CAAF decided the Army case of United States v. Davis, No. 14-0029/AR, 73 M.J. 268 (CAAFlog case page) (link to slip op.), on Friday, May 23, 2014. The court affirms the findings and the decision of the Army CCA that found that that the military judge’s failure to instruct on the defense of defense of property was harmless beyond a reasonable doubt.
Judge Ohlson writes for a unanimous court.
Appellant was charged with assault with a dangerous weapon for pointing 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.
Appellant was tried by a general court-martial composed of officer members. 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 the Defense 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. The members then convicted Appellant 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 the members sentenced him to a total of confinement for 90 days, reduction to E-4, and a bad-conduct discharge.
The Army CCA reviewed the case and concluded that the military judge erred in failing to sua sponte instruct the members on the affirmative defense of defense of property, but that the error was harmless beyond a reasonable doubt. CAAF then granted review of 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.
Judge Ohlson begins by noting “that there are two distinct theories of defense of property implicated in this case — defense of property in the context of an imminent threat to the property, and defense of property in the context of preventing a trespass or ejecting a trespasser from the property.” Slip op. at 8-9.
Under the former theory, the accused must have had a reasonable belief that his real or personal property was in immediate danger of trespass or theft; and the accused must have actually believed that the force used was necessary to prevent a trespass or theft of his real or personal property. The accused’s subjective belief that the force was necessary must also be reasonable. In determining the reasonableness of the accused’s subjective belief as to the amount of force necessary, a panel must look at the situation through the eyes of the accused and consider the circumstances known to the accused at the time.
Under the latter theory, the accused may only use as much force as is reasonably necessary to remove an individual from his property after requesting that the individual leave and then allowing a reasonable amount of time for the individual to leave. A person or invitee who refuses to leave after being rightfully asked to do so becomes a trespasser and may not resist if only reasonable force is employed in ejecting him. However, a property owner may not “purposely provoke a disturbance” on his property and then use his ownership of the property as an excuse for an unnecessary assault in ejecting another person. If more force is used than is reasonably necessary to remove a trespasser, this force constitutes assault and battery.
Slip op. at 9-11 (citations omitted).
Judge Ohlson then explains that “military judges are required to instruct members on the elements of each offense and explain available defenses.” Slip op. at 11. Further, “a matter is in issue when some evidence, without regard to its source or credibility, has been admitted upon which members might rely if they choose.” Slip op. at 12 (marks omitted). Appellant testified in his own defense and this testimony “sufficiently put both theories of defense of property at issue.” Slip op. at 12 (marks omitted). Accordingly, the CCA was correct to find that the judge’s failure to sua sponte give a defense of property instruction was error.
Finally, Judge Ohlson turns to the question of prejudice:
We find that a rational panel could not have found Appellant’s actions reasonable under either theory of defense of property.
First, even if a rational panel believed Appellant’s version of events, there is no basis to conclude that a rational panel could have found Appellant’s belief that his property was in immediate danger to be reasonable. There was no evidence that SPC S.S. damaged the property, threatened the property, or intended to damage the property. . . . Therefore, Appellant’s brandishing of a firearm was a disproportionate and unreasonable response under the circumstances.
Second, while a rational panel could have found that Appellant rightfully asked SPC S.S. to leave, there is no basis to conclude that a rational panel could have found Appellant gave the victim a reasonable amount of time to leave before he brandished the firearm. . . . [E]ven under Appellant’s version of events, Appellant was the initial aggressor in the confrontation with SPC S.S. and pointing a firearm at SPC S.S. was an unreasonable response under the circumstances.
Slip op. at 13-14. He also adds a paragraph that appears to be a nod to an argument advanced by the Government: that the defense of defense of property was subordinate to the defense of self-defense under the facts of this case. Judge Ohlson doesn’t endorse this theory, but it does appear to affect the decision:
Finally, we note that the members apparently rejected Appellant’s self-defense argument even though the military judge appropriately instructed the members on Appellant’s right to self-defense based on the same circumstances Appellant asserts warrant a defense of property instruction.
Slip op. at 14. Judge Ohlson concludes:
In sum, a rational panel could not have found Appellant’s actions reasonable in the context of responding to an immediate danger to his property, or in the context of removing a trespasser from his property. Therefore, the military judge’s error did not contribute to Appellant’s conviction or sentence.
Slip op. at 14. This case doesn’t make new law, but it does provide a solid primer on the defense of defense of property. That should help to avoid future issues involving the failure to give a defense of property instruction when the facts of the case require one.