This opinion is subject to administrative correction before final disposition.
Before
THE COURT EN BANC
_________________________
UNITED STATES
Appellee
v.
Mickey W. JOHNSON, Jr.
Private First Class (E-2), U.S. Marine Corps
Appellant
No. 201800249
Decided: 15 April 2020
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judges:
Shane E. Johnson (arraignment)
Leon J. Francis (motions, trial)
Sentence adjudged 9 April 2018 by a general court-martial convened
at Marine Corps Base Hawaii, consisting of officer and enlisted mem-
bers. Sentence approved by the convening authority: reduction to pay
grade E-1, forfeiture of all pay and allowances, confinement for 18
months, and a bad-conduct discharge.
For Appellant:
Lieutenant Daniel E. Rosinski, JAGC, USN
For Appellee:
Lieutenant Kimberly Rios, JAGC, USN
Lieutenant Kurt W. Siegal, JAGC, USN
Judge GASTON delivered the unanimous opinion of the Court.
_________________________
16 Apr 2020: Administrative corrections made to pages 8 and 15.
United States v. Johnson, NMCCA No. 201800249
Opinion of the Court
PUBLISHED OPINION OF THE COURT
_________________________
GASTON, Judge:
A panel of officer and enlisted members convicted Appellant, contrary to
his pleas, of attempted voluntary manslaughter in violation of Article 80,
Uniform Code of Military Justice [UCMJ], 10 U.S.C. § 880 (2012), for stabbing
his roommate, Lance Corporal [LCpl] V, with a knife during a physical
altercation in their barracks room. 1
Appellant raises three assignments of error [AOEs]: (1) the military judge
committed prejudicial error by (a) failing to instruct that Appellant could
display knives in self-defense to deter LCpl V from attacking him, and
(b) denying Appellant’s request to instruct that he could respond to LCpl V’s
escalation of the conflict after his effort to deter LCpl V failed; (2) the
Government failed to disprove beyond a reasonable doubt that Appellant
acted against LCpl V in self-defense; and (3) the Government failed to prove
beyond a reasonable doubt that Appellant intended to kill LCpl V. Having
carefully considered each, we find merit in the first AOE and set aside the
findings and sentence.
I. BACKGROUND
Appellant and LCpl V were roommates who performed aircraft mainte-
nance in the same unit on Marine Corps Base Hawaii. They met during
preparatory schoolhouse training in Arizona and were on the same flight out
to Hawaii, where they were assigned to the same barracks room, worked
together daily, and socialized with one another. Over the course of their three
weeks as roommates, however, the two were also prone to frequent verbal
disagreements, which at times devolved into insults, aspersions, and name-
calling, both at work and in their shared barracks room.
The roommates’ recurrent bickering came to a head at work one morning
when LCpl V asked Appellant to help him move some heavy equipment
across their unit’s hangar. Appellant declined, and the verbal sparring that
ensued included LCpl V calling Appellant a “b[***]” and Appellant retorting
that LCpl V “had a d[***] in his mouth” and wondering aloud whether he’d
1 Appellant was acquitted of the greater, charged offense of attempted murder.
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United States v. Johnson, NMCCA No. 201800249
Opinion of the Court
rather see LCpl V “with his throat slit or set on fire.” 2 The 6´5˝, 200-pound
LCpl V did not make much of the vituperative comments from the 5´9˝, 140-
pound Appellant—the likes of which he had often heard before—at least not
until Appellant said he had slept with LCpl V’s mother. At that point, LCpl V
felt Appellant had “crossed the line” and became angry at him. 3 Appellant
testified that when he made the comment about LCpl V’s mother, LCpl V
charged him, shoved him against a hard object, told him not to talk about his
family anymore, and repeatedly told him for the rest of the day that they
were going to fight after work. 4
That afternoon, after LCpl V went to another worksite, Appellant com-
pleted his duties and returned to the barracks, scared about the prospect of
fighting his much larger roommate. By the time LCpl V returned to their
barracks room, Appellant was lying in bed listening to music with head-
phones, but had two open, spring-assisted knives on the bed next to him
between himself and the wall. LCpl V changed into workout clothes, but
before leaving for the gym, he threw a stuffed animal at Appellant’s face,
causing him to take off his headphones. LCpl V then told Appellant that
when he returned from the gym, he wanted to talk about their verbal
exchange earlier that day. According to Appellant, LCpl V said that when he
got back from the gym, they were “going to fight.” 5
After listening to music for an hour or two, Appellant went to take a bath,
taking the two knives with him in case LCpl V tried to jump him coming out
of the bathroom. The barracks was organized into two-person rooms with
adjoining bathrooms in between that could be accessed from either side. It
was possible to lock the bathroom doors from the outside—i.e., to prevent
someone from entering the barracks rooms from the bathroom—and the
bathroom doors were often kept shut and locked in this manner. However, it
was not possible to lock anyone out of the bathroom. Thus, while there were
two ways to enter or leave a barracks room, only one was typically availa-
2Record at 1205. LCpl V testified Appellant also said LCpl V “would get to choose
which one of [his] knives he would slit my throat with.” Record at 705.
3 Record at 760-61, 765.
4 Record at 1206-07. LCpl V in his testimony disputed doing any of these other
actions.
5Record at 1212. LCpl V in his testimony denied making any such statement to
Appellant or others. Record at 734, 763, 766, 768, 796.
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Opinion of the Court
ble—the main barracks room door—which was accessible from the outside
with the resident’s military identification card.
On hearing LCpl V return from the gym, Appellant finished his bath,
changed into shorts and a T-shirt, and went back into their barracks room,
holding the two knives concealed under a towel. Appellant testified that he
had the knives under the towel “[b]ecause if the situation had calmed down,
[he] didn’t want [LCpl V] to see the knives and think, Oh, he’s going to kill
me.” 6 He testified that he did not want to fight LCpl V and that his intent
with the knives was only to scare off LCpl V if LCpl V decided to attack him.
