2012 (September Term)
United States v. Garner, 71 M.J. 430 (the military judge has an independent duty to determine and deliver appropriate instructions).
(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).
(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)).
2011 (September Term)
United States v. Barnett, 71 M.J. 248 (the military judge has an independent duty to determine and deliver appropriate instructions).
(once evidence of pretrial punishment was introduced during sentencing by the accused, in the interests of reliable and truthful sentencing, it was within the military judge’s discretion to initially instruct the members of the Article 13 credit and how it would be credited).
(the military judge correctly responded to the members’ question about whether they could increase the accused’s sentence to offset the 100 days of pretrial confinement Article 13 credit the accused received by instructing the members that they had a duty to adjudge an appropriate sentence that they regarded as fair and just when imposed, not one whose fairness depended upon the actions of others; nothing in the instruction invited the members, either expressly or by inference, to either impose extra confinement to offset the pretrial confinement Article 13 credit or impose less confinement in consideration for the pretrial punishment).
(while counsel may request specific instructions, the military judge has substantial discretion in deciding on the instructions to give and whether the requested instructions are appropriate; this discretion must be exercised in light of correct principles of law as applied to the facts and circumstances of the case).
(denial of a requested instruction is error if: (1) the requested instruction is correct, (2) it is not substantially covered in the main charge, and (3) it is on such a vital point in the case that the failure to give it deprives the accused of a defense or seriously impairs its effective presentation).
(the military judge did not abuse his discretion in declining to specifically instruct the members that they could not increase the amount of the accused’s confinement to offset or nullify some or all of the accused’s pretrial confinement Article 13 credit, where the issue as to how the members should consider the credit was substantially covered in the instructions provided; if the military judge had instructed the members that they could not consider the Article 13 confinement credit in determining an appropriate sentence, that instruction would have been in conflict with the standard instruction properly informing the members that they should consider all matters in extenuation and mitigation as well as those in aggravation in determining an appropriate sentence).
United States v. Behenna, 71 M.J. 228 (in regard to form, a military judge has wide discretion in choosing the instructions to give but has a duty to provide an accurate, complete, and intelligible statement of the law).
(instruction on losing and regaining the right to act in self-defense was erroneous where (1) the military judge provided no guidance on how to evaluate an offer-type assault, which occurs, for instance, when an individual points a loaded pistol at another person without lawful justification or authorization, and (2) the military judge gave an inaccurate statement of the law when he linked the lawful use of force with the issue of escalation with the conjunction “and” (“However, if you have a reasonable doubt that the accused assaulted Ali Mansur, was provoked by Ali Mansur, or had some other legal justification or excuse, and you are not convinced beyond a reasonable doubt that Ali Mansur did not escalate the level of force, then you must conclude that the accused had the right to self-defense ....”); the statement of law was inaccurate because appellant would have had the right to self-defense if his original use of force had been lawful - it was provoked, justified, or otherwise excusable (i.e., appellant was not an initial aggressor) - or if Mansur had escalated the level of force).
(a military judge is only required to instruct on a defense when there is some evidence in the record, without regard to credibility, that the members could rely upon if they chose; in other words, a military judge must instruct on a defense when, viewing the evidence in the light most favorable to the defense, a rational member could have found in the favor of the accused in regard to that defense).
(where appellant lost the right to act in self-defense as a matter of law, any instruction on losing and regaining the right to self-defense was superfluous).
United States v. Ignacio, 71 M.J. 125 (if evidence of consent is presented in a trial for abusive sexual contact, the judge must ensure that the factfinder is instructed to consider all of the evidence, including the evidence raised by the accused that is pertinent to the affirmative defense, when determining whether the prosecution established guilt beyond a reasonable doubt).
