United States v. Stanley , 71 M.J. 60 ( 2012 )

UNITED STATES, Appellee
v.
Aaron R. STANLEY, Sergeant
U.S. Army, Appellant
No. 11-0143
Crim. App. No. 20050703
United States Court of Appeals for the Armed Forces
Argued October 11, 2011
Decided March 22, 2012
ERDMANN, J., delivered the opinion of the court, in which RYAN,
J., and EFFRON, S.J., joined. BAKER, C.J., filed a separate
opinion concurring in part and in the result, in which STUCKY,
J., joined.
Counsel
For Appellant: Mary T. Hall, Esq. (argued); Captain John L.
Schriver (on brief); Captain Brent A. Goodwin.
For Appellee: Captain Julie A. Glascott (argued); Colonel
Michael E. Mulligan, Major LaJohnne A. White, Major Amber J.
Williams, and Captain Benjamin M. Owens-Filice (on brief);
Captain Frank E. Kostik Jr.
Military Judge: Timothy Grammel
This opinion is subject to revision before final publication.
United States v. Stanley, No. 11-0143/AR
Judge ERDMANN delivered the opinion of the court.
Sergeant Aaron R. Stanley pleaded guilty at a general
court-martial to wrongful possession of marijuana with the
intent to distribute, wrongful use and distribution of
methamphetamines on divers occasions, absence without leave,
violating a lawful order of a noncommissioned officer, and
adultery, in violation of Articles 112a, 86, 92, and 134,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 912a, 886,
892, 934 (2006). Stanley pleaded not guilty to two
specifications of premeditated murder and one specification of
conspiracy to commit murder in violation of Articles 118 and 81,
UCMJ, 10 U.S.C. §§ 918, 881 (2006). He was found guilty of all
charges except the conspiracy charge and a panel sentenced him
to a reprimand, reduction to E-1, forfeiture of all pay and
allowances, confinement for life without the eligibility for
parole, and a dishonorable discharge. The convening authority
approved the adjudged sentence except for the reprimand, and
ordered that Stanley be credited with 271 days of confinement
credit. The United States Army Court of Criminal Appeals (CCA)
affirmed the findings and the sentence. United States v.
Stanley, No. ARMY 20050703, 2010 CCA LEXIS 348, 2010 WL 3927478(A. Ct. Crim. App. Sept. 29, 2010).
We granted review of this case to determine if the military
judge erred by not including the principle of escalation of
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United States v. Stanley, No. 11-0143/AR
force in the self-defense instructions provided to the members.1
A military judge is required to instruct members on any
affirmative defense that is “in issue,” and a matter is
considered “in issue” when “some evidence, without regard to its
source or credibility, has been admitted upon which members
might rely if they chose.” United States v. Lewis, 65 M.J. 85,
87 (C.A.A.F. 2007) (citation and quotation marks omitted). We
hold that the military judge did not err in excluding the
principle of escalation of force in the self-defense
instructions to the members as the principle was not “in issue.”
Background
Stanley, Staff Sergeant Matthew Werner, Sergeant Eric
Colvin, and Specialist Christopher Hymer were all involved in a
criminal enterprise to grow marijuana and manufacture
methamphetamines at a farmhouse rented by Stanley. In the days
leading up to September 13, 2004, the day Stanley killed Werner
1
We granted review of the following issue:
Whether the military judge’s instructions on self-
defense were incorrect and incomplete, and if so,
whether the lower court erred in concluding that
this constituted harmless error.
United States v. Stanley, 70 M.J. 36 (C.A.A.F. 2011) (order
granting review). We also specified an issue regarding the
Article 134, UCMJ, adultery offense in view of our decision in
United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011). United
States v. Stanley, 70 M.J. 270 (C.A.A.F. 2011) (order granting
review). The specified issue is addressed in the decretal
paragraph.
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United States v. Stanley, No. 11-0143/AR
and Hymer at the farmhouse, the four had been using large
amounts of methamphetamines with little or no sleep.
Prior to the incident at the farmhouse, Werner had made
death threats against Stanley because he thought Stanley had
slept with his wife. In addition, Werner threatened to report
their drug activities at the farmhouse to the authorities.
Concerned about Werner’s threat to call the police, Stanley and
Colvin went to the farmhouse to destroy the drugs. Because of
Werner’s death threats, Stanley went to the farmhouse that night
expecting a conflict with Werner and had armed himself with a
pistol. When they arrived Stanley and Colvin hid Colvin’s truck
and went into the farmhouse. Both were armed with firearms.
When Werner and Hymer arrived at the farmhouse Stanley hid in a
closet where the group stored firearms. The record demonstrates
that the incident that followed Werner’s and Hymer’s arrival at
the farmhouse was a rapidly evolving, chaotic situation.2
Colvin allowed Werner and Hymer to enter the farmhouse
after they claimed they were not armed. Werner accused Colvin
of sleeping with his wife and he and Colvin got into a fight
2
Stanley repeatedly testified as to the rapidity of the events
at the farmhouse using such words as “super fast,” “extremely
fast,” “really fast,” “split second,” and “instantly.”
Moreover, there is nothing in Stanley’s rendition of the facts
that supports a theory that this fast moving, chaotic affray was
a series of discrete altercations.
4
United States v. Stanley, No. 11-0143/AR
with Werner grabbing a kitchen knife and cutting Colvin’s ear.
Colvin was able to disarm Werner but then Hymer joined the fray
and Colvin called to Stanley for assistance. While the
introduction of the knife to the conflict by Werner did escalate
the level of the conflict to that of deadly force, Colvin
successfully disarmed Werner. Before Stanley entered the
kitchen the conflict between Colvin and Werner had become a
physical altercation not involving deadly force.
Stanley then came out of the closet armed with at least a
pistol, and, according to Colvin a rifle, and held Werner and
Hymer at gunpoint. Stanley retained the pistol while he
searched the two for weapons (which he did not find). During
this period Hymer grabbed a rifle that Stanley had left in the
kitchen and fired at Stanley. Stanley then returned fire with
his pistol, killing Hymer. Stanley claimed that Werner then
attempted to stab Colvin from behind so he shot and killed
Werner in defense of Colvin, a version of the event that Colvin
disputed.
