UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                                                           Before
                                                               COOK, GALLAGHER, and HAIGHT
                                                                  Appellate Military Judges

                                                            UNITED STATES, Appellee
                                                                         v.
                                                            Major DETRIC A. KELLY
                                                           United States Army, Appellant

                                                                      ARMY 20110138

                      Headquarters, Joint Readiness Training Center and Fort Polk
                           Jacqueline L. Emanuel, Military Judge (arraignment)
                                  Gregory A. Gross, Military Judge (trial)
                               Colonel Keith C. Well, Staff Judge Advocate


For Appellant: Lieutenant Colonel Peter Kageleiry, Jr., JA (argued); Major Jacob D.
Bashore, JA; Lieutenant Colonel Peter Kageleiry, Jr., JA (on brief); Lieutenant
Colonel Jonathan F. Potter, JA; Lieutenant Colonel Peter Kageleiry, Jr., JA (on reply
brief).

For Appellee: Captain Sean P. Fitzgibbon, JA (argued); Major Robert A. Rodrigues,
JA; Major Katherine S. Gowel, JA; Captain Sean P. Fitzgibbon, JA (on brief).

                                                                        29 March 2013
                                                                 -----------------------------------
                                                                  SUMMARY DISPOSITION
                                                                 -----------------------------------

Per Curiam:

       A general court-martial composed of officer members convicted appellant,
contrary to his pleas, of violating a lawful general regulation and premeditated
murder, in violation of Articles 92 and 118, Uniform Code of Military Justice,
10 U.S.C. §§ 892, 918 (2006) [hereinafter UCMJ]. The convening authority
approved the adjudged sentence of a dismissal, confinement for life without the
eligibility of parole, and forfeiture of all pay and allowances. 1 The accused was

                                                            
1
  The convening authority deferred appellant’s adjudged forfeitures and waived his
automatic forfeitures, both effective 2 March 2011. The deferment and waiver were
terminated at action.

                                                                                                       (continued . . .)
KELLY—ARMY 20110138

credited with 554 days of confinement against his approved sentence to confinement.
This case is before this court for review pursuant to Article 66, UCMJ.

       We have considered the entire record of trial, the submissions of the parties,
the matters appellant personally raised pursuant to United States v. Grostefon, 12
M.J. 431 (C.M.A. 1982), and oral argument. We find appellant’s first assignment of
error merits discussion but no relief. The remaining assignments of error and those
matters personally raised by appellant are without merit.

                                  BACKGROUND

       During an argument with his wife, appellant shot and killed her. During both
opening statement and closing argument, defense counsel focused on the rage this
argument presumably precipitated. Appellant testified this argument in their
bedroom escalated to the point that his wife kicked him in the groin area, and she
then retrieved a gun from a nearby nightstand. However, after appellant gained
control of the weapon, his wife retreated to the bathroom. He fired multiple times
through the bathroom door, striking her in various places of her body. Then, after
forcing the bathroom door open, he shot his wife four times directly in the head and
face from close range. Ultimately, appellant’s wife died from the multiple gunshot
wounds.

       When discussing instructions, defense counsel proposed replacing the
standard benchbook instructions 2 on premeditated murder, unpremeditated murder,
and voluntary manslaughter with language they claimed would more clearly
distinguish between the two elements of premeditation and specific intent to kill.
Specifically, the proposed instruction included the following sentence regarding the
element of premeditated design to kill: “The Government must also prove that MAJ
Kelly had considered his actions and engaged in substantial deliberation or cool
reflection.” Notably, the proposed instructional framework omitted the standard
language that would serve to specifically identify unpremeditated murder as a lesser
included offense, list those elements, and distinguish between the greater offense of
premeditated murder and the lesser offense of unpremeditated murder.

