Opinion of the Court
George W. Latimer, Judge:
In the instant case a board of review placed too great a burden on the Government to protect an accused who was intent on forcing a law officer into the inextricable position of either granting a continuance or committing an error by conducting a trial while accused was without the benefit of counsel. Obviously a system of justice would indeed be weak and ineffective if it could be manipulated to the advantage of cunning or recalcitrant persons on trial, and we do not propose to undermine the law by permitting this accused to reject without reason or excuse one of the beneficent legal privileges accorded him by the Uniform Code of Military Justice and then complain because he lost.
This appeal concerns the second conviction of the accused for committing the .alleged offenses as he was first found guilty by a general court-martial sitting in Germany on April 14 to 16, 1959. On that occasion he was convicted of making a false official statement, making a false claim, and bigamy, in violation of Articles 107,132 and 134, Uniform Code of Military Justice, 10 USC § 907, 932, 934, respectively. He was sentenced to a dishonorable dis-charge, total forfeitures, confinement .at hard labor for five years, and reduction to the lowest enlisted grade. Subsequently, the convening authority disapproved the findings and ordered a rehearing because of trial counsel's improper cross-examination of the accused when he was a witness in his own behalf. The identical charges .came on for rehearing, and, finally, after the events recounted later in this opinion, accused was again found .guilty of all offenses charged. The same punishment was assessed by the court, and the convening authority approved except he reduced the period .of confinement from five to four years.
In due course of time, the record reached the board of review, and that tribunal disapproved the findings and sentence, holding that the accused was deprived of his right to representation of counsel guaranteed him by Article 38(b), Uniform Code of Military Justice, 10 USC § 838. In so concluding, the board recognized that in United States v Kraskouskas, 9 USCMA 607, 26 CMR 387, this Court had observed that an accused could waive his right to counsel. However, the board found that the doctrine of waiver was inapplicable in this case because it concluded the law officer failed to make the intensive and comprehensive inquiry required by Federal court decisions that had considered the waiver of rights guaranteed by the Sixth Amendment to the Constitution of the United States. The Judge Advocate General of the Army thereafter certified the record to this Court requesting that we make the following determination:
"Was the board of review correct in holding that the accused was unlawfully deprived of the right to counsel?"
In order to frame the issue in a satisfactory manner, it is necessary to state a few additional facts. At the rehearing, accused was defended by the same appointed defense counsel who represented him at the first trial. In addition, he had retained the services of individual civilian counsel, a member of the Massachusetts Bar and a former United States Attorney in Germany. On the 20th day of July 1959, when the rehearing commenced, an out-of-court hearing was held to entertain certain defense motions. The individually retained defense counsel sought to delay the trial, and in support of his position asserted that his preparation of the defense was hindered by the fact that accused was kept in confinement from his original conviction until the rehearing. Counsel, however, conceded that he had not been denied consultation with the accused, and the weakness of this ground became apparent. He then went on to state that accused was willing to testify under oath that there was evidence in the United States material to the defense which accused alone could obtain, but significantly counsel did not know the character of this evidence. To support the statement of his counsel, accused then took the witness stand and testified substantially as follows: That he had attempted to secure the desired evidence prior to the first trial; that his mother was the only conduit through which possession would be obtained; that due to the fact he was found guilty at the first trial, she was not expediting its acquisition; that she was waiting until accused was transported to the United States or was informed by him that he needed the documents; that the evidence consisted of an affidavit signed by his alleged wife and three other affidavits signed by people "connected with the law"; and that his mother's lawyer was waiting to find out how much time he had to secure these affidavits.
From other testimony, it appeared that both civilian and military defense counsel were kept completely uninformed by the accused as to the nature of the evidence that was to be involved in the alleged affidavits, although shortly after the original trial appointed defense counsel had written to accused's mother but had received no answer. This, according to the accused, was because his mother was a suspicious woman who would trust no one but himself, and she would respond only to his plea.
As a result of this out-of-court hearing, a sixty-day continuance was granted by the law officer so the accused could obtain the evidence and individual counsel could prepare his defense. To further aid the accused, the law officer ordered trial counsel to make sure he was not hindered in his attempt to secure any evidence necessary for his defense. The trial was to proceed on September 21, 1959, but on September 14, 1959, the defense asserted the document had not arrived and requested a further delay. This request was granted and October 1, 1959, was ordered as the date of trial. The law officer expressed some reservations about this additional delay but both counsel assured him at this time that they would be ready for trial on the selected date. Apparently the assurance was too optimistic, for there was another two weeks' continuance.
