Case Information
*1 UNITED STATES, Appellee
v.
Richard R. MOTT, Seaman U.S. Navy, Appellant No. 12-0604
Crim. App. No. 200900115 United States Court of Appeals for the Armed Forces Argued January 23, 2013 Decided July 8, 2013 BAKER, C.J., delivered the opinion of the Court, in which ERDMANN, STUCKY, and RYAN, JJ., and EFFRON, S.J., joined.
Counsel
For Appellant: Lieutenant Ryan C. Mattina, JAGC, USN (argued). For Appellee: Major William C. Kirby, USMC (argued); Colonel Stephen C. Newman, USMC, and Brian K. Keller, Esq. (on brief); Colonel Kurt J. Brubaker, USMC. Military Judges: Moira Modzelewski and Daniel Daugherty
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION .
Chief Judge BAKER delivered the opinion of the Court.
Contrary to his plea, Appellant was convicted at a general
court-martial with members of attempted premeditated murder in
violation of Article 80, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 880 (2006). The adjudged and approved
sentence included confinement for nine years, a dishonorable
discharge and reduction to pay grade E-1.
[1]
The United States
Navy-Marine Corps Court of Criminal Appeals (CCA) affirmed.
United States v. Mott, No. 200900115,
I. A LACK OF MENTAL RESPONSIBILITY DEFENSE EXISTS WHEN A MENTALLY DISEASED ACCUSED CANNOT APPRECIATE THE WRONGFULNESS OF HIS CONDUCT. HERE, EXPERTS TESTIFIED THAT APPELLANT’S PARANOID SCHIZOPHRENIA AND SEVERE DELUSIONS CREATED HIS SUBJECTIVE BELIEF THAT STABBING THE VICTIM WAS JUSTIFIED. BUT THE MILITARY JUDGE AND NMCCA ADOPTED AN OBJECTIVE STANDARD FOR “WRONGFULNESS.” WHAT IS THE APPROPRIATE STANDARD IN DETERMINING WHETHER AN ACCUSED CAN APPRECIATE THE WRONGFULNESS OF HIS CONDUCT?
II. UNDER THE FIFTH AMENDMENT, AN ACCUSED’S STATEMENT TO INVESTIGATORS IS ADMISSIBLE ONLY IF IT WAS OBTAINED WITH A VOLUNTARY, KNOWING, AND INTELLIGENT WAIVER WHERE THE ACCUSED UNDERSTANDS HIS RIGHTS AND THE CONSEQUENCES OF WAIVING THEM. HERE, EXPERT WITNESSES TESTIFIED THAT APPELLANT COULD NOT UNDERSTAND HIS RIGHTS OR THE CONSEQUENCES OF WAIVING THEM BECAUSE OF HIS SEVERE MENTAL DISEASE. DID THE MILITARY JUDGE ERR BY ADMITTING THE STATEMENT?
In short, we conclude that the military judge did not err in his instructions in adopting an objective standard for “wrongfulness,” but did abuse his discretion by admitting Appellant’s statement without first contextually analyzing whether Appellant could and did knowingly and intelligently waive his right to counsel. See Edwards v. Arizona, 451 U.S. 477, 484 (1981) (“[T]he voluntariness of a consent or an admission on the one hand, and a knowing and intelligent waiver on the other, are discrete inquiries.”).
BACKGROUND
On March 6, 2007, Seaman Recruit (SR) JG reported for duty
as a crew member aboard the USS CAPE ST. GEORGE (CG-71). 2009
CCA LEXIS 424, at *2,
The bizarre content of Appellant’s statement prompted the
convening authority to order a mental health examination under
Rule for Courts-Martial (R.C.M.) 706 on March 15, 2007. This
examination concluded that Appellant suffered from “severe”
“[s]chizophrenia, paranoid type” at the time of the offense and
that he was “incompetent to stand trial.”
[2]
Even after months of
psychiatric treatment, as of January 2008 Appellant’s residual
delusional ideation and “significantly compromised cognitive
capacities” prevented him from having a reality-based
understanding of his legal situation. Malingering -- that is,
faking mental illness -- was determined by the R.C.M. 706
examination to be “very unlikely”: if anything, Appellant
exhibited “a hesitancy to admit to problems of a psychological
nature.” A subsequent R.C.M. 706 examination was conducted on
May 19, 2008. The examining psychiatrist concluded that, at the
time of the offense, Appellant believed that “he was acting in
self-defense,” that “the only way to stop [JG from killing him]
was to attack [JG],” and that his actions were “justified and
not wrong.” There is no dispute between the parties that at the
time of his NCIS interview, Appellant was suffering from
paranoid schizophrenia.
As part of Appellant’s paranoid delusion at the time of the
offense, he believed that sometime in the summer of 2003, a
group of up to fifteen men had accosted him while he was at his
girlfriend’s apartment and gang raped him.
At trial, Appellant sought unsuccessfully to suppress his statement to NCIS asserting that the waiver of his rights was not knowing and intelligent and therefore invalid because of his delusional state at the time. During the merits phase of the trial, the defense called two forensic psychiatrists who testified regarding their evaluations of Appellant and the delusional system Appellant had built around himself at the time of the offense. Each adhered to his view that because of Appellant’s severe paranoid schizophrenia, Appellant did not appreciate the wrongfulness of his actions at the time. One psychiatrist, Dr. Simmer, testified that he was aware that five other mental health professionals, besides himself, had examined Appellant, and that he was not aware that any of them had returned findings inconsistent with his own.
Appellant’s defense at trial was lack of mental responsibility, and the military judge instructed on this affirmative defense. [3] During deliberations, one of the members specifically asked, “What is the legal definition of ‘wrongfulness of his conduct?’” Over defense objection, the military judge instructed the members as follows:
If the accused was able to appreciate the nature, and quality, and the wrongfulness of (his) conduct, (he) is criminally responsible; and this is so, regardless of whether the accused was then suffering from a severe mental disease or defect, and regardless of whether or not (his) own personal moral code was violated by the commission of the offense. . . . .
When the law speaks of wrongfulness[,] the law does not mean to permit the individual to be his own judge of what is right or wrong. What is right or wrong is judged by societal standards. The standard focuses on the accused’s ability to appreciate that his conduct would be contrary to public or societal standards.
The accused is presumed to be mentally responsible. . . .
If you determine that, at the time of the offenses . . . the accused was suffering from a severe mental disease or defect, then you must decide whether, as a result of that severe mental disease or defect, the accused was unable to appreciate the nature and quality or wrongfulness of his conduct.
If the accused was able to appreciate the nature and quality or the wrongfulness of his conduct, he is criminally responsible; and this is so regardless of whether the accused was then suffering from a severe mental disease or defect.
On the other hand, if the accused had a delusion of such a nature that he was unable to appreciate the nature and quality or wrongfulness of his acts, the accused cannot be held criminally responsible for his acts, provided such a delusion resulted from a severe mental disease or defect.
Emphasis added. Defense counsel argued at trial that “the accused not being able to appreciate it as contrary to public or societal standards, is not the same thing as the accused not realizing other people may perceive it as wrong.” Similarly, before this Court, Appellant asserts that the instruction given by the military judge provided a purely objective standard for wrongfulness. He urges this Court to adopt a standard that incorporates the subjective beliefs of the accused in determining wrongfulness.
DISCUSSION
I. Jury Instructions on Wrongfulness
The affirmative defense of lack of mental responsibility requires the accused to prove, by clear and convincing evidence, that at the time of the offense, (1) the accused suffered from a “severe mental disease or defect,” and (2) as a result of that mental disease or defect, the accused was “unable to appreciate” either (a) the “nature and quality” of his acts, or (b) the “wrongfulness” of his acts. Uniform Code of Military Justice, Article 50a, UCMJ, 10 U.S.C. § 850a(a) (2006). Article 50a, UCMJ, is “substantively identical” to the federal civilian insanity defense, enacted in the Insanity Defense Reform Act of 1984 (IDRA), Pub. L. No. 98-473, sec. 402, § 20, 1837, 2057 (codified as amended at 18 U.S.C. § 17 (2006)).
