Petition for Writ of Certiorari — Wattenbarger v. United States
Supreme Court brief1986
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IN THE
Supreme Court of the Gnited States
OCTOBER TERM, 1985
BRENT C. WATTENBARGER
Petty Officer Third Class, U.S. Navy,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES
COURT OF MILITARY APPEALS
Davip C. LARSON
Commander, Judge
Advocate General’s
Corps (JAGC), U.S. Navy
Appellate Defense Counsel
Counsel of Record
J. CUNYON GORDON
Lieutenant, JAGC
U.S. Navy
Appellate Defense Counsel
Navy-Marine Corps
Appellate Review Activity
Washington Navy Yard
Washington, D.C. 20374
(202) 433-2297
PRESS OF BYRON 8S. ADAMS, WASHINGTON, D.C. (202) 347-8203
QUESTIONS PRESENTED
1. WHETHER the denial of counsel at a critical
stage of extended duration should be tested for harm-
less error under the standard of Chapman v. Cali-
forma?
2. WHETHER the denial of counsel for a period
of ninety-five days during which petitioner was de-
clared mentally incompetent and taken before suc-
cessive sanity boards is inherently prejudicial?
3. WHETHER the United States Court of Military
Appeals correctly applied the harmless error standard
of Chapman?
ii
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED .....scescssscessessseeseneeesnsserssseseees i
TABLE OF AUTHORITIES ........ssccsseccceseccsssecessceecceenees ill
OPINIONS BELOW ...cccccccscccccccsssccccccccccccccesssccccsesesccores 1
JURISDICTION ..ccocccccccccccccccccccccssscccccscsccesscccsescccssscorsees 2
CONSTITUTIONAL PROVISIONS INVOLVED ...---csseeeeeeseees 2
STATEMENT OF THE CASE ....cccccsesccseeeecesecceeeseseeeneees 2
REASONS FOR GRANTING THE PETITION .....cccceceseeeees 8
CONCLUBION cecccocccccccsccccccessonescesscssccoscosscosnsssscnanoscesses 17
APPENDICES:
A. Opinion of U.S. Court of Military
Appeals .......ssssscsscescersersrscssssscescsssnecnesensnesness la
B. Opinion of U.S. Navy-Marine Corps Court
Of Military Review ........c::sseccssssreeeeeerreeeeeeees 24a
C. Order of U.S. Court of Military Appeals
Denying Petition for Reconsideration ........... 39a
iil
; TABLE OF AUTHORITIES
CASES: Page
Ake v. Oklahoma, __ U.S. __, 105 S.Ct. 1087
ae undies 14
Brown v. Illinois, 411 U.S. 223 (1973) ......eeeeeee. 12
Caudill v. Peyton, 368 F.2d 563 (4th Cir. 1966) .. 14
Chambers v. Maroney, 399 U.S. 42 (1970)... 12
Chapman v. California, 386 U.S. 18
ATTN RE ERD SR 0 ii, 2
Coleman v. Alabama, 399 U.S. 1 (1970) we. 9 11
Davis v. Alaska, 415 U.S. 308 (1974) ou... 13
Estelle v. Smith, 451 U.S. 454 (1981) ......00....... 9, 10,11
Flanagan v. United States, 465 U.S. 259
ais cob cecedusiuunnesvaronene 8, 14
Geders v. United States, 425 U.S. 80 (1976) ........ . 18
Gilbert v. California, 388 U.S. 263 (1967) ........... 15, 16
Hamilton v. Alabama, 368 U.S. 52 (1961) .00..0...... 9
Harrington v. California, 395 U.S. 250 (1969) ..... 12
Herring v. New York, 422 U.S. 853 (1975) ow... 13
Holloway v. Arkansas, 485 U.S. 457 (1978) ......... 13
Kirby v. Illinois, 406 U.S. 682 (1972) wee 10
McKaskle v. Wiggins, 465 U.S. 168 (1984) 00... 14
Miltox v. Wainwright, 407 U.S. 371 (1972) 0... 12
Miranda v. Arizona, 384 U.S. 436 (1966) ............ 9
Powell v. Alabama, 287 U.S. 45 (1932) woe. 13
Timmons v. Peyton, 360 F.2d 327 (4th Cir.
ook akdukenvacekavkovessesoousnvs 14
United States v. Cronic, 466 U.S. 648 (1984) ....... 13
United States v. Gouveia, ___ U.S. __, 104 S.Ct.
ai icsehucs siacekkskcexesecdsbexeessneseeses 10, 12
United States v. Hasting, 461 U.S. 499 (1983) ..... 12
Umited States v. Morrison, 449 U.S. 361
a estussveduadensweve 11, 16
iv
Table of Authorities Continued
Page
United States v. Wade, 388 U.S. 218 (1967) ......... 9, 11
CONSTITUTION AND STATUTES:
U.S. CONST. amend. V1 anccccosccccscoccccccsescesscensesseess 2
10 U.S.C. § SEZ CIGBZ) ceeccccsccsccccsccccccccesceveesacovensese 7
10 U.S.C. § 827(b) (1982) — .........ccccccesersersrrrrecreorees 3
10 UBC. 8 BBE GCE) cavvccsccsscccsccccccscsesccscsevoeesensess a, 7
Cie Toe os: ene nese n 7
10 U.S.C. § 834 (1982) — ............cccrseseerereroonerecsesserees 7
10 U.S.C. § 930 (1982) — ............ccccccssecssnerrrrcroecees 7
10 U.S.C. § 9B4 (1982) — ...ececnessevcssersesseesvesscrerossereeee 7
QB U.S.C. § 12598) — .......-secvecccrescccssccrscereccscceceeners =
PRESIDENTIAL ORDERS
Manual for Courts-Martial, 1969 (Rev.)
PP, BEE) vc ccncsesenscecscnsevesnnenessessessirersconnvesnesics 3
Die G08. 2d sccceaneessncubcnuanesierteaphensaniavenséeds 4, 5, 6
IN THE
Supreme Court of the Gnited States
OCTOBER TERM, 1985
———_—--——
No. 85-
BRENT C. WATTENBARGER
Petty Officer Third Class, U.S. Navy,
Petitioner,
V.
UNITED STATES OF AMERICA |
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF
MILITARY APPEALS
Petty Officer Third Class Brent C. Wattenbarger,
U.S. Navy, respectfully petitions that a writ of
certiorari issue to review the judgment and opinion
of the United States Court of Military Appeals in this
case.
OPINIONS BELOW
The opinion of the United States Court of Military
Appeals (App. la) is reported at 21 M.J. 41 (C.M.A.
1985). The opinion of the United States Navy-Marine
Corps Court of Military Review (App. 24a) is reported
at 15 M.J. 1069 (N.M.C.M.R. 1983). The order of the
Court of Military Appeals dated January 10, 1986,
denying petitioner’s request for reconsideration (App.
39a) is reported at 21 M.J. 406 (C.M.A. 1986).
JURISDICTION
The judgment of the United States Court of Mili-
tary Appeals was entered cn November 18, 1985, af-
firming petitioner’s conviction of September 23, 1981.
The order denying petitioner’s request for reconsid-
eration was dated January 10, 1986. The jurisdiction
of this Court is invoked under 28 U.S.C. § 1259(3)
by filing this petition within 60 days of the order.
CONSTITUTIONAL PROVISIONS INVOLVED
The Constitution of the United States provides in
pertinent part:
Amendment VI: ‘In all criminal prosecu-
tions, the accused shall...
have the Assistance of
Counsel for his defense.”’
STATEMENT OF THE CASE
On December 4, 1980, petitioner was arrested by
Australian police in Exmouth, Australia, for offenses
committed that day and was locally confined until
December 9, 1980. (AE VI).' Qn that day he was
‘A motion to dismiss the charges based on the denial of the
right to the effective assistance of counsel was litigated at the
trial level. In support of the motion, petitioner and his counsel
entered into a stipulation of facts with the Government. This
stipulation was accepted as evidence on the motion by the trial
judge. (R. 15). It was attached to the record of trial as Appellate
turned over to the U.S. military authorities at U.S.
Naval Communications Station, Harold E. Holt, Aus-
tralia. He was confined at the brig there until De-
cember 22, 1980.
On December 12, 1980, the only judge advocate?
stationed aboard Harold E. Holt saw petitioner and
advised him of his rights to counsel. (R. 20).
Petitioner indicated he wanted no lawyer at that time.
Exhibit VI, and is attached hereto as an Appendix to Appendix
A. The enclosures referred to in the stipulation were attached
to the record of trial as Appellate Exhibit VII and accepted as
evidence by the court. (R. 25). The two will be referred to herein
as “AE VI” and “AE VII, enclosure __,” respectively.
° A judge advocate must be a graduate of an accredited law
school or a member of the bar of a Federal court or of the
highest court of a state and must be certified as competent to
perform such duties by the Judge Advocate General of the armed
service of which he or she is a member. Article 27(b), UCMJ,
10 U.S.C. § 827(b) (1982).
* Appellate Exhibit VII, enclosure 9, is the form the judge
advocate used to advise petitioner. Entitled Rights to Counsel
Under Paragraph 34(c), MCM, 1969 (Rev.), it provided:
You have the right to be represented by lawyer counsel at
an Article 32, UCMJ, [10 U.S.C. § 832, (1982)] pretrial in-
vestigation if you so request.
If you are represented by civilian counsel, he must be pro-
vided by you at your own expense and at no expense to
the United States Government.
If you desire military counsel of your own selection and that
counsel is reasonably available, that counsel will be provided
for you free of charge.
If you are not represented by civilian or individual military
counsel of your own selection, a military lawyer certified in
accordance with Article 27(b), UCMJ [10 U.S.C. § 827(b)
(1982)] will be detailed to represent you at the investigation.
(R. 20). On December 19, 1980, petitioner’s military
commander asked a psychiatrist to examine him to
determine his mental responsibility and his compe-
tence to stand trial.*
Dr. Karols, a forensic psychiatrist, examined
petitioner in the brig at Harold E. Holt. In a letter
dated December 21, 1980, he informed petitioner’s
commanding officer that petitioner did suffer from a
mental disease and did understand the nature of the
proceedings, but was incapable of conducting his de-
fense or cooperating intelligentiy in his defense. (AE
VII, enclosure 11.) Dr. Karols diagnosed petitioner as
* Paragraph 121 of the Manual for Courts-Martial, 1969 (Rev.)
allowed any number of interested parties to cause an inquiry
into the sanity of an accused at different stages of the criminal
process. A ‘‘board”’ to conduct such an inquiry must contain at
least one physician, and at least one member ‘“‘should be” a
psychiatrist. The board had to make “separate and ‘listinct find-
ings” to each of the following questions:
At the time of the alleged criminal conduct did» the ac-
cused have a mental disease or defect? The terms? ‘menta!
disease or defect’ do not include an abnormality mfnifested
only by repeated criminal or otherwise antisocial fonduct.
What is the clinical psychiatric diagnosis?
