U.S. v. Hendrix, 77 M.J. 454

Trial Stages: Writs and Interlocutory Appeals: Article 62 Appeal

1. in an Article 62, UCMJ, appeal, an appellate court reviews the military judge’s decision directly and reviews the evidence in the light most favorable to the party which prevailed at trial; the court is bound by the military judge’s factual determinations unless they are unsupported by the record or clearly erroneous

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

1. in an Article 62, UCMJ, appeal, an appellate court reviews the military judge’s decision directly and reviews the evidence in the light most favorable to the party which prevailed at trial; the court is bound by the military judge’s factual determinations unless they are unsupported by the record or clearly erroneous
2. an appellate court reviews de novo the question of whether an accused received a speedy trial
3. when a term is not statutorily defined, a court accords it its ordinary meaning

Trial Stages: Appeals: Waiver

1. all issues surrounding the expiration of the 120-day clock were waived when appellant failed to object to the twelve days of administrative delay at the time of the preliminary hearing officer’s preliminary report and when the military judge failed to make findings of fact or conclusions of law regarding whether appellant had good cause for his delayed challenge to the PHO’s excludable delay determination

Miscellaneous Matters: Speedy Trial: Rule for Courts-Martial 707

1. under the relevant portion of RCM 707, an accused must be brought to trial within 120 days of preferral of charges; if charges are dismissed and then repreferred, a new 120-day period begins from the date of repreferral; failure to comply with RCM 707 will result in dismissal of any affected charges; the trial court decides whether dismissal will be with or without prejudice
2. to determine whether an appellant’s RCM 707 rights were violated by a convening authority’s dismissal and repreferral of charges, the following legal standard is applied: absent a situation where a convening authority’s express dismissal is either a subterfuge to vitiate an accused’s speedy trial rights, or for some other improper reason, a clear intent to dismiss will be given effect; in other words, once charges are dismissed, absent a subterfuge or a dismissal for an improper reason, the speedy-trial clock is restarted; and a proper reason (in the context of a discussion of RCM 604 which governs withdrawal of charges from court-martial) is any legitimate command reason which does not unfairly prejudice an accused; in assessing the presence or lack of subterfuge, a court looks to the ordinary meaning of the term, specifically a dictionary definition of subterfuge as deception by artifice or stratagem in order to conceal, escape, or evade

Miscellaneous Matters: Statutes, Treaties, Regulations, Executive Orders, Directives, etc.: Generally

1. when a term is not statutorily defined, a court accords it its ordinary meaning
2. in this case, the military judge erred in finding a violation of RCM 707 and he therefore had no basis to dismiss the charge and specifications with prejudice, where the government exercised no subterfuge or improper reason in dismissing and repreferring the charges against appellant; the convening authority’s dismissal of charges with the intent to reprefer did not imply subterfuge or an improper reason; rather, dismissal and repreferral were fully permissible under the provisions of RCM 707 because there was no indication the government was engaged in any sort of deception or dismissed the charges with the intention of evading or escaping the 120-day clock; to the contrary, the government appears to have behaved as if it were dismissing for the exact reasons it indicated, because the alleged victim declined to participate at trial and without her participation, the government did not have a strong case; in fact, following the dismissal, the convening authority referred the matter to a subordinate commander to take any administrative action he found appropriate; this step indicates that, without the alleged victim’s cooperation, the government had no intention of prosecuting the case; and repreferral occurred only after the alleged victim changed her mind and informed the government she would participate in the court-martial process