U.S. v. Griggs, 61 M.J. 402

Core Criminal Law Subjects: Crimes: Art. 112a -- Wrongful Use, Possession, etc, of Controlled Substances Pre-2019 offenses

1. mere speculation as to the identity of a substance by one non-expert witness -- and nothing more -- does not rise to the level of legally sufficient evidence for a drug use conviction
2. circumstantial evidence which could support identification of a drug beyond a reasonable doubt included the physical appearance of the substance; evidence that the substance had the expected drug effect; evidence that the substance was used in the same manner as the illicit drug in question; evidence that transactions involving the substance were for high prices, paid in cash, and covert; and evidence that the substance was called by the name of the illegal narcotic by those in its presence; however, this list of factors is not exhaustive, nor is it required that all the factors be present in a given case
3. the evidence in this case was legally sufficient to support a conviction for use and distribution of ecstasy, despite the accused’s claim that the substance was not illegal ecstasy but legal herbal ecstasy, where there was unequivocal evidence that the accused and his girlfriend who ingested some the substance referred to it as ecstasy rather than herbal ecstasy, where there was lay testimony by the girlfriend about the effects of the drug, and where there was expert testimony corroborating those effects

Trial Stages: Sentence and Punishment: Evidence

1. the prohibition expressed in RCM 1001(b)(5)(D) that a witness may not offer an opinion regarding the appropriateness of a punitive discharge or whether the accused should be returned to the accused’s unit applies to the government’s sentencing evidence but does not apply to defense sentencing evidence
2. RCM 1001(b)(5)(D) does not apply to defense mitigation evidence, and specifically does not preclude evidence that a witness would willingly serve with the accused again; so-called “retention evidence” is classic matter in mitigation, which is expressly permitted to be presented by the defense; however, there can be a thin line between an opinion that an accused should be returned to duty and the expression of an opinion regarding the appropriateness of a punitive discharge; obviously, an accused cannot return to serve in his unit if he receives a punitive discharge; but an explicit declaration that an accused should not receive a punitive discharge or that any such discharge should be of a certain severity is disallowed for the defense not because of RCM 1001(b)(5)(D), but because such evidence invades the province of the members to decide alone on punishment
3. in sentencing, if the defense is allowed to admit retention evidence in mitigation, the government is free to rebut such evidence, consistent with historical concerns regarding command influence; thus, if an accused opens the door by bringing witnesses before the court who testify that the accused back in the unit, the government is permitted to prove that that is not a consensus view of the command
4. RCM 1001(b)(5)(D) does not apply to defense evidence offered in mitigation under RCM 1001(c); however, the defense presentation is not boundless; like other opinion testimony, to establish relevance on sentencing, the witness must have a proper foundation for the opinion or view expressed; military judges shall exercise their discretion in determining whether such a foundation is laid, and whether the door to rebuttal swings open
5. the erroneous exclusion of defense mitigation evidence in the form of character letters urging the accused’s retention in the service was prejudicial in light of the qualitative nature of the excluded statements and the potential impact they may have had upon the members in their sentencing decision; evidence from fellow servicemembers who would have stated that the accused should be retained because of his potential to the service may have had a significant impact on the members, given the value that military members place on respect from peers and superiors

Trial Stages: Sentence and Punishment: Instructions

1. with respect to retention evidence offered by the defense on sentencing, any concerns raised about the thin line between an opinion that an accused should be returned to duty and the expression of an opinion regarding the appropriateness of a punitive discharge can be addressed with a tailored instruction focusing on the distinction between a punitive discharge, which is for the members to decide, and the willingness of a servicemember to serve with an accused again, which may mitigate the range of punishments available at courts-martial

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

1. an appellate court’s standard of review for challenges to legal sufficiency is whether, considering the evidence in the light most favorable to the prosecution, a reasonable factfinder could have found all the essential elements beyond a reasonable doubt; the court draws every reasonable inference from the record in favor of the prosecution
2. an appellate court reviews a military judge’s decision to exclude evidence for an abuse of discretion; and a ruling based on an erroneous view of the law constitutes an abuse of discretion
3. an appellate court tests the erroneous admission or exclusion of evidence during the sentencing portion of a court-martial to determine if the error substantially influenced the adjudged sentence; if so, then the result is material prejudice to an accused’s substantial rights