Did the accused, at the time of the alleged crigtinal conduct
and as a result of such mental disease or defctj lack sub-
stantial capacity to appreciate the criminality
Did the accused, at the time of the alleged criminal con-
duct and as a result of such mental disease gr defect, lack
substantial capacity to conform his conduct go the require-
ments of law?
Does the accused possess sufficient me capacity to
understand nature of the proceedings against him and to
conduct or cooperate intelligently in his defense?
suffering from manic-depression, and recommended
four weeks of hospitalized treatment.
In his formal report of the board’s findings, Dr.
Karols revealed that he had examined many items,
among them logs maintained by the brig guards. He
reported later that petitioner “‘has also made numer-
ous requests to see the Legal Officer.’’ (AE VIII, at
4.)
On December 22, 1980, petitioner was taken, under
restraint, to Tripler Army Medical Center, Hawaii.
He underwent psychiatric evaluation there from De-
cember 24, 1980, to January 24, 1981, with a view
toward establishing his competence to stand trial. (AE
VII, enclosure 17.) During that period a second sanity
board convened on January 13, 1981. This board, com-
posed of three physicians, again found petitioner to
lack capacity to stand trial and to have a menial
disorder. Upon petitioner’s discharge from Tripler on
January 24, 1981, his condition was diagnosed as un-
changed, and the recommendation was for further
treatment. In response to a subsequent inquiry for
board results tailored to Paragraph 121 (see supra
n.4), Tripler responded that petitioner, at the time of
the alleged offenses, ‘“‘did lack some substantial ca-
pacity in retaining a specific intent.’”’ (AE VII, en-
closure 25.) During this period, at no time was
petitioner provided counsel.*
> The United States Navy-Marine Corps Court of Military Re-
view found as fact that petitioner adamantly requested counsel
on December 17, 1980, after his initia! contrary indication. App.
at 27a.
* In the area of Tripler Army Medical Center, Hawaii are at
least three military installations where no fewer than 30 judge
On January 24, 1981, petitioner was medically evac-
uated, again under restraint and with guard escorts,
to National Naval Medical Center, Bethesda, Mary-
land. During the period from January 26, 1981, to
March 10, 1981, while petitioner underwent psychi-
atric treatment and evaluation, he was not free to
leave the ward. (R. 28.) Still he saw no counsel.’ Upon
petitioner’s discharge on March 10, 1981, the treating
physician found him competent to stand trial but rec-
ommended that he be administratively separated from
the service as “‘unsuitable.’’* Jd. That day petitioner
was transferred from the National Naval Medical Cen-
ter to the brig at Marine Corps Development and
Education Command, Quantico, Virginia. On March
26, 1981, petitioner consulted for the first time with
his appointed defense counsel, assigned from the Na-
val Legal Service Office, Guam.
Petitioner was tried by a general court-martial
which convened on September 16, 1981, on Guam. At
trial petitioner presented a defense of lack of or di-
minished mental capacity, presenting some evidence
from the Tripler sanity board of January 13 as well
as extensive family ard childhood history. Petitioner
advocates were stationed: The Naval Legal Service Office, Pear!
Harbor, Hawaii; Marine Corps Air Station, Kaneohe Bay, Ha-
waii, and Fort Shaffter, Hawaii.
’ The Washington, D.C., metropolitan area, where the National
Naval Medical Center is located, has the highest density of judge
advocates of any metropolitan area in the United States.
* Administrative discharge for his medical condition is among
the options available to the military commander, as are dismissal
of the charges, suspension of the proceedings, and referral to
court-martial, based on the results of the sanity board. Manual
for Courts-Martial, 1969 (Rev.), para. 121. See supra n.4.
called Dr. Terry Chamberlain, a member of the sanity
board that evaluated him at Tripler Army Medical
Center, who testified to his opinion that at the time
of the alleged offenses, petitioner lacked the substan-
tial capacity to conform his conduct to the require-
ments of the law. (R. 152-176; R. 162.)
The Government rebutted by calling two of the
other physicians who had examined petitioner at the
command-ordered sanity inquiries in Australia. In sur-
rebuttal, petitioner then offered through a stipulation
the testimony of Dr. Delano Collins, also a psychia-
trist and a member of the Tripler sanity board, whose
opinion was that petitioner ‘lacked substantial ca-
pacity to appreciate the criminality of his conduct at
the time of the alleged offense and also lacked sub-
stantial capacity to conform his conduct to the re-
quirements of the law. He lacked the ability to form
a specific intent to commit a crime.’’ (Defense Exhibit
G; R. 242.) Nonetheless, he was convicted of house-
breaking, assault with intent to commit rape, and
assault with a means likely to produce grievous bodily
harm, in violation of Articles 130 and 134, Uniform
Code of Military Justice, 10 U.S.C. §§ 930 and 934,
respectively. The court sentenced him to confinement
for 5 years, to forfeiture of all pay and allowances,
to reduction to the lowest enlisted pay grade, and to
a bad-conduct discharge.’
The Federal constitutional question was litigated at
trial by a motion to dismiss the charges for denial of
* The court had been properly convened by an officer exer-
cising general court-martial jurisdiction over petitioner. Article
22, UCMJ, 10 U.S.C. § 822 (1982). The charges were properly
referred to this court-martial. Articles 32, 33, and 34, UCMJ,
10 U.S.C. §§ 832, 833, and 834 (1982).
the right to counsel, and has been continuously liti-
gated throughout the appellate process. The issue
granted by the United States Court of Military
Appeals as a prerequisite to this Court’s jurisdiction
was:
WHETHER APPELLANT WAS DENIED
EFFECTIVE ASSISTANCE OF COUNSEL
BY HIS COMMAND.
REASONS FOR GRANTING THE PETITION
From December 9, 1980 until March 26, 1981,
petitioner was shuttled around the world, a prisoner,
from one sanity board to another, completely at the
mercy of the Government’s might, with no advocate
to assist him or to call “time out.”
The United States Court of Military Appeals found
that the period from December 19, 1980, to March
26, 1981, during which charges were pending against
petitioner and he was held incommunicado, was a
“critical stage’ in the proceedings against petitioner.
(App. at 9a.) The court found that although the denial
of the assistance of counsel was constitutional error,
the error had to be tested for prejudice under the
standard enunciated in Chapman v. California, 386
U.S. 18 (1967). In so doing, the court broadened the
reach of the “constitutional harmless error’’ doctrine
into an area this Court has not squarely addressed.
This Court has held that some constitutiona! errors
are not amenable to tests for prejudice and in such
cases, reversal is made without regard to prejudice.
See Flanagan v. United States, 465 U.S. 259 (1984).
Moreover, where the denial of counsel continues
over a three and one-half month period during which
petitioner was utterly denied counsel, the United
States Court of Military Appeals erred in requiring
petitioner to demonstrate prejudice. While the court
paid “‘lip service’ to the requirement of Chapman
that the burden is on the Government to establish
that the error was harmless (App. at 23a), the court,
in fact, looked to petitioner to demonstrate the spe-
cific prejudice, as had the court of the first instance.
App. at lla.
I. THE DENIAL OF COUNSEL AT A CRITICAL
STAGE OF EXTENDED DURATION SHOULD NOT
BE TESTED FOR HARMLESS ERROR UNDER
THE STANDARD OF CHAPMAN V. CALIFORNIA.
1. In United States v. Wade, 388 U.S. 218 (1967),
this Court held that the right to the assistance of
counsel guaranteed by the sixth amendment attaches
before trial, at certain “‘critical stages.’’ Such stages
are identified by examining whether counsel is nec-
essary to protect any meaningful rights necessary to
a fair trial. Id. at 227.
Stages such as custodial interrogation (Miranda v.
Arizona, 384 U.S. 436 (1966)), post-indictment lineup
(Wade), arraignment in a capital case (Hamilton v.
Alabama, 368 U.S. 52 (1961)), and preliminary hear-
ings (Coleman v. Alabama, 399 U.S. 1 (1970) (plurality
opinion)), have been held to be such critical stages.
In Estelle v. Smith, 451 U.S. 454 (1981), this Court
held that where the petitioner’s fifth amendment right
against self-incrimination was at stake in a psychiatric
hearing, the petitioner had a right to the assistance
of counsel prior to that hearing, a critical stage.
2. Although the “stages’’ this Court has identified
have been discrete entities, this Court’s approach to
10
the question obviously informed the court below.
Judge Cox, speaking for the court, found that charges
were pending against petitioner from December 19,
1980, and that the entire period from December 19,
1980, to March 26,, 1981, was a “critical stage’’ be-
cause of petitioner’s status as a mental incompetent
and because of the potential for prejudice to
petitioner’s right to a fair trial.
In doing so, the court found that the ‘‘adversary
judicial proceedings” that trigger the sixth amend-
ment’s counsel protections had begun. See Kirby v.
Illinois, 406 U.S. 682, 688 (1972) (plurality opinion).
Heretofore, this Court has not had occasion to ex-
amine a “critical stage’’ of this extended a duration,
during which other constitutional protections are im-
plicated.'° The sanity boards before which petitioner
appeared, unaided by counsel, required petitioner to
give information of a ‘‘cestimonial’’ nature, thereby
implicating the protections of the fifth amendment’s
self-incrimination prohibition. See Estelle v. Smith, 451
U.S. 454, 463-465 (1981). The inquiries were held at
the request of petitioner’s commanding officer, with
a view toward determining his competence to stand
trial, as part of the prosecutorial machine that had
been put in motion. For this extended critical stage,
In United States v. Gouveia, _—_U.S. —_, 104 S.Ct. 2292
(1984), the Court overruled a Ninth Circuit decision dismissing
indictments in the cases of four indigent Federal prison inmates
who had been administratively segregated for an exteuded pe-
riod of time following a murder, without appointment of counsel.
This Court examined the delay for its potential for prejudice
and found none of any moment. It was significant to this Court
that the inmates were not questioned during the period, had
access to visitors, and could have retained counsel.
11
which is more aptly described as a series of critical
stages, petitioner was never once afforded even min-
imal contact with an individual to provide him counsel.
3. While this Court has never expressly articulated
it, a common thread that runs through the critical
stages this Court has identified is that they have been
discrete and severable, thus amenable to analysis of
their effect on other stages of a prosecution. Wade’s
post-indictment lineup was a pre-trial event with a
discernable beginning and end, with a finite group of
parties involved, and likely to affect an equally finite
segment of a trial—the in-court identification. To a
great extent the isolated event and its impact can be
quantified and its effect can be weighed against the
strength of the Government’s case. This Court simi-
larly found that the state of Alabama’s preliminary
hearing in Coleman v. Alabama, 399 U.S. 1 (1970),
at which the State could call witnesses and the
defendant may, but need not, advance defenses, was
such a stage. Denial of counsel there, too, was tested
under the Chapman doctrine. This stage has the same
features as the Wade line-up.
This post-indictment, State-ordered interview in Es-
telle v. Smith, supra, gwhere a psychiatrist called upon
the defendant to make compelled testimonial state-
ments, was a stage requiring the guiding hand of
counsel. The affirmative use by the State of the
defendant’s statements as evidence of future danger-
ousness at the sentencing phase of a capital murder
trial was held to be prejudicial. If the State had made
absolutely no use of the confrontation, as in United
States v. Morrison, 449 U.S. 361 (1981), a different
result would have obtained. Again, these events have
12
features similar to those of the line-up and the pre-
liminary hearing: The event is discrete, and the part
of the trial it affects is fairly discernable. Chapman
presaged this interpretation when it noted the “‘work-
able’”’ quality of the test. 386 U.S. at 24."
