U.S. v. Scheurer, 62 M.J. 100

Core Criminal Law Subjects: Crimes: Article 111 - Drunken or Reckless Operation of Vehicle, Aircraft, or Vessel Pre-2019 offenses

1. Article 111, UCMJ, has been expanded by Congress to prohibit physically controlling, as well as operating, a vehicle while impaired by a controlled substance; the very purpose of the legislation is to remove impaired people from the driver’s seat; so unless the government proves beyond a reasonable doubt that the accused was in the driver’s seat, rather than the passenger seat, while impaired, the government has not established an Article 111, UCMJ, offense
2. in this case, considering the evidence in the light most favorable to the government, a reasonable factfinder could not find beyond a reasonable doubt that appellant was in the driver’s seat of the car while he was impaired; a witness statement indicating that the witness was in the back seat and the accused and his wife were in the front seat and that was normal was legally insufficient to establish that the accused was in the driver’s seat

Core Criminal Law Subjects: Evidence: Hearsay › Generally

1. where the declarant is unavailable to be cross-examined, the Confrontation Clause permits the admission of a hearsay statement in a criminal trial only if: (1) the statement falls within a firmly rooted hearsay exception, or (2) it bears other particularized guarantees of trustworthiness
2. accomplices’ confessions that inculpate a criminal accused are not within a firmly rooted exception to the hearsay rule as that concept has been defined in Confrontation Clause jurisprudence; rather, such statements are presumptively unreliable

Core Criminal Law Subjects: Evidence: Hearsay › Statement against interest

1. the Confrontation Clause forbids the admission of testimonial statements of a witness who did not appear at trial unless that witness was unavailable to testify, and the accused had had a prior opportunity for cross-examination; in this case, this rule did not apply to preclude the admission of pretrial conversations between the accused’s wife and a co-worker during which the accused’s wife implicated both her husband and herself in ongoing drug offenses because the wife’s statements were not testimonial, where the government’s role in obtaining the statements amounted only to the facilitation of the recording of the wife’s statements and no direction or suggestion
2. admission of pretrial hearsay statements by the accused’s wife to a co-worker implicating both her husband and herself in ongoing drug offenses did not violate the Confrontation Clause, where the wife was unavailable to testify by reason of her invocation of the spousal incapacity rule, and the statements bore particularized guarantees of trustworthiness that warrant their admissibility and overcome the presumption of unreliability attaching to a declarant’s statement implicating an accomplice; the statements were truly self-incriminatory and a reasonable declarant in her position would not have made the statements to another military member unless she believed them to be true

Core Criminal Law Subjects: Evidence: Privileges › Husband-wife privilege

1. in the military, spousal incapacity allows the witness spouse, not the accused, to decide whether to testify
2. a spouse who invokes the spousal incapacity rule in refusing to testify against her husband was unavailable to testify for the purposes of the Confrontation Clause; United States v. Hughes, 28 M.J. 391 (C.M.A. 1989) is overruled to the extent that it holds a spouse who invoked spousal incapacity remains available for confrontation purposes

Core Criminal Law Subjects: Witnesses: Confrontation

1. in the military, spousal incapacity allows the witness spouse, not the accused, to decide whether to testify
2. a spouse who invokes the spousal incapacity rule in refusing to testify against her husband was unavailable to testify for the purposes of the Confrontation Clause; United States v. Hughes, 28 M.J. 391 (C.M.A. 1989) is overruled to the extent that it holds a spouse who invoked spousal incapacity remains available for confrontation purposes
3. the Confrontation Clause forbids the admission of testimonial statements of a witness who did not appear at trial unless that witness was unavailable to testify, and the accused had had a prior opportunity for cross-examination; in this case, this rule did not apply to preclude the admission of pretrial conversations between the accused’s wife and a co-worker during which the accused’s wife implicated both her husband and herself in ongoing drug offenses because the wife’s statements were not testimonial, where the government’s role in obtaining the statements amounted only to the facilitation of the recording of the wife’s statements and no direction or suggestion
4. where the declarant is unavailable to be cross-examined, the Confrontation Clause permits the admission of a hearsay statement in a criminal trial only if: (1) the statement falls within a firmly rooted hearsay exception, or (2) it bears other particularized guarantees of trustworthiness

Trial Stages: Merits: Findings

1. when an accused is charged with committing illegal conduct on divers occasions and the court-martial finds the accused guilty of charged conduct but strikes out the on divers occasions language, the effect of the findings is that the accused has been found guilty of misconduct on a single occasion and not guilty of the remaining occasions; thus, where a divers occasions specification is converted to a one occasion specification, the finder of fact should substitute language into the specification to clearly put the accused and the reviewing courts on notice of what conduct served as the basis for the findings

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. the mature and experienced judges who serve on the courts of criminal appeals are presumed to know and apply the law correctly; despite appellant’s allegation that the court of criminal appeals improperly considered statements by appellant’s wife that incriminated herself alone, the court’s opinion contains no hint that it used this evidence inconsistently with the limiting instruction given by the trial judge; in the absence of any indication to the contrary, it is presumed that the court considered this evidence only for the purposes permitted by the limiting instruction

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

1. when an accused is charged with committing illegal conduct on divers occasions and the court-martial finds the accused guilty of charged conduct but strikes out the on divers occasions language, the effect of the findings is that the accused has been found guilty of misconduct on a single occasion and not guilty of the remaining occasions; when this occurs, if the findings do not disclose the single occasion on which the conviction is based, a court of criminal appeals cannot conduct a factual sufficiency review or affirm the findings because it cannot determine which occasion the servicemember was convicted of and which occasion the servicemember was acquitted of

Trial Stages: Appeals: Remedies › Generally

1. because double jeopardy principles would bar any rehearing on incidents of which appellant was found not guilty, and because ambiguous findings preclude distinguishing incidents that resulted in acquittal from the single incident that resulted in a conviction, the remedy for a Walters [58 M.J. 391 (C.A.A.F. 2003)] violation is to set aside the finding of guilty to the affected specification and dismiss it with prejudice

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

1. the standard of review on a question of legal sufficiency of the evidence is whether, considering the evidence in the light most favorable to the Government, a reasonable factfinder could find each element of the offense beyond a reasonable doubt