United States v. Jenkins

UNITED STATES, Appellee
v.
Michael P. JENKINS, Airman First Class
U.S. Air Force, Appellant
No. 06-0027
Crim. App. No. 35699
United States Court of Appeals for the Armed Forces
Argued May 2, 2006
Decided August 9, 2006
BAKER, J., delivered the opinion of the Court, in which GIERKE,
C.J., and CRAWFORD, EFFRON, and ERDMANN, JJ., joined.
Counsel
For Appellant: Captain John S. Fredland (argued); Lieutenant
Colonel Mark R. Strickland (on brief).
For Appellee: Captain Kimani R. Eason (argued); Lieutenant
Colonel Robert V. Combs, Lieutenant Colonel Gary F. Spencer, and
Captain Jefferson E. McBride (on brief).
Military Judge: Daryl E. Trawick
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION
United States v. Jenkins, No. 06-0027/AF
Judge BAKER delivered the opinion of the Court.
Appellant was an Airman First Class assigned to Charleston
Air Force Base, South Carolina. Before a general court-martial
composed of a military judge sitting alone, Appellant pleaded
guilty to two specifications of wrongful use of cocaine on
divers occasions, one specification of wrongful use of
marijuana, one specification of assault with a deadly weapon,
one specification of disorderly conduct, and two specifications
of communicating a threat, in violation of Articles 112a, 128,
and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§
912a, 928, 934 (2000). The military judge sentenced Appellant
to thirty months of confinement, reduction to E-1, forfeiture of
all pay and allowances, and a bad-conduct discharge. Pursuant
to a pretrial agreement, the convening authority disapproved all
confinement in excess of eighteen months and waived automatic
forfeitures. The United States Air Force Court of Criminal
Appeals affirmed. United States v. Jenkins, No. ACM 35699, 2005
CCA LEXIS 275, at *9, 2005 WL 2130216, at *3-*4 (A.F. Ct. Crim.
App. Aug. 16, 2005) (unpublished). Upon Appellant’s petition,
we granted review of the following issue:
WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION IN
ADMITTING APPELLANT’S CONFIDENTIAL COMMUNICATIONS WITH A
PSYCHOLOGIST DURING A COMMANDER-DIRECTED MENTAL HEALTH
EVALUATION.
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We conclude that Appellant’s communications fell within
exceptions (4) and (6) to the psychotherapist-patient privilege
under Military Rule of Evidence (M.R.E.) 513(d), and we affirm
the decision of the Air Force Court of Criminal Appeals.
BACKGROUND
At the time of his offenses, Appellant worked on the wash
and wax detail at the Charleston Air Force Base Vehicle
Operations. Appellant had previously been assigned to pickup
and delivery, but was reassigned after an investigation into his
illegal drug use. On January 10, 2003, Appellant provided a
signed and sworn statement admitting that he purchased and used
cocaine approximately sixty times while attending technical
school at Fort Leonard Wood, Missouri, and used cocaine upwards
of sixty times since his arrival at Charleston Air Force Base.
On April 7, 2003, Appellant tested positive for cocaine use
during a random unit urinalysis inspection.
On the night of May 7, 2003, Appellant was drinking with
friends while outside of his dorm. Airman Brandon M. Times
walked by en route to his car and was confronted with racist
remarks from Appellant’s friends. After being approached in a
hostile manner by Appellant and four of his cohorts, Airman
Times quickly drove away but soon returned to the scene with
three of his own friends in search of “[s]ome kind of
resolution.”
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Airman Times and his friends approached the group and were
confronted by Appellant who, while brandishing a fourteen–inch-
long knife, stated: “Y’all n****** are f****** with a crazy
white boy tonight. I’m going to kill y’all n****** tonight,” or
words to that effect. Upon seeing the knife, Airman Times and
his friends immediately fled the scene by foot. Appellant
chased in hot pursuit, coming within feet of his target until
Airman Times eventually escaped into the chow hall, therein
finding safety and the assistance of Security Forces personnel
who happened to be dining at the time. Security Forces
personnel apprehended Appellant outside the chow hall.
