As I am wont to do I was trawling some state cases, and I came across the (Second) District Court of Appeals for Florida decision in Rolon v. Florida. This is not a military case, but keep reading.
In Rolon, the accused was convicted of murder. On appeal Rolon successfully argued that he received IAC during the direct and cross examination of himself on the merits. A retrial was authorized. At the second trial, over objection, the prosecution was allowed to use Rolon’s testimony at his first trial on the merits of his second trial. On appeal Rolon argued that the second trial’s use of his testimony violated the Fifth and the Sixth. The appellate court rejected error on the Fifth, but agreed error on the Sixth. There is case law on the issue. But the court relied on two cases.
The parties do not cite, nor have we been able to find, any Florida authority that deals with this exact issue. However, authority from other jurisdictions explains the nature of the error in this case. For example, . . . People v. Mora, 262 P.2d 594 (Cal. Ct. App. 1953), disapproved on other grounds, People v. Van Eyk, 364 P.2d 326 (Cal. 1961)[.]
The court moved on:
While Mora dealt with the complete denial of counsel, a similar result was reached in a case involving ineffective assistance of counsel. . . . United States v. Murray, 52 M.J. 671 (N-M Ct. Crim. App. 2000)[.] . . .
The import of these two cases is that a defendant’s testimony given in violation of his Sixth Amendment right to counsel may not generally be used against him in a subsequent proceeding.
So, Murray had the following players involved: LCDR John A. Maksym, Appellate Government Counsel, the decision was authored by then Senior Judge Troidl (currently NMCCA’s clerk of court), and the other appellate judges on the panel were, W. A. DeCicco, and D. A. Anderson (two familiar names I believe). For older readers, Bill Hollerich was the military judge at the retrial. NMCCA had initially affirmed, but CAAF reversed and NMCCA sent the case back for a retrial. See prior history at United States v. Murray, 42 M.J. 174 (C.A.A.F. 1995).
NMCCA did not write on a clean slate in Murray. The Air Force was there first. See United States v. Vanderpool, 15 C.M.R. 609 (A.F.B.R. 1953); United States v. Mansfield, 33 M.J. 972 (A.F.C.M.R. 1991). Murray, 52 M.J. at 676, n. 9.
As a final note there is no indication of prior military service in Judge Craig Villanti’s bio.