He walked past LCpl V toward the main barracks room door, as LCpl V was
walking toward the bathroom door. 7 The roommates then turned to face each
other, a few feet apart, and LCpl V asked Appellant, loudly enough to be
overheard by a Marine in the adjoining barracks room on the other side of the
bathroom, “So what do you have to say about my mother now?” 8
Appellant testified that on hearing this he felt scared and dropped the
towel to reveal the two open knives he was holding. He testified that in light
of LCpl V’s earlier statements, he believed LCpl V intended to fight him and
that he displayed the knives in an effort to scare off LCpl V. He testified that
upon seeing the knives LCpl V said, “So we’re going to bring knives into
this?” and in response, Appellant said something along the lines of “It sure
seems like that” or “I guess so.” 9
LCpl V testified that after he turned to face Appellant and asked if he was
going to continue making comments about his family, Appellant said, “I’ll do
whatever I want,” and then threw down the towel and immediately flipped
open the spring-assisted knife he held in each hand. 10 LCpl V testified that
upon seeing the knives he became afraid and instinctively shoved Appellant
into a wall locker. He testified that Appellant then lunged back and swung
the knives at him, and that he (LCpl V) raised his arms up to defend himself
and was struck by both knives in his upper body. He then grabbed Appel-
6 Record at 1215.
7 Appellant testified that LCpl V actually reached the bathroom door and pro-
ceeded to lock it, which would have prevented the Marines in the adjoining room
from being able to enter LCpl V and Appellant’s barracks room via the bathroom.
8 Record at 1216.
9 Record at 1217. LCpl V disputed this verbal exchange.
10 Record at 710-11, 775-77, 790.
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Opinion of the Court
lant’s wrists, and a struggle ensued in which LCpl V ended up on top of
Appellant, on the bed closest to the main door, knocking Appellant’s hands
against the wall in an effort to make him drop the knives. LCpl V yelled at
Appellant to drop the knives, and Appellant responded he would not drop
them until LCpl V got off him. As they continued to struggle, Appellant
inflicted cuts on LCpl V’s forearm and hand, and Appellant received cuts on
each of his own legs. He then kicked at LCpl V in the chest and jaw, causing
LCpl V to lose his grip on Appellant’s wrists. At that point, LCpl V broke
away to the room’s exterior door and ran toward the nearby duty shack,
calling for help.
Appellant testified he was not sure whether LCpl V shoved him first, but
that after their verbal exchange, once Appellant showed him the knives,
LCpl V assumed a “boxer stance” and reached for the knife in Appellant’s
right hand. Appellant testified he took this as a threatening action and was
afraid that if LCpl V was able to get the knife away from him, he would use
the knife against Appellant. In response, Appellant testified he instinctively
brought up his right hand—the hand LCpl V was reaching for—and stabbed
LCpl V in the shoulder. He testified that LCpl V then grabbed both of his
wrists and pinned him to the bed, and he began stabbing at LCpl V with the
knife in his right hand in an effort to get LCpl V off of him. He then began
kicking at LCpl V until eventually LCpl V got off of him and ran out of the
room.
After LCpl V fled toward the duty shack, Appellant went into the shared
bathroom, and the Marines in the adjoining room unlocked and opened the
door from their side. They smelled blood and observed Appellant to be calm,
but scared. Appellant said to them, “I might be going to jail tonight.” When
they asked why, he responded, “Just know that I hate [LCpl V].” 11 The
Marines followed Appellant into his room, noticed bloodstains on the curtains
and wall, and saw Appellant put down two knives. When security personnel
arrived, he followed their orders and was apprehended without incident.
LCpl V was taken to a military hospital and treated for cuts on his shoul-
ders, clavicle, arm, and hand. Appellant declined medical treatment for the
cuts on his legs.
Additional facts necessary to resolution of the issues are contained in the
discussion.
11 Record at 836.
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Opinion of the Court
II. DISCUSSION
At trial, the parties agreed the issue of self-defense was raised by the
evidence and warranted instructions. Where they differed was that the
Defense requested tailored instructions to address the specific issues raised
by Appellant’s testimony: that he displayed the knives in an effort to deter
LCpl V from attacking him, and that he only used them after LCpl V, rather
than backing down, shoved Appellant into a wall locker and then tried to
grab one of the knives. The military judge denied the Defense request for
tailored instructions.
Here, as at trial, Appellant asserts that the self-defense instructions the
military judge gave the members were incomplete, and that the military
judge committed prejudicial error by denying the Defense request to instruct
that (a) a person can display a deadly weapon (i.e., knives) in self-defense in
order to deter an assailant from attacking, and (b) if the effort to deter the
assailant fails and the assailant escalates the level of conflict, a person can
respond to the escalation by using the deadly weapon in self-defense.
A. Standard of Review
“The military judge’s instructions are intended to aid the members in the
understanding of terms of art, to instruct the members on the elements of
each offense and to explain any available defenses.” United States v. Wolford,
62 M.J. 418, 420 (C.A.A.F. 2006); see also Rule for Court-Martial [R.C.M.]
920(e). The instructions “should fairly and adequately cover the issues
presented, and should include such other explanations, descriptions, or
directions as may be necessary and which are properly requested by a party
or which the military judge determines, sua sponte, should be given.” United
States v. Bailey, 77 M.J. 11, 13-14 (C.A.A.F. 2017) (citing R.C.M. 920(a),
Discussion; R.C.M. 920(e)(7)). “If an issue has been raised, ordinarily the
military judge must instruct on the issue when requested to do so.” R.C.M.
920(c), Discussion. “A matter is ‘in issue’ when some evidence, without regard
to its source or credibility, has been admitted upon which members might
rely if they choose.” R.C.M. 920(e), Discussion. The military judge has “wide
discretion in choosing the instructions to give but has a duty to provide an
accurate, complete, and intelligible statement of the law.” United States v.
Behenna, 71 M.J. 228, 232 (C.A.A.F. 2012).
