United States v. Shaw , 64 M.J. 460 ( 2007 )

UNITED STATES, Appellee
v.
Damien B. SHAW, Lance Corporal
U.S. Marine Corps, Appellant
No. 06-0403
Crim. App. No. 200300312
United States Court of Appeals for the Armed Forces
Argued January 8, 2007
Decided April 24, 2007
BAKER, J., delivered the opinion of the Court, in which STUCKY
and RYAN, JJ., joined. EFFRON, C.J., filed a dissenting opinion
in which ERDMANN, J., joined.
Counsel
For Appellant: Captain Rolando R. Sanchez, USMC (argued).
For Appellee: Captain Geoffrey S. Shows, USMC (argued);
Commander Paul LeBlanc, JAGC, USN (on brief); Commander Charles
N. Purnell II, JAGC, USN, and Major Kevin C. Harris, USMC.
Military Judge: M. J. Griffith
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Shaw, No. 06-0403/MC
Judge BAKER delivered the opinion of the Court.
In accordance with his pleas, Appellant was convicted by a
special court-martial of failure to obey a no-contact order,
wrongful use of cocaine, adultery, and breaking restriction in
violation of Articles 92, 112a, and 134, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. §§ 892, 912a, 934 (2000),
respectively. A military judge sitting alone sentenced
Appellant to a bad-conduct discharge, confinement for ninety
days and reduction to pay grade E-1. The convening authority
approved the sentence as adjudged and the United States Navy-
Marine Corps Court of Criminal Appeals affirmed.1 United States
v. Shaw, No. NMCCA 200300312 (N-M. Ct. Crim. App. Jan. 11,
2006). Upon Appellant’s petition, this Court specified the
following issue based on matters raised in his unsworn
statement:
WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY
FAILING TO INQUIRE INTO THE EFFECT THAT APPELLANT’S
MEDICAL PROBLEMS HAD ON HIS ABILITY TO APPRECIATE THE
NATURE AND QUALITY OR THE WRONGFULNESS OF HIS ACTS.
We conclude that the military judge did not err in this regard
and affirm.
1
The convening authority suspended confinement in excess of
sixty days for twelve months.
2
United States v. Shaw, No. 06-0403/MC
I
After the findings of guilty were announced, Appellant,
with the assistance of counsel, made an unsworn statement for
the military judge’s consideration on sentencing. The part of
the statement relevant to the specified issue states:
Sir, on the 20th of November 2001, I was jumped
outside of the Waffle Shop out in town and robbed. I
was hit in the head repeatedly with a lead pipe. I
suffered two skull fractures, bruising and bleeding of
the brain. I woke up several days later out of a coma
to find out that I am completely deaf in my left ear,
and partially blind in my left eye. I was
hospitalized for about a month. Upon returning to my
unit from the hospital, I went and saw the division
psychiatry [sic] and was diagnosed with bi-polar
syndrome because of the incident. After that I was
denied convalescent leave and only given eight days
annual leave for Christmas. I came back, and that’s
when I started to get in trouble.
After Appellant completed his statement, his defense counsel
asked him specific questions regarding the injuries he received
as a result of the assault:
DC: And how long did you stay in the Veterans
hospital?
ACC: I was in the Veterans Hospital for 22 days, sir.
DC: And what -- did they tell you the extent of the
injuries?
. . . .
ACC: A contusion to the front of the brain which
basically means bruising. The back of my brain
was bleeding and swelling. I had an inner skull
fracture on my left side, and another skull
fracture on the back of my head, sir. I
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completely lost all my hearing in my left ear,
and part of my sight in my left eye, sir.
. . . .
DC: And do these injuries still effect [sic] you
today?
ACC: Yes, sir.
This concluded Appellant’s unsworn statement, and the hearing
proceeded to announcement of the sentence. In response to the
specified issue Appellant asserts that the findings and sentence
should be set aside for the military judge’s failure to inquire
further into Appellant’s statement regarding his diagnosis for
bipolar disorder.
