United States v. Mott , 72 M.J. 319 ( 2013 )

UNITED STATES, Appellee
v.
Richard R. MOTT, Seaman
U.S. Navy, Appellant
No. 12-0604
Crim. App. No. 200900115
United States Court of Appeals for the Armed Forces
Argued January 23, 2013
Decided July 8, 2013
BAKER, C.J., delivered the opinion of the Court, in which
ERDMANN, STUCKY, and RYAN, JJ., and EFFRON, S.J., joined.
Counsel
For Appellant: Lieutenant Ryan C. Mattina, JAGC, USN (argued).
For Appellee: Major William C. Kirby, USMC (argued); Colonel
Stephen C. Newman, USMC, and Brian K. Keller, Esq. (on brief);
Colonel Kurt J. Brubaker, USMC.
Military Judges: Moira Modzelewski and Daniel Daugherty
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Mott, No. 12-0604/NA
Chief Judge BAKER delivered the opinion of the Court.
Contrary to his plea, Appellant was convicted at a general
court-martial with members of attempted premeditated murder in
violation of Article 80, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 880 (2006). The adjudged and approved
sentence included confinement for nine years, a dishonorable
discharge and reduction to pay grade E-1. 1 The United States
Navy-Marine Corps Court of Criminal Appeals (CCA) affirmed.
United States v. Mott, No. 200900115, 2012 CCA LEXIS 157, 2012
WL 1514770 (N-M. Ct. Crim. App. Apr. 30, 2012) (unpublished).
We granted review on the following two issues:
I. A LACK OF MENTAL RESPONSIBILITY DEFENSE EXISTS WHEN A
MENTALLY DISEASED ACCUSED CANNOT APPRECIATE THE
WRONGFULNESS OF HIS CONDUCT. HERE, EXPERTS TESTIFIED
THAT APPELLANT’S PARANOID SCHIZOPHRENIA AND SEVERE
DELUSIONS CREATED HIS SUBJECTIVE BELIEF THAT STABBING THE
VICTIM WAS JUSTIFIED. BUT THE MILITARY JUDGE AND NMCCA
ADOPTED AN OBJECTIVE STANDARD FOR “WRONGFULNESS.” WHAT
IS THE APPROPRIATE STANDARD IN DETERMINING WHETHER AN
ACCUSED CAN APPRECIATE THE WRONGFULNESS OF HIS CONDUCT?
II. UNDER THE FIFTH AMENDMENT, AN ACCUSED’S STATEMENT TO
INVESTIGATORS IS ADMISSIBLE ONLY IF IT WAS OBTAINED WITH
A VOLUNTARY, KNOWING, AND INTELLIGENT WAIVER WHERE THE
ACCUSED UNDERSTANDS HIS RIGHTS AND THE CONSEQUENCES OF
WAIVING THEM. HERE, EXPERT WITNESSES TESTIFIED THAT
APPELLANT COULD NOT UNDERSTAND HIS RIGHTS OR THE
1
Appellant was initially convicted in 2008 of attempted
premeditated murder in violation of Article 80, UCMJ, 10 U.S.C.
§ 880 (2006), and sentenced to twelve years of confinement. On
November 24, 2009, the CCA set aside the findings and sentence
and ordered a rehearing. United States v. Mott, No. 200900115,
2009 CCA LEXIS 424, 2009 WL 4048019 (N-M. Ct. Crim. App. Nov.
24, 2009) (unpublished).
2
United States v. Mott, No. 12-0604/NA
CONSEQUENCES OF WAIVING THEM BECAUSE OF HIS SEVERE MENTAL
DISEASE. DID THE MILITARY JUDGE ERR BY ADMITTING THE
STATEMENT?
In short, we conclude that the military judge did not err in his
instructions in adopting an objective standard for
“wrongfulness,” but did abuse his discretion by admitting
Appellant’s statement without first contextually analyzing
whether Appellant could and did knowingly and intelligently
waive his right to counsel. See Edwards v. Arizona, 451 U.S.
477, 484 (1981) (“[T]he voluntariness of a consent or an
admission on the one hand, and a knowing and intelligent waiver
on the other, are discrete inquiries.”).
BACKGROUND
On March 6, 2007, Seaman Recruit (SR) JG reported for duty
as a crew member aboard the USS CAPE ST. GEORGE (CG-71). 2009
CCA LEXIS 424, at *2, 2009 WL 4048019, at *1. Appellant and JG
had never met before. 2012 CCA LEXIS 157, at *4, 2012 WL
1514770, at *2. On March 7, Appellant was at an office computer
when he thought he overheard JG say to another crew member that
he was “‘going to have to kill MOTT’” and that he was going to
kill Appellant’s family. Later that day Appellant purchased a
Winchester lock blade folding knife from the base exchange. The
following morning, March 8, Appellant was working on the mess
deck of the berthing barge being used by the ship’s crew when he
noticed JG sitting at a table. Appellant approached JG from
3
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behind, slashed his throat and began repeatedly stabbing him in
the chest and abdomen while repeatedly shouting “you raped me”
or “he raped me.” Appellant was subdued by nearby crew members
and was taken into custody. 2012 CCA LEXIS 157, at *3, 2012 WL
1514770, at *1; 2009 CCA LEXIS 424, at *2, 2009 WL 4048019, at
*1. That same day, he provided a sworn statement to Naval
Criminal Investigative Service (NCIS) after a proper rights
advisement under Article 31(b), UCMJ, 10 U.S.C. § 831(b) (2006).
2012 CCA LEXIS 157, at *3, 2012 WL 1514770, at *1. JG survived
the attack but suffered serious and permanent injuries.
The bizarre content of Appellant’s statement prompted the
convening authority to order a mental health examination under
Rule for Courts-Martial (R.C.M.) 706 on March 15, 2007. This
examination concluded that Appellant suffered from “severe”
“[s]chizophrenia, paranoid type” at the time of the offense and
that he was “incompetent to stand trial.” 2 Even after months of
psychiatric treatment, as of January 2008 Appellant’s residual
2
Among other symptoms, Appellant experienced auditory
hallucinations of his mother’s voice, visual hallucinations
including visions of a young Andrew Carnegie as an angel, and
delusions including the belief that a senior al Qaeda official
launched the 9/11 attacks because SN Mott had killed the
terrorist’s two sons after they had raped SN Mott. Appellant’s
shipmates gave him the nickname “Murder Mott” because he talked
so much about murdering people. While Appellant was being
treated at the Federal Medical Center at Butner, Appellant was
documented “rinsing his food before eating it” and
“manufactur[ing] a ‘gas mask’ from a beverage carton and strips
of cloth.”
