United States v. Burton

Opinion of the Court Darden, Chief Judge: The Court granted two issues resulting from a general court-martial conviction of Specialist Four Burton for two assaults and violation of a general regulation. We address first the contention that the pleas of guilty were improvident. The foundation for this contention is that in informing Specialist Burton of the rights his guilty plea waived, the military judge failed to comply with this Court’s decision in United States v Care, 18 USCMA 535, 40 CMR 247 (1969). The Care opinion declares: “Further, the record must also demonstrate the military trial judge or president personally addressed the accused, advised him that his plea waives his right against self-incrimination, his right to a trial of the facts by a court-martial, and his right to be confronted by the witnesses against him; and that he waives such rights by his plea. Boy-kin v Alabama, supra. Based upon the foregoing inquiries and such additional interrogation as he deems necessary, the military trial judge or president must make a finding that there is a knowing, intelligent, and conscious waiver in order to accept the plea.” [Id., at pages 541— 542.] The providency inquiry in this case was conducted only a few days after our guidelines in Care applied to other cases. The inquiry covers some eight pages of the record. The appellant contends that nowhere in the inquiry did the military judge inform the appellant that the latter’s plea waives his right against self-incrimination, that such a plea waives a trial of the facts by a court-martial, and that the plea waives the right to confront the witnesses against him. — 115 — At the time the judge conducted the inquiry into the providency of the plea he had already questioned the appellant about the latter’s election to be tried by military judge alone instead of by a military jury. In connection with his explanation of the consequences of that election, the judge fully explained to the appellant that the latter had the right to have his guilt or innocence decided by a military jury. The analogy between this advice and the Care requirement for information about the right to trial of the facts by court-martial is not exact, but this advice does tend to reassure us that the appellant knew of his right to have a jury decide his guilt. The military judge did not use the words “self-incrimination” and he did not use the words “confront the witnesses” that appear in the Care opinion. The military judge did declare, however, that the accused had the right to plead not guilty and that if he pleaded not guilty the Government had the burden of proving his guilt beyond a reasonable doubt. The judge also explained that in providing such proof the Government must come forward with “evidence” and that the appellant had the right to confront that “evidence.” As appellate defense counsel point out, “evidence” is a broad term covering not only testimony but real evidence as well. We agree that the term is not synonymous with “witnesses,” but it is a more inclusive term. The judge’s use of this word instead of “witnesses” is not enough for us to declare the plea improvident. Similarly, implicit in the judge’s explanation about the appellant’s right to plead not guilty and the Government’s burden if he did so is the thought that the appellant was not required to provide any of the proof of his guilt. At the time of the trial the appellant was 23 years old, he had completed two years of college, and his intelligence test scores placed him in the “bright” to “superior” range. We therefore have no reason to believe that he misunderstood the significance of the military judge’s questions. The inquiry the judge conducted here is far from an exemplary compliance with what we had in mind in Care. Our Care opinion represented our attempt to apply to military trials the same providency inquiry objectives enunciated by the Supreme Court of the United States v McCarthy v United States, 394 US 459, 22 L Ed 2d 418, 89 S Ct 1166 (1969), and Boykin v Alabama, 395 US 238, 23 L Ed 2d 274, 89 S Ct 1709 (1969). Currently, most military judges appear to be conducting these inquiries in an admirable way. The combination of all the circumstances obtaining here causes us to conclude that the appellant’s plea was informed and voluntary within the meaning of McCarthy, Boykin, and Care. We believe no useful purpose would be served by reversing because the judge’s phraseology did not exactly duplicate that of the Care opinion. The second issue relates to a speedy trial. The appellant did not raise this issue in his pleadings before the United States Army Court of Military Review or in his petition for grant of review by this Court. Instead, we specified the speedy trial issue in our grant of review of the case. On a speedy trial issue, the Government’s accountability runs from the date the accused is re-strained or from the date of the “formal presentment” of charges, whichever is earlier. United States v Williams, 16 USCMA 589, 37 CMR 209 (1967), and