## UNITED STATES ARMY COUR T 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 Corp s and Fort Lewis Debra Boudreau, Military Judge Colonel James K. Lovejo y, Staff Judge Advocate

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

For Appellee: Captain Ed ward J. Whitford, JA (arg ued); 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This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

YOB, Judge:

A panel of officer an d enlisted members, sitting as a gene ral court-martial, convicted appellant, contrary to his plea, of one specification of premeditated
murder in violation of Artic le 118, Uniform Code of Milit ary Justice, 10 U.S.C. § 918 (2008) [hereinafter UCMJ]. Appellant was sentenced to be reduced to the grade of Private E1, total forfeitu res of all pay and allowances , to be discharged with a dishonorable discharge, and to be confined for life with the po ssibility of parole. The convening authority approved the fi nding and the adjudg ed sentence.

This case is before this court for review pursuant to Article 66, UCMJ. Appellant raised four assignmen ts of error, only one of which me rits discussion, but no relief. This assign ment of error alleges the military judge depr ived appellant of aCRUSE – ARMY 20080148

2 fair trial by failing to in struct the members on fear, a nger and adequate provocation
and the lesser included offenses of voluntary manslau ghter and negligent homicide.

BACKGROUND

The charge stemmed from a stabbing th at occurred at Fort Lewis during the pre-dawn hours of 15 June 2007. After spending se veral hours drin king 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 Soldie r soon departed leaving the appellant and PV2 Allen amongst the ot her Soldiers. Appella nt engaged in offe nsive behavior, to include urinating on th e outside of the barracks buildi ng and holding himself out as
a non-commissioned officer an d harassing other Soldiers.

Appellant upset another Soldier, PFC Evans, by taunting him. PFC Evans responded with comments that upset PV2 Allen. After exch anging words, PFC
Evans and PV2 Allen moved to a grassy area in anticipa tion 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 st anding 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 th is point there was a group of Soldiers st anding behind PFC Evans and appellant stood behind PV2 Allen. As the victim stood before PV2 Allen, ap pellant grasped the no w open knife he had retrieved and plunged it into the victim’s ne ck with such force that the blade reached the victim’s spine. The sta bbing severed the carotid artery in the victim ’s neck. The victim immediately collapsed and bled to death in a matte r of a few minutes. As soon as the victim fell, appellant and PV2 Allen fl ed from the scene on foot.

Appellant and PV2 Allen sp ent the next several hours in the woods deciding what to do. Appellant su ggested going AWOL or concoc ting a story claiming that the victim was aggres sively approaching PV2 Allen with a bottle in his hand, and that appellant was defending his fellow Sold ier. After turning themselves in to appellant’s squad leader, appellant and PV 2 Allen did claim the victim approached
PV2 Allen with a bottl e immediately before the stabbing. Appellan t also made this
assertion to Criminal Investigation Division (CID) agents at the outset of his interrogation. Howeve r, when an agent confronted appellant with the information
that other witnesses at the scene saw no thing in the victim’s hands, appellant abandoned this claim. Ap pellant’s written, sworn stat ement 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 Alle n in an aggressive manner. While there were clearlyCRUSE – ARMY 20080148

3 heated words exchanged between PFC Evan s and PV2 Allen and the situation had the potential to erupt into a fistfight, there was no evid ence of any phys ical assault, other than appellant stabbing the victim.

LAW AND DISCUSSION

“Whether a panel was properly instruct ed 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-pr onged test determines whether failure to give an instruction is error: “(1) the reque sted instruction is correct; (2) it is not substa ntially covered in th e main instruction; and (3) it is on such a vital point in the case that the fa ilure to give it depriv ed 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 no ted that military law “requires a trial judge to give...an instruction on a lesser included offense ‘sua spon te...for which there is...some evidence which reasonably places the lesser included o ffense 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 killi ng of anothe r occurred
while the accused was in the heat of passion, accompanie d 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 indicat es there were any acts by the victim or bystanders that would pr ovoke a reasonable person to th e heat of passio n required to support a conviction of volu ntary manslaughter. Appellant’s counse l points out that there was a suggestion at trial that both appellant and PV2 Allen had made statements early on that appellant stabbed th e victim only after th e victim raised his arm in an attempt to hit PV2 Allen with a broken bo ttle. However, evidence indicated appellant and PV2 Allen had merely concocted this story to justify the stabbing. In additi on, both appellant and PV2 Alle n abandoned the claim that theCRUSE – ARMY 20080148

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

The military judge in structed the panel on defense of another under the theory that appellant may have per ceived that PV2 Allen was abou t to engage in a fight and appellant may have perceived the victim to be an aggres sor. However, the evidence presented at trial di d not raise the issue as to whet her this constituted adequate provocation of appellant from the perspective of a reasonable pers on. In the absence of any evidence that the vict im’s conduct raised the rage in appellant or otherwise provided adequate provo cation, it was not error to refuse appellant’s requested
instruction on voluntar y manslaughter. Unde r the evidence presented, no rational
fact-finder would have concluded there was adequate provocation unde r a reasonable person standard.

Given our superior co urt’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-inc luded offense under the law, the facts raised at trial
would not warrant an in struction that this is a lesser-included offe nse at issue in this

case.

Therefore, we conclude that instruc tions on voluntary manslaughter and negligent homicide were not required. Because the first pr ong of the Gibson test is not met, we conclude that th e failure of the mil itary judge to give the instruction on involuntary manslaughter was not error. Even if the firs t prong of the Gibson test was met and the military ju dge should have given th e voluntary manslaughter instruction, we would find no prejudice in a failure to instruct, given the lack of
evidence for a rational fact-finder to conc lude the killing occu rred in the heat of passion, accompanied by adeq uate provocation.

CONCLUSION

We have considered the r ecord 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 ho ld the finding of guilty and sentence adjudged and as approved by the convening authority to be correct in law and fact. Accordingly, the fi nding of guilty and the sentence are AFFIRMED.

Senior Judge KERN and Judge BERG concur.CRUSE – ARMY 20080148

5 FOR THE COURT:

MALCOLM H. SQUIRES, JR.
Clerk of Court MALCOLM H. SQUIRES, JR.
Clerk of Court FOR THE COURT: