                       UNITED STATES, Appellee

                                    v.

                    Jose C. MIERGRIMADO, Corporal
                     U.S. Marine Corps, Appellant

                              No. 07-0436

                       Crim. App. No. 200501128

       United States Court of Appeals for the Armed Forces

                       Argued December 11, 2007

                      Decided February 20, 2008

ERDMANN, J., delivered the opinion of the court, in which
EFFRON, C.J., and BAKER, STUCKY, and RYAN, JJ., joined.

                                 Counsel


For Appellant:    J. W. Carver, Esq. (argued).

For Appellee: Captain Roger E. Mattioli, USMC (argued);
Commander Paul C. LeBlanc, JAGC, USN (on brief).

Military Judge:   R. S. Chester


       This opinion is subject to revision before final publication.
United States v. Miergrimado, No. 07-0436/MC

     Judge ERDMANN delivered the opinion of the court.

     Corporal Jose Miergrimado was charged with attempted

premeditated murder.   He entered a plea of not guilty and was

tried before a general court-martial comprised of officer

members.   The military judge instructed, over defense objection,

on the lesser included offenses of attempted unpremeditated

murder, attempted voluntary manslaughter, and aggravated assault

with intent to commit grievous bodily harm with a loaded

firearm.

     The members found Miergrimado not guilty of attempted

premeditated murder but guilty of the lesser included offense of

attempted voluntary manslaughter.    He was sentenced to reduction

to E-1, forfeiture of all pay and allowances, confinement for

six years, and a dishonorable discharge.   The United States

Navy-Marine Corps Court of Criminal Appeals affirmed.    United

States v. Miergrimado, No. NMCCA 200501128, 2007 CCA LEXIS 60,

at *10, 2007 WL 1702510, at *4 (N-M. Ct. Crim. App. Feb. 22,

2007) (unpublished).

     We granted review to consider whether the military judge

committed error by instructing the members on the lesser

included offense of attempted voluntary manslaughter over the

defense objection.   65 M.J. 324 (C.A.A.F. 2007).   We hold that

the military judge did not err and affirm the decision of the

Court of Criminal Appeals.



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United States v. Miergrimado, No. 07-0436/MC

                            BACKGROUND

     While Miergrimado’s unit was located in Kuwait awaiting

redeployment to the United States, he and Corporal Steven

Eichenberger engaged in a heated exchange over keys to a

military vehicle.   Miergrimado wanted the keys to the vehicle to

retrieve an item.   Eichenberger was safeguarding the keys and

refused to release them.   Following this initial verbal

exchange, Miergrimado returned with his sergeant who directed

Eichenberger to give Miergrimado the keys.    A second verbal

exchange between the two escalated into a physical confrontation

which was broken up by other Marines.    Miergrimado left with the

keys and when he returned them a short time later, another

verbal and physical confrontation ensued.    This altercation

ended when Miergrimado shot Eichenberger in the neck with his

rifle.   Eichenberger sustained life-threatening injuries but

intervening medical care saved his life.

     Miergrimado was charged with attempted premeditated murder.

At trial, defense counsel intended to use an “all or nothing”

strategy based on a theory of self-defense.    During the trial

the defense counsel objected when the trial counsel tried to

elicit information from a witness that went to the lesser

included offense of attempted unpremeditated murder.   Defense

counsel argued that the defense had opted for an “all or

nothing” defense and would waive any instructions on lesser



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United States v. Miergrimado, No. 07-0436/MC

included offenses.   Under these circumstances, defense counsel

argued, it was inappropriate for the members to be instructed on

a lesser included offense.   Following further argument the

military judge indicated that he would instruct on lesser

included offenses and overruled the objection.

     At the close of the evidence, after noting the defense

objection, the military judge instructed on attempted

premeditated murder and the lesser included offenses of

attempted unpremeditated murder, attempted voluntary

manslaughter, and aggravated assault with intent to commit

grievous bodily harm with a loaded firearm.    The members found

Miergrimado not guilty of the greater offense of attempted

premeditated murder but guilty of the lesser included offense of

attempted voluntary manslaughter.

     On appeal to the Court of Criminal Appeals, Miergrimado

unsuccessfully argued, inter alia, that it was error for the

military judge to instruct on the lesser included offense of

attempted voluntary manslaughter.    Miergrimado, 2007 CCA LEXIS

60, at *2, 2007 WL 1702510, at *1.   Miergrimado has renewed that

contention before this court.

