                    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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United States v. McMurrin, No. 11–5001/NA


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


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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.


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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.

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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.

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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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United States v. McMurrin, No. 11-5001


     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.
