United States v. McMurrin

UNITED STATES, Appellant
v.
Justin H. MCMURRIN,
Gas Turbine System Technical Fireman
U.S. Navy, Appellee
No. 11-5001
Crim. App. No. 200900475
United States Court of Appeals for the Armed Forces
Argued January 24, 2011
Decided April 14, 2011
RYAN, J., delivered the opinion of the Court, in which
EFFRON, C.J., and ERDMANN and STUCKY, JJ., joined. BAKER,
J., filed a separate dissenting opinion.
Counsel
For Appellant: Colonel Louis J. Puleo, USMC (argued);
Lieutenant Commander Sergio Sarkany, JAGC, USN.
For Appellee: Captain Michael Berry, USMC (argued);
Captain Paul C. LeBlanc, JAGC, USN (on brief).
Military Judge: Holiday Hanna
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. McMurrin, No. 11–5001/NA
Judge RYAN delivered the opinion of the Court.
A military judge, sitting alone as a general court-
martial, convicted Appellee, on mixed pleas, of conspiracy
to possess cocaine, violation of a lawful order, wrongful
use of cocaine, obstruction of justice, and negligent
homicide.1 Articles 81, 92, 112a, and 134, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. §§ 881, 892, 912a, 934
(2006). On June 17, 2009, Appellee was sentenced to
confinement for sixty-six months, reduction to the pay
grade of E-l, forfeiture of all pay and allowances, and a
dishonorable discharge. On August 28, 2009, the convening
authority approved the sentence as adjudged and, except for
the discharge, ordered it executed.
On September 21, 2010, the United States Navy-Marine
Corps Court of Criminal Appeals (NMCCA) set aside the
guilty findings to negligent homicide and violation of a
lawful order and dismissed the corresponding charges and
specifications. See United States v. McMurrin, 69 M.J.
591, 597 (N-M. Ct. Crim. App. 2010).
On October 21, 2010, the Government certified the
following issue:
1
Relevant to the granted issue, Appellee was charged with
involuntary manslaughter, in violation of Article 119,
UCMJ, not negligent homicide, Article 134, UCMJ.
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United States v. McMurrin, No. 11–5001/NA
WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL
APPEALS ERRED BY SETTING ASIDE APPELLANT’S
CONVICTION FOR NEGLIGENT HOMICIDE AS AN ERSTWHILE
LESSER-INCLUDED OFFENSE OF INVOLUNTARY
MANSLAUGHTER ON THE GROUNDS OF CONSTITUTIONALLY
INSUFFICIENT NOTICE WITHOUT TESTING FOR PREJUDICE
PER FOOTNOTE 11 OF UNITED STATES v. JONES.
We conclude that there was plain error in this case
and that the NMCCA correctly set aside Appellee’s
conviction for negligent homicide.
I.
On 19 July 2008, Appellee and Machinist’s Mate Fireman
Recruit (MMFR) James C. Stephens left the Naval Station
they worked at on leave as liberty buddies. Shortly
thereafter, they purchased and consumed cocaine together.
In addition to the cocaine, MMFR Stephens purchased and
consumed heroin by himself. After ingesting the heroin,
MMFR Stephens became incoherent. Appellee, although
concerned with MMFR Stephens’s health, did not seek medical
attention for him. Instead, their drug dealer drove with
Appellee and MMFR Stephens to a nearby hotel to attend a
gathering of servicemembers. Once they arrived at the
hotel, Appellee and the drug dealer carried the incoherent
MMFR Stephens from the car and placed him in the grass near
the parking lot, with Appellee removing MMFR Stephens’s
cell phone, bank card, and identification from his pockets.
Appellee then entered the hotel where the other sailors
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were socializing, and consumed alcohol. Fifteen minutes
later, Appellee returned to check on MMFR Stephens. Though
still breathing, MMFR Stephens was unresponsive to
Appellee’s efforts to wake him. Appellee then moved MMFR
Stephens from out in the open into a more secluded area,
and returned to the party. Appellee later checked on MMFR
Stephens one more time before realizing that he was dead.
Appellee returned to the party and later discarded MMFR
Stephens’s cell phone, bank card, and identification.
Appellee never returned for MMFR Stephens’s body.
Based on the foregoing, Appellee was charged with,
inter alia, the involuntary manslaughter of MMFR Stephens.