4. Rather than distill a common theme from these
cases, the United States Court of Military Appeals
applied the same test for prejudice to an extended
and unjustified denial of counsel that this Court ap-
plies to discrete constitutional violations, with little
support from this Court’s precedents.” It also ignores
the development of a line of cases holding that some
errors are either not amenable to such a test or are
'' The harmless error test of Chapman is particularly suited
to errors that can be carved out of the proceeding, leaving a
trial mosaic that can be scrutinized for its taint. Thus, this Court
had occasion to apply it to prosecutorial comment on the right
to remain silent at trial (United States v. Hasting, 461 U.S. 499
(1983)), to Bruton violations (Brown v. Illinois, 411 U.S. 223
(1973)), and (Harrington v. California, 395 U.S. 250 (1969)) and
to use of a counsel-less confession (Milton v. Wainwright, 407
U.S. 371 (1972)). This restricted application is consistent with
Chapman’s original rationale that ‘‘there may be some consti-
tutional errors which in the setting of a particular case are so
unimportant and insignificant that they may ... deemed harm-
less.” 386 U.S. at 22.
‘2 This Court did not have to reach the issue of what remedy
would be appropriate to such an error in Gouveia, supra, n.9,
because of its adverse resolution of the critical stage issue. This
Court has had no other opportunity to address a denial of this
magnitude. Even Chamers v. Maroney, 399 U.S. 42, 54 (1970)
where the Court dec'ined to fashion a per se rule requiring
reversal for “‘tardy’’ a,pointment of counsel, did not address a
denial of counsel during periods where the accused was placed
in confrontation with the State.
i Raeriy ie Ae
13
so inherently prejudicial that specific prejudice need
not be shown.
Il. THE DENIAL OF COUNSEL FOR A PERIOD OF
NINETY-FIVE DAYS DURING WHICH
PETITIONER WAS DECLARED MENTALLY IN-
COMPETENT AND TAKEN BEFORE SUCCES-
SIVE SANITY BOARDS IS INHERENTLY
PREJUDICIAL.
1. This Court has uniformly found constitutional
error without any showing of prejudice when counsel
was either totally absent or prevented from assisting
the defendant during a critical stage of the proceeding
United States v. Cronic, 466 U.S. 648, 659 n.25 (1984).
Hence, this Court reversed in Geders v. United States,
425 U.S. 80 (1976), where the trial judge prevented
the petitioner from consulting with counsel ‘‘about
anything’ during a 17-hour overnight recess between
his direct and cross-examination. In so doing, the
Court did not address the prejudice to this petitioner,
but harkened back to the importance of the role of
counsel first explicated in Powell v. Alabama, 287
U.S. 45 (1932).
Herring v. New York, 422 U.S. 853 (1975), pre-
sented the Court with a State statute that allowed
the trial judge the discretion to prevent parties from
presenting summation in nonjury trials. The Court
analyzed the statute in terms of its derogation of the
right to the assistance of counsel, adverting to the
premise of our adversary system that partisan ad-
vocacy will promote its ultimate objectives. Jd. at 862.
Likewise, a denial of the right to effective cross-ex-
amination was considered constitutional error of the
“first magnitude” in Davis v. Alaska, 415 U.S. 308,
318 (1974), as was the right to conflict-free counsel
14
in Holloway v. Arkansas, 485 U.S. 475 (1978). Re-
versals occurred in those cases because prejudice was
presumed. See also Flanagan v. United States, 465
U.S. 259 (1984) (right to counsel of one’s choice is
such a right). In addition, the denial of constitutional
rights in some circumstances is simply not “‘amenable
to harmless error analysis,’ so it is not to be un-
dertaken. See McKaskle v. Wiggins, 465 U.S. 168,
174, n.8 (1984) (re-affirming the Faretta right to self-
representation.)
2. Equally compelling is the impossibility of apply-
ing a “harmless error’ standard to petitioner’s lan-
guishing without assistance of counsel for over three
months while Government psychiatrists had continu-
ous and unfettered access to him, and the “‘puissance’”’
of the Government was fully brought to bear upon
him.'® His early request for counsel went unheeded
and the Government shuttled him halfway around the
world, doctor-shopping, with judge advocates often
within footsteps of this lone accused. Petitioner faced
the Government daily in formal and informal con-
frontations. Yet the United States Court of Military
Appeals was able to say they found no prejudice.
Searching for prejudice is impossible and should not
even be attempted because the right to the assistance
of counsel is so very basic in fundamental fairness."
'3 At trial, petitioner’s sole defense was lack of mental re-
sponsibility. He had to rely upon the evidence obtained from
him by the Government’s psychiatrists, as he had no counsel to
avail him of ‘‘neutral’”’ psychiatrists who were not “beholden to
the prosecution.”” See generally Ake v. Oklahoma, _— U.S. —~—
, 105 S.Ct. 1087, 1097-1098 (1985).
‘4 Apparently, the only other Federal appellate court to ad-
dress this kind of denial of counsel did so in Timmons v. Peyton,
lh ee ee ee ed
rary aves
15
IiI. THE UNITED STATES COURT OF MILITARY
APPEALS INCORRECTLY APPLIED THE
HARMLESS ERROR STANDARD OF CHAPMAN.
1. If the United States Court of Military Appeals
was correct in attempting to apply the Chapman
harmless error standard to the prolonged and unjus-
tified denial of counsel at issue, it did so in a manner
indicating a misunderstanding of this Court’s opin-
ions. The court correctly approached the question of
whether constitutional error had occurred by exam-
ining whether substantial potential for prejudice in-
hered in that period. App. at 7a. However, it
continued to look to petitioner to establish the prej-
udice, albeit while paying lip service to the principle
that in such cases the burden is upon the Government
to establish lack of prejudice. Gilbert v. California,
388 U.S. 263, 272 (1967). The court concluded: ‘‘Ap-
pellate defense counsel makes no specific averment
of how appellant was particularly prejudiced at trial
by deniai of counsel during this period,’ and then
went on to explicitly approve of the following ruling
by the trial judge:
The court initially finds that although there
is in the brief and in argument some general
allegations of prejudice from the failure of
the Government to provide the accused with
counsel while he was being treated in these
various psychiatric wards, no specific preju-
dice has been shown. Accordingly, the motion
to dismiss all charges and _ specifications
360 F.2d 327 (4th Cir. 1966) and Caudill v. Peyton, 368 F.2d
563 (4th Cir. 1966) using a “critical stage’’ and fundamental
fairness analysis to set aside the convictions.
16
thereunder based on denial of counsel is de-
nied.
App. at lla. (emphasis added). The court’s looking to
petitioner to show prejudice cuts directly against
Chapman’s own mandate for the “beneficiary of a
constitutional error to prove beyond a reasonable
doubt that the error complained of did not contribute
to the verdict obtained.”’ 386 U.S. at 24.
In addition to this apparent misunderstanding of
the burden in a harmless error analysis, the United
States Court of Military Appeals also misre sds United
States v. Morrison, 449 U.S. 361 (1981), which it cites
as support for the lack of a presumption of prejudice
in sixth amendment counsel deprivations. Morrison
does not require a showing of specific prejudice but
a showing of ‘‘demonstrable prejudice or substantial
threat thereof ....”’ Id. at 365 (emphasis added).
Petitioner amply met that requirement.
17
CONCLUSION
The United States Court of Military Appeals has
decided a significant constitutional question in a man-
ner that finds little support in this Court’s precedents.
It has extended the doctrine of constitutional harm-
less error to an area that this Court has nct previ-
ously sanctioned. The impact of its decision on the
Constitution protections of thousands of American
service-members will be enormous and adverse. For
these reasons the petition sheuld be granted."
Respectively submitted,
)
| Davip C. LARSON
Commander, Judge
Advocate General’s Corps
(JAGC), U.S. Navy
| Appellate Defense Counsel
| Counsel of Record
J. CUNYON GORDON
Lieutenant, JAGC, U.S. Navy
Appellate Defense Counsel
Ne eeeEeeeE——eEeEyE——EEEeEEEEEeeeeee
‘5 Petitioner asks the Court to consider summary reversal.
APPENDIX
la
APPENDIX A
No. 46778
NMCM 82 0461.
UNITED STATES,
Appellee,
Vv.
BRENT C. WATTENBARGER
Mess Management Specialist
Third Class,
U.S. Navy,
Appellant.
U.S. Court of Military Appeals.
Nov. 18, 1985.
Accused, mess management specialist third class, E-4,
United States Navy, was convicted by general court-mar-
tial of assault with intent to commit rape, assault with
means likely to produce grievous bodily harm, and house-
breaking, and he appealed. The United States Navy-Ma-
rine Corps Court of Military Review, Cedarburg, C.J., 15
M.J. 1069, affirmed, and appeal was taken. The United
States Court of Military Appeals, Cox, J., held that counsel
was not provided in timely fashion for a critical stage of
proceedings; however, error was harmless.
Affirmed.
Everett, C.J., filed a concurring opinion.
For Appellant: Lieutenant J. Cunyon Gordon, JAGC,
USN (argued); Lieutenant Commander Jeanne Carroll,
JAGC, USN, Major Patrick H. McGann, Jr., USMC, Lieu-
2a
tenant Mark A. Zuboff, JAGC, USNR, (on briefs); Lieu-
tenant Colonel M.W. Lucas, USMC and Captain W.J.
Ciaravino, USMC.
For Appellee: Lieutenant Commander John B. Holt,
JAGC, USN (argued); Captain W.J. Hughes, JAGC, USN;
Lieutenant Commander W.A. Dorsey, JAGC, USNR; and
Lieutenant Thomas J. Demay, JAGC, USNR-R.
Opinion of the Court
COX, Judge:
Appellant was tried by a general court-martial com-
posed of members and a military judge during September
1981 at the Naval Legal Service Office, Guam. Contrary
to his pleas, he was found guilty of assault with intent to
commit rape, assault with a means likely to produce griev-
ous bodily harm, and housebreaking, in violation of Articles
134 and 130, Uniform Code of Military Justice, 10 U.S.C.
§§ 934 and 930, respectively. He was sentenced to a bad-
conduct discharge, 5 years’ confinement at hard labor, to-
tal forfeitures, and reduction to pay grade E-1. The con-
vening authority approved this sentence, and the Court of
Military Review affirmed. 15 M.J. 1069 (1983).
This Court granted review on the following issue: ,
WHETHER APPELLANT WAS DENIED EFFEC-
TIVE ASSISTANCE OF COUNSEL BY @IS COM-
MAND.
Although we find that counsel was not timely provided,
we hold that appellant was not denied effective assistance
of counsel at trial. Accordingly, we affirm.
