United States v. Dearing

UNITED STATES, Appellee
v.
Brian DEARING, Operations Specialist Seaman
U.S. Navy, Appellant
No. 05-0405
Crim. App. No. 200100291
United States Court of Appeals for the Armed Forces
Argued March 1, 2006
Decided September 18, 2006
GIERKE, C.J., delivered the opinion of the Court, in which
EFFRON and ERDMANN, JJ., joined. BAKER, J., filed a separate
opinion concurring in the result. CRAWFORD, J., filed a
dissenting opinion.
Counsel
For Appellant: David P. Sheldon, Esq. (argued); Lieutenant
Stephen C. Reyes, JAGC, USNR (on brief); Philip Sundel, Esq.
For Appellee: Major Wilbur Lee, USMC, (argued); Commander
Charles N. Purnell II, JAGC, USN (on brief); Captain Glen R.
Hines, USMC.
Military Judge: Clark A. Price
This opinion is subject to revision before final publication.
United States v. Dearing, No. 05-0405/NA
Chief Judge GIERKE delivered the opinion of the Court.
It is a “basic rule that instructions must be sufficient to
provide necessary guideposts for an ‘informed deliberation’ on
the guilt or innocence of the accused.”1 In this case, the
pivotal issue is whether the military judge failed to provide a
correct instruction pertaining to Appellant’s right to exercise
self-defense. The prosecution evidence presented Appellant as
the initial aggressor in a lethal altercation. But the defense
evidence presented actions of members of a hostile group that
arguably escalated the conflict, thereby permitting Appellant to
use reasonable force to defend himself. We hold that the
military judge erred in failing to instruct the panel on the
concept of escalation of the conflict as it relates the issue of
self-defense. This significant defect in the instruction
requires us to reverse the decision of the United States Navy-
Marine Corps Court of Criminal Appeals.2
This is not the only issue presently before this Court.3 We
also address Appellant’s assertion that he was denied a speedy
1
United States v. Anderson, 13 C.M.A. 258, 259, 32 C.M.R. 258,
259 (1962) (citing United States v. Landrum, 4 C.M.A. 707, 713,
16 C.M.R. 281, 287 (1954); United States v. Acfalle, 12 C.M.A.
465, 470, 31 C.M.R. 51, 56 (1961)); see also Anthony v.
Louisville & Nashville R.R. Co., 132 U.S. 172, 173 (1889) (“The
object of the instructions was to impart such information as
would govern the jury in their deliberations and guide to a
right conclusion in their verdict.”).
2
United States v. Dearing, 60 M.J. 892 (N-M. Ct. Crim. App.
2005).
3
This Court granted review on two issues:
2
United States v. Dearing, No. 05-0405/NA
post-trial and appellate review. We hold that Appellant was
denied his due process right to speedy post-trial and appellate
review and grant appropriate relief.
I. FACTS
A. General Background of the “Road Rage” Incident
Appellant’s alleged offenses arise from his involvement in
an on-base “road rage” fight. The incident implicated Appellant
and three friends, riding in two cars, and three victims with
four additional friends, also in two cars. Prior to this
incident, neither group knew the other group. Several of those
involved in this incident had been drinking alcohol that
evening. The actual incident lasted only a few minutes.
The lower court identifies the alignment of the adversaries
and the circumstances of the fight:
On the night of 18 September 1999, the appellant, his
girlfriend, Teresa Wilson, and two other friends, Fireman
(FN) Anthony S. Taylor, U.S. Navy, and his wife, Jennifer
Taylor, went to see a movie at the Norfolk, Virginia Naval
Base movie theater. The appellant and his girlfriend went
to the movie theater complex in the appellant’s black Isuzu
Amigo and the Taylor couple went separately in FN Taylor’s
black Dodge Avenger.
I. WHETHER THE MILITARY JUDGE ERRED BY FAILING TO PROPERLY
INSTRUCT THE PANEL REGARDING APPELLANT’S RIGHT AS AN
AGGRESSOR TO EXERCISE SELF-DEFENSE IN AN ESCALATION OF
FORCE SITUATION.
II. WHETHER APPELLANT WAS PROVIDED A TIMELY POST-TRIAL AND
APPELLATE REVIEW UNDER THE UNIFORM CODE OF MILITARY
JUSTICE AND THE UNITED STATES CONSTITUTION.
United States v. Dearing, 62 M.J. 226 (C.A.A.F. 2005).
3
United States v. Dearing, No. 05-0405/NA
On that same evening, MM3 Taylor and some of his
friends, Aviation Ordnanceman Airman Apprentice (AOAA)
Eldridge J. Wells, Jr., U.S. Navy, AOAN Keaton, and MMFN
Polydore and his date, Elizabeth Hargrave, saw the same
movie at the same theater. AOAA Wells and MM3 Taylor went
to the movie theater with AOAN Keaton in his black Honda
Accord, which AOAA Wells drove, and MMFN Polydore and his
date went separately in MMFN Polydore’s tan Mazda Protege.
Electrician’s Mate Third Class (EM3) Graham Charity, U.S.
Navy, and his girlfriend, Aviation Storekeeper Third Class
(AK3) Trisha Marshall, U.S. Navy, both friends of MMFN
Polydore and MM3 Taylor, were picked up very near the movie
theater by MMFN Polydore and his date, immediately after the
movie ended.
After the movie, all these individuals left the
theater in the same vehicles they arrived in, with the
exception of EM3 Charity and AK3 Marshall. Very shortly
thereafter, a deadly stabbing incident occurred between the
two movie-going parties in the Navy Exchange parking lot
near the movie theater.
