

   
   
   
   U.S. v. Wells



IN THE CASE OF
UNITED STATES, Appellee
v.
Tyrone L. WELLS, Aviation Ordnanceman Third
Class
U.S. Navy, Appellant
 
No. 98-0681
Crim. App. No. 96-1349
 
United States Court of Appeals for the Armed
Forces
Argued April 8, 1999
Decided September 30, 1999
SULLIVAN, J., delivered the opinion of
the Court, in which COX, C.J., and GIERKE and EFFRON, JJ., joined. GIERKE,
J., filed a concurring opinion. CRAWFORD, J., filed a dissenting opinion.

Counsel
For Appellant: Major Michael
R. Osborn, USMC (argued); Lieutenant Jennifer L. Eichenmuller,
JAGC, USNR (on brief).
For Appellee: Major David
F. Bauman, USMCR (argued); Colonel Kevin M. Sandkuhler, USMC,
and Lieutenant Kevin S. Rosenberg, JAGC, USNR (on brief).
Military Judge: David P. Holcombe
 


THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE PUBLICATION.

Judge SULLIVAN delivered the opinion of the
Court.
Appellant was tried by a general court-martial
composed of officer and enlisted members during the summer of 1995 at Naval
Air Station, Jacksonville, Florida. He pleaded not guilty to charges of
premeditated murder, assault, and communicating a threat under Articles
118, 128, and 134, Uniform Code of Military Justice, 10 USC §§
918, 928, and 934, respectively. He was found guilty of premeditated murder
and sentenced to a bad-conduct discharge, confinement for life, forfeiture
of $400 pay per month for life, and reduction to E-1. On June 11, 1996,
the convening authority approved the adjudged sentence and, except for
the bad-conduct discharge, ordered it executed. The Court of Criminal Appeals
affirmed the findings and sentence in an unpublished opinion.
On January 15, 1999, this Court granted review
on the following issues:




I.
WHETHER THE LOWER COURT ERRED WHEN IT DETERMINED
THAT THE MILITARY JUDGES ERROR IN FAILING TO INSTRUCT THE MEMBERS ON THE
LESSER-INCLUDED OFFENSE OF MANSLAUGHTER WAS HARMLESS, EVEN THOUGH IT FOUND
THAT THE FACTS REASONABLY RAISED THE POSSIBILITY THAT APPELLANT ACTED IN
THE HEAT OF PASSION.

II.
WHETHER THE LOWER COURT ABUSED ITS DISCRETION
AND DENIED APPELLANT THE FAIR AND IMPARTIAL REVIEW OF THE RECORD GUARANTEED
BY ARTICLE 66(c), UCMJ, WHEN IT RELIED UPON CLEARLY ERRONEOUS FINDINGS
OF FACT IN MAKING ITS DETERMINATION THAT THE EVIDENCE WAS LEGALLY AND FACTUALLY
SUFFICIENT TO SUSTAIN APPELLANTS CONVICTION OF PREMEDITATED MURDER.



We hold that the appellate court below erred in
finding harmless error in this case.1See
United States v. Johnson, 1 MJ 137, 139 (CMA 1975); United States
v. Comer, 421 F.2d 1149 (D.C. Cir. 1970);
see generally
Stevenson v. United States, 162 U.S. 313 (1896).
The Court of Criminal Appeals summarized the
facts as follows:



