United States v. Brown , 65 M.J. 227 ( 2007 )

UNITED STATES, Appellee
v.
Kevin D. BROWN, Senior Airman
U.S. Air Force, Appellant
No. 06-0857
Crim. App. No. 36195
United States Court of Appeals for the Armed Forces
Argued April 25, 2007
Decided June 22, 2007
BAKER, J., delivered the opinion of the Court, in which EFFRON,
C.J., and ERDMANN, STUCKY, and RYAN, JJ., joined.
Counsel
For Appellant: Captain Christopher L. Ferretti (argued);
Lieutenant Colonel Mark R. Strickland and Major Christopher S.
Morgan (on brief).
For Appellee: Captain Nicole P. Wishart (argued); Colonel
Gerald R. Bruce and Major Matthew S. Ward (on brief).
Military Judge: Print R. Maggard.
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Brown, No. 06-0857/AF
Judge BAKER delivered the opinion of the Court.
Appellant was a Senior Airman assigned to the 58th
Maintenance Operations Squadron at Kirtland Air Force Base, New
Mexico. Before a general court-martial composed of officer and
enlisted members, Appellant was tried for ten specifications
arising from three charges: willful damage to others’ property
(three specifications), assault (five specifications),
wrongfully communicating a threat and kidnapping in violation of
Articles 109, 128, and 134, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 909, 928, 934 (2000). Appellant pled guilty
to one of the three specifications under Article 109, UCMJ, and
was convicted contrary to his pleas regarding one other.
Appellant pled not guilty to the five assault specifications but
was convicted of one of these offenses. He pled not guilty to
both specifications under Article 134, UCMJ, and was found
guilty of wrongfully communicating a threat. Appellant was
sentenced to a bad-conduct discharge and confinement for twelve
months. The convening authority approved the sentence and the
United States Air Force Court of Criminal Appeals affirmed.
United States v. Brown, No. ACM 36195, 2006 CCA LEXIS 157, 2006
WL 1976241 (A.F. Ct Crim. App. Jun. 20, 2006).
We granted review of the following issue:
WHETHER APPELLANT’S CONTINGENT DECLARATION CONSTITUTES
COMMUNICATING A THREAT.
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We conclude that the United States Air Force Court of
Criminal Appeals did not err in finding Appellant’s declaration
a threat under Article 134, UCMJ. As a result, we affirm.
BACKGROUND
Appellant and Staff Sergeant (SSgt) S were involved in an
intermittent, intimate, and often combustible relationship
during the two-and-a-half years before Appellant communicated
the contested threat. In July 2003, SSgt S gave birth to a son,
the paternity of, and child support for, was often at the heart
of the friction between Appellant and SSgt S.
Appellant deployed to Iraq from November 2003 until January
2004. SSgt S testified that Appellant threatened to kill her
during an April 2004 argument in which Appellant expressed
indignation over SSgt S’s admitted lack of faithfulness to him
during his deployment.
Assistant trial counsel asked SSgt S about threats made in
the course of the argument:
Q. What did [Appellant] say?
A. He was just going on and on about how he
couldn’t believe that I did that to him and he
said that if he ever saw the guy again that he
would kill him and he said that if I wasn’t his
baby’s mother that he would kill me too and a few
minutes later he changed it and said that if my
son wasn’t there then I would be dead
. . . .
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Q. Now you mentioned [Appellant’s] comment . . .
that if you weren’t my baby’s mom, you would be
dead and he changed it later to if the baby
wasn’t here, you would be dead. How did that
comment make you feel?
A. I was scared to death. He had already [been
violent] that night and he’d never threaten[ed]
to kill me before.
On cross-examination, defense counsel continued to flesh out the
context in which Appellant’s statements were made:
Q. Now, you mentioned in your testimony that [Appellant]
stated to you that, “If I wasn’t the baby’s mother he would
kill you”, right?
A. He said, “If I wasn’t his baby’s mother then I would be
dead”.
Q. But you are his baby’s mother, correct?
A. Yes, I am.
Q. And then he changed his statement to say, “If the baby
wasn’t here, you’d be dead”, correct?
A. Yes, sir.
Q. But the baby was there, is that correct?
A. Yes, sir.
Appellant testified at trial and denied making any threats
against SSgt S. On appeal, he challenges the legal sufficiency
of the members’ guilty finding, contending the statements, even
if made, did not constitute a threat under Article 134, UCMJ.
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DISCUSSION
We review the legal sufficiency of findings of guilt using
the standard developed in Jackson v. Virginia, 443 U.S. 307(1979); see also United States v. Turner, 25 M.J. 324 (C.M.A.
