United
States v. Yanger, 67 M.J. 56 (the elements of
self-defense in a situation of
non-aggravated assault require that the accused apprehended, upon
reasonable
grounds, that bodily harm was about to be inflicted wrongfully on him,
and
believed that the force that he used was necessary for protection
against
bodily harm, provided that the force used by him was less than force
reasonably
likely to produce death or grievous bodily harm).
(under RCM 916(e)(4), the
right to self-defense is lost if the accused was an aggressor, engaged
in mutual combat, or provoked the attack which gave rise to an
apprehension that the accused was about to suffer death or grievous
bodily harm, unless the accused had withdrawn in good faith after the
aggression, combat, or provocation and before the offense alleged
occurred; while RCM 916(e)(4) sets out a duty to withdraw under certain
circumstances in order to avail oneself of the defense of self-defense,
it does not address either escalation in general or the specific
situation in which the original aggressor or someone engaged in mutual
combat is not able to withdraw in good faith; the Rule’s silence
regarding an inability to withdraw creates an ambiguity).
(under common law
self-defense principles, even a person who starts an affray is entitled
to use self-defense when the opposing party escalates the level of the
conflict).
(a mutual combatant can
regain the right of self-defense when the opposing party escalates the
conflict and when he is incapable of withdrawing in good faith, as long
as he responds in a manner proportionate to the threat faced; RCM
916(e)(4) does not require the absurd result of requiring a mutual
combatant or even an initial aggressor to withdraw when he is
physically incapable of doing so).
(in this case, the
self-defense instruction given was incomplete where the military judge
erred in not instructing the members that a mutual combatant could
regain the right to self-defense when the opposing party escalated the
conflict and when he was incapable of withdrawing in good faith).
(military judge’s failure to
give complete and correct self-defense instruction created a
constitutional error).
United
States v. Dearing, 63 M.J. 478 (an initial
aggressor is still entitled to use
deadly force in his own defense, just as he would be if he withdrew
completely
from combat and was then attacked by his opponent, in instances where
the
adversary escalates the level of conflict).
(the military
judge’s error in precluding
appellant from introducing corroborating evidence when her credibility
was
attacked regarding the state-of-mind element of her claim of
self-defense to
premeditated murder was not a constitutional error that was prejudicial
unless
harmless beyond a reasonable doubt; appellant had an extensive
opportunity to
present a state-of-mind defense).