United States v. Marshall, __ M.J. ___ (C.A.A.F. 2009).
This is a fatal variance case.
Appellant pled not guilty to escaping from the custody of Captain (CPT) Kreitman but was convicted, by exceptions and substitutions, of escaping from the custody of Staff Sergeant (SSG) Fleming. We granted review to consider whether the military judge’s findings created a fatal variance. We hold that it did.
This is a good case for review of “variance” issues.
United States v. Wilson, __ M.J. ___ (C.A.A.F. 2009).
This is a case involving “diverse occasions” where the judge found the accused guilty of only one occasion.
After argument on findings the military judge discussed . Unlike United States v. Trew, neither party asked the military judge for clarification on which incident he was basing his finding of guilty on. Thus a potential Walters issue.
As we noted in United States v. Augspurger, 61 M.J. 189, 190 (C.A.A.F. 2005), when the phrase “on divers occasions” is removed from a specification, the effect is “that the accused has been found guilty of misconduct on a single occasion and not guilty of the remaining occasions.” If there is no indication on the record which of the alleged incidents forms the basis of the conviction, then the findings of guilt are ambiguous and the Court of Criminal Appeals cannot perform a factual sufficiency review. United States v. Walters, 58 M.J. 391, 396-97 (C.A.A.F.2003).
After reviewing the evidence the court found that the military judge had announced an ambiguous finding, the parties had not requested clarification, and there was no circumstance from which to assess, “which of the possible incidents most likely formed the basis of the conviction.” Fortunately neither counsel at the time of trial asked for special findings thus allowing the judge to clarify the ambiguity. Had defense counsel asked for special findings he may have prejudiced his client. True the military judge may have ended up giving specific findings on the “wrong” offense, but what are the chances of that? I do not think it wise to ask for special findings in these types of cases. Ambiguity is the friend of the defense – as in this case where the most serious charge of raping a child under 12 was dismissed with prejudice because the finding was ambiguous and the defense didn’t have it clarified. The teaching point here is that defense counsel should remain silent, and trial counsel should ask for special findings.