U.S. v. Thompson, 59 M.J. 432

Trial Stages: Merits: Instructions › Lesser-included offenses

1. when the evidence reasonably raises issues concerning a lesser-included offense or the statute of limitations, the military judge is charged with specific affirmative responsibilities; if the evidence at trial reasonably raises a lesser-included offense, the military judge has an affirmative duty to include in the instructions a description of the elements of each lesser included offense in issue, unless trial of a lesser included offense is barred by the statute of limitations (Article 43) and the accused refuses to waive the bar; the military judge has an affirmative obligation to advise an accused of the right to assert the statute of limitations, and must determine that any waiver of the statute of limitations bar is both knowing and voluntary
2. in the present case, the military judge appropriately noted that evidence at trial reasonably raised two lesser-included offenses, carnal knowledge and indecent acts, to the charged rape offense; he also provided appropriate instructions as to the elements of each offense; before giving those instructions, however, the military judge was required to draw the attention of appellant to the fact that a substantial portion of the time period set forth in the proposed instructions included dates in which prosecution of the lesser-included offenses was barred by the statute of limitations; the military judge erred by failing to engage in these discussions with appellant prior to instructing the members
3. the military judge had a timely opportunity to correct the lesser included offense/statute of limitations error after the court was closed for deliberations; at that point, when the problem was called to his attention by the trial counsel, the military judge could have conducted the required inquiry of appellant to ensure that appellant understood the import of the statute of limitations in this case; if the military judge had made such an inquiry, and if appellant had responded in a manner demonstrating a knowing and voluntary waiver, no further instructions would have been required; if, on the other hand, the military judge had determined that appellant would not waive the statute of limitations, the military judge would have been obligated to modify the instructions as to the lesser included offenses to include only the period that was not time-barred

Trial Stages: Merits: Findings

1. when the panel announced its findings in open court, those findings were final and were not subject to reconsideration by the members; to the extent that a military judge may clarify an ambiguous finding, any such authority is not applicable in the present case; the military judge had instructed the members that they could return a verdict of guilty to the lesser-included offense of indecent acts with a child; he also had instructed them that they could find appellant guilty if they determined that these acts occurred at any time between September 1, 1992, and March 1, 1996; they returned a verdict in which their findings mirrored the military judge’s instruction both as to the lesser-included offense of indecent acts and the full period of time from September 1, 1992, to March 1, 1996; there was no ambiguity; the findings were clear; the problem was not that the military judge permitted an ambiguous verdict; the problem was that, absent a statute of limitations waiver, the military judge was required to provide the members with instructions that focused their deliberations on a much narrower period of time -- January 3, 1995, to March 1, 1996 -- the period not barred by the statute of limitations; the time to focus the members’ attention on the correct time period was before they concluded their deliberations -- not after they concluded their deliberations and returned a finding that addressed a much longer span of time; the failure to do so was not relieved by the military judge’s subsequent reference to evidence in the record that could support the finding; the issue here is not legal sufficiency of the evidence; it is the failure of the military judge to focus the panel’s deliberations on the narrower time period permitted by the statute of limitations
2. where the panel’s findings were not ambiguous, the military judge was not authorized to modify them, irrespective of any subsequent discussions with the members

Trial Stages: Appeals: Harmless / Prejudicial Error

1. the failure to conduct a statute of limitations waiver inquiry with appellant, the erroneous inclusion of the time-barred period in the instructions to the members, and the post-announcement modification of the findings constituted a series of errors materially prejudicial to the substantial rights of appellant