United States v. Miller, 58 M.J. 266

United States v. Miller

58 M.J. 266

C.A.A.F.

2003

Check Treatment

Docket

*1 STATES, Appellee, UNITED MILLER, Airman,

Matthew J. Senior Force, Appellant.

U.S.

No. 02-0449.

Crim.App. No. 34031.

U.S. Court of

the Armed Forces.

Argued Jan. 2003.

Decided June *2 THE AIR FORCE COURT

WHETHER BY ERRED CRIMINAL APPEALS OF THAT MILITARY ASSERTING REQUIRED IN- ARE NOT TO JUDGES MEM- COURT-MARTIAL STRUCT AN PRE- BERS THAT ACCUSED’S A TRIAL IS MATTER CONFINEMENT IN MITIGATION. military and the

We find that However, erred. Court Criminal case, Appellant was under facts of this prejudiced, and we affirm not therefore ERDMANN, J., opinion delivered the grounds forth below. set Court, BAKER, in which EFFRON and Facts JJ., GIERKE, J., separate joined. filed a (PE) 2, a “Personal CRAWFORD, Prosecution Exhibit opinion concurring in result. Sheet,” Appellant C.J., dissenting Data reflected that served separate opinion filed a days in This en- part concurring in the civilian confinement. result. try captioned “pretrial was restraint.” Appellant: Captain Antony B. For Kоlenc ,2 and civilian Based on PE the fact B. (argued); Beverly and Ma- Colonel Knott “for that is the same (on brief); jor Terry Major L. McElyea Jef- ease,” agreed that part parties frey Captain A Vires and Patrick J. Dolan. days of be entitled to three Appellee: Douglas Major For John D. credit for confinement served. Coacher, (argued); LeEllen military Colonel Lieuten- he judge indicated that would order Sigmon, Captain ant Lance B. proceed- Colonel that credit “at the conclusion (on brief); Kennеdy Shannon J. Colonel An- ing.” Captain P.

