LCDR Davis was originally sentenced to confinement for life in 1995. His sentence was later overturned by CAAF, United States v. Davis, 60 M.J. 469 (C.A.A.F. 2005), and he was resentenced in 2006. At that resentencing hearing, the military judge and all of the parties agreed that they would pretend it was 1995. The members were instructed to do so as well. Presumably this involved continuously playing Shaggy’s “Boombastic” in the background as the court-martial’s soundtrack. Wrong, ruled NMCCA, in a stunning rebuke to Shaggy (who is, after all, a USMC Desert Storm veteran). NMCCA held: “Based on the Rules for Courts-Martial, recognized military sentencing principles and the persuasive authority of [United States v.] Rivers, [27 C.M.R. 949 (A.F.B.R. 1958)] and [United States v.] Rosenthal, [62 M.J. 261 (C.A.A.F. 2005)] and considering the practical difficulties in limiting evidence on resentencing to facts in existence prior to a certain date, we conclude the military judge erred by excluding evidence of facts arising after 22 September 1995.” United States v. Davis, __ M.J. ___, No. NMCCA 9600585, slip op. at 8 (N-M. Ct. Crim. App. Aug. 30, 2007).
While Davis isn’t yet on NMCCA’s public web site, it was uploaded to NKO today, and we have put it on the CAAFlog.com web site here.
Despite ruling that the parties should have acknowledged that they were resentencing LCDR Davis in 2006, not 1995, NMCCA held that appellant had invited the error and therefore “may not now complain he was harmed by it.” Id., slip op. at 10. The court also declined to find plain error. Id.
Finally, while this was a post-Moreno case that blew the 120-day deadline for the CA’s action, NMCCA balances the four post-trial delay factors and finds that LCDR Davis’s due process rights weren’t violated.