Before the CCA, Stanley relied mainly on United States v.
Dearing, 63 M.J. 478 (C.A.A.F. 2006), and Lewis, 65 M.J. 85, and
argued that the military judge erred by failing to properly
instruct the panel regarding Stanley’s right during mutual
combat to exercise self-defense when the force used against him
escalated. Although the CCA did note the differences between
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United States v. Stanley, No. 11-0143/AR
the instant case and Dearing and Lewis, it concluded that “we do
not, and need not decide whether the military judge erred in
this case. Assuming arguendo that the military judge’s
instructions were inadequate, we are convinced beyond a
reasonable doubt that the error did not contribute to the
appellant’s conviction or sentence.” 2010 CCA LEXIS 348, at
*10-*11, 2010 WL 3927478, at *4.
Discussion
Military judges have substantial discretionary power in
deciding on the instructions to give. However, when an
affirmative defense is raised by the evidence, an instruction is
required. United States v. McDonald, 57 M.J. 18, 20 (C.A.A.F.
2002). Whether a panel was properly instructed is a question of
law reviewed de novo. United States v. Ober, 66 M.J. 393, 405
(C.A.A.F. 2008).
Self-defense is an affirmative defense found in Rule for
Courts-Martial (R.C.M.) 916(e)(1). It consists of two elements:
(A) Apprehended, on reasonable grounds, that
death or grievous bodily harm was about to be
inflicted wrongfully on the accused; and
(B) Believed that the force the accused used was
necessary for protection against death or grievous
bodily harm.
An affirmative defense is raised by the evidence when “some
evidence, without regard to its source or credibility, has been
admitted upon which members might rely if they chose.” Lewis,
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United States v. Stanley, No. 11-0143/AR
65 M.J. at 87 (citations and quotation marks omitted). As we
explained in United States v. Schumacher:
[T]he military judge must answer the legal question of
whether there is some evidence upon which members
could reasonably rely to find that each element of the
defense has been established. This test is similar to
that for legal sufficiency. Cf. Jackson v. Virginia,
443 U.S. 307, 319 (1979); see United States v. Black,
3 C.M.A. 57, 60, 11 C.M.R. 57, 60 (1953) (“Assuming
the truth of each statement made by the accused in
explanation of his actions, we conclude that neither
of the distinguishing factors of voluntary
manslaughter were shown.”).
70 M.J. 387, 389-90 (C.A.A.F. 2011).
The question before this court is whether there was “some
evidence” that either Werner or Hymer escalated the level of
force in the conflict that occurred at the farmhouse that would
justify Stanley’s use of deadly force. If so, Stanley was
entitled to a self-defense instruction that was tailored to
include the principle of escalation of force. R.C.M. 920(a)
Discussion; Ober, 66 M.J. at 405.
We initially note that the defense did not object to the
military judge’s instructions at trial in this case. However,
waiver does not apply to “‘required instructions’ such as . . .
affirmative defenses[.]” United States v. Davis, 53 M.J. 202,
205 (C.A.A.F. 2000) (quoting United States v. Taylor, 26 M.J.
127, 128 (C.M.A. 1988) (alteration in original). While the
escalation of force instruction was not waived by Stanley, the
instruction was not warranted under the facts in this case.
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United States v. Stanley, No. 11-0143/AR
In United States v. Cardwell, 15 M.J. 124, 126 (C.M.A.
1983), the court stated that “[t]he theory of self-defense is
protection and not aggression, and to keep the two in rough
balance the force to repel should approximate the violence
threatened.” See also Dearing, 63 M.J. at 483. The court also
stated in Cardwell that “[e]ven a person who starts an affray is
entitled to use self-defense when the opposing party escalates
the level of the conflict.” Cardwell, 15 M.J. at 126 (citations
omitted).
“‘Deadly force’ may be defined as force . . . which [its
user] knows creates a substantial risk of death or serious
bodily injury to [another].” 2 Wayne R. LaFave, Substantive
Criminal Law § 10.4(a), at 144 (2d ed. 2003) (citing Model Penal
Code § 3.11(2)). Under the circumstances of this case, Stanley
escalated a conflict involving a physical altercation between
Werner and Colvin into one involving the use of deadly force
when he came out of the closet and held Hymer and Werner at gun
point, and then used the weapon to subdue them and to forcibly
search them for weapons.3 Although the fact that Hymer picked up
3
Compare, e.g., United States v. Moore, 15 C.M.A. 187, 194, 35
C.M.R. 159, 166 (1964) (“one is not per se deprived of the right
to act in self-defense by the fact that he has armed himself and
again sought out his assailant”), and United States v. Black, 12
C.M.A. 571, 575, 31 C.M.R. 157, 161 (1961) (“whether an accused,
by resort to a weapon, uses excessive force in repelling an
assault upon him is dependent upon all of the circumstances”),
with R.C.M. 916(e)(1)-(4) (providing limitations on the use of
force in self-defense), and 2 LaFave § 10.4(a).
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United States v. Stanley, No. 11-0143/AR
a rifle and shot at Stanley did constitute the use of deadly
force, at that point the level of the conflict had already been
escalated to one involving the use of deadly force by Stanley.
See R.C.M. 916(e); United States v. Peterson, 483 F.2d 1222,
1233 (D.C. Cir. 1973) (“One may deliberately arm himself for
purposes of self-defense against a pernicious assault which he
has good reason to expect. On the other hand, the true
significance of the fact of arming can be determined only in the
context of the surrounding circumstances.”) (citations omitted);
Wallace v. United States, 162 U.S. 466, 472 (1896) (“‘if [the
accused] was himself violating or in the act of violating the
law -- and on account of his own wrong was placed in a situation
wherein it became necessary for him to defend himself against an
attack made upon himself, which was superinduced or created by
his own wrong, then the law justly limits his right of self
defense, and regulates it according to the magnitude of his own
wrong’” (quoting Reed v. State, 11 Tex. Ct. App. 509, 517-18
(1882))); Cf. Peterson, 483 F.2d at 1233 (“an affirmative
unlawful act reasonably calculated to produce an affray
foreboding injurious or fatal consequences [holding another at
gunpoint] is an aggression which, unless renounced, nullifies
the right of homicidal self-defense”) (footnote omitted).
