v.
Dennis
P. COLLINS, Captain
No.
01-0664
Crim. App. No. 9900937
Argued
Decided
BAKER, J., delivered
the opinion of the Court, in which GIERKE, EFFRON, and ERDMANN, JJ.,
joined. CRAWFORD, C.J., filed a separate
opinion concurring in the result.
Counsel
For
Appellant: Captain Danyele Jordan
(argued); Colonel
Robert D. Teetsel, Lieutenant
Colonel Mark Tellitocci, Major
Allyson G. Lambert, and Captain
Craig A. Harbaugh (on brief).
For Appellee:
Captain Edward E. Wiggers
(argued); Lieutenant Colonel Margaret B. Baines, Lieutenant
Colonel
Virginia G. Beakes, and Lieutenant
Colonel Lauren
B. Leeker (on brief); Major
Natalie A. Kolb.
Military
Judge: Gary Holland
THIS OPINION IS
SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
Judge
BAKER delivered the opinion of the Court.
At a general court-martial composed
of military judge alone, Appellant was convicted, contrary to his
pleas, of
absence without leave, disobedience of a superior commissioned officer,
failure
to obey a lawful order, fleeing apprehension, assault upon a military
policeman
in the execution of his duties, and an offer of violence against a
superior
commissioned officer in violation of Articles 86, 90, 92, 95, 128,
Uniform Code
of Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 886, 890, 892,
895, and
928 (2000), respectively. He was
sentenced to confinement for ten months, total forfeiture of all pay
and
allowances, and dismissal. The convening
authority approved the adjudged sentence and the Court of Criminal
Appeals, in a per curiam
opinion,
affirmed.
The critical question
in this case is whether the military judge should have engaged in
further
inquiry into Appellant’s mental health in light of the nature of the
original
Rule for Courts-Martial 706 [hereinafter R.C.M.] evaluation and the
examining
physician’s apparent change of view during the trial.1
BACKGROUND
Appellant was a
commissioned officer with 14 years of service at the time of the
charged
offenses. While serving in
Although various documents presented
at Appellant’s court-martial “established,” according to the
Government’s
Brief, “that some of Appellant’s assertions” regarding the situation in
During a subsequent
examination at Tripler in September 1998, Appellant was diagnosed with
adjustment disorder3 instead of delusional
disorder. In light of this evaluation,
Appellant was placed on an “S-3 profile” for six months beginning on
Because Appellant’s request for
resignation had not yet been accepted, he began out-processing from the
Army on
his own volition. After completing most
of his out-processing and requesting a permanent change of station,
Appellant
went to the airport in
While at this facility, Appellant
relayed his conspiracy theories to the commander, Major (MAJ) Harris. Concerned with Appellant’s mental stability,
MAJ Harris ordered Appellant to undergo a mental health evaluation. The results of this assessment indicated
Appellant was “sound enough to face any administrative actions that
[the
facility] needed to do.” On
Upon learning of Appellant’s refusal
to go to the evaluation, MAJ Harris confronted Appellant.
At the time of this confrontation, Appellant
was watching television and playing pool.
When MAJ Harris ordered Appellant to give him the pool cue,
Appellant
jumped to his feet and made threats against MAJ Harris.
Prior to being subdued, Appellant threatened
MAJ Harris with the pool cue, ran away from MAJ Harris and four
military
policemen, and swung the pool cue at a military policeman.
Appellant was subsequently apprehended by
military police.
Later that day at
Appellant’s jail cell, COL Richmond conducted Appellant’s one person
sanity
board that had originally been scheduled for earlier that morning. COL Richmond, the Chief of Behavioral
Medicine at
COL Richmond compiled
the results of the sanity board later that day.
In his written report, COL Richmond concluded that Appellant’s
thought
content contained “pervasive beliefs of probable delusional nature in
the conspiratorial
wrong doing [sic] of high ranking Army officials across many years and
several
different units.” COL Richmond noted
Appellant’s “delusions were not bizarre and could be seen as plausible
if they
were not so pervasive and resistant to any other interpretation.” Ultimately, COL Richmond concluded that
Appellant was “fully capable of understanding the nature of the
proceedings and
to assist in his defense. His cognitive
deficits appear to be limited only to areas of his delusional belief
system.” Appellant was subsequently
charged with two
specifications of failure to obey a lawful order, desertion,
disobedience of
and disrespect to a superior commissioned officer, fleeing
apprehension, two
specifications of assault upon a military policeman in the execution of
his
duties, two specifications of wrongfully communicating a threat, and an
offer
of violence against a superior commissioned officer.
