

   
   
   
   U.S. v. Reist



UNITED STATES, Appellee
v.
Michael E. REIST, Sergeant
U. S. Marine Corps, Appellant
 
 
No. 98-0888
Crim. App. No. 97-1294
 
 
United States Court of Appeals for the Armed
Forces
Argued January 14, 1999
Decided April 7, 1999


CRAWFORD, J., delivered the opinion of a
unanimous Court.
 



Counsel
For Appellant: Major Stephen D. Chace,
USMC (argued); Lieutenant Robert Attanasio, JAGC, USNR (on brief);
Lieutenant
Albert DiGiulio, JAGC, USNR.
For Appellee: Lieutenant Timothy E. Curley,
JAGC, USNR (argued); Commander Eugene E. Irvin, JAGC, USN, Colonel
Kevin M. Sandkuhler, USMC, and Lieutenant James E. Grimes, JAGC,
USNR (on brief); Commander D. H. Myers, USN.
Military Judge: J. F. Blanche
 
 


THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE PUBLICATION.


Judge CRAWFORD delivered the opinion of the
Court.
Pursuant to his pleas, appellant was convicted
by judge alone of attempted sodomy of a child, rape (2 specifications),
sodomy of a child (2 specifications), and committing indecent acts with
a child (2 specifications), in violation of Articles 80, 120, 125, and
134, Uniform Code of Military Justice, 10 USC §§ 880, 920, 925,
and 934, respectively. These offenses occurred between September 1995 and
May 1996. Appellant was sentenced by the military judge to a dishonorable
discharge, 30 years confinement, total forfeitures, and reduction to the
lowest enlisted grade. Pursuant to a pretrial agreement, the convening
authority suspended confinement in excess of 15 years, otherwise approving
the findings and sentence. The Court of Criminal Appeals affirmed the findings
and sentence in an unpublished opinion.
We granted review of the following issue:



WHETHER LIEUTENANT COLONEL WARRINER, THE
DIRECTOR
OF THE LAW CENTER AT MARINE CORPS AIR STATION
YUMA,
WAS DISQUALIFIED FROM BEING THE ASSISTANT
TRIAL
COUNSEL BECAUSE HE WAS THE ACCUSER BASED UPON
HIS
PREFERRAL OF CHARGES AGAINST THE APPELLANT
AND HIS
PERSONAL INTEREST IN THE CASE.



We hold that it was not plain error for Lieutenant
Colonel (LTC) Warriner to act as the assistant trial counsel.

FACTS
LTC Warriner, Director of the Law Center at
Marine Corps Air Station, Yuma, Arizona, signed the charge sheet as the
accuser. However, at trial, even though LTC Warriner was announced as the
accuser, he was also present and serving as "associate" trial counsel.
When asked, LTC Warriner stated that he had not acted in a disqualifying
capacity. Additionally, he requested that any request for trial by judge
alone be denied, and stated that he would ask for a life sentence. Appellant
did not move for his disqualification at trial.
After a delay of more than 20 days, appellant
voluntarily entered into a pretrial agreement in which he requested trial
by judge alone and waived his rights to be tried by members. The convening
authority agreed to the conditions in the pretrial agreement, including
a provision to suspend any confinement in excess of 15 years. However,
during the Governments sentencing argument, LTC Warriner asked the military
judge to minimize the mitigating effects of appellants guilty pleas and
characterized appellants action as "cowardly criminal conduct of a sexual
pervert."
The defense argues that LTC Warriner abandoned
his unbiased position, becoming an "advocate for severity," and that his
actions materially prejudiced appellant. Final Brief at 2. Additionally,
the defense asserts that his actions "compromised the integrity of the
military justice system because a disinterested member of the public would
question the fairness and impartiality of proceedings prosecuted in this
manner." Id. at 3. According to the defense, LTC Warriners argument
"demonstrated a highly personal interest," and thus, there was a clear
error of law. Id. at 5. Further, the defense urges that the error
was obvious and plain, and thus, the Court should not invoke waiver.
The Government argues that at no time did LTC
Warriner become an accuser with a personal interest in this case. In any
event, the Government asserts, waiver should be applied.

