United States v. Riddle

UNITED STATES, Appellee
v.
Carrie N. RIDDLE, Private
U.S. Army, Appellant
No. 08-0739
Crim. App. No. 20070756
United States Court of Appeals for the Armed Forces
Argued February 10, 2009
Decided May 12, 2009
STUCKY, J., delivered the opinion of the Court, in which BAKER
and RYAN, JJ., joined. EFFRON, C.J., filed a separate
dissenting opinion, in which ERDMANN, J., joined.
Counsel
For Appellant: William M. Fischbach III, Esq. (argued);
Lieutenant Colonel Matthew M. Miller, Lieutenant Colonel Mark
Tellitocci, and Captain Pamela Perillo (on brief); Major Grace
M. Gallagher.
For Appellee: Captain James M. Hudson (argued); Colonel Denise
R. Lind, Lieutenant Colonel Mark H. Sydenham, and Major
Christopher B. Burgess (on brief).
Military Judge: Richard Gordon
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Riddle, No. 08-0739/AR
Judge STUCKY delivered the opinion of the Court.
Appellant asserts that her guilty pleas were improvident
because the military judge did not explain or discuss the
defense of lack of mental responsibility during the plea
inquiry. We hold that Appellant’s pleas were provident and that
under the facts of this case the military judge was not
obligated to explicitly explain or discuss that defense with
Appellant.
I. Background
Appellant, Private (PVT) Carrie N. Riddle, pled guilty
before a general court-martial to four specifications of use of
marijuana and one specification of being absent without leave
(AWOL). Articles 112a and 86, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. §§ 912a, 886 (2000). The military judge,
sitting alone, sentenced Appellant to a bad-conduct discharge
and ten days of confinement. As Appellant had ten days of
pretrial confinement credit, she served no confinement following
her court-martial. The United States Army Court of Criminal
Appeals summarily affirmed the findings and sentence on May 28,
2008. United States v. Riddle, No. ARMY 20070756 (A. Ct. Crim.
App. May 28, 2008).
Appellant entered active duty on May 31, 2006, and at the
time of these offenses was assigned to Fort Benning, Georgia.
According to the stipulation of fact admitted at trial,
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Appellant used marijuana on several occasions throughout her
period of active duty. On March 1, 2007, Appellant left her
unit for over a month and traveled to South Carolina with
another soldier, PVT Renee Kunsman, remaining there until her
April 16, 2007, voluntary return to her unit. During this trip
Appellant used marijuana with PVT Kunsman. Appellant advised
the pregnant PVT Kunsman that marijuana could be good for her
nerves and appetite. In a stipulation of fact, the parties
agreed that Appellant had chronic alcohol and marijuana
dependence as well as bipolar and borderline personality
disorder, conditions which pre-dated her enlistment.
The military judge was aware of Appellant’s mental
condition. He knew that before her unauthorized absence she was
scheduled to be administratively discharged for her mental
condition, and that she was then receiving treatment at an “off-
post installation that specializes in mental issues, mental and
behavioral issues.” The military judge was also aware that
Appellant arrived at trial directly from the mental health
facility and would return there at the conclusion of trial. In
addition, the military judge’s questions indicate that
Appellant’s mental state was of concern to him, inquiring “Are
you feeling okay?” when Appellant nonchalantly referred to
throwing the butt of a marijuana cigarette into a lake as
“getting the fishes high.”
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At trial, the military judge asked Appellant a series of
questions regarding her mental health and her competency to
stand trial:
MJ: Now, I understand you are currently receiving
treatment at the Bradley Center in Columbus, Georgia.
Is that true?
ACC: Yes, sir.
MJ: How long have you been down at the Bradley
Center?
ACC: Since the 12th of June, this time, sir.
MJ: Okay. And what are you being treated for?
ACC: Bipolar and borderline personality disorder with
severe depression, sir.
MJ: Okay. I understand that at the conclusion of
this trial today you are going to return to the
Bradley Center for continued treatment?
ACC: Yes, sir.
MJ: All right. . . . The question is whether or not
you are -- you believe that you are competent to stand
trial.
Do you think you are?
ACC: Yes, sir.
