UNITED STATES, Appellee v. Brian DEARING, Operations Specialist Seaman U.S. Navy, Appellant No. 05-0405 Crim. App. No. 200100291 United States Court of Appeals for the Armed Forces Argued March 1, 2006 Decided September 18, 2006 GIERKE, C.J., delivered the opinion of the Court, in which EFFRON and ERDMANN, JJ., joined. BAKER, J., filed a separate opinion concurring in the result. CRAWFORD, J., filed a dissenting opinion. Counsel For Appellant: David P. Sheldon, Esq. (argued); Lieutenant Stephen C. Reyes, JAGC, USNR (on brief); Philip Sundel, Esq. For Appellee: Major Wilbur Lee, USMC, (argued); Commander Charles N. Purnell II, JAGC, USN (on brief); Captain Glen R. Hines, USMC. Military Judge: Clark A. Price This opinion is subject to revision before final publication. United States v. Dearing, No. 05-0405/NA Chief Judge GIERKE delivered the opinion of the Court. It is a “basic rule that instructions must be sufficient to provide necessary guideposts for an ‘informed deliberation’ on the guilt or innocence of the accused.”1 In this case, the pivotal issue is whether the military judge failed to provide a correct instruction pertaining to Appellant’s right to exercise self-defense. The prosecution evidence presented Appellant as the initial aggressor in a lethal altercation. But the defense evidence presented actions of members of a hostile group that arguably escalated the conflict, thereby permitting Appellant to use reasonable force to defend himself. We hold that the military judge erred in failing to instruct the panel on the concept of escalation of the conflict as it relates the issue of self-defense. This significant defect in the instruction requires us to reverse the decision of the United States Navy- Marine Corps Court of Criminal Appeals.2 This is not the only issue presently before this Court.3 We also address Appellant’s assertion that he was denied a speedy 1 United States v. Anderson, 13 C.M.A. 258, 259, 32 C.M.R. 258, 259 (1962) (citing United States v. Landrum, 4 C.M.A. 707, 713, 16 C.M.R. 281, 287 (1954); United States v. Acfalle, 12 C.M.A. 465, 470, 31 C.M.R. 51, 56 (1961)); see also Anthony v. Louisville & Nashville R.R. Co., 132 U.S. 172, 173 (1889) (“The object of the instructions was to impart such information as would govern the jury in their deliberations and guide to a right conclusion in their verdict.”). 2 United States v. Dearing, 60 M.J. 892 (N-M. Ct. Crim. App. 2005). 3 This Court granted review on two issues: 2 United States v. Dearing, No. 05-0405/NA post-trial and appellate review. We hold that Appellant was denied his due process right to speedy post-trial and appellate review and grant appropriate relief. I. FACTS A. General Background of the “Road Rage” Incident Appellant’s alleged offenses arise from his involvement in an on-base “road rage” fight. The incident implicated Appellant and three friends, riding in two cars, and three victims with four additional friends, also in two cars. Prior to this incident, neither group knew the other group. Several of those involved in this incident had been drinking alcohol that evening. The actual incident lasted only a few minutes. The lower court identifies the alignment of the adversaries and the circumstances of the fight: On the night of 18 September 1999, the appellant, his girlfriend, Teresa Wilson, and two other friends, Fireman (FN) Anthony S. Taylor, U.S. Navy, and his wife, Jennifer Taylor, went to see a movie at the Norfolk, Virginia Naval Base movie theater. The appellant and his girlfriend went to the movie theater complex in the appellant’s black Isuzu Amigo and the Taylor couple went separately in FN Taylor’s black Dodge Avenger. I. WHETHER THE MILITARY JUDGE ERRED BY FAILING TO PROPERLY INSTRUCT THE PANEL REGARDING APPELLANT’S RIGHT AS AN AGGRESSOR TO EXERCISE SELF-DEFENSE IN AN ESCALATION OF FORCE SITUATION. II. WHETHER APPELLANT WAS PROVIDED A TIMELY POST-TRIAL AND APPELLATE REVIEW UNDER THE UNIFORM CODE OF MILITARY JUSTICE AND THE UNITED STATES CONSTITUTION. United States v. Dearing, 62 M.J. 226 (C.A.A.F. 2005). 3 United States v. Dearing, No. 05-0405/NA On that same evening, MM3 Taylor and some of his friends, Aviation Ordnanceman Airman Apprentice (AOAA) Eldridge J. Wells, Jr., U.S. Navy, AOAN Keaton, and MMFN Polydore and his date, Elizabeth Hargrave, saw the same movie at the same theater. AOAA Wells and MM3 Taylor went to the movie theater with AOAN Keaton in his black Honda Accord, which AOAA Wells drove, and MMFN Polydore and his date went separately in MMFN Polydore’s tan Mazda Protege. Electrician’s Mate Third Class (EM3) Graham Charity, U.S. Navy, and his girlfriend, Aviation Storekeeper Third Class (AK3) Trisha Marshall, U.S. Navy, both friends of MMFN Polydore and MM3 Taylor, were picked up very near the movie theater by MMFN Polydore and his date, immediately after the movie ended. After the movie, all these individuals left the theater in the same vehicles they arrived in, with the exception of EM3 Charity and AK3 Marshall. Very shortly thereafter, a deadly stabbing