7 M.J. 791 | U.S. Navy-Marine Corps Court of Military Review | 1979
Lead Opinion
In the early morning hours of 25 February 1974, the life of Mrs.- S. L. C., the dependent wife of a Marine Corps corporal, was tragically and violently snuffed out. Appellant was tried by general court-martial composed of officer members on an
I
APPELLANT WAS SUBSTANTIALLY PREJUDICED BY THE FAILURE TO CONVENE A BOARD TO INQUIRE INTO APPELLANT’S SANITY PURSUANT TO PARAGRAPH 121, MCM, 1969 (Rev.).
II
THE MILITARY JUDGE ERRED BY REFUSING TO ORDER AN INVESTIGATION INTO THE CHARGES WHICH COMPLIED WITH THE MANDATES OF ARTICLE 32, UCMJ, AND PARAGRAPH 34, MCM, 1969 (Rev.).
III
INASMUCH AS THE ARTICLE 34 ADVICE LETTER WAS DRAFTED BY TRIAL COUNSEL, THE MILITARY JUDGE ERRED BY REFUSING TO ORDER A NEW PRETRIAL ADVICE LETTER COMPOSED BY AN INDEPENDENT AND NEUTRAL PERSON.
IV
THE MILITARY JUDGE ABUSED HIS DISCRETION BY FAILING TO GRANT A CONTINUANCE SO THAT THE DEFENSE COULD OBTAIN A MEDICAL EXAMINATION CONCERNING THE APPELLANT’S MENTAL DEFECT.
V
APPELLANT WAS SUBSTANTIALLY PREJUDICED BY THE MILITARY JUDGE’S UTILIZATION OF MATTER NOT INTRODUCED INTO EVIDENCE AS WELL AS THE WRONG LEGAL STANDARD ON HIS ADJUDICATION OF THE MOTION TO SUPPRESS APPELLANT’S PRETRIAL ADMISSIONS.
VI
APPELLANT WAS SUBSTANTIALLY PREJUDICED BY THE FAILURE OF THE MILITARY JUDGE TO GRANT THE DEFENSE EQUAL ACCESS TO*795 WITNESSES AS MANDATED BY ARTICLE 46, UCMJ.
We address seriatim.
I
During appellant’s first trial, at the instigation of the defense, the military judge caused a military sanity board to be convened to inquire into and evaluate appellant’s mental responsibility.
The “preferred status” accorded to the defense of insanity has been well established.
II
In a somewhat similar vein, appellant challenges the military judge’s failure to order a new pretrial investigation.
We would be remiss at this point in not laying to rest certain misconceptions regarding the proper procedural role of the Article 32 investigation in those cases where an original conviction has been overturned by any reviewing entity.
Ill
Appellant also complains that inasmuch as the trial counsel allegedly drafted the Article 34 advice letter,
IV
At the initial Article 39(a)
Over two weeks later, on 26 September 1977, the formal report of the results of appellant’s electroencephalogram was placed into the record as an appellate exhibit. At this time the parties were still litigating the availability and assignment of an individual military counsel of appellant’s selection to aid in appellant’s defense. Approximately three weeks later, on 18 October 1977, detailed defense counsel, by written request addressed to the convening authority, sought to have appellant examined by a psychiatrist, a psychologist, and a neurologist of the defense’s choosing and at Government expense. In the same correspondence, the detailed defense counsel sought to preclude trial counsel from ascertaining who these potential defense witnesses would be.
When the next Article 39(a) session was convened on 23 November 1977, appellant had been tested and examined by these experts, and the defense asserted that they would be prepared to go to trial on the merits on 12 December 1977. However, owing to uncertainty respecting the schedules of the defense expert witnesses and docket commitments of the trial judge, trial was ultimately set for 3 January 1978. Further Article 39(a) sessions consumed the initial 2 days of trial and were devoted to diverse matters including litigating the voluntariness of four pretrial statements al
The next Article 39(a) session was held on 9 January 1978, and devoted entirely to the matter of appellant’s request for a pneumoencephalogram and tomogram. It appeared that no medical practitioner contacted by the parties had the capability to perform the requested examinations in the precise manner mandated by Dr. Mark, save that expert himself.
