In Re Richard
Military Judge: CDR Jeffrey C. Barnum, USCG
Appellate Defense Counsel: LCDR Megan E. Martino, JAGC, USN; LCDR Kristen R. Bradley, USCG
Appellate Government Counsel: Mr. John P. Nolan, Esq.; CAPT Anita M. Scott, USCG
BEFORE McCLELLAND, JUDGE & BRUBAKER, Appellate Military Judges
McCLELLAND, Chief Judge:
Petitioner, an accused at a general court-martial, seeks extraordinary relief in the form of a writ of mandamus ordering that the charge and specification be dismissed with prejudice, citing the Double Jeopardy Clause of the Fifth Amendment and
In 2021, after the death of her infant daughter, Petitioner was tried at a general court-martial on one specification of unpremeditated murder, in violation of
On appeal, this Court set aside the conviction, holding “that the specification failed to provide adequate notice of the act(s) or omissions(s) on which the involuntary manslaughter conviction was based and that this error was not harmless beyond a reasonable doubt.” United States v. Richard, 84 M.J. 586, 588 (C.G. Ct. Crim. App. 2024) (”Richard I“). We dismissed the specification and authorized a rehearing. Id. at 593.
The Government has now referred to general court-martial against Petitioner one specification of involuntary manslaughter, in violation of
- Given the ambiguous verdict in the first trial, trying Petitioner on the new specification is barred by double jeopardy principles.
- The appellate decision after the first trial authorized a rehearing, but the second trial is an “other trial” under
Rule for Courts-Martial (R.C.M.) 810(e) , which was not authorized. - When an accused is acquitted of a specification but convicted of a lesser included offense, and the conviction is reversed because the specification was legally inadequate, a retrial is only permissible if a proper instruction on the lesser included offense had been given. In this case, no instruction was given on lesser included offense under murder while engaging in an act inherently dangerous to another, and the instruction on lesser included offense under unpremeditated murder was legally incorrect because it was based on the legally inadequate original specification.
Law
“The writ of mandamus is a drastic instrument which should be invoked only in truly extraordinary situations.” United States v. Labella, 15 M.J. 228, 229 (C.M.A. 1983). To prevail, a petitioner seeking a writ of mandamus must show that: “(1) there is no other adequate means to attain relief; (2) the right to issuance of the writ is clear and indisputable; and (3) the issuance of
The
When a person is charged with one offense, the court is instructed on and convicts the person of a lesser included offense, and the conviction is reversed on appeal, the person may be tried again upon the lesser included offense. United States v. McMurrin, 72 M.J. 697 (N.M. Ct. Crim. App. 2013), pet. denied, 73 M.J. 243 (C.A.A.F. 2014), cert. denied, 574 U.S. 936 (2014); United States v. Gooday, 714 F.2d 80 (9th Cir. 1983), cert. denied, 468 U.S. 1217 (1984).
“Ambiguous” verdict
Petitioner labels as ambiguous the verdict of guilty of involuntary manslaughter at the first trial. It is true that it was ambiguous in the sense that an observer cannot know what act or acts the court members believed caused the child‘s death. This is a natural consequence of the general verdict. “A court-martial panel ... returns a general verdict and does not specify how the law applies to the facts, nor does the panel otherwise explain the reasons for its decision to
The classic “ambiguous verdict” situation is presented by United States v. Wilson, 67 M.J. 423 (C.A.A.F. 2009). A single specification alleged that an offense occurred “on divers occasions” over a period of time. Id. at 424. The accused was found guilty of the specification, excepting the words “on divers occasions.” Id. There was no indication of which occasion was the basis for the guilty finding. Id. at 427. Thus, “the accused [had] been found guilty of misconduct on a single occasion and not guilty of the remaining occasions.” Id. at 428 (quoting United States v. Augspurger, 61 M.J. 189, 190 (C.A.A.F. 2005) (cleaned up)). “If there is no indication on the record which of the alleged incidents forms the basis of the conviction, then the findings of guilt are ambiguous and the Court of Criminal Appeals cannot perform a factual sufficiency review.” Id. (citing United States v. Walters, 58 M.J. 391, 396-97 (C.A.A.F. 2003)).
The ambiguous verdict doctrine “applies only in those narrow circumstances involving the conversion of a ‘divers occasions’ specification to a ‘one occasion’ specification through exceptions and substitutions by the members. An unadulterated, unobjected-to, general verdict implicitly contains a verdict of guilt as to each underlying act . . . .” United States v. Rodriguez, 66 M.J. 201, 205 (C.A.A.F. 2008) (cleaned up).