We generally review the propriety of instructions given by the trial court
de novo. United States v. Quintanilla, 56 M.J. 37, 83 (C.A.A.F. 2001). But
because the military judge has “substantial discretionary power” in determin-
ing whether to give tailored instructions requested by counsel, we review the
military judge’s denial of counsel-requested instructions for an abuse of
discretion. Bailey, 77 M.J. at 14 (quoting United States v. Damatta-Olivera,
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Opinion of the Court
37 M.J. 474, 478 (C.M.A. 1993)); United States v. Carruthers, 64 M.J. 340,
345-46 (C.A.A.F. 2007). To assess whether the military judge erred in not
providing a requested instruction, we employ a three-part test that looks at
whether:
(1) the requested instruction is correct; (2) the main instruction
given does not substantially cover the requested material; and
(3) the instruction is on such a vital point in the case that the
failure to give it deprived [the Accused] of a defense or serious-
ly impaired its effective presentation.
Bailey, 77 M.J. at 14 (citations and internal quotation marks omitted). “All
three prongs must be satisfied for there to be error.” Id. (citing United States
v. Barnett, 71 M.J. 248, 253 (C.A.A.F. 2012)).
B. The Law of Self-Defense
The instructions at issue here involve several well-known principles of the
law of self-defense. The confluence of these principles, perhaps less well-
known, is what gives rise to Appellant’s assertion of error.
“Generally speaking, a person is not entitled to use a dangerous weapon
in self-defense where the attacking party is unarmed and commits a battery
by means of his fist.” United States v. Straub, 30 C.M.R. 156, 160 (C.M.A.
1961). However, there is no “absolute prohibition against the use of a deadly
weapon to repel an unarmed assault,” particularly where a person is outsized
or outnumbered; otherwise, it would mean “the assaulted party must stand
and take his chances of being knocked down and stamped into a jelly . . .
before he can lawfully use a weapon in his defense.” United States v. Black,
31 C.M.R. 157, 161 (C.M.A. 1961) (citation and internal quotation marks
omitted). In such situations, the law allows “[l]ittle men, as well as those
physically more fortunate . . . to take reasonable measures in order to protect
themselves,” and ultimately, “whether an accused, by resort to a weapon,
uses excessive force in repelling an assault upon him is dependent upon all of
the circumstances.” Id.
In addition to using a deadly weapon in self-defense, the law allows that
“for the purpose of frightening an assailant, one might threaten to resort to
more force than [one] may permissibly, under the law, actually employ in
self-defense.” United States v. Acosta-Vargas, 32 C.M.R. 388, 393 (C.M.A.
1962) (emphasis added); see also United States v. Stanley, 71 M.J. 60, 64
(C.A.A.F. 2012) (Baker, J, concurring) (“An individual who is entitled to act in
self-defense may threaten a greater degree of force than that which he or she
could actually use.”) (emphasis added) (citation omitted). In recognition of
this principle, the Military Judges’ Benchbook contains a section of pattern
instructions entitled, “Excessive Force to Deter,” to address situations where
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Opinion of the Court
an accused displays or threatens deadly force to deter an attack. Dept. of the
Army Pamphlet 27-9 para. 5-2-5 (10 Sept. 2014) [Benchbook].
Finally, the principle of escalation of force recognizes that conflicts often
come in stages or must be “viewed as a series of altercations,” as the analysis
of each stage may impact the right of self-defense. Stanley, 71 M.J. at 69
(Baker, J, concurring); see also United States v. Cardwell, 15 M.J. 124, 126
(C.M.A. 1983) (“Even a person who starts an affray is entitled to use self-
defense when the opposing party escalates the level of conflict.”). Whether an
escalation occurs depends on at least two factors: (1) who started the fight
and (2) at what level of force. In situations involving deadly force, these two
factors, in turn, depend on whether deadly force is used to attack or merely
displayed to deter an attack.
Generally, if A uses deadly force to attack B, A is not entitled to self-
defense if B strikes back; and there is no way B can escalate the level of
conflict (because A has already fully escalated the situation by using deadly
force). However, if A merely displays deadly force to deter B from an assault,
then A is entitled to use some level of force in self-defense if B nevertheless
attacks A; and if B escalates the level of conflict by being the first to use
deadly force, then A would be entitled in response to use deadly force in self-
defense.
The line between using deadly force to attack and displaying deadly force
to deter is thus all-important, and not always clearly defined. In United
States v. Stanley, for example, our superior court divided on this very issue.
71 M.J. 60 (C.A.A.F. 2012). That case involved a four-member drug ring that
fragmented and turned on itself. Id. at 62. First, after accusing him of
sleeping with his wife, Werner began a fight with Colvin, which Hymer soon
joined on the side of Werner. When Colvin called for help, Stanley intervened
with a pistol, at a point when the conflict involved only non-deadly force. Id.
Stanley then held Werner and Hymer at gunpoint and searched them for
weapons. Hymer grabbed a rifle and shot at Stanley, who returned fire with
the pistol, killing Hymer. Werner then grabbed a knife and attempted to stab
Colvin, at which point Stanley shot and killed Werner. Id.
The issue on appeal was whether Stanley was entitled to a self-defense (or
defense-of-another) instruction tailored to include the principle of escalation
of force. Id. at 62. The majority concluded Stanley had already escalated the
level of conflict to one involving deadly force by using the pistol to subdue
Hymer and Werner and search them for weapons. Id. at 63. The concurrence
disagreed, concluding that Stanley at that point was only displaying a deadly
weapon and so had not escalated the level of conflict to one involving the use
of deadly force. Id. at 72 (Baker, J, concurring). However, both sides agreed,
at least in principle, that:
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Opinion of the Court
One may deliberately arm himself for purposes of self-defense
against a pernicious assault which he has good reason to ex-
pect. On the other hand, the true significance of the fact of
arming can be determined only in the context of the surround-
ing circumstances.
Id. at 63 (quoting United States v. Peterson, 483 F.2d 1222, 1233 (D.C. Cir.