4
United States v. Mott, No. 12-0604/NA
delusional ideation and “significantly compromised cognitive
capacities” prevented him from having a reality-based
understanding of his legal situation. Malingering -- that is,
faking mental illness -- was determined by the R.C.M. 706
examination to be “very unlikely”: if anything, Appellant
exhibited “a hesitancy to admit to problems of a psychological
nature.” A subsequent R.C.M. 706 examination was conducted on
May 19, 2008. The examining psychiatrist concluded that, at the
time of the offense, Appellant believed that “he was acting in
self-defense,” that “the only way to stop [JG from killing him]
was to attack [JG],” and that his actions were “justified and
not wrong.” There is no dispute between the parties that at the
time of his NCIS interview, Appellant was suffering from
paranoid schizophrenia. 2012 CCA LEXIS 157, at *8, 2012 WL
1514770, at *3.
As part of Appellant’s paranoid delusion at the time of the
offense, he believed that sometime in the summer of 2003, a
group of up to fifteen men had accosted him while he was at his
girlfriend’s apartment and gang raped him. 2009 CCA LEXIS 424,
at *3, 2009 WL 4048019, at *1. He further believed that JG had
been one of his assailants. Appellant was apparently
hallucinating when he thought he heard JG threaten his life in
the office on March 7, 2007, the day before the attack. Much of
5
United States v. Mott, No. 12-0604/NA
Appellant’s delusion is contained in his original statement to
investigators on March 8, 2007.
At trial, Appellant sought unsuccessfully to suppress his
statement to NCIS asserting that the waiver of his rights was
not knowing and intelligent and therefore invalid because of his
delusional state at the time. During the merits phase of the
trial, the defense called two forensic psychiatrists who
testified regarding their evaluations of Appellant and the
delusional system Appellant had built around himself at the time
of the offense. Each adhered to his view that because of
Appellant’s severe paranoid schizophrenia, Appellant did not
appreciate the wrongfulness of his actions at the time. One
psychiatrist, Dr. Simmer, testified that he was aware that five
other mental health professionals, besides himself, had examined
Appellant, and that he was not aware that any of them had
returned findings inconsistent with his own.
Appellant’s defense at trial was lack of mental
responsibility, and the military judge instructed on this
affirmative defense. 3 During deliberations, one of the members
3
The military judge gave the following instruction:
There are indications from the evidence that you are
required to decide the issue of the accused’s sanity at the
time of the offense.
. . . .
6
United States v. Mott, No. 12-0604/NA
specifically asked, “What is the legal definition of
‘wrongfulness of his conduct?’” Over defense objection, the
military judge instructed the members as follows:
If the accused was able to appreciate the nature, and
quality, and the wrongfulness of (his) conduct, (he) is
criminally responsible; and this is so, regardless of
whether the accused was then suffering from a severe mental
disease or defect, and regardless of whether or not (his)
own personal moral code was violated by the commission of
the offense.
. . . .
When the law speaks of wrongfulness[,] the law does not
mean to permit the individual to be his own judge of what
is right or wrong. What is right or wrong is judged by
societal standards. The standard focuses on the accused’s
ability to appreciate that his conduct would be contrary to
public or societal standards.
The accused is presumed to be mentally responsible. .
. .
If you determine that, at the time of the offenses . . .
the accused was suffering from a severe mental disease
or defect, then you must decide whether, as a result of
that severe mental disease or defect, the accused was
unable to appreciate the nature and quality or
wrongfulness of his conduct.
If the accused was able to appreciate the nature and
quality or the wrongfulness of his conduct, he is
criminally responsible; and this is so regardless of
whether the accused was then suffering from a severe
mental disease or defect.
On the other hand, if the accused had a delusion of
such a nature that he was unable to appreciate the
nature and quality or wrongfulness of his acts, the
accused cannot be held criminally responsible for his
acts, provided such a delusion resulted from a severe
mental disease or defect.
7
United States v. Mott, No. 12-0604/NA
Emphasis added. Defense counsel argued at trial that “the
accused not being able to appreciate it as contrary to public or
societal standards, is not the same thing as the accused not
realizing other people may perceive it as wrong.” Similarly,
before this Court, Appellant asserts that the instruction given
by the military judge provided a purely objective standard for
wrongfulness. He urges this Court to adopt a standard that
incorporates the subjective beliefs of the accused in
determining wrongfulness.
DISCUSSION
I. Jury Instructions on Wrongfulness
The affirmative defense of lack of mental responsibility
requires the accused to prove, by clear and convincing evidence,
that at the time of the offense, (1) the accused suffered from a
“severe mental disease or defect,” and (2) as a result of that
mental disease or defect, the accused was “unable to appreciate”
either (a) the “nature and quality” of his acts, or (b) the
“wrongfulness” of his acts. Uniform Code of Military Justice,
Article 50a, UCMJ, 10 U.S.C. § 850a(a) (2006). Article 50a,
UCMJ, is “substantively identical” to the federal civilian
insanity defense, enacted in the Insanity Defense Reform Act of
1984 (IDRA), Pub. L. No. 98-473, sec. 402, § 20, 1837, 2057
(codified as amended at 18 U.S.C. § 17 (2006)).
8
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This Court previously considered the insanity defense in
United States v. Martin, 56 M.J. 97 (C.A.A.F. 2001). As noted
in Martin, the terms “nature and quality” and “wrongfulness”
were part of the insanity test laid out in M’Naghten’s Case,
(1843) 8 Eng. Rep. 718 (H.L.):
[T]o establish a defence on the ground of
insanity, it must be clearly proved that, at the time
of the committing of the act, the party accused was
labouring under such a defect of reason, from disease
of the mind, as not to know the nature and quality of
the act he was doing; or, if he did know it, that he
did not know he was doing what was wrong.
8 Eng. Rep. at 722 (emphasis added). In Martin, 56 M.J. at 108,
this Court favorably cited the following explanation of “nature
and quality” and “wrongfulness”:
The first portion relates to an accused who is
psychotic to an extreme degree. It assumes an accused
who, because of mental disease, did not know the
nature and quality of his act; he simply did not know
what he was doing. For example, in crushing the skull
of a human being with an iron bar, he believed that he
was smashing a glass jar. The latter portion of
M’Naghten relates to an accused who knew the nature
and quality of his act. He knew what he was doing; he
knew that he was crushing the skull of a human being
with an iron bar. However, because of mental disease,
he did not know that what he was doing was wrong. He
believed, for example, that he was carrying out a
command from God.
2 Charles E. Torcia, Wharton’s Criminal Law § 101, at 17 (15th
ed. 1994).
However, in enacting the IDRA and Article 50a, UCMJ,
Congress sought to broaden the insanity defense test from
9
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M’Naghten’s “know” to the Model Penal Code’s “appreciate.” See
Martin, 56 M.J. at 107-8; United States v. Meader, 914 F. Supp.
656, 658 n.2 (D. Me. 1996); 4 United States v. Freeman, 357 F.2d
606, 623 (2d Cir. 1966) (“The choice of the word ‘appreciate,’
rather than ‘know’ in the first branch of the test also is
significant; mere intellectual awareness that conduct is
wrongful, when divorced from appreciation or understanding of
the moral or legal import of behavior, can have little
significance.”).
The UCMJ does not define “wrongfulness of the acts.” The
meaning of appreciating “wrongfulness” was analyzed at length in
the original M’Naghten’s Case and analyzed more recently in the
4
As explained in Meader:
Congress adopted the language of the Model Penal
Code rather than the M’Naghten rule (“appreciate” vs.
“know”) and thereby broadened the inquiry. Model
Penal Code § 4.01 comment 2 at 166 (“Know” leads to an
excessively narrow focus on “a largely detached or
abstract awareness that does not penetrate to the
affective level.”); S. Rep. No. 307, 97th Cong., 1st
Sess. 100-01 (1981) (Model Penal Code “uses the more
affective term ‘appreciate’ for the more coldly
cognitive ‘know’ of M’Naghten.”), referred to in S.
Rep. No. 225, 98th Cong., 2d Sess. (1984), reprinted
in 1984 U.S.C.C.A.N. 3182, 3404 n.1; accord ABA
Criminal Justice Mental Health Standards 7-6.1 at 343-
44 (1989).
914 F. Supp. at 658 n.2.
10
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context of the IDRA in United States v. Ewing, 494 F.3d 607 (7th
Cir. 2007). Like the court in Ewing, we infer that wrongfulness
carries the same meaning in the IDRA and Article 50a, UCMJ, as
in M’Naghten’s Case and its accompanying common law. See 494
F.3d at 618; NLRB v. Amax Coal Co., 453 U.S. 322, 329 (1981)
(“Where Congress uses terms that have accumulated settled
meaning under either equity or the common law, a court must
infer, unless the statute otherwise dictates, that Congress
means to incorporate the established meaning of these terms.”).
In M’Naghten’s Case, the judges of the Queen’s Bench
responded to the questions of the House of Lords about insanity
and mental responsibility for criminal conduct. The judges
explained that the jury should determine whether, at the time of
committing the alleged act, the accused “knew the difference
between right and wrong . . . in respect to” the charged act. 8
Eng. Rep. at 722-23. The jury instruction is for knowing “right
and wrong” rather than knowing that the act violates the law, so
as to not confuse the jury by suggesting that the accused must
have “actual knowledge of the law of the land.” Id.“Wrongfulness” in the context of the M’Naghten rule thus has two
components: (1) that “the accused was conscious that the act
was one which he ought not to do,” and (2) that the “act was at
the same time contrary to the law of the land.” Id. As Ewing
explains, the “relevant inquiry . . . was not a defendant’s
11
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actual knowledge of the criminal law under which he was accused,
but rather whether the defendant understood the difference
between right and wrong.” Ewing, 494 F.3d at 619. In short:
M’Naghten’s Case demonstrates that “wrongfulness” is
substituted for “criminality” not to create two (or
more) distinct moral codes by which a defendant’s
conduct could be judged, but rather to ensure that the
inquiry remains focused on a defendant’s ability to
understand wrongfulness, rather than his actual
knowledge of the law.
Id. at 620 n.6.
The M’Naghten court also considered the effect of delusions
on mental responsibility. The court explained that a person
under the influence of a delusion “must be considered in the
same situation as to responsibility as if the facts with respect
to which the delusion exists were real.” 8 Eng. Rep. at 723.
For example:
[I]f under the influence of his delusion he supposes
another man to be in the act of attempting to take
away his life, and he kills that man, as he supposes,
in self-defence, he would be exempt from punishment.
If his delusion was that the deceased had inflicted a
serious injury to his character and fortune, and he
killed him in revenge for such supposed injury, he
would be liable to punishment.
Id.On appeal, Appellant challenges the military judge’s
instructions to the members regarding the meaning of
“wrongfulness” for purposes of the defense of lack of mental
responsibility. Appellant urges us to find that “wrongfulness”
12
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in Article 50a, UCMJ, means a subjective wrongfulness as
determined by the accused’s sense of right and wrong. Appellant
finds support in two federal appellate cases -– one of which was
written before the adoption of the IDRA and the other relying
heavily on the former. See United States v. Segna, 555 F.2d
226, 232-33 (9th Cir. 1977) (describing three interpretations of
wrongfulness as (1) “legally wrong, or contrary to law,” (2)
“contrary to public morality,” and (3) “subjective” or “contrary
to one’s own conscience,” and adopting the third “subjective”
test (internal quotation marks omitted)); United States v.
Dubray, 854 F.2d 1099, 1101 (8th Cir. 1988) (“Dubray asked that
the jury be instructed that ‘wrongfulness’ implies moral, rather
than criminal, wrongdoing, and proposed the verdict director
drawing this distinction discussed in [Segna]. Like the Ninth
Circuit, our Court recognizes that a defendant’s delusional
belief that his criminal conduct is morally justified may
establish an insanity defense under federal law, even where the
defendant knows that the conduct is illegal.”).
“Whether a panel was properly instructed is a question of
law” which we review de novo. United States v. Garner, 71 M.J.
430, 432 (C.A.A.F. 2012) (quoting United States v. Ober, 66 M.J.
393, 405 (C.A.A.F. 2008) (internal quotation marks omitted).
As in M’Naghten’s Case, courts examining the issue since
the enactment of the IDRA and Article 50a, UCMJ, have found that
13
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“wrongfulness” should be determined using an objective standard.
See, e.g., United States v. Ewing, 494 F.3d 607, 621 (7th Cir.