DC: It seems, Your Honor, that the type of pneumoencephalogram and tomogram that have to be done have to be done simultaneously and they need to be done on what is called a polytomes machine and apparently that’s a chair that allows the patient to be rotated in a manner that when the air is in the ventricles in the head he might be xrayed tomographically and apparently he has to be positioned very precisely and kept in a very precise position so that things can be done in a nice orderly manner and that all the area of the brain will be plain to those reading the x-ray. Apparently what they would have to do in New Bern to do the tomogram and the pneumoencephalogram simultaneously would be to physically move the x-ray machine around or physically move FREDERICK. In other words, have him lying on a table and move the table around the machine. In any event they couldn’t get the quality that Doctor MARKS would desire and that we would still have the same problem when we got done perhaps, of saying to the Government, ‘Well, you did it, its nothing conclusive, and we want further tests.’ and in other words the way they would do it in New Bern, Doctor WILLFONG said, would not be conclusive and that it should be done with this polytomes machine.
******
So defense counsel, in total, has tried the University of North Carolina, which doesn’t have the capability, Duke, which has the capability but it would take about six weeks, the Veterans Administration Hospital at Durham which would also take about two to three weeks, the Bethesda Naval Hospital, which would not admit him until about the 23rd, and Portsmouth Naval Hospital which doesn’t have the capability. (R. 240-241).
We have recently addressed a similar complaint and in so doing set out the standard against which a denial of a requested continuance must be measured:
It is well-settled that the issue of whether or not a continuance should be granted is a matter resting within the sound discretion of the military judge, that his ruling is a proper subject for appellate review for his abuse of that*802 discretion, and that he remains accountable for any resulting prejudice to an accused’s substantial rights. United States v. Thomson, 3 M.J. 271 (C.M.A.1977); United States v. Dunks, 1 M.J. 254 (C.M.A.1976). A trial judge should err on the side of liberalism in taking action on such a motion where there exists good cause for any ensuing delay. See Dunks, supra at 255 citing United States v. Daniels, 11 U.S.C.M.A. 52, 55, 28 C.M.R. 276, 279 (1959); United States v. Nichols, 2 U.S.C.M.A. 27, 36, 6 C.M.R. 27, 36 (1952). Once he has acted, our scrutiny will be directed to those matters properly before him which bore directly on his final determination. Gf., United States v. Quinones, 1 M.J. 64 (C.M.A.1975).
United States v. Furgason, 6 M.J. 844, 847 (N.C.M.R.1979). Applying this standard to the case at bar, we refuse to hold that appellant’s substantial rights were prejudiced or even that the military judge abused his discretion. Appellant’s request for delay came well after the eleventh hour
Even assuming, arguendo, a contrary conclusion, appellant’s position would not be enhanced. On cross-examination, the defense forensic psychiatrist, Dr. Ratner, admitted that the CAT-scan procedure is open to numerous interpretations by various qualified medical practitioners, that it showed only appellant’s current function at the time of the examination in late 1977, and that there were no measures available with which to compare this function as of the time of the alleged offense. In response to questions propounded by the military judge outside the presence of court members, Dr. Ratner indicated that Dr. Mark was consulted owing to the fact that appellant’s CAT-scan “was not particularly compatible with some of the other evidence that we had accumulated.” Dr. Ratner admitted that the two additional tests, the
V
Appellant also complains that he suffered substantial prejudice due to the military judge’s failure to properly adjudicate the defense motion to suppress certain pretrial admissions allegedly attributable to appellant. The first of these statements was uttered by appellant to a member of the Jacksonville, North Carolina, police department at approximately 0200 hours on 25 February 1974, while appellant was in the process of attempting to locate the local chief of police. According to the witnessing officer, appellant entered the police station carrying an infant, and, on his own volition, proceeded to the door of the chief of police’s office; upon nonaccusatory inquiry by the officer as to appellant’s business at that hour, appellant replied “I want you to take this child, I just killed its mother.” Under the circumstances here presented we find this statement wholly admissible.
Appellant would have us believe that at the time all of these incriminating statements were made, his mental state precluded his awareness and appreciation of the fact of incriminating himself and the associated failure to comprehend the full meaning and significance of what he was being told concerning his right to refrain from so doing. Thus, appellant would have us hold that his statements were in fact involuntary and therefore inadmissible as evidence against him. At trial, individual military counsel, in part, grounded his objection to the admission of these statements on appellant’s alleged mental irresponsibility at the time that the statements were made.
VI
Appellant’s final assertion of error here is that he was substantially prejudiced by the military judge’s failure to grant the defense equal access to witnesses in violation of the mandate of Article 46, Uniform Code of Military Justice.
