United States v. Parker

15 M.J. 146, 1983 CMA LEXIS 22282

• Court: United States Court of Military Appeals
• Decided: March 14, 1983
• Docket: No. 41,467; NMCM No. 80-0637
• Status: Published

Opinions

Opinion of the Court

COOK, Judge:

The accused shot his roommate, Lance Corporal Drury, with a .45-caliber, government-issue pistol. The bullet entered the victim’s back and transversed through his body, striking the liver and certain veins. Although the victim retained consciousness for a time, he subsequently died at a Naval hospital. The facts surrounding the shooting are not in dispute, and were virtually conceded by the defense at trial.¹ For this act, the accused was convicted, despite his pleas, by a general court-martial, of premeditated murder and assault, in violation of Articles 118 and 128, Uniform Code of Military Justice, 10 U.S.C. §§ 918 and 928, respectively. The adjudged and approved sentence extended to a dishonorable discharge, confinement at hard labor for life, and total forfeitures. The United States Navy-Marine Corps Court of Military Review affirmed the findings and sentence. 11 M.J. 757 (1981). We granted the accused’s petition on the following issue:

WHETHER THE MILITARY JUDGE’S RULING PERMITTING THE PROSECUTION TO ELICIT FROM THE GOVERNMENT PSYCHIATRISTS THEIR RELATION OF APPELLANT’S NARRATIVE OF THE SUBSTANTIVE EVENTS GIVING RISE TO THE CHARGES AGAINST HIM, OBTAINED DURING THE COURSE OF THEIR BABBIDGE -COMPELLED 121 BOARD INTERVIEW, ERRONEOUSLY AND PREJUDICIALLY BURDENED APPELLANT’S SIMULTANEOUS RIGHT TO PRESENT AN INSANITY DEFENSE AND CONCURRENTLY REFRAIN FROM INCRIMINATING HIMSELF AT TRIAL?

We hold that it did not and affirm.

Since the decision in Davis v. United States, 160 U.S. 469, 16 S.Ct. 353, 40

L.Ed. 499 (1895), it has been the rule in the overwhelming majority of American courts that the burden of proving the sanity of a particular defendant beyond a reasonable doubt is upon the prosecution, just as is every other element of the offense charged.² Military justice is no'exception. See para. 122a, Manual for Courts-Martial, United States, 1969 (Revised edition). However, in giving the prosecution the burden of proving the mental capacity of the accused to commit the crime, the courts have recognized that the prosecution must be afforded some opportunity to acquire evidence for this purpose.³ Since the accused is often the sole source of such evidence, various procedures have been developed to permit the prosecution to obtain from him the basis for expert medical testimony.⁴ To the extent that the accused is compelled to submit to examination by prosecution experts, he may be forced to disclose evidence that may incriminate him of the offense charged. Thus, there is an inherent “tension” between the accused’s right against self-incrimination and the prosecution’ s ability to have fair “access to the only reliable means of ascertaining the truth concerning a defendant’s sanity.” United States v. Albright, 388 F.2d 719, 724 (4th Cir.1968). The balancing of these two interests has been perplexing:

It would be most anomalous to say that a defendant may advance the defense of insanity, have himself examined by his own experts and then invoke the constitutional guarantees against self-incrimination for the purpose of preventing examination by the State.... To allow the accused to obtain his own expert, and after a private and unlimited conference with him and examination by him, to plead insanity, and then put forward the privilege against self-incrimination to frustrate like activities by the prosecution is to balance the competing interests unfairly and disproportionately against the public.

State v. Whitlow, 45 N.J. 3, 210 A.2d 763, 767 (N.J.1965).

In balancing these competing interests, more than half of the states, the District of Columbia, and the Federal system permit or require examination of an accused when the defense of lack of capacity or sanity is raised. Id. n. 1. The Federal system has, for some time, provided for compulsory examination of a defendant for the purpose of establishing competency to stand trial. See 18 U.S.C. § 4244. However, this statute expressly provides that the accused’s statements may not be used against him “on the issue of guilt.” Until fairly recently, the right of the prosecution to compel examination of an accused to establish his capacity at the time of the alleged crime, where recognized as existing, has depended upon the inherent power of the court to issue such an order as a condition to permitting the accused to raise the insanity defense. See United States v. Malcolm, 475 F.2d 420 (9th Cir.1973); State v. Whitlow, supra; and cases cited therein.