II
“A military judge’s decision to accept a guilty plea is
reviewed for an abuse of discretion.” United States v. Eberle,
44 M.J. 374, 375 (C.A.A.F. 1996) (citing United States v.
Gallegos, 41 M.J. 446 (C.A.A.F. 1995)). “Pleas of guilty should
not be set aside on appeal unless there is ‘a “substantial
basis” in law and fact for questioning the guilty plea.’” Id.(quoting United States v. Prater, 32 M.J. 433, 436 (C.M.A.
1991)). “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), UCMJ, 10 U.S.C. § 845(a) (2000)); Rule
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United States v. Shaw, No. 06-0403/MC
for Courts-Martial (R.C.M.) 910(h)(2). “Once the military judge
has accepted a plea as provident and has entered findings based
on it, an appellate court will not reverse that finding and
reject the plea unless it finds a substantial conflict between
the plea and the accused’s statements or other evidence of
record.” Garcia, 44 M.J. at 498. “A ‘mere possibility’ of such
a conflict is not a sufficient basis to overturn the trial
results.” Id. (quoting Prater, 32 M.J. at 436).
As in United States v. Phillippe, 63 M.J. 307 (C.A.A.F.
2006), of last term, we are again called upon to determine
whether the military judge’s duty to inquire further has been
triggered by disclosures made during, or subsequent to, the plea
colloquy. In Phillippe, we held that “when, either during the
plea inquiry or thereafter, and in the absence of prior
disavowals . . . circumstances raise a possible defense, a
military judge has a duty to inquire further to resolve the
apparent inconsistency.” Id. at 310-11 (citation omitted). The
existence of an apparent and complete defense is necessarily
inconsistent with a plea of guilty. This was the case in
Phillippe, where early termination of the alleged period of
unauthorized absence was raised, presenting an apparent
ambiguity or inconsistency with the plea thereby warranting
further inquiry. Id. at 311; see also United States v. Pinero,
60 M.J. 31, 35 (C.A.A.F. 2004); United States v. Reeder, 22
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United States v. Shaw, No. 06-0403/MC
C.M.A. 11, 12-13, 46 C.M.R. 11, 12-13 (1972). The question in
this case is whether Appellant’s reference to his bipolar
condition in the plea context “set[] up matter raising a
possible defense,” as in Phillippe, or whether it presented only
a “mere possibility” of a defense, as in Prater. Phillippe, 63
M.J. at 310-11; Prater, 32 M.J. at 436-37.
On the one hand, the injuries Appellant describes are as
graphic as they are unfortunate. One is tempted, without more,
to conclude that injuries of this magnitude must surely raise a
possible mental responsibility defense. Moreover, in military
law, given that lack of mental responsibility is an affirmative
defense, mental health issues bear special status. This is
reflected in R.C.M. 706 and Military Rule of Evidence (M.R.E.)
302.2 This status in part reflects the recognition that combat
and other operational conditions may generate or aggravate
certain mental health conditions, such as post traumatic stress
disorder. As a result, military judges should take particular
2
R.C.M. 706(a) imposes an obligation not only on defense counsel
but also on any commander, investigating officer, trial counsel,
military judge or member to notify the officer authorized to
order a mental exam when “there is reason to believe that the
accused lacked mental responsibility for any offense charged or
lacks capacity to stand trial.” M.R.E. 302(a) provides a
limited privilege to the accused who participates in an R.C.M.
706 examination even if a rights warning has been provided under
Article 31(b), UCMJ, 10 U.S.C. § 831(b) (2000). These two
examples distinguish mental responsibility from other
affirmative defenses.
6
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care to make sure that considerations of mental health do not
put the providence of the plea at issue.
