United States v. Hull , 2011 CAAF LEXIS 462 ( 2011 )

UNITED STATES, Appellee
v.
Shawn R. Hull, Staff Sergeant
U.S. Air Force, Appellant
No. 11-0131
Crim. App. No. 37470
United States Court of Appeals for the Armed Forces
Argued April 21, 2011
Decided June 10, 2011
EFFRON, C.J., delivered the opinion of the Court, in which
BAKER, ERDMANN, STUCKY, and RYAN, JJ., joined.
Counsel
For Appellant: Major Bryan A. Bonner (argued); Lieutenant
Colonel Gail E. Crawford and Major Darrin K. Johns (on brief);
Colonel Eric N. Eklund.
For Appellee: Captain Joseph J. Kubler (argued); Colonel Don M.
Christensen and Gerald R. Bruce, Esq. (on brief).
Military Judge: Ronald A. Gregory
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Hull, No. 11-0131/AF
Chief Judge EFFRON delivered the opinion of the Court.
A general court-martial composed of a military judge sitting
alone, convicted Appellant, pursuant to mixed pleas, of
dereliction of duty (providing alcohol to a minor), rape, and
adultery, in violation of Articles 92, 120, and 134, Uniform
Code of Military Justice (UCMJ), 10 U.S.C. §§ 892, 920, 934
(2006). The sentence adjudged by the court-martial and approved
by the convening authority included a dishonorable discharge,
confinement for three years, and reduction to E-1. The United
States Air Force Court of Criminal Appeals affirmed. United
States v. Hull, No. ACM 37470, 2010 CCA LEXIS 342, at *7, 2010
WL 4069060, at *3 (A.F. Ct. Crim. App. Sept. 15, 2010)
(unpublished).
On Appellant’s petition, we granted review of the following
issue:
WHETHER THE STAFF JUDGE ADVOCATE ERRED IN
ADVISING THE CONVENING AUTHORITY, PURSUANT
TO RULE FOR COURTS-MARTIAL (R.C.M.) 1106,
THAT NO NEW TRIAL WAS WARRANTED, AND WHETHER
THE CONVENING AUTHORITY ERRED BY FAILING TO
ORDER A NEW TRIAL DESPITE THE STAFF JUDGE
ADVOCATE’S ACKNOWLEDGEMENT THAT APPELLANT
HAD PRESENTED NEW EVIDENCE THAT FELL WITHIN
THE PARAMETERS OF R.C.M. 1210.
For the reasons set forth below, we conclude that the staff
judge advocate (SJA) did not err in his advice to the convening
authority, and that the convening authority did not abuse her
discretion in denying Appellant’s request for a new trial.
2
United States v. Hull, No. 11-0131/AF
I. THE NEW TRIAL REQUEST
Subsequent to the adjudication of findings and sentence,
but prior to the convening authority’s action, information came
to the attention of defense counsel regarding the credibility of
a key prosecution witness. Based upon this information, the
post-trial submissions by the defense to the convening authority
under Rule for Court-Martial (R.C.M.) 1105 included a request
for a rehearing pursuant to R.C.M. 1107(c)(2)(B).
The convening authority’s decision to deny the defense
request provides the focus for the present appeal. To place the
appellate consideration of these matters in context, Part A
describes the pertinent testimony at trial. Part B describes
the post-trial proceedings, including the defense request for a
new trial, the recommendation by the SJA, and the action by the
convening authority.
A. TRIAL PROCEEDINGS
1. The prosecution’s primary witnesses
The prosecution relied primarily on three witnesses to
establish the essential facts on the underlying charges:
Officer Ryan Freeman, a civilian law enforcement official who
investigated the allegations in the immediate aftermath of
the alleged rape; a neighbor, Daniel Yarbrough; and the
complainant, TB.
3
United States v. Hull, No. 11-0131/AF
Officer Freeman testified that on the night of the
incident, he responded to a call indicating that a rape had
taken place at an apartment complex near Hill Air Force Base,
Utah. Officer Freeman stated that he obtained statements from
TB and her friend, Jessica Hutchison. Over defense objection,
the military judge permitted Officer Freeman to relate details
of the statements provided to him by TB and Ms. Hutchison on the
theory that the statements constituted excited utterances under
Military Rule of Evidence 803(2).
According to Officer Freeman, Ms. Hutchison related the
following information in her verbal statement. On the night of
the incident, she had spent the evening in the apartment with TB
and Appellant. TB told Ms. Hutchison that her boyfriend was
coming over to pick her up, and TB went into her bedroom to
change clothes. Ms. Hutchison subsequently heard some noises
coming from TB’s room. When she entered TB’s bedroom to
investigate, she saw TB with her face on the bed, repeating the
word “No.” Appellant, who was naked from the waist down, was
positioned on top of TB. Upon this discovery, Ms. Hutchison ran
to the apartment of her neighbor in order to call the police.
Ms. Hutchison told Officer Freeman that Appellant had “possibly
raped” TB. In a written statement provided to Officer Freeman,
Ms. Hutchison added that when she walked into TB’s room to
4
United States v. Hull, No. 11-0131/AF
investigate the noises, TB “was saying No No No” and Appellant
“had her pinned down behind her raping her.”
TB’s neighbor, Daniel Yarbrough, testified that at
approximately 11:00 p.m., he heard a woman’s voice at his door
“screaming hysterically.” He described it as a bloodcurdling
scream” of “[h]elp me.” He opened the door and saw Ms.
Hutchison, who was “topless,” being followed by Appellant, whose
“pants were halfway on, half off.” According to Mr. Yarbrough,
the two individuals at his door were screaming at each other.
After he called 911 to report the altercation, he heard noises
coming from TB’s apartment “like furniture being bumped around
and . . . people struggling, fighting.” Subsequently, he
entered the apartment, which he described as being in “disarray
. . . like people had been messing around in there, fighting
around in there.” He saw TB, who was crying.
TB provided a similar description of the evening’s events.
She stated that after entering her bedroom, Appellant proceeded
to remove her clothes, push her on the bed, and rape her.
2. The defense at trial
The defense took the position that TB and Appellant had
engaged in consensual sexual activity, and that TB had not been
truthful in claiming that she had been raped. The defense
relied primarily upon the trial testimony of Ms. Hutchison, who
had significantly revised her original account of the incident.
5
United States v. Hull, No. 11-0131/AF
At the time of the incident, Ms. Hutchison was dating Appellant,
had recently given birth to Appellant’s child, and had recently
moved into TB’s apartment where she and her young child lived in
TB’s living room. In contrast to her initial statement to
Officer Freeman, Ms. Hutchison testified at trial that Appellant
and TB “had been flirting that night,” and that she observed
“what was about to be consensual sex” when she entered TB’s
bedroom.
At trial, Ms. Hutchison indicated that TB may have been
motivated to make a rape allegation in response to Ms.
Hutchison’s reaction upon seeing TB and Appellant in the
bedroom. Ms. Hutchison described herself as a person who tends
to “overreact.” She added that upon discovering Appellant and
TB together in the bedroom, she became the angriest that she had
“ever been.” When she confronted TB after the discovery, Ms.
Hutchison “was very mad, very mad, and [she] was like . . . Was
that rape?” At this point she described her demeanor as
“hostile” towards TB, and testified that she “would have
probably hit her or done something violent to her” if TB had
informed her that the actions had in fact been consensual. In
addition, because she was taller and larger than TB, it “would
have been very easy, and I’m sure she knew it, for me to hurt
her in some way.”
6
United States v. Hull, No. 11-0131/AF
In response to questions at trial as to why she had changed
her description of the events -- from an initial
characterization of rape to her trial testimony of a consensual
romantic encounter -- Ms. Hutchison testified that she had
initially agreed with TB that a rape had occurred because she
was “extremely mad” at Appellant and wanted him “to pay” for
cheating on her. She stated that at the time “it was easier to
believe that it was rape than that it was totally consensual,
because then at that point it would mean that he had more or
less betrayed my trust.”
The defense also directly attacked TB’s credibility at
trial. The defense sought to portray TB’s description of the
alleged rape as lacking consistency from one telling to the
next. In that regard, the defense focused on TB’s changing
descriptions, over time, regarding the timeline of events, the
location of her clothing, her positions on the bed, and
Appellant’s actions.
In response to the defense case, the Government relied
primarily upon the evidence obtained on the night of the
incident. The Government argued that Ms. Hutchison’s initial
verbal and written statements, TB’s initial verbal and written
statements, the testimony of TB’s neighbor, and Officer
Freeman’s description of the evening’s events all led to the
conclusion that Appellant had raped TB. In addition, the
7
United States v. Hull, No. 11-0131/AF
Government argued that Ms. Hutchison’s later contrary trial
testimony lacked credibility. Specifically, the Government
contended that Ms. Hutchison had “a motive to lie” and to
protect Appellant because she continued to receive financial
assistance from him. In support of this proposition, the
Government noted that Appellant currently paid Ms. Hutchison’s
gas, electric, garbage, sewer, and water bills, and also
provided medical care, clothes, and toys for their young child.