      The military judge stated he would review the proposed instructions.
Contrary to defense’s request, the military judge did not deviate from the standard
benchbook instructions and appropriately listed unpremeditated murder as a lesser


(. . . continued)
2
  Dep’t of Army, Pam 27-9, Legal Services: Military Judges’ Benchbook
[hereinafter Benchbook], paras. 3-43-1, 3-43-2, 3-44-1 (1 January 2010).




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KELLY—ARMY 20110138

included offense and explained its required elements. 3 Regarding the charge of
premeditated murder and its relation to the concept of passion, the military judge
instructed:

                                    The killing of a human being is unlawful when done
                             without legal justification or excuse. “Premeditated
                             design to kill” means the 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.

                                   An issue has been raised by the evidence as to
                             whether the accused acted in the heat of sudden “passion.”
                             “Passion” means a degree of rage, pain, or fear which
                             prevents cool reflection. If sufficient cooling off time
                             passes between the provocation and the time of the killing
                             which would allow a reasonable person to regain self-
                             control and refrain from killing, the provocation will not
                             reduce murder to the lesser offense of voluntary
                             manslaughter.

                                    However, you may consider evidence of the
                             accused’s passion in determining whether he possessed
                             sufficient mental capacity to have the “premeditated
                             design to kill.” An accused cannot be found guilty of
                             premeditated murder if, at the time of the killing, his mind
                             was so confused by pain and/or fear that he could not or
                             did not premeditate. On the other hand, the fact that the
                             accused’s passion may have continued at the time of the
                             killing does not necessarily demonstrate that he was
                             deprived of the ability to premeditate or that he did not
                             premeditate. Thus, if you are convinced beyond a
                             reasonable doubt that sufficient cooling off time had
                             passed between the provocation and the time of the killing
                             which would allow a reasonable person to regain his self-
                             control and refrain from killing, you must decide whether
                             the accused in fact had the premeditated design to kill. If
                                                            
3
 The military judge also instructed on self-defense as it relates to all three offenses
of premeditated murder, unpremeditated murder, and voluntary manslaughter.




                                                               3
KELLY—ARMY 20110138

             you are not convinced beyond a reasonable doubt that the
             accused killed with premeditation, you may still find him
             guilty of unpremeditated murder, if you are convinced
             beyond a reasonable doubt that the death of [KK] was
             caused, without justification or excuse, by an act of the
             accused and the accused intended to kill or inflict great
             bodily harm on the victim.

Appellant now contends the military judge erroneously omitted the “cool mind
distinction” from the definition of premeditated design to kill. We disagree.

                              LAW AND DISCUSSION

       While counsel may request specific instructions from the military judge, the
judge has substantial discretion in deciding on the instructions to give. United States
v. Damatta-Olivera, 37 M.J. 474, 478 (C.M.A. 1993) (citing United States v. Smith,
34 M.J. 200 (C.M.A. 1992) ). We review the military judge’s refusal to give the
defense-requested instruction under an abuse of discretion standard. Id. The test to
determine if denial of a requested instruction constitutes error is whether (1) the
instruction is correct; (2) the instruction is not substantially covered in the other
instructions by the military judge; and (3) if the failure to give the instruction
deprived the appellant of a defense or seriously impaired its effective presentation.
Id. (citing United States v. Winborn, 14 U.S.C.M.A. 277, 282, 34 CMR 57, 62
(1963)).

       Applying this three-part test, we conclude the military judge’s refusal to give
the requested instruction was not error. First, the requested instructions were not
correct. While the instructions given by the military judge clearly identified
unpremeditated murder as a lesser included offense of the charged offense of
premeditated murder, the requested instructional framework did not. In fact, the
requested instructions specifically labeled only voluntary manslaughter as a possible
lesser offense. Furthermore, there is no support for the proposition that the
requested language requiring “substantial deliberation” in order to find
premeditation is a completely accurate statement of the law.

