United States v. Harris , 61 M.J. 391 ( 2005 )

UNITED STATES, Appellee
v.
John C. HARRIS, Airman First Class
U.S. Air Force, Appellant
No. 04-0238
Crim. App. No. 34918
United States Court of Appeals for the Armed Forces
Argued December 7, 2004
Decided September 2, 2005
BAKER, J., delivered the opinion of the Court, in which GIERKE, C.J.,
and EFFRON and ERDMANN, JJ., joined. CRAWFORD, J., filed a
dissenting opinion.
Counsel
For Appellant: Captain Martin L. Powell (argued); Colonel
Beverly B. Knott, Lieutenant Colonel Carlos L. McDade, and Major
Terry L. McElyea (on brief).
For Appellee: Captain Kevin P. Stiens (argued); Colonel Gary F.
Spencer, Lieutenant Colonel Robert V. Combs, and Major John C.
Johnson (on brief).
Military Judge: Gregory E. Pavlik
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION
United States v. Harris, No. 04-0238/AF
Judge BAKER delivered the opinion of the Court.
Appellant was tried by members at a general court-martial.
In accordance with his pleas, he was convicted of three
specifications of writing bad checks with the intent to defraud
in violation of Article 123a, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 923a (2000). Contrary to his pleas, he was
convicted of unauthorized absence and larceny1 in violation of
Articles 86 and 121, UCMJ, 10 U.S.C. §§ 886, 921 (2000),
respectively. The adjudged and approved sentence provided for a
dishonorable discharge, confinement for two years, forfeiture of
all pay and allowances and reduction to grade E-1. The United
States Air Force Court of Criminal Appeals affirmed the findings
and sentence in a short-form per curiam opinion. United States
v. Harris, No. ACM 34918 (A.F. Ct. Crim. App. Dec. 5, 2003).
The issue before us is whether Appellant’s petition for new
trial should be granted based on newly discovered evidence of
Appellant’s lack of mental responsibility. For the reasons that
follow, the petition is granted as to the contested offenses.
Further, and for different reasons, we conclude that Appellant’s
pleas of guilty must be set aside.
1
Although Appellant’s plea to wrongful appropriation was accepted by the
military judge, the Government proceeded on the greater offense and Appellant
was ultimately convicted of larceny.
2
United States v. Harris, No. 04-0238/AF
BACKGROUND
Appellant was a twenty-year-old E-3 at the time of the
offenses. On or about October 19, 2000, he wrote two bad checks
to a Ford dealership in Clovis, New Mexico, in the course of
purchasing a new truck. The checks totaled $10,000.00.2
Appellant then drove the truck from Cannon Air Force Base (AFB)
in New Mexico to Lynn, Indiana, to visit his family without
obtaining authority to leave his command. After Appellant
arrived in Lynn, his father, who testified later at a post-trial
session, became concerned because it seemed his son had traveled
a great distance for a relatively short weekend visit. He was
also concerned that his son seemed unable to remain in one place
for any appreciable time during this short visit. For instance,
the father later testified that over the weekend period from
Friday to Sunday, his son had traveled from New Mexico to
Indiana and only visited with him for about thirty to forty-five
minutes before driving another two-and-a-half hours to see his
brother. Following this five-hour round-trip, he then made a
five-hour drive to another part of the state. According to the
father, the following Thursday he received a call from Appellant
who indicated he was upset about the situation that he had
gotten himself into and expressed some thoughts of suicide. His
2
Earlier, on or about October 17, 2000, Appellant had negotiated an
additional check to an establishment called “The Buckle” that was ultimately
dishonored.
3
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father subsequently contacted his unit and arranged to have him
picked up by local law enforcement authorities for subsequent
return to military custody. While awaiting ultimate return to
his command, Appellant was detained at the confinement facility
at Scott AFB. There, authorities apparently observed Appellant
acting strangely. There was testimony at the post-trial session
that Appellant was observed sitting on the floor of his cell
polishing it with his sock.
Prior to trial, Appellant’s defense counsel learned that
before joining the military, Appellant had received
psychological counseling. As a result, counsel requested a
sanity board convened under Rule for Courts-Martial (R.C.M.) 706
on November 1, 2000. On November 8, 2000, the convening
authority detailed Major (MAJ) Pfeiffer, a clinical
psychologist, to conduct the evaluation. On November 9, 2000,
MAJ Pfeiffer concluded that Appellant did not suffer from any
mental defect and that he “is mentally responsible for his
behavior.”