In detailed defense counsel’s letter request to the convening authority, the touchstone of appellant’s contention was that “[t]o divulge these facts to the Government counsel would substantially impair the ability of the defense counsel to adequately defend the accused and would be a violation of Article 46 of reference (a) [UCMJ] which gives each party in a military trial equal opportunity to obtain witnesses.” At trial, the defense position seemed to crystalize somewhat
Accordingly, the findings and sentence are affirmed.
. Article 118(1), UCMJ; 10 U.S.C. § 918(1).
. Article 118(2), UCMJ; 10 U.S.C. § 918(2).
. United States v. Frederick, No. 74 2576 (N.C.M.R. 19 February 1976).
. Model Penal Code, art. 4, § 4.01 (Proposed Official Draft, 1962). See United States v. Frederick, 3 M.J. 230 (C.M.A. 1977).
. Article 119(a), UCMJ; 10 U.S.C. § 919(a).
. Para. 127(c), MCM, 1969 (Rev.).
. Article 66, UCMJ; 10 U.S.C. § 866.
. See Frederick, supra, at 3 M.J. 231. No question of appellant’s competency to stand trial arose during the course of the former trial, nor is such at issue here.
. Of these medical experts, the two psychiatrists who examined appellant at the first medical board testified for the defense; their testimony was refuted by the Government’s chief witness, the psychiatrist who was a member of the second medical board convened by the trial court’s order. See Frederick, supra, at 3 M.J. 232.
. See United States v. Van Buskirk, 3 M.J. 341 n.2 (C.M.A.1977). We specifically reject appellant’s analogy by inference in that here there is no defense assertion that the second sanity board was invalid or that any Government psychiatrist who examined appellant and rendered findings and opinions based upon those examinations was not competent to do so. All of the defense medical experts who examined appellant did so with a knowledge of the new substantive law standard and that this standard would be utilized at appellant’s second trial.
. United States v. Babbidge, 18 U.S.C.M.A. 327, 329, 40 C.M.R. 39, 41 (1969).
. See United States v. Walker, 20 U.S.C.M.A. 241, 246, 43 C.M.R. 81, 86 (1971).
. See para. 121, MCM, 1969 (Rev.), which must be read in light of United States v. Frederick, supra, at note 4.
. Cf. Lozinski v. Wetherill, 21 U.S.C.M.A. 52, 53, 44 C.M.R. 106, 107 (1971), quoting United States v. DeAngelis, 3 U.S.C.M.A. 298, 305, 12 C.M.R. 54, 61 (1953); see United States v. Nix, 15 U.S.C.M.A. 578, 581-582, 36 C.M.R. 76, 79-80 (1965).
. The opinions of these two expert witnesses were founded upon their own examinations as well as those conducted by a neuropsychologist, a neurologist, a neurosurgeon, and an electroencephalographer. None of these six defense experts were service personnel.
. See Babbidge, supra, 18 U.S.C.M.A. at 332, 40 C.M.R. at 44.
. Cf. United States v. Donaldson, 23 U.S.C.M.A. 293, 294, 49 C.M.R 542, 543 (1975); United States v. Mickel, 9 U.S.C.M.A. 324, 327, 26 C.M.R. 104, 107 (1958).
. Article 32, UCMJ, 10 U.S.C. § 832.
. See United States v. Samuels, 10 U.S.C.M.A. 206, 213, 27 C.M.R. 280, 286 (1959); accord, United States v. Ledbetter, 2 M.J. 37, 43 (C.M.A.1976).
. See notes 9 and 15, supra, and accompanying text.
. See para. 34e, MCM, 1969 (Rev.); United States v. Allen, 5 U.S.C.M.A. 626, 631, 18 C.M.R. 250, 255 (1955).
. Frederick, supra, at note 4.
. Cf. United States v. Van Buskirk, 3 M.J. 341 (C.M.A.1977) where there was merely a unitary psychiatric position as opposed to the conflicting opinions evident here. See note 10, supra.
. We choose not to draw a distinction here between the review function performed by a convening authority, see paras. 86 and 92, MCM, 1969 (Rev.), and that same function carried out by an appellate tribunal.
. United States v. Nichols, 8 U.S.C.M.A. 119, 124, 23 C.M.R. 343, 348 (1957).
. See para. 92a, MCM, 1969 (Rev.).
. United States v. Flint, 1 M.J. 428, 429 (C.M.A. 1976).