After a verbal altercation on the evening
of 3 December 1994, the appellant grabbed the car keys belonging to his
estranged wife, Mrs. Raquel Wells, and hurried to drive away. Mr. Marsa
Powell, a friend of Mrs. Wells who had also argued with the appellant,
followed the appellant to his car and attempted to recover the keys. Powell
then displayed a .45 caliber semiautomatic pistol in his waistband. As
the appellant sped away, Powell fired a round from his pistol into the
air.
During the return trip to his apartment, the
appellant saw a police officer on patrol. Instead of reporting the incident
to the police, however, the appellant decided to call a friend of his,
PR3 Perry, whom he told about the incident. He then asked Perry to drive
him back to the apartment complex, ostensibly to return the set of keys
to Mrs. Wells. Before leaving his apartment to meet Perry, the appellant
got his .380 caliber semiautomatic pistol to take with him "for protection."
Since Powell did not know Perry or recognize his car, they decided to take
his car. The trip to the apartment complex took only minutes. They arrived
about 2030.
As the two friends cruised slowly through the
parking lot, the appellant noticed his wife and two young children still
waiting to get back into their apartment. He then saw, and pointed out
to Perry, Powell as the guy who "shot" at him earlier. As they got closer
to Powell, Perry decided to stop the car, apparently to confront him. After
he did so, the appellant shouted to get Powells attention. In his testimony
at trial the appellant admitted that at this point he had his .380 pistol
in his hand, loaded, with the safety off, and with the hammer cocked back.
Powell began to converse with the other two men about the earlier incident.
As Powell approached his side of the car, the appellant put his pistol
out of sight. They continued to argue. Powell then began to back away.
As he did so the appellant retrieved his pistol
and held it just below the level of the door. Both Perry and another witness,
who was observing the argument from 100 feet away, testified that Powell
was using hand motions, at about chest and shoulder level, to help make
his point as he backed away. The appellant testified, however, that
he saw Powell begin to reach for his pistol, which he had noticed outlined
in the waistband of his trousers beneath his shirt. Afraid that Powell
was going to shoot him, the appellant testified that he immediately exited
the car and opened fire. Although the medical examiner could not testify
as to the sequence, Powell was struck with three rounds. One passed through
his left arm, one through his neck, and a third through his chest cavity.
The latter round penetrated his lungs and heart. He was dead within 2 minutes.
Two objective witnesses testified that, shortly
after they heard several gunshots, they saw a man they later learned to
be Powell working on a pistol in his hand, as if he were trying to clear
a jam. A .45 caliber semi-automatic pistol was found near his body. An
expended shell was jammed in the ejection mechanism. In the meantime, the
appellant ran from the scene, disposing of the pistol and losing his glasses
as he fled. A few hours later he turned himself in to the civilian authorities.
The appellant has contended throughout the
trial and on appeal that he had been justified in shooting Powell because
he was merely acting in self-defense.



Unpub. op. at 3-4 (emphasis added).
At trial, the judge instructed the jury on
premeditated murder, stating:



Now you are advised that the killing of a
human being is unlawful when done without legal justification or excuse.
The term "premeditated design to kill" means formation of a specific intent
to kill, and consideration of the act intended to bring about the death.
The premeditated design to kill does not have to exist for any measurable
or particular length of time. The only requirement is that it must precede
the killing.



The judge also instructed the panel on unpremeditated
murder, self-defense, and mutual combat. No instruction for voluntary manslaughter,
adequate provocation, or heat of passion and the ability to premeditate
was requested, given sua sponte, or its absence objected
to.
The lower court concluded that the military
judge erred by failing to sua sponte give a voluntary manslaughter
instruction. It said:



Moreover, resolving any doubt to the benefit
of the appellant, we conclude that his testimony that the victim drew his
weapon first, along with the other evidence introduced, including the weapon
itself, "reasonably raised" the lesser-included offense of voluntary manslaughter.
While not the classic scenario giving rise
to "heat of sudden passion," if Powell had indeed made an overt attempt
to do great bodily harm to the appellant, that would constitute sufficient
provocation.



Id. at 8. The court, nonetheless, affirmed
on the basis that such error was harmless.
___ ___ ___
Appellant was found guilty of the premeditated
murder of Marsa Powell in violation of Article 118(1), UCMJ. On appeal,
he argued that the trial judge erred by failing to give, sua sponte,
an instruction on the lesser offense of voluntary manslaughter in violation
of Art. 119(a), UCMJ, 10 USC § 819(a). The Court of Criminal Appeals
found error in the judges failure to give this instruction, but it concluded
such error was harmless under the particular circumstances of this case.
Before this Court, appellant challenges the service appellate courts finding
of harmless error, and the Government defends the service courts opinion
on this issue.
We initially note that it is well-established
that an accused in a federal civilian criminal trial is entitled to an
instruction on a lesser-included offense to the one charged if reasonably
warranted by the evidence presented. See Hopper v. Evans,
456 U.S. 605, 611 (1982). In Keeble v. United States, 412 U.S. 205
(1973), the Supreme Court explained this right, as follows:



Although the lesser included offense doctrine
developed at common law to assist the prosecution in cases where the evidence
failed to establish some element of the offense originally charged, it
is now beyond dispute that the defendant is entitled to an instruction
on a lesser included offense if the evidence would permit a jury rationally
to find him guilty of the lesser offense and acquit him of the greater.
The Federal Rules of Criminal Procedure deal with lesser included offenses,
see Rule 31(c), and the defendants right to such an instruction has been
recognized in numerous decisions of this Court. See, e.g., Sansone
v. United States, 380 U.S. 343, 349 (1965); Berra v. United States,
351 U.S. 131, 134 (1956); Stevenson v. United States, 162 U.S. 313
(1896).



Id. at 208 (footnotes omitted) (emphasis
added). This same right exists, as well, for an accused servicemember at
a court-martial. See Art. 79, UCMJ, 10 USC § 879 ("An accused
may be found guilty of an offense necessarily included in the offense charged[.]").
It is also well-established in federal civilian
courts that an instruction on such a lesser-included offense does not require
a request by an accused. A noted commentator on federal law states:



It is not only on request of the defendant
that an instruction may be given on a lesser included offense. The Government
may request such a charge or the court may give the instruction without
a request from either party. If the instruction is given, it is customary
to tell the jury to consider first the greater offense, and to move on
to consideration of the lesser offense only if they have some reasonable
doubt as to guilt of the greater offense. If the jury has a choice of offenses
of which they may find defendant guilty, defendant is entitled, on request,
to instructions making clear the difference between the offenses.
There are cases holding that it is not error
for the court to fail to instruct on a lesser included offense if there
was no request for such an instruction, or if the request failed to specify
any particular offense thought to be included within the offense charged.
Even
where there has been no request, however, an appellate court may consider
whether the failure to instruct on the lesser offense was plain error.



