

   
   
   
   U.S. v. Davis



IN THE CASE OF
UNITED STATES, Appellee
v.
Darwinn DAVIS, Hospitalman
U.S. Navy, Appellant
 
No. 99-0764
Crim. App. No. 97-1012
 
United States Court of Appeals for
the Armed Forces
Argued March 1, 2000
Decided July 19, 2000
GIERKE, J., delivered the opinion
of the Court, in which
SULLIVAN and EFFRON, JJ., and COX,
S.J., joined.
CRAWFORD, C.J., filed an opinion
concurring
in part and dissenting in part.
Counsel
For Appellant: Lieutenant M. Eric
Eversole, JAGC, USNR (argued); Major Stephen D. Chace, USMC.
For Appellee: Lieutenant James E.
Grimes, JAGC, USNR (argued); Colonel Kevin M. Sandkuhler, USMC,
and Commander Eugene E. Irvin, JAGC, USN (on brief).
Military Judge: Ronald B. Leo
 


This opinion
is subject to editorial correction before publication.
 


Judge GIERKE delivered the opinion of
the Court.
Appellant was charged with the unpremeditated
murder of his infant daughter and making a false official statement, in
violation of Articles 118 and 107, Uniform Code of Military Justice, 10
USC §§ 918 and 907, respectively. A general court-martial composed
of officer and enlisted members convicted him, contrary to his pleas, of
involuntary manslaughter, a lesser-included offense of unpremeditated murder,
in violation of Article 119, UCMJ, 10 USC § 919, and making a false
official statement. The adjudged and approved sentence provided for a dishonorable
discharge, confinement for 8 years, total forfeitures, and reduction to
the lowest enlisted grade.
The Court of Criminal Appeals affirmed
the conviction of involuntary manslaughter but set aside the conviction
of making a false official statement, because it found the evidence factually
insufficient. See Art. 66(c), UCMJ, 10 USC § 866(c). It reassessed
the sentence and reduced the confinement from 8 years to 7 years. 50 MJ
at 680, 685.
On appellants petition, this Court
granted review to determine whether the military judge erred by failing
to instruct on the defense of accident and by failing to instruct on the
lesser-included offense of negligent homicide in violation of Article 134,
UCMJ, 10 USC § 934.1

Factual Background
On May 9, 1995, appellants 9-month-old
daughter died as a result of edema, caused by a subdural hematoma. The
prosecution theory was that appellant killed his infant daughter by striking
and shaking her. The defense theory was that the infant was fatally injured
because she was not properly secured in her car seat when appellant swerved
his vehicle to avoid a traffic accident.
There were no witnesses to the infliction
of injuries on the infant or the alleged traffic incident, except for appellant.
It was uncontested that the infant was in appellants custody when the
fatal injuries occurred.
Appellant made three statements explaining
the infants injuries. In all three, he described an incident where he
violently swerved and braked to avoid a traffic accident. There was no
collision. On May 9, 1995, immediately after the infant was taken to a
Japanese hospital, appellant told Naval Criminal Investigative Service
Special Agent Ronald Beltz that he buckled the infant into her car seat
but forgot to buckle the seat belt to the car seat. 50 MJ at 677.
In a written statement executed on
June 6, 1995, after the autopsy was completed, appellant said:



My daughter was on the floor-board
in front of the rear seat, half twisted out of her car seat and crying.
She was still too small for the straps on the car seat. The car seat was
resting on top of her. The cushion bar on the car seat was still in the
down position. The car seatbelt for the left rear seat had somehow disconnected
and allowed the car seat to fall forward.