As a result of what can only be described as a very
brief “road rage” incident, partly fueled by alcohol,
between some or all of the parties in the Dodge Avenger and
the Honda Accord after leaving the movie theater parking
lot, those parties shortly thereafter ended up in a verbal
confrontation in the Navy Exchange parking lot. For
whatever reason, the parties from both the Isuzu Amigo and
the Mazda Protege also pulled into the Navy Exchange parking
lot immediately following the other two vehicles. After the
dust settled, the appellant had stabbed MM3 Taylor to death,
and both MMFN Polydore and AOAN Keaton had also been
seriously stabbed.4
B. Trial Developments
A general court-martial composed of officer and enlisted
members was convened to consider charges against Appellant that
included unpremeditated murder, assault with intent to inflict
grievous bodily harm, assault with a dangerous weapon (a knife),
4
Dearing, 60 M.J. at 896.
4
United States v. Dearing, No. 05-0405/NA
and obstruction of justice.5 Appellant pleaded not guilty to all
the charged offenses.
At the court-martial, there was extensive testimony
regarding the involvement of several members of the group in
the fracas. The trial was essentially a credibility contest
that involved “finger pointing” at other people to establish
responsibility and culpability for this incident. In the
prosecution case-in-chief, witnesses presented Appellant as
both the aggressor and assailant in the fight. In his defense,
Appellant testified and explained his involvement in the
incident as his attempt to protect his girlfriend. Others also
testified in support of Appellant’s explanation of the
incident.
Appellant testified that after his girlfriend got involved
in a verbal dispute with the men from the other group, he
intervened in order to protect her by pushing the men away with
both hands. Appellant asserted that just as he raised his
hands, an unknown person, who was neither his own friend,
Anthony Taylor, nor his own girlfriend, hit him in the back of
the head.
Appellant further testified that he heard someone ask, “Do
you have a gun?” Appellant stated this statement made him
5
These offenses are punishable under Articles 118, 128, and 134,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 918, 928,
934 (2000), respectively.
5
United States v. Dearing, No. 05-0405/NA
concerned about his safety. Appellant explained that he saw
the trunk of the black Honda was open, and he believed that
someone had retrieved a weapon from it.
Appellant testified at this point he began fighting to
make his way out of the bad situation. As he was fighting with
one person, another person was hitting Appellant in the side,
and yet another person kicked him. Appellant complained that
he was pushed to the ground and grabbed around the neck as
another person hit him in the chest.
Appellant testified that he then remembered the knife he
had in his pocket, pulled it out, and stuck it out twice in an
upward thrust. In summary, Appellant asserted that he was
acting in self-defense to save his own life during the brutal
attack on him.
At the conclusion of the presentation of the evidence and
before the military judge instructed the panel, civilian trial
defense counsel asked the military judge to give an instruction
addressing the issue regarding escalation of the conflict as it
related to the defense of self-defense. Trial defense counsel
expressly relied on United States v. Cardwell6 as authority to
support his entitlement to the requested instruction. The
record discussion of this issue covers five pages of the record
of trial. The discussion ended with the military judge
6
15 M.J. 124 (C.M.A. 1983).
6
United States v. Dearing, No. 05-0405/NA
suggesting that the defense counsel, “Give [him] a piece of
paper on what you want.”
Complying with this direction, civilian defense counsel
proffered the following instruction:
Even if the accused was an aggressor, the accused is
entitled to use self-defense, if the opposing party
escalated the level of the conflict. Accordingly,
even if the accused was the aggressor, if the
opposing party escalated the conflict by placing the
accused in reasonable fear that he was at risk of
death or grievous bodily harm, the accused would then
be entitled to use deadly force in self-defense.
In support of the requested instruction, the defense argued
that even if Appellant were the initial aggressor, he was still
entitled to rely on the defense of self-defense if the opposing
party escalated the level of the conflict.
The military judge refused to give the requested
instruction and declined to address the issue of escalation of
the conflict. The military judge explained that in his view
“the instructions that I have drafted adequately cover the
issue.” He also opined that “the key explanation is in the
definition of aggressor.”
The military judge initially instructed the panel on the
defense of self-defense. Most relevant to this case, the
military judge gave the following instruction to address the
issue of Appellant being an aggressor and its implication on the
issue of self-defense:
7
United States v. Dearing, No. 05-0405/NA
There exists evidence in this case that the accused
may have been an aggressor. An “aggressor” is one
who uses force in excess of that believed by him to
be necessary for defense. There also exists evidence
that the accused may have voluntarily engaged in
mutual fighting. An aggressor, or one who
voluntarily engaged in mutual fighting, is not
entitled to self-defense unless he previously
withdrew in good faith.
Emphasis added. After hearing this instruction and
deliberating, the panel found Appellant guilty of the charged
offenses and adjudged a sentence to confinement for twenty-five
years, reduction to pay grade E-1, forfeiture of all pay and
allowances, and a dishonorable discharge. The convening
authority approved the sentence as adjudged.
C. Ruling of the Navy-Marine Corps Court of Criminal Appeals
The lower court held that the military judge’s instruction
to the members substantially covered the issues that the defense
requested to be covered.7 The lower court also concluded that
even if the defense-requested instruction had not been
substantially covered in the main charge to the members, the
military judge’s refusal to give the defense-requested
instruction on the escalation of violence did not deny Appellant
a fair trial because it did not deprive him of a defense or
seriously impair its effective presentation.8
7
Dearing, 60 M.J. at 899.
8
Id.