In regard to an escalation of force instruction involving
Stanley’s alleged defense of Colvin, Stanley had intervened in
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United States v. Stanley, No. 11-0143/AR
the fight between Werner and Colvin and Werner had been subdued
and searched by Stanley. The issue for the members was simply
whether Stanley was entitled to use deadly force in defense of
the alleged subsequent knife attack by Werner against Colvin.
R.C.M. 916(e)(5). That situation involved a classic self-
defense of another situation and escalation of force was not “in
issue.”
Our case law is clear -- an affirmative defense is “in
issue” when “some evidence, without regard to its source or
credibility, has been admitted upon which members might rely if
they chose.” Lewis, 65 M.J. at 87 (citations and quotation
marks omitted).4 In this case, the military judge correctly
concluded that self-defense was “in issue” because there was
“some evidence” in the record which the members could rely upon
if they chose. He properly provided detailed self-defense
instructions but did not instruct on the principle of escalation
of force because the record lacked any evidence that would
trigger his duty to provide such an instruction. In reviewing
this case, we agree with the conclusion of the United States
Court of Appeals for the District of Columbia in Parker v.
United States, 158 F.2d 185 (D.C. Cir. 1946), when it held:
4
We recognize that both Lewis and Dearing were decided after
Stanley’s trial. However, both cases find a basis in Cardwell.
Lewis, 65 M.J. at 88; Dearing, 63 M.J. at 483. Thus, this case
does not present a matter of new law, but rather the application
of existing law.
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United States v. Stanley, No. 11-0143/AR
[The self-defense instruction], we think, went as far
as appellant could ask, and, together with
instructions as to reasonable doubt and presumption of
innocence, fairly left to the [members] the question
whether the evidence as a whole was sufficient to show
that the fatal wound was or was not inflicted in self
defense.
Id. at 186 (footnote omitted). Having found no error, we need
not address the CCA’s analysis concerning prejudice.
Conclusion
The decision of the United States Army Court of Criminal
Appeals is affirmed except as to the findings of guilty to
Charge VI and its specification and the sentence. The portion
of the decision of the Court of Criminal Appeals affirming
Charge VI and its specification and the sentence is vacated.
The record is returned to The Judge Advocate General of the Army
for remand to the Court of Criminal Appeals for further
consideration in light of United States v. Fosler, 70 M.J. 225(C.A.A.F. 2011).
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United States v. Stanley, No 11-0143/AR
BAKER, Chief Judge, with whom STUCKY, Judge, joins
(concurring in part and in the result):
I agree with the majority’s ultimate conclusion that
Appellant was not entitled to an escalation of force
instruction. However, I would reach that conclusion for
distinct reasons.
In the end, there are only two people alive who know what
occurred in the farmhouse that day. They have presented
alternative versions of the events. Because Appellant’s legal
arguments are fact-based, in my view their analysis requires
careful review of the facts from both Appellant’s and Sergeant
(SGT) Colvin’s perspective. To simply conclude that Appellant
escalated the affray when he exited the closet with a weapon to
come to the aid of SGT Colvin avoids the legal question
presented: whether there was sufficient evidence before the
military judge to have warranted an escalation instruction,
regardless of whether this Court ultimately believes one version
of events or the other.
Only mutual combatants and aggressors may be entitled to an
escalation instruction; the initial point is that for the
reasons discussed below, under either Appellant’s or SGT
Colvin’s description of events, Appellant was neither an
aggressor nor a mutual combatant when he came out of the closet
armed with a gun. An individual who is entitled to act in self-
United States v. Stanley, No 11-0143/AR
defense may threaten a greater level of force than that which he
or she could actually use. See 2 Wayne R. LaFave, Substantive
Criminal Law § 10.4(a), at 144 n.9 (2d ed. 2003) (“mere display
of knife to deter onrushing attacker not deadly force” (citing
Douglas v. United States, 859 A.2d 641 (D.C. 2004))). Thus,
Appellant did not lose his right to self-defense when he exited
the closet with a weapon. Moreover, while he was not a mutual
combatant at this juncture, the fact that he exited the closet
with a weapon is not dispositive as to whether he was later
entitled to an escalation instruction. He was not entitled to
that instruction later because under either his version of
events or that of SGT Colvin, he was never a mutual combatant.
Staff Sergeant (SSG) Werner and Specialist (SPC) Hymer were
subdued or had fled at the point at which Appellant used deadly
force.
I. BACKGROUND
Appellant and three friends, SGT Colvin, SSG Werner, and
SPC Hymer grew marijuana and used and made methamphetamine in a
farmhouse leased by Appellant off base. All four soldiers had
been using methamphetamine with little or no sleep in the days
leading up to the murders. On September 13, 2004, SSG Werner,
believing that Appellant and/or SGT Colvin was/were sleeping
with his wife, threatened them. SSG Werner and SPC Hymer then
went to the farmhouse where they encountered Appellant and SGT
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United States v. Stanley, No 11-0143/AR
Colvin, who were in the process of disposing of the drugs at the
farmhouse.
The remaining essential facts regarding the sequence of
events at the farmhouse are in dispute, reflecting differences
in the testimony, and differing interpretations of the
testimony, of the two surviving soldiers, Appellant and SGT
Colvin. For the sake of clarity, the conflicting accounts are
recounted separately based on Appellant’s testimony and SGT
Colvin’s testimony at trial, respectively. It is this
testimony, Appellant argues, that gave rise to the necessity for
an escalation of force instruction. The Government also
introduced extensive forensic and physical evidence.
