United States v. Jackson

15 C.M.A. 603, 15 USCMA 603, 36 C.M.R. 101, 1966 CMA LEXIS 320, 1966 WL 4427

• Court: United States Court of Military Appeals
• Decided: January 28, 1966
• Docket: No. 18,646
• Status: Published

Opinions

Opinion of the Court

Quinn, Chief Judge:

The accused was tried before a general court-martial on a charge of murder, but was convicted of voluntary manslaughter, in violation of Article 119, Uniform Code of Military Justice, 10 USC § 919. As approved on intermediate review, the sentence includes a dishonorable discharge and confinement at hard labor for three years. In this Court the accused challenges the law officer’s instructions on the law of self-defense. Proper consideration of the issue requires a statement of the material evidence.

Private First Class Thomas E. Perez and the accused occupied the same barracks. The accused lived on the upper floor; Perez was downstairs. Perez was twenty-three years of age, and about five feet eleven inches tall. His weight does not appear specifically, but photographs of his body, admitted in evidence, indicate he was slender or of medium build. A witness described Perez as “Maybe a little taller” than the accused. No direct evidence of the accused’s age and weight was introduced on the merits, but, as we shall point out later, the court-martial was invited to consider these factors as it judged them to be from the accused’s appearance and civilian defense counsel’s frequent reference to him -as a “young man” or “young boy.”¹

At about 6:00 a.m., on October 6, 1964, the accused passed Perez’ bunk on his way to the back door of the barracks. Perez addressed him in “harsh” or “pugnacious” terms. According to a defense witness, the words were “in a sense” threatening, but the witness did not know “what the threat was.” The remarks were apparently prompted by the accused’s comments the previous night, which Perez said had “really provoked” him. The two had had “a few minor arguments” but the witness who testified to these would not describe the relationship between them as “actually . . . trouble.” Jackson continued to the doorway; Perez followed. Outside the door, Perez pushed Jackson to the right, causing him to fall off the entranceway platform to the grass, a distance of about three feet. The accused fell to his knees. He got up and faced Perez, who came down from the porch. Perez was unarmed, but the accused took a knife from his pocket and bared the blade, which was about four and one-half inches in length. Private Robert Holmes called to the accused that “if he was going to fight the man,” he should put the “knife down and fight him fair.” Specialist Kenneth N. Wool-dridge, a bystander, heard the accused say “I’m going to kill both of you.” He appeared to be addressing Perez and Holmes. Nevertheless the confrontation ended abruptly, without injury to the parties. Perez returned to the barracks, while the accused went to the mess hall.

Within minutes after the barracks incident, Perez entered the mess hall. He sat down at a table near the accused, but there is no evidence that he said anything to him. The accused asked Private David Bazile, seated at an adjoining table, to tell Perez to leave him alone. Bazile passed the request to Perez. In response, Perez remarked that the accused “had pulled a knife on him”; whereupon Bazile “ignored the rest of it” and concentrated on finishing his breakfast.

Perez and the accused finished eating “about the same time.” With his tray, the accused proceeded to the tray room at the rear door. It appears that Perez went “in pursuit” of the accused, who seemed “nervous and looked scared.” The accused turned to Perez and told him “he didn’t want to fight him.” Either then, or moments later, the accused walked over to a Sergeant George E. DeBose and asked him to tell Perez to leave him alone. The Sergeant called to Perez, who sat down beside him. The accused stood nearby. He took the knife out of his pocket; opened it behind his back; held it for a while, then returned it, closed, to his pocket.

After talking to DeBose, Perez went to the rear exit, and sat by the door. He appeared to be “looking straight down” the aisle at the accused. The accused went to a table occupied by noncommissioned officers. Addressing a Sergeant Buck, he told him someone was “trying to pick a fight with him and he didn’t want to fight.” Buck told the accused to get a noncommissioned officer from his own company. Sergeant First Class Clyde M. Reppond, one of the noncommissioned officers of the accused’s organization was present at the table, but was unrecognized by the accused. Sergeant Reppond asked the accused “who was giving him trouble.” The accused pointed to Perez and said Perez “wouldn’t let him out the door.” Sergeant Reppond went down the aisle toward Perez; the accused followed carrying his tray. What occurred next is described by Sergeant Reppond as follows:

"... I walked directly to Perez who was sitting beside the door in a chair and I asked him what the trouble was and why he wouldn’t let this man out the door and Perez told me that ‘Sarge,’ said, ‘he’s got a blade in his pocket about this long’. He indicated approximately ten inches, and I turned from Perez—

“Q Who was making that statement? Perez?