2007) (“We conclude that wrongfulness for purposes of the
federal insanity defense statute is defined by reference to
objective societal or public standards of moral wrongfulness,
not the defendant’s subjective personal standards of moral
wrongfulness.”); United States v. Cuebas, 415 F. App’x 390, 396-
97 (3d Cir. 2011) (unpublished) (“The term ‘wrongful’ means
contrary to or against generally-accepted standards of right and
wrong . . . . ‘Evidence that the defendant knew and understood
that his conduct was against the law may be considered . . . in
determining whether the defendant appreciated that his conduct
was contrary to public morality.’”); State v. Singleton, 48 A.3d
285, 295-96 (N.J. 2012) (“[A] majority of states following the
M’Naghten test have interpreted ‘wrong’ as encompassing legal as
well as moral wrong.”); People v. Serravo, 823 P.2d 128, 137
(Colo. 1992) (en banc) (“We believe that the better reasoned
interpretation of ‘wrong’ in the term ‘incapable of
distinguishing right from wrong’ refers to a wrongful act
measured by societal standards of morality.”); see also State v.
Crenshaw, 659 P.2d 488, 493 (Wash. 1983) (“[I]n discussing the
term ‘moral’ wrong, it is important to note that it is society’s
morals, and not the individual’s morals, that are the standard
for judging moral wrong under M’Naghten.”); State v. Hamann, 285
14
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N.W.2d 180, 183 (Iowa 1979) (“Those states which believe the
right or wrong test should be conducted with a view to moral
right or wrong are quite uniform in rejecting a subjective
test.”); State v. Corley, 495 P.2d 470, 473 (Ariz. 1972) (“We
find no authority upholding the defendant’s position that one
suffering from a mental disease could be declared legally insane
if he knew that the act was morally and legally wrong but he
personally believed that act right.”); People v. Rittger, 355
P.2d 645, 653 (Cal. 1960) (“The fact that a defendant claims and
believes that his acts are justifiable according to his own
distorted standards does not compel a finding of legal insanity.
This is necessarily so if organized society is to formulate
standards of conduct and responsibility deemed essential to its
preservation or welfare, and to require compliance, within
tolerances, with those standards.”).
Society formally expresses its determinations of “right and
wrong” and “public morality” through law. See State v. Worlock,
569 A.2d 1314, 1321 (N.J. 1990) (“Law is largely the
crystallization of societal morals. Rarely would an allegedly
illegal act not also be wrongful morally.”). Thus, wrongfulness
is based on the law, even if it does not require the accused to
have actual knowledge of the law. 5 While “appreciate” is
5
The Supreme Court of New Jersey in Worlock and other courts
have considered whether there is a difference between legal and
15
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subjective, “wrongfulness” must be objective. Cf. State v.
Cole, 755 A.2d 202, 210-11 (Conn. 2000) (noting that the issue
in the case was not whether the homicide was wrongful, but
rather whether the accused failed to understand it to be
wrongful). Thus, “appreciating wrongfulness” is the accused’s
ability to understand and grasp that his conduct violates
society’s essential rules, and is supported by an accused’s
understanding that his conduct violated the law, and is
contradicted by evidence that -- if the facts of the accused’s
delusions were true -- then his conduct would not violate the
law.
Therefore, like the majority of federal and state appellate
courts who have addressed the issue, we adopt an “objective”
standard for determining “wrongfulness” 6 in the context of
moral wrong for the purpose of applying the insanity defense.
569 A.2d at 1320-21; see also People v. Schmidt, 110 N.E. 945,
949-50 (N.Y. 1915). The Worlock court concluded that the only
generally recognized distinction is the “command from God”
exception. 569 A.2d at 1321. However, like the Worlock court,
we need not ultimately define the distinction, if any, between
legal and moral wrong, as in this case Appellant argued that he
acted in perceived self-defense, and that Appellant’s mental
illness prevented him from appreciating that the attempted
killing was wrongful in any sense.
6
While the issue on appeal in this case is the standard for
“wrongfulness,” it is important to note that the defense of
mental responsibility turns on the accused’s ability to
appreciate the nature and quality or wrongfulness of his
actions. See Martin, 56 M.J. at 107-09. Thus while
wrongfulness is determined objectively, the determination of the
16
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Article 50a, UCMJ. Thus, the military judge correctly
instructed the members when he stated that wrongfulness “is
judged by societal standards,” rather than the accused’s “own
personal moral code,” and that the “standard focuses on the
accused’s ability to appreciate that his conduct would be
contrary to public or societal standards.” We hold that the
military judge did not err in providing an objective standard
for wrongfulness in his jury instructions regarding the
affirmative defense of lack of mental responsibility.
II. Knowing and Intelligent Waiver
The issue here is whether Appellant knowingly and
intelligently waived his Fifth Amendment and Article 31, UCMJ,
rights to counsel. Appellant argues that Appellant’s severe
mental disease prevented him from knowingly and intelligently
waiving his right to counsel. The Government argues that the
evidence shows by a preponderance of the evidence that Appellant
sufficiently understood his rights at the time of the waiver.
Without deciding whether Appellant knowingly and intelligently
waived his right to counsel, we hold that the military judge
abused his discretion by failing to analyze as a matter of law
whether Appellant could and did knowingly and intelligently
waive his rights. Colorado v. Connelly, 479 U.S. 157, 168,
accused’s ability to “appreciate” that wrongfulness is
necessarily specific to that accused.
17
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(1986), focuses on whether a statement is voluntary and in
particular the product of police coercion, which the military
judge addressed. Edwards, however, requires that a waiver of
rights be knowing and intelligent, and not merely voluntary.
See 451 U.S. at 484.
A. Appellant’s Suppression Hearing
Before trial, Appellant moved to suppress the statement he
gave to NCIS. At the ensuing hearing, the Government called
Special Agent Jonathan Oakes, one of two NCIS agents who took
Appellant’s statement. The defense called Dr. Sadoff, a
psychiatrist who had reviewed Appellant’s history and was
recognized by the court as an expert in forensic psychiatry.
The court also considered Appellant’s signed statement, waiver
of rights form, and the video from the last hour and fifteen
minutes of the four-and-a-half-hour interrogation. 7
1. Special Agent Oakes’s Testimony
Oakes testified that he interviewed Appellant with another
unarmed agent in an NCIS office. Appellant signed the standard
rights waiver form. Oakes interviewed Appellant, then typed
Appellant’s statement and let Appellant review the statement.
Appellant reviewed the statement and made some changes. The
7
Appellant arrived at the interview room at 11:00 a.m. and was
advised of his rights at 12:10 p.m. NCIS did not start
recording the interview until over three hours later, at 3:36
p.m., at which point most of the statement was already written.
The video recording ends at 4:50 p.m.