A. Appellant’s Testimony
Appellant testified consistent with the following account
at trial:
On the day of the murders, SSG Werner accused both SGT
Colvin and Appellant of sleeping with his wife and threatened to
kill Appellant and anyone who got in his way. SSG Werner also
threatened to inform the police of their drug operation if
Appellant did not face SSG Werner in person. Appellant and SGT
Colvin then went to the farmhouse to destroy evidence of the
drug operation. Appellant put marijuana in a garbage bag while
SGT Colvin smoked cigarettes. While there, SSG Werner and SPC
Hymer arrived and banged on the door and eventually got in.
3
United States v. Stanley, No 11-0143/AR
Appellant hid in a closet containing a number of guns, including
a .22 pistol and an 8mm Mauser rifle. While in the closet, he
peaked through a crack in the hinges and saw SPC Hymer walk by
with something black, which he thought was a gun, in his hand.
Appellant heard SGT Colvin call out for help and so he came
out of the closet carrying the pistol, which holds ten rounds in
the clip and one in the chamber. He aimed it at SPC Hymer and
told him not to move. SSG Werner and SGT Colvin were on the
floor fighting over a knife. SGT Colvin yelled that SSG Werner
had “stabbed him.” Appellant searched SPC Hymer for weapons,
partially pulling his pants down in the process, but he was
unarmed. He then searched SSG Werner for weapons and pulled his
sweatpants off to check that he was unarmed.
While Appellant was searching SSG Werner, SPC Hymer picked
up a rifle (8mm Mauser) that had been in the corner, pointed it
at Appellant, and pulled the trigger. The weapon dry fired.
Then SPC Hymer chambered a round and fired at Appellant as
Appellant was running away. Appellant came back and returned
fire at SPC Hymer while the latter was running away towards the
living room. He continued firing until SPC Hymer went down.
Seconds later, Appellant saw SSG Werner, who was on one or
two knees in the kitchen, attempting to stab SGT Colvin in the
back. SGT Colvin, who was on his knees facing in the direction
of Appellant and SPC Hymer, had his hands up and said “No” after
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United States v. Stanley, No 11-0143/AR
SPC Hymer was shot. Appellant shot SSG Werner, causing him to
fall backwards, until the gun was empty. Both victims died
shortly thereafter while Appellant went to get help.
B. SGT Colvin’s Testimony
SGT Colvin testified consistent with the following account
at trial:
On the day of the murders, SSG Werner accused Appellant of
sleeping with his wife and threatened to harm Appellant and SGT
Colvin. SSG Werner also threatened to inform the police of
their drug operation if Appellant did not face SSG Werner in
person. Appellant and SGT Colvin then went to the farmhouse to
destroy evidence of the drug operation; in the car Appellant was
waiving SGT Colvin’s .22 Buckmark pistol around saying they had
to get to the farmhouse. When they got there, SGT Colvin picked
up his 308 Remington 700 rifle; Appellant took the .22 pistol
and he had a slap jack (sap) in his back pocket.1 SGT Colvin
smoked cigarettes in the bathroom while Appellant gathered up
the drugs. Appellant went in and out of the house, tried to
flush drugs down the toilet, and gathered marijuana into a
garbage bag.
SSG Werner and SPC Hymer arrived and tried to get inside
the house but the chain was on the door. SGT Colvin let the two
1
According to SGT Colvin’s testimony, a slap jack is “a piece of
lead covered in leather, made to hit people in the head and
knock them out.”
5
United States v. Stanley, No 11-0143/AR
men in when they said they were unarmed and set the rifle he was
carrying down in the doorway to the pantry.
SSG Werner said that SGT Colvin and Appellant had slept
with his wife, which SGT Colvin denied doing. SSG Werner then
hit SGT Colvin in the forehead with a right-cross punch. SGT
Colvin hit him back with a right-cross punch. SSG Werner
grabbed a kitchen knife and cut SGT Colvin’s ear. After that,
SGT Colvin “tried to disarm” SSG Werner and tripped him so both
men were on the ground fighting. SGT Colvin was able to “beat
on [SSG Werner] until [he] got the knife out of his hand,” and
he threw the knife away. While they were fighting SPC Hymer
came over and started kicking SGT Colvin in the head.
At this point, SGT Colvin called out for help to Appellant.
This call caused SPC Hymer to leave the room and go to the
dining room and then the living room looking for Appellant.
Appellant came out of the closet with a pistol (.22 Buckmark
pistol) and rifle (8mm Mauser) and met SPC Hymer in the living
room and held him at gunpoint. SPC Hymer then walked backwards
into the kitchen with his hands up in a position of surrender.
Appellant set the rifle down in the doorway to the dining room
and searched SPC Hymer. He then searched SSG Werner, whom SGT
Colvin had been laying on top of, for weapons at the point of
his pistol. In the process, Appellant pulled SSG Werner’s
sweatpants off because SSG Werner had told SGT Colvin he had a
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United States v. Stanley, No 11-0143/AR
gun in his waistline. No gun was found on SSG Werner.
Appellant stepped back and tripped over SGT Colvin’s rifle,
which Appellant then went to throw on the porch. SGT Colvin
still had SSG Werner in the “hurt locker”2 at that time. SPC
Hymer then grabbed the rifle that Appellant had placed in the
corner.
SPC Hymer pointed the rifle at SGT Colvin and pulled the
trigger, but the rifle dry-fired. This caused SGT Colvin to get
off of SSG Werner, whom he had been laying on. Then SPC Hymer
chambered a round and fired at Appellant but missed, hitting the
wall instead. SPC Hymer immediately turned and started to run
into the dining room. Appellant came running from the porch and
fired at SPC Hymer until the latter’s legs gave out while he was
in the living room. SPC Hymer fell to the ground face down in
the entrance to the living room. Appellant shot SPC Hymer twice
more while he lay on his stomach, wounded and defenseless.
After he fired, Appellant said, “He’s fucking dead, he’s dead,”
in a loud, aggressive way.