8
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II. DISCUSSION
A. Evaluation of Whether the Military Judge’s Self-Defense
Instruction Adequately Addressed the Issue of Escalation of the
Conflict
Rule for Courts-Martial (R.C.M.) 920(e)(3) provides:
“Required instructions. Instructions on findings shall include
. . . (3) A description of any special defense under R.C.M. 916
in issue[.]” As self-defense is a special defense identified in
R.C.M. 916, if this defense was at issue in this case, the
military judge was obligated to give a correct instruction on
self-defense.9
This Court has stated, “The touchstone against which we
measure the validity of the military judge’s refusal to give an
instruction on self-defense is whether there is in the record
some evidence from which a reasonable inference can be drawn
that the affirmative defense was in issue.”10 In light of
Appellant’s testimony in the present case, there was “some
evidence” to raise the issue of self-defense. Indeed, the
9
See United States v. Martinez, 40 M.J. 426, 431 (C.M.A. 1994)
(stating that “the court members were not given a correct legal
framework for evaluating appellant’s claim of self-defense”);
United States v. Jones, 3 M.J. 279, 280-81 (C.M.A. 1977) (“[T]he
primary obligation to adequately instruct on a material issue
[here self-defense] lies with the military judge.”); see
generally United States v. Groce, 3 M.J. 369, 370-71 (C.M.A.
1977) (stating that the multiple duties of the military judge
include a duty to tailor his instructions to fit the facts of
the case).
10
United States v. Richey, 20 M.J. 251, 253 (C.M.A. 1985)
(quoting United States v. Black, 12 C.M.A. 571, 574, 31 C.M.R.
157, 160 (1961), quoting United States v. Ginn, 1 C.M.A. 453,
457, 4 C.M.R. 45, 49 (1952)) (quotation marks omitted).
9
United States v. Dearing, No. 05-0405/NA
parties agree that the testimony of Appellant warrants an
instruction on self-defense. Therefore, the focus of this
appeal is whether the military judge erred by failing to
properly instruct the panel on the issue of self-defense.11
This Court reviews the adequacy of the military judge’s
instruction de novo.12 In United States v. Wolford,13 we
explained:
If instructional error is found, because there are
constitutional dimensions at play, [the appellant’s] claims
must be tested for prejudice under the standard of harmless
beyond a reasonable doubt. . . . The inquiry for
determining whether constitutional error is harmless beyond
a reasonable doubt is whether, beyond a reasonable doubt,
the error did not contribute to the defendant’s conviction
or sentence.14
The military judge generally instructed the panel on the issue
of self-defense. The military judge’s self-defense instructions
11
As the granted issue focuses on this issue, we do not address
the collateral question of whether the military judge erred in
not giving the specific instruction requested by the defense.
See United States v. Jackson, 15 C.M.A. 603, 613, 36 C.M.R. 101,
111 (1966) (Ferguson, J., dissenting) (“As self-defense was
placed in issue, it is necessary, as the granted question
indicates, to examine the instructions of the law officer in
order to determine their accuracy.”).
12
United States v. Bean, 62 M.J. 264, 266 (C.A.A.F. 2005) (“We
review allegations of error involving mandatory instructions de
novo.” (citing United States v. Forbes, 61 M.J. 354, 357
(C.A.A.F. 2005); United States v. Smith, 50 M.J. 451, 455
(C.A.A.F. 1999)); see generally United States v. Kasper, 58 M.J.
314, 318 (C.A.A.F. 2003) (“The issue of whether the members were
properly instructed is a question of law, which we review de
novo.”).
13
62 M.J. 418 (C.A.A.F. 2006).
14
Id. at 420 (quoting United States v. Kreutzer, 61 M.J. 293,
298 (C.A.A.F. 2005), quoting United States v. Kaiser, 58 M.J.
146, 149 (C.A.A.F. 2003)) (quotation marks omitted).
10
United States v. Dearing, No. 05-0405/NA
addressed the following: (1) that Appellant must have had a
reasonable belief that death or grievous bodily harm was about
to be inflicted upon him; (2) that Appellant must have actually
believed that the amount of force he used was required to
protect against death or serious bodily harm; and (3) that
Appellant is not required to pause at his peril to evaluate the
degree of danger or the amount of force necessary to protect
himself.
However, the military judge instructed the panel that the
Appellant may have been an aggressor. The military judge also
defined aggressor as “one who uses force in excess of that
believed by him to be necessary for defense.” Finally, the
military judge explained that a person who is considered an
“aggressor” or engaged in mutual fighting, without previously
withdrawing in good faith, is not entitled to argue self-
defense. The decisional issue in this case arises from a
defense challenge to the completeness and correctness of the
self-defense instruction.
Appellant argues that the military judge’s instructions
eviscerated Appellant’s case by foreclosing self-defense based
on a theory of escalation of the conflict. Appellant asserts
that the military judge’s instruction incorrectly ignored the
principle of law that “Even a person who starts an affray is
11
United States v. Dearing, No. 05-0405/NA
entitled to use self-defense when the opposing party escalates
the level of the conflict.”15
Cardwell recognized that an initial aggressor is still
entitled to use deadly force in his own defense, just as he
would be if he withdrew completely from combat and was then
attacked by his opponent, in instances where the adversary
escalates the level of conflict.16 In Cardwell, this Court
explained, “The 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.”17
This Court also explained the concept of escalation of the
conflict with this simple illustration: “Thus, if A strikes B a
light blow with his fist and B retaliates with a knife thrust, A
is entitled to use reasonable force in defending himself against
such an attack, even though he was originally the aggressor.”18
At trial the civilian defense counsel expressly relied on
Cardwell in requesting an instruction that presented and
explained the theory of escalation of the conflict.
In light of Cardwell, we test the adequacy of the military
judge’s instruction as it related to the Appellant’s self-
defense claim.
15
Cardwell, 15 M.J. at 126 (citing United States v. Acoste-
Vargas, 13 C.M.A. 388, 32 C.M.R. 388 (1962); United States v.
Straub, 12 C.M.A. 156, 30 C.M.R. 156 (1961)).
16
Id.17
Id. (quoting Straub, 12 C.M.A. at 160, 30 C.M.R. at 160.