. Thus, for example, “with the possible exception of the sufficiency of the evidence to support the charges, the pretrial proceedings, including the formal investigation under Article 32, are separate from the trial.” United States v. Mickel, 9 U.S.C.M.A. 324, 327, 26 C.M.R. 104, 107 (1958). “Once the case comes to trial on the merits, the pretrial proceedings are superseded by the procedures at the trial; the rights accorded the accused in the pretrial stage merge into his rights at trial.” Id.
. See United States v. Donaldson, 23 U.S.C.M.A. 293, 294, 49 C.M.R. 542, 543 (1975).
. See Article 34, UCMJ, 10 U.S.C. § 834.
. This Court has previously rejected a similar contention out of hand. See United States v. Hardin, No. 77 1605 (NCMR 28 February 1978), pet. granted 5 M.J. 251 (C.M.A.1978). Had the request in this case been granted, the result would have been the preparation of the third Article 34 advice letter in Frederick’s case.
. See Article 34, UCMJ, 10 U.S.C. § 834; para. 356, MCM, 1969 (Rev.); United States v. Greenwalt, 6 U.S.C.M.A. 569, 20 C.M.R. 285 (1955).
. Compare para. 35b, with para. 92a, MCM, 1969 (Rev.). We note that apparently the only officer whom the convening authority need consult in cases of rehearings is the trial counsel. See id., para. 92a.
. See e. g., United States v. Frederick, supra, at 3 M.J. 238.
. Article 34(a), UCMJ, 10 U.S.C. § 834(a); para. 35b, MCM, 1969 (Rev.).
. Cf., United States v. Greenwalt, supra, at 6 U.S.C.M.A. 572, 20 C.M.R. 288.
. See Article 63(b), UCMJ, 10 U.S.C. § 863(b); para. 92a, MCM, 1969 (Rev.).
. See Article 67(f), UCMJ, 10 U.S.C. § 867(f); para. 92a, MCM, 1969 (Rev.).
. Cf., United States v. Porter, 1 M.J. 506, 510 (A.F.C.M.R.1975), citing United States v. Foti, 12 U.S.C.M.A. 303, 30 C.M.R. 303 (1961).
. Article 39(a), UCMJ, 10 U.S.C. § 839(a).
. In pertinent part the correspondence states that “[t]he General will note that this letter lacks details as to who the defense witnesses might be and what they might say. This is due to the fact that the defense requests that the General give the defense permission to provide the required detail in such a way that the Govemment counsel in this case will not have knowledge of who the accused is to see and why specifically there is a need to see these persons.” The sub silentio reference to United States v. Carpenter, 1 M.J. 384, 386 n.8 (C.M.A.1976) is obvious.
. The situs of trial was Camp Lejeune, Jacksonville, North Carolina.
. We set out the following merely to highlight one of the myriad problems faced by all trial participants when a psychiatric defense is in the offing:
DC: Your honor, the defense is perfectly willing to put on the record the reason for this; we have already spoken to the government about this, yesterday, within an hour or two of it becoming, or of the defense counsel becoming aware of the situation. It seems that an EMI-scan, also called a CAT-scan, was done on the accused at the University of Maryland Medical School, Baltimore. This was read by a doctor there who we never talked to, and provided to a neurologist; the neurologist was apparently not someone that read any scans, but it was apparently that our doctor relied upon other doctors to read them, and then communicate to her what the information was. We have yet to receive that document, although we have put a lot of money into it, have yet to receive her report. In any event, defense counsel was reading background material on the area, and happened to come across the name of Doctor MARK, so defense counsel called Doctor MARK — this was last week — and asked him if there was anything new in this particular area which he had a great expertise. Doctor MARK being at the Harvard Medical School, and also Chief of Neurosurgery at Boston City College, Boston City Hospital. Doctor MARK was read certain parts of the information that we had received from this other person, and he said, “Well I believe that person is in error; in regards to that EMI-scan, I don’t believe, as you read it to me, that it’s correct. Why don’t you send me a copy of that and I’ll be happy to read it for you.” So, defense counsel, on Friday, the same day that this took place, arranged for the University of Maryland, somebody at the University of Maryland Medical School, a Doctor WU, W-U, to forward that to Doctor MARK, apparently a recognized expert on reading these items, and he read it, and he says along with consultation with one of his colleagues, and he said that while he could not diagnose the accused based upon that EMI-scan, as having a brain defect, that there was a, I believe his words were, significant chance, that, given these other two tests, the pneumoencephalogram and the tomogram, that depending on what they show of course, that he might be able to diagnose the accused as having an organic brain defect, and that’s where we’re at. At this time he would say there is a significant chance; he can’t, in honesty, say that there is in fact a brain defect. That is why the lateness of the hour that we bring this up. It was pure chance that defense counsel even found out that there had been an error in the reading of the first one. Now, our psychiatrist, of course, is going to talk to the neurosurgeon in question, Doctor MARK, and we have that much but, according to Doctor MARK, there might be more. He can’t say. (R. 192).
