                       UNITED STATES, Appellee

                                    v.

                     Aaron R. STANLEY, Sergeant
                        U.S. Army, Appellant

                              No. 11-0143

                       Crim. App. No. 20050703

       United States Court of Appeals for the Armed Forces

                       Argued October 11, 2011

                        Decided March 22, 2012

ERDMANN, J., delivered the opinion of the court, in which RYAN,
J., and EFFRON, S.J., joined. BAKER, C.J., filed a separate
opinion concurring in part and in the result, in which STUCKY,
J., joined.

                                 Counsel


For Appellant: Mary T. Hall, Esq. (argued); Captain John L.
Schriver (on brief); Captain Brent A. Goodwin.

For Appellee: Captain Julie A. Glascott (argued); Colonel
Michael E. Mulligan, Major LaJohnne A. White, Major Amber J.
Williams, and Captain Benjamin M. Owens-Filice (on brief);
Captain Frank E. Kostik Jr.

Military Judge:   Timothy Grammel


       This opinion is subject to revision before final publication.
United States v. Stanley, No. 11-0143/AR

     Judge ERDMANN delivered the opinion of the court.

     Sergeant Aaron R. Stanley pleaded guilty at a general

court-martial to wrongful possession of marijuana with the

intent to distribute, wrongful use and distribution of

methamphetamines on divers occasions, absence without leave,

violating a lawful order of a noncommissioned officer, and

adultery, in violation of Articles 112a, 86, 92, and 134,

Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 912a, 886,

892, 934 (2006).   Stanley pleaded not guilty to two

specifications of premeditated murder and one specification of

conspiracy to commit murder in violation of Articles 118 and 81,

UCMJ, 10 U.S.C. §§ 918, 881 (2006).   He was found guilty of all

charges except the conspiracy charge and a panel sentenced him

to a reprimand, reduction to E-1, forfeiture of all pay and

allowances, confinement for life without the eligibility for

parole, and a dishonorable discharge.   The convening authority

approved the adjudged sentence except for the reprimand, and

ordered that Stanley be credited with 271 days of confinement

credit.   The United States Army Court of Criminal Appeals (CCA)

affirmed the findings and the sentence.    United States v.

Stanley, No. ARMY 20050703, 2010 CCA LEXIS 348, 2010 WL 3927478

(A. Ct. Crim. App. Sept. 29, 2010).

     We granted review of this case to determine if the military

judge erred by not including the principle of escalation of



                                 2
United States v. Stanley, No. 11-0143/AR

force in the self-defense instructions provided to the members.1

A military judge is required to instruct members on any

affirmative defense that is “in issue,” and 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 chose.”    United States v. Lewis, 65 M.J. 85,

87 (C.A.A.F. 2007) (citation and quotation marks omitted).     We

hold that the military judge did not err in excluding the

principle of escalation of force in the self-defense

instructions to the members as the principle was not “in issue.”

                             Background

       Stanley, Staff Sergeant Matthew Werner, Sergeant Eric

Colvin, and Specialist Christopher Hymer were all involved in a

criminal enterprise to grow marijuana and manufacture

methamphetamines at a farmhouse rented by Stanley.   In the days

leading up to September 13, 2004, the day Stanley killed Werner


1
    We granted review of the following issue:

       Whether the military judge’s instructions on self-
       defense were incorrect and incomplete, and if so,
       whether the lower court erred in concluding that
       this constituted harmless error.

United States v. Stanley, 70 M.J. 36 (C.A.A.F. 2011) (order
granting review). We also specified an issue regarding the
Article 134, UCMJ, adultery offense in view of our decision in
United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011). United
States v. Stanley, 70 M.J. 270 (C.A.A.F. 2011) (order granting
review). The specified issue is addressed in the decretal
paragraph.



                                  3
United States v. Stanley, No. 11-0143/AR

and Hymer at the farmhouse, the four had been using large

amounts of methamphetamines with little or no sleep.

     Prior to the incident at the farmhouse, Werner had made

death threats against Stanley because he thought Stanley had

slept with his wife.   In addition, Werner threatened to report

their drug activities at the farmhouse to the authorities.

Concerned about Werner’s threat to call the police, Stanley and

Colvin went to the farmhouse to destroy the drugs.   Because of

Werner’s death threats, Stanley went to the farmhouse that night

expecting a conflict with Werner and had armed himself with a

pistol.   When they arrived Stanley and Colvin hid Colvin’s truck

and went into the farmhouse.   Both were armed with firearms.

When Werner and Hymer arrived at the farmhouse Stanley hid in a

closet where the group stored firearms.    The record demonstrates

that the incident that followed Werner’s and Hymer’s arrival at

the farmhouse was a rapidly evolving, chaotic situation.2

     Colvin allowed Werner and Hymer to enter the farmhouse

after they claimed they were not armed.    Werner accused Colvin

of sleeping with his wife and he and Colvin got into a fight




2
  Stanley repeatedly testified as to the rapidity of the events
at the farmhouse using such words as “super fast,” “extremely
fast,” “really fast,” “split second,” and “instantly.”
Moreover, there is nothing in Stanley’s rendition of the facts
that supports a theory that this fast moving, chaotic affray was
a series of discrete altercations.

                                 4
United States v. Stanley, No. 11-0143/AR

with Werner grabbing a kitchen knife and cutting Colvin’s ear.

Colvin was able to disarm Werner but then Hymer joined the fray

and Colvin called to Stanley for assistance.   While the

introduction of the knife to the conflict by Werner did escalate

the level of the conflict to that of deadly force, Colvin

successfully disarmed Werner.   Before Stanley entered the

kitchen the conflict between Colvin and Werner had become a

physical altercation not involving deadly force.