     Miergrimado has not, however, renewed his contention from

the trial level that instructions on lesser included offenses

are inappropriate when defense opts for an “all or nothing”

strategy and waives such instructions.   Rather, in his brief



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United States v. Miergrimado, No. 07-0436/MC

before this court, Miergrimado argued that the lesser included

offense instruction was given in error because there is no

factual element in dispute that would distinguish the greater

offense of attempted premeditated murder from the lesser offense

of attempted voluntary manslaughter.     At oral argument

Miergrimado changed course again, contending that there is

insufficient evidence as a matter of law to support the finding

that the crime was committed “in the heat of sudden passion

caused by adequate provocation,” which distinguishes voluntary

manslaughter from murder under Manual for Courts-Martial, United

States pt. IV, para. 44.c. (2005 ed.) (MCM).

     In response, the Government argued that premeditation is

the disputed factual element distinguishing the greater offense

from the lesser offense at issue.     The Government also

summarized evidence from the record in an effort to establish

the legal sufficiency of the finding of guilty as to attempted

voluntary manslaughter.

                              ANALYSIS

     A military judge has a sua sponte duty to instruct the

members on lesser included offenses reasonably raised by the

evidence.    See, e.g., United States v. Bean, 62 M.J. 264, 266

(C.A.A.F. 2005) (citing United States v. Griffin, 50 M.J. 480,

481 (C.A.A.F. 1999)); see also Rule for Courts-Martial (R.C.M.)

920(e)(3).   However, consistent with the standard set out in



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United States v. Miergrimado, No. 07-0436/MC

Sansone v. United States, 380 U.S. 343, 350 (1965), this court

has long recognized that a military judge can only instruct on a

lesser included offense where the greater offense requires the

members to find a disputed factual element which is not required

for conviction of the lesser violation.   See, e.g., Griffin, 50

M.J. at 482; United States v. Jackson, 12 M.J. 163, 167 (C.M.A.

1981); see also R.C.M. 920(e) Discussion.

     Cases that call on an appellate court to apply the Sansone

standard appear to arise more commonly in the context of an

accused’s contention that the judge committed error by failing

to include a lesser included offense instruction.   See, e.g.,

Griffin, 50 M.J. at 481-82; United States v. Finley, 477 F.3d

250, 255-258 (5th Cir. 2007); United States v. Gonzalez, 122

F.3d 1383, 1388 (11th Cir. 1997).   We find that the Sansone

standard is appropriate in the context presented in this case,

where a lesser included offense instruction desired by the

Government was submitted to the members over defense objection.

See United States v. Harary, 457 F.2d 471, 478 (2d Cir. 1972).1



1
  This court has previously applied the Sansone standard in at
least two cases involving an accused’s contention that the
lesser included offense instruction was given in error over the
accused’s objection. See United States v. Emmons, 31 M.J. 108,
110-11 (C.M.A. 1990); United States v. Waldron, 11 M.J. 36, 37
(C.M.A. 1981). In neither case, however, did a majority of the
three-judge court join the lead opinion. To the extent these
cases left open any question about whether Sansone applies in
these circumstances, we resolve that question here and make
clear that the standard applies.

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United States v. Miergrimado, No. 07-0436/MC

This is in keeping with the principle that an instruction on a

lesser included offense may appropriately be requested by either

the government or the defense.   Cf.   United States v. Wells, 52

M.J. 126, 129 (C.A.A.F. 1999) (commenting that this principle is

well established in federal courts) (citation and quotation

marks omitted); see also R.C.M. 920(c) (providing that “any

party may request that the military judge instruct the members

on the law as set forth in the request”).

     With this backdrop, we first consider whether there is a

disputed factual element that distinguishes the greater offense

of attempted premeditated murder from the lesser offense of

attempted voluntary manslaughter.    This issue presents a

question of law that we review de novo.   See United States v.

Schroder, 65 M.J. 49, 54 (C.A.A.F. 2007) (noting that whether

the members were properly instructed is a question of law that

this court reviews de novo).

     To sustain a conviction for attempted premeditated murder,

the Government must prove that “at the time of the killing, the

accused had a premeditated design to kill.”    MCM pt. IV, para.

43.b.(1)(d).   “Premeditated murder is murder committed after the

formation of a specific intent to kill someone and consideration

of the act intended.”   Id. at para 43.c.(2)(a).   The offense of

voluntary manslaughter, on the other hand, requires the “intent

to kill or inflict great bodily harm,” and does not require



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United States v. Miergrimado, No. 07-0436/MC

premeditation.   Id. at para. 44.b.(d).    We agree with the

Government that premeditation is a distinguishing factual

element.