18
Id.
12
United States v. Dearing, No. 05-0405/NA
The instructions, given by the military judge, did not
adequately cover the concept of escalation of the conflict. In
our view the military judge failed in his duty to give an
“instruction as a whole [that] provides meaningful legal
principles for the court-martial’s consideration.”19 In fact,
the military judge did not even address the concept of
escalation of the conflict. The military judge compounded this
error by giving an instruction that severely limited the
military members’ ability to consider fairly Appellant’s self-
defense theory. The military judge erroneously instructed the
panel that Appellant, if an aggressor or a person voluntarily
engaged in mutual fighting, was not entitled to self-defense
unless he previously withdrew in good faith.
This instruction required Appellant to establish that he
withdrew before he used reasonable force to defend himself.
Effectively, if the members found Appellant to be an aggressor
or one who engaged in mutual fighting, this instruction
precluded him from arguing that he had no choice but to defend
himself against the escalating violence perpetrated against him.
According to testimony offered by the defense, Appellant was
hit, kicked, beaten, and knocked to the ground so that he was
not in a position to retreat because of the attack on him. In
19
United States v Smith, 8 C.M.A. 582, 584, 25 C.M.R. 86, 88
(1958); see United States v. Truman, 19 C.M.A. 504, 507, 42
C.M.R. 106, 109 (1970).
13
United States v. Dearing, No. 05-0405/NA
light of this defense evidence, we agree with Appellant that the
lower court erred when it concluded that the military judge’s
instruction sufficiently covered the issues that were supposed
to be addressed.
The Government argues that the defense evidence, including
Appellant’s testimony, fails to support the defense-requested
instruction relating to escalation of the violence. As a
result, the Government contends that Appellant never needed the
unique instructions drafted by the defense counsel. We reject
this argument based on the prosecution’s evidence that
established Appellant’s early role in the incident as a possible
aggressor, the defense evidence of mutual combat, and an
escalation of the conflict by others.20
We acknowledge that the instruction trial defense counsel
presented to the military judge relating to the theory of
escalation of the conflict was not perfect. The defense-
requested instruction was correct, however, in its statement of
the legal theory of escalation of the conflict. The only defect
in the requested instruction was an imprecise statement as to
the force that Appellant might lawfully use in response to an
20
United States v. Jackson, 12 M.J. 163, 167 (C.M.A. 1981)
(“[T]he instructional duty arises whenever ‘some evidence’ is
presented to which the fact finders might ‘attach credit if’
they so desire.” (quoting United States v. Evans, 17 C.M.A. 238,
242, 38 C.M.R. 36, 40 (1967))); R.C.M. 920(e)(3) Discussion
(explaining that an instruction is required when there is “some
evidence . . . upon which members might rely if they choose”).
14
United States v. Dearing, No. 05-0405/NA
escalation, stating that “the accused would then be entitled to
use deadly force in self-defense.” It is unclear whether trial
defense counsel tailored the instruction to support his argument
or relied on language in a footnote of Cardwell that explained a
situation where another accused was “entitled to use deadly
force in his own defense.”21 A technically precise instruction
should have asserted only that “the accused would then be
entitled to use force the accused believed was necessary for
protection against death or grievous bodily harm.”22
This deficiency in the defense proposed instruction does
not excuse the military judge from his duty to instruct the
panel on the essential defense theory of escalation of the
conflict as it related to self-defense.23 Based upon the
testimony favoring Appellant, the military judge was required
to tailor his instructions to the facts in the case and to give
an instruction that addressed the concept of escalation of the
conflict.24 His failure to do so was a deficiency that rendered
21
15 M.J. at 126 n.3.
22
See R.C.M. 916 (e)(1)(B).
23
See United States v. McMonagle, 38 M.J. 53, 58 (C.M.A. 1993)
(“The military judge has an affirmative, sua sponte duty to
instruct on special defenses reasonably raised by the
evidence.”); R.C.M. 920(e)(3).
24
See Martinez, 40 M.J. at 431 (“The military judge has a duty
to tailor his instructions to fit the facts of the case.”).
Consistent with Cardwell, a proper self-defense instruction
should have informed the members of the following: “Even a
person who starts an affray is entitled to use self-defense when
the opposing party escalates the level of the conflict. 15 M.J.
at 126. One who claims to be “subjected . . . [to] escalation
15
United States v. Dearing, No. 05-0405/NA
the instruction on self-defense erroneous and incomplete. As to
the impact of this instructional error, this Court has stated,
“Once it is determined that a specific instruction is required
but not given, the test for determining whether this
constitutional error was harmless is whether it appears ‘beyond
a reasonable doubt that the error complained of did not
contribute to the verdict obtained.’”25
We conclude that the error in this case is not harmless
beyond a reasonable doubt. The defense theory of escalation of
the conflict was a vital point in the case. This instructional
error eviscerated the Appellant’s self-defense theory rooted in
the concept of escalation of the conflict. Because of this
instructional error, Appellant was denied the opportunity to
argue that he had a right to exercise self-defense due to the
escalating violence being perpetrated against him. Moreover,
without a correct self-defense instruction, the members did not
have guideposts for an “informed deliberation.”26
In our view the appropriate remedy for this constitutional
violation is that we set aside only the guilty findings related
to Appellant’s murder and aggravated assault offenses (Charge I
of the conflict” is “allow[ed] to use reasonable force in
defending against it.” Id.
25
United States v. McDonald, 57 M.J. 18, 20 (C.A.A.F. 2002)
(quoting Chapman v. California, 386 U.S. 18, 24 (1967)).
26
Anderson, 13 C.M.A. at 259, 32 C.M.R. at 259; see also Truman,
19 M.A. at 507, 42 C.M.R. at 109 (stating that a proper
instruction “provides meaningful legal principles for the court-
martial’s consideration”).