Since 1975, Fed.R.Crim.P. 12.2 has provided that a defendant who wishes to raise “the defense of insanity at the time of the [commission of the] alleged crime” must give notice to the attorney for the government, and, in appropriate cases, “the court may, upon motion of the attorney for the government order the defendant to submit to a psychiatric examination.” However, “[n]o statement made by the accused in ... any [such] examination ... shall be admitted in evidence against the accused on the issue of guilt in any criminal proceeding.’’ Thus, the Federal procedure recognizes a distinction between competency to stand trial and capacity (sanity) of the accused at the time of the commission of the alleged offense, and provides for compulsory psychiatric examinations in both instances, though in differing manners. See United States v. Leonard, 609 F.2d 1163 (5th Cir. 1980).

Military law, based upon different legislative and executive precedents, has developed differently from civilian law, even though on a largely parallel course. The Manual for Courts-Martial recognizes the defense of insanity and that the burden of proving sanity is upon the Government. “If a reasonable doubt exists as to the mental responsibility of the accused for an offense charged, the accused cannot be legally convicted of that offense.” Para. 120b, Manual, supra. It recognizes the defense of incompetency to stand trial. “No person should be brought to trial unless he possesses sufficient mental capacity to understand the nature of the proceedings against him and to conduct or cooperate intelligently in his defense.” Para. 120d, Manual, supra. It provides a procedure for acquiring evidence to resolve these questions, either before, during, or after trial:

If it appears to any commanding officer who considers the disposition of charges ... or to any investigating officer ..., trial counsel, or defense counsel that there is reason to believe that the accused is insane ... or was insane at the time of the alleged offense ..., that fact and the basis of the observation should be reported through appropriate channels in order that an inquiry into the mental condition of the accused may be conducted before trial. When the report indicates a reasonable basis for the belief, the matter will be referred to a board of one or more medical officers for their observation and report as to the sanity of the accused.... The board ... should be required to make separate and distinct findings as to each of the three following questions:

a. Was the accused at the time of the alleged offense so far free from mental defect, disease, or derangement as to be able concerning the particular acts charged to distinguish right from wrong . ..? •

b. Was the accused at the time of the alleged offense so far free from mental defect, disease, or derangement as to be able concerning the particular acts charged to adhere to the right ... ?

c. Does the accused possess sufficient mental capacity to understand the nature of the proceedings against him and to conduct or cooperate intelligently in his defense ...?

Para. 121, Manual, supra.

In addition, the Manual establishes the procedures for litigating these same matters before the court-martial. See para. 122 b, Manual, supra.

Where the defense proffers expert testimony concerning the accused’s mental responsibility or capacity, the accused may be required to submit to psychiatric evaluation by Government psychiatrists as a condition to the admission of defense psychiatric evidence.

Para. 122b (2), Manual, supra.

In United States v. Babbidge, 18 U.S.C.M.A. 327, 40 C.M.R. 39 (1969), we upheld the constitutionality of paragraph 121, even though it compelled an accused wishing to raise the insanity defense to submit to examination by government psychiatrists.

When the accused opened his mind to a psychiatrist in an attempt to prove temporary insanity, his mind was opened for a sanity examination by the Government. His action constituted a qualified waiver of his right to silence under Article 31 [UCMJ, 10 U.S.C. § 831],

Id. at 332, 40 C.M.R. at 44. However, this holding went only to testimony as to the issue of the accused’s sanity, and “we note[d] the absence of any showing that anything Babbidge may have said tended to prove he committed an offense.” Id. at 333, 40 C.M.R. at 45; see also United States v. Wilson, 18 U.S.C.M.A. 400, 40 C.M.R. 112 (1969). In Wilson, and United States v. Schell, 18 U.S.C.M.A. 410, 40 C.M.R. 122 (1969), we recognized that the testimony of the psychiatric experts as to the accused’s sanity, based on statements made by the accused at the sanity board, was admissible whether or not the accused was advised of his rights under Article 31,10 U.S.C. § 831.