MJ: Do you believe that you fully understand not only
the ramifications of this court-martial but what is
going to happen today?
ACC: Yes, sir.
MJ: Okay. Are you currently taking any drugs or
medications?
ACC: Yes, sir.
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MJ: What drugs or medications are you taking?
ACC: My medications are, Zoloft, 100 milligrams, with
Topamax three times a day; Ibuprofen, 800 milligrams
three times a day; Zyrtec; Atarox [sic], Sereoquel;
and --
MJ: Are most of those anti-depressants?
ACC: Sleep aids, mood suppressants, and a couple of
anti-depressants.
MJ: Okay. But Major Grills [defense counsel] assures
me that, in her opinion, she believes you are
competent to understand the nature of these
proceedings. Do you agree with that?
ACC: Yes, sir.
The military judge also questioned Appellant as to her
mental capacity and responsibility at the time of the offenses:
MJ: Okay. Did you understand what you were doing
when you went AWOL?
ACC: Yes, Sir.
MJ: Okay. Now I realize that you have had some
psychiatric issues, I guess apparently in AIT and that
continued apparently to now, although, I have to say
for the record, you appear to be extremely articulate
and very alert today. But my question to you is, as a
Soldier, did you understand that when you went AWOL .
. . that what you were doing was wrong, that you were
not authorized to do that?
ACC: Yes, Sir.
. . . .
MJ: And you knew that smoking marijuana during all of
these four specifications was wrongful, correct?
ACC: Yes, sir.
. . . .
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MJ: And do you agree and do you admit that during
this period of time from early December through April
2007, that your use of marijuana was wrongful?
ACC: Yes, Sir.
Trial defense counsel expanded upon this line of
questioning during Appellant’s unsworn sentencing statement in
an apparent effort to display Appellant’s understanding and
remorse for her crimes:
DC: And we have already talked about the different
conditions that you suffer from, but -- and the
military judge has already asked you this, but the
offenses that you plead guilty to, you understand what
you were doing at those times?
ACC: Yes, ma’am.
DC: And you understood right from wrong?
ACC: Yes, ma’am.
During the sentencing proceeding the military judge
accepted into evidence a mental health evaluation of Appellant
detailing her condition. The “Report of Mental Status
Evaluation” was created on May 14, 2007, and updated on May 17,
2007, by Major Long P. Huynh, the Chief of Inpatient Psychiatry
at Martin Army Community Hospital. The report stated that
Appellant “has the mental capacity to understand and participate
in the proceedings” and that she “was mentally responsible.”
Major Huynh notes Appellant’s two suicide attempts and states
that Appellant would remain an inpatient for the next week. He
further states that Appellant is “medically and psychologically
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stable enough for 1-2 weeks of confinement”; periods longer than
that “may cause her clinical conditions to deteriorate and
possibly lead to readmission to psychiatry.” It is unclear why
the report was created; however Major Huynh states in the
comments section that Appellant was “unsuited for further
military service. Her company commander has agreed to pursue to
[sic] the most rapid separation possible.” Although this form
references “proceedings” for which Appellant was determined to
be “mentally responsible,” the form was completed nine days
prior to the preferral of charges.
After handing down the sentence knowing that Appellant was
going to be returned directly to the Bradley Center, the
military judge made one final statement regarding Appellant’s
mental state:
I just want to say one more time for the record, my
personal observations in this courtroom today are
that, although Private Riddle indicated she was taking
a number of drugs at the Bradley Center . . . she
appeared to the court to be fully cognizant of
everything that happened today. She was alert. She
was articulate, and she appeared to the court to
completely understand the nature and quality of these
proceedings.
II. Discussion
Appellant now argues that the military judge abused his
discretion when he accepted her guilty pleas. Appellant asserts
that, given her mental health history, the military judge was
required to explain or discuss the defense of lack of mental
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responsibility, and furthermore the military judge was required
to ensure that trial defense counsel had evaluated the viability
of the defense and/or elicit facts from her that would
negate the defense. Appellant contends that, as none of these
things occurred, her pleas were improvident.