2 Wright, Federal Practice and Procedure: Criminal
2nd § 498 at 800-01 (1982) (footnotes omitted) (emphasis added).
Military law goes further. It requires a trial
judge to give such an instruction on a lesser-included offense "sua
sponte . . . for which there is . . . some evidence which reasonably
places the lesser included offense in issue." United States v. Staten,
6 MJ 275, 277 (CMA 1979); see RCM 920(e)(2) and Discussion, Manual
for Courts-Martial, United States (1995 ed.)2
("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."); United States v. Johnson, supra.
The Court of Criminal Appeals held that the
military judge erred by failing to give an instruction on voluntary manslaughter
sua
sponte. Indeed, the lower court found that, while not presenting the
"classic scenario" of heat of passion, appellants testimony and other
evidence introduced at trial did provide sufficient evidence to warrant
a sua sponte instruction on voluntary manslaughter. Unpub. op. at
8; cf. United States v. McGee, 1 MJ 193, 194-95 (CMA 1975)
(instruction on involuntary manslaughter warranted where evidence shows
victim attacked first). Based on the evidence in the case, we agree that
the judges failure to instruct on voluntary manslaughter was legal error.
See
United States v. Wilson, 26 MJ 10 (CMA 1988); but cf. United
States v. Black, 3 USCMA 57, 11 CMR 57 (1953) (assuming truth of testimony,
neither heat of passion nor adequate provocation shown).
More particularly, evidence was admitted in
this case that a heated domestic dispute arose between appellant and his
estranged wife. It was also shown that the presence of the victim, Marsa
Powell, exacerbated the situation early on because of appellants belief
that Powell was involved with his estranged wife. This confrontation then
escalated further when Powell displayed a gun and soon afterward fired
a shot as appellant drove away with his wifes keys. Appellant testified
that he heard a shot or two and believed they were fired at him. He also
testified that minutes later, when he returned to the parking lot and again
confronted Powell, he knew that Powell had a gun and was not afraid to
use it. Appellants testimony at trial directly placed heat of passion
and adequate provocation at issue in his case. See McGee,
supra
at 194; see also United States v. Houlihan, 937 F.Supp.
75, 78 (D. Mass. 1996) (prior history and relationship of accused and victim).
Turning to the question of prejudice required
for a new trial, we note that the general rule in the federal civilian
courts is that reversal is required "[o]nly when an appellate court is
convinced that the evidence issues are such that a rational jury
could acquit on the charged crime but convict on the lesser
crime[.]" United States v. Moore, 108 F.3d 270, 272-73 (10th
Cir. 1997) (first emphasis added); see United States v. Estrada-Fernandez,
150 F.3d 491, 496-97 (5th Cir. 1998). This standard is consistent
with our own cases. See United States v. Rodwell, 20 MJ 264,
267-68 (CMA 1985); United States v. Staten and United States
v. McGee, both supra. The appellate court below did not rely
on these decisions in finding harmless error.
Instead, the Court of Criminal Appeals fashioned
its own harmless error approach in appellants case and affirmed his conviction
for premeditated murder. Basically, it focused on the instructions
on other lesser-included offenses given in this case and the fact that
the members still found appellant guilty of the greater offense. See
generally United States v. Wilson, supra at 14, citing
dicta in Cooper v. Campbell, 597 F.2d 628, 631 (8th Cir.
1979). It concluded that, in these circumstances, the failure of the trial
judge to instruct on the lesser offense of voluntary manslaughter did not
"materially prejudice" appellants conviction for the offense of premeditated
murder. See Art. 59(a), UCMJ, 10 USC § 859(a). We disagree
with this approach for several reasons.
First, the lower appellate court opined that
appellant was not prejudiced because the members were instructed on and
rejected a substantially similar lesser-offense charge, i.e., unpremeditated
murder. The court noted that this lesser-included offense had the same
elements as voluntary manslaughter, and the members nonetheless chose to
find premeditated murder. Accordingly, it speculated that the members would
also have rejected voluntary manslaughter if properly instructed on it.
We note that voluntary manslaughter is a lesser
offense of both premeditated murder and unpremeditated murder. See
