

   
   
   
   U.S. v. Henderson



IN THE CASE OF
UNITED STATES, Appellee
v.
Martez L. HENDERSON, Private First Class
U.S. Army, Appellant
 
No. 98-0847
Crim. App. No. 9501435
 
United States Court of Appeals for the Armed
Forces
Argued May 12, 1999
Decided September 27, 1999
SULLIVAN, J., delivered the opinion of
the Court, in which COX, C.J., and CRAWFORD, GIERKE, and EFFRON, JJ., joined.

Counsel
For Appellant: Major Leslie
A. Nepper (argued); Lieutenant Colonel Adele H. Odegard and
Major Michael E. Hatch, USAR (on brief); Colonel John T. Phelps,
II, and Major Holly S.G. Coffey.
For Appellee: Major Virginia
G. Beakes, USAR (argued); Colonel Russell S. Estey, Lieutenant Colonel
Eugene R. Milhizer, and Major Patricia A. Ham (on brief).
Military Judge: Craig S. Schwender
 


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 Mannheim
and Bad Kreuznach, Germany. Contrary to his pleas, he was found guilty
of the premeditated murder of Thomas Kreiz and the aggravated assault of
Mr. Kreiz and Mario Massaro, in violation of Articles 118(1) and 128(b)(1)
and (2), Uniform Code of Military Justice, 10 USC §§ 918(1) and
928(b)(1) and (2). On July 21, 1995, the members sentenced appellant to
a dishonorable discharge, confinement for life, forfeiture of $300 pay
per month for 14 months, reduction to pay grade E-1, and a reprimand.
On November 24, 1995, the convening authority
reduced the finding of guilty of premeditated murder to a finding of guilty
of unpremeditated murder in violation of Article 118(2). He also approved
only so much of the adjudged sentence as provided for a dishonorable discharge,
confinement for 60 years, forfeiture of $300 pay per month for 14 months,
and reduction to E-1.
On November 18, 1997, a panel of the Court
of Criminal Appeals further reduced the finding of guilty of unpremeditated
murder to voluntary manslaughter, in violation of Article 119(a), UCMJ,
10 USC § 919(a), set aside the sentence, and authorized a rehearing
on sentence. On January 20, 1998, the Government requested reconsideration
by the panel or by the court en banc. On February 19, 1998, en
banc reconsideration was denied. However, the panel agreed to reconsider
its decision. On April 30, 1998, it issued a second decision which set
aside its prior decision, affirmed findings of guilty to unpremeditated
murder and the other offenses, and affirmed the sentence. 48 MJ 616 (1998).
On February 3, 1999, this Court granted review
on the following issues of law:



I. WHETHER THE MILITARY JUDGE ERRED TO THE
SUBSTANTIAL PREJUDICE OF APPELLANTS RIGHTS BY DENYING APPELLANTS MOTION
TO SUPPRESS AND RECEIVING APPELLANTS INVOLUNTARY STATEMENTS INTO EVIDENCE
AND SUCH ERROR IS NOT HARMLESS BEYOND A REASONABLE DOUBT.
II. WHETHER THE EVIDENCE IS LEGALLY INSUFFICIENT
TO FIND APPELLANT GUILTY OF UNPREMEDITATED MURDER.
III. WHETHER THE ARMY COURT OF CRIMINAL APPEALS
ERRED WHEN IT REVERSED ITS PREVIOUS FINDING THAT APPELLANT UNLAWFULLY KILLED
THOMAS KREIZ IN THE HEAT OF PASSION CAUSED BY ADEQUATE PROVOCATION, IN
VIOLATION OF ARTICLE 119(a), UCMJ.
IV. WHETHER THE ARMY COURT SIGNIFICANTLY ALTERED
THE BURDEN OF PROOF NECESSARY TO PROVE THE OFFENSE OF UNPREMEDITATED MURDER.



