United States v. Sitren

Opinion of the Court KiLDAY, Judge: We granted the appellant’s petition for review to consider whether the president erred by his failure to instruct the court on self-defense as raised by the evidence. The appellant was tried and convicted by special court-martial on a charge of assault and battery. The entire thrust of his defense was that he acted in self-defense. He so testified, as did his two witnesses. Trial counsel recognized the issue for, in commenting on the appellant’s testimony in his argument to the court, he stated that the appellant “placed himself within inches of the victim and then supposedly acted in a self-defense. This is ridiculous.” An accused is entitled to have presented instructions relating to any defense theory for which there is evidence in the record. United States v Amie, 7 USCMA 514, 22 CMR 304; United States v Mathis, 15 USCMA 130, 35 CMR 102; United States v Bellamy, 15 USCMA 617, 36 CMR 115. As we stated in United States v Smith, 13 USCMA 471, 474, 33 CMR 3: “. . . What is contemplated is the affirmative submission of the respective theories, both of the Government and of the accused on trial, to the triers of fact, with lucid guideposts, to the end that they may knowledgeably apply the law to the facts as they find them.” The basic responsibility for proper instructions rests upon the law officer, or, as in this case, the president of a special court-martial (Article 51(c), Uniform Code of Military Justice, 10 USC § 851; Manual for Courts-Martial, United States, 1951, paragraph 73; United States v Ginn, 1 USCMA 453, 4 CMR 45; United States v Stephen, 15 USCMA 314, 35 CMR 286; United States v Nickoson, 15 USCMA 340, 35 CMR 312), and “the court is insufficiently informed as to the ‘law of the case’ without legal explanation of these [affirmative] defenses, where properly raised.” United States v Ginn, supra, at page 456. Concededly, defense counsel did not ask for additional instructions or object to those given. However, as we said in United States v Ebard, 12 USCMA 715, 31 CMR 301, where it is clear from the evidence presented and the relative positions of the parties to the trial that a clear miscarriage of justice would result were we to enforce the doctrine of waiver, we are reluc323 tañt to charge an accused with the responsibility of his counsel’s failure to seek appropriate guidance for the court members. In any event, plain error may be noted for the first time on appeal. United States v Stephen, supra. Aceordingiy. we hold that the president erred by his failure to instruct the court on the defense of self-defense. The decision of the board of review is reversed. The record of trial is returned to the Judge Advocate General of the Navy. A rehearing may be ordered. Judge FERGUSON concurs.