Appellant walked back into the kitchen, stood at the feet
of SSG Werner, who was unarmed and in a prone position.
Appellant said “I didn’t fuck your wife and now you are going to
2
“Hurt locker” is a slang term for being in pain or in a place
in which a person does not want to be. See generally BBC News
Magazine, What Is a ‘Hurt Locker’?,
http://news.bbc.co.uk/2/hi/8555318.stm (last modified Mar. 8,
2010).
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United States v. Stanley, No 11-0143/AR
die.” SSG Werner put his hands up and said “[p]lease, man” in a
tone of fear. He fired at SSG Werner until the slide locked to
the rear, signifying that the ammunition was expended.
Appellant fired the gun downward from about his waist. By the
final shot, he had stepped forward and was shooting “almost
directly into [SSG Werner’s] face” with the gun held at
Appellant’s knee level. When the first shot was fired SSG
Werner’s head was “propped up against the wall”; as bullets were
coming SGT Colvin described that SSG Werner had his hands up
around his face.3 SGT Colvin described that, as SSG Werner was
being shot, SSG Werner’s head turned to the right and he
flinched up with his left shoulder a bit off the ground and his
chin moved to the right.
SGT Colvin yelled “Stanley!” and Appellant then pointed the
gun at SGT Colvin. SGT Colvin stood up and took the empty
pistol from Appellant’s hands and set it on the counter. Then
Appellant told SGT Colvin that they had to bury the two men, but
SGT Colvin said they had to get help. Appellant took SGT
Colvin’s truck to try and get help. SSG Werner died shortly
thereafter. SGT Colvin saw that SPC Hymer was still alive and
so he dragged him out to their truck and started driving to the
nearest town, but SPC Hymer stopped talking shortly thereafter.
3
At trial, SGT Colvin acted out what he had observed, and trial
counsel described this for the record.
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United States v. Stanley, No 11-0143/AR
C. At Trial
At trial, Appellant’s defense was that he acted in self-
defense after SPC Hymer fired the first shot and that he acted
in defense of another when he shot SSG Werner after seeing him
raise a knife and attempt to stab SGT Colvin. The Government
presented SGT Colvin’s version of events arguing that Appellant
shot the victims while they were defenseless. At the conclusion
of the evidence, the military judge provided both counsel with
the instructions he proposed to give and asked whether they had
any objections. Neither the Government nor Appellant objected.
The military judge then asked whether they requested any
additional instructions; the Government and Appellant responded
that they did not.
D. Military Judge’s Instruction
In addition to the standard instructions on self-defense
and defense of another, the military judge provided instructions
relating to provocation, mutual fighting, and withdrawal. The
relevant portions of the military judge’s instructions are as
follows:
There has been some evidence in this case concerning
the accused’s ability to leave or move away from his
assailants. A person may stand his ground when he is at a
place at which he has a right to be. Evidence tending to
show that the accused had or did not have an opportunity to
withdraw safely is a factor that should be considered along
with all other circumstances in deciding the issue of self-
defense. . . .
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United States v. Stanley, No 11-0143/AR
. . . .
There exists evidence in this case that the accused
may have been a person who intentionally provoked the
incident or was a person who voluntar[il]y engaged in
mutual fighting. A person who intentionally provoked an
attack upon himself or voluntarily engaged in mutual
fighting is not entitled to self-defense, unless he
previously withdrew in good faith. A person has provoked
an attack, and therefore given up the right to self-
defense, if he willingly and knowingly does some act
towards the other person reasonably calculated and intended
to lead to a fight or a deadly conflict. Unless such act
is clearly calculated and intended by the accused to lead
to a fight or a deadly conflict, the right to self-defense
is not lost. A person may seek an interview with another
in a non-violent way for the purpose of demanding an
explanation of offensive words or conduct or demanding
redress of offensive words or conduct or demanding redress
of a grievance without giving up the right to self-defense.
One need not seek an interview in a friendly mood. The
right to self-defense is not lost merely because the person
arms himself before seeking the interview.
The burden of proof on this issue is on the
prosecution. If you are convinced beyond a reasonable
doubt that the accused intentionally provoked an attack
upon himself so that he could respond by injuring or
killing Specialist Christopher Hymer or Staff Sergeant
Matthew Werner, or that the accused voluntarily engaged in
mutual fighting, then you have found that the accused gave
up the right to self-defense. However, if you have a
reasonable doubt that the accused intentionally provoked an
attack upon himself or voluntarily engaged in mutual
fighting then you must conclude that the accused retained
the right to self-defense, and then, you must determine if
the accused actually did act in self-defense.
Even if you find that the accused intentionally
provoked an attack upon himself or voluntarily engaged in
mutual fighting, if the accused later withdrew in good
faith and indicated to his adversary a desire for peace by
words, or actions, or both, and if Specialist Christopher
Hymer or Staff Sergeant Matthew Werner revived the conflict
or fight, then the accused was no longer voluntarily
engaged in mutual fighting or provoking an attack, and was
entitled to act in self-defense.
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United States v. Stanley, No 11-0143/AR
If you have a reasonable doubt that the accused
remained a person provoking an attack or a voluntary mutual
combatant at the time of the offense, you must find that
the accused did not lose the right to act in self-defense,
and then, you must decide if the accused acted in self-
defense.
The military judge also made clear that the instructions on
“provocateur and mutual combatant . . . and withdrawal that I
gave you for self-defense also apply to defense of another.”
Defense counsel did not object to these instructions.
E. Ruling of the Court of Criminal Appeals
Before the lower court, Appellant argued that the military
judge’s instructions were deficient because he failed to
instruct the members that a mutual combatant has the right to
escalate violence under certain circumstances without losing the
right to self defense and that “some mutual combatants may be
unable to withdraw, and therefore retain their right to self
defense.” United States v. Stanley, No. ARMY 20050703, 2010 CCA
LEXIS 348, at *8, 2010 WL 3927478, at *3 (A. Ct. Crim. App.
Sept. 29, 2010) (unpublished).
