Courts of Criminal Appeals

United States v. Richard, 83 M.J. ___ (CGCCA)
(Record of Trial) **

Appellant with two specifications of murder under Article 118, UCMJ[.] The first murder specification alleged Appellant did “with an intent to kill or inflict great bodily harm, murder [SFG], a child under the age of 16 years, by asphyxia.” The second murder specification alleged Appellant did “with knowledge that death or great bodily harm was a probable consequence, murder [SFG], a child under the age of 16 years, while engaging in an act which is inherently dangerous to another and evinces a wanton disregard of human life, to wit: by asphyxia.”
. . . 
​[CGCCA] conclude[s] that the specification failed to provide adequate notice of the act(s) or omission(s) on which the involuntary manslaughter conviction was based and that this error was not harmless beyond a reasonable doubt.

The military judge denied a motion for a bill of particulars and a motion to dismiss for failure to state an offense as to both specifications.

​CGCCA suggests that counsel and military judges compare the specification as charged with the sample specification provided in the MCM and the Military Judges' Benchbook because both "urge more precision than" what was done here.

 The MCM’s sample specification for the charged offense of murder reads, in relevant part, that the accused did “murder ______ by means of (shooting (him) (her) with a rifle (_______)).” MCM, para. 56.e at IV-78. The shortcoming of the specification charged is not that charging authorities omitted the words “by means of.” It is that they missed the point: the model specification calls for alleging that the accused murdered someone by doing a specific thing—like “by means of shooting him with a rifle,” not by means of a cause of death like asphyxia or exsanguination. In the same vein, the Military Judges’ Benchbook advises instructing that the “death resulted from the (act) (omission) of the accused in (state the act or failure to act alleged).” Together, these should act as guideposts to charging authorities not just to charge that some act or omission resulted in a certain cause of death, but to state what that act or omission was. 

CGCCA then discusses how the prosecution invited the defense to engage in their guessing game. The court also addresses how this makes it difficult for an appellate court to determine under which shell the answer lies when evaluating the issue of failure to state an offense and also legal and factual sufficiency. The defense kept raising the issue of "what acts?"

​As it did throughout the trial, the Government responded by refusing to confine itself to any particular act(s) or omission(s). It stated that Appellant’s “request to know the specific act that led to [SFG’s death] . . . is really a request to limit the government to one and only one factual theory.” It reasoned that, having charged Appellant with causing death by asphyxia, it was free to present evidence of multiple uncharged acts or omissions that could have caused asphyxia, and, under the general verdict theory, the members could pick which provided the basis for a conviction. 
. . . 
[T]he [Supreme] Court instructs that an “important corollary purpose” of the requirement to set out such facts and circumstances is to inform an appellate court “of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had.” (quoting United States v. Cruikshank, 92 U.S. 542, 558 (1875)). “Viewed in this context, the rule is designed not alone for the protection of the defendant, but for the benefit of the prosecution as well, [and victims]* by making it possible for courts called upon to pass on the validity of convictions under the statute to bring an enlightened judgment to that task.” Id. at 769.

* A bit over two years ago a father, grandparents, perhaps aunts and uncles, and a convening authority thought they had received justice. Ordering, volunteering, or conceding a Bill of Particulars in this case may have gone a long way to ensuring the timely justice they sought.

The set-aside moots two (of 12) AOEs litigated at trial:

I. Whether Coast Guard Investigative Service (CGIS) agents unlawfully influenced Appellant’s court-martial by tampering with a material alibi witness to the point that she could no longer remember what she heard;

II. Whether the trial counsel committed prosecutorial misconduct by, inter alia, condoning the CGIS agents’ unlawful tampering with a material alibi witness, arguing what the witness would have said if called to testify in violation of the military judge’s prior ruling, and twice presenting inadmissible evidence[.]

Because a rehearing is ordered, what impact, if any, will the two mooted issues have on a retrial even though they had previously been litigated?

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United States v. Ruiz (NMCCA)

NMCCA points out that there are two bases for the admission of prior statements of a witness.

Military Rule of Evidence 801(d)(1)(B) permits admission of prior consistent statements made out of court in two different instances. The first is when offered, “to rebut an express or implied charge that the declarant recently fabricated” prior testimony, and the second is when offered “to rehabilitate the declarant’s credibility as a witness when attacked on another ground.”

NMCCA finds that a challenge to a "faulty memory" is another ground, citing itself in United States v. Drinkert, 81 M.J. 540, 554 (N-M Ct. Crim. App 2021).

Appellant argues that the military judge erred in restricting MAJ Whiskey’s testimony. While the military judge ruled that the Defense could elicit testimony that Ms. Sierra’s behavior was consistent with drug use generally, she excluded testimony regarding any specific drug that may have been used.

The NMCCA finds that the proffered testimony failed to show that

(3) the expert opinion based on a sufficient factual basis to make it relevant, and (4) the danger of unfair prejudice created by the testimony outweighed its probative value.
. . . 
there was no testimony by any witness that they saw Ms. Sierra use any prescription or recreational drugs that night. The responding officers additionally did not see any drugs or drug paraphernalia when they went through Ms. Sierra’s house.

using the test derived from United States v. Ellis, 68 M.J. 341, 342 (C.A.A.F. 2010).

​Finally, NMCCA engages in a teaching moment.

Appellant argues that the military judge erred in not providing an instruction regarding whether law enforcement can lie to suspects as well as not providing a limiting instruction on the proper use of the statements of the interrogators.

The military judge declined to provide Appellant’s requested instruction, stating that the interrogation had been admitted and published to the members [1] without objection, and that the requested limiting instruction was [2] untimely. Military Rule of Evidence 105 provides that “If the military judge admits evidence that is admissible against a party or for a purpose—but not against another party or for another purpose—the military judge, on timely request, must restrict the evidence to its proper scope and [3] instruct the members accordingly.” While Mil. R. Evid. 105 does not define what a “timely request” is, Rule for Courts-Martial 920(f) provides useful context stating, in general, “[f]ailure to object to an instruction or to omission of an instruction before the members close to deliberate forfeits the instruction.”

Assuming error, NMCCA uses the harmlessness test for nonconstitutional error and finds the instructional error did not have a “substantial influence” on the findings or give the court grave doubt sufficient to set aside the conviction.