United States v. Streater

32 M.J. 337, 1991 CMA LEXIS 467, 1991 WL 86290
CourtUnited States Court of Military Appeals
DecidedMay 29, 1991
DocketNo. 64,031; CM 8900151
StatusPublished
Cited by4 cases

This text of 32 M.J. 337 (United States v. Streater) is published on Counsel Stack Legal Research, covering United States Court of Military Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Streater, 32 M.J. 337, 1991 CMA LEXIS 467, 1991 WL 86290 (cma 1991).

Opinion

Opinion of the Court

COX, Judge:

Pursuant to his pleas, appellant was convicted of unpremeditated murder, in violation of Article 118, Uniform Code of Military Justice, 10 USC § 918. He was sentenced by the military judge to total forfeitures; reduction in grade to Private E-l; dishonorable discharge; and confinement for life. Pursuant to a pretrial agreement, the convening authority approved only 18 years of confinement while approving the remainder of the sentence. The Court of Military Review affirmed the findings and sentence in a short-form opinion.

This Court granted review of the following issue:

[338]*338WHETHER THE MILITARY JUDGE ERRED BY FAILING TO ADDRESS APPELLANT’S COMPETENCE TO WAIVE COUNSEL AND REPRESENT HIMSELF.

On January 18 and 26, 1989, appellant was tried at Fort Huachuca, Arizona, before a military judge sitting as a general court-martial. At the beginning of the trial, the military judge explained to appellant his right to be represented at the court-martial by “a qualified lawyer” acting as his defense counsel, namely Captain Mosh-er, who had been detailed as appellant’s military defense counsel. See RCM 506, Manual for Courts-Martial, United States, 1984; and Art. 27, UCMJ, 10 USC § 827. The military judge advised appellant that he could also choose to secure a civilian defense counsel should he so desire, as well as the other rights to counsel enjoyed by an accused under Article 27. Appellant was then asked by whom he wished to be represented. Appellant responded, “Myself, Sir.” (See Appendix for the complete exchange between the military judge and appellant on this matter.)

The military judge then discussed appellant’s decision with him and advised him of the potential dangers involved in self-representation. Furthermore, although he allowed appellant to represent himself, he required the continued presence of the detailed defense counsel to assist appellant if need be and to provide “procedural” advice or, perhaps, to “poke” appellant “in the ribs” if he should need some prompting.1

Appellant now claims on appeal that the inquiry by the military judge was inadequate to establish that he was “competent” to represent himself. We hold that the military judge’s inquiry and advice were sufficient to ensure that appellant appreciated the perils of defending himself. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); RCM 506(d).

Prior to the court-martial, a sanity board was conducted to determine if appellant was competent to stand trial. The sanity board was not completed when the court-martial convened or when the accused elected to represent himself. The military judge was made aware of the status of the sanity board and entered appropriate rulings to the effect that the case would be reopened if the results of the sanity board suggested that the accused was not competent. Furthermore, appellant was advised that the guilty pleas would then be set aside.2 Based upon the existence of this incomplete sanity board, appellant now argues that the military judge was on notice to conduct a more thorough inquiry into accused’s mental competence to direct his own defense and that he was required to make a finding on the record that appellant was competent to make the decision to represent himself and to actually defend himself.

In United States v. Freeman, 28 MJ 789 (NMCMR 1989), the Court of Military Review held that RCM 506(d) imposed a requirement upon military judges to make a particularized inquiry into the mental competence of an accused who elects to represent himself at a court-martial and to make an affirmative finding that the accused is indeed “competent to understand the disadvantages of self-representation.” 28 MJ at 793. As that court noted, the rule is based upon the teachings of Faretta v. California, supra. See also Massey v. Moore, 348 U.S. 105, 75 S.Ct. 145, 99 L.Ed. 135 (1954). We agree with the Court of Military Review. RCM 506(d) requires the military judge to satisfy himself both that the ac[339]*339cused is mentally competent to make the decision to represent himself and that he clearly understands the disadvantages of self-representation.

Thus, we agree with appellant that the military judge erred in not making explicit findings on the record, either at the outset of the trial or after he had had sufficient time to observe appellant in the court room, that appellant was sufficiently competent to understand his choice to represent himself and that he was equal to the task of choosing.3

Nevertheless, the lack of a particularized finding by the military judge does not compel reversal in this case. First, there is no evidence before us that appellant lacked competence. Indeed, the results of the sanity board are in the record and support a conclusion that appellant was competent. But the most compelling evidence is the performance of appellant as his own counsel. Our review of the record, unlike the bizarre record in United States v. Freeman, supra 28 MJ at 793 and 794, demonstrates that appellant handled himself very well; relied upon his appointed counsel from time to time for valuable assistance; and participated appropriately in the proceedings. Furthermore, the trial was conducted before a military judge without members. Thus, throughout the proceedings, the military judge was able to ensure that appellant was not being harmed by his decision to represent himself. Lastly, appellant enjoyed the benefit of an intelligently negotiated pretrial agreement which limited his sentence for unpremeditated murder to 18 years of confinement. His responses to the military judge’s inquiry into the propriety of the plea more than demonstrate his total competence and acceptance of responsibility for his crime.

The decision of the United States Army Court of Military Review is affirmed.

Chief Judge SULLIVAN and Senior Judge EVERETT concur.

APPENDIX

The colloquy was as follows:

MJ: Who do you want to be your defense counsel in this case?
ACC: Myself, sir.
MJ: Do you have any legal training?
ACC: No, sir.
MJ: When you go to trial acting as your own lawyer, then you are expected to conduct your defense just as if you were a qualified lawyer, do you understand that?
ACC: Yes, sir.
MJ: Just as an example of this, the government may want to offer some evidence in[,] which would normally not be admissible, and a trained lawyer would stand up and object to that, and the evidence would be kept out. If you’re acting as your own lawyer and you don’t recognize that it’s not admissible, and therefore don’t object to it, then the evidence comes in. Do you understand this?
ACC: Yes sir.
MJ: And so a trained lawyer can provide a great deal of benefit for you by knowing the procedures, by knowing the Rules of Evidence, and by knowing the rules of law. Do you understand this?
ACC: Yes, sir.

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Cite This Page — Counsel Stack

Bluebook (online)
32 M.J. 337, 1991 CMA LEXIS 467, 1991 WL 86290, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-streater-cma-1991.