CAAF will hear oral argument in the Army case of United States v. Davis, No. 14-0029/AR (CAAFlog case page), on Tuesday, March 4, 2014. The case involves a conviction for simple assault with an unloaded firearm after Appellant pointed the weapon at a houseguest who didn’t leave his property when asked. The Army CCA concluded that the military judge erred in failing to sua sponte instruct the court-martial members on the affirmative defense of defense of property, but that the error was harmless beyond a reasonable doubt. CAAF granted review with the following issue:
Whether the Army Court of Criminal Appeals erred in finding that the military judge’s failure to instruct on the affirmative defense of defense of property was harmless beyond a reasonable doubt.
There are both disputed and undisputed facts of the case. The undisputed facts are that after a night involving drinking, dancing, and playing pool, Appellant pointed an unloaded .40 caliber semiautomatic pistol at a houseguest named Specialist S.S. The Specialist was fighting with his grilfriend, and Appellant became agitated and demanded that S.S. and his girlfriend leave Appellant’s property. Appellant then retrieved the pistol from inside his house and pointed it at S.S. while standing on his own front porch. The disputed facts involve how that demand was communicated and exactly what happened before the weapon was used, with Appellant testifying that S.S. was the initial aggressor by lunging at him, and S.S. testifying that Appellant was the initial aggressor by throwing a punch.
From this encounter Appellant was charged with assault with a dangerous weapon. At trial the military judge instructed the panel on the affirmative defense of self-defense based on the possibility that Appellant was defending himself against an attack by S.S. The Defense did not object to this instruction, nor did they request an additional instruction on the affirmative defense of defense of property based on the possibility that Appellant was defending his property from a trespassing S.S. But in closing argument, the defense counsel functionally argued that Appellant acted in defense of his property:
trial defense counsel stated during closing argument that “[w]hat [appellant] did was in response to what he reasonably believed to be a threat was pull out an unloaded weapon and aim it at a person who had attempted to come into his house twice, after being told ‘you need to leave.'” Trial defense counsel also argued that appellant was merely exercising his right to defend his home, [when he] pushed [SPC S.S.] out of the house. . . . He then listed the different “boundaries” that appellant put on SPC S.S. such as “get off my property, get out of my house, I need you to go” that allegedly made SPC S.S. so angry that he tried to punch appellant.
Gov’t Br. at 33-34 (omission in original). Appellant was convicted of the lesser included offense of simple assault with an unloaded firearm in violation of Article 128. Appellant also pleaded guilty to two specifications of failure to go to his appointed place of duty, and he was sentenced to a total of confinement for 90 days, reduction to E-4, and a bad-conduct discharge.
The Army CCA determined that it was error for the military judge to fail to give the instruction for defense of property despite no request to do so from the Defense. This is unsurprising, as “counsel do not frame issues for the jury; that is the duty of the military judge based upon his evaluation of the testimony related by the witnesses during the trial.” United States v. Graves, 1 M.J. 50, 53 (C.M.A. 1975). In United States v. Taylor, 26 M.J. 127 (C.M.A. 1988), the Court of Military Appeals considered this duty in the context of the then-recently established rule in R.C.M. 920(f) that, “Failure to object to an instruction or to omission of an instruction before the members close to deliberate constitutes waiver of the objection in the absence of plain error.” Taylor, 26 M.J. at 128. The CMA rejected application of this waiver rule in the case of “required instructions”:
It appears to us that R.C.M. 920 (f) does not focus on “[r]equired instructions” such as those on reasonable doubt, elements of the offenses, and affirmative defenses but instead focuses on those instructions which are mentioned in R.C.M. 920 (e)(7).
Id., at 128-129 (emphasis added). Six years later the court re-affirmed this principle, stating that:
A right to an instruction on an affirmative defense which is reasonably raised by the evidence “is not waived by a defense failure to request such an instruction.”
United States v. Barnes, 39 M.J. 230, 233 (C.M.A. 1994) (quoting Taylor, 26 M.J. at 129).
Appellant’s brief argues that “because the members were not instructed as to SGT Davis’ right to defend his property, they did not have guideposts for an informed deliberation. As such, a theory of defense was eviscerated. Since this error could have contributed to SGT Davis’ conviction, it was not harmless beyond a reasonable doubt.” App. Br. at 11 (citation omitted). The Government’s answer provides important context for that argument:
despite the fact that appellant raised at least some evidence that he was defending his property by pointing a handgun at SPC S.S.’s face, such a defense of property theory is substantially weaker than appellant’s argument for self-defense.
Gov’t Br. at 22. The Government’s position is that defense of property is subordinate to self-defense under the facts of this case, and so “the panel rejected appellant’s theory of self-defense and would have similarly rejected an even narrower, weaker defense of property theory.” Gov’t Br. at 16.
But where the Government sees a lesser defense, Appellant sees a lesser burden:
While the panel was instructed that SGT Davis may have been a provocateur, they were never given the option to find that he was merely a person ejecting a trespasser that refused to leave.
App. Br. at 12. And his brief highlights potentially useful facts, such as that Specialist S.S. was larger than Appellant, had “anger management” issues, and had a “character for untruthfulness.” App. Br. at 14. The Government’s response to this characterizes these and other facts as “Appellant’s fanciful concerns…,” and argues that “appellant gave an unbelievable explanation so far as how he became armed prior to the confrontation.” Gov’t Br. at 25. The Government’s argument leads to a conclusion about what the panel would have done:
even if a defense of property instruction was given, the panel would have found that appellant’s subjective intent from the outset was to intimidate and scare SPC S.S. with the weapon, not that he “actually believed” the handgun “was required to protect [his] property.”
Gov’t Br. 26. It’s hard to see how CAAF can reach this conclusion without a crystal ball.
If the court adopts the Government’s lesser-defense argument, then it may easily affirm the findings. But the further the court digs into the facts of the case, the more likely it will be that the court will get suspicious that the members – who acquitted Appellant of the greater offense of assault with a dangerous weapon – might also have acquitted him of the lesser offense of simple assault had the judge provided them with legal instruction to complement the defense counsel’s argument “that appellant was merely exercising his right to defend his home…”