     Stanley then came out of the closet armed with at least a

pistol, and, according to Colvin a rifle, and held Werner and

Hymer at gunpoint.   Stanley retained the pistol while he

searched the two for weapons (which he did not find).   During

this period Hymer grabbed a rifle that Stanley had left in the

kitchen and fired at Stanley.   Stanley then returned fire with

his pistol, killing Hymer.   Stanley claimed that Werner then

attempted to stab Colvin from behind so he shot and killed

Werner in defense of Colvin, a version of the event that Colvin

disputed.

     Before the CCA, Stanley relied mainly on United States v.

Dearing, 63 M.J. 478 (C.A.A.F. 2006), and Lewis, 65 M.J. 85, and

argued that the military judge erred by failing to properly

instruct the panel regarding Stanley’s right during mutual

combat to exercise self-defense when the force used against him

escalated.   Although the CCA did note the differences between



                                 5
United States v. Stanley, No. 11-0143/AR

the instant case and Dearing and Lewis, it concluded that “we do

not, and need not decide whether the military judge erred in

this case.   Assuming arguendo that the military judge’s

instructions were inadequate, we are convinced beyond a

reasonable doubt that the error did not contribute to the

appellant’s conviction or sentence.”      2010 CCA LEXIS 348, at

*10-*11, 2010 WL 3927478, at *4.

                             Discussion

     Military judges have substantial discretionary power in

deciding on the instructions to give.     However, when an

affirmative defense is raised by the evidence, an instruction is

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

2002).   Whether a panel was properly instructed is a question of

law reviewed de novo.   United States v. Ober, 66 M.J. 393, 405

(C.A.A.F. 2008).

     Self-defense is an affirmative defense found in Rule for

Courts-Martial (R.C.M.) 916(e)(1).     It consists of two elements:

          (A) Apprehended, on reasonable grounds, that
     death or grievous bodily harm was about to be
     inflicted wrongfully on the accused; and

          (B) Believed that the force the accused used was
     necessary for protection against death or grievous
     bodily harm.

     An affirmative defense is raised by the evidence when “some

evidence, without regard to its source or credibility, has been

admitted upon which members might rely if they chose.”       Lewis,



                                   6
United States v. Stanley, No. 11-0143/AR

65 M.J. at 87 (citations and quotation marks omitted).   As we

explained in United States v. Schumacher:

     [T]he 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 shown.”).

70 M.J. 387, 389-90 (C.A.A.F. 2011).

     The question before this court is whether there was “some

evidence” that either Werner or Hymer escalated the level of

force in the conflict that occurred at the farmhouse that would

justify Stanley’s use of deadly force.   If so, Stanley was

entitled to a self-defense instruction that was tailored to

include the principle of escalation of force.   R.C.M. 920(a)

Discussion; Ober, 66 M.J. at 405.

     We initially note that the defense did not object to the

military judge’s instructions at trial in this case.   However,

waiver does not apply to “‘required instructions’ such as . . .

affirmative defenses[.]”   United States v. Davis, 53 M.J. 202,

205 (C.A.A.F. 2000) (quoting United States v. Taylor, 26 M.J.

127, 128 (C.M.A. 1988) (alteration in original).   While the

escalation of force instruction was not waived by Stanley, the

instruction was not warranted under the facts in this case.



                                 7
United States v. Stanley, No. 11-0143/AR

     In United States v. Cardwell, 15 M.J. 124, 126 (C.M.A.

1983), the court stated that “[t]he 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.”   See also Dearing, 63 M.J. at 483.   The court also

stated in Cardwell that “[e]ven a person who starts an affray is

entitled to use self-defense when the opposing party escalates

the level of the conflict.”    Cardwell, 15 M.J. at 126 (citations

omitted).

     “‘Deadly force’ may be defined as force . . . which [its

user] knows creates a substantial risk of death or serious

bodily injury to [another].”   2 Wayne R. LaFave, Substantive

Criminal Law § 10.4(a), at 144 (2d ed. 2003) (citing Model Penal

Code § 3.11(2)).   Under the circumstances of this case, Stanley

escalated a conflict involving a physical altercation between

Werner and Colvin into one involving the use of deadly force

when he came out of the closet and held Hymer and Werner at gun

point, and then used the weapon to subdue them and to forcibly

search them for weapons.3   Although the fact that Hymer picked up


3
  Compare, e.g., United States v. Moore, 15 C.M.A. 187, 194, 35
C.M.R. 159, 166 (1964) (“one is not per se deprived of the right
to act in self-defense by the fact that he has armed himself and
again sought out his assailant”), and United States v. Black, 12
C.M.A. 571, 575, 31 C.M.R. 157, 161 (1961) (“whether an accused,
by resort to a weapon, uses excessive force in repelling an
assault upon him is dependent upon all of the circumstances”),
with R.C.M. 916(e)(1)-(4) (providing limitations on the use of
force in self-defense), and 2 LaFave § 10.4(a).

                                  8
United States v. Stanley, No. 11-0143/AR

a rifle and shot at Stanley did constitute the use of deadly

force, at that point the level of the conflict had already been

escalated to one involving the use of deadly force by Stanley.

See R.C.M. 916(e); United States v. Peterson, 483 F.2d 1222,

1233 (D.C. Cir. 1973) (“One may deliberately arm himself for

purposes of self-defense against a pernicious assault which he

has good reason to expect.   On the other hand, the true

significance of the fact of arming can be determined only in the

context of the surrounding circumstances.”) (citations omitted);

Wallace v. United States, 162 U.S. 466, 472 (1896) (“‘if [the

accused] was himself violating or in the act of violating the

law -- and on account of his own wrong was placed in a situation

wherein it became necessary for him to defend himself against an

attack made upon himself, which was superinduced or created by

his own wrong, then the law justly limits his right of self

defense, and regulates it according to the magnitude of his own

wrong’” (quoting Reed v. State, 11 Tex. Ct. App. 509, 517-18

(1882))); Cf. Peterson, 483 F.2d at 1233 (“an affirmative

unlawful act reasonably calculated to produce an affray

foreboding injurious or fatal consequences [holding another at

gunpoint] is an aggression which, unless renounced, nullifies

the right of homicidal self-defense”) (footnote omitted).