1973); see also Stanley, 71 M.J. at 64 (Baker, J, concurring) (concluding that
the issue is ultimately “fact-based,” requiring “careful review of the facts from
both [key witnesses’] perspective[s]”). We take up that fact-based review of
the surrounding circumstances in this case by addressing each of the
requested tailored instructions, in turn.
C. Analysis
1. Proposed Defense instructions on display of excessive force to deter
The first set of tailored self-defense instructions Appellant sought at trial
were submitted to address Appellant’s testimony that he only brought out his
knives in an effort to scare off LCpl V, who according to Appellant had been
spoiling for a fight ever since Appellant insulted his mother. The requested
instructions were drawn from the Benchbook’s “Excessive Force to Deter”
pattern instructions, which are specifically designed for circumstances where
an accused displays or brandishes a weapon in order to deter an assault.
Benchbook, para. 5-2-5. Appellant’s requested instructions read, in pertinent
part:
There is evidence in this case that PFC Johnson brandished
two knives solely to defend himself by deterring LCpl [V] ra-
ther than for the purpose of actually injuring LCpl [V].
A person may, acting in self-defense, in order to frighten or
discourage an assailant, threaten more force than he is legally
allowed to actually use under the circumstances.
An accused who reasonably fears an immediate attack is al-
lowed to brandish ordinarily dangerous weapons, such as
knives, even though the accused does not have a reasonable
fear of serious harm, as long as he does not actually use the
weapons in a manner likely to produce grievous bodily harm.
Whether PFC Johnson was using the two knives as a deter-
rent, or was using them in a manner likely to cause death or
grievous bodily harm, is for you to decide. Your determination
rests on two factors. First, PFC Johnson must have reasonably
and honestly believed that LCpl [V] was about to inflict some
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Opinion of the Court
bodily harm on PFC Johnson. . . . Second, the accused must
have intended to use, and must in fact have used, the knives
only as a deterrent and not in a manner likely to produce death
or grievous bodily harm.
If you are satisfied beyond a reasonable doubt that the ac-
cused brandished the knives in a manner likely to produce
death or grievous bodily harm, rather than merely threatening
their use to deter LCpl [V], the defense of self-defense does not
exist. 12
Appellant argues these requested instructions were necessary because
Appellant was a “little man” who had a legal right to take reasonable
measures to protect himself, “rather than take [the] chance[ ] of being
knocked down and stamped into a jelly.” 13 The Defense emphasized that a
fight with LCpl V would not just be a brief dust-up. Against the 60-pound
lighter and nine-inch shorter Appellant, LCpl V’s bare fists would impart a
severe beating and substantially risk grievous bodily harm in and of
themselves. Given Appellant’s comparatively diminutive size and fear of the
much bigger LCpl V if they fought, the Defense argued Appellant’s sound
option to ward off such an attack was to brandish knives in a show of force to
deter LCpl V from fighting him to begin with. 14
The military judge denied the Defense’s request for these tailored instruc-
tions, determining that the excessive-force-to-deter instructions are “only
applicable if the Accused does not actually use the weapons that he is
threatening the other person with.” 15 Since Appellant ended up stabbing
LCpl V with the knives that he initially brandished, the military judge
12 App. Ex. LXI at 7-8; Appellant’s Br. at 12.
13Record at 1352; Appellant’s Reply Br. at 14 (quoting United States v. Black, 31
C.M.R. 157, 161 (C.M.A. 1966) (internal quotation marks omitted)).
14 Record at 1054 (“show of force to deter” and “did not want to get a beating”),
1055 (“He armed himself with two knives. And his intent was to scare [LCpl V] so
that he wouldn’t give him that beating.”), 1406 (“He’s getting ready to carry on
through the threat and all Johnson does is drop the towel and show him the knives.
‘Not today, I’m not gonna stand here and just let you beat on me until, you know, my
face looks like some puddle of jelly. That’s not how it is. Yeah, I’m a little guy, I’m
140 pounds. But I’m not going to let it happen. Back off.’”), 1407 (“And all he did was
use the show of force to say, back off. I’m not going to eat this beating.”).
15 Record at 1349.
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Opinion of the Court
reasoned the requested instructions about display of force to deter did not
apply. Consequently, the self-defense instructions the military judge provided
were focused only on the use of force, in pertinent part as follows:
For self-defense to exist, the Accused must have had a reason-
able apprehension that death or grievous bodily harm or some
lesser degree of harm was about to be inflicted on himself, and
he must have actually believed that the force he used was nec-
essary to prevent death or harm to himself.
....
. . . If the Accused reasonably apprehended that death or
grievous bodily harm was about to be inflicted upon himself,
then he was permitted to use any degree of force actually be-
lieved necessary to protect against death or grievous bodily
harm. The fact that the Accused used excessive force, if you be-
lieve that, or that he used a different type of force than that
used by the attacker does not matter.
If the Accused reasonably apprehended that some harm less
than death or grievous bodily harm was about to be inflicted
upon his person, he was permitted to use the degree of force ac-
tually believed necessary to prevent that harm. However, the
Accused could not use force that was likely to produce death or
grievous bodily harm. The Accused was not required to use the
same amount or kind of force as the attacker.
To determine the Accused’s actual belief as to the amount of
force, which was necessary, you must look at the situation
through the eyes of the Accused. In addition to the circum-
stances known to the Accused at the time, the Accused’s age,
intelligence, and emotional control, as well as the relative
height, weight, and general build of the Accused and the al-
leged victim are all important factors to consider in determin-
ing the Accused’s actual belief about the amount of force re-
quired to protect himself. 16
Based on the evidence admitted at trial, we conclude the military judge
abused his discretion when he declined to provide the Defense-requested
16 Record at 1369-71.
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Opinion of the Court
instructions on the display of excessive force to deter. Analyzing the
requested instructions under the three-part test outlined in United States v.
Bailey, we find that first, the requested instructions are legally correct. They
are drawn directly from the excessive-force-to-deter instructions in the
Benchbook that are specifically designed to address the issue raised by
Appellant’s testimony—that he initially brandished the knives only to deter
LCpl V from attacking him.