(where appellant was charged with abusive sexual contact in violation of Article 120(h), UCMJ, and the military judge explained on the record why he would instruct the panel pursuant to the Military Judges’ Benchbook rather than the statutory language and the military judge’s instructions included the statement that evidence of consent is relevant to whether the prosecution has proven the elements of the offense beyond a reasonable doubt and that the prosecution has the burden to prove beyond a reasonable doubt that consent did not exist, the military judge did not err in so instructing the panel; the instructions correctly conveyed the government’s burden to the members).
United States v. Stanley, 71 M.J. 60 (a military judge is required to instruct members on any affirmative defense that is in issue, and a matter is considered in issue when some evidence, without regard to its source or credibility, has been admitted upon which members might rely if they chose).
(military judges have substantial discretionary power in deciding on the instructions to give; however, when an affirmative defense is raised by the evidence, an instruction is required).
(waiver does not apply to required instructions such as affirmative defenses).
(an escalation of force instruction, in addition to detailed self-defense instructions that were given, was not warranted in a trial for two specifications of premeditated murder where appellant had escalated a conflict involving a physical altercation between his companion and a second victim into one involving use of deadly force when he came out of closet and held the victims at gun point, and then used the weapon to subdue them and to forcibly search them for weapons; although the fact that the first victim picked up a rifle and shot at appellant constituted the use of deadly force, at that point, the level of conflict had already been escalated to one involving the use of deadly force by appellant; furthermore, even though appellant alleged that the second victim attempted to stab his companion with a knife from behind, the issue for the members was simply whether appellant was entitled to use deadly force in defense of another and escalation of force was not in issue; accordingly, the military judge did not err in excluding the principle of escalation of force in his self-defense instructions to the members).
United States v. Winckelmann, 70 M.J. 403 (the military judge must provide instructions that sufficiently cover the issues in the case and focus on the facts presented by the evidence).
United States v. Pierce, 70 M.J. 391 (members must be instructed on all elements of an offense; military judges have substantial discretionary power in deciding on the instructions to give).
United States v. Schumacher, 70 M.J. 387 (a military judge must instruct members on any affirmative defense that is in issue; a matter is considered in issue when some evidence, without regard to its source or credibility, has been admitted upon which members might rely if they choose; in other words, some evidence, entitling an accused to an instruction, has not been presented until there exists evidence sufficient for a reasonable jury to find in the accused’s favor; thus, the military judge must answer the legal question of whether there is some evidence upon which members could reasonably rely to find that each element of the defense has been established; this test is similar to that for legal sufficiency).
(in this case, the evidence was insufficient to establish that appellant reasonably believed the MPs who arrived at his home during a domestic dispute with his wife were unknown intruders in order to warrant a self-defense instruction in an assault prosecution arising from appellant pointing a pistol at one of the MPs, where (1) appellant was present when his wife requested that her neighbor call the MPs, (2) the MPs arrived four minutes later, (3) during the interim period, appellant’s wife had tried to persuade him to put away his guns because the MPs were coming, (4) when the MPs arrived, they were dressed in full military police attire including badges, (5) while in the process of waving the pistol around, appellant stated that it would be nothing for him to kill a few MPs, and (6) appellant’s defense counsel explicitly denied that the evidence could warrant such an instruction; given the sequence of events, the physical appearance of the MPs, appellant’s statement indicating knowledge of who the people were, and defense counsel’s concessions at trial, the military judge did not err in determining that there was no evidence that appellant reasonably perceived the infliction of wrongful bodily harm).
2010 (September Term)
United States v. Lusk, 70 M.J. 278 (the military judge should give a limiting instruction concerning the appropriate use of inadmissible evidence relied upon for the basis of the expert opinion; importantly, such instructions can ensure that the testimony is not transformed from evidence introduced for the limited purpose of showing what the expert witness relied upon into substantive evidence introduced for the purpose of establishing a truth of the matter, particularly in view of the potential that the latter case could raise constitutional issues under the Confrontation Clause of the Sixth Amendment; limiting instructions are particularly important when evidence that is inadmissible, or admissible for only a limited purpose, involves a discrete fact or set of facts).