However, another aspect of military law injected a further problem into this area of tension. Historically, military law has recognized no privilege attaching to communications between military personnel and military doctors. See United States v. Wimberley, 16 U.S.C.M.A. 3, 36 C.M.R. 159 (1966). What then happens to statements made to a military doctor (psychiatrist) by an accused at a sanity board hearing? Are they admissible against the accused at trial? Further, if the accused is read Article 31, can he meaningfully exercise his rights against self-incrimination when he is, at the same time, forced to cooperate with the sanity board as a precondition to his exercise of the insanity defense? These questions were raised by the defense counsel in United States v. Johnson, 22 U.S.C.M.A. 424, 47 C.M.R. 402 (1973), as part of his motion to have the accused examined by a civilian psychiatrist. Instead, the military judge required that the examination be conducted by military psychiatrists, but put severe limitations on the dissemination of the report of the board. We approved that procedure on the grounds that the military psychiatrists were professionals and that their determinations as to the accused’s sanity would be impartial and that the accused would have no more privilege as to his statements made to a civilian psychiatrist since “[t]he question of privilege is governed by the law of the forum in which the witness testifies. Wigmore, Evidence § 5 (3d ed.).” Id. at 428, 47 C.M.R. at 406.

We again addressed these questions in United States v. Frederick, 3 M.J. 230 (C.M. A.1977). There we noted “that while Babbidge permits a psychiatric examination without advising an accused of his Article 31 rights, normally only expert conclusions as to his mental condition are admissible— not the statements of an accused which were made during the examination.” Id. at 233. However, in that case the court order required that the accused be advised of his Article 31 rights during the initial psychiatric examination, and the report of the psychiatrists involved indicated that the accused was so advised, although the substance of the advice was not reflected in the record. In addition, the military judge instructed the members that the statements of the accused which were admitted before the court “were limited to the issue of mental responsibility.” Id. at 234 n. 7. We also noted that “[t]he original references to the statements in question were made upon direct examination by the defense counsel.” Id. at 234. With the record in that posture, we held that the statements were properly admitted into evidence for the limited purpose of establishing the accused’s sanity.

Turning now to the instant case, the accused was first examined by government psychiatrists. However, after the report of the government experts, the accused was again examined by civilian doctors of his choice. During the cross-examination of the accused’s civilian psychiatrist, the substance of the accused’s admissions concerning the events of the shooting came before the members over objection by the defense counsel.⁵ This arose in the context of determining why, in the opinion of the doctor, the accused shot the victim. The psychiatrist answered with a description of the accused’s psychiatric makeup. In an attempt to obtain a more specific answer, trial counsel asked several questions concerning statements made by the accused to the victim:

Q. Didn’t the accused tell you that he shot Drury because Drury would not get down on his knees and beg him not to?

A. That was the approximate cause. The immediate cause.

Q. What did the accused tell you that he told Drury prior to shooting him? What were his words?

A. Something like, “Get down on your knees, or I’m going to shoot you.” Something to that effect.

Q. And then Drury—

A. “Get down and beg.” Something along those lines.

Q. And when Drury didn’t do that, he then shot him?

A. That’s correct.

DC: Unless counsel is willing to look [sic] that up, I ask that that question and response be stricken and cautionary instructions be given to the members.

MJ: I’ll give a cautionary instruction, but I’m not going to strike the testimony.

It is clear that trial counsel was seeking to relate the psychiatrist’s diagnosis of the accused’s personality disorders in terms of the details of the accused’s mental state at the time of the shooting.⁶ However, the intention of the accused at the time of the shooting was, at that point in the trial, the sole remaining issue for the members. Consequently, while it was proper for trial counsel to probe the basis for the psychiatrist’s opinion, the relation of the accused’s statements also had a bearing on the issue of premeditation which is part of the charge of murder with malice aforethought.

At the conclusion of the psychiatric testimony from both sides, the military judge gave this instruction:

At this time I want to give you an instruction on these statements that you have heard from these witnesses today. We’re not talking about the witnesses you heard yesterday. We’re talking about the expert witnesses and the statements they have made as to statements made by the accused and facts related to them or events related to them by the accused. Now, I’ll give you a more complete instruction on this later but right now I want to tell you that you are to consider those statements only on the sanity of the accused and not on the guilt or innocence of the accused. You are to consider those statements only in regard to whether or not the accused was sane.

