The NMCCA denies a prosecution appeal over recalling a witness (that would require severing the accused’s attorney-client relationship with his military defense counsel)
With a published decision in United States v. Kokuev, 77 M.J. 531, No. 201700216 (N.M. Ct. Crim. App. Nov. 8, 2017) (link to slip op.), a three-judge panel of the NMCCA denies an interlocutory prosecution appeal of a military judge’s rulings denying a request to sever the attorney-client relationship between the accused and his detailed military defense counsel, and denying a prosecution request to recall a witness.
The CCA finds that it lacks jurisdiction to review the request to sever the attorney-client relationship, and that the military judge did nor err in denying the prosecution request to recall a witness.
Private (E-1) Kokuev is charged with offenses including battery of his wife and drug offenses. This is Kokuev’s second court-martial (the CCA summarily affirmed the result of the other court-martial on November 8). The battery and drug offenses were withdrawn from the first court-martial and later referred to this court-martial.
The prosecution called Kokuev’s wife as a witness to testify about the alleged battery. The prosecution did not ask the wife any questions about the drug allegations during direct examination, but Kokuev’s defense counsel asked her about her own drug use on cross-examination. A member then submitted a question for the wife asking if she even observed Kokuev use drugs, but the question was not asked.
After calling additional witnesses, the prosecution sought to recall the wife to testify about seeing Kokuev use drugs. Kokuev’s civilian defense counsel objected “based on a lack of notice, and because [the wife] had declined the defense’s requests for interviews.” Slip op. at 3.
The military judge initially denied the prosecution request but later – after a proffer during a 39(a) session – ruled that she could be recalled. In response, the defense requested production of two rebuttal witnesses. Kokuev’s detailed military defense counsel, however, formerly represented one of those rebuttal witnesses at a different court-martial, creating a potential conflict of interest.
Civilian defense counsel then moved to sever the attorney-client relationship between Kokuev and his detailed military defense counsel (eliminating the conflict of interest). The military judge denied that request and instead decided that the prosecution could not recall the wife because her testimony had minimal probative value that was substantially outweighed by other concerns. In part:
the MJ [military judge] found that recalling [the wife] would result in an actual conflict of interest for defense counsel, and that this conflict would require [detailed defense counsel’s] removal from the case. This finding weighed heavily in the MJ’s MIL. R. EVID. 403 analysis.
Slip op. at 4. The prosecution appealed.
Writing for the panel, Senior Judge Hutchison first considers whether the CCA has jurisdiction.
Relying on [United States v. Vargas, 74 M.J. 1 (C.A.A.F. Dec. 8, 2014) (CAAFlog case page)], the appellee argues that the MJ’s ruling denying the government’s request to recall ZK was simply a “case management ruling intended to protect the rights of an accused and ensure the effective administration of justice,” and therefore, “not reviewable under Article 62, UCMJ.” . . .
. . .
The MJ’s ruling precluding ZK from testifying here is readily distinguishable from the MJ’s ruling in Vargas. . . . Here, the MJ applied the MIL. R. EVID. 403 balancing test and determined ZK’s proffered testimony was inadmissible. As a result, the MJ’s decision had the direct effect of excluding ZK’s testimony that she observed the appellee use and manufacture MDMA. We have jurisdiction to decide a government appeal of this ruling.
However, the MJ’s denial of the defense’s motion to excuse Capt RM was not an order or ruling that excluded evidence. . . .
. . . This ruling does not satisfy the jurisdictional requirements of Article 62(a)(1), UCMJ.
Slip op. at 5-7.
Senior Judge Hutchison concludes:
Having concluded that the MJ did not labor under an erroneous view of the law regarding the scope of “unfair prejudice,” and recognizing that the MJ “has a range of choices and will not be reversed so long as the decision remains within that range,” Gore, 60 M.J. at 187, we hold that the MJ’s ruling denying the government’s request to recall ZK was not beyond the range of reasonable decisions, and that he did not, therefore, abuse his discretion.
Even assuming the MJ, and by extension this court, erred in extending the Seventh Circuit’s 403 analysis of “unfair prejudice” to include the harm associated with severing an accused’s attorney-client relationship, we would still deny the government’s appeal. The MJ also concluded that the probative value of ZK’s testimony was substantially outweighed by the dangers of undue delay and wasting time. The MJ noted the issues caused by the delays to date—including the loss of two members—and concluded that permitting the government to recall ZK “would lead to an unquantifiable number of subsequent delays to the proceedings that could last for significant, unpredictable, and unknown periods of time.” Indeed, ZK had already testified at length and the government had prepared its case for over a year. Permitting the government to recall ZK based upon new-found information near the close of the government’s case would necessarily put the appellee in the undesirable position of either seeking a continuance in order to interview ZK and prepare cross-examination on her new testimony—thereby extending his lengthy pretrial confinement—or to forego such preparation to hasten the conclusion of his trial. Finally, the MJ appropriately concluded that recalling ZK would very likely require additional litigation surrounding Capt RM’s continued representation of the appellee, which would further delay the proceedings. Therefore, we also conclude that the MJ did not abuse his discretion in determining that the probative value of ZK’s testimony was substantially outweighed by the dangers of undue delay and wasting time.
Slip op. at 15-16.