U.S. v. Wellington, 58 M.J. 420

Trial Stages: Pretrial: Motions

1. Article 40, UCMJ, empowers military judges, to grant a continuance for reasonable cause to any party for such time, and as often, as may appear to be just; reasonable cause includes insufficient opportunity to prepare for trial
2. broad discretion must be granted trial courts on matters of continuances; only an unreasoning and arbitrary insistence upon expeditiousness in the face of a justifiable request for delay will result in reversal; on the other hand, possible loss of witnesses is a valid consideration in deciding whether to deny a continuance
3. appellant did not establish any prejudicial error in the denial of his motion for a continuance that was sought to review the victim's medical records in order to determine her medications, her mental status, and the times when she was hallucinating; appellant's counsel cross-examined the victim's doctors about these matters at trial; appellant failed to show what he would have done differently if the government had responded to his discovery request in a timely manner

Trial Stages: Initial Review: Post-trial Recommendation

1. Article 60(d), UCMJ, requires the convening authority to obtain and consider the written recommendation of his staff judge advocate or legal officer; consistent with this Congressional intent, the President has acknowledged that the purpose of the recommendation is to assist the convening authority to decide what action to take on the sentence in the exercise of command prerogative
2. where the SJAR is served on the defense counsel and accused in accordance with RCM 1106(f)(1), and the defense fails to comment on any matter in the recommendation, RCM 1106(f)(6) provides that any error is waived unless it rises to the level of plain error
3. RCM 1106(d)(3)(C) and (D) require that the SJAR contain a summary of any records of NJP and a statement of the nature and duration of any pretrial restraint; the government conceded that the SJAR misstated appellant’s disciplinary record and omitted mention of the pretrial restraint imposed; we test for plain error, because appellant did not comment on these errors; in our view, the errors were clear and obvious; the only question is whether the errors resulted in material prejudice to appellant’s substantial right to have a request for clemency judged on the basis of an accurate record; in this case, appellant had no disciplinary record prior to his court-martial, but the SJAR portrayed him as a mediocre soldier who had twice received punishment from a field grade officer; appellant’s best hope for sentence relief was dashed by the inaccurate portrayal of his service record; accordingly, we hold that there was plain error in the SJAR, and we will not speculate on what the convening authority would have done if he had been presented with an accurate record

Trial Stages: Appeals: Preservation of Error / Plain Error

1. where the SJAR is served on the defense counsel and accused in accordance with RCM 1106(f)(1), and the defense fails to comment on any matter in the recommendation, RCM 1106(f)(6) provides that any error is waived unless it rises to the level of plain error

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

1. a military judge’s decision to admit residual hearsay is entitled to considerable discretion on appellate review

Trial Stages: Appeals: Waiver

1. where the SJAR is served on the defense counsel and accused in accordance with RCM 1106(f)(1), and the defense fails to comment on any matter in the recommendation, RCM 1106(f)(6) provides that any error is waived unless it rises to the level of plain error