B. POST-TRIAL PROCEEDINGS
1. The defense request for a new trial
On January 29, 2009, the military judge entered a finding
of guilty on the charge that Appellant had raped TB. On March
17, 2009, the SJA served on the defense the SJA’s recommendation
to the convening authority under R.C.M. 1106, which recommended
approval of the findings and sentence.
The area defense counsel submitted a clemency request to
the convening authority on April 9, 2009, requesting that the
convening authority “set aside AB Hull’s conviction” or, in the
alternative, “grant a new trial” because of “new evidence that
was not available at trial.” Counsel attached an unsworn
statement signed by Taycee Smith, dated April 8, 2009, which
contained the following two paragraphs:
1. I am Taycee Smith, a resident of the
State of Utah. I worked at Citibank
Financial with [TB] in October of 2008. I
8
United States v. Hull, No. 11-0131/AF
knew [TB] from work. I am aware that [TB]
claimed to have been raped by SSgt Shawn
Hull. [TB] told me on two occasions that
what happened between SSgt Hull and [TB] was
not rape. [TB] stated that everything had
been planned and that it was all consensual.
2. I was not present with [TB] and SSgt
Hull when the alleged rape occurred. I only
know what [TB] told me afterwards. She did
not tell me why she claimed that it was
rape, she only told me that it was not rape,
that what happened was consensual.
Below her signature, Ms. Smith added the following handwritten
note, followed by her initials: “Conrad Quick heard [TB] say
this as well.”
The defense submission offered the following background on
the development of this information. According to defense
counsel, Ms. Micaela Gonzalez, a defense witness, had informed
Ms. Smith that Appellant had been found guilty of raping TB, at
which time Ms. Smith told Ms. Gonzalez that TB had described the
incident as consensual. Ms. Gonzalez relayed this information
to Ms. Hutchison, who in turn informed the defense on March 23,
2009, more than a month after the conclusion of trial.
Defense counsel contended that the newly discovered
evidence warranted relief because there was “no question [that]
this evidence could have made a difference” at trial. According
to the defense, the “only evidence that an actual rape occurred
was [TB]’s testimony” at trial, and that even “without Ms.
Smith’s new evidence, there were several problems with [TB]’s
9
United States v. Hull, No. 11-0131/AF
testimony and her recollection of the event.” Defense counsel
added that TB had “given multiple accounts as to what happened
and they have all changed significantly from each other.” The
defense counsel concluded by contending that with “Miss Smith’s
new evidence to place [TB]’s testimonial inconsistencies in
perspective, it is very likely that AB Hull would not be found
guilty at all.”
The senior defense counsel submitted a similar request to
the convening authority. The senior defense counsel’s request
asked the convening authority to “set aside the conviction” or,
in the alternative, “order a rehearing (i.e., a new trial)
pursuant to RCM 1107(c)(2)(B).”
2. The Government’s inquiry
The Government sought to obtain further details regarding
the information from Ms. Smith, but ran into difficulties.
When trial counsel attempted to interview Ms. Smith, she proved
uncooperative and evasive. Trial counsel made multiple
unsuccessful attempts to call Ms. Smith, and left various
messages that went unanswered. When he subsequently reached Ms.
Smith by phone on April 14, 2009, she agreed to a short in-
person interview at her home the next morning. When trial
counsel showed up for the meeting the next day, however, Ms.
Smith was not present. She did not respond to trial counsel’s
ensuing phone calls.
10
United States v. Hull, No. 11-0131/AF
On April 17, 2009, trial counsel was able to reach Ms.
Smith by phone. He emphasized the importance of an interview in
view of the consequences for SSgt Hull, who was facing a three-
year prison term. She declined to meet with the trial counsel,
but agreed to address a few questions during the phone call.
When the trial counsel asked Ms. Smith as to whether she had
been truthful in her written statement, she said: “‘I don’t
know how true the statement is. I didn’t believe it. I didn’t
believe much of anything that [TB] or Jessica Hutchison said
because every day the story changed.’” When trial counsel asked
her to provide contact information for Conrad Quick, the other
party mentioned in her statement, she responded: “‘I asked him
if he heard [TB] say it and he said he must not have been paying
attention at the time.’” She did not provide trial counsel with
any contact information for Mr. Quick. In a subsequent phone
call, she stated that she could not identify the date or
location of her conversation with TB, other than noting that it
was “at a party in Layton, likely during the month of Oct 08.”
