United States v. Koren

Opinion of the Court

As in United States v Lipovsky, 17 USCMA 510, 38 CMR 308, this day decided, issues are presented to this Court inquiring whether accused was denied a speedy trial and, if so, whether the prejudice flowing from such denial was eliminated by a pretrial agreement in the case. As in that case, we are unable to determine whether a majority of the board passed upon the issue as one of fact. See United States v Lamphere, 16 USCMA 580, 37 CMR 200. Accordingly, we remand the case for clarification of the decision. United States v Stivers, 11 USCMA 512, 29 CMR 328; United States v Judd, 10 USCMA 113, 27 CMR 187.

In addition, it is urged that the accused was deprived of the services of some of his appointed defense counsel. The appointing order in fact lists three officers as defense counsel. Only one, Captain Joseph E. McDonald, appeared at the trial, having, in addition, represented the accused at the pretrial investigation. In United States v Tav*514olilla, 17 USCMA 395, 38 CMR 193, we pointed out accused was entitled to be represented by each and every member of the defense named as such on the appointing order, noting those not present “could not be authorized by the convening authority to be absent from the trial.” Tavolilla, supra, at page 399. On the basis of inquiries made by the law officer and knowledgeable replies by the accused, we found in that case an express waiver of the right to have other counsel present and assisting in the defense. Here, the law officer made no such inquiries, but the record expressly reflects accused was to be “defended by Captain Joseph E. McDonald, U. S. Marine Corps Reserve.” Fairly read, and absent any complaint by the accused, such indicates waiver of his entitlement to the presence and services of the other members of the defense. United States v Tavolilla, supra; United States v Culp, 14 USCMA 199, 33 CMR 411, separate opinion of Judge Ferguson, at page 219.

The decision of the board of review is reversed, and the record of trial is remanded to the Judge Advocate General of the Navy for action not inconsistent with this opinion.