18
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statement followed a standard template. Appellant appeared
alert and sober, and was offered breaks and snacks.
Oakes testified that Appellant gave a number of bizarre
statements during the interrogation. For example, Appellant
told the agents that when he was thirteen years old, Special
Forces troops kidnapped him in the Bronx and broke his neck.
Appellant also described his connection to the terrorist
Zacarias Moussaoui and claimed that he had spoken with
Presidents Clinton and Bush.
Oakes did not believe Appellant’s “bizarre” statements.
Oakes was not surprised when Appellant stated that he was of
“sound mind and body,” because Oakes had experience with
mentally ill persons and understood that they sometimes do not
recognize that they are ill.
When asked by defense counsel, Oakes at first denied that
Appellant’s interview was videotaped because of Appellant’s
bizarre statements and behavior, and instead attributed the
videotaping to the “growing CSI effect.” On further probing,
Oakes stated that at the time of Appellant’s interview: NCIS’s
policy was to not videotape interviews; that he had previously
interviewed other suspects of aggravated assault and attempted
murder; and that he had never -- in over two hundred suspect
interviews -- recorded an interrogation other than that of
Appellant. In Appellant’s case, Oakes was specifically
19
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instructed by his supervisor to videotape part of the interview.
The military judge found that “[t]he later portion of SN Mott’s
interrogation was recorded on video due to the bizarre nature of
his initial statements.”
2. Interrogation Statement and Video
In conjunction with Oakes’s testimony, the Government
presented Appellant’s signed statement and the videotape of
approximately one hour of Appellant’s interrogation.
The statement described Appellant’s account of the events
leading up to the attack, the attack itself, the alleged rape by
JG and others in 2003, and a previous unrelated alleged rape. 8
Appellant described hearing JG say “he was ‘going to have to
kill MOTT’” and his family. Appellant considered asking someone
for a gun, but “thought it might cause a confrontation or
someone would question why I wanted the gun.” Instead,
Appellant “purchased the knife for protection.” Appellant saw
JG again the next morning, poured a glass of water, approached
JG, and stabbed him. The statement then describes Appellant’s
intent:
When I heard [JG]’s voice, on 07Mar07, I immediately
knew I wanted to kill him. I purchased the knife
8
Appellant never “actually met or had dealings with the victim
[JG] prior to the attack” on March 8, 2007. Mott, 2009 CCA
LEXIS 424, at *4, 2009 WL 4048019, at *1 (N-M. Ct. Crim. App.
Nov. 24, 2009). The rape delusion which Appellant tragically
assigned to JG appears to be only one of several rape delusions
that Appellant experienced.
20
United States v. Mott, No. 12-0604/NA
knowing I wanted to kill him. When I was “hitting”
[JG], I wanted him to die. If [JG] does not die, then
he still will be a threat to my life. I believe this
was divine intervention. God placed us on the ship
together so justice could be served.
The statement devotes just as much space to meticulous
descriptions of Appellant’s perceived previous rapes. According
to the statement, Appellant was with his girlfriend MQ in 2003
when she breathed a drug into him, “several unknown males (one
of which being [JG]) jumped out of the closet,” the males then
“shoved an unknown liquid (contained in a zip-lock bag) and a
powder (contained in a second bag) up my anus,” turned the bags
inside out, and then “cut inside my anus with small plastic
pieces.” The statement alleges that JG was part of a team of
about fifteen people involved in the assault. The statement
also describes a previous incident in which Appellant’s
girlfriend “drugged me with an unknown drug,” Appellant “passed
out,” and during that time “unknown girls in the apartment were
putting drugs up my ass, then removing them and selling them.”
The video starts approximately three hours into the
interrogation, after most of the statement was already written.
The video also contains a number of extraordinary statements.
In one exchange, Appellant asserts that he was looking into
buying psychedelic mushroom spores so that he could give the
mushrooms to a hospital. The agent responds that you cannot
sell psychedelic mushrooms to a hospital, Appellant considers a
21
United States v. Mott, No. 12-0604/NA
moment, and then responds that he will just build his own
hospital then. Later, when the agent asks Appellant to confirm
that the written statements are his thoughts, Appellant does not
contest the account of the attempted murder but instead exhorts
the agent, “Did we put the part in there about the bag?” When
the agent asks if Appellant wanted to kill everyone involved in
his alleged rape, Appellant considers the question and in
seriousness notes that “I mean, everybody dies, unless they are
immortal or something, which is a possibility,” but that he
wanted to see his assailants “killed or in jail forever.” The
agent suggests “brought to justice” and Appellant responds
“that’s even better.” Appellant seemed to waver between whether
he wanted JG dead, in jail, or simply no longer a danger to him.
Appellant similarly wavered between whether, during the alleged
2003 rape by JG and others, JG and the other assailants had
actually killed Appellant (he was later “zapped back up”) or
whether Appellant only feigned death. 9
9
The written statement also contradicts itself. At first, it
states that Appellant “was able to fight [the assailants] off”
and saw them leaving “because of a reflection in the mirror
while crawling to the toilet.” Later in the same paragraph, the
statement indicates that “[JG] put a bag over my face during the
incident and . . . I played dead until they left the room and
then wiggled the bag off my head.” Thus, Appellant apparently
believed, at different times in the interview, that he had
either: (1) fought off his attackers and seen them leaving; (2)
played dead and once the assailants left removed the bag from
his head; or (3) temporarily died.
22
United States v. Mott, No. 12-0604/NA
3. Dr. Sadoff’s Expert Opinion Regarding Waiver
Dr. Sadoff testified that Appellant was not competent to
waive his right to remain silent:
Q: Now, Doctor, in your expert medical opinion, would
Seaman Mott have been competent to understand the
waiver of his rights to remain silent, and the full
consequence of waiving those rights?
A: In my opinion, he would not have been because he
was so psychotic with delusional carryover, and
hallucinations that were ongoing at the time, that he
[sic] could have prevented him from fully appreciating
and understanding the implications and consequences of
waiving his rights and making a statement.
Dr. Sadoff explained “competency” as: a person who “knows and
understands the nature and consequences of the legal situation
in which he is involved, really, the consequences of making
statements, appreciating them, from not only an intellectual,
but also an emotional point of view.” While Appellant appeared
to be acting logically, his psychotic state prevented him from
emotionally appreciating what he was doing. Moreover, while
Appellant was able to answer questions, much of what Appellant
said was “bizarre and delusional,” “reflecting [the]
hallucinations that [Appellant] was having.”
