U.S. v. Harrington, 83 M.J. 408

Military Justice Personnel: Prosecution Function: Trial Counsel

1. in this case, trial counsel’s participation in the delivery of the victim’s unsworn statement via a question-and-answer format violated the principle that an unsworn victim statement belongs solely to the victim; and accordingly, the military judge abused his discretion by permitting trial counsel and the victim’s parents to present the unsworn victim statements in this format
2. in this case, trial counsel’s participation in the presentation of the victim’s unsworn statement—especially in a question-and-answer format that closely resembles the presentation of actual evidence during every other phase of the trial—unnecessarily blurred the distinction between actual sentencing evidence and the unsworn victim statement

Military Justice Personnel: Military Judge: Discretion

1. generally, a military judge has substantial discretionary power in deciding on the instructions to give in response to requests by counsel; in the specific context of a military judge’s denial of a requested instruction, an abuse of discretion will occur if: (1) the requested instruction was correct; (2) the instruction was not substantially covered by the main instruction; and (3) the instruction was on such a vital point in the case that the failure to give it deprived the accused of a defense or seriously impaired its presentation; more generally, however, any legal ruling based on an erroneous view of the law also constitutes an abuse of discretion
2. in this case, the military judge abused his discretion in denying appellant’s request for an instruction on the maximum punishment for each individual offense because he did so based on an incorrect understanding of the law; contrary to the military judge’s apparent understanding, he possessed the discretion to instruct the panel on the maximum punishments available for each individual offense, in addition to informing them of the maximum cumulative punishment available for all offenses
3. a military judge abuses his discretion when his legal findings are erroneous, or when he makes a clearly erroneous finding of fact
4. in this case, trial counsel’s participation in the delivery of the victim’s unsworn statement via a question-and-answer format violated the principle that an unsworn victim statement belongs solely to the victim; and accordingly, the military judge abused his discretion by permitting trial counsel and the victim’s parents to present the unsworn victim statements in this format

Military Justice Personnel: Military Judge: Instructions

1. generally, a military judge has substantial discretionary power in deciding on the instructions to give in response to requests by counsel; in the specific context of a military judge’s denial of a requested instruction, an abuse of discretion will occur if: (1) the requested instruction was correct; (2) the instruction was not substantially covered by the main instruction; and (3) the instruction was on such a vital point in the case that the failure to give it deprived the accused of a defense or seriously impaired its presentation; more generally, however, any legal ruling based on an erroneous view of the law also constitutes an abuse of discretion
2. under the version of the UCMJ and Rules for Courts-Martial that apply in this case, military courts impose unitary sentences—a single sentence that accounts for all the offenses for which the defendant was found guilty rather than distinct sentences for each individual offense of conviction; consistent with this approach, RCM 1005(e)(1) requires the military judge to instruct panel members on the maximum authorized punishment that may be adjudged; in a case involving multiple offenses, this maximum authorized punishment is the cumulative total of the punishments authorized by the MCM for each offense of conviction; however, even under the military’s unitary sentencing system, a military judge is not prohibited from instructing panel members on the maximum punishments authorized for each offense of conviction in addition to the maximum cumulative punishment

Military Justice Personnel: Court Members: Generally

1. at courts-martial, panel members must sentence the accused based solely on the facts in evidence and the military judge’s instructions

Military Justice Personnel: Special Victim's Counsel: Generally › Generally

1. in the military justice system, victims of certain sex-related offenses and certain domestic violence offenses not only have limited rights to participate in the proceedings but may also be represented by a special victims’ counsel at government expense; special victims counsel represent the victim’s interests instead of the government’s
2. among the rights granted by Congress to victims of an offense in the military justice system is the right to be reasonably heard at the court-martial sentencing hearing related to that offense; in noncapital cases, the President has authorized a victim (or the victim’s lawful representative or designee) to exercise that right by making a sworn statement, an unsworn statement, or both; if a victim elects to make an unsworn statement, the unsworn statement may be delivered orally, or in writing, or in a combination of both formats; the President has expressly authorized the victim’s counsel to deliver all or part of the victim’s unsworn statement on behalf of the victim for good cause shown

Core Criminal Law Subjects: Crimes: Article 134 - Threat, Communicating Pre-2019 offenses