     In regard to an escalation of force instruction involving

Stanley’s alleged defense of Colvin, Stanley had intervened in



                                 9
United States v. Stanley, No. 11-0143/AR

the fight between Werner and Colvin and Werner had been subdued

and searched by Stanley.    The issue for the members was simply

whether Stanley was entitled to use deadly force in defense of

the alleged subsequent knife attack by Werner against Colvin.

R.C.M. 916(e)(5).    That situation involved a classic self-

defense of another situation and escalation of force was not “in

issue.”

     Our case law is clear -- an affirmative defense is “in

issue” when “some evidence, without regard to its source or

credibility, has been admitted upon which members might rely if

they chose.”   Lewis, 65 M.J. at 87 (citations and quotation

marks omitted).4    In this case, the military judge correctly

concluded that self-defense was “in issue” because there was

“some evidence” in the record which the members could rely upon

if they chose.     He properly provided detailed self-defense

instructions but did not instruct on the principle of escalation

of force because the record lacked any evidence that would

trigger his duty to provide such an instruction.    In reviewing

this case, we agree with the conclusion of the United States

Court of Appeals for the District of Columbia in Parker v.

United States, 158 F.2d 185 (D.C. Cir. 1946), when it held:


4
  We recognize that both Lewis and Dearing were decided after
Stanley’s trial. However, both cases find a basis in Cardwell.
Lewis, 65 M.J. at 88; Dearing, 63 M.J. at 483. Thus, this case
does not present a matter of new law, but rather the application
of existing law.

                                  10
United States v. Stanley, No. 11-0143/AR

     [The self-defense instruction], we think, went as far
     as appellant could ask, and, together with
     instructions as to reasonable doubt and presumption of
     innocence, fairly left to the [members] the question
     whether the evidence as a whole was sufficient to show
     that the fatal wound was or was not inflicted in self
     defense.

Id. at 186 (footnote omitted).   Having found no error, we need

not address the CCA’s analysis concerning prejudice.

                           Conclusion

     The decision of the United States Army Court of Criminal

Appeals is affirmed except as to the findings of guilty to

Charge VI and its specification and the sentence.   The portion

of the decision of the Court of Criminal Appeals affirming

Charge VI and its specification and the sentence is vacated.

The record is returned to The Judge Advocate General of the Army

for remand to the Court of Criminal Appeals for further

consideration in light of United States v. Fosler, 70 M.J. 225

(C.A.A.F. 2011).




                                 11
United States v. Stanley, No 11-0143/AR


     BAKER, Chief Judge, with whom STUCKY, Judge, joins

(concurring in part and in the result):

     I agree with the majority’s ultimate conclusion that

Appellant was not entitled to an escalation of force

instruction.   However, I would reach that conclusion for

distinct reasons.

     In the end, there are only two people alive who know what

occurred in the farmhouse that day.   They have presented

alternative versions of the events.   Because Appellant’s legal

arguments are fact-based, in my view their analysis requires

careful review of the facts from both Appellant’s and Sergeant

(SGT) Colvin’s perspective.   To simply conclude that Appellant

escalated the affray when he exited the closet with a weapon to

come to the aid of SGT Colvin avoids the legal question

presented:   whether there was sufficient evidence before the

military judge to have warranted an escalation instruction,

regardless of whether this Court ultimately believes one version

of events or the other.

     Only mutual combatants and aggressors may be entitled to an

escalation instruction; the initial point is that for the

reasons discussed below, under either Appellant’s or SGT

Colvin’s description of events, Appellant was neither an

aggressor nor a mutual combatant when he came out of the closet

armed with a gun.   An individual who is entitled to act in self-
United States v. Stanley, No 11-0143/AR


defense may threaten a greater level of force than that which he

or she could actually use.       See 2 Wayne R. LaFave, Substantive

Criminal Law § 10.4(a), at 144 n.9 (2d ed. 2003) (“mere display

of knife to deter onrushing attacker not deadly force” (citing

Douglas v. United States, 859 A.2d 641 (D.C. 2004))).         Thus,

Appellant did not lose his right to self-defense when he exited

the closet with a weapon.    Moreover, while he was not a mutual

combatant at this juncture, the fact that he exited the closet

with a weapon is not dispositive as to whether he was later

entitled to an escalation instruction.         He was not entitled to

that instruction later because under either his version of

events or that of SGT Colvin, he was never a mutual combatant.

Staff Sergeant (SSG) Werner and Specialist (SPC) Hymer were

subdued or had fled at the point at which Appellant used deadly

force.

                            I.    BACKGROUND

     Appellant and three friends, SGT Colvin, SSG Werner, and

SPC Hymer grew marijuana and used and made methamphetamine in a

farmhouse leased by Appellant off base.        All four soldiers had

been using methamphetamine with little or no sleep in the days

leading up to the murders.       On September 13, 2004, SSG Werner,

believing that Appellant and/or SGT Colvin was/were sleeping

with his wife, threatened them.      SSG Werner and SPC Hymer then

went to the farmhouse where they encountered Appellant and SGT


                                     2
United States v. Stanley, No 11-0143/AR


Colvin, who were in the process of disposing of the drugs at the

farmhouse.

      The remaining essential facts regarding the sequence of

events at the farmhouse are in dispute, reflecting differences

in the testimony, and differing interpretations of the

testimony, of the two surviving soldiers, Appellant and SGT

Colvin.   For the sake of clarity, the conflicting accounts are

recounted separately based on Appellant’s testimony and SGT

Colvin’s testimony at trial, respectively.   It is this

testimony, Appellant argues, that gave rise to the necessity for

an escalation of force instruction.   The Government also

introduced extensive forensic and physical evidence.