Following his subsequent conviction, and during his
confinement at the Naval Confinement Facility in Miramar,
California, Appellant was evaluated a second time by a U.S. Navy
psychiatrist, Lieutenant (LT) LaCroix. During his initial
intake, Appellant was sent to see LT LaCroix because according
to her, the confinement facility’s policy was to refer for
4
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psychiatric assessment any prisoner who had been previously
prescribed psychiatric medication. Prior to his arrival at the
facility Appellant had been placed on a prescription for
medication to treat depression. During this initial assessment,
LT LaCroix learned that Appellant had experienced repeated
episodes of depression and mania since age fifteen and that his
mother had been diagnosed with a bipolar disorder. She also
learned that leading up to the days of the offenses, Appellant
had exhibited a number of symptoms such as grandiosity, sleep
disruption and unusual goal-directed activity. Following the
assessment, LT LaCroix diagnosed Appellant as suffering from a
Bipolar Type I disorder, prescribed additional medication to
treat his condition, and met with him one or two times a month
to assess his progress.
As part of Appellant’s clemency submissions, trial defense
counsel submitted an affidavit from LT LaCroix detailing her
diagnosis. Based upon her determination that Appellant “was not
able to control his actions or appreciate the wrongfulness of
his conduct due to psychiatric symptoms [at the time of the
offenses],” trial defense counsel requested that the convening
authority grant a new trial or, in the alternative, disapprove
the adjudged dishonorable discharge. Instead, the convening
authority ordered a post-trial session pursuant to Article
39(a), UCMJ, 10 U.S.C. § 839(a) (2000). According to the
5
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convening authority’s memorandum to the military judge, the
stated purpose of the session was “to inquire into a matter
which has arisen post-trial . . . which may substantially affect
the legal sufficiency of your findings of guilty.” The
memorandum further defined the scope of the session as “a
limited inquiry to determine whether the accused’s pleas of
guilty were provident and should have been accepted” in light of
LT LaCroix’s diagnosis and conclusions.3
The Article 39(a) session was conducted on June 14, 2001.
After hearing testimony from MAJ Pfeiffer, LT LaCroix and
others, the military judge issued findings of fact and concluded
that at the time of the offenses, Appellant suffered from “a
bipolar disorder that would equate to a severe mental disease or
defect,” but that he appreciated the wrongfulness of his actions
and was subsequently competent to stand trial. The military
judge concluded that the pleas were provident, but suggested
that the convening authority take into account Appellant’s
illness when considering clemency.
After receipt of the military judge’s findings and
conclusions, the convening authority ordered a second sanity
3
The parties do not agree on whether the convening authority’s action was
limited to having the military judge reconsider the accused’s guilty pleas,
or whether this action is also appropriately cast as an inquiry into the
necessity for a new trial under R.C.M. 1210, in light of the “newly
discovered” evidence of Appellant’s illness. We need not resolve this
dispute, as we have before us Appellant’s petition for a new trial, which we
review de novo. However, the evidence considered at the post-trial session
is, of course, relevant to our analysis.
6
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board be convened. Appellant was evaluated this time by Captain
(CAPT) Ho, a Navy psychiatrist, who concluded that at the time
of the offenses, Appellant suffered from a severe mental
disease, i.e., bipolar disorder. CAPT Ho, however, concluded
that Appellant “was able to appreciate the nature and quality or
wrongfulness of his conduct.” On January, 16, 2002, the
convening authority denied Appellant clemency and approved the
sentence as adjudged.
During review in the court below, Appellant raised several
issues. But he did not raise the issue of a new trial in light
of newly discovered evidence. Rather, he argued that his
sentence was inappropriately severe in light of his mental
health. As a result, he requested that the court order a
rehearing on sentence or reassess the sentence in light of post-
trial developments. The lower court subsequently affirmed the
findings and sentence without discussion, noting only that the
issues raised by Appellant were without merit.
Appellant subsequently filed a petition for review before
this Court as well as a separate petition for a new trial
pursuant to Article 73, UCMJ, 10 U.S.C. § 873 (2000), based on
newly discovered evidence of lack of mental responsibility. In
his supplement to the petition for grant of review Appellant
assigned two issues, one of which asserted that he deserved a
7
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new trial because he suffered from a severe mental disease at
the time of the offenses.4
DISCUSSION
A. The Petition for New Trial
Petitions for new trials are disfavored in the law; relief
is granted only to avoid a “manifest injustice.” United States
v. Williams, 37 M.J. 352, 356 (C.M.A. 1993). R.C.M. 1210(f)(2)
provides granularity to this standard, stating that a new trial
shall not be granted on the grounds of newly discovered evidence
unless the petition demonstrates that:
(A) The evidence was discovered after the trial;
(B) The evidence is not such that it would have been
discovered by the petitioner at the time of trial in the
exercise of due diligence; and
(C) The newly discovered evidence, if considered by a
court-martial in the light of all other pertinent evidence,
would probably produce a substantially more favorable
result for the accused.