1987). In Jackson, the Court held that:
The critical inquiry on review of the sufficiency of
the evidence to support a criminal conviction must be
not simply to determine whether the jury was properly
instructed, but to determine whether the record
evidence could reasonably support a finding of guilt
beyond a reasonable doubt. But this inquiry does not
require a court to ask itself whether it believes that
the evidence at the trial established guilt beyond a
reasonable doubt. Instead, the relevant question is
whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of
fact could have found the essential elements of the
crime beyond a reasonable doubt.
443 U.S. at 318-319 (1979)(citations omitted and emphasis
added).
The specification did not delineate the words of the
purported threat(s). At trial and again on appeal the
Government pointed to two separate alleged threats based upon
SSgt S’s testimony. First, the Government asserted that
Appellant’s statement to SSgt S that he would kill her if she
was not his baby’s mother, was a threat. Second, the Government
contended that Appellant’s statement that if his son (the baby)
was not present then he would kill SSgt S, was a threat. The
Court of Criminal Appeals held that the first statement did not
“amount to a present determination or intent to wrongfully
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injure SSgt S.” 2006 CCA LEXIS 157, at *7, 2006 WL 1976241, at
4. The Government did not certify an issue regarding this
conclusion. As a result, we address only the second statement
made by Appellant. See United States v. Adcock, 65 M.J. 18, 21
n.3 (C.A.A.F. 2007); United States v. Lewis, 63 M.J. 405, 412
(C.A.A.F. 2006) (citing United States v. Parker, 62 M.J. 459,
464 (C.A.A.F. 2006)).
The offense of communicating a threat requires the
Government to demonstrate beyond a reasonable doubt:
(1) that the accused communicated certain language
expressing a present determination or intent to
wrongfully injure the person, property, or
reputation of another person, presently or in
the future;
(2) that the communication was made known to that
person or to a third person;
(3) that the communication was wrongful; and
(4) that, under the circumstances, the conduct of
the accused was to the prejudice of good order
and discipline in the armed forces or was of a
nature to bring discredit upon the armed forces.
Manual for Courts-Martial, United States pt. IV, para. 110.b.
(2005 ed.) (MCM).
Appellant argues that the second threat does not evince a
“present determination” to harm SSgt S. Rather, the threat was
explicitly contingent on the absence of Appellant’s son, which
legally negated its threatening content.
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In support of this argument Appellant cites United States
v. Shropshire, 20 C.M.A. 374, 43 C.M.R. 214 (1971). A confined
inmate, Shropshire was restrained when he rattled his handcuffs
as a guard came near. The guard said, “Go ahead, Shropshire,
reach out and grab me and I’ll put you in the hospital.” 20
C.M.A. at 375, 43 C.M.R. at 215. Shropshire responded: “I have
more muscle in my little finger than you have in your whole body
and if you take this restraining gear off, I’ll show you what I
will do to you.” 20 C.M.A. at 374, 43 C.M.R. at 214. The
Shropshire Court held that the contingency (“if” the guard
removed the prisoner’s restraints) indicated a limitation on the
detainee’s action, a limitation that was solely in the hands of
the allegedly threatened guard. Specifically, the Court held,
“The words uttered expressed a contingency that neutralized the
declaration, since there was not a reasonable possibility the
uncertain event would happen . . . [No] reasonable guard would
have removed the restraining gear in order to permit an attack
on himself.” 20 C.M.A. at 375-76, 43 C.M.R. at 215-16.
Appellant claims that these facts parallel his case. In
Appellant’s view, the threat to kill SSgt S was conditioned on
the absence of a 10-month-old infant, and given that the child
was being held by SSgt S, in theory that absence could only have
come about if SSgt S chose to physically remove her child.
Accordingly, the statement was not a threat at all. Much as no
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reasonable guard would have acted to remove a threatening
prisoner’s restraints, no reasonable person would have removed
her baby so that she could return to test the veracity of the
threatened violence. According to Appellant, the “contingency .
. . neutralized the declaration, since there was not a
reasonable possibility the uncertain event would happen.”
Stropshire, 20 C.M.A.at 376, 43 C.M.R. at 216.