Appellant was released by Security Forces the following
morning on May 8, 2003, and instructed to walk home by Master
Sergeant (MSgt) Janet Osborne. At approximately 7:15 a.m.,
Appellant arrived at work. He described the events of the
previous evening to his supervisors and coworkers, and speaking
of MSgt Osborne, he stated, “That f****** bitch made me mad.
She f****** made me walk home, and I was f****** drunk. If I
had a f****** knife at that time, I would have cut her f******
throat,” or words to that effect.
Appellant’s behavior was reported up the chain of command,
and on May 9, 2003, he was sent for a command-directed mental
health examination with Lieutenant Colonel Frank Budd, a
clinical psychologist. The examination lasted about one hour
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and consisted of a clinical interview, a description of
Appellant’s mental health history, and various psychological
tests. Dr. Budd drafted a mental health evaluation following
the examination.
At Appellant’s court-martial, the Government gave notice
that it intended to call Dr. Budd to testify on sentencing and
that it would offer Appellant’s mental health evaluation into
evidence. Appellant objected to Dr. Budd’s expected testimony
and to admission of the evaluation, arguing that the probative
value of the evidence was outweighed by its prejudicial impact,
and also that his communications to Dr. Budd were confidential
and protected by the psychotherapist-patient privilege under
M.R.E. 513(a).
The military judge overruled the defense objections and
held that the evidence was admissible under M.R.E. 513(d)(4) and
(6) for consideration on sentencing. Trial counsel subsequently
introduced the mental health evaluation, and Dr. Budd testified
to his observations of Appellant during the mental health
examination.
Dr. Budd testified that Appellant “acts with very poor
impulse control.” He also testified that Appellant scored
extremely high on the anger inventory, “higher than [Dr. Budd
had] ever seen,” but “low and below the cutoff for the average
individual” on the self-control inventory. He stated that
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Appellant was “extremely impulsive, angry, likely to think angry
things, likely to do angry things, and his ability to control
his own emotions, his own reactions is extremely low . . . if he
thinks it, he will do it.”
Dr. Budd’s written mental health evaluation noted
Appellant’s involvement in nine to ten fights in high school and
his arrest since joining the Air Force for fighting while on
leave. The evaluation ultimately recommended that Appellant,
“be ordered into confinement pending the outcome of his Courts
Martial [sic] due to his dangerousness to others. His condition
is not amenable to treatment in the military setting.” Dr. Budd
also recommended that Appellant receive extensive medical and
psychiatric treatment.
Appellant now renews his argument that the military judge
abused his discretion in admitting Dr. Budd’s testimony and the
mental health evaluation on sentencing. He contends that his
communications to Dr. Budd were made to facilitate treatment or
diagnosis of his mental condition and were therefore protected
under the psychotherapist-patient privilege.
DISCUSSION
We review a military judge’s decision to admit or exclude
evidence for an abuse of discretion. United States v. Manns, 54
M.J. 164, 166 (C.A.A.F. 2000).
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M.R.E. 513(a) sets forth the general rule of the
psychotherapist-patient privilege:
A patient has a privilege to refuse to
disclose and to prevent any other person
from disclosing a confidential communication
made between the patient and a
psychotherapist or an assistant to the
psychotherapist, in a case arising under the
UCMJ, if such communication was made for the
purpose of facilitating diagnosis or
treatment of the patient’s mental or
emotional condition.
M.R.E. 513(b)(4) defines a “confidential communication” as one
“not intended to be disclosed to third persons other than those
to whom disclosure is in furtherance of the rendition of
professional services to the patient or those reasonably
necessary for such transmission of the communication.”
M.R.E. 513(d) establishes eight specific exceptions to the
general psychotherapist-patient privilege, two of which are
implicated in this case. M.R.E. 513(d)(4) states there is no
privilege when a psychotherapist “believes that a patient’s
mental or emotional condition makes the patient a danger to any
person, including the patient.” M.R.E.(d)(6) further provides
there is no privilege “when necessary to ensure the safety and
security of military personnel, military dependents, military
property, classified information, or the accomplishment of a
military mission.”