United States v Williams, 12 USCMA 81, 82, 30 CMR 81 (1961). In this case, the date of charges and the date of confinement are the same, May 9, 1969. The offenses for which the appellant was tried allegedly occurred in Vietnam on December 20, 1968. The trial occurred on October 7, October 29, and November 21, 1969. The investigating officer held an Article 32 hearing on June 4, 1969, after having received the case on May 14. Other persons at Fort Dix, New Jer — 116 — sey, with responsibilities for military justiee had sought from the Army World Wide Locator Service the present location of the witnesses who had been in Vietnam at the time of the offenses. They also requested from Vietnam a copy of the directive the appellant allegedly violated. On May 27, the Army personnel office in St. Louis responded that the witnesses were still in Vietnam, still assigned to the same units. Efforts to secure a copy of the Vietnam directive continued after the Article 32 hearing on June 4. The investigating officer received copies of the directive from Vietnam on July 3. Although the progress from that date until September 2, the date the commanding general referred the case for trial by general court-martial, was not fast, it was not so slow as to indicate either gross negligence or callous indifference. One of the longer delays in this period was attributable to discovery of the need for amending the charges in order that they adequately allege offenses. Looking back, one is tempted to say that a month could have been saved by proceeding only with the more serious charges of assault. The Manual for Courts-Martial, United States, 1969, provisions, however, prescribe the general rule that all charges against an accused should be tried at a single trial (paragraphs 30g and 33h), subject to the qualification that charges for minor derelictions should not be joined with charges for serious offenses. Paragraph 26c, Manual, supra. The directive in question concerns possession of unauthorized privately-owned weapons. We cannot say that this was a minor dereliction of the kind paragraph 26c contemplates. In the absence of a pretrial confinement so long as to be wholly unreasonable and inexplicable or of other circumstances constituting prejudice per se, the Government may show that Burton has not been harmed by the delay. See United States v Pierce, 19 USCMA 225, 41 CMR 225 (1970); United States v Broy, 14 USCMA 419, 34 CMR 199 (1964); United States ex rel Solomon v Mancusi, 412 F2d 88 (CA 2d Cir) (1969); United States v DeLeo, 422 F2d 487 (CA 1st Cir) (1970), certiorari denied, 397 US 1037, 25 L Ed 2d 648, 90 S Ct 1355 (1970); Harling v United States, 401 F2d 392 (CA DC Cir) (1968), certiorari denied, 393 US 1068, 21 L Ed 2d 711, 89 S Ct 725 (1969). Instead of relying on a presumption of prejudice, defense counsel in this case allege specific preju-dice in that (1) the psychiatrist and the psychologist who examined the appellant were hindered in their diagnoses because of the delay; (2) the witnesses were unavailable until the actual trial; and (3) a change in the appellant’s trial defense counsel was required. We consider first the claim about the handicap in the mental examination. At trial, defense counsel attempted an offer of proof that if the psychiatrist and psychologist could have examined the appellant earlier their diagnoses would have been more certain. The judge elected to notice judicially that the more time that elapses between an offense and the date of a mental examination, the more difficult is a diagnosis of a mental condition existing at the time of the offense. Government counsel point out that the psychiatrist examined the appellant on August 29 and September 5,1969, that the psychologist examined him on October 20, 1969, and that there is no showing that the lateness of these examinations resulted from the delay in the trial. The psychiatric and the psychological testimony was offered only in extenuation and mitigation. The testimony of the psychiatrist fails to reflect any uncertainty of his diagnosis. The psychologist testified he was very confident in his diagnosis. Since the appellant was constantly available at Fort Dix from May 9, the examinations these officers conducted apparently could have been made at any time after that date and the lateness of the examination seems — 117 — unrelated to the slowness in the processing of the case. After the witnesses were brought from Vietnam for the trial, the appellant requested a continuance to complete his interviews of them. A continuance for that purpose probably would have been necessary even if the trial had been reached as fast as possible. While memories of events are undoubtedly affected by the lapse of 10 or 11 months, here no suggestion of unreliability appears. A change in trial defense counsel also occurred. Captain Denison began the defense and Captain Bevan completed it. The record fails to show any objection by the appellant to Captain Denison’s not completing the defense or that the appellant opposed having Captain Bevan