The Government disagrees with Appellant’s focus on the
presence or absence of a stated contingency in a communication,
a proposition for which the Government also relies on
Shropshire. The Shropshire Court cited a concurring opinion in
United States v. Humphrys, 7 C.M.A. 306, 22 C.M.R. 96 (1956), in
which Judge Latimer placed less emphasis on the grammatical and
linguistic structure of threats and contingencies and more on
the perceptions of a reasonable person.1 Thus, the Shropshire
Court noted that a threat exists “so long as the words uttered
could cause a reasonable person to believe that he was
wrongfully threatened.” Stropshire, 20 C.M.A. at 375, 43 C.M.A.
at 215. The Government also cites United States v. Phillips, in
which the Court put the matter more starkly, stating, “Our only
1
We recognize that Humphrys examined the issue of the
threatening purpose behind a contested statement rather than the
threatening nature of contested language itself. However, as
the Shropshire Court implies and both sides impliedly concede,
we find that analyzing whether the purpose behind a statement is
threatening requires a similar examination as to assessing
whether a statement itself is threatening.
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concern is whether a reasonable fact finder could conclude
beyond a reasonable doubt that a reasonable person in the
recipient’s place would perceive the contested statement by
appellant to be a threat.” 42 M.J. 127, 130 (C.A.A.F. 1995);
see also United States v. Cotton, 40 M.J. 93, 95 (C.M.A. 1994).
In this light, the Government argues that Appellant
misreads Shropshire, and in particular, misunderstands the role
of the guard in that case. For Appellant, the guard in
Shropshire was not legally threatened due to the near
impossibility of the stated threat from happening. However, for
the Government, the impossibility was not conditioned on the
words themselves, but rather the circumstances surrounding the
use of the words. The prison guard would have had to remove
Shropshire’s restraints before he could be harmed. Moreover,
the guard’s initial statement to the inmate indicated that he
did not feel physically threatened, at least not as long as
Shropshire was restrained. In other words, it was not the
literal words spoken that caused it not to be a threat, but
rather the surrounding circumstances in which the threat was
made.
Thus, in this case, the Government focuses on the fact that
unlike the guard in Shropshire, SSgt S was not solely in control
of the factors that may have rendered the statement truly
threatening. The Government contends that Appellant had the
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power to remove the infant from SSgt S’s arms and take him out
of the room so that Appellant could return and consummate his
threat. Or, given the infant’s age, the child himself could
potentially have crawled or walked to another room of his own
volition. The Government points to SSgt S’s testimony that she
became scared to put down her baby and that the only way she
felt safe was with her son on her lap. Moreover, the
“contingent fact” itself may have been threatening in tone.
Both parties rely on Shropshire, but with too close a focus
on certain sentences in the opinion and not enough focus on the
overall rationale. Shropshire itself recognizes the very middle
ground between text and context that both sides appear to have
overlooked. Indeed, even apart from Shropshire, this Court has
consistently ruled that examination of threats under Article
134, UCMJ, must pay due regard to any concretely expressed
contingency associated with a threat, while remaining aware that
all communication takes place within a context that can be
determinative of meaning. See, e.g., Cotton, 40 M.J. at 95
(“[b]oth the circumstances of the utterance and the literal
language must be considered”); United States v. Gilluly, 13
C.M.A. 458, 461, 32 C.M.R. 458, 461 (1963) (“the surrounding
circumstances may so belie or contradict the language of [a
seemingly threatening] declaration as to reveal it to be a mere
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jest or idle banter”). We reaffirm this long-standing principle
today. Context gives meaning to literal statements.
With respect to the specific threat uttered by Shropshire,
the Court concluded, “the words uttered expressed a contingency
that neutralized the declaration.” Shropshire, 20 C.M.A. at
376, 43 C.M.R. at 216. At the same time, the Court concluded
that “so long as the words uttered could cause a reasonable
person to believe that he was wrongfully threatened” contingent
words could communicate a threat under Article 134, UCMJ. 20
C.M.A. at 375, 43 C.M.R. at 215. Thus, the Court indicated “the
understanding of the person to whom the statement is
communicated and the circumstances of the communication may be
significant in contradicting or belying the language of the
declaration.” Id. We hasten to add that this latter statement
cuts both ways.
Consider the following examples. If a drunken, forty-year-
old bar patron wields an axe while running around menacingly
shouting that if he were twenty years old he would kill a
proximate individual, a legalistic analysis of the words of the
threat would result in a conclusion that no threat existed. A
forty-year old can never be a twenty-year-old and thus the
impossible contingency would presumably negate the threat.
This, however, is somewhat nonsensical. It belies the fact that
the individual is nonetheless behaving and speaking in a
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threatening manner despite the stated explicit contingency that
seemingly limits the forty-year-old’s ability to consummate the
threat.2
That the opposite is true, in which clearly non-contingent
threats are not legally threatening, is also plain. If someone
were to approach a putative victim and coldly stare her down
while solemnly stating that he was going to kill her within the
next five minutes, it would seem that the elements of the
offense of communication of a threat would be met in spades.
