United States v. Terry

2 M.J. 915, 1976 CMR LEXIS 808

• Court: U.S. Army Court of Military Review
• Decided: June 30, 1976
• Docket: CM 434172
• Status: Published

Opinions

OPINION OF THE COURT

COOK, Judge:

Appellant was convicted of robbery, alleged as a violation of Article 122, Uniform Code of Military Justice (10 U.S.C. § 922), and received an approved sentence as noted above. The sole assignment of error on this appeal is an assertion that appellant was denied his right to a speedy trial. More particularly, appellate defense counsel contends as did trial defense counsel, that the facts in this case constitute a second-prong-of-Burton violation.¹

On 29 June 1975, appellant and one Coop-wood robbed another soldier at gunpoint. They were apprehended by the military police within minutes of the act and incarcerated.² Later that same day appellant confessed in writing to his part in the crime. The charge against appellant was preferred the next day, 30 June 1975. On 14 July 1975, the charge sheet and allied papers arrived at the office of the staff judge advocate. Two days later these documents were returned to, and four days later they were received by, the Brigade Commander with instructions to conduct an Article 32, UCMJ, 10 U.S.C. § 832, investigation. Some three days thereafter, on 21 July 1975 (22 days after appellant’s imprisonment and confession), an Article 32 investigating officer was appointed.

Inquiry by the investigating officer on 23 July 1975 revealed that the victim of the robbery was on leave prior to reporting to an overseas replacement station for reassignment to Europe. That same date the appellant waived, in writing, his right to the Article 32 investigation. The investigating officer testified at trial that he had been informed by the defense counsel at the time of the waiver that the purpose of the waiver was to expedite the case to trial.

Nevertheless, the investigating officer decided to delay the completion of his report until after the victim could be located and returned and he had an opportunity to interview him under oath. This finally occurred on 15 August 1975, 25 days after his appointment and 46 days after appellant’s confession and confinement. The investigating officer prepared his report that same day.

In the meantime, on 1 August 1975, the appellant and his counsel had negotiated a guilty plea agreement with the staff judge advocate for submission to the convening authority for his acceptance at the “earliest practicable time.” Nothing was done with this written request until 16 September 1975.

On 27 August 1975, the appellant submitted a written demand for immediate trial. Seven days later the convening authority referred the case to trial,³ and, although defense counsel stated he was ready to proceed to trial on 4 September 1975, the case was docketed for 15 September 1975, 20 days after the formal demand for trial.⁴

As we do not consider a delay of 20 days as proceeding “immediately” to trial, we will look to see if there was “adequate cause” for the delay.

The leading case in the application of the second-prong rule is United States v. Johnson, 23 U.S.C.M.A. 397, 50 C.M.R. 279, 1 M.J. 101 (1975). There the United States Court of Military Appeals placed its imprimatur on the approach taken by the Court of Review in examining the record for a “. . . showing of diligence [by the Government] both before and after the accused made his demand for a speedy trial.” (Emphasis supplied).⁵

At the time of his formalized demand for trial appellant had been in pretrial confinement for 60 days. The facts in his case were anything but complex. There was one eyewitness to the crime, and the Government had obtained appellant’s confession. Almost from the outset the Government’s handling of this case was, at best, slipshod.

Off to a good start with the preferral of charges the day after the crime, matters deteriorated seriously thereafter. Two weeks elapsed before these charges arrived at the office of the staff judge advocate. In spite of Article 33, UCMJ, 10 U.S.C. § 833, paragraph 34c, Manual for Courts-Martial, United States, 1969 (Revised edition) (MCM 1969 (Rev)), and a local implementing regulation, no explanation for this delay was contained in the file.

Due primarily to the fact that the Government permitted the victim to depart the post on a permanent change of station, the Article 32 investigating officer took 25 days to complete his investigation. This is unconscionable in a case of inordinate factual simplicity such as this.⁶

Thereafter, it took the staff judge advocate nine days to prepare and present his two-page pretrial advice.

The docketing judge, aware that appellant had been in pretrial confinement for an extended period, that he had made a request for immediate trial and further, that he was prepared to go to trial at once, made no attempt to readjust the trial calendar or obtain a substitute judge. Rather he set the trial for a date ten days later.

Infused throughout are clear indications • by the appellant that he was prepared to bring this matter to speedy resolution. He made at least three explicit attempts in this regard. He waived his rights to the Article 32 investigation for the announced purpose of expeditious handling.⁷ Secondly, he conferred with the staff judge advocate, apparently on acceptable terms about pleading guilty.⁸ While this act may not have been as unequivocal an expression of a desire for immediate disposition as was the waiver of the Article 32 investigation, it was nevertheless a distinct signal that appellant did not desire to engage in protracted litigation.⁹ And, when combined with the fact of the earlier requested waiver, it becomes a patently clear effort by the appellant to get to trial. Failing all else, appellant made his third attempt in submitting a demand for immediate trial.