Ms. Smith also noted that TB had made a similar statement “in a
restaurant in Roy, also in Oct 08.”
Over the next three days, trial counsel again tried to
contact Ms. Smith in an effort to compare Ms. Smith’s statement
with TB’s statements. Ms. Smith, however, did not return his
phone messages. At that point, trial counsel summarized the
11
United States v. Hull, No. 11-0131/AF
developments in a memorandum entitled: “Attempted Witness
Interview: Taycee Smith.” After setting forth the details of
his efforts to contact Ms. Smith and her brief remarks to him,
he concluded:
Ms. Smith’s oral statement that she really
didn’t believe what [TB] or Ms. Hutchison
said, combined with her inability to recall
the place or month of the conversation casts
significant doubt on the credibility of her
written statement. Her refusal to
participate in an in-person interview, as
well as her repeated failure to return phone
calls also weakens the credibility of her
written statement.
3. The SJA’s addendum
On May 28, 2009, the SJA prepared an addendum to his
recommendation to the convening authority under R.C.M.
1106(f)(7). The addendum, which was served on the defense,
addressed the defense request for a new trial, the trial
counsel’s memorandum, and a sworn statement provided by TB on
May 14, 2009. In the sworn statement, TB denied that she had
ever told Ms. Smith that she had made false allegations against
Appellant, adding: “I stand by the statements I made at SSgt
Hull’s trial.”
The SJA’s addendum described the discovery of the new
evidence by the defense, the difficulties encountered by trial
counsel in conducting the subsequent inquiry, the unwillingness
of Ms. Smith to cooperate, and the nature of the information
12
United States v. Hull, No. 11-0131/AF
provided by Ms. Smith. Based on these considerations, the SJA
advised the convening authority that “the credibility of her
written statement should be considered by you.” The SJA also
noted that TB had “remained completely cooperative, as well as
firm and consistent in her statements and affidavit, contrasting
the demeanor of the alleged new witness, Ms. Smith.”
The SJA informed the convening authority that “Rule for
Courts-Martial 1210(f)(1)(2)(3) states that a new trial may be
granted only on grounds of newly discovered evidence or fraud in
the court-martial. The rule further provides that:
a new trial shall not be granted on the
grounds of newly discovered evidence unless
the petition shows that: the evidence was
discovered after the trial; the evidence is
not such that it would have been discovered
by the petitioner at the time of trial in
the exercise of due diligence; and the newly
discovered evidence, if considered by a
court-martial in the light of all other
pertinent evidence, would probably produce a
substantially more favorable result for the
accused.
Based on this standard and his analysis of the newly
discovered evidence, the SJA informed the convening
authority:
The statements by the new witness Taycee
Smith do fall within the parameters of RCM
1210. However, the unwillingness of this
witness to make herself available to be
interviewed, the potential credibility
issues of Ms. Smith . . . and the fact that
the court members had substantial
opportunity to assess the victim’s
13
United States v. Hull, No. 11-0131/AF
credibility, all give compelling reasons to
uphold the conviction and finding of the
Court.
In that context, the SJA recommended against granting a new
hearing.
4. The defense response to the SJA’s addendum
In defense counsel’s June 9, 2009, response to the SJA’s
addendum, the defense reiterated its request that the convening
authority either set aside the findings or order a new trial.
Defense counsel contended that it “is clear that [Ms. Smith]
wants no part of this process.” The defense added that this
circumstance “does not mean that [Ms. Smith] is in any way
untruthful in what she told both me and the government
representative,” as she “has absolutely no reason to lie and has
in fact told the same facts to both sides.” Counsel further
argued that the information Ms. Smith “possesses is vital for
finding the truth,” and that one “of the benefits of a new
trial, is that Ms. Smith can be compelled to cooperate.”
According to the defense, “[i]n the trial process, she can be
made to appear to testify or even to provide a deposition. No
such power to compel her cooperation exists in these post trial
proceedings.”
5. The second addendum and the convening authority’s action
On June 10, 2009, the SJA provided the convening authority
with a further addendum, stating that he “still find[s] no
14
United States v. Hull, No. 11-0131/AF
compelling reason” to set aside Appellant’s conviction or order
a rehearing. On June 11, 2009, the convening authority took
action, approving Appellant’s adjudged sentence, thereby denying
his request to set aside the conviction or grant a new trial.