16
United States v. Dearing, No. 05-0405/NA
and Charge II) as the issue of self-defense was only applicable
to these offenses. We conclude that there was no danger of
prejudicial spillover from Appellant’s murder offenses to the
obstruction of justice offense.
Addressing the concept of spillover, this Court explained
that the focus of concern is whether “overwhelming proof on one
[offense that is set aside] will “spill over” and prejudice a
legitimate defense to another.27 In this case, there is no such
danger in light of the unique trial developments arising from
Appellant’s testimony.
Appellant testified on the merits and admitted that he told
one friend, “If it comes down to it, we were never at the
movies.” Appellant also admitted that it was his intent to
influence this friend and he attempted to do so. Appellant’s
testimony is tantamount to a judicial confession to obstruction
of justice as Appellant effectively admitted that he was
attempting to have his friend present a false alibi and thereby
thwart the police investigation into the stabbing incident.
Because of Appellant’s testimony, his conviction of the
Article 134, UCMJ, offense of obstruction of justice was
independent of and unaffected by either the murder or aggravated
assault offenses. Therefore, we conclude that there was no
27
United States v. Haye, 29 M.J. 213, 215 (C.M.A. 1989).
17
United States v. Dearing, No. 05-0405/NA
prejudicial spillover that tainted the guilty finding to
obstruction of justice.28
B. Evaluation of Post-Trial Delay in Appellate Process
Servicemembers have a due process right to timely review
and appeal of courts-martial convictions.29 Appellant asserts
that the 1,794 days for a first-level appellate review by a
service court of criminal appeals was a constitutional due
process violation.
In Toohey,30 this Court stated the legal test for
determining whether Appellant’s due process right was violated
by excessive post-trial delay. This Court identified the
following four factors to determine this issue: “(1) length of
the delay; (2) reasons for the delay; (3) the appellant’s
assertion of his right to a timely appeal; and (4) prejudice to
the appellant.”31
28
See McMonagle, 38 M.J. at 61 (concluding that instructional
error as to mistake of fact was prejudicial error only to a
murder offense and not to other offenses including obstruction
of justice).
29
Toohey v. United States, 60 M.J. 100, 101 (C.A.A.F. 2004).
30
In Toohey, this Court held that the appellant established a
threshold showing of facially unreasonable delay, even without
showing prejudice. Id. at 103. This Court remanded to the
Navy-Marine Corps Court of Criminal Appeals for it to determine
whether the lengthy delay violated the appellant’s Fifth
Amendment right to due process and whether the delay warranted
some form of relief. Id. at 104.
31
Id. at 102 (citing Barker v. Wingo, 407 U.S. 514, 530
(1972)).
18
United States v. Dearing, No. 05-0405/NA
More recently in United States v. Moreno,32 this Court
explained, “Once this due process analysis is triggered by a
facially unreasonable delay, the four factors are balanced, with
no single factor being required to find that post-trial delay
constitutes a due process violation.”33 The standard of review
for a claim of denial of a due process right arising from denial
of speedy post-trial review and appeal is de novo.34 Consistent
with this precedent, we evaluate these four factors.
1. Length of the delay
The lower court acknowledged that “[t]he preparation of
the necessary pleadings for appellate review in this case has
taken longer . . . than review of a court-martial of this length
and complexity should normally take.”35 We agree.
Appellant was sentenced on March 14, 2000. When the
convening authority took action on this case on January 12,
2001, 304 days had elapsed since Appellant was sentenced. This
case was docketed at the lower court on February 7, 2001. Over
32
63 M.J. 129 (C.A.A.F. 2006).
33
Id. at 136.
34
Id. at 135 (citing United States v. Rodriguez, 60 M.J. 239,
246 (C.A.A.F. 2004); United States v. Cooper, 58 M.J. 54, 58
(C.A.A.F. 2003)).
35
Dearing, 60 M.J. at 905. The lower court also concluded that
no relief from this delay was warranted because there was no
lack of diligence in the post-trial processing of the case and
no indication of deliberate or malicious intent that caused the
delay in Appellant’s post-trial appellate process. Id. We
proceed to apply the other Barker factors to determine if
Appellant is entitled to relief for this excessive post-trial
delay.
19
United States v. Dearing, No. 05-0405/NA
four years later, on February 10, 2005, the lower court decided
this case. The almost five years for a first-level appellate
review by a service court of criminal appeals is facially
unreasonable as it is clearly excessive and inordinate. This
Barker factor weighs heavily in favor of Appellant.
2. Reasons for the delay
This case is neither unusually long nor complex, and there
is no reasonable explanation for why it took the convening
authority over ten months to take action on Appellant’s case.
We note that Appellant’s assigned appellate defense counsel had
problems preparing this case. Over two years, original and
successor military appellate defense counsel filed twenty-one
motions for enlargements of time that the lower court granted.
When the court refused to grant further enlargements, military
appellate defense counsel filed a brief raising issues Appellant
had asserted pursuant to United States v. Grostefon36 on April
18, 2003. After the Government filed its pleading on July 18,
2003, Appellant hired civilian appellate defense counsel who
entered an appearance on August 1, 2003. This counsel filed a
brief on behalf of Appellant on October 17, 2003.
