U.S. v. Killion, 75 M.J. 209

Military Justice Personnel: Military Judge: Instructions

1. instructions given by a military judge must be sufficient to provide necessary guideposts for an informed deliberation on the guilt or innocence of the accused
2. in this case, it was error for the military judge to instruct the members on the charged Article 117, UCMJ, offense to determine whether the words described in the specification would have caused an average person to react by immediately committing a violent or turbulent act in retaliation; a violation of Article 117, UCMJ, depends not on the likely reaction of the hypothetical average person but rather on the likely reaction of an objectively reasonable person in the position of the persons to whom the words are addressed
3. while military judges have some discretion in tailoring panel instructions, a military judge has a duty to provide appropriate legal guidelines to assist the jury in its deliberations; failure to provide correct and complete instructions to the panel before deliberations begin may amount to a denial of due process; RCM 920(e) expressly requires that instruction on findings include, inter alia, a description of the elements, and such other explanations, descriptions, or directions as may be necessary and which are properly requested by a party or which the military judge determines, sua sponte, should be given
4. in this case, the military judge’s instruction on the provoking words offense was deficient because while it did, in fact, direct the panel to consider the facts and circumstances of this case, it effectively negated the focus on the actual circumstances of those who were the targets of appellant’s speech by misdirecting the members’ focus to the reaction of a hypothetical average person; based on the evidence presented at trial, the question for the members was not what an average person might do under the circumstances but whether a reasonable medical care provider with the training described was likely to retaliate against a fully restrained, obviously intoxicated patient

Core Criminal Law Subjects: Crimes: Article 117 - Provoking Speeches or Gestures Pre-2019 offenses

1. words are considered provoking and a violation of Article 117, UCMJ, when, inter alia, a reasonable person would expect them to induce a breach of the peace under the circumstances; the provocative nature of speech for purposes of Article 117, UCMJ, thus depends in part upon the context in which they are spoken and the audience to whom they are addressed
2. in this case, it was error for the military judge to instruct the members on the charged Article 117, UCMJ, offense to determine whether the words described in the specification would have caused an average person to react by immediately committing a violent or turbulent act in retaliation; a violation of Article 117, UCMJ, depends not on the likely reaction of the hypothetical average person but rather on the likely reaction of an objectively reasonable person in the position of the persons to whom the words are addressed
3. a provoking words offense under Article 117, UCMJ, consists of three elements: (1) the accused wrongfully used words or gestures toward a certain person; (2) the words or gestures used were provoking or reproachful; and (3) the person toward whom the words or gestures were used was a person subject to the UCMJ; words are considered provoking when a reasonable person would expect them to induce a breach of the peace under the circumstances; the provocative nature of speech for the purposes of Article 117, UCMJ, depends upon the context in which the words are spoken and the audience to whom they are addressed; the rationale behind the prohibition on using provoking words is to serve as a check against manifestations of a hostile temper as, by inducing retaliation; thus, the reasonable reaction of the person to whom the words are addressed factors heavily into a determination of whether speech is provocative; the calculus is far more expansive than simply examining the volatility of the speaker’s demeanor and the offensive nature of the words
4. in analyzing alleged provoking speech under the circumstances, factors such as the occupation of the listener have always been deemed relevant to whether the speech is likely to cause a reasonable person to retaliate; just as the profession and training of the person to whom the words are addressed impact the under the circumstances calculus, evidence that the speaker is restrained in some way is also relevant to the likelihood of retaliation by the reasonable person; offensive speech directed at a listener with special training or a particular profession or by a speaker who is restrained may be provocative under the circumstances; case-specific facts must be considered in determining whether an objectively reasonable person could be expected to retaliate against words that, under other circumstances, could be provocative
5. in this case, the military judge’s instruction on the provoking words offense was deficient because while it did, in fact, direct the panel to consider the facts and circumstances of this case, it effectively negated the focus on the actual circumstances of those who were the targets of appellant’s speech by misdirecting the members’ focus to the reaction of a hypothetical average person; based on the evidence presented at trial, the question for the members was not what an average person might do under the circumstances but whether a reasonable medical care provider with the training described was likely to retaliate against a fully restrained, obviously intoxicated patient

