U.S. v. Walters, 58 M.J. 391

Trial Stages: Merits: Instructions › Divers occasions

1. where a specification alleges wrongful acts on "divers occasions," the members must be instructed that any findings by exceptions and substitutions that remove the "divers occasions" language must clearly reflect the specific instance of conduct upon which their modified findings are based; that can generally be accomplished through reference in the substituted language to a relevant date or other facts in evidence that will clearly put the accused and the reviewing courts on notice of what conduct served as the basis for the findings

Trial Stages: Merits: Findings

1. when a specification alleging instances of misconduct on divers occasions is involved, findings by exceptions and substitutions eliminating all but one instance are a distinct possibility; both trial practitioners and military judges need to be aware of the potential for ambiguous findings in such cases and take appropriate steps through instruction and pre-announcement review of findings to ensure that no ambiguity occurs
2. while the R.C.M. 922 discussion indicates that the military judge can seek clarification of ambiguous findings after announcement, a verdict which excepts "divers occasions" and substitutes on "one occasion" involves a dual finding of guilty and not guilty; once announced, the latter aspect of the verdict clearly becomes final and cannot be reconsidered; in order to avoid any uncertainty as to when post-announcement "clarification" under R.C.M. 922 crosses the line into prohibited "reconsideration" under R.C.M. 924, ambiguities in this type of verdict should be resolved prior to announcement

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. the Courts of Criminal Appeals' appellate review authority flows from Article 66(c), not the common law; while there are instances in military law where common law principles are applicable, the "center of gravity" for the Courts of Criminal Appeals is their statutory review function under Article 66(c)

Trial Stages: Appeals: Courts of Criminal Appeals › Factual sufficiency

1. in terms of factual sufficiency, the test is whether, after weighing the evidence in the record of trial and making allowances for not having personally observed the witnesses, the members of the service court are themselves convinced of appellant's guilt beyond a reasonable doubt
2. the unique power of review for factual sufficiency is subject to a critical limitation; a Court of Criminal Appeals cannot find as fact any allegation in a specification for which the fact-finder below has found the accused not guilty
3. appellant was found guilty of using ecstasy on one occasion during the time period referenced in the specification; the Government attempted to prove allegations of wrongful use on numerous occasions and the verdict reflected that the members found appellant not guilty of all of those allegations save one; in conducting its factual sufficiency review, the Court of Criminal Appeals cannot find the appellant guilty of any of the allegations of use of which the members found him not guilty; the Court of Criminal Appeals is required to weigh the evidence and be themselves convinced beyond a reasonable doubt of appellant's guilt of engaging in wrongful use on the same "one occasion" that served as the basis for the members' guilty finding; without knowing which incident that appellant had been found guilty of and which incidents he was found not guilty of, that task is impossible; appellant has a substantial right to a full and fair review of his conviction by the Court of Criminal Appeals under Article 66(c), and the ambiguity in the court-martial's findings results in material prejudice to that right