In this case, the parties agree that the evidence of Appellant’s
mental illness was discovered after trial. However, the parties
do not agree as to whether Appellant exercised due diligence in
discovering the evidence prior to trial.
4
The issue granted on Appellant’s petition for review is:
WHETHER APPELLANT SHOULD BE GRANTED A NEW TRIAL BECAUSE HE
SUFFERED FROM A SEVERE MENTAL DISEASE AT THE TIME OF HIS OFFENSES
THAT RENDERED HIM UNABLE TO APPRECIATE THE NATURE AND QUALITY OR
THE WRONFULNESS OF HIS ACTIONS.
As noted, on January 15, 2004, Appellant also submitted a petition for new
trial pursuant to Article 73 based on this same issue.
8
United States v. Harris, No. 04-0238/AF
The Government argues that Appellant failed to disclose
pertinent information to MAJ Pfeiffer, who conducted the
pretrial sanity board, namely Appellant’s prior psychological
counseling, disclosed by Appellant’s father at the post-trial
session, and evidence of the mental health issues of Appellant’s
parents. According to the Government, had Appellant been
forthcoming, his true mental state would have been discovered
prior to trial. However, this argument assumes that a person
with a severe mental defect will have the savvy to know what
information the trained mental health professional needs to
evaluate him as well as the wherewithal to consciously choose to
withhold such information. Moreover, previously, this Court has
applied the due diligence standard in the rule to the efforts of
defense counsel. United States v. Fisiorek, 43 M.J. 244, 248
(C.A.A.F. 1995); Williams, 37 M.J. at 357. Therefore, on the
record before this Court we conclude that counsel exercised the
requisite due diligence by requesting the initial sanity board
prior to trial.
We turn now to the third prong of analysis. In context,
the question is whether LT LaCroix’s diagnosis and the testimony
at the Article 39(a) session would have had an impact on the
9
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trial result. However, the parties disagree on the applicable
substantive measure.5
The Government avers that the standard is stated clearly in
the rule, which provides that a new trial shall not be ordered
unless “the newly discovered evidence, if considered by a court-
martial in the light of all other pertinent evidence, would
probably produce a substantially more favorable result for the
accused.” R.C.M. 1210(f)(2)(C). Appellant’s contrasting
argument is that a new trial must be granted where the request
is based upon post-trial discovery of a severe mental disorder
unless “the court is convinced beyond a reasonable doubt that a
different result would not occur had the court been aware of the
new evidence.” Emphasis added. Appellant argues that this
standard pertains whether he is before this Court on direct
appeal pursuant to Article 67, or whether he is petitioning this
Court under Article 73. Appellant further argues that
“[h]istorically. . . we have given preferential treatment to the
question of mental responsibility of a military member, even
though the matter was not litigated at trial.” United States v.
Young, 43 M.J. 196, 197 (C.A.A.F. 1995). Appellant also notes that
this Court has applied a reasonable doubt standard in other contexts
5
Identification of the correct substantive standard before this Court is
complicated because the parties’ arguments are addressed to both Appellant’s
petition for direct review under Article 67, UCMJ, 10 U.S.C. § 867 (2000),
and his petition for new trial under Article 73. However, for the reasons
10
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involving new evidence of mental responsibility. See United
States v. Van Tassel, 38 M.J. 91 (C.M.A. 1993); United States v.
Dock, 28 M.J. 117, 120 (C.M.A. 1989); United States v. Lilly, 25
M.J. 403 (C.M.A. 1988).
This reasonable doubt standard has its genesis in United
States v. Triplett, 21 C.M.A. 497 (1972). Triplett was
convicted at a trial before a military judge of the murder of a
fellow soldier. At trial, the parties litigated the accused’s
mental responsibility at the time of the killing. A
psychiatrist, who examined the accused prior to trial testified
that in his opinion the accused was suffering from a psychotic
episode at the time of the offense that was self-induced by the
accused’s voluntary drug use. Finding the accused mentally
responsible beyond a reasonable doubt, the military judge found
the accused guilty as charged. Id. at 498-99. While the case
was pending review before the Court of Military Review, Triplett
was evaluated by a sanity board that concluded that at the time
of the offense, he suffered an acute psychosis that rendered him
unable to distinguish right from wrong. A subsequent review by
the Surgeon General concurred with the sanity board. Id. at
499-501.
stated below, in either appellate context we reach the same conclusion
applying R.C.M. 1210(f).
11
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Relying on paragraph 124 of the 1969 revised edition of the
Manual for Courts-Martial (MCM),6 the lower court held after
reviewing the record as a whole “that no reasonable doubt exists
as to the sanity of the accused.” Triplett, 21 C.M.A. at 502.
Affirming the Court of Military Review, this Court construed the
language and purpose of paragraph 124, and stated, “If on the record,
as a whole, the tribunal concludes ‘that a reasonable doubt exists
as to the sanity of the accused,’ it should set aside the
findings of guilty and dismiss the charge.” Id. at 503
(citation omitted). In those instances when reasonable minds
might differ as to the weight of the new and the old evidence,
the Court stated, the question is “whether, considering all the
matter on the issue, a different verdict might reasonably result
if the issue was again presented to a court-martial.” Id. This
6
Paragraph 124 states: ACTION BY CONVENING OR HIGHER AUTHORITY. After
consideration of the record as a whole, if it appears to the convening
authority or appropriate higher authority that a reasonable doubt exists as
to the sanity of the accused, the findings of guilty affected by that doubt
should be disapproved . . . .” MCM (1969 revised ed.), ¶124 (emphasis
added).
12
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Court framed the question in like manner in Dock,7 Van Tassel,8
and Lilly.9
However, as in Triplett, these cases arose in the context
of appeals taken from decisions by the lower courts on the issue
of later-discovered evidence of a lack of mental responsibility.
As a result, the trial court or courts of criminal appeals were
required to apply a beyond a reasonable doubt standard with
respect to guilt. Because an accused now has the burden of
demonstrating lack of mental responsibility by clear and
convincing evidence, this results in what is an admittedly
convoluted appellate standard of review as set out in United
States v. Cosner:
Is the appellate court convinced beyond a reasonable doubt
that reasonable fact finders would not find by clear and
convincing evidence that, at the time of the offense,
appellant suffered from “a severe mental disease or defect”
such as to be “unable to appreciate the nature and quality
or the wrongfulness of” his acts?
35 M.J. 278, 281 (C.M.A. 1992)(citations and emphasis omitted).
7
“Is the appellate court convinced beyond a reasonable doubt that a different
result would not obtain if the trier of fact had this new evidence before
it?” 28 M.J. at 120.
8
“The standard to be applied by a Court of Military Review to determine
‘whether the issue of insanity was adequately raised . . . post-trial’ is
whether ‘the appellate court [is] convinced beyond a reasonable doubt that a
different result would not obtain if the trier of fact had this new evidence
before it[.]” 38 M.J. at 95 (quoting Dock, 28 M.J. at 119-20) (emphasis
added).
9
“Whether the fact finder, after considering all the evidence that would be
available, might have a reasonable doubt as to appellant’s mental
responsibility?” 25 M.J. at 408.
13
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For the fact-finder, such a demonstration would amount to a
reasonable doubt as to guilt.
In addition, Triplett rested on language in paragraph 124
of the 1969 MCM,10 which expressly included the “beyond a
reasonable doubt” standard. Paragraph 124 was not included in
the 1984 MCM; however, the Triplett standard continues in case
law. The Court’s discussion in Triplett suggests why:
The actions [paragraph 124] sanctions demand an
analysis of the content, and a weighing of the value,
of the new information. Manifestly, consideration of
content and weight is required to determine whether,
on ”the record as a whole,” a ”reasonable doubt
exists“ as to the sanity of the accused at the time of
the offense.
21 C.M.A. at 502 (emphasis added). This language contemplates a
weighing function carried out by the authorities empowered to do
so. This was borne out later in paragraph 124, which stated
that if it is determined that the accused lacks mental capacity,
“a conviction may not be approved or affirmed under Articles 64,
65, or 66.”11 MCM, ¶124 (1969 revised ed.) Neither paragraph
124 nor the Triplett Court referenced Article 67.
In light of the service courts’ fact-finding function, the
standard articulated in Triplett, Dock, Van Tassel, and Cosner
continues as the appropriate standard for lower courts
considering the impact of newly discovered evidence regarding
10
See supra note 6.
