CAAF has granted review of two issues that test how far a CCA can go in denying relief after finding or assuming error. In United States v. Thompson, __ M.J. ___, No. 08-0334/MC (C.A.A.F. July 1, 2008), CAAF granted review of these issues:
WHETHER THE LOWER COURT ERRED IN HOLDING THAT, EVEN IF THE MILITARY JUDGE ERRED IN DENYING THE DEFENSE MOTION TO SUPPRESS APPELLANT’S CONFESSION TO INVESTIGATOR AR, THE ERROR WAS HARMLESS BEYOND A REASONABLE DOUBT.
WHETHER THE LOWER COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF APPELLANT BY SUBSTITUTING ITS FINDING OF GUILT TO RECKLESS ENDANGERMENT UNDER ARTICLE 134, UCMJ, FOR THE COURT-MARTIAL’S FINDING OF GUILT AS TO THE OFFENSE OF KIDNAPPING AS PLED UNDER CHARGE V, SPECIFICATION 2.
NMCCA’s unpublished decision in the case is available here. United States v. Thompson, No. NMCCA 200600807 (N-M. Ct. Crim. App. Dec. 11, 2007).
Among the several offenses of which Pvt Thompson was convicted was kidnapping his wife. NMCCA set aside the kidnapping conviction. The alleged kidnapping was a stand-alone offense, arising out of an argument between Thompson and his wife. It was followed by a rapproachment. During the argument, Thompson got into his car and sped off with his wife apparently partly in and partly out of the car. Witnesses’ accounts differed over whether Thompson pulled his wife into the car before speeding off. NMCCA held that the evidence did not prove beyond a reasonable doubt “that the appellant’s alleged carrying away of his wife was more than a momentary detention,” thus failing to satisfy kidnapping’s elements. Id., slip op. at 6.
But while setting aside the kidnapping conviction on both legal and factual insufficiency grounds, NMCCA nevertheless literally rewrote the specification and found him guilty of reckless endangerment instead. See id., slip op. at 10. The Manual for Courts-Martial did not list reckless endangerment as a lesser-included offense of kidnapping; rather, the only listed kidnapping LIO was attempt. Manual for Courts-Martial, United States at Pt. IV, ¶ 92.d (2005 ed.). Nevertheless, NMCCA maintained that because “the elements for Article 134 offenses of kidnapping and reckless endangerment both prohibit conduct that is either prejudicial to good order and discipline or is service discrediting, we finding that the appellant was clearly on notice of the crime he needed to defend against at trial.” Thompson, slip op. at 8. This seems to hold that because kidnapping and reckless endangerment share one element, it doesn’t matter that each has three unique elements not found in the other; the overlap of the one element was sufficient to put the defense on notice to defend against the apparently uncharged offense of reckless endangerment. If I am correctly divining the nature of the issue from NMCCA’s slip opinion, then it’s little wonder that CAAF granted review on Issue II. (NMCCA did provide meaningful sentence relief though, knocking two years off the approved confinement and reducing the adjudged and approved DD to a BCD.)
As to Issue I, NMCCA assumed without deciding that a CID agent violated the Fifth Amendment in obtaining Pvt Thompson’s confession. Id., slip op. at 9. But “because none of the admissions made by the appellant in his confession relate to any of the offenses of which the members found him guilty, we finding that the admission of appellant’s confession of 7 February 2005 was harmless error beyond a reasonable doubt.” Id., slip op. at 10.