However, if we learn that the “threatening” individual is a
small child with no clear ability to consummate his threat, or
if the threatening individual has a history of tantrum threats
but has never acted on them, the calculus of the alleged threat
changes. To not engage in such a recalibration in light of
present circumstances and past behavior would fail the
“straight-face” test. Francisco v. Comm’r, 370 F.3d 1228, 1231
(D.C. Cir. 2004); see also Humphrys, 7 C.M.A. at 311, 22 C.M.R.
at 101 (Latimer, J., concurring) (allegedly threatening language
was deemed nonthreatening because, inter alia, witnesses agreed
that when the statements were made, the accused was in a highly
emotional, almost irrational state); United States v. Davis, 6
C.M.A. 34, 37, 19 C.M.R. 160, 163 (1955)(suggesting the defense
2
We leave aside whether the individual in such a circumstance
could also be charged with assault under Article 128, UCMJ.
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of “jest” can be available to the charge of making a threatening
statement regardless of the explicitly threatening language used
in the contested communication); see also United States v.
Rutherford, 4 C.M.A. 461, 463, 16 C.M.R. 35, 37 (1954).
The words communicated certainly matter because they are
the starting point in analyzing a possible threat. But words
are used in context. Divorcing them from their surroundings and
their impact on the intended subject is illogical and unnatural.
Legal analysis of a threat must take into account both the words
used and the surrounding circumstances. Without such a subtle
examination absurd results might arise, defeating both the text
and purpose of paragraph 110.b. of the Manual for Courts-
Martial.
The Nature of the Threat in This Case
In the present context the literal words of the threat
consist of Appellant’s statement that he would kill SSgt S if
his son were not present. As discussed, the impossibility or
unlikelihood of this eventuality occurring is uncertain. It is
equally unclear exactly who in the exchange had the power to
make the contingency occur or prevent it from occurring. Even
if one concludes the words themselves are not sufficient to
constitute an unlawful threat, the combination of words and
circumstances are sufficient.
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For example, SSgt S testified that Appellant’s statement
that he would kill her was new in their exchanges. He “had
never said anything like that [before] and the way that he said
it . . . made [SSgt S] think that he would kill [her].”
Moreover, the statement was made within minutes of a violent
outburst by Appellant. The backdrop of significant violent
exchanges between Appellant and SSgt S provided further basis
for a reasonable person, including SSgt S in particular, to
consider the statement threatening.
The record indicates that the history of violence and
heated exchanges between the two was substantial:3
In October 2003 SSgt S and Appellant were involved in
such a raucous argument at SSgt’s apartment that the
police were called and SSgt S received a citation from
her landlord threatening eviction.
During the October 2003 exchange, Appellant threw his
cell phone against the wall, punched a hole in a door,
and grabbed SSgt S’s shirt . . . .
One month prior to the incident in question SSgt S and
Appellant had had another exchange which became
violent. Appellant punched a hole in SSgt S’s door
3
We recognize that Appellant was acquitted of some of the
violent acts most proximate to the contested statement (notably
the two specifications that alleged he had strangled SSgt S
twice immediately prior to making the threatening statement to
her), but we note without deciding that the fact that the
Government was unable to show Appellant committed these acts
beyond a reasonable doubt may not necessarily mean that the acts
could not meet a lower standard of proof allowing their use in
analyzing their impact on making the surrounding context of a
statement threatening. However, even apart from the acts of
which he was acquitted, there was enough uncontested history and
context to render the threat legally threatening.
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and another airman was forced to physically intervene
in order to halt further escalation of violence
between the two.
Moreover, at the time of the incident Appellant was
drinking (and had imbibed an unknown amount) and was
convicted of both unlawfully grabbing SSgt S’s
shoulder, pushing her up against the closet door and
refusing to unhand her, ripping SSgt S’s shirt, and
shattering SSgt S’s cell phone by smashing it against
the wall. Appellant had also hit the wall of SSgt S’s
bedroom with such force that a framed picture was
dislodged. Appellant seemed unconcerned that shards
of glass from the picture landed on his infant son and
Appellant subsequently further damaged the fallen
picture by picking it up and hitting it against a
chair.
Viewing these facts -- the words communicated and the
context within which the statement was made -- in the light most
favorable to the prosecution, it is clear that a rational trier
of fact could have found each element of the offense beyond a
reasonable doubt. Appellant expressed an intent to wrongfully
injure SSgt S, the statement was made known to SSgt S, the
statement was wrongful, and the statement was manifestly
prejudicial to the good order and discipline of the armed forces
or was of the nature to bring discredit upon the armed forces.
DECISION
The decision of the United States Air Force Court of
Criminal Appeals is affirmed.
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