U.S. v. Duncan, 53 M.J. 494

Core Criminal Law Subjects: Motions, Generally: Pretrial › Severance

1. joinder of offenses at a court-martial is more permissive than joinder in federal district court; but where offenses are “the same or similar” in character, they may be joined for trial in both systems
2. a military judge, like a federal district court judge, has discretionary power to sever the trial of certain offenses; an abuse of that discretion will be found only where the defendant is able to show that the denial of a severance caused him actual prejudice in that it prevented him for receiving a fair trial
3. although recognizing that evidence of one rape and brutalization would not be admissible to show another rape and brutalization a month earlier, military judge did not abuse his discretion in refusing to sever charges where: (1) he gave limiting instructions three times to consider the offenses separately; (2) he took steps to bifurcate the presentation of evidence and argument by trial counsel to prevent spillover; and (3) court could be confident that members were able to follow instructions to consider offenses separately
4. military judge did not abuse his discretion in refusing to sever charges and determining that appellant’s defenses would not be confounded or destroyed by a joint trial where: appellant’s defenses, raised on different occasions with respect to different alleged victims, were neither logically nor practically inconsistent; (2) the fact that appellant asserted his right to remain silent with respect to crimes against one victim but not with respect to crimes against another victim did not require severance; and (3) consideration of all the circumstances supported the conclusion that there was no abuse of discretion

Core Criminal Law Subjects: Motions, Generally: Merits

1. joinder of offenses at a court-martial is more permissive than joinder in federal district court; but where offenses are “the same or similar” in character, they may be joined for trial in both systems
2. a military judge, like a federal district court judge, has discretionary power to sever the trial of certain offenses; an abuse of that discretion will be found only where the defendant is able to show that the denial of a severance caused him actual prejudice in that it prevented him for receiving a fair trial
3. although recognizing that evidence of one rape and brutalization would not be admissible to show another rape and brutalization a month earlier, military judge did not abuse his discretion in refusing to sever charges where: (1) he gave limiting instructions three times to consider the offenses separately; (2) he took steps to bifurcate the presentation of evidence and argument by trial counsel to prevent spillover; and (3) court could be confident that members were able to follow instructions to consider offenses separately
4. military judge did not abuse his discretion in refusing to sever charges and determining that appellant’s defenses would not be confounded or destroyed by a joint trial where: appellant’s defenses, raised on different occasions with respect to different alleged victims, were neither logically nor practically inconsistent; (2) the fact that appellant asserted his right to remain silent with respect to crimes against one victim but not with respect to crimes against another victim did not require severance; and (3) consideration of all the circumstances supported the conclusion that there was no abuse of discretion

Trial Stages: Sentence and Punishment: Instructions

1. there is no bright-line rule prohibiting a military judge from instructing on collateral consequences of a court-martial conviction; rather the rule is flexible and focuses on the military judge’s obligation to give appropriate, legally correct instructions, tailored to the facts and circumstances
2. where members ask whether an accused will be required to participate in a rehabilitation program, it is appropriate for the judge to answer if he or she can draw upon a body of information that is reasonably available and which is rationally related to the sentencing considerations in RCM 1005(e)(5)
3. the availability of parole and rehabilitation programs are issues of general knowledge and concern, and as such they may be instructed upon, especially when requested by the members
4. where members interrupted deliberations to ask about the possibility of parole and rehabilitation programs, it was not an abuse of discretion for the military judge to give instructions because the inquiries were reasonably related to consideration of the nature of the offenses and to the possibility that the accused might be released in the future unreformed into civilized society – matters of crucial military concern which were properly addressed by the military judge
5. even if military judge erred by instructing on parole and rehabilitation programs, any error was harmless where the judge also instructed the members not to consider parole in arriving at an appropriate sentence and suggested that appellant would participate in rehabilitation programs as a matter of prison exigency

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

1. military judge’s decision on a motion to sever charges is reviewed for an abuse of discretion