Today CAAF issued the first opinion of the term, in United States v. Schumacher, No. 11-0257, __ M.J. __ (CAAF, 2011). Judge Stucky wrote for a unanimous court, finding that the trial military judge did not err in failing to give a self-defense instruction because the evidence did not reasonably raise the defense. However, the court remanded the case to the N-MCCA for analysis under United States v. Fosler, 70 M.J. 225 (CAAF, 2011).
The key reasoning follows:
Appellant’s assertion that a self-defense instruction was necessary because he believed that the individuals in his home were unknown intruders is untenable. Appellant was present when KD requested that her neighbor call the military police. The military police arrived four minutes later. During the interim period, KD was trying to persuade her husband to put away his guns because “I told him that, you know, well, obviously we both know the MPs are coming.” When the MPs arrived, they were dressed in full military police attire including badges. While in the process of waving the pistol around, Appellant stated “I’ve killed people before. It’s nothing for me to kill a few fucking MPs.”
Although not dispositive, trial defense counsel did not argue that a self-defense instruction should be given on an intruder theory at trial. See United States v. Hibbard, 58 M.J. 71, 76 (C.A.A.F. 2003) (“Although the defense presentation at trial is not dispositive in determining what affirmative defenses have been reasonably raised by the evidence, we may take into account the absence of [such an] approach from the defense case when considering [whether the evidence reasonably raised an affirmative defense].”). In fact, trial defense counsel explicitly denied that the evidence could even make out such a theory. The military judge stated, “I don’t think there’s any evidence at all that by the time he brandished that weapon towards the MPs he didn’t realize they were MPs. Tell me if you disagree.” The defense responded, “I don’t disagree.”
Given the sequence of events, the physical appearance of the MPs, Appellant’s statement indicating knowledge of who the people were, and defense counsel’s concessions at trial, the military judge determined there was no evidence that Appellant reasonably perceived the infliction of wrongful bodily harm. In doing so, we hold that he did not err.