“[W]e review a military judge’s decision to accept a guilty
plea for an abuse of discretion and questions of law arising
from the guilty plea de novo.” United States v. Inabinette,
66 M.J. 320, 322 (C.A.A.F. 2008); United States v. Shaw,
64 M.J. 460, 462 (C.A.A.F. 2007). If, during the proceedings,
the accused sets up matter inconsistent with the plea, it is the
responsibility of the military judge to either resolve the
inconsistency or reject the plea. Article 45(a), UCMJ, 10
U.S.C. § 845(a) (2000); Shaw, 64 M.J. at 462. Once the military
judge has accepted the pleas and entered findings based upon
them, this Court will not set them aside unless we find a
substantial conflict between the pleas and the accused’s
statements or other evidence of record. Shaw, 64 M.J. at 462.
More than a “mere possibility” of conflict is required. Id.
(citations and quotation marks omitted). Instead, this Court
must find “something in the record of trial, with regard to the
factual basis or the law, that would raise a substantial
question regarding the appellant’s guilty plea.” Inabinette, 66
M.J. at 322.
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In military law, lack of mental responsibility is an
affirmative defense that an accused must establish by clear and
convincing evidence. Article 50a(a), UCMJ, 10 U.S.C. § 850a(a)
(2000); Rules for Courts-Martial (R.C.M.) 916(b)(2). If “there
is reason to believe that the accused lacked mental
responsibility for any offense charged or lacks capacity to
stand trial” the military judge and other officers of the court
each has the independent responsibility to inquire into the
accused’s mental condition. R.C.M. 706(a). An accused cannot
“make an informed plea without knowledge that he suffered a
severe mental disease or defect at the time of the offense.”
United States v. Harris, 61 M.J. 391, 398 (C.A.A.F. 2005).
Similarly, the military judge cannot conduct the necessary
providence inquiry into the accused’s pleas “without exploring
the impact of any potential mental health issues on those
pleas.” Id.
We have addressed the question of an accused’s mental
disease or defect and the providence of a guilty plea in the
recent cases of Inabinette, United States v. Glenn, 66 M.J. 64(C.A.A.F. 2008), Shaw, and Harris. A military judge can
presume, in the absence of contrary circumstances, that the
accused is sane and, furthermore, that counsel is competent.
Shaw, 64 M.J. at 463. Should the accused’s statements or
material in the record indicate a history of mental disease or
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defect on the part of the accused, the military judge must
determine whether that information raises either a conflict with
the plea and thus the possibility of a defense or only the “mere
possibility” of conflict. Id. at 462 (citation and quotation
marks omitted). The former requires further inquiry on the part
of the military judge, the latter does not. Id. This is a
contextual determination by the military judge. Id. at 464.
However, we have additionally indicated that it is prudent, but
we emphasize not always required, to conduct further inquiry
when a significant mental health issue is raised, regardless of
whether a conflict has actually arisen. Id.
The question in Shaw was whether sufficient evidence of a
mental disease or disorder was before the military judge so as
to raise an inconsistency with Shaw’s plea and thus require the
military judge to inquire further into Shaw’s mental state and
advise him of the defense of lack of mental responsibility.
Shaw provided an unsworn statement during sentencing stating
that he had previously been diagnosed with bipolar disorder
following a head injury. Id. at 461. Aside from responding to
defense counsel’s questions on the issue, Shaw provided no
further evidence that his condition affected his mental
responsibility for his actions. Id. We determined that Shaw’s
reference to his history of bipolar disorder “at most raised
only the ‘mere possibility’ of a conflict with the plea,” and
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that therefore it was not an abuse of discretion for the
military judge to accept Shaw’s plea without conducting further
inquiry into his mental health. Id. at 464. In reaching that
decision we considered Shaw’s history of bipolar disorder, his
conduct during the plea inquiry and whether that reflected on
his capacity to plead guilty, and if Shaw’s statements indicated
an inability to appreciate the nature and wrongfulness of his
acts as a result of his mental health issues. Id. at 462-63;
see also Glenn, 66 M.J. at 66.
