United States v. Warrington

2 M.J. 1173, 1975 CMR LEXIS 663

• Court: U.S. Navy-Marine Corps Court of Military Review
• Decided: December 17, 1975
• Docket: NCM 75 1928
• Status: Published

Opinions

DECISION

CEDARBURG, Chief Judge:

This is a companion case to United States v. Tarver, 2 M.J. 1176 decided this date. At a separate trial by general court-martial with members, this appellant was convicted of a single charge and specification of robbery in violation of Article 122, UCMJ, 10 U.S.C. § 922. He was sentenced to confinement at hard labor for sixty months, forfeiture of $110 pay per month for sixty months, reduction in rank to E-l and dishonorable discharge. The convening authority approved the findings and sentence adjudged by the court.

Appellant assigns two alleged errors. As we agree that the military judge should have granted his motion to dismiss for want of a speedy trial we will not reach his claim that the sentence is inappropriately severe.

These are the relevant milestones in the progress of appellant’s case to trial:

30 Dec 74 Alleged offense occurs. Appellant is placed in pretrial confinement. NIS Agent S_interviews victim and witnesses.

31 Dec 74 Defense counsel is appointed and visits appellant.

22 Jan 75 Demand for speedy trial addressed to CO 2dEngBn.

23 Jan 75 Battalion office hours.

28 Jan 75 Confinement in excess of 30 days approved. Article 32 investigator assigned.

5 Feb 75 CO 2dEngBn responds to speedy trial demand.

11 Feb 75 Charges preferred. Article 32 investigating officer receives copy of charge sheet and appointing order.

28 Feb 75 Article 32 investigation held.

2-8 Feb 75 2dEngBn on field problem aboard Camp Lejeune.

14 Mar 75 Record of Article 32 investigation forwarded to CO 2dEngBn.

17 Mar 75 CO 2dEngBn endorses record of Article 32 investigation and forwards record to CG 2dMarDiv.

21 Mar 75 Article 34 advice letter prepared by SJA. Charges referred to general court-martial by CG 2dMarDiv.

27 Mar 75 Trial commences.

The dates of Government activity are identical to those with respect to Tarver with the exception of the date of trial and the actions of 21 March. The Article 32, 10 U.S.C. § 832, hearing was conducted as a joint proceeding covering the two accused. We conclude that the difference between the date of Tarver’s demand for speedy trial, lodged on 8 January, and the date upon which this appellant made his demand for speedy disposition of his case, 22 January, is insufficient to distinguish these cases and permit us to find that there was no denial of speedy trial.

January 22nd marks the point at which appellant invoked the “second prong” of the Burton rule, 21 U.S.C.M.A. 112, 44 C.M.R. 166 (1971); see United States v. Johnson, 23 U.S.C.M.A. 397, 50 C.M.R. 279, 1 M.J. 101 (1975), whereby the Government is placed on notice that its diligence in bringing the case to trial will be subjected to close scrutiny and that “a failure to respond to a request for a prompt trial or to order such a trial may justify extraordinary relief,” 21 U.S.C.M.A. at 118, 44 C.M.R. at 192.

Faced with explaining the same desultory pace, the Government did not here offer any reasons materially different from those advanced in Tarver. We have discussed the shortcomings of the Government’s showing in Tarver and will not repeat our analysis now. With respect to the initial period of delay, the twenty-five day hiatus before battalion office hours and examination of the matter by appellant’s commanding officer, the fact that the speedy trial demand was made two weeks later than Tarver’s demand is not a distinguishing factor in this case. The period must be condemned as unreasonably dilatory because the Government ignored the statutory notice of Article 33 which required the commanding officer to decide if the case would go to general court-martial and take appropriate steps within eight days, not twenty-five. The other actions whose timing we have found wanting in diligence in Tarver occurred after appellant’s demand and merit the same evaluation found in the companion case. These include the preferral of charges; the notice to the investigating officer of his appointment and the failure to alert him to the existence of a demand for speedy disposition and the consequent need for expedition; and the scheduling of the Article 32, 10 U.S.C. § 832, hearing. We further note that appellant’s demand received no reply from his commanding officer for two weeks.

Under the facts of this case, our examination of the totality of the delay which characterized the Government’s progress to trial leads us to our conclusion that the military judge erred in his denial of appellant’s motion to dismiss for want of speedy trial. United States v. Burton, supra; United States v. Johnson, supra; United States v. Tarver, supra.

The findings are set aside and the charge and specifications dismissed.

Judge MURRAY concurs.