United States v. Smith

35 M.J. 138, 1992 CMA LEXIS 169, 1992 WL 220041
United States Court of Military Appeals·Decided September 14, 1992·No. No. 67,205; ACM 28173·Published·Cited by 13 cases

Opinion

Opinion of the Court

GIERKE, Judge:

A military judge sitting as a general court-martial convicted appellant, contrary to his pleas, by exceptions and substitutions, of stealing military property and obstruction of justice, in violation of Articles 121 and 134, Uniform Code of Military Justice, 10 USC §§ 921 and 934, respectively. The approved sentence provides for confinement for 3 years. The Court of Military Review affirmed the findings and sentence. 33 MJ 527 (1991).

We granted review of the following issue:

WHETHER THE MILITARY JUDGE ERRED WHEN HE FORCED TRIAL DEFENSE COUNSEL, CAPTAIN PETERSON, TO BECOME A WITNESS AGAINST APPELLANT, THEREBY SEVERING THE ATTORNEY-CLIENT RELATIONSHIP.

We hold that the military judge did not err when he forced Captain Jane Peterson to testify and that he properly granted her request to withdraw.

Appellant previously had been convicted by general court-martial on February 26, 1988, of offenses unrelated to this appeal. His sentence included a bad-conduct discharge and a term of confinement. He was confined successively at RAF Lakenheath, England; Mannheim, Germany; and Fort Lewis, Washington. His punitive discharge was executed on December 27, 1988.

On January 30, 1989, he was transferred to the confinement facility at Lowry Air Force Base, Colorado. Upon his arrival at Lowry, all of his personal property was inventoried. Appellant was assigned to the Enhanced Minimum Custody Program (EMCP), which entitled him to live in a dormitory instead of a cell block, and to leave the dormitory and his place of duty unescorted. He was assigned to work in a supply warehouse containing military clothing and equipment, including items used by Air Force Security Police. Appellant had free access to the entire warehouse.

After a number of apparently new items of military property, including items used by Air Force Security Police, were discovered in appellant’s living area in the EMCP dormitory, he was charged with stealing military property. The charges were referred to a general court-martial, which was scheduled to convene on July 21, 1989.

On the morning of that trial, Captain Peterson, the defense counsel, responded to a prosecution discovery request by giving Captain Howell, the trial counsel, an Air Force Form 807 purporting to be an inventory of appellant’s possessions when he was confined at RAF Lakenheath. See RCM 701(b)(3), Manual for Courts-Martial, United States, 1984 (specifies when defense required to disclose documents and tangible objects intended to be introduced as evidence). Captain Peterson intended to introduce the document at trial. The property listed was similar to many of the items appellant was accused of stealing. Captain Howell testified that he “asked her specifically where and when she’d gotten the document and she told [him] that her client had given it to her.” Captain Peterson told him that “it had been prepared by Sergeant Patterson, according to her client, when he was checking it I believe at the Lakenheath facility.”

Suspecting that the document was false, trial counsel requested and obtained a continuance. Sergeant Patterson denied preparing the form. Appellant was then charged with obstructing justice, in viola[140]*140tion of Article 134, by preparing and delivering the false Air Force Form 807 to Captain Peterson, intending that it be used as evidence in his court-martial. The additional charge of obstructing justice was joined with the original larceny charge.

When the court-martial resumed on September 7, 1989, appellant was represented by Captain Riegler as individual military counsel, in addition to Captain Peterson. Captain Howell had been replaced as trial counsel. The defense made a motion in limine to prevent the prosecution from calling Captain Peterson as a witness, arguing that requiring her to testify about the false Air Force Form 807 would breach the lawyer-client privilege under Mil. R.Evid. 502, Manual, supra, and violate the ethical obligations imposed on a member of her state bar. After a hearing in which Sergeant Patterson denied preparing the Air Force Form 807, the military judge denied the motion in limine.

Captain Peterson then requested permission to withdraw as detailed defense counsel. She based her request on her belief that her state bar rules

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United States v. Smith, 35 M.J. 138, 1992 CMA LEXIS 169, 1992 WL 220041 (cma 1992).

35 M.J. 138 (United States v. Smith) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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