U.S. v. Girouard, 70 M.J. 5

First Principles: Constitutional Matters: Due Process

1. the Fifth Amendment provides that no person shall be deprived of life, liberty, or property, without due process of law, and the Sixth Amendment provides that an accused shall be informed of the nature and cause of the accusation; both amendments ensure the right of an accused to receive fair notice of what he is being charged with; but the Due Process Clause of the Fifth Amendment also does not permit convicting an accused of an offense with which he has not been charged
2. the Due Process Clause requires the prosecution to prove beyond a reasonable doubt all of the elements included in the definition of the offense of which the defendant is charged; thus, when all of the elements are not included in the definition of the offense of which the defendant is charged, then the accused’s due process rights have in fact been compromised

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. under RCM 920(e)(2), the military judge had a sua sponte duty to instruct the court members on LIOs under the prevailing law at the time regardless of appellant’s request

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

1. Article 79, UCMJ, provides the statutory authority for a military judge to instruct on, and for an appellate court to affirm, an LIO
2. in determining whether an offense is an LIO, a court applies the elements test

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

1. premeditated murder under Article 118, UCMJ, requires: (1) a death; (2) that the accused caused the death by an act or omission; (3) the killing was unlawful; and (4) at the time of the killing, the accused had a premeditated design to kill
2. assuming without deciding that simple negligence is subsumed within premeditation, it is nonetheless apparent that negligent homicide contains additional elements that are not elements of premeditated murder: the terminal elements of Article 134, UCMJ, prejudice to good order or service discredit; therefore, negligent homicide is not an LIO of premeditated murder

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

1. negligent homicide under Article 134, UCMJ, requires: (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 by the accused 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. assuming without deciding that simple negligence is subsumed within premeditation, it is nonetheless apparent that negligent homicide contains additional elements that are not elements of premeditated murder: the terminal elements of Article 134, UCMJ, prejudice to good order or service discredit; therefore, negligent homicide is not an LIO of premeditated murder

Trial Stages: Merits: Instructions › Lesser-included offenses

1. under RCM 920(e)(2), the military judge has a sua sponte duty to instruct the court members on LIOs under the prevailing law at the time regardless of appellant’s request
2. in determining whether an offense is an LIO, a court applies the elements test

Trial Stages: Appeals: Preservation of Error / Plain Error

1. where there is no waiver, and in the absence of an objection, an appellate court tests the instructions provided by the military judge for plain error based on the law at the time of appeal
2. in the context of a plain error analysis, the accused has the burden of demonstrating that: (1) there was error; (2) the error was plain or obvious; and (3) the error materially prejudiced a substantial right of the accused
3. where appellant was charged with premeditated murder, it was plain error to instruct on negligent homicide as an LIO; the error was clear and obvious because negligent homicide was not an LIO of premeditated murder; in addition, appellant suffered prejudice to a substantial right where the rights at issue in this context were substantial, given that they were rooted in both the Fifth and Sixth Amendments, and where under the facts of this case, the prejudice was clear - appellant was convicted of an offense that was not an LIO of the charged offense, appellant did not agree to, and the military judge did not, amend the charge or specification, nor did appellant defend against the charged offense of premeditated murder on a theory that he was guilty of negligent homicide, nor was the case tried on a theory of negligent homicide by the government; but for the error, appellant would not have been convicted of negligent homicide

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

1. whether an offense is an LIO is a question of law that is reviewed de novo; in determining whether an offense is an LIO, a court applies the elements test
2. deviation from a legal rule is error unless the rule has been waived
3. where there is no waiver, and in the absence of an objection, an appellate court tests the instructions provided by the military judge for plain error based on the law at the time of appeal
4. (in the context of a plain error analysis, the accused has the burden of demonstrating that: (1) there was error; (2) the error was plain or obvious; and (3) the error materiall

Trial Stages: Appeals: Waiver

1. deviation from a legal rule is error unless the rule has been waived
2. waiver is the intentional relinquishment or abandonment of a known right
3. whether a particular right is waivable, whether the defendant must participate personally in the waiver, whether certain procedures are required for waiver, and whether the accused’s choice must be particularly informed or voluntary, all depend on the right at stake
4. there is a presumption against the waiver of constitutional rights, and for a waiver to be effective, it must be clearly established that there was an intentional relinquishment or abandonment of a known right or privilege
5. charged with premeditated murder, appellant did not waive the error arising when the military judge erroneously instructed on negligent homicide as an LIO, even though he had requested that instruction and even though at the time of trial, negligent homicide was considered an LIO of murder, where the instruction violated appellant’s due process right not to be convicted of a crime that was not an LIO of the offense with which he was charged, and where defense counsel’s trial strategy could not be considered an intentional relinquishment or abandonment of a known right when this LIO issue had not been decided until after trial

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

1. assuming without deciding that simple negligence is subsumed within premeditation, it is nonetheless apparent that negligent homicide contains additional elements that are not elements of premeditated murder: the terminal elements of Article 134, UCMJ, prejudice to good order or service discredit; therefore, negligent homicide is not an LIO of premeditated murder
2. in determining whether an offense is an LIO, a court applies the elements test