thony Datillo and Adam Oler. discussing sentencing While instructions that he would stated opinion ERDMANN delivered the “the instructions con- standard of the Court. Military Judge’s Benchbook[.]” tained in the specific point At that there was no discussion Appellant, Airman Matthew J. Mil- Senior an instruction on confinement as ler, Force, States Air tried pre- sentencing factor or an instruction on general court-martial Edwards Force During presen- trial confinement credit. Base, pleas, California. Pursuant to his he instructions, tencing although he told the spec- driving convicted of drunk and one consider all the evidence in ex- members to wrongful ification each of distribution and mitigation, tenuation and wrongful possession methamphetamine in days not the three specifically did reference 112a, 111 and Uniform violation Articles the hands of civilian restraint at Military [hereinafter Code of Justice authorities, instruct the members nor UCMJ], §§ 912a credited with three would be spectively. A court of officer members sen- of confinement served event dischаrge him to a bad-conduct tenced adjudged. finement was At conclusion grade reduction to the of Airman First Class following presentencing (E-3). 14, 2000, convening On March transpired: authority approved as ad- 4, 2002, February Air Force judged. On side, Judge]: for [Military either Counsel Appeals affirmed the find- Court of Criminal my objections requests Miller, ings and sentence. United States instructions? additional (A.F.Ct.Crim.App.2002). Trial None from [Assistant Counsel]: Government, following Your granted issue: Honor. We review Yes, adjudge [Assistant Defense you Counsel]: Your If Honor, requests pre- part your Defense giv- confinement credit instruction be accused confinement will en. against any be credited sentence to con- adjudge. may This credit Judge]: [Military provide I’m going *3 given by will be the authorities at the independent of happens. whatever facility correctional where accused is Okay. [Assistant Defense Counsel]: confinement, sent to serve his and will be military judge during later stated ses- day given day on a basis. pursuant 39(a), UCMJ, sion § to Article 10 2-6-10, See Benchbook 839(a) (2000), would pretrial “be days credited three con- obligation upon against any term of confinement give either or both of these in- adjudged.” should confinement be No simi- legal volves distinct considerations. There- provided lar information was to the fore, members proceed we to evaluate each instruction by way Additionally, of an instruction. separately. members were not instructed that three A. Pretrial confinement as a matter pretrial should con- adjudging to consider in an adjudging sidered in appropriate an sen- appropriate sеntence. tence. A military judge required “give appropriate the members instructions on Discussion 1005(a) sentence.” Rules for Courts-Martial complete given Had in instructions been Appropriate [hereinafter R.C.M.]. instruc ease, military judge this have in- would tions must be tailored to facts of a case structed the members on two matters relat- include, must part, in “[a] statement that ing pretrial First, confinement. the members all should consider matters in have instructed the members extenuation, mitigation, aggravation, pretrial should “consider” confinement in whether findings, introduced before after an determining appropriate sentence. That (3) 1001(b)(1),(2), and matters under R.C.M. substantially would ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍have been (5).” 1005(e)(5). R.C.M. follows: Rule for provides Courts-Martial 1005 selecting In you should consid- separate instructing pre- bases for er all in mitiga- matters extenuation and trial restraint. “[t]rial counsel shall Thus, tion in aggravation. as well as those inform the court-martial the data on the all the evidence have heard this case relating sheet to ... the duration and subject sentencing. is relevant any pretrial nature restraint.” R.C.M. You should consider as to evidence 1001(b)(1). Rule for Courts-Martial nature of the offenses of which the accused 1005(e)(5) requires military judge then convicted, plus stands the duration of the instruct the “consider” members to this in- pretrial accused’s 1005(e)(5) Second, formation. R.C.M. Services, Legal Dep’t Army, See Pam- quires military judge to instruct 27-9, phlet Military Judges’ Benchbook 2-6- “[personal members consider data” of the 2-6-11, 10 and at 98-99 [hereinafter pursu- accused trial submitted counsel Benchbook]. 1001(b)(2). above, ant to R.C.M. As noted Second, of defense counsel’s re- provided trial counsel the court-martial with quest, in- would have reflecting Appel- a “Personal Data Sheet” structed that would receive cred- Third, although lant’s restraint. . it for confinement served. That specifically restraint is not refer- substantially would have been as follows: 1005(e)(5), enced R.C.M. the discussion to determining In rule states that tailored instructions ease, you bring this any pretrial consider “should to ... attention imposed accused has restraint on the accused.”