Dr. Sadoff explained how psychosis affects a person’s
thinking. According to Dr. Sadoff, psychosis affects how a
person “intellectually, cognitively, and also emotionally”
understands “everything that goes into the brain.” Dr. Sadoff
testified that, as a result, “psychosis affects a person’s
23
United States v. Mott, No. 12-0604/NA
judgment, affects his thinking, [and] affects his reaction.”
Dr. Sadoff explained that “[p]sychotic people have different
ways of looking at things, and they do things that may appear to
be logical but, in their own [mind] -- if you probe even
further, and get below the surface of that paralogic, I think
you will find a whole set of psychotic bizarre ideas.”
With regard to Appellant in particular, the Government
asked Dr. Sadoff during cross-examination whether Appellant’s
psychosis “prevent[ed] him from understanding the consequences
of waiving his rights to remain silent.” Dr. Sadoff testified
that “it did, because he was so certain about what he did and
why he did it, even though his reasons were based on psychotic
delusions and hallucinations.” Dr. Sadoff asserted that
Appellant’s evolving and contradictory stated reasons for his
actions were not the result of an awareness of how his conduct
might be perceived, but rather are typical of psychotic persons
and “reflected [Appellant’s] degree of confusion, and his
psychotic state of mind.” Dr. Sadoff concluded that “it was
[Appellant’s] paranoia that caused him to make these
adjustments, not logical concern about how it would look.”
On the other hand, Dr. Sadoff also testified that “even
people who are psychotic and paranoid have an awareness and an
intellectual ability to understand and be aware of the reality
of what they may do, and its effect on other people.” Thus,
24
United States v. Mott, No. 12-0604/NA
even though Appellant was psychotic, Appellant knew that asking
for a gun would raise suspicions.
4. Military Judge’s Findings
In his ruling, the military judge did not address Dr.
Sadoff’s testimony, but apparently rejected it in finding (as a
finding of fact, not law) that Appellant “knowingly,
intelligently, and voluntarily waived his rights.” The military
judge found that the “accused’s memory and thought processes
were functioning” during the interrogation and that “[t]he
accused gave, although bizzare [sic] in content, logical answers
to the questions that were asked.”
a. Abuse of Discretion
“We review a military judge’s decision to deny a motion to
suppress evidence -- like other decisions to admit or exclude
evidence -- for an abuse of discretion.” United States v.
Freeman, 65 M.J. 451, 453 (C.A.A.F. 2008) (citing United States
v. Ayala, 43 M.J. 296, 298 (C.A.A.F. 1995)). “An abuse of
discretion occurs when the trial court’s findings of fact are
clearly erroneous or if the court’s decision is influenced by an
erroneous view of the law.” Freeman, 65 M.J. at 453 (citing
United States v. Rader, 65 M.J. 30, 32 (C.A.A.F. 2007)).
“Further, the abuse of discretion standard of review recognizes
that a judge has a range of choices and will not be reversed so
long as the decision remains within that range.” United States
25
United States v. Mott, No. 12-0604/NA
v. Gore, 60 M.J. 178, 187 (C.A.A.F. 2004). In certain cases,
even when “the evidence in [the] record may well have supported
the [military judge’s] decision,” the military judge may
nonetheless have abused his discretion where the military
judge’s ruling was based on a “misapprehension of the applicable
law” and the military judge’s findings failed to address the
relevant considerations. United States v. Cokeley, 22 M.J. 225,
229 (C.M.A. 1986).
b. Right to Counsel
“[T]he accused’s statement during a custodial
interrogation 10 is inadmissible at trial unless the prosecution
can establish that the accused in fact knowingly and voluntarily
waived Miranda rights.” Berghuis v. Thompkins, 130 S. Ct. 2250,
2260 (2010) (emphasis added) (internal quotation marks and
brackets omitted); M.R.E. 305 (g)(1) (waiver of the right to
counsel “must be made freely, knowingly, and intelligently”);
see also United States v. Westmore, 17 C.M.A. 406, 409-10, 38
C.M.R. 204, 207-08 (1968) (“If the interrogation continues
10
Consistent with our precedents, we note that in the military
system the accused’s right to counsel -- and the requirement of
knowing and voluntary waiver -- are not limited to custodial
interrogation. See United States v. Delarosa, 67 M.J. 318, 320
(C.A.A.F. 2009) (“Military officials and civilians acting on
their behalf are required to provide rights warnings prior to
interrogating a member of the armed forces if that servicemember
is a suspect, irrespective of custody. Article 31(b), UCMJ, 10
U.S.C. § 831(b) (2000); Military Rule of Evidence (M.R.E.)
305(b)(1), 305(c).”).
26
United States v. Mott, No. 12-0604/NA
without the presence of an attorney and a statement is taken, a
heavy burden rests on the government to demonstrate that the
defendant knowingly and intelligently waived his privilege
against self-incrimination and his right to retained or
appointed counsel.” (quoting Miranda v. Arizona, 384 U.S. 436,
475 (1966) (internal quotation marks omitted)). Voluntariness
of consent and knowing waiver are two distinct and “discrete
inquiries.” Edwards v. Arizona, 451 U.S. 477, 484 (1981).
Thus, in addition to showing that the waiver was “voluntary in
the sense that it was the product of a free and deliberate
choice rather than intimidation, coercion, or deception,”
Thompkins, 130 S. Ct. at 2260 (quoting Moran v. Burbine, 475
U.S. 412, 421 (1986)) (internal quotation marks and brackets
omitted), the government must also demonstrate that the accused
“understood his right to counsel and intelligently and knowingly
relinquished it.” Edwards, 451 U.S. at 484.
The accused has to have “full awareness of both the nature
of the right being abandoned and the consequences of the
decision to abandon it.” Thompkins, 130 S. Ct. at 2260.
However, “[t]he Constitution does not require that a criminal
suspect know and understand every possible consequence of a
waiver of the Fifth Amendment privilege.” Colorado v. Spring,
479 U.S. 564, 574 (1987). In other words, the accused must
“fully understand[] the nature of the right and how it would
27
United States v. Mott, No. 12-0604/NA
likely apply in general in the circumstances -- even though the
defendant may not know the specific detailed consequences of
invoking it. A defendant, for example, may waive his right to
remain silent . . . even if the defendant does not know the
specific questions the authorities intend to ask.” United
States v. Ruiz, 536 U.S. 622, 629-630 (2002). The analysis
should take into account the accused’s “age, experience,
education, background, and intelligence, and [his] capacity to
understand the warnings given him, the nature of his Fifth
Amendment rights, and the consequences of waiving those rights.”