MJ: What’s your witness status?
TC: Sir, we have currently available in town six witnesses, three of whom have come from Hawaii, California, Connecticut, respectively; they are NIS agents and they will be here for the duration of this trial. We have coming in Monday from Hawaii, California, and Mississippi, both military and civilian witnesses who have been subpoenaed, who have been forwarded checks, who have arranged their schedules; we have appearing Monday an expert pathologist, who has arranged his schedule to be here to testify; we have, of course, coming Tuesday the government’s psychiatrist, who has arranged his schedule to be available on that day, and for the next two days following, and, quite frankly, the government isn’t sure if we can do the administrative things necessary to even get the accused to Duke University, or wherever, tomorrow morning. Certainly we have the power to cut through policy decisions and that kind of thing, but there are certain requirements that must be met; appropriations data, cutting orders, arranging for transportation, and this just takes some time to do. (R. 193).
. The following excerpt from the record is illuminating in this regard:
. In Furgason, supra, we paused to note that: Even where such a request could not ordinarily be considered as made in a timely fashion, this Court has adopted an ad hoc approach wherein each case is determined on its inherent facts, see United States v. Roberts, No. 71 0926 (N.C.M.R. 8 February 1972) and cases cited therein, and where it is clear that the ends of justice will best be served by the granting of the motion the trial judge acts at his peril in denying it. See United States v. Odle, No. 71 0649 (N.C.M.R. 28 July 1971); see also United States v. Morgan, No. 76 0233 (N.C.M.R. 17 August 1976) and cases cited therein; but see United States v. Mortuiccio, No. 71 0496 (N.C.M.R. 16 July 1971). Id. at n.12.
. See Roberts and Odie, both supra; see also Article 40, UCMJ, 10 U.S.C. § 840; para. 58b, MCM, 1969 (Rev.).
. Cf., United States v. Furgason, supra; United States v. Kilby, 3 M.J. 938 (N.C.M.R. 1977); United States v. Somerville, 48 C.M.R. 885 (N.C.M.R.1974).
. See United States v. McGee, 36 C.M.R. 785, 795 (N.B.R.1966).
. The precise issue was determined over a decade ago with no intervening authority known to the contrary: “There is no requirement that police stop a person who enters a police station and states that he wishes to confess to a crime, or a person who calls the police to offer a confession or any other statement he desires to make. Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not effected by our holding today.” Miranda v. Arizona, 384 U.S. 436, 478, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694, 726 (1966), citing People v. Dorado, 62 Cal.2d 338, 354, 42 Cal.Rptr. 169, 179, 398 P.2d 361, 371 (1965).
. Upon leaving the police station the appellant led police directly to the scene of the crime where the body of the victim was found under circumstances which affirmatively precluded accident or misadventure as the cause of death.
. See Miranda, supra.
. See Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 714, 50 L.Ed.2d 714, 719 (1977).
. All four of the verbal statements were held admissible to impeach appellant during cross-examination during his first trial. See Frederick, supra, 3 M.J. at 233 n.5.
. Record, at 125, 185.
. Appellant’s brief at 18.
. Record, at 447-450. Until now, there has never been any finding or allegation which brought into question appellant’s mental capacity, as contradistinguished from his mental responsibility. Further, there is no evidence of record which would even remotely indicate or suggest that appellant, at the time the challenged statements were made, was irrational or otherwise suffering from any mental infirmity giving rise to a diminution of rational intellect which would have deprived him in any degree of the cognitive and volitional ability to refrain from making the incriminating statements had he desired to do so. Cf. Eisen v. Picard, 452 F.2d 860 (1st Cir. 1971). In other words, assessing the totality of the surrounding circumstances, there is nothing to indicate that at the time the statements were made appellant’s capacity for self-determination was critically impaired or that his statements were not the product of an essentially free and unconstrained choice and therefore involuntary. Cf. Schneckloth v. Bustamonte, 412 U.S. 218, 223-227, 93 S.Ct. 2041, 2045-2047, 36 L.Ed.2d 854, 860-862 (1973).
