United States v. Rine

18 C.M.A. 421, 18 USCMA 421, 40 C.M.R. 133, 1969 CMA LEXIS 774, 1969 WL 6028

• Court: United States Court of Military Appeals
• Decided: July 3, 1969
• Docket: No. 21,684
• Status: Published

Opinions

Opinion of the Court

.QÜIÑÑ, Chief Judge:

A chance meeting outside the Lucky Seven Bar in Udorn, Thailand, between the accused and Sergeant James Gold left Gold dead and the accused facing a charge of murder. A general court-martial convened at Clark Air Base, Republic of the Philippines, convicted the accused of the lesser offense of voluntary manslaughter, in violation of Article 119, Uniform Code of Military Justice, 10 USC § 919, and sentenced him to dishonorable discharge and confinement at hard labor for five years. On this appeal, the accused contends he was prejudiced by the law officer’s denial of a defense request to instruct on self-defense.

We need not review the law and the literature on the right to take the life of another in defense of one’s own person. See United States v Acosta-Vargas, 13 USCMA 388, 32 CMR 388. Also, we can disregard an apparent misapprehension by the law officer as to the necessity for instructions on inconsistent defenses,¹ and directly consider the evidence to determine if it reasonably raised self-defense as an issue.

Three persons testified about the fatal encounter. Two of these were Thai nationals, who testified as Government witnesses, and the third was the accused. All agree the accused was standing on the side of the road in front of the Lucky Seven Bar at about eleven o’clock on the night of March 23, 1968. According to the accused, he was considering whether to return to the Air Base. Sergeant Gold came down the road from another bar. One of the Thai witnesses, Prapan Kulton, testified Gold was carrying a beer bottle. As he came to where the accused stood, he either “bumped into” the accused, as the accused testified, or he “brushed shoulders” with the accused, as the Thais testified. What followed this contact is not clear. Prapan went into the Blue Heaven Bar, which was “beside” the Lucky Seven, and the other witness, Han Singbandit, admitted on cross-examination that he was “too far away” to see everything. At any rate, within the next three to five minutes, as estimated by the accused and Prapan, the accused and Gold stood near a pond at the roadside adjacent to the Lucky Seven Bar. Pra-pan had come out of the Blue Heaven Bar. Although there was enough light in the area to see “clearly,” he was about thirty meters away which was “too far” to enable him to “take a good look” at everything that transpired. Prapan further testified that Han was “standing close to” him in front of the Blue Heaven Bar, and he could not indicate the distance in the courtroom because the room was “too narrow” and Han “was standing far from Sergeant Riñe and” Gold.

The accused testified he tried to talk to Gold, but Gold appeared to be “dopey.” The Thai witnesses agree the accused and Gold appeared to be talking. The accused maintained that, as he faced Gold, he stood “with his palms down and hands open” and he did not have the knife out. Looking directly at Gold, he said: “Look here, man, we’re both clean, let’s — he never finished the sentence. Suddenly he was struck on the side of the head. The blow was so severe and so “sharp” that he thought “part of . . . [his] head was falling off.” Both Government witnesses testified they saw nothing in Gold’s hands at this moment of time, but Prapan admitted he had seen Gold with a beer bottle when he first met the accused and Han testified he saw Gold carrying a beer bottle just before he saw him with the accused at the pond. Also, Han testified he saw Gold throw a beer bot-tie at the accused when the accused finally ran from the scene.

The Government witnesses and the accused agree that the accused fell backward into the pond. There are some differences between Han and Prapan as to what then occurred, but the most direct evidence bearing upon the issue of self-defense comes from the accused and Prapan. The accused testified that he was dazed from the blow he received. As he “attempted to get . . . back up” he saw “an image of a man ... in front” of him. He got up and went “baelc to this man.” (Emphasis supplied.) Prapan testified that when the accused “got himself to his feet” he “rushed to” Gold. The accused admitted that as he got “back up,” he withdrew the knife from his pocket. Asked whether he had opened the knife, he answered: “No, sir, I didn’t.” Asked further whether he had stabbed “anybody with that knife” on the day of the incident he replied: “No, sir, I never stabbed anyone at any time.” Later, under questioning by a court member, he reiterated that as far as he knew he “didn’t stab anyone.”

A plea of self-defense is “in the nature of the admission of an assault and an avoidance of guilt because of the excuse . . . that such assault was in . . . [the accused’s] own necessary defense.” United States v Duckworth, 13 USCMA 515, 520, 33 CMR 47; see also United States v Wilson, 5 USCMA 783, 786, 19 CMR 79. Consequently, when an accused expressly and categorically denies he was in any way responsible for, or connected with, injury to the victim, his testimony constitutes not a plea in confession and avoidance, but reliance merely “upon the general issue” that he is not guilty. United States v Duckworth, supra, at page 521; United States v Wilson, supra; United States v Clansey, 7 USCMA 230, 22 CMR 20. As we read the accused’s testimony, he qii-qualifiedly insisted that he did not stab Gold. On his own admission, therefore, he was not motivated by any desire to protect his person. The law officer correctly ruled that self-defense was not in issue.

Sometime after the incident with Sergeant Gold, the accused appeared at the base dispensary. He was examined by a doctor. It appeared that he had a “cut or torn” ear and two superficial scratches, one on his chest, which extended for approximately fourteen inches, and the other in the back. Focusing on these, appellate defense counsel argue they were inflicted by Gold, and they constituted adequate provocation for self-defense. The difficulty with the argument is that it disregards the requirement that “one must in fact . . . fear imminent death or serious injury before he is entitled to resort to a dangerous weapon.” United States v Regalado, 13 USCMA 480, 484, 33 CMR 12. Disregarding the accused’s repeated denial that he exposed the blade of the knife, and giving credit to the testimony that he actually held an open knife in his hand, it nowhere appears that he stabbed Gold to protect himself from death or serious injury. The accused’s own testimony compellingly indicates that if Gold, in fact, struck him on the head, he did not pursue the accused when the accused fell into the pond. On the contrary, according to both the accused and Prapan, it was the accused who rushed at Gold, not vice versa. Retreat, of course, is not a sine qua non for reliance upon self-defense, but the failure to retreat, when retreat is feasible and the alleged attacker makes no effort to continue with his purported assault, weighs against the idea that recourse to a deadly weapon was necessary for one’s defense. Here, the accused’s testimony demonstrates that he not only rejected retreat as a reasonable alternative, but that he affirmatively elected to rush at Gold, who was several feet from him, and that he rushed at him with a knife. The accused’s own admissions lead irresistibly to the conclusion that he determined upon mutual affray, or he was resolved to retaliate for the blow purportedly inflicted upon him by Gold. Either alternative precludes a claim of self-defense. United States v Wilson, supra, at page 785. Consequently, even considering the nature and extent of the accused’s injuries, the law officer was correct in ruling that self-defense was not in issue.

The decision of the board of review is affirmed.

1 Individual defense counsel contended the evidence raised two defenses, self-defense and that the accused was in a “mentally incompetent state” resulting from a severe blow on the head administered by Gold. The law officer apparently believed these theories of defense were inconsistent and that instructions were not required on inconsistent defenses. However, inconsistent defenses can be interposed in a criminal case. United States v Snyder, 6 USCMA 692, 700, 21 CMR 14; United States v Harbin, 377 F2d 78 (CA4th Cir) (1967); Whittaker v United States, 281 F2d 631 (CA DC Cir) (1960); cf. United States v Farrington, 14 USCMA 614, 34 CMR 394, where defense counsel specifically requested that no instruction be given on self-defense to avoid impairment of the defense of alibi.