On the other hand, in this case, Appellant’s assertion that
his plea was improvident rests entirely on his unsworn
statement, in which he states that he was diagnosed with bipolar
disorder. Thus, unlike the circumstance we encountered in
United States v. Harris, 61 M.J. 391, 392-94 (C.A.A.F. 2005),
there was no factual record developed during or after the trial
substantiating Appellant’s statement or indicating whether and
how bipolar disorder may have influenced his plea. Nor did
Appellant’s conduct during the plea inquiry raise concerns that
might have suggested to the military judge that Appellant lacked
the capacity to plead. If so, this might have prompted the
military judge to inquire into Appellant’s mental responsibility
at the time of the offenses. Moreover, Appellant has not
asserted, nor does his statement reflect, that he was unable to
appreciate the nature and quality or wrongfulness of his acts as
a result of a mental disease or defect. Thus, unlike the
situation in Phillippe, where the appellant’s statement raised
the possibility of a complete defense of early termination to
the charged term of absence, Appellant’s statement without more,
did not raise an apparent inconsistency with his plea.
7
United States v. Shaw, No. 06-0403/MC
In such a circumstance, the military judge may reasonably
rely on both a presumption that the accused is sane3 and the
long-standing principle that counsel is presumed to be
competent. United States v. Cronic, 466 U.S. 648, 658 (1984);
United States v. Scott, 24 M.J. 186, 188 (C.M.A. 1987).
Moreover, the President has assigned the burden of proving lack
of mental responsibility to the accused. R.C.M. 916(b). Thus,
when the accused is presenting his sentencing statement through
or with the assistance of counsel, the military judge may
properly presume, in the absence of any indication to the
contrary, that counsel has conducted a reasonable investigation
into the existence of the defense. This is particularly so when
the matter raised does not in and of itself present an apparent
or possible defense.
Appellant points to our decisions in United States v.
Martin, 56 M.J. 97 (C.A.A.F. 2001), and Harris, 61 M.J. at 391,
for the proposition that “[t]he military judge must have known
that a bipolar disorder was a viable defense for Appellant.”
However, these cases establish that bipolar disorder, like other
disorders, may exist with enough severity to raise a substantial
question regarding the issue of the accused’s mental
responsibility. However, the disorder does not negate
3
“The accused is presumed to be mentally responsible at the time
of the alleged offense.” R.C.M. 916(k)(3)(A).
8
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responsibility in all cases. Martin was a contested case in
which the defense was attempting to carry its burden of proving
lack of mental responsibility due to the severity of the
accused’s bipolar condition. 56 M.J. at 100-01. Two defense
psychiatrists testified that Martin’s condition was severe
enough that he was unable to appreciate the nature and quality
or wrongfulness of his conduct. Id. Conversely, three
government psychiatrists testified that Martin could appreciate
the wrongfulness of his acts at the time of the offenses. Id.
at 101. The question was whether Martin had carried his burden
in proving the defense of lack of mental responsibility by clear
and convincing evidence, and we concluded that a reasonable jury
could have concluded that he did not. Id. at 110.
In Harris, a pretrial examination conducted pursuant to
R.C.M. 706 concluded that the accused had not suffered from a
severe mental defect or disease and that he had been mentally
responsible at the time of the offenses. 61 M.J. at 393. He
was subsequently convicted in accordance with his pleas. Id. at
392. After the court-martial, and while Harris was serving his
sentence to confinement, another mental health expert concluded
that Harris had suffered from bipolar disorder, that this was a
severe mental disease at the time of the offenses, and that he
could not appreciate the wrongfulness of his conduct. Id. at
393. The doctor’s concern was documented in the record, and
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United States v. Shaw, No. 06-0403/MC
highlighted by Harris’s behavior of polishing his cell with a
sock. Id. Thus, in Harris, the military judge was confronted
with two conflicting, confirmed, and documented medical
conclusions. These conclusions were the subject of a post-trial
session pursuant to Article 39(a), UCMJ,4 after which,
notwithstanding the conflicting conclusions, the military judge
determined that the previous guilty plea had been entered
providently. Id. After the post-trial Article 39(a), UCMJ,
session, the convening authority ordered yet another examination
pursuant to R.C.M. 706. Id. at 394. That psychiatrist
concluded that Harris had suffered from a severe mental disease,
i.e., bipolar disorder, at the time of the offenses but that he
had been able to appreciate the nature and quality or
wrongfulness of his conduct. Id. The issue in the case was
whether the conflicting post-trial examinations and related
medical evidence, which were themselves in conflict with the
pretrial examination, supported a petition for a new trial under
R.C.M. 1210(f)(2). Id. at 397. We held that they did and
granted the petition for a new trial. Id. at 398-99.
