U.S. v. Holt, 52 M.J. 173

Trial Stages: Pretrial: Investigations (Article 32)

1. investigating officer who provided information to trial counsel after case had been referred to trial may have created appearance of impropriety by providing trial counsel with what was, in effect, a supplementary report that was neither transmitted to the commander who ordered the investigation nor served on the accused
2. investigating officer’s improper post-referral communication with trial counsel may involve two issues and two forms of relief: (1) if the communication supports a claim of bias in the conduct of the Article 32 investigation, the case can be remanded for an new investigation based on a denial of the right to an impartial Article 32 investigation; or, (2) if the claim indicates that the investigating officer served in a prohibited role, such as trial counsel, an appellant may request a new trial if there is prejudicial error
3. action of investigating officer, after referral, in providing suggestion to trial counsel as to possibility of using an individual as a potential witness and to test certain evidence was not prejudicial where: (1) investigating officer did not exercise any prosecutorial discretion or make any tactical or strategic trial decisions; (2) actions taken by trial counsel as a result of this communication were known to the defense at time of trial; (3) information concerning the role of the investigating officer would have made no substantive difference in any ruling on legal issues related to evidence arising from that communication; and, (4) post-trial defense submissions which noted the communication from the investigating officer did not assail the fairness of either the Article 32 investigation or the trial proceedings

Trial Stages: Appeals: Court of Appeals for the Armed Forces

1. reweighing evidence and reevaluating credibility, matters of factual sufficiency, are outside the statutory parameters of Court of Appeals for the Armed Forces’ review; the court reviews for legal sufficiency, considering the evidence in the light most favorable to the government and determining whether the evidence provides a sufficient basis upon which a rational factfinder could find all the essential elements beyond a reasonable doubt

Trial Stages: Appeals: Preservation of Error / Plain Error

1. where appellant chose to raise issues of possible tampering with evidence as a matter for consideration by the court-martial as a basis upon which to find appellant not guilty, and did not move to preclude introduction of the evidence on this grounds or challenge either admissibility or authenticity, the issue of tampering with evidence was a matter of weight to be accorded by the finder of fact and does not provide a basis for finding prejudicial error at trial
2. appellant’s claim that testing of evidence, which was done without first informing the defense and permitting the defense an opportunity to have a representative present, destroyed the exculpatory value of that evidence and denied the defense equal access to the evidence was not preserved for appeal where: (1) the military judge reserved ruling until a defense expert could determine whether there was enough of a sample left for analysis; (2) defense counsel stated on the record that “it does not look like we have a righteous Garries motion at this point in time”; (3) defense counsel never raised the matter thereafter, even though the military judge had invited him to do so if he wished; and, (4) the record does not reflect any impairment of defense expert’s ability to analyze the evidence

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

1. reweighing evidence and reevaluating credibility, matters of factual sufficiency, are outside the statutory parameters of Court of Appeals for the Armed Forces’ review; the court reviews for legal sufficiency, considering the evidence in the light most favorable to the government and determining whether the evidence provides a sufficient basis upon which a rational factfinder could find all the essential elements beyond a reasonable doubt