We hold that the finding of guilty to unpremeditated
murder should be affirmed.
The facts in this case as found by the Court
of Criminal Appeals are fully reported in its decision of April 30, 1998.
In pertinent part, it said:



The death of Mr. Kreiz and the wounding of
Mr. Massaro resulted from a dispute over a taxicab that occurred at the
bahnhof (train station) in Bad Kreuznach, Germany, Fasching night, 23 February
1995. Several hours before midnight on that date, after an afternoon and
evening of dining and drinking, Mr. Kreiz and his party of five, composed
of himself, his mother, two additional female friends, Ms. Iris Porth and
Ms. Annabelle Kurz, and Mr. Massaro, apparently decided not to wait their
turn in line at the bahnhof taxicab stand and entered the next taxi that
arrived. Appellant, who is black, and his party of three, composed of himself,
another black soldier named Coleman, and a caucasian German national named
Krakowiki, were among several persons who took issue with Mr. Kreizs going
to the head of the line.
Krakowiki verbally protested and physically
held the front passenger door of the taxi, preventing Mr. Kreiz from closing
it. When Krakowiki assaulted Mr. Kreiz by kicking him once on the thigh,
Mr. Kreiz exited the cab and swung his fist at Krakowiki. Krakowiki was
not hit, but backed away and ultimately ran towards, and into, Schaefergasse
alley. Mr. Kreiz gave chase. His mother and Mr. Massaro yelled at him to
"Stop. Leave him alone. Lets go home. Its late." Appellant, Coleman,
Mr. Massaro, and Ms. Porth all followed behind at various intervals and
in some undetermined order.
However, by the time Mr. Massaro and Ms. Porth
arrived at the scene, they saw Mr. Kreiz down on the ground with only appellant
standing in very close proximity to him. It was obvious that Mr. Kreiz
had been injured. Mr. Massaro got in between appellant and Mr. Kreiz. Unbeknownst
to both Ms. Porth and Mr. Massaro, appellant had stabbed/cut Mr. Kreiz
eight times, five of which were penetrating wounds. Mr. Massaro and Ms.
Porth lifted Mr. Kreiz to his feet, and while supporting him between them,
assisted him out of the alley and back to the bahnhof. As they were doing
so, they were followed by men who were taunting them. It was at this time
that Mr. Massaro was struck in the lower right portion of his back. Although
he did not realize at the time that he had been stabbed, this became apparent
shortly thereafter. When he was struck, he turned and saw appellant standing
about three to six feet behind him, but he never saw a knife. After Mr.
Kreiz was dragged/carried back to the front of the bahnhof by his two friends,
he collapsed on the ground. While lying on the ground mortally wounded,
he was kicked in the head and side by two individuals identified by witnesses
as various combinations of appellant, Krakowiki, and Coleman.
Witnesses to the violent altercation notified
the German police at the bahnhof. When the police responded, appellant
and his companions fled the scene with the police in pursuit. After a lengthy
foot chase, appellant was cornered and apprehended. He was taken into German
police custody and transported back to the bahnhof where he was identified
by the decedents mother and Ms. Porth as one of Mr. Kreizs assailants.
He was then taken to the Bad Kreuznach main police station where he was
detained for questioning.
After being advised of his rights against self-incrimination
under both German law and Article 31, UCMJ, appellant waived those rights
and, beginning at about 12:30 a.m. on the morning of 24 February 1995,
was interrogated for approximately one and one-half hours by German police.
Appellant steadfastly denied any involvement in the incident leading up
to the death of Mr. Kreiz. At about 2:00 a.m., appellant indicated that
he was tired and asked to continue the interview the next morning. The
German police immediately complied with appellants request and ceased
all questioning. The occurrences that are the basis for appellants sole
assignment of error commenced at this time.
Special Agent Ernesto Panaligan, who was present
as an observer, asked the head German investigator if he could talk to
appellant in private and was permitted to do so. Special Agent Panaligan
told appellant that "if he had nothing to do with the murder, he had nothing
to worry about" and "that he should just tell the truth." Special Agent
Panaligan also stated that he "was a representative of the U.S. Government
and was present to help the appellant." Appellant did not respond immediately,
but as SA Panaligan was about to leave the room, appellant waved him back
into the room and asked about punishments if he were convicted. Special
Agent Panaligan answered that punishment was up to the courts. Appellant
then admitted that what he had told the German investigators was "not really
what happened" and that he "wanted to tell the truth now."
Special Agent Panaligan left the room and returned
with his supervisor, CID SA John Kampa. Upon entering the room, SA Kampa
said to appellant, "I understand you have something to say." Appellant
replied that he did, but that "he needed a lawyer." Recognizing that appellant
had invoked his right to counsel, SA Kampa indicated that he could not
talk to appellant if the appellant wanted to talk to a lawyer first and
started to leave the room. Appellant motioned him back and asked if he
could make a statement at that time and talk to a lawyer "in the morning."
Special Agent Kampa initially responded that that could not be done, but
when appellant stated, "What? I cant have both?", SA Kampa inquired, "Do
you want to talk now and you want a lawyer in the morning?" Appellant responded
affirmatively.
Thereafter, in the presence of German police
and CID agents, the appellant admitted to stabbing Mr. Kreiz three or four
times, purportedly in self-defense, as Mr. Kreiz was beating the appellant.
Appellant described his fear of great bodily injury and asserted that he
"jabbed" Mr. Kreiz with his pocketknife in the side and back to get Mr.
Kreiz to stop pummeling him. 10/ This admission by appellant,
that he had stabbed the decedent in the midst of an affray, was the only
direct evidence linking appellant to the stabbing death of Mr. Kreiz. There
was circumstantial evidence in the form of the victims blood on the front
of appellants clothing, however, no witness saw appellant stab Mr. Kreiz,
no knife was ever recovered, and the victims blood was also found on Krakowikis
clothing.
__________________________________________
10/ Appellant also stated
that he defended himself when Mr. Kreiz knocked him to the ground and struck
him repeatedly in the face. According to appellant, when he was able to
pull down Mr. Kreiz and roll over on top of him, Mr. Massaro joined in
the melee, kicking appellant in the stomach and hitting him in the face.
Appellant finally pulled out his pocketknife to defend himself against
both Mr. Kreiz and Mr. Massaro. We have found that Mr. Massaros only
role in Schaefergasse alley was to separate appellant from Mr. Kreiz after
Mr. Kreiz had been injured by appellant. Consequently, we find the appellants
statement to law enforcement authorities concerning the circumstances surrounding
the stabbing to be incredible.