Martin and Harris entailed substantially more than a
passing reference to a diagnosis of bipolar disorder.5 Nor, has
4
10 U.S.C. § 839(a) (2000).
5
Appellant states in his unsworn statement that after the
assault, “that’s when I started to get in trouble.” However,
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Appellant to date offered any indication that his disorder
raises a substantial question regarding his mental
responsibility. As a result, we conclude that Appellant’s
reference to his diagnosis of bipolar disorder, without more, at
most raised only the “mere possibility” of a conflict with the
plea. Whether a conflict has actually arisen or not, it may be
prudent for a military judge to conduct further inquiry when a
significant mental health condition is raised during the plea
inquiry in light of military law and practice regarding mental
health issues and to obviate such issues on appeal. Whether
further inquiry is required as a matter of law is a contextual
determination. In this case, we hold that the military judge
did not abuse his discretion in not doing so.6
DECISION
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is affirmed.
the record reveals, and Appellant concedes, that he received
nonjudicial punishment on October 10, 2001, for an unauthorized
absence of twenty days. This was obviously before the assault
of November 20, 2001, and was evidence the military judge had
before him when Appellant made his unsworn statement.
6
Appellant also claims the reference in his unsworn statement to
bipolar disorder raised the issue of his mental capacity at the
time of trial. As stated earlier, the record is devoid of any
indicator that would have given the military judge reason to
believe that Appellant lacked capacity to stand trial. See
R.C.M. 706(a).
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EFFRON, Chief Judge, with whom ERDMANN, Judge, joins
(dissenting):
Appellant’s assertion that he suffered from bipolar
disorder raised an apparent inconsistency with respect to his
plea, thereby triggering the military judge’s duty to conduct a
further inquiry. United States v. Phillippe, 63 M.J. 307, 309-
11 (C.A.A.F. 2006). The military judge erred in failing to
resolve this inconsistency. Accordingly, I respectfully
dissent.
I. BACKGROUND
A. The Guilty Plea Process
Congress has established special procedures to ensure the
validity of guilty pleas in the military justice system.
Article 45(a), Uniform Code of Military Justice (UCMJ), 10
U.S.C. § 845(a) (2000), provides that the trial court shall
enter a plea of not guilty, despite the accused’s guilty plea,
if the accused “after a plea of guilty sets up matter
inconsistent with the plea, or if it appears that he has entered
the plea of guilty improvidently or through lack of
understanding of its meaning and effect . . . .”
Rule for Courts-Martial (R.C.M.) 910(h)(2) underscores the
military judge’s obligation by requiring that “[i]f after
findings but before the sentence is announced the accused makes
United States v. Shaw, No. 06-0403/MC
a statement to the court-martial, in testimony or otherwise, or
presents evidence which is inconsistent with a plea of guilty on
which a finding is based, the military judge shall inquire into
the providence of the plea.” Our Court has noted the importance
of requiring special attention to guilty pleas in the military
justice system because “‘there may be subtle pressures inherent
to the military environment that may influence the manner in
which servicemembers exercise (and waive) their rights.’”