In Harris, which sits at the other end of the spectrum from
Shaw, we found that there was sufficient basis in law and fact
to question Harris’s guilty plea. 61 M.J. at 398. Harris had
been convicted for passing bad checks, unauthorized absence, and
larceny. Id. at 392. At trial, the military judge found that
Harris understood the nature and quality and/or wrongfulness of
his actions. Id. at 393. However, this Court found that, as
Harris’s mental disease or defect was diagnosed only after the
trial, his plea was not informed and the trial court could not
have performed the necessary providence inquiry. Id. at 398-99.
While there is more here than a mere unsworn assertion, the
facts of this case are still closer to Shaw than to Harris. The
record of trial makes clear that neither Appellant’s conduct nor
her mental health history created more than the mere possibility
of conflict with her pleas. Admittedly, this case differs from
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Shaw in that the record reflects a diagnosis of bipolar disorder
for which Appellant was being treated at the time of trial. In
addition, Appellant arrived at the court-martial from the mental
health facility and would return there at its conclusion.
However, the record does not reflect that her bipolar disorder
affected the providence of her plea. See Shaw, 64 M.J. at 462.
In the instant case, the military judge was aware of
Appellant’s mental health history and made sure, as set out
above, that Appellant’s mental condition, current treatment, and
competency to stand trial did not put the providence of her plea
at issue. He specifically asked her about her mental
responsibility at the time the offenses were committed, ensuring
that at the time of her offenses she understood both what she
was doing and the difference between right and wrong. In
addition, during Appellant’s unsworn statement trial defense
counsel repeated the inquiry into Appellant’s mental
responsibility for her acts. The military judge placed his
impressions of Appellant’s behavior at trial on the record and
repeated those observations as to Appellant’s mental acuity
following sentencing. He found that she was “fully cognizant of
everything that happened today,” as well as “alert,”
“articulate,” and that she appeared to “completely understand
the nature and quality of these proceedings.” Finally, the
“Report of Mental Status Evaluation” found Appellant “mentally
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responsible.” Unlike Harris, or United States v. Martin, 56
M.J. 97 (C.A.A.F. 2001), this is not a case in which there were
conflicting evaluations of Appellant’s mental responsibility.
There was no evidence of record that Appellant lacked mental
responsibility at the time the offenses were committed.
Given these facts, we cannot say that the military judge
was required to explain or discuss the defense of lack of mental
responsibility with Appellant. Appellant appeared competent and
responsible before the military judge, she claimed she was
competent and responsible at the time of the offenses, her
counsel agreed that she was competent and responsible at that
time, and the mental status evaluation stated that she “was
responsible.” Moreover, no evidence exists to suggest that
Appellant did not understand the nature and quality or the
wrongfulness of her actions when committing the offenses. The
evidence before the military judge presented only the mere
possibility of conflict with Appellant’s guilty plea and did not
raise a substantial basis in law or fact for questioning the
providence of that plea.
III. Conclusion
For the reasons set forth above, the decision of United
States Army Court of Criminal Appeals is affirmed.
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EFFRON, Chief Judge, with whom ERDMANN, Judge, joins
(dissenting):
The plea colloquy in this case between Appellant and the
military judge raised a possible defense of lack of mental
responsibility under Rule for Courts-Martial (R.C.M.) 916(k).
These circumstances required the military judge to engage in a
further inquiry to resolve the apparent inconsistency raised by
the plea colloquy. See United States v. Phillippe, 63 M.J. 307,
309 (C.A.A.F. 2006). The military judge did not do so.
Accordingly, I respectfully dissent from the conclusion of the
majority opinion that the military judge did not err in the
conduct of the plea inquiry.
I. RESPONSIBILIITIES OF THE MILITARY JUDGE
DURING THE PLEA COLLOQUY
When a military accused offers to plead guilty, the
military judge must engage in a detailed colloquy to ensure
protection of the rights of the accused under applicable law.
See United States v. Care, 18 C.M.A. 535, 541-42, 40 C.M.R. 247,
253-54 (1969). The military judge must personally address the
accused, explain the elements of each charged offense, and ask
questions about the accused’s actions and intentions to ensure
that the accused’s conduct meets all elements of the charges to
which the accused is pleading guilty. Id. at 541, 40 C.M.R. at
253. The military judge must personally advise the accused of
United States v. Riddle, 08-0739/AR
the rights forfeited by pleading guilty and make appropriate
inquiries to ensure that the accused’s waiver of these rights is
voluntary. Id. The military judge must make findings on the
record that there is “a knowing, intelligent, and conscious
waiver” of rights before a guilty plea may be accepted. Id. at
542, 40 C.M.R. at 254.
