NMCCA instructional error case.

Since 1 October 2009, NMCCA has issued four new opinions. Here is United States v. Holmes, __ M.J. ___ NMCCA 200800501 (N-M Ct. Crim. App. 8 October 2009)( a Judge Meeks case of Wuterich fame). The other cases are sentence appropriateness and the usual administrativa.

The appellant’s sole assignment of error is that the military judge erred by failing to instruct the members that self-defense was a defense to negligent homicide. . . We conclude the military judge erred to the material prejudice of appellant’s substantial rights. . . The military judge instructed the panel on the elements of the charged offense, unpremeditated murder, and numerous lesser included offenses including negligent homicide. He also instructed the members that the evidence “raised the issue of self defense in relation to . . . unpremeditated murder and the lesser included offenses of voluntary manslaughter, [and all included assaults].” He noted that self-defense is “a complete defense” to those offenses, but did not instruct the members that self-defense was a defense to either involuntary manslaughter or negligent homicide. The appellant did not object to the military judge’s instructions or request a self-defense instruction with respect to negligent homicide. . . The appellant asserts that the military judge erred by failing, sua sponte, to instruct the members that self-defense was a complete defense to negligent homicide. [Note, this avoids an IAC issue, so a plain error analysis isn’t necessary.] (Emphasis added.)

The court reviewed the defense of self-defense to a charge of negligent homicide and concluded such a defense exists, citing to United States v. Thomas, 11 M.J. 315 (C.M.A. 1981). In a footnote the court also opines that self-defense can be raised to involuntary manslaughter a culpable negligence offense. Slip op. at 7 n.5.

After analyzing the evidence in the case the court concluded the military judge erred and failed to instruct on the defense sua sponte. The court further concluded the error was prejudicial. The court noted that the appellant – despite four “confessions” and other evidence – was acquitted of each charge for which there was a self-defense instruction. The bottom line being the Members believed the self-defense case and argument.

Because the error was not harmless beyond reasonable doubt – the standard for evaluating the impact of constitutional error – the court set-aside the finding of guilt on the negligent homicide, and set aside the sentence on the remaining convictions.

The same convening authority may order a rehearing on a charge of negligent homicide and the sentence. If the convening authority determines that a rehearing on that charge is impracticable, he may dismiss the charge and order a rehearing on the sentence only. If the convening authority determines that a rehearing on the sentence only is impracticable, he may approve a sentence of no punishment.

Another reminder that judges have to be careful and make sure they instruct on all possible defenses even when not requested by the defense. This was not a case where the defense sought to affirmatively waive an instruction. A defense waiver of an instruction on the record is a different animal. Presumably had the defense asked and the judge refused, the case on appeal would be the same.

But, defense counsel should not be complacent in relying on the judges sua sponte duty. (And I’m not saying they were.) I do think the counsel could have taken the opportunity to advocate. I notice that Code 20, has a blurb on their webpages about counsel being creative with instructions, it’s under “Criminal Law: Procedure, Training.” It’s a nice PowerPoint document. It’s first page is:

Instructions Or, “it’s lonely on the bench.”

Slide 14:

MJ has sua sponte duty to instruct on special defenses reasonably raised by the evidence. United States v. Jones, 7 M.J. 441 (C.M.A. 1979). In deciding on requested instruction, MJ does not weigh credibility of evidence. United States v. Brooks, 25 M.J. 175 (C.M.A. 1987).

Trial counsel, do you have an obligation to ask in a situation where the defense didn’t and the judge didn’t ask about it or instruct on it? That was not likely the situation in this case. But here’s the question, what if trial counsel knows or is reasonably certain that an instruction would be warranted if the defense or judge asked about it? Does trial counsel have an obligation to bring the issue up?