Ultimately, the court was called to order on October 14, 1959, but in spite of the prior assurances and the consideration previously shown accused, the defense moved for another continuance, alleging that accused was still awaiting news from his mother. The defense supported the motion by presenting a letter from accused's, mother dated October 10, in which she stated in part, "She [apparently accused's wife] wouldn't answer my letter, but I have news for you. I am working on something else and hope it won't backfire." When he could offer nothing definite as to the contents or ultimate arrival of these purported evidentiary documents and it was ascertained that accused was not using his counsel to aid in obtaining the evidence, the law officer refused to grant a further stay and ordered the trial to proceed.
As a consequence of this order, individual defense counsel immediately apprised the law officer that his client: had instructed him to inform the law officer that the accused desired to discharge both civilian and military counsel. Obviously this delaying maneuver had been agreed upon before the hearing. In answer to an inquiry by the law officer, the accused stated that if he couldn't get a continuance, he would be required to release his. lawyers as he had no defense. The law officer pursued the matter further and, in reply to another inquiry, the accused asserted he preferred to continue without counsel and he persisted in this attitude, even though the1 law officer explained fully the possible consequences and directed him and counsel to discuss the matter and ordered a recess for that purpose. When court reconvened, accused ended this part of the discussion by saying he had no faith in his defenders.
Trial counsel then joined in the proceedings by injecting a request that, defense counsel be required to sit at, the counsel table so that the accused might have the advice of a lawyer should the occasion arise. Individual defense counsel parried this move by-asserting1 it was not enough that counsel be available, for the defendant must have faith in those defending him and be ready to assist them in his defense. He then went on to say this :
". . . I think, sir, that you would be treading on thin ice here, and I would suggest you reconsider and give this man two or three weeks more. You have been very, very good to him this fax*, you have gone over backwards, and I realize there must be an end to it, but you have gone this far, and you have seen something in this vei-y ambiguous lettei', there might be something there, and I think you ought to consider that and give him one more recess."
After indicating he had leaned over backwards and would go even further if something more tangible than mere hopes of obtaining some undisclosed testimony was presented, the law officer found himself faced with a situation where he could obtain no assurance there was any evidence in existence. He thereupon stated:
"Now, the accused has requested that both counsel expi-essly be dismissed from this ease. I would like to ask the accused, is it still your request, or have you given further thought to it?
• "ACCUSED: It is still my request, sir.
"LO: Do you desire me to advise you any further as to the need for you to have counsel? Do you realize fully what you are doing, not to be represented by counsel in this case?
"Accused: Yes, sir.
"LO: Do you know that counsel is for your protection, and that they are trained in the ways of the law, they know how to cross-examine, they know when to make motions, they know how to request instructions that the law officer must give the court in connection with the essential elements of the offenses with which you are charged? There are many technicalities that only a lawyer who is legally trained, legally qualified, can full appreciate in a court-martial pi'oceedings. Do you understand that fully?
"Accused : Yes, sir."
The law officer more carefully explained to the accused the benefits he might lose, but the latter remained adamant and the law officer finally complied with his demands and released counsel. Yet he did provide that military counsel must remain in the coui't-room so that he might be available to act in behalf of the accused should the latter make such a request. Furthermore, individual counsel offered to and did remain to help the accused should his services be desired.
Thereafter, the accused entered a plea of not guilty, and the prosecution presented its case in chief. Though offered the opportunity to cross-examine Government witnesses, the accused refused, using a variety of excuses for his failure to take advantage of his right. However, he became a witness for the limited purpose of rebutting prosecution testimony on the voluntariness of his pretrial statement. Further, he took the witness stand in his own behalf after the completion of the prosecution's case to deny his guilt but principally to bring before the court-martial members his assertion that he should have been given further time to perfect his defense. Finally, when the issues were to be submitted to the court the law officer very painstakingly explained each instruction to the accused and, insofar as possible, made certain he understood the theoi'ies propounded.