This Court previously considered the insanity defense in
United States v. Martin,
[T]o establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.
8 Eng. Rep. at 722 (emphasis added). In Martin,
The first portion relates to an accused who is psychotic to an extreme degree. It assumes an accused who, because of mental disease, did not know the nature and quality of his act; he simply did not know what he was doing. For example, in crushing the skull of a human being with an iron bar, he believed that he was smashing a glass jar. The latter portion of M’Naghten relates to an accused who knew the nature and quality of his act. He knew what he was doing; he knew that he was crushing the skull of a human being with an iron bar. However, because of mental disease, he did not know that what he was doing was wrong. He believed, for example, that he was carrying out a command from God.
2 Charles E. Torcia, Wharton’s Criminal Law § 101, at 17 (15th ed. 1994).
However, in enacting the IDRA and Article 50a, UCMJ,
Congress sought to broaden the insanity defense test from
M’Naghten’s “know” to the Model Penal Code’s “appreciate.” See
Martin,
The UCMJ does not define “wrongfulness of the acts.” The
meaning of appreciating “wrongfulness” was analyzed at length in
the original M’Naghten’s Case and analyzed more recently in the
context of the IDRA in United States v. Ewing,
In M’Naghten’s Case, the judges of the Queen’s Bench
responded to the questions of the House of Lords about insanity
and mental responsibility for criminal conduct. The judges
explained that the jury should determine whether, at the time of
committing the alleged act, the accused “knew the difference
between right and wrong . . . in respect to” the charged act. 8
Eng. Rep. at 722-23. The jury instruction is for knowing “right
and wrong” rather than knowing that the act violates the law, so
as to not confuse the jury by suggesting that the accused must
have “actual knowledge of the law of the land.” Id.
“Wrongfulness” in the context of the M’Naghten rule thus has two
components: (1) that “the accused was conscious that the act
was one which he ought not to do,” and (2) that the “act was at
the same time contrary to the law of the land.” Id. As Ewing
explains, the “relevant inquiry . . . was not a defendant’s
actual knowledge of the criminal law under which he was accused,
but rather whether the defendant understood the difference
between right and wrong.” Ewing,
M’Naghten’s Case demonstrates that “wrongfulness” is substituted for “criminality” not to create two (or more) distinct moral codes by which a defendant’s conduct could be judged, but rather to ensure that the inquiry remains focused on a defendant’s ability to understand wrongfulness, rather than his actual knowledge of the law.
Id. at 620 n.6.
The M’Naghten court also considered the effect of delusions on mental responsibility. The court explained that a person under the influence of a delusion “must be considered in the same situation as to responsibility as if the facts with respect to which the delusion exists were real.” 8 Eng. Rep. at 723. For example:
[I]f under the influence of his delusion he supposes another man to be in the act of attempting to take away his life, and he kills that man, as he supposes, in self-defence, he would be exempt from punishment. If his delusion was that the deceased had inflicted a serious injury to his character and fortune, and he killed him in revenge for such supposed injury, he would be liable to punishment.
Id.
On appeal, Appellant challenges the military judge’s
instructions to the members regarding the meaning of
“wrongfulness” for purposes of the defense of lack of mental
responsibility. Appellant urges us to find that “wrongfulness”
in Article 50a, UCMJ, means a subjective wrongfulness as
determined by the accused’s sense of right and wrong. Appellant
finds support in two federal appellate cases -– one of which was
written before the adoption of the IDRA and the other relying
heavily on the former. See United States v. Segna, 555 F.2d
226, 232-33 (9th Cir. 1977) (describing three interpretations of
wrongfulness as (1) “legally wrong, or contrary to law,” (2)
“contrary to public morality,” and (3) “subjective” or “contrary
to one’s own conscience,” and adopting the third “subjective”
test (internal quotation marks omitted)); United States v.
Dubray,
“Whether a panel was properly instructed is a question of law” which we review de novo. United States v. Garner, 71 M.J. 430, 432 (C.A.A.F. 2012) (quoting United States v. Ober, 66 M.J. 393, 405 (C.A.A.F. 2008) (internal quotation marks omitted).
