United States v. Kirk

41 M.J. 529, 1994 CCA LEXIS 4, 1994 WL 679999
CourtU S Coast Guard Court of Criminal Appeals
DecidedNovember 10, 1994
DocketCGCMS 24066; Docket No. 1017
StatusPublished
Cited by4 cases

This text of 41 M.J. 529 (United States v. Kirk) is published on Counsel Stack Legal Research, covering U S Coast Guard Court of Criminal Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Kirk, 41 M.J. 529, 1994 CCA LEXIS 4, 1994 WL 679999 (uscgcoca 1994).

Opinions

BAUM, Chief Judge:

After pleading not guilty, a special court-martial composed of officer and enlisted members convicted Appellant of the following offenses: three specifications of unauthorized absence, two for three days and one of one-day’s duration; three specifications of dereliction of duty; two specifications of failure to obey orders from a supervisor; one specification of a false official statement to a supervisor; one specification of wrongful appropriation of $100 from the imprest fund; and one specification of larceny of $1,825 from the imprest fund, in violation, respectively, of Articles 86, 92, 107, and 121, UCMJ, 10 U.S.C. §§ 886, 892, 907, 921. Appellant was sentenced to a bad conduct discharge, confinement for six months, a fine of $3,259.20, and reduction to pay grade E-l. The convening authority disapproved the fine, but, otherwise, approved the sentence as adjudged. Before this Court, Appellant initially assigned eleven errors. Two of those assignments were withdrawn by Appellant after they were resolved by this Court’s return of the record to the convening authority for corrective action. The remaining nine assignments have been briefed, oral argument has been heard, and the case is now ready for decision.

Three of the assignments relate to the appointment of judges, the use of collateral-duty judges, and the lack of fixed terms of office for judges. These assignments have been previously considered and rejected. Weiss v. U.S., — U.S.-, 114 S.Ct. 752, 127 L.Ed.2d 1 (1994), and U.S. v. Carpenter, 37 M.J. 291 (CMA 1993), petition for cert. filed, No. 93-676 (U.S. 29 October 1993). Those decisions are dispositive, and the assignments are again rejected.

Two other assignments, which assert that the evidence is insufficient to sustain the convictions of dereliction of duty and larceny, are summarily rejected because we find the evidence both legally and factually sufficient for those offenses. The remaining four assignments will be addressed.

[531]*531I

THAT THE MILITARY JUDGE FAILED TO INSTRUCT THE MEMBERS ON A DEFENSE TO ONE OF THE UNAUTHORIZED ABSENCES WHICH WAS CLEARLY RAISED BY THE EVIDENCE.

Appellant testified with respect to one of the three-day absence offenses that he was absent for the time charged, but believed he had been authorized leave for that period. In support of this contention, he . stated that he had asked his supervisor on a Wednesday and Thursday for leave the next week and the supervisor said he would think about it and would talk about it later. Then, according to Appellant, after he was called back to the office from special liberty on Friday to meet with the chaplain and ombudsman, he asked his supervisor again whether he could take all of the next week as leave. Appellant’s testimony on this point was as follows: My understanding from him was, his last word was, “Fine, you got the leave.”

And I told him, I said, ‘Well, I’ll see you in the following week after my leave is up.” And I left, and that particular time I thought I was on leave, so I just went on leave.

R. 1433-34.

The supervisor testified that he had not authorized Appellant leave for the period but confirmed that earlier in the week prior to the charged absence he had discussed with Appellant the possibility of some leave and had said, “I will allow you time. When I get — receive your request, we’ll consider it.” R. 972. The supervisor explained that when he said he would allow Appellant some time he meant a set period with the supervisor’s signature, although he acknowledged that, on another occasion with Appellant, leave papers were completed after leave had been taken and Appellant had called the supervisor at home to obtain approval after the fact. Appellant testified that he had taken leave on at least two occasions without filling out required paperwork beforehand. One such after-the-fact leave authorization was admitted in evidence showing written approval by the supervisor seven days after the leave was taken. Although no leave papers were submitted for the period charged as an unauthorized absence, the supervisor said in response to a question on cross-examination that Appellant “may have perceived he was in a leave status; I knew he wasn’t.” R. 974.

Despite the testimony and documentary evidence bearing on this matter, no instruction on mistake of fact was requested and none was given sua sponte by the judge. Before this Court, Appellant, citing Rule for Courts-Martial 916(j) and the discussion following the rule, submits that mistake of fact is a complete defense to unauthorized absence, if the accused has an honest and reasonable belief that he had permission to be absent, and that the judge had an affirmative duty to instruct on that defense if it was reasonably raised by some evidence. U.S. v. Watford 32 M.J. 176, 178 (CMA 1991). Appellant contends that the defense was reasonably raised by the evidence in this case and that the judge’s failure to give such an instruction in the face of that evidence requires that we set aside the finding of guilty.

The Government responds with the argument that even if Appellant honestly believed he was authorized leave, the evidence shows that such a belief was not reasonable. The Government says that Appellant’s defense to the unauthorized absence rested on a credibility contest between Appellant and his supervisor — either Appellant was given verbal leave authorization by his supervisor or he was not. According to the Government, Appellant failed to produce sufficient evidence to establish the reasonableness of any mistaken belief that he had oral authorization to take a week of leave. For that reason, according to the Government, the judge was not required to instruct the members sua sponte on mistake of fact. We disagree.

The cases tell us with respect to affirmative defenses that, whenever “some evidence” is presented raising the defense, the judge has a duty to instruct, and that the evidence need not be compelling or convincing beyond a reasonable doubt. The question is whether the evidence is such that if the members gave it credit the defense would be raised. Any doubt whether the evidence raises an affirmative defense should be resolved in favor of the accused. U.S. v. Van Syoc, 36 M.J. 461, 464 (CMA 1993); U.S. v. [532]*532Jackson, 12 M.J. 163, 166-167 (CMA 1981); U.S. v. Steinruck, 11 M.J. 322, 324 (CMA 1981). Moreover, the Court of Military Appeals said in U.S. v. Barnes, 39 M.J. 230, 233 (CMA 1994) that:

A right to an instruction on an affirmative defense which is reasonably raised by the evidence “is not waived by a defense failure to request such an instruction.” [U.S. v. Taylor, ] 26 MJ [127,] at 129. Such instruction can only be “affirmatively waived.” See United States v. Strachan, 35 MJ 362, 364 (CMA 1992), cert. denied, [-] U.S. [-], 113 S.Ct. 1595, 123 L.Ed.2d 159 (1993). We cannot affirm appellant’s conviction if there is a “reasonable possibility” the judge’s error in failing to instruct “might have contributed to the conviction,” and we are not persuaded the error was harmless. United States v. Palacios, 37 MJ 366, 368 (CMA 1993).

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Cite This Page — Counsel Stack

Bluebook (online)
41 M.J. 529, 1994 CCA LEXIS 4, 1994 WL 679999, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-kirk-uscgcoca-1994.