1. four elements for communicating a threat have been specified by the President under Article 134, UCMJ: (1) that the accused communicated certain language expressing a present determination or intent to wrongfully injure the person, property, or reputation of another person, presently or in the future; (2) that the communication was made known to that person or to a third person; (3) that the communication was wrongful; and (4) 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. the first element of communicating a threat requires an objective inquiry, analyzing the existence of a threat from the viewpoint of a reasonable person in the recipient’s place; this objective inquiry examines both the language of the communication itself as well as its surrounding context, which may qualify or belie the literal meaning of the language
3. the third element of communicating a threat requiring wrongfulness is properly understood in relation to the subjective intent of the speaker; in determining if the speaker’s subjective intent was wrongful under the third element, the key question is not whether the speaker intended to carry out the object of the threat, but rather whether the speaker intended his or her words to be understood as sincere
4. in this case, the government introduced sufficient evidence for a rational factfinder to conclude that a reasonable person would have perceived the communications as threatening where (1) appellant used inherently menacing language that expressed both violence (“whoever the sick sadistic mf who did this I’m going to kill”) and sincerity (“I’m f**king dead as [sic] serious”), (2) appellant’s statement to the recipient to “[t]ell me who did it and I’ll go easy on you” could reasonably be interpreted as threatening violence against the recipient when read in context alongside the other messages, and (3) bolstering this conclusion is the recipient’s testimony that she knew that appellant was both intoxicated and in possession of a deadly weapon
5. although the recipient’s reaction to the alleged threat provides useful context, it does not control any element of communicating a threat under Article 134, UCMJ
6. in this case, a rational factfinder could have concluded that appellant subjectively intended his text messages to be perceived as threatening where the menacing language of the text messages and appellant’s menacing gesture of displaying a gun to the recipient less than thirty minutes after the exchange of texts indicated a subjective intent to threaten the recipient

Core Criminal Law Subjects: Evidence: Credibility

1. credibility determinations are uniquely the province of the trier of fact, and an appellate court will not disturb an appellant’s conviction on this ground

Trial Stages: Merits: Instructions › Generally

1. generally, a military judge has substantial discretionary power in deciding on the instructions to give in response to requests by counsel; in the specific context of a military judge’s denial of a requested instruction, an abuse of discretion will occur if: (1) the requested instruction was correct; (2) the instruction was not substantially covered by the main instruction; and (3) the instruction was on such a vital point in the case that the failure to give it deprived the accused of a defense or seriously impaired its presentation; more generally, however, any legal ruling based on an erroneous view of the law also constitutes an abuse of discretion

Trial Stages: Sentence and Punishment: Instructions

1. generally, a military judge has substantial discretionary power in deciding on the instructions to give in response to requests by counsel; in the specific context of a military judge’s denial of a requested instruction, an abuse of discretion will occur if: (1) the requested instruction was correct; (2) the instruction was not substantially covered by the main instruction; and (3) the instruction was on such a vital point in the case that the failure to give it deprived the accused of a defense or seriously impaired its presentation; more generally, however, any legal ruling based on an erroneous view of the law also constitutes an abuse of discretion
2. under the version of the UCMJ and Rules for Courts-Martial that apply in this case, military courts impose unitary sentences—a single sentence that accounts for all the offenses for which the defendant was found guilty rather than distinct sentences for each individual offense of conviction; consistent with this approach, RCM 1005(e)(1) requires the military judge to instruct panel members on the maximum authorized punishment that may be adjudged; in a case involving multiple offenses, this maximum authorized punishment is the cumulative total of the punishments authorized by the MCM for each offense of conviction; however, even under the military’s unitary sentencing system, a military judge is not prohibited from instructing panel members on the maximum punishments authorized for each offense of conviction in addition to the maximum cumulative punishment
3. RCM 1005(e)(1)’s requirement that a military judge must instruct the panel members on the maximum cumulative sentence in no way prohibits an additional instruction on the maximum punishment for each offense of conviction
4. in this case, the military judge abused his discretion in denying appellant’s request for an instruction on the maximum punishment for each individual offense because he did so based on an incorrect understanding of the law; contrary to the military judge’s apparent understanding, he possessed the discretion to instruct the panel on the maximum punishments available for each individual offense, in addition to informing them of the maximum cumulative punishment available for all offenses

Trial Stages: Sentence and Punishment: Lawfulness of Sentence

1. at courts-martial, panel members must sentence the accused based solely on the facts in evidence and the military judge’s instructions

Trial Stages: Sentence and Punishment: Victims and Special Victims's Counsel

1. presentation of the victim’s unsworn statement via a question-and-answer format with trial counsel violates the Rules for Courts-Martial because it contravenes the principle that an unsworn victim statement belongs solely to the victim or the victim’s designee
2. in this case, the military judge abused his discretion in permitting the victim’s parents to deliver their unsworn statements through a question-and-answer format with trial counsel because trial counsel’s participation in the presentation of the unsworn victim statements was incompatible with the principle that unsworn victim statements are the sole province of the victim or the victim’s designees
3. among the rights granted by Congress to victims of an offense in the military justice system is the right to be reasonably heard at the court-martial sentencing hearing related to that offense; in noncapital cases, the President has authorized a victim (or the victim’s lawful representative or designee) to exercise that right by making a sworn statement, an unsworn statement, or both; if a victim elects to make an unsworn statement, the unsworn statement may be delivered orally, or in writing, or in a combination of both formats; the President has expressly authorized the victim’s counsel to deliver all or part of the victim’s unsworn statement on behalf of the victim for good cause shown
4. unsworn victim statements belong solely to the victim or the victim’s designee, and the government may not use unsworn victim statements to supplement its own sentencing arguments, nor may it misappropriate the victim’s statutory right to be heard; in this case, by participating in the delivery of the victim statements, the trial counsel in this case violated that principle
5. unsworn victim statements are not sentencing evidence, but vindication of the victim’s statutory right to be reasonably heard; unsworn victim statements are not delivered under oath, the victim making the unsworn statement is not considered a “witness” for the purposes of Article 42(b), UCMJ, the victim may not be cross-examined by either trial or defense counsel, and unsworn statements are not subject to the Military Rules of Evidence
6. in this case, trial counsel’s participation in the presentation of the victim’s unsworn statement—especially in a question-and-answer format that closely resembles the presentation of actual evidence during every other phase of the trial—unnecessarily blurred the distinction between actual sentencing evidence and the unsworn victim statement
7. Article 6b(a)(5), UCMJ, grants the victim the right to seek the advice or opinion of trial counsel in preparation for making an unsworn statement; however, it does not provide trial counsel with the unconditional right to participate in the delivery of the unsworn statement when a victim’s own counsel cannot do so absent a showing of good cause; the right to confer does not, therefore, encompass a one-sided exchange of questions for answers, given for the purpose of informing a separate listener
8. in this case, trial counsel’s participation in the delivery of the victim’s unsworn statement via a question-and-answer format violated the principle that an unsworn victim statement belongs solely to the victim; and accordingly, the military judge abused his discretion by permitting trial counsel and the victim’s parents to present the unsworn victim statements in this format