Id. This statement was the basis
for charging appellant with making a false official statement.
In a third written statement on June
6, 1995, after appellant attempted to demonstrate how the accident happened,
he stated that he had not told "the complete truth about what happened."
In this statement, he said that he had forgotten to strap the infant into
her car seat, and that he had only pulled the cushioned bar down. Id.
The trial was a battle of experts.
The prosecution relied heavily on expert medical witnesses, whose testimony
was set out in detail by the court below. 50 MJ at 678-79. The Government
experts opined that the infant died from injuries inflicted by violently
shaking her. They also opined that the injuries could not have been inflicted
by the traffic accident described by appellant.
Appellant did not testify, but instead
relied on his three pretrial statements to establish the factual predicate
for his defense. The defense produced experts who opined that the injuries
could have been inflicted as a result of the traffic accident. The defense
also produced the testimony of four witnesses -- two working acquaintances,
a supervisor, and a close friend and neighbor -- all of whom characterized
appellant as a loving and caring father.
Defense counsel proposed instructions
on findings that included an instruction that involuntary manslaughter
is a lesser-included offense of unpremeditated murder. The military judge
gave the requested instruction. He instructed the members that the elements
of the lesser-included offense were: (1) that the victim was dead; (2)
"that her death resulted from the acts of the accused in striking and shaking
her"; (3) that the killing of the victim by appellant was unlawful; and
(4) "that at the time of the killing the accused was participating in the
commission of the offense of assault consummated by a battery, an offense
directly effecting [sic] the person of [the victim]." The court members
found appellant guilty of the lesser-included offense.
The defense did not request an instruction
on the defense of accident, nor did it request an instruction on negligent
homicide as a lesser-included offense of unpremeditated murder. The defense
did not object to the instructions that were given.
Appellant now contends that the military
judge erred in his duty to sua sponte instruct the members
on affirmative defenses and lesser-included offenses. He argues that the
defense did not affirmatively waive instructions on accident and negligent
homicide, but only passively accepted the instructions offered by the military
judge.
The Government asserts that appellant
was not entitled to an instruction on accident, because his own version
of events admits that he was negligent. The Government also asserts that
appellant was not entitled to an instruction on negligent homicide under
the facts of this case, because negligent homicide by failing to properly
secure a child in a car seat is factually distinct from the offense of
involuntary manslaughter by shaking and striking a child, and appellant
was not on notice that he might be required to defend against the lesser-included
offense. Finally, the Government argues that any error in failing to instruct
on negligent homicide was harmless, because the court members rejected
appellants version of the facts by convicting him of making a false official
statement.

Discussion
RCM 920(f), Manual for Courts-Martial,
United States (1995 ed.),2
provides as follows: "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." In United States v.
Taylor, 26 MJ 127, 128 (CMA 1988), this Court held that the waiver
rule in RCM 920(f) applies only to the instructions listed in RCM 920(e)(7),
but does not apply to "[r]equired instructions such as those on reasonable
doubt, elements of the offenses, and affirmative defenses[.]"
When evidence is adduced during the
trial which "reasonably raises" an affirmative defense or a lesser-included
offense, the judge must instruct the court panel regarding that affirmtive
defense or lesser-included offense. See United States v. Rodwell,
20 MJ 264 (CMA 1985); United States v. Verdi, 5 MJ 330 (CMA 1978).