A.   Appellant’s Testimony

      Appellant testified consistent with the following account

at trial:

      On the day of the murders, SSG Werner accused both SGT

Colvin and Appellant of sleeping with his wife and threatened to

kill Appellant and anyone who got in his way.   SSG Werner also

threatened to inform the police of their drug operation if

Appellant did not face SSG Werner in person.    Appellant and SGT

Colvin then went to the farmhouse to destroy evidence of the

drug operation.   Appellant put marijuana in a garbage bag while

SGT Colvin smoked cigarettes.   While there, SSG Werner and SPC

Hymer arrived and banged on the door and eventually got in.


                                 3
United States v. Stanley, No 11-0143/AR


Appellant hid in a closet containing a number of guns, including

a .22 pistol and an 8mm Mauser rifle.      While in the closet, he

peaked through a crack in the hinges and saw SPC Hymer walk by

with something black, which he thought was a gun, in his hand.

        Appellant heard SGT Colvin call out for help and so he came

out of the closet carrying the pistol, which holds ten rounds in

the clip and one in the chamber.       He aimed it at SPC Hymer and

told him not to move.    SSG Werner and SGT Colvin were on the

floor fighting over a knife.    SGT Colvin yelled that SSG Werner

had “stabbed him.”    Appellant searched SPC Hymer for weapons,

partially pulling his pants down in the process, but he was

unarmed.    He then searched SSG Werner for weapons and pulled his

sweatpants off to check that he was unarmed.

        While Appellant was searching SSG Werner, SPC Hymer picked

up a rifle (8mm Mauser) that had been in the corner, pointed it

at Appellant, and pulled the trigger.      The weapon dry fired.

Then SPC Hymer chambered a round and fired at Appellant as

Appellant was running away.    Appellant came back and returned

fire at SPC Hymer while the latter was running away towards the

living room.    He continued firing until SPC Hymer went down.

        Seconds later, Appellant saw SSG Werner, who was on one or

two knees in the kitchen, attempting to stab SGT Colvin in the

back.    SGT Colvin, who was on his knees facing in the direction

of Appellant and SPC Hymer, had his hands up and said “No” after


                                   4
United States v. Stanley, No 11-0143/AR


SPC Hymer was shot.   Appellant shot SSG Werner, causing him to

fall backwards, until the gun was empty.   Both victims died

shortly thereafter while Appellant went to get help.

B.   SGT Colvin’s Testimony

      SGT Colvin testified consistent with the following account

at trial:

      On the day of the murders, SSG Werner accused Appellant of

sleeping with his wife and threatened to harm Appellant and SGT

Colvin.   SSG Werner also threatened to inform the police of

their drug operation if Appellant did not face SSG Werner in

person.   Appellant and SGT Colvin then went to the farmhouse to

destroy evidence of the drug operation; in the car Appellant was

waiving SGT Colvin’s .22 Buckmark pistol around saying they had

to get to the farmhouse.   When they got there, SGT Colvin picked

up his 308 Remington 700 rifle; Appellant took the .22 pistol

and he had a slap jack (sap) in his back pocket.1   SGT Colvin

smoked cigarettes in the bathroom while Appellant gathered up

the drugs.   Appellant went in and out of the house, tried to

flush drugs down the toilet, and gathered marijuana into a

garbage bag.

      SSG Werner and SPC Hymer arrived and tried to get inside

the house but the chain was on the door.   SGT Colvin let the two

1
  According to SGT Colvin’s testimony, a slap jack is “a piece of
lead covered in leather, made to hit people in the head and
knock them out.”


                                 5
United States v. Stanley, No 11-0143/AR


men in when they said they were unarmed and set the rifle he was

carrying down in the doorway to the pantry.

     SSG Werner said that SGT Colvin and Appellant had slept

with his wife, which SGT Colvin denied doing.      SSG Werner then

hit SGT Colvin in the forehead with a right-cross punch.        SGT

Colvin hit him back with a right-cross punch.      SSG Werner

grabbed a kitchen knife and cut SGT Colvin’s ear.      After that,

SGT Colvin “tried to disarm” SSG Werner and tripped him so both

men were on the ground fighting.       SGT Colvin was able to “beat

on [SSG Werner] until [he] got the knife out of his hand,” and

he threw the knife away.   While they were fighting SPC Hymer

came over and started kicking SGT Colvin in the head.

     At this point, SGT Colvin called out for help to Appellant.

This call caused SPC Hymer to leave the room and go to the

dining room and then the living room looking for Appellant.

Appellant came out of the closet with a pistol (.22 Buckmark

pistol) and rifle (8mm Mauser) and met SPC Hymer in the living

room and held him at gunpoint.   SPC Hymer then walked backwards

into the kitchen with his hands up in a position of surrender.

Appellant set the rifle down in the doorway to the dining room

and searched SPC Hymer.    He then searched SSG Werner, whom SGT

Colvin had been laying on top of, for weapons at the point of

his pistol.   In the process, Appellant pulled SSG Werner’s

sweatpants off because SSG Werner had told SGT Colvin he had a


                                   6
United States v. Stanley, No 11-0143/AR


gun in his waistline.   No gun was found on SSG Werner.

Appellant stepped back and tripped over SGT Colvin’s rifle,

which Appellant then went to throw on the porch.      SGT Colvin

still had SSG Werner in the “hurt locker”2 at that time.      SPC

Hymer then grabbed the rifle that Appellant had placed in the

corner.

     SPC Hymer pointed the rifle at SGT Colvin and pulled the

trigger, but the rifle dry-fired.      This caused SGT Colvin to get

off of SSG Werner, whom he had been laying on.      Then SPC Hymer

chambered a round and fired at Appellant but missed, hitting the

wall instead.   SPC Hymer immediately turned and started to run

into the dining room.   Appellant came running from the porch and

fired at SPC Hymer until the latter’s legs gave out while he was

in the living room.   SPC Hymer fell to the ground face down in

the entrance to the living room.       Appellant shot SPC Hymer twice

more while he lay on his stomach, wounded and defenseless.

After he fired, Appellant said, “He’s fucking dead, he’s dead,”

in a loud, aggressive way.

