United States v. Yandle

34 M.J. 890, 1992 CMR LEXIS 157, 1992 WL 46912
CourtU.S. Navy-Marine Corps Court of Military Review
DecidedFebruary 7, 1992
DocketNMCM 90 3376
StatusPublished
Cited by5 cases

This text of 34 M.J. 890 (United States v. Yandle) is published on Counsel Stack Legal Research, covering U.S. Navy-Marine Corps 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. Yandle, 34 M.J. 890, 1992 CMR LEXIS 157, 1992 WL 46912 (usnmcmilrev 1992).

Opinion

STRICKLAND, Senior Judge:

Contrary to his pleas, appellant was convicted of conspiracy to commit robbery, robbery,1 and communicating a threat in violation of Articles 81, 122, and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 881, 922, and 934 respectively. He was sentenced by a court composed of officer and enlisted members to a dishonorable discharge, confinement for three years, and forfeiture of all pay and allowances. The convening authority approved the sentence as adjudged.

Appellant raises six assignments of error on appeal.2 Our resolution of this case requires that we address only two of these. In this case we conclude that the military judge erred in failing to give an instruction on voluntary intoxication as to the specific intent offenses of conspiracy to commit robbery and robbery. We further conclude that the Government proved appellant’s guilt beyond a reasonable doubt as to the offense of communicating a threat. The case will be remanded to the convening authority for further action.

The incidents giving rise to the charges occurred when appellant and two other Marines encountered a fourth Marine, the ultimate victim, in a local bar in Okinawa. The victim was obviously drunk3 and was acting in a manner the other three perceived to be obnoxious. Appellant and his two friends had also been drinking for an extended period of time and were consuming a substance known as “Mojo”, a concoction containing a mixture of bourbon, scotch, vodka, gin, rum, tequila, and Kool Aid. Ultimately, after the bar in which they were drinking closed, all four Marines ended up in an alley close to the bar where appellant and his two friends viciously beat the victim and took the victim’s wallet and leather jacket. Several months later, while this incident was still under investigation, appellant directed a threat against an employee of the bar in which everyone was drinking. He threatened to finish off this employee and burn down the bar if she identified him as a perpetrator in this matter.

Appellant asserts that sufficient evidence was raised at trial concerning his degree of intoxication such that the members were entitled to determine whether it may have affected his ability to form the necessary specific intent required to commit the offenses of conspiracy and robbery. Thus, he argues, it was incumbent on the military judge to instruct the members on the defense of voluntary intoxication. The Government contends that mere intoxication is not sufficient to require an instruction and that any intoxication of appellant had to be to the degree that it impaired his mental faculties to the point where he could not form the necessary specific intent. Alternatively, the Government argues that it was simply a defense tactic to not raise intoxication as a defense so as to exclude the possibility of the Government introducing damaging evidence of appellant’s possible involvement in other robberies, evidence which it contends could not have been admitted unless this defense was raised.

The military judge is required to instruct on any special defense in issue. Rule For Courts-Martial (R.C.M.) 920(e)(3), Manual for Courts-Martial (MCM), United States, 1984. A defense “includes any special de[892]*892fense which, although not denying that the accused committed the objective acts constituting the offense charged, denies, wholly or partially, criminal responsibility for those acts.” R.C.M. 916(a). A special defense is also called an “affirmative defense.” R.C.M. 916 Discussion.

Rule 916 specifically sets forth numerous special or affirmative defenses but voluntary intoxication is not among those listed. In fact, R.C.M. 916(Z) provides:

(1) Not defenses generally.
(2) Voluntary Intoxication. Voluntary intoxication, whether caused by alcohol or drugs, is not a defense. However, evidence of any degree of voluntary intoxication may be introduced for the purpose of raising a reasonable doubt as to the existence of actual knowledge, specific intent, willfulness, or a premeditated design to kill, if actual knowledge, specific intent, willfulness, or premeditated design to kill is an element of the offense.4

Despite this language, from which one might conclude that voluntary intoxication is treated differently than a special defense, military courts have nonetheless afforded voluntary intoxication the same status as delineated special or affirmative defenses in relation to the duty of the military judge to instruct the members. In United States v. Miller, 2 U.S.C.M.A. 194, 7 C.M.R. 70 (1953), the issue of appellant’s level of intoxication as it related to his possessing the requisite knowledge of the status of a superior officer was raised. The Court of Military Appeals stated:

[Wjhere affirmative defenses of this character are so closely related to the elements of the offense or offenses charged, and are fairly raised by the evidence, the law officer is under an independent duty to give necessary and appropriate instructions, and a defense failure to request will not be held to constitute waiver.

Miller, 7 C.M.R. at 71, 72.

A similar result was reached when the Army Court of Military Review held that it was prejudicial error for the military judge to fail to instruct vis-a-vis intoxication where the evidence reasonably raised the possibility that intoxication was of the extent to likely affect the accused’s ability to entertain the necessary specific intent. United States v. Garcia, 38 C.M.R. 638 (A.C.M.R.1969), pet. denied, 41 C.M.R. 638 (1969). Although not finding sufficient evidence to require the instruction, the Court of Military Appeals recently reaffirmed this principle in United States v. Watford, 32 M.J. 176 (C.M.A.1991). If an affirmative defense has been reasonably raised at trial, the sua sponte duty of the military judge to instruct the fact finders on the defense is unrelated to whether the defense counsel has requested such an instruction, United States v. Steinruck, 11 M.J. 322 (C.M.A.1981), or to whatever theory the defense advances at trial. United States v. Taylor, 26 M.J. 127 (C.M.A.1988).

Mere intoxication is insufficient to raise the defense; rather, the intoxication must be to such a degree that the accused’s mental faculties are so impaired that a specific intent cannot be formed. United States v. Parrish, 20 M.J. 665 (N.M.C.M.R. 1985). The defense is reasonably raised when the record contains some evidence to which the members can attach credence. Watford, 32 M.J. at 178. Any doubt as to whether the evidence raises a defense should be resolved in favor of the accused. Steinruck, 11 M.J. at 324.

Applying these principles to the case at bar, we find that the defense counsel’s failure to object to the omission of an instruction on voluntary intoxication by the military judge did not constitute waiver.5 [893]*893We reject the Government’s argument that the instruction was properly omitted because of “tactical reasons.” This is contrary to the law, see Taylor,

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Bluebook (online)
34 M.J. 890, 1992 CMR LEXIS 157, 1992 WL 46912, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-yandle-usnmcmilrev-1992.