Prior to trial,
Appellant requested the appointment of Dr. Patrick Burba
as a defense psychiatric expert. Due to
financial reasons, including the convening authority’s approval of less
than
half of defense counsel’s requested funding for Dr. Burba’s
assistance, the only help Dr. Burba
provided the
defense was a letter indicating he was “unable to determine whether
[Appellant’s] mental disease rendered him unable to appreciate the
nature,
quality, or wrongfulness of his conduct.”
Dr. Burba also noted that “many of
[Appellant’s] actions and decisions during the time in question were at
least
moderately influenced by his delusional interpretation of events.” Notwithstanding these opinions, Dr. Burba determined Appellant “was able to clearly
state the
nature of the court-martial, the roles of defense and prosecution
counsel, the
charges against him, the[]potential
sentence if found
guilty, and the behavior expected of him during the court-martial.”
During trial, COL
Richmond testified that Appellant’s ability to function normally was
limited to
areas that did not involve his delusional beliefs and that Appellant’s
delusions would preclude him from performing military duties. When questioned whether Appellant’s offenses
stemmed from his delusions, COL Richmond testified that an individual
with a
delusional disorder would “probably react consistently with their
delusion.” COL Richmond further indicated
that Appellant’s reaction to the commander of the Personnel Control
Facility
was consistent with his delusional disorder.
“[H]is belief system at the time was that these were individuals
who
were hostile towards him, who were acting on behalf of an agency, the
US Army,
of which he was no longer a member and over which they had no
legitimate
authority over him.”
Trial
counsel asked COL Richmond, “[D]o you recall in your report
saying that the accused was able to appreciate the nature and quality
of the
wrongfulness of his conduct for the 5 November charges?”
COL Richmond responded, “I do recall
that.” When asked why he said that, COL
Richmond replied, “Because he told me that.”
Trial counsel also inquired of COL Richmond, “[W]ould
your belief to [sic] be that the accused’s
decisions
and overall behavior during this period was basically-he understood the
nature
and quality of the wrongfulness of his conduct[?]”
COL Richmond answered, “I don’t believe he
did.” Additionally, trial counsel asked
COL Richmond, “Sir, would your--with your idea of what specific intent
means,
after evaluation of the accused, in your opinion, do you believe
Captain
Collins could have had the mental capacity to form the requisite
specific
intent to permanently remain away from his unit, his unit of original
assignment?” COL Richmond responded, “I
believe Captain Collins being a very intelligent man could have the
specific
intent to do just about anything, so to answer your question, yes, he
could
have.”
Following Appellant’s conviction and
separation from the Army, he experienced legal difficulties in the
state of
The board continued by explaining,
“These cognitive aspects of competency have never been at issue in
[Appellant’s] case; rather, the concern is whether his delusions would
render
him unable to conduct or cooperate intelligently in his own defense. This would appear to have been the case when
his delusions were active, leading him to withhold information and
opinions
from his attorney and evaluators and to seek prosecution in order to
gain a
public forum to espouse his delusional beliefs.” However,
according to the sanity board,
Appellant “had been restored to competency last year by adequate
treatment . .
. and was free of such delusions at the time of this evaluation.” Finally, the board concluded that, at the
time of the offenses, Appellant had a delusional disorder and “was
unable to
appreciate the nature and quality or wrongfulness of his conduct. Whether or not he understood that technically
his conduct appeared to be unlawful, he did not appreciate it was
wrongful, but
believed it to be necessary.”
DISCUSSION
Appellant contends trial defense
counsel presented enough evidence during trial to raise doubts about
Appellant’s mental competency. Appellant
further suggests that his irrational and incoherent trial testimony,
along with
COL Richmond’s testimony contradicting the written sanity board report,
triggered the military judge’s responsibility to conduct a second
sanity board.
