Petition for Writ of Certiorari — Bledsoe v. United States

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No. Cue

In the Supreme Court of the Anited States

OCTOBER TERM, 1988

KiRBY D. BLEDSOE, JR., PETITIONER,

Vv.

UNITED STATES OF AMERICA, RESPONDENT.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

LEO L. SERGI

Colonel, Office of The Judge

Advocate General

United States Air Force

HQ USAF/JAJD

Bldg 5683

Bolling AFB, DC 20332-6128

(202) 767-1562

Counsel of Record

ys

FRANK J. SPINNER

Major, Office of The Judge

Advocate General

United States Air Force

Counsel for Petitioner

July 1988

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QUESTION PRESENTED

Did the United States Court of Military Appeals err by

failing to apply Estelle v. Smith, 451 U.S. 454, in ruling

that petitioner waived a prosecutor’s surprise use, while

cross-examining a defense witness, of privileged

Statements made by petitioner during a sanity evaluation?

(I)

TABLE OF CONTENTS

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Constitutional Provision Involved ........................ 2

Manual for Courts-Martial Provisions Involved ............ 2

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TABLE OF AUTHORITIES

Cases:

Chapman v. California, 386 U.S. 18 (1967) ............ 11

Estelle v. Smith, 451 U.S. 454 (1981) .................. passim

Smith v. Estelle, 602 F.2d 694 (Sth Cir. 1979) ........... 10

United States v. Alvarez, 519 F.2d 1036 (3d Cir. 1975) ... )

United States v. Bledsoe, 19 M.J. 641 (A.F.C.M.R. 1984),

aes Pe Ones BOD wc cc ckcuccdcenacecse passim

United States v. Dysart, 705 F.2d 1247 (10th Cir. 1983),

cert. denied, 464 U.S. 934 (1983) ................... y

Constitution and Statutes:

Reeie NG UM Wc ccc ccc ctcccccccscs . passim

10 U.S.C. § 867(h\(Supp IT] 1985) .................... |

FB ee ee l

Uniform Code of Military Justice:

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Rules of Criminal Procedure:

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Page

Rules of Evidence:

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ae ak a SUN bea ee PS Sean passim

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Regulations:

Manual for Courts-Martial, United States, 1969 (Rev.)

INGE Ss cca ceases uysravacssmcucns>vansey a Ow

Rule for Courts-Martial (R.C.M.) 706 ................. 2

Miscellaneous:

American Psychiatric Association: Diagnostic and

Statistical Manual of Mental Disorders (APA, Wash;

a, a, a <0 cas caebeddewdnadeweseeetenbec 5

In the Supreme Court of the United States

OCTOBER TERM, 1988

No.

KirRBY D. BLEDSOE, JR., PETITIONER,

V.

UNITED STATES OF AMERICA, RESPONDENT.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

The petitioner, Kirby D. Bledsoe, Jr., respectfully prays

that a writ of certiorari issue to review the judgment of the

United States Court of Military Appeals entered in his case

on May 9, 1988.

OPINIONS BELOW

The opinion of the United States Court of Military Ap-

peals was issued on May 9, 1988 (Appendix A). A decision

of the United States Air Force Court of Military Review

remanding the case was issued on September 30, 1983 (Ap-

pendix B-1). An order denying a petition for new trial was

issued on June 24, 1984 (Appendix B-2). The Court of

Review’s final decision was issued on October 26, 1984

(Appendix B-3).

JURISDICTION

The jurisdiction of this Court is invoked under 10

U.S.C. § 867(h)(Supp III 1985) and 28 U.S.C. § 1259(3)

(Supp III 1985). The judgment of the United States Court

of Military .sppeals was entered on May 9, 1988.

(1)

CONSTITUTIONAL PROVISION INVOLVED

The Fifth Amendment to the United States Constitution

provides in pertinent part:

No person shall be. . . compelled in any criminal case

to be a witness against himself, nor be deprived of

life, liberty, or property, without due process of

Te

MANUAL FOR COURTS-MARTIAL PROVISIONS INVOLVED

Rule 103 of the Military Rules of Evidence, Manual for

Courts-Martial, United States, 1984 (“M.C.M., 1984”),

provides in pertinent part:

(a) Effect of erroneous ruling. Error may not be

predicated upon a ruling which admits or excludes

evidence unless the ruling materially prejudices a

substantial right of a party, and

(1) Objection. In case the ruling is one admitting

evidence, a timely objection or motion to strike ap-

pears of record, stating the specific ground of objec-

tion, if the specific ground was not apparent from the

context;

Rule 302' of the Military Rules of Evidence, Manual for

Courts-Martial, United States, 1969 (Revised edition)

(“M.C.M. 1969 (Rev.)”), as originally promulgated, pro-

vided in pertinent part:

(a) General rule. The accused has a privilege to pre-

vent any statement made by the accused at a mental

' The current version of Mil.R.Evid. 302(a), as promulgated by

Manual for Courts-Martial, United States, 1984, Exec. Order No.

