UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                          Before
                                COOK, KERN, and MARTIN
                                 Appellate Military Judges

                            UNITED STATES, Appellee
                                         v.
                           Sergeant JAMES T. MURPHY
                           United States Army, Appellant

                                     ARMY 19872873

                           3d Armored Division (trial)
          Combined Arms Center and Fort Leavenworth (DuBay Hearing)
                       C.C. Jacobsen, Military Judge (trial)
              Mark P. Sposato, Military Judge (DuBay Hearing I & II)
              Stephen R. Henley, Military Judge (DuBay Hearing III)
      Lieutenant Colonel Malcolm H. Squires, Jr., Staff Judge Advocate (trial)
       Colonel Lawrence E. Rouse, Staff Judge Advocate (DuBay Hearing I)
      Colonel Michael W. Hoadley, Staff Judge Advocate (DuBay Hearing II)
         Colonel Samuel J. Rob, Staff Judge Advocate (DuBay Hearing III)


For Appellant: Colonel Mark Tellitocci, JA; Captain Tiffany K. Dewell, JA (on
brief).

For Appellee: Major Adam S. Kazin, JA (on brief).


                                    14 November 2012

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                         SUMMARY DISPOSITION ON REMAND
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Per Curiam:

       A general court-martial consisting of officers tried appellant in November and
December of 1987. Contrary to his pleas, the court-martial found appellant guilty of
premeditated murder (three specifications), larceny, bigamy, and false swearing, in
violation of Articles 118, 121, and 134, Uniform Code of Military Justice, 10 U.S.C.
§§ 918, 921, 934. The court-martial sentenced appellant to be put to death, to forfeit
all pay and allowances, and to be reduced to the grade of E-1. The convening
authority approved the findings and sentence. The case subsequently passed through
numerous stages of post-conviction proceedings. In 1998, our superior court
returned the record in this case to The Judge Advocate General of the Army for
MURPHY – ARMY 19872873

remand to this court. See United States v. Murphy, 50 M.J. 4 (C.A.A.F. 1998).
Thereafter, consistent with a detailed pre-sentencing agreement between appellant
and the convening authority, a military judge presiding as a general court-martial
conducted a sentencing hearing and sentenced appellant to be reduced to the grade of
E-1, to forfeit all pay and allowances, to be confined for the length of his natural
life, and to be dishonorably discharged. On 28 July 2011, we issued a decision in
this case, affirming the sentence. United States v. Murphy, ARMY 19872873 (Army
Ct. Crim. App. 28 July 2011).

       On 10 July 2012, our superior court reversed our decision as to Charge II and
its Specification, bigamy, in violation of Article 134, UCMJ, Additional Charge II
and its Specification, false swearing, in violation of Article 134, UCMJ, and as to
the sentence; affirmed our decision as to the remaining specifications and charges;
and returned the record of trial to The Judge Advocate General of the Army for
remand to this court for further consideration in light of United States v. Humphries,
71 M.J. 209 (C.A.A.F. 2012). United States v. Murphy, 71 M.J. 347 (C.A.A.F. 2012).
Consequently, appellant’s case is again before this court for review under Article 66,
UCMJ.

                                    DISCUSSION

       At the time of the charged offenses, the elements of a crime under clause 1 or
2 of Article 134, UCMJ were (1) that the accused did or failed to do certain acts; and
(2) that, under the circumstances the accused’s conduct 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. See Manual for Courts-Martial, United States (1984 ed.), pt. IV, ¶
60.b.

       “The Government must allege every element expressly or by necessary
implication, including the terminal element.” United States v. Fosler, 70 M.J. 225,
232 (C.A.A.F. 2011). Pursuant to Humphries, even if this specification does not
allege the terminal elements by necessary implication, the question remains whether
the defect resulted in material prejudice to appellant’s substantial right to notice.
This question is answered by a close review of the record to determine if “notice of
the missing element is somewhere extant in the trial record, or whether the element
is ‘essentially uncontroverted.’” Humphries, 71 M.J. at 215-16 (citing United States
v. Cotton, 535 U.S. 625, 633 (2002)).

       In view of Humphries, we are compelled to disapprove the finding of guilt as
to the Article 134, UCMJ, offenses previously affirmed. The specifications do not
contain allegations of terminal elements under Article 134, UCMJ, and there is
nothing in the record to satisfactorily establish notice of the need to defend against a
terminal element as required under Humphries. Therefore, we now reverse




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MURPHY – ARMY 19872873

appellant’s conviction for bigamy and false swearing and dismiss the defective
specifications which failed to state offenses in light of Fosler.

                                      CONCLUSION

       On consideration of the entire record, the findings of guilty of Charge II and
its Specification and Additional Charge II and its Specification are set aside and
dismissed. Reassessing the sentence on the basis of the error noted, the entire
record, and in accordance with the principles of United States v. Sales, 22 M.J. 305
(C.M.A. 1986), and United States v. Moffeit, 63 M.J. 40 (C.A.A.F. 2006), to include
the factors identified by Judge Baker in his concurring opinion in Moffeit, the court
affirms the sentence as approved by the convening authority.


                                       FOR THE
                                       FOR  THECOURT:
                                                COURT:



                                       JOANNE P. TETREAULT ELDRIDGE
                                       Deputy
                                       JOANNE Clerk P.
                                                    of Court
                                                       TETREAUL
                                       Deputy Clerk of Court




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