Fare v. Michael C., 442 U.S. 707, 725 (1979). The government
must show waiver by a preponderance of the evidence. Thompkins,
130 S. Ct. at 2261. (citing Colorado v. Connelly, 479 U.S. 157,
168 (1986)).
In sum, there are two branches to the waiver analysis.
First, was the waiver voluntary? And, second, was the waiver
knowing and intelligent? Edwards, 451 U.S. at 483-84. Mental
illness does not make a statement involuntary per se. See
Connelly, 479 U.S. at 170 (holding that the unprovoked
confession of a schizophrenic experiencing command
hallucinations by the “voice of God” was not involuntary).
Voluntariness “depend[s] on the absence of police overreaching.”
Connelly, 479 U.S. at 170. Regardless of the accused’s mental
state, a confession will not be suppressed for involuntariness
28
United States v. Mott, No. 12-0604/NA
absent “coercive police activity.” Id. at 167. See also United
States v. Campos, 48 M.J. 203 (C.A.A.F. 1998) (confession not
involuntary where the accused was interrogated in the hospital
and, unbeknownst to the officers, was under the influence of
codeine). If volition were the sole issue in this case, then
Connelly would control.
Edwards clearly requires that the judge analyze whether the
waiver was knowing and intelligent. However, it is not clear in
the context of mental illness what this really means. While the
Supreme Court and this Court have declined to find confessions
involuntary absent government coercion, see Connelly, 479 U.S.
at 167 (spontaneous confession of a psychotic experiencing
command hallucinations); Campos, 48 M.J. at 204 (confession of
accused under influence of codeine), neither has addressed the
effect of mental illness on the requirement that waiver be
knowing and intelligent. See Campos, 48 M.J. at 207 n.1 (“We
need not decide today whether a mentally impaired person can
waive his or her rights under Article 31.”). Connelly
explicitly did not address a situation in which the accused’s
mental illness affected his ability to understand his rights:
Dr. Metzner testified that, in his expert opinion,
respondent was experiencing “command hallucinations.”
This condition interfered with respondent’s
“volitional abilities; that is, his ability to make
free and rational choices.” Ibid. Dr. Metzner
further testified that Connelly’s illness did not
significantly impair his cognitive abilities. Thus,
29
United States v. Mott, No. 12-0604/NA
respondent understood the rights he had when Officer
Anderson and Detective Antuna advised him that he need
not speak.
479 U.S. at 161 (emphasis added) (citations omitted). Nor did
Connelly address situations where the police know the defendant
is mentally ill. See 479 U.S. at 161 (neither police officer
“perceived [any] indication whatsoever that respondent was
suffering from any kind of mental illness”).
The military judge’s analysis does not address the issue of
knowing and intelligent waiver, but rather focuses solely on the
question of voluntariness. This is despite the fact that
Appellant’s suppression motion was based on knowing and
intelligent waiver, and not voluntariness. The ruling, for
example, states that Appellant moved to suppress his statements
“because the accused was mentally ill at the time of the
statements, making them involuntary.” The only mention of
knowing and intelligent waiver in the ruling appears in the
findings of fact, which concluded that “[t]he accused knowingly,
intelligently, and voluntarily waived his rights.” Thus, the
findings do not address the uncontested expert testimony. In
fairness, the Edwards test as applied in the context of mental
illness has not been articulated in military jurisprudence. The
military judge did find a number of facts that would support a
30
United States v. Mott, No. 12-0604/NA
legal finding of knowing and intelligent waiver; 11 however, these
facts were not discussed or explicitly analyzed and applied to a
finding of law.
As a result, the military judge abused his discretion in
his analysis. The military judge did not apply the Edwards
framework, which requires a separate analysis of voluntary
waiver and knowing and intelligent waiver. As stated in
Edwards:
[I]n denying petitioner’s motion to suppress, the
trial court found the admission to have been
“voluntary” without separately focusing on whether
[Appellant] had knowingly and intelligently
relinquished his right to counsel. . . . Here, however
sound the conclusion of the state courts as to the
voluntariness of [Appellant’s] admission may be, . . .
the trial court . . . [did not] undert[ake] to focus
on whether [Appellant] understood his right to counsel
and intelligently and knowingly relinquished it. It
is thus apparent that the decision below misunderstood
the requirement for finding a valid waiver of the
right to counsel . . . .
Edwards, 451 U.S. at 483-84.
The military judge also erred when he addressed whether
Appellant’s waiver was knowing and intelligent solely as a
conclusory finding of fact, rather than as a conclusion of law.
11
For example, the military judge found that “it was clear to the
court that the accused understood the consequences of talking to
the agents,” and that “[i]t was very clear that the accused
contemplated how what he said in his written statement and how
it was recorded in his written statement would be perceived by
others and how it would affect his future and the handling of
any charges.”
31
United States v. Mott, No. 12-0604/NA
See United States v. Freeman, 65 M.J. 451, 453 (C.A.A.F. 2008)
(citing Arizona v. Fulminante, 499 U.S. 279, 287 (1991)).
Moreover, while there were facts that supported a finding
of knowing and intelligent waiver, the military judge did not
address how the accused’s waiver was knowing and intelligent in
the context of: (1) the Edwards requirement of distinct
inquiries into both knowing and voluntary waiver, 451 U.S. at
483-84, and Connelly’s limited holding as applying only to
voluntariness, 479 U.S. at 164; (2) the uncontested testimony of
the sole expert witness that Appellant’s mental illness
prevented him from understanding his rights, (3) the R.C.M. 706
board’s conclusion, only a few weeks after Appellant’s
interrogation, that Appellant suffered from severe paranoid
schizophrenia and was not competent to understand the nature of
the proceedings against him, cf. Connelly 479 U.S. at 173(Stevens, J., concurring in the judgment in part and dissenting
in part) (“Since it is undisputed that respondent was not then
competent to stand trial, I would also conclude that he was not
competent to waive his constitutional right to remain silent.”);
and (4) Appellant’s persecutory delusions, including the
“grandiose paranoid ideation” that Appellant would go to jail
for nine years and serve six, just as he believed that Andrew
Carnegie had done.
32
United States v. Mott, No. 12-0604/NA
We find that the military judge abused his discretion by
not separately analyzing whether Appellant’s waiver was knowing
and intelligent. Therefore, we do not reach a conclusion as to
whether the confession in this case could be admissible -- only
that it was not properly admitted in this case.