14
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mental responsibility. In contrast, this Court applies the
separate standard set forth in R.C.M. 1210(f)(2)(C) in reviewing
requests for new trials on the ground of mental responsibility.
The rule sets out the standard in plain text, and there is no
ambiguity or anything in the rule that suggests a reasonable
doubt standard. Moreover, unlike the lower courts, because we
have no fact-finding authority, we are prohibited from weighing
evidence in the manner suggested in Cosner and Triplett.
This conclusion is consistent with United States v. Murphy,
50 M.J. 4 (C.A.A.F. 1998). While Murphy’s case was pending
before the Court of Military Review, he obtained funding from
the Judge Advocate General to employ the services of a social
history investigator. However, the court completed its review
of his case before the investigation could be completed. Id. at
13. After the court’s decision in his case, Murphy was examined
by a clinical psychologist and three psychiatrists. These
mental health professionals severally opined that Murphy
suffered from various psychological dysfunctions at the time of
the offenses, that he suffered a severe mental defect that
rendered him unable to form the requisite intent for
premeditated murder, that he was unable to appreciate the nature
and quality or the wrongfulness of his acts, and that the prior
11
These provisions reference respectively the post-trial responsibilities of
the convening authority, the judge advocates general, and the courts of
military review.
15
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sanity board was based on inadequate assessment methods. Id. at
13-14. Murphy presented this information for the first time to
this Court in the form of affidavits. The two-year limitation
in Article 73 for filing petitions for new trials having
expired, this Court concluded that Murphy’s case could not be
resolved pursuant to R.C.M. 1210(f). Murphy, 50 M.J. at 14. We
further acknowledged that “[a]lthough there has been some
disagreement as to the correct standard of review, there clearly
is agreement that, if the requirements of R.C.M. 1210(f)(2) are
present, the accused is entitled to a new trial.” Murphy, 50
M.J. at 15. However, notwithstanding the temporal
inapplicability of R.C.M. 1210(f), we concluded that the
standard found in R.C.M. 1210(f)(2)(C) “provides us with a clear
rule for testing whether the result obtained in the court-
martial proceeding is a reliable result.” Murphy, 50 M.J. at
15. But rather than ordering a new trial, we remanded to the
lower court to “[r]eview the new evidence to determine if a
different verdict as to findings might reasonably result in
light of post-trial evidence.” Id. at 16. This, of course, is
the standard found in Triplett and the remand took into account
the situation, like Murphy’s, where the discovery of the new
evidence occurred after the Court of Criminal Appeals had
concluded its review under Article 66, UCMJ, 10 U.S.C. § 866
(2000). In other words, the remand allowed that court to apply
16
United States v. Harris, No. 04-0238/AF
its fact-finding authority to the new evidence, an opportunity
not previously provided to it. Thus, as in the case of a
timely Article 73 request, Murphy had the benefit of a review
before a fact-finding court prior to a review by this Court.
B. Application
Turning to Appellant’s case, we note that he has filed
within the statutory period under Article 73. Unlike the
situation in Murphy, we also have before us the record of the
post-trial Article 39(a) session where the testimony of the two
mental health professionals was tested in the “crucible of
examination.” Triplett, 21 C.M.A. at 503.
The question becomes whether the post-trial evidence in
Appellant’s case “would probably produce a substantially more
favorable result for the accused.” R.C.M. 1210(f)(2)(C). Or,
alternatively, is it necessary to remand for further analysis
under the reasonable doubt standard applied by the Courts of
Criminal Appeals? At this point, three Government mental health
professionals have offered varying conclusions as to Appellant’s
mental responsibility at the time of the offenses. Only one of
these evaluations was specifically sought by Appellant. MAJ
Pfeiffer concluded that Appellant suffered no severe mental
defect or disease. In contrast, LT LaCroix concluded that he
did suffer a severe disease at the time of the offenses and that
he was “not able to control his actions or appreciate the
17
United States v. Harris, No. 04-0238/AF
wrongfulness of his conduct due to psychiatric symptoms.” CAPT
Ho concluded that Appellant suffered from a severe mental
disease or defect, but he was able to appreciate the nature and
quality or wrongfulness of his conduct.