Appellant asserts that he was denied effective assistance
of counsel as guaranteed by both the sixth amendment of
the Constitution and by military due process. See generally
United States v. Jackson, 5 M.J. 223 (C.M.A.1978). He
acknowledges that he was represented by counsel at his
3a
court-martial and for a period of six months prior to it.
Nevertheless, relying on the decisions of the Supreme
Court in Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77
L.Ed. 158 (1932), and United States v. Wade, 388 U.S.
218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), he contends
that this legal right was violated when command failed to
provide him counsel during an earlier 3-and- '/,-month pe-
riod. Appellant argues that this period was a critical stage
of the pretrial proceedings against him. He asserts that
command must appoint counsel for an accused declared
mentally incompetent to assist in his defense, especially
when it pursues an active course of prosecution against
him. See Timmons v. Peyton, 360 F.2d 327 (4th Cir.1966).
Such a denial of counsel, he intimates, is presumptively
prejudicial and requires reversal of his conviction, because
the likelihood of effective representation at trial by any
lawyer under these circumstances is so small. See United
States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 2047, 80
L.Ed.2d 657 (1984); United States v. Jackson, supra.
In response to these assertions, we hold: First, command
authorities did not provide appellant with assistance of
counsel in a timely fashion prior to his court-martial. Sec-
ond, appellant was without counsel during a period in which
a substantial threat existed as to his later ability to receive
a fair trial, a so-called “critical stage.’ Third, no pre-
sumption of prejudice exists in the present case. Cf. Powell
v. Alabama, supra. Last, we find beyond a reasonable
doubt that there was no prejudice of any kind, transitory
or permanent, resulting from this delay which impacted
on the ability of counsel to adequately and effectively rep-
resent appellant at this court-martial. United States v.
Morrison, 449 U.S. 361, 101 S.Ct. 665, 66 L.Ed.2d 564
(1981).
The facts surrounding the granted issue are numerous
and are detailed in full in Appellate Exhibit VI, a stip-
ulation of fact accepted by the parties at trial. This stip-
ulation of fact is attached as an appendix to this opinion.
4a
In addition, the Court of Military Review recounted the
facts of this case in its opinion (15 M.J. at 1071-73) so
no futher detailed narrative on our part is necessary.
However, to place the granted issue in the proper per-
spective, a brief outline of the facts of this case is ap-
propriate.
The offenses for which appellant was found guilty oc-
curred on December 4, 1980. Australian authorities ar-
rested appellant that same day and placed him in pretrial
confinement until December 9, 1980. On that day, Aus-
tralian authorities waived jurisdiction and surrendered him
to American military authorities at the U.S. Naval Com-
munication Station, Harold E. Holt. Command authorities
placed appellant in pretrial confinement where he remained
until December 22, 1980. The local command ordered a
sanity board examination of appellant on December 19,
1980. A report was issued on December 21, 1980, which
concluded that appellant was then mentally incompetent
to cooperate with defense counsel and recommended psy-
chiatric treatment. Appellant was medevaced to Tripler
Army Hospital, Hawaii, on December 23, 1980. A second
sanity board examination was held on January 13, 1981,
and it found appellant mentally incompetent to stand trial
and at the time of the offense. It recommended further
psychiatric treatment, and appellant was transported on
January 25, 1981, to the National Naval Medical Center
in Bethesda, Maryland. On March 10, 1981, a third sanity
board was conducted and found appellant competent to
stand trial. He was then confined at the Marine Corps
Brig at Quantico, Virginia, and later transported to Guam,
the situs of his trial.
Appellant first consulted with counsel on March 26, 1981,
and he was released from pretrial confinement on that
day. After two more command-ordered sanity examina-
tions, appellant was brought to trial before the members
on September 21, 1981.
5a
I. Was counsel provided in a timely fashion?
The first question we address is when did appellant’s
right to counsel under the sixth amendment attach. See
Estelle v. Smith, 451 U.S. 454, 470, 101 S.Ct. 1866, 1876,
68 L.Ed.2d 359 (1981). This constitutional right to counsel
does not attach until “‘at or after the time that adversary
judicial proceedings have been initiated against him ...
whether by way of formal charge, preliminary hearing,
indictment, information, or arraignment.” Kirby v. Illinois,
406 U.S. 682, 688, 689, 92 S.Ct. 1877, 1881, 1882, 32
L.Ed.2d 411 (1972) (plurality opinion), cited with approval
in Estelle v. Smith, supra, 451 U.S. at 469, 470, 101 S.Ct.
at 1876, 1877.' In the military, this sixth-amendment right
to counsel does not attach until preferral of charges. See
United States v. Adams, 21 U.S.C.M.A. 401, 405, 45 C.M.R.
175, 179 (1972); United States v. Moore, 4 U.S.C.M.A. 482,
486, 16 C.M.R. 56, 60 (1954).
The problem raised in the present case is that the charge
sheet included in the record of trial states that the charges
of which appellant was convicted were not preferred until
March 12, 1981. The critical period for which appellant
asserts he was denied sixth-amendment counsel was sub-
stantially concluded by that time. Relying on United States
v. Wade, supra, 388 U.S., at 226, 227, 87 S.Ct. at 1931,
1932, he nonetheless assumes this particular constitutional
right is implicated at any critical stage prior to trial. This
assumption is highly questionable in view of the Supreme
Court opinions in Kirby v. Illinois, supra, 406 U.S., at
'‘ Prior to initiation of adversary judicial proceedings, appellant may
have also had a constitutional right to counsel under the due process
clause of the fifth amendment (see Kirby v. Illinois, 406 U.S. 682, 690,
691, 92 S.Ct. 1877, 1882, 1883, 32 L.Ed.2d 411 (1972) (plurality opin-
ion)), or as a safeguard for his fifth-amendment Miranda rights. See
Estelle v. Smith, 451 U.S. 454, 470 n. 14, 101 S.Ct. 1866, 1877, n. 14,
68 L.Ed.2d 359 (1981). These questions are neither raised nor addressed
in the briefs and do not affect our judgment in this case.
6a
690, 691, 92 S.Ct. at 1882, 1883, and Estelle v. Smith,
supra.
Our review of the record, however, indicates that ap-
pellant’s sixth-amendment right to counsel may indeed
have attached much earlier than March 12, 1981. First,
military authorities induced Australian authorities to waive
jurisdiction and accepted jurisdiction over these offenses
on December 9, 1980. Second, appellant, after being placed
in pretrial confinement by command, was advised on De-
cember 12, 1980, as to his rights at an impending Article
32, UCMJ, 10 U.S.C. § 832, investigation, including his
right to counsel. Third, the command requested that law-
yers from the Naval Legal Service Office in Guam be made
available for this impending pretrial investigation and law-
yers were made available by that office on December 13,
1980. Finally, the report of the doctor who conducted the
first command-ordered mental examination of appellant
refers to a charge sheet dated December 19, 1980.
In this context, it is not entirely clear when charges
had in fact first been preferred against appellant, a sit-
uation aot confronted in earlier cited military cases. in
any event, the test for sixth-amendment purposes is
whether adversary judicial proceedings have been insti-
tuted against a suspect. Under the facts of this case, we
are convinced that appellant’s sixth-amendment right to
counsel attached within the meaning of Kirby v. Illinois
and Estelle v. Smith, both supra, on December 19, 1980,
before his command-ordered gmental examination.”
*This right to counsel need not be based solely on constitutional
grounds. On December 19, 1980, appellant had been in pretrial con-
finement for more than 48 hours and had requested a lawyer on De-
cernber 16 and 17, 1980. Under Naval Service Regulations, counsel
should have been made available to him within 48 hours of this request.
SECNAVINST 1640.9 and JAGMAN 0151. Accordingly, as a matter
of military due process, appellant was entitled to assistance of counsel.
See United States v. Jackson, 5 M.J. 223 (C.M.A.1978). See also United
Pe oe ee
7a
Ij. Was the period from December 19, 1980 to March
26, 1981, a “‘critical stage’’ of the proceedings?
If this period is shown to be “critical’’ in the sense of
Powell v. Alabama, supra, and Coleman v. Alabama, 399
U.S. 1, 7-10, 90 S.Ct. 1999, 2002-2004, 26 L.Ed.2d 387
(1970) (plurality opinion), then constitutional error must be
deemed to have occurred. See United States v. Cronic,
supra at 2047 n.25. In this regard, we note that a “critical
stage’ for purposes of the sixth-amendment analysis de-
pends on “whether potential substantial prejudice to
defendant’s rights inheres in the . . . confrontation and the
ability of counsel to help avoid that prejudice.’’ Coleman
v. Alabama, supra, 399 U.S., at 9, 90 S.Ct. at 2003, quot-
ing United States v. Wade, supra, 388 U.S., at 227, 87
S.Ct. at 1932.
Appellant concedes that his confinement or status as a
prisoner-patient during the period he was denied counsel
does not per se make it a “critical stage’ of the pro-
ceedings against him. Instead, he asserts that this period
became critical when the first command-ordered sanity
board declared him mentally incompetent to cooperate with
a defense counsel. He analogizes his status as a mental
incompetent during this period to the illiterate defendant
in Powell v. Alabama, supra; to the unadvised defendant
in United States v. Wade, supra; and to the incommunicado
defendant in Timmons v. Peyton, supra. He asserts that
a person in such a status without counsel was “literally
helpless to confront the awesome power of the Government
in conducting and preparing a defense for his upcoming
trial.”
Appellate defense counsel has fashioned the following
“nonexclusive list’”’ of areas where appellant may have
States v. Hayes, 19 U.S.C.M.A. 60, 41 C.M.R. 60 (1969); United States
v. Ross, 19 U.S.C.M.A. 51, 55, 41 C.M.R. 51, 55 (1969). Appellant’s
earlier decision on December 12, 1980, not to see a lawyer “‘at this
time’’ did not irrevocably waive his military-due-process right.
8a
been prejudiced as a result of not being represented by
counsel during this period:
(1) Demands For Speedy Trial
(2) Demands For Defense Requested Sanity Boards/Pri-
vate Psychological Evaluations At Or Near The Time
Of The Offenses
(3) Opportunities of Appellant To Discuss The Case With
Counsel While His Memory Of Recent Events was
Still Fresh
(4) Advice Of Counsel To Appellant Regarding His
Rights Under Article 31, UCMJ, [10 U.S.C. § 831,]
Especially In Light Of Continuous Conversations
With Hospital and Medical Personnel Regarding The
Incident Which Are Not Privileged Communications
And Admissible At Trial.
(5) Opportunities For Defense Counsel To Query Mem-
bers Of The Sanity Board, Just Prior To Or Sub-
sequent To Their Findings In The Hopes Of
Obtaining Statements Which Could Be Used As Sub-
sequent Impeachment At Trial 8-9 Months Down
The Road.
(6) Conversations With The Convincing Authority and
Trial Counsel Regarding Apprcpriate Disposition of
Charges, 1.e., Medical Discharge.
(7) Conversation With Australian Authorities To Alle-
viate Pressures Upon American Military Authorities
To Bring An Incompetent Accused To Trial At All
Costs.
(8) Representation at the Pretrial Identification Lineup.
(9) Disadvantages Suffered With Regards To Compila-
tion of Evidence And Witness Interviews.
