UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                           Before
                                  KERN, BERG, and YOB
                                  Appellate Military Judges

                             UNITED STATES, Appellee
                                          v.
                           Private E2 ANTHONY J. CRUSE
                            United States Army, Appellant

                                     ARMY 20080148

                        Headquarters, I Corps and Fort Lewis
                           Debra Boudreau, Military Judge
                   Colonel James K. Lovejoy, Staff Judge Advocate


For Appellant: Gregory M. Gagne, Esquire (argued); Captain Jennifer A. Parker,
JA; Keith Scherer, Esquire (on brief); Captain E. Patrick Gilman, JA.

For Appellee: Captain Edward J. Whitford, JA (argued); Colonel Michael E.
Mulligan, JA; Major Amber J. Williams, JA; Major LaJohnne A. White, JA; Captain
Benjamin M. Owens-Filice, JA (on brief).


                                    17 November 2011
                                 ---------------------------------
                                 MEMORANDUM OPINION
                                 ---------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

YOB, Judge:

       A panel of officer and enlisted members, sitting as a general court-martial,
convicted appellant, contrary to his plea, of one specification of premeditated
murder in violation of Article 118, Uniform Code of Military Justice, 10 U.S.C. §
918 (2008) [hereinafter UCMJ]. Appellant was sentenced to be reduced to the grade
of Private E1, total forfeitures of all pay and allowances, to be discharged with a
dishonorable discharge, and to be confined for life with the possibility of parole.
The convening authority approved the finding and the adjudged sentence.

       This case is before this court for review pursuant to Article 66, UCMJ.
Appellant raised four assignments of error, only one of which merits discussion, but
no relief. This assignment of error alleges the military judge deprived appellant of a
CRUSE – ARMY 20080148

fair trial by failing to instruct the members on fear, anger and adequate provocation
and the lesser included offenses of voluntary manslaughter and negligent homicide.

                                     BACKGROUND

       The charge stemmed from a stabbing that occurred at Fort Lewis during the
pre-dawn hours of 15 June 2007. After spending several hours drinking alcoholic
beverages in a barracks room, appellant, PV2 Jack Allen, and a third Soldier walked
to a courtyard adjacent to another barracks and began talking to other Soldiers who
were socializing outside. The third Soldier soon departed leaving the appellant and
PV2 Allen amongst the other Soldiers. Appellant engaged in offensive behavior, to
include urinating on the outside of the barracks building and holding himself out as
a non-commissioned officer and harassing other Soldiers.

        Appellant upset another Soldier, PFC Evans, by taunting him. PFC Evans
responded with comments that upset PV2 Allen. After exchanging words, PFC
Evans and PV2 Allen moved to a grassy area in anticipation of a fistfight. PV2
Allen had a bottle in his hand but he set this aside when someone stated it should be
a fair fight. PV2 Allen also discarded a folding knife and appellant picked it up. A
female Soldier tried to calm PV2 Allen by standing in front of him and talking to
him. When she moved out of the way, the victim approached PV2 Allen in an
attempt to calm him down. The victim had his empty hands raised in front in a
gesture that indicated he was trying to calm PV2 Allen. At this point there was a
group of Soldiers standing behind PFC Evans and appellant stood behind PV2 Allen.
As the victim stood before PV2 Allen, appellant grasped the now open knife he had
retrieved and plunged it into the victim’s neck with such force that the blade reached
the victim’s spine. The stabbing severed the carotid artery in the victim’s neck. The
victim immediately collapsed and bled to death in a matter of a few minutes. As
soon as the victim fell, appellant and PV2 Allen fled from the scene on foot.

       Appellant and PV2 Allen spent the next several hours in the woods deciding
what to do. Appellant suggested going AWOL or concocting a story claiming that
the victim was aggressively approaching PV2 Allen with a bottle in his hand, and
that appellant was defending his fellow Soldier. After turning themselves in to
appellant’s squad leader, appellant and PV2 Allen did claim the victim approached
PV2 Allen with a bottle immediately before the stabbing. Appellant also made this
assertion to Criminal Investigation Division (CID) agents at the outset of his
interrogation. However, when an agent confronted appellant with the information
that other witnesses at the scene saw nothing in the victim’s hands, appellant
abandoned this claim. Appellant’s written, sworn statement did not indicate the
victim had anything in his hand prior to being stabbed or that he made any
aggressive action against PV2 Allen or appellant. PV2 Allen testified at trial under
a grant of immunity, and made no claim that the victim either had anything in his
hand or approached PV2 Allen in an aggressive manner. While there were clearly



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CRUSE – ARMY 20080148

heated words exchanged between PFC Evans and PV2 Allen and the situation had
the potential to erupt into a fistfight, there was no evidence of any physical assault,
other than appellant stabbing the victim.