incident occurred between the two movie-going parties in the Navy Exchange parking lot near the movie theater. As a result of what can only be described as a very brief “road rage” incident, partly fueled by alcohol, between some or all of the parties in the Dodge Avenger and the Honda Accord after leaving the movie theater parking lot, those parties shortly thereafter ended up in a verbal confrontation in the Navy Exchange parking lot. For whatever reason, the parties from both the Isuzu Amigo and the Mazda Protege also pulled into the Navy Exchange parking lot immediately following the other two vehicles. After the dust settled, the appellant had stabbed MM3 Taylor to death, and both MMFN Polydore and AOAN Keaton had also been seriously stabbed.4 B. Trial Developments A general court-martial composed of officer and enlisted members was convened to consider charges against Appellant that included unpremeditated murder, assault with intent to inflict grievous bodily harm, assault with a dangerous weapon (a knife), 4 Dearing, 60 M.J. at 896. 4 United States v. Dearing, No. 05-0405/NA and obstruction of justice.5 Appellant pleaded not guilty to all the charged offenses. At the court-martial, there was extensive testimony regarding the involvement of several members of the group in the fracas. The trial was essentially a credibility contest that involved “finger pointing” at other people to establish responsibility and culpability for this incident. In the prosecution case-in-chief, witnesses presented Appellant as both the aggressor and assailant in the fight. In his defense, Appellant testified and explained his involvement in the incident as his attempt to protect his girlfriend. Others also testified in support of Appellant’s explanation of the incident. Appellant testified that after his girlfriend got involved in a verbal dispute with the men from the other group, he intervened in order to protect her by pushing the men away with both hands. Appellant asserted that just as he raised his hands, an unknown person, who was neither his own friend, Anthony Taylor, nor his own girlfriend, hit him in the back of the head. Appellant further testified that he heard someone ask, “Do you have a gun?” Appellant stated this statement made him 5 These offenses are punishable under Articles 118, 128, and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 918, 928, 934 (2000), respectively. 5 United States v. Dearing, No. 05-0405/NA concerned about his safety. Appellant explained that he saw the trunk of the black Honda was open, and he believed that someone had retrieved a weapon from it. Appellant testified at this point he began fighting to make his way out of the bad situation. As he was fighting with one person, another person was hitting Appellant in the side, and yet another person kicked him. Appellant complained that he was pushed to the ground and grabbed around the neck as another person hit him in the chest. Appellant testified that he then remembered the knife he had in his pocket, pulled it out, and stuck it out twice in an upward thrust. In summary, Appellant asserted that he was acting in self-defense to save his own life during the brutal attack on him. At the conclusion of the presentation of the evidence and before the military judge instructed the panel, civilian trial defense counsel asked the military judge to give an instruction addressing the issue regarding escalation of the conflict as it related to the defense of self-defense. Trial defense counsel expressly relied on United States v. Cardwell6 as authority to support his entitlement to the requested instruction. The record discussion of this issue covers five pages of the record of trial. The discussion ended with the military judge 6 15 M.J. 124 (C.M.A. 1983). 6 United States v. Dearing, No. 05-0405/NA suggesting that the defense counsel, “Give [him] a piece of paper on what you want.” Complying with this direction, civilian defense counsel proffered the following instruction: Even if the accused was an aggressor, the accused is entitled to use self-defense, if the opposing party escalated the level of the conflict. Accordingly, even if the accused was the aggressor, if the opposing party escalated the conflict by placing the accused in reasonable fear that he was at risk of death or grievous bodily harm, the accused would then be entitled to use deadly force in self-defense. In support of the requested instruction, the defense argued that even if Appellant were the initial aggressor, he was still entitled to rely on the defense of self-defense if the opposing party escalated the level of the conflict. The military judge refused to give the requested instruction and declined to address the issue of escalation of the conflict. The military judge explained that in his view “the instructions that I have drafted adequately cover the issue.” He also opined that “the key explanation is in the definition of aggressor.” The military judge initially instructed the panel on the defense of self-defense. Most