The test whether an affirmative defense is reasonably raised is whether
the record contains some evidence to which the court members may attach
credit if they so desire. See United States v. Simmelkjaer,
18 USCMA 406, 410, 40 CMR 118, 122 (1969). The defense theory at trial
is not dispositive in determining what affirmative defenses have been reasonably
raised. United States v. Taylor, supra. Any doubt whether
an instruction should be given should be resolved in favor of the accused.
United
States v. Steinruck, 11 MJ 322, 324 (CMA 1981).
Thus, the military judge has an affirmative
duty to instruct the members on the affirmative defense of accident if
reasonably raised by the evidence. United States v. Watford, 32
MJ 176 (CMA 1991). However, for a defense of accident to be reasonably
raised in connection with driving a car, the evidence must show that "the
driver was driving carefully, lawfully, and without neglect[.]" United
States v. Curry, 38 MJ 77, 80 n.6 (CMA 1993). We conclude that an instruction
on the defense of accident was not required in this case, because appellant
admitted that he was negligent by failing to properly secure his infant
daughter in her car seat. Accordingly, we hold that the military judge
did not err by failing to instruct the members on the affirmative defense
of accident.
We turn next to the question whether
an instruction on negligent homicide was required. In United States
v. Strachan, 35 MJ 362, 364 (CMA 1992), this Court held that "[i]structions
on lesser-included offenses are required unless affirmatively waived by
the defense." Negligent homicide is a lesser-included offense of unpremeditated
murder and involuntary manslaughter. Paras. 43d(2)(c) and 44d(2)(b), Part
IV, Manual, supra. Negligence is merely a "legally less serious"
element of the intentional killing involved in murder and the battery involved
in involuntary manslaughter. See United States v. Weymouth,
43 MJ 329, 333 (1995). It is not an additional element, as suggested by
the lower court, 50 MJ at 682, but "rationally derivative of" the
elements of the greater offenses. United States v. Foster, 40 MJ
140, 146 (CMA 1994). As the defense did not affirmatively waive an instruction
on negligent homicide in this case, the military judge was required to
instruct on the lesser-included offense of negligent homicide if the evidence
reasonably raised it. See United States v. Wells, 52 MJ 126,
129-30 (1999).
We hold that the military judges failure
to instruct on the offense of negligent homicide was error. The evidence
in this case raised four possibilities: (1) appellant intentionally shook
his daughter to death (murder); (2) he intentionally battered her and she
died (involuntary manslaughter); (3) he negligently killed her by shaking
her (negligent homicide); or (4) he negligently killed her by failing to
properly secure her in her car seat (negligent homicide). The members were
not instructed to consider the third and fourth possibilities.
Turning to the question of prejudice,
we join the court below in rejecting the Governments argument that the
error was harmless because the court members rejected the "car seat" theory
of the defense. See 50 MJ at 680. The court members were never instructed
to consider it, either as an affirmative defense or as a lesser-included
offense. Defense counsels argument presented the "car seat" theory as
a complete defense, not as a lesser-included offense. While the members
convicted appellant of a false official statement, this offense arose from
appellants statement that "[t]he car seatbelt for the left rear seat had
somehow disconnected and allowed the car seat to fall forward." Appellant
later admitted that this statement was false, in that he had not attached
the seatbelt. The members were never required to address whether appellants
negligence in any form -- not attaching the seatbelt to the car seat, not
properly fastening the straps in the car seat, or negligently shaking her
-- was the cause of the childs injuries and death. This deficiency in
the instructions requires that we set aside appellants conviction of involuntary
manslaughter. See Wells, 52 MJ at 130-31.

