U.S. v. Garner, 71 M.J. 430

Military Justice Personnel: Military Judge: Instructions

1. the military judge has an independent duty to determine and deliver appropriate instructions
2. RCM 1005(a) provides that the military judge shall give the members appropriate instructions on sentence; RCM 1009(e)(1) provides that the military judge shall instruct the members on the procedure for reconsideration when a sentence has been reached by members and reconsideration has been initiated; the text of RCM 1009(e) provides that any member may propose reconsideration of a sentence but does not address whether a military judge can initiate reconsideration; the analysis to RCM 1009 in Appendix 21 of the MCM, however, indicates that when reconsideration is initiated by the military judge, a formal vote on reconsideration is necessary
3. the confinement portion of the sentence worksheet that included both 35 years of confinement and confinement for life without eligibility for parole was clearly ambiguous as to the period of confinement adjudged, and the military judge did not err in returning the members to their deliberations to clarify the ambiguity; however, when the members returned from their deliberations with a revised sentence worksheet that did not merely clarify the ambiguity but rather reflected a “new” sentence that included confinement for life, it was obvious that the panel had “reconsidered” the initial sentence and had adopted a sentence that was not reflected on the initial sentence worksheet; regardless of which of the two initial sentences the members intended, the second sentence either increased or decreased that sentence, and therefore reconsideration occurred; at that point, the military judge erred by not suasponte providing the members with appropriately tailored instructions for reconsideration and returning them to deliberations to ensure compliance with RCM 1009(e)

Trial Stages: Sentence and Punishment: Instructions

1. the military judge has an independent duty to determine and deliver appropriate instructions
2. RCM 1005(a) provides that the military judge shall give the members appropriate instructions on sentence; RCM 1009(e)(1) provides that the military judge shall instruct the members on the procedure for reconsideration when a sentence has been reached by members and reconsideration has been initiated; the text of RCM 1009(e) provides that any member may propose reconsideration of a sentence but does not address whether a military judge can initiate reconsideration; the analysis to RCM 1009 in Appendix 21 of the MCM, however, indicates that when reconsideration is initiated by the military judge, a formal vote on reconsideration is necessary
3. except in limited circumstances, RCM 1009 provides that a sentence may be reconsidered at any time before such sentence is announced in open session of the court; the review of the completed sentence worksheet by the military judge does not constitute an announcement of the sentence
4. the confinement portion of the sentence worksheet that included both 35 years of confinement and confinement for life without eligibility for parole was clearly ambiguous as to the period of confinement adjudged, and the military judge did not err in returning the members to their deliberations to clarify the ambiguity; however, when the members returned from their deliberations with a revised sentence worksheet that did not merely clarify the ambiguity but rather reflected a “new” sentence that included confinement for life, it was obvious that the panel had “reconsidered” the initial sentence and had adopted a sentence that was not reflected on the initial sentence worksheet; regardless of which of the two initial sentences the members intended, the second sentence either increased or decreased that sentence, and therefore reconsideration occurred; at that point, the military judge erred by not suasponte providing the members with appropriately tailored instructions for reconsideration and returning them to deliberations to ensure compliance with RCM 1009(e)
5. based on a plain reading of the current RCM 1009 (with revisions promulgated in the 1995 MCM), the term “reconsideration” no longer applies to the clarification of an ambiguous sentence either before or after the sentence is announced in open session of the court
6. the military judge’s error in failing to give reconsideration instructions after she examined the sentence worksheet, returned it to the members to clarify an ambiguity, and the members returned from their deliberations with a revised sentence worksheet that did not merely clarify the ambiguity but rather reflected a “new” sentence, was neither plain nor obvious error and, in any event, there was no prejudice; RCM 1009(e)(3) provides the procedures to be followed when a sentence is reconsidered and RCM 1009(e)(3)(A) specifically provides that the members may reconsider a sentence with a view of increasing it only if at least a majority vote for reconsideration; accordingly, if the initial sentence to confinement was thirty-five years, as urged by appellant, as opposed to confinement for life without eligibility for parole, reconsideration of that sentence with a view of increasing it would have required four of the seven members to vote for reconsideration; when the military judge provided her initial instructions on possible punishments to the members, she instructed them that a sentence of confinement for life required the concurrence of three-fourths or six members; because the “new” sentence that included confinement for life would have required more than a simple majority (four of seven), i.e., the concurrence of three-fourths of the members (six of seven), appellant was not prejudiced

Trial Stages: Appeals: Harmless / Prejudicial Error

1. the military judge’s error in failing to give reconsideration instructions after she examined the sentence worksheet, returned it to the members to clarify an ambiguity, and the members returned from their deliberations with a revised sentence worksheet that did not merely clarify the ambiguity but rather reflected a “new” sentence, was neither plain nor obvious error and, in any event, there was no prejudice; RCM 1009(e)(3) provides the procedures to be followed when a sentence is reconsidered and RCM 1009(e)(3)(A) specifically provides that the members may reconsider a sentence with a view of increasing it only if at least a majority vote for reconsideration; accordingly, if the initial sentence to confinement was thirty-five years, as urged by appellant, as opposed to confinement for life without eligibility for parole, reconsideration of that sentence with a view of increasing it would have required four of the seven members to vote for reconsideration; when the military judge provided her initial instructions on possible punishments to the members, she instructed them that a sentence of confinement for life required the concurrence of three-fourths or six members; because the “new” sentence that included confinement for life would have required more than a simple majority (four of seven), i.e., the concurrence of three-fourths of the members (six of seven), appellant was not prejudiced

Trial Stages: Appeals: Preservation of Error / Plain Error

1. under plain error review, an appellate court will grant relief only where (1) there was error, (2) the error was plain and obvious, and (3) the error materially prejudiced a substantial right of the accused

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

1. whether a court-martial panel was properly instructed is a question of law reviewed by an appellate court de novo
2. under plain error review, an appellate court will grant relief only where (1) there was error, (2) the error was plain and obvious, and (3) the error materially prejudiced a substantial right of the accused