United States v. Wallace

14 M.J. 1019, 1982 CMR LEXIS 765
CourtU.S. Army Court of Military Review
DecidedDecember 10, 1982
DocketCM 438909
StatusPublished
Cited by4 cases

This text of 14 M.J. 1019 (United States v. Wallace) is published on Counsel Stack Legal Research, covering U.S. Army Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Wallace, 14 M.J. 1019, 1982 CMR LEXIS 765 (usarmymilrev 1982).

Opinion

OPINION OF THE COURT ON FURTHER REVIEW

FOREMAN, Judge:

Contrary to his pleas, the appellant was convicted of possession of cocaine, sale of cocaine, and possession of marihuana, in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 834 (1976). He was sentenced to a bad-conduct discharge, confinement at hard labor for four years, and total forfeitures. The convening authority approved the sentence. When this case first came before this Court for mandatory review pursuant to Article 66, Uniform Code of Military Justice, 10 U.S.C. § 866 (1976), we set aside the action of the convening authority because the record was improperly authenticated and the defense counsel had not been given five days to comment on the staff judge advocate’s post-trial review, as required by United States v. Goode, 1 M.J. 3 (C.M.A.1975); United States v. Wallace, CM 438909 (ACMR 30 June 1981) (unpub.). The record is again before us, properly authenticated and reviewed. The appellant now challenges the denial of his request for individual military counsel, the lawfulness of a search of his off-post residence, the adequacy of the chain of custody of the fruits of the search, the admissibility of government rebuttal testimony, the military judge’s failure to call a witness, the sufficiency of the evidence, and the propriety of the government’s severance of the attorney-[1022]*1022client relationship between the appellant and his counsel after the trial.

I. Request for Individual Counsel

The appellant contends that his request for individual military counsel was improperly denied. Prior to commencement of the Article 32 investigation,1 the appellant requested that Captain Thomas Bowe, then stationed at Camp Humphreys, Korea, be made available as individual defense counsel. The request was denied by Brigadier General Pendleton, Commander, 19th Support Command. The appellant then requested Captain Warren Hall, stationed at Rock Island Arsenal, Illinois. Captain Hall was made available and defended the appellant at both the Article 32 investigation and the subsequent trial by general court-martial.

The appellant appealed General Pendleton’s decision regarding Captain Bowe to the Commander, Eighth United States Army, who upheld General Pendleton’s determination. The appellant unsuccessfully contested the decision before the trial judge and now raises the issue on appeal.

General Pendleton’s decision to deny the request for Captain Bowe was based on several factors: that Captain Bowe was the command judge advocate for the Camp Humphreys area; that only one other judge advocate, a defense counsel, was assigned to Camp Humphreys; that Captain Bowe was the trial counsel in nine pending cases (reduced to seven as of the appellant’s trial date); that Captain Bowe was working a 6-day work week; that Captain Bowe was responsible for providing legal assistance and claims services for the 5000 military personnel in the Camp Humphreys area; that the command was understrength, operating with an authorization for twelve judge advocates but an actual strength of eight judge advocates. General Pendleton’s staff judge advocate characterized the impact of making Captain Bowe available by stating that “his absence would just about wipe out the Judge Advocate operation” at Camp Humphreys.

When a request for individual military counsel is denied, there must be “a sound reason for denying to the accused the services of the representative whom he seeks.” United States v. Cutting, 14 U.S.C.M.A. 347, 351, 34 C.M.R. 127, 131 (1964). However, the burden is on the defense to show that the decision was incorrect. United States v. Smith, 3 M.J. 912 (A.C.M.R. 1977).

The requested counsel’s caseload is a factor, but not the only factor. United States v. Kelker, 4 M.J. 323 (C.M.A.1978). Counsel may be reasonably available in spite of a workload requiring more than a 40-hour work week. United States v. Quinones, 1 M.J. 64 (C.M.A.1975). However, if the absence of the requested officer would “obstruct either other important operations ... or orderly administration of military justice,” there may be a reasonable basis for refusing to make the officer available. United States v. Gatewood, 15 U.S.C.M.A. 433, 435, 35 C.M.R. 405, 407 (1965); see United States v. Wager, 10 M.J. 546 (N.C. M.R.1980) (officer not reasonably available because of important duties in the Office of The Judge Advocate General); United States v. Brown, 2 M.J. 627 (A.F.C.M.R. 1976) (officer not reasonably available because of full-time trial counsel duties).

While Captain Bowe’s court-martial workload may have been unremarkable and his six-day work week not unusual for a remote overseas duty station, we believe that his position as “command judge advocate” for the Camp Humphreys area, and the necessity to assign another officer from an understrength command to perform his duties hi his absence provides a reasonable and sound basis for refusing to make him [1023]*1023available for a period of four to eight weeks to act as individual defense counsel.2

However, the appellant contends that the fact that Captain Bowe was permitted to take a 30-day leave demonstrates that his absence would not have been detrimental to his command. We disagree. In the first place, leave is an entitlement. Army commanders are directed “to encourage and assist all members to use, on the average, their entire 30 days leave each year.” Army Regulation 630-5, Personnel Absences, Leave, Passes, Administrative Absence, and Public Holidays, 15 June 1975, as amended, paragraph 2-5. In a remote overseas area, the importance of leave as a means of maintaining morale and efficiency is doubly important. In order to make Captain Bowe available, General Pendleton would have been required to arrange for another officer to perform his duties for a period of eight to twelve weeks (four of which would be attributable to Captain Bowe’s leave), even if he rescheduled Captain Bowe’s leave. We are satisfied that the impact of Captain Bowe’s absence on an understrength command would have been substantial enough to constitute a sound reason to deny the request. We find the assigned error without merit.

II. The Search Authorization

The appellant’s conviction of possession of cocaine and marihuana was based on the seizure of a quantity of cocaine and marihuana from appellant’s off-post quarters by German and United States police authorities. The search was authorized in writing by Colonel Prather, Heilbronn Community Commander. The appellant attacks the lawfulness of the search on two grounds: (a) the search authorization was based on information from an agent of the US Army Criminal Investigation Command (CID) who intentionally withheld material facts from Colonel Prather; and (b) Colonel Prather was not the “neutral and detached magistrate” required by United States v. Ezell, 6 M.J. 307 (C.M.A.1979). When the case was first before us, the appellant also contended that the record does not demonstrate that Colonel Prather had authority to authorize an off-post search. Since that assignment of error has not been withdrawn we will address it.

A. The Request for a Search Authorization

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Bluebook (online)
14 M.J. 1019, 1982 CMR LEXIS 765, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-wallace-usarmymilrev-1982.