269 required during court- 81 such an instruction is States v. proceedings. See R.C.M. (C.M.A.1982), sentencing we the failure of martial addressed 1005(e). the Court of At the time that Crim- the accused’s military judge to instruct that issue, Appeals reviewed con- inal time in confinement should be precedent Court. arriving at an stood as by the sidered (C.A.A.F. Sills, M.J. pre- v. was in United States appropriate sentence. Davidson 2002), decision this Court addressed another days. at 83. Id. confinement for of Criminal of the Air Force Court He witnesses who testified called Turner, contrary to United States that was “good while in about his conduct (C.M.A.1987), precedent confinement,” argued and defense counsel There, Court. we noted: that the confinement should be *4 adjudging appropriate an sen- sidered in guidance Payne in Supreme Court’s [T]he Tennessee, 808, 827, Id. at 82-83. tence. 111 S.Ct. 501 U.S. v. 2597, regarding 115 L.Ed.2d 720 Davidson, defense counsel did not to decisis: adherence doctrine stare give, quest, military did not and preferred “is course because precedent indicating any to the members instruction evenhanded, promotеs the it predictable, that should be consid- pretrial confinement development legal princi- consistent and in.arriving at appropriate ered an sentence. decisions, judicial on ples, fosters reliance di- Id. at 83. We noted that President perceived actual and and contributes to the Courts-Martial, in Manual Unit- rected integrity judicial process.” It is of the States, 75b(l), paragraph pre- ed 1951 rule, decisionmaking, principle of not a bring trial a matter to to precedent need not be followed when the attention, the members’ and that United badly ... rea- is “unworkable or at issue 274, 277, v. 17 C.M.A. 38 States Id. soned.” 72, 75, (1967), required C.M.R. a delineation to note Air at 241. We went on that the Id. of the matters the should consider members court had not shown Turner Force sentencing. Consequently, we held badly Id. unworkable or reasoned. either military judge’s “the rote instructions” that Here, Air Court Force of Criminal any considering pre- omitted attempts prece- from our Appeals to deviate inadequate mat- confinement “were as a Davidson, shоwing without that Davidson dent ter 14 of law.” M.J. 86. badly or ... “unworkable reasoned.” Despite both the President’s decision pays slight presi- attention lower court holding in of this Court requiring mandate dential Force in this Court Criminal in when it this Court’s mandate Davidson give pre- case determined that whether there is “no not to concludes reason” trial restraint instruction was a matter rest- Miller, test. 56 apply the abuse of discretion ing military within the discretion of the On the reason is M.J. at 768. Miller, Thus, judge. 56 at 768. rather 1005(e)(5). clear: R.C.M. reviewing than the absence Rule for Courts-Martial 1005 carries impact- an confinement instruction as error direction to instruct on President’s ing completeness on the in ad- as a factor to consider confinement instructions, the Air Force court reviewed judging appropriate an sentence. our an stan- issue under abuse discretion view, nothing changed to a con- has warrant dard. is either inaccurate clusion Davidson holding Contrary to the of the Air Force A upon an view of the law. based outmoded court, correctly reflects that wherе mem- military judge must instruct that the confinement, an has accused served adjudicating appropriate an bers mem- must instruct should consider that the confinement is a factor bers fashioning parties agreed appropriate an sen- consider confinement tence. The President has determined that served three pursuant charges requested to the the court- before whether the instruc Smith, martial. Pretrial confinement also re- appropriate. tion is United States v. (C.M.A.1992). 200, flected on the “Personal Datа offered Sheet” 34 M.J. This discre during sentencing. triggered This evidence tion must be exercised correct military judge’s obligation instruct. principles applied of law as facts 1005(e)(5). See R.C.M. Because did not v. circumstances of case. United States (C.A.A.F.1997). instruct the Greaves, should con- 133, 46 M.J. Appellant’s pretrial sider ad- requested Denial of a if: instruction is error judging (1) (2) requested correct; instruction is given, erred. The as substantially “it is not covered main inadequate “were matter law.” charge”; point “it is a vital on such Davidson, 14 atM.J. the case deprived that the failure to seriously [the] defendant of a defense or argues Appel The Government impaired presentation.” its effective by failing lant waived this instruction to ob Zamberlan, v. States 492-93 ject or request to the instructions further (C.A.A.F.1997) (quoting v. United States instructions before the members retired to (C.A.A.F.1996)). Eby, 44 M.J. See Although Appellant deliberate on sentence. Damatta-Olivera, also United States object *5 given, not to the instructions as (C.M.A.1993). inapplicable. waiver We held is have 920(f)’s R.C.M. rule inapplicable waiver is to military Turning to whether the mandatory certain as rea instructions such requested giving pre erred in not the doubt, offenses, sonable the elements of the credit confinement instruction and affirmative defenses. United States v. case, Appellant require meets first the two (C.A.A.F.2000). Davis, Sim requested ments of the test. the in 1005(f)’s ilarly, we hold that R.C.M. rule of military judge struction was correct. The waiver does not forfeit serve to review of this he said would use the “standard” instructions military judge primary issue. The bears the pretrial Benchbook and the standаrd responsibility ensuring confinement credit instruction is consistent instructions, including pretrial the confine approved with the instruction we in United by ment instruction mandated the President (C.M.A.1991). Balboa, States M.J. 304 1005(e) by in R.C.M. this Court’s deci Second, pretrial confinement in credit Davidson, given given sion in are accu struction was not covered elsewhere in the rately. noted, sentencing the mili instructions. As tary judge pretrial did not instruct on con B. Pretrial confinement credit instruction. sentencing finement as a factor and he did military judge requested was pretrial instruct not on confinement credit. pretrial confinement credit instruction However, requested pretrial confine- “provide indepen- and he said he would a ment credit instruction was not “on such happens.” dent of whatever It not com- point in vital the case that the failure to pletely military judge clear whether the was deprived [the] defendant of defense or referring requested or the seriously impaired presentation.” its effective purposes appeal credit itself. For Zambеrlan, fact, M.J. at statement, from the context of his we will days in pretrial confinement were military judge referring assume that the was negligible sentencing part of the defense requested pretrial credit confinement Appellant highlight case. did not ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the nature military not, instruction. The did how- pretrial duration his confinement ever, give requested pretrial confinement mitigating There no evidence factor. was credit instruction. relating Appellant’s good conduct while may specific request Appel- While counsеl incarcerated under civilian control. argue pretrial has substan lant not even deciding tial adjudg- discretion on the instructions be considered in 1001(b)(1) if the would be satisfied ing an sentence. Under these military judge simply instructed the mem- circumstances, no of discre- there was abuse all of the information on bers consider requested pretrial con- giving tion in not per- charge sheet and the page front instruction. in the accused’s service record. sonal data C. Harmlessness. 1005(e)(5) required an instruc- If R.C.M. by Although judge erred specifically delineating all the informa- tion general sentencing instruction giving not 1001(b)(1) it tion submitted under R.C.M. confinement, and if he erred pretrial even specific regarding require by requested giving not confine page of of matters on the first each listed would, he said we are ment instruction as rank, sheet, including grade preju no suffered convinced service, pay grade, date current initial sug no dice. record reveals evidence pay. Read connection R.C.M. gest that the nature of the confine 1001(b)(2), require speсific it also would unduly rigorous. harsh or In the ment was every entry virtually instruction on case, scheme defense accused’s service record. de minimis. recognized Davidson days in pretrial The issue of three confine significant sentencing ment is a factor obviously consequence of little ment was special warrants consideration. Finally, given party. the facts of this either 1005(e)(5). by not To was overruled R.C.M. adjudged we note that the comple- are consistent and Appellant. favorable to Under the circum 1005(e)(5), mеntary. I believe that R.C.M. stances, prejudiced not applied when read and standard Benchbook instruc absence requires respect a tailored instruction with confinement and tions *6 confinement; pretrial it does not neces- but confinement credit. sarily specific every require mention other 1001(b)(1), encompassed by matter R.C.M. Decision (5). (2), (3), Accordingly, agree I and Although adopt reasoning we do not the in holding opinion’s specific the lead that in- the decision the United States Force pretrial struсtion on Appeals, Court of Criminal decision that quired. grounds on in affirmed set forth this opinion. CRAWFORD, Judge (dissenting in Chief result):