The case of Russell v. United States, 369 U.S. 749 (1962), cited in our opinion in Richard I, sets out the difference between our case and the ambiguous verdict situation:
[T]wo of the criteria by which the sufficiency of an indictment is to be measured ... are, first, whether the indictment contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and, secondly, in case any other proceedings are taken against him for a similar offense whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.
369 U.S. at 763-64 (cleaned up).
Richard I, like the Russell case, failed the first criterion. Ambiguous verdict cases fail the second criterion. These are cases in which the verdict comprises both a finding of guilty and a
In the trial of Richard I, the Charge I, specification 1 murder specification alleged that the accused acted “with an intent to kill or inflict great bodily harm.” Pet., App‘x A [charge sheet from Richard I]. The LIO instruction that led to the finding of guilty of involuntary manslaughter substituted for that intent that the accused‘s act “constituted culpable negligence.” Trial Transcript at 3959, Richard I. The remaining elements of the two offenses were the same. The members convicted him of the LIO of involuntary manslaughter without exception. The acquittal on murder along with the conviction on involuntary manslaughter means that the intent element of murder was not found proved. Instead, the element of culpable negligence was found proved. It is clear that the acquittal lies only in the absence of the intent associated with murder. There is no ambiguity about what feature of the specification is associated with the acquittal.
Petitioner argues that “both this Court and the Military Judge have found she was quite possibly already acquitted of” certain alleged acts at her first trial that are now being alleged at the second trial. Pet. at 14. Neither this Court nor the Military Judge so found. We opined that it is “possible . . . that the members rejected the pressed-head-into-mattress theory along with the intentional-murder theory and based their finding of culpable negligence instead on some other act(s) or omission(s).” 84 M.J. at 593. This is far from finding that petitioner was acquitted of pressing the child‘s head into the mattress. Rather, it is, again, a statement of the uncertainty as to specifics that is a natural consequence of the general verdict. Likewise, the Military Judge stated,
It is certainly possible the members acquitted the accused of murder because they did not believe she pressed [the child‘s] head into the mattress . . ., but it is equally possible they acquitted her of murder because they believed she acted with culpable negligence while pressing [the child‘s] head into the mattress rather than with intent to kill or inflict great bodily harm.
Pet., App‘x W at 16. In short, Petitioner‘s argument on this point is wholly without merit.
Petitioner asserts that although we authorized a rehearing in Richard I, the new trial is not a rehearing but an “other trial” under
As the Government points out, the terms “rehearing,” “new trial,” and “other trial,” set out in
Petitioner argues, “Nothing about the definition of an ‘other trial’ permits the Government to try the accused a second time on an LIO that could have been brought in the first prosecution.” Pet. at 18. The argument lacks support and involves a non sequitur. In this case, there was a properly instructed LIO of involuntary manslaughter. The only defect was that, as charged, it failed to state an offense.
“Legally incorrect” instruction on LIO
Petitioner argues that because no LIO instruction was given under the specification of inherently-dangerous-act murder (specification 2), the acquittal thereon effected an acquittal of involuntary manslaughter (which could have been instructed on), regardless of other routes to that LIO (here, the other murder specification) and hence there can be no retrial on the LIO of involuntary manslaughter.
As to the instruction on LIO under the specification of unpremeditated murder (specification 1), Petitioner asserts that
the Military Judge in Richard I instructed the members on a legally incorrect LIO, which was essentially a legal nullity. The cases permitting jeopardy to persist over an LIO rely on a proper LIO instruction. Thus, it logically follows that continuing jeopardy over the LIO is contingent on the propriety of the instruction. If no legally proper LIO is instructed on, jeopardy terminates over the greater offense and all LIOs when there is an acquittal on the greater offense.
Pet. at 35 (cleaned up).
There is no basis for the notion that an instruction on an LIO, constructed in accordance with principles for instructing on an LIO (that is, using the terms of the original specification), is a “legal nullity” simply because both the original specification and the LIO specification were defective. As the Government cogently argues, when the conviction was set aside in Richard I for technical reasons, retrial was not barred.
Decision
In sum, Petitioner fails to demonstrate that she is clearly and indisputably entitled to the relief she seeks. Petitioner‘s petition for extraordinary relief in the form of a writ of mandamus is DENIED.
Judges JUDGE and BRUBAKER concur.
Rebecca P. Pskowski
Acting Clerk of the Court