United States v. Gutierrez

STATES, Appellant, UNITED GUTIERREZ,

Juan R. Private First

Class, Army, Appellee. U.S.

No. 06-5005.

Crim.App. No. 20040596. Court Appeals

U.S.

the Armed Forces.

Argued Nov.

Decided Feb.

ERDMANN, J., delivered the Court, EFFRON, C.J., joined. in which BAKER, J., opinion. filed a dissenting RYAN, JJ., partici- STUCKY and pate. Appellant: Captain B.A. Trevor Nel- II, (argued);

son Colonel W. John Miller Shields, Lieutenant B. Colonel Michele Ma- jor Cygnarowicz, Major Paul T. Wil- (on brief). liam J. Nelson rehearing. Id. at authorized B. and Captain Grant sentence Appellee: Patrick II, Appeals subse- Phelps T. Lieu- The of Criminal Court (argued); Colonel John Henricks, Major motion quently Steven denied Government’s tenant Colonel brief). (on Judge Gen- Fansu Ku Advocate The reconsideration. Army the affirmative of certified

eral Article to this court under issue Judge ERDMANN delivered 867(a)(2) UCMJ, § 67(a)(2), 10 U.S.C. the court. of (2000).1 en- R. Gutierrez First Class Juan Private specification pleas guilty to one tered of not defense of The affirmative rape, with intent commit of assault Rule for instruction under fact is 134, of Code violation of Article Uniform (R.C.M.) 920(e)(3). When Courts-Martial (UCMJ), Military § 934 10 U.S.C. Justice by evi this defense is (2000), making an specification and one dence, duty-bound to judge is deceive, in intent to official statement with instruction, affirmatively it give an unless 107, UCMJ, 10 U.S.C. violation of Article Wolford, 62 waived. United States See (2000). specifica- findings, § Prior to (C.A.A.F.2006); UCMJ, Article tion under dismissed (C.M.A.1994). prejudice upon the Government’s without Judge Advocate The issue certified were The court-martial members motion. us to asks determine Gu General on the offense intent commit instructed affirmatively counsel waived tierrez’s defense offenses, inde- rape and two lesser defense of mistake an instruction cent assault and assault consummated included of as it to the lesser related battery. guilty of Gutierrez was found not fense of consummated assault rape he with intent to commit assault that defense counsel’s state We conclude of the two includ- was convicted was an affirmative waiver there ment by battery, ed assault consummated Court of the decision 128, UCMJ, fore reverse of Article U.S.C. violation Appeals. § 928 sentenced to Criminal Gutierrez was two months confinement and bad-con- discharge. The subse- duet sentence was Background authority.

quently approved convening charge allegations underlying of Criminal States United against for assault with intent Gutierrez case Arti reviewed the holding the victim commit involved 66, UCMJ, § cle 10 U.S.C. touching vagina. her breasts and down specified an issue as to whether the in an At the close of Article instructing panel erred 839(a) (2000), 39(a), UCMJ, § 10 U.S.C. ses- sponte on defense of mis members sua presence of outside the the court-martial sion applied take fact as it to the offense members, military judge discussed battery. counsel. The Government structions with (A.Ct. Gutierrez, requested lower found that Crim.App.2006). The offenses of members on lesser included two had Gutierrez i.e., rape, with intent to commit inde- assault applied mistake as defense of assault and assault consummated cent by battery mili and that the oppose counsel Defense tary giving had erred in not therefore remaining all request Id. at 573-74. The Court the instruction. expressly waived. findings aside offenses were Appeals set DEFENSE IN- WAIVE AN AFFIRMATIVE issue on review is:

1. The certified WITH RESPECT TO LESSER- STRUCTION ARMY THE UNITED STATES WHETHER IN ERRED OF CRIMINAL APPEALS INCLUDED OFFENSE. COURT (C.A.A.F.2006). THAT THE TRIAL DEFENSE HOLDING 63 M.J. 469 DID NOT AFFIRMATIVELY COUNSEL then discussed defense sel’s choice to waive mistake of fact de- for a mistake fact in- by battery, fense as to assault consummated two struction for of the three offenses: decisively, request- as- explicitly did so while sault with the intent to commit ing the same instruction for the two other Following indecent assault. a discussion of Government, According offenses. de- instructions, requested those two military fense counsel’s affirmative a tac- waiver was judge asked the defense counsel the follow- tical decision. question: ing appear “And there doesn’t to adopt urges Gutierrez us to the lower be mistake of fact instruction with re- reasoning. argues court’s He that defense gard to Are one?” counsel was confused about mistake of Honor, responded: Defense counsel ‘Tour fact in question, defense and statement simply request do not want to one for the “I simply do not to request want one for the battery.” The final instructions included a battery,” simple acquiescence was a to the mistake of fact instruction for assault with matter, military judge’s assertions on the the intent to commit and for indecent an affirmative waiver. Gutierrez contends assault, by but not for assault consummated theory that the entire battery. Gutierrez was convicted fact that plausible there is no reason that by battery. consummated complete defense counsel would discard this at On review Ap- Court Criminal regard defense with the lesser (1) peals, the lower court determined that: included offenses. reasonably the evidence raised the defense of Discussion regard mistake of fact with by military judge sponte has a sua (2) battery; defense counsel’s statement that give certain instructions when rea he “did not to request” want the instruction sonably by though raised even carefully was not the result of a considered requested by the instructions are not tactic and was insufficient establish affir- parties. McDonald, United v. States 57 M.J. waiver2; (3) there awas reason- (C.A.A.F.2002). 18, 20 The defense of mis able doubt as to whether Gutierrez would take is an affirmative and a guilty have been found if the “required instruction” under properly panel had instructed the howon 920(e)(3). An accused waive his applied fact defense to assault right by request failure to Gutierrez, consummated 63 M.J. by object it or failure to its omission. at 572-75. Taylor, United States v. 26 M.J. 128-29 (C.M.A.1988). court, if an

Before this the Government even affirma con- reasonably tends that tive defense is defense counsel’s the evi statement was dence, unambiguous it can waiver the mistake of fact Barnes, 39 233 (citing for assault consummated defense. M.J. at Unit Strachan, tery. argues although The Government that ed States v. M.J. 364 35 (C.M.A.1992)).3 disagreed the lower court recognized defense coun- This court has 1981), Appeals precedent opposite 2. The found that serve con disagree. "when viewed in context of the entire defense clusion. We Neither nor Stein- case, the Taylor, statement was little more than an off- ruck addresses affirmative waiver. In acquiescence military judge’s the-cuff to the erro- court noted that sua neous that sponte duty give assertion the instruction on mistake of in applicable fact was not of assault struction when the evi Gutierrez, battery.” Taylor, 63 M.J. (citing dence. 26 M.J. at 128-29 Stein ruck, 324). at 574. proceeded M.J. then 11 at request to decide whether failure to the instruc recognizing jurisprudence In tion constituted waiver and "the our allows concluded: affirmative waiver of affirmative we to an instruction on are reasonable mistake suggests appropriately mindful that dissent that United when (C.M.A.1988), Taylor, v. 127 such States not waived a defense failure Steinruck, (C.M.A. Similarly, at Stein- M.J. 322 an instruction.” Id. of context of lesser included magic no words to establish waiver that there are Smith, of waiver our consideration inform States fenses affirmative waiver. United (C.A.A.F.1999). making the context of issues arise determinations, and vice versa. See we look to record defenses Strachan, 364); (citing at signify 35 M.J. there M.J. at 233 to see the statements Strachan, Taylor, (citing play. Id. M.J. at 364 “purposeful decision” at We 127). claim de novo. Wol- so here as well. review this instructional M.J. at We do ford, at 420. Mundy, Initially, agree with Court Crimi- we we 500, 503-04, 9 C.M.R. 133-34 nal the evidence state that counsel’s deferential concluded fact to the

