Today CAAF released its opinion in United States v. Stanley, No. 11-0143/AR, 71 M.J. 60 (C.A.A.F. Mar. 22, 2012) (CAAFlog case page) (link to slip op.). Stanley is one of the first two cases argued this term, and presented the following issues:
I. Whether the military judge’s instructions on self-defense were incorrect and incomplete, and if so, whether the lower court erred in concluding that this constituted harmless error.
II. Whether an Article 134 clause 1 or 2 Specification that fails to expressly allege either potential terminal element states an offense under the Supreme Court’s holdings in United States v. Resendiz-Ponce and Russell v. United States, and this Court’s recent opinions in Medina, Miller, and Jones.
The case involves an Army Sergeant who, along with other soldiers, engaged in a criminal enterprise to grow marijuana and manufacture methamphetamine. In 2004, Stanley killed two of his criminal associates at the production facility (a farmhouse), in part after an allegation that Stanley was sleeping with the wife of one of his associates. At the CCA, Stanley argued that the trial military judge erred by failing to properly instruct on his right to self-defense during mutual combat when the the force used against him escalated. The CCA avoided the issue, ruling that (assuming error) “we are convinced beyond a reasonable doubt that the error did not contribute to the appellant’s conviction or sentence.” United States v. Stanley, No. 20050703, Slip op. at 5 (A. Ct. Crim. App., September 29, 2010). CAAF’s review considered the same, and the court found that “the military judge did not err in excluding the principle of escalation of force in the self-defense instructions to the members as the principle was not ‘in issue.'” United States v. Stanley, No. 11-0143/AR, Slip op. at 3 (C.A.A.F., March 22, 2012)
Judge Erdmann wrote for the court, with the Chief Judge writing a separate opinion, in which Judge Stucky joined, concurring in part. The court’s opinion begins with a recitation of the legal rule for instructions:
Military judges have substantial discretionary power in deciding on the instructions to give. However, when an affirmative defense is raised by the evidence, an instruction is required. Whether a panel was properly instructed is a question of law reviewed de novo.
An affirmative defense is raised by the evidence when “some evidence, without regard to its source or credibility, has been admitted upon which members might rely if they chose.”
Stanley, Slip op. at 6 (citations omitted). But then Judge Erdmann does something that I’m going to call less-than-fair:
As we explained in United States v. Schumacher:
[T]he military judge must answer the legal question of whether there is some evidence upon which members could reasonably rely to find that each element of the defense has been established. This test is similar to that for legal sufficiency. Cf. Jackson v. Virginia, 443 U.S. 307, 319 (1979); see United States v. Black, 3 C.M.A. 57, 60, 11 C.M.R. 57, 60 (1953).
70 M.J. 387, 389-90 (C.A.A.F. 2011).
Stanley is one of the first two cases argued this term only because Schumacher was actually the first (and was argued just before Stanley (see TWIMJ or the CAAF calendar)). Respectfully, your honor, it’s hardly fair to cite to a decision in the first case of the day to justify a conclusion in the second. Especially when your supporting citations are from 1979 and 1953.
But the opinion continues, chock-full of foot-stompers. “We initially note that the defense did not object to the military judge’s instructions at trial in this case. However, waiver does not apply to “’required instructions’ such as . . . affirmative defenses[.]'” Slip op. at 7. However, in a fact-intensive analysis, focusing on Stanley’s escalation prior to the escalation of the deceased, the court finds that while self-defense was in issue, escalation of force was not, and affirms the CCA on this point.
However, things then, subtly, get even more interesting. Stanly was convicted of adultery in violation of Article 134, in accordance with his pleas. Slip op. at 2. (emphasis added). However, rather than affirming in light of Ballan, CAAF remanded the case for further consideration in light of Fosler…
In his concurring opinion, which is more than twice the length of the majority’s opinion and includes extensive discussion of the facts and the CCA’s action, the Chief Judge sets out “distinct reasons” for his concurrence. He determines that Stanley was never a mutual combatant under the facts of the case, and was therefore not entitled to an escalation instruction.