As a threshold, we note that Appellant’s defense was
immediately impacted by the newly discovered evidence, because
defense counsel was unable to prepare and fully develop the
affirmative defense of mental responsibility prior to trial
because she had no evidence that Appellant suffered from a
severe mental defect or disease. More importantly, the
distinctions in background and methodology used by the doctors
in reaching contradictory conclusions, raises the possibility
that a different court-martial might reach a finding more
favorable to the Appellant. For example, MAJ Pfeiffer was a
clinical psychologist and LT LaCroix a medical doctor. LT
LaCroix had experience with “hundreds” of patients diagnosed
with bipolar disorders. In addition, LT LaCroix met with
Appellant “one to two times a month” for the four months between
her initial intake evaluation of him and the date of the post-
trial Article 39(a) session. MAJ Pfeiffer spent several hours
with Appellant during one visit. Moreover, the military judge
was persuaded by LT LaCroix’s testimony that Appellant suffered
a severe mental disease at the time of the offenses.
18
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Of course, “the mere existence of conflicting opinion does
not necessarily require a rehearing.” Triplett, 21 C.M.A. at
503. However, this case presents more than conflicting
opinions. LT LaCroix testified in detail not only as to her
qualifications, which were different than those of MAJ Pfeiffer,
but also as to her methodology in obtaining needed information
from Appellant. We also note the absence of any “forum
shopping” by Appellant for a more favorable opinion than MAJ
Pfeiffer’s. CAPT Ho’s examination was ordered by the convening
authority, and LT LaCroix testified that Appellant had not
initially sought her out for treatment. In fact, she stated
that Appellant was not even aware that he was being sent to a
psychiatrist.
In any event, the question for this Court is not whether
MAJ Pfeiffer, LT LaCroix, or CAPT Ho reached the correct
conclusion, but whether a different court-martial might have
reached a result more favorable to the accused in light of
arguments defense counsel might have brought to bear with
knowledge of Appellant’s condition as well as the differences in
the testimony of the doctors. In light of the newly discovered
evidence regarding Appellant’s mental illness, the competing
views as to its impact on responsibility, and all other
pertinent evidence, we conclude this evidence would probably
produce a substantially more favorable result for Appellant on
19
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the contested offenses. We now address the offenses to which
Appellant pleaded guilty.
C. Appellant’s Guilty Pleas
Appellant was charged with larceny, but entered a plea of
guilty to the lesser offense of wrongful appropriation. He also
pleaded guilty to three specifications of writing bad checks
with intent to defraud. Appellant now urges that we apply the
new-trial construct of Article 73 and R.C.M. 1210(f) to decide
whether Appellant’s pleas were provident. Because R.C.M. 1210
expressly precludes its application to guilty pleas, we decline
to do so.12
A guilty plea will be rejected only where the record of
trial shows a substantial basis in law and fact for questioning
the plea. United States v. Prater, 32 M.J. 433, 436 (C.M.A.
1991); United States v. Jordan, 57 M.J. 236, 238 (C.A.A.F.
2002); United States v. Hardeman, 59 M.J. 389, 391 (C.A.A.F.
2004). We review de novo the military judge’s legal conclusion
that Appellant’s pleas were provident.
A plea of guilty waives a number of important
constitutional rights. United States v. Care, 18 C.M.A 535, 541-
42 (1969). As a result, the waiver of these rights must be an
informed one. United States v. Hansen, 59 M.J. 410, 413
12
“A petition for a new trial of the facts may not be submitted on the basis
of newly discovered evidence when the petitioner was found guilty of the
relevant offense pursuant to a guilty plea.” R.C.M. 1210(a).
20
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(C.A.A.F. 2004). In this case, the military judge concluded
after holding an Article 39(a) session that Appellant suffered a
severe mental defect or disease at the time of the offenses.13
We do not see how an accused can make an informed plea without
knowledge that he suffered a severe mental disease or defect at
the time of the offense. Nor is it possible for a military
judge to conduct the necessary Care inquiry into an accused’s
pleas without exploring the impact of any potential mental
health issues on those pleas. Thus, we conclude that there is a
substantial basis in law and fact to question Appellant’s pleas
of guilty.
DECISION
The decision of the United States Air Force Court of
Criminal Appeals is set aside, along with the findings and
sentence. Appellant’s petition for new trial is granted.14 The
record of trial is returned to the Judge Advocate General of the
Air Force for action consistent with this opinion.
13
At this juncture the military judge had two options. He could have
inquired whether Appellant still wished to plead guilty, now aware of a
possible affirmative defense based on mental illness. Alternatively, the
military judge could have advised the convening authority that a substantial
basis in law and fact now existed to question whether Appellant’s pleas were
provident.
