U.S. v. Davis, 73 M.J. 268

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. military judges are required to instruct members on the elements of each offense and explain available defenses; however, military judges also have broad discretion in how to craft such instructions; a matter is in issue when some evidence, without regard to its source or credibility, has been admitted upon which the members might rely if they choose

Military Justice Personnel: Military Judge: Instructions

1. military judges are required to instruct members on the elements of each offense and explain available defenses; however, military judges also have broad discretion in how to craft such instructions; a matter is in issue when some evidence, without regard to its source or credibility, has been admitted upon which the members might rely if they choose
2. in this case, the military judge erred by not sua sponte providing instructions for both theories of defense of property where appellant’s testimony about the underlying events sufficiently put both theories of defense of property at issue; appellant’s testimony that he was worried about what would happen to his property if he got knocked out by an alleged trespasser was some evidence that members could have relied upon to find that appellant believed his property was in immediate danger; similarly, his testimony that he wanted that alleged trespasser to leave his property was some evidence that the members could have relied upon to find that appellant sought to use force to remove a trespasser from his property

Core Criminal Law Subjects: Defenses: Affirmative Defenses

1. RCM 916(a) suggests that the terms “special defense” and “affirmative defense” are interchangeable; however, it is more accurate to refer to defense of property as a “special defense,” and that the prosecution continuously bears the burden of proving beyond a reasonable doubt that the defense did not exist

Core Criminal Law Subjects: Defenses: Defense of Property

1. RCM 916(a) suggests that the terms “special defense” and “affirmative defense” are interchangeable; however, it is more accurate to refer to defense of property as a “special defense,” and that the prosecution continuously bears the burden of proving beyond a reasonable doubt that the defense did not exist
2. under the defense of property theory in the context of an imminent threat to the property, 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
3. under the defense of property theory in the context of preventing a trespass or ejecting a trespasser from the property, 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
4. although RCM 916 does not expressly list defense of property as a special defense, defense of property has long been recognized as an available defense in the military justice system; furthermore, RCM 916(a) states that defenses as used in the rule include any special defense which, although not denying that the accused committed the objective acts constituting the offense charged, denies, wholly or partially, criminal responsibility for those acts; defense of property is such a defense; additionally, the Military Judges’ Benchbook provides that a military judge must instruct, sua sponte, on defense of property when it has been raised by some evidence
5. in this case, the military judge erred by not sua sponte providing instructions for both theories of defense of property where appellant’s testimony about the underlying events sufficiently put both theories of defense of property at issue; appellant’s testimony that he was worried about what would happen to his property if he got knocked out by an alleged trespasser was some evidence that members could have relied upon to find that appellant believed his property was in immediate danger; similarly, his testimony that he wanted that alleged trespasser to leave his property was some evidence that the members could have relied upon to find that appellant sought to use force to remove a trespasser from his property

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Trial Burdens, Standards › Affirmative defenses

1. RCM 916(a) suggests that the terms “special defense” and “affirmative defense” are interchangeable; however, it is more accurate to refer to defense of property as a “special defense,” and that the prosecution continuously bears the burden of proving beyond a reasonable doubt that the defense did not exist

Trial Stages: Appeals: Harmless / Prejudicial Error

1. the military judge’s error in not sua sponte providing instructions for both theories of defense of property was harmless beyond a reasonable doubt where a rational panel could not have found appellant’s actions reasonable in the context of responding to an immediate danger to his property or in the context of removing a trespasser from his property; first, even if a rational panel believed appellant’s version of events, there is no basis to conclude that a rational panel could have found appellant’s belief that his property was in immediate danger to be reasonable where there was no evidence that the alleged trespasser damaged the property, threatened the property, or intended to damage the property; furthermore, there is no basis to conclude that a rational panel could have found that the threat of force employed by appellant was reasonable; even if the panel fully believed appellant’s version of events, at most, the alleged trespasser walked briskly toward the front door and took an ineffectual swing at appellant after appellant had pushed him twice; therefore, appellant’s brandishing of a firearm was a disproportionate and unreasonable response under the circumstances; second, while a rational panel could have found that appellant rightfully asked the alleged trespasser to leave, there is no basis to conclude that a rational panel could have found appellant gave that person a reasonable amount of time to leave before he brandished the firearm; according to appellant’s own version of events, appellant marched straight into his house without confirming that the alleged trespasser had heard his command to leave, confronted the alleged trespasser as soon as he emerged from the house, and pointed a firearm at the alleged trespasser contemporaneously with his renewed demand that the alleged trespasser leave; nor could a rational panel have concluded that appellant threatened an amount of force reasonably necessary under the circumstances to remove the alleged trespasser from his property; even under appellant’s version of events, appellant was the initial aggressor in the confrontation with the alleged trespasser, and pointing a firearm at him was an unreasonable response under the circumstances; finally, the members apparently rejected appellant’s self-defense argument even though the military judge appropriately instructed the members on appellant’s right to self-defense based on the same circumstances appellant asserts warrant a defense of property instruction

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

1. an appellate court reviews the adequacy of a military judge’s instruction de novo; where an instructional error raises constitutional implications, the error is tested for prejudice using a harmless beyond a reasonable doubt standard; in assessing prejudice under this standard, the government must prove beyond a reasonable doubt that the error did not contribute to the accused’s conviction or sentence; in applying the harmless beyond a reasonable doubt standard, an appellate court asks whether a rational panel could have found appellant not guilty if it had been instructed properly