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Confidentiality
The Government contends that Appellant’s communications to
Dr. Budd were not protected by the psychotherapist-patient
privilege because the communications were not confidential. It
argues Appellant was ordered to undergo a mental evaluation by
his commander, and the purpose of the evaluation was not to
facilitate treatment, but to decide pretrial confinement matters
and whether Appellant was a danger to himself or to others.
In the alternative, the Government suggests that because
Appellant knew that his commander, a third party, intended to
review the evaluation, Appellant could not reasonably expect Dr.
Budd to treat the communications as confidential.
Air Force Instruction 44-109 “establishes rules for
confidentiality” and “defines conditions requiring communication
between mental health providers and commanders.” Dep’t of the
Air Force, Instr. 44-109, Mental Health, Confidentiality, and
Military Law (Mar. 1, 2000) [hereinafter AFI 44-109].1 AFI 44-
1
AFI 44-109 para. 2.1 states that:
[c]ommunications between a patient and a
psychotherapist . . . made for the purpose of
facilitating diagnosis or treatment of the patient’s
mental or emotional condition are confidential
communications and shall be protected from
unauthorized disclosure. However, confidential
communications will be disclosed to persons or
agencies with a proper and legitimate need for the
information and who are authorized by law or
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109 suggests that communications to a therapist retain their
confidential character, even though the communications may be
disclosed to a third party, including a commander, if the
commander has a legitimate need for the information and is
authorized by law or regulation to receive the communications.
Attachment 2 to AFI 44-109 is a “Mental Health Clinic Client
Information Sheet,” described as a consent form in the
regulation, which is provided to patients prior to receiving
treatment. It informs a patient that “[y]our provider will
treat you as a responsible individual and will expect you take
an active part in your treatment. . . . Generally, information
discussed during the evaluation and treatment sessions is
confidential . . . .” The document discusses only “treatment,”
and does not distinguish between evaluations to decide pretrial
confinement matters and evaluations to facilitate treatment.
The form also states the following:
Commanders may obtain access to the records of their
members to ensure fitness for duty or a client’s
record when the contents of mental health records are
essential to the accomplishment of a military mission.
. . . Providers must take steps to protect individuals
from harm when the client presents a serious threat to
the life or safety of self or others.
The form does not indicate what effect, if any, disclosure for
these purposes has on the confidentiality of communications for
regulation to receive it, unless the evidentiary
privilege . . . applies.
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other purposes. On Appellant’s mental health evaluation, Dr.
Budd wrote that he followed procedures outlined in AFI 44-109
when conducting the evaluation. Under these procedures,
Appellant should have received a copy of the consent form or a
modified version prior to initiating his mental health
evaluation. However, the record does not indicate whether or
not he did, and thus we do no know what in fact Appellant was
advised of regarding the confidentiality of his communications.
In this context, we need not ultimately determine the
meaning of AFI 44-109 in order to address the Government’s
argument that Appellant’s statements were not confidential.
Given Dr. Budd’s statement that he followed the regulation, the
language of the regulation suggesting confidentiality of
communications beyond the commander, as well as the absence of
evidence in the record that Appellant was informed his
communications would not be kept private, we will assume without
deciding that Appellant’s communications were confidential.
Exceptions to the Psychotherapist-Patient Privilege
We now turn to the issue of whether Appellant’s statements
to Dr. Budd fell within exceptions to the psychotherapist-
patient privilege under M.R.E. 513(d)(4) and (6) and could
properly be considered on sentencing.
Appellant provides what is essentially a public policy
rationale for why his statements fall within the general
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privilege under M.R.E. 513(a) and not within the exceptions to
the privilege. Quoting to Jaffee v. Redmond, 518 U.S. 1, 10-12
(1996), Appellant argues that “effective psychotherapy . . .
depends upon an atmosphere of confidence and trust in which the
patient is willing to make a frank and complete disclosure of
facts, emotions, memories, and fears.” He contends that if the
privilege is rejected here and his statements to Dr. Budd can be
used as evidence against him, he will be punished for his
candor, and other servicemembers facing similar circumstances in
the future will not be forthright when communicating with mental
health providers.