The CCA noted the differences between the instant case and
United States v. Dearing, 63 M.J. 478 (C.A.A.F. 2006), and
United States v. Lewis, 65 M.J. 85 (C.A.A.F. 2007), but
concluded that “we do not, and need not decide whether the
military judge erred in this case. Assuming arguendo that the
military judge’s instructions were inadequate, we are convinced
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United States v. Stanley, No 11-0143/AR
beyond a reasonable doubt that the error did not contribute to
the appellant’s conviction or sentence.” 2010 CCA LEXIS 348, at
*10, *11, 2010 WL 3927478, at *4. The CCA stated:
We believe SGT Colvin’s version of events because it
is consistent with the substantial forensic evidence
in this case. Admittedly, the defense exposed SGT
Colvin’s potential weaknesses in credibility, but
unlike appellant’s his version rings true on the most
important points concerning the murders themselves.
The position and direction of the wounds in the
victims, the blood spatter evidence, the location of
pooled blood, the location of shell casings throughout
the house, the absence of a knife in the vicinity of
SSG Werner when he was shot, and testimony from
recognized crime scene experts all support SGT
Colvin’s testimony.
Id. at *11, *12, 2010 WL 3927478, at *4. The CCA also noted
inconsistencies between statements made by Appellant at various
times as well as inconsistencies with the crime-scene and
forensic evidence. Id. at *12, *13, 2010 WL 3927478, at *5. It
ultimately concluded that the absence of the additional
instructions on escalation of force and inability to withdraw
“did not contribute to appellant’s conviction or sentence.” Id.
at *14, 2010 WL 3927478 at *5.
II. DISCUSSION
One who is a mutual combatant or initial aggressor is
generally not entitled to use self-defense. Rule for Courts-
Martial (R.C.M.) 916(e)(4); see United States v. O’Neal, 16
C.M.A. 33, 36-37, 36 C.M.R. 189, 192-93 (1966). This is because
“‘[b]oth parties to a mutual combat are wrongdoers, and the law
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United States v. Stanley, No 11-0143/AR
of self-defense cannot be invoked by either, so long as he
continues in the combat.’” O’Neal, 16 C.M.A. at 37, 36 C.M.R.
at 193 (quoting Rowe v. United States, 164 U.S. 546, 556
(1896)). Moreover, mutual combatants by definition are
considered to have implicitly or explicitly agreed to fight on
certain terms.
However, an initial aggressor or mutual combatant can
regain the right to self-defense when the opposing party
escalates the conflict, or where he withdraws from the conflict
and is reengaged. Lewis, 65 M.J. at 88-89. In such a case, the
accused is entitled to use that force reasonably necessary to
deter or defend against the opposing party’s use of escalated
force. If the accused reasonably apprehended that he would
suffer “death or grievous bodily injury,” id. at 89, he “is
entitled to use deadly force in his own defense, just as he
would be if, after initially attacking, he had withdrawn
completely from combat and was then attacked by his opponent.”
United States v. Cardwell, 15 M.J. 124, 126 n.3 (C.M.A. 1983).
For example, if A strikes B with a light blow, and B responds by
attempting to stab A, A is entitled to use reasonable force to
defend the attack. However, if the accused enters willingly
“into combat with the expectation that deadly force might be
employed, he is not allowed to claim self defense.” Id.13
United States v. Stanley, No 11-0143/AR
Finally, an instruction on self-defense does not
automatically require inclusion of language about escalation of
force. See, e.g., United States v. Martinez, 40 M.J. 426, 429-
30 (C.M.A. 1994) (military judge instructing for self-defense
but not escalation). An escalation instruction is only required
if the evidence in the case reasonably places escalation in
issue. This might occur, for example, where as in Dearing and
Lewis, a mutual combatant in a fist-fight is confronted by an
opponent who is joined by multiple allied opponents and the
mutual combatant has no opportunity to withdraw. Dearing, 63
M.J. at 480; Lewis, 65 M.J. at 86-87.
Whether the issue of escalation is raised in this case is
premised on the assumption that the accused was engaged in
mutual combat. See Lewis, 65 M.J. at 89. Otherwise, the
scenario presented is one of mere self-defense. In this case,
the parties do not dispute that the defense of self-defense was
affirmatively raised with respect to Appellant either acting in
his own defense or in the defense of SGT Colvin. The military
judge provided such an instruction. Appellant now argues, with
the benefit of appellate hindsight, that the facts reveal that
Appellant was engaged in mutual combat with SSG Werner and/or
SPC Hymer and there came a time, or times, when SSG Werner, SPC
Hymer, or both, escalated their use of force, such that the
members should have been instructed to consider whether
14
United States v. Stanley, No 11-0143/AR
Appellant was then entitled to respond as he did, by shooting
SPC Hymer and later shooting SSG Werner.
In order for Appellant to be entitled to an escalation
instruction, the evidence would need to support the theory that
he was at some point engaged in mutual combat with SSG Werner
and SPC Hymer and that his opponents escalated the use of force,
first when SPC Hymer seized a gun and attempted to shoot
Appellant and later when SSG Werner threatened to stab SGT
Colvin in the back. The majority opinion addresses this
question by concluding that because Appellant entered the affray
at the outset with a gun, there could be no opportunity for
escalation, regardless of the facts. If the affray is viewed as
one continuous event, this is a plausible explanation. But it
avoids the legal questions presented. First, it assumes,
without consideration of United States v. Moore, see discussion
infra note 5, that one who enters an affray with a gun cannot
under any circumstances regain the right of self-defense or find
him or herself in a context warranting an escalation
instruction. Second, it avoids the question of whether,
considering the alternative rendering of events offered by
Appellant, there came a time when the affray should have been
viewed as a series of altercations, at least one of which raised
sufficient evidence to warrant an escalation instruction.
15
United States v. Stanley, No 11-0143/AR
The question we must ask in reviewing the record in its
entirety is whether the military judge was required to
affirmatively instruct on the basis of the accused’s appellate
theory of escalation. To answer this question, we look in turn
at the facts surrounding the death of SSG Werner and then the
death of SPC Hymer.