As in M’Naghten’s Case, courts examining the issue since
the enactment of the IDRA and Article 50a, UCMJ, have found that
“wrongfulness” should be determined using an objective standard.
See, e.g., United States v. Ewing,
Society formally expresses its determinations of “right and
wrong” and “public morality” through law. See State v. Worlock,
Therefore, like the majority of federal and state appellate
courts who have addressed the issue, we adopt an “objective”
standard for determining “wrongfulness”
[6]
in the context of
moral wrong for the purpose of applying the insanity defense.
[6] While the issue on appeal in this case is the standard for
“wrongfulness,” it is important to note that the defense of
mental responsibility turns on the accused’s ability to
appreciate the nature and quality or wrongfulness of his
actions. See Martin,
II. Knowing and Intelligent Waiver
The issue here is whether Appellant knowingly and
intelligently waived his Fifth Amendment and Article 31, UCMJ,
rights to counsel. Appellant argues that Appellant’s severe
mental disease prevented him from knowingly and intelligently
waiving his right to counsel. The Government argues that the
evidence shows by a preponderance of the evidence that Appellant
sufficiently understood his rights at the time of the waiver.
Without deciding whether Appellant knowingly and intelligently
waived his right to counsel, we hold that the military judge
abused his discretion by failing to analyze as a matter of law
whether Appellant could and did knowingly and intelligently
waive his rights. Colorado v. Connelly,
(1986), focuses on whether a statement is voluntary and in
particular the product of police coercion, which the military
judge addressed. Edwards, however, requires that a waiver of
rights be knowing and intelligent, and not merely voluntary.
See
A. Appellant’s Suppression Hearing
Before trial, Appellant moved to suppress the statement he gave to NCIS. At the ensuing hearing, the Government called Special Agent Jonathan Oakes, one of two NCIS agents who took Appellant’s statement. The defense called Dr. Sadoff, a psychiatrist who had reviewed Appellant’s history and was recognized by the court as an expert in forensic psychiatry. The court also considered Appellant’s signed statement, waiver of rights form, and the video from the last hour and fifteen minutes of the four-and-a-half-hour interrogation. [7] 1. Special Agent Oakes’s Testimony
Oakes testified that he interviewed Appellant with another unarmed agent in an NCIS office. Appellant signed the standard rights waiver form. Oakes interviewed Appellant, then typed Appellant’s statement and let Appellant review the statement. Appellant reviewed the statement and made some changes. The statement followed a standard template. Appellant appeared alert and sober, and was offered breaks and snacks.
Oakes testified that Appellant gave a number of bizarre statements during the interrogation. For example, Appellant told the agents that when he was thirteen years old, Special Forces troops kidnapped him in the Bronx and broke his neck. Appellant also described his connection to the terrorist Zacarias Moussaoui and claimed that he had spoken with Presidents Clinton and Bush.
Oakes did not believe Appellant’s “bizarre” statements. Oakes was not surprised when Appellant stated that he was of “sound mind and body,” because Oakes had experience with mentally ill persons and understood that they sometimes do not recognize that they are ill.
When asked by defense counsel, Oakes at first denied that Appellant’s interview was videotaped because of Appellant’s bizarre statements and behavior, and instead attributed the videotaping to the “growing CSI effect.” On further probing, Oakes stated that at the time of Appellant’s interview: NCIS’s policy was to not videotape interviews; that he had previously interviewed other suspects of aggravated assault and attempted murder; and that he had never -- in over two hundred suspect interviews -- recorded an interrogation other than that of Appellant. In Appellant’s case, Oakes was specifically instructed by his supervisor to videotape part of the interview. The military judge found that “[t]he later portion of SN Mott’s interrogation was recorded on video due to the bizarre nature of his initial statements.”
2. Interrogation Statement and Video
In conjunction with Oakes’s testimony, the Government presented Appellant’s signed statement and the videotape of approximately one hour of Appellant’s interrogation.