Appellant also argues that the exceptions to the privilege
outlined in M.R.E. 513(d)(4) and (6) are ambiguous and that it
is unclear how severe his conduct must be before he is
considered a danger to “any person” or himself, or is seen to
compromise the “accomplishment of a military mission.” He
asserts that a wide range of conduct could fall within the
ambiguous contours of the exceptions, and the Government must
resolve ambiguities by narrowly interpreting them. He
characterizes any assertion that he is prone to violence as mere
speculation, and he describes his conduct as falling outside the
exceptions.
In Jaffee the Supreme Court noted that society should
encourage an individual to seek assistance from a
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psychotherapist. 518 U.S. at 10-12; see also United States v.
Rodriguez, 54 M.J. 156, 159 (C.A.A.F. 2000). Appellant may be
correct that if statements made to a therapist can be admitted
at a court-martial under one of the exceptions to the privilege
outlined in M.R.E. 513(d), some servicemembers, knowing their
statements may one day be used against them, may refrain from
making frank disclosures during treatment. However, while
M.R.E. 513 is based on Jaffee, the President, in promulgating
M.R.E. 513, intended to adopt a rule that did not literally
incorporate Jaffee, but instead “applies a more limited
approach” to the psychotherapist-patient privilege. Rodriguez,
54 M.J. at 160. The exceptions were drafted to limit the
privilege in order to balance the public policy goals stated in
Jaffee with “the specialized society of the military and
separate concerns that must be met to ensure military readiness
and national security.” Manual for Courts-Martial, United
States, Analysis of the Military Rules of Evidence app. 22 at
A22-44 (2005 ed.).
Appellant also asserts that the exceptions to the privilege
are ambiguous and that their application to him is therefore
unfair. In particular, Appellant argues that the language
removing the privilege when the patient is a danger to “any
person,” or when “necessary to ensure the safety and security of
military personnel . . . or the accomplishment of a military
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mission,” is so broad that a reasonable servicemember would not
know what is or is not covered under the exceptions. Certainly,
the M.R.E. text does not indicate each context in which the
exceptions might apply. Whether the exceptions apply is
necessarily a fact-specific determination for a military judge
to consider with an accurate awareness of the facts underlying
the dispute, just as hearsay determinations necessarily involve
context. It is for this reason that the M.R.E. forego detailed
analyses of their application in different factual scenarios,
and it is for this same reason that a military judge’s
evidentiary determinations are reviewed for an abuse of
discretion. In our view, M.R.E. 513(d)(4) and (6) provide
adequate and fair notice, informed by case law, as to their
potential applicability.
In this case, the military judge determined that
Appellant’s mental state posed a risk to the safety of others or
himself or to the accomplishment of a military mission, and his
decision that Appellant’s statements were not protected by the
privilege and were admissible on sentencing was not an abuse of
discretion. Dr. Budd, a clinical psychologist with seventeen
years of experience, wrote in his evaluation that Appellant’s
mental health posed a danger to others. Appellant’s actions and
his statements to Dr. Budd during treatment substantiated those
findings. Appellant told Dr. Budd that he was arrested once for
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fighting while on leave. Two days before meeting with Dr. Budd,
Appellant chased three airmen with a fourteen inch knife while
shouting racist slurs. The following day, Appellant reiterated
those threats, telling a friend that “If that guy from last
night came around again, I would f****** kill him.” Appellant
also communicated at that time that he would have cut the throat
of his master sergeant the previous night if he had possessed a
knife.
Appellant told Dr. Budd that he had received four letters
of reprimand for alcohol use and that he continued to drink
heavily several times a week. Dr. Budd was also informed that
Appellant was under investigation for illegal drug use. In
addition, Appellant reported feelings of constant and chronic
hostility, and indicated he felt an inability to control his
anger. Dr. Budd conducted personality testing that confirmed
Appellant experienced intense anger and was likely to act upon
his impulses. Although we may not at this point be able to
determine every context in which M.R.E. 513(d)(4) and (6) might
apply, we conclude with confidence that the two exceptions were
implicated when Appellant made threats to kill persons while
brandishing a fourteen-inch knife.
Based on this information, the military judge properly
applied M.R.E. 513(d)(4) and (6) to Appellant’s communications,
and he therefore did not abuse his discretion.
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DECISION
The decision of the United States Air Force Court of
Criminal Appeals is affirmed.
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