United States v. Private E1 MARK S. BRADY

• Court: Army Court of Criminal Appeals
• Decided: November 26, 2008
• Docket: ARMY 20070888
• Status: Unpublished

Opinion

UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before ZOLPER, CONN, and BAIME Appellate Military Judges

UNITED STATES, Appellee v. Private E1 MARK S. BRADY United States Army, Appellant

ARMY 20070888

Headquarters, U.S. Army Training Center and Fort Jackson Tara Osborn, Military Judge Colonel Gregory B. Coe, Staff Judge Advocate

For Appellant: Colonel Christopher J. O’Brien, JA; Lieutenant Colonel Steven Henricks, JA; Captain Nathan J. Bankson, JA; Major Leonard W. Jones, JA (on brief).

For Appellee: Colonel Denise R. Lind, JA; Lieutenant Colonel Mark H. Sydenham, JA; Captain Philip M. Staten, JA; Captain Stephanie R. Cooper, JA (on brief).

26 November 2008

--------------------------------- SUMMARY DISPOSITION ---------------------------------

Per Curiam:

A military judge sitting as a special court-martial empowered to adjudge a bad-conduct discharge convicted appellant, consistent with his pleas, of absence without leave (two specifications), failure to obey an order, and assault consummated by a battery, in violation of Articles 86, 92, and 128, Uniform Code of Military Justice, 10 U.S.C. §§ 886, 892, and 928. The military judge sentenced appellant to a bad-conduct discharge and confinement for six (6) months. The convening authority approved the adjudged sentence and credited appellant with twenty (20) days of confinement credit against his sentence. This case is before the court for review pursuant to Article 66, UCMJ.

Appellant asserts, inter alia, that his plea of guilty to assault consummated by a battery was improvident where the military judge failed to elicit sufficient facts during the providence inquiry to ensure that the defense of self-defense did not apply. We disagree. A review of the record highlights several points during the providence inquiry where the military judge specifically asked appellant about his motivations. We find, as our superior court found this term in United States v. Yanger, 67 M.J. 56, slip op. at 6 (C.A.A.F. 2008), “[t]he record reflects that the possibility of self-defense was resolved by [the providence] inquiry”:

MJ: . . . So I am going to ask you, did you believe that physical harm was about to be inflicted on you? ACC: No, Your Honor. . . .

MJ: Or do you believe that a reasonable person would have acted the same way that you did up in Private Fisher’s room? ACC: No, Your Honor. . . .

MJ: . . . [W]ould a reasonable person have hit him about the head with his fists? ACC: No, Your Honor. . . .

MJ: Could you have left the room if you had wanted to? ACC: Yes, Your Honor. . . .

MJ: Did anything or anyone force you to do bodily harm to Private Fisher? ACC: No, Your Honor.

This colloquy leaves no substantial basis in law or fact to suggest that appellant was improvident based on the issue of self-defense or the military judge abused her discretion in accepting his plea. See United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008); See also United States v. Eberle, 44 M.J. 374, 375 (C.A.A.F. 1996). Furthermore, we reiterate the standard outlined by our superior court in United States v. Harrow, 65 M.J. 190, 20 (C.A.A.F. 2007) (quoting United States v. McCrimmon, 60 M.J. 145, 152 (C.A.A.F. 2004), “[t]his Court permits the military judge ‘in a borderline case . . . [to] give weight to the defense evaluation of the evidence.’” Though we do not find this case to present a close call for the military judge, we take this opportunity to remind parties that the accused, at trial, bears the burden to raise defenses where applicable, and not rely on appellate review to seek them out. See generally Yanger, 67 M.J. 56.(

On consideration of the entire record, we hold the findings of guilty and the sentence as approved by the convening authority correct in law and fact. Accordingly, those findings of guilty and the sentence are AFFIRMED.

FOR THE COURT:

MALCOLM H. SQUIRES, JR. Clerk of Court

( This term in Yanger, the Court of Appeals for the Armed Forces (CAAF) was presented with a circumstance very similar to our own. The CAAF reversed the lower court’s decision dismissing appellant’s manslaughter conviction due to “unresolved self-defense issues.” Yanger, 67 M.J. at __, slip op. at 3 (C.A.A.F. 2008) (quoting United States v. Yanger, 534, 538 (C.G. Ct. Crim. App. 2008)). Specifically, the CAAF cited to numerous instances in the record of trial where the military judge questioned the accused about whether he felt he was ever being threatened or whether he thought he was acting in self-defense. The CAAF held that appellant’s unambiguous answers left no room for doubt; he understood the basis for the defense of self-defense and, through his responses, told the military judge that it did not apply to him. Id.