The statement described Appellant’s account of the events leading up to the attack, the attack itself, the alleged rape by JG and others in 2003, and a previous unrelated alleged rape. [8] Appellant described hearing JG say “he was ‘going to have to kill MOTT’” and his family. Appellant considered asking someone for a gun, but “thought it might cause a confrontation or someone would question why I wanted the gun.” Instead, Appellant “purchased the knife for protection.” Appellant saw JG again the next morning, poured a glass of water, approached JG, and stabbed him. The statement then describes Appellant’s intent:
When I heard [JG]’s voice, on 07Mar07, I immediately knew I wanted to kill him. I purchased the knife knowing I wanted to kill him. When I was “hitting” [JG], I wanted him to die. If [JG] does not die, then he still will be a threat to my life. I believe this was divine intervention. God placed us on the ship together so justice could be served.
The statement devotes just as much space to meticulous descriptions of Appellant’s perceived previous rapes. According to the statement, Appellant was with his girlfriend MQ in 2003 when she breathed a drug into him, “several unknown males (one of which being [JG]) jumped out of the closet,” the males then “shoved an unknown liquid (contained in a zip-lock bag) and a powder (contained in a second bag) up my anus,” turned the bags inside out, and then “cut inside my anus with small plastic pieces.” The statement alleges that JG was part of a team of about fifteen people involved in the assault. The statement also describes a previous incident in which Appellant’s girlfriend “drugged me with an unknown drug,” Appellant “passed out,” and during that time “unknown girls in the apartment were putting drugs up my ass, then removing them and selling them.”
The video starts approximately three hours into the interrogation, after most of the statement was already written. The video also contains a number of extraordinary statements. In one exchange, Appellant asserts that he was looking into buying psychedelic mushroom spores so that he could give the mushrooms to a hospital. The agent responds that you cannot sell psychedelic mushrooms to a hospital, Appellant considers a moment, and then responds that he will just build his own hospital then. Later, when the agent asks Appellant to confirm that the written statements are his thoughts, Appellant does not contest the account of the attempted murder but instead exhorts the agent, “Did we put the part in there about the bag?” When the agent asks if Appellant wanted to kill everyone involved in his alleged rape, Appellant considers the question and in seriousness notes that “I mean, everybody dies, unless they are immortal or something, which is a possibility,” but that he wanted to see his assailants “killed or in jail forever.” The agent suggests “brought to justice” and Appellant responds “that’s even better.” Appellant seemed to waver between whether he wanted JG dead, in jail, or simply no longer a danger to him. Appellant similarly wavered between whether, during the alleged 2003 rape by JG and others, JG and the other assailants had actually killed Appellant (he was later “zapped back up”) or whether Appellant only feigned death. [9]
3. Dr. Sadoff’s Expert Opinion Regarding Waiver
Dr. Sadoff testified that Appellant was not competent to waive his right to remain silent:
Q: Now, Doctor, in your expert medical opinion, would Seaman Mott have been competent to understand the waiver of his rights to remain silent, and the full consequence of waiving those rights?
A: In my opinion, he would not have been because he was so psychotic with delusional carryover, and hallucinations that were ongoing at the time, that he [sic] could have prevented him from fully appreciating and understanding the implications and consequences of waiving his rights and making a statement.
Dr. Sadoff explained “competency” as: a person who “knows and understands the nature and consequences of the legal situation in which he is involved, really, the consequences of making statements, appreciating them, from not only an intellectual, but also an emotional point of view.” While Appellant appeared to be acting logically, his psychotic state prevented him from emotionally appreciating what he was doing. Moreover, while Appellant was able to answer questions, much of what Appellant said was “bizarre and delusional,” “reflecting [the] hallucinations that [Appellant] was having.”
Dr. Sadoff explained how psychosis affects a person’s thinking. According to Dr. Sadoff, psychosis affects how a person “intellectually, cognitively, and also emotionally” understands “everything that goes into the brain.” Dr. Sadoff testified that, as a result, “psychosis affects a person’s judgment, affects his thinking, [and] affects his reaction.” Dr. Sadoff explained that “[p]sychotic people have different ways of looking at things, and they do things that may appear to be logical but, in their own [mind] -- if you probe even further, and get below the surface of that paralogic, I think you will find a whole set of psychotic bizarre ideas.”