14
Our resolution of Appellant’s Petition for New Trial renders the granted
issue moot because the same standard articulated in our opinion to resolve
the petition for new trial applies as well to the issue when presented to us
for the first time on direct review.
21
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CRAWFORD, Judge (dissenting):
Lack of mental responsibility can be a valid defense
in only one situation, when:
at the time of the commission of the acts
constituting the offense, the accused, as a
result of a severe mental disease or defect, was
unable to appreciate the nature and quality or
the wrongfulness of his or her acts.
R.C.M. 916(k)(1).
If Appellant appreciated the “nature and quality or
the wrongfulness” of his actions, he does not qualify for
this defense. During his providence inquiry, Appellant
explained several times that he understood that he had
insufficient funds when he stole the truck and wrote the
bad checks. His father’s testimony during the Article
39(a) session also suggested a motive: emulation of his
relatively wealthy brother.
The accused is always presumed to have been mentally
responsible and bears the burden of proving, “by clear and
convincing evidence, that he or she was not mentally
responsible at the time of the alleged offense.”1 R.C.M.
916(k)(3)(A). Even if an accused can prove that he lacked
1
“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)
(internal quotation marks and citations omitted), quoted in
United States v. Collins, 60 M.J. 261, 265 (C.A.A.F. 2004).
United States v. Harris, 04-0238/AF
mental responsibility over a long period of time that
included the day of the offense, the prosecution can rebut
this by proving that the accused was mentally responsible
at a specific time during that period –- for example, while
signing checks. United States v. Martin, 56 M.J. 97(C.A.A.F. 2001).
The providency hearing made clear the intent behind
Appellant’s offense involving the truck:
ACC: Your Honor, I was counting on the deal not
going through. I thought that the vehicle was
too much and that the loan wouldn’t get approved.
I believed I was going to have to turn it back in
at the end of the week.
MJ: All right. You said you planned for the
deal not to go through . . . . [and] you wrote
them some checks that you knew weren’t going to
go through?
ACC: Yes, Your Honor . . .
MJ: [Y]ou knew at that point that you didn’t
have the money in the bank, so you were
defrauding them. Is that right?
ACC: Yes, Your Honor . . .
. . . .
MJ: And as a result, you were taking [the truck]
for your own personal use, you said “to show
off”?
ACC: Correct, Your Honor.
After Appellant changed his plea on the desertion charge to
not guilty, the military judge returned to the issue of
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United States v. Harris, 04-0238/AF
intent during discussion of the uttering specifications.
When the judge asked him why he believed himself guilty of
Specification 1, Appellant replied:
When I made the check I knew that I, the
maker thereof, did not or would not have
sufficient funds in the bank for the payment
of the check in full . . . .
MJ: You made this check for $1,090.39. Did
you know at the time you didn’t have that
money in the bank?
ACC: Yes, Your Honor . . . .
. . . .
MJ: You read off the intent to defraud, and
I defined that earlier for you. Basically,
obtaining items through misrepresentation
and intending to use those items for the use
and benefit of yourself or the use and
benefit of someone else. Is that what you
did when you presented this check?
ACC: Yes, Your Honor.
Appellant’s accounts of the remaining specifications were
similar. He admitted that the making of all three of the
bad checks in the additional charge was “wrongful,
unlawful, and with intent to defraud.”
Appellant’s father, John Cochran Harris, disclosed a
possible motive during his testimony for the defense.
After recounting Appellant’s history of problems with
depression, low self-esteem, and lack of discipline, Mr.
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United States v. Harris, 04-0238/AF
Harris went on to describe Appellant’s relationship with
his older brother:
A: His brother has been very successful.
He was an average student in high school.
But then upon graduating from high school he
went to ITT Technical Institute and . . .
built his way up into some respectable
earning positions with some companies. Even
to the point where he was earning enough
that he purchased a small private plane to
learn how to fly . . . . So, that was very
impressionable [sic] I know to John the fact
that his brother was earning good money, and
had a plane, and had a family, and was
moving ahead. Even to the point now that my
oldest son did get his private license; and
has now sold that plane; and has gone back
to college full time at Indiana State
University and enrolled in the professional
pilot program . . . .
Q: Do you think that Airman Harris looks up
to his older brother?
A: Completely . . . . And there’s one thing
about Chris, my oldest son, was material
things. He liked . . . nice things; a good
car; but he was making the money that he
could handle those things. I know John was
kind of caught up into that materialistic
image that his brother kind of projected and
wanted to be like him in that respect.