Phillippe, 63 M.J. at 310 (quoting United States v. Pinero, 60
M.J. 31, 33 (C.A.A.F. 2004)). “‘The providence inquiry and a
judge’s explanation of possible defenses are established
procedures to ensure servicemembers knowingly and voluntarily
admit to all elements of a formal charge.’” Id. (quoting
Pinero, 60 M.J. at 33).
B. Plea Inquiries Involving Mental Responsibility
In a contested trial, the defense of lack of mental
responsibility requires the accused to demonstrate that, at the
time of the alleged offenses, the accused: (1) suffered from a
severe mental disease or defect, and (2) as a result of that
disease or defect was unable to appreciate the nature and
quality or the wrongfulness of the charged acts. Article
50a(a), UCMJ, 10 U.S.C. § 850a(a) (2000). In the context of a
providence inquiry, however, the responsibility for assessing
whether there is reason to believe that the defense may arise
2
United States v. Shaw, No. 06-0403/MC
rests with the military judge. R.C.M. 706(a) provides in
pertinent part that:
If it appears to [the] . . . military judge . . .
that there is reason to believe that the accused
lacked mental responsibility for any offense
charged or lacks capacity to stand trial, that
fact and the basis of the belief or observation
shall be transmitted through appropriate channels
to the officer authorized to order an inquiry
into the mental condition of the accused.
A statement by the accused triggers the military judge’s
responsibility to conduct a further inquiry when it raises the
possibility that a defense may apply. The accused’s statement
need not assert a complete defense. Phillippe, 63 M.J. at 310.
Rather, it must only “set[] up matter raising a possible
defense.” Id.; Article 45(a), UCMJ.
Once a statement by the accused raises the possibility that
a defense may apply, the military judge has an affirmative
obligation to resolve any apparent ambiguity or inconsistency by
conducting further inquiry. Article 45(a), UCMJ. If, upon such
inquiry, it appears that the accused may have a defense of lack
of mental responsibility or may lack mental capacity at the time
of trial, the military judge must determine whether to order
psychological testing by a sanity board. R.C.M. 706(a); R.C.M.
916(k)(3)(B). This obligation distinguishes lack of mental
responsibility from other affirmative defenses. See generally
R.C.M. 916(k) (the military judge is not required to assess the
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need for specialized, nonjudicial evaluation for any affirmative
defense except lack of mental responsibility).
II. APPELLANT’S TRIAL
The charged offenses concerned events that transpired
between March 10, 2002, and April 11, 2002. Appellant pled
guilty to the charged offenses at a special court-martial before
a military judge sitting alone. At the start of the
proceedings, the military judge summarized an off-the-record
conference conducted under R.C.M. 802, during which the parties
discussed “potential [extenuation and mitigation] evidence
requested by the defense, the medical records of the accused,
and it not having arrived yet, and what we would do about that.”
The record supplies no further information about the medical
records, including whether the military judge was informed of
their contents and the reasons why counsel thought the medical
records would be useful in extenuation and mitigation.
Following the summary of the R.C.M. 802 session, Appellant
entered pleas of guilty to all charges and the military judge
conducted a providence inquiry. Appellant said nothing during
the providence inquiry that would have led the military judge to
question his mental capacity or mental responsibility. The
military judge accepted Appellant’s pleas as provident and found
him guilty of all charges and specifications.
4
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During the sentencing proceedings, Appellant made an
unsworn statement under R.C.M. 1001(c)(2)(C), in which he
recounted the injuries he sustained in an assault that occurred
on November 20, 2001, approximately four months before the dates
of the charged offenses. Appellant stated that he was hit
repeatedly in the left side and back of the skull with a lead
pipe during the assault. According to Appellant, he lost
consciousness after the first blow and fell to the concrete
floor. Appellant regained consciousness four or five days after
the attack. He spent the next three weeks in the Hunter McGuire
Veterans Hospital in recovery.