With regard to Appellant in particular, the Government asked Dr. Sadoff during cross-examination whether Appellant’s psychosis “prevent[ed] him from understanding the consequences of waiving his rights to remain silent.” Dr. Sadoff testified that “it did, because he was so certain about what he did and why he did it, even though his reasons were based on psychotic delusions and hallucinations.” Dr. Sadoff asserted that Appellant’s evolving and contradictory stated reasons for his actions were not the result of an awareness of how his conduct might be perceived, but rather are typical of psychotic persons and “reflected [Appellant’s] degree of confusion, and his psychotic state of mind.” Dr. Sadoff concluded that “it was [Appellant’s] paranoia that caused him to make these adjustments, not logical concern about how it would look.”
On the other hand, Dr. Sadoff also testified that “even people who are psychotic and paranoid have an awareness and an intellectual ability to understand and be aware of the reality of what they may do, and its effect on other people.” Thus, even though Appellant was psychotic, Appellant knew that asking for a gun would raise suspicions.
4. Military Judge’s Findings
In his ruling, the military judge did not address Dr. Sadoff’s testimony, but apparently rejected it in finding (as a finding of fact, not law) that Appellant “knowingly, intelligently, and voluntarily waived his rights.” The military judge found that the “accused’s memory and thought processes were functioning” during the interrogation and that “[t]he accused gave, although bizzare [sic] in content, logical answers to the questions that were asked.”
a. Abuse of Discretion
“We review a military judge’s decision to deny a motion to
suppress evidence -- like other decisions to admit or exclude
evidence -- for an abuse of discretion.” United States v.
Freeman,
b. Right to Counsel
“[T]he accused’s statement during a custodial
interrogation
[10]
is inadmissible at trial unless the prosecution
can establish that the accused in fact knowingly and voluntarily
waived Miranda rights.” Berghuis v. Thompkins,
The accused has to have “full awareness of both the nature
of the right being abandoned and the consequences of the
decision to abandon it.” Thompkins,
However, “[t]he Constitution does not require that a criminal
suspect know and understand every possible consequence of a
waiver of the Fifth Amendment privilege.” Colorado v. Spring,
In sum, there are two branches to the waiver analysis.
First, was the waiver voluntary? And, second, was the waiver
knowing and intelligent? Edwards,
Edwards clearly requires that the judge analyze whether the
waiver was knowing and intelligent. However, it is not clear in
the context of mental illness what this really means. While the
Supreme Court and this Court have declined to find confessions
involuntary absent government coercion, see Connelly, 479 U.S.
at 167 (spontaneous confession of a psychotic experiencing
command hallucinations); Campos,
Dr. Metzner testified that, in his expert opinion, respondent was experiencing “command hallucinations.” This condition interfered with respondent’s “volitional abilities; that is, his ability to make free and rational choices.” Ibid. Dr. Metzner further testified that Connelly’s illness did not significantly impair his cognitive abilities. Thus, respondent understood the rights he had when Officer Anderson and Detective Antuna advised him that he need not speak.
The military judge’s analysis does not address the issue of knowing and intelligent waiver, but rather focuses solely on the question of voluntariness. This is despite the fact that Appellant’s suppression motion was based on knowing and intelligent waiver, and not voluntariness. The ruling, for example, states that Appellant moved to suppress his statements “because the accused was mentally ill at the time of the statements, making them involuntary.” The only mention of knowing and intelligent waiver in the ruling appears in the findings of fact, which concluded that “[t]he accused knowingly, intelligently, and voluntarily waived his rights.” Thus, the findings do not address the uncontested expert testimony. In fairness, the Edwards test as applied in the context of mental illness has not been articulated in military jurisprudence. The military judge did find a number of facts that would support a legal finding of knowing and intelligent waiver; [11] however, these facts were not discussed or explicitly analyzed and applied to a finding of law.