GIERKE, result): Judge (concurring in the part concurring and agree majority apply I with the that a tailored I waiver because the lack pretrial through- objections confinement was man- defense times various datory trial, analysis, in this I that plain but believe out the conduct error flows in mandate from Court’s decision and conclude that did not suffer Davidson, any prejudice. United States v. 14 M.J. 81 material (C.M.A.1982), for not Rules Courts-Martial majоrity The indicates that the “waiver 1005(e)(5) R.C.M.]. The [hereinafter R.C.M. mandatory in- inapplicable rule is to certain issue, it, I see is whether R.C.M. structions,” mili- 58 M.J. at because the alone, 1005(e)(5), standing requires a tai- tary judge primary responsibility bears specifically delineating lored instruction all mandatory are ensuring for instructions “extenuation, mitigation, in the evidence and Ap- given. the instruction On ... aggravation and introduced un- matters pellant appeal in man- addresses not (5).” (2), 1001(b)(1), (3), der R.C.M. datory in this case the Uniform Code under face, UCMJ], require Military [hereinafter

On its the rule does not a of Justice Courts-Martial, delineating all evidence in Manual United States tailored for (2002 ed.) MCM], ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍categories. I or United [hereinafter each of above believe 1005(e)(5) Davidson, (C.M.A.1982), plain language of R.C.M. re- States v. 14 M.J. 81 conjunction garding introduced under when read in with United States matters R.C.M. 272 (C.M.A.1984). Allen, short, In in because the instruction contained knowing

the defense at trial made a waiver ... word about evidence in ex- “[n]ot and, furthermore, only suffered aggravation,” guidance no harm. tenuation or but punishment.