The Government maintains Appellant
failed to establish sufficient doubt regarding his mental competency or
mental
responsibility. In support of this
position, the Government relies on Appellant’s four previous mental
health
evaluations. Moreover, the Government
argues that Appellant’s own trial defense counsel did not question
Appellant’s
competency since he made no objections or motions at trial. Therefore, according to the Government,
Appellant did not create enough doubt about his mental competency or
mental
responsibility to require the judge to order another sanity board.
The arguments presented by the
parties raise questions regarding Appellant’s capacity4 to stand trial as well as his mental responsibility for the
charged offenses. R.C.M. 909 addresses
an accused’s capacity to stand trial: “No person may be brought to trial by
court-martial if that person is presently suffering from a mental
disease or
defect rendering him or her mentally incompetent to the extent that he
or she
is unable to understand the nature of the proceedings against them or
to
conduct or cooperate intelligently in the defense of the case.” R.C.M. 909(a). Mental capacity is a question of fact. R.C.M. 909(e)(1). Mental capacity will be presumed unless the
contrary is established by a preponderance of the evidence. R.C.M. 909(b),(e)(2).
Lack of mental responsibility is an
affirmative defense that must be raised and proven by Appellant by
clear and
convincing evidence. See R.C.M.
916(k)(1)-(3)(a).
See also United States v. Cosner,
35 M.J. 278, 280 (C.M.A. 1992)(citing United
States
v. Ramsey, 28 M.J. 370, 371 n.2 (C.M.A. 1989)).
An accused is presumed to be mentally
responsible at the time of the alleged offenses until the accused
establishes
by clear and convincing evidence that he was not mentally responsible
at the
time of the alleged offenses. R.C.M.
916(k)(3)(A).
“Clear and convincing evidence is that weight of proof which
‘produces
in the mind of the factfinder a firm
belief or
conviction’ that the allegations in question are true.”
United States v. Martin, 56 M.J. 97,
103 (C.A.A.F. 2001)(citations omitted).
Although an accused bears the burden
of introducing evidence to establish lack of mental responsibility,
R.C.M.
706(a) provides,
If it appears to any commander who considers the disposition
of
charges, or to any investigating officer, trial counsel, defense
counsel,
military judge, or member that there is reason to believe that the
accused
lacked mental responsibility for any offense charged or lacks capacity
to stand
trial, that fact and the basis of the belief or observation shall be
transmitted through appropriate channels to the officer authorized to
order an
inquiry into the mental condition of the accused. The
submission may be accompanied by an
application for a mental examination under this rule.
The purpose of the R.C.M. 706 sanity
board “is to determine if an accused ‘lacks capacity to stand trial’ or
‘lacked
mental responsibility for any offense charged.’” United
States v. Murphy, 50 M.J. 4, 12
(C.A.A.F. 1998)(quoting
R.C.M. 706). Although concerns emerged
during trial
regarding Appellant’s mental competency and mental responsibility, for
the
reasons expressed below, this case hinges on the military judge’s
response to
questions raised concerning Appellant’s mental responsibility.
A “military judge may order a mental
examination of the accused regardless of any earlier determination by
the
convening authority.” R.C.M.
706(b). As a result, the military
judge in Appellant’s case had the authority and the responsibility to
determine
whether a second sanity board needed to be convened in light of COL
Richmond’s
testimony at trial. See Drope v. Missouri, 420
COL Richmond testified that after
examining Appellant for two hours he diagnosed him with delusional
disorder. He explained that delusional
disorder is a severe mental disease or defect that is “different from
other
psychotic disorders in that the psychosis is limited to specific
delusions as
opposed to, you know, all aspects of life, and reality testing, the
ability to
determine fact from fiction, reality from unreality, is essentially
maintained
across a broad spectrum of other activities with the exception of the
delusion
beliefs.” COL Richmond further explained
that he based his opinions regarding Appellant’s requisite intent with
respect
to the charged offenses “on my perception that his belief system at the
time
was that these individuals who were hostile towards him, who were
acting on
behalf of an agency, the US Army, of which he was no longer a member
and over
which they had no legitimate authority over him.”