12550, remains unchanged from the version relied upon by petitioner

with the exception of reference to Rules for Courts-Martial (R.C.M.)

706 in place of reference to paragraph 121 (which is a similar provision

to Rule 706).

examination ordered under paragraph 121 [?] of this

Manual and any derivative evidence obtained through

use of such a statement from being received into

evidence against the accused on the issue of guilt or

innocence or during sentencing proceedings. This

privilege may be claimed by the accused notwith-

standing the fact that the accused may have been

warned of the rights provided by rule 305 [°] at the ex-

amination. [*]

> Paragraph 121, M.C.M., 1969 (Rev.), provided for inquiry con-

cerning the accused's sanity at either the time of the alleged offense or

at the time of the inquiry. Prior to referral of charges, such an inquiry

could be ordered by the convening authority. After charges are re-

ferred to trial, the inquiry could be ordered by the military judge.

’ Mil. R.Evid. 305, M.C.M., 1969 (Rev.), provides that a person

subject to the Uniform Code of Military Justice (U.C.M.J.) who is re-

quired to give warnings under Article 31, U.C.M.J., may not inter-

rogate Or request any statement from an accused or a person suspected

of an offense without first:

(1) informing the accused or suspect of the nature of the accusation;

(2) advising the accused or suspect that the accused or suspect has

the right to remain silent;

(3) advising the accused or suspect that any statement may be used

as evidence against the accused or suspect in a trial by courts-martial;

and, when the interrogation is custodial,

(4) advising the accused or suspect that they are entitled to consult

with counsel that shall be provided by the United States at no expense

to the person, or the person may retain civilian counsel at no expense

to the United States.

* Mil.R.Evid. 302(a) is directly analogous to Federal Rule of

Criminal Procedure 12.2(c), which provides in pertinent part:

(c) Mental Examination of Defendant. In an appropriate case the

court may, upon motion of the attorney for the government, order the

defendant to submit to an examination pursuant to 18 U.S.C. 4241 or

4242. No statement made by the defendant in the course of any ex-

amination provided for by this rule, whether the examination be with

or without the consent of the defendant, no testimony by the expert

4

* * *

(c) Release of evidence. \f the defense offers expert

testimony concerning the mental condition of the ac-

cused, the military judge, upon motion, shall order

the release to the prosecution of the full contents,

other than any statements made by the accused, of

any report prepared pursuant to paragraph 121 of this

Manual. If the defense offers statements made by the

accused at such examination the military judge may

upon motion order the disclosure of such statements

made by the accused and contained in the report as

may be necessary in the interests of justice.

STATEMENT OF THE CASE

On February 22, 1983, the trial of the petitioner by

general court-martial, with members, began at Lackland

Air Force Base, Texas. Two days later, contrary to his

pleas, he was found guilty of larceny and willfully damag-

ing military property. The court sentenced him to a

dishonorable discharge, confinement for thirty (30)

months, forfeiture of $400.00 pay per month for thirty

(30) months, and reduction to the lowest enlisted grade.

The convening authority approved the sentence as ad-

judged on May 2, 1983. On September 30, 1983, the

United States Air Force Court of Military Review (Court

of Review) set aside the convening authority’s action and

returned the c; se v ith instructions to conduct a further in-

quiry concerning the petitioner’s sanity. On October 26,

1984, the Court of Review affirmed the findings of guilt

based upon such statement, and no other fruits of the statement shall

be admitted in evidence against the defendant in any criminal pro-

ceedings except on an issue respecting mental condition on which the

defendant has introduced testimony.

and modified the sentence to include a bad conduct

discharge, confinement at hard labor for twenty (20)

months, forfeiture of $397.00 pay per month for twenty

(20) months, and reduction to the lowest enlisted grade.

During presentation of the defense’s case, the defense

called Dr. Thomas Martin, a member of petitioner’s sanity

board. Dr. Martin testified that he and the other two

members of the sanity board had concurred in the

diagnosis that petitioner had a conversion disorder ° prior

to the alleged larceny on July 14, 1982. (R. 209). Dr.