. United States v. Erb, 12 U.S.C.M.A. 524, 536-537, 31 C.M.R. 110, 122-123 (1961).
. 10 U.S.C. § 846.
. See note 41, supra, and accompanying text.
. See § 1.6, The Function of the Trial Judge, American Bar Association Project on Standards for Criminal Justice (ABA, 1972); Canon 3 A(4), Code of Judicial Conduct (ABA, 1977); see also United States v. Kennedy, 8 U.S.C.M.A. 251, 24 C.M.R. 61 (1957); United States v. Gardner, 46 C.M.R. 1025 (ACMR 1972); cf. United States v. Payne, 3 M.J. 354 (C.M.A.1977).
. In response to a question propounded by the military judge to defense counsel aimed at ferreting-out the rationale underlying the defense request, the following appears of record:
DC: Well, Your Honor, we have consulted with prospective witnesses and two of them we have talked to in person having taken a trip last weekend to the Washington, D.C., area. We do feel the identification of the witnesses is a very important matter in that the Government might end up subpeonaing (sic) the witnesses for their own case. We have an idea what the witnesses will say. We believe the witnesses will sort of support our position, but these are professional men and they call them as they see them. Now, right now they seem to think that they would call them as the defense sees them, but possibly after further examination they would come up with stuff that would help the Government. And we do not want to tell the Government who we have talked to because at a later time they might subpoena them themselves. We don’t think that’s unreasonable, sir. Even their identity is important and we would tell the identity to the Commanding General or the Military Judge or whomever feel they want to keep [trial counsel] in the dark. (R. 97-98).
. The prosecution right of discovery in cases where an accused raises the defense of lack of mental responsibility is widely recognized. Reflecting the trend which supports the view that proper adjudication is a function of evenhanded accessibility to evidence is federal legislation, see F.R.Crim.P. 16(b)(1)(B), and statutory mandate and case law applicable to almost one-fourth of the State jurisdictions, see Ala. Code Ann. tit. 15, § 15-16-22 (1977); Alaska Stat.Ann. § 12.45.087 (1972); Ariz.R.Crim.P. 11.4 (1973); Colo.Code Crim.P., Art. 8, § 16-8-106 (1974); Conn.Gen.Stat.Ann. § 54—40(b) (1977); Idaho Code Ann. § 18-211(3)(e) (1978); Mo.Stat.Ann. § 552.020.4 (Supp.1979); Vt.Stat.Ann. tit. 13, § 4816 (1974); Va.Code Ann. § 19.2-169 (1975); Wyo.Stat.Ann. § 7-241(a) (1957); People v. Blank, 64 Misc.2d 730, 315 N.Y.S.2d 647 (1970); State v. Sauls, 224 La. 1063, 71 So.2d 568 (1954). Also in accord with
. See Estes v. Texas, 381 U.S. 532, 540, 85 S.Ct. 1628, 1631, 14 L.Ed.2d 543, 549 (1965), rehearing denied, 382 U.S. 875, 86 S.Ct. 18, 15 L.Ed.2d 118 (1965); cf. United States v. Wolfe, 8 U.S.C.M.A. 247, 250, 24 C.M.R. 57, 60 (1957).
. Cf. United States v. Carpenter, 1 M.J. 384, 386 n.8 (C.M.A.1976).
. See United States v. Arias, 3 M.J. 436, 438 (C.M.A. 1977).
Dissenting Opinion
(dissenting):
The three expert witnesses who testified in this case, two for the defense and one for the Government, while not in agreement on the exact nature of appellant’s mental condition, did agree unanimously that appellant was suffering from a mental disease or defect at the time of the offense. They disagreed, however, as to the effect of his condition. The Government witness was of the opinion that appellant did not lack the substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. On the other hand, the defense witnesses believed appellant lacked both the capacity to appreciate the criminality of his conduct and to conform his conduct to the requirements of the law. The conclusions of the defense witnesses were based in large part on objective tests that the Government witness failed to administer when examining appellant and formulating his opinions. After weighing all this evidence, I am not convinced beyond a reasonable doubt that the appellant was mentally responsible at the time of the offense. Accordingly, I would reverse.