When asked whether Appellant’s
testimony at trial changed his diagnosis, COL Richmond responded, “No,
it has
not.” But he also testified that
Appellant could function pretty normally “in all the areas that are not
involved in his delusional belief system.”
(Emphasis added.) When asked on
cross-examination, “28 June, would that same--would your belief to be
that the accused’s decisions and overall
behavior during this period
was basically--he understood the nature and quality of the wrongfulness
of his
conduct as well, those days?” COL
Richmond replied, “I don’t believe he did.”
Nonetheless, when questioned whether Appellant “could have had
the
mental capacity to form the requisite specific intent to permanently
remain
away from his unit,” COL Richmond responded, “I believe Captain Collins
being a
very intelligent man could have the specific intent to do just about
anything,
so to answer your question, yes, he could have.”
At this point in the trial, the
military judge had a responsibility to consider whether COL Richmond,
the sole
member of Appellant’s sanity board, had changed his diagnosis regarding
Appellant’s mental responsibility and whether further inquiry was
needed. For example, in United States
v. Bray,
49 M.J. 300, 302 (C.A.A.F. 1998), when testimony at trial raised the
question
of whether the appellant was responsible for his actions despite the
mental
responsibility findings previously made by a sanity board, the trial
judge
halted the proceedings and advised the appellant of the possibility of
a mental
responsibility defense. We believe the
military judge should have done something more in this case as well.
As noted above, the Rules for
Courts-Martial permit additional mental health inquiry at any point
during a
court-martial proceeding. Although this
Court has no case law directly addressing a military judge’s
responsibility to
order additional inquiry when questions regarding an accused’s
mental responsibility are raised during trial, such a process is
consistent
with the federal approach of addressing questions of competence that
arise
during trial.6
In this case, the military judge was
aware of the following: COL Richmond, a
defense witness, was the sole witness testifying about Appellant’s
mental
capacity and mental responsibility. COL
Richmond’s testimony was based on his R.C.M. 706 sanity board
evaluation of
Appellant. This evaluation occurred on
June 28 after Appellant’s arrest and confinement. The
evaluation consisted of a two-hour
interview at Appellant’s jail cell. The
military judge was also aware Appellant had been referred for
psychological
evaluations on three prior occasions and that COL Richmond did not
review these
evaluations before Appellant’s R.C.M. 706 sanity board.
COL Richmond also testified that his
conclusion that Appellant could understand the wrongfulness of his
actions was
based on Appellant’s own belief that he understood the wrongfulness of
his
actions. It was in this testimonial
context that COL Richmond appeared to contradict his own R.C.M. 706
conclusions
when he was asked “would your belief to [sic] be that the accused’s
decisions and overall behavior during this period was basically-he
understood
the nature and quality of the wrongfulness of his conduct” and stated
in
response “I don’t believe he did.”
This was not a tangential or
supplementary question, but the central question of the mental
responsibility
inquiry. In the context presented, such
a statement from the only doctor testifying to Appellant’s mental
responsibility warranted further inquiry.
Although this inquiry may, and perhaps should have come from
defense
counsel, the Rules for Courts-Martial are clear. Mental
competence and responsibility are the
duty of all trial principals. See
R.C.M. 706(a). In the courtroom,
however, the military judge is ultimately responsible for ensuring that
R.C.M.
706 is followed. As a result, we
conclude the military judge abused his discretion by not ordering
further
inquiry into Appellant’s mental responsibility at the point in the
trial when
COL Richmond appeared to change his testimony and conclusion. This conclusion is reinforced by COL
Richmond’s earlier testimony regarding the scope of his evaluation of
Appellant. He testified that he did not
review
Appellant’s mental health history, including repeated mental health
evaluations
ordered by the Army.7 As a result, Appellant was
prejudiced when his trial proceeded to conclusion without further and
complete
inquiry into his mental responsibility.
DECISION
The decision of the United States Army Court of Criminal Appeals
is
reversed.8
The findings and sentence are set aside, and the record of trial
is
returned to the Judge Advocate General of the Army.
A rehearing is authorized.
1 This Court granted review of
the
following issues:
I.
