U.S. v. Lovett, 59 M.J. 230

Trial Stages: Merits: Findings

1. a variance between pleadings and proof exists when evidence at trial establishes the commission of a criminal offense by the accused, but the proof does not conform strictly with the offense alleged in the charge; the Rules for Courts-Martial authorize findings by exceptions and substitutions, with the caveat that they may not be used to substantially change the nature of the offense or to increase the seriousness of the offense or the maximum punishment for it
2. minor variances that do not change the nature of the offense are not necessarily fatal; where, however, an appellant can demonstrate that a variance is material and that he was prejudiced, the variance is fatal and the findings thereon cannot stand; prejudice may arise from a material variance if an appellant can show that the variance puts him at risk of another prosecution for the same conduct, or alternatively, if he can show that his due process protections have been violated where he was misled to the extent that he has been unable adequately to prepare for trial, or where the variance at issue changes the nature or identity of the offense and he has been denied the opportunity to defend against the charge
3. upon receiving a charge of soliciting the murder of his wife, appellant’s defense team channeled its efforts in the direction of solicitation of premeditated murder, in order to defeat the Government’s attempt to prove premeditated murder beyond a reasonable doubt; given the explicit language of the charge, appellant could not have anticipated conviction for a lesser-included offense of soliciting a person to wrongfully prevent his wife from appearing in a judicial proceeding; because he lacked notice to prepare an adequate defense, there was a fatal variance between the precise specification as charged, and the general findings as returned by the members
4. we hold that a soliciting murder charge did not put appellant on notice to defend against a lesser-included offense of soliciting the commission of obstruction of justice; consequently, there was a fatal variance between the specification as charged and the members’ ultimate findings

Trial Stages: Appeals: Harmless / Prejudicial Error

1. we hold that even assuming the judge erred in receiving the hearsay statements within PE 12 into evidence, in overruling defense counsel’s objection to LS’s hearsay testimony, and in not permitting defense counsel to question LC about whether appellant did not want TL harmed, any such errors were harmless; appellant suffered no prejudice from the admission of hearsay statements contained in PE 12 and LS’s trial testimony; the hearsay statements were addressed without defense objection during TL’s direct examination, were used by the defense to cross-examine TL, were consistent with and cumulative of the declarants’ own in-court testimony, and were contained in PE 13, which was admitted without defense objection; finally, the judge’s failure to permit defense counsel to question LC regarding appellant’s exact intentions was harmless because the court members ultimately found that appellant did not solicit LC to murder TL -- but rather only to commit an act prejudicial to good order and discipline; counsel’s inability to probe LC to show that he did not solicit murder could not have been prejudicial to appellant