II. DISCUSSION
A. THE SCOPE OF POST-TRIAL ACTION BY A CONVENING AUTHORITY
A convening authority is authorized “to modify the findings
and sentence of a court-martial” as “a matter of command
prerogative involving the sole discretion of the convening
authority.” Article 60(c)(1), UCMJ, 10 U.S.C. § 860(c)(1); see
R.C.M. 1107(b)(1). When taking action on the results of trial,
the convening authority may order a rehearing “as to some or all
offenses of which findings of guilty were entered and the
sentence, or as to sentence only.” R.C.M. 1107(e)(1)(A).
In practical terms, a rehearing in full ordered by a
convening authority under Article 60 involves the same trial-
stage procedures as a new trial ordered by the Judge Advocate
General or appellate courts under Article 73, UCMJ, 10 U.S.C. §
873. See R.C.M. 810. The convening authority’s power to order
a rehearing under Article 60, however, differs in a number of
significant respects from the authority to order a new trial
under Article 73 by the Judge Advocate General and appellate
courts. A petition under Article 73 may be submitted at “any
15
United States v. Hull, No. 11-0131/AF
time within two years after approval by the convening authority
of a court-martial sentence . . . on the grounds of newly
discovered evidence or fraud on the court,” and is subject to
the standards and criteria set forth in R.C.M. 1210. By
contrast, the convening authority, who may order a full or
partial rehearing when taking post-trial action on the case as a
matter of command prerogative, is not limited by the standards
and criteria of Article 73 and R.C.M. 1210. See Article 60,
UCMJ; R.C.M. 1107.
In view of the potential impact of newly discovered
evidence on appellate consideration of a case, the SJA or the
convening authority may find it useful to apply Article 73 and
R.C.M. 1210 criteria as a means of addressing such information
early in the post-trial process. The convening authority,
however, is not obligated to apply those criteria in exercising
command prerogative powers under Article 60.
In the course of considering action under Article 60 in the
face of newly discovered evidence, the convening authority has
options other than considering a rehearing on the findings and
sentence. The convening authority also has the power to address
post-trial developments by returning the record for a limited
post-trial hearing before the military judge under Article
39(a), UCMJ, 10 U.S.C. § 839(a). See R.C.M. 1102(b)(2)
(authorizing a hearing “for the purpose of inquiring into, and,
16
United States v. Hull, No. 11-0131/AF
when appropriate, resolving any matter that arises after trial
and that substantially affects the legal sufficiency of any
findings of guilty or the sentence”).
In the present case, the defense asked the convening
authority to either dismiss the charges or order a rehearing in
full. The defense did not ask the convening authority to return
the case to the military judge for a hearing under Article 39(a)
to resolve any of the post-trial issues under R.C.M. 1102(b)(2).
On appeal, the defense contends: (1) that the SJA provided the
convening authority with erroneous legal advice when he
recommended that the convening authority not order a new trial;
and (2) that the convening authority erred in not ordering a new
trial after the SJA noted that the defense request “f[ell]
within the parameters” of the new trial standards under
R.C.M. 1210.
B. THE STAFF JUDGE ADVOCATE’S ADVICE AND THE CONVENING
AUTHORITY’S ACTION
Prior to acting on the results of a general court-martial
and certain special courts-martial, the convening authority must
consider the SJA’s recommendation prepared under R.C.M. 1106.
See Article 60(d), UCMJ. Although the SJA “is not required to
examine the record for legal errors,” the SJA must state whether
“corrective action on the findings or sentence should be taken
when an allegation of legal error is raised in matters submitted
17
United States v. Hull, No. 11-0131/AF
[by the defense] under R.C.M. 1105 or when otherwise deemed
appropriate by the staff judge advocate.” R.C.M. 1106 (d)(4).
The SJA’s response to legal errors raised by the defense “may
consist of a statement of agreement or disagreement with the
matter raised by the accused.” Id. “An analysis or rationale
for the staff judge advocate’s statement, if any, concerning
legal errors, is not required.” Id. Although not required, an
analysis of legal issues raised by the defense may facilitate
resolution of legal issues at the trial level, thereby
conserving appellate resources. See United States v. Taylor, 60
M.J. 190, 195 (C.A.A.F. 2004) (noting that “[b]ecause the
defense submission included allegations of legal error, the
staff judge advocate’s advice to the convening authority was
particularly important”).