The military judge’s conclusion that the excessive-force-to-deter instruc-
tions are only applicable if the Accused does not ultimately use the weapon
that he brandished is incorrect. While the military judge did not cite any
particular case for this proposition, 17 his reasoning may have stemmed from
United States v. Williams, in which this Court found no error in the trial
court’s refusal to give excessive-force-to-deter instructions where the
appellant stabbed the victim in the back while being held over the victim’s
shoulder and slammed against a brick wall. 2005 CCA LEXIS 320, at *10-11
(N-M. Ct. Crim. App. 2005) (unpub. op.). That case is distinguishable, how-
ever, because there the evidence made “clear that the appellant did not
threaten the force before using the force in a manner that could result in
grievous bodily harm.” 2005 CCA LEXIS 320, at *23 (emphasis added).
Indeed, in Williams, the victim neither saw the knife nor realized he had
been stabbed in the back until after he put the appellant down and saw blood.
Id. at *10.
Where the evidence supports that a deadly weapon is being displayed or
brandished as a means of deterring an assault in self-defense, prior to
actually being used as a weapon, both issues must be separately analyzed
and, where appropriate, instructed upon. Our sister court held as much in
United States v. Bradford, 29 M.J. 829 (A.C.M.R. 1989). In that case, after
being verbally challenged and then punched in the face by the victim, the
appellant brandished a switchblade knife in his hand in an effort to deter the
victim from further assaulting him. Id. at 831. Undeterred, the victim
nevertheless advanced on the appellant, grappled with him, and continued to
17In his oral ruling declining to provide the Defense-requested instructions, the
military judge provided little specificity in stating: “The reason I didn’t is because I
read the case law on this and that particular instruction is only applicable if the
Accused does not actually use the weapons that he is threatening the other person
with. And so that, according to case law supports this particular instruction, the fact
that he did use them would make this particular instruction inapplicable.” Record at
1349.
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Opinion of the Court
hit him with his fists, at which point the appellant stabbed him. The Army
Court of Military Review held that “both the infliction of and the offer to
inflict grievous bodily harm in self-defense were in issue . . . and should have
been instructed on by the military judge.” Id. at 833. The military judge thus
erred when he merely instructed on the display of force to deter an attack but
not the actual use of force in self-defense once an attack was mounted.
Under the facts and circumstances of this case, both the offer to inflict (by
displaying the knives) and the actual infliction of (by using the knives)
grievous bodily harm in self-defense were in issue and should have been
instructed upon by the military judge. Based on Appellant’s testimony, he
initially brandished the knives in an effort to deter LCpl V from attacking
him—in immediate response to provoking language from LCpl V and in the
wake of LCpl V’s repeated earlier statements that they would fight that
day. 18 Appellant testified he brandished the knives for a time period long
enough to exchange comments with LCpl V about them, before LCpl V made
the first physically aggressive move. This testimony warranted instructing
the members that the law allows a display of excessive force (in this case,
knives) in self-defense as a means of deterring an assault. 19
18 And unlike the appellant in Stanley, who brandished a pistol not just to break
up a fight (in defense of Colvin), but also to subdue his opponents and check them for
weapons, the evidence in this case supports the view that when Appellant initially
displayed the knives, he was not using them for anything other than trying to get
LCpl V to back down. Cf. Stanley, 71 M.J. at 63.
19 We reject the Government’s argument that an excessive-force-to-deter instruc-
tion is somehow prohibited by the language of R.C.M. 916(e)(2), simply because
Appellant was ultimately convicted of attempted voluntary manslaughter. Even if
that rule could be read to apply only to aggravated assaults, which is itself a dubious
proposition, we find that with respect to the initial confrontation in the barracks
room the issue is precisely whether (1) Appellant was acting lawfully in self-defense
because he (a) reasonably apprehended LCpl V was about to assault him and (b)
offered to apply means as would be likely to cause death or grievous bodily harm (i.e.,
brandished knives) in order to deter LCpl V from attacking; or (2) Appellant’s
brandishing of the knives was already an unlawful, offer-type aggravated assault
(which impacts whether Appellant could ever regain the right of self-defense from
that point forward). See R.C.M. 916(e)(2). This issue is very similar to the one our
superior court confronted, and divided on, in Stanley, and ultimately found could “be
determined only in the context of the surrounding circumstances.” Stanley, 71 M.J. at
63 (internal quotation marks and citation omitted).
13
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Opinion of the Court
We also emphasize in this regard that, while it is important for military
judges to be even-handed in their approach to the evidence, “the testimony of
the accused alone is sufficient to raise an issue requiring an instruction.”
Bradford, 29 M.J. at 832 (citing United States v. Wilson, 26 M.J. 10 (C.M.A.
1988); United States v. McGee, 1 M.J. 193 (C.M.A. 1975); United States v.
Stewart, 43 C.M.R. 140, 145 (C.M.A. 1971); United States v. Evans, 38 C.M.R.
36 (C.M.A. 1967)). As the court in Bradford aptly stated,
It is not necessary that the evidence which raises an issue
be compelling or convincing beyond a reasonable doubt. In-
stead, the instructional duty arises whenever “some evidence”
is presented to which the fact finders might “attach credit if”
they so desire.
Bradford, 29 M.J. at 832 (citing United States v. Jackson, 12 M.J. 163, 166-67
(C.M.A. 1981)); see also United States v. Taylor, 26 M.J. 127, 129 (C.M.A.
1988). Moreover, “any doubt whether the evidence is sufficient to require an
instruction should be resolved in favor of the accused.” Bradford, 29 M.J. at
832 (quoting United States v. Steinruck, 11 M.J. 322, 324 (C.M.A. 1981))
(internal quotation marks omitted).