48 MJ at 617-19 (footnotes omitted except where
noted) (emphasis added).

I
The first issue granted review asks whether
the trial judge erred in denying appellants motion to suppress his pretrial
statement to Agent Kampa that he stabbed Mr. Kreiz with his pocketknife
during the affray in the alley. The Court of Criminal Appeals points out
that this was "the only direct evidence linking appellant to the stabbing
death of Mr. Kriez," although circumstantial evidence on this point existed
in the record. Id. at 619 . Appellant submits



that a consideration of the totality of the
circumstances, as called for by [United States v.] Bubonics,
[40 MJ 734 (NMCMR 1994)], reveals that all statements obtained and received
into evidence against him at trial were involuntary in that they were obtained
in violation of UCMJ art. 31, in violation of the self-incrimination privilege,
in violation of the due process clause of the Fifth Amendment, and through
the use of coercion, unlawful influence, or unlawful inducement.



Final Brief at 12.
The first question we will address is whether
Special Agent (SA) Panaligans earlier conversation with appellant after
he terminated his interview with German police investigators violated Edwards
v. Arizona, 451 U.S. 477 (1981). Edwards holds that a suspect
in custody, who states his intention to exercise his right to counsel or
silence, may not be interrogated by police until his lawyer is present
or until he reinitiates discussions with police about the crime. See
Enoch v. Gramley, 70 F.3d 1490, 1499-1500 (7th Cir. 1995).
Appellant argues that SA Panaligans advice to tell the truth if he was
innocent was interrogation which violated the Edwards bright-line
rule and tainted his later statement to SA Kampa admitting his stabbing
of Mr. Kriez. See Collazo v. Estelle, 940 F.2d 411, 417-18
(9th Cir. 1991). We disagree.
We note that the record in this case shows
that appellant was arrested by German police and brought to a German police
building. Both German and American authorities advised him of his rights,
he waived those rights, and German police conducted his questioning. He
then admitted only to being a witness to the fight. After approximately
2 hours, appellant said that he was tired and indicated that he wanted
to continue the questioning in the morning.
We are not convinced that Edwards applies
in a situation involving interrogation conducted by a foreign Government.
In any event, we find no violation of Edwards in SA Panaligans
continued encouragement of appellant to speak the truth. The record before
us shows no unequivocal assertion by appellant of his right to counsel
or silence, which is required to invoke the Miranda1-Edwards
bright-line rule against further police interrogation or its functional
equivalent. See Davis v. United States, 512 U.S. 452 (1992).
Here, he simply indicated that he was tired of talking and wanted to continue
the next day. Accordingly, this legal claim based on Edwards is
without merit.
The next question we will address is whether
SA Kampas subsequent questioning of appellant violated Edwards.
Appellant asserts that he "clearly and unequivocally requested a lawyer"
after his conversation with SA Panaligan but before his admissions to Agent
Kampa. The record shows, however, that appellant stated that he both wanted
to talk to police "and" he wanted a lawyer. The record also shows that
SA Kampa refused this request but acceded to appellants second request
to talk to them at that time and to see a lawyer in the morning. In our
view, this was also a situation where appellant did not unequivocally exercise
his right to counsel, and his actions were legally insufficient to invoke
the protections of Miranda and Edwards. See Davis
v. United States, supra.
The final question we will address regarding
Issue I is whether all the circumstances of this case together show that
appellants will was overborne and his inculpatory admissions were involuntary.
See United States v. Bubonics, 45 MJ 93-94 (1996).
Appellant cites two Court of Criminal Appeals cases generally identifying
factors pertaining to a voluntariness inquiry. See United States
v. Sojfer, 47 MJ 425, 429-30 (1998)(our Court discussing the same factors).
He then notes his purported 3-hour interrogation and the ambiguous role
of Special Agents Panaligan and Kampa as representatives of the United
States Government who were purportedly there to help him.
We review de novo the question of the
voluntariness of a Fulminante confession. See Bubonics,
supra at 94; Arizona v. Fulminante, 499 U.S. 279, 287 (1991).
We agree with the appellate court below, however, that appellants incriminatory
admissions were entirely voluntary. The record shows that he couched these
admissions in his exculpatory story of self-defense to military authorities
in the hopes of avoiding his problems with the German Government. In these
circumstances, we see no involuntariness. See United States v.
Washington, 46 MJ 477, 482 (1997) (confession voluntary where record
shows appellant tried to talk himself out of trouble).