Trial Stages: Merits: Instructions › Generally

1. instructions given by a military judge must be sufficient to provide necessary guideposts for an informed deliberation on the guilt or innocence of the accused
2. in this case, it was error for the military judge to instruct the members on the charged Article 117, UCMJ, offense to determine whether the words described in the specification would have caused an average person to react by immediately committing a violent or turbulent act in retaliation; a violation of Article 117, UCMJ, depends not on the likely reaction of the hypothetical average person but rather on the likely reaction of an objectively reasonable person in the position of the persons to whom the words are addressed
3. while military judges have some discretion in tailoring panel instructions, a military judge has a duty to provide appropriate legal guidelines to assist the jury in its deliberations; failure to provide correct and complete instructions to the panel before deliberations begin may amount to a denial of due process; RCM 920(e) expressly requires that instruction on findings include, inter alia, a description of the elements, and such other explanations, descriptions, or directions as may be necessary and which are properly requested by a party or which the military judge determines, sua sponte, should be given
4. while requesting an instruction is ordinarily not sufficient to preserve a claim of error, where as in this case, defense counsel’s requested instruction, complete with citation to supporting legal authority, was specifically tailored to the circumstances presented and gave the military judge the opportunity to correct any error in his panel instructions at trial, and where the military judge demonstrated his awareness of defense counsel’s specific grounds for the alternative instruction, flatly disagreed with him, and there was no indication that further objection was likely to be successful, then on those facts, the issue of instructional error was not forfeited
5. in this case, the military judge’s instruction on the provoking words offense was deficient because while it did, in fact, direct the panel to consider the facts and circumstances of this case, it effectively negated the focus on the actual circumstances of those who were the targets of appellant’s speech by misdirecting the members’ focus to the reaction of a hypothetical average person; based on the evidence presented at trial, the question for the members was not what an average person might do under the circumstances but whether a reasonable medical care provider with the training described was likely to retaliate against a fully restrained, obviously intoxicated patient

Trial Stages: Appeals: Harmless / Prejudicial Error

1. where the defense has preserved an instructional error for appeal, an appellate court reviews the adequacy of the military judge’s panel instruction de novo; and if instructional error is found, an appellant’s claims must be tested for prejudice under the standard of harmless beyond a reasonable doubt; it is also clear that it is solely the government’s burden to persuade the court that constitutional error is harmless beyond a reasonable doubt
2. in this case, the military judge’s instructional error on the provoking words offense was not harmless beyond a reasonable doubt where given the importance of the circumstances surrounding appellant’s speech, the distinction between the average person and reasonable person under the circumstances standards was critical; central to his defense, appellant’s counsel sought to argue that the elements of the offense were not met due to the circumstances of the speech, to include both the profession and training of the listeners and the fact that appellant was restrained; in contrast, trial counsel effectively told the members that none of those circumstances mattered and that it was how the average person would react that was at issue; in instructing the panel to employ an average person standard, the military judge’s instruction directly bolstered the trial counsel’s erroneous statement of the law, which de-emphasized any consideration of the circumstances; the deficient instruction thus essentially undercut the defense theory and may very well have contributed to the finding of guilty, thereby prejudicing the substantial rights of the accused; thus, it cannot be said that the instruction did not mislead the members and contribute to appellant’s conviction for provoking speech

Trial Stages: Appeals: Preservation of Error / Plain Error

1. while there are no magic words dictating when a party has sufficiently raised an error to preserve it for appeal, of critical importance is the specificity with which counsel makes the basis for his position known to the military judge
2. while requesting an instruction is ordinarily not sufficient to preserve a claim of error, where as in this case, defense counsel’s requested instruction, complete with citation to supporting legal authority, was specifically tailored to the circumstances presented and gave the military judge the opportunity to correct any error in his panel instructions at trial, and where the military judge demonstrated his awareness of defense counsel’s specific grounds for the alternative instruction, flatly disagreed with him, and there was no indication that further objection was likely to be successful, then on those facts, the issue of instructional error was not forfeited

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

1. where the defense has preserved an instructional error for appeal, an appellate court reviews the adequacy of the military judge’s panel instruction de novo; and if instructional error is found, an appellant’s claims must be tested for prejudice under the standard of harmless beyond a reasonable doubt; it is also clear that it is solely the government’s burden to persuade the court that constitutional error is harmless beyond a reasonable doubt