WHETHER THE SANITY BOARD ORDERED BY THIS COURT HAS GENERATED
NEW EVIDENCE NOT DISCOVERABLE BY DUE DILIGENCE AT THE TIME OF TRIAL,
AND, IF
SO, WHETHER THE NEW EVIDENCE, WHEN VIEWED IN THE LIGHT OF ALL OTHER
PERTINENT
EVIDENCE, WOULD HAVE PRODUCED A SUBSTANTIALLY MORE FAVORABLE RESULT FOR
APPELLANT. SEE R.C.M. 1210(f).
II.
WHETHER, IN THE ALTERNATIVE TO ISSUE I, AND IN LIGHT OF THE
APPELLATE SANITY BOARD’S FINDINGS THAT APPELLANT WAS NOT COMPETENT TO
STAND
TRIAL, APPELLANT WAS SUBSTANTIALLY PREJUDICED WHEN THE MILTIARY JUDGE
FAILED TO
ORDER SUA SPONTE A SECOND SANITY BOARD. SEE
R.C.M. 909(d).
2 “The
essential feature of
Delusional Disorder is the presence of one or more nonbizarre
delusions that persist for at least one month[.]” Diagnostic and Statistical
Manual of Mental Disorders 296 (4th ed. 1994).
3 “The
essential feature of an
Adjustment Disorder is the development of clinically significant
emotional or
behavioral symptoms in response to an identifiable psychosocial
stressor or
stressors.”
4 The parties
in their briefs and at
oral argument framed their arguments in terms of competency and mental
responsibility. We note that the Rules
for Courts-Martial “use the term ‘mental capacity’ to refer to what
civilian
courts call competency.” Captain Margaret A. McDevitt,
Defense
Counsel’s Guide to Competency to Stand Trial, Army Law., 33, 33
(March
1988). For the purpose of this
opinion and in light of counsel’s arguments, we use the terms
interchangeably.
5 “Legal error
(i.e., an abuse of
discretion) occurs if the findings of fact upon which he [the judge]
predicates
his ruling are not supported by the evidence of record; if incorrect
legal
principles were used by him in deciding this motion; or if his
application of
the correct legal principles to the facts of a particular case is
clearly
unreasonable.” United States v. Gray,
51 M.J. 1, 13 (C.A.A.F. 1999)(quoting United
States
v. Williams, 37 M.J. 352, 356 (C.M.A. 1993)).
6 See United
States v. Drope, 420 U.S. 162, 180
(1975)(“There are, of course,
no fixed or immutable signs which invariably indicate the need for
further
inquiry to determine fitness to proceed; the question is often a
difficult one in
which a wide range of manifestations and subtle nuances are
implicated.”); see
also Walton v. Angelone, 321
F.3d 442, 459
(4th Cir. 2003)(“Even if a defendant is mentally competent at the
beginning of
the trial, the trial court must continually be alert for changes which
would
suggest that he is no longer competent.”)(citing Drope,
420 U.S. at 180 (“We conclude that when considered together with the
information available prior to trial and the testimony of petitioner’s
wife at
trial, the information concerning petitioner’s suicide attempt created
a
sufficient doubt of his competence to stand trial to require further
inquiry on
the question.”)).
7 Although the
military judge’s
decision must be evaluated based on what was known to him at the time
of trial,
the results of the second sanity board and the psychiatric evaluation
conducted
in New York both support the conclusion that the military judge in this
case
needed to inquire further into Appellant’s mental responsibility.
8 In light of
our decision, Appellant’s
petition for new trial is denied as moot.
CRAWFORD, Chief Judge
(concurring in the result):
Because there is a reasonable doubt
that a different verdict might result if a trier
of
fact considers the results of the post-trial Rule for Courts-Martial
706
[hereinafter R.C.M.] inquiry directed by this Court, we should grant Appellant’s petition for a new trial.1 Rather than grant
this well-supported relief,
the majority unnecessarily rejects decades of settled practice in this
area,
applying de novo review to find error.
In so doing, the majority gravely confuses the concept of mental
capacity with the defense of mental responsibility and changes the
obligation
on military judges. I cannot join the
majority in imposing on military judges such an unwarranted
and ill-defined burden.
