United States v. Sizemore

2 C.M.A. 572, 2 USCMA 572, 10 C.M.R. 70, 1953 CMA LEXIS 834, 1953 WL 1775

• Court: United States Court of Military Appeals
• Decided: May 29, 1953
• Docket: No. 784
• Status: Published

Opinions

Opinion of the Court

ROBERT E. Quinn, Chief Judge.

Each of the two accused in this ease was found guilty by general court-martial of the murder of a German civilian while perpetrating armed robbery, and was sentenced to dishonorable discharge, total forfeiture of pay and confinement for life. The convening authority approved only so much of the findings of guilty as found the accused guilty of murder, and approved the sentences. An Army board of review set aside the findings and sentence and ordered a rehearing. The case is before us on certificate from The Judge Advocate General, in accordance with Article 67 (b) (2) of the Uniform Code of Military Justice, 50 USC § 654.

Since we concur with the board of review’s action in this case, it becomes unnecessary to consider the lengthy assignments of error set forth by defense counsel. Also, since there is no contention that there is insufficient evidence to support the findings of guilt, there is no necessity for setting forth the facts in detail. The two accused took a taxicab from a restaurant in Germany. The proprietor of the restaurant observed them get into the taxicab, and noted that one of the accused was armed with a pistol. The taxicab driver’s body, shot through the head, was found later in the evening, by two German civilians. A pistol was later found in the accused Stein's locker, and ballistics experts testified that bullets found near the driver’s body came from that pistol. Full confessions by the accused were received in evidence.

The trial in this case lasted for three days. Twenty-four witnesses testified, and twenty-three exhibits were received in evidence. On the last day of the trial, a long lunch hour recess was taken. After the court reassembled, two court witnesses were called and five exhibits were received in evidence. The witnesses connected the lethal bullet with Stein’s pistol for the first time, and the exhibits were those that formed the basis for the ballistics conclusion. Thereafter, the law officer announced that because of the complexity of the case, he would set no time limits upon final arguments. The trial counsel presented a brief summation, and the following colloquy between the law officer and defense counsel then occurred:

“Law Officer: What sayeth the defense?

“Defense : May the defense, on the defense counsel’s request and not because the two accused, request a ten minute recess ?

“Law OFFICER: May I ask the purpose of that recess ? ■

“Defense: Yes, sir, to get my thoughts together.

“Law Officer: The recess is denied. Proceed with the case. You have just come in from lunch. You have been here less than thirty minutes.

“Defense: That is correct, sir, but the defense was forced to put on their case before a witness was put before this court who we did not know what he was to talk about.

“Law OFFICER: Do you wish to make an argument ? If so, now is the time to do it. I have denied the recess.

“Defense : No, sir, I do not.

“Law Officer: At this time, and before I go into this, I will give you one further opportunity. If you wish to make an argument on behalf of your clients, I repeat, now is the time to do so.

“Defense: I do, sir, but I would like a ten minute recess.

“Law OFFICER: I have denied the request for a recess.

“Defense: The defense is not ready at this particular moment to make any argument.”

We concur with the Army board of review’s well-reasoned opinion that the denial of the defense request for recess and the failure of defense counsel to present argument constitute prejudicial error. There is little that we can add to the board’s excellent discussion on this issue. While it is true that the granting or denial of a recess lies within the sound discretion of the law officer, it is difficult to conceive of a more arbitrary abuse of discretion than took place here. The trial had lasted for three days, important prosecution evidence had been received at the request of the court immediately prior to the time for argument, and defense requested only ten minutes. If counsel had proceeded with oral argument despite the denial of the recess, it might well be difficult to say that the accused were prejudiced thereby. However, defense counsel refused to make any argument. The accused were not advised either of their right to personally present argument on their own behalf or of their right to secure the assistance of counsel that would make proper argument for them. This procedure, in effect, left the accused without counsel at a crucial point in the trial.

The right — and duty — of defense counsel to present a closing argument is not to be lightly brushed aside. Where the case is long and hotly contested and a planned strategy has been pursued by defense, the closing argument may be crucial. Out of the wealth of testimony adduced, defense must bring together the portions that are favorable to the accused and present them in a light that will appear most convincing to the triers of fact. If this is not done by defense counsel, there is a danger that the court may not understand or appreciate the defense theory. It is no exaggeration to say that many criminal cases are won for the accused in the course of closing argument. This is an important part of the protection guaranteed by the requirement that an accused in a criminal case be represented by counsel. Speaking in a somewhat similar situation, a Federal Court of Appeals has observed as follows:

“. . . . The right to counsel is at least partially destroyed, if sufficient time is not allowed to fully and fairly present the facts. While it is a just criticism of criminal practice that too much time is consumed in the trial of cases, nevertheless it is of greater importance that those accused of crime have the right, within reasonable bounds and according "to the rules of the court, conducive to orderly procedure of business, to present their defense, than that time be saved.” [Rossi v. United States, 9 F2d 362, 368 (CA8th Cir)].

It is our conclusion that the arbitrary refusal of a short recess by the law officer constituted an abuse of discretion and was, therefore, error. This error was compounded and resulted in substantial prejudice to the accused when defense failed to provide the full measure of representation by not presenting final argument. The result is prejudicial error requiring a rehearing. In view of this disposition, it becomes unnecessary to consider the other assignments of error. We may note, however, that United States v. Joe L. Davis (No. 646), 10 CMR 3, decided May 14, 1953, is dispositive of several major issues raised.

The decision of the board of review is affirmed.

Judge Brosman concurs.