In the present case, the defense submitted a post-trial
request for a rehearing invoking the new trial criteria of
R.C.M. 1210. The SJA proceeded to address the defense request
on the terms raised by the defense. In that context, it was not
inappropriate for the SJA to apply the criteria set forth in
R.C.M. 1210 by analogy to the rehearing request. Cf. United
States v. Scaff, 29 M.J. 60, 65-66 (C.M.A. 1989) (noting the
propriety of utilizing R.C.M. 1210 criteria in the post-trial
setting while examining newly discovered evidence in the context
of an Article 39(a) session). Although the SJA might have added
18
United States v. Hull, No. 11-0131/AF
further information concerning the distinction between a “new
trial” ordered during appellate review under Article 73, and a
“rehearing” ordered by a convening authority under Article 60,
omission of that information did not constitute error in the
context of the defense request in the present case. In that
regard, we note that the defense, which has not raised that
distinction in the present appeal, has persisted in treating the
present case as involving the criteria for a new trial under
Article 73 and R.C.M. 1210.
In his advice to the convening authority, the SJA
focused primarily upon the vague nature of Ms. Smith’s
unsworn oral and written statements, as well as her
failure to cooperate when the Government attempted to
further investigate the matter. The SJA concluded
that:
the unwillingness of [Ms. Smith] to make
herself available to be interviewed, the
potential credibility issues of Ms. Smith .
. . , and the fact that the court members
had substantial opportunity to assess the
victim’s credibility, all give compelling
reasons to uphold the conviction and finding
of the Court.
In the defense post-trial submissions, and on appeal,
the defense contends that any difficulty in obtaining
information regarding the details of Ms. Smith’s
account or the credibility of her statements could
19
United States v. Hull, No. 11-0131/AF
have been resolved by setting aside the findings and
ordering a new trial, which would then have the power
to compel her attendance by subpoena.
This Court has emphasized that “requests for a new trial,
and thus rehearings and reopenings of trial proceedings, are
generally disfavored,” and are “granted only if a manifest
injustice would result absent a new trial, rehearing, or
reopening based on proffered newly discovered evidence.” United
States v. Williams, 37 M.J. 352, 356 (C.M.A. 1993). The defense
has not contested the validity of the trial counsel’s memorandum
regarding the difficulties in obtaining information from Ms.
Smith, nor has the defense presented a sworn statement from Ms.
Smith or any corroborating evidence. Most important, the
defense -- having been informed of the SJA’s negative view of
the defense request due to the vagueness of the information and
related matters -- did not ask the convening authority to order
a post-trial Article 39(a) session for the purpose of compelling
Ms. Smith or any other witnesses to appear and give sworn
testimony. In the absence of a defense request for a post-trial
Article 39(a) session, and in light of the vague nature of the
unsworn information provided by the defense, the SJA was not
obligated to inform the convening authority as to the
possibility of ordering such a hearing. See United States v.
20
United States v. Hull, No. 11-0131/AF
Ruiz, 49 M.J. 340, 348 (C.A.A.F. 1998); United States v.
Begnaud, 848 F.2d 111, 113 (8th Cir. 1988).
In addition to contending that the SJA erred, the defense
also contends that the convening authority erred by not relying
upon that portion of the SJA’s advice which noted that the newly
discovered evidence “fall[s] within the parameters of RCM 1210.”
Although the phrase highlighted by the defense could be viewed
as favorable to Appellant’s position on appeal, it would be
inappropriate to focus on this phrase in isolation without
considering the remainder of the SJA’s advice in context. When
viewing the SJA’s recommendation in its entirety, it is apparent
that the SJA did not take the position that a new trial was
required under the criteria set forth in R.C.M. 1210. Instead,
the recommendation makes clear that the SJA was advising the
convening authority that the defense evidence could be
considered under the criteria of R.C.M. 1210, and that the
nature of the evidence did not warrant a new trial under those
criteria.
Under the circumstances of this case, particularly the
nature of the defense’s newly discovered evidence and the
absence of a defense request for a post-trial Article 39(a)
session, the SJA did not misadvise the convening authority.
Likewise, the convening authority did not abuse her discretion
in approving the findings and sentence.
21
United States v. Hull, No. 11-0131/AF
III. CONCLUSION
The decision of the United States Air Force Court of
Criminal Appeals is affirmed.
22