Q: And do you think that was part of the
reason why he did the things that he did in
this case?
A: I really think it is.
The testimony of Appellant and his father does not suggest
a man who was “unable to appreciate the nature and quality
or the wrongfulness of his . . . acts,” as required for a
4
United States v. Harris, 04-0238/AF
valid defense under R.C.M. 916(k)(1). Instead, it suggests
a man who was mentally ill but nevertheless had a motive, a
plan, and the ability to commit several crimes. Despite
any mental illness, Appellant was lucid enough to form the
necessary criminal intent. Thus, the defense of lack of
mental responsibility is unavailable to him.
If lack of mental responsibility is a heavy burden for
an appellant, a petition for a new trial is even heavier.
This Court generally disfavors such petitions and will
grant one “only if a manifest injustice would result absent
a new trial . . . based on proffered newly discovered
evidence.” United States v. Williams, 37 M.J. 352, 356
(C.M.A. 1993).
The standard for these petitions is laid out in R.C.M.
1210(f), which permits only two grounds for new trials:
newly discovered evidence and fraud on the court-martial.
Appellant petitions on the basis of newly discovered
evidence, which requires him to show all of the following:
(A) The evidence was discovered after the trial;
(B) The evidence is not such that it would have
been discovered by the petitioner at the time
of trial in the exercise of due diligence; and
(C) The newly discovered evidence, if considered
by a court-martial in the light of all other
pertinent evidence, would probably produce a
substantially more favorable result for the
accused.
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United States v. Harris, 04-0238/AF
R.C.M. 1210(f)(2).
This Court tends to frown on post-trial second
opinions by mental-health experts; it is reluctant to grant
an appellant a new trial solely because his search for
additional experts has yielded more favorable results. In
United States v. Gray, 51 M.J. 1, 14 (C.A.A.F. 1999), this
Court held that “the establishment of conflicting expert
opinion on an accused’s mental state does not necessarily
require a rehearing.” The Gray Court found a rehearing to
be particularly unwarranted where evidence of the illness
existed before trial and there was a dispute as to the
effect of that illness on the defendant at the time of the
offense(s). Id.
This case illustrates the problem with post-trial
second opinions. After his providency hearing, in which he
had admitted his intent to steal the truck and pass the bad
checks, Appellant sought the help of a psychiatrist. That
doctor, Lieutenant Camille LaCroix, examined him and
concluded that he suffered from Bipolar Disorder Type I.
In contrast to the deliberate action he had described in
his providency hearing, she later testified that:
[h]e said he had no intention of buying a
truck; he has no idea why that happened. He
knows it did happen because he did do that
and he had written these checks and
6
United States v. Harris, 04-0238/AF
everything else, but he had no preconceived
notion of going to do these things.
She added, in response to defense counsel’s question, that
the fact that Defendant had spent several days at the car
dealership before stealing the car was irrelevant; that
period could have been merely a build-up to the
irresistible impulse that is characteristic of this
disorder. She also noted that people with bipolar disorder
cannot appreciate the wrongfulness of their actions at the
time of an offense. Her conclusion thus became key to
Appellant’s defense, even though it contradicted his own
testimony.
Even if we ignore our policy against expert-shopping,
Appellant’s case fails on another point: He would have
discovered his evidence before trial, had he exercised due
diligence. Appellant himself had struggled with mental
illness as a teenager and had received medication and
extensive counseling. He easily could have discovered his
family history of mental illness, including his mother’s
history of bipolar disorder. Due diligence by the defense
also would have brought to light the evidence from Senior
Master Sergeant Marilyn Toland and Captain William Cannon,
who witnessed his peculiar behavior during pretrial
confinement. Appellant did not discover any of this
7
United States v. Harris, 04-0238/AF
available evidence before trial. He thus is disqualified
from consideration for a new trial on the basis of R.C.M.
1210(f)(2)(B) and our own precedent. Gray, 51 M.J. 1 at
14.
I have no doubt that bipolar disorder has thrown
Appellant’s life into repeated turmoil, and I underestimate
neither his struggle nor the pain it has brought his
family. However, we are asked to judge his actions against
the fixed standards set by Congress. Appellant was able to
appreciate the wrongfulness of his acts at the time he
committed them. Therefore, the lack of mental
responsibility cannot be a valid defense for him.
Moreover, he failed to exercise due diligence in pretrial
discovery. Therefore, his petition for a new trial fails
to meet the statutory requirements. Accordingly, I
respectfully dissent.
8