United States v. Thomas

41 M.J. 873, 1995 CCA LEXIS 72, 1995 WL 68597
CourtNavy-Marine Corps Court of Criminal Appeals
DecidedFebruary 9, 1995
DocketNMCM 93 02019
StatusPublished
Cited by6 cases

This text of 41 M.J. 873 (United States v. Thomas) is published on Counsel Stack Legal Research, covering Navy-Marine Corps Court of Criminal 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. Thomas, 41 M.J. 873, 1995 CCA LEXIS 72, 1995 WL 68597 (N.M. 1995).

Opinion

REED, Senior Judge:

The appellant was tried in October and November of 1991 by a special court-martial composed of officer members. Contrary to his pleas, he was convicted of two specifications of making a false official statement, seven specifications of larceny, six specifications of uttering bad checks, and false swearing, in violation of Articles 107, 121, 123a, and 134, respectively, of the Uniform Code of Military Justice [UCMJ], 10 U.S.C. §§ 907, 921, 923a, 934. He was sentenced to confinement for 6 months, forfeiture of $502.00 pay [874]*874per month for 6 months, reduction to pay grade E-l, and a bad-conduct discharge. On 11 August 1993, the convening authority [CA] approved the sentence as adjudged, some 21 months after the date of trial.

The appellant has now raised five assignments of error.1 The fifth assignment of error has previously been decided against the appellant’s contentions and will not be discussed further. United States v. Mitchell, 39 M.J. 131 (C.M.A.), cert. denied, - U.S. -, 115 S.Ct. 200, 130 L.Ed.2d 131 (1994).

In his first assignment of error the appellant argues that the military judge erred in denying his request for an independent handwriting analyst to assist him in preparing for cross-examination of the Government’s expert. We disagree. The following facts are pertinent to a discussion of this issue.

Prior to trial, the appellant’s trial defense counsel asked the Government for an expert to examine the signatures on the checks the appellant was alleged to have uttered. The defense counsel specifically asked that Mr. Manuel Gonzales, a forensic document examiner, be made available, although he indicated that a suitable Government expert would also be acceptable. Counsel’s specific request for Mr. Gonzales was denied, but the request for a handwriting analysis to be done by an expert was approved. Mr. Mark Gernandt of the Naval Investigative Service Forensic Science Laboratory performed the requested analysis. He concluded that the appellant signed the questioned cheeks. The Government contends that this portion of the appellant’s argument is moot since expert assistance to the defense was provided. We agree. See United States v. Davis, 22 M.J. 829 (N.M.C.M.R.1986). Based on the results of the examiner’s analysis, the Government then decided to call him as a prosecution witness.

Subsequently, but again prior to trial, the trial defense orally asked the convening authority for authority to hire Mr. Gonzales to assist the defense in cross-examining the Government expert. The convening authority orally denied this request indicating the defense counsel had shown no necessity for such an expert.

After trial commenced on 16 October 1991, the appellant renewed his request to the convening authority, this time in writing, for an expert document examiner, specifically Mr. Gonzales, to do two things: (1) to conduct an independent analysis of the documents that the NIS expert had already examined; and (2) to assist the defense in preparing to meet the Government expert’s testimony “through educated cross-examination.” The convening authority denied this request. Once the convening authority had denied the request for assistance, the trial defense counsel renewed the request for expert assistance with the military judge. Record at 14. At the time of this request, defense counsel had not spoken with the Government expert [Record at 17], but citing United States v. Burnette, 29 M.J. 473 (C.M.A.1990), and United States v. Murphy, [875]*87523 M.J. 310 (C.M.A.1987), the defense counsel indicated that little showing of necessity was required.

However,

[t]he servicemember bears the burden of demonstrating the necessity for the expert assistance he requests. There are three aspects to showing necessity. First, why the expert assistance is needed. Second, what would the expert assistance accomplish for the accused. Third, why is the defense counsel unable to gather and present the evidence that the expert assistance ©would be able to develop. In particular, the defense must show what it expects to find; how and why the defense counsel and staff cannot do it; how cross-examination will be less effective without the services of the expert; how the alleged information would affect the Government’s ability to prove guilt; what the nature of the prosecution’s case is, including the nature of the crime and the evidence linking him to the crime, and how the requested expert would otherwise be useful.

United States v. Allen, 31 M.J. 572, 623-24 (N.M.C.M.R.1990) (citations omitted). This the trial defense counsel failed to do. He had not interviewed the Government’s expert; he had done but cursory research into the area of handwriting analysis;2 he could not show that the expert he desired disagreed in any way with the Government’s expert; he could not show that there were legitimate divergent scientific views in the area; nor could he show what any expert assistance would accomplish for the accused. Record 20-33.

[A] defendant must demonstrate something more than a mere possibility of assistance from a requested expert; due process does not require the government automatically to provide ... defendants with expert assistance upon demand. Rather a fair reading of these precedents [Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985); Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985) ] is that a defendant must show the trial court that there exists a reasonable probability both that an expert would be of assistance to the defense and that denial of assistance would result in a fundamentally unfair trial.

Moore v. Kemp, 809 F.2d 702, 712 (11th Cir.1987) (footnote omitted) cert. denied, 481 U.S. 1054, 107 S.Ct. 2192, 95 L.Ed.2d 847 (1987). This also the defense counsel failed to do. We specifically find from the evidence of record that the denial of the requested assistance did not result in an unfair trial, and we conclude that the military judge did not err in denying the defense request. This assignment of error clearly lacks merit.

Likewise, the evidence of record supports the members findings, and, we too, are convinced of the appellant’s guilt beyond any reasonable doubt. Thus we conclude that the third and fourth assignments of error also lack merit.

In his second assignment of error, the appellant alleges he was denied speedy post-trial review of his case. The following facts are pertinent to a discussion of this issue.

The appellant was sentenced on 1 November 1991; the record of trial was authenticated by the military judge on 2 April 1992, 5 months later. The staff judge advocate’s [SJA] recommendation was prepared on 2 September 1992, 5 months after the authentication of the record and 10 months after the date the sentence was adjudged. The SJA recommendation consisted of the normal four page review which could have been prepared using the appellant’s service record book and a copy of the results of trial.

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Cite This Page — Counsel Stack

Bluebook (online)
41 M.J. 873, 1995 CCA LEXIS 72, 1995 WL 68597, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-thomas-nmcca-1995.