U.S. v. Miller, 58 M.J. 266

Trial Stages: Sentence and Punishment: Instructions

1. a military judge is required to give the members appropriate instructions on sentence; appropriate instructions must be tailored to the facts of a case and must include, in part, a statement that the members should consider all matters in extenuation, mitigation, and aggravation, whether introduced before or after findings, and matters under R.C.M. 1001(b)(1), (2), (3) and (5)
2. R.C.M. 1005 provides three separate bases for instructing on pretrial restraint: (1) trial counsel shall inform the court-martial of the data on the charge sheet relating to the duration and nature of any pretrial restraint; R.C.M. 1005(e)(5) then requires the military judge to instruct the members to consider this information; (2) R.C.M. 1005(e)(5) requires the military judge to instruct the members to consider personal data of the accused submitted by the trial counsel pursuant to R.C.M. 1001(b)(2); as noted above, trial counsel provided the court-martial with a Personal Data Sheet reflecting appellant’s pretrial restraint; and (3) although pretrial restraint is not specifically referenced in R.C.M. 1005(e)(5), the discussion to that rule states that tailored instructions should bring attention to any pretrial restraint imposed on the accused
3. we have previously held that the military judge’s rote sentencing instructions that omitted any instruction on considering pretrial confinement were inadequate as a matter of law
4. where an accused has served pretrial confinement, the military judge must instruct the members that the pretrial confinement is a factor to consider in fashioning an appropriate sentence
5. R.C.M. 1005 carries the President’s direction to instruct on pretrial confinement as a factor to consider in adjudging an appropriate sentence; a military judge must instruct that the members in adjudicating an appropriate sentence should consider pretrial confinement; because in this case the military judge did not instruct the members that they should consider appellant’s pretrial confinement in adjudging an appropriate sentence, the military judge erred; the instructions, as given, were inadequate as a matter of law
6. although appellant did not object to the instructions as given, waiver is inapplicable; we have held that R.C.M. 920(f)’s waiver rule is inapplicable to certain mandatory instructions such as reasonable doubt, the elements of the offenses, and affirmative defenses; similarly, we hold that R.C.M. 1005(f)’s rule of waiver does not serve to forfeit review of this issue; the military judge bears the primary responsibility for ensuring that mandatory instructions, including the pretrial confinement instruction mandated by the President in R.C.M. 1005(e) and by this Court’s decision in United States v. Davidson, 14 M.J. 81 (C.M.A. 1982), are given and given accurately
7. while counsel may request specific instructions, the military judge has substantial discretion in deciding on the instructions to give and whether the requested instruction is appropriate; this discretion must be exercised in light of correct principles of law as applied to the facts and circumstances of the case
8. denial of a requested instruction is error if: (1) the requested instruction is correct; (2) it is not substantially covered in the main charge; and (3) it is on such a vital point in the case that the failure to give it deprived the defendant of a defense or seriously impaired its effective presentation
9. turning to whether the military judge erred in not giving the requested pretrial confinement credit instruction in this case, appellant meets the first two requirements of the test; first, the requested instruction was correct; the military judge said he would use the "standard" instructions in the Benchbook and the standard pretrial confinement credit instruction is consistent with the instruction we approved in United States v. Balboa, 33 M.J. 304 (C.M.A. 1991); second, the pretrial confinement credit instruction was not covered elsewhere in the sentencing instructions; as noted, the military judge did not instruct on pretrial confinement as a sentencing factor and he did not instruct on pretrial confinement credit
10. however, in this case, the requested pretrial confinement credit instruction was not on such a vital point in the case that the failure to give it deprived the defendant of a defense or seriously impaired its effective presentation; in fact, the three days in pretrial confinement were a negligible part of the defense sentencing case; appellant did not highlight the nature or duration of his pretrial confinement as a mitigating factor; there was no evidence relating to appellant’s good conduct while incarcerated under civilian control; appellant did not even argue that the pretrial confinement should be considered in adjudging an appropriate sentence; under these circumstances, there was no abuse of discretion in not giving the requested pretrial confinement instruction
11. although the military judge erred by not giving the general sentencing instruction on pretrial confinement, and even if he erred by not giving the requested pretrial confinement instruction as he said he would, we are convinced that appellant suffered no prejudice; the record reveals no evidence to suggest that the nature of the pretrial confinement was unduly harsh or rigorous; in the scheme of the defense sentencing case, three days in pretrial confinement was de minimis; the issue of three days in pretrial confinement was obviously of little consequence to either party; finally, given the facts of this case, we note that the adjudged sentence was favorable to appellant; under the circumstances, appellant was not prejudiced by the absence of the standard Benchbook instructions on pretrial confinement and pretrial confinement credit

Trial Stages: Appeals: Harmless / Prejudicial Error

1. although the military judge erred by not giving the general sentencing instruction on pretrial confinement, and even if he erred by not giving the requested pretrial confinement instruction as he said he would, we are convinced that appellant suffered no prejudice; the record reveals no evidence to suggest that the nature of the pretrial confinement was unduly harsh or rigorous; in the scheme of the defense sentencing case, three days in pretrial confinement was de minimis; the issue of three days in pretrial confinement was obviously of little consequence to either party; finally, given the facts of this case, we note that the adjudged sentence was favorable to appellant; under the circumstances, appellant was not prejudiced by the absence of the standard Benchbook instructions on pretrial confinement and pretrial confinement credit

Trial Stages: Appeals: Waiver

1. although appellant did not object to the instructions as given, waiver is inapplicable; we have held that R.C.M. 920(f)’s waiver rule is inapplicable to certain mandatory instructions such as reasonable doubt, the elements of the offenses, and affirmative defenses; similarly, we hold that R.C.M. 1005(f)’s rule of waiver does not serve to forfeit review of this issue; the military judge bears the primary responsibility for ensuring that mandatory instructions, including the pretrial confinement instruction mandated by the President in R.C.M. 1005(e) and by this Court’s decision in United States v. Davidson, 14 M.J. 81 (C.M.A. 1982), are given and given accurately