Under the second prong of the test outlined in United States v. Bailey, we
find that the self-defense instructions given by the military judge, while
themselves legally correct, do not substantially cover the issue of threatening
or displaying excessive force as a means of deterring an attack. As the
military judge himself acknowledged, his instructions do not address the
issue of displaying force to deter at all, since he believed such instructions
were not applicable. Instead, his instructions jump directly to the use of force
in self-defense. But since the law specifically allows an accused to threaten
more force than he would be allowed to actually use under the circumstances,
as a means of frightening or discouraging an assailant, and this issue was
raised by the evidence, it merited attention and explanation in the instruc-
tions.
While the military judge’s instructions did discuss the Accused’s ability to
“use any degree of” force he believed necessary (under certain circumstances
and with certain limitations), this language does not adequately cover the
issue of displaying or threatening deadly force. First, the idea that displaying
a weapon is somehow automatically encompassed as a “degree of use” of that
weapon is not supported by the case law, which draws a clear distinction
between “displaying” or “threatening” deadly force and actually “using” such
force. See Stanley, 71 M.J. at 72 (“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.”)
(Baker, J, concurring); United States v. Martinez, 40 M.J. 426 (C.M.A. 1994)
(distinguishing between use of a knife as a deterrent and use of a knife in a
14
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Opinion of the Court
manner likely to “inflict grievous bodily harm”); United States v. Vargas-
Acosta, 32 C.M.R. 388, 393 (C.M.A. 1962) (distinguishing the use of a
dangerous weapon as a “deterrent” to an assault from an “aggressive” use of
such weapon to “attempt to take life or inflict grievous bodily harm”). 20
Second, the blending of such terms with distinct, everyday meanings does
not comport with the duty of trial judges to ensure that their instructions
“provide an accurate, complete, and intelligible statement of the law.”
Behenna, 71 M.J. at 232 (emphasis added). As our superior court announced
in Stanley, “[o]ne may deliberately arm himself for purposes of self-defense
against a pernicious assault which he has good reason to expect.” 71 M.J. at
63 (quoting Peterson, 483 F.2d at 1233). Certainly, “arming” oneself is
different than “using” or “employing” those arms; just as “offering to use”
deadly force is different than “actually using” such force. See United States v.
Marbury, 56 M.J. 12, 19 (2001) (Gierke, J, dissenting) (“A defender may
lawfully defend herself by offering to use deadly force, without intending to
actually use it, if she reasonably believes that the attacker is about to inflict
any bodily harm, not necessarily death or grievous bodily harm.”) (emphasis
added). This legal distinction between “displaying” and “using” a deadly
weapon in self-defense is vital to fully evaluating the issue in the context of
the surrounding circumstances.
Here, in failing to differentiate between the lawful display and the lawful
use of the knives, the military judge’s self-defense instructions were
ultimately inadequate and misleading. The inadequacy of the instructions
was made clear during closing arguments, where the Government main-
tained:
If PFC Johnson had felt that there was some lesser force other
than . . . death or grievous bodily harm, then he could use that
degree of force necessary to deter someone, but not deadly
force. And that’s what PFC Johnson deployed when he clicked
open both knives in front of [LCpl V]. In his own words, he
brought weapons that were deadly that could kill someone to
that interaction. He responded to words with deadly weapons. 21
20 Indeed, blurring this clear distinction would essentially ignore every case
precedent upon which excessive-force-to-deter instructions are based and render
superfluous that entire section (5-2-5) of the Benchbook.
21 Record at 1392 (emphasis added).
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United States v. Johnson, NMCCA No. 201800249
Opinion of the Court
This argument is not only misleading to the point of being an inaccurate
statement of the law, but was fostered by the trial court’s self-defense
instructions, which failed to distinguish between when a person may lawfully
display deadly force and when a person may lawfully use deadly force. The
point of the excessive-force-to-deter instructions is to inform the members
that in self-defense an accused can lawfully display deadly force to deter
someone from assaulting him (even in response to mere words signaling an
attack is imminent). Without the more tailored instructions requested by the
Defense, this important nuance is simply lost.
On the third prong of the Bailey test, we conclude the Defense-requested
instructions were on an issue so vital to the case that the failure to give the
requested instructions seriously impaired the effective presentation of
Appellant’s defense of self-defense. The Defense’s whole theory was premised
on demonstrating that Appellant’s small size made him vulnerable if the
much larger LCpl V engaged him in a fistfight, the danger of which made it
reasonable for Appellant to resort to arming himself—and eventually
brandishing those arms—as a means of trying to avoid the fight altogether. 22
Indeed, where the 5´8˝, 140-pound Appellant was facing a beating from his
6´5˝, 200-pound roommate, and testified that he brandished his knives to try
to deter his roommate from attacking him, the military judge’s failure to
provide the Defense-requested instruction completely undercut Appellant’s
defense.
2. Proposed Defense instructions on escalation of force
The second set of tailored self-defense instructions Appellant sought at
trial were based on pattern instructions in the Benchbook for circumstances
where an adversary escalates the level of conflict. See Benchbook, para. 5-2-6,
Note 8. The instructions submitted by the Defense were designed to address
the issues raised by Appellant’s testimony that after he brandished the
knives to scare off LCpl V, the undeterred LCpl V assumed a “boxer stance”
and reached for one of the knives. Appellant testified that at that point he
was afraid not just of getting pummeled by his much larger roommate’s fists,
but also of getting stabbed with his own knife. In that context Appellant
testified he instinctively brought up his right hand—the hand LCpl V was
reaching for—and stabbed LCpl V in the shoulder (and then inflicted other
22 The Defense counsel’s opening statement was that Appellant “didn’t want to
get a beating from [LCpl V]. He armed himself with two knives. And his intent was to
scare [LCpl V] so that he wouldn’t give him that beating.” Record at 1053.
16
United States v. Johnson, NMCCA No. 201800249
Opinion of the Court
cuts once LCpl V grabbed Appellant’s wrists and pinned him to the bed, in an
effort to get LCpl V off of him). The Defense-requested instructions read, in
pertinent part:
I just instructed you that an accused who reasonably fears
an immediate attack is allowed to brandish ordinarily danger-
ous weapons, such as knives, even though the accused does not
have a reasonable fear of serious harm, as long as he does not
actually use the weapons in a manner likely to produce griev-
ous bodily harm, but there is an exception to that instruction.
