United States v. Mackie , 66 M.J. 198 ( 2008 )

UNITED STATES, Appellant
v.
James L. MACKIE, Airman First Class
U.S. Air Force, Appellee
No. 08-5005
Crim. App. No. S31090
United States Court of Appeals for the Armed Forces
Decided April 21, 2008
PER CURIAM
Counsel
For Appellant: Colonel Gerald R. Bruce, Major Donna S.
Rueppell, and Major Matthew Ward (on brief).
For Appellee: Lieutenant Colonel Mark R. Strickland and Captain
Tiffany M. Wagner (on brief); Colonel Nikki A. Hall.
Military Judge: James L. Flanary
This opinion is subject to revision before final publication.
United States v. Mackie, 08-5005/AF
PER CURIAM:
A special court-martial composed of a military judge
sitting alone convicted Appellee, pursuant to his pleas, of
unauthorized absence, impaired driving, larceny, and burglary in
violation of Articles 86, 111, 121, and 129, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. §§ 886, 911, 921, 929 (2000).
The adjudged sentence included confinement for seven months,
reduction to pay grade E-1, and a bad-conduct discharge. The
convening authority reduced the adjudged confinement to six
months pursuant to a pretrial agreement. The United States Air
Force Court of Criminal Appeals (CCA) ordered the record
returned to the Judge Advocate General and ordered a sanity
board to determine “whether the [Appellee] is currently mentally
competent, whether he was mentally competent at the time of
trial, and whether he was mentally competent at the time of his
alleged criminal conduct.” United States v. Mackie, 65 M.J.
762, 765 (A.F. Ct. Crim. App. 2007).
Upon certification under Article 67(a)(2), UCMJ, 10
U.S.C. § 867(a)(2), we affirm the decision of the CCA.1
1
The Judge Advocate General of the Air Force certified the
following issues:
I. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS
APPLIED THE CORRECT STANDARD OF REVIEW WHEN
DETERMINING WHETHER THE MILITARY JUDGE ABUSED HIS
DISCRETION WHEN HE DENIED THE DEFENSE MOTION FOR A
SANITY BOARD.
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Background
Appellee moved for a Rule for Courts-Martial (R.C.M.) 706
sanity board before entering his guilty pleas. Trial defense
counsel argued that the sanity board was necessary because
Appellee’s memory loss merited further inquiry. Specifically,
she detailed concerns that Appellee might not be able to assist
in his own defense, might not be fit to stand trial, and that
similar memory loss may have occurred during the alleged
misconduct. In support of the motion Appellee submitted an
affidavit detailing specific instances of blackouts and memory
loss over a six-month period.
The military judge stated that Appellee’s affidavit
“ordinarily” would be enough to order a sanity board. But the
military judge denied the motion based on a Government
stipulation of expected testimony from Appellee’s treating
clinical psychologist, Captain (CPT) Agliata. CPT Agliata had
seen Appellee twice by appointment and once for a brief walk-in
conversation, never conducted a forensic examination or
participated in a sanity board, and was unaware of Appellee’s
claimed memory losses and blackouts. That stipulation,
II. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS
ERRED BY FINDING THE MILITARY JUDGE ABUSED HIS
DISCRETION WHEN HE DENIED APPELLANT’S REQUEST FOR A
SANITY BOARD FINDING HE HAD NOT MET HIS BURDEN OF
FACTUAL PERSUASION TO JUSTIFY AN INQUIRY PURSUANT TO
R.C.M. 706.
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United States v. Mackie, 08-5005/AF
according to the military judge, nonetheless “directly
answer[ed]” the question whether Appellee was competent to stand
trial and the motion for a sanity board was denied.
On appeal the CCA held that the military judge erred by
denying the defense request for a sanity board. Mackie, 65 M.J.
at 765. The lower court found that CPT Agliata’s opinions in
the form of the stipulation of expected testimony were not an
adequate substitute for a sanity board. Id. We agree.
Analysis
A military judge has the authority to order a sanity board
after referral under R.C.M. 706 if it appears there is reason to
believe the accused lacked mental responsibility at the time of
a charged offense or lacks the capacity to stand trial. R.C.M.
706(a),(b)(2). A motion for a sanity board should normally be
granted if it is made in good faith and is not frivolous.
United States v. Nix, 15 C.M.A. 578, 582, 36 C.M.R. 76, 80
(1965).
We review the military judge’s decision to grant or deny a
motion for a sanity board for an abuse of discretion.2 United
States v. Collins, 60 M.J. 261, 266 (C.A.A.F. 2004). A military
2
Although the CCA did not expressly state the standard of
review, it analyzed the military judge’s ruling in a manner
consistent with an abuse of discretion review, specifically
citing R.C.M. 706(b)(2) and applying the principles this Court
set forth in United States v. English, 47 M.J. 215 (C.A.A.F.
1997). Mackie, 65 M.J. at 763-64.
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judge abuses his discretion when “the findings of fact upon
which he . . . predicates his ruling are not supported by the
evidence of record; if incorrect legal principles were used . .
. ; or if his application of the correct legal principles to the
facts . . . is clearly unreasonable.” Id. at 266 n.5 (citation
and quotation marks omitted).
The military judge abused his discretion in this case. The
text of R.C.M. 706 outlines the procedures and requirements for
a sanity board. English, 47 M.J. at 219. This Court’s decision
in English, while never squarely holding that an examination
that tracks the requirements of a sanity board as listed in
R.C.M. 706 could be an adequate substitute for one, noted
minimum requirements necessary for such a prior medical
examination to even theoretically serve as a substitute for “the
carefully crafted procedures set forth in the Manual.” Id.
Assuming without deciding that a stipulation could serve as an
adequate substitute for a sanity board, this stipulation fell
short of those requirements.
The plain text of R.C.M. 706 outlines specific substantive
findings that a sanity board is required to make. R.C.M.
706(c)(2); see also English, 47 M.J. at 219. The sanity board
must address not only the accused’s capacity to stand trial, but
also his mental responsibility at the time of the act in
question. English, 47 M.J. at 219 (citing R.C.M. 706).
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As the CCA noted, those requirements were not met in this
case. As an initial matter, CPT Agliata admitted he had not
conducted a forensic examination of Appellee or spent much time
with him, and that he was unfamiliar with R.C.M. 706 rules and
standards. Moreover, while CPT Agliata was able to say that
Appellee was capable of standing trial at the time he drafted
the stipulation, he could not opine on whether Appellee
understood the nature and quality of his actions at the time the
alleged criminal conduct occurred, as required by English, 47
M.J. at 218-19, and R.C.M. 706(c)(2)(C).
Having found that the issues of mental responsibility and
competency were raised by Appellee’s motion for a sanity board
-– indeed, that a sanity board would “ordinarily” be ordered on
the basis of Appellee’s affidavit -- and with no indication that
the motion was made in bad faith or was frivolous, the military
judge should have granted the motion. Even assuming a medical
examination by a qualified physician could take the place of a
sanity board, the stipulation in this case, which failed to
provide the specific substantive information required under
R.C.M. 706(c), was a legally erroneous basis upon which to deny
the motion.
Decision
The first certified question is answered in the
affirmative, the second certified question is answered in the
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negative, and the decision of the United States Air Force Court
of Criminal Appeals is affirmed.
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