At trial, prior to the conclusion of the Government’s case-
in-chief, the military judge raised the lesser included
offense (LIO) of negligent homicide and discussed it with
the parties. At the time of Appellee’s court-martial,
negligent homicide was considered to be an LIO of
involuntary manslaughter under this Court’s precedent and
was listed as such by the President under the Manual for
Courts-Martial, United States (MCM), and Appellee did not
object. See United States v. Taylor, 44 M.J. 254 (C.A.A.F.
1996); MCM pt. IV, para. 44(d)(2).
Throughout the trial, the defense’s theory of the case
was that under either involuntary manslaughter or negligent
4
United States v. McMurrin, No. 11–5001/NA
homicide Appellee was not guilty because the Government
failed to allege or prove that Appellee owed MMFR Stephens
a legal duty. During closing argument, defense counsel
argued that Appellee should be found not guilty of
negligent homicide because he was not the proximate cause
of MMFR Stephens’s death and, “as such . . . that
contributory [sic] negligence appropriate for an Article
119, involuntary manslaughter, Article 134, negligent
homicide offense, is not present in this case.” The
military judge found Appellee not guilty of involuntary
manslaughter but convicted him of negligent homicide.
Appellee appealed the military judge’s decision to the
NMCCA, arguing, inter alia, that Appellee’s conviction for
negligent homicide as an LIO of involuntary manslaughter
violates the requirements of due process and Article 79,
UCMJ, 10 U.S.C. § 879 (2006). McMurrin, 69 M.J. at 592.
The NMCCA first held that negligent homicide no longer
qualifies as an LIO of involuntary manslaughter based upon
this Court’s adoption of the strict elements test in United
States v. Jones, 68 M.J. 465 (C.A.A.F. 2010). McMurrin, 69
M.J. at 593. The NMCCA therefore concluded that the
specification failed to satisfy Appellee’s constitutional
right to notice, and set aside his conviction for negligent
homicide. Id. at 596-97.
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United States v. McMurrin, No. 11–5001/NA
II.
This case raises the same issue raised in United
States v. Girouard, __ M.J. __ (C.A.A.F. 2011): namely,
whether an accused’s conviction based upon an erroneous
finding of an LIO constitutes plain error. Our answer to
this question under the facts of this case is that it was
plain error.
The relevant facts in this case are substantially
similar to those in Girouard: Appellee was convicted of an
LIO that is no longer an LIO after our repudiation of the
notion of implied elements in United States v. Miller, 67
M.J. 385 (C.A.A.F. 2009), and our return to the elements
test in Jones, 68 M.J. 465. Applying the holdings of those
cases retrospectively, it was clear and obvious error to
convict Appellant of negligent homicide as an LIO of
involuntary manslaughter. See United States v. Harcrow, 66
M.J. 154, 159 (C.A.A.F. 2008) (“[W]here the law at the time
of trial was settled and clearly contrary to the law at the
time of appeal -- it is enough that an error be plain at
the time of appellate consideration.”) (citation and
quotation marks omitted).
Appellee was charged with involuntary manslaughter,
the elements of which are (1) that a certain person is
dead; (2) that this death resulted from an act or omission
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United States v. McMurrin, No. 11–5001/NA
of the accused; (3) that the killing was unlawful; and (4)
that the act or omission constituted culpable negligence,
or occurred while the accused was perpetrating one of
numerous listed offenses not at issue here. MCM pt. IV,
para. 44.b(2). However, Appellant was convicted of
negligent homicide, the elements of which are (1) that a
certain person is dead; (2) that this death resulted from
an act or failure to act of the accused; (3) that the
killing was unlawful; (4) that the accused’s act or failure
to act that caused the death amounted to simple negligence;
and (5) that, under the circumstances, the conduct of the
accused was to the prejudice of good order and discipline
in the armed forces or was of a nature to bring discredit
upon the armed forces. MCM pt. IV, para. 85.b. Just as
prejudice to good order and discipline or service
discrediting are not subsumed within the elements of
premeditated murder, Girouard, __ M.J. at __ (11-12)
(citing Jones, 68 M.J. at 471; Miller, 67 M.J. at 388-89),
they are also not subsumed within the elements of
involuntary manslaughter. Therefore, just as negligent
homicide is not an LIO of premeditated murder, id., it is
not an LIO of involuntary manslaughter. Thus, in light of
Miller, Jones, and Girouard, the military judge clearly
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United States v. McMurrin, No. 11–5001/NA
erred when he found negligent homicide to be an LIO of
involuntary manslaughter.