Administration of justice according to law means
administration
according to standards, more or less fixed, which individuals may
ascertain in
advance of controversy and by which all are reasonably assured of
receiving like
treatment.2
Like the majority, I begin my
analysis by citing United States v. Carpenter:
"The question whether additional
psychiatric examination is necessary rests within the discretion of the
military judge and is reviewable only for abuse of discretion”.3 This citation is
important in understanding the majority’s position for at least two
reasons.
First, the majority’s citation to “abuse of
discretion” is curious. Other than
noting this legal standard, their analysis is clearly de novo,
notwithstanding
their later conclusion, bereft of discussion or guidance, that “the
military
judge abused his discretion by not ordering further inquiry into
Appellant’s
mental responsibility.”4
Discussion of abuse of discretion appears nowhere in the
majority’s
multi-page analysis. Instead, the
opinion predicates error on the military judge’s failure to order a
second
sanity board, given the “nature of the original” board and Colonel
(COL)
Second, the issue in Carpenter
was mental capacity (“competence”) to stand trial.7 For that reason, its
value as an analogue to mental responsibility cases is limited. We would be wise to tread carefully when
comparing the duty of a military judge to address and resolve
“competence” as a
matter of law, with his or her concomitant duties, in a bench trial, as
both
the trier of fact and source of law, when
“responsibility” is an issue.8
Competence must be resolved as an interlocutory matter of law,
while
responsibility must be resolved by the finder of law and trier
of fact.9
As the majority correctly notes, if the military judge has
reason to
question either the mental competence or responsibility of an accused,
he or
she “may order a mental examination of the accused regardless of any
earlier
determination by the convening authority,”10 subject to review for abuse of discretion.11 If the military judge
finds that an accused is not competent, trial may not proceed,12 and again the military judge’s ruling is tested for abuse of
discretion.13
In contrast to these legal
determinations is the factual determination made by the trier
of fact when the defense of lack of mental responsibility is raised. If an accused prevails on the issue of mental
responsibility before the trier of fact,
the result
is a verdict of “not guilty only by reason of lack of mental
responsibility.”14 Such a verdict is then
followed by the procedures in R.C.M. 1102A, but is not subject to
disapproval
by the convening authority,15 appeal by the United States,16 or review by either a Court of Criminal Appeals or this
Court.17 Importantly, Article
51(b) and R.C.M. 916(k)(3)(C) require
resolution of
mental responsibility by the trier of fact
and
prohibit interlocutory determination of mental responsibility.
Notwithstanding a plainly announced
and historically recognized legislative scheme, and without citation of
authority or explanation, the majority decrees that “when questions
regarding
an accused’s mental responsibility are
raised during
trial,” the military judge’s responsibility to order additional inquiry
“is
consistent with the federal approach of addressing questions of competence
that arise during trial.”18
This “consistency” is observed for the sole purpose of importing
standards from federal decisions on the question of competence that
have no
application whatever to questions of mental responsibility. In fact, the majority ignores both Article 3619 and significant federal case law emphasizing that the two
issues are wholly incongruent.20
In this case, the military judge was
not asked by either party to rule on a request for further inquiry into
Appellant’s mental responsibility. He
was asked to find, as a matter of fact (if he first found Appellant
guilty),
whether Appellant had proved by clear and convincing evidence that, at
the time
he committed the offenses of which he was found guilty, he lacked
mental
responsibility for those acts.21
This is not to say that the military judge did not retain, for
the
duration of the proceedings, a responsibility to be alert for anything
that
might raise a question concerning either Appellant’s competence or
responsibility.22
Because military judges are presumed to know and apply the law,
there is
no reason to believe that the military judge was not cognizant of this
responsibility or that he failed to discharge it accordingly.23 This principle applies
even when the reasoning of the military judge is not plain on the
record.24
Two issues are not before
us: (1) whether the evidence is
sufficient as a matter of law to support the military judge’s
determination
that Appellant’s lack of mental responsibility was not proved by clear
and
convincing evidence; and (2) whether we, with the clarity of hindsight
and the
assurance of an additional sanity board, would have done things
differently,
had we been the military judge. After
reviewing the military judge’s actions solely for abuse of discretion,
I conclude
that he did not err.
A.
Competence vs. Responsibility.
No evidence at trial placed in
question the competence of Appellant to stand trial, nor was that issue
raised
by the defense under R.C.M. 909, or by any other party.
