United States v. Killion
2016 CAAF LEXIS 297
| C.A.A.F. | 2016Background
- Appellant, intoxicated and physically restrained in a base emergency room, hurled racist and profane insults at medical staff while handcuffed and strapped to a bed; staff testified they were trained to remain composed and did not consider violent retaliation.
- Appellant was convicted at a special court-martial of using provoking speech (Art. 117, UCMJ) and other offenses; AFCCA affirmed the conviction and sentence.
- At trial the military judge instructed the panel using language from the Military Judges’ Benchbook asking whether an “average person” would immediately react violently "under the facts and circumstances of this case."
- Defense requested an instruction expressly telling members to consider the listeners’ occupation, training, and the speaker’s restraint; the judge denied the proposed targeted instruction.
- Trial counsel argued the panel should use the "average person" standard and that surrounding circumstances were irrelevant; defense emphasized listeners’ training and restraint.
- The CAAF granted review on legal sufficiency of provoking-speech and adequacy of the instruction and reversed the Art. 117 finding and set aside that specification and sentence portion.
Issues
| Issue | Appellant's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether words were not "provoking under the circumstances" (legal sufficiency) | Killion: Given listeners’ training and that he was restrained, a reasonable person in their position would not be provoked to violence | Government: Medical personnel, unlike police, are not trained to overlook abuse; an average person would expect retaliation | CAAF reversed AFCCA on instructional error and dismissed Art. 117 finding; did not reach legal-sufficiency holding due to instructional error |
| Whether military judge’s instruction was deficient | Killion: Judge’s “average person” phrasing misdirected focus away from the reasonable reaction of the specific listeners and their circumstances | Government: Benchbook language was adequate; members were told to consider facts and circumstances | Court: Instruction was legally deficient — must assess the reaction of an objectively reasonable person in the listeners’ position, not a generic average person |
| Whether defense forfeited the instructional objection | Killion: Defense gave a specific requested instruction tailored to listeners’ profession and restraint, preserving the issue | Government: Parties did not object after final instructions; issue forfeited | CAAF: Not forfeited — request was specific and judge rejected it; reviewed de novo |
| Harmlessness of instructional error | Killion: Error was prejudicial because instruction aligned with prosecution’s erroneous argument and undercut defense theory | Government: Any error was harmless beyond a reasonable doubt | CAAF: Error not harmless beyond a reasonable doubt; reversal required |
Key Cases Cited
- United States v. Dearing, 63 M.J. 478 (C.A.A.F. 2006) (military judge must provide adequate legal guideposts in instructions)
- United States v. Thompson, 22 C.M.A. 88 (C.M.A. 1972) (provocative nature of speech depends on context and audience)
- United States v. Shropshire, 34 M.J. 757 (A.F.C.M.R. 1992) (special standard for words directed at police/officers in custody)
- Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) (epithets may be unprotected as likely to provoke the average person to retaliation)
- United States v. Lewis, 65 M.J. 85 (C.A.A.F. 2007) (instructional error that undercuts defense theory can prejudice substantial rights)