para. 43d(2), Part IV, Manual, supra. However, it has two proof
requirements which distinguish it from unpremeditated murder, which the
members were not instructed on by the trial judge at any time in this trial.
See
Art. 118; Art. 119(a) (heat of passion and adequate provocation). In the
past, we have rejected speculation as to members findings in these circumstances
because of the absence of any instructions which would have placed these
issues before the members in some form. See McGee, 1 MJ at
195 n.4; Wilson, 26 MJ at 14. We do so again, today.
Second, the lower appellate court opined that
the "little direct evidence . . . [of] heat of passion based on adequate
provocation," coupled with the members finding of premeditation, logically
suggests the members would not have found appellant guilty of voluntary
manslaughter if properly instructed on it. Unpub. op. at 10. An appellate
court does not normally evaluate the credibility of the evidence presented
in a case to determine harmless error, especially in a case like appellants,
where evidence on the disputed matters is not overwhelming. See Stevenson
v. United States, supra. We also disagree that a finding of
premeditation "logically precluded" a finding of heat of passion and adequate
provocation. No instruction was given to the members explaining premeditation
in terms of "cool-minded reflection" or otherwise, so as to permit a rational
inference that the members rejected a finding of heat of passion and adequate
provocation. See United States v. McGee,
supra;
see
also para. 3-86, Note 6, Military Judges Benchbook at 3-169 (Dept.
of the Army Pamphlet 27-9 (Change 2, Oct. 1986)) (specific instruction
explaining heat of passion effect on premeditation).
The lower courts final two reasons for finding
harmless error are also without merit. Our case law clearly holds that
self-defense instructions in a premeditated murder case do not render harmless
a judges instructional omission on the lesser offense of voluntary manslaughter.
See
Johnson, 1 MJ at 139 (premeditated murder conviction reduced to voluntary
manslaughter, even where defense counsel objected that a lesser-offense
instruction to voluntary manslaughter would dilute self-defense argument).
Moreover, this Court has held that a finding of premeditation and implied
rejection of the defenses self-defense argument does not render harmless
the failure of the judge to give an instruction on the lesser-included
offense of voluntary manslaughter -- again, where the evidence reasonably
warranted such an instruction. United States v. Jackson, 6 MJ 261,
263 n.4 (CMA 1979); cf. United States v. Saulsberry, 47 MJ
493, 495 (1998); Staten, 6 MJ at 277 (self-defense requires more
than fear and provocation, thus lower court may find voluntary manslaughter
and reject self-defense). In sum, the service courts harmless error analysis
was legally flawed.
We conclude that this is a case where an entire
instruction on a lesser-included offense was omitted by the trial judge.
See
Stevenson, 162 U.S. 313; cf. Neder v. United States,
119 S.Ct. 1827 (1999); Rose v. Clark, 478 U.S. 570, 579-80 (1986)
(part of instructions on elements of an offense omitted or erroneous);
see
generally Keeble, 412 U.S. at 213 (difficult constitutional
questions raised under Due Process Clause where an accused denied right
to jury instruction on lesser-included offense). Moreover, as noted above,
there was ample evidence in this case from which the members could reasonably
find that appellant committed this lesser offense of manslaughter, but
not the greater charged offense of premeditated murder. See Stevenson
v. United States and Hopper v. Evans, both supra. Thus,
a new trial is warranted under our case law and general federal practice.
See
United States v. Johnson, supra;
see alsoUnited
States v. Comer, supra; United States v. Benally, 146
F.3d 1232, 1236-37 (10th Cir. 1998) (reversal of voluntary manslaughter
conviction for failure to give instruction on involuntary manslaughter).
The decision of the United States Navy-Marine
Corps Court of Criminal Appeals is reversed. The record of trial is returned
to the Judge Advocate General of the Navy for remand to that court, which
may affirm the lesser offense of voluntary manslaughter and reassess the
sentence, or order a rehearing.
FOOTNOTES:
1 In view of our resolution
of this case based on Issue I, there is no need to address Issue II.
2 All
Manual provisions are cited to the version applicable at the time of trial.
The 1998 version is unchanged unless otherwise indicated.
 
