United States v. Caldwell

70 M.J. 630, 2011 CCA LEXIS 373, 2011 WL 6780742

• Court: Navy-Marine Corps Court of Criminal Appeals
• Decided: December 27, 2011
• Docket: NMCCA 201000557
• Status: Published

Opinions

PUBLISHED OPINION OF THE COURT

BEAL, Judge:

A military judge sitting as a special court-martial convicted the appellant, pursuant to his pleas, of orders violations, larceny, and wrongful self-injury in violation of Articles 92, 121, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 892, 921, and 934. The military judge also convicted the appellant, contrary to his pleas, of a separate order violation for wrongfully possessing “spice.” The convening authority approved the adjudged sentence of confinement for 180 days and a bad-conduct discharge. A panel of this court previously reviewed the case and issued an unpublished opinion. United States v. Caldwell, No. 201000557, 2011 WL 5547456, 2011 CC LEXIS 181, unpublished op. (N.M.Ct.Crim.App. 15 Nov. 2011). Upon release of the previous opinion, we sua sponte ordered en banc reconsideration.

The appellant assigns five errors: 1) the military judge abused his discretion in accepting the appellant’s plea to self-injury; 2) the military judge abused his discretion by not ordering a mental examination of the appellant; 3) the evidence is factually insufficient to sustain the conviction for the contested order violation; 4) the military judge abused his discretion in accepting the appellant’s plea to larceny; and 5) the appellant did not voluntarily enter into a pretrial agreement. After careful consideration of the record and the parties’ pleadings, we find no error materially prejudicial to the appellant’s substantial rights has occurred and we affirm the findings and the sentence. Arts. 59(a) and 66(c), UCMJ.

Self-Injury

The appellant was alone in his barracks room, located in Camp Schwab, Okinawa, when he intentionally cut open his wrists with a razor blade, leaving a trail of blood on the barracks floor. Record at 88, 92, 96. At the time of his self-injury, the appellant was in a highly distraught state having just learned that he was being ordered back into pretrial confinement.¹ Gunnery Sergeant (GySgt) C, one of the staff noncommissioned officers in the appellant’s unit, informed the appellant he was going back to the brig and allowed the appellant the privacy to call his parents from his barracks room before processing the appellant for confinement. Moments later, GySgt C returned to the room and discovered the appellant in his injured state. Id. at 92-93, 96. GySgt C administered immediate first aid by wrapping socks around the appellant’s wounds and then called for the assistance of eorpsmen, who responded with their medical kits. Id. at 92-93. After the appellant received acute care for his self-inflicted injuries, he was kept for a day in the base hospital’s psychiatric ward for observation before being placed into pretrial confinement. Id. at 103.

The undeveloped facts in this guilty plea indicate the self-injury was a genuine suicide attempt which was precipitated by the appellant receiving two pieces of bad news: 1) the death of a close friend who had just returned home after being discharged, and 2) his commanding officer was ordering him back into pretrial confinement. These two events constituted what the appellant considered the “last straw” in a recent series of emotional hardships which ranged from the deaths of several family members to a variety of personal problems the appellant was having in his unit.

Another matter, which may have been a contributing factor leading to the appellant’s actions, was the fact that the appellant had been treated for depression, post-traumatic stress disorder, and an unspecified personality disorder. Id. at 94-95. Part of his treatment included a prescription to a number of medications, including “Zoloft.” Id. at 95. According to the appellant, the medications might have been the cause for seizures and brain hemorrhages which caused the appellant to stop taking his medication approximately two weeks before the self-injury. Id. Notwithstanding these issues, the appellant disavowed any severe mental disease or defect at the time of his offense. Id. at 97-98. Likewise, the appellant’s defense counsel, who had a long-standing relationship with the appellant as he had represented him on other legal assistance and military justice matters, was convinced that an inquiry into the appellant’s mental responsibility or capacity was not warranted under RULE FOR COURTS-MARTIAL 706, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2008 ed.). Id. at 97.