In his closing instructions, the military judge further advised the members:

As I indicated to you yesterday, during the testimony of Doctors Carlton, Chandler, Paden, Ratner and Shapiro, there was testimony regarding certain statements made by the accused at the sanity board hearing and at the interviews with the defense experts. These statements are admissible only for the limited purpose, namely in deciding the issue of the accused’s mental responsibility at the time of the offense and his partial mental responsibility that I just instructed you on. Thus you may consider these statements on that issue alone, and you cannot consider those statements in determining whether or not there is sufficient proof beyond a reasonable doubt of the offenses charged.

Thus, we are presented with a classic example of the compulsory-examination conflict with the right against self-incrimination. Accepting that the Government must have a right to cross-examine the defense experts as to the basis for their opinions,⁷ the problem of preventing prejudice to the accused from the relation of statements he made which formed the diagnostic predicate is difficult to resolve. Civilian courts have attempted to avoid the difficulties in a variety of ways ranging from complete exclusion of any statements of the accused,⁸ bifurcated proceedings,⁹ sequential proceedings,¹⁰ and limiting instructions from the judge.¹¹ Since we are operating with a different statutory and regulatory scheme, such precedents are of little value.

The procedures followed in this case are in line with our precedents. The accused was given a detailed advisement of his Article 31/Miranda-Tempia rights.¹² Cf. Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981). The results of the Government’s examination were made available to the civilian experts. The challenged questions by the trial counsel arose in the context of attacking the credibility of the civilian psychiatrist by revealing the underlying factual basis for his opinion rather than being an obvious attempt to put the statements qua statements before the members as admissions or a confession. Further, there was ample evidence aliunde the statements upon which the members could find beyond a reasonable doubt that the accused had the required premeditation to commit murder. Finally, and most significantly, the military judge twice gave limiting, curative instructions to the members as to the proper usage of the statements. In this regard, we agree with the Supreme Court of New Jersey.

We are aware of the force of the criticism advanced by some persons as to the difficulty of making a jury of laymen realize the full significance of an instruction by a trial court that they can consider inculpatory statements of an accused to an examining State psychiatrist only on the issue of insanity, and not at all on the issue of guilt. But reception of evidence for a limited purpose is not an uncommon or unsanctioned practice. And we accept, as we must, the fact that jurors can and do obey the court’s restrictive instruction with respect to such evidence.

State v. Whitlow, supra, 210 A.2d at 773.

Finding no error prejudicial to the substantial rights of the accused, we affirm the decision of the United States Navy-Marine Corps Court of Military Review.¹³

1 . The defense brief offers the following Statement of Facts:

