United States v. Young

50 M.J. 717, 1999 CCA LEXIS 94, 1999 WL 247223
CourtArmy Court of Criminal Appeals
DecidedApril 21, 1999
DocketARMY 9501208
StatusPublished
Cited by6 cases

This text of 50 M.J. 717 (United States v. Young) is published on Counsel Stack Legal Research, covering Army 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. Young, 50 M.J. 717, 1999 CCA LEXIS 94, 1999 WL 247223 (acca 1999).

Opinion

OPINION OF THE COURT

SQUIRES, Judge:

Contrary to his pleas, appellant was convicted by a panel composed of officer and enlisted members of willfully disobeying a superior commissioned officer (two specifications), rape (five specifications), assault consummated by battery (two specifications), and adultery (five specifications) in violation of Articles 90, 120, 128 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 890, 920, 928 and 934 [hereinafter UCMJ], The adjudged and approved sentence includes confinement for life, a dishonorable discharge, forfeiture of all pay and allowances, and reduction to the grade of Private El.

On appeal, appellant contends that: (1) the military judge abused his discretion by failing to grant a continuance to allow Staff [720]*720Sergeant (SSG) Young to retain civilian counsel of choice; (2) he was ineffectively represented at trial because his civilian counsel, Mr. Joel Cohen, abandoned the case after a conflict of interest arose; (3) the evidence is insufficient to prove lack of consent, and thus the multiple rapes; (4) appellant’s pretrial restriction for 121 days denied him a speedy trial; (5) trial counsel’s sentencing argument impermissibly requested punishment for misconduct that occurred beyond the statute of limitations; (6) the sentence to confinement for life is inappropriately severe; (7) appellant was wrongfully convicted of both rape and adultery; (8) the military judge erred when he failed to suppress appellant’s pretrial statement; (9) the military judge’s instruction concerning “constructive force” based on a parental relationship was erroneous; and (10) the military judge erred in admitting testimony under the medical diagnosis and treatment exception to the hearsay rule.

Pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.1982), appellant raises many of the errors assigned by his appellate counsel. Additionally, he argues he was denied effective assistance of counsel in the pretrial phase of his court-martial proceedings, as well as at trial. He also contends that the military judge should have granted a mistrial after the members heard impermissible evidence; trial counsel engaged in ex parte communications with the members; trial counsel’s sentencing argument was improper; photographs of the victim were improperly admitted; the military judge was not an active member of his state bar organization; and cumulative errors denied him a fair trial.

FACTS

The majority of the offenses for which appellant was convicted arose from his sexually abusing his stepdaughter from June 1990 until June 1994. The victim, C, born in February 1974, was sixteen years of age when the rapes for which appellant was convicted began. However, C testified that her stepfather’s sexual abuse took place over a fifteen-year period beginning when C was five years old. By the time C reached eleven years of age, appellant’s abuse had progressed to sexual intercourse. Appellant continued to have sexual intercourse with C on a frequent basis until she was twenty years old and reported the crime.

On 21 June 1994, appellant was questioned by Special Agent (SA) Cristobal Hernandez, of the United States Army Criminal Investigation Command. During this questioning, appellant admitted that he had a sexual relationship with his stepdaughter, C. Specifically, appellant admitted that when C was about thirteen to fourteen years old she would “play” with his crotch and penis area. He stated this conduct went on for about a year to a year and a half. Appellant acknowledged that when C turned fourteen, he had sexual intercourse with her. Then, after appellant returned from a tour in Korea, he again had sexual intercourse with C. At this time C was fifteen to sixteen years old. Appellant stated that the last time he had engaged C in sexual intercourse was six or seven months before making the admissions to SA Hernandez.

That same month, SSG Young retained the services of Mr. Cohen, an experienced, Frankfurt, Germany-based civilian defense counsel. Military defense counsel also became involved in appellant’s representation at about the same time.

Additional facts necessary to the disposition of this case are set out below.

I. Failure to Grant Continuance for Substitute Counsel

On 16 March 1995, charges were preferred against appellant. On 27 March 1995, an Article 32, UCMJ, investigation was held. Both Mr. Cohen and detailed military defense counsel, Captain (CPT) Boyd, represented SSG Young. Charges were referred to trial on 1 May 1995. The court-martial was scheduled for trial in Germany on 8 May. Mr. Cohen filed his notice of appearance on 7 May, contingent upon the court granting a continuance until 21 June 1995. The continuance was granted. On 17 June 1995, Mr. William Lumpkin, a civilian defense attorney residing in the United States, called Mr. Cohen. Mr. Lumpkin notified Mr. Cohen that he (Lumpkin) had consulted with appellant. That same day, Mr. Cohen notified trial counsel that he might seek to withdraw [721]*721as counsel because SSG Young wished to hire different civilian counsel.

Two days later, Mr. Cohen asked the military judge for an immediate Article 39(a), UCMJ session so that he could withdraw as counsel and request a continuance to allow SSG Young additional time to retain Mr. Lumpkin. To accommodate the military judge’s trial schedule, Mr. Cohen’s motions to withdraw and for a continuance were heard on 21 June, the previously scheduled court-martial date. The military judge denied the requests.

The decision on a motion for a continuance is reserved to the sound discretion of the trial judge and will not be overturned on appeal absent an abuse of that discretion, even where failure to grant the continuance denies an accused the right to civilian counsel of choice. United States v. Miller, 47 M.J. 352, 358 (1997) (citing United States v. Thomas, 22 M.J. 57, 59 (C.M.A.1986)); United States v. Sharp, 38 M.J. 33, 37 (C.M.A. 1993); see United States v. Powell, 49 M.J. 220, 224 (1998); United States v. Weisbeck, 48 M.J. 570, 575 (Army Ct.Crim.App.1998). “An ‘abuse of discretion’ exists where ‘reasons or rulings of the’ military judge are ‘clearly untenable and deprive a party of a substantial right such as to amount to a denial of justice’; it ‘does not imply an improper motive, willful purpose, or intentional wrong.’ ” Miller, 47 M.J. at 358 (citing United States v. Travers, 25 M.J. 61, 62 (C.M.A. 1987)); see generally United States v. Mosley, 42 M.J. 300, 303 (1995).

“[T]he right to counsel of choice is not absolute.” Thomas, 22 M.J. 57, 59 (C.M.A. 1986) (citing Morris v. Slappy, 461 U.S. 1, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983)); United States v. Kelley, 40 M.J. 515, 516 (A.C.M.R.1994) (citing United States v. Redding, 11 M.J. 100 (C.M.A.1981)); United States v. Greenwald, 37 M.J. 537, 539 (A.C.M.R.1993) (citing United States v. Ettleson, 13 M.J. 348, 354 (C.M.A.1982)); United States v. Davis, 36 M.J.

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Bluebook (online)
50 M.J. 717, 1999 CCA LEXIS 94, 1999 WL 247223, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-young-acca-1999.