We now review whether the erroneous admission of
Appellant’s confession was harmless beyond a reasonable doubt.
III. Harmless Error
Constitutional errors are reviewed for harmlessness beyond
a reasonable doubt. United States v. Paige, 67 M.J. 442, 449
(C.A.A.F. 2009) (constitutional error affecting accused’s
affirmative defense reviewed for harmlessness beyond a
reasonable doubt). The admission of the statement and
interrogation video are not harmless beyond a reasonable doubt
if “‘there is a reasonable possibility that the evidence
complained of might have contributed to the conviction.’”
United States v. Moran, 65 M.J. 178, 187 (C.A.A.F. 2007)
(quoting Chapman v. California, 386 U.S. 18, 24 (1967)). “This
determination is made on the basis of the entire record, and its
resolution will vary depending on the facts and particulars of
the individual case.” United States v. Sweeney, 70 M.J. 296,
306 (C.A.A.F. 2011) (quoting United States v. Blazier, 69 M.J.
218, 226-27) (C.A.A.F. 2010).
33
United States v. Mott, No. 12-0604/NA
Erroneous admission of a confession “requires a reviewing
court to exercise extreme caution before determining that the
admission of the confession at trial was harmless.” Arizona v.
Fulminante, 499 U.S. 279, 296; see also id. (“[T]he admissions
of a defendant come from the actor himself, the most
knowledgeable and unimpeachable source of information about his
past conduct . . . . [A] full confession in which the defendant
discloses the motive for and means of the crime may tempt the
jury to rely upon that evidence alone in reaching its
decision.”); United States v. Ellis, 57 M.J. 375, 381 (C.A.A.F.
2002) (“[T]he defendant's own confession is probably the most
probative and damaging evidence that can be admitted against
him.”).
We find that the improper admission of Appellant’s
statement and interrogation was not harmless beyond a reasonable
doubt due to its potential effect on Appellant’s affirmative
defense of not guilty by reason of insanity. The Government
relied on Appellant’s statement to show that Appellant, though
severely mentally ill, appreciated the wrongfulness of his
actions. As demonstrated by the Government’s closing argument,
trial counsel used Appellant’s statement extensively to support
the theory that Appellant intended to kill JG out of revenge,
not self-defense.
34
United States v. Mott, No. 12-0604/NA
The Government’s closing slide presentation clearly and
visually demonstrated trial counsel’s extensive use of
Appellant’s statement. For example, trial counsel’s first
slide, titled “Revenge – Justice,” quotes Appellant’s statement
in bold letters:
● “I poured myself a drink of water, then walked over to
[JG] from behind to kill him. I took out my knife from my
pocket, opened it, and placed it in my right hand to cut
[JG]. (Acc hand-wrote) I wanted justice upheld and knew I
was the one to do it because he raped me.” (acc stmt)
● “God placed us on the ship together so justice could be
served”. (acc stmt)
Appellant quotes the same statement in the slide addressing the
Appellant’s appreciation of the wrongfulness of his acts.
The Government’s closing argument repeatedly exhorted the
members to look at Appellant’s statement and video. See, e.g.,
Record at 527, United States v. Mott, __ M.J. __ (C.A.A.F. 2013
(No. 12-0604) (“Revenge and justice. You heard directly from
the accused’s statements that this is what he sought with the
attack of Seaman Recruit JG. The first statement from the
accused’s hand-written statement, describing exactly what he did
. . . . ”); id. (“And then, members, remember, and you have
copies of the statement, he hand-wrote . . . .”); id. at 538(“He wasn’t completely out of his mind. He read that statement.
He agreed to that statement, and you saw that yourself, in the
video.”); id. at 539 (“It’s in the video, members, and you can
35
United States v. Mott, No. 12-0604/NA
watch that again.”); id. at 540 (“Again, he never mentioned to
NCIS that he was acting out of self-defense. Look at his words
again, justice, and knowing he wanted to kill him. There’s no
self-defense in there. And again, those statements were taken
the day that the attack happened.”); id. at 558 (“Look through
this statement, and look through the video, because, yeah, he
doesn’t say ‘self-defense’ . . . .”).
We find that there is “a reasonable possibility” the
inclusion of Appellant’s statement might have prejudiced
Appellant’s affirmative defense. 12 See Moran, 65 M.J. at 187.
We reach this conclusion because arguably the statement
contradicted Appellant’s theory that Appellant was unable to
appreciate the wrongfulness of his actions. Under the defense
theory, Appellant’s schizophrenia not only made him think that
JG was the gang leader who previously raped and tried to kill
him and now was back to kill him, but also that he faced
imminent death and had no option but to kill JG. Even if a
rational person would have understood that he could report JG to
the authorities or run away, Appellant asserted that he was
12
As noted above, the effect of a constitutional error on an
accused’s affirmative defense is reviewed to see if the error
was harmless beyond a reasonable doubt. See United States v.
Paige, 67 M.J. 442, 451 (C.A.A.F. 2009).
36
United States v. Mott, No. 12-0604/NA
unable to process these options like a rational person, 13 and
therefore was unable to appreciate that he was not acting in
self-defense by attacking JG -- that is, Appellant was unable to
appreciate that attacking JG was wrongful. Without Appellant’s
statement, the Government still could argue based on the R.C.M.
706 board’s finding that Appellant believed he would go to jail
(suggesting appreciating wrongfulness); and that Appellant did
not face imminent attack (suggesting wrongfulness); and that
Appellant screamed “you raped me” and not “you won’t kill me”
(suggesting Appellant’s actions were not in self-defense).
However, the strongest Government argument and central trial
theory of revenge is significantly weakened.
There is clearly a “reasonable possibility that the
evidence complained of,” here Appellant’s confession, “might
have contributed to [Appellant’s] conviction.” See United
States v. Paige, 67 M.J. 442, 451 (C.A.A.F. 2009) (quoting
Moran, 65 M.J. at 187. Therefore, the erroneous admission of
Appellant’s statement was not harmless.
13
Moreover, defense counsel argued that Appellant’s previous
complaints to the authorities had only drawn scorn and derision
and therefore reporting JG to his superiors would not help his
situation, and that since Appellant believed God to have put him
on the ship with JG, it would be futile to run. This argument
is consistent with the findings of the R.C.M. 706 board.
37
United States v. Mott, No. 12-0604/NA
DECISION
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is reversed. The findings of guilty and the
sentence are set aside. The record of trial is returned to the
Judge Advocate General of the Navy for remand to an appropriate
convening authority. A rehearing is authorized.
38