Martin further testified he had reviewed petitioner’s

hospital records and family history, but he stated that he

had received little information from Airman Bledsoe. (R.

210).

At the end of the direct examination of Dr. Martin, the

prosecution requested permission to review the record of

the sanity board, saying: _

[S]ince there has been sufficient opening of that door

by the testimony of Doctor Martin as to the history of

the accused, particularly the statements made by the

accused in the evaluation process and the Govern-

ment would request permission for access to whatever

statements he might have made, so we can conduct an

effective cross-examination of this witness. That is

Rule 302.

(R. 218). The defense immediately objected and contended

that Dr. Martin’s testimony had not opened “any door for

the Government to go behind and see what the sanity

* A conversion disorder is a loss of or alteration in physical func-

tioning that suggests physical disorder but which instead is apparently

an expression of a psychological conflict or need. This disturbance is

not under voluntary control. American Psychiatric Association:

Diagnostic and Statistical Manual of Mental Disorders 244 (APA,

Washington, D.C., 3d ed. 1980).

6

board had to say whatsoever.” (R. 219). Upon reviewing

the sanity board documentation, the military judge over-

ruled the defense objection. (R. 222).

After receiving the sanity board documentation, the

prosecutor then remarked:

During the course of my investigation, by talking to

Doctor Martin and talking to Doctor Townsend-

Parchman, there were certain statements made by the

accused during the course of the evaluation underly-

ing the sanity board. These statements were made to

these doctors and they were made known to me. Be-

ing aware of the restrictions of paragraph 121 of the

Manual, however, they were not mentioned before,

and I have not used this information in any way up to

this point. However, it is the Government’s conten-

tion that the door has been opened by Defense by

asking Doctor Martin about the background history

related to him by the accused and this clearly would

indicate verbal statements both by the accused and by

the accused’s wife during the course of the sanity pro-

ceedings and the Government at this time would like

to make an offer of proof as to those statements.

* * *

The one statement that was given to Doctor Martin

earlier in his evaluation dealt with financial problems

that the accused and his wife were experiencing and,

of course, the relevancy of this is the Government

contends that financial problems underlies [sic] the

larcenies. Secondly, the accused stated to Doctor

Townsend-Parchman, in the presence of Doctor

Martin, “You are not going to get me on this offense.

I’m going to beat this rap.” That goes to his entire

motivation, and checking himself in a hospital in

Houston, which supports the Government’s theory of

what we have here is an attempt to avoid prosecution.

(/d.). The defense objected that evidence of petitioner’s

statements would be prejudicial and lacking in probative

value. (R. 223). The military judge overruled the. objec-

tions. (/d.).

During cross-examination by the prosecutor, Dr. Mar-

tin testified that petitioner had been “having considerable

financial difficulties and as he put it, he was receiving a lot

of pressure from his wife to obtain funds.” (R. 224). Dr.

Martin also testified that around December 15, 1982, he

walked by petitioner, who was talking to Dr. Townsend-

Parchman in the hallway of a hospital ward. (/d.). He

“heard Airman Bledsoe comment to Dr. Townsend-

Parchman that, ‘I am going to show you guys. I am going

to beat this rap’ ”. (R. 225).

In affirming the decision of the Court of Review, the

Court of Military Appeals stated that the prosecutor ob-

iained knowledge of petitioner’s statements by violating

the doctors’ obligations of confidentiality and failed “to

provide ‘timely notice’ ” to the defense that he knew about

these statements. Furthermore, the court expressed that

the prosecution’s contention that defense counsel “had

opened the door” through the use of derivative evidence

was “weak” and that petitioner was “entitled to prevent use

of the two statements in cross-examining Dr. Martin”.

United States v. Bledsoe, 26 M.J. 97, 103 (C.M.A. 1988).

The court relied on waiver and a failure to show prejudice

in ruling against the petitioner. /d.

REASONS FOR GRANTING THE WRIT

I

This case is worthy of review because it presents a clear

constitutional error in conjunction with rules of evidence

and procedure common to military and civilian practice.

Moreover, it raises the important issue of whether a con-

stitutional error is waived by an accused’s failure to “par-

ticularize” an objection where the prosecution “surprises”

the defense with new evidence in the form of an accused’s

own statements.

Although this issue arises in a military context and the

rules of evidence and procedure have experienced minor

changes, the general nature of the problem regarding how

to handle statements made by an accused during a sanity

evaluation is not unique. As shown in Point II, petitioner’s

case is very similar to a case which was decided by the

Court of Appeals for the Tenth Circuit. Additionally, that

error was committed is not in doubt. Whether the error

was waived and prejudice suffered are the only remaining

areas of dispute.