 
GIERKE, Judge (concurring):
While I do not disagree with the majoritys
conclusion that the military judge erred, that conclusion goes beyond the
granted issue and is unnecessary. The conclusion of the court below that
the military judge erred was not challenged by the Government and is the
law of the case. See United States v. Grooters, 39 MJ 269,
272-73 (CMA 1994).
 
 
CRAWFORD, Judge (dissenting):
I dissent, based on the affirmative waiver
by defense counsel, RCM 920(f), Manual for Courts-Martial, United States
(1995 ed.), and alternatively on the basis that any error in this case
was harmless. Neder v. United States, 119 S.Ct. 1827 (1999)(Court
applied harmless error analysis for failure to instruct on a central element
of charged offense.).

FACTS
On the evening of December 3, 1994, appellant
drove over to the off-base apartment of his estranged wife in Jacksonville,
Florida. He had moved out of the apartment about a week earlier. Shortly
after he arrived at the apartment, his wife drove up with Marsa Powell,
the eventual murder victim. Seeing appellant and not wanting a confrontation,
she drove past him, but at Marsa's urging, she returned. Appellant and
his wife got into a verbal altercation, primarily about her being with
another man. His wife stated that she had brought Marsa over to the apartment
to visit with her sister. However, the sister came downstairs and said
she was going to work.
Appellants wife stated she was going to take
Marsa home and locked the door of her apartment as she was preparing to
leave. Appellant grabbed her car keys from her hands and ran to his car.
Marsa chased appellant to the car and tried to retrieve the keys. Noticing
that Marsa was carrying a pistol, appellant rolled up the windows to the
car and sped away. As the car drove away, Marsa took his pistol out and
fired a shot into the air.
After leaving his wife's apartment complex,
appellant returned to his apartment. That drive took approximately 10 to
15 minutes. At his apartment appellant called a friend, Petty Officer [PR3]
Anthony Perry, United States Navy. After about 5 minutes, PR3 Perry returned
appellant's call.
Appellant told PR3 Perry that he had gotten
into "something" at his wife's apartment and that someone had shot at him.
Appellant wanted PR3 Perry to drive him back to the apartment. PR3 Perry's
assumption was that they were going back over to "beat the dude up or something."
Since appellant did not know where PR3 Perry
was located, they met at a local convenience store. Ten minutes after the
first phone call, and about 15 minutes after appellant arrived at his apartment
to retrieve his gun, appellant reached the store and again "beeped" PR3
Perry. A few minutes later, PR3 Perry arrived. From the convenience store,
the two drove separately to the apartment complex of one of PR3 Perry's
friends, where appellant left his car. As PR3 Perry was speaking with his
friend on a telephone, appellant put a clip into his gun and got into PR3
Perry's car. The two then drove to appellant's wife's apartment with Perry
behind the wheel. En route, PR3 Perry told appellant his gun has been confiscated.
Appellant asked if the police still had his gun, and Perry replied "yes."
Appellant retorted he still had his.
When they pulled into the apartment complex,
Marsa was still in the parking lot and on PR3 Perry's side of the car.
Perry did not know who Marsa was. When appellant spotted Marsa, he told
PR3 Perry, "That's the dude who shot at me." At that point, appellant's
gun was still under his seat.
They drove through the parking lot and turned
around. While they were turning around, Marsa was walking in their general
direction. Appellant shouted to Marsa to get his attention.
After they turned the car around, Marsa was
on appellant's side of the car. Both appellant and Marsa began to exchange
words. No mention was made of the keys, but a heated argument started.
While arguing, appellant had the gun in his right hand just under the window
ledge out of Marsa's view. During the conversation, Marsa backed away and
appellant got out of the car and shot Marsa.
Appellant started running as he fired three
shots at Marsa. Marsa was hit three times. One of the shots pierced his
heart, and he died at the scene within 2 minutes. A .45 caliber semi-automatic
pistol was found lying beside Marsas body. Appellant fled the scene but
turned himself in to the police a few hours later.
Appellant testified that he shot Marsa because
he saw him reach for his gun. Petty Officer Hunt testified that he did
not see a gun in Marsas hand. A witness on a balcony approximately 100
feet away observed the shooting. Likewise, he did not see a gun in Marsas
hand. According to the witnesss testimony, Marsa was making hand motions,
at about the chest and shoulder level, to help make his point as he backed
away. Throughout his court-martial, appellant contended he had been justified
in shooting Marsa because he was merely acting in self-defense.

DISCUSSION
RCM 920(e) provides:

Required instructions. Instructions
on findings shall include:

* * *
(2) A description of the elements of each lesser
included offense in issue, unless trial of a lesser included offense is
barred by the statute of limitations (Article 43) and the accused refuses
to waive the bar;
(3) A description of any special defense under
R.C.M. 916 in issue;
(4) A direction that only matters properly
before the court-martial may be considered;

* * *
(6) Directions on the procedures under R.C.M.
921 for deliberations and voting; and
(7) 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.

RCM 920(f) provides:



Waiver. Failure to object to an instruction
or to omission of an instruction before the members close to deliberate
constitutes waiver of the objection in the absence of plain error. The
military judge may require the party objecting to specify of what respect
the instructions given were improper. The parties shall be given the opportunity
to be heard on any objection outside the presence of the members.



Both sides were able to review a copy of the proposed
written instructions. There was a lengthy discussion concerning these instructions,
as well as comments back and forth between the judge and trial counsel.
After trial counsel indicated that he had nothing else to add, the judge
questioned defense counsel. Defense counsel responded, "Sir, just to expand
on the 802 [conference], the limited purpose testimony. We decided that
would not be an instruction that we would desire." An exchange followed
in which the judge was amenable to taking suggestions from either side.
When asked if there were any other issues which needed to be raised, both
counsel replied in the negative.
Both sides were given the instructions to review
overnight. The next morning, defense counsel noted typographical errors.
The judge agreed over the prosecution's objection to give a self-defense
instruction, including a statement that returning to the apartment to seek
a peaceful interview was not provocation by appellant.
The defense had the opportunity to review the
instructions, offered numerous suggestions, and failed to raise any issue
regarding a heat of passion instruction. The fact that the defense engaged
in the discussions and review of the instructions, which took place during
a 2-day time period, and did not request a heat of passion instruction
constitutes a waiver of any instruction as to a lesser-included offense.
See
United States v. Olano, 507 U.S. 725, 734 (1993); cf.
United
States v. Smith, 50 MJ 451, 457 (1999)(Effron, J., concurring in part
and in the result). Furthermore, in the alternative, any error based on
the instructions set forth below did not affect a substantial right of
appellant. United States v. Powell, 49 MJ 460 (1998).
An unlawful killing done with an intent to
kill but in the heat of passion caused by adequate provocation constitutes
voluntary manslaughter. Para. 44c(1)(a), Part IV, Manual, supra.
However, the provocation must not be sought or induced by the accused.
Paragraph 44c(1)(b) provides:



