U.S. v. Miergrimado, 66 M.J. 34

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. a military judge has a sua sponte duty to instruct the members on lesser included offenses reasonably raised by the evidence
2. a military judge can only instruct on a lesser included offense where the greater offense requires the members to find a disputed factual element which is not required for conviction of the lesser violation
3. the military judge did not err by instructing the members on the lesser included offense of attempted voluntary manslaughter over defense objection, where the greater offense of attempted premeditated murder required the members to find the disputed factual element of premeditation which was not required for the conviction of the lesser included offense

Core Criminal Law Subjects: Crimes: Article 79 - Conviction of Lesser Included Offenses Pre-2019 offenses

1. Article 79, UCMJ, which provides that an accused may be found guilty of an offense necessarily included in the offense charged, puts a defense attorney on notice that a lesser included offense instruction may be given
2. the accused was provided fair notice and adequate opportunity to defend on the lesser included offense of attempted voluntary manslaughter, where the accused did not claim that attempted voluntary manslaughter was not a lesser included offense of the charged offense of attempted premeditated murder, where during the government’s case-in-chief and prior to the accused’s testimony, the military judge made it clear that he intended to instruct on this lesser included offense and gave defense counsel the option to continue the case for several days, and where defense counsel accepted the additional time

Core Criminal Law Subjects: Crimes: Article 118 - Murder Pre-2019 offenses

1. to sustain a conviction for attempted premeditated murder, the government must prove that at the time of the killing, the accused had a premeditated design to kill; premeditated murder is murder committed after the formation of a specific intent to kill someone and consideration of the act intended; the offense of voluntary manslaughter, on the other hand, requires the intent to kill or inflict great bodily harm, and does not require premeditation; thus, premeditation is a distinguishing factual element

Core Criminal Law Subjects: Crimes: Article 119 - Manslaughter Pre-2019 offenses

1. to sustain a conviction for attempted premeditated murder, the government must prove that at the time of the killing, the accused had a premeditated design to kill; premeditated murder is murder committed after the formation of a specific intent to kill someone and consideration of the act intended; the offense of voluntary manslaughter, on the other hand, requires the intent to kill or inflict great bodily harm, and does not require premeditation; thus, premeditation is a distinguishing factual element
2. the heat of passion caused by adequate provocation necessary for the offense of voluntary manslaughter may result from fear or rage; the provocation must be adequate to excite uncontrollable passion in a reasonable person, and the act of killing must be committed under and because of that passion; although a slight blow with the hand or fist cannot serve as adequate provocation, in certain circumstances, the unlawful infliction of great bodily harm may constitute adequate provocation
3. the evidence in this case was legally sufficient to support a finding that the crime of attempted voluntary manslaughter was committed in the heat of sudden passion caused by adequate provocation, where testimony from both the accused and the victim established that the two were insulting and swearing at each other before and during their fight and where testimony from the accused indicated that the victim had hit him several times and was coming after him again when he raised his rifle and fired
4. the accused was provided fair notice and adequate opportunity to defend on the lesser included offense of attempted voluntary manslaughter, where the accused did not claim that attempted voluntary manslaughter was not a lesser included offense of the charged offense of attempted premeditated murder, where during the government’s case-in-chief and prior to the accused’s testimony, the military judge made it clear that he intended to instruct on this lesser included offense and gave defense counsel the option to continue the case for several days, and where defense counsel accepted the additional time

Trial Stages: Merits: Instructions › Lesser-included offenses

1. a military judge has a sua sponte duty to instruct the members on lesser included offenses reasonably raised by the evidence
2. a military judge can only instruct on a lesser included offense where the greater offense requires the members to find a disputed factual element which is not required for conviction of the lesser violation
3. an instruction on a lesser included offense may appropriately be requested by either the government or the defense
4. the military judge did not err by instructing the members on the lesser included offense of attempted voluntary manslaughter over defense objection, where the greater offense of attempted premeditated murder required the members to find the disputed factual element of premeditation which was not required for the conviction of the lesser included offense
5. Article 79, UCMJ, which provides that an accused may be found guilty of an offense necessarily included in the offense charged, puts a defense attorney on notice that a lesser included offense instruction may be given
6. the accused was provided fair notice and adequate opportunity to defend on the lesser included offense of attempted voluntary manslaughter, where the accused did not claim that attempted voluntary manslaughter was not a lesser included offense of the charged offense of attempted premeditated murder, where during the government’s case-in-chief and prior to the accused’s testimony, the military judge made it clear that he intended to instruct on this lesser included offense and gave defense counsel the option to continue the case for several days, and where defense counsel accepted the additional time

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

1. whether there is a disputed factual element that distinguishes a greater offense from a lesser offense is a question of law that an appellate court reviews de novo
2. in considering whether the evidence is legally sufficient to support an essential element of an offense, an appellate court views the evidence in the light most favorable to the prosecution and decides whether any rational trier of fact could have found the element beyond a reasonable doubt