The assigned error in regard to the self-injury specification seeks relief under the theory that prosecution of a genuine suicide attempt ought to be prohibited under public policy reasons. In our previous opinion, the court found that there was substantial basis in fact to question the plea to self-injury, i.e. there was not a factual basis in the record to support the terminal element.

The appellant pled guilty under both a clause 1 and clause 2 theory of culpability, 1.e., that his self-injury was: 1) an act prejudicial to good order and discipline (clause 1) and 2) conduct of a nature to bring discredit upon the armed forces (clause 2). We are satisfied the appellant adequately provided a factual and legal basis that his self-injury was prejudicial to good order and discipline under clause 1 at a minimum. There is no dispute that the appellant intentionally cut both of his wrists with a razor blade. By cutting himself, the appellant caused a disorder in the barracks. He needlessly exposed GySgt C to his bodily fluids and he caused eorpsmen to respond with their medical kits, presumably expending medical supplies in the process. Furthermore, the appellant did not go into pretrial confinement as ordered by his commanding officer; instead, he was transported to the hospital where he received acute medical care followed by treatment in the psychiatric ward for one day. The appellant himself stated that the impact of his actions on his fellow Marines was palpable by the way they acted around him after he returned to the unit. Accordingly, we find no substantial basis in law or fact to question the appellant’s plea.²

As to the public policy argument, we are not persuaded that criminal prosecution of genuine suicide attempts should be prohibited under military law. As both parties note in their briefs, self-injury has long been a chargeable offense in military jurisprudence. We consider the analyses provided by the Court of Military Appeals in United States v. Ramsey, 40 M.J. 71, 75 (C.M.A.1994), and in United States v. Taylor, 38 C.M.R. 393, 395, 1968 WL 5427 (C.M.A.1968) dispositive on the matter.

The decision to prosecute what could be viewed as a bona fide suicide attempt is a matter left to the convening authority’s unfettered discretion. Conceivably, some instances of self-injury or malingering could be concealed in the guise of a sincere suicide attempt. If a convening authority feels it necessary to resort to court-martial to address this type of a leadership challenge, he or she should be allowed to do so, at least until the executive or legislative branches of government have proscribed this approach by law or regulation.

Inquiry into the Mental Capacity or Mental Responsibility of the Accused

A military judge’s decision to accept a guilty plea is reviewed for an abuse of discretion and questions of law arising from the guilty plea are reviewed de novo. United States v. Riddle, 67 M.J. 335, 338 (C.A.A.F.2009) (citations omitted). In light of the public attention paid to the possible link between suicide and certain prescription antidepressants, and considering the fact that the appellant was using this type of medication over a period of time preceding his self-injury, the only aspect about this guilty plea which causes us to pause is whether the military judge abused his discretion by accepting the appellant’s pleas without ordering an R.C.M. 706 inquiry. After careful consideration of this record, we find that he did not.

Military appellate courts will only set aside a guilty plea when there is a substantial basis in law or fact to do so. United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F.2008). A substantial conflict between the appellant’s plea and the evidence of the record is a sufficient basis to set aside the guilty plea. Riddle, 67 M.J. at 338. “Should the accused’s statements or material in the record indicate a history of mental disease or defect on the part of the accused, the military judge must determine whether that information raises either a conflict with the plea and thus the possibility of a defense or only a ‘mere possibility’ of conflict.” Id. (quoting United States v. Shaw, 64 M.J. 460, 462 (C.A.A.F.2007)). If the military judge determines the information presented on the record only raises a mere possibility of a conflict, then no further inquiry from the military judge is required. Id. The trial judge’s determination is a contextual one, which appellate courts review de novo. Id.

When determining whether the information presented on the record regarding an appellant’s mental responsibility or capacity raises a conflict with the plea (as opposed to a mere possibility of a conflict), an appellate court will consider: 1) the appellant’s history of mental illness; 2) the appellant’s conduct during the providence inquiry and whether it reflected on his capacity to plead guilty; and, 3) if the appellant’s statements indicated an inability to appreciate the nature and wrongfulness of his acts. Id. at 339. For the following reasons, we conclude that the information contained in the record only raised a mere possibility of a conflict with the plea, thus obviating any further inquiry into the matter.

