Instructions. RCM 1005

uscourtmartiallawyers189United States v. Boyd, 55 M.J. 217 (2001). Military judges must instruct on the impact of a punitive discharge on retirement benefits, if there is an evidentiary predicate for the instruction and a party requests it.

  • United States v. Hopkins, 55 M.J. 546 (A.F. Ct. Crim. App. 2001), aff’d , 56 M.J. 393 (2002). The military judge sustained government’s objection to the defense counsel’s request that the judge instruct the members that they should consider the accused’s expression of remorse as a matter in mitigation. The Air Force Court held that RCM 1005(e) lists the required instructions that must be given on sentencing and that case law “does not require the military judge to list each and every possible mitigating factor for the court members to consider.”
  • United States v. Rush, 54 M.J. 313 (2001). Following the sentencing instructions to the members that included the standard bad-conduct discharge instruction, the defense counsel requested the ineradicable stigma instruction. The judge, without explanation as to why, refused to give the requested instruction. The CAAF held that while the military judge abused his discretion when he failed to explain why he refused to give the standard sentencing instruction after a timely request by the defense, there was no prejudice.
  • United States v. Duncan , 53 M.J. 494 (2000). The members interrupted their deliberations to ask the military judge if rehabilitation/therapy would be required if the accused were incarcerated, and if parole or good behavior were available to someone with a life sentence. Instructions on collateral consequences are permitted, but need to be clear and legally correct. It is appropriate for the judge to answer questions if he/she can draw upon a reasonably available body of information which rationally relates to sentencing considerations (here the panel members questions related to both aggravation evidence (heinous nature of the crimes) and rehabilitation potential (his potential unreformed release into society).
  • United States v. Friedmann, 53 M.J. 800 (A.F. Ct. Crim. App. 2000), review denied , 54 M.J. 425 (2001). During his unsworn statement, the accused told the members that others received Article 15s and general discharges for the same misconduct and to permit his commander to administratively discharge him. The military judge provided a sentencing instruction seeking to clarify for the members the administrative discharge process and the irrelevance of using sentencing comparisons to adjudge an appropriate sentence. It was not error for the judge to give the instruction.
  • United States v. Stargell , 49 M.J. 92 (1998). Court found proper curative instruction by military judge in response to trial counsel argument that accused with nineteen and a half years of service “will get an honorable retirement unless you give him a BCD.” In response to defense objection, judge instructed members that their decision “is not a vote to retain or separate the member but whether or not to give the accused a punitive discharge as a form of punishment.” The majority cited to common knowledge in the military that an accused at twenty years is eligible to retire, usually under honorable conditions, and if processed for administrative discharge following court-martial would be entitled to special consideration.
  • United States v. Perry , 48 M.J. 197 (1998). The court upheld the military judge’s decision not to instruct the panel that the accused stood to be found liable for an $80,000 recoupment by the U.S. Naval Academy for educational costs. The defense requested an instruction at sentencing, based on evidence of the practice of recoupment of the cost of education when separated prior to completion of a five year commitment due to misconduct. The defense did not, however, offer any evidence of likelihood of such recoupment in this case.
  • United States v. Simmons , 48 M.J. 193 (1998). Absent direct evidence that the accused was “emotionally or physically abused during his childhood,” there was no requirement for the military judge to give an instruction to the panel to consider such information. The court noted a dispute over whether the accused actually suffered such abuse. Therefore, the instruction required modification so the members could , not must , consider such evidence if they found the accused had in fact been abused. I. United States v. Hall , 46 M.J. 145 (1997). Failure of defense to object at trial to military judge’s instruction regarding collateral benefits constitutes waiver. Accused captain was dependent of Air Force retiree. At sentencing phase of her court-martial, panel asked effect of dismissal on her benefits as dependent. The judge answered that neither conviction nor sentence would have any effect on benefits she would receive as a dependent. No objection by the defense to this correct instruction by the MJ. J. United States v. Thompson , 43 M.J. 703 (A.F. Ct. Crim. App. 1995). Accused introduced evidence of child’s upcoming surgery, and offered medical testimony that accused should be present for surgery and a few weeks thereafter. In response to member question, the military judge informed panel that CA has discretion to defer confinement. No abuse of discretion or improper advice to panel on collateral matters where assisted panel in making informed decision. K. United States v. Burt , 56 M.J. 261 (2002). Accused, at time of trial, was retirement eligible (i.e., 225 mos. of active service). The military judge asked the defense if they wanted an instruction, which covered the Service Secretary’s authority to allow the accused to retire even if a punitive discharge was awarded. The defense objected to the instruction. The panel ultimately adjudged a BCD, which the CA approved. The CAAF rejected an IAC attack noting that the decision to object to the instruction was a reasoned tactical decision. L. United States v. Blough , 57 M.J. 528 (A.F. Ct. Crim. App. 2002). Defense counsel requested a specific, detailed instruction that focused the panel on the appellant’s age, performance report, lack of prior disciplinary actions, his character as reflected in several defense, the testimony of the defense witnesses, and the appellant’s expressed desire to remain in the Air Force. The military judge denied the defense request and gave the panel general guidance on what they should consider on sentencing consistent with United States v. Hopkins , 55 M.J. 546 (A.F. Ct. Crim. App. 2001), aff’d , 56 M.J. 393 (2002). The military judge did NOT instruct the panel that a guilty plea (mixed plea case) was a matter in mitigation. A military judge is not required to detail each piece of evidence that may be considered by the panel in arriving at a sentencing. Rather, the judge need only give general guidelines to the members on the matters they should consider on sentencing (e.g., extenuation and mitigation such as good character, good service record, pretrial restraint, mental impairment, etc.). Also, absent plain error, failure to request an instruction or to object to an instruction as given waives any issue. The court noted that perhaps counsel had a valid tactical reason for not requesting the instruction. Finally, the court noted that even if there were error, any error was harmless. M. U.S. v Rasnick , 58 M.J. 9 (2003). The military judge did not err in failing to give the “punitive discharge is an ‘ineradicable’ stigma” instruction despite a specific request by defense counsel when the instruction advised the members that a punitive discharge was severe punishment, that it would entail specific adverse consequences, and that it would affect appellant’s future with regard to his legal rights, economic opportunities, and social acceptability. The instructions were sufficient to require the members to consider the enduring stigma of a punitive discharge.” See also United States v. Greszler, 56 M.J. 745 (A.F. Ct. Crim. App. 2002) (observing that judge’s decision to use other terms to describe a punitive discharge other than “ineradicable” not error; instruction must convey that a punitive discharge is severe punishment and other terminology may be used). N. United States v. Miller , 58 M.J. 266 (2003). The military judge erred by failing to advise panel to consider appellant’s pretrial confinement (three days) in arriving at an appropriate sentence. It is a mandatory instruction, therefore, waiver did not apply. The judge also failed to give a defense requested pretrial confinement sentence credit instruction. This failure was not error because although the requested instruction was correct and not covered by the other instructions, it was not on so vital a point as to deprive the appellant of a defense or seriously impair its presentation.

RCM 1005

United States v. Simmons