U.S. V. Davis, 53 M.J. 202

Core Criminal Law Subjects: Defenses: Affirmative Defenses

1. military judge must instruct on affirmative defenses which are reasonably raised; an affirmative defense is reasonably raised when the record contains some evidence to which the court members may attach credit if they so desire; the defense theory at trial is not dispositive in determining what affirmative defenses have been reasonably raised; and any doubt whether an instruction should be given should be resolved in favor of the accused

Core Criminal Law Subjects: Defenses: Accident

1. for the defense of accident to be reasonably raised in connection with driving a car, the evidence must show that the driver was driving carefully, lawfully, and without neglect
2. an instruction on the defense of accident was not required where appellant, who claimed that his child was fatally injured because she was not properly secured in her car seat when appellant swerved to avoid a traffic accident, admitted that he was negligent by failing to properly secure the child in the car seat

Trial Stages: Merits: Instructions › Generally

1. RCM 902(f)’s waiver rule applies only to the instructions listed in RCM 920(e)(7), but does not apply to required instructions such as those on reasonable doubt, elements of the offense, and affirmative defenses

Trial Stages: Merits: Instructions › Lesser-included offenses

1. military judge must instruct on lesser-included offenses and defenses which are reasonably raised and are not affirmatively waived by the defense
2. failure to instruct on lesser-included offense of negligent homicide was error because the members were never instructed to consider two possible causes for infant’s death, and thus the members did not address whether appellant’s negligence in any form – not attaching the vehicle seatbelt to an infant car seat, not properly fastening the straps to car seat, or negligently shaking the infant – was the cause of the child’s injuries and death

Trial Stages: Merits: Instructions › Affirmative defenses

1. military judge must instruct on affirmative defenses which are reasonably raised; an affirmative defense is reasonably raised when the record contains some evidence to which the court members may attach credit if they so desire; the defense theory at trial is not dispositive in determining what affirmative defenses have been reasonably raised; and any doubt whether an instruction should be given should be resolved in favor of the accused

Trial Stages: Appeals: Remedies › Generally

1. failure to instruct on lesser-included offense of negligent homicide was error that required setting aside appellant’s conviction of involuntary manslaughter because the members were never instructed to consider two possible causes for infant’s death, and thus the members did not address whether appellant’s negligence in any form – not attaching the vehicle seatbelt to an infant car seat, not properly fastening the straps to car seat, or negligently shaking the infant – was the cause of the child’s injuries and death

Trial Stages: Appeals: Waiver

1. RCM 902(f)’s waiver rule applies only to the instructions listed in RCM 920(e)(7), but does not apply to required instructions such as those on reasonable doubt, elements of the offense, and affirmative defenses

Miscellaneous Matters: Multiplicity and Lesser Included Offenses: Lesser Included Offenses

1. negligent homicide is a lesser-included offense of unpremeditated murder and involuntary manslaughter; negligence is merely a legally less serious element of the intentional killing involved in murder and the battery involved in involuntary manslaughter