“A Perez was making the statement to me. So I turned from Perez to Jackson and Jackson had followed behind me from the table where I talked to him down to where Perez was. I turned to Jackson and told him, ‘Jackson, give me the knife’ and about the time I said that, Perez reached past my head or left shoulder and struck at Jackson. He didn’t make a real solid blow. He had an open hand. Well, later on, I noticed a small skinned place on Jackson’s lip where the skin was broken and I belive this was caused from that blow, probably the fingernail, but from then on the movements were so fast — well, I started to step between them. I was going to separate them, tell them to break it up. Well, I saw the knife in Jackson’s hand at that time, so I did not go between them and I was kinda dumbfounded and I stood back and didn’t know exactly what to do.

“A It all happened so fast that actually when I first saw the knife it was as I started to walk between them and said, ‘break it up’, but I did not get between them because I saw the knife and at the time I saw it, Jackson was in a bending forward position and the knife was low. By low, I mean, well, below the height of his knee.”

Other witnesses testified that before Perez and the accused “came together,” the accused removed the knife from his pocket, and opened it. The witness most favorable to the accused said the knife was removed before the “clinch,” but was not opened until the two were “hugging” each other. There was general agreement among the witnesses that after the accused and Perez were “hugged together” for about three or four minutes, they became “slightly separated,” when Perez fell or came up against the mess hall wall. In that moment of separation, the accused stabbed Perez three times in the groin. Private Holmes and another bystander seized the accused, and “picked him up clear of the floor.” Perez slumped into a chair, and “just looked into space.” Private Holmes remarked to the accused, “You’re going to jail for this.” The accused replied, “Yeah, he hit me in the face.” The accused then left the mess hall. He next appeared at the orderly room of his unit, apparently within minutes of leaving the mess hall. He “stuck his head in at the door and said he’d just stabbed a . . . [using a particularly offensive obscenity]”; and immediately “took off.”

Emergency aid was administered to Perez at the mess hall by a medical corpsman. Perez was then taken to the hospital in an ambulance. From the nature of the wound and the loss of blood, a medical doctor concluded Perez had a severed femoral artery or vein. As he attempted to reestablish a circulatory route for the blood, Perez died. An autopsy confirmed that stab wounds had “completely severed” the left femoral artery, and partially severed the left femoral vein. Death was attributed to hemorrhage resulting from the wounds.

Two questions are actually present in the attack on the correctness of the instructions on self-defense. The first is whether the record of trial contains sufficient evidence to require the instructions. United States v Green, 13 USCMA 545, 33 CMR 77; United States v Regalado, 13 USCMA 480, 33 CMR 12. The second issue is whether the instructions were sufficiently correct, in both principle and clarity, to provide meaningful legal guidelines so the court members could properly determine the accused’s guilt or innocence. Although the form of the appeal may raise only the second of the two questions, we are not precluded thereby from considering the first. United States v Green, supra. Here, however, the law officer and all counsel concluded that self-defense was properly in issue. We are reluctant to disregard their assessment. United States v Andrews, 15 USCMA 514, 36 CMR 12. Accordingly, we turn directly to the instructions.

An out-of-court hearing was held on proposed instructions. Defense counsel submitted a five-page request, which he said was composed of statements gleaned from “various eases” and instruction form books in use in the State courts of Missouri and Georgia. The law officer adjourned the hearing to study the defense statement. On resumption of the hearing, the law officer presented revised instructions. After further discussion, both of the accused’s lawyers, military and civilian, and trial counsel approved the final draft of the law officer’s proposed instructions. Nevertheless, in their respective arguments they disagreed as to the law.

Civilian defense counsel opened his phase of the argument with a description of the accused as “a young boy . . . away from home.” Coming to the issue of self-defense, he referred to the “frame of mind” of “this boy,” and argued that in assessing the accused’s action the court members should not consider what they “would have thought” at the time, but what was “in this boy’s mind.” Trial counsel interrupted to object that counsel was misstating the law. Before the law officer ruled on the objection, defense counsel said, “All right,” and continued with his argument that the proper test was not what a “reasonable man would think at all times,” but what he “would think under the circumstances that might be in that boy’s mind.” When trial counsel took up the argument, civilian defense counsel interposed an objection of his own. He contended trial counsel was arguing that the test of self-defense was what “a reasonable man [would do] and not the condition of this boy’s mind.” The law officer did not rule on the objection. Instead, he commented as follows:

“Both sides . . . [have] gone into that. I think the defense . . . misquoted it some too. Let me say at this time, [i]t is what a reasonable person would do under the particular circumstances. When we say a reasonable person, we consider the age of the accused, a soldier of his status, what would he do. It’s not what would some six foot three person do, or what you might do. It’s what a reasonable person in his status considering his age and what you’ve seen of him and the like. It’s what is reasonable under the circumstances. You may continue.”

