UNITED STATES, Appellee
v.
Thomas J. SCHUMACHER, Staff Sergeant
U.S. Marine Corps, Appellant
No. 11-0257
Crim. App. No. 201000153
United States Court of Appeals for the Armed Forces
Argued October 11, 2011
Decided December 7, 2011
STUCKY, J., delivered the opinion of the Court, in which BAKER,
C.J., ERDMANN and RYAN, JJ., and EFFRON, S.J., joined.
Counsel
For Appellant: Major Kirk Sripinyo, USMC (argued).
For Appellee: Lieutenant Ritesh Srivastava, JAGC, USN (argued);
Colonel Louis J. Puleo, USMC, and Brian K. Keller, Esq. (on
brief); Colonel Kurt J. Brubaker, USMC.
Military Judge: John R. Ewers
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Schumacher, No. 11-0257/MC
Judge STUCKY delivered the opinion of the Court.
We granted review in this case to determine whether the
military judge erred by not giving a self-defense instruction in
regard to an assault charge for pointing a pistol at a member of
the military police (MP). We also specified an additional
issue, without briefs: Whether the specification alleging
communication of a threat under Article 134, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. § 934 (2006), failed to state
an offense. We hold that the military judge did not err in not
giving the self-defense instruction because the evidence did not
reasonably raise the defense. However, we remand the case to
the United States Navy-Marine Corps Court of Criminal Appeals
(CCA) to determine whether, in light of United States v. Fosler,
70 M.J. 225 (C.A.A.F. 2011), the specification alleging a
communication of a threat states an offense.
I.
A.
Contrary to Appellant’s pleas, a general court-martial with
members found Appellant guilty of failing to obey a
noncommissioned officer, two specifications of simple assault,
and communicating a threat in violation of Articles 92, 128,
134, UCMJ, 10 U.S.C. §§ 892, 928, 934 (2006). Appellant was
sentenced to a bad-conduct discharge, confinement for one year,
partial forfeitures, and reduction to the grade of E-3. The
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convening authority approved the sentence, and the CCA affirmed
the findings of guilty and the sentence approved by the
convening authority. United States v. Schumacher, No.
201000153, 2010 CCA LEXIS 389, at *20, 2010 WL 4840062, at *7
(N-M. Ct. Crim. App. Nov. 30, 2010) (unpublished).
B.
Appellant and his wife, Army Second Lieutenant KD, were
having a loud, prolonged confrontation in their on-base quarters
about KD’s deploying. During the argument, Appellant took KD’s
cell phone and refused to return it. In front of Appellant, KD
requested that her neighbor call the MPs. She thought that the
MPs would force Appellant to return her phone.
Upon hearing that the MPs were being called, Appellant went
to the garage to clean his guns, which was his hobby. The
neighbor calling the MPs heard a reference to a gun and told the
operator that she thought Appellant was going to get a gun.
KD followed Appellant into the garage, where he had a
pistol and a rifle out for cleaning. KD testified that “I told
him that, you know, well, obviously we both know the MPs are
coming and, you know, I told him, let’s just go outside, talk to
the MPs.” The MPs arrived approximately four minutes after KD’s
neighbor initiated the call.
The MPs testified that after hearing screaming from inside
the house they knocked and announced their presence as they
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entered, but KD testified she did not notice anyone enter the
house until the MPs were behind her with their guns drawn. One
of the MPs testified that they arrived dressed in “camouflage
utilities, our MP badge, and our MP gear -- our black gear with
our pistol and our OC spray, handcuffs, baton.” Both MPs
testified that when they were behind cover Appellant would point
both guns in KD’s general direction. But when Lance Corporal F,
an MP and the victim of the assault charge at issue, left cover,
Appellant would point the pistol in his direction. The MPs
testified that Appellant said “I’ve killed people before. It’s
nothing for me to kill a few fucking MPs,” while he waved his
pistol.
C.
When instructions to the members were being considered, the
military judge discussed with both parties whether a self-
defense instruction should be given in regard to the assault
charge against Lance Corporal F. During the discussion, the
military judge stated, “I don’t think there’s any evidence at
all that by the time he brandished that weapon towards the MPs
he didn’t realize they were MPs. Tell me if you disagree.”
Defense counsel responded, “I don’t disagree.”
Defense counsel’s theory at trial was that Appellant
“believes that [the MPs] are going to kill him even though he
knows they are MPs, and killing him in his eyes is not lawful
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United States v. Schumacher, No. 11-0257/MC
because he hasn’t done anything yet.” The military judge stated
that before one inquired into Appellant’s subjective belief that
there must be some objective showing of “whether or not
[Appellant] reasonably believed that an unlawful application of
force was going to be used against him.” The military judge
ultimately concluded that “[t]here’s no evidence of facts and
circumstance at the time of the alleged assault [on the MP] from
which the trier of fact could reasonably conclude that the
accused reasonably apprehended the wrongful infliction of bodily
harm by [the MP].”1
D.
On appeal, Appellant argues that, because KD testified that
she did not believe the MPs would enter her house uninvited,
“[t]he couple had no idea who the MPs were, and saw them as
armed intruders.” Appellant’s theory on appeal seems to be that
due to the confusing, fast-paced situation, Appellant initially
1
Appellant does not rely on this theory of error on appeal. The
military judge was correct in not giving the requested
instruction based on this theory. Military officials are
allowed to use reasonable force in carrying out their official
duties. See United States v. Shepherd, 33 M.J. 66, 69-70
(C.M.A. 1991). To conclude that a military official’s use of
force is wrongful for an instruction on self-defense, the
evidence must show that the military official either used
unreasonable force or was acting in something other than an
official capacity. See United States v. Lewis, 7 M.J. 348, 352
(C.M.A. 1979). Nothing presented during trial would have
allowed reasonable court members to find that the MPs were
acting outside of their official capacity or using unreasonable
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made a mistake of fact as to the identity of the armed men in
his house when the simple assault was first committed.