It is on this basis that he contends that this period was
a “critical stage’’ of the proceedings for appellant.
tt ah I al ar al tN nS SO ee Bk ae
9a
In Powell v. Alabama, supra, 287 U.S., at 58, 53 S.Ct.
at 60, the Supreme Court found that the illiterate
defendants were provided no substantial assistance by
counsel prior to trial. It presumed potential and actual
prejudice in this situation without regard to counsel’s per-
formance at trial. See United States v. Cronic, supra. In
appellant’s case and in Timmons v. Peyton, supra, the
denial of counsel prior to trial was not complete. In this
situation, the proper approach is to determine whether this
period of the pretrial proceedings could have materially
affected his right to a fair trial. See Coleman v. Alabama,
supra, 399 U.S., at 7, 90 S.Ct. at 2002.
We note that several matters urged by the defense as
establishing potential prejudice clearly are unrelated to the
period of time at issue in appellant’s case. For example,
Australian authorities had already conducted the pretrial
line-up and surrendered jurisdiction over these offenses
prior to attachment of appellant’s sixth-amendment right
to counsel. Accordingly, factors (7) and (8) do not show
potential prejudice from untimely appointment of counsel
in the present case. Also, the trial judge and the Court
of Military Review both denied a speedy-trial motion with-
out regard to the absence of demands for a speedy trial.
The remaining factors listed by appellate defense counsel
and appeliant’s status as a mental incompetent during this
period tend to support his assertion that this was a ‘“‘crit-
ical stage’’ of the proceedings for sixth-amendment counsel
purposes. See Estelle v. Smith, supra, 451 U.S., at 470-
71, 101 S.Ct. at 1876-77; Coleman v. Alabama, supra, 399
U.S., at 7-10, 90 S.Ct. at 2002-2004. An argument similar
to the Government’s—that there was no substantial po-
tential prejudice to appellant’s rights during this period
because of the exclusionary privilege of Mil.R.Evid. 302
and other confidentiality provisions of paragraph 121,
Manual for Ccurts-Martial, United States, 1969 (Revised
edition)—was rejected in Coleman v. Alabama, supra. Ac-
cordingly, for purposes of this appeal, we hold this was a
10a
“critical stage” of the proceedings against appellant during
which he was denied sixth-amendment counsel.’
III. Was appellant prejudiced by the denial of counsel?
The denial of sixth-amendment counsel at a “critical
stage” of the proceedings is constitutional error. See United
States v. Cronic, supra at 2047 n.25. Such error, however,
does not per se dictate that appellant’s conviction be re-
versed. Coleman v. Alabama, supra, 399 U.S. at 11, 90
S.Ct. at 2004; see generally United States v. Hasting, 461
U.S. 499, 507-12, 103 S.Ct. 1974, 1979-82, 76 L.Ed.2d
96 (1983). We must decide whether denial of counsel dur-
ing this three-inonth period prior to trial was harmless
error under Chapman v. California, 386 U.S. 18, 87 S.Ct.
824, 17 L.Ed.2d 705 (1967).4
’ Appellant does not assert that a command-ordered sanity board on
the question of his mental responsibility at the time of the offense is
per se a “critical stage’ of the proceedings against him. Cf. United
States v. Hayes and United States v. Ross, both supra; but see Spivey
v. Zant, 661 F.2d 464 (5th Cir.1981), cert. denied, 458 U.S. 1111, 102
S.Ct. 3495, 73 L.Ed.2d 1374 (1982). Instead, he avers that the results
of two of these boards established that he was not mentally competent
to cooperate in his defense, and this required appointment of counsel
during this period to protect his right to a fair trial. See Powell v.
Alabama, 287 U.S. 46, 53 S.Ct. 55, 77 L.Ed. 158 (1932). Such an
argument is somewhat similar to that in Timmons v. Peyton, 360 F.2d
327 (4th Cir.1966°, where a “‘critical stage’ of the proceedings was
found where a defendant was held incommunicado for three and a half
months after an offense in a mental institution at government request.
‘Neither Estelle v. Smith nor Timmons v. Peyton, both supra, can
be reasonabiy construed to require reversal for all sixth-amendment
counsel deprivations. See United States v. Morrison, 449 U.S. 361, 101
S.Ct. 665, 66 L.Ed.2d 564 (1981). In Estelle v. Smith, supra, the
Supreme Court not only found potential prejudice (id. at 471-72, 101
S.Ct. at 1877-78) but actual prejudice as well (id. at 467, 101 S.Ct.
at 1875). In Timmons v. Peyton, supra, the court of appeals did not
expressly address the issue of potential prejudice but did find actual
prejudice in that case.
ee ee ee ee |e
lla
As noted earlier, this case can be distinguished from
Powell v. Alabama, supra, in at least one important re-
spect. In Powell, the Supreme Court found that those
defendants were substantially provided no legal assistance
prior to trail and no opportunity to prepare their defense.
In appellant’s case, he was provided counsel on March 18,
1981, and this counsel had approximately six months to
prepare for trial which occurred in September 1981. In
view of these circumstances, we do not believe that the
likelihood of effective assistance of counsel at trial is so
small that a presumption of prejudice is appropriate with-
out inquiry into the actual conduct of the trial. United
States v. Cronic, supra at 2047. Accordingly, we reject
appellate defense counsel’s bald assertion that the failure
to appoint counsel during this period was “‘surely’’ prej-
udicial. See Siverson v. O’Leary, 764 F.2d 1208, 1217 n.
6 (7th Cir.1985).
Appellate defense counsel makes no specific averment
of how appellant was particularly prejudiced at trial by
denial of counsel during this period. Although the burden
is on the Government to show that this constitutional! error
was harmless beyond a reasonable doubt (see United States
v. Hasting, supra), no presumption of prejudice, as indi-
cated above, exists in this case. Prior to the court-martial,
trial defense counsel addressed this issue but spoke in
general terms. The military judge in denying appellant’s
motion to dismiss commented on the absence of specific
prejudice in this case as follows:
MJ: The court initially finds that although there is in
the brief and in argument some general allegations
of prejudice from the failure of the Government to
provide the accused with counsel while he was being
treated in these various psychiatric wards, no specific
prejudice has been shown. Accordingly, the motion to
dismiss all charges and specifications thereunder based
on denial of counsel is denied.
12a
We agree. United States v. Morrison, supra.
The first point which is clear from the record is that
the prosecution did not exploit the period from December
19, 1980, to March 26, 1981, to develop its case on the
merits against appellant. Cf Timmons v. Peyton, supra.
The prosecution’s case at trial was based on the testimony
of witnesses and physical evidence discovered by Austra-
lian authorities while they maintained jurisdiction over
these offenses. The line-up conducted by Australian
authorities as part of their investigation took place the
day after the offense. Military authorities did take state-
ments from these witnesses, but this occurred after the
military received jurisdiction and prior to December 19,
1980, when appellant’s right to counsel under the sixth-
amendment attached. Based on such evidence the Gov-
ernment’s case was overwhelming and was not substan-
tially enhanced by any evidence gathered by the
prosecution during the period he was without counsel.
The second point which is also clear from the record is
that the defense suffered no disadvantages in preparing
its case on the merits. Cf Timmons v. Peyton, supra.
Defense counsel had unrestricted access after March 26,
1981, to the witnesses and physical evidence gathered by
Australian authorities. It also had access to the statements
made by these witnesses shortly after the offense and
recorded in written form by American military authorities.
The physical evidence relevant to this case was also sub-
stantially preserved by these authorities and was made
available to the defense. Finally, there is no indication in
the record that appellant forfeited any legal rights during
this period without sixth-amendment counsel which im-
pacted on his trial on the merits. The inability of the
defense to challenge the Government’s case on the merits
against him did not stem from the failure of command to
appoint counsel in a timely fashion.
Re A we A OR aE Sere Nar Dt Lie Brel.
i ary lide 5 nate
« oe er ere
Oe ee ee
13a
The third point, again clear from the record of trial is
that appellant was not prejudiced by this period without
counsel in raising his insanity defense. Cf. Timmons v.
Peyton, supra. In fact, the defense at trial relied in part
on a report from the second sanity board conducted during
this period to raise a reasonable doubt as to his sanity at
the time of the offense. See Ake v. Oklahoma, __U.S._,
105 S.Ct. 1087, 1097, 84 L.Ed.2d 53 (1985). Although the
Government relied on the report of the first sanity board
to rebut this defense, it only did so after appellant with
advice of counsel utilized at trial expert psychiatric tes-
timony in his behalf. Cf Spivey v. Zant, 661 F 2d 464,
475 n. 18, 477 (5th Cir.1981). In this context, appellant
cannot be said to have forfeited any legal rights during
this period which affected his insanity defense.’ See Cape
v. Francis, 741 F.2d 1287, 1295-96 n. 9 (11th Cir.1984).
Moreover, we have examined the defense’s cross exami-
nation of the psychiatrist who conducted this first board
and find it satisfactory. See United States v. Hayes, 19
U.S.C.M.A. 60, 41 C.M.R. 60 (1969), and United States v.
Ross, 19 U.S.C.M.A. 51, 41 C.M.R. 51 (1969). Cf Timmons
v. Peyton, supra at 331-32.
’ No argument was made in this case that counsel could have advised
appellant that he need not cooperate with these sanity boards in de-
termining his mental responsibility at the time of the offense. See Estelle
v. Smith, supra, 451 U.S., at 468, 101 S.Ct. at 1875. Moreover, no
objection was raised at trial that the results of these examinations were
inadmissible on the question of his mental responsibility at the time of
the offense on the basis of Article 31, Uniform Code of Military Justice,
10 U.S.C. § 831, and the fifth-amendment safeguards of Miranda v.
Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). See Spivey
v. Zant, supra at 475 n. 18. Appellant, with assistance of counsel,
elected at trial to raise the defense of insanity utilizing in part expert
psychiatric testimony. Cf. Estelle v. Smith, supra, 451 U.S., at 466-
67, 101 S.Ct. at 1874-75: see United States v. Wilson, 18 U.S.C.M.A.
400, 40 C.M.R. 112 (1969). It was this decision, not his earlier one to
cooperate with these boards, which permitted the rebuttal testimony
of the first sanity board to be admitted.
l4a
We therefore find beyond any reasonable doubt that the
denial of counsel during the period of December 19, 1980,
to March 26, 1981, was harmless error.
The decision of the United States Navy-Marine Corps
Court of Military Review is affirmed.
15a
APPENDIX
APPELLATE EXHIBIT VI
GENERAL COURT-MARTIAL
UNITED STATES NAVY
WESTPAC SOUTH JUDICIAL CIRCUIT
UNITED STATES
Vv.
WATTENBARGER, BRENT C.
Mess Management Specialist
Third Class
United States Navy
STIPULATION OF FACTS
It is hereby agreed by and between the Government and
Defense with the express consent of the accused that the
following Chronology of Facts is true.