From the foregoing this Court concludes that the Government has not shown adequate cause for the delay in this case.¹⁰

Unlike the remedy when the 90-day prong of the Burton decision is violated, dismissal of charges is not mandated in this instance.¹¹ We must look to the totality of the situation in arriving at an appropriate remedy.¹²

Having done so the Court affirms the findings of guilty and approves so much of the sentence as provides for a bad-conduct discharge.

Senior Judge BAILEY concurs.

1 . In United States v. Burton, 21 U.S.C.M.A. 112, 44 C.M.R. 166 (1971), the United States Court of Military Appeals, in addition to the widely recognized 90-day rule, also announced that in those instances where the defendant makes a demand for speedy trial a special duty is placed on the Government to “. . . respond to the request and either proceed immediately or show adequate cause for any further delay.” 21 U.S.C.M.A. at 118, 44 C.M.R. at 172.

2 . He remained in this status for 80 consecutive days, i. e., till 16 September 1975, the day following his arraignment.

3 . The convening authority was not informed at this time of either the appellant’s offer to plead guilty or of his demand for immediate trial. As to the demand for trial, the convening authority was not apprised of its existence until he read the post-trial review.

4 . It is noted that on 15 September an Article 39(a), 10 U.S.C. § 839(a), session of less than a one hour duration was held at which appellant plead not guilty. Compare United States v. Beach, 23 U.S.C.M.A. 480, 50 C.M.R. 560, 1 M.J. 118 (1975), with United States v. Marell, 23 U.S.C.M.A. 240, 49 C.M.R. 373 (1974), on the question as to whether the Article 39(a) session in this case “terminated” the pretrial confinement for Burton rule purposes. The Government was still not ready to try appellant on 15 September and the case was put over until 19 September or 23 days after the demand for immediate trial. Appellant was, however, released from confinement on 16 September. Under the rationale of United States v. Mock, 49 C.M.R. 160 (A.C.M.R.1974), the Government’s strict accountability was tolled thereby.

5 . United States v. Johnson, supra, 23 U.S.C. M.A. at 402, 50 C.M.R. at 284, 1 M.J. at 106. This language would seem to establish a different test than the one outlined in United States v. Burton, supra. There we find at 21 U.S.C. M.A. 117, 44 C.M.R. 171, “When the defense alertly avoids what could otherwise be a waiver of the speedy trial issue by urging prompt trial, the Government is on notice that delays from that point forward are subject to close scrutiny and must be abundantly justified.” (Emphasis supplied). However, we believe the two criteria are compatible. In trying to determine whether the Government has shown an adequate cause for any delay in complying with a demand for immediate trial, it may be necessary to examine what it has done to prepare the case for trial prior to such demand. In other words, was the post-demand delay occasioned by pre-demand failures? “It is only when we look at the earlier period that the subsequent one is put in perspective.” United States v. Johnson, 49 C.M.R. 13 (A.C.M.R.1974) at 16.

6 . This IO was conducting a simultaneous Article 32 investigation as to appellant’s co-accused. However, it was because he insisted on talking to the victim that the report was delayed. No matter how warranted his decision in this regard may have been in the case of the co-accused (who had not confessed) it cannot be used to justify the delay in appellant’s case. United States v. Johnson, 24 U.S.C.M.A. 147, 51 C.M.R. 337, 1 M.J. 294 (1976). In any event, the fact that the victim was permitted to leave on PCS is inexcusable and is the root cause for the delay.

7 . We do not hold that the Government is obligated to accede to such a waiver and terminate its investigation. As was said in United States v. Cunningham, 12 U.S.C.M.A. 402, 404, 30 C.M.R. 402, 404 (1961), the Article 32 investigation is an important pretrial right from the standpoint of the accused and, at the same time, affords many benefits to the Government.” We find the waiver important because it was an unmistakable signal that appellant desired a hasty settlement and because the Government totally failed to react thereto.

8 . See the earlier textual material on this subject. It is bottomed on a stipulation of fact contained in the record. Although affidavits on this subject were requested and submitted, nothing contained therein alters the facts related in the text.

9 . As noted earlier, although submitted to the staff judge advocate on 1 August, after a promise that it would be presented to the convening authority “as soon as practicable” it was not in fact presented to him until 16 September. Even allowing for the fact that such negotiations are not normally culminated until after referral, i. e., 3 September, we still find that an inordinate amount of time elapsed before it was presented to the convening authority. This is yet another indication of the Government’s unconcerned and lax approach to this case.

10 . “And administrative bungling is certainly not an adequate explanation,” United States v. Burton, supra, 21 U.S.C.M.A. at 122, 44 C.M.R. at 176 (Senior Judge Ferguson’s dissent).

11 . “A failure to respond to a request for a prompt trial or to order such a trial may justify extraordinary relief.” United States v. Burton, supra, 21 U.S.C.M.A. at 118, 44 C.M.R. at 172; United States v. Gordon, 2 C.M.R. 517 (A.C. M.R. 20 Feb. 1976).

12 . United States v. Gordon, supra.