The waiver question deserves this Court’s attention

because it is caught up in an area that is complicated, as

seen by the procedural and evidentiary rules that have

been developed to resolve sanity issues, and pervasive.

Since the evidentiary rules are ultimately grounded upon

preservation of an accused’s protection from _ self-

incrimination under the Fifth Amendment, the issue

presented achieves greater significance. Point II develops

the injustice suffered by petitioner when his own

statements were used against him in violation of the Con-

stitution.

The main thrust of the petitioner’s case is that while the

Court of Military Appeals was correct in ruling that peti-

tioner’s statements were protected under Mil.R.Evid.

302(a), the court erred to the prejudice of the petitioner by

ruling that “any privilege that Bledsoe enjoyed under

Mil.R.Evid. 302 was waived by reason of the defense

9

failure to particularize its objection, as required by

Mil.R.Evid. 103(a)(1).” Bledsoe, supra, at 103.

In Estelle v. Smith, 451 U.S. 454 (1981), this Court

ruled that the Fifth Amendment right against self-

incrimination is violated when unwarned statements given

by a defendant to a psychiatrist in the context of a court

ordered competency hearing are used by the prosecution

to determine guilt or punishment. See, e.g., United States

v. Alvarez, 519 F.2d 1036 (3d Cir. 1975) (court ruled use

of statements elicited during court ordered psychiatric ex-

amination to establish fact of offense violates privilege

against self-incrimination).

Petitioner contends that in order to be constitutionally

valid, Mil.R.Evid. 302(a) must be applied in accordance

with this Court’s decision in Estelle. Petitioner further

contends that the Court of Military Appeals is bound by

this Court’s determination that a defendant does not

automatically waive his right, granted under Estelle, by

failing to make a timely, specific objection to testimony

that violates this right. Estelle, supra, note 12 at 469. But

see United States v. Dysart, 705 F.2d 1247 (10th Cir. 1983)

(court ruled that defense’s failure to specifically object to

doctor’s testimony concerning what accused confided to

him during court ordered sanity inquiry waived the Fifth

Amendment issue), cert. denied, 464 U.S. 934 (1983).

This case is easily distinguishable from Dysart. While

the defense counsel in Dysart apparently knew of the doc-

tor’s proposed testimony and tactically allowed it, defense

counsel in petitioner’s case was not notified that the prose-

cution knew about petitioner’s statements until the prose-

cution mentioned the statements at his trial.° /d. at

1253-1255. As the United States Court of Appeals, Fifth

6 The Court of Military Appeals acknowledged the prosecution’s

duty and failure to disclose this information in a timely fashion.

Bledsoe, supra at 102.

10

Circuit, stated in Smith v. Estelle, 602 F.2d 694, note 19 at

63 (Sth Cir. 1979), in ruling that accused’s failure to object

did not constitute waiver, with respect to surprise,

“counsel can scarcely be faulted for failing to enumerate

all of the many constitutional rights that the state violated

when it unexpectedly presented Dr. Grigson’s testimony.”

This Court adopted the Fifth Circuit’s position on waiver.

Estelle v. Smith, supra, note 12 at 469. Therefore, peti-

tioner’s timely objections, though lacking complete

specificity, preserved his constitutional claim.

The reliance by the Court of Military Appeals on

Mil.R.Evid. 103(a)(1) is also misplaced given the language

of the rule itself. First, there is no question that the objec-

tions made by defense were timely. The objections were

voiced when the evidence was initially offered. Second, a

specific ground must be stated “if the specific ground was

not apparent from the context.” Mil.R.Evid. 103(a)(1).

The record of trial discloses that the prosecution explicitly

requested access to petitioner’s statements and ended by

referring to “Rule 302.” The very next words uttered by

defense counsel were, “We object, Your Honor.” (R. 218).

The colloquy that followed also included references to

paragraph 121, M.C.M. (1969) (Rev.), the governing pro-

cedural rule, as well as to relevancy and the prejudicial

aspects of admitting petitioner’s statements. However in-

artful the objections may have been, under the cir-

cumstances they more than sufficed.

It cannot be overstated that the prosecution obtained

petitioner’s statements in violation of the rules and failed

to disclose possession of these same statements in violation

of the rules. In effect, the statements were held back only

to be employed in ambushing a defense-called witness,

and, even then, improperly. To now bind the defense,

1]

after such questionable conduct by the prosecution, to a

hypertechnical application of Mil.R.Evid. 103(a)(1),

defies description.