raised the defense of mistake of position on lesser ments as to the defense’s by battery. offense of assault consummated af offense instructions constituted court, by noted “the As instructions. These firmative waiver of assault with intent commit “The statements included: defense would lesser-included offenses of indecent as- upit officer submit leave to the law without by battery sault or com ting specific recommendations element; that the accused shared common mitting way other” and itself one or the ‘bodily harm’ [the victim].” inflicted Gu- ruling of the law “defense will consent to tierrez, at M.J. 503, 9 at C.M.R. at officer.” was found that the mistake of Smith, 456, at we 50 M.J. determined commit and for for assault to response to the mili counsel’s statement in legal require- indecent assault. As same instructions, tary judge’s proposed “[t]hat’s alleged and facts for the common ments were wanted, close,” exactly it’s what of mis- element defense to omit amounted to a conscious choice lesser by take of fact for assault consummated previ counsel included offenses that defense tery was raised the evidence. military judge and ously discussed with the 39(a), UCMJ, session, During the Article therefore, affirmative waiver. Stra was judge possible military raised a chan, at we there was held of fact instruction for assault consummated withdrew his affirmative waiver when counsel battery specifically asked defense request for a lesser included offense instruc “Are one?” The counsel: applicabili tion after a brief discussion of its question clear and counsel’s re- military ty judge. In United States with the equally simply sponse was as clear: “I do not Pasha, (C.M.A.1987), 24 M.J. we v. battery.” request want to one for instructions that affirmative waiver of found whether, issue before us is in the context of from on lesser included offenses stemmed record, entire constitutes this statement agree expressed counsels’ satisfaction affirmative waiver. with the determination of the ment included offense that certain lesser have on numerous occa We reviewed apply. instructions sions whether words and actions Comparatively, in defense counsel’s state- counsel constitute “affirmative waiver” simply in “I do not want context of instructions on lesser included ment this battery,” request one for the when consid- offenses. Like affirmative decisive, if not required instructions in context is as more included offenses are ered 920(e) decisive, examples. De- be waived than these other under R.C.M. cannot presented request oppor- simply counsel’s failure to such fense counsel was Smith, tunity request or decline the mistake of 50 M.J. at 455-56. We instructions. instruction as to assault consummated previously have relied on cases that address decisions, error at 324. These which stand for ruck the court held that was passive recog- proposition waiver not be judge to will fail to instruct context, require that affirma- where nized in this do not the evidence defense counsel ' merely tive waiver of affirmative defenses disallowed. failed to instruction. 11 it, doing He chose to decline citation to United 39 M.J. (C.M.A.1994). so Barnes turn cites Strachan, instruction. United States (C.M.A.1992), purported authority for the Our exchange consideration of the between proposition. Strachan a case counsel, and the defense addressing waiver of instruction on a less- record, context the whole leaves us er included offense rather than of an no doubt that defense state- Id. defense. purposeful forego ment was a decision to defense instruction as to assault consummat- The lead does not address the lan- ed We hold that defense counsel guage in Taylor, United States v. 26 M.J. 127 affirmatively waived the instruction. (C.M.A.1988) Steinruck, or (C.M.A.1981), 11 M.J. 322 in which this Court

Decision ‘military “a stated that has a We answer certified issue the affir- instruct’ on affirmative defenses mative. The decision of the United States ‘regardless of defense Army Court Criminal is reversed. requests.’” Taylor, theories or atM.J. The record of trial Judge is returned to the Steinruck, 324). (quoting 11 M.J. at Advocate General of the for remand to principle stated that court further review “so well-established” and is based on Article 66(c), Article UCMJ. 51(c), Military Uniform Code of Justice (UCMJ), 851(c) (2000), § 10 U.S.C. not Rule BAKER, Judge (dissenting): (R.C.M.) 920(f)- for Courts-Martial Id. at agree majority’s with the conclusion that However, 128-29. Taylor at the same time waived, waive, sought or also that respect states “with to other of- affirmative defense mistake of with defenses, par- fenses and other affirmative a respect to the lesser included offense of allel also exists between the test for sua tery. The asked defense sponte duty to instruct on a lesser-ineluded counsel, appear “[a]nd there doesn’t to be on instructing and the test for an any regard Thus, affirmative defense.” Id. at 129. Are one?” Defense while it well settled that can is an accused response plain is unambiguous: and offense, waive a lesser Honor, ‘Your I simply do not want to re- Mundy, 9 C.M.R. 130 quest battery.” Although one for the it is (1953), it is not settled an that accused can possible lawyers language for to craft that is so, waive an affirmative or if which plain more direct and than this language, light significance ones. of the there is much not room do so. involved, principles reasonable doubt this underlying Court should address the issue