If a person, in order to frighten or discourage an adversary,
brandishes ordinarily dangerous weapons such as knives, and
that effort to deter is unsuccessful and the adversary escalates
the level of conflict, then the accused was entitled to act in self-
defense if he was in reasonable apprehension of immediate
death or grievous bodily harm. Therefore, if the adversary esca-
lated the level of the conflict to one involving force likely to
produce death or grievous bodily harm and thereby placed the
accused in reasonable apprehension of immediate death or
grievous bodily harm, the accused was entitled to use force he
actually believed was necessary to prevent death or grievous
bodily harm.
Accordingly, if you have a reasonable doubt that the adver-
sary did not escalate the level of conflict to one involving force
likely to produce death or grievous bodily harm and thereby
placed the accused in reasonable apprehension of immediate
death or grievous bodily harm, the accused was entitled to act
in self-defense. You must then decide if the accused acted in
self-defense. 23
The military judge denied the Defense request and only provided the
standard Benchbook instructions on the escalation of force (which the
Defense also requested to follow its proposed tailored instructions):
There exists evidence in this case that the Accused may
have intentionally provoked the incident or voluntarily en-
gaged in mutual fighting. A person who intentionally provoked
an attack upon himself or voluntarily engaged in mutual
23 App. Ex. LXI at 8; Appellant’s Brief at 12-13.
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United States v. Johnson, NMCCA No. 201800249
Opinion of the Court
fighting is not entitled to self-defense unless he previously
withdrew in good faith or unless it was physically impossible
for him to withdraw in good faith or unless the adversary esca-
lated the level of conflict.
A person has provoked an attack and therefore given up the
right to self-defense if he willingly and knowingly does some
act toward the other person reasonably calculated and intended
to lead to a fight or deadly conflict. Unless such act is clearly
calculated and intended by the Accused to lead to a fight or
deadly conflict, a right to self-defense is not lost.
. . . 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 [LCpl V] or voluntarily
engaged in mutual fighting, then you have found that the Ac-
cused gave up his 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 combat,
then you must conclude that the Accused retained the right to
self-defense and then you must determine if the Accused actu-
ally 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 adversary escalated the level of the conflict then the Ac-
cused was entitled to act in self-defense if he was in reasonable
apprehension of immediate death or grievous bodily harm.
Therefore, if the Accused intentionally provoked an attack up-
on himself by using force not likely to produce death or griev-
ous bodily harm or voluntarily engaged in mutual fighting not
involving force likely to produce death or grievous bodily harm
and the adversary escalated the level of the conflict to one in-
volving force likely to produce death or grievous bodily harm,
then thereby placed the Accused in reasonable apprehension of
immediate death or grievous bodily harm, the Accused was en-
titled [to] use force he actually believed was necessary to pre-
vent death or grievous bodily harm.
Accordingly, even if you find beyond a reasonable doubt
that the Accused intentionally provoked an attack upon himself
by using force not likely to produce death or grievous bodily
harm or voluntarily engaged in mutual fighting not involving
force likely to produce death or grievous bodily harm, but you
have a reasonable doubt that the adversary did not escalate the
18
United States v. Johnson, NMCCA No. 201800249
Opinion of the Court
level of the conflict to one involving force likely to produce
death or grievous bodily harm and thereby placed the Accused
in reasonable apprehension of immediate death or grievous
bodily harm, the Accused was entitled to act in self-defense.
You must then decide if the Accused acted in self-defense. 24
Analyzing the requested instructions under the three-prong test outlined
in Bailey, we conclude the military judge erred in not providing them as well.
First, the requested instructions are legally correct. Derived from the
Benchbook instructions on escalation of force, they are appropriately tailored
to address the issue raised by Appellant’s testimony that after displaying the
knives failed to deter LCpl V from attacking him, he began using them when
LCpl V actually reached for one of the knives. 25 The use of such instructions
under the circumstances of this case is supported by a variety of case
precedents. See, e.g., Martinez, 40 M.J. at 428 (finding it error not to instruct
appellant could use knife when brandishing it failed to deter assailants who
were unarmed but outnumbered and outsized appellant enough to justify use
of dangerous weapon in self-defense); Black, 31 C.M.R. at 161 (finding no
absolute prohibition against using a deadly weapon to repel unarmed assault;
otherwise it would mean “the assaulted party must stand and take his
chances of being knocked down and stamped into a jelly . . . before he can
lawfully use a weapon in his defense”) (citations and internal quotation
marks omitted); United States v. Bransford, 44 M.J. 736, 738 (A.C.C.A. 2006)
(finding that under some circumstances fists can constitute means likely to
produce grievous bodily harm, authorizing use of deadly force).
Second, the more limited escalation instructions given by the military
judge, while drawn from the Benchbook, do not substantially cover the issue
of escalation in the context of initially brandishing a weapon as a means of
deterring an attack. On their face, the military judge’s escalation instructions
only apply where the members find that the Accused “intentionally provoked
an attack” upon himself or “voluntarily engaged in mutual fighting.” While
those issues may also have been raised by the evidence, the military judge’s
instructions do not address the contextual issue raised by Appellant’s
testimony that after the display of deadly force failed to deter LCpl V from
attacking him, the level of force used escalated as a result of LCpl V’s actions.
24 Record at 1373-75.
25 Even on LCpl V’s account, it was LCpl V who made the first physically aggres-
sive move, shoving Appellant into a wall locker after seeing the knives.
19
United States v. Johnson, NMCCA No. 201800249
Opinion of the Court
Rather, the instructions as given compound the problem caused by the failure
to give the requested excessive-force-to-deter instructions to the point of
suggesting that at the beginning of the standoff, the Accused could only be
viewed as already legally in the wrong.