As to SSG Werner
The facts in evidence as to how the fight between SSG
Werner and SGT Colvin started come from SGT Colvin’s testimony,
since both eyewitnesses agree that Appellant was not in the room
at that time. SGT Colvin testified at trial that he let SSG
Werner and SPC Hymer into the house because they said they were
unarmed. SGT Colvin then placed his rifle down in the doorway
to the pantry. SSG Werner accused SGT Colvin and Appellant of
having slept with his wife and then punched SGT Colvin in the
forehead. SGT Colvin hit SSG Werner back, and then SSG Werner
grabbed a kitchen knife and cut SGT Colvin’s ear.
For an escalation instruction to be required in the defense
of another case, the evidence would have to show that SGT Colvin
was a mutual combatant, that SSG Werner escalated the fight when
he cut SGT Colvin’s ear, and that the fight continued up to the
point when SSG Werner allegedly attempted to stab SGT Colvin in
the back. This argument is unpersuasive for two reasons, both
supported by uncontroverted evidence presented at trial.
16
United States v. Stanley, No 11-0143/AR
First, SGT Colvin was not a mutual combatant in the initial
fight with SSG Werner and therefore never lost his right to
self-defense, and thus Appellant did not lose his right to act
in defense of another. At the time when SSG Werner hit SGT
Colvin, the latter was unarmed and did not pose a threat to SSG
Werner. SSG Werner had been “circl[ing] around [SGT Colvin] and
just started threatening [him].” SGT Colvin was entitled to
respond with reasonably necessary force to the punch provided
that he reasonably believed that SSG Werner continued to pose a
threat. See R.C.M. 916(e)(3).4 Therefore, when SGT Colvin
4
R.C.M. 916(c)(3) provides:
It is a defense to any assault punishable under
Article 90, 91, or 128 and not listed in subsection
(e)(1) or (2) of this rule that the accused:
(A) Apprehended, upon reasonable grounds, that
bodily harm was about to be inflicted wrongfully on
the accused; and
(B) Believed that the force that accused used was
necessary for protection against bodily harm, provided
that the force used by the accused was less than force
reasonably likely to produce death or grievous bodily
harm.
The Discussion to R.C.M. 916(e)(4) clarifies the rule on
retreat:
Failure to retreat, when retreat is possible,
does not deprive the accused of the right to self-
defense if the accused was lawfully present. The
availability of avenues of retreat is one factor which
may be considered in addressing the reasonableness of
the accused’s apprehension of bodily harm and the
sincerity of the accused’s apprehension of bodily harm
17
United States v. Stanley, No 11-0143/AR
punched SSG Werner back, he did not lose his right to self-
defense. Neither did Appellant lose his right to come to the
defense of another with reasonable force. Thus, the appropriate
instruction at this point was defense of another without any
accompanying instruction on escalation of force.
Second, even if SGT Colvin were a mutual combatant in the
initial fight with SSG Werner, the affray did not continue
unabated from then until the later time when, according to
Appellant, SSG Werner allegedly tried to stab SGT Colvin in the
back. SGT Colvin testified that when SPC Hymer attempted to
shoot Appellant it “caused me to get off Staff Sergeant Werner.”
He also testified that, after the initial fight, SSG Werner had
become “submissive” and went “from biting [SGT Colvin] to just
laying there placid.” These uncontroverted facts show that the
fight between SGT Colvin and SSG Werner did not continue up to
the point when SSG Werner was shot. Such facts could give rise
to the necessity for an instruction on the right to self-defense
after SSG Werner attacked SGT Colvin with his fists and then a
knife. But the initial confrontation between SSG Werner and SGT
Colvin came to an end when Appellant came to the aid of SGT
Colvin and subdued SSG Werner. As a result, Appellant’s
escalation argument is not supported by the record.
and the sincerity of the accused’s belief that the
force used was necessary for self-protection.
18
United States v. Stanley, No 11-0143/AR
As to SPC Hymer
While he was fighting on the floor with SSG Werner, SGT
Colvin called out to Appellant. This caused Appellant to come
out of the closet, armed with at least a .22 pistol, which he
pointed at SPC Hymer. Appellant held SPC Hymer at gunpoint and
walked him back into the kitchen with his hands up. Appellant
searched SPC Hymer for weapons, partially pulling down his pants
in the process. At that point, SPC Hymer was unarmed and either
sitting or lying down on the ground. Appellant testified at
trial that, after checking SPC Hymer for weapons, he did not
consider him a threat: “I thought Hymer was cool, that he was
just there. He wasn’t a threat to me.” Appellant also
described SPC Hymer as “laying on his stomach with his hands out
. . . much like you would do when you put an enemy prisoner of
war on the ground”; he had his hands “up above his head . . .
palms to the floor.” At that point, SPC Hymer no longer posed
an immediate threat to Appellant or SGT Colvin.
Once SPC Hymer had been disarmed and was either sitting or
lying down on the ground, his participation in the initial fight
ended. Thus, when SPC Hymer grabbed the rifle in the corner and
fired at Appellant, he began a new fight. Whatever he was
before this point, Appellant could not now have been engaged in
mutual combat. Therefore it was not possible for SPC Hymer to
escalate the fight. That Appellant was in the process of
19
United States v. Stanley, No 11-0143/AR
disarming SSG Werner when SPC Hymer fired at him does not change
the fact that Appellant and SPC Hymer were not mutual
combatants, since SPC Hymer had been subdued and was no longer a
participant in the fight with Appellant or SGT Colvin.
In any event, the parties agree that, when SPC Hymer
committed a new assault by firing on Appellant, Appellant had
the right to defend himself. Appellant then fled from the house
onto the porch, without pursuit from SPC Hymer. In such
context, it is not clear how Appellant could then be entitled to
an escalation instruction, when it was Appellant who then
reentered the farmhouse to fire upon SPC Hymer.
