United States v. Mitchell

34 M.J. 970, 1992 CMR LEXIS 338, 1992 WL 62893
CourtU.S. Army Court of Military Review
DecidedMarch 24, 1992
DocketACMR 9101155
StatusPublished
Cited by5 cases

This text of 34 M.J. 970 (United States v. Mitchell) is published on Counsel Stack Legal Research, covering U.S. Army Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Mitchell, 34 M.J. 970, 1992 CMR LEXIS 338, 1992 WL 62893 (usarmymilrev 1992).

Opinion

OPINION OF THE COURT

ARROW, Judge:

Appellant, pursuant to his plea, was found guilty by a military judge sitting as a general court-martial of desertion with the intent to avoid hazardous duty or important service in violation of Article 85, Uniform Code of Military Justice, 10 U.S.C. § 885 (1982) [hereinafter UCMJ]. He was sentenced to a bad-conduct discharge, confinement for thirty months, and reduction to Private El. The convening authority, pursuant to a pretrial agreement, approved the adjudged sentence but suspended all confinement in excess of six months for a period of six months.

Appellant now claims that the military judge erred in accepting his guilty plea because the providence inquiry raised inconsistent matters and the possible defense of duress, which the military judge failed to adequately resolve. We disagree.

Sometime after being notified that he was to deploy with his unit to Operation Desert Shield, appellant requested leave to [972]*972resolve some family problems. He was given leave from 20 to 23 December 1990 and was advised to call his platoon sergeant if he needed additional leave. Appellant failed to return to his unit on 23 December 1990, did not request additional leave, and remained absent, without proper authority, until he surrendered to military control on 18 February 1991. Appellant’s unit deployed to Saudi Arabia on 23 December 1990 without him.

During the providence inquiry appellant admitted all of the elements of the offense. During this inquiry and later during the sentencing portion of the trial, however, evidence disclosed that appellant’s wife and son were having severe mental problems which required extended treatment, to include some hospitalization. Appellant now contends that the military judge was presented with a scenario in which a soldier, who was about to deploy to Saudi Arabia, was faced with leaving a family in a dangerous state of disarray. He further contends that, as his wife had serious suicidal ideations, he was the only person that could keep serious harm from coming to his family. Thus, he argues, these facts were inconsistent with the guilty plea in that they raised the possible defense of duress which required the military judge to reject the guilty plea. See UCMJ, art. 45, 10 U.S.C. § 845; United States v. Brooks, 26 M.J. 930 (A.C.M.R.1988).

Duress may be a defense to a desertion charge. See United States v. Hullum, 15 M.J. 261 (C.M.A.1983). To establish the affirmative defense of duress it must be shown that an accused’s

participation in the offense was caused by a reasonable apprehension that the accused or another innocent person would be immediately killed or would immediately suffer serious bodily injury if the accused did not commit the act. The apprehension must reasonably continue throughout the commission of the act. If the accused has any reasonable opportunity to avoid committing the act without subjecting the accused or another innocent person to the harm threatened, this defense shall not apply.

Manual for Courts-Martial, United States, 1984, Rule for Courts-Martial 916(h) [hereinafter R.C.M.].

The plain language of R.C.M. 916(h) leads to the conclusion that the defense of duress is intended to apply only to cases where the coercion is asserted by third persons. R.C.M. 916(h) requires that an “innocent person would immediately be killed or suffer serious bodily injury” (emphasis added) to support the defense. It also refers to “harm threatened” to an accused or another innocent person. This supports the conclusion that the defense contemplates harm by another, not self-inflicted injury. Although we have been unable to find any military cases in point, we conclude that the defense of duress is not in issue unless the duress is imposed by a person other than the accused or an innocent person.

We believe the facts brought to the attention of the military judge negate the possibility that appellant could have raised the defense of duress and that the facts were not inconsistent with the guilty plea.

The duress defense typically has been applied to situations where a third party causes an accused or another innocent person such as a relative to face immediate death or great bodily harm and, as a result, forces the accused to commit an offense. The third party’s actions amount to separate criminal conduct. Examples of the successful use of the duress defense involving unauthorized absences where third parties victimized service members with life threatening racial attacks and sexual harassment are found in United States v. Hullum, 15 M.J. 261 (C.M.A.1983), and United States v. Roberts, 14 M.J. 671 (N.C.M.R.1982), rev’d in part, 15 M.J. 106 (C.M.A.1983). The defense was also raised, in providence inquiries, where an accused forged, made, and uttered worthless checks because his family was threatened with physical harm by third parties to whom he owed money as a result of gambling debts, and where an accused broke into a commissary at the behest of third parties, who stopped him while he was driving home from a movie, and threatened him and his [973]*973family with serious injury unless he complied with their demands. United States v. Palus, 13 M.J. 179 (C.M.A.1982); United States v. Jemmings, 1 M.J. 414 (C.M.A. 1976). The common thread in these “duress” cases is that third parties, by threatened or actual criminal conduct, caused an accused to commit a crime.1

We are unaware of any reported military cases where the defense of duress was successfully raised which did not involve third persons. However, there have been a number of federal and state cases that did not permit the use of the duress defense where third persons were not involved in the coercion.2

In United States v. Stevison, 471 F.2d 143 (7th Cir.1972), cert. denied, 411 U.S. 950, 93 S.Ct. 1933, 36 L.Ed.2d 411 (1973), appellant, a bank teller, contended that her belief that her daughter would commit suicide if she did not cover her daughter’s check overdrafts raised the defense of duress. The trial judge refused to give appellant’s tendered instructions on the defense. Appellant conceded there were no reported American cases supporting the proffered instruction. The Court of Appeals held “it is clear that the court did not err in refusing to give appellant’s proposed instruction.” Id. at 147. See also Love v. State, 271 Ind. 473, 393 N.E.2d 178 (1979) (robbery for money to buy heroin to prevent drug withdrawal did not raise defense of duress); State v. Gann, 244 N.W.2d 746 (N.D.1976) (duress could not be asserted where the defendant robbed to provide his family with food and shelter because the compulsion did not come from an outside source and remove the free will of the actor); Degler v. State, 741 P.2d 659

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Bluebook (online)
34 M.J. 970, 1992 CMR LEXIS 338, 1992 WL 62893, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-mitchell-usarmymilrev-1992.