Decision
The decision of the United States Navy-Marine
Corps Court of Criminal Appeals is reversed. The findings and sentence
are set aside. The record of trial is returned to the Judge Advocate General
of the Navy. A rehearing on the finding of guilty of involuntary manslaughter
and the sentence may be ordered.
FOOTNOTES:
1 The granted
issue is: WHETHER THE TRIAL JUDGE ERRED BY FAILING TO GIVE AN INSTRUCTION
SUA
SPONTE ON THE DEFENSE OF ACCIDENT OR A LESSER-INCLUDED INSTRUCTION
ON NEGLIGENT HOMICIDE.
2
All Manual provisions are cited to the version applicable at trial. The
current version is unchanged, unless otherwise indicated.


CRAWFORD, Chief Judge (concurring in
part and dissenting in part):
Once again our Court is faced with
the delicate balance between ensuring a fair trial and allowing counsel
to litigate the court-martial in the best interests of his or her client.
I agree with the majority that no instruction
on accident was either requested or merited in this case. See RCM
916(f) and 920(f), Manual for Courts-Martial, United States (1995 ed.);
United
States v. Curry, 38 MJ 77, 80 (CMA 1993).
Contrary to the majority, I find that
appellant waived any negligent homicide instruction in this case and find
no plain error in the military judges failure to give one. See
RCM 920(f). We review a military judges decision to give or not give an
instruction, as well as the substance of that instruction, de novo.
United
States v. Maxwell,
45 MJ 406, 424 (1996). Even though
not requested by a litigant, a military judge may have a sua sponte
duty to give some instructions when reasonably raised by the evidence.
See
RCM 920(e); United States v. Rodwell, 20 MJ 264, 265 (CMA 1985);
United States v. Steinruck, 11 MJ 322, 324 (CMA 1981). Military
judges have "substantial discretionary power in deciding on the instructions
to give." United States v. Damatta-Olivera, 37 MJ 474, 478 (CMA
1993), cert. denied, 512 U.S. 1244 (1994).
As this court did last term in United
States v. Smith, 50 MJ 451 (1999), and United States v. Griffin,
50 MJ 480 (1999), we apply the rules, not in an inflexible fashion, but
in a manner that allows us to decide whether the failure to instruct undermines
an appellants right to have a panel of members provide him the guarantees
found both in the Constitution and Uniform Code of Military Justice. See
Neder v. United States, 527 U.S. 1 (1999); see generally
Arizona v. Fulminante, 499 U.S. 279 (1991); Chapman v. California,
386 U.S. 18 (1967).
We have previously determined that
to establish waiver, an attorney, advocating zealously on behalf of his
client, must take some affirmative action to manifest a purposeful rejection
of an instruction. See United States v. Strachan, 35 MJ 362,
364 (CMA 1992) ("An affirmative waiver is not the same as a passive failure
to request an instruction or object to its admission."). There has not
been an allegation of ineffective assistance of counsel raised before us.
Any defense counsel has a right to
waive a lesser- included offense instruction that would damage, if not
totally undermine, defense counsels theory of the case. From his opening
statement to his closing argument, appellants trial defense counsel had
but one clear-cut strategy: convince the members that appellants daughter
died as a result of appellants having swerved the car to avoid an accident
while en route to pick up his wife from work in Yokohama, Japan.
Appellant did not testify at trial.
However, he made several statements prior to trial, both written and oral,
during the investigation of his daughters death. While these statements
could easily have been interpreted as showing appellant was negligent in
preparing his 9-month-old daughter for travel in a car seat, defense counsel
never conceded his clients negligence at trial. Accordingly, the fourth
possibility mentioned by the majority (negligently killing his daughter
by failing to properly secure her in the car seat), ___ MJ at (8),
was a scenario which defense counsel had to avoid at all costs in his trial
of the case. Appellant pled not guilty. By requesting an instruction on
the lesser-included offense of negligent homicide by failing to properly
secure his daughter in a car seat, appellant would have virtually conceded
his guilt to that offense, given his pretrial admissions.
As we have previously held in Griffin,
50 MJ at 481, in reliance on Rodwell, 20 MJ at 265, the military
judge does have a duty to instruct sua sponte on all lesser
offenses reasonably raised by the evidence. In my judgment, the
majoritys third possibility (negligently killing his daughter by shaking
her), ___ MJ at (8), was not reasonably raised by the evidence in this
case. If such were the case, I would agree with the majority that the military
judges failure to instruct on this possibility was error, absent affirmative
waiver. The Governments theory of the case from its opening statement
to closing argument was "that the accused shook and struck his child because
the medical evidence is incontrovertible." Trial counsel talked about the
differences between murder and involuntary manslaughter, but the Government
never failed to maintain that the harm appellant inflicted on his daughter
was intentional. The Government never hinted at negligence by shaking as
a theory of how the victim died.
Of course, defense counsel never conceded
that the victim could have died as a result of shaken baby syndrome. The
defense contended that appellant was a good parent, and that the evidence
did not show that the victim was ever subjected to any form of the shaken
baby syndrome -- purposefully or negligently. Defense counsel contended
that the young daughter had died of edema caused by moderate to mild trauma,
such as would have happened when the victim either fell from her car seat
or the car seat toppled over in the car. Defense counsel analogized the
victims death in this case to that of a 20-year-old athlete who drops
dead after sustaining a minor injury. The counsel refuted the Governments
theory of shaken baby syndrome in both argument and cross-examination by
contending that the investigators decided why the child had died and then
looked and looked until they found enough co-incidences of body trauma
to justify a shaken baby syndrome analysis.
Both Government and defense counsel
proposed instructions. Neither counsel proposed an instruction on negligent
homicide as a lesser-included offense, and logically so, in light of the
way each counsel litigated his theory of the case. Defense counsels only
objection to the judges proposed instructions were "to the extent that
they differ from the defenses." In sum, the lesser-included offense of
negligent homicide (by negligently shaking the child) was not raised by
the evidence presented. Further, neither counsel asserted that the evidence
given to the factfinders would justify such an instruction.
As the court said in United States
v. Smith, "An attorney has a duty to be a zealous advocate for his
client. No magic words are required to establish a waiver. Statements such
as those made here are more than sufficient to show that defense counsel
made a purposeful decision to agree to the military judges ... instructions."
50 MJ at 456. In this case, defense counsel made an affirmative, intelligent
decision, based upon the Governments evidence and his clients pretrial
statements, to waive any possibility that his client would be convicted
of negligent homicide through the military judges instructions. While
a defense theory of the case may not always be dispositive of an instructional
issue, the manner in which this case was defended leads ineluctably to
but one conclusion  trial defense counsel affirmatively avoided, not overlooked,
and thus waived any negligent homicide instruction. See United
States v. Taylor, 26 MJ 127 (CMA 1988).


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