Additionally, we find that Appellee’s failure to
object forfeited, rather than waived, any error. Girouard,
__ M.J. at __ (16-17). We therefore grant relief only if
there was plain error, which requires (1) that there be
error, (2) that the error be plain or obvious, and (3) that
the error materially prejudices a substantial right of the
accused.2 Id. (citing United States v. Powell, 49 M.J. 460,
463-65 (C.A.A.F. 1998)); see also United States v. Harcrow,
66 M.J. 154, 161 (C.A.A.F. 2008) (Ryan, J., concurring)
(noting that applying the plain error rule retroactively
requires the Court to pretend (1) that the new rule had
existed at the time of trial, (2) that had counsel known
about the new rule, he would not have forfeited the
objection, and (3) that the military judge, despite the new
rule, would not have followed it). Whether there was plain
error is a question of law, which we review de novo.
2
There is some disagreement about the application of the
fourth prong of United States v. Olano, 507 U.S. 725 (1993)
-- whether the error “seriously affect[ed] the fairness,
integrity or public reputation of judicial proceedings.”
Puckett v. United States, 129 S. Ct. 1423, 1429 (2009)
(quoting Olano, 507 U.S. at 736) (citation and quotation
marks omitted); see United States v. Paige, 67 M.J. 442,
453 (C.A.A.F. 2009) (Stucky, J., with whom Ryan, J.,
joined, dissenting in part and concurring in the result).
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United States v. McMurrin, No. 11–5001/NA
As noted above, negligent homicide under Article 134,
UCMJ, is not an LIO of involuntary manslaughter under
Article 119, UCMJ. Therefore, convicting on negligent
homicide as an LIO was error that was clear and obvious.
Finally, the rights at issue in this context are
substantial, given that, as we explained in Girouard,
[t]he Fifth Amendment provides that no person
shall be “deprived of life, liberty, or property,
without due process of law,” U.S. Const. amend.
V, and the Sixth Amendment provides that an
accused shall “be informed of the nature and
cause of the accusation,” U.S. Const. amend. VI.
Both amendments ensure the right of an accused to
receive fair notice of what he is being charged
with. See Apprendi v. New Jersey, 530 U.S. 466,
476 (2000); Cole v. Arkansas, 333 U.S. 196, 200
(1948); see also Jones, 68 M.J. at 468. But the
Due Process Clause of the Fifth Amendment also
does not permit convicting an accused of an
offense with which he has not been charged. See
United States v. Marshall, 67 M.J. 418, 421 n.3
(C.A.A.F. 2009) (noting the government’s dual due
process obligations of fair notice and “proof
beyond a reasonable doubt of the offense alleged”
(emphasis added)). As the Supreme Court
explained in Patterson v. New York, “the Due
Process Clause requires the prosecution to prove
beyond a reasonable doubt all of the elements
included in the definition of the offense of
which the defendant is charged.” 432 U.S. 197,
210 (1977) (emphasis added); see also United
States v. Wilcox, 66 M.J. 442, 448 (C.A.A.F.
2008) (“To satisfy the due process requirements
of the Fifth Amendment, the Government must prove
beyond a reasonable doubt every element of the
charged offense.” (emphasis added)). Thus, when
“all of the elements [are not] included in the
definition of the offense of which the defendant
is charged,” then the defendant’s due process
rights have in fact been compromised. See
Patterson, 432 U.S. at 210.
9
United States v. McMurrin, No. 11–5001/NA
__ M.J at __ (13-14). Therefore, convicting Appellee of
negligent homicide despite the fact that all of its
elements were not contained in the specification violated
Appellee’s Fifth Amendment right not to be convicted of an
offense different than the one appearing on the charge
sheet.3
For its part, the Government assumes without conceding
that treating negligent homicide as an LIO of involuntary
manslaughter was plain and obvious error. It argues,
however, that the error did not materially prejudice a
substantial right of the accused. We disagree.
At the outset, we reject Appellee’s contention that
the error here was structural. Structural errors are those
constitutional errors so “affect[ing] the framework within
which the trial proceed[s],” United States v. Wiechmann, 67
3
In Jones, we loosely used the term “variance” in reference
to a conviction of an offense that was not an LIO. 68 M.J.
at 473. Since “variance” is a term of art, that “‘exists
when evidence at trial establishes the commission of a
criminal offense by the accused, but the proof does not
conform strictly with the offense alleged in the charge,’”
United States v. Lubasky, 68 M.J. 260, 264 (C.A.A.F. 2010)
(quoting United States v. Teffeau, 58 M.J. 62, 66 (C.A.A.F.