        Second, the requested instructions were substantially covered by the
instructions that were given. Defense counsel requested the military judge instruct
the members that “proof that MAJ Kelly actually intended to kill his wife is not, by
itself, sufficient to prove premeditation. The Government must also prove that MAJ
Kelly had considered his actions and engaged in substantial deliberation and cool
reflection.” Not identically but similarly, the military judge instructed the members
that a “premeditated design to kill means the formation of a specific intent to kill
and consideration of the act intended to bring about the death.” He further
instructed that “passion means a degree of rage, pain, or fear which prevents cool


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KELLY—ARMY 20110138

reflection” and that “passion” is a consideration when determining if appellant had
premeditated as well as distinguishing between murder and voluntary manslaughter.

       In making such a finding, we recognize the Army Court of Military Review,
in United States v. Viola, wrote, “Intent to kill alone is insufficient to sustain a
conviction for premeditated murder. To sustain such a conviction, the killing must
have been committed after reflection by a cool mind.” United States v. Viola, 26
M.J. 822, 829 (A.C.M.R. 1988) (internal citations omitted). Our superior court then
adopted this concept in United States v. Hoskins, 36 M.J. 343, 347 (C.M.A. 1993).
However, the term “cool mind” is not what is required for instructions. United
States v. Eby, 44 M.J. 425, 428 (C.A.A.F. 1996). Instead, the instruction must
adequately cover the distinction between premeditated murder and unpremeditated
murder. See United States v. Parker, 71 M.J. 594, 616 (N.M. Ct. Crim. App. 2012);
United States v. Levell, 43 M.J. 847, 852 (N.M. Ct. Crim. App. 1996). Here, the
military judge’s instructions did just that.

       Third, the instructions read by the military judge did not impair the defense’s
presentation of evidence or argument at trial. The defense theory at trial was
appellant acted in a “rage” at the time he killed his wife and consequently did not
intend to kill or have the requisite mental capacity to premeditate. To support this
theory, evidence was introduced which indicated appellant and his wife engaged in
an escalating argument prior to the shooting which ultimately culminated in the
death of appellant’s wife. The military judge, in no way, limited defense’s attack on
the government’s proof of premeditation and reflection by a cool mind nor was the
defense counsel prohibited in any fashion from fully arguing its “rage” theory to the
panel.

       For these reasons, we cannot say the military judge abused his discretion in
refusing to give the requested defense instruction.

        For the first time at oral argument on appeal, it was noted that while the
military judge defined “passion” to include “rage” on two occasions, he omitted
“rage” when listing possible ways raised by the evidence in which the appellant’s
mind could have been so confused that he could not or did not premeditate.
However, we find to any extent that “rage” could or should have been properly
included within that one sentence of the instructions, that omission did not prejudice
the appellant. See United States v. Behenna, 71 M.J. 228, 234 (C.A.A.F. 2012)
(noting that when instructional errors have constitutional implications, then the error
is tested for prejudice under a “harmless beyond a reasonable doubt” standard). The
military judge defined passion elsewhere in his instructions and specifically
included “rage” in that definition twice. As noted above, the defense was not
limited in their ability to argue appellant’s actions were the result of his alleged
rage. There was no objection by the defense following instructions when the
military judge asked if counsel objected to the instructions as given. Furthermore,


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KELLY—ARMY 20110138

overwhelming evidence established appellant had the requisite state of mind, did
premeditate, and did not act out of passion, regardless of its characterization, at the
time he killed his wife.

                                    CONCLUSION

       On consideration of the entire record, the submissions of the parties, those
allegations raised by appellant pursuant to Grostefon, and oral argument, the
findings of guilty are correct in law and fact. Accordingly, the findings of guilty
and the sentence are AFFIRMED.

                                         FOR THE COURT:
                                          



                                         KENNETH
                                         KENNETH J. TOZZIJ. TOZZI
                                         COL,
                                         COL, JA JA
                                         Acting   Clerk
                                         Acting Clerk      of Court
                                                      of Court




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