A guilty plea may not be accepted unless the military judge
is fully satisfied as to the providence of the plea. “If an
accused ‘sets up matter inconsistent with the plea’ at any time
during the proceeding, the military judge must either resolve
the apparent inconsistency or reject the plea.” United States
v. Garcia, 44 M.J. 496, 498 (C.A.A.F. 1996) (quoting Article
45(a), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 845
(2000)). A potential defense to the charged crime constitutes
“matter inconsistent with the plea” under Article 45(a), UCMJ.
If, at any time during the proceeding, “circumstances raise a
possible defense,” the military judge must consider whether the
defense applies before accepting the plea as provident.
Phillippe, 63 M.J. at 310-11. Although the “mere possibility”
of a defense is not enough to create an inconsistency with the
plea, United States v. Shaw, 64 M.J. 460, 462 (C.A.A.F. 2007)
(quoting Garcia, 44 M.J. at 498) (quotation marks omitted), the
circumstances need not constitute a complete defense in order to
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trigger the military judge’s duty to make a further inquiry into
a possible defense. Phillippe, 63 M.J. at 310.
If evidence raises a possible defense, the military judge
must explore that defense by inquiring further into the evidence
that supports it before accepting the plea as provident. Id. at
310-11. When these inquiries establish that the defense does
not apply, the military judge may accept the plea without
explaining the defense. See id.; United States v. Inabinette,
66 M.J. 320, 322-23 (C.A.A.F. 2008). If, however, the military
judge’s inquiries do not bring forth evidence demonstrating that
the defense is inapplicable, the military judge must explain the
defense to the accused. See United States v. Harris, 61 M.J.
391, 398 n.13 (C.A.A.F. 2005). The requirement for an
explanation ensures that the accused’s waiver of the right to
present the defense is knowing and voluntary. See Phillippe, 63
M.J. at 310. When the military judge fails to address the issue
of a possible defense through further inquiry or explanation of
the defense to the accused, an appellate court will reverse for
an abuse of discretion. See Phillippe, 63 M.J. at 309-10.
II. THE PLEA COLLOQUY AND MENTAL RESPONSIBILITY
Under R.C.M. 916(k), “[i]t is an affirmative defense to any
offense that, at the time of the commission of the acts
constituting the offense, the accused, as a result of a severe
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mental disease or defect, was unable to appreciate the nature
and quality or the wrongfulness of his or her acts.” A military
judge’s duty to inquire into an accused’s mental condition
before accepting the accused’s guilty plea depends on whether
the “circumstances raise a possible defense” of lack of mental
responsibility. See Phillippe, 63 M.J. at 310-11.
In a line of cases involving bipolar disorder, we have
distinguished between cases that suggested a possible defense of
lack of mental responsibility and cases that raised the “mere
possibility” of a defense. Compare Harris, 61 M.J. at 398, with
Shaw, 64 M.J. at 464; United States v. Glenn, 66 M.J. 64, 66
(C.A.A.F. 2008). An accused’s unsupported claim of bipolar
disorder does not raise a possible defense. See Shaw, 64 M.J.
at 462-64; Glenn, 66 M.J. at 65-66. In Glenn and Shaw, each
accused’s claim of bipolar disorder was unsupported by any
“factual record developed during or after the trial
substantiating Appellant’s statement or indicating whether and
how bipolar disorder may have influenced his plea,” the
accused’s conduct during the inquiry did not raise concerns of
lack of capacity, and there was no assertion or other evidence
suggesting that the accused was “unable to appreciate the nature
and quality or wrongfulness of his acts as a result of a mental
disease or defect.” Shaw, 64 M.J. at 462-63; Glenn, 66 M.J. at
66. In each of these cases, the claims were insufficient to
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create an inconsistency with the plea that required further
inquiry from the military judge. See Shaw, 64 M.J. at 462-64;
Glenn, 66 M.J. at 65-66.