For the foregoing reasons, the military judge did not abuse
his discretion in instructing the members. I agree that we need
not address the second clause of the granted issue and the CCA’s
harmless error analysis.
The Court’s Opinion in this Case
The Court’s analysis divides at the point at which
Appellant exits the closet. The majority concludes that at this
point the question of an escalation instruction was over because
it was Appellant who escalated the conflict when he exited the
closet with a gun. However, as discussed earlier, the record
does not show that Appellant was then an aggressor or mutual
combatant. When he exited the closet, displayed the weapon, and
subdued SSG Werner and SPC Hymer, if anything, he deescalated
20
United States v. Stanley, No 11-0143/AR
the situation. Moreover, Appellant’s exiting the closet with a
gun and search of SPC Hymer and SSG Werner did not constitute
the “use” of deadly force. Though Appellant may not have been
legally authorized to use deadly force when he came out of the
closet, his display of deadly force appears to have been
justified under either Appellant’s or SGT Colvin’s recitation of
events.
The Court’s opinion suggests that Appellant was unjustified
in offering deadly force and that therefore his display of a gun
upon exiting the closet and his search of SPC Hymer and SSG
Werner somehow constituted the “use” of deadly force. In this
regard, the Court’s reliance on United States v. Peterson, 483
F.2d 1222 (D.C. Cir. 1973), is misplaced since the facts are
completely different from the facts in this case.
In Peterson, the victim and two friends were attempting to
remove windshield wipers from the defendant’s wrecked car. Id.
at 1225. When the defendant saw them, a verbal altercation
ensued. Id. The defendant went back into the house and got a
pistol. Id. The victim and his friends were attempting to
leave when the defendant came out and pointed the gun at the
victim and said if he left he would shoot him. Id. The victim
threatened the defendant with a lug wrench, and the defendant
proceeded to shoot the victim, killing him. Id. at 1225-26.
Although there was some dispute on the details of what happened,
21
United States v. Stanley, No 11-0143/AR
the evidence was “uncontradicted that when [the defendant]
reappeared in the yard with his pistol, [the victim] was about
to depart the scene.” Id. at 1232 (footnote omitted).
The facts in Peterson simply do not correlate to the facts
in this case. The defendant in Peterson, having retreated to a
place of safety, then committed an “affirmative unlawful act
reasonably calculated to produce an affray foreboding injurious
or fatal consequences” when he returned from the house with a
pistol and threatened to kill the victim -- who was about to
leave -- if he moved. Id. at 1233. In this case, it is
uncontested that SSG Werner had previously threatened to kill
Appellant and that Appellant came out of the closet only after
he heard SGT Colvin cry out for help. The majority does not
explain how Appellant’s coming out of the closet to aid his
friend, who had just been cut in the ear with a knife,
constitutes an “affirmative unlawful act reasonably calculated
to produce an affray foreboding injurious or fatal
consequences.” Id.It is well established that the mere threat of the use of
deadly force is not the same as the actual use of deadly force.5
5
It is also well established that a defendant who comes armed to
an interview does not automatically lose his right to self-
defense. United States v. Moore, 15 C.M.A. 187, 193-94, 35
C.M.R. 159, 165-66 (1964) (“It is settled law, therefore, that
one is not per se deprived of the right to act in self-defense
22
United States v. Stanley, No 11-0143/AR
Deadly force means “force that the actor uses with the purpose
of causing or that he knows to create a substantial risk of
causing death or serious bodily injury.” Model Penal Code
§ 3.11(2) (1962). Thus, a person is said to use deadly force if
he fires at another with the intent to kill or do serious bodily
harm even though he misses or only causes minor injury.
Threatening death or serious bodily harm, without intention of
carrying out the threat, does not constitute the use deadly
force. Douglas, 859 A.2d at 642; 2 LaFave, supra § 10.4(a).
Thus, “one may be justified in pointing a gun at his attacker
when he would not be justified in pulling the trigger.” 2
LaFave, § 10.4(a), at 144 (citing United States v. Black, 692
F.2d 314 (4th Cir. 1982); Stewart v. State, 672 So.2d 865 (Fla.
App. 1996); Commonwealth v. Cataldo, 668 N.E.2d 762 (1996);
State v. Moore, 729 A.2d 1021 (1999)).
A person who reasonably believes that an attacker is about
to inflict any bodily harm may lawfully defend him or herself by
offering to use deadly force, even though the person would not
be entitled to actually use deadly force. R.C.M. 916(e)(2) (“It
is a defense to assault with a dangerous weapon or means likely
to produce death or grievous bodily harm that the accused: (A)
Apprehended, on reasonable grounds, that bodily harm was about
by the fact that he has armed himself and again sought out his
assailant.”).
23
United States v. Stanley, No 11-0143/AR
to be inflicted wrongfully on the accused; and (B) In order to
deter the assailant, offered but did not actually apply or
attempt to apply such means or force as would be likely to cause
death or grievous bodily harm.”); United States v. Marbury, 56
M.J. 12, 19 (C.A.A.F. 2001) (Gierke, J. dissenting). Therefore,
regardless of whether SSG Werner still had the knife when
Appellant entered the kitchen, Appellant would have been
entitled to display deadly force if he feared any bodily harm to
himself or to SGT Colvin at that point. The majority opinion
conflates the concept of the display of a dangerous weapon with
the concept of the use of deadly force. Consequently, I
disagree that the record in this case supports the contention
that, when SPC Hymer picked up the rifle and shot at Appellant,
Appellant “had already . . . escalated [the conflict] to one
involving the use of deadly force.” See United States v.
Stanley, __ M.J. __ (9) (C.A.A.F. 2012). Moreover, Appellant’s
arguments warrant a careful review of the facts, from both
witnesses’ perspectives, before reaching a conclusion that there
was insufficient evidence to warrant an escalation instruction.
III. CONCLUSION
For the foregoing reasons, I concur in the result and would
therefore affirm the decision of the United States Army Court of
Criminal Appeals on that basis.
24