*1 STATES, Appellant/Cross- UNITED
Appellee, Quartermaster FORBES, First
Todd R. Navy,
Class, Appellee/Cross U.S.
Appellant.
No. 04-5005.
Crim.App. 9901454. No. Appeals
U.S. Court
the Armed Forces.
Argued 2005. March Aug. 2005.
Decided *2 (two commu- specifications),
indecent assault (three specifica- language nicating indecent (three spec- tions), investigation impeding an ifications), minors furnishing alcohol to and (two Articles in violation of specifications), 92, 120, 125, of Mili- and Uniform Code 892, 920, (UCMJ), §§ tary 10 U.S.C. Justice (2000), The ad- respectively. and 934 dis- judged sentence included dishonorable fifteen period for a charge, confinement allowances, pay and years, forfeiture of all grade to E-l. pay and reduction in authority sen- convening approved The tence, adjudged suspended execution of the forfeitures, of automat- and waived execution period months un- for a of six ic forfeitures 58b, UCMJ, § 10 U.S.C. 858b der (2000), payment of the provision Appel- suspended and waived forfeitures of his wife and son. lee’s wife for benefit Navy-Marine Corps Court of Criminal findings Appeals set aside the and sentence published opinion, in a United States (N.M.Ct.Crim.App.2004) M.J. (en bane). Navy Judge Advocate General of the for review of
certified the case this Court following issues: THE I. WHETHER NAVY-MARINE OF CRIMINAL CORPS COURT ERRED IT APPEALS WHEN EFFRON, J., opinion delivered the HELD THE MILITARY JUDGE Court, GIERKE, C.J., BAKER which ER- COMMITTED REVERSIBLE ERDMANN, JJ., CRAWFORD, joined. BY THE ROR GIVING STANDARD J., dissenting opinion. filed INSTRUCTION ON APPELLEE’S Appellee/Cross-Appellant: For John B. SILENCE OVER APPELLEE’S (argued); Captain A. Wells Richard Viczo- THE WHEN MILI- OBJECTION brief). (on rek, USMCR THE TARY JUDGE BELIEVED App s-App For s ellee: Lieutenant WAS NECESSARY ellant/Cro INSTRUCTION (ar- Helmann, JAGC, Kathleen A. USNR THE TO PREVENT MEMBERS gued); K. Liet- Lieutenant Colonel William QUESTIONING APPEL- FROM (on brief). zau, USMC AND HOLDING LEE’S SILENCE
IT AGAINST HIM.
opinion
Judge EFFRON delivered the
THE
FIND
II. SHOULD
COURT
the Court.
DID
THE MILITARY JUDGE
ERR,
THE NAVY-
general
composed
At a
court-martial
WHETHER
members, Appel-
CORPS COURT OF
officer
enlisted
MARINE
APPEALS ERRED
lee/Cross-Appellant
(Appellee) was convict-
CRIMINAL
ed,
THERE
contrary
rape, violating a
IT HELD
WAS
pleas,
to his
WHEN
(three
OF PREJUDICE
specifications),
lawful order
non-fore-
PRESUMPTION
(two
ER-
adultery
sodomy,
specifications),
FOR THIS INSTRUCTIONAL
ible
(2002 ed.) (2002MCM),
ROR, REQUIRING
pt. III.
AUTOMATIC United States
rule,
in a court-mar-
REVERSAL UNLESS THE GOV- Under the
protective
right
ERNMENT
THE PRE-
tial has the absolute
to this
REBUTS
upon request by
BY A
defense counsel.
SUMPTION
PREPONDER-
requests
If
counsel
THE
ANCE OF
EVIDENCE.
members not receive such
Appellee’s cross-petition,
granted
On
we
re-
*3
military
request
“binding” upon
that
is
the
following
view of the
modified issue:
subject only
military judge’s
judge,
to the
THE
WHETHER
COURT OF CRIMI-
that the instruction is “neces-
determination
NAL
ERRED IN
APPEALS
ADDRESS-
sary
justice.”
in the interests of
THE
ING
ISSUE OF FACTUAL AND
301(g)
promulgated
in the aft-
was
THE
LEGAL SUFFICIENCY OF
EVI-
Supreme
ermath of the
Court’s decision in
DENCE IN
OF
LIGHT
ITS DECISION
Oregon,
Lakeside v.
435 U.S.
98 S.Ct.
TO REVERSE ON AN INSTRUCTION-
(1978).