(in a prosecution for wrongful use of cocaine, once it was determined that a laboratory’s confirmatory drug test report contained inadmissible hearsay, the military judge erred in failing to give a limiting instruction concerning the appropriate use of that inadmissible evidence after an expert witness testified concerning the reliability of the initial, admissible laboratory test report and relied on the confirmatory test report in formulating his opinion).
United
States v. Medina, 69 M.J. 462 (under the
aggravated sexual assault statute
in Article 120(c)(2), UCMJ, the burden was on the accused to prove the
affirmative defense of consent by a preponderance of the evidence, and
the
military judge erred in instructing the members that the evidence
raised the
defense of consent and that the government had the burden of disproving
the
defense beyond a reasonable doubt).
(even though the military
judge erred in not
instructing the members under the statutory scheme of the aggravated
sexual
assault offense under Article 120(c)(2), UCMJ, that the burden was on
the
accused to prove the affirmative defense of consent by a preponderance
of the
evidence, the error was harmless beyond a reasonable doubt where the
military
judge clearly and correctly instructed the members that the evidence
raised the
defense of consent and that the government had the burden of disproving
the
defense beyond a reasonable doubt).
United
States v. Prather, 69 M.J. 338 (the military
judge must bear the primary
responsibility for assuring that the jury properly is instructed on the
elements of the offenses raised by the evidence as well as potential
defenses
and other questions of law).
United
States v. Pope, 69 M.J. 328 (when
demonstrative evidence is admitted, the
military judge is required to properly instruct the members that the
evidence
is for illustrative purposes only).
United
States v. Alston, 69 M.J. 214 (the MCM
expressly notes that its listing of
lesser included offenses is not all-inclusive).
(even though the MCM does not
list aggravated
sexual assault as a lesser included offense with respect to rape by
force, the
military judge properly instructed the members that aggravated sexual
assault
was a lesser included offense of rape by force in the context of the
charge at
issue).
(in this case, the elements of
aggravated
sexual assault were necessarily included in the charge at issue, rape
by force,
that alleged that appellant caused the victim to engage in a sexual
act, to
wit: penetration of her vagina with his fingers by using power or
strength or
restraint applied to her person sufficient that she could not avoid or
escape
the sexual conduct; the first element of aggravated sexual assault -
causing
another person to engage in a sexual act - is the same for both
offenses; the
second element of aggravated sexual assault - causing bodily harm - is
defined
in Article 120(t)(8), UCMJ, to include an offensive touching, however
slight, and
that element is a subset of the force element in the offense of rape
under
Article 120(a), UCMJ, as defined in Article 120(t)(5)(C), UCMJ [*but
note that
the definitions of force in Article 120(t)(5)(A), UCMJ, and Article
120(t)(5)(B),
UCMJ, which do not require an offensive touching, are not at issue in
the
present case]).
United
States v. Maynulet, 68 M.J. 374 (generally, a
military judge has substantial
discretionary power to decide whether to issue a jury instruction).
(a military judge has a sua
sponte duty to
instruct on an affirmative defense if reasonably raised).
United
States v. Trew, 68 M.J. 364 (where a
specification alleges wrongful acts
on “divers occasions,” the members must be instructed that any findings
by
exceptions and substitutions that remove the “divers occasions”
language must
clearly reflect the specific instance of conduct upon which their
modified
findings are based; that can generally be accomplished through
reference in the
substituted language to a relevant date or other facts in evidence that
will
clearly put the accused and the reviewing courts on notice of what
conduct
served as the basis for the findings).
United
States v. Smith, 68 M.J. 316 (obedience to
lawful orders is an affirmative
defense on which the military judge has a sua sponte duty to instruct
if the
defense is reasonably raised).
United
States v. Neal, 68 M.J. 289 (if evidence of
consent is introduced in
aggravated sexual contact prosecution, the military judge must instruct
the
members to consider all of the evidence, including the evidence of
consent,
when determining whether the government has proven guilt beyond a
reasonable
doubt; in doing so, the military judge must be mindful of both the
content and
sequential structure of the instructions).
