United States v. Jemmings

COOK, Judge

(dissenting):

In assessing the implications of the accused’s responses, during the inquiry into the providence of his plea of guilty, I think it important to note that, although he admitted he could have left the scene of the burglary without further incident, he deliberately assaulted a guard and intentionally inflicted grievous bodily harm upon him. Neither at trial nor on this appeal has he suggested that the latter offense was induced by fear of harm to himself or his family. In my opinion, the circumstances of this aggravated assault cast a different light upon the accused’s statements than that in which they are viewed by the majority.

The defense of duress is available to an accused only if his commission of the crime charged resulted from reasonable fear of imminent death or grievous bodily harm to himself or his family. The risk of injury must continue throughout the criminal venture. See United States v. Fleming, 7 U.S.C.M.A. 543, 558, 23 C.M.R. 7, 22 (1957).

Here, while the accused represented he was confronted with various threats of injury, he admitted that he did not fear inju*419ry to himself or his family on the night of the incident. Moreover, he testified that while he was standing outside checking on the whereabouts of the security guard, “the guard came around the corner” and they met “face to face.” Rather than alerting the guard of his situation and commission of the crime taking place inside, he struck the guard with his hand, knocking the guard down. The guard then struck the accused. Thereafter, the accused struck the guard in the head and in the arms with a piece of lumber which the accused testified he believed to be “a pick handle.” The guard fell and the accused struck him again. Had the accused chosen to alert the guard rather than attacking him, at least the success of the criminal endeavor might have been aborted. As paragraph 216/ of the Manual for Courts-Martial, United States, 1969 (Rev.), indicates, when “the accused has a reasonable opportunity to avoid committing the act without subjecting himself to the threatened danger, his act is not excusable.” See United States v. Roby, 23 U.S.C.M.A. 295, 49 C.M.R. 544 (1975).

Considering the whole of the accused’s account of the circumstances of the commission of the offenses, I am satisfied the trial judge properly concluded the accused was not negating his plea of guilty by asserting an honest and reasonable belief that he could not escape participation in the burglary, without risk to his life or limb, or like danger to his family. Nor am I persuaded that his explanation indicates a present capability on the part of those threatening him to effectuate their threats of harm to his children if he refused to participate in perpetration of the offenses. I would, therefore, affirm the decision of the United States Army Court of Military Review.