United States v. Fontenot

26 M.J. 559, 1988 CMR LEXIS 250, 1988 WL 40449
CourtU.S. Army Court of Military Review
DecidedApril 27, 1988
DocketACMR 8701490
StatusPublished
Cited by4 cases

This text of 26 M.J. 559 (United States v. Fontenot) is published on Counsel Stack Legal Research, covering U.S. Army Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Fontenot, 26 M.J. 559, 1988 CMR LEXIS 250, 1988 WL 40449 (usarmymilrev 1988).

Opinion

OPINION OF THE COURT

ADAMKEWICZ, Senior Judge:

Appellant was convicted, contrary to his pleas, of rape, in violation of Article 120, Uniform Code of Military Justice, 10 U.S.C. § 920 (1982) [hereinafter UCMJ]. His sentence to a dishonorable discharge, forfeiture of all pay and allowances, and confinement for forty years was approved by the convening authority. Before this court, appellant assigns several errors.

I.

First, appellant makes a combined attack on the military judge’s treatment of the question of his sanity. He asserts that error was committed, first, when his request for the assistance of a civilian expert was denied and, second, when no further mental evaluation was ordered. We disagree.

A military accused “is entitled to have access to a qualified psychiatrist or psychologist for the purposes of presenting an insanity defense,” without regard to indigency. United States v. Mustafa, 22 M.J. 165, 169 (C.M.A.1986), cert. denied. 479 U.S. 953, 107 S.Ct. 444, 93 L.Ed.2d 392 (1986). The entitlement is one of access to a competent professional and is not the right to select a particular professional. Id., quoting Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). The government is not required to appoint a psychiatrist specifically for the accused nor to provide one who will agree with the accused’s position. See United States v. Davis, 22 M.J. 829, 833 (N.M.C.M.R.1986), affirmed, 24 M.J. 222 (C.M.A.1987). In this case, appellant was evaluated by a neutral sanity board of three psychiatrists, two of whom were board-certified, convened at Brooke Army Medical Center. That board diagnosed the appellant as suffering from alcohol abuse and antisocial traits but found that the appellant had sufficient mental capacity to stand trial and that, at the time of the charged offense, he did not have a severe mental disease or defect and was able to appreciate the nature and quality or wrongfulness of his conduct. A fourth psychiatrist who reviewed appellant’s erratic behavior in pretrial confinement opined that he could be psychotic or malingering.

In an Article 39(a), UCMJ, session, defense requested that the government pay for the testing and evaluation of the accused by a civilian psychiatrist who had not examined the accused but who had reviewed appellant’s records and spoken with him briefly on the telephone. Trial defense counsel’s motion was based on the argument that, although the civilian psychiatrist apparently did not challenge the adequacy of the sanity board, he believed further testing was necessary in view of the “possibility” that there “could be some mental disease or defect.” The government presented evidence from several lay witnesses who had seen the appellant both recently and near the time of the charged rape and who testified that his behavior was generally within the range of what was normal under the circumstances. In denying the defense motion, the military judge found that there was little or no showing that the sanity board might have been inadequate, that there was no showing of a history of disturbance, and that the appellant’s recent unusual behavior was “acting out.”

Thus the appellant had received, through the evaluation by several impartial psychiatrists, the assistance to which he was entitled. “The only effect of the military judge’s ruling was to overrule appellant’s request for the services of a particular psychiatrist.” Mustafa, 22 M.J. at 169. He failed to make any showing that the assistance provided was inadequate or that the services of the civilian psychiatrist were necessary. As this court has recently noted, “[ajbsent a showing of necessity, there is no requirement for the government to provide [an] expert.” United States v. [562]*562Kinsler, 24 M.J. 855, 856 (A.C.M.R.1987). That showing of necessity requires more than the “mere possibility of assistance” from the requested expert. Id., quoting Moore v. Kemp, 809 F.2d 702, 712 (11th Cir.1987). In this case, the accused showed only the “possibility” that he might have “some mental disease or defect.” Such a fishing expedition need not be funded by the government.

Further, with respect to the argument that the military judge erred by not ordering further sanity proceedings, defense never requested that another sanity board be convened. Trial defense counsel sought only the appointment of the civilian expert. In light of the evidence before the judge and his findings, which are fully supported by the record, we hold that the military judge had no sua sponte duty to order an additional sanity evaluation.

II.

The appellant next alleges that the military judge erred in admitting evidence of acts of misconduct by the accused while in pretrial confinement. Specifically, over defense objection, numerous documents from the appellant’s Installation Detention Facility (IDF) file, which demonstrated extensive misconduct by appellant while confined, were admitted as aggravation evidence in the presentencing portion of trial.

This court has previously approved the admission of Department of Defense (DD) Form 508, documenting approved disciplinary action against an accused in pretrial confinement. United States v. Perry, 20 M.J. 1026 (A.C.M.R.1985). Appellant argues, however, that documents other than DD Form 508 were admitted by the military judge, documents which he contends do not afford him “minimal due process” prior to their inclusion in his IDF file. This contention overlooks the fact that, in Perry, we rejected the argument that, “as a prerequisite to admissibility, minimum due process should be required____” Id.

Manual for Courts-Martial, United States, 1984, Rule for Courts-Martial 1001(b)(2) [hereinafter R.C.M.] provides that, pursuant to regulation, evidence of the accused’s character of service, including evidence of reports which are maintained in his personnel files and which reflect his past military conduct, performance and any disciplinary action against him, are admissible as matters in aggravation. Army Regulation 27-10, Legal Services: Military Justice, paragraph 5-25 (1 Jul. 84), provides for the admissibility in presentencing proceedings at court-martial of personnel records made or maintained in accordance with regulation, wherever located, unless otherwise prohibited. The sole exception to this rule of admissibility is for Department of Army (DA) Form 2627-1 (Summarized Record of Proceedings under Article 15, UCMJ). Thus, the personnel records maintained by the IDF on the appellant are admissible, except as to any DA Form 2627-1, in the absence of any valid challenge to their being properly made or maintained.

Appellant has not, either at trial or before this court, argued that the challenged records were not properly made or maintained. Of course, should the military judge determine that the documents being offered are unduly prejudicial under the balancing test of Mil.R.Evid. 403, he may properly refuse to admit them. In this case, the military judge specifically rejected an argument that the challenged documents would be highly prejudicial or unfair for the court-martial to consider. We agree with his conclusion and hold that no error was committed in the admission of the IDF file documents.

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31 M.J. 640 (U.S. Navy-Marine Corps Court of Military Review, 1990)
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Bluebook (online)
26 M.J. 559, 1988 CMR LEXIS 250, 1988 WL 40449, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-fontenot-usarmymilrev-1988.