Trial counsel concluded his argument without further objection; and the law officer took up the formal instructions to the court-martial. He began by advising the court it was his duty to instruct on the law, and it was the court’s duty to apply that law to the facts, as determined by it. In material part, the instructions on self-defense are as follows:

“. . . The accused is excused from killing in self-defense if he believes on reasonable grounds that the use of such force is necessary to prevent great bodily harm to himself and that the danger of receiving great bodily harm is imminent.

“In defending himself against the unlawful attack of another, a person is justified in resorting to the use of a deadly weapon to repel an unarmed assault if the particular circumstances of the case require such use for his protection from great bodily harm. In considering whether the force used against the victim was reasonable you should consider all the facts and circumstances as they appeared at the time of the alleged stabbing. The question is, did the accused act in a manner which was reasonable under the circumstances and in the situation which confronted him at the time.

“As I previously said to you, the standard for the reasonable man is what would a soldier of the accused’s age and status do under those circumstances. That is, a reasonable soldier. What would he do under— not reasonable soldier — what would be reasonable under those particular circumstances.

“The burden is on the prosecution to establish the guilt of the accused beyond a reasonable doubt. As I said before, self-defense is a complete defense to the offense charged and the lesser included offense. Consequently, unless you are satisfied by —beyond a reasonable doubt that the accused did not act in self-defense, you must find the accused not guilty of the charge, also the lesser included offense.”

At the end of the instructions, no objections were registered by either party, and no requests were made for additional instructions. However, the president of the court-martial made some remarks on the instructions. These, and the colloquy which followed, are quoted below:

“PRES I have a question. In the summation here several times there’s been brought out reasonableness of the act by Jackson, his age and his training and so on must be considered. Wé have nothing to base— to decide about his age and training other than what he looks like.

“LO It’s not what’s in the thought of the mind. It’s what a reasonable person under those circumstances, how he would react. So take the average soldier of the age and rank of the accused and determine what is reasonable under those circumstances and that is all there is for you to do, gentlemen. There’s nothing else that we can go into. Any objection to that explanation?

“CDC No sir, the court expressed it so well the first time, the difference between the mature man—

“LO It’s what an individual of the accused’s age, what a soldier under those circumstances, how he would act reasonably. Anything further, gentlemen? The court then will be closed.”

Appellate defense counsel contend the instructions erroneously required the court members to determine the issue of self-defense on the basis of what a hypothetically reasonable man would have done in the same circumstances, whereas they should have been instructed “to place themselves in the shoes of the accused and from his vantage point ascertain whether he had a reasonable basis for his actions.”

In United States v Acosta-Vargas, 13 USCMA 388, 392, 32 CMR 388, we reviewed the principle of self-defense as legal excuse for an act which would otherwise he criminal. Commenting on the exposition of the principle in judicial opinions and by various text writers, we said:

. . With marked unanimity we find the rule to be stated, substantially, that the force to which one may resort in self-defense is that which he believes on reasonable grounds to be necessary, in view of all the circumstances of the case, to prevent impending injury.”

We again summarized the general rule in United States v Regalado, supra, at page 484, when we observed that:

“. . . While ‘detached reflection’ is not demanded under pressure or in a fast moving situation, one must in fact, and on reasonable grounds, fear imminent death or serious injury before he is entitled to resort to a dangerous weapon.”

These, and similar cases, indicate the defense is composed of two elements. First, the surrounding circumstances must show the existence of reasonable grounds to apprehend that death or grievous bodily harm is likely to be inflicted upon the accused; and, secondly, it must appear the accused believes the force he used against another, that is, the force which is the basis of the charge against him, was necessary to protect himself against death or serious bodily harm.

The law does not demand the impossible or the unattainable. Consequently, in determining the existence of reasonable grounds to anticipate danger, certain factors relating to the accused are considered. For example, to a child or a female a particular situation may present reasonable grounds to apprehend danger, but the same circumstances may not make an adult male apprehensive of death or serious injury. If there is no evidence of a special factor which the law or common experience recognizes as affecting the reasonableness of the apprehension of danger, the test, for this element of the defense, is whether, considering all the circumstances, a reasonable, prudent person would believe there was ground to fear death or grievous bodily harm. In that situation, it is immaterial whether the accused is twenty-four years of age or forty years of age; the determination of the existence of reasonable grounds to apprehend danger is made from the viewpoint of an adult male. This aspect of the defense, therefore, is objective in nature.

