U.S. v. Dearing, 63 M.J. 478

First Principles: Constitutional Matters: Due Process

1. servicemembers have a due process right to timely review and appeal of court-martial convictions

Core Criminal Law Subjects: Defenses: Self-Defense

1. an initial aggressor is still entitled to use deadly force in his own defense, just as he would be if he withdrew completely from combat and was then attacked by his opponent, in instances where the adversary escalates the level of conflict

Trial Stages: Merits: Instructions › Generally

1. instructions must be sufficient to provide necessary guideposts for an informed deliberation on the guilt or innocence of the accused

Trial Stages: Merits: Instructions › Affirmative defenses

1. instructions on findings shall include a description of any special defense under RCM 916 in issue, and as self-defense is a special defense identified in RCM 916, if this defense was at issue in the case, the military judge is obligated to give a correct instruction on self-defense
2. a military judge’s instruction on self-defense in an unpremeditated murder trial was deficient in not instructing the panel on the concept of escalation of the conflict, where the prosecution presented evidence that the accused was the initial aggressor in the lethal altercation, but the defense presented evidence of mutual combat and an escalation of violence directed at the accused; in addition, the military judge compounded the error by erroneously instructing the panel that the accused, if an aggressor or a person voluntarily engaged in mutual fighting, was not entitled to self-defense unless he previously withdrew in good faith, an instruction that severely limited the military members’ ability to consider fairly the accused’s self-defense theory

Trial Stages: Appeals: Harmless / Prejudicial Error

1. if instructional error is found, because there are constitutional dimensions at play, appellant’s claims must be tested for prejudice under the standard of harmless beyond a reasonable doubt; the inquiry for determining whether constitutional error is harmless beyond a reasonable doubt is whether, beyond a reasonable doubt, the error did not contribute to appellant’s conviction or sentence
2. once it is determined that a specific instruction is required but not given, the test for determining whether this constitutional error was harmless is whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained
3. the military judge’s error in failing to instruct the members on the concept of escalation of the conflict as it related to self-defense was not harmless beyond a reasonable doubt, where the defense theory of escalation of the conflict was a vital point in the case, and where the instructional error eviscerated the accused’s self-defense theory rooted in the concept of escalation of the conflict; because of the error, the accused was denied the opportunity to argue that he had a right to exercise self-defense due to the escalating violence being perpetrated against him; moreover, without a correct self-defense instruction, the members did not have guideposts for an informed deliberation
4. there was no danger of prejudicial spillover from appellant’s murder and aggravated assault offenses to the obstruction of justice offense; the focus of concern on spillover is whether overwhelming proof on an offense that is set aside will “spill over” and prejudice a legitimate defense to another; in this case, there was no such danger in light of appellant’s testimony on the merits that was tantamount to a judicial confession to obstruction of justice; appellant effectively admitted that he was attempting to have his friend present a false alibi and thereby thwart the police investigation into the stabbing incident; because of appellant’s testimony, his conviction of the offense of obstruction of justice was independent of and unaffected by either the murder or aggravated assault offenses, and there was no prejudicial spillover that tainted the guilty finding to obstruction of justice
5. the due process violation for denying speedy appellate review in this case was not harmless beyond a reasonable doubt where there were two forms of actual prejudice; first, appellant endured oppressive incarceration because he was denied a timely review of his meritorious claim of legal error for over six years while he was incarcerated; and second, the lack of institutional vigilance resulted in appellate delay that effectively denied appellant his statutory right to the free and timely professional assistance of detailed military appellate defense counsel

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. the touchstone against which an appellate court measures the validity of the military judge’s refusal to give an instruction on self-defense is whether there is in the record some evidence from which a reasonable inference can be drawn that the affirmative defense was in issue
2. an appellate court reviews the adequacy of the military judge’s instruction de novo
3. the legal test for determining whether appellant’s due process right was violated by excessive post-trial delay considers four factors: (1) length of the delay; (2) reasons for the delay; (3) appellant’s assertion of his right to a timely appeal; and (4) prejudice to appellant; once a due process analysis is triggered by a facially unreasonable delay, the four factors are balanced, with no single factor being required to find that post-trial delay constitutes a due process violation
4. the standard of review for a claim of denial of a due process right arising from denial of speedy post-trial review and appeal is de novo

Miscellaneous Matters: Speedy Trial: Post-Trial

1. servicemembers have a due process right to timely review and appeal of courts-martial convictions
2. appellant was denied his due process right to speedy review and appeal where the unexplained and unreasonably lengthy delay and specific prejudice arising from the appellate delay effectively denied appellant his right to the free professional assistance of detailed military appellate defense counsel