     We also have no difficulty concluding that the premeditated

design to kill Eichenberger at the time of the shooting was a

disputed element at trial.   After the Government rested, defense

counsel unsuccessfully moved for a finding of not guilty on the

charged offense, arguing that the Government had not produced

any substantial evidence to establish the element of

premeditation.   The defense counsel further argued, “This case

might be an attempted voluntary manslaughter but it clearly

isn’t an attempted premeditated murder.”    Indeed, in his brief

before this court Miergrimado concedes that premeditation was

one of three contested elements in this case.

     Nor do we see merit to Miergrimado’s contention at oral

argument that as a matter of law, the evidence is legally

insufficient to support a finding that the crime was committed

“in the heat of sudden passion caused by adequate provocation.”

MCM pt. IV, para. 44.c.(1)(a).   In considering this contention,

we view the evidence in the light most favorable to the

prosecution and decide whether any rational trier of fact could

have found this essential element beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); United States

v. Brown, 65 M.J. 227, 229 (C.A.A.F. 2007).



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United States v. Miergrimado, No. 07-0436/MC

     The MCM provides, inter alia, that “heat of passion” may

result from fear or rage.   MCM pt. IV, para. 44.c.(1)(a).    The

provocation must be adequate to excite uncontrollable passion in

a reasonable person and the act of killing must be committed

under and because of that passion.   Id. at para. 44.c.(1)(b).

Although the MCM does not allow a “slight blow with the hand or

fist” to serve as adequate provocation, it does explain that in

certain circumstances the “unlawful infliction of great bodily

harm” may constitute adequate provocation.   Id.

     Testimony from both Miergrimado and Eichenberger

established that the two were insulting and swearing at each

other before and during the fight.   According to Miergrimado’s

testimony, towards the end of the fight, he felt a “hard hit.”

Miergrimado testified that he had never been hit that hard in

his life and that he was “terrified for [his] life.”    At that

point, he “automatically switched” into “sort of a preservation

mode” and he raised his weapon and pointed it at Eichenberger.

After Eichenberger pushed the rifle away and gave him “another

hard throw,” Miergrimado regained his balance, saw Eichenberger

coming at him, raised his weapon and shot.   Viewing all of the

evidence in the light most favorable to the Government, we

believe that a reasonable trier of fact could find beyond a

reasonable doubt that the crime was committed in the heat of

sudden passion caused by adequate provocation.



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United States v. Miergrimado, No. 07-0436/MC

     In addition to these specific legal arguments,

Miergrimado’s brief also complains that he was convicted of an

offense for which he was not charged.   The brief asserts that

defense counsel was unable to address the offense of attempted

voluntary manslaughter during opening statement or closing

argument or to discover and present evidence on it.   The brief

also contends that Miergrimado had no reason to contest the

offense of attempted voluntary manslaughter during his own

testimony.   We find these assertions unfounded.

     Article 79, UCMJ, 10 U.S.C. § 879 (2000), which provides

that an accused may be found guilty of an offense necessarily

included in the offense charged, puts a defense attorney on

notice that a lesser included offense instruction may be given.

See also United States v. Stolarz, 550 F.2d 488, 492 (9th Cir.

1977) (recognizing that Fed. R. Crim. P. 31(c), the federal

civilian equivalent of Article 79, UCMJ, gives notice of a

lesser included offense instruction).   Miergrimado has not

claimed that attempted voluntary manslaughter is not a lesser

included offense of attempted premeditated murder, nor do we

believe that such a claim would have merit in this case.   See

MCM pt. IV, para. 43.d.(3)(b) (listing voluntary manslaughter as

a lesser included offense of unpremeditated murder); MCM pt. IV,

para. 4.d. (explaining what offenses ordinarily constitute




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United States v. Miergrimado, No. 07-0436/MC

lesser included offenses for charges brought under Article 80,

UCMJ, 10 U.S.C. § 880 (2000)).2

     Furthermore, after the military judge made it clear that he

intended to instruct on lesser included offenses during the

Government’s case-in-chief and prior to Miergrimado’s testimony,

he gave defense counsel the option to continue the case for

several days.   The military judge was concerned that defense

counsel had mistakenly based his “all or nothing” trial strategy

on the belief that the military judge would not instruct on

lesser included offenses.

     The defense counsel accepted the additional time.    The

military judge told the members that it was the military judge

who needed the continuance and any frustration about it should

be focused toward him and not directed at either party.   In this

legal and factual context, we have no concerns that Miergrimado

was provided fair notice and adequate opportunity to defend on

the lesser included offense of attempted voluntary manslaughter.

                             DECISION

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed.




2
  During oral argument, however, appellate defense counsel
contended that this court should not recognize attempted
voluntary manslaughter as a legally cognizable offense. We do
not agree. See United States v. Jackson, 6 M.J. 261, 262-63
(C.M.A. 1979).

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