Different considerations obtain in the second element of the defense. This element is personal to the accused. It is what he believes. His inexperience, his lack of education, his emotion control, all are relevant to whether he believed it was necessary for his protection to use the degree of force he used. Here, one can speak of looking at the situation “through the eyes of the accused.” See United States v Moore, 15 USCMA 187, 195, 35 CMR 159; dissenting opinion, Judge Ferguson, in United States v Green, supra, at page 553. At the time of the stabbing, the accused was twenty-four years of age; older in fact than Perez. As we pointed out earlier, no direct evidence of his age was introduced. However, defense counsel’s frequent references to the accused amounted to an invitation to the court to inspect the accused’s physical appearance to determine his age and apparent inexperience, even though he did not testify as a witness. See State v Dorathy, 132 Maine 291, 170 Atl 506 (1934) ; United States v Day, 54 F2d 990 (CA2d Cir) (1932). In the eyes of the law, the accused was an adult. Since there was no evidence to the contrary, he presumably was of sufficient intelligence to act as an ordinary prudent person. Consequently, there were no special factors to qualify the ordinary standard by which to determine the existence of reasonable grounds to fear death or grievous bodily harm; that is, this aspect of the defense was to be determined on the basis of whether, considering all the circumstances, a reasonable, prudent person would conclude that Perez’ attack provided grounds to fear that the accused faced death or grievous bodily harm. However, the special attributes of the accused could be considered in determining whether he believed he had to stab Perez to save himself. With this understanding of the different effect the personal qualities of the accused may-have upon each branch of the defense of self-defense, we consider how the law officer treated them in the instructions.

The first reference to self-defense is in the law officer’s comments on civilian defense counsel’s objection to trial counsel’s argument. The point of the argument to which objection was made dealt with the accused’s reaction to Perez’ assault. That was also the subject of the law officer’s comments. What the accused did is relevant only to his belief in the necessity of the force he used. For that purpose, the court members may, as we have indicated, consider all the personal qualities of the accused in evidence. Consequently, it was improper to refer to “what a reasonable person would do under the particular circumstances.” Had the instruction stopped there, we would need to assess its effect; but it does not stand by itself. The remainder of the law officer’s comments stressed that the reasonable person was in fact one possessing the special qualities of the accused, “his age and what you’ve seen of him.” Thus, even if the comments are construed as instructions, read in their entirety, they were not wrong. Perhaps they could have been better phrased; but inartful language does not justify reversal, if there is no fair risk the court-martial was misled to the accused’s prejudice. See United States v Smith, 8 USCMA 582, 584, 25 CMR 86. We perceive no such risk here.

The second reference to self-defense appears in the formal instructions. The first sentence, as quoted above, is an unimpeachable paraphrase of the general rule set out in decided cases. United States v Acosta-Vargas, and United States v Regalado, both supra. Similarly, the first sentence of the next paragraph is unassailable. The rest of the paragraph supplies the basis of the accused’s assignment of error. Again, there is general reference to the belief of a reasonable person in the necessity for using a knife under the circumstances, but the real meaning is made plain by the law officer’s definition of “reasonable man.” The definition left no doubt that the standard by which to judge the accused’s belief as to the necessity for using the knife was not the judgment of a person of ordinary prudence and intelligence, but that of one having the individual qualities of the accused. As a whole, therefore, the instructions required the court-martial to consider the accused’s attributes in determining whether he believed his use of the knife was necessary to protect himself against serious injury. Apparently, accused’s counsel at trial construed the instructions in that light. Thus, in the discussion on the president’s question as to the evidence of the accused’s age, he observed that the formal instructions had “expressed it [the rule] so well.” Similarly, there is no indication the president was confused. He was merely troubled by the absence of direct evidence of accused’s “age and his training and so on”; and he just wanted to know whether these factors were to be ascertained by the court members on the basis of what the accused “looks like.” We find no ambiguity in the formal instructions which presented a fair risk of prejudice to the accused.

Finally, we consider the law officer’s comments during the colloquy on the president’s remarks. Once again, the substance of the law officer’s instructions was that the court members were to determine the accused’s response to the situation in light of all the circumstances that applied to him as an individual. Certainly, the law officer could have answered the president’s question more to the point, but his explanation, in its entirety, did not set out a standard different from, or inconsistent with, that prescribed by law and delineated in the formal instructions.

The decision of the board of review is affirmed.

1 In fact, the accused was twenty-four years of age.