Army Court of Criminal Appeals

United States v. Park

The Court found no need to grant relief on four assigned errors. However, the Court found three of Appellant's Grosty issues merited discussion and his claim of factual insufficiency warranted relief, including a slight reduction in his confinement.

1. On appeal, appellant raised the military judge's suppression ruling as an assigned error, indicating a belief that the motion to suppress was preserved for purposes of the contested larceny charge and for the firearm identified in the Article 92 violation. Appellant also raised in Grostelon matters the voluntariness of his plea, ineffective assistance of counsel, and factual sufficiency.

Appellant asserted his plea was not voluntary because the military judge did not discuss waiver of motions with him during the plea colloquy.

Appellant also argued his counsel did not explain to him the effect of his plea, namely that it waived his ability to challenge on appeal the military judge's ruling on the motions  to suppress.

Finally, appellant challenged the factual sufficiency of his larceny conviction.

The IAC issue was mooted by the court's finding of factual insufficiency to the relevant charges. As to the factual sufficiency of larceny, the Court found that,

When considering the entire record, we are not convinced of appellant's guilt to the greater offense of larceny beyond a reasonable doubt. Therefore, regarding the Specification of Charge IV, we shall affirm only so much of the guilty finding as is consistent with appellant's guilty plea to the lesser included offense of wrongful appropriation.

He got a little love on his confinement after the Court's reassessment.

United States v. Ellis

ATJAG has certified the following issues at CAAF.

I. WHETHER THE ARMY COURT ERRED BY FINDING APPELLANT HAD NOT WAIVED WHETHER THE MILITARY JUDGE SHOULD HAVE INSTRUCTED THE PANEL ON THE STATE OF LAW OF THE 1ST AMENDMENT.
II. WHETHER THE ARMY COURT ERRED BY OMITTING ANALYSIS REGARDING FORFEITURE ON WHETHER THE MILITARY JUDGE SHOULD HAVE INSTRUCTED THE PANEL ON THE STATE OF THE LAW OF THE 1ST AMENDMENT.
III. WHETHER THE ARMY COURT ERRED BY FINDING A MANDATORY PANEL INSTRUCTION ON THE STATE OF THE LAW OF THE 1ST AMENDMENT THAT THE MILITARY JUDGE FAILED TO GIVE.
IV. WHETHER THE ARMY COURT ERRED BY FINDING THE MILITARY JUDGE NEEDED TO PROVIDE A PANEL INSTRUCTION REGARDING A QUESTION OF LAW.

United States v. Murphy

Appellant raises four assignments of error, all of which warrant discussion. Appellant alleges: (1) the military judge erred in failing to grant a mistrial; (2) his two child endangerment convictions are factually and legally insufficient; (3) two of his domestic violence convictions are factually and legally insufficient; and (4) Specifications 8-12 of Charge II are multiplicious. Having fully considered briefs by counsel and the entire record, we find no error by the military judge in his decision not to grant a mistrial. However, we agree the child endangerment convictions and one domestic violence conviction are not factually sufficient.Finally, we find the remaining domestic violence convictions are not multiplicious. We grant appropriate relief in our decretal paragraph.

The facts surrounding the mistrial issue are summarized as,

After findings were announced, the military judge temporarily released the court. When the parties returned, the trial counsel informed the military judge of a conversation between a panel member, Lieutenant Colonel (LTC) and Captain (CPT)U, his command legal advisor, following the announcement of findings. The discussion concerned another panel member, Command Sergeant Major (CSM)M, who LTC reportedly described as having been "the only holdout" during deliberations. After CPT •responded words to the effect of, "I hate him," LTC reportedly responded he "wanted to strangle [CSM].

When initially asked, defense counsel stated they were satisfied with the matter being preserved on the record, as they believed the conversation alone did not "impugn[] the record in any way." Shortly after, defense counsel asserted that any additional voir dire or factfinding should occur after the panel sentenced appellant.

