UNITED STATES, Appellant v. JOHN C. MASSEY, Staff Sergeant, U. S. Air Force, Appellee, 14 C.M.A. 486

Opinion of the Court Quinn, Chief Judge: Among other offenses, the accused was charged with three specifications of carnal knowledge of his then six-year-old daughter, in violation of

Article 120, Uniform Code of Military Justice, 10 USC § 920. He was convicted of the lesser offense of taking indecent liberties with a minor. The court-martial imposed a sentence which included a dishonorable discharge and confinement at hard labor for six years. The findings of guilty and the sentence were approved by the convening authority, but reversed by a board of review on the ground the accused was prejudiced by denial of an application to continue the trial until requested military counsel could return from emergency leave. Pursuant to

Article 67 (b) (2) of the Uniform Code of Military Justice, 10 USC § 867, The Judge Advocate General of the Air Force asked this Court to review the correctness of the board of review’s determination. The accused was confined at Stead Air Force Base Detention Center on February 21, 1963. Five days later, an investigation was begun under the provisions of

Article 32 of the Uniform Code, 10 USC § 832. The accused was represented by Captain Herbert J. Santos, a qualified military lawyer, specifically requested by him. From time to time the investigation was recessed for various reasons, including compliance with a request by the Investigating Officer for psychiatric examination of the accused. It was terminated on April 19, with a recommendation for trial by general court-martial. On May 6, with some modifications recommended by the staff judge advocate, the charges were formally referred for trial to a general court-martial.

Captain Santos was the appointed defense counsel and First Lieutenant Eldon D. Roberts was the appointed assistant defense counsel. By letter dated May 13, Harry A.

Busscher, Esquire, an attorney with offices in nearby Reno, Nevada, advised Stead Air Force Base he had been retained as counsel to represent the accused “in his General Court-Martial trial which is scheduled for the near future.” He maintained his court calendar was “completely filled” until July 11; and he requested postponement of the accused’s case to the period of July 11 through July 19, when his calendar would “be clear.” The request was forwarded to the convening authority at Mather Air Force Base, California.

On May 21, the convening authority denied the request for so long a delay for several reasons, including the fact that two “probable essential government witnesses” would be discharged from the Air Force and “away from the area of trial at the time” requested. However, he approved a postponement to the week of June 17, 1963. At the same time, he indicated that if it was agreeable to counsel the court-martial could be held on Saturday. Mr. Busscher wrote the convening authority on May 23 acknowledging receipt of his ruling.

He said that one of his jury trials, scheduled for the week of June 17, had been cancelled and he would “be able to proceed with the [accused’s] trial ... at that time.” Between the time he was retained as civilian counsel and June 8, Mr. Bus-scher had “at least eight lengthy telephonic conferences” with Captain Santos about the case. They also had “one fairly lengthy conference” in person at Stead Air Force Base. Lieutenant Roberts, the appointed assistant defense counsel, did not participate in these conferences and knew little about the case.

On Friday, June 7, a new general court-marital was constituted by the convening authority. All unarraigned cases before the court-martial to which the accused’s case had been referred were transferred to it. Lieutenant Roberts was designated defense counsel for this court-martial. Captain Santos telephoned Lieutenant Roberts on Saturday and told him of the substitution. The change was apparently considered necessary to solve a problem confronting Captain Santos. His father was seriously ill, and the Captain requested emergency leave. According to Mr.

Busscher, “a bit of a sword of Damocles hung over the request.” He explained this statement as follows: “. . . At that time he contacted me and I said that naturally I would agree to proceed with the trial. Pardon me. At that time I stated that I would not keep Captain Santos from going on his emergency leave. However, the continuance of the trial would he over my objection, and I intended to renew my request for a continuance at the time of the trial.

Captain Santos was then granted his emergency leave, and he is still on it, and- Lieutenant Roberts was assigned as military counsel.” [Emphasis supplied.] “[A] few days subsequent to 11 June” there was submitted to trial counsel a very brief request, dated June 11 and personally signed by the accused, for a delay in trial to June 24 “in order that requested military defense counsel, Captain Herbert J.