DATE
CHRONOLOGY
EVENT ENCL
4 December 1980 Alleged Commission of (1)
Offenses by accused
4-9 December 1980 Pretrial confinement, (2)
Exmouth Police Station
4-9 December 1980 U.S. Navy and Australian (3)
Government Discuss
primary jurisdiction under
SOFA
6 December 1980 Initial Recommendations for (4)
Psychiatric Evaluation of
accused, from NLSO Pearl
Harbor
8 December 1980
9 December 1980
9-22 December 1980
.9 December 1980
9 December 1980
10 December 1980
10 December -
26 March 1981
12 December 1980
13 December 1980
l6a
Initial Request for Trial (5)
Team, and Psychiatric
Evaluation of accused by
Harold E. Holt
Australian authorities waive
jurisdiction. Accused
returned to Harold E. Holt.
Accused held in Pretrial
Confinement Harold E. Holt
Request for appointment of (6)
non-lawyer. Military
Magistrate from Harold E.
Holt
Military Magistrate Request (7)
approved by Commander
Naval Forces Marianas
Waiver of non-lawyer (8)
qualifications granted by
Navy Jag Washington
No magistrates hearing
conducted
Accused advised by SJA (9)
Harold E. Holt of rights to
counsel. NLSO Pearl Harbor
informed.
NLSO Pearl Harbor (10)
tentatively details
Investigating Officer/
Detailed Defense Counsel to
commence pretrial
investigation of accused for
week beginning 5 January
1981
17a
19-21 December CDR Kenneth KAROLS, (11)
1980
23 December 1980
24 December -
24 January 1981
13 January 1981
25 January 1981
25 January -
10 March 1981
10 March 1981
MC, NAS Barbers Point, a
Board certified Psychiatrist,
observes accused at Harold
E. Holt and _ concludes
accused is presently
incapable of conducting his
defense or cooperating with
counsel in preparation of his
defense. CDR Carols
recommends four weeks
psychiatric treatment of
accused.
Accused medevaced _ to
Tripler Army Hospital
Accused evaluated and (12)
observed at Tripler Army
Hospital Psychiatric Ward
Sanity Board Conducted at
Tripler determines accused
incompetent to stand trial.
Accused medevaced to
Bethesda NMC for
continued psychiatric
treatment.
Accused evaluated and (13)
observed at Bethesda NMC
Bethesda NMC determines (14)
member competent to stand
trial
10-26 March 1981
12 March
12 March
13 March
17 March
19 March
18 March
19 March
26 March
1981
1981
1981
1981
1981
1981
1981
1981 -
18a
Accused transferred to
Quantico, Virginia Brig to
await determination of
where to transfer to stand
trial
Request from Harold E. (15)
Holt for trial team from
NLSO Guam
Charges preferred.
Commander Naval Forces (16)
Marianas approves
conducting of Article 32
Investigation at NLSO
Guam
Harold E. Holt requests (17)
military escorts for accused
for transfer from Quantico
to Guam
Records and reports, service
record book, of accused,
transferred by registered
mail from Harold E. Holt to
Guam
LT D. L. Anderson, JAGC, (18)
USNR, NLSO Guam made
available to represent the
accused, LT J. Carver,
detailed as Gov’t Counsel
Military escorts made (19)
available to transfer accused
to Guam
|
Present
31 March 1981
30 March 1981
31 March 1981
31 March -
3 April 1981
4-13 April 1981
20 April -
1 May i981
1-5 May 1981
5-7 May 1981
8-17 May 1981
15 May 1981
19a
Accused arrives NAVSTA
Guam, restriction to limits
of NAVSTA
Harold E. Holt Appoints (20)
investigating officer, and
Government counsel for
Article 32 investigation.
Detailed Defense, request to (21)
travel to Harold E. Holt to
interview witnesses
Request is approved. (22)
Detailed Defense TAD Subic
Bay, Philippines
Detailed Defense on leave
Philippines
Detailed Defense in transit
to Australia
Detailed Defense Counsel
conducts investigation
Harold E. Holt
Detailed Defense Counsel in
transit to Guam
Investigating Officer TAD
to Subic Bay
LT L. Groce appointed (23)
Government Counsel due to
LT Carver transfer to SJA
billet Harold E. Holt. LT
Carver relieved as TC.
20 May 1981
20 May 1981
3 June 1981
4 June 1981
4 June 1981
5 June 1981
8-9 June 1981
10 June 1981
20a
First session of Article 32
preliminary investigation
convened.
Government counsel (24)
requests of Bethesda NMC,
Tripler AMC answers to
sanity issues not previously
supplied.
Tripler responds. (25)
Bethesda responds (26)
At request of Commanding (27)
Officer, Harold E. Holt,
CDR Eugene Tinelli, NRMC
Guam holds _ psychiatric
evaluation of accused.
Although requested to
answer all Fredricks
questions by Government
counsel, due to
psychoanalytic school of
thought practiced by CDR
Tinelli, he is unable to opine
on grounds other than
present competency of
Government counsel
receives results of
Psychiatric Evaluation
Article 32 Investigation
conducted
Investigating officer
completes Article 32
Investigation Report.
15 June 1981
6 July 1981
15 July 1981
22 July 1981
22 July 1981
23 July 1981
23-27 July 1981
2la
Report of Investigation
received by Commanding
Officer, Harold E. Holt
Commanding Officer
forwards report of
investigation to Commander
Naval Forces Marianas
Report of investigation and
forwarding Endorsement
received by Commander
Naval Forces Marianas
Staff Judge Advocate
completes Article 34 advice
Commander Naval Forces
Marianas approves
Government counsel advises
SJA, Commander Naval
Forces Marianas as_ to
inconsistencies in two
medical boards as to sanity
of accused at time of
offense. SJA directs
Gg¢vernment Counsel to
make inquiry as to closest
facility to conduct
psychiatric evaluation (due
to problem previously stated
on 4 June 1981)
Government counsel makes
telephone inquiries at Clark
AFB Philippines and NRMC
Pearl Harbor and informs
SJA of delay which would
result
25 July 1981
29 July 1981
19 August 1981
24 August 1981
28 August 1981
28 August 1981
4 September 1981
11 September 1981
14 September 1981
15 September 1981
22a
Charges referred.
Commander Naval Forces
Marianas request
Commanding Officer NRMC
Guam to conduct formal 121
sanity board
Sanity Boari conducted
Results of Sanity Board
prepared and forwarded to
Commander Naval Forces
Marianas
Results of Sanity Board
forwarded to Government
Counsel with direction by
Commander Naval Forces
Marianas to proceed to trial
without further delay.
First available date for
defense requested
psychiatric witness COL.
Chamberlain, MC and
government witness LCDR
Smyer, MC determined to
be 20 September 1981.
Arrangements for all
witnesses prepared by SJA
Government Counsel
requests to procede through
arraignment on 15
September 1981
General Court-Martial
Judge arrives to Guam
Detailed Defense files AE I
speedy trial motion
i ee =e ae
(28)
a nt i a tl i te
AE Iil
23a
16 September 1981 Motion to dismiss filed with
Court Initial Article 39A
ICO accused held, accused
proceeds through
arraignment.
LAURA S. GROCE DONALD L. ANDERSON
LT, JAGC, USNR LT, JAGC, USNR
Government Counsel Defense Counsel
BRENT C. WATTENBARGER, MS3,
USN
Accused
EVERETT, Chief Judge (concurring):
Not every pretrial denial of counsel at a “critica! stage”’
requires dismissal of charges cr reversal of a conviction.
Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d
387 (1970); United States v. Wade, 388 U.S. 218, 87 S.Ct.
1926, 18 L.Ed.2d 1149 (1967). However, the Government
must establish that this constitutional error was harmless.
Gilbert v. California, 388 U.S. 263, 272, 87 S.Ct. 1951,
1956, 18 L.Ed.2d 1178, 1186 (1967); cf. United States v.
Remai, 19 M.J. 229 (C.M.A.1985). On the basis of my
examination of this record, I agree with the principal opin-
ion’s conclusion that here the Government has carried its
heavy burden and has demonstrated that appellant’s de-
fense was not impaired by the delay in appointing counsel
to represent him.
24a
APPENDIX B
IN THE U.S. NAVY-MARINE CORPS COURT OF
MILITARY REVIEW BEFORE
O. L. CEDARBURG | MATTHEW J.|A. F. MIELCZARSKI
GORMLEY III |
UNITED STATES
v.
BRENT C. WATTENBARGER, 489 66 1073, Mess Management
Specialist Third Class
(E-4), U.S. Navy
; PUBLISH
NMCM 82 0461 DECIDED 26 April 1983
Sentence adjudged 23 September 1981 Revi2w pursuant
to Article 66(c), UCMJ
of General Court-Martial convened by Commander U.S.
Naval Forces Marianas/Commander U.S. Naval Base Guam,
Guam, Marianas Islands
CDR Matthew J. Wheeler, JAGC, USNR, Appellate De-
fense Counsel
CAPT W. J. Ciaravino, USMC, Appellate Defense Counsel
LCDR W. A. Dorsey, JAGC, USNR, Appellate Govern-
ment Counsel
CEDARBURG, Chief Judge:
At his general court-martial before members, appellant
was convicted of assault with intent to commit rape, as-
sault with a means likely to produce grievous bodily harm,
and housebreaking in violation of Articles 184, 128, and
130, Uniform Code of Military Justice (UCMJ), respec-
25a
tively. The members sentenced appellant to a reduction to
pay grade E-1, total forfeiture of pay and allowances,
confinement at hard labor for 5 years, and a bad conduct
discharge. Of eleven assignments of error raised on review,
we believe that five warrant discussion (I, II, IV, VII and
IX). A recitation of the facts of the case is necessary.
On 3 December 1980 Mrs. P, a Navy dependent, was
alone in her apartment in base housing located approxi-
mately five miles from the U.S. Naval Communication Sta-
tion, Harold E. Holt, Western Australia. Around 2230 that
evening her dog growled at something outside of the rear
sliding glass doors of the apartment. Seeing no one out-
side, Mrs. P decided to go to bed. At 0030, 4 December,
Mrs. P was awakened by her dog’s barking and a constant
knocking at her front door. Clad in a floor length robe
she went to the door, turned on the porch light, and asked
who was there. She thought she heard the person respond
“security,’’ so she opened the door to find appellant, whom
she recognized as one of the galley workers on base.
standing in the doorway with a knife. Mrs. P detected the
slight odor of alcohol and noticed appellant look over his
shoulder as if someone were chasing him. Appellant then
grabbed Mrs. P around the shoulders and put the knife
to her neck, prompting her to scream. Telling her to “‘shut
up,” appellant threw Mrs. P to the floor, began to choke
her and, straddling her, warned in a very loud, harsh
whisper that if she ever told a soul about this, he would
kill her. Appellant stopped strangling Mrs. P to ask where
her husband was, and when she responded that her hus-
band was on duty, he ripped her robe open, began to
strangle her again and said “if you understand, you kick
your feet.’’ Mrs. P kicked her feet, and appellant said,
“Get your clothes off and turn off that light.’’ Appellant
got up and headed for the light switch, at which time Mrs.
P jumped and ran out the door to a neighbor’s house
across the street. Appellant chased her briefly before re-
26a
turning to the apartment where Mrs. P noticed her porch
light go off and on.
