United States v. Royster

42 M.J. 488, 1995 CAAF LEXIS 108, 1995 WL 564888
CourtCourt of Appeals for the Armed Forces
DecidedSeptember 26, 1995
DocketNo. 94-0243; CMR No. 29875
StatusPublished
Cited by9 cases

This text of 42 M.J. 488 (United States v. Royster) is published on Counsel Stack Legal Research, covering Court of Appeals for the Armed Forces primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Royster, 42 M.J. 488, 1995 CAAF LEXIS 108, 1995 WL 564888 (Ark. 1995).

Opinions

Opinion of the Court

COX, Judge:

1. Appellant, a physician’s assistant, was arraigned before a general court-martial for conduct unbecoming an officer (5 specifications) 1, in violation of Article 138, Uniform Code of Military Justice, 10 USC § 933. The specifications alleged that appellant made various sexual overtures to four of his female patients at Sheppard Hospital, Sheppard Air Force Base, Texas. The court members convicted appellant, contrary to his pleas, of four of the specifications, and sentenced him to be dismissed from the service.

2. In a unpublished opinion dated October 18, 1993, 1993 WL 431307, the Court of Military Review1 2 found the evidence of two of these specifications to be insufficient, so it dismissed them. Unpub. op. at 4-6. That court was satisfied, however, that the remaining two specifications, which it affirmed, were “the most serious of the charges against” appellant and that his conduct “was fundamentally incompatible with his responsibilities as an Air Force Officer.” Expressing “no doubt [that] the members would have imposed a dismissal based on these two specifications alone,” the Court of Military Review therefore affirmed the sentence as adjudged. Unpub. op. at 10.

3. We granted review of the following issues having nothing to do with the substance of the offenses:

I
WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY DENYING A REQUEST FOR DELAY, JOINED IN BY BOTH PARTIES, UNTIL A WITNESS WAS AVAILABLE.
II
WHETHER THE MILITARY JUDGE ERRED WHEN HE ALLOWED, OVER TIMELY OBJECTION, THE MEMBERS TO READ TRANSCRIPTS OF THE EARLIER PROCEEDINGS.

4. At the time of appellant’s trial, one of the alleged victims, Airman Basic C, was unavailable. She had been a trainee at Sheppard AFB in February 1991, when the alleged incident involving her occurred. By the time of the initial session of the court-martial on October 10, 1991, she was in Europe on military assignment. Moreover, she was pregnant and within 2 weeks of her due date. A physician certified that she could not safely travel by air. Her deposition had previously been taken.

5. At trial, the defense moved to exclude the deposition on confrontation grounds. Initially, the defense conceded that it would be “reasonable relief’ for the Government to proceed with the four specifications unrelated to Airman Basic C and then proceed on the remaining specification when she became available.

6. After a brief recess for the purpose of attempting to better project when the witness might become available, the Government moved to continue the entire court-martial until the missing witness was available. The Government indicated an adminis[490]*490trative concern that, during the recess, court members might be dispersed due to various military assignments or duties, and that, in any event, the Government was contemplating the preferral of additional charges which could then be joined with the existing charges.

7. At this point, the defense joined the Government in requesting a delay of the entire case until all witnesses were available, citing vaguely the expense of conducting part of the trial at that point and then “gearing up again for another trial” later. The judge offered to permit the defense to present as much of its case as it wanted “out of normal order,” after the Government had presented its ease on the four unaffected specifications. The defense declined the offer, however, and continued to argue for a deferral of the entire trial on the merits until all the witnesses were present.

8. The judge responded:

We will never get this trial done if we do that. I mean these charges are five months old. Witnesses are here from out of town. The Government has a couple of witnesses. Trial counsel is here from out of town. He has been preparing for this trial. Defense counsel has been here for this week from out of town and she[3] is prepared for this trial and we need to get this trial under way, otherwise, this trial will never get underway.

9. Ultimately, the judge announced that the trial would proceed as scheduled. During the balance of that day and for a portion of the next, the Government presented its evidence on the four unaffected specifications; and the defense cross-examined. Thereafter, the military judge “adjourned until 10:30,12 November” 1991. Apparently, however, it took a bit longer to obtain Airman Basic C’s presence, for the court-martial was not recalled to order until December 12, 1991, with the witness present. Over the next 2 days, the trial proceeded to completion.

10. On appeal, appellant contends that the military judge erred in refusing to continue the entire case, pending the availability of Airman Basic C, and that appellant was prejudiced thereby. We disagree.

11. The military judge determines the time for each session of the court-martial. RCM 801(a)(1), Manual for Courts-Martial, United States, 1984. The judge also rules on requests for continuances. RCM 906(b)(1). Article 40, UCMJ, 10 USC § 840, provides that the judge “may, for reasonable cause, grant a continuance to any party for such time, and as often, as may appear to be just.” (Emphasis added.) The discussion following RCM 906(b)(1) urges further that judges “should, upon a showing of reasonable cause, grant a continuance to any party for as long and as often as is just.” (Emphasis added.) As we have often noted, “Granting a continuance is within the discretion of the military judge, and a denial will be reversed only for an abuse of discretion.” United States v. Sharp, 38 MJ 33, 37 (CMA 1993), cert. denied, - U.S. -, 114 S.Ct. 1188, 127 L.Ed.2d 539 (1994).

12. Here there was no abuse of discretion whatsoever. Indeed, given the circumstances he was confronting, the military judge made by far the most rational decision. We must review his decision on the basis of the information and circumstances then known to him. Had he continued the case until Airman Basic C became available, the chances were great that some other witness might become unavailable in the interim. Court members, military judges, and prosecutors are fungible; and procedures are readily available to compensate for their unavoidable absences during a trial. Witnesses, on the other hand, are not fungible. Their testimony (or other ephemeral evidence) is unique, and it cannot be replicated by just any capable individual.4 Provided due process has otherwise been served, a [491]*491judge will rarely, if ever, abuse his or her discretion in receiving such evidence as is then and there available.

13. Appellant’s interest in having the case unfold as a single block was neither greater nor lesser than the prosecution’s or society’s as a whole. While the 2-month hiatus in the court-martial was, in retrospect, less than desirable, it was hardly extraordinary. Owing to the world-wide mobility of service-members in conjunction with their military duties or various other exigencies, it frequently occurs that courts-martial cannot be completed in continuous session. Though there may be some outer limits as to how much of a hiatus could be tolerated, this one does not reach it.

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Cite This Page — Counsel Stack

Bluebook (online)
42 M.J. 488, 1995 CAAF LEXIS 108, 1995 WL 564888, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-royster-armfor-1995.