Santos, . . . presently on emergency leave, may be present for trial.” By telegram, the convening authority denied the request “at this time” because it did not give “specific reasons for [the] necessity” of Captain Santos’ presence. About this time, Mr. Bus-scher apparently had three other civil cases go off his personal trial calendar, and he was “available” to try the accused’s case during “the entire week of the 24th.” However, no effort was made to renew the application with a statement of the reasons the accused considered the presence of Captain Santos necessary for his defense.

Several days before the trial, two children involved in the case as witnesses for the Government were brought to Stead Air Force Base from Duluth, Minnesota, “so that both the trial counsel and the defense counsel would have time to interview” them. The record indicates the witnesses were in fact questioned by Mr. Busscher three days before trial. In addition, two “probable” Government witnesses were scheduled for separation from the Air Force. One of them, Captain John L. Green, a medical doctor, was due to depart Stead Air Force Base on the night of June 17; the other was to leave before the 24th.

On the argument of the motion, Mr. Busscher represented he had worked with Lieutenant Roberts “in the past” and had the “highest regard” for him, but he did not believe the Lieutenant had a “proper opportunity to prepare.” Yet, he admitted he had had “contact” with Lieutenant Roberts at least a week before trial. The record shows that on June 12, Lieutenant Roberts transmitted to trial counsel a synopsis of the expected testimony of Airman Campbell in support of a previous request by Captain Santos that Campbell be summoned as a defense witness.

The recitals in the synopsis indicate substantial familiarity with the probable defense. More importantly, while Lieutenant Roberts said be had done practically nothing as assistant defense counsel, he did not say or imply that he did nothing after his appointment as defense counsel, or that on the day of trial he was inadequately prepared to assist in the accused’s defense. Also, at no point in his lengthy argument, did Mr. Busscher indicate, or intimate, that he and associate civilian counsel, Mr. William Raymond, were not prepared to go to trial.

Nor did he contend that he needed or desired any information about the law or facts of the case that were possessed by Captain Santos. He asked that the case be continued until after Captain Santos’ return to duty only because it was “highly unfair” to compel the accused to go to trial without his specifically requested military counsel. At the end of counsel’s argument, which reviewed the facts recited above and referred to the opinion of this Court in United States v Tellier, 13 USCMA 323, 32 CMR 323, the law officer denied the motion.

He ruled that since the accused had “military counsel, for ten days, and . . . the services of his civilian attorneys for some period of time,” he could not “see how the accused could be . . . prejudiced” by being required to go to trial as scheduled without Captain Santos. The grant or denial of a continuance rests in the sound discretion of the law officer. United States v Rogan, 8 USCMA 739, 745, 25 CMR 243. That discretion is subject to review. United States v Plummer, 1 USCMA 373, 3 CMR 107; United States v Potter, 14 USCMA 118, 33 CMR 330.

On review, the crucial question is not whether the appellate authority, or another law officer, might have ruled differently, but whether in light of all the circumstances the ruling made was so unfair as to constitute an abuse of discretion resulting in prejudice to the accused. United States v Potter, supra. In reaching its conclusion that the law officer abused his discretion in this case, the board of review gave substantial weight to the decision in United States v Tellier, supra.

A comparison of the salient facts in Tellier and in this case indicates that Tellier is not at all determinative of the issue, in that the accused was not deprived of his right to have appointed military counsel assist his civilian counsel. Tellier 1. A new appointed defense counsel was substituted for Major John E. Kennedy, the accused’s appointed counsel, on the evening before trial. 2. The substitution was effected for the convenience of the Government. 3. Civilian counsel was not informed of the substitution before it was made, and he objected to it at the first opportunity after it was made. 4.

Civilian counsel represented he had had no opportunity whatsoever to consult with Major Kennedy, and he had been unable to read his own file on the case before trial because it had been “ ‘resting on Major Kennedy’s desk.’ ” [Id., at page 325.] 5. Civilian counsel had depended upon military counsel for assistance in determining the composition of the court-martial and in the challenge proceedings.