As a result, the military judge abused his discretion in his analysis. The military judge did not apply the Edwards framework, which requires a separate analysis of voluntary waiver and knowing and intelligent waiver. As stated in Edwards:
[I]n denying petitioner’s motion to suppress, the trial court found the admission to have been “voluntary” without separately focusing on whether [Appellant] had knowingly and intelligently relinquished his right to counsel. . . . Here, however sound the conclusion of the state courts as to the voluntariness of [Appellant’s] admission may be, . . . the trial court . . . [did not] undert[ake] to focus on whether [Appellant] understood his right to counsel and intelligently and knowingly relinquished it. It is thus apparent that the decision below misunderstood the requirement for finding a valid waiver of the right to counsel . . . .
Edwards,
The military judge also erred when he addressed whether
Appellant’s waiver was knowing and intelligent solely as a
conclusory finding of fact, rather than as a conclusion of law.
See United States v. Freeman,
We find that the military judge abused his discretion by not separately analyzing whether Appellant’s waiver was knowing and intelligent. Therefore, we do not reach a conclusion as to whether the confession in this case could be admissible -- only that it was not properly admitted in this case.
We now review whether the erroneous admission of Appellant’s confession was harmless beyond a reasonable doubt. III. Harmless Error
Constitutional errors are reviewed for harmlessness beyond
a reasonable doubt. United States v. Paige,
Erroneous admission of a confession “requires a reviewing
court to exercise extreme caution before determining that the
admission of the confession at trial was harmless.” Arizona v.
Fulminante,
We find that the improper admission of Appellant’s statement and interrogation was not harmless beyond a reasonable doubt due to its potential effect on Appellant’s affirmative defense of not guilty by reason of insanity. The Government relied on Appellant’s statement to show that Appellant, though severely mentally ill, appreciated the wrongfulness of his actions. As demonstrated by the Government’s closing argument, trial counsel used Appellant’s statement extensively to support the theory that Appellant intended to kill JG out of revenge, not self-defense.
The Government’s closing slide presentation clearly and visually demonstrated trial counsel’s extensive use of Appellant’s statement. For example, trial counsel’s first slide, titled “Revenge – Justice,” quotes Appellant’s statement in bold letters:
● “ I poured myself a drink of water, then walked over to [JG] from behind to kill him. I took out my knife from my pocket, opened it, and placed it in my right hand to cut [JG]. (Acc hand-wrote) I wanted justice upheld and knew I was the one to do it because he raped me.” (acc stmt) ● “ God placed us on the ship together so justice could be served ”. (acc stmt)
Appellant quotes the same statement in the slide addressing the Appellant’s appreciation of the wrongfulness of his acts.
The Government’s closing argument repeatedly exhorted the members to look at Appellant’s statement and video. See, e.g., Record at 527, United States v. Mott, __ M.J. __ (C.A.A.F. 2013 (No. 12-0604) (“Revenge and justice. You heard directly from the accused’s statements that this is what he sought with the attack of Seaman Recruit JG. The first statement from the accused’s hand-written statement, describing exactly what he did . . . . ”); id. (“And then, members, remember, and you have copies of the statement, he hand-wrote . . . .”); id. at 538 (“He wasn’t completely out of his mind. He read that statement. He agreed to that statement, and you saw that yourself, in the video.”); id. at 539 (“It’s in the video, members, and you can watch that again.”); id. at 540 (“Again, he never mentioned to NCIS that he was acting out of self-defense. Look at his words again, justice, and knowing he wanted to kill him. There’s no self-defense in there. And again, those statements were taken the day that the attack happened.”); id. at 558 (“Look through this statement, and look through the video, because, yeah, he doesn’t say ‘self-defense’ . . . .”).
We find that there is “a reasonable possibility” the
inclusion of Appellant’s statement might have prejudiced
Appellant’s affirmative defense.
[12]
See Moran,
There is clearly a “reasonable possibility that the
evidence complained of,” here Appellant’s confession, “might
have contributed to [Appellant’s] conviction.” See United
States v. Paige,
DECISION
The decision of the United States Navy-Marine Corps Court of Criminal Appeals is reversed. The findings of guilty and the sentence are set aside. The record of trial is returned to the Judge Advocate General of the Navy for remand to an appropriate convening authority. A rehearing is authorized.