     Appellant walked back into the kitchen, stood at the feet

of SSG Werner, who was unarmed and in a prone position.

Appellant said “I didn’t fuck your wife and now you are going to

2
  “Hurt locker” is a slang term for being in pain or in a place
in which a person does not want to be. See generally BBC News
Magazine, What Is a ‘Hurt Locker’?,
http://news.bbc.co.uk/2/hi/8555318.stm (last modified Mar. 8,
2010).


                                   7
United States v. Stanley, No 11-0143/AR


die.”    SSG Werner put his hands up and said “[p]lease, man” in a

tone of fear.    He fired at SSG Werner until the slide locked to

the rear, signifying that the ammunition was expended.

Appellant fired the gun downward from about his waist.    By the

final shot, he had stepped forward and was shooting “almost

directly into [SSG Werner’s] face” with the gun held at

Appellant’s knee level.    When the first shot was fired SSG

Werner’s head was “propped up against the wall”; as bullets were

coming SGT Colvin described that SSG Werner had his hands up

around his face.3    SGT Colvin described that, as SSG Werner was

being shot, SSG Werner’s head turned to the right and he

flinched up with his left shoulder a bit off the ground and his

chin moved to the right.

        SGT Colvin yelled “Stanley!” and Appellant then pointed the

gun at SGT Colvin.    SGT Colvin stood up and took the empty

pistol from Appellant’s hands and set it on the counter.      Then

Appellant told SGT Colvin that they had to bury the two men, but

SGT Colvin said they had to get help.    Appellant took SGT

Colvin’s truck to try and get help.    SSG Werner died shortly

thereafter.    SGT Colvin saw that SPC Hymer was still alive and

so he dragged him out to their truck and started driving to the

nearest town, but SPC Hymer stopped talking shortly thereafter.


3
  At trial, SGT Colvin acted out what he had observed, and trial
counsel described this for the record.


                                   8
United States v. Stanley, No 11-0143/AR


C.   At Trial

      At trial, Appellant’s defense was that he acted in self-

defense after SPC Hymer fired the first shot and that he acted

in defense of another when he shot SSG Werner after seeing him

raise a knife and attempt to stab SGT Colvin.   The Government

presented SGT Colvin’s version of events arguing that Appellant

shot the victims while they were defenseless.   At the conclusion

of the evidence, the military judge provided both counsel with

the instructions he proposed to give and asked whether they had

any objections.   Neither the Government nor Appellant objected.

The military judge then asked whether they requested any

additional instructions; the Government and Appellant responded

that they did not.

D.   Military Judge’s Instruction

      In addition to the standard instructions on self-defense

and defense of another, the military judge provided instructions

relating to provocation, mutual fighting, and withdrawal.   The

relevant portions of the military judge’s instructions are as

follows:

           There has been some evidence in this case concerning
      the accused’s ability to leave or move away from his
      assailants. A person may stand his ground when he is at a
      place at which he has a right to be. Evidence tending to
      show that the accused had or did not have an opportunity to
      withdraw safely is a factor that should be considered along
      with all other circumstances in deciding the issue of self-
      defense. . . .



                                    9
United States v. Stanley, No 11-0143/AR


          . . . .

          There exists evidence in this case that the accused
     may have been a person who intentionally provoked the
     incident or was a person who voluntar[il]y engaged in
     mutual fighting. A person who intentionally provoked an
     attack upon himself or voluntarily engaged in mutual
     fighting is not entitled to self-defense, unless he
     previously withdrew in good faith. A person has provoked
     an attack, and therefore given up the right to self-
     defense, if he willingly and knowingly does some act
     towards the other person reasonably calculated and intended
     to lead to a fight or a deadly conflict. Unless such act
     is clearly calculated and intended by the accused to lead
     to a fight or a deadly conflict, the right to self-defense
     is not lost. A person may seek an interview with another
     in a non-violent way for the purpose of demanding an
     explanation of offensive words or conduct or demanding
     redress of offensive words or conduct or demanding redress
     of a grievance without giving up the right to self-defense.
     One need not seek an interview in a friendly mood. The
     right to self-defense is not lost merely because the person
     arms himself before seeking the interview.

          The burden of proof on this issue is on the
     prosecution. 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 Specialist Christopher Hymer or Staff Sergeant
     Matthew Werner, or that the accused voluntarily engaged in
     mutual fighting, then you have found that the accused gave
     up the 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
     fighting then you must conclude that the accused retained
     the right to self-defense, and then, you must determine if
     the accused actually 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 accused later withdrew in good
     faith and indicated to his adversary a desire for peace by
     words, or actions, or both, and if Specialist Christopher
     Hymer or Staff Sergeant Matthew Werner revived the conflict
     or fight, then the accused was no longer voluntarily
     engaged in mutual fighting or provoking an attack, and was
     entitled to act in self-defense.


                               10
United States v. Stanley, No 11-0143/AR


           If you have a reasonable doubt that the accused
      remained a person provoking an attack or a voluntary mutual
      combatant at the time of the offense, you must find that
      the accused did not lose the right to act in self-defense,
      and then, you must decide if the accused acted in self-
      defense.

      The military judge also made clear that the instructions on

“provocateur and mutual combatant . . . and withdrawal that I

gave you for self-defense also apply to defense of another.”

Defense counsel did not object to these instructions.

E.   Ruling of the Court of Criminal Appeals

      Before the lower court, Appellant argued that the military

judge’s instructions were deficient because he failed to

instruct the members that a mutual combatant has the right to

escalate violence under certain circumstances without losing the

right to self defense and that “some mutual combatants may be

unable to withdraw, and therefore retain their right to self

defense.”   United States v. Stanley, No. ARMY 20050703, 2010 CCA

LEXIS 348, at *8, 2010 WL 3927478, at *3 (A. Ct. Crim. App.

Sept. 29, 2010) (unpublished).