First, the record before us offers little to no information to disturb the presumption that the appellant was mentally responsible at the time of his misconduct and that he had the mental capacity to stand trial. During the providence inquiry, the appellant informed the military judge that some months before the self-injury, he had been diagnosed with “delayed PTSD as well as personality disorder and depression.” Record at 94. The appellant also informed the military judge that, during his treatment, he started “to have seizures due to some of the medication, so they took me off of it to see which ones were doing what.” Id. Following his self-injury, the appellant was brought to the psychiatric ward, where he was observed for a day prior to being placed into pretrial confinement. Id. at 103. Approximately six weeks following the incident, the appellant was examined at the neurology department at the Okinawa Naval Hospital for a followup appointment related to his seizure disorder. Defense Exhibit L at 1. The notes from that examination reveal the appellant had three seizures from March 2009 to February 2010. Id. at 2. The notes also reveal the appellant had a history of several car accidents in which his head had been injured, and also documented a family history of epilepsy. Id. at 2-3. The physician’s notes do not indicate any issue in regard to the appellant’s mental health and concludes the appellant was likely suffering from epilepsy. Id. at 3. Neither of the post-trial affidavits provided by the appellant and his trial defense counsel contains any new matter regarding the appellant’s mental health. Affidavit of Appellant of 11 Jan 2011; Affidavit of Captain S. Russell Shinn of 6 Jan 2011. Likewise neither affidavit asserts that the appellant is presently laboring under any sort of mental infirmities. Moreover, as the trial defense counsel explained to the military judge, he knew the appellant quite well, having represented him in numerous matters in the past. Record at 97; Affidavit of Capt Shinn at 1-2. Based on his personal observations and contact with the appellant over this prolonged period, trial defense counsel was convinced that there was no issue of the appellant’s mental capacity or responsibility and, in his opinion, no need for an R.C.M. 706 examination. Record at 97.

Second, the appellant’s statements throughout the providence colloquy with the military judge were oriented, lucid, and articulate. In particular, we note the following colloquy between the military judge and the appellant regarding the appellant’s medical care immediately after the incident:

MJ: ... At the time this occurred, did you go and get proper medical and psychiatric treatment? That’s what I wanted to ask.

ACC: Yes, sir. I went to 3 South for a day.

MJ: For medical and then you went 3 South, which is the — I’m trying to say— excuse me — it’s the psychiatric wing of the hospital.

ACC: Yes, sir.

MJ: So you went there and you got proper mental treatment, and again, that’s why you feel comfortable being in court today?

ACC: Yes, sir.

Id. at 103. In consideration of the whole record, we find that the appellant’s conduct reflected that he was well-within his capacity to plead guilty.

Third, the appellant provided a detailed account of the events leading up to and following his misconduct. He openly and freely admitted that he knew what he was doing and could have avoided hurting himself if had wanted to. Nothing in the appellant’s colloquy with the military judge indicated the appellant was unable to appreciate the nature and wrongfulness of his acts.

Based upon the foregoing reasons and taking into consideration the assurances of the appellant’s counsel, with whom he had a long relationship, we see no substantial basis in law or fact to question this aspect of the appellant’s guilty pleas.

Factual Sufficiency of Spice Conviction

When we review a case for factual sufficiency, we weigh all the evidence of record and, making allowances for not having personally observed the witnesses, determine whether we are satisfied beyond a reasonable doubt of the appellant’s guilt. United States v. Turner, 25 M.J. 324, 325 (C.M.A.1987). Having reviewed the testimony of all the witnesses and the photographs admitted into evidence, we are convinced beyond a reasonable doubt from the foil packages found in the appellant’s single-occupant barracks room, the tobacco residue in that same trashcan, the observations by the duty personnel of the group in the abandoned chow hall, the physical evidence taken from the chow hall, and the testimony of an investigator with experience in identifying illicit substances, that the appellant did possess Spice.

