U.S. v. Behenna, 71 M.J. 228

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. in regard to form, a military judge has wide discretion in choosing the instructions to give but has a duty to provide an accurate, complete, and intelligible statement of the law
2. a military judge is only required to instruct on a defense when there is some evidence in the record, without regard to credibility, that the members could rely upon if they chose; in other words, a military judge must instruct on a defense when, viewing the evidence in the light most favorable to the defense, a rational member could have found in the favor of the accused in regard to that defense

Military Justice Personnel: Military Judge: Instructions

1. in regard to form, a military judge has wide discretion in choosing the instructions to give but has a duty to provide an accurate, complete, and intelligible statement of the law
2. instruction on losing and regaining the right to act in self-defense was erroneous where (1) the military judge provided no guidance on how to evaluate an offer-type assault, which occurs, for instance, when an individual points a loaded pistol at another person without lawful justification or authorization, and (2) the military judge gave an inaccurate statement of the law when he linked the lawful use of force with the issue of escalation with the conjunction “and” (“However, if you have a reasonable doubt that the accused assaulted Ali Mansur, was provoked by Ali Mansur, or had some other legal justification or excuse, and you are not convinced beyond a reasonable doubt that Ali Mansur did not escalate the level of force, then you must conclude that the accused had the right to self-defense ....”); the statement of law was inaccurate because appellant would have had the right to self-defense if his original use of force had been lawful - it was provoked, justified, or otherwise excusable (i.e., appellant was not an initial aggressor) - or if Mansur had escalated the level of force
3. a military judge is only required to instruct on a defense when there is some evidence in the record, without regard to credibility, that the members could rely upon if they chose; in other words, a military judge must instruct on a defense when, viewing the evidence in the light most favorable to the defense, a rational member could have found in the favor of the accused in regard to that defense
4. where appellant lost the right to act in self-defense as a matter of law, any instruction on losing and regaining the right to self-defense was superfluous

Core Criminal Law Subjects: Defenses: Self-Defense

1. the standard for self-defense is set out in RCM 916(e)(1), which provides that if an individual apprehends on reasonable grounds that grievous bodily harm or death is about to be wrongfully inflicted to his or her person, then the individual may use such force as is appropriate for the circumstances, including deadly force
2. the right to act in self-defense is not absolute; initial aggressors and those involved in mutual combat lose the right to act in self-defense; however, an initial aggressor or a mutual combatant regains the right to act in self-defense if the other party escalates the degree of force, or if the initial aggressor or the mutual combatant withdraws in good faith and communicates that intent to withdraw
3. (instruction on losing and regaining the right to act in self-defense was erroneous where (1) the military judge provided no guidance on how to evaluate an offer-type assault, which occurs, for instance, when an individual points a loaded pistol at another person without lawful justification or authorization, and (2) the military judge gave an inaccurate statement of the law when he linked the lawful use of force with the issue of escalation with the conjunction “and” (“However, if you have a reasonable doubt that the accused assaulted Ali Mansur, was provoked by Ali Mansur, or had some other legal justification or excuse, and you are not convinced beyond a reasonable doubt that Ali Mansur did not escalate the level of force, then you must conclude that the accused had the right to self-defense ....”; the statement of law was inaccurate because appellant would have had the right to self-defense if his original use of force had been lawful - it was provoked, justified, or otherwise excusable (i.e., appellant was not an initial aggressor) - or if Mansur had escalated the level of force)
4. if appellant was the initial aggressor - i.e., the one that provoked or brought about the situation that resulted in the necessity to kill another, then he lost his right to self-defense, unless the deceased either escalated the level of force or appellant withdrew and communicated that withdrawal in good faith
5. appellant’s initial use of deadly force against a detainee, whom he had taken to remote location, stripped naked, and interrogated at gunpoint, was unauthorized and excessive; therefore, he had no right of self-defense, and he could not have later regained the right to act in self-defense because he did not withdraw; even if the detainee had thrown a piece of concrete at him, that would not have amounted to escalation in this situation where appellant had already introduced deadly force - that is, a naked and unarmed individual in the desert does not escalate the level of force when he throws a piece of concrete at an initial aggressor in full battle attire, armed with a loaded pistol, and lunges for the pistol - and this is especially so when the initial aggressor had every opportunity to withdraw from the confrontation and there was no evidence he either attempted or was unable to do so; even assuming that the detainee lunged for appellant’s pistol and appellant feared that the detainee would use the pistol if he was able to seize it, because appellant was the initial aggressor, and because there was no evidence to support a finding of escalation or withdrawal, a rational member could have come to no other conclusion than that appellant lost the right to act in self-defense and did not regain it

