental right to compel the attendance of witnesses, and this right is guaranteed to military defendants. United States v. Daniels, 23 U.S.C.M.A. 94, 48 C.M.R. 655 (1974); United States v. Sears, supra; United States v. Sweeney, supra. Even where the expected testimony concerns only matters in extenuation and mitigation, the accused’s right to process may not be abridged with impunity. United States v. Daley, 47 C.M.R. 365 (A.C.M.R. 1973); United States v. Manos, 17 U.S.C.M.A. 10, 37 C.M.R. 274 (1967).

The prejudicial effect of a refusal to subpoena a parent for presentencing testimony has been acknowledged by this Court in United States v. McElhinney, N.C.M. 71 0256 (N.C.M.R. 17 May 1971), aff’d, 21 U.S.C.M.A. 436, 45 C.M.R. 210 (1972), and in United States v. Woods, 46 C.M.R. 503 (N.C.M.R. 1972). In the case at bar, the requested witness was appellant’s surrogate father, uniquely qualified to discuss the somewhat enigmatic character of appellant. The refusal of the convening authority and the military judge to arrange the attendance of the requested witness, or provide for an alternate means of obtaining the testimony which would be acceptable to the parties, clearly prejudiced the sentencing proceedings, which were conducted before court members, where personal demeanor is crucial. In addition, the denial of the request when the witness was also desired for character testimony on the merits of the case in which a guilty plea was entered only after denial of the witness requires reversal of the findings under the precise circumstances of this case.

Accordingly, the findings and sentence are set aside and the record is returned to the convening authority. A rehearing may be ordered.

Judge GLASGOW concurs in the result.