U.S. v. Wells, 52 M.J. 126

Military Justice Personnel: Military Judge: Instructions

1. an accused is entitled to an instruction on a lesser-included offense if reasonably warranted by the evidence presented; that is, when the evidence would permit the members rationally to find the accused guilty of the lesser offense and not guilty of the greater
2. military law requires a military judge to give an instruction on a lesser-included offense sua sponte when there is some evidence which reasonably places the lesser-included offense in issue; that is, when there is some evidence, without regard to its source or credibility, before the members upon which they might rely if they choose
3. testimony of appellant concerning a heated domestic dispute, the presence of the victim exacerbating this dispute, the victim’s display of a gun, appellant’s belief that a shot was fired at him as he left initially, and the presence of the victim with a gun when appellant returned, placed heat of passion and adequate provocation at issue in the case so as to require instruction on lesser-included offense of voluntary manslaughter

Core Criminal Law Subjects: Crimes: Article 118 - Murder Pre-2019 offenses

1. testimony of appellant concerning a heated domestic dispute, the presence of the victim exacerbating this dispute, the victim’s display of a gun, appellant’s belief that a shot was fired at him as he left initially, and the presence of the victim with a gun when appellant returned, placed heat of passion and adequate provocation at issue in the case so as to require instruction on lesser-included offense of voluntary manslaughter

Trial Stages: Merits: Instructions › Lesser-included offenses

1. an accused is entitled to an instruction on a lesser-included offense if reasonably warranted by the evidence presented; that is, when the evidence would permit the members rationally to find the accused guilty of the lesser offense and not guilty of the greater
2. military law requires a military judge to give an instruction on a lesser-included offense sua sponte when there is some evidence which reasonably places the lesser-included offense in issue; that is, when there is some evidence, without regard to its source or credibility, before the members upon which they might rely if they choose
3. testimony of appellant concerning a heated domestic dispute, the presence of the victim exacerbating this dispute, the victim’s display of a gun, appellant’s belief that a shot was fired at him as he left initially, and the presence of the victim with a gun when appellant returned, placed heat of passion and adequate provocation at issue in the case so as to require instruction on lesser-included offense of voluntary manslaughter

Trial Stages: Appeals: Harmless / Prejudicial Error

1. the general rule for prejudice resulting from a failure to instruct on an applicable lesser-included offense is that reversal is required only when an appellate court is convinced that the evidence issues are such that a rational panel of court members could acquit on the charged crime but convict on the lesser crime
2. having found that the military judge erred by not giving an instruction on a raised lesser-included offense, the Court of Criminal Appeals erred in fashioning its own harmless error approach which focused on other lesser-included offense instructions given in this case and the fact that the members still found appellant guilty of the greater offense
3. military judge erred to the prejudice of appellant where he omitted an entire instruction on a lesser-included offense that was reasonably raised by the evidence and where the evidence issues were such that a rational panel of court members could acquit on the charged crime of premeditated murder but convict on the lesser crime of voluntary manslaughter