1091,
for rule the MCM: recognizes Rule that the decision to I. INSTRUCTIONAL ISSUES cautionary ask for a instruction is one of great importance A. THE tactical for the defense RULE GOVERNING INSTRUC- generally solely TIONS WHEN AN ACCUSED DOES leaves that decision Although TESTIFY AT TRIAL within the hands of the defense. NOT military judge may give the instruction The Manual contains Courts-Martial when it in the interests of express governing right rule justice, to the intent the Committee is request preclude defense to or an instruction leave the decision hands testify at trial: when the accused does not defense in all but the most unusual cases. trial, testify When the accused does not at Analysis Drafter’s at A22-7. The rule reflects may request defense counsel that authority grant the President’s to members of the court instructed to members rights protective more of the armed forces disregard that fact and not to draw required by than those the Constitution. See adverse inference from it. Defense coun- Lopez, States v. United may request sel that the members not be (C.M.A.1992). so Defense counsel’s election instructed. binding upon shall be AT TRIAL B. PROCEEDINGS
except military judge may give APPEAL AND ON instruction when the instruction is neces- justice. sary in the interests merits, of the case on the At close (M.R.E.) under Ar- 301(g), judge conducted a session Military Rule of Evidence (2000), Courts-Martial, 39(a), UCMJ, § ticle 10 U.S.C. included in Manual proposed instruc- cerning sequence of the with counsel. proposed instructions discuss military judge stated that he intended to tion. The military judge stated agreed, si- had requested, instruction on the accused’s and he give defense had “[t]he proposed in- quoted the last lence.” He then instruction as the give disputed not has an absolute “The accused struction: in- give it before but instead to draw silent. You are not right to remain excep- findings by structing the members to the accused.” De- any inference adverse object to the trial counsel did tions. The in- objected proposed fense counsel sequence. proposed struction, following colloquy: which led to the assurance, in- disputed Despite this Well, object it? I will have to MJ: You provided was the last instruction struction instruc- that. That is a standard consider military judge. When the members Normally given intent— it is and its tion. for a then left the courtroom the members protect from my intent is to *4 arguments, the prior closing to recess brief any feelings by the members. I adverse misstep regard- military judge recognized his it, to and that know it calls attention “Counsel, I ing sequence of instructions: objection I your to it. under- probably my part.” apologize. oversight It was an you Do want to be heard further? stand. No, findings, de- sir. ADC: After announcement citing moved for a mistrial fense counsel Let me think about that one. MJ: issues, tim- including the content and several recess, military judge After a short military ing disputed instruction. 89(a) and re- reconvened the Article session motion, adding: “There was judge denied the proposed turned to the instruction: error, error, agreed give I had to my that outstanding, MJ: There were two issues instruction other than accused’s silence give one was whether I would the instruc- my in substantive instruc- last instruction I that tion on the accused’s silence. feel However, I don’t think that that was tions. give that is unless the defense grave such a nature to warrant an error of proposition that has case law cite extraordinary remedy a mistrial.” give though I shouldn’t it even the defense objects. Appellee Appeals, In the Court of Criminal necessary? You feel it’s military ADC: judge that the had erred contended failure-to-testify in giving the necessary. I do feel it’s MJ: court, objection. in an en bane over his object giving them ADC: We would decision, concluded that that instruction. erred, prejudicial. that the error was and you support MJ: Do have case law Forbes, judge at 942. One concluded 59 M.J. given over proposition it’s not to be in- military erred that objection? defense objection, that the struction over defense but No, argued have ADC: sir. Other courts (Rit- at 943—44 prejudicial. error was not Id. military objected— —have ter, J., dissenting in concurring part MJ: No case law? part). judge concluded that there Another No, sir. ADC: (Villemez, J., was no error. Id. at 945-47 just important think it’s to tell the MJ: part). part dissenting concurring they go that so don’t back and members why question ask the about the accused testify. my thought didn’t That’s C. DISCUSSION —and they not to hold also instruct them that are 1. review Standard any way.
that
Yes, sir.
ADC:
in
allegations
consider
of error
We
volving mandatory
under a de
instructions
recess,
brief
After another
States
novo standard of review. See United
for the record that the defense
noted
(C.A.A.F.1999).
Smith,
during
con- v.
request
a
the recess
had made
subject
concerning non-mandatory
to de novo review. We
decision
We review issues
instructions for an abuse of discretion. Unit
the court below that the standard
Damatta-Olivera,
ed States v.
M.J.
pro-
under M.R.E. 403
of review
issues
(C.M.A.1993).
analogy.
adopt the
appropriate
vides an
We
court,
articulated
framework
both
that
The court below noted
because
general approach
terms of the
to the stan-
301(g) requires
balancing
both
review,
application
and the
of that
dard
mandatory
non-mandatory components,
approach
to the
case.
the standard of review should take into ac
specific
the rule.
