United States v. Collins , 2004 CAAF LEXIS 838 ( 2004 )

United States, Appellee
v.
Dennis P. COLLINS, Captain
U.S. Army, Appellant
No. 01-0664
Crim. App. No. 9900937
___________________________________________________________
United States Court of Appeals for the Armed Forces
Argued April 20, 2004
Decided August 25, 2004
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.
United States v. Collins, No. 01-0664/AR
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. United States
v. Collins, ARMY 9900937 (A. Ct. Crim. App. December 4,
2000). We reverse.
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.]
2
United States v. Collins, No. 01-0664/AR
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 Saudi Arabia in 1997, Appellant notified his command of
security concerns he had regarding the lack of chemical
alarms, exceptions to policy for searching vehicles, as
well as the lack of a secure water supply. Dissatisfied
with the response he received from his command, Appellant
went outside his chain of command and sent a letter to the
Central Command Combatant Commander addressing these
security practices and his concern for his troops.
Although various documents presented at Appellant’s
court-martial “established,” according to the Government’s
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).
3
United States v. Collins, No. 01-0664/AR
Brief, “that some of Appellant’s assertions” regarding the
situation in Saudi Arabia “had some basis in fact,” he
returned to Fort Bragg where he was denied his anticipated
assignment as the brigade adjutant and instead received
permanent change of station orders to American Samoa.
While working as the training officer for National Guard
soldiers in American Samoa, Appellant sent letters and
emails to his military superiors regarding what he believed
to be an ongoing conspiracy involving black-marketing and
corruption. In light of Appellant’s actions, his commander
sent him to Tripler Army Medical Center in Hawaii for a
psychological evaluation. In August 1998, psychiatrists at
Tripler diagnosed Appellant with delusional disorder.2 The
psychiatrists noted Appellant’s “thought content was of a
non-bizarre delusional quality and reality testing seemed
inconsistent” and his “insight, judgment, and impulse
control are questionable.” Although the psychiatrists
ultimately cleared Appellant to return to duty, they
commented that “given his propensity for errors in
judgment, command needs to determine whether [Appellant]
can continue to be an asset for the Army.”
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).
4
United States v. Collins, No. 01-0664/AR
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 September 14, 1998. The S-3
profile required that Appellant be moved to a location
where he could receive close monitoring by an Army
psychiatrist or psychologist with enough mental health
resources to support weekly counseling or psychotherapy.
On September 24, 1998, Appellant submitted a letter of
resignation to his battalion commander, but the resignation
was not immediately accepted. On October 22, 1998,
Appellant received a poor performance report indicating
that Appellant “definitely should not lead soldiers in
combat” and evaluated his potential as “below center of
mass do not retain.”
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 Hawaii en route to his
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.” Id. at 623.
5
United States v. Collins, No. 01-0664/AR
home in New York. When confronted at the airport by a
member of his unit, Appellant refused to return to base
because he believed the “orders to be completely bogus” as
he was no longer in the Army. After spending six months at
his home, Appellant went to Fort Hamilton, New York, on May
19, 1999, to determine why he was not being paid.
Appellant was informed that he was absent without leave and
was returned to military control. Because the Army
considered Appellant a deserter, he was sent to the
Personnel Control Facility at Fort Knox, Kentucky.
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 June 28, 1999, MAJ Harris
ordered Appellant to have another examination in the form
of a R.C.M. 706 sanity board conducted by Colonel (COL)
Richmond. Appellant, however, ignored the order because he
believed it to be “an illegal immoral [sic] order.”
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
6
United States v. Collins, No. 01-0664/AR
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 Ireland Army
Community Hospital at Fort Knox, Kentucky, previously
performed between 10 to 15 sanity boards. After examining
Appellant for two hours, COL Richmond diagnosed Appellant
as having delusional disorder. COL Richmond did not review
Appellant’s prior mental health records from Tripler Army
Medical Center during this examination.
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
7
United States v. Collins, No. 01-0664/AR
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
8
United States v. Collins, No. 01-0664/AR
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
9
United States v. Collins, No. 01-0664/AR
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
New York. In light of these problems, Appellant underwent
a psychiatric evaluation on November 6, 2000. This
psychiatrist diagnosed Appellant with delusional disorder
10
United States v. Collins, No. 01-0664/AR
and opined that Appellant “has no insight into his illness
and (his) judgment is poor.” Pursuant to this Court’s
order, Appellant underwent a second sanity board composed
of two psychiatrists on April 15, 2002. This sanity board
noted that Appellant “is not presently suffering from a
mental disease or defect rendering him unable to understand
the nature of the proceedings against him or to cooperate
in his defense.” The board also stated that Appellant “was
competent to participate in appellate proceedings at the
time of this evaluation.” He “had a firm grasp of the
factual aspects of legal proceedings, and clearly
understood the nature of the charges against him, the
penalties imposed by his initial court-martial, and
potential remedies available to him through the appellate
process.”
