                        UNITED STATES, Appellant

                                         v.

               Terrel L. LEWIS, Private First Class
                        U.S. Army, Appellee

                                  No. 07-5002
                         Crim. App. No. 20030835

       United States Court of Appeals for the Armed Forces

                          Argued March 12, 2007

                          Decided June 13, 2007

STUCKY, J., delivered the opinion of the Court, in which EFFRON,
C.J., and BAKER, ERDMANN, and RYAN, JJ., joined.


                                     Counsel


For Appellant: Captain Adam S. Kazin (argued); Colonel John W.
Miller II, Lieutenant Colonel Michele B. Shields, and Major Tami
L. Dillahunt (on brief).


For Appellee: Captain Frank B. Ulmer (argued); Colonel John T.
Phelps II, Lieutenant Colonel Steven C. Henricks, and Major
Billy B. Ruhling II (on brief).

Amicus Curiae for Appellee: Steven H. Goldblatt, Esq.
(supervising attorney), Brendon DeMay (law student), and Martin
A. Hewett (law student) (on brief) - for the Appellate
Litigation Program, Georgetown University Law Center.

Military Judge:    Robin L. Hall
            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Lewis, No. 07-5002/AR


     Judge STUCKY delivered the opinion of the Court.

     The Judge Advocate General of the Army certified this case

to this Court to determine whether the United States Army Court

of Criminal Appeals incorrectly held that the military judge

erred in refusing to give an instruction that a mutual combatant

could regain the right to self-defense when the opposing party

escalates the level of conflict, even when the combatant does

not withdraw in good faith.   We affirm the lower court and hold

that Rule for Courts-Martial (R.C.M.) 916(e) is not inconsistent

with prior precedent on the right to self-defense.

     A general court-martial composed of officer and enlisted

members convicted Appellee, contrary to his pleas, of aggravated

assault with a dangerous weapon, a violation of Article 128,

Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 928 (2000).

The sentence adjudged by the court-martial, and approved by the

convening authority, included a dishonorable discharge,

confinement for eighteen months, forfeiture of all pay and

allowances, and reduction to the lowest enlisted grade.   Citing

United States v. Dearing, 63 M.J. 478 (C.A.A.F. 2006), the

United States Army Court of Criminal Appeals reversed, holding

that the military judge erred when she refused to instruct the

members that a mutual combatant can regain the right to self-

defense if the other side escalates the level of conflict.




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United States v. Lewis, No. 07-5002/AR


United States v. Lewis, No. ARMY 20030835 (A. Ct. Crim. App.

Oct. 18, 2006).

                                  I.

     Appellee’s conviction stems from a fight outside a German

club that left two people with multiple stab wounds.   Private

Harvey, the alleged victim, does not remember the incident.

He recalls going to an off-post club with his friend, Mr.

Bryant.   Private Harvey went into the club for a short time,

then left the club and saw Appellee leaning against a vehicle

outside the club.   The next thing Private Harvey remembers is

waking up on the ground, covered in blood, and somebody telling

him not to die.

     Several other people testified, including Mr. Bryant

(Private Harvey’s friend), Specialist Trexler (an acquaintance

of the Appellee, who had just approached Appellee to ask him if

he wanted to share a taxi ride back to the post), Mr. Vareen (a

sixteen-year-old acquaintance of Private Harvey and Mr. Bryant),

and Private First Class Felder.

     The witnesses explained that the fight started when Mr.

Bryant and Private Harvey approached Appellee and Specialist

Trexler, who were waiting for a taxi, and asked for a cigarette.

Appellee denied having a cigarette.

     Specialist Trexler testified that, when denied a cigarette,

Private Harvey started to throw a punch, but Appellee charged


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United States v. Lewis, No. 07-5002/AR


him and both ended up on the ground.   Private First Class Felder

saw Private Harvey pick Appellee up and “slam” Appellee to the

ground.   Mr. Bryant, Mr. Vareen, and Private First Class Felder

all recall seeing Appellee and Private Harvey on the ground,

with Appellee on the bottom and Private Harvey on the top.    Mr.

Bryant described the fracas as looking “like they were

wrestling.”   Private First Class Felder recalled Private Harvey

punching Appellee in the face and torso and “beating him up.”

He testified Private Harvey was “basically just winning –-

winning the fight.”

     Mr. Bryant testified he noticed Private Harvey was not

moving, so he entered the fight and kicked Appellee in the head.

Mr. Vareen recalls that Mr. Bryant, who is a powerlifter, kicked

Appellee in the face four or five times as Appellee laid on the

ground with Private Harvey on top of him.   Private First Class

Felder also recalled Mr. Bryant joined the fight and kicked

Appellee in the face.

     Mr. Vareen testified that Appellee had Private Harvey in a

headlock with his left arm and stabbed Private Harvey “about

sixteen or seventeen times” with a knife held in his right hand.

Private First Class Felder also recalled seeing Appellee stab

Private Harvey in the upper back area “probably eight to ten”

times after Mr. Bryant had entered the fight.