By contrast, we have found that a possible defense was
raised, and an inconsistency with the plea created, in cases
where there was record evidence of a medical diagnosis of
bipolar disorder. In Harris, a psychiatrist diagnosed the
accused while he was in confinement with bipolar disorder and
found that he was unable to appreciate the nature of his actions
at the time of the offenses. 61 M.J. at 393. Although two
sanity boards had found the accused mentally responsible, we
found that the contrary diagnosis in confinement raised a
possible defense, and we granted a new trial. Id. at 398-99.
In Inabinette, a testifying psychiatrist’s statement that the
accused had bipolar disorder with psychotic features created an
inconsistency with the accused’s plea. 66 M.J. at 323. We held
in these cases that the military judge was required to either
elicit information to disprove the defense of lack of mental
responsibility, see id. at 322-23, or to explain the defense to
the accused, see Harris, 61 M.J. at 398 n.13, before accepting
the guilty plea as provident.
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III. THE PLEA INQUIRY AT APPELLANT’S COURT-MARTIAL
A. THE INFORMATION RAISING THE REQUIREMENT FOR AN INQUIRY
For the reasons set forth below, the plea inquiry at
Appellant’s trial developed information that presented more than
a “mere possibility” of a defense, see Shaw, 64 M.J. at 464,
raising “a possible defense” of lack of mental responsibility
requiring further inquiry by the military judge. See Phillippe,
63 M.J. at 310.
First, the parties stipulated that Appellant was medically
diagnosed with bipolar disorder and borderline personality
disorder that pre-existed her military service, and thus also
pre-existed her offenses.
Second, Appellant was confined in a private inpatient
mental health treatment facility, the Bradley Center, from June
12, 2007, until the time of her court-martial on July 2, 2007,
and was returned for further treatment at the conclusion of her
court-martial. The record indicates that after Appellant
terminated her unauthorized absence on April 16, 2007, by
surrendering to the psychiatric ward of Martin Army Community
Hospital, Appellant spent most of the time leading up to the
court-martial as an inpatient at either the Martin Army
Community Hospital or the Bradley Center, with the exception of
ten days of pretrial confinement. The fact that Appellant’s
mental condition was serious enough to warrant continued
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hospitalization underscored the possibility that her bipolar
disorder was a “severe mental disease or defect” that could have
influenced her ability to “appreciate the nature and quality or
the wrongfulness of . . . her acts.” See R.C.M. 916(k).
Third, Appellant testified to the military judge that she
was taking at least six types of medication, including mood
suppressants and anti-depressants, at the time of her trial.
Appellant’s extensive medication also suggested the potential
severity of her mental condition.
Fourth, the mental health report submitted in sentencing
noted that Appellant had attempted suicide twice. While the
mental health report also noted that her mood “ha[d] been
stabilized” through treatment and that her thought process
appeared normal at the time of the report, Appellant had not
been treated at the time of her offenses. Further, the report
stated that, although Appellant was stable enough for one to two
weeks of confinement, longer confinement could result in mental
deterioration. These segments of the report suggest that when
she was not receiving treatment -- at the time of the offenses
-- Appellant’s mental conditions were worse, and that Appellant
needed continued mental treatment.
Finally, the military judge, in light of comments by
defense counsel, appeared to tailor the sentence with a view
towards mental health treatment as the appropriate remedy for
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Appellant. At sentencing, after questioning Appellant about her
treatment, defense counsel asked the military judge to “[t]ake
into consideration . . . the strides she is willing to take now
to go forward with proper counseling, with proper medication”
and that “[t]he plan is for her to go back to the Bradley Center
until they are satisfied that she be released and she should be
discharged from the Army.” The military judge sentenced
Appellant to time served, with accompanying commentary that
Appellant would be returned to the mental health facility for
further treatment.
In combination, the foregoing circumstances should have
alerted the military judge that, at the time of her offenses,
Appellant may have suffered from “a severe mental disease or
defect” that left her “unable to appreciate the nature and
quality or wrongfulness of . . . her acts.” R.C.M. 916(k). The
military judge was required to inquire into this evidence, and
to either determine that a defense of lack of mental
responsibility would not apply or explain the defense to
Appellant, to ensure that her pleas were provident. See supra
Part I; Phillippe, 63 M.J. at 310.