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,
11
United States v. Collins, No. 01-0664/AR
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
12
United States v. Collins, No. 01-0664/AR
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).
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.
13
United States v. Collins, No. 01-0664/AR
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
14
United States v. Collins, No. 01-0664/AR
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 U.S. 162,
180 (1975); see also Short v. Chambers, 33 M.J. 49, 52
(C.M.A. 1991). The question of whether an additional
psychiatric examination is “necessary rests within the
discretion of the military judge and is reviewable only for
15
United States v. Collins, No. 01-0664/AR
abuse of discretion.” United States v. Carpenter, 37 M.J.
291, 298 (C.M.A. 1993)(citing United States v. Frederick, 3
M.J. 230, 232-33 (C.M.A. 1977)). Thus, we test a military
judge’s decision whether to order additional inquiry into
an accused’s mental responsibility for abuse of discretion.
See United States v. Gray, 51 M.J. 1, 13 (C.A.A.F. 1999).5
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
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)).
16
United States v. Collins, No. 01-0664/AR
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
17
United States v. Collins, No. 01-0664/AR
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
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
18
United States v. Collins, No. 01-0664/AR
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
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.”)).
19
United States v. Collins, No. 01-0664/AR
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
7
Although the military judge’s decision must be evaluated
based on what was known to him at the time of trial, the
20
United States v. Collins, No. 01-0664/AR
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.
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.
21
United States v. Collins, No. 01-0664/AR
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
1
United States v. Breese, 47 M.J. 5 (C.A.A.F. 1997).
2
Roscoe Pound, Justice According to Law, 13 Colum. L.
Rev. 696, 705 (1913).
United States v. Collins, No. 01-0664/AR
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) Richmond’s
partial departure during his testimony on the merits of the case
from the findings of the sanity board he conducted. With good
reason, the majority fails to offer any citation of authority to
support the conclusion that, in the wake of COL Richmond’s
testimony, the evidentiary posture “warranted further inquiry.”
I would follow our precedent and determine whether the military
judge’s failure to order, sua sponte, an additional inquiry into
Appellant’s mental responsibility was “arbitrary, capricious, or
3
37 M.J. 291, 298 (C.M.A. 1993)(emphasis added).
4
__ M.J. (20).
2
United States v. Collins, No. 01-0664/AR
unrestrained,”5 or “arbitrary, fanciful, clearly unreasonable, or
clearly erroneous,” or amounted to more than a difference of
opinion.6
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
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).
3
United States v. Collins, No. 01-0664/AR
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
10
R.C.M. 706(b)(2).
11
United States v. Frederick, 3 M.J. 230 (C.M.A. 1977).
12
R.C.M. 909(e)(2); Short v. Chambers, 33 M.J. 49, 51 (C.M.A.
1991).
13
United States v. Proctor, 37 M.J. 330, 336 (C.M.A. 1993).
14
Art. 50a(c)(3), UCMJ, 10 U.S.C. § 850a(c)(3) (2000); R.C.M.
921(c)(4).
15
R.C.M. 1107(b)(4)
16
Art. 62, UCMJ, 10 U.S.C. § 862 (2000).
17
Arts. 66, 67, UCMJ, 10 U.S.C. §§ 866, 867 (2000).
4
United States v. Collins, No. 01-0664/AR
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
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).
5
United States v. Collins, No. 01-0664/AR
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
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
United States v. Prevatte, 40 M.J. 396, 398 (C.M.A. 1994).
24
United States v. Vangelisti, 30 M.J. 234 (C.M.A. 1990).
6
United States v. Collins, No. 01-0664/AR
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,
7
United States v. Collins, No. 01-0664/AR
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.
8
United States v. Collins, No. 01-0664/AR
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
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.
9
United States v. Collins, No. 01-0664/AR
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
27
United States v. Wiesen, 57 M.J. 48, 55 (C.A.A.F.
2002)(Crawford, C.J., dissenting).
10
United States v. Collins, No. 01-0664/AR
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
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).
11
United States v. Collins, No. 01-0664/AR
new trial pursuant to R.C.M. 1210, I have no difficulty deciding
that the latter path is the more prudent and correct.
12