Appellant also contends that the military judge and the lower
court inappropriately passed judgment on the credibility of the
evidence when evaluating whether there was some evidence in the
record to support the self-defense instruction.2
II.
To present a valid claim for self-defense, the evidence
must show that the accused:
(A) Apprehended, on reasonable grounds, that
bodily harm was about to be inflicted wrongfully on
the accused; and
(B) In order to deter the assailant, offered but
did not actually apply or attempt to apply such means
or force as would be likely to cause death or grievous
bodily harm.
Rule for Courts-Martial (R.C.M.) 916(e)(2).
An allegation of error in regard to a failure to give a
mandatory instruction is reviewed de novo. United States v.
Lewis, 65 M.J. 85, 87 (C.A.A.F. 2007). A military judge must
instruct members on any affirmative defense that is “in issue.”
R.C.M. 920(e)(3). “A matter is considered ‘in issue’ when ‘some
evidence, without regard to its source or credibility, has been
force in light of the dangerous and dynamic situation they were
entering.
2
Appellant also contends that the military judge and the CCA
incorrectly stated the standard for determining whether an
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United States v. Schumacher, No. 11-0257/MC
admitted upon which members might rely if they choose.’” Lewis,
65 M.J. at 87 (quoting R.C.M. 920(e) Discussion; United States
v. Gillenwater, 43 M.J. 10, 13 (C.A.A.F. 1995)). In other
words, “some evidence,” entitling an accused to an instruction,
has not been presented until “there exists evidence sufficient
for a reasonable jury to find in [the accused’s] favor.”
Mathews v. United States, 485 U.S. 58, 63 (1988) (citing
Stevenson v. United States, 162 U.S. 313 (1896)); see also
United States v. Davis, 53 M.J. 202, 205 (C.A.A.F. 2000) (“When
evidence is adduced during the trial which ‘reasonably raises’
an affirmative defense . . . the judge must instruct the court
panel regarding that affirmative defense . . . .” (citing United
States v. Rodwell, 20 M.J. 264 (C.M.A. 1985))).
Thus, the military judge must answer the legal question of
whether there is some evidence upon which members could
reasonably rely to find that each element of the defense has
been established. This test is similar to that for legal
sufficiency. Cf. Jackson v. Virginia, 443 U.S. 307, 319 (1979);
see United States v. Black, 3 C.M.A. 57, 60, 11 C.M.R. 57, 60
(1953) (“Assuming the truth of each statement made by the
accused in explanation of his actions, we conclude that neither
of the distinguishing factors of voluntary manslaughter were
affirmative defense was raised. Even if true, this would not
affect our de novo review of the granted issue.
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United States v. Schumacher, No. 11-0257/MC
shown.”); see also United States v. Harris, 29 C.M.R. 810, 814
(A.F.B.R. 1960) (“Resolving all conflicts in the evidence in
favor of the accused, we find no basis for concluding that the
accused was using reasonable force which he reasonably believed
was necessary to eject his erstwhile guests, and no possibility
that the court members, however instructed, could have so
concluded.”).
III.
Appellant’s assertion that a self-defense instruction was
necessary because he believed that the individuals in his home
were unknown intruders is untenable. Appellant was present when
KD requested that her neighbor call the military police. The
military police arrived four minutes later. During the interim
period, KD was trying to persuade her husband to put away his
guns because “I told him that, you know, well, obviously we both
know the MPs are coming.” When the MPs arrived, they were
dressed in full military police attire including badges. While
in the process of waving the pistol around, Appellant stated
“I’ve killed people before. It’s nothing for me to kill a few
fucking MPs.”3
3
KD testified that she could not remember if Appellant did or
did not say this. As such, the MPs’ testimony on this point
remained uncontradicted.
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Although not dispositive, trial defense counsel did not
argue that a self-defense instruction should be given on an
intruder theory at trial. See United States v. Hibbard, 58 M.J.
71, 76 (C.A.A.F. 2003) (“Although the defense presentation at
trial is not dispositive in determining what affirmative
defenses have been reasonably raised by the evidence, we may
take into account the absence of [such an] approach from the
defense case when considering [whether the evidence reasonably
raised an affirmative defense].”). In fact, trial defense
counsel explicitly denied that the evidence could even make out
such a theory. The military judge stated, “I don’t think
there’s any evidence at all that by the time he brandished that
weapon towards the MPs he didn’t realize they were MPs. Tell me
if you disagree.” The defense responded, “I don’t disagree.”
Given the sequence of events, the physical appearance of
the MPs, Appellant’s statement indicating knowledge of who the
people were, and defense counsel’s concessions at trial, the
military judge determined there was no evidence that Appellant
reasonably perceived the infliction of wrongful bodily harm. In
doing so, we hold that he did not err.
IV.
We affirm the judgment of the United States Navy-Marine
Corps Court of Criminal Appeals as to Appellant’s convictions
for failing to obey a noncommissioned officer and the two
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specifications of simple assault. We set aside that part of the
judgment affirming Appellant’s conviction for communicating a
threat in violation of Article 134, UCMJ, and the sentence, and
remand for consideration in light of our decision in United
States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011).
10