Later that morning appellant was brought into the Ex-
mouth Police Station because he fit the description given
by Mrs. P of her assailant. He immediately identified a
pair of boots which had been found outside the sliding
glass door of Mrs. P’s apartment as his own. In response
to questions by Sergeant Roy Harper of the Exmouth
Police Department, appellant stated that he remembered
nothing that happened the previous night. He then re-
membered going to a local inn at 8:00 p.m. and leaving
about 11:22, but stated that he could not remember any-
thing after leaving the inn. Informed of a report from
base security that appellant had tried tc place an overseas
phone call to his mother around midnight, appellant ex-
plained that he recalled trying to place the call and reach-
ing a wrong number. In response to Sergeant Harper’s
further questions, appellant stated that he remembered
having three or four beers at the inn and was feeling ‘‘a
little bit drunk’”’ when he left.
Appellant was arrested by the Australian authorities that
morning and placed in confinement at the Exmouth Police
Station until 9 December. Sergeant Harper testified that
during this period, appellant’s behavior seemed normal ex-
cept for one afternoon during the 119°F heat when ap-
pellant appeared to be in a semi-catatonic state, refusing
to drink, converse, or display any emotion. Sergeant Har-
per carried him into the air-conditioned station where he
tried to get appellant to drink some water. Lieutenant
Commander Theodore F. Smyer, Medica! Corps, U.S. Navy,
and Commander C. Dudley Saul, Medical Corps, U.S. Navy,
were called to examine appellant. Dr. Smyer, who had
interviewed and examined appellant a couple of weeks prior
to the assault, testified that while he was taking appel-
lant’s pulse, appellant stuck his thumb up and gave Dr.
Smyer a big wink. Within a couple of minutes, appellant
27a
was feeling okay, leading Dr. Smyer to believe that ap-
pellant had been malingering.
Appellant was transferred to the base security depart-
ment at Harold E. Holt where he was confined from 9-
22 December. On 12 December, the station judge advocate
advised anpellant of his rights to counsel at an Article 32,
UCMJ, investigation. On the rights to counsel form used
by the station judge advocate, appellant wrote “I desire
no cousel [sic] at this time. BCW.”’ Appellant, subsequently
requested to consult with counsel and, on 17 December,
refused to clean his cell until his request was granted. On
19 December Commander Kenneth Karols, Medical Corps,
U.S. Navy, conducted an examination of appellant pur-
suant to paragraph 121, Manual for Courts-Martial, 1969
(Rev.). Dr. Karols concluded that appellant was incom-
petent to stand trial. diagnosing him as having a manic-
depressive illness in the manic phase, severe but not psy-
chotic, and recommended four weeks of psychiatric treat-
ment. Dr. Karols’ diagnosis was based cn his extensive
examinations of appellant, as well as interviews with Mrs.
P and each person who had observed appeliant’s behavior
during the evening preceding and the morning following
the assault. He had a!so consulted Dr. Smyer and Dr. Saul
about their examinations of appellant and interviewed
Lieutenant Commander Gary J. Cragun, Chaplain Corps,
U.S. Navy, whose counseling of appellant led to his sus-
picion of a mental disorder and precipitated the referral
of appellant to Dr. Saul and Dr. Smyer a couple of weeks
prior to the assault.
On 22 December appellant was transferred to Tripler
Army Medical Center, Hawaii, where he underwent psy-
chiatric observation until 24 January 1981. A second 121
board was held on 13 January which concurred with the
diagnosis of Dr. Karols, resulting in the recommendation
that appellant be transferred for further psychiatric treat-
ment. From 25 January to 10 March, appellant underwent
psychiatric evaluation at National Naval Medical Center,
28a
Bethesda, Maryland. On 10 March a third 121 board found
appellant competent to stand trial, so he was transferred
to the Marine Corps Brig, Quantico, Virginia, and then to
Guam, the situs of trial. Appellant first consulted with
counsel in Guam on 26 March, at which time he was re-
leased from confinement and placed in a restricted status.
An Article 32, UCMJ, investigation was initiated on 20
May, concluding on 9 June; trial was commenced 16 Sep-
tember, ending 23 September.
At trial the defense offered extensive evidence dem-
onstrating a history of mental disorder in appellant’s fam-
ily and documenting repeated psychiatric counseling and
institutionalization of appellant as a youth. The defense
also called several witnesses and offered severa) stipula-
tions of testimony which clearly showed that appellant had
a very troubled, unstable childhood characterized by re-
peated psychiatric counseling, unusual behavior, and gran-
diose ideations. The defense called Colonel T.J.
Chamberlain, Medical Corps, U.S. Army, an extensively
qualified, experienced psychiatrist who sat on the three-
member 121 board which examined appellant in late Jan-
uary 1981 at Tripler Army Medical Center. Based on psy-
chiatric testing of appellant, review of his family history,
and close observation of appellant for approximately 20
days while at Tripler, but without the benefit of any of
the statements from the people who observed appellant’s
behavior on or around 4 December, the board unanimously
concluded that appellant suffered from a chronic, moderate
manic-depressive affective disorder. The board also unan-
imously concluded that at the time of the offense appellant
was intoxicated on alcohol, lacked the substantial capacity
to appreciate the criminality of his conduct, lacked the
substantial capacity to conform his conduct to the re-
quirements of the law, and lacked the capacity to form a
specific intent. These opinions were based on the legal test
for insanity adopted in United States v. Frederick, 3 MJ
230 (CMA 1977). The defense also introduced the results
29a
of a three-member 121 board held on 19 August at Naval
Regional Medical Center, Guam. That board found that
appellant suffered from an alcohol induced organic mental
disorder at the time of the offense but was inconclusive
as to any clinical diagnosis or as to appellant’s mental
responsibility at the time of the offense.
In rebuttal the Government called Dr. Karols and of-
fered the report of his psychiatric evaluation of appellant
in late December, 1980. Dr. Karols, also an eminently
qualified and experienced psychiatrist, agreed with the di-
agnosis of Dr. Chamberlain that appellant suffered from
a manic-depressive mental disorder. However, from his
consultations with Chaplain Cragun, Dr. Saul, and Dr.
Smyer, and his interviews of the persons who had observed
appellant on the night of the assault and during his period
of confinement, Dr. Karols concluded that appellant did
not lack the substantial capacity to appreciate the crim-
inality of his conduct or to conform his conduct to the
requirements of the law on the night of the assault. He
testified further that he believed appellant did have the
capacity to form a specific intent at the time of the of-
fense.
The stipulated testimony of Electronics Technician Sec-
ond Class Eric Hood indicated that he, appellant, and one
other man shared 6-9 pitchers of beer between 1900 and
2230 at the Pot Shot Inn, and that when appellant left
the inn, he was capable of carrying on a conversation but
his speech was off. Electronics Technicial Third Class Er-
nest Johnson testified that he saw appellant around 2300
on 3 December when appeliant came to the guard shack
on base to place an overseas call. Johnson testified that
appellant talked quite a bit, at one point stating that he
needed something to eat in order to sober up before calling
his mother. Johnson, however, opined that appellant did
not appear to have any trouble walking or talking. Johnson
also testified that appellant seemed normal when he re-
30a
turned to the base the following morning except that he
was wearing no shoes.
I. APPELLANT WAS DENIED EFFECTIVE ASSIST-
ANCE OF COUNSEL.
Il. APPELLANT WAS DENIED HIS RIGHT TO A
SPEEDY TRIAL.
A delay in providing an accused legal representation
violates that accused’s rights to counsel under the Sixth
Amendment to the United States Constitution if he was
denied counsel at any “critical stage’’ of the proceedings
against him. United States v. Wade, 388 U.S. 218 (1967);
United States v. Adams, 21 USCMA 401, 45 CMR 175
(1972). Even where no critical stage arises, an accused’s
rights to counsel may be violated if the delay in providing
counsel is contrary to the requirements of fundamental
fairness. United States v. Jackson, 5 MJ 223 (CMA 1978).
In determining when a critical stage arises in the crim-
inal prosecution of an accused, the Supreme Court has
stated that:
[The principle of Powell v. Alabama (287 U.S.
45, 53 S.Ct. 55, 77 L.Ed. 158 (1964)] and suc-
ceeding cases requires that we scrutinize any
pretrial confrontation of the accused to determine
whether the presence of his counsel is necessary
to preserve the defendant’s basic right to a fair
trial as affected by his right meaningfully to
cros:-examine witnesses against him and to have
effective assistance of counsel at the trial itself.
It calls upon us to analyze whether potential sub-
stantial prejudice to defendant’s rights inheres in
the particular confrontation and the ability of
counsel to help avoid that prejudice.
United States v. Wade, supra at 227. After examining the
pretrial identification procedure at issue in Wade, the Court
3la
held that a critical stage did arise due to the inherent
risks of improper influence that exist in those procedures,
the inability of an accused to recognize and correct such
improprieties where they exist, and most importantly the
inability of an accused to reconstruct the procedures at
trial and meaningfully confront the witnesses against him.
The basic concern of the Court in determining when a
critical stage arises is whether the absence of counsel at
that stage might derogate from the accused’s right to a
Appellant asserts that Timmons v. Peyton, 360 F.2d 327
(4th Cir. 1966), is closely on point with the case sub judice
and requires reversal of his conviction. In Timmons v.
Peyton, however, the appellant, having confessed to mur-
der, was committed to a mental institution pursuant to
the Government’s request for a determination of his men-
tal responsibility at the time of the offense as well as his
competency to stand trial even though the former deter-
mination was not authorized by state law. Because ap-
pellant was not provided counsel for 3'/, months, the Court
overturned the conviction because (1) the absence of
counsel for 3'/, months hampered the accused’s ability at
trial to present psychiatric evidence and effectively cross-
examine psychiatric witnesses against him, (2) the accused
had a history of psychiatric problems and was of almost
moronic mentality, and (3) the accused had the burden to
prove his insanity beyond a resonable doubt. The Court
considered the third factor to be the most persuasive. Un-
like the accused in Timmons v. Peyim, appellant had no
burden to prove his insanity. Furthermore we can find no
indication that appellant was hampered in the presentation
of his insanity defense as that issue was fully and com-
petently litigated.
Since pretrial confinement alone does not constitute a
critical stage of the accusatory process which entitles an
accused to the assistance of counsel, United States v. Jack-
son, supra (accused in pretrial confinement for 42 days
32a
before counsel appointed), and finding no substantial risk
that the absence of counsel during appellant’s psychiatric
evaluation and treatment derogated from appellant’s right
to a fair trial, we conclude that no critical stage arose
which entitled appellant to the appointment of counsel un-
der the Sixth Amendment.