We acknowledge that the defense-requested delay is
significant. We stated in Diaz v. Judge Advocate General of the
36
12 M.J. 431 (C.M.A. 1982).
20
United States v. Dearing, No. 05-0405/NA
Navy37 and reaffirmed in Moreno38 that the Government has the
ultimate responsibility for the staffing and administrative
management of the appellate review process for cases pending
before lower court. Consistent with our decisions in Diaz and
Moreno, we decline to hold Appellant responsible for the lack of
“institutional vigilance” that should have been exercised in
this case.39
This case was docketed, with briefs filed by the parties,
for almost fifteen months before the lower court issued its
decision. Although this was a lengthy period, “we apply a more
flexible review of this period, recognizing that it involves the
exercise of the Court of Criminal Appeals’ judicial decision-
making authority.”40
The Government has not presented legitimate reasons or
exceptional circumstances for the excessive post-trial delay
that is unrelated to the lower court’s decisional period. In
these circumstances, we conclude that this second Barker factor
also weighs heavily in favor of Appellant.
3. Assertion of the right to a timely review and appeal
Appellant did not assert his right to a timely review to
the lower court. However, in Moreno, we stated, “We also
37
59 M.J. 34, 38 (C.A.A.F. 2003).
38
63 M.J. at 137.
39
Id. (quoting Diaz, 59 M.J. at 39-40) (quotation marks
omitted).
40
Id.
21
United States v. Dearing, No. 05-0405/NA
recognize the paradox of requiring Moreno to complain about
appellate delay either to his appellate counsel who sought
multiple enlargements of time because of other case commitments
or to the appellate court that granted the enlargements on a
routine basis.”41 This is the situation in the present case also
as military appellate defense counsel filed twenty-one motions
for enlargements that the lower court granted. Therefore,
consistent with the approach in Moreno, we would normally weigh
this factor only slightly against Appellant.42
In our view the facts of this case invite further analysis
of this factor. We note that Appellant personally did voice his
concerns about the unreasonable appellate delay. On January 14,
2002, in a communication with his appellate defense counsel,
Appellant objected to his case “sitting idle for almost (1) one
year” and inquired why he was “constantly put off in [his] post-
trial proceedings.” Also, on March 10, 2002, Appellant wrote a
congressman complaining that his “appellate defense counsel has
neglected to show any interest at all in helping me.” In light
of Appellant’s communications, we conclude that this factor also
weighs in favor of Appellant.
41
Id. at 138.
42
Id.
22
United States v. Dearing, No. 05-0405/NA
4. Prejudice
We are most sensitive to this final factor that relates to
any prejudice either personally to Appellant or the presentation
of his case that arises from the excessive post-trial delay.43
In our view, the lack of “institutional vigilance” in this
case resulted in detailed military appellate defense counsel not
filing a timely pleading to address the merits of Appellant’s
case. After granting twenty-one defense enlargements, the lower
court indicated that it would decide the case without a brief if
one was not filed by March 14, 2003. Thereafter, detailed
military appellate counsel merely submitted a Grostefon
submission. Ultimately, Appellate hired a civilian appellate
counsel who did file a substantive brief on Appellant’s behalf.
From these factual developments, it appears that a lack of
“institutional vigilance” effectively denied Appellant his
statutory right to the free and timely professional assistance
of detailed military appellate defense counsel.44 This prejudice
weighs most heavily in Appellant’s favor.
As Appellant’s appeal is meritorious as to Issue I, he has
served oppressive incarceration during the appeal period.45
43
Id. at 138-41.
44
See Article 70, UCMJ, 10 U.S.C. § 870 (2000).
45
We note that Appellant was sentenced on March 14, 2000, and is
presently incarcerated. The maximum sentence for the offense of
obstruction of justice is five years. Manual for Courts-
Martial, United States pt. IV, para. 96.e. (2005 ed.). In our
view Appellant has already suffered prejudice as he has served
23
United States v. Dearing, No. 05-0405/NA
Here, Appellant continues to serve the twenty-five-year sentence
to confinement under a conviction that has now been set aside.
The appellate delay has resulted in Appellant enduring prolonged
incarceration awaiting this favorable decision on his appeal.
This is a circumstance that weighs in the favor of Appellant.46
Although one facet of prejudice is where an appellant
demonstrates “particularized anxiety or concern that is
distinguishable from the normal anxiety experienced by prisoners
awaiting an appellate decision,”47 Appellant has not made such a
showing here.
The last consideration is whether there is any “negative
impact on his ability to prepare and present his defense at the
rehearing.”48 We are most concerned that “Due to the passage of
time, witnesses may be unavailable [and] memories may have faded
. . . .”49 “In order to prevail on this factor an appellant must
be able to specifically identify how he would be prejudiced at a
rehearing due to the delay. Mere speculation is not enough.”50
Presently, Appellant has not been able to establish specific
harm that he would encounter at a rehearing and he has not
demonstrated prejudice.
more than the maximum punishment for the single offense that he
stands convicted. See Moreno, 63 M.J. at 139.
46
Id.
47
Id. at 140.
48
Id.
49
Id.
50
Id. at 140-41 (footnote omitted).
24
United States v. Dearing, No. 05-0405/NA
However, as we noted in Moreno, our present analysis of
this issue may not terminate a later inquiry into the issue of
prejudice from post-trial delay:
We are mindful of the difficulty that an appellant and his
appellate defense counsel may have at this juncture of the
process in identifying problems that would hinder an
appellant’s ability to present a defense at rehearing. If
an appellant does experience problems in preparing for
trial due to the delay, a Sixth Amendment speedy-trial
motion could appropriately be brought at the trial level.51
Consistent with Moreno, Appellant may in any later proceeding
demonstrate prejudice arising from post-trial delay.
5. Conclusion –- Barker factors
Our consideration of the four Barker factors leads us to
conclude that Appellant was denied his due process right to
speedy review and appeal. The unexplained and unreasonably
lengthy delay and specific prejudice arising from the appellate
delay, effectively denied Appellant his right to the free
professional assistance of detailed military appellate defense
counsel, resulting in a due process violation. We turn next to
the relief appropriate for this constitutional violation.