[1] Appellant was initially convicted in 2008 of attempted premeditated murder in violation of Article 80, UCMJ, 10 U.S.C. § 880 (2006), and sentenced to twelve years of confinement. On November 24, 2009, the CCA set aside the findings and sentence and ordered a rehearing. United States v. Mott, No. 200900115,2009 CCA LEXIS 424 ,2009 WL 4048019 (N-M. Ct. Crim. App. Nov. 24, 2009) (unpublished).
Notes
[2] Among other symptoms, Appellant experienced auditory hallucinations of his mother’s voice, visual hallucinations including visions of a young Andrew Carnegie as an angel, and delusions including the belief that a senior al Qaeda official launched the 9/11 attacks because SN Mott had killed the terrorist’s two sons after they had raped SN Mott. Appellant’s shipmates gave him the nickname “Murder Mott” because he talked so much about murdering people. While Appellant was being treated at the Federal Medical Center at Butner, Appellant was documented “rinsing his food before eating it” and “manufactur[ing] a ‘gas mask’ from a beverage carton and strips of cloth.”
[3] The military judge gave the following instruction: There are indications from the evidence that you are required to decide the issue of the accused’s sanity at the time of the offense. . . . .
[4] As explained in Meader:
Congress adopted the language of the Model Penal
Code rather than the M’Naghten rule (“appreciate” vs.
“know”) and thereby broadened the inquiry. Model
Penal Code § 4.01 comment 2 at 166 (“Know” leads to an
excessively narrow focus on “a largely detached or
abstract awareness that does not penetrate to the
affective level.”); S. Rep. No. 307, 97th Cong., 1st
Sess. 100-01 (1981) (Model Penal Code “uses the more
affective term ‘appreciate’ for the more coldly
cognitive ‘know’ of M’Naghten.”), referred to in S.
Rep. No. 225, 98th Cong., 2d Sess. (1984), reprinted
in 1984 U.S.C.C.A.N. 3182, 3404 n.1; accord ABA
Criminal Justice Mental Health Standards 7-6.1 at 343-
44 (1989).
[5] The Supreme Court of New Jersey in Worlock and other courts have considered whether there is a difference between legal and
[7] Appellant arrived at the interview room at 11:00 a.m. and was advised of his rights at 12:10 p.m. NCIS did not start recording the interview until over three hours later, at 3:36 p.m., at which point most of the statement was already written. The video recording ends at 4:50 p.m.
[8] Appellant never “actually met or had dealings with the victim [JG] prior to the attack” on March 8, 2007. Mott, 2009 CCA LEXIS 424, at *4,2009 WL 4048019 , at *1 (N-M. Ct. Crim. App. Nov. 24, 2009). The rape delusion which Appellant tragically assigned to JG appears to be only one of several rape delusions that Appellant experienced.
[9] The written statement also contradicts itself. At first, it states that Appellant “was able to fight [the assailants] off” and saw them leaving “because of a reflection in the mirror while crawling to the toilet.” Later in the same paragraph, the statement indicates that “[JG] put a bag over my face during the incident and . . . I played dead until they left the room and then wiggled the bag off my head.” Thus, Appellant apparently believed, at different times in the interview, that he had either: (1) fought off his attackers and seen them leaving; (2) played dead and once the assailants left removed the bag from his head; or (3) temporarily died.
[10] Consistent with our precedents, we note that in the military
system the accused’s right to counsel -- and the requirement of
knowing and voluntary waiver -- are not limited to custodial
interrogation. See United States v. Delarosa,
[11] For example, the military judge found that “it was clear to the court that the accused understood the consequences of talking to the agents,” and that “[i]t was very clear that the accused contemplated how what he said in his written statement and how it was recorded in his written statement would be perceived by others and how it would affect his future and the handling of any charges.”
[12] As noted above, the effect of a constitutional error on an
accused’s affirmative defense is reviewed to see if the error
was harmless beyond a reasonable doubt. See United States v.
Paige,
[13] Moreover, defense counsel argued that Appellant’s previous complaints to the authorities had only drawn scorn and derision and therefore reporting JG to his superiors would not help his situation, and that since Appellant believed God to have put him on the ship with JG, it would be futile to run. This argument is consistent with the findings of the R.C.M. 706 board.