Appellant’s injuries included an inner skull fracture on
the left side of his head, a second fracture on the back of the
skull, a contusion to the front of the brain, bleeding and
swelling to the back of the brain, complete deafness in his left
ear, partial blindness in his left eye, and memory loss. Upon
returning to his unit, Appellant met with a psychiatrist and was
diagnosed with bipolar syndrome. At the time of the charged
offenses, he was awaiting a medical discharge because his
injuries prevented him from sufficiently performing his duties.
Upon conclusion of the statement, the military judge
thanked Appellant. The military judge made no further comment
on the statement before proceeding to hear argument on
sentencing.
5
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III. DISCUSSION
A statement by the accused need not set up a complete
defense in order to trigger the obligation of the military judge
to conduct a further inquiry. The obligation arises if the
statement by the accused “‘sets up matter inconsistent with the
plea.’” United States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991)
(quoting Article 45(a), UCMJ).
In Phillippe, we addressed the issue of “whether the
military judge should have inquired further into the providence
of Appellant’s plea, in light of his unsworn statement.” 63
M.J. at 310. We emphasized that:
Even if an accused does not volunteer all the facts
necessary to establish a defense, if he sets up
matter raising a possible defense, then the military
judge is obligated to make further inquiry to resolve
any apparent ambiguity or inconsistency. Only after
the military judge has made this inquiry can he then
determine whether the apparent inconsistency or
ambiguity has been resolved.
Id. (citing Prater, 32 M.J. at 436) (emphasis added).
Appellant told the military judge that he had been
diagnosed with bipolar disorder. When Appellant made this
statement, the military judge was placed on notice that
Appellant might suffer from a severe mental disease or defect
within the meaning of Article 50a(a), UCMJ. See United States
v. Harris, 61 M.J. 391, 394, 398 (C.A.A.F. 2005); United States
v. Martin, 56 M.J. 97, 100, 103 (C.A.A.F. 2001) (recognizing
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United States v. Shaw, No. 06-0403/MC
that bipolar disorder may constitute a severe mental disease or
defect). Particularly in the context of Appellant’s description
of the assault that he had suffered, his statement fell squarely
within the spectrum of matters requiring further exploration by
the military judge because it set up a “matter inconsistent with
the plea.” Article 45(a), UCMJ.
At this point, the military judge was confronted with two
key questions. First, whether Appellant’s bipolar disorder was
of sufficient gravity to constitute a severe mental disease or
defect. Second, if Appellant did suffer from a severe mental
disease or defect, whether that disease or defect caused him to
fail to understand the nature and quality or wrongfulness of his
acts. Article 50a(a), UCMJ.
Once Appellant raised his inconsistent statement, the
military judge could have pursued one of three options. First,
he could have conducted an inquiry regarding Appellant’s bipolar
disorder with Appellant or trial defense counsel that satisfied
the military judge that the defense of lack of mental
responsibility did not apply. R.C.M. 916(k)(3)(B). If, after
conducting such an inquiry, he determined that the defense did
not apply, he could resume the sentencing proceedings on the
basis that the plea was provident. Second, he could have
ordered a sanity board pursuant to R.C.M. 706(a) to explore
whether the defense of lack of mental responsibility applied.
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United States v. Shaw, No. 06-0403/MC
Third, if the military judge determined that the lack of mental
responsibility defense did in fact apply, he could have
permitted Appellant to withdraw his plea under Article 45(a),
UCMJ, and R.C.M. 910(h)(2) and proceed to trial on the merits.
The military judge erred in failing to adhere to the
requirements for a further inquiry under R.C.M. 706(a) and
910(h)(2). As a result, we are not in a position to determine
which of the above three options would have been appropriate
absent this error. As we stated in Phillippe, before a court
can determine that the defense in question applies, “there must
be adequate facts on the record.” 63 M.J. at 310 n.3. Under
these circumstances, we should set aside the findings and
sentence and authorize a rehearing at which these options could
be properly evaluated.
8