on the maximum 17 C.M.A. at 274, C.M.R. at 74. APPLICABLE LAW addition, Cook, Judge concurring in 51, UCMJ, § Article part dissenting part, recognized provides provided “may the MCM members offense, presumption elements of impos- consider” confinement when innocence, doubt, beyond proof a reasonable ing a and added that it was not a proof. ampli- the burden The MCM requirement to consider UCMJ, setting requirement fies the forth a ment, Equal even under Protection punishment, for instructions on the maximum Davidson, Clause. at 91. impact punitive discharge, proce- Finally, Everеtt, concurring Chief voting, dures for deliberation and reminder result, agreed absence of an solely responsi- are prejudicial instruction was since there is no ble for an sentence and “should requirement that the accused “receive credit extenuation, mitiga- consider all matters on his sentence for confinement[.]” tion, aggravation, whether introduced Importantly, Id. at 87. this concurrence was findings, before or after and matters intro- Allen, majority converted stance 1001(b)(l)[.]” duced under R.C.M. Rules for the Court held where accused must 1005(e)(5) [hereinafter Courts-Martial given day-for-day credit for time R.C.M.]. lawful confinement. 17 atM.J. 1001(b)(1) expressly R.C.M. mandates that majority much The reads too into David- shall “[t]rial counsel inform the court-martial son. held the Court that “rote relating data on sheet instructions” consider decorations and “all any ... the duration and nature of the facts and circumstances of this case as non-binding restraint.” fol- discussion mitigated extenuated other matters” 1005(e)(5) lowing R.C.M. “[T]ailored states: inadequate. were The Court not hold bring instructions on at- required. what was failure to mention reputation tention to the record the 143 *7 conduct, good accused in the service for effi- error, was Davidson held to be but there is ciency, fidelity, courage, bravery, or other language says no in Davidson that or it holds character, any good traits of is for the include a imposed restraint on the accused.” While comment that confinement tois any the did not sheet show as a considered matter extenuation or restraint, stipulation per- of fact and thе mitigation. days sonal data sheet both showed civilian confinement. DISCUSSION notes, majority As the Davidson further defense in present case failed to issue; analysis informs the Court’s capitalize opportunities object on several ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍however, disagree majority’s I with the inter- request clarifying or to and in pretation significant Davidson. It is that doing, any so waived further instruction on First, opinion. Judge 1-1-1 mitigation. extenuation and Fletcher that States v. indicated members of court-martial 274, C.M.A. 38 C.M.R. knew civilian authorities incarcerated “delineаte[d] the matters which the members Appellant for three confine- deliberation, should consider their ... ment, prior as issue was resolved to trial holding] military judge’s rote instruc- stipulation. through in ... [Davidson’s] tions case were inade- quate going Counsel]: a matter of 14 M.J. at 86. Before [Assistant law.” Defense documentary looking present Wheeler is different from the case into evidence at Pros- data, deliberations, no sheet, began as he was bers their personal Exhibit ecution un- get credit he would doubt satisfied that showing that Airman Miller Allеn. der days in civilian confinement that. it doesn’t indicate charge sheet deliberations, commencing their After I And it is [Military Judge]: noticed that. concerning question raised position that the Accused

not the Defense’s served any would be confinement whether any those three is credit for entitled an exploit locally. again failed to days? objection. opportunity for is, It Counsel]: Defense Your [Assistant your [Military Judge]: Now answer Honor. is confinement question number It [Military Judge]: is? it a difference locally? Does make ducted Yes, your Defense [Assistant Counsel]: discharge conjunction if with a it’s done Honor. discharge force confinement or would a [Military Judge]: the Government’s And to be in a different location? done position? A question parts. Let me answer Honor, I did [Trial Counsel]: Your have discharge, that a if the members determine and discuss chance to research this discharge appropriate in this punitive Weeks, our Advocate. Colonel Staff case, any drive where would not position is because Government’s you if also ad- ment wеre to were served for the same pretrial confinement was his judge confinement. part charge that is Now if the court members determine the fact the Accused was would be appropriate the Ac- that confinement is time. entitled credit the Air Force cused will be transferred to judge forgot The defense contends that the System. what Correctional Now by the required an instruction Mili- are a lot factors that means there Services, tary Judges’ Legal Benchbook. See Ac- into whether not the would faсtor 27-9, Dep’t Army, Pamphlet Military locally his confinement cused would serve (2001). Judges’ Benchbook theOn include else and that would somewhere agreement already had length things of the term such as from both sides the three would be confinement, obviously, availability of any against adjudged. credited facilities, availability space, bed Moreover, immediately prior mem- personnel. availability of correctional bers’ deliberation sen- Again, a which whole number factors tence, requested an instruction exactly knowing you can’t tell without —we specifically the members consider his be, I can’t tell what factors would so those pretrial confinement. time, x you if you if him amount of side, Judge]: [Military for either Counsel appropriate, determine confinement is *8 my requests objections to or x it here of that he would serve or amount