The provocation must be adequate to excite
uncontrollable passion in a reasonable person, and the act of killing must
be committed under and because of the passion. However, the provocation
must not be sought or induced as an excuse for killing or doing harm. If,
judged by the standard of a reasonable person, sufficient cooling time
elapses between the provocation and the killing, the offense is murder,
even if the accuseds passion persists. Examples of acts which may, depending
on the circumstances, constitute adequate provocation are the unlawful
infliction of great bodily harm, unlawful imprisonment, and the sight by
one spouse of an act of adultery committed by the other spouse. Insulting
or abusive words or gestures, a slight blow with the hand or fist, and
trespass or other injury to property are not, standing alone, adequate
provocation.



Under the majority opinion, appellant was entitled
to the following instruction:

(1) That Marsa C. Powell is dead;
(2) That his death resulted from the act of
the accused in shooting him with a handgun on December 3, 1994, in Jacksonville,
Florida;
(3) That the killing of Marsa C. Powell by
the accused was unlawful; and
(4) That, at the time of the killing, the accused
had an intent to kill or inflict great bodily harm upon Marsa C. Powell.
The killing of a human being is unlawful when
done without legal justification or excuse.
The offense of voluntary manslaughter is committed
when a person, with intent to kill or inflict great bodily harm, unlawfully
kills a human being in the heat of sudden passion caused by adequate
provocation. "Passion" means anger, rage, pain, [or] fear. Proof that
the accused was acting in the heat of passion caused by adequate provocation
is not required. It is essential, however, that the four elements I have
listed for you to be proved beyond reasonable doubt before the accused
can be convicted of voluntary manslaughter.

Para. 3-87b, Notes 1 and 2, Military Judges Benchbook
at 3-175 (Dept. of the Army Pamphlet 27-9 (Change 2, Oct. 1986))(emphasis
added).
The judge did give a self-defense instruction,
including the following:

A person is not entitled to self-defense
if he intentionally provoked the attack upon him or voluntarily engaged
in mutual fighting unless he has previously withdrawn in good faith. A
person has provoked an attack and thereby or therefore given up the right
to self-defense if he willingly and knowingly does some act toward the
other person reasonably calculated and intending 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 a deadly conflict the right of self-defense
is not lost.
A person may seek an interview with another
in a non-violent way for the way [sic] of demanding an explanation of offensive
words or conduct or demanding redress of a grievance without giving up
the right to self-defense. He may not seek an interview -- I am sorry.
Thats wrong too. He need not seek the interview in a friendly mood. The
right to self-defense is not lost merely because a person arms himself
before seeking the interview. The burden of proof on this issue is upon
the prosecution. If you are convinced beyond a reasonable doubt that
the accused intentionally provoked attack upon himself so that he could
respond by injuring or killing, then you have found that the accused gave
up the right to self-defense.

(Emphasis added.)
It was on the basis of these two instructions
that the court below correctly found that any error was harmless, because
the "self-defense was more favorable to the appellant than would have been
an instruction on the lessor-included offense of voluntary manslaughter."
Unpub. op. at 10. The court continued, as shown in the instructions above,
that the "Government must prove the absence of self-defense beyond a reasonable
doubt." Id. The same would not be true under the involuntary manslaughter
instruction.
Under these circumstances, any error was harmless.
Neder
v. United States, supra. For these reasons, I dissent.

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