(the Constitution permits a
legislature to
place the burden on the accused to establish an affirmative defense,
even if
the evidence necessary to prove the defense also may raise a reasonable
doubt
about an element of the offense; if such evidence is presented, the
judge must
ensure that the factfinder is instructed to consider all of the
evidence, including
the evidence raised by the accused that is pertinent to the affirmative
defense, when determining whether the prosecution established guilt
beyond a
reasonable doubt).
United
States v. Ediger,
68 M.J. 243 (where the members are instructed that MRE 414 evidence may
be
considered for its bearing on an accused’s propensity to commit the
charged
crime, the members must also be instructed that the introduction of
such
propensity evidence does not relieve the government of its burden of
proving
every element of every offense charged; moreover, the factfinder may
not convict
on the basis of propensity evidence alone).
United States v. Forney, 67 M.J. 271 (the
military judge did not err by instructing the members using the
definition of
child pornography from 18 USC § 2256 of the Child Pornography
Prevention Act to
explain the term in the context of a conduct unbecoming an officer and
a
gentleman charge, even though the Supreme Court later held that this
definition
violated the First Amendment to the extent that it criminalized the
possession
and distribution of certain “virtual” images – images that were neither
obscene
nor produced by the exploitation of actual children; speech that is
protected
in the civil population may nonetheless undermine the effectiveness of
response
to command, and if it does, it is constitutionally unprotected; the
First
Amendment does not protect a military officer from prosecution under
Article
133 for wrongfully possessing virtual child pornography on government
computers
on a Navy warship underway).
(before a military judge is
required to give
an affirmative defense instruction, there must be some evidence in the
record
to which the members might attach credit).
(constitutional free speech
protection of virtual child pornography in civilian
society was not a defense to a charge of conduct unbecoming an officer
based on
appellant’s possession of virtual child pornography on government
computers on
a Navy warship underway; in any event, in this case, there is
absolutely no
evidence that the images were or might have been virtual; thus, even if
appellant’s defense were recognized in military law, and it is not, the
military judge would not have been required to instruct on it).
United
States v. DiPaola, 67 M.J. 98 (if the record
contains some evidence of the affirmative defense of mistake of fact to
which
the military jury may attach credit if it so desires, the military
judge is
required to instruct the panel on that affirmative defense).
(a
military judge is required to instruct the panel on affirmative
defenses, such
as mistake of fact, if the record contains some evidence to which the
military
jury may attach credit if it so desires; when the
defense has been raised by some evidence, the military judge has a sua
sponte
duty to give the instruction).
(an accused is not required to
testify in order
to establish a mistake-of-fact defense; the evidence to support a
mistake-of-fact instruction can come from evidence presented by the
defense,
the prosecution, or the court-martial).
(the
defense theory at trial and the nature of the evidence presented by the
defense
are factors that may be considered in determining whether the accused
is
entitled to a mistake of fact instruction; any doubt whether an
instruction
should be given should be resolved in favor of the accused).
(a military judge’s duty to
instruct is not
determined by the defense theory; he must instruct if the defense is
raised;
the defense’s theory of the case is not dispositive in determining what
affirmative defenses have been reasonably raised by the evidence but
can be
taken into account when considering the evidence).
(evidence that the victim
consented to and
willingly participated in some of the sexual acts listed in the
specification
was some evidence that appellant honestly and reasonably believed the
victim
consented to some of his actions, requiring a mistake-of-fact
instruction on the
indecent assault specification; appellant and the victim had a prior
consensual
sexual relationship, the victim consented to the removal of her shirt
and the
kissing of her breasts after saying “no” to intercourse, creating a
mixed
message as to which acts were permissible and which were off-limits;
where the
record revealed a mixed message evidentiary situation in conjunction
with
defense counsel’s mixed message theme in his opening and closing
statements and
his request for a mistake-of-fact instruction, it contained some
evidence of a
mistake of fact that the panel could attach credit to if it so desired,
and the
military judge erred in failing to give a mistake-of-fact instruction
on the
specification).