for additional instructions? time, might he serve confinement some- just [Trial Counsel]: from the Govern- do. impossible None That’s to where else. ment, Your Honor. your ques- partially Now that answers Yes, Your [Assistant Counsel]: Defense I the other tion. realize doesn’t answer Honor, requests Defense . answer part, but we can does that as best pretrial confinement credit instruction be your question? given. members.] from response all [Affirmative Judge]: provide [Military going I’m [Military Judge]: Both satis- sides are happens. independent of whatever explanation? fied with that Okay. Defense [Assistant Counsel]: Yes, Your Counsel]: Defense [Assistant ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍occurred in front mem- This discussion Honor. objected nor Appellant neither bers. Yes, Your Honor. quested [Trial Counsel]: further instruсtions before mem- Moreover, Finally, the members resumed instructed deliberat- the mem- ing, military judge and the convened a ses- bers to “due to all consideration matters 39(a), UCMJ, sion mitigation under Article extenuation[.]” Later 839(a) (2000), instruction, § addressing again confinement. he told the members to Additionally, mitigation. consider matters in 39(a) [Military Judge]: This Article Ses- very carefully coun- discussed with parties sion is called to order. The are sel both from sides more than ten factors

present. The members are absent. gave addressed than more My understanding is that both sides con- just “rote instructions.” cur Accused be should credited sum, clearly three assumed he against pursuant his term of confinement would receive the credit to Allen. there be confinement. As Chief noted in Everett Davidson— precursor Allen’s given, credit could be Yes, [Assistant Counsel]: Defense sir. —the planned, by as the in this case [Military Judge]: So the Accused will reducing directing the sentence con- or credited with three authority vening credit. 14 M. J. against any term of confinement 2.n. adjudged. should confinement be Thus, disagrеe requires I that Davidson instruction on Judge]: [Military Any matter that either 1005(e) 1001(b)(1) ment. R.C.M. and R.C.M. side can up [of] think that we need to take Moreover, requirements triggered. were not prior closing for the members delibera- plain there no plain error. To establish tions? error, Appellant showing has burden of [Assistant Counsel]: Defense Not from the (1) (2) error; plain; there that it is Defense, Your Honor. (3) rights”; that it “affect[s] substantial No, [Trial Counsel]: Honor. Your (4) “seriously fairness, integrity, affect[s] the 39(a) [Military Judge]: This Article Ses- public reputation judicial proсeedings.” adjourned. sion is States, 467, 461, Johnson v. United 520 U.S. (1997). 117 S.Ct. See trial, L.Ed.2d 718 practice throughout Consistent with Kho, also United States v. object defense counsel failed request C.J., (C.A.A.F.2000)(Crawford, concurring in clarifying instructions. result). assuming this even Application of waiver in the absence (1) Appellant has met his burden as to plain disposes Ap- error case because not met has his burden as to pellant suffered no harm substantial from the (4). parties in The case realized omission par- instruction. futility days’ arguing for a mere three ties days’ were nеver focused pretrial confinement, credit for prosecution argued credit. The for a dis- arguments punish- maximum counsel’s for a charge and 15 months of confinement. To months, respective- ment of 15 months and 4 argument, counter this the defense three ly. simply knew bet- defense were panel times four asked months getting days’ ter off a sure three credit after days’ credit was trial. minimis, therefore de and even counter the argument Accordingly, making majority’s defense counsel was I from the dissent rationale, at the time. concur in but the result.