2003)), it would have been better had we used “amendment,”
which occurs when the prosecution or the court either
literally or constructively alters the terms of the
charging document. See Stirone v. United States, 361 U.S.
212, 217 (1960). The problem here is not that the
Government’s proof did not match the allegations on the
charge sheet, but that the charge sheet was constructively
amended by convicting Appellee of an offense with elements
not contained in the specification.
10
United States v. McMurrin, No. 11–5001/NA
M.J. 463, 463 (C.A.A.F. 2009) (citation and quotation marks
omitted), that the trial “cannot reliably serve its
function as a vehicle for determination of guilt or
innocence,” Rose v. Clark, 478 U.S. 570, 577-78 (1986),
overruled on other grounds by Brecht v. Abrahamson, 507
U.S. 619, 637 (1993); see also Rivera v. Illinois, 129 S.
Ct. 1446, 1455 (2009) (“As our recent decisions make clear,
we typically designate an error as ‘structural’ . . . only
when ‘the error necessarily renders a criminal trial
fundamentally unfair or an unreliable vehicle for
determining guilt or innocence.’”) (citation and quotation
marks omitted) (alteration in original); Neder v. United
States, 527 U.S. 1, 8 (1999) (“Indeed, we have found error
to be ‘structural’ . . . only in a ‘very limited class of
cases.’” (quoting Johnson v. United States, 520 U.S. 461,
468 (1997))). Like the Supreme Court, this Court has
indulged a “strong presumption” against structural error,
and has declined to find it unless the error is of such a
nature that its effect is “difficult to assess” or
harmlessness is irrelevant. See United States v. Brooks,
66 M.J. 221, 224 (C.A.A.F. 2008); see also Rose, 478 U.S.
at 579-80. We cannot say that prejudice is always
irrelevant in LIO cases like McMurrin and Girouard, and we
cannot say that the effect of such an error is necessarily
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United States v. McMurrin, No. 11–5001/NA
“difficult to assess.” For instance, if Appellee’s defense
to the charge of involuntary manslaughter were that he
instead committed negligent homicide, this fact may be
relevant to our analysis of the prejudice prong of the
plain error test.
Moreover, we have not previously treated the type of
error before the Court as structural. For instance, in
Jones, we held:
[C]onviction of an offense not charged was
clearly prejudicial in the context of plain
error analysis where, as here, the case was
not tried on a theory of indecent acts and
the military judge did not introduce the
subject of indecent acts into the case until
after the parties had completed their
presentation of the evidence.
68 M.J. at 473 n.11; see also Girouard, __ M.J. at __ (17)
(testing for prejudice based upon an improper LIO
instruction).
Rather than assume structural error whenever an
accused has been convicted of an offense on the mistaken
assumption that it is an LIO of the charged offense, we
must determine whether the constitutional error was
prejudicial4 -- and we conclude that in this case, it was.
As in Girouard, Appellee was not charged with the offense
of which he was convicted, the specification was not
4
We note that it is unclear whether the NMCCA tested for
prejudice, but we affirmatively do so here.
12
United States v. McMurrin, No. 11–5001/NA
amended in accordance with Rule for Courts-Martial 603, nor
did he defend himself on the theory that while he was not
guilty of involuntary manslaughter, Article 119, UCMJ, he
was guilty of negligent homicide, Article 134, UCMJ. But
for the error Appellant would not have been convicted of
negligent homicide. Such a conviction would have required
the military judge to be convinced beyond a reasonable
doubt that he was culpably negligent, which the military
judge did not find here. Id.
Under the circumstances of this case it was
prejudicial plain error to convict Appellee of negligent
homicide.
III.
The decision of the United States Navy-Marine Corps
Court of Criminal Appeals is affirmed.
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BAKER, Judge (dissenting):
I adhere to my dissent in United States v. Girouard, __
M.J. __ (C.A.A.F. 2011) (Baker, J., dissenting). First, for the
reasons stated in my dissents in Girouard and in United States
v. Jones, 68 M.J. 465, 473 (C.A.A.F. 2010) (Baker, J.,
dissenting), negligent homicide was an LIO of involuntary
manslaughter at the time of Appellee’s trial and, in my view, it
remains so. Second, although I agree that one may not be
convicted of an offense for which one has not been charged and
that the retroactive application of the Jones decision results
in such convictions, in light of Rule for Courts-Martial
201(b)(3), it remains unclear why the majority tests for
prejudice if the court-martial in question would have been
without jurisdiction over the offense.