In responding to the issue here certified, counsel for the parties have thoroughly briefed the question as to whether the accused effectively waived his right to counsel. In light of United States v Kraskouskas, supra, wherein we stated:
". . . As always, an accused can waive his right to counsel 'if he knows what he is doing and his choice is made with eyes open.' "
both concluded that under the Code such a right can indeed be waived. In this they are correct for, as we indicated in that case, under both Article 38(b) of the Code, supra, and the Sixth Amendment of the Constitution the right to counsel is correlative to the right of an accused to defend himself. This latter right is universally recognized so long as a defendent is sui juris and mentally competent. Indeed the court should not force a lawyer not of his choice upon a sane defendant. Adams v United States, 317 US 269, 87 L ed 268, 63 S Ct 236 (1942); Carter v Illinois, 329 US 173, 91 L ed 172, 67 S Ct 216 (1946); United States v Steese, 144 F2d 439 (CA 3d Cir) (1944); Duke v United States, 255 F2d 721 (CA 9th Cir) (1958).
It might be of some importance to inquire into the reasons why the accused may waive such an important right. The Constitutional amendment —and necessarily Article 38(b) of the Code — reflect an enlargement of benefits afforded an accused. Historically, those who stood charged with a crime had no right to be heard through counsel. Accordingly, assistance of counsel afforded to those so charged was a decided gain, but accepting the benefit was not compulsory. The rigors of the common law were thus tempered but only to the extent of granting an additional right and not to the extent of barring the accused from acting in his own behalf.
Rule 44 of the Federal Rules of Criminal Procedure sets forth the practice now followed in Federal District Courts. The rule provides that where a defendant appears in court without counsel, the court shall advise him of his right thereto and assign him the same at every stage of the proceedings unless he is able to obtain representation or elects to proceed without counsel. The rule had its origin in the language of the Supreme Court defining the right to counsel in the cases of Johnson v Zerbst, 304 US 458, 82 L ed 1461, 58 S Ct 1019 (1938); Walker v Johnson, 312 US 275, 85 L ed 830, 61 S Ct 574 (1941); and Glasser v United States, 315 US 60, 86 L ed 680, 62 S Ct 457 (1942). It is largely a restatement of the principles enunciated in those decisions, but it is to be noted that the accused retains his privilege of electing to proceed without counsel. Accordingly, while one charged with an offense may be foolish to choose himself as his lawyer, he is free to make that choice.
We well recognize the general rule is that a waiver of this sort should not be accepted by a law oifi-cer unless it is shown to be intentional and with full knowledge of its consequences. The board of review approached the problem with this rule in mind but apparently concluded the law officer failed to make the penetrating and comprehensive examination required by the Federal civilian cases. The board placed much emphasis on the rationale of Von Moltke v Gillies, 332 US 708, 92 L ed 309, 68 S Ct 316 (1948). It interpreted that decision to mean that in every case it is the responsibility of the judge, before approving the waiving of counsel, to advise the accused: (1) of the nature of the charges; (2) of the statutory offenses included within them; (3) of the range of the allowable punishments thereunder; (4) of possible defenses to the charges and circumstances in mitigation thereof; and (5) of all other facts essential to a broad understanding of the whole matter. No doubt that is a comprehensive and excellent rule, but facts influence the duties placed upon a law officer, and to illustrate the point that these factors are merely guides and may be too comprehensive under different factual situations, we refer to Ossenfort v Pulaski, 171 F2d 246 (CA 5th Cir) (1948), where it was written:
"We do not consider the recent case of Von Moltke v Gillies, 332 US 708, 68 S Ct 316, and similar decisions, applicable or controlling in favor of appellee here. In the Von Moltke case, petitioner was a foreigner indicted during the recent war for conspiracy under the Espionage Act, 50 USCA § 32, 34. After her arrest she was held incommunicado for four days, except for consultation and advice with FBI lawyer-agents and United States attorneys. She was charged with a capital offense, the penalty for which was death or imprisonment for as long as thirty years. Here, unlike petitioner in the Yon Moltke case, Pulaski was permitted to remain free on bond until his conviction, and. was afforded ample opportunity by the trial court to consult independent counsel of his own choosing, and apparently did so. By his own admission, he was a confirmed narcotic addict, and had been convicted on three previous occasions in the state courts. Moreover, he was familiar with court arraignment procedure in criminal cases."
