United States v. Willis

3 M.J. 94, 1977 CMA LEXIS 9948

• Court: United States Court of Military Appeals
• Decided: May 16, 1977
• Docket: No. 32,496; NCM 74-2247
• Status: Published

Opinions

Opinion of the Court

PERRY, Judge:

On April 15,1974, the appellant was tried by general court-martial and convicted of possession and sale of heroin in violation of Article 92, Uniform Code of Military Justice, 10 U.S.C. § 892. He was sentenced to a bad-conduct discharge, confinement at hard labor for 1 year, forfeiture of all pay and allowances, and reduction to the lowest enlisted grade. The convening authority approved the findings and the sentence, except he reduced the period of confinement to 304 days. The United States Navy Court of Military Review affirmed the findings, but it set aside the sentence because of an instructional error at the sentencing stage of the proceedings. A rehearing on the sentence was authorized, if such was deemed to be practicable by the convening authority.

Upon the advice of his staff judge advocate, the convening authority did, in fact, order a rehearing to be held in Lemoore, California. The appellant claims before this Couift that at the rehearing he was erroneously denied the personal attendance and testimony of four relevant and material witnesses pertinent to his character. We agree.

Prior to the rehearing, the appellant’s defense counsel presented to the convening authority a written request for the presence of four witnesses who had testified on the appellant’s behalf at the original sentence hearing. Noting that the witnesses “would be testifying only on matters in extenuation and mitigation” [emphasis added],¹ the convening authority denied the request for the following reasons: (1) as these same witnesses had given similar testimony at the initial proceeding, that testimony was available to be read from the original transcript in lieu of personal appearance; (2) one of the four witnesses was at the time of the rehearing a civilian and, according to the convening authority’s understanding, beyond the general court-martial’s subpoena process; (3) two of the remaining witnesses were deployed at the time on ships at sea; (4) the fourth witness was at the time deployed on a ship in Guam; and (5) to provide the three military witnesses would represent a considerable expense to the Government. The convening authority concluded that, in balancing the benefit to the appellant from live production of the witnesses in light of the availability of their testimony in the original transcript, against the problems to the Government in procuring those witnesses again, availability was not required as a matter of law. Accordingly, the convening authority denied the request,

Without examining in detail the propriety of considering as factors in his decision those set out by the convening authority, we believe that the balancing exercise utilized in weighing them was legally defective. Correctly, there is no contest in the litigation in this case as to the witnesses’ materiality. However, the Government contends that this “materiality” must be measured against the inconvenience to the service in having to produce the witnesses live before the court-martial, as opposed to some substitute method of offering this evidence, as reading from the record of the original proceedings. Counsel note that this weighing test is suggested in United States v. Sweeney, 14 U.S.C.M.A. 599, 606, 34 C.M.R. 379, 386 (1964).²

We believe that “materiality” is not susceptible to gradation. The testimony of a given witness either , is or is not material to the proceeding at hand. In substance, the theory urged by the Government is that military convenience is a relevant consideration in the decision whether to produce requested witnesses. That is a theory which is even less compelling than “military necessity,” which was laid to rest in United States v. Carpenter, 1 M.J. 384 (1976). There, Judge Cook, writing for a unanimous Court, held:³

Although “military necessity” or various personal circumstances relating to a requested witness may be proper criteria to determine when his testimony can be presented, the sole factor for consideration in determining whether he will testify at all is the materiality of his testimony. United States v. Iturralde-Aponte, [1 M.J. 196 (1975)].

To further quote from the opinion in Carpenter :

[0]nce materiality has been shown the Government must either produce the witness or abate the proceedings. United States v. Daniels, 23 USCMA 94, 48 CMR 655 (1974).

Here,‘while it may be inconvenient and possibly even costly⁴ to the Government to provide these four witnesses, the appellant may not be compelled to accept a substitute for their appearance, in person, as material witnesses to what would be an appropriate sentence. United States v. Carpenter, supra.

The decision of the United States Navy Court of Military Review is reversed as to the sentence. The sentence is set aside; rehearing thereon is authorized.

Chief Judge FLETCHER concurs.

1 . Of course, there can be no question but that the fact that the witnesses were desired as extenuation and mitigation witnesses, as opposed to witnesses on the merits of guilt or innocence, is not relevant. The right to the procurement of defense witnesses, protected constitutionally by the sixth amendment and statutorily by Article 46, Uniform Code of Military Justice, 10 U.S.C. § 846, extends beyond the prefindings stage of a court-martial and to the presentencing stage as well. United States v. Iturralde-Aponte, 1 M.J. 196, 197 (1975); United States v. Manos, 17 U.S.C.M.A. 10, 14, 37 C.M.R. 274, 278 (1967).

2 . It would appear that this “weighing” of the equities never was intended to be the even balancing that the Government would urge, for the Sweeney language cited was addressed and further explained by the Court in United States v. Manos, supra at 15, 37 C.M.R. at 279 (1967):

We are, however, concerned with impressing on all concerned, the undoubted right of the accused to secure the attendance of witnesses in his own behalf; the need for seriously considering the request; and taking necessary measures to comply therewith if such can be done without manifest injury to the service. That is what we meant in Sweeney, supra, in speaking of weighing the relative responsibilities of the parties against the equities of the situation. [Emphasis added.]

3 . United States v. Carpenter, 1 M.J. 384, 386 (1976).

4 . The cost to the Government in possibly having to produce the live appearance of these witnesses was a factor expressly considered by the staff judge advocate in his pretrial advice to the convening authority; despite this, however, the staff judge advocate opined that “it is still considered appropriate and practical to direct a rehearing.”