The facts of the alleged offense were not controverted at trial, the sole issue being the state of appellant’s mind at the time of the incident, and the degree of his legal responsibility for what occurred. The testimony of Lance Corporal Clough (R. 287-288), Lance Corporal Christie (R. 289-290), Lance Corporal Lett (R. 291-294), Private First Class Maldenado (R. 295-303), Private First Class Gomez (R. 303-306), Corporal Myers (R. 307-310), and Corporal Knapp (R. 311-317), is generally to the effect that on the morning of the fateful shooting, the appellant’s two roommates, Private First Class Drury and Private First Class Maldenado were preparing their room for an IG inspection to occur later that same day. Appellant had guard duty that morning and was preparing to assume the watch. At breakfast, Drury, the deceased, had “ordered” the appellant to return to his room for the purpose of cleaning his portion of the quarters, which had already then occasioned some open animosity (R. 290), and when appellant nonetheless assumed his watch at 0635 (R. 292), Private First Class Drury succeeded, through the good offices of the Sergeant of the Guard, to have the Corporal of the Guard, Corporal Lett, order the appellant off his watch to return to his room to help clean it, at about 0820 (R. 299), to which appellant repaired forthwith, “swearing and cussing under his breath” at the intervention. When appellant rejoined his roommates, who had been his roommates for only “two or three weeks” before the incident, “he didn’t say nothing” but started “doing his rack” and “putting his clothes inside his wall locker” (R. 299), until he was summoned by Private First Class Gomez, acting on the Sergeant of the Guard’s (Davis) instructions, to return to his watch. The deceased again intervened, arguing that appellant wasn’t finished, but Sergeant Davis insisted, again sending Gomez to fetch Parker, this time successfully, for Parker followed Gomez back to the quarterdeck (R. 304), at which point in time the deceased hurled the imprecation “come back, mother fucker, come back” after the departing Parker i (R. 304). The Corporal of the Guard (Lett) testified that at “somewhere around 0830” (R. 293), Parker returned to the quarterdeck and was reissued his .45 caliber gun and ammunition (R. 294); thus equipped, he returned to his quarters, where, according to the excited utterances of Drury, who subsequently died of the effects, appellant shot his roommate. Leaving his room, the appellant encountered Lance Corporal Ronnie Hayes, on the third floor landing of the staircase, busily sweeping the same for the inspection, and, apparently because Hayes was physically blocking the doorway to that staircase, the appellant gestured with the .45 caliber pistol in such a manner as to cause Lance Corporal Hayes to believe the weapon was pointed at him, Hayes, which impression resulted in Hayes discontinuing the inquiries he had directed towards Parker and [caused him] to retire from appellant’s line of progress (R. 320-321). That incident gave rise to the second charge. Leaving the building the appellant proceeded to walk towards the mess hall “down the sidewalk,” where he was observed by Gunnery Sergeant Mills, who called out Parker’s name; this resulted in appellant turning about and walking up to the gunnery sergeant, who retrieved the pistol Parker was carrying from the holster, wherein it rested, albeit with the flap unbuttoned (R. 323). Appellant was then placed in custody; the charges against appellant resulted as a consequence of the foregoing incidents.

1 Which shouts occasioned the appellant to mutter “I’m going to get him,” but not in a fashion, according to the witness Gomez, which suggested that appellant was contemplating homicide (R. 305).

2 . At the time, there were two lines of authorities on the issue of the burden of proof of sanity. See cases cited in the brief of the Assistant Attorney General in the case of Davis v. United States, 160 U.S. 469, 471, 16 S.Ct. 353, 40 L.Ed. 499 (1895). The Supreme Court held:

We are unable to assent to the doctrine that in a prosecution for murder, the defense being insanity, and the fact of the killing with a deadly weapon being clearly established, it is the duty of the jury to convict where the evidence is equally balanced on the issue as to the sanity of the accused at the time of the killing. On the contrary, he is entitled to an acquittal of the specific crime charged if upon all the evidence there is reasonable doubt whether he was capable in law of committing crime.

Id. at 484, 16 S.Ct. at 357.

Strictly speaking, the burden of proof, as those words are understood in criminal law, is never upon the accused to establish his innocence or to disprove the facts necessary to establish the crime for which he is indicted. It is on the prosecution from the beginning to the end of the trial and applies to every element necessary to constitute the crime. Giving to the prosecution, where the defence is insanity, the benefit in the way of proof of the presumption in favor of sanity, the vital question from the time a plea of not guilty is entered until the return of the verdict, is whether upon all the evidence, by whatever side adduced, guilt is established beyond reasonable doubt. If the whole evidence, including that supplied by the presumption of sanity, does not exclude beyond reasonable doubt the hypothesis of insanity, of which some proof is adduced, the accused is entitled to an acquittal of the specific of-fence charged. His guilt cannot be said to have been proved beyond a reasonable doubt — his will and his acts cannot be held to have joined in perpetrating the murder charged — if the jury, upon all the evidence, have a reasonable doubt whether he was legally capable of committing crime, or (which is the same thing) whether he wilfully, deliberately, unlawfully, and of malice aforethought took the life of the deceased. As the crime of murder involves sufficient capacity to distinguish between right and wrong, the legal interpretation of every verdict of guilty as charged is that the jury believed from all the evidence beyond a reasonable doubt that the accused was guilty, and was therefore responsible, criminally, for his acts. How then upon principle or consistently with humanity can a verdict of guilty be properly returned, if the jury entertain a reasonable doubt as to the existence of a fact which is essential to guilt, namely, the capacity in law of the accused to commit that crime?

Id. at 487-88, 16 S.Ct. at 358.