Following the presentation of sentencing evidence, the military judge asked appellant whether he wished to question any panel member prior to sentencing instructions being issued. Though defense counsel initially declined again, summarizing the issue as "a personal clash" between panel members versus an inappropriate discussion of the panel's deliberative process, he asked for additional time to speak with appellant. Upon their return, and at defense's request, the military judge individually questioned both LTCM and CPT• After hearing LTC's responses, as noted above, defense moved for a mistrial. The military judge recessed the court and ordered both parties to submit briefs.

After this recess, the military judge indicated he intended to excuse LTC M, at the request of both parties, and individually question every panel member to ascertain whether any member had attempted to influence another member based on their rank or position or had any other improper influence on another in the panel reaching its findings. Neither party objected and LTC was permanently excused by the military judge.

During voir dire of the members, there was no evidence of improper influence or unlawful command influence. However, the additional questioning revealed other concerns. First, CSM who had previously served with CPT E, texted CPT during the merits portion of the trial after CSM saw her sitting in the court gallery. The text was characterized by the military judge as "the exchange of benign pleasantries between two Soldiers." Second, after findings were complete, First Sergeant (1SG) heard two friends discussing appellant's case at a bar but removed himself from the conversation. The military judge excused 1SG for sentencing and denied defense's request for a mistrial.

The Court found no error in denying a mistrial where the various comments and texting was

Lieutenant Colonel's statements to CPT E regarding his frustration with CSM were not prejudicial to appellant as the concerning conversation between LTC.and CPT occurred after findings. Moreover, based on the voir dire of the entire panel, including CSMM, there is no evidence LTC attempted to influence CSMElor any other member during deliberations.

Excusing 1SFE was within the MJ's discretion.

Like with LT C , we note the conduct serving as the  1SG M's excusal occurred after findings were announced. Though there was no evidence to indicate 1SG In behaved inappropriately, the military judge, nonetheless, excused him from participating in appellant's court-martial in an abundance of caution.

Lastly, the voir dire of the panel revealed three members knew or had previously worked with CPT IE However, the mere presence of a judge advocate sitting in the gallery of a court-martial, who may have previously advised commanders currently sitting as panel members, does not per se establish unlawful command influence. This is especially the case when only three members of the panel even knew the attorney in question, and none of them were influenced by her presence. Finally, a CSM, exchanging pleasantries via text with a judge advocate with whom they have previously served, does not demonstrate unlawful command influence.

On factual sufficiency of the child endangerment the Court finds that,

​To convict an appellant of child endangerment, the government must establish appellant "ha[d] a duty for the care of a child under the age of 16 years" and "through design or by culpable negligence, endanger[ed] the child's mental or physical health, safety, or welfare." See United States v. Plant, 74 M.J. 297, 300 (C.A.A.F. 2015).

In this case, the government concedes the evidence admitted was factually insufficient. Though we are not bound by this concession, we "appreciate[] reasonable concessions like these, for they reflect counsel's careful understanding of the record, and they facilitate judicial economy."

Neither [alleged victim] witnessed or heard the assaults against their mother. Nor does it appear they were aware of the details of what transpired, even by the time of trial. Simply being near a source of harm, on its own, was insufficient to establish that or were, in fact, harmed. See Plant, 74 M.J. at 298-99. As such, based on the record before us, we find appellant's convictions were against the weight of the evidence and will provide relief in our decretal paragraph. UCMJ art. 66(d)(1)(B).

On the factual sufficiency of the two domestic violence specifications the Court finds that, 

On appeal, appellant challenges the sufficiency of two of his convictions for domestic violence. For one specification, domestic violence via "intent to threaten" (Specification 9), that he lacked the mens rea necessary to complete the offense, and for the other specification (Specification 10), that there was no evidence he punched the victim in the arm or neck. We agree with both contentions.

Upon reassessment of his sentence, his 30-month confinement was reduced to 27 months.