However, the new appointed defense counsel was not prepared to participate in the case and had to be excused. 6.As a result, the accused was deprived of his right to have an appointed military counsel assist his civilian counsel at trial. Massey 1.Lieutenant Roberts was substituted for Captain Santos ten days before trial. 2. The substitution was effected at the personal request, and for the benefit, of Captain Santos. 3. Civilian counsel was consulted by Captain Santos before the substitution and he agreed to it.

In fact, since his own trial calendar at that time left him free only for the week of June 17, he said “the continuance of the trial [as a result of Captain Santos’ emergency leave] would be over . . . [his] objection.” 4. Civilian counsel did not allege or imply he was not prepared to try the case. ■ He admitted he had eight telephone conferences with Captain Santos, and one lengthy conference with him in person. Similarly, Lieutenant Roberts did not allege that he was unprepared to assist civilian counsel. 5. Civilian counsel did not indicate he needed Captain Santos for any special reason.

While Captain Santos had represented the accused at the

Article 32 investigation, civilian counsel had personally interviewed the principal Government witnesses several days before trial. He also personally conducted the challenge voir dire of the court members, even before he moved for the continuance. 6. Civilian counsel had consulted with, and had the active assistance of, Lieutenant Roberts for at least a week. In addition, Lieutenant Roberts was retained as associate counsel and actively participated in the case. As the board of review marshalled the facts, it made out a case showing that a continuance would not have been inappropriate.

For example, it concluded there “would have been no inconvenience to the witnesses from Duluth, Minnesota, had a continuance been granted.” However, the question is “not what the law officer could have done, but whether he abused his discretion in what he did.” United States v Rogan, supra, at page 745; United States v James, 14 USCMA 247, 34 CMR 27. With due respect to the opinion of the board of review, we are constrained to conclude it scrutinized the law officer’s ruling within too narrow a focus.

The accused had been represented for at least a week by an appointed defense counsel, who, before trial, had consulted with accused’s civilian counsel and actively participated in preparation of the case; the accused’s civilian counsel had been in the case for more than six weeks, and had conferred on numerous occasions, in depth, with the previously appointed counsel; neither civilian counsel nor appointed military counsel indicated that he was not prepared to try the case on the scheduled day, or that Captain Santos had knowledge or information about the merits or procedure which he did not possess.

At the same time, the Government had made known to the defense, as early as May 21, that some of its witnesses were scheduled for separation from the service. In our opinion, on the facts presented to him, the law officer did not abuse his discretion in denying the motion for a continuance. The certified question is answered in the negative. The decision of the board of review is reversed, and the record of trial is returned to The Judge Advocate General of the Air Force for resubmission to the board of review for further proceedings consistent with this opinion.

The board of review concluded that this second witness was Airman Second Class David S. Campbell, who was called as a rebuttal witness by the prosecution. Campbell had been requested by the defence. The record shows affirmatively he was not the other Government witness who was to be discharged. When Mr. Busscher requested a delay in his cross-examination of Campbell, he indicated that Lieutenant Roberts was going to talk to another witness at noon; this witness was “a man who is leaving the service.” Obviously, Campbell was not this other witness.

Also, as early as May 21, it was anticipated that two government witness would be discharged from the Air Force before June 24. Trial counsel did not know Campbell was to be a witness until the defense requested him on June 6. It seems more likely that this other witness was Dr. Barry P. Norton, who, with Dr. Green, examined the accused’s daughter. But whoever the “probable” witness was, the undisputed fact is that he was expected to be discharged and away from the area by June 24, Mr. Busscher did not specify any date for Captain Santos’ return.

However, it may be inferred from the June 11 request that the trial be postponed to “approximately” June 24, that the Captain was expected to return by the latter date. On the argument of this appeal we were informed that Captain Santos, in fact, returned to Stead Air Force Base on June 21. The matter of inconvenience to Government witnesses was not adequately developed at trial. Considering the age of the witnesses, and the probability that school might be in summer recess, the board of review’s conclusion was not unjustified.