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United States v. Lewis, No. 07-5002/AR


     Specialist Trexler testified he got between Mr. Bryant and

Appellee in order to stop the fight.   He said when Appellee was

able to get up from the ground, they immediately left the club’s

parking lot.   Mr. Vareen also testified that Appellee stopped

stabbing Private Harvey once he was able to get up.

     It is not surprising there is differing testimony from

eyewitnesses and those involved in the fight; however, there is

some evidence upon which the members could rely, if they chose,

to find that Appellee and Private Harvey were engaged in mutual

combat and that Appellee defended himself.

     The military judge determined that the evidence presented

raised the special defense of self-defense, and instructed the

members on the issue.   The certified question here is whether

the instruction given was correct.   The military judge

instructed:

     There exists evidence in this case that the
     accused may have been a person who voluntarily
     engaged in mutual fighting. A person who
     voluntarily engaged in mutual fighting, is not
     entitled to self defense unless he previously
     withdrew in good faith. The burden of proof on
     this issue is on the prosecution. If you are
     convinced beyond a reasonable doubt that the
     accused voluntarily engaged in mutual fighting,
     then you have found that the accused gave up the
     right to self defense.

Emphasis added.

     Appellee’s civilian defense counsel objected to this

language, arguing that a combatant engaged in mutual fighting is


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United States v. Lewis, No. 07-5002/AR


not required to withdraw in good faith to assert the right to

self-defense, when the situation escalates to the point that the

combatant is in fear of death or grievous bodily harm.   The

military judge disagreed, saying she did not believe the law on

self-defense changed when a mutual fight escalates.    She said

“It’s mutual combat or it’s not mutual combat.”   Without the

benefit of the defense-requested instruction, the members

convicted Appellee of aggravated assault with a dangerous weapon

for stabbing Private Harvey, a lesser included charge of the

attempted murder with which he was originally charged.   The

members acquitted Appellee of stabbing Mr. Bryant.

     The Army Court of Criminal Appeals found that the military

judge erred and set aside the findings and sentence.   Lewis, No.

ARMY 20030835, slip op. at 7.   The Judge Advocate General of the

Army certified the issue to this Court.

                                II.

     A military judge is required to instruct the members on

special (affirmative) defenses “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 admitted upon

which members might rely if they choose.”    R.C.M. 920(e)

Discussion; United States v. Gillenwater, 43 M.J. 10, 13

(C.A.A.F. 1995).   Self-defense is considered a special defense,

because “although not denying that the accused committed the


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United States v. Lewis, No. 07-5002/AR


objective acts constituting the offense charged, [self-defense]

denies, wholly or partially, criminal responsibility for those

acts.”   R.C.M. 916(a).

     If an instruction is mandatory, as here, this Court will

review allegations of error under a de novo standard of review.

United States v. Bean, 62 M.J. 264, 266 (C.A.A.F. 2005); United

States v. Forbes, 61 M.J. 354, 357 (C.A.A.F. 2005).    When the

instructional error raises constitutional implications, the

error is tested for prejudice using a “harmless beyond a

reasonable doubt” standard.   United States v. Wolford, 62 M.J.

418, 420 (C.A.A.F. 2006).   “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.’”    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)).

     The Government challenges the Court of Criminal Appeals’

conclusion that the military judge improperly instructed the

members on the issue of self-defense.    It argues that R.C.M.

916(e)(4) precludes the use of self-defense in any situation

where the accused was an aggressor or provoked the attack, and

did not first withdraw in good faith after the aggression,

fight, or provocation.    It further argued that R.C.M. 916(e)(4)

directly conflicts with this Court’s precedents, United States


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United States v. Lewis, No. 07-5002/AR


v. Cardwell, 15 M.J. 124 (C.M.A. 1983), and Dearing, 63 M.J. at

478.   Appellant argues that the Rule is not substantive criminal

law and because the President has the power under Article 36,

UCMJ, 10 U.S.C. § 836 (2000), to promulgate rules establishing

court-martial procedure and evidence, both Cardwell and Dearing

must be overruled.   See United States v. Czeschin, 56 M.J. 346,

348 (C.A.A.F. 2002) (an unambiguous presidential rule granting

greater rights than a higher source governs, unless it

contradicts express statutory language); cf. Ellis v. Jacob, 26

M.J. 90, 92 (C.M.A. 1988) (President’s rulemaking authority does

not extend to substantive military criminal law).

       In Cardwell, a case decided prior to the promulgation of

the Rules for Courts-Martial, we applied common law principles

of self-defense to an aggressor, holding that he had the right

to use self-defense when the opposing party escalated the level

of the conflict.   15 M.J. at 126.    In Dearing, we held,

consistent with Cardwell, that it was error for the military

judge to refuse to instruct that if a conflict escalates, the

initial aggressor is entitled to defend himself.    63 M.J. at

482-84.   The Government essentially recognizes Dearing as

controlling in the instant case, because, as noted above, it

argues that the decision is in conflict with R.C.M. 916(e)(4)

and should be overruled.




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United States v. Lewis, No. 07-5002/AR


     We need not reach the issue of the extent of the

President’s power to promulgate R.C.M. 916(e)(4), because we

find no conflict between the Rule and either Cardwell or

Dearing.

