United States v. Rankins

34 M.J. 326, 1992 CMA LEXIS 144, 1992 WL 177152

• Court: United States Court of Military Appeals
• Decided: July 29, 1992
• Docket: No. 67,069; CM 9100083
• Status: Published

Opinions

Opinion

CRAWFORD, Judge:

Appellant was convicted, contrary to her pleas, of missing movement through design, in violation of Article 87, Uniform Code of Military Justice, 10 USC § 887. She was sentenced to a bad-conduct discharge and confinement for 30 days. The Court of Military Review affirmed the findings and the approved sentence. 32 MJ 971 (1991). This Court granted her petition for review on the following issue:

WHETHER THE MILITARY JUDGE ERRED BY REFUSING TO INSTRUCT THE MEMBERS THAT DURESS WAS A DEFENSE TO MISSING MOVEMENT, WHERE APPELLANT TESTIFIED THAT SHE HAD MISSED MOVEMENT OUT OF FEAR THAT HER HUSBAND, WHO SUFFERED FROM A HEART CONDITION, WOULD HAVE A HEART ATTACK AT HOME IN HER ABSENCE WITHOUT ANYONE TO ASSIST HIM.

I

Appellant and her husband were active-duty soldiers stationed at Fort Lewis, Washington. During the period of October 3-15, 1990, appellant was sent on a field exercise to Yakima Firing Center, while her husband remained at home. On the sixth day of that exercise, appellant learned that the wife of a soldier had died of a heart attack while that soldier was in the field. Appellant was told that the soldier’s wife had been dead for 2 days and her baby was dehydrated when finally discovered. While at Yakima, appellant was returned to Fort Lewis after she was notified that her husband was hospitalized for atrial fibrillation, which, she testified, she thought was “a heart attack.” Her husband was released from the hospital after 8 days, cleared for regular physical training, and eventually deployed to Saudi Arabia. When appellant was notified of her husband’s hospitalization, she was heard to say, “Thank goodness my husband did get ill so I could come in from the field.” Appellant explained by saying, “I shouldn’t say thank goodness but at least it kept me from going AWOL.”

Just prior to the offense which is the subject of this court-martial, appellant was alerted for a movement of her unit for field duty at Fort Hunter Liggett, California. On Monday, October 29, 1990, 4 days before she was to deploy to the Fort Hunter Liggett exercise, appellant asked to have a pass for Friday, November 2, 1990, to take care of personal business and “prepare for deployment.” On the same date, her supervisor, Sergeant First Class (SFC) Sir-wet, attempted to contact her unsuccessfully. He left a message on her answering machine, but she never made the formation scheduled for 1600 hours that afternoon. After several efforts to contact her, appellant finally returned SFC Sirwet’s telephone calls and told him that she was not coming to the unit or “going to the field.” When asked why, she simply said, “I just don’t want to go”; when persuaded to come into the unit to talk, she responded, “Okay, I’ll come in but I’m not going to the field.”

Upon arriving at the unit, appellant talked to SFC Sirwet, as well as the first sergeant, the company commander, a chaplain, and another officer. She told them that she was not going to the field because she did not like the hardships of the field environment; she did not mention her husband’s health as a factor in her decision. Her company commander advised her of “the consequences” of failing to report, but she replied that “she didn’t care”; she would just “suffer the consequences.”

The officers departed and SFC Sirwet tried unsuccessfully to reason with her. Appellant insisted that she would do anything to avoid going to the field, including slitting her wrists. SFC Sirwet advised the command of appellant’s declaration and, on the same day, appellant was referred to a chaplain and the hospital for a psychiatric assessment. Appellant expressed to the chaplain her distaste for the field environment and also some concern for her husband’s health. She told the evaluating physician that she did not “want to go to the field” because “it just didn’t feel right.” The physician tried to find out if there was any other reason she did not want to deploy, and she responded there was none.

After a physical examination and a detailed mental evaluation, appellant was cleared for deployment. Upon returning to the unit that evening, appellant was told by her company commander that she had to deploy with the unit the following morning at 0600 hours. Appellant indicated that she was not going, and she followed through by missing the troop movement.

At trial, when asked why she missed the troop movement, appellant testified, “I felt that my husband was going to have a heart attack and I wouldn’t be there to help him or maybe to save his life.” She also testified that on November 2, 1990, she went to the community mental health office because of the stress of being separated from her husband. She was told that she could be helped, but she had to go through the chain of command; she never approached her chain of command.

II

The Court of Military Review found that, in order to be entitled to an instruction on the duress defense, an accused must show:

(1) an immediate threat of death or serious bodily injury; (2) a well-grounded fear that the threat will be carried out; and (3) lack of a reasonable opportunity to escape the threatened harm.

