United States v. Smith

3 M.J. 912, 1977 CMR LEXIS 733

• Court: U.S. Army Court of Military Review
• Decided: July 26, 1977
• Docket: CM 433028
• Status: Published

Opinions

OPINION OF THE COURT

COOK, Senior Judge:

The controlling issue in this case concerns a ruling by the trial judge. The regularly appointed trial defense counsel, in his effort to challenge the pretrial decision that individual military counsel requested by accused was not reasonably available,¹ informed the trial judge that he desired to present evidence. The trial counsel, on inquiry from the judge, interposed no objection. Nevertheless, the trial judge declined to permit the defense counsel to proceed. The judge’s rationale appears in the following excerpt from the record of trial.

“MJ: In effect, then, you are asking me to substitute my judgment as to her work load and whether or not if she were made available it would not seriously disrupt the orderly operation of the Office of the Staff Judge Advocate here at Fort Bel voir?

DC: Yes, Your Honor.

MJ: Because the Commanding General of TRADOC has assigned a reason why he has determined not to make Captain Casper available, first, because of her absence until 20 October, but particularly because he has determined that she does in fact have a heavy work load and that she is not reasonably available, it would seriously disrupt the operation of the Office of the Staff Judge Advocate, I find that he has assigned an acceptable reason for his denial of your appeal and that it is not a capricious or unreasonable reason, for instance, that she is not being made available because of some frivolous reason. I am going to rule that I will not hold a hearing to determine for my own mind how heavy her work load may be or how urgent is her presence in the Procurement Division here at Fort Belvoir may be. I find that the accused has been given his right to request her as individual counsel, that her commanding officer has determined that she is not reasonably available, and, further, upon appeal that the next senior commanding officer has confirmed in his mind that she is not reasonably available. So, I am not going to go behind it since he has assigned a proper reason or reasons for her unavailability. So, your request to hold a hearing on this matter is denied.”

While the initial determinations concerning the availability of counsel are to be made by the counsel’s commanding officer, and if appealed, by the next higher authority, those decisions are not final. They are subject to review at the trial and appellate levels. United States v. Cutting, 14 U.S.C.M.A. 347, 34 C.M.R. 127 (1964). The burden, however, of establishing the incorrectness of these prior decisions lies with the trial defense counsel. United States v. Mitchell, 15 U.S.C.M.A. 516, 36 C.M.R. 14 (1965); United States v. Gatewood, 15 U.S.C.M.A. 433, 35 C.M.R. 405 (1965). Obviously, counsel cannot meet this burden if the trial judge forecloses the issue by refusing to permit the presentation of evidence. The fact that the earlier denials contain prima facie valid reasons for determining that the counsel requested was unavailable is not sufficient justification for the trial judge to refuse to examine the matter in depth. In United States v. Quinones, 23 U.S.C.M.A. 457, 50 C.M.R. 476, 1 M.J. 64 (1975), the United States Court of Military Appeals reversed a ease in which the original determinations set out acceptable reasons for the conclusion that the requested counsel was not reasonably available. At trial, however, the defense counsel was afforded an opportunity to present evidence that there was no reasonable factual basis for the denial (a procedure which the United States Court of Military Appeals approved of, citing United States v. Cutting, supra at 352, 34 C.M.R. at 132 and United States v. Mitchell, supra at 520, 36 C.M.R. at 18). Our high Court, using the evidence thus developed, found that the denials constituted an abuse of discretion.

In the case sub judice, counsel was never permitted to develop the necessary factual predicate upon which the judge could bottom a reasoned decision because of the peremptory action of the trial judge. As a result of his precipitous decision, we too are unable to review the matter.

Prejudice to the appellant is obvious² and reversal is required. United States v. Cutting, supra; United States v. Brewery, 45 C.M.R. 395 (A.C.M.R.1972).

The findings of guilty and the sentence are set aside. A rehearing is authorized.

Judge DRIBBEN concurs.

1 . See paragraph 48b, Manual for Courts-Martial, United States, 1969 (Revised edition).

2 . “The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.” Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), quoted with approval in United States v. Hartfield, 17 U.S.C.M.A. 269, 38 C.M.R. 67 (1967).