But, even were we to test this case by the factors in the above-mentioned Von Moltke case, it is evident that accused made a clear and knowing waiver of his right. The law officer went to every reasonable length to persuade him to retain counsel. Accused's demands for additional time were outrageous and no one suggests the law officer's ruling on his last request for a continuance was an abuse of discretion. Accused was fully aware of the nature of the charges against him and any lesser offenses in issue, he had received the aid of counsel throughout a previous trial where all available evidence was developed and defense and prosecution theories exploited, he was aware of the punishment which had been imposed, he knew the overwhelming strength of the evidence against him and of the weakness of his own defense, and he had a full understanding of the advantages and disadvantages of his choice. He dismissed his own counsel and when it appeared they might be retained by the law officer he announced he had no confidence in them, but he rejected a suggestion for replacements. His assertion that he had no confidence in his counsel was a ruse which came too late and was in conflict with the record. Further, he had observed and had played a part in the development of issues in the first trial, and he was fully advised on the benefits of having a lawyer conduct the cross-examination of the witnesses and register objections.. While the board of review placed reliance on the fact that accused did not say he desired to represent himself, his behavior and statements, when coupled with the advice given him, supply those words. Certainly, this record convinces us that the accused independently, consciously, and with full knowledge of the consequences, chose to dismiss counsel and assume all risks incidental thereto. Never has there been a more intentional and preconceived decision by an accused.
Moreover, we believe it fairly infer-able from the record that the accused was playing fast and loose with the court in hopes he could impose his will upon the law officer. His refusals to examine witnesses for the reasons assigned by him were nothing but attempts to force a further continuance. He knew the difficulties incident to the task he was to assume and yet when he offered his own incompetency as an alibi, and the law officer informed him counsel were present to assist, he rejected their services. By pretentions unsupported by facts he had delayed proceedings from July 1959 to October 1959, and, had evidence beneficial to him been in existence and available, his counsel could have obtained it before trial. He would not confide in his lawyers and no doubt that lack of confidence sprang from lack of evidence. His mystic approach to the problem, through the media of a suspicious mother, was a successful method of seeing to it that the materiality, relevancy, and competence of the evidence could not be determined by his own lawyers or the law officer. Having sat through the original proceeding and realizing the inevitable conclusion of a rehearing, he used the only method available to him to stay the obvious consequences of being forced again to stand trial. When an accused has rejected a fundamental privilege granted to him by law, when he has been reasonably and cautiously protected by the law officer during the trial, and when we find no miscarriage of justice, we are not disposed to furnish him with another opportunity to play the role of a dictator. We, therefore, disagree with the conclusions of the board of review.
Since the case reached this Court, it has been called to our attention that depositions were used by the Government to supply evidence contrary to the rule announced in United States v Jacoby, 11 USCMA 428, 29 CMR 244. However, that is not quite accurate for here there was no objection to their use. This contention brings to the fore the risk an accused must assume when ' he elects to act as his own lawyer. It was obvious to the accused that he did not have the expertise of qualified counsel, but that inadequacy is not good reason to reverse this case. Once an accused has intentionally waived his right to counsel, the consequences flowing from that decision must be accepted by him, together with the benefits which he presumably sought to obtain therefrom. Smith v United States, 216 F2d 724 (CA 5th Cir) (1954). But more than that, there are special circumstances in this case which impel us not to bail out the accused from the consequences of his failure to object. At. the first trial, an objection was registered and so the accused was not entirely uninformed. Moreover, in this trial, when the deposition of his wife-was offered, the law officer twice advised the accused that he had the right to object. As on other occasions reflected by the record, the accused scorned the offer. Furthermore, help was at his elbow for the record shows he consulted with counsel who were present in court, and they were available at the time this objection should have been made. The mere asking by him would have brought them to his aid, but so long as he refused to permit their participation, the law officer was shackled. Considering the facts and circumstances on this facet of the controversy in their entirety, it appears clearly that United States v Jacoby, supra, and United States v Petterson, 11 USCMA 502, 29 CMR 318, are distinguishable.
For the foregoing reasons, the certified question is answered in the negative and the decision of the board of review is reversed. The record is returned to The Judge Advocate General for reference to the board of review for further action not inconsistent with this opinion.