6. Relief afforded to Appellant because of the due process
violation for denying speedy appellate review
As this due process error is one of constitutional
magnitude, we are obliged to test this error for harmlessness.
Indeed, “‘the Government must show that this error was harmless
51
Id. at 141 n.19.
25
United States v. Dearing, No. 05-0405/NA
beyond a reasonable doubt.’”52 In light of our disposition of
Issue I and our conclusion that Appellant has suffered prejudice
under the Barker analysis, we cannot say that the error arising
from the post-trial delay is harmless beyond a reasonable doubt.
Indeed, in our view, this case involves two forms of actual
prejudice. First, Appellant has endured oppressive
incarceration because he has been denied a timely review of his
meritorious claim of legal error for over six years while he was
incarcerated.53 Second, the lack of “institutional vigilance”
resulted in appellate delay that effectively denied Appellant
his statutory right to the free and timely professional
assistance of detailed military appellate defense counsel. This
error and its impact on Appellant and his appeal mandate relief.
As to relief from the due process violation arising from
the excessive and unreasonable post-trial delay, we seek to
fashion a remedy that will afford Appellant meaningful relief.
There is a wide range of relief options available.54
52
United States v. Brewer, 61 M.J. 425, 432 (C.A.A.F. 2005)
(quoting United States v. Miller, 47 M.J. 352, 359-60 (C.A.A.F.
1997)).
53
See supra note 45.
54
In Moreno we stated:
The nature of that relief will depend on the circumstances
of the case, the relief requested, and may include, but is
not limited to: (a) day-for-day reduction in confinement
or confinement credit; (b) reduction of forfeitures; (c)
set aside of portions of an approved sentence including
punitive discharges; (d) set aside of the entire sentence,
leaving a sentence of no punishment; (e) a limitation upon
26
United States v. Dearing, No. 05-0405/NA
We observe that we have already provided Appellant some
relief arising from the error related to Issue I. But we
conclude that further relief is warranted. However, we view
dismissal with prejudice of the charges inappropriate as
Appellant has not demonstrated any prejudice to defend against
the charges at a rehearing.
In this case, as in Moreno, we are obliged to fashion a
remedy where we have authorized a rehearing55 and there is
presently no direct sentence relief that we can provide
Appellant. In this circumstance we will afford Appellant relief
depending on the later developments in this case as follows:
(1) In the event of a rehearing at which the adjudged sentence
includes confinement, the convening authority shall direct that
Appellant be credited with an additional 365 days of confinement
served; (2) In the event that the adjudged sentence at a
rehearing does not include confinement, the convening authority
shall approve no portion of a sentence exceeding a punitive
discharge.
the sentence that may be approved by a convening authority
following a rehearing; and (f) dismissal of the charges and
specifications with or without prejudice. Clearly this
range of meaningful options to remedy the denial of speedy
post-trial processing provides reviewing authorities and
courts with the flexibility necessary to appropriately
address these situations on a case-by-case basis.
63 M.J. at 143.
55
The rehearing, whether on findings and sentence or just on
sentence, is free to adjudge an appropriate sentence. See
United States v. Davis, 63 M.J. 171, 175 (C.A.A.F. 2006).
27
United States v. Dearing, No. 05-0405/NA
DECISION
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is reversed only as to Charge I and Charge
II and both specifications thereunder and the sentence. The
findings of guilty thereon and the sentence are set aside. The
decision of the United States Navy-Marine Corps Court of
Criminal Appeals as to Charge III is affirmed. The record of
trial is returned to the Judge Advocate General of the Navy. A
rehearing is authorized.
28
United States v. Dearing, No. 05-0405/NA
BAKER, Judge (concurring in result):
With respect to the appellate delay, I concur in this
Court’s conclusion that Appellant suffered actual prejudice as a
result of enduring “oppressive incarceration because he has been
denied a timely review of his meritorious claim of legal error
for over six years while he was incarcerated.” However, I find
prejudice on this recognized Barker1 basis alone, and therefore,
I concur in the result.
Although the appellate delay in this case was excessive,
the facts are not sufficiently developed for this Court to
conclude that a “lack of ‘institutional vigilance’” prejudiced
Appellant by denying him “his statutory right to the free and
timely professional assistance of detailed military defense
counsel.” Importantly, if Appellant was prejudiced by a denial
of his right to timely counsel, it is not clear how this case is
distinguished from the many other cases of appellate delay we
have reviewed involving twenty or more defense enlargements for
time, where we did not find that the appellants were prejudiced
by a denial of their timely right to military counsel and
affirmed. As a matter of fairness and principle, like cases
should be treated in a like manner.
If there is a difference distinguishing these cases of
comparable multiple enlargements, it must reside in defense
1
Barker v. Wingo, 407 U.S. 514 (1972).
United States v. Dearing, No. 05-0405/NA
counsel’s submission of a Grostefon2 brief in this case. After
twenty-one enlargements of time, appellate defense counsel was
given a hard deadline of thirty days in which to file a brief.
Appellate defense counsel responded by filing a Grostefon brief.
We do not know whether appellate defense counsel did so at the
eleventh hour after a cursory review of the record or, whether
she did so after a careful review of the record and the exercise
of her best judgment that a Grostefon brief was appropriate.
If appellate defense counsel’s submission of a Grostefon
brief is the only event distinguishing this case from other
cases involving comparable enlargements of time, we should
review counsel’s submission of the Grostefon brief for
ineffective assistance of counsel, as opposed to finding
prejudice based on a denial of right to counsel.
The appellate delay problem in this case was that the
submission of the Grostefon brief was preceded by over 1,700
days of unreasonable and excessive delay in appellate
processing. The appellate delay prejudice arises because,
consistent with the framework set forth in United States v.
Moreno, 63 M.J. 129 (C.A.A.F. 2006), Appellant waited six years
for his meritorious claim to be heard and addressed.
