U.S. v. McMurrin, 70 M.J. 15

First Principles: Constitutional Matters: Generally

1. structural errors are those constitutional errors so affecting the framework within which the trial proceeds that the trial cannot reliably serve its function as a vehicle for determination of guilt or innocence

Military Justice Personnel: Military Judge: Generally

1. the military judge clearly erred when he found negligent homicide to be an LIO of involuntary manslaughter

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

1. the elements of involuntary manslaughter are (1) that a certain person is dead; (2) that this death resulted from an act or omission of the accused; (3) that the killing was unlawful; and (4) that the act or omission constituted culpable negligence, or occurred while the accused was perpetrating one of certain listed offenses
2. negligent homicide is not an LIO of involuntary manslaughter; prejudice to good order and discipline and service discredit are not subsumed within the elements of involuntary manslaughter

Core Criminal Law Subjects: Crimes: Article 134 -- Negligent Homicide Pre-2019 offenses

1. the elements of negligent homicide are (1) that a certain person is dead; (2) that this death resulted from an act or failure to act of the accused; (3) that the killing was unlawful; (4) that the accused’s act or failure to act that caused the death amounted to simple negligence; and (5) that, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces
2. negligent homicide is not an LIO of involuntary manslaughter; prejudice to good order and discipline and service discredit are not subsumed within the elements of involuntary manslaughter

Trial Stages: Appeals: Preservation of Error / Plain Error

1. plain error requires (1) that there be error, (2) that the error be plain or obvious, and (3) that the error materially prejudices a substantial right of the accused
2. because negligent homicide under Article 134, UCMJ, was not an LIO of involuntary manslaughter under Article 119, UCMJ, convicting the accused of negligent homicide as an LIO was an error that was clear and obvious; the error involved a substantial right of the accused where convicting him of negligent homicide, despite the fact that all of its elements were not contained in the specification, violated his Fifth Amendment due process right not to be convicted of an offense different than the one appearing on the charge sheet; the error was not structural error; and the error was prejudicial plain error where the accused was not charged with the offense of which he was convicted, where the specification was not amended in accordance with RCM 603, where he did he defend himself on the theory that while he was not guilty of involuntary manslaughter, he was guilty of negligent homicide, and where but for the error, the accused would not have been convicted of negligent homicide

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

1. plain error requires (1) that there be error, (2) that the error be plain or obvious, and (3) that the error materially prejudices a substantial right of the accused
2. whether there was plain error is a question of law that an appellate court reviews de novo
3. the Court of Appeals for the Armed Forces has indulged a strong presumption against structural error, and has declined to find it unless the error was of such a nature that its effect was difficult to assess or harmlessness was irrelevant; whenever an accused has been convicted of an offense on the mistaken assumption that it was an LIO of the charged offense, the CAAF cannot say that prejudice was always irrelevant, and it cannot say that the effect of such an error was necessarily difficult to assess; thus, rather than assume structural error, it determines whether the constitutional error was prejudicial

Trial Stages: Appeals: Waiver

1. where the accused failed to object to military judge’s consideration of negligent homicide as a LIO to involuntary manslaughter, his failure to object forfeited, rather than waived, any error

Miscellaneous Matters: Multiplicity and Lesser Included Offenses: Lesser Included Offenses

1. negligent homicide is not an LIO of involuntary manslaughter; prejudice to good order and discipline and service discredit are not subsumed within the elements of involuntary manslaughter