II
Appellant next complains that the evidence
of record is legally insufficient to support his conviction for unpremeditated
murder. He argues that the prosecution introduced no evidence that he intended
to kill or inflict great bodily harm on the victim, Mr. Kreiz. He further
argues that the prosecution failed to prove that appellant did not act
in the heat of passion due to adequate provocation. We will not relitigate
this case at the appellate level, but instead limit ourselves to the question
whether evidence was admitted in this case which would permit a reasonable
person to find appellant guilty of unpremeditated murder. See United
States v. Pabon, 42 MJ 404, 405 (1995), citing Jackson v. Virginia,
443 U.S. 307, 319 (1979).
Initially, we note that appellant, in a pretrial
statement, admitted stabbing Mr. Kreiz numerous times. Other evidence was
admitted that Mr. Kreiz was stabbed eight times, one time in the heart
and four other times in life-threatening locations, and Mr. Massaro was
stabbed in the back as he was attempting to withdraw a badly wounded Mr.
Kreiz from the alley. Evidence was also admitted that appellant kicked
Mr. Kreiz in the head while he was lying wounded in his mothers arms outside
the alley.
Proof that a person used a knife and that a
death resulted therefrom has long been considered proof of an intent to
kill or cause great bodily harm. See United States v. Jackson,
6 USCMA 193, 203, 19 CMR 319, 329 (1955); United States v. Holsey,
2 USCMA 554, 556-57, 10 CMR 52, 54-55 (1953). Moreover, proof of numerous
wounds in lethal locations also reasonably suggests an intent to kill.
See United States v. Rodwell, 20 MJ 264 (CMA 1985). Finally,
we note that proof that appellant continued his assault on the victim,
even while he lay helpless in the arms of others, surely would suggest
to a reasonable person an intent to kill or inflict great bodily harm.
See United States v. Varraso, 21 MJ 129, 134 (CMA 1985).
Admittedly, appellants version of the events
that evening, as reflected in his pretrial statement admitted as evidence
in this case, is different. He basically asserts that he was being beaten
by two Germans and struck out wildly with his pocketknife in fear and desperation
in an effort to protect himself (heat of passion due to adequate provocation).
The prosecution, however, was not required to introduce direct evidence
contradicting the defenses evidence. It could and did introduce evidence
relevant to appellant´s credibility, i.e., his flight from
the scene of the crime and his smashing of his own face on his arrest.
See United States v. Williams, 21 MJ 360, 362 (CMA 1986).
Moreover, it could and did introduce evidence, which circumstantially contradicted
appellant's version of the events that night, i.e., testimony that
appellant followed the victim and Krakowiki into the alley. See
generally United States v. Maxwell, 38 MJ 148, 150-51 (CMA
1993) (the Government may meet its burden of proof with direct or circumstantial
evidence). Viewing the record as a whole, we find that it contains legally
sufficient evidence to support appellants conviction for unpremeditated
murder. Cf. United States v. Cauley, 45 MJ 353, 356 (1996)
(we are not limited to appellants narrow view of record on issue of lack
of consent in rape case).