B. THE INQUIRY CONDUCTED BY THE MILITARY JUDGE
During the providence inquiry, the military judge addressed
Appellant’s mental state on the day of the court-martial. The
military judge asked Appellant whether she was competent to
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stand trial, whether she understood what was happening, and
whether she was feeling okay. The military judge commented that
defense counsel had assured the military judge that she believed
that Appellant was competent to stand trial and to understand
the proceedings -- statements with which Appellant agreed. The
military judge also remarked on the record that Appellant
appeared “extremely articulate and very alert” and that “she
appeared to the court to be fully cognizant of everything that
happened today.”
The military judge asked a few questions about Appellant’s
mental disorders. He asked Appellant how long she had been in
treatment at the Bradley Center, and he affirmed that she would
be returning to the Bradley Center after the court-martial. He
asked Appellant why she was receiving treatment and what drugs
she was taking.
In the most relevant inquiries, the military judge asked
Appellant about her understanding of her offenses at the time
they were committed. The military judge asked, “Did you
understand what you were doing when you went AWOL?” and “did you
understand when you went AWOL . . . that what you were doing was
wrong, that you were not authorized to do it?” The military
judge also asked whether Appellant “knew that smoking marijuana
during all of these four specifications was wrongful.” Defense
counsel asked at sentencing whether, despite Appellant’s mental
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conditions, she “understood what [she] was doing at those
times?” and “understood right from wrong?” Appellant replied
“Yes” to all of these questions.
Based on this record, the military judge’s questions about
Appellant’s mental condition did not elicit facts that disproved
the possible defense of lack of mental responsibility raised by
the evidence. See Inabinette, 66 M.J. at 322-23. Appellant’s
answers to the military judge’s few questions about why she was
being treated and what drugs she was taking supported, rather
than contradicted, the defense. Further, the military judge did
not inquire into the most detailed mental health information he
possessed -– the mental health report submitted at sentencing.
The report was prepared while Appellant was in treatment, and it
is unclear to what extent the report was intended to address her
mental state at the time of the offenses. The military judge
could have determined through questioning whether the report was
a psychiatric evaluation of Appellant’s mental responsibility at
the time of her offenses, and the issue of timing might have
disproved the defense, but the military judge did not ask any
questions about the report.
The military judge’s questions about Appellant’s competence
to stand trial and the military judge’s personal observations of
Appellant’s conduct at the court-martial did not negate the
defense. Appellant’s mental state and conduct at the court-
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martial, while she was in treatment and on numerous medications,
did not demonstrate that Appellant was mentally responsible at
the time of her offenses, which occurred before she received
mental health treatment.
Although the military judge touched upon the issue of
mental responsibility when inquiring about whether Appellant
understood her actions, the colloquy did not resolve the
applicability of the mental responsibility defense. If
Appellant had a severe mental disease or defect, her self-
assessment of her understanding might have been flawed. In any
case, Appellant’s personal answers did not represent a knowing
waiver of the defense in the absence of information provided by
the military judge about the defense. See Phillippe, 63 M.J. at
310-11.
The interchange between the military judge and defense
counsel did not lessen the military judge’s duty to explain the
defense to Appellant. Nothing in the record demonstrates that
defense counsel considered the defense of lack of mental
responsibility; and in any case, defense counsel’s obligation to
consider possible defenses did not satisfy the military judge’s
duty to conduct a proper providence inquiry directly with the
accused. See Care, 18 C.M.A. at 541, 40 C.M.R. at 253. The
providence inquiry centers on the special relationship between
the accused and the military judge, not between the accused and
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United States v. Riddle, 08-0739/AR
counsel. See id. This relationship requires the military judge
to ensure that an accused’s pleas are provident before they may
be accepted. See Phillippe, 63 M.J. at 309.
Under these circumstances, the military judge abused his
discretion by not completing the required plea inquiry in light
of the possible defense raised during the plea colloquy.
Accordingly, I would reverse the decision of the Court of
Criminal Appeals.
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