(while the military judge has
a sua sponte duty
to give a mistake-of-fact instruction even in the absence of a defense
request,
counsel’s request for the instruction is indicative of the defense’s
theory of
the case and can be considered by appellate courts as context for
whether the
entire record contains some evidence that would support the
instruction).
(when some evidence exists in
the record, the
military judge must give a mistake-of-fact instruction).
(in the context of this case,
the absence of a
mistake-of-fact instruction on the indecent assault specification was
not
harmless beyond a reasonable doubt because that instruction resulted in
a
finding of not guilty when given with respect to an indecent exposure
specification involving the same victim in the same setting; had the
military
judge given a mistake-of-fact instruction informing the panel to
consider the
prior relationship and the circumstances leading up to the indecent
assault
incident, it is not clear beyond a reasonable doubt that a rational
jury would
have found appellant guilty absent the error; the missing instruction
essentially undercut a defense theory and could very well have
contributed to
the finding of guilty).
2008 (Transition)
United
States v. Ober, 66 M.J. 393 (the military
judge has an independent duty to
determine and deliver appropriate instructions; the military judge must
bear
the primary responsibility for assuring that the jury properly is
instructed on
the elements of the offenses raised by the evidence as well as
potential
defenses and other questions of law).
(appellant failed to
demonstrate that the omission of the charged words “cause to be” from
the
military judge’s instructions on the charge of transporting child
pornography
in interstate commerce constituted plain error, where appellant’s
speculation
that omission of the words might have caused the court-martial members
to
ignore that language or to convict him under another theory of
liability for
which they were not instructed did not carry his burden to show
an
unfair prejudicial impact on the members’ deliberations or material
prejudice
to his substantial rights; as a threshold matter, appellant failed to
demonstrate how omission of the words “cause to be” -- which were not
part of
the underlying statute -- changed the nature of the offense or left the
members
with a misunderstanding of the transporting charge and its
specification;
furthermore, the defense did not object to the military judge’s
proposed
instructions on the transporting charge, nor did the defense request
any
additional instructions to clarify the elements of the offense).
(appellant failed to
demonstrate that the military judge committed plain error in his
instructions
on the charge of transporting child pornography in interstate commerce
by
failing to instruct on a theory of aiding and abetting, where appellant
was
charged and prosecuted with transporting child pornography as a primary
actor,
and the government focused its case on proving that he was guilty of
transporting child pornography based on his own act of obtaining files
via
KaZaA, a peer-to-peer file sharing program; irrespective of
whether the
government could have relied on an aider and abettor theory in this
case,
appellant was not prejudiced by the decision of the military judge to
focus his
instructions on the primary theory presented by the prosecution).
(appellant failed to
demonstrate that the military judge committed plain error in his
instructions
on the charge of transporting child pornography in interstate commerce
by
failing to provide a definition of “uploading,” where the computer
forensics
experts who testified for the government and the defense offered
comprehensive
explanations of the KaZaA file sharing process, including uploading; the
absence of a further description of uploading did not constitute a
material
prejudice to the substantial rights of appellant where the testimony at
trial
did not produce a material difference between the parties or their
experts
regarding the operation of KaZaA or how KaZaA could be used to obtain
files,
where the defense did not challenge the government expert’s testimony
that
downloading files through KaZaA caused an upload to occur on the host
computer,
but instead embraced the evidence of how KaZaA worked in an effort to
convince
the panel members that someone other than appellant was responsible for
downloading child pornography on his computer, and where the defense
did not
object to the military judge’s proposed instructions, nor did the
defense
request additional instructions on uploading).
2007
(in this case, the
self-defense instruction given was incomplete where the military judge
erred in not instructing the members that a mutual combatant could
regain the right to self-defense when the opposing party escalated the
conflict and when he was incapable of withdrawing in good faith).