III
The third issue before us is whether the panel
of the Court of Criminal Appeals which decided appellants case erred when
it reversed itself and affirmed a finding of guilty to unpremeditated murder.
In an earlier panel decision, it had set aside appellants approved finding
of guilty of unpremeditated murder and affirmed a finding of guilty to
voluntary manslaughter. Before that, as noted above, appellant had been
found guilty of premeditated murder, but the convening authority subsequently
reduced this finding of guilty to unpremeditated murder.
Appellant argues that the panel of judges which
set aside the decision of November 18, 1997, did so in violation of Article
66(a), UCMJ, 10 USC § 866(a), which states in pertinent part:



Each Judge Advocate General shall establish
a Court of Criminal Appeals which shall be composed of one or more panels,
and each such panel shall be composed of not less than three appellate
military judges. For the purpose of reviewing court-martial cases, the
court may sit in panels or as a whole in accordance with rules prescribed
under subsection (f). Any decision of a panel may be reconsidered by
the court sitting as a whole in accordance with such rules.



(Emphasis added.) Appellant contends that the
panels earlier decision must stand unless it is set aside by the Court
of Criminal Appeals sitting en banc. We disagree. See generally
United States v. Boudreaux, 35 MJ 291, 296-97 (CMA 1992) (Sullivan,
C.J., concurring in the result).
The plain language of the statute provides
that "[a]ny decision of a panel may be reconsidered by the court
sitting as a whole . . . ." (Emphasis added.) It does not state that any
decision of a panel must be reconsidered by the court sitting as
a whole. We presume that Congress is capable of saying what it means, and
additional interpretation on our part, at least in this matter, is unnecessary.
See generally Richardson v. United States, 119 S.Ct.
1707, 1710 (1999); United States v. Wells, 519 U.S. 482, 490-91
(1997).
In addition, subsections (a) and (f) of Article
66 expressly authorize the uniform rules of procedure prescribed by the
Judge Advocates General. 44 MJ LXIII (effective May 1, 1996). Reconsideration
of a decision by a Court of Criminal Appeals is provided for without regard
to whether it is sitting as a panel or as a whole. See Rules 19
and 4; cf. Rule 17 (en banc proceedings). Finally, nothing
in the legislative history of this codal provision has been called to our
attention which expressly states that Congress intended to bar reconsideration
by a panel. See generally United States v. Solis,
46 MJ 31, 33 (1997).
Finally, when Article 66 was first enacted,
it directed each Judge Advocate General to "constitute in his office one
or more boards of review." Each board of review was a separate entity.
There was no provision for en banc proceedings. On several
occasions, our Court recognized the inherent authority of a board of review
to reconsider its own decisions. See, e.g., United States
v. Sparks, 5 USCMA 453, 18 CMR 77 (1955); United States v. Corbin,
3 USCMA 99, 11 CMR 99 (1953); United States v. Reeves, 1 USCMA 388,
3 CMR 122 (1952). In Reeves, our Court stated that "boards of review
must clothe themselves with some of the powers inherent in courts," including
"the right to correct clerical errors, inadvertently entered decisions,
and those decisions which are clearly wrong as a matter of law." Id.
at 390-91, 3 CMR at 124-25.
When the Military Justice Act of 1968 replaced
the boards of review with Courts of Military Review, Article 66 was amended
to direct each Judge Advocate General to "establish a court of Military
Review which shall be composed of one or more panels." Article 66 further
provided that "the court may sit in panels or as a whole." 82 Stat. 1335.
In United States v. Chilcote, 20 USCMA 283, 286, 43 CMR 123, 126
(1971), our Court reviewed the legislative history of Article 66 and concluded
that Congress intended to replace the boards of review with "a single appellate
body for the review of court-martial cases within each service." Chilcote
held that Article 66 did not permit en banc reconsideration
of a panel decision; it did not address the previously recognized authority
of panels to reconsider their own decisions.
In the Military Justice Act of 1983, Article
66 was amended again to specifically overrule the Chilcote decision
by adding the following sentence: "Any decision of a panel may be reconsidered
by the court sitting as a whole in accordance with such rules." 97 Stat.
1402. See United States v. Flowers, 26 MJ 463, 464-65 (CMA
1988) (setting out legislative history).
The 1983 amendment relied on by appellant addressed
only the question whether a majority of the court sitting en banc
could reconsider a panel decision. It did not overrule our Courts earlier
decisions recognizing a panels inherent authority to reconsider its own
decisions.