Trial Stages: Appeals: Harmless / Prejudicial Error

1. to determine prejudice when errors occur during sentencing, the fundamental question is ‘whether the error substantially influenced the adjudged sentence
2. to evaluate prejudice when a military judge erroneously denies a requested instruction, an appellate court tests for harmless error
3. in the sentencing context, harmless error analysis requires an appellate court to determine whether the error substantially influenced the sentence proceedings such that it led to the appellant’s sentence being unfairly imposed
4. when an appellate court finds error in the admission of sentencing matters, the test for prejudice is ‘whether the error substantially influenced the adjudged sentence, and the government bears the burden of showing the error was harmless, but need not show harmlessness beyond a reasonable doubt; generally, an appellate court considers the four factors in making this determination: (1) the strength of the government’s case; (2) the strength of the defense case; (3) the materiality of the evidence in question; and (4) the quality of the evidence in question; and finally, an appellate court reviews these four factors de novo
5. in this case, where the cumulative errors involved the denial of a requested instruction on maximum punishments for each offense and in permitting the unsworn victim statements to be delivered through a question-and-answer format with trial counsel, the government failed to meet its burden of demonstrating that the errors did not have a substantial influence on the adjudged sentence where (1) the government was able to argue to the panel that appellant should receive “at least” fifteen years of confinement for the involuntary manslaughter charge, even though the maximum punishment for involuntary manslaughter was only ten years, and appellant was denied the opportunity to explain to the members that the actual maximum penalty, and (2) trial counsel’s participation in the presentation of the unsworn victim statements blurred the important distinction between sentencing evidence presented by the government and nonevidentiary sentencing matters presented by the victim, especially when trial counsel was permitted to present the unsworn victim statements from the witness stand, a means of presenting the unsworn victim statements that mimicked the presentation of actual sworn testimony that the panel members would have experienced during the rest of the trial, raising the potential for confusion among the members about the status of the statements

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

1. an appellate court reviews the legal sufficiency of convictions de novo; a conviction is legally sufficient if, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt; and because the appellate court may impinge upon the panel’s discretion only to the extent necessary to guarantee the fundamental protection of due process of law, it imposes a very low threshold to sustain a conviction
2. credibility determinations are uniquely the province of the trier of fact, and an appellate court will not disturb an appellant’s conviction on this ground
3. an appellate court reviews a military judge’s denial of a proposed instruction for an abuse of discretion
4. generally, a military judge has substantial discretionary power in deciding on the instructions to give in response to requests by counsel; in the specific context of a military judge’s denial of a requested instruction, an abuse of discretion will occur if: (1) the requested instruction was correct; (2) the instruction was not substantially covered by the main instruction; and (3) the instruction was on such a vital point in the case that the failure to give it deprived the accused of a defense or seriously impaired its presentation; more generally, however, any legal ruling based on an erroneous view of the law also constitutes an abuse of discretion
5. an appellate court reviews a military judge’s interpretation of RCM 1001 (presenting procedure) de novo
6. an appellate court reviews a military judge’s admission of an unsworn victim statement for an abuse of discretion; and a military judge abuses his discretion when his legal findings are erroneous, or when he makes a clearly erroneous finding of fact
7. to determine prejudice when errors occur during sentencing, the fundamental question is ‘whether the error substantially influenced the adjudged sentence
8. to evaluate prejudice when a military judge erroneously denies a requested instruction, an appellate court tests for harmless error
9. in the sentencing context, harmless error analysis requires an appellate court to determine whether the error substantially influenced the sentence proceedings such that it led to the appellant’s sentence being unfairly imposed
10. when an appellate court finds error in the admission of sentencing matters, the test for prejudice is ‘whether the error substantially influenced the adjudged sentence, and the government bears the burden of showing the error was harmless, but need not show harmlessness beyond a reasonable doubt; generally, an appellate court considers the four factors in making this determination: (1) the strength of the government’s case; (2) the strength of the defense case; (3) the materiality of the evidence in question; and (4) the quality of the evidence in question; and finally, an appellate court reviews these four factors de novo