In determining whether a delay in the appointment of
counsel violates the requirements of fundamental fairness,
the most important factor to consider is whether the ac-
cused suffered any prejudice as a result of the delay. In
Jackson the Court concluded that since the accused was
charged nine days after confinement and “his somewhat
ambiguous requests to consult with counsel were ultimately
satisfied,” United States v. Jackson, supra at 225, the
availability of counsel was fundamentally fair. The Court,
although declining to formulate a static rule for the as-
signment of counsel, stated that “fundamental fairness calls
for such representation of all prisoners confined for more
than a brief period of time.’’ Jd. at 227. Without further
expansion on what constitutes a “brief period of time,”
the Court, stating that the delay of 42 days was potentially
prejudicial, found in the record no indication of prejudice
to the defense caused by the delay and thus refused to
overturn the conviction in that case. The Court also found
that the trial defense counsel had effectively walved the
issue of fundamental fairness of counsel appointment by
failing to raise the issue at trial when the military judge
specifically questioned him regarding his preparation of the
case. In United States v. Adams, supra, the Court of Mil-
itary Appeals refused to overturn the conviction of an
accused whose requests for counsel went unheeded for two
months while he was in restriction, stating that ‘No un-
derstandable or acceptable reason has appeared for ig-
noring Adam’s [sic] request [for counsel] at Subic Bay or
Da Nang. But we are convinced that denying him con-
sultation with counsel had no material effect upon the
progress or the result of Adam’s [sic] court-martial.”
33a
Contrary to the case in United States v. Adams, supra,
where the Court found no “understandable or acceptable
reason” for the delay in the appointment of counsel, the
record in the present case indicates that both practical,
logistical considerations and the uncertainty regarding the
ultimate determination of appellant’s mental state delayed
the assignment of counsel to appellant. We have no doubt
that an attorney probably could have been helpful to ap-
pellant and certainly comforting if appointed immediately,
but we find that appellant suffered no substantial risk of
prejudice as a result of the delay. Thus we conclude that
appellant was not denied the effective assistance of counsel
in this case.
The factors which caused the delay in the appointment
of counsel are the same factors which caused the major
delay in the commencement of trial. It was not until 10
March 1981 that appellant, while in National Naval Medical
Center, Bethesda, Maryland, was determined to be com-
petent to stand trial. Especially considering the logistical
problems faced by the Government in holding trial in
Guam, the location of the officer exercising general court-
martial authority over appellant’s command, a functional
analysis of all of the factors involved in the delay convinces
us that the Government proceeded with reasonable dili-
gence and without deliberate oppression of the accused or
lack of concern for the requirement of expeditious pros-
ecution. United States v. Hagler, 7 MJ 944 (NCMR 1979)
pet. denied, 8 MJ 172 (CMA 1979). Thus appellant was
not denied a speedy trial.
IV. THE GOVERNMENT FAILED TO PROVE BE-
YOND A REASONABLE DOUBT APPELLANT’S
SANITY AT THE TIME OF THE OFFENSE.
Once the issue of an accused’s mental responsibility is
raised, the Government has the burden to prove beyond
a reasonable doubt that the accused was mentally re-
sponsible at the time of the offense. United States v. Mar-
34a
tinez, 12 MJ 801 (NMCMR 1981) pet. denied, 13 MJ 232
(CMA 1982). An accused is not responsible for criminal
conduct if at the time of such conduct, as a result of
mental disease or defect, he lacked substantial capacity
either to appreciate the criminality of his conduct or to
conform his conduct to the requirements of the law. United
States v. Frederick, 3 MJ 230 (CMA 1977).
As previously noted, there was a direct conflict in the
psychiatric evidence presented by the two eminently qual-
ified psychiatrists, Dr. Karols, who examined appellant and
interviewed witnesses approximately 15 days after the date
of the offense, and Dr. Chamberlain, who sat on a three-
member 121 board approximately 40 days after the of-
fense. Appellant argues that the testimony of Dr. Cham-
berlain was sufficient to establish a reasonable doubt as
to his mental responsibility and urges us to set aside the
findings and sentence.
Where there is a conflict of expert testimony on the
issue of sanity, and even where the defense offers un-
contradicted medical testimony, it does not necessarily fol-
low that reasonable men must entertain a reasonable doubt
as to the accused’s sanity. “A finding of guilty, which
includes a finding of sanity contrary to expert opinion, can
be sustained if it is supported by substantial evidence.”
United States v. Carey, 11 USCMA 443, 29 CMR 259
(1960). The opinions of the experts do not necessarily de-
fine the scope of the responsibility of the court-martial.
The members must consider and weigh all of the evidence
presented. Jd. In analyzing the two contrary expert opin-
ions, we examine the important factors which formed the
bases of those opinions such as the professional quailifi-
cations of each expert, the duration and depth of obser-
vation and evaluation by each expert, the length of time
elapsed since the offense and each examination, and the
extent of other background materials and data considered.
United States v. Bush, 14 MJ 900 (NMCMR 1982). In
weighing the two expert opinions offered in the case sub
35a
judice, even keeping mind that Dr. Chamberlain’s board
reached a unanimous conclusion, the most significant dis-
tinction is the fact that Dr. Karols relied heavily on the
observations by many witnesses of appellant’s behavior
preceding, during, and following the night of the assault,
data which was not considered by Dr. Chamberlain’s board.
We do not believe that Dr. Karols’ lack of an extensive
family history of appellant was particularly significant since
both experts agreed that such data is most useful in reach-
ing a diagnosis but not as important in reaching a con-
clusion about behavior at any specific time.
A number of factors in the record, particularly appel-
lant’s use of a knife, his apparent stealth and planning of
the assault, his attempts to conceal his conduct, and his
- threats to Mrs. P convince us that appellant fully appre-
ciated the criminality of his conduct and possessed the
capacity to conform his conduct to the requirements of
the law. We are satisfied that Dr. Karols’ opinion, plus
the other testimony presented as to appellant’s behavior,
constitutes substantial evidence of his sanity sufficient to
convince us beyond a reasonable doubt that he was re-
sponsible for his criminal conduct.
VII. THE MILITARY JUDGE’S PRESUMPTION DUR-
ING THE FINDINGS INSTRUCTIONS THAT THE
ASSAULT, AS ALLEGED IN CHARGE II, OC-
CURRED, DENIED APPELLANT THE PRE-
SUMPTION OF INNOCENCE.
The military judge, during his instructions on the ele-
ments of the offenses, instructed the members to consider
all relevant factors and circumstances including the tes-
timony of Mrs. P regarding the acts and statements of
the accused “‘during the time of the assault on her.”’ The
military judge’s use of the word “‘assault’’ in that instruc-
tion is the basis for this assignment of error.
In United States v. Gaiter, 1 MJ 54 (CMA 1975), the
Court of Military Appeals overturned a conviction based
36a
on erroneous instructions by the military judge in which
he concluded that the accused had sold drugs despite the
accused’s testimony to the contrary. Although there was
no objection at trial, the Court refused to apply the doc-
trine of waiver, because the incorrect instruction was on
a material issue. In the case sub judice, the issue of
whether or not an assault occurred was essentially con-
ceded at trial as evidenced by the reference by the trial
defense counsel at least twice in his closing argument to
Mrs. P’s “assailant.”” We find no fair risk that prejudice
could have resulted to appellant from the military judge’s
instructions. The possibility of prejudice was further di-
minished by the general exhortation later in the instruc-
tions that the members should disregard any comment by
the military judge which would seem to express his opinion
as to the guilt or innocence of the accused. United States
v. Grandy, 11 MJ 270 (CMA 1981).
IX. THE APPELLANT WAS SEVERELY PREJU-
DICED BY THE INFLAMMATORY COMMENTS
AND MISSTATEMENTS OF FACT AND LAW
MADE BY THE TRIAL COUNSEL DURING THE
FINDINGS AND SENTENCING ARGUMENTS IN
A CONTESTED MEMBERS TRIAL.
In her argument on findings, the trial counsel argued
that Dr. Smyer gave his opinion that appeilant ‘‘knew right
from wrong.”’ She also argued at several points that ap-
pellant knew right from wrong and, at one point, appar-
ently equated the Frederick and M’Naghten [M’Naghten’s
Case, 10 Cl. & F. 200, 8 Eng.Rep. 718 (H.L. 1843)] stand-
ards of mental responsibility: ‘nor did it render him in-
capable of appreciating the criminality of his conduct, in
other words, appreciating wrong from right. ...’’ Appel-
lant contends that this amounted to a misstatement of law
by the trai] counsel. Appellant also contends that the trial
counsel made a misstatement of the evidence by arguing
that Dr. Chamberlain testified that the ‘‘only reliable di-
37a
agnostic tool to predict whether or not at a given point
in time an accused lacked substantial capacity, based on
this disease, was to observe his behavior at the time”’
(emphasis added). Appellant contends that this combination
of errors was so prejudicial that it warrants reversal of
his conviction despite the absence of any objection at trial.
The trial counsel was correct in summarizing Dr.
Smyer’s testimony that in his opinion appellant knew right
from wrong. Although this opinion may have been irrel-
evant, there was no objection at trial. The trial counsel
did improperly equate the Frederick and M’Naghten stand-
ards of mental responsibility; however, in the absence of
any objection and in light of the military judge’s very clear
instructions on mental responsibility, we perceive no risk
that the members were persuaded to apply an improper
standard. Dr. Chamberlain agreed on cross-examination
that “the only really reliable way to determine whether
or not a person is manic-depressive is to actually observe
his behavior.”’ Therefore the trial counsel’s interpretation
of Dr. Chamberlain’s testimony was not so incorrect that
it should be characterized as a misstatement of fact.
In her sentencing argument, the trial counsel argued
strongly that general deterrence should be a factor in the
members’ deliberations; yet, she did not argue general de-
terrence to the exclusion of other factors. Considering the
absence of any objection at trial and the military judge’s
instructions on sentencing, and comparing the adjudged
sentence with the maximum authorized sentence, United
States v. Lania, 9 MJ 100 (CMA 1980), we are convinced
that the members did not give undue consideration to the
theory of general deterrence in adjudging a sentence.
We find that the remaining assignments of error are
without merit. Even considering the psychiatric testimony
in mitigation, we further find that the sentence is appro-
priate in light of the egregious nature of the assault. Thus
we conclude that no error materially prejudicial to the
38a
substantial rights of appellant was committed. Accordingly
we affirm the findings and sentence as approved on review
below.
ls/ O, L. Cedarburg
O. L. CEDARBURG
Judge GORMLEY and Judge MIELCZARSKI concur.
/s/ Matthew J. Gormley TJ]
MATTHEW J. GORMLEY III
s/ A. F. Miel ki
A. F. MIELCZARSKI
39a
APPENDIX C
UNITED STATES COURT OF MILITARY APPEALS
UNITED STATES,
Appellee
¥,
BRENT C. WATTENBARGER (489-66-1073),
Appellant
USCMA Dkt. No. 46778/NA
CMR Dkt. No. 82-0461
ORDER DENYING PETITION
FOR RECONSIDERATION
On consideration of appellant’s petition for reconsider-
ation of this Court’s decision, 21 M.J. 41 (1985), it is, by
the Court, this 10th day of January 1986,
ORDERED:
That said Petition is hereby denied.
For the Court,
/s/ John A. Cutts, III
Deputy Clerk of the Court
ec: The Judge Advocate General of the Navy
Appellate Defense Counsel (GORDON)
Appellate Government Counsel (HOLT)
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.