count
attributes of
military judge’s
2. Review
decision
Forbes, 59 at 939. The court also ob- M.J. justice prevail should over the interests of military judge’s a decision to served that case, in present the defense election binding of the override the otherwise election charges of cluding the seriousness something more defense must be based on misconduct; sce the similar factual sexual generalized than a “fear that the members charges; surrounding each of the nario appellant’s silence would hold identifying testimony alleged victims argued in him” because “such a fear could be and as the Appellee perpetrator as the every of silence of the accused.” Id. at case events; and the likeli witness to the other that the mili- 939-40. The court then noted expect rebuttal that the members would hood tary judge identify specific not inter- did as testimony person of his status from a justice case. ests of at stake years eighteen context, person with that the married enlisted In that the court concluded of this prejudice from a violation lee to show theories identifies None of these of service. “defense-friendly” Id. at 941. rule. uniquely differentiate anything unusual that would involving from other cases this court-martial these ground” between Taking a “middle charged officers mid-level noncommissioned Appeals con- of Criminal positions, the Court in which the defense with sexual misconduct cluded: accused’s si- might prefer not to have the by military judge commits error a [W]hen to the attention of the specifically lence called objec- instruction over defense merely giving this The Government’s brief members. case, case- that, of articulated any particular tion in the absence notes factors justice, presumption exercise of might weigh in defense counsel’s specific interests strategic judgment how best tactical about or results. The Government President, conduct the defense. The by showing the burden of then bears has deter- Rule Courts-Martial why the preponderance of the evidence mined that this decision should be left in- prejudiced appellant was not gener- A except defense an unusual case. Admittedly, this diffi- struction. panel an alized fear that will misuse to bear. cult for the Government burden silence, itself, provide does not accused’s Rule, But, not write the this court did concluding that the circumstances basis for appropriate test for on the issue of rejec- of a ease are so unusual as to warrant our prejudice, compelled feel to take we objection to instruction. tion of a defense language that so cues from the President’s have conducted our own de novo review We clearly military accused. favors the of the record to determine whether there Id. pres- were unusual circumstances that it was not ent ease so obvious deciding that the Government did for the to articulate reasons carry rebutting pre its burden providing the instruction over defense sumption prejudice, emphasized the court objection. agree with the We observations First, respect considerations. two *6 the court below that such circumstances strength on of the Government’s reliance the “simply specific in factual did not exist” the case, prosecution the court noted that the the setting present of the case. See evidence, strong, prosecution’s while was not atM.J. 940. legal issues of dispositive of the factual and pros guilt. in the face of a Even formidable prejudice 3. The assessment of case, have found ecution the members could The court below also addressed the on one or more of the reasonable doubt determining for an erroneous standard when twenty-two charges light the of defense’s decision to override a defense election was witnesses, stipulations expected testi two of defense, prejudicial. focusing The on the fact, mony, stipulation several other of and impact on the individual’s self-incrimination pointed that the The court also out exhibits. Amendment, rights suggest Fifth under the objec repeated defense offered serious and required ed that the Government was to instruction, attempted then tions to the beyond the prove a reasonable doubt not the last ensure that it was harmless, error was while the Government finally The court and moved for a mistrial. responsible contended that the accused was concluded that these efforts demonstrate demonstrating prejudice. material See that, case, “manifest present it was rejected the defense id. at 940. The court that, team, the instruction Supreme the Court standard because potential show-stopper.” Id. at 941- already had treated the issue as Lakeside 42. noneonstitutional, rejected and it also the test for articulated the grounds that approach on the Government’s ap- represents a well-reasoned court below rule, “plain language coupled of the with the specific requirements of proach light of the Analysis” it strong language in the made the 301(g). adopt approach, this and place any Appel- M.R.E. We inappropriate to burden on case, holdings. present In for exam- application court’s of tive the with the lower ple, might wanted this present ease. the court below have the test to the performed its
Court to know that it had 66(c) weigh responsibility under Article II. THE LEGAL AND DISCUSSION OF legal sufficiency of the evi- and factual THE FACTUAL SUFFICIENCY IN disagree in the event we were to with dence THE OPINION OF COURT OF CRIM- In its decision on the instructional issue. INAL APPEALS case, by affirming of the present the decision 66(e), UCMJ, 10 Under Article U.S.C. issue, instructional our court below 866(c), Appeals: § the Court of Criminal setting find- decision will result aside the findings guilty affirm such of and ings findings are set and sentence. Once part the sentence or such or amount of the aside, the views of the court below on the sentence, it finds correct in law and fact as sufficiency respect of the evidence with determines, on of the basis the entire findings further those are irrelevant record, approved. should be In consider If, proceeding. rehearing, after a there is a record, evidence, ing may weigh the court be- conviction is reviewed witnesses, credibility and de low, obligated to the court will be conduct fact, questions termine controverted 66(c) de novo review under Article based recognizing that the trial court saw and upon rehearing, not the the record heard the witnesses. proceedings record of the which resulted 866(c)(2000). 66(c) § 10 U.S.C. Article findings being set aside. charges Appeals of Criminal Court reviewing legal both the correctness III. CONCLUSION proceedings legal and the and fac-
trial-level sufficiency support tual of the evidence to questions granted The certified findings guilty, appropriate- as as the well negative. issue are answered in the approved sentence. ness of the Navy-Marine decision of the United States case, opinion its Appeals setting Corps Court of Criminal Appeals Court of Criminal addressed the findings af- aside the and the sentence is prior discussing state evidence rehearing may in ac- firmed. A be ordered discussing instructional issue. After cordance with decision the Court Crimi- 66(c) applicable precedent, the court of- Appeals. nal following fered the brief assessment as to sufficiency:
factual
CRAWFORD,
(dissenting):
Judge
*7
that a reasonable factfinder
We conclude
(1)
exten
respectfully
I
dissent from
the
found,
properly
beyond
could
have
a rea-
(2)
rulemaking by
majority, and
the
sive
the
doubt,
appellant
that the
commit-
sonable
analyze
harmless
majority’s failure to
the
ted each of the offenses of which he stands
of this case. Article
error rule
the context
Moreover,
convicted.