      The CCA noted the differences between the instant case and

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

United States v. Lewis, 65 M.J. 85 (C.A.A.F. 2007), but

concluded that “we do not, and need not decide whether the

military judge erred in this case.    Assuming arguendo that the

military judge’s instructions were inadequate, we are convinced



                                 11
United States v. Stanley, No 11-0143/AR


beyond a reasonable doubt that the error did not contribute to

the appellant’s conviction or sentence.”      2010 CCA LEXIS 348, at

*10, *11, 2010 WL 3927478, at *4.      The CCA stated:

     We believe SGT Colvin’s version of events because it
     is consistent with the substantial forensic evidence
     in this case. Admittedly, the defense exposed SGT
     Colvin’s potential weaknesses in credibility, but
     unlike appellant’s his version rings true on the most
     important points concerning the murders themselves.
     The position and direction of the wounds in the
     victims, the blood spatter evidence, the location of
     pooled blood, the location of shell casings throughout
     the house, the absence of a knife in the vicinity of
     SSG Werner when he was shot, and testimony from
     recognized crime scene experts all support SGT
     Colvin’s testimony.

Id. at *11, *12, 2010 WL 3927478, at *4.      The CCA also noted

inconsistencies between statements made by Appellant at various

times as well as inconsistencies with the crime-scene and

forensic evidence.   Id. at *12, *13, 2010 WL 3927478, at *5.       It

ultimately concluded that the absence of the additional

instructions on escalation of force and inability to withdraw

“did not contribute to appellant’s conviction or sentence.”        Id.

at *14, 2010 WL 3927478 at *5.

                          II.    DISCUSSION

     One who is a mutual combatant or initial aggressor is

generally not entitled to use self-defense.     Rule for Courts-

Martial (R.C.M.) 916(e)(4); see United States v. O’Neal, 16

C.M.A. 33, 36-37, 36 C.M.R. 189, 192-93 (1966).     This is because

“‘[b]oth parties to a mutual combat are wrongdoers, and the law


                                  12
United States v. Stanley, No 11-0143/AR


of self-defense cannot be invoked by either, so long as he

continues in the combat.’”   O’Neal, 16 C.M.A. at 37, 36 C.M.R.

at 193 (quoting Rowe v. United States, 164 U.S. 546, 556

(1896)).   Moreover, mutual combatants by definition are

considered to have implicitly or explicitly agreed to fight on

certain terms.

     However, an initial aggressor or mutual combatant can

regain the right to self-defense when the opposing party

escalates the conflict, or where he withdraws from the conflict

and is reengaged.    Lewis, 65 M.J. at 88-89.   In such a case, the

accused is entitled to use that force reasonably necessary to

deter or defend against the opposing party’s use of escalated

force.   If the accused reasonably apprehended that he would

suffer “death or grievous bodily injury,” id. at 89, 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.”

United States v. Cardwell, 15 M.J. 124, 126 n.3 (C.M.A. 1983).

For example, if A strikes B with a light blow, and B responds by

attempting to stab A, A is entitled to use reasonable force to

defend the attack.   However, if the accused enters willingly

“into combat with the expectation that deadly force might be

employed, he is not allowed to claim self defense.”    Id.




                                 13
United States v. Stanley, No 11-0143/AR


     Finally, an instruction on self-defense does not

automatically require inclusion of language about escalation of

force.   See, e.g., United States v. Martinez, 40 M.J. 426, 429-

30 (C.M.A. 1994) (military judge instructing for self-defense

but not escalation).   An escalation instruction is only required

if the evidence in the case reasonably places escalation in

issue.   This might occur, for example, where as in Dearing and

Lewis, a mutual combatant in a fist-fight is confronted by an

opponent who is joined by multiple allied opponents and the

mutual combatant has no opportunity to withdraw.   Dearing, 63

M.J. at 480; Lewis, 65 M.J. at 86-87.

     Whether the issue of escalation is raised in this case is

premised on the assumption that the accused was engaged in

mutual combat.   See Lewis, 65 M.J. at 89.   Otherwise, the

scenario presented is one of mere self-defense.    In this case,

the parties do not dispute that the defense of self-defense was

affirmatively raised with respect to Appellant either acting in

his own defense or in the defense of SGT Colvin.   The military

judge provided such an instruction.   Appellant now argues, with

the benefit of appellate hindsight, that the facts reveal that

Appellant was engaged in mutual combat with SSG Werner and/or

SPC Hymer and there came a time, or times, when SSG Werner, SPC

Hymer, or both, escalated their use of force, such that the

members should have been instructed to consider whether


                                14
United States v. Stanley, No 11-0143/AR


Appellant was then entitled to respond as he did, by shooting

SPC Hymer and later shooting SSG Werner.

     In order for Appellant to be entitled to an escalation

instruction, the evidence would need to support the theory that

he was at some point engaged in mutual combat with SSG Werner

and SPC Hymer and that his opponents escalated the use of force,

first when SPC Hymer seized a gun and attempted to shoot

Appellant and later when SSG Werner threatened to stab SGT

Colvin in the back.   The majority opinion addresses this

question by concluding that because Appellant entered the affray

at the outset with a gun, there could be no opportunity for

escalation, regardless of the facts.    If the affray is viewed as

one continuous event, this is a plausible explanation.   But it

avoids the legal questions presented.   First, it assumes,

without consideration of United States v. Moore, see discussion

infra note 5, that one who enters an affray with a gun cannot

under any circumstances regain the right of self-defense or find

him or herself in a context warranting an escalation

instruction.   Second, it avoids the question of whether,

considering the alternative rendering of events offered by

Appellant, there came a time when the affray should have been

viewed as a series of altercations, at least one of which raised

sufficient evidence to warrant an escalation instruction.




                                15
United States v. Stanley, No 11-0143/AR


     The question we must ask in reviewing the record in its

entirety is whether the military judge was required to

affirmatively instruct on the basis of the accused’s appellate

theory of escalation.   To answer this question, we look in turn

at the facts surrounding the death of SSG Werner and then the

death of SPC Hymer.

