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).