2
United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).
2
United States v. Dearing, No. 05-0405/NA
CRAWFORD, Judge (dissenting):
I respectfully dissent because the majority continues a
pattern of refusing to give deference to the President’s
legislatively mandated rulemaking authority in contravention of
established principles of separation of powers. See United
States v. Moreno, 63 M.J. 129, 144 (C.A.A.F. 2006) (Crawford,
J., concurring in part and dissenting in part). Under Article
36, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 836(2000), the President has the authority to prescribe
“[p]retrial, trial, and post-trial procedures, including modes
of proof” unless these provisions are inconsistent with the
United States Constitution, or the UCMJ. When one enters a
fight as an aggressor or a mutual combatant, even without a
weapon, the natural and probable consequences of such action
includes the possibility that the fight may escalate and the
other side may overcome the aggressor or the mutual combatant.
Recognizing the natural and probable consequences of being an
aggressor or mutual combatant, the President has promulgated
Rule for Courts-Martial (R.C.M) 916(e)(4), which includes the
availability or nonavailability of the defense of self-defense.
It provides:
The right to self-defense is lost and the defenses
described in subsections (e)(1), (2), and (3) of this
rule shall not apply if the accused was an aggressor,
engaged in mutual combat, or provoked the attack which
gave rise to the apprehension, unless the accused had
United States v. Dearing, No. 05-0405/NA
withdrawn in good faith after the aggression, combat,
or provocation and before the offense alleged
occurred.
Generally, the prosecution has the burden of proving beyond
a reasonable doubt that a defense does not exist. R.C.M.
916(b). However, R.C.M. 916(e)(4) provides that in homicide and
assault cases, the right of self-defense is lost where the
individual is the aggressor or a mutual combatant.
By refusing to give deference to the President, the
majority selectively1 rejects the hierarchy2 of this rule set
1
This is not the first time that this Court has rejected rules
set forth by the President. See, e.g., United States v.
Mizgala, 61 M.J. 122, 130 (C.A.A.F. 2005) (Crawford, J.,
dissenting in part and concurring in the result) (noting that
the majority ignored the waiver rule set forth in R.C.M.
707(e)); see also United States v. Cary, 62 M.J. 277, 280
nn. 1-2 (C.A.A.F. 2006) (Crawford, J., concurring in the result)
(setting forth several cases in which this Court refused to
follow Supreme Court precedent when examining a constitutional
right or when interpreting the same or similar statute); see,
e.g., United States v. Miller, 63 M.J. 459 (C.A.A.F. 2006)
(requiring an addition to R.C.M. 910 advice regarding collateral
consequences); Moreno, 63 M.J. at 137-44 (setting forth speedy
review rules); United States v. Key, 57 M.J. 246, 249 (C.A.A.F.
2002) (Crawford, C.J., concurring in part and in the result)
(noting that despite the majority’s holding there is no
requirement that a staff judge advocate’s recommendation on a
request for deferment be served on defense counsel); United
States v. Becker, 53 M.J. 229 (C.A.A.F. 2000) (applying R.C.M.
707 to sentence rehearings). However, we have recommended the
executive engage in rulemaking to eliminate appellate
litigation. See e.g., United States v. Buller, 46 M.J. 467, 469
n.4 (C.A.A.F. 1997).
2
United States v. Lopez, 35 M.J. 35, 39 (C.M.A. 1992)
(discussing the hierarchical sources of rights in the military);
see also United States v. Scheffer, 523 U.S. 303, 309-18 (1998)
(Military Rules of Evidence are binding on the Court of Appeals
for the Armed Forces unless unconstitutional).
2
United States v. Dearing, No. 05-0405/NA
forth by the President. The majority relies on United States v.
Cardwell, 15 M.J. 124 (C.M.A. 1983), to conclude that the
defense of self-defense allows an aggressor to “use deadly force
in his own defense, just as he would be if he withdrew
completely from combat and was then attacked by his opponent, in
instances where the adversary escalates the level of conflict.”
I agree that is the proposition put forth in Cardwell,3 however,
I note that Cardwell is another occasion where this Court
expanded the law without the authority to do so. Cardwell,
decided on March 14, 1983, did not discuss the hierarchy or the
hornbook rule that this Court is bound by the President’s rule
unless it is unconstitutional or violates a statute. In 1984,
the President executed the Manual for Courts-Martial, United
States (1984 ed.)(MCM). Since 1984, the President has made
twelve4 changes to the MCM, yet, in spite of the ruling in
Cardwell, he has never saw fit to modify R.C.M. 916(e)(4) to
3
In a situation . . . where the accused had entered
willingly into combat with the expectation that deadly
force might be employed, he is not allowed to claim
self-defense. However, where an accused in his
original attack has not employed deadly force and his
adversary then escalates the conflict, 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.
15 M.J. at 126 n.3.
4
See MCM, Historical Executive Orders app. 25 at A25-1 to A25-77
(2005 ed.).
3
United States v. Dearing, No. 05-0405/NA
allow for an aggressor to regain his right to self-defense if
the “victim” or adversary escalates the level of conflict. The
Cardwell case is not mentioned in the discussion of the rule or
in the analysis to the rule. Common sense would seem to
indicate that the President has specifically decided not to
address or modify the defense of self-defense to allow the
aggressor to regain the right to self-defense in situations
other than after a complete withdrawal from the affray.
R.C.M. 916(e)(4) is not inconsistent with the punitive
articles in the UCMJ. See Articles 77-134, UCMJ, 10 U.S.C. §§
877-934 (2000). Because the military judge’s instructions were
consistent with R.C.M. 916 as created by the President, I would
affirm the decision of the United States Navy-Marine Corps Court
of Criminal Appeals.
4