                          As to SSG Werner

     The facts in evidence as to how the fight between SSG

Werner and SGT Colvin started come from SGT Colvin’s testimony,

since both eyewitnesses agree that Appellant was not in the room

at that time.    SGT Colvin testified at trial that he let SSG

Werner and SPC Hymer into the house because they said they were

unarmed.    SGT Colvin then placed his rifle down in the doorway

to the pantry.   SSG Werner accused SGT Colvin and Appellant of

having slept with his wife and then punched SGT Colvin in the

forehead.   SGT Colvin hit SSG Werner back, and then SSG Werner

grabbed a kitchen knife and cut SGT Colvin’s ear.

     For an escalation instruction to be required in the defense

of another case, the evidence would have to show that SGT Colvin

was a mutual combatant, that SSG Werner escalated the fight when

he cut SGT Colvin’s ear, and that the fight continued up to the

point when SSG Werner allegedly attempted to stab SGT Colvin in

the back.   This argument is unpersuasive for two reasons, both

supported by uncontroverted evidence presented at trial.


                                 16
United States v. Stanley, No 11-0143/AR


       First, SGT Colvin was not a mutual combatant in the initial

fight with SSG Werner and therefore never lost his right to

self-defense, and thus Appellant did not lose his right to act

in defense of another.    At the time when SSG Werner hit SGT

Colvin, the latter was unarmed and did not pose a threat to SSG

Werner.    SSG Werner had been “circl[ing] around [SGT Colvin] and

just started threatening [him].”         SGT Colvin was entitled to

respond with reasonably necessary force to the punch provided

that he reasonably believed that SSG Werner continued to pose a

threat.    See R.C.M. 916(e)(3).4    Therefore, when SGT Colvin


4
    R.C.M. 916(c)(3) provides:

            It is a defense to any assault punishable under
       Article 90, 91, or 128 and not listed in subsection
       (e)(1) or (2) of this rule that the accused:

            (A) Apprehended, upon reasonable grounds, that
       bodily harm was about to be inflicted wrongfully on
       the accused; and

             (B) Believed that the force that accused used was
       necessary for protection against bodily harm, provided
       that the force used by the accused was less than force
       reasonably likely to produce death or grievous bodily
       harm.

The Discussion to R.C.M. 916(e)(4) clarifies the rule on
retreat:

            Failure to retreat, when retreat is possible,
       does not deprive the accused of the right to self-
       defense if the accused was lawfully present. The
       availability of avenues of retreat is one factor which
       may be considered in addressing the reasonableness of
       the accused’s apprehension of bodily harm and the
       sincerity of the accused’s apprehension of bodily harm


                                    17
United States v. Stanley, No 11-0143/AR


punched SSG Werner back, he did not lose his right to self-

defense.    Neither did Appellant lose his right to come to the

defense of another with reasonable force.    Thus, the appropriate

instruction at this point was defense of another without any

accompanying instruction on escalation of force.

        Second, even if SGT Colvin were a mutual combatant in the

initial fight with SSG Werner, the affray did not continue

unabated from then until the later time when, according to

Appellant, SSG Werner allegedly tried to stab SGT Colvin in the

back.    SGT Colvin testified that when SPC Hymer attempted to

shoot Appellant it “caused me to get off Staff Sergeant Werner.”

He also testified that, after the initial fight, SSG Werner had

become “submissive” and went “from biting [SGT Colvin] to just

laying there placid.”    These uncontroverted facts show that the

fight between SGT Colvin and SSG Werner did not continue up to

the point when SSG Werner was shot.    Such facts could give rise

to the necessity for an instruction on the right to self-defense

after SSG Werner attacked SGT Colvin with his fists and then a

knife.    But the initial confrontation between SSG Werner and SGT

Colvin came to an end when Appellant came to the aid of SGT

Colvin and subdued SSG Werner.    As a result, Appellant’s

escalation argument is not supported by the record.


        and the sincerity of the accused’s belief that the
        force used was necessary for self-protection.


                                  18
United States v. Stanley, No 11-0143/AR


                           As to SPC Hymer

     While he was fighting on the floor with SSG Werner, SGT

Colvin called out to Appellant.    This caused Appellant to come

out of the closet, armed with at least a .22 pistol, which he

pointed at SPC Hymer.    Appellant held SPC Hymer at gunpoint and

walked him back into the kitchen with his hands up.     Appellant

searched SPC Hymer for weapons, partially pulling down his pants

in the process.   At that point, SPC Hymer was unarmed and either

sitting or lying down on the ground.   Appellant testified at

trial that, after checking SPC Hymer for weapons, he did not

consider him a threat:   “I thought Hymer was cool, that he was

just there.   He wasn’t a threat to me.”     Appellant also

described SPC Hymer as “laying on his stomach with his hands out

. . . much like you would do when you put an enemy prisoner of

war on the ground”; he had his hands “up above his head . . .

palms to the floor.”    At that point, SPC Hymer no longer posed

an immediate threat to Appellant or SGT Colvin.

     Once SPC Hymer had been disarmed and was either sitting or

lying down on the ground, his participation in the initial fight

ended.   Thus, when SPC Hymer grabbed the rifle in the corner and

fired at Appellant, he began a new fight.     Whatever he was

before this point, Appellant could not now have been engaged in

mutual combat.    Therefore it was not possible for SPC Hymer to

escalate the fight.    That Appellant was in the process of


                                  19
United States v. Stanley, No 11-0143/AR


disarming SSG Werner when SPC Hymer fired at him does not change

the fact that Appellant and SPC Hymer were not mutual

combatants, since SPC Hymer had been subdued and was no longer a

participant in the fight with Appellant or SGT Colvin.

     In any event, the parties agree that, when SPC Hymer

committed a new assault by firing on Appellant, Appellant had

the right to defend himself.   Appellant then fled from the house

onto the porch, without pursuit from SPC Hymer.     In such

context, it is not clear how Appellant could then be entitled to

an escalation instruction, when it was Appellant who then

reentered the farmhouse to fire upon SPC Hymer.