IV
Appellant finally argues that the Court of
Criminal Appeals erred in its second decision in this case by erroneously
failing to require the prosecution to disprove that he acted in the heat
of passion caused by adequate provocation. See Art. 119(a); para.
44c(1), Part IV, Manual for Courts-Martial, United States (1995 ed.).2
See generally Mullaney v. Wilbur, 421 U.S. 684 (1975).
He implies that the appellate court erred in this regard because it accepted
the Governments reconsideration argument that insufficient evidence of
adequate provocation was admitted in this case. See United States
v. Maxie, 9 USCMA 156, 25 CMR 418 (1958); United States v. Roston,
986 F.2d 1287, 1290 (9th Cir. 1993). We reject appellants "failure
to alter the burden of proof" argument.
The Government, indeed, did argue that the
burden to disprove heat of passion based on adequate provocation never
shifted to the prosecution. It particularly argued that, "[i]n the instant
case, the Army Courts factual determinations and the evidence in the record
clearly establish that there is absolutely no evidence of adequate provocation."
Moreover, it has continued to argue that its only burden was to "prove[]
beyond a reasonable doubt that appellant intended to kill Mr. Kreiz." Answer
to Final Brief at 54.
Turning to the appellate courts second opinion
in this case, however, we are not persuaded that it accepted the Governments
argument on this point. Its opinion certainly does not state that the prosecution
had no burden to disprove heat of passion and adequate provocation. Instead,
it said:



In resolving legal sufficiency, this court
is bound to "draw every reasonable inference from the evidence of record
in favor of the prosecution," that the evidence establishes beyond a reasonable
doubt that: (1) Thomas Kreiz is dead, (2) his death resulted from appellants
act of stabbing him with a knife, (3) the killing was unlawful, and (4)
appellant, at the time of the killing, had the intent to kill or inflict
great bodily harm. Jackson v. Virginia, 443 U.S. 307, 319 (1979);
Manual for Courts-Martial, United States (1995 ed.), Part IV, para. 43b(2)
[hereinafter MCM]. The evidence meets this standard. For factual sufficiency,
the test is whether, after weighing the evidence of trial and making allowances
for not having personally observed the witnesses, we are convinced of the
appellants guilt beyond a reasonable doubt. UCMJ, art. 66(c); United
States v. Turner, 25 MJ 324, 325 (CMA 1987). We have no difficulty
concluding that the evidence establishes each of the elements of proof
beyond a reasonable doubt. We find that the evidence of record supports
the conclusion of the members that the appellant is not entitled to the
defense of self-defense. See RCM 916(e)(1). Nor was the appellant
provoked to such an extent that, in the heat of sudden passion caused by
adequate provocation, a fatal blow was struck before self-control could
return. See MCM, Part IV, para. 44c(1)(a). We also find that
any provocation offered by Mr. Kreiz himself was insufficient to excite
uncontrollable passion in a reasonable person.



48 MJ at 620 (footnote omitted) (emphasis added).
In construing this language, we note that the
members of appellants court-martial were properly instructed that adequate
provocation and heat of passion were factual issues in this case, upon
which the prosecution carried the burden of proof. These circumstances
distinguish appellants case from Maxie and Roston, where
it was held that evidence in the record was not sufficient to warrant the
trial judge giving an instruction on manslaughter. Moreover, the service
courts opinion does not purport to establish a rule of law that fisticuffs
are never adequate provocation for the use of a knife. Cf. Maxie,
supra at 161, 25 CMR at 423 ("Insulting or abusive words or gestures,
taunts, a slight blow with the hand or fist are not, standing alone, considered
adequate provocation."). Instead, expressly relying on its Article 66(c)
factfinding powers, the service appellate court found that the provocation
itself was insufficient. See Mullaney, 421 U.S. at 702. While
use of the word "insufficient" might suggest an evidentiary insufficiency
holding, the lower courts opinion, viewed in its entirety, clearly indicated
a factual finding of inadequate provocation. Cf. United States
v. Saulsberry, 47 MJ 493, 495 (1998); see generally para.
44c(1)(b), Part IV, Manual, supra ("The provocation must be adequate
to excite uncontrollable passion in a reasonable person[.]").
The decision of the United States Army Court
of Criminal Appeals is affirmed.
FOOTNOTES:
1 Miranda v. Arizona,
384 U.S. 436 (1966).
2 This provision
is unchanged in the 1998 Manual.

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