relevant to this case, the military judge gave the following instruction to address the issue of Appellant being an aggressor and its implication on the issue of self-defense: 7 United States v. Dearing, No. 05-0405/NA There exists evidence in this case that the accused may have been an aggressor. An “aggressor” is one who uses force in excess of that believed by him to be necessary for defense. There also exists evidence that the accused may have voluntarily engaged in mutual fighting. An aggressor, or one who voluntarily engaged in mutual fighting, is not entitled to self-defense unless he previously withdrew in good faith. Emphasis added. After hearing this instruction and deliberating, the panel found Appellant guilty of the charged offenses and adjudged a sentence to confinement for twenty-five years, reduction to pay grade E-1, forfeiture of all pay and allowances, and a dishonorable discharge. The convening authority approved the sentence as adjudged. C. Ruling of the Navy-Marine Corps Court of Criminal Appeals The lower court held that the military judge’s instruction to the members substantially covered the issues that the defense requested to be covered.7 The lower court also concluded that even if the defense-requested instruction had not been substantially covered in the main charge to the members, the military judge’s refusal to give the defense-requested instruction on the escalation of violence did not deny Appellant a fair trial because it did not deprive him of a defense or seriously impair its effective presentation.8 7 Dearing, 60 M.J. at 899. 8 Id. 8 United States v. Dearing, No. 05-0405/NA II. DISCUSSION A. Evaluation of Whether the Military Judge’s Self-Defense Instruction Adequately Addressed the Issue of Escalation of the Conflict Rule for Courts-Martial (R.C.M.) 920(e)(3) provides: “Required instructions. Instructions on findings shall include . . . (3) A description of any special defense under R.C.M. 916 in issue[.]” As self-defense is a special defense identified in R.C.M. 916, if this defense was at issue in this case, the military judge was obligated to give a correct instruction on self-defense.9 This Court has stated, “The touchstone against which we measure 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.”10 In light of Appellant’s testimony in the present case, there was “some evidence” to raise the issue of self-defense. Indeed, the 9 See United States v. Martinez, 40 M.J. 426, 431 (C.M.A. 1994) (stating that “the court members were not given a correct legal framework for evaluating appellant’s claim of self-defense”); United States v. Jones, 3 M.J. 279, 280-81 (C.M.A. 1977) (“[T]he primary obligation to adequately instruct on a material issue [here self-defense] lies with the military judge.”); see generally United States v. Groce, 3 M.J. 369, 370-71 (C.M.A. 1977) (stating that the multiple duties of the military judge include a duty to tailor his instructions to fit the facts of the case). 10 United States v. Richey, 20 M.J. 251, 253 (C.M.A. 1985) (quoting United States v. Black, 12 C.M.A. 571, 574, 31 C.M.R. 157, 160 (1961), quoting United States v. Ginn, 1 C.M.A. 453, 457, 4 C.M.R. 45, 49 (1952)) (quotation marks omitted). 9 United States v. Dearing, No. 05-0405/NA parties agree that the testimony of Appellant warrants an instruction on self-defense. Therefore, the focus of this appeal is whether the military judge erred by failing to properly instruct the panel on the issue of self-defense.11 This Court reviews the adequacy of the military judge’s instruction de novo.12 In United States v. Wolford,13 we explained: If instructional error is found, because there are constitutional dimensions at play, [the 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 the defendant’s conviction or sentence.14 The military judge generally instructed the panel on the issue of self-defense. The military judge’s self-defense instructions 11 As the granted issue focuses on this issue, we do not address the collateral question of whether the military judge erred in not giving the specific instruction requested by the defense. See United States v. Jackson, 15 C.M.A. 603, 613, 36 C.M.R. 101, 111 (1966) (Ferguson, J., dissenting) (“As self-defense was placed in issue, it is necessary, as the granted question indicates, to examine the instructions of the law officer in order to determine their accuracy.”). 12 United States v. Bean, 62 M.J. 264, 266 (C.A.A.F. 2005) (“We review allegations of error involving mandatory instructions de novo.” (citing United States v. Forbes, 61 M.J. 354, 357 (C.A.A.F. 2005); United States v. Smith, 50 M.J. 451, 455 (C.A.A.F. 1999)); see generally United States v. Kasper, 58 M.J. 314, 318 (C.A.A.F. 2003) (“The issue of whether the members were properly instructed is a question of law, which we review de novo.”). 13 62 M.J. 418 (C.A.A.F. 2006). 14 Id. at 420 (quoting United States v. Kreutzer, 61 M.J. 293, 298 (C.A.A.F. 2005), quoting United States v. Kaiser, 58 M.J. 146, 149 (C.A.A.F. 2003)) (quotation marks omitted). 10