     For the foregoing reasons, the military judge did not abuse

his discretion in instructing the members.   I agree that we need

not address the second clause of the granted issue and the CCA’s

harmless error analysis.

                 The Court’s Opinion in this Case

     The Court’s analysis divides at the point at which

Appellant exits the closet.    The majority concludes that at this

point the question of an escalation instruction was over because

it was Appellant who escalated the conflict when he exited the

closet with a gun.   However, as discussed earlier, the record

does not show that Appellant was then an aggressor or mutual

combatant.   When he exited the closet, displayed the weapon, and

subdued SSG Werner and SPC Hymer, if anything, he deescalated


                                 20
United States v. Stanley, No 11-0143/AR


the situation.    Moreover, Appellant’s exiting the closet with a

gun and search of SPC Hymer and SSG Werner did not constitute

the “use” of deadly force.    Though Appellant may not have been

legally authorized to use deadly force when he came out of the

closet, his display of deadly force appears to have been

justified under either Appellant’s or SGT Colvin’s recitation of

events.

     The Court’s opinion suggests that Appellant was unjustified

in offering deadly force and that therefore his display of a gun

upon exiting the closet and his search of SPC Hymer and SSG

Werner somehow constituted the “use” of deadly force.    In this

regard, the Court’s reliance on United States v. Peterson, 483

F.2d 1222 (D.C. Cir. 1973), is misplaced since the facts are

completely different from the facts in this case.

     In Peterson, the victim and two friends were attempting to

remove windshield wipers from the defendant’s wrecked car.       Id.

at 1225.   When the defendant saw them, a verbal altercation

ensued.    Id.   The defendant went back into the house and got a

pistol.    Id.   The victim and his friends were attempting to

leave when the defendant came out and pointed the gun at the

victim and said if he left he would shoot him.    Id.   The victim

threatened the defendant with a lug wrench, and the defendant

proceeded to shoot the victim, killing him.    Id. at 1225-26.

Although there was some dispute on the details of what happened,


                                  21
United States v. Stanley, No 11-0143/AR


the evidence was “uncontradicted that when [the defendant]

reappeared in the yard with his pistol, [the victim] was about

to depart the scene.”   Id. at 1232 (footnote omitted).

     The facts in Peterson simply do not correlate to the facts

in this case.    The defendant in Peterson, having retreated to a

place of safety, then committed an “affirmative unlawful act

reasonably calculated to produce an affray foreboding injurious

or fatal consequences” when he returned from the house with a

pistol and threatened to kill the victim -- who was about to

leave -- if he moved.   Id. at 1233.    In this case, it is

uncontested that SSG Werner had previously threatened to kill

Appellant and that Appellant came out of the closet only after

he heard SGT Colvin cry out for help.    The majority does not

explain how Appellant’s coming out of the closet to aid his

friend, who had just been cut in the ear with a knife,

constitutes an “affirmative unlawful act reasonably calculated

to produce an affray foreboding injurious or fatal

consequences.”   Id.

     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.5



5
  It is also well established that a defendant who comes armed to
an interview does not automatically lose his right to self-
defense. United States v. Moore, 15 C.M.A. 187, 193-94, 35
C.M.R. 159, 165-66 (1964) (“It is settled law, therefore, that
one is not per se deprived of the right to act in self-defense


                                 22
United States v. Stanley, No 11-0143/AR


Deadly force means “force that the actor uses with the purpose

of causing or that he knows to create a substantial risk of

causing death or serious bodily injury.”    Model Penal Code

§ 3.11(2) (1962).   Thus, a person is said to use deadly force if

he fires at another with the intent to kill or do serious bodily

harm even though he misses or only causes minor injury.

Threatening death or serious bodily harm, without intention of

carrying out the threat, does not constitute the use deadly

force.   Douglas, 859 A.2d at 642; 2 LaFave, supra § 10.4(a).

Thus, “one may be justified in pointing a gun at his attacker

when he would not be justified in pulling the trigger.”   2

LaFave, § 10.4(a), at 144 (citing United States v. Black, 692

F.2d 314 (4th Cir. 1982); Stewart v. State, 672 So.2d 865 (Fla.

App. 1996); Commonwealth v. Cataldo, 668 N.E.2d 762 (1996);

State v. Moore, 729 A.2d 1021 (1999)).

     A person who reasonably believes that an attacker is about

to inflict any bodily harm may lawfully defend him or herself by

offering to use deadly force, even though the person would not

be entitled to actually use deadly force.   R.C.M. 916(e)(2) (“It

is a defense to assault with a dangerous weapon or means likely

to produce death or grievous bodily harm that the accused:     (A)

Apprehended, on reasonable grounds, that bodily harm was about



by the fact that he has armed himself and again sought out his
assailant.”).


                                23
United States v. Stanley, No 11-0143/AR


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.”); United States v. Marbury, 56

M.J. 12, 19 (C.A.A.F. 2001) (Gierke, J. dissenting).    Therefore,

regardless of whether SSG Werner still had the knife when

Appellant entered the kitchen, Appellant would have been

entitled to display deadly force if he feared any bodily harm to

himself or to SGT Colvin at that point.     The majority opinion

conflates the concept of the display of a dangerous weapon with

the concept of the use of deadly force.     Consequently, I

disagree that the record in this case supports the contention

that, when SPC Hymer picked up the rifle and shot at Appellant,

Appellant “had already . . . escalated [the conflict] to one

involving the use of deadly force.”    See United States v.

Stanley, __ M.J. __ (9) (C.A.A.F. 2012).     Moreover, Appellant’s

arguments warrant a careful review of the facts, from both

witnesses’ perspectives, before reaching a conclusion that there

was insufficient evidence to warrant an escalation instruction.

                        III.   CONCLUSION

     For the foregoing reasons, I concur in the result and would

therefore affirm the decision of the United States Army Court of

Criminal Appeals on that basis.




                                  24