32 MJ at 974 (quoting United States v. Beltran-Rios, 878 F.2d 1208, 1213 (9th Cir. 1989)). Applying these factors, the court below found that the duress defense “was not raised by the evidence” based upon the following reasoning:

In the case before us the fear of appellant that her husband would have a heart attack while she was in the field was not well grounded. Even in the eyes of witnesses on her behalf, her belief was irrational. Her belief was unreasonable and not well grounded. Further, appellant failed to produce evidence that the threat of a heart attack was immediate. The threat to her husband was mere speculation.

32 MJ at 974. We concur with the holding of the court below that the duress defense was not raised by the evidence.

We have no difficulty with the proposition that duress may be a defense to a missing-movement charge for the same reasons that duress may be a defense to a desertion charge. See, e.g., United States v. Hullum, 15 MJ 261, 265 (CMA 1983). Further, as we noted in United States v. Williams, 21 MJ 360, 362 (CMA 1986), “When a defense is reasonably raised by some evidence, it must be the subject of instruction if trial is by members____” The issue before us, however, is not whether duress is a defense to missing movement. Rather, it is whether the duress defense—or more accurately, the necessity defense—was reasonably raised by the evidence at trial.

Manual for Courts-Martial, United States, 1984, specifically provides a defense for crimes committed due to unlawful coercion by third parties (duress) and for crimes committed in the proper performance of a legal duty (justification). The Manual for Courts-Martial does not specifically mention the defense for crimes committed due to a perceived threat from some unavoidable circumstance, condition, or fact which leaves no choice of action (necessity). See generally Milhizer, Necessity and the Military Justice System: A Proposed Special Defense, 121 Mil.L.Rev. 95 (1988).

In order to fully understand the issue presented, we will discuss the three special defenses to crimes involving a “choice of evils” and their respective application: the justification or public-duty defense, the necessity defense, and the duress defense. See generally Luckstead, Choice of Evils: Defenses in Texas: Necessity, Duress, and Public Duty, 10 Am.J.Crim.L. 179, 180 (1982). We will discuss each of the three “choice of evils” defenses and their application.

To establish the justification or public-duty defense it must be shown that “[a] death, injury, or other act [is] caused or done in the proper performance of a legal duty.” RCM 916(c), Manual, supra. This defense applies to “the use of force by a law enforcement officer” or to “killing an enemy combatant in battle.” RCM 916(c), Discussion.

The necessity defense is one which is not recognized in about one-half of American jurisdictions. Milhizer, supra at 96. The defense is, however, “anciently woven into the fabric of our culture” and

[t]he common law elements of the defense are: 1) the harm must be committed under the pressure of physical or natural force, rather than human force; 2) the harm sought to be avoided is greater than (or at least equal to) that harm sought to be prevented by the law defining the offense charged; 3) the actor reasonably believes at the moment that his act is necessary and is designed to avoid the greater harm; 4) the actor must be without fault in bringing about the situation; and 5) the harm threatened must be imminent, leaving no alternative by which to avoid the greater harm.

Allison v. City of Birmingham, 580 So.2d 1377, 1380 (Ala.Cr.App.1991), quoting Note, Necessity as a Defense to a Charge of Criminal Trespass in an Abortion Clinic (hereafter Note), 48 U.Cin.L.Rev. 501 (1979). Accord W. LaPave & A. Scott, Substantive Criminal Law (Necessity) § 5.4 at 627 (1986).

The problem with the necessity defense is that it involves a weighing of evil inflicted against evil avoided and is, thereby, difficult to legislate. Courts also have been reluctant to embrace the defense due to a “fear that private moral codes will be substituted for legislative determination, resulting in a necessity exception that swallows the rule of law.” Milhizer, supra at 96-97 (footnotes omitted). See also United States v. The Schooner Diana, 74 U.S. (7 Wall.) 354, 361, 19 L.Ed. 165, 166 (1869) (“ ‘Nothing less,’ says Sir William Scott, ‘than an uncontrollable necessity, which admits of no compromise, and cannot be resisted,’ will be held a justification of the offense. Any rule less stringent than this would open the door to all sorts of fraud.”). This is because, unlike the duress defense where a “particular defendant is excused” from his criminal conduct, “although his action is not termed legal, ... if an action is justified by necessity, then a new rule of law is created which instructs all future actors faced with the same conflict of values how to act." Allison v. City of Birmingham, 580 S.2d at 1380, quoting Note, supra (emphasis added).