Trial Stages: Pretrial: Discovery

1. pursuant to Brady v. Maryland, 373 US 83 (1963), the government violates an accused’s right to due process if it withholds evidence that is favorable to the defense and material to the defendant’s guilt or punishment; evidence is favorable if it is exculpatory, substantive evidence or evidence capable of impeaching the government’s case; evidence is material when there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different; to be material, the evidence must have made the likelihood of a different result great enough to undermine confidence in the outcome of the trial
2. even if evidence from a nontestifying expert witness associated with the government’s case was favorable and not properly disclosed by the government, in violation of Brady v. Maryland, 373 US 83 (1963), the evidence was immaterial both as substantive and impeachment evidence, where the witness’s testimony, at most, would have made appellant’s version of events more likely (that is, that appellant shot a detainee as he stood and reached for appellant’s pistol; in turn, whether the detainee remained seated or stood when he was shot was only relevant to two issues: premeditation and self-defense), but it would have been similar to the opinion of other defense experts, his opinion could have been impeached by his failure to provide a reasonably certain or consistent opinion, the members rejected the government’s theory of a premeditated, execution-style killing in returning a verdict that appellant was guilty of unpremeditated murder, and the witness’s testimony could not have independently established the factual predicate for a self-defense theory; rather, it would have only bolstered appellant’s version of events; assuming the truth of appellant’s version of what transpired in the culvert, he had lost the right to act in self-defense as a matter of law

Trial Stages: Merits: Instructions › Generally

1. in regard to form, a military judge has wide discretion in choosing the instructions to give but has a duty to provide an accurate, complete, and intelligible statement of the law
2. instruction on losing and regaining the right to act in self-defense was erroneous where (1) the military judge provided no guidance on how to evaluate an offer-type assault, which occurs, for instance, when an individual points a loaded pistol at another person without lawful justification or authorization, and (2) the military judge gave an inaccurate statement of the law when he linked the lawful use of force with the issue of escalation with the conjunction “and” (“However, if you have a reasonable doubt that the accused assaulted Ali Mansur, was provoked by Ali Mansur, or had some other legal justification or excuse, and you are not convinced beyond a reasonable doubt that Ali Mansur did not escalate the level of force, then you must conclude that the accused had the right to self-defense ....”); the statement of law was inaccurate because appellant would have had the right to self-defense if his original use of force had been lawful - it was provoked, justified, or otherwise excusable (i.e., appellant was not an initial aggressor) - or if Mansur had escalated the level of force
3. a military judge is only required to instruct on a defense when there is some evidence in the record, without regard to credibility, that the members could rely upon if they chose; in other words, a military judge must instruct on a defense when, viewing the evidence in the light most favorable to the defense, a rational member could have found in the favor of the accused in regard to that defense
4. where appellant lost the right to act in self-defense as a matter of law, any instruction on losing and regaining the right to self-defense was superfluous

Trial Stages: Appeals: Harmless / Prejudicial Error

1. when instructional errors have constitutional implications, as instructions involving self-defense do, then the error is tested for prejudice under a harmless beyond a reasonable doubt standard; only when the reviewing authority is convinced beyond a reasonable doubt that the error did not contribute to appellant’s conviction or sentence is a constitutional error harmless
2. generally, a superfluous, exculpatory instruction that does not shift the burden of proof is harmless, even if the instruction is otherwise erroneous
3. once a Brady v. Maryland, 373 US 83 (1963), discovery violation is established, courts need not test for harmlessness; this makes sense; if there is a reasonable probability that the evidence would have changed the result at trial, then, by definition, the failure to disclose cannot be harmless; there is no need to conduct a redundant test
4. even if evidence from a nontestifying expert witness associated with the government’s case was favorable and not properly disclosed by the government, in violation of Brady v. Maryland, 373 US 83 (1963), the evidence was immaterial both as substantive and impeachment evidence, where the witness’s testimony, at most, would have made appellant’s version of events more likely (that is, that appellant shot a detainee as he stood and reached for appellant’s pistol; in turn, whether the detainee remained seated or stood when he was shot was only relevant to two issues: premeditation and self-defense), but it would have been similar to the opinion of other defense experts, his opinion could have been impeached by his failure to provide a reasonably certain or consistent opinion, the members rejected the government’s theory of a premeditated, execution-style killing in returning a verdict that appellant was guilty of unpremeditated murder, and the witness’s testimony could not have independently established the factual predicate for a self-defense theory; rather, it would have only bolstered appellant’s version of events; assuming the truth of appellant’s version of what transpired in the culvert, he had lost the right to act in self-defense as a matter of law

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

1. an allegation that the members were improperly instructed is an issue that an appellate court reviews de novo
2. in reviewing the propriety of an instruction, appellate courts must read each instruction in the context of the entire charge and determine whether the instruction completed its purpose
3. when instructional errors have constitutional implications, as instructions involving self-defense do, then the error is tested for prejudice under a harmless beyond a reasonable doubt standard; only when the reviewing authority is convinced beyond a reasonable doubt that the error did not contribute to appellant’s conviction or sentence is a constitutional error harmless
4. generally, a superfluous, exculpatory instruction that does not shift the burden of proof is harmless, even if the instruction is otherwise erroneous
5. once a Brady v. Maryland, 373 US 83 (1963), discovery violation is established, courts need not test for harmlessness; this makes sense; if there is a reasonable probability that the evidence would have changed the result at trial, then, by definition, the failure to disclose cannot be harmless; there is no need to conduct a redundant test