Having never been informed of a person’s legal right to display a deadly
weapon to try to avoid a fight, then unless they were convinced Appellant
reasonably apprehended death or grievous bodily harm was about to be
inflicted on him when he brought out the knives, the members were left with
the conclusion that Appellant was legally in the wrong for pulling out the
knives in the first place. In other words, once Appellant brought his knives
out from under the towel (which would almost certainly appear unlawful
absent the excessive-force-to-deter instructions), the members would
naturally conclude he was already “using” force likely to produce death or
grievous bodily harm. 26 Thus, it would be extraordinarily difficult for them to
find under the escalation instructions given that it was even possible for
LCpl V to escalate the conflict (because, based on the way the two sets of
instructions were written, Appellant had already escalated the conflict by
pulling out his knives in the first place).
This instructional scheme left the Defense little or no basis in the instruc-
tions to argue that Appellant retained the right of self-defense because
LCpl V’s actions escalated the conflict. As the Defense explained during its
opening statement,
What [Appellant] intend[s] is once [LCpl V] sees [the
knives] he thinks [LCpl V] will back off, but he does not. In-
stead what he does is he comes at him and grabs for the knives
and now [Appellant] is in a fight for his life. 27
The Defense intended to make this argument in closing with reference to
its requested tailored instructions; however, when the military judge refused
to give the Defense-requested instructions, the Defense was forced to
withdraw language from its closing slides and argument that would have
clarified and vastly strengthened the presentation of its self-defense case on
these pivotal issues. 28 That left the Defense with a watered-down version of
26 See supra, note 21 and accompanying text.
27 Record at 1061.
28 Record at 1352-56.
20
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Opinion of the Court
its self-defense argument—the centerpiece of its entire theory of the case—
deprived of any real purchase in the actual language of the instructions.
By contrast, the Government hammered down on precisely the issue
caused by the erroneous instructions, arguing in its own closing slides that
Appellant was “NOT ENTITLED to the Right of Self Defense” because he
“EMPLOYED DEADLY FORCE IN RESPONSE TO A QUESTION.” 29 This
misleading argument did have basis in the language of the instructions
given, even though it runs counter to the well-established principle that “a
defendant who comes armed to an interview does not automatically lose his
right to self-defense.” Stanley, 71 M.J. at 72 n.5 (Baker, J, concurring) (citing
United States v. Moore, 35 C.M.R. 159, 165-66 (C.M.A. 1964)). The end result
was that the Defense had no means to offer a meaningful, instruction-based
response on its side of this pivotal issue. 30
Third, we conclude the Defense-requested escalation instructions—whose
tailored adjustments would have warded off such one-way conclusions—were
on such a vital point in the case that the failure to give them seriously
impaired the effective presentation of Appellant’s defense of self-defense. As
discussed above, the Defense’s entire theory of the case revolved around the
argument that Appellant sought to deter an attack by threatening deadly
force (knives), and only resorted to using such force when the undeterred
LCpl V reached for one of the knives. The refusal to give the tailored
escalation instructions to fairly and adequately address these contextual
nuances—when combined with the trial counsel’s misleading arguments on
29 App. Ex. LIX, page 13 (emphasis added).
30 We note that “the military judge should not give undue emphasis to any evi-
dence favoring one party.” United States v. Damatta-Olivera, 37 M.J. 474, 478-79
(C.M.A. 1993). But giving an instruction tailored to the evidence presented, even if
that evidence may be more favorable to one side, does not necessarily give it undue
emphasis. The more fundamental requirement is that the trial judge, upon request,
must instruct on any issue raised by the evidence “without regard to its source or
credibility . . . upon which members might rely if they choose.” R.C.M. 920(e),
Discussion. In light of this broad requirement, we cannot overemphasize the duty of
trial judges to (1) thoroughly examine the evidence from both parties’ perspectives, in
order to ensure the instructions “fairly and adequately cover the issues presented . . .”
United States v. Bailey, 77 M.J. 11, 13-14 (C.A.A.F. 2017) (citations omitted)
(emphasis added); and then (2) critically evaluate the instructions from the members’
perspective, in order to ensure they “provide an accurate, complete, and intelligible
statement of the law.” United States v. Behenna, 71 M.J. 228, 232 (C.A.A.F. 2012)
(emphasis added).
21
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Opinion of the Court
these key issues—severely hampered Appellant’s ability to present a
complete defense of self-defense.
3. Prejudice
As we have found instructional error, we must now test for prejudice. In
cases of instructional error regarding self-defense, “because there are
constitutional dimensions at play, [Appellant’s] claims must be tested for
prejudice under the standard of harmless beyond a reasonable doubt.” United
States v. Dearing, 63 M.J. 478, 482 (C.A.A.F. 2006) (citation and internal
quotation marks omitted); see also United States v. Davis, 76 M.J. 224, 228
(C.A.A.F. 2017). Specifically, “[o]nce it is determined that a specific instruc-
tion is required but not given, the test . . . is whether it appears beyond a
reasonable doubt that the error complained of did not contribute to the
verdict obtained.” Dearing, 63 M.J. at 484 (citation and internal quotation
marks omitted).
Here, the shortcomings of the erroneous instructions “essentially under-
cut the defense theory and could very well have contributed to the finding of
guilty.” United States v. Lewis, 65 M.J. 85, 89 (C.A.A.F. 2007). While not
legally incorrect, the instructions given were simply not complete enough to
“provide necessary guideposts for an informed deliberation on the guilt or
innocence of the accused.” Dearing, 63 M.J. at 479 (citation and internal
quotation marks omitted). As such, and in light of the competing testimony
and other evidence adduced in this case, we are unable to find beyond a
reasonable doubt that the instructional error did not contribute to Appellant’s
conviction. We therefore find prejudice that can only be remedied through
reversal.
III. CONCLUSION
Accordingly, the findings and sentence as approved by the convening
authority are SET ASIDE. A rehearing is authorized on the charge of
attempted voluntary manslaughter and its lesser included offenses.
Chief Judge CRISFIELD, Senior Judges KING, HITESMAN, and TANG,
and Judges LAWRENCE, STEPHENS, and STEWART concur.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
22