Larceny

Under Article 77, UCMJ, 10 U.S.C. § 877, “[a]ny person ... who ... commits an offense ... or aids, abets, counsels, commands, or procures its commission ... is a principal.” Even if a person is not the actual perpetrator of an offense, he or she may still be guilty of the offense if they encouraged or instigated another to commit the offense and they shared in the perpetrator’s criminal purpose or design. MANUAL FOR COURTS-MARTIAL, UNITED STATES (2008 ed.), Part IV, ¶ lb(2)(b).

The appellant was charged with the theft of a belt from an Okinawan shopkeeper under the aider and abettor theory. The actual perpetrator of the theft was the appellant’s friend, Miko, a female local national with whom the appellant shared an intimate understanding of each other’s looks and gestures due to a language barrier between them at the outset of their friendship. Record at 71. The appellant and Miko were shopping together and the appellant handed her a belt which he thought she might want to purchase. Id. at 66-67. Instead, Miko told him that she did not have the money for it and she was thinking of just taking it. Id. The appellant laughed and watched as she put the belt in her purse. When Miko put the belt in her purse, the appellant knew she was going to steal it, gestured his approval, and then casually walked out of the store, stopping to chat with the shopkeeper. Id. at 71. Once Miko emerged from the store with the stolen belt, the appellant laughed again and the two continued on with their shopping excursion. Id. at 67.

At trial, the military judge repeatedly informed the appellant that he had to have participated in the theft in some knowing way, that his mere presence was not enough, and that he must have shared Miko’s criminal intent. Id. at 66-86. The appellant told the military judge that Miko looked to him for approval before taking the belt and that he “gave her the green light” to take the belt by laughing and making gestures when she indicated she might steal it. Id. at 71. Furthermore, the appellant told the military judge that Miko would not have taken the belt without his indicating to her that it was “okay.” Id. at 73, 77. Additionally, the appellant admitted that when he saw Miko put the belt in her purse, that she intended to steal the belt and that he shared in that purpose. Id. at 73.

Under the facts of this case, we find: 1) the military judge’s explanation of the aider and abettor theory under Article 77, UCMJ, was adequate; 2) the appellant understood Article 77; and 3) the appellant provided a factual basis in support of his plea of guilty to the theft of the belt under the aider and abettor theory. Accordingly, we see no substantial basis to reject the appellant’s guilty plea to this offense.

Coerced Pretrial Agreement

The appellant claims that he did not voluntarily enter into a pretrial agreement. He makes this claim notwithstanding his assurance to the military judge that he entered into the agreement freely and without coercion. Record at 113,129.

If the facts are as the appellant and his counsel allege them to be in their affidavits supporting this assignment of error, then one can conclude that the chain of command might not have done all that it could to support this Marine once he entered pretrial confinement. His family had apparently notified the command of his mother’s serious illness, yet the command apparently made little or no effort to help the appellant learn all the details. The appellant had difficulty gaining access to personal funds for authorized hygiene and morale items. The command visited him only sporadically. That possible failure of leadership, however, is a far cry from the “threats, improper harassment, misrepresentation, or ‘promises that are by their nature improper’ ” that will cause us to conclude that the appellant did not voluntarily or intelligently enter into the agreement. See United States v. Burnell, 40 M.J. 175, 176 (C.M.A.1994) (quoting Brady v. United States, 397 U.S. 742, 755, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970)). We therefore resolve this assignment adversely to the appellant.

Conclusion

The findings and sentence are affirmed.

Chief Judge REISMEIER, Senior Judge CARBERRY, Judges MODZELEWSKI and Judge WARD concur. PERLAK, J., filed an opinion concurring in part and dissenting in part, joined by PAYTON-O’BRIEN, J. MAKSYM, S.J., filed a dissenting opinion.

1 . The appellant was previously held in pretrial confinement for 60 days on charges unrelated to this court-martial, which were ultimately disposed of at a summary court-martial.

2 . Although not assigned as error, we note that the specification alleging self-injuiy did not allege the clause 1 or clause 2 terminal element of Article 134. For the reasons cited in United States v. Hackler, 70 M.J. 624 (N.M.Ct.Crim.App.2011), we find that this specification reasonably implies all the elements of the offense.