3 . See United States v. Albright, 388 F.2d 719 (4th Cir.1968); Rhodes v. United States, 282 F.2d 59 (4th Cir.), cert. denied, 364 U.S. 912, 81 S.Ct. 275, 5 L.Ed.2d 226 (1960); State ex rel. La Follette v. Raskin, 34 Wis.2d 607, 150 N.W.2d 318 (Wis.1967); State v. Whitlow, 45 N.J. 3, 210 A.2d 763 (N.J.1965).

4 . United States v. Albright, supra 388 F.2d at 721 n. 3; State v. Whitlow, supra 210 A.2d at 773 n. 3; see also Annot., 23 A.L.R.Fed. 710. In Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), the Supreme Court seems to approve the mandatory examination by prosecution psychiatrists where the defendant has pleaded not guilty by reason of insanity. In that case, the defendant introduced no psychiatric evidence nor gave any indication that he might do so. Under those circumstances, “[t]he considerations calling for the accused to be warned prior to custodial interrogation apply with no less force to the pretrial psychiatric examination at issue here.” Id. at 467, 101 S.Ct. at 1875. “A criminal defendant, who neither initiates a psychiatric evaluation nor attempts to introduce any psychiatric evidence, may not be compelled to respond to a psychiatrist if his statements can be used against him at a capital sentencing proceeding.” Id. at 468, 101 S.Ct. at 1876.

5 . This was not raised specifically in the defense-framed issue which addresses only the legality of the compelled examination that the insanity plea has prompted; however, we believe that it was fairly encompassed within that issue.

6 . Defense counsel’s objection appears directed towards only the last answer which does go to the ultimate question for the fact finders. The military judge’s limiting instructions went to the entire line of questioning.

7 . See cases cited in United States v. Albright, supra 388 F.2d at 726 n. 9, and State v. Whitlow, supra 210 A.2d at 773 n. 3.

8 . United States v. Leonard, 609 F.2d 1163 (5th Cir.1980).

9 . United States v. Alvarez, 519 F.2d 1036 (3d Cir.1975), and cases cited therein; State v. Raskin, supra; see also Notes of Advisory Committee on Rules, following Fed.R.Crim.P. 12.2, 18 U.S.C.A. Fed.R.Crim.P. at 246.

10 . See discussion in United States v. Alvarez, supra at 1051.

11 . State v. Whitlow, supra 210 A.2d at 773; cf. United States v. Albright, supra 388 F.2d at 726 n. 9.

12 . Article 31, Uniform Code of Military Justice, 10 U.S.C. § 831 /Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); United States v. Tempia, 16 U.S.C.M.A. 629, 37 C.M.R. 249 (1967). Here, the accused was given a detailed advisement of his Article 31/ Miranda-Tempia rights before his examination by government psychiatrists. The senior member of the board testified as to the specifics of the advisement:

Initially, he was asked if he understood what he was there for and what that was about. He explained that he understood it was the board of medical officers that were essentially going to examine him for sanity and that his lawyer had talked to him about that and his lawyer had explained that it could be used against him but it might be helpful to him and that he should cooperate with us. He was then told specifically, I’m not sure in what order, but was told that he didn’t have to talk to us ... if he didn’t want to. That he had the right to have a lawyer. That he had a right to have his lawyer present. That he could stop talking to us at any time. He didn’t have to continue if he didn’t want to. That he could stop talking to us and call his lawyer at any time if he wasn’t sure if he should keep talking to us. That he had the right to have a civilian lawyer but he would have to pay for that. And it again was explained to him that what he said could be used against him by the prosecutors in the trial.

The Navy Court of Military Review held in United States v. Duwors, 6 M.J. 957 (N.C.M.R. 1979), pet denied, 7 M.J. 262 (1979), that where the accused is advised of his rights under Article 31, prior to examination by government psychiatrists, his statements were admissible on the merits of the case. This holding goes beyond any of our precedents and is disapproved.

13 . Appellate defense counsel argue that we should apply Mil.R.Evid. 302. Since this case was tried before September 1, 1980, the effective date of the new Military Rules of Evidence, we must apply the procedures and precedents in effect at the time of trial. Construction and interpretation of Mil.R.Evid. 302 must await a future case.