U.S. v. Smith, 50 M.J. 451

Military Justice Personnel: Military Judge: Instructions

1. a military judge is required to instruct, sua sponte, on the elements of each lesser-included offense for which there is in the record some evidence reasonably placing these offenses in issue
2. failure to object to an instruction or the omission of an instruction before the members close to deliberate constitutes a waiver of that objection absent plain error; waiver, however, must be established by affirmative action of counsel and not merely by failure to object to erroneous instructions or to request proper instructions

Trial Stages: Merits: Instructions › Generally

1. a military judge is required to instruct, sua sponte, on the elements of each lesser-included offense for which there is in the record some evidence reasonably placing these offenses in issue
2. failure to object to an instruction or the omission of an instruction before the members close to deliberate constitutes a waiver of that objection absent plain error; waiver, however, must be established by affirmative action of counsel and not merely by failure to object to erroneous instructions or to request proper instructions

Trial Stages: Appeals: Preservation of Error / Plain Error

1. plain error would not relieve appellant of waiver of alleged instructional defects where: (1) appellant demonstrated no clear, obvious errors by which he was prejudiced; and (2) evidence against appellant’s “all or nothing” tactical trial theory was overwhelming

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. a military judge’s decision to give an instruction, as well as the substance of that instruction, is reviewed de novo
2. in reviewing a military judge’s determination that a lesser-included offense is or is not in issue, an appellate court must independently evaluate the evidence to determine whether or not the accused has been deprived of this right to have a court-martial consider all reasonable alternatives to guilt

Trial Stages: Appeals: Waiver

1. failure to object to an instruction or the omission of an instruction before the members close to deliberate constitutes a waiver of that objection absent plain error; waiver, however, must be established by affirmative action of counsel and not merely by failure to object to erroneous instructions or to request proper instructions
2. counsel’s statements were adequate to show purposeful decision to agree to military judge’s decision not to instruct on lesser-included offenses, and thus there was affirmative action by counsel to establish waiver of any objection, where: (1) counsel expressed that proposed instruction was close to what he desires; (2) counsel expressed agreement that instruction might confuse the members; (3) counsel did not object during Article 39(a) session; and (4) counsel did not object at close of instructions
3. counsel waived any defect in instructions concerning proper use of appellant’s guilty plea with respect to contested charges where: (1) defense counsel indicated he wanted elements of offense to which accused pleaded guilty included in instructions; (2) defense counsel indicated that his strategy required that the members know precisely what elements were admitted by the guilty plea; (3) counsel expressed that proposed instruction was close to what he desires; (4) counsel expressed agreement that instruction about offenses normally being lesser-included offenses might confuse the members; and (5), despite plentiful opportunity, counsel made no objections