Military courts, likewise, have been reluctant to apply the necessity defense by judicial fiat. As with the case at bar, military courts have instead analyzed such criminal acts under the rubric of the duress defense. See generally United States v. Talty, 17 MJ 1127 (NMCMR), pet. denied, 19 MJ 237 (1984) (court declined to apply duress defense where accused refused to perform duties in the reactor compartment of a nuclear submarine, claiming that he feared exposure to dangerous levels of radiation); United States v. Montford, 13 MJ 829, 831 (ACMR 1982) (court declined to apply duress defense where accused explained that he went AWOL because he needed to return home “to straighten out an ‘extreme family situation’ involving his brother-in-law, his sister, and his mother”); United States v. Guzman, 3 MJ 740, 742 (NCMR) (court declined to apply duress defense where accused claimed he went AWOL because he believed that his assigned duties would aggravate his eye injury), rev’d on other grounds, 4 MJ 115 (CMA 1977).

To establish the duress defense 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 harm 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.

RCM 916(h).

At common law the duress defense applied only to cases where the coercion was asserted by third persons. See W. LaFave & A. Scott, Substantive Criminal Law (Duress) § 5.3 at 614 (1986). A question remains whether a fair reading of RCM 916(h), its Discussion and Analysis (and cases cited therein), supports limiting the defense to its common-law application or rather to expanding the defense to include coercion from third persons or pressure from any physical or natural force. Many American jurisdictions follow the Model Penal Code guidelines which recommend a broader choice-of-evils defense that is not limited to any particular source of danger.¹

We need not resolve the issue whether RCM 916(h) was written broadly or narrowly because in this case we have no doubt that appellant was not entitled to an instruction on either defense.²

This case involves a wife who missed movement. Appellant’s testimony at trial indicates that she did so out of fear that her husband would have a heart attack at home in her absence without anyone to assist him. Unfortunately for appellant, statements she made prior to missing movement indicate that she did so because she did not like participating in field exercises. Even without considering appellant’s statements, the evidence of record plainly shows that appellant’s husband suffered atrial fibrillation, not a heart attack, and there is no evidence that her husband was in imminent or indeed any danger of suffering a heart attack. In fact, appellant’s husband was cleared for deployment to Saudi Arabia prior to appellant’s trial.

Based upon these facts appellant would not be entitled to an instruction on either the duress defense or the necessity defense because her alleged apprehension that her husband might suffer a heart attack at some unspecified time in the future satisfies neither the reasonableness nor the immediacy requirement of either defense. Further, and related to the immediacy part of the defense, there is no evidence that appellant tried to avoid committing the offense. Even if her husband was at risk of suffering a heart attack at some future date, the risk of his suffering an attack without assistance could be minimized by his wearing one of the electronic alert devices readily available on the open market.

We concur in the holding of the court below that the duress defense was not raised by the evidence and that the military judge did not err by refusing to give the requested instruction on the duress defense.

The decision of the United States Army Court of Military Review is affirmed.

Judge COX concurs.

1 . Model Penal Code § 3.02 provides:

(1) Conduct that the actor believes to be necessary to avoid a harm or evil to himself or to another is justifiable, provided that:

(a) the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged; and

(b) neither the Code nor other law defining the offense provides exceptions or defenses dealing with the specific situation involved; and

(c) a legislative purpose to exclude the justification claimed does not otherwise plainly appear.

(2) When the actor was reckless or negligent in bringing about the situation requiring a choice of harms or evils or in appraising the necessity for his conduct, the justification afforded by this Section is unavailable in a prosecution for any offense for which recklessness or negligence, as the case may be, suffices to establish culpability.

ALI Model Penal Code and Commentaries 8-9 (1985).

2 . In my view the plain language of RCM 916(h), Manual for Courts-Martial, United States, 1984, its Discussion and the Analysis (and cases cited therein) leads to the conclusion that the duress defense applies only to cases where the coercion is asserted by third persons. RCM 916(h), Discussion; RCM 916(h), Drafters’ Analysis, Manual, supra at A21-57 (Change 2). See generally cases holding that the duress defense was not raised: 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) (embezzlement by bank teller to cover daughter’s overdrafts to prevent daughter from committing suicide); Love v. State, 271 Ind. 473, 393 N.E.2d 178 (1979) (robbery for money to buy heroin to prevent drug withdrawal); State v. Gann, 244 N.W.2d 746 (N.D.1976) (robbery to provide family with food and shelter); Degler v. State, 741 P.2d 659 (Alaska App.1987) (robbery to secure funds to attend a custody hearing). In light of the difficulties to be encountered in applying the necessity defense, particularly in the absence of any legislative or executive guidance, I would decline to adopt the necessity defense by judicial fiat.