defend him. The appellant stated on the record that he wished Captain Bevan to represent him. After hearing all the evidence the military judge commented on the “several periods of inactivity for which no one should be happy,” but concluded that the Government moved “within reasonably diligent limits.” Making some allowance for the complications resulting from trial in the United States for offenses committed overseas, we find that the judge’s determination was not so unreasonable as to require reversal. We are deeply concerned, however, by another aspect of this case. On three occasions beginning on June 2, 1969, the defense counsel moved for a prompt disposition of the charges. The appellant received no response to any of the three motions. The investigating officer apparently placed the first motion in the file and forgot about it until September. Failure of the investigating officer and his superiors to furnish the appellant and his counsel a response to their motion for a prompt trial is more than discourteous, it is a neglect of duty. When the defense alertly avoids what could otherwise be a waiver of the speedy trial issue by urging prompt trial, the Government is on notice that delays from that point forward are subject to close scrutiny and must be abundantly justified. Although we consider inexcusable the neglect in not responding to the request for speedy trial with at least an explanation of why the request was denied, we are satisfied in this case that if we construe the failure to respond as a denial, the denial was based on reasonable grounds. Appellate defense counsel urge us to promulgate new guidance for determining compliance with the speedy trial provisions of the Sixth Amendment and Articles 10, 30(b), and 33, Uniform Code of Military Justice, 10 USC §§ 810, 830, and 833. In United States v Hounshell, 7 USCMA 3, 21 CMR 129 (1956), this Court stated that Article 10 of the Code reiterated the speedy trial guarantee of the Sixth Amendment. An obvious question is whether the Sixth Amendment requires a more prompt trial than does Article 10. Many decisions of the Article III courts applying the constitutional speedy trial guarantee deal with delays of several years between indictment and trial, typically with the defendant free on bail. See, e.g., United States v DeLeo, supra, and cases cited in United States ex rel Solomon v Mancusi, supra. These decisions provide little assistance in deciding whether immediate steps have been taken to try an accused member of the armed forces who has been confined before trial. We assume for present purposes that the requirements of Article 10 are more rigorous. In some situations the length and circumstances of pretrial confinement can be prejudicial in them-selves. United States v Keaton, 18 USCMA 500, 40 CMR 212 (1969). In the ordinary case, however, the time between confinement and trial is only one of the factors to be considered. United States v Hawes, 18 USCMA 464, 40 CMR 176 (1969). As applied by Article III courts, these other factors are (1) the reasons for the delay; (2) — 118 — prejudice to the accused; and (3) whether the accused waived his rights. See United States ex rel Solomon v Mancusi, supra. The opinion in Hounshell, supra, reviewed the legislative history of Article 10 and concluded that Congress had not adopted the practice of some States under which an accused is automatically discharged if he is not brought to trial within a specified time after being charged. That history remains unchanged. For that reason we are hesitant to apply rigid time limits. Each case still must depend on its own facts and circumstances. See United States v Goode, 17 USCMA 584, 586, 38 CMR 382 (1968). For offenses occurring after the date of this opinion, however, we adopt the suggestion of appellate de-fense counsel that in the absence of defense requests for continuance, a presumption of an Article 10 violation will exist when pretrial confinement exceeds three months. In such cases, this presumption will place a heavy burden on the Government to show diligence, and in the absence of such a showing the charges should be dismissed.1 Similarly, when the defense requests a speedy disposition of the charges, the Government must re-spond to the request and either proceed immediately or show adequate cause for any further delay. A failure to respond to a request for a prompt trial or to order such a trial may justify extraordinary relief. See Petition of Provoo, 17 FRD 183, 200 (1955), affirmed, 350 US 857, 100 L Ed 761, 76 S Ct 101 (1955). The decision of the Court of Military Review is affirmed. Judge Quinn concurs. Footnotes [1] At this time we need not determine whether the provisions of Article 10, Uniform Code of Military Justice, 10 USC § 810, are so coterminous with the Sixth Amendment right to a speedy trial as to make dismissal of a charge for violation of the Article subject to the same consequences as dismissal of a charge for violation of the constitutional provision. See United States v Boehm, 17 USCMA 530, 38 CMR 328 (1968).