after careful consid-
Justice,
59(a),
Military
of
Uniform Code
eration,
beyond
we are convinced
a reason-
(2000).
859(a)
(UCMJ),
§
I
10 U.S.C.
appellant
able
that
the
committed
doubt
Judge
with
Learned Hand that
would be
“[i]t
each of those same offenses.
caution
strange indeed to conclude that this
at
936.
very
ary instruction violates the
constitution
Appellee contends that
the lower court
protect.” Lake
provision
al
it is intended to
by evaluating
legal
the
and factual
erred
333, 339,
Oregon,
98 S.Ct.
side v.
435 U.S.
light
sufficiency
guilt
of the evidence of
of
(1978).
1091,
when
Clearly,
such
this case does
engaged in
is not.
has this Court
so
Seldom
by the drafters of
threats as were envisioned
rulemaking
single
much
case.
Military
Rules
Fifth Amendment or
Background
has not
Evidence. The Government
Supreme
Court has described
Appel-
by any expedient
compel
to
sought
underlying
foundation”
“constitutional
testimony,
lee/Cross-Appellant’s (Appellee’s)
privilege against
Fifth Amendment
self-in-
required him to create
nor in
sense
crimination as:
contrary,
inculpatory evidence.1 On the
respect
government
or fed-
[T]the
—state
deliberation de-
obvious
integ-
dignity
eral —must accord to the
to instruct
termined
it was
rity of its citizens. To maintain a “fair
wishes)
(albeit
panel
Appellee’s
balance,”
require
state-individual
rights.
safeguard
order to
his constitutional
load,”
government “to shoulder the entire
judge gives
a correct
Where
respect
inviolability
...
of the hu-
justice
upon determining that the interests of
accusatory
personality,
system
man
our
require,
prejudice.
it
so
is error to find
justice
govern-
criminal
demands that the
Furthermore,
the Manual
because
seeking
punish
pro-
ment
an individual
requires military
nowhere
Courts-Martial
by
duce the evidence
him its own
by
judges
jump through
hoops
erected
labors,
independent
rather
than
majority’s
opinion,
would resolve this
cruel, simple expedient
compelling
by looking
plain wording of
case
from his own mouth.
and the test for
Arizona,
436, 460,
Miranda v.
384 U.S.
59(a).
Article
(citation
1602,
(1966)
16 L.Ed.2d
S.Ct.
omitted).
Constitutional Concerns
military justice system,
In allegation
Appellant’s
of constitutional er-
UCMJ,
§
10 U.S.C.
serves the same
correctly
ror is
resolved
reference to
purpose: Congress intended that article “to
decision,
Supreme
Lakeside.
subject
persons
secure to
to the Code the
the federal courts that had
Court sided with
rights
same
secured to those of the civilian
protective
“generally
held that
community under the Fifth Amendment
the defendant’s
instruction over
the Constitution of the United States -no
*8
at
n.
not a constitutional violation.” Id.
336
v. Arm
more and no less.” United States
3,
expressly
363
him,”)
“un
specialized or
and
Appellee’s
lence
thought the instruction on
that he
justice (presumably rooted
usual” interests
“necessary.”
silence was
fear).
majority
brand of
in some other
give [the
I feel that it is
MJ:
sort as more
of the second
regards interests
has case
unless the defense
instruction]
deserving of a fail-to-
more
legitimate and
I
proposition that
cite for the
law to
v.
States
testify instruction. United
though the defense
give it even
shouldn’t
distinction, however,
This
States
M.J.
996)).2
right
testify. The accused has an absolute
testify.
not to
The fact that an accused
59(a) applies
to all nonconstitution-
may
testify in
elect not to
his own behalf
errors, notwithstanding
majority’s
al
ex-
may not
considered adverse to the ac-
be
emption by
“defense-friendly”
fiat for
rules.
any way
any
....
court
cused
Is there
Regardless