What was litigated at trial was the mental
responsibility of Appellant at the time of the offenses.
Any reference by the majority to mental
competence or capacity is inapposite and may unintentionally suggest to
military judges that there is a factually and legally valid analytical
connection between the two. For this
reason, I must specifically dissent from the majority’s conclusions.
B.
Defense of Lack of Mental Responsibility.
There is no indication that the
military judge had an opportunity to examine the report of the R.C.M.
706
inquiry until it was offered into evidence
by the
defense during the defense case, nor did either party contend that the
report
was insufficient, that the inquiry was improper, or that COL Richmond
was
unqualified. Nonetheless, the military
judge was aware that the defense would place the accused’s
mental responsibility in issue. Far from
being uninvolved, the military judge during trial on the merits, after
explaining in open court the purpose for his inquiry, questioned COL
Guthrie,
Majors O’Dell and Harris, and Specialist Austin (all witnesses for the
prosecution) on matters pertinent to Appellant’s mental responsibility. Counsel frequently had additional questions
of these witnesses after inquiry from the bench. In
addition, the military judge briefly
questioned Appellant regarding his duty status and state of mind. Appellant’s testimony was lucid, consistent,
and characteristic of those who elect to testify in support of their
lack of
mental responsibility.
During cross examination of COL Richmond,
the defense expert on this issue, COL Richmond gave an answer that
appeared to
conflict with his findings while acting as a one-member “sanity board,”
pursuant to R.C.M. 706. As the defense
witness request for COL Richmond does not contain the synopsis required
by
R.C.M. 703, we have no way of knowing whether COL Richmond’s testimony
at trial
was a surprise to the defense, much less to the government. If either was surprised, he hid it well,
making very little additional inquiry into the area.
Assuming, arguendo,
that COL Richmond’s momentary departure from the R.C.M. 706 report was
unexpected, the remainder of his testimony (as quoted by the majority)
is
sufficiently equivocal to significantly reduce the weight of his “I
don’t
believe he did,” comment. Even so, COL
Richmond’s, “I don’t believe he did” answer contributed to and directly
supported Appellant’s lack of mental responsibility defense.
The
defense counsel, who likely knew far more about his client’s
mental state than did any other party to the trial, did not object when
COL
Richmond changed his testimony. At that
point, with virtually no other evidence to carry the defense’s burden
to prove
clearly and convincingly Appellant’s lack of mental responsibility, the
defense
counsel may well have welcomed assistance from this perhaps unexpected
quarter.
As we
strongly advised in United States v. Quintanilla,25
[t]he
Manual also emphasizes the importance of an impartial judiciary,
advising
military judges that when carrying out their duties in a court-martial,
they ”must avoid undue interference with the
parties'
presentations or the appearance of partiality.” RCM 801(a)(3)
(Discussion). The military judge must
exert his authority with care, so as not to give even the appearance of
bias for
or against either party.
If, as the majority insists was
required of him, the military judge had intervened and, over defense
objection,26 directed a second sanity board, on appeal we would be
evaluating two far more deserving issues:
(1) did the military judge abuse his discretion in ordering an
additional sanity inquiry?; and (2) did the military judge depart his
impartial
role when, immediately following testimony favorable to the primary
defense
raised by Appellant, he sua sponte
stopped the proceedings to seek expert impeachment of that testimony?
C.
Responsibility of the Military Judge.
Neither counsel commented on,
contradicted, or argued COL Richmond’s seemingly anomalous interjection. No party to the proceedings suggested or
requested any additional inquiry into the mental responsibility of
Appellant. The report of the R.C.M. 706
board, though not a model inquiry, is regular on its face and no
question was
raised at trial regarding COL Richmond’s qualifications or the
procedures he employed. Tellingly, the
record of trial contains no
reference to any standard that COL Richmond failed to meet.