     We use well-established principles of statutory

construction to construe provisions in the Manual for Courts-

Martial.    United States v. McNutt, 62 M.J. 16, 20 n.27 (C.A.A.F.

2005); United States v. Lucas, 1 C.M.A. 19, 22, 1 C.M.R. 19, 22

(1951).    Statutory construction begins with a look at the plain

language of a rule.   United States v. Ron Pair Enterprises,

Inc., 489 U.S. 235, 241-42 (1989).    The plain language will

control, unless use of the plain language would lead to an

absurd result.   United States v. Martinelli, 62 M.J. 52, 81 n.24

(C.A.A.F. 2005) (Crawford, J., dissenting) (“‘When the statute’s

language is plain, the sole function of the courts -- at least

where the disposition required by the text is not absurd -- is

to enforce it according to its terms.’” (quoting Hartford

Underwriters Ins. Co. v. Union Planters Bank, N. A., 530 U.S. 1,

6 (2000))); see also Lamie v. United States Trustee, 540 U.S.

526, 534 (2004) (bankruptcy statute, although grammatically

awkward, is not ambiguous and should be enforced according to

its plain meaning, as long as that result is not absurd).




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United States v. Lewis, No. 07-5002/AR


     R.C.M. 916(e)(4) 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 [that the accused was about to
     suffer death or grievous bodily harm], unless the
     accused had withdrawn in good faith after the
     aggression, combat, or provocation and before the
     offense alleged occurred.

     While R.C.M. 916(e)(4) sets out a duty to withdraw under

certain circumstances in order to avail oneself of the defense

of self-defense, it does not address either escalation in

general or the specific situation in which the original

aggressor or someone engaged in mutual combat is not able to

“withdraw[] in good faith.”   The Rule’s silence regarding an

inability to withdraw creates an ambiguity similar to those we

resolved in Cardwell and Dearing through an application of

common law self-defense principles.

     As we said in Cardwell, “The principles of law applicable

to self-defense are well settled.      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.

     In this case, there was evidence that Private Harvey was on

top of Appellee, punching him to the point that it looked to a

witness that Private Harvey was “winning the fight.”     Here, the

members could have found that Appellee could not withdraw, even



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United States v. Lewis, No. 07-5002/AR


if he wanted to.   When Mr. Bryant, a competitive powerlifter,

entered the fray and delivered kicks to Appellee’s head and face

the members could have found that Appellee was unable to

withdraw, even if he wanted to.    He was on the ground,

underneath Private Harvey.   Once Mr. Bryant escalated the fight

to the level that Appellee could reasonably apprehend he would

suffer death or grievous bodily injury from kicks to his head

and punches to his body, Appellee was entitled, under our

decision in Dearing, to defend himself even if he was the

original aggressor or was engaged in mutual combat, as long as

he responded in a manner proportionate to the threat he faced.

United States v. Acosta-Vargas, 13.C.M.A. 388, 393, 32 C.M.R.

388, 393 (1962).   The fact that Appellee was placed in a

situation in which it was physically impossible for him to

withdraw, even if he had wanted to, is, as noted above, not

addressed in R.C.M. 916(e)(4).    We do not believe that the

President, in promulgating this Rule, intended the absurd result

of requiring a mutual combatant or even an initial aggressor, to

withdraw when he is physically incapable of doing so.      See

United States v. Leonard, 21 M.J. 67, 69 (C.M.A. 1985) (Rules

for Courts-Martial, like statutes, are to be construed

reasonably, to effectuate the purposes of the particular rule.)

     The self-defense instruction given in this case was

therefore incomplete.   The military judge erred in not


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United States v. Lewis, No. 07-5002/AR


instructing the members that a mutual combatant could regain the

right to self-defense when the conflict is escalated or, as

here, when he is unable to withdraw in good faith.

     Having found instructional error, we test for prejudice.

In Dearing, we concluded that the military judge’s failure to

give a complete and correct self-defense instruction created a

constitutional error, requiring us to determine whether the

error was harmless beyond a reasonable doubt.   63 M.J. at 484.

In assessing prejudice under this standard, the Government must

prove, beyond a reasonable doubt, that the instructional error

did not contribute to the members’ guilty findings.   Id. (citing

United States v. McDonald, 57 M.J. 18, 20 (C.A.A.F. 2002)).

     We conclude that the error was not harmless beyond a

reasonable doubt.   The incomplete instruction essentially

undercut the defense theory and could very well have contributed

to the finding of guilty.   The members in this case were told

that if they found Appellee was engaged in mutual combat or

provoked the fight, he could not assert self-defense, if he did

not first withdraw from the original fight.   This incomplete

instruction prevented Appellee from fully asserting that he

rightfully defended himself (1) after an escalation of violence;

and (2) when he was incapable of withdrawing in good faith.




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United States v. Lewis, No. 07-5002/AR


                               III.

     The decision of the United States Army Court of Criminal

Appeals is affirmed.   The record of trial is returned to the

Judge Advocate General of the Army.   A rehearing is authorized.




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