(military judge’s failure to
give complete and correct self-defense instruction created a
constitutional error).
United States v. Schroder, 65 M.J. 49 (in child
molestation case in which other acts of child molestation were
admitted, military judge was not required to give an instruction
distinguishing between the charged acts that met the definition of
offense of child molestation in MRE 414 and those in the charge that
did not).
(in child molestation case,
military judge erred in his instruction as to how the members could
consider the MRE 414 evidence, where the instruction was susceptible to
an unconstitutional interpretation that the members were permitted to
conclude that the presence of similarities between the charged and
uncharged misconduct were, standing alone, sufficient evidence to
convict appellant of the charged offenses).
(where the members in a child
molestation case are instructed that MRE 414 evidence may be considered
for its bearing on an accused’s propensity to commit the charged crime,
the members must also be instructed that the introduction of such
propensity evidence does not relieve the government of its burden of
proving every element of every offense charged).
United States v. Gutierrez, 64 M.J. 374 (the affirmative
defense of mistake of fact is a required instruction under RCM
920(e)(3); when this defense is reasonably raised by the evidence, the
military judge is duty-bound to give an instruction, unless it is
affirmatively waived).
(a military judge has a sua
sponte duty to give certain instructions when reasonably raised by the
evidence, even though the instructions are not requested by the
parties).
(like affirmative defenses,
lesser included offenses are required instructions under RCM 920(e) and
cannot be waived simply by counsel’s failure to request such
instructions).
(the military judge did not
abuse his discretion in denying a defense-requested instruction on
government witnesses testifying under a promise of leniency; although
the overall thrust of the requested instruction was correct, the
standard accomplice instruction that the military judge gave
substantially covered the leniency offered the witnesses and addressed
their possible motives to lie as a result of their favorable pretrial
agreements, and the denial of the requested instruction did not deprive
the accused of a defense or seriously impair his ability to present a
defense).
United States v. Foster, 64 M.J. 331 (within certain
bounds, military judges can comment upon and summarize evidence
admitted in the form of expert witness testimony; RCM 920(e)(7) states
that instructions on findings shall include such other explanations,
descriptions, or directions as may be necessary and which are properly
requested by a party or which the military judge determines, sua
sponte, should be given; in moving beyond benchbook instructions,
however, military judges must use caution not to do so in a manner that
either places undue emphasis on or minimizes the importance of expert
testimony).
2006
(a military
judge’s instructions are intended
to aid the members
in the
understanding of terms of art, to instruct the members on the elements
of each offense and to explain any available
defenses).
(a
military judge is more than a mere referee; he is charged with deciding
whether
any defense is reasonably raised by the evidence; if there is some
evidence of
a possible defense –- it does not have to be compelling or convincing
beyond a
reasonable doubt –- the military judge is duty bound to give an
instruction
even if the instruction was not requested by the parties).
2005
United
States v. Augspurger, 61 M.J. 189 (the military judge should
properly
instruct the members that if they except the “divers occasion” language
from a
specification, they need to make clear which allegation was the basis
for their
guilty finding).
United
States v. Forbes, 61 M.J. 354 (MRE 301(g) provides that when the
accused
does not testify at trial, defense counsel may request that the members
of the
court not be instructed to disregard the accused’s silence; under this
rule,
defense counsel’s election is binding upon the military judge except
that the
military judge may give the instruction when the instruction is
necessary in
the interests of justice; Rule 301(g) recognizes that the decision to
ask for a
cautionary instruction is one of great tactical importance for the
defense and
generally leaves that decision solely within the hands of the defense;
the rule
reflects the President’s authority to grant members of the armed forces
rights
more protective than those required by the Constitution).
(when there is a defense objection to the failure-to-testify
instruction
under MRE 301(g), a military judge is bound by the defense election
unless the
judge performs a balancing test that weighs the defense concerns
against the
case-specific interests of justice).