                              LAW AND DISCUSSION

       “Whether a panel was properly instructed is a question of law reviewed de
novo.” United States v. Medina, 69 M.J. 462, 465 (C.A.A.F. 2011) (quoting United
States v. Ober, 66 M.J. 393, 405 (C.A.A.F. 2008)). A three-pronged test determines
whether failure to give an instruction is error: “(1) the requested instruction is
correct; (2) it is not substantially covered in the main instruction; and (3) it is on
such a vital point in the case that the failure to give it deprived the accused of a
defense or seriously impaired its effective presentation.” United States v. Gibson,
58 M.J. 1, 7 (C.A.A.F. 2003) (citing United States v. Damatta-Olivera, 37 M.J. 474,
478 (C.M.A. 1993) (quoting United States v. Winborn, 14 C.M.A. 277, 282, 34
C.M.R. 57, 62 (1963))).

       Our superior court has noted that military law “requires a trial judge to
give…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. Wells, 52 M.J. 126, 129 (C.A.A.F. 1999) (citing United States v.
Staten, 6 M.J. 275, 277 (C.M.A. 1979)). “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 chose.” Wells at 129-130 (citing United States v.
Johnson, 1 M.J. 137 (C.M.A. 1975)).

       In cases involving murder charges, the lesser included offense of voluntary
manslaughter is in issue when there is evidence that the killing of another occurred
while the accused was in the heat of passion, accompanied by adequate provocation.
United States v. Stark, 19 M.J. 519, 523 (A.C.M.R. 1984) (citing United States v.
Maxie, 23 C.M.R. 942, 951 (A.F.B.R. 1957), aff’d, 25 C.M.R. 418 (C.M.A. 1958));
Manual for Courts-Martial (2008 ed.), para. 44c.(1)(b). “Although heat of passion
is a subjective determination, adequate provocation is an objective concept.” Stark at
523 (citing United States v. Seeloff, 15 M.J. 978 (A.C.M.R. 1983)).

       In this case there was no evidence introduced on the issue of adequate
provocation. Nothing in the record indicates there were any acts by the victim or
bystanders that would provoke a reasonable person to the heat of passion required to
support a conviction of voluntary manslaughter. Appellant’s counsel points out that
there was a suggestion at trial that both appellant and PV2 Allen had made
statements early on that appellant stabbed the victim only after the victim raised his
arm in an attempt to hit PV2 Allen with a broken bottle. However, evidence
indicated appellant and PV2 Allen had merely concocted this story to justify the
stabbing. In addition, both appellant and PV2 Allen abandoned the claim that the



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victim had a bottle in his hand in their subsequent statements and PV2 Allen utterly
abandoned this claim when he testified at trial.

       The military judge instructed the panel on defense of another under the theory
that appellant may have perceived that PV2 Allen was about to engage in a fight and
appellant may have perceived the victim to be an aggressor. However, the evidence
presented at trial did not raise the issue as to whether this constituted adequate
provocation of appellant from the perspective of a reasonable person. In the absence
of any evidence that the victim’s conduct raised the rage in appellant or otherwise
provided adequate provocation, it was not error to refuse appellant’s requested
instruction on voluntary manslaughter. Under the evidence presented, no rational
fact-finder would have concluded there was adequate provocation under a reasonable
person standard.

       Given our superior court’s holdings in United States v. Miller, 67 M.J. 385,
387 (C.A.A.F. 2009) and United States v. Girouard, 70 M.J. 5 (C.A.A.F. 2011), the
Article 134, UCMJ, offense of negligent homicide is not a lesser included offense of
a premeditated murder charge under Article 118, UCMJ. Even if negligent homicide
were considered a lesser-included offense under the law, the facts raised at trial
would not warrant an instruction that this is a lesser-included offense at issue in this
case.

       Therefore, we conclude that instructions on voluntary manslaughter and
negligent homicide were not required. Because the first prong of the Gibson test is
not met, we conclude that the failure of the military judge to give the instruction on
involuntary manslaughter was not error. Even if the first prong of the Gibson test
was met and the military judge should have given the voluntary manslaughter
instruction, we would find no prejudice in a failure to instruct, given the lack of
evidence for a rational fact-finder to conclude the killing occurred in the heat of
passion, accompanied by adequate provocation.

                                   CONCLUSION

      We have considered the record of trial, the briefs submitted by the parties,
and oral arguments by both parties on the assignments of errors raised. On
consideration of the entire record, we hold the finding of guilty and sentence
adjudged and as approved by the convening authority to be correct in law and fact.
Accordingly, the finding of guilty and the sentence are AFFIRMED.

      Senior Judge KERN and Judge BERG concur.




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                         FORTHE
                        FOR  THECOURT:
                                 COURT:




                         MALCOLM H. SQUIRES, JR.
                        MALCOLM     H. SQUIRES, JR.
                         Clerk of Court
                        Clerk of Court




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