DISCUSSION
Many individuals involved with a court-martial
are disqualified from performing other activites related to that court-martial,
including the staff judge advocate, see RCM 1106(b), Manual for
Courts-Martial, United States (1995 ed.); the Article 321/
investigating officer, see RCM 405(d)(1); the trial and defense
counsel, see RCM 502(d)(4)(A); the military judge, see RCM
902(b)(3); the court members, see RCM 912(f)(1)(C); and the convening
authority, see RCM 504(c)(1).
Article 1(9), UCMJ, 10 USC § 801(9), defines
an "accuser" as one "who signs and swears to charges." However, "any issue
[as to] whether [a] trial counsel was so determined to convict and punish
[an accused ] that he became an accuser [is] waived" by that accuseds
failure to raise the issue at trial. United States v. Rust, 41 MJ
472, 480 (1995); see also United States v. Hamilton,
41 MJ 32, 37 (CMA 1994)(failure to object to errors in the preferral, forwarding,
investigation, or review of charges before a plea is entered shall constitute
waiver); RCM 905(b)(1) and (e). Likewise, the failure to object to improper
argument constitutes a waiver of the objection. United States v. Stadler,
47 MJ 206, 208 (1997); RCM 919(c).
The waiver rules are designed "to prevent defense
counsel from remaining silent, making no objection, and then raising the
issue on appeal for the first time, long after any possibility of curing
the problem has vanished. It is important to encourage all trial participants
to seek a fair and accurate trial the first time around." United States
v. Causey, 37 MJ 308, 311 (CMA 1993), quoting United States v. Frady,
456 U.S. 152, 163 (1982).
To succeed under a plain error analysis, appellant
has the burden of establishing that there was plain or obvious error that
"materially prejudiced" his "substantial rights." Art. 59(a), UCMJ, 10
USC § 859(a); see also United States v. Powell,
49 MJ 460 (1998).
There is no question that LTC Warriner signed
the charges and, thus, was disqualified by the Rules of Courts-Martial.
This disqualification was known by the parties at trial because trial counsel
announced for the record the actions taken by LTC Warriner. Cf.
United
States v. Dinges, 49 MJ 232 (1998); United States v. Edwards,
45 MJ 114 (1996). Thus, the only question is whether there was a plain,
obvious error that prejudiced appellants substantial rights.
As to LTC Warriners assurance on the record
that he was not disqualified because he was an "associate," rather than
"assistant" trial counsel, the court below correctly remarked:

The title of associate trial counsel, fabricated
for Lieutenant Colonel Warriner in this case, is unknown
to the Code or the Manual.... Rather than
creating
an office for himself, Lieutenant Colonel
Warriner
might have better exercised the discretion
inherent
in his position as Director of the Law Center.

Unpub. op. at 2 n.2. LTC Warriners conduct, however,
did not impact on appellants trial. Disqualification takes many forms,
such as signing the charge sheets or obtaining privileged information as
a former defense counsel. There is a vast difference between the rules
applying to such circumstances and those determining when waiver should
be applied.
Appellants voluntary pleas of guilty to the
offenses and voluntary election of a judge alone trial took place after
LTC Warriner argued that any judge alone request should be denied. The
sentencing argument by LTC Warriner did not illustrate a personal animus
but, instead, the "hard blows" that may be struck by a prosecutor during
argument on the sentence. United States v. Doctor, 7 USCMA 126,
133, 21 CMR 252, 259 (1956). Nor did his actions show a personal interest
in the case.
Appellant pleaded guilty to very serious offenses:
2 specifications of rape, 1 specification of attempted sodomy, 2 specifications
of sodomy, and 2 specifications of committing indecent acts with his 6-year-old
step-daughter. He was sentenced to a dishonorable discharge, 30 years
confinement, total forfeitures, and reduction to the lowest enlisted grade.
Pursuant to the pretrial agreement, the convening authority suspended confinement
in excess of 15 years. Thus, we hold that any error did not materially
prejudice the substantial rights of appellant.
The decision of the United States Navy-Marine
Corps Court of Criminal Appeals is affirmed.
FOOTNOTE:
1/ Uniform
Code of Military Justice, 10 USC § 832.
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