Recent CAAF jurisprudence has been loaded with significant lesser included offense (LIO) issues. Things really got started in 2008 when, in United States v. Medina, 66 M.J. 21, 26 (C.A.A.F. 2008) (discussed here), the court viewed the three clauses of Article 134 as alternative theories of prosecution and concluded that Article 134 clause 1 & 2 offenses are not are not necessarily LIOs of clause 3 offenses. CAAF continued this reasoning in United States v. Miller, 67 M.J. 385 (C.A.A.F. 2009) (discussed here), holding that a simple disorder under Article 134 is not a LIO of every enumerated article. Then, in United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010) (discussed here), the court returned to the elements test for determining LIOs, creating what we called an easy button for LIOs (and producing some entertaining citations in subsequent decisions). Notably, in Jones, the court noted
While it has been said that “[t]he question of what constitutes a lesser-included offense [in the military justice system] . . . is a Hydra,” United States v. Weymouth, 43 M.J. 329, 342 (CAAF 1995) (Crawford, J, concur ring in the result), rather than embracing a “Hydra” we return to the elements test, which is eminently straightforward and has the added appeal of being fully consonant with the Constitution, precedent of the Supreme Court, and another line of our own cases.
Jones, 68 M.J. at 468.
But things weren’t really so eminently straightforward. For instance, in United States v. Rauscher, 71 M.J. 225 (C.A.A.F. 2012) (CAAFlog case page), the court found that the designation of a specific statute is immaterial when the proper elements of a different offense are explicitly alleged in the specification. And in United States v. Tunstall, 72 M.J. 191 (C.A.A.F. 2013) (CAAFlog case page), CAAF rejected a LIO that was too similar to the charged offense. There’s also the closely-related concept of multiplicity, which CAAF tackled in United States v. Campbell, 71 M.J. 19 (C.A.A.F. 2012) (CAAFlog case page), explaining that multiplicity is aimed at protection against double jeopardy. CAAF also considered multiplicity in United States v. Elespuru, 73 M.J. 326 (C.A.A.F. 2014) (CAAFlog case page), where the court addressed a multiplicity claim by finding that the issue was waived at trial but then the court set aside one of the two convictions anyway, noting that they were charged in the alternative.
The clarity of Medina, Miller, and Jones is somewhatobscured by applications like Rauscher, Tunstall, Campbell, and Elespuru. But in a recent unpublished decision in United States v. Hart, No. 201300295 (N-M.Ct.Crim.App. Aug. 19, 2014) (link to slip op.), a three-judge panel of the NMCCA eliminates all clarity and reincarnates the hydra.
The appellant in Hart was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of unpremeditated murder, involuntary manslaughter, aggravated assault, negligent homicide, and child endangerment in violation of Articles 118, 119, 128, and 134. He was sentenced to confinement for twelve years, reduction to E-1, total forfeitures, and a dishonorable discharge. The convictions all related to the death of the appellant’s infant daughter who the appellant was accused of forcibly shaking.
In particular, the appellant was convicted of three of the charges (unpremeditated murder (Art. 118(3)), involuntary manslaughter (Art. 119(b)(1)), and negligent homicide (Art. 134)) for conduct that occurred on a single day and resulted in the girl’s death (the aggravated assault and child endangerment charged addressed abuse on an earlier date). Writing for the three-judge panel of the CCA, Judge Jamison notes that these offenses “were specifically charged for contingencies-of-proof.” Slip op. at 9. However, the members were not instructed that the appellant could be convicted of no more than one of the three. Rather, “the military judge elected to merge for sentencing purposes the unpremeditated murder, involuntary manslaughter, and negligent homicide” offenses, meaning that the appellant was convicted of all three but sentenced only for the greatest offense (unpremeditated murder). Slip op. at 7. On appeal the appellant asserts that the military judge should have dismissed the involuntary manslaughter and negligent homicide offenses as an unreasonable multiplication of charges. Slip op. at 6-7.
Rather than second-guess the trial judge’s decision to merge the three offenses for sentencing, Judge Jamison reviews both offenses from a multiplicity standpoint and finds that both should be dismissed as LIOs. The finding of involuntary manslaughter as a LIO of unpremeditated murder in violation of Article 118(3) is rather unremarkable considering the elements of the each offense (and Judge Jamison notes the court’s decision in United States v. Dalton, 71 M.J. 632, 634 (N.M.Ct.Crim.App. 2012), aff’d, 72 M.J. 446-47 (C.A.A.F. 2013) (summary disposition), cert. denied, 134 S.Ct. 941 (2014), in which it affirmed involuntary manslaughter as a LIO of unpremeditated murder in violation of Article 118(2)). However, Judge Jamison’s conclusion that negligent homicide in violation of Article 134 is a LIO of unpremeditated murder in violation of Article 118(3) is remarkable for a couple of reasons, the first of which is that it is directly contrary to CAAF’s conclusions in United States v. Girouard, 70 M.J. 5, 9 (C.A.A.F. 2011), and United States v. McMurrin, 70 M.J. 15, 18 (C.A.A.F. 2011), and the second of which is that Article 134 offenses necessarily include an element missing from Article 118: prejudice to good order and discipline or conduct likely to bring discredit upon the armed forces.
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