However, majority not address Then, directly. expressly it should either resulting underlying question— overrule and Steinruck and state its whether a sponte sua so, doing or reasons for affirm the decision of on an instruct reasonably that is regardless of an waiver, just ground

apparent not on the but point, affirmative waiver. On this necessarily ground majority if affir- on the correlated that an concludes “even an reasonably pre- on defense is the affirmative defense affirmatively can required provided be sented was to be sua supported by position sponte by judge.1 the defense.” This is majority responds 1. The govern- with a discussion of case an accused can waive the obligation prove guilt law. the case law is uncertain ment’s a reason- question ultimately does not address the raised in able doubt where the bears the bur- rebutting this case. issue this Court is not how den of an is interpret past precedent, position reasonably best to this but Court’s raised. Whatever one’s on precedent question, analysis. what this Court will set as to whether it merits “all-or-nothing 51(c), UCMJ,2 as the hand, sometimes referred to Article On All- Carpenter, L. 920(e)3 Catherine doctrine.” appear be consistent R.C.M. In- or-Nothing Doctrine in Criminal Cases: a court- legal principle that policy Gamesmanship Strategy or dependent Trial process intended to factfinding martial is L. 257 Awry?, 26 Am. J.Crim. Gone merely as a forum justice serve serve legal practice with the This is consistent advocacy of trial for the demonstration liberty and policy where an accused’s ultimately in If a concern is tactics. court's stake, ought have the reputation are at determining beyond a doubt reasonable present his defense based opportunity to guilty, is then we should whether employ theory of the case and 51(c), UCMJ, especially Article read theory. support tactics best suited to 920(e) they say: mean what or instruction on an affirmative defense less- legal position If is the correct this latter is er included offense regarding held position, this Court has justice Society’s raised. interest should question then advantage counsel prevail over tactical the same conclusion should may requesting foresee in an instruction on reached in the case of an affirmative defense greater defense to a an affirmative all, Tay- that is raised. After waiving purportedly that same defense to re- expressed lor Court its belief that “with the lesser included offense. spect and other affirmative to other offenses parallel also exists between hand, Supreme the other Court and On sponte duty to test for a sua long an accused this Court have held that can and the lesser-included offense test rights, waive certain core constitutional such structing on defense.” itself, provided as the to trial ac- requirement M.J. at to instruct knowingly voluntarily cused does so premised the arti- both instances is on same Care, the record. States v. See United provision in cle of the same the UCMJ and 535, 538-40, 40 C.M.R. 250-52 Courts-Martial, the Manual for (1969). However, an cannot waive accused (MCM). Thus, a compelling absent rights. plead he some Once decides to legal why on a lesser reason an instruction guilty and his a trial on exercise to the waived, might be but an included offense merits, govern- an cannot the accused waive may instruction on an affirmative defense prove guilt beyond burden ment’s a not, the rule as both should be the same prec- reasonable doubt. with this Consistent expressly overrule this Court should edent, military practice in an accused can Taylor. waive lesser offense, in compelling legal included make the effect tacti- a reason gamble differently cal decision on conviction of the two can be treating a the situations government’s proof greater acquittal. offense or full is found in the burden of This (4) statutory provision proof to the as follows: that the burden of establish 2. This reads guilt beyond the a reasonable of (c) ... [T]he ... shall upon doubt is the United States. the court the the members of as to elements of part: reads in This rule relevant charge the offense and them— (e) Required instructions. Instructions (1) presumed that the accused must be to be findings shall include: guilt by legal innocent until his is established (1) description of the elements of each A competent beyond evidence reasonable charged, findings such of- offense unless doubt; unnecessary they have fenses are because considered, (2) being the case there plea guilty; been entered of guilt doubt of the is reasonable as (2) description each A of the elements of accused, must the doubt be resolved favor issue, unless trial lesser offense acquitted; the of (3) accused and must be is the of a lesser included offense barred that, is doubt if there reasonable as of ... and the accused statute limitations degree guilt, finding bar; the of the must in a waive refuses to the degree (3) is no description any special lower as to which there reason- defense un- of doubt; issue[.] able der R.C.M. beyond Regarding doubt. raising reasonable affir as well as the states, the “Except MCM persuasion burden of and the of burden responsibili for the of lack of mental proof, an accused should be allowed to waive ty and the of fact defense mistake as to the defense. age prosecution ... in a carnal knowl of a is offense edge, prosecution the shall have the burden distinct from the waiver of proving beyond a reasonable doubt that government defense for which the bears 916(b). defense did exist.” R.C.M. burden of rebuttal. In case of a 916(b) Analysis The Drafters’ to R.C.M. government lesser is not relieved states that subsection is based on “[t]his prove beyond its burden to offense fourth paragraph paragraph 214 of the undertaking reasonable doubt. its burden MCM, (Rev.).” MCM, Analysis prove greater beyond offense a rea- Rules for app. Courts-Martial at A21-63 doubt, sonable will necessar- (2005 ed.). paragraph para The fourth ily prove also its shoulder burden graph 214 revised edition the 1969 beyond lesser offense a reasonable doubt. proof MCM states: “The burden of to estab However, allowing go the lesser offense to guilt beyond lish the of the accused a reason purportedly upon Government, waiving members able doubt is both respect with raised affirmative to that to those elements of the every waiving which must government’s be established in case amounts to burden respect involving special to issues proving de the lesser offense a rea- are fenses which the evidence.” sonable doubt. Thus, permissible assign while it charged proving burden of affirmative defenses to the rape. assault with intent to commit Neither accused, York, see Patterson v. New 432 U.S. parties majority nor the take issue with 197, 215-16, S.Ct. 53 L.Ed.2d 281 the fact lesser offenses of indecent (1977); Ohio, 228, 234-36, Martin v. 480 U.S. assault a bat- S.Ct. L.Ed.2d 267 tery disagreement were raised. Nor is there granted President has accused a point at this that the affirmative defense of degree process requires govern as to the disprove ment to certain affirmative defenses offense, as well as both included of- part proving of its ultimate burden military judge gave fenses. Since a mis- beyond offense a reasonable doubt. Because take of regarding instruction innocent, presumed an accused cases offense of where such an affirmative defense is reason assault, hinges indecent now debate ably government and where the Appellant waived an instruction on defense, not rebut or answer such a a reason aby assault consummated guilt able doubt as to should arise. While an battery. the defense As is one which the many rights, accused can waive constitutional government’s disproving accused Government had the burden of cannot waive the proving beyond burden at guilt trial under reasonable doubt Winship, 916(b), reasonable doubt. See In re I notwithstanding conclude that de- 358, 363-64, U.S. 90 S.Ct. 25 L.Ed.2d purported fense defense, was re- quired give the once the mem- reasons, I these would conclude that bers were also instructed on the lesser those defenses which the cluded rebutting bears the burden of Had waived this lesser an accused cannot waive the then an instruction on the anymore than can waive application would not have been re- the reasonable doubt standard. result, quired. respectfully the burden dissent. As

Case Details

Case Name: United States v. Gutierrez

Court Name: Court of Appeals for the Armed Forces

Date Published: Feb 20, 2007

Citation: 2007 CAAF LEXIS 147

Docket Number: 06-5005/AR

Court Abbreviation: C.A.A.F.