(a military judge’s decision
to override
the otherwise binding election of the defense under MRE 301(g) must be
based on
something more than a generalized fear that the members would hold the
appellant’s silence against him because such a fear could be argued in
every
case of silence of the accused).
(in this case, the military
judge’s
failure to articulate any “interests of justice” to give the
failure-to-testify
instruction over the defense objection, other than the standard fear of
member
misuse of the appellant’s silence, indicates that such “interests of
justice”
simply did not exist; the standard fear that members might hold an
accused’s
silence against him has already been accounted for by the President in
MRE
301(g) and resolved by giving the election to the defense team, except
in an
unusual case; a generalized fear that the panel will misuse an
accused’s
silence, by itself, does not provide a basis for concluding that the
circumstances of a case are so unusual as to warrant rejection of a
defense
objection to the instruction).
1999
United
States v. Smith, 50 MJ 451 (a military judge is required
to
instruct, sua sponte, on the elements of each lesser-included
offense
for which there is in the record some evidence reasonably placing these
offenses in issue).
(failure
to object to an
instruction
or the omission of an instruction before the members close to
deliberate
constitutes a waiver of that objection absent plain error; waiver,
however,
must be established by affirmative action of counsel and not merely by
failure
to object to erroneous instructions or to request proper instructions).
United
States v. Glover, 50 MJ 476 (if a military judge omits
entirely
any instruction on an element of the charged offense, this error may
not be
tested for harmlessness because the court members are prevented from
considering that element at all; where the military judge fails to only
to give
a more specific or amplified instruction on the meaning of terms, the
court
will test for plain error where no such instruction is requested).
United
States v. Griffin, 50 MJ 480 (the military judge has
duty to
instruct sua sponte on all lesser-included offenses reasonably
raised by
the evidence; the lesser-included offense instruction is proper where
the
greater offense in issue requires the members to find a disputed
factual
element which is not required for conviction of the lesser-included
offense).
(where
appellant used a
knife
during an altercation, but contended that he did not intend to stab or
harm his
victim, no instruction on the lesser-included offense of assault
consummated by
a battery was required where there was no factual dispute that
appellant used a
dangerous weapon in his assault upon the victim; there was no disputed
factual
element which was not required for conviction of the lesser-included
offense).
United
States v. Brown, 50 MJ 262 (in instructing on the
elements of
proof, a military judge may not instruct in such a way that the will of
Congress is ignored or diluted concerning the requirements of guilt
provided in
the UCMJ).
United
States v. Hargrove, 51 MJ 408 (with respect to charges
of
willfully disobeying the lawful command of a superior commissioned
officer,
military judge should have instructed members on the lesser- included
offense
of failing to go to his appointed place of duty where: (1) the
officer
issuing the order left details to subordinates, thus raising question
of
whether the officer put the full weight of his office behind a
requirement to
sign in periodically; and, (2) during testimony, the first sergeant and
battalion commander referred to the misconduct as “breaking
restriction”, a
reflection of the command’s perception of appellant’s actions).
United
States v. Wells, 52 MJ 126 (an accused is entitled to an
instruction on a lesser-included offense if reasonably warranted by the
evidence presented; that is, when the evidence would permit the members
rationally to find the accused guilty of the lesser offense and not
guilty of
the greater).
(military law requires a military judge to give an instruction on a
lesser-included offense sua sponte when there is some evidence
which
reasonably places the lesser-included offense in issue; that is, when
there is
some evidence, without regard to its source or credibility, before the
members
upon which they might rely if they choose).
(testimony of appellant concerning a heated domestic dispute, the
presence
of the victim exacerbating this dispute, the victim’s display of a gun,
appellant’s belief that a shot was fired at him as he left initially,
and the
presence of the victim with a gun when appellant returned, placed heat
of
passion and adequate provocation at issue in the case so as to require
instruction on lesser-included offense of voluntary manslaughter).