United States v. Neeley

21 M.J. 576
CourtU S Air Force Court of Military Review
DecidedNovember 5, 1985
DocketACM 24645
StatusPublished
Cited by15 cases

This text of 21 M.J. 576 (United States v. Neeley) is published on Counsel Stack Legal Research, covering U S Air Force 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. Neeley, 21 M.J. 576 (usafctmilrev 1985).

Opinion

DECISION

HODGSON, Chief Judge:

The events that led to the offenses before us are not in dispute. From all accounts the appellant and Airman First Class Harris, who lived together in an off-base residence, enjoyed a bittersweet relationship which began deteriorating in the fall of 1983. On 11 January 1984, she told the appellant that their arrangement was not working out and she no longer wished to live with him and was moving back to the barracks. The next day, the appellant beat Harris badly about the face and head and threatened to kill her if she left him. He stopped hitting her only after she agreed to stay with him and not report the assault. To the contrary, she told her commander of the incident who interviewed the appellant and ordered him to stay away from her. Subsequently, on 6 February [577]*577charges were preferred against the appellant for assault and communicating a threat. On 7 February, he went to the dining facility on Little Rock Air Force Base where Harris worked and shot her five times in the head, neck and chest at point blank range with a .45 caliber pistol he had purchased three days before.

The circumstances just described resulted in a premeditated murder conviction together with various lesser offenses.1 The approved sentence extends to a dishonorable discharge, life imprisonment, total forfeitures and reduction to airman basic.

I

Early in the proceedings individual defense counsel conceded that his client killed Harris, but argued that this offense along with the lesser charges were the result of a mental condition that made the appellant not accountable for his actions. To support the existence of a mental state showing a lack of substantial capacity for the appellant to conform his conduct to the requirements of law, the defense offered the testimony of Doctor Dane Donahue and Doctor David A. Pritchard, two well qualified psychologists. Both individuals diagnosed the appellant as suffering from a “major depressive episode with psychotic features.” Both agreed that it is more likely than not the appellant was unable to conform his behavior to the intent of the law. Further, Doctor Pritchard and Doctor Donahue were of the view that a person could be in a psychotic state and yet appear very normal. It was their conclusion that the appellant’s girl friend’s decision to terminate their interracial relationship, and the appellant’s feeling that the break-up was caused by racial bias, triggered a “major depressive episode” that culminated in the killing.

In rebuttal, the Government tendered the testimony of three psychiatrists two of whom, Lieutenant Colonel (Doctor) Frank Carpenter and Lieutenant Colonel (Doctor) Thomas A. Martin III, were members of the appellant’s sanity board that met on 27 February 1984. Doctor Carpenter is the Director of Psychiatric Residency Training at Wilford Hall Medical Center, Lackland Air Force Base, Texas; Doctor Martin was the Chief of In-Patient Psychiatry at the same medical center. Based upon a review of medical records, clinical interviews, Doctor Donahue’s notes, psychological tests and related materials, both individuals stated they found no evidence of a psychosis or delusional thinking in the appellant. Doctor Martin indicated the appellant did not suffer from a “major depressive episode,” but had a “mixed personality disorder” which would not impact on his ability to conform his behavior to the law. Doctor Carpenter also found nothing in the appellant’s medical records to support a diagnosis of “a major depressive episode.” In his opinion the appellant’s medical history contradicts any suggestion that his actions were the result of a psychosis or delusional thinking. Doctor Carpenter thought revenge was the motive for the killing.

The third psychiatrist to testify for the Government was Colonel (Doctor) William H. Grant, a consultant in psychiatry to the Surgeon General of the Air Force. After reviewing the findings of the sanity board, the notes and opinions of Doctors Donahue and Pritchard and other materials relating to the appellant, Doctor Grant was of the opinion there was “... not a smidgen of evidence” to indicate a psychosis or delusional thinking. He found nothing to justify a diagnosis of a “severe depression with psychotic features.”

As a part of their case in rebuttal the prosecution called Captain (Doctor) Nancy A. Slicner, a Staff Psychologist in the OutPatient Mental Health Clinic at Wilford Hall. Part of her responsibility is to evaluate psychometric tests given patients meeting a sanity board. One such test is the Minnesota Multaphasic Personalty Inventory (MMPI), which is used to identify psychotic disorders. The test has indicators to [578]*578recognize individuals attempting to fake psychotic behavior. The appellant was given the MMPI twice — once at Little Rock Air Force Base on 16 January 1984 just after his assault on his girl friend and again in February at Wilford Hall after he had killed her. When Doctor Slicner compared the two results the first appeared to be within a normal range while the latter indicated a “thought disorder,” but with no accompanying symptoms. After studying the second test and consulting with her colleagues at Wilford Hall, she concluded that the appellant “intentionally over-endorsed” the second test, i.e., attempted to establish a mental condition that was not present. After Doctor Slicner stated she had shown the appellant’s MMPI profile to other psychologists at Wilford Hall, the following testimony was admitted over defense objection:

Q: What was the consensus among these people when you showed them this profile?
A: That it was intentionally inflated.

Appellate defense counsel argue that the trial judge erred to the substantial prejudice of the appellant when he allowed such evidence, as it denied the defense the right to cross-examine and confront the psychologists concerning their opinions.

Mil.R.Evid. 7032 permits an expert to rely on facts and data made known to the expert at or before the hearing, even if such facts or data are neither admitted nor admissible in evidence, so long as they are of a type “reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.” See United States v. Benedict, 20 M.J. 939 (A.F.C.M.R.1985). We have no hesitation in holding that psychology is a field in which the experience and opinions of others trained in the discipline would be of immeasurable assistance to one attempting to make a diagnosis. United States v. Arias, 678 F.2d 1202 (4th Cir.1982). What must be remembered is that while expert witnesses may rely on hearsay under Rule 703 to form their opinion, the hearsay itself is not admissible. United States v. Ramos, 725 F.2d 1322 (11th Cir.1984); Coulter v. Stewart, 97 N.M. 616, 642 P.2d 602 (1982); State v. Towne, 142 Vt. 241, 453 A.2d 1133 (Vt.1982). As the editorial comment to Mil.R.Evid. 703 stated, “... unless care is taken in utilizing Rule 703, parties can ‘smuggle’ much hearsay evidence into a case, when such evidence is not properly admitted for its truth.” See

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Bluebook (online)
21 M.J. 576, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-neeley-usafctmilrev-1985.