Nonetheless, the majority finds that
the military judge erred, and in so doing, “puts trial judges in a
unique
‘box.’ Military judges now must assume the role we have always left to
competent counsel” to present evidence in support of affirmative
defenses.27 Are military judges now
required to ask presumably competent counsel on the record if they are
challenging the validity of a facially valid R.C.M. 706 report? Are military judges now required seek an
advance copy of the report, examine it and inquire into its basis,
assess the
qualifications of those producing the report, and sua
sponte determine whether the report is
sufficient? Just as importantly, are
military judges now required to provide another “bite at the apple” to
the
government in any case in which an expert witness for the defense
unexpectedly
testifies in support of an accused’s lack
of mental
responsibility?
In deciding, without having seen any
witness testify and, in particular, without having evaluated
Appellant’s
in-court demeanor on and off the stand, “we believe the military judge
should
have done something more in this case,”28 the majority now requires not only
that military judges meet the qualifications of Article 26,29 but that they possess a measure of clairvoyance that should
not
reasonably be required of any human.
Given the choice between this course of action and granting
Appellant a
new trial pursuant to R.C.M. 1210, I have no difficulty deciding that
the
latter path is the more prudent and correct.
1
2 Roscoe Pound, Justice
According to Law, 13 Colum. L. Rev.
696, 705
(1913).
3 37 M.J. 291,
298 (C.M.A. 1993)(emphasis added).
5 United
States v. Frye, 8
C.M.A. 137, 141, 23 C.M.R. 361, 365 (1957)(Latimer,
J., concurring in the result).
6 United
States v. Miller, 46
M.J. 63, 65 (C.A.A.F. 1997)(citing United
States v.
Travers, 25 M.J. 61, 62 (C.M.A. 1987)).
7 Like the
majority, I note that
these terms are used interchangeably.
8 See
Arts. 50a and 51(d),
Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 850a
and
851(d)(2000).
9 Compare
R.C.M. 909(d)-(e) with
R.C.M. 921(c)(4).
11
12 R.C.M. 909(e)(2);
Short v. Chambers, 33 M.J. 49, 51 (C.M.A. 1991).
13
14 Art. 50a(c)(3),
UCMJ, 10 U.S.C. § 850a(c)(3) (2000); R.C.M. 921(c)(4).
16 Art. 62, UCMJ, 10
U.S.C. § 862 (2000).
17 Arts. 66, 67, UCMJ, 10
U.S.C. §§ 866, 867 (2000).
18 __ M.J. (19)
(emphasis
added).
19 UCMJ, 10 U.S.C. §
836 (2000).
20 See, e.g.,
United States
v. Bartlett, 856 F.2d 1071 (8th Cir. 1988); United States v.
Hollis,
569 F.2d 199 (3d Cir. 1977); United States v. Mercado, 469 F.2d
1148 (2d
Cir. 1972); United States v. Taylor, 437 F.2d 371 (4th Cir.
1971); Floyd
v. United States, 365 F.2d 368 (5th Cir. 1966); United States
v. Westerhausen, 283 F.2d 844 (7th
Cir. 1960).
21 See
generally R.C.M. 921(c)(4).
22 R.C.M. 916(k)(3)(B);
Frederick, 3 M.J. at 232-33.
23
24
25 56 M.J. 37,
43 (C.A.A.F. 2001)(footnote omitted).
26
Not a mere whimsy, given Appellant’s expressed belief that the
Army was
using mental status inquiries to deny him due process.
Appellant testified that he resisted additional
mental evaluation because he thought it was being used to deny him his
day in
court, and that some of the acts with which he was charged were
undertaken for
the purpose of getting him to a court-martial.
27 United
States v. Wiesen, 57 M.J. 48, 55
(C.A.A.F. 2002)(Crawford,
C.J., dissenting).
28 __ M.J. (18). In
support of this conclusion, the majority
relies on United States v. Bray, 49 M.J. 300 (C.A.A.F. 1998), a
case in
which the military judge was required by R.C.M. 910(e) and United
States v. Jemmings, 1 M.J. 414 (C.M.A.
1976) to advise the
accused of the defense of mental responsibility because that defense
was raised
during sentencing following a guilty plea.
By concluding that “the military judge should have done
something more
in this case as well,” the majority enigmatically hints that
henceforth, in
contested cases, the military judge would be wise to advise the accused
of a
potential defense whenever he believes it has been raised by the
evidence,
during any part of the proceedings.
29 UCMJ, 10 U.S.C. §
826 (2000).