U.S. v. Glover, 50 M.J. 476

Military Justice Personnel: Military Judge: Instructions

1. if a military judge omits entirely any instruction on an element of the charged offense, this error may not be tested for harmlessness because the court members are prevented from considering that element at all; where the military judge fails to only to give a more specific or amplified instruction on the meaning of terms, the court will test for plain error where no such instruction is requested

Trial Stages: Merits: Instructions › Generally

1. if a military judge omits entirely any instruction on an element of the charged offense, this error may not be tested for harmlessness because the court members are prevented from considering that element at all; where the military judge fails to only to give a more specific or amplified instruction on the meaning of terms, the court will test for plain error where no such instruction is requested
2. failure to give more detailed instruction on wrongfulness in charge of wrongful use of an inhalant was not clear and obvious, and thus not plain error, where: (1) the military judge’s benchbook did not provide for a more detailed definition of wrongful for this offense under Article 134, UCMJ; (2) appellant rejected comparison of his offense with wrongful use of controlled substances during sentencing; (3) the military judge applied a maximum sentence lower than that which would have applied to wrongful use of controlled substances; and (4) there is no case law requiring a more detailed instruction
3. failure to give more detailed instruction on wrongfulness in charge of wrongful use of an inhalant, even if clear and obvious error, was not prejudicial where: (1) the case did not involve any evidence of unknowing ingestion or inadvertent ingestion; (2) in light of the evidence, there was little chance that the members would be unclear about how to apply the word “wrongful” in reaching findings; and (3) the instructions as a whole were sufficient to ensure the appellant would not be convicted of an innocent inhalation in the context of this case

Trial Stages: Appeals: Harmless / Prejudicial Error

1. if a military judge omits entirely any instruction on an element of the charged offense, this error may not be tested for harmlessness because the court members are prevented from considering that element at all; where the military judge fails to only to give a more specific or amplified instruction on the meaning of terms, the court will test for plain error where no such instruction is requested

Trial Stages: Appeals: Preservation of Error / Plain Error

1. if a military judge omits entirely any instruction on an element of the charged offense, this error may not be tested for harmlessness because the court members are prevented from considering that element at all; where the military judge fails to only to give a more specific or amplified instruction on the meaning of terms, the court will test for plain error where no such instruction is requested
2. failure to give more detailed instruction on wrongfulness in charge of wrongful use of an inhalant was not clear and obvious, and thus not plain error, where: (1) the military judge’s benchbook did not provide for a more detailed definition of wrongful for this offense under Article 134, UCMJ; (2) appellant rejected comparison of his offense with wrongful use of controlled substances during sentencing; (3) the military judge applied a maximum sentence lower than that which would have applied to wrongful use of controlled substances; and (4) there is no case law requiring a more detailed instruction
3. failure to give more detailed instruction on wrongfulness in charge of wrongful use of an inhalant, even if clear and obvious error, was not prejudicial where: (1) the case did not involve any evidence of unknowing ingestion or inadvertent ingestion; (2) in light of the evidence, there was little chance that the members would be unclear about how to apply the word “wrongful” in reaching findings; and (3) the instructions as a whole were sufficient to ensure the appellant would not be convicted of an innocent inhalation in the context of this case