Clearly, the erroneous use of petitioner’s statements

assumes constitutional dimension. It is well settled that

before error founded upon the United States Constitution

can be held harmless, the Court must be able to say it was

harmless beyond a reasonable doubt. Chapman v. Califor-

nia, 386 U.S. 18 (1967). The Court of Military Appeals

made no reference to this standard in ruling against peti-

tioner. Applying this standard, petitioner maintains the

error was not harmless. The government impermissibly

used petitioner’s statements to establish the requisite intent

to commit larceny. Additionally, can it fairly be said that,

in this case where petitioner did not take the stand, his

words, “I am going to beat this rap,” did not work to

generally discredit his defense? How much more injury

was suffered since these words were elicited from a

defense-called expert witness? Without petitioner’s

statements, the government may well not have been able to

establish guilt.

12

CONCLUSION

The proper application of Estelle v. Smith, supra, is as

critical in military cases as it is in civilian. Additionally,

waiver of constitutional rights must be resolved consistent-

ly by all courts. The close parallel between the federal and

military rules of evidence and procedure make petitioner’s

case an important case for insuring that these rules, in

light of this Court’s opinions and the Constitution, are

correctly followed. For all these reasons, the petition for a

writ of certiorari should be granted.

LEO L. SERGI

Colonel, Office of The Judge

Advocate General

United States Air Force

HQ USAF/JAJD

Bldg 5683

Bolling AFB, DC 20332-6128

(202) 767-1562

Counsel of Record

and

FRANK J. SPINNER

Major, Office of The Judge

Advocate General

United States Air Force

Counsel for Petitioner

July 1988

APPENDIX

APPENDIX A

UNITED STATES COURT OF MILITARY APPEALS

No. 51,478

ACM 23926

UNITED STATES, APPELLEE

Vv.

KirRBY D. BLEDSOE, JR., AIRMAN FIRST CLASS,

U.S. AIR FORCE, APPELLANT

May 9, 1988

For Appellant: Captain Timothy J. Malloy (argued);

Colonel Leo L. Sergi (on brief).

For Appellee: Major Joseph S. Kistler (argued); Colonel

Kenneth R. Rengert (on brief).

OPINION OF THE COURT

EveretTT, Chief Judge:

Contrary to his pleas, a general court-martial with

members found Bledsoe guilty of larceny on July !4, 1982,

and of willfully damaging military property twice on

December 30, 1982, in violation of Articles 121 and 108 of

the Uniform Code of Military Justice, 10 U.S.C. §§ 921

and 908, respectively. The court sentenced appellant to a

dishonorable discharge, confinement for 30 months,

forfeiture of $400.00 pay per month for 30 months, and

reduction to the lowest enlisted grade. The findings and

sentence were approved by the convening authority.

(la)

2a

After his trial, Bledsoe petitioned the United States Air

Force Court of Military Review for a new trial on the basis

of new evidence as to his mental responsibility.' In

response to this new evidence, the Court of Military

Review set aside the convening authority's action and

authorized further inquiry into appellant's sanity. 16 M.J.

977.

After that inquiry had taken place, a partially different

panel of the Court of Military Review concluded: “We

find no reasonable doubt as to the sanity of the accused at

the relevant times; and we are convinced that, considering

all the data presented, no different verdict would

reasonably result were a new trial to be ordered.” Accord-

ingly, the request for a new trial was denied. United States

v. Bledsoe, (unpub. order of June 22, 1984 at 1).?

In a subsequent opinion, United States v. Bledsoe, 19

M.J. 641 (1984), the Court of Military Review rejected ap-

pellant’'s legal contentions and affirmed the findings; but it

reduced the sentence to a bad-conduct discharge, confine-

ment for 20 months, forfeiture of $397.00 pay month for

' In December 1982, a sanity board at Wilford Hall, Texas, had

evaluated appellant in preparation for his trial on the larceny charge;

and it had determined that he was competent to stand trial and had

been mentally responsible at the time of the alleged offense. At his

trial in February 1983, psychiatric evidence had been presented ‘vith

respect to his mental responsibility on December 30—the date of the

willful damage to military property alleged in the additional

charge —and this issue was disposed of adversely to him. Subsequeni-

ly, Dr. Wooten, the psychologist who had tested Bledsoe in connec-

tion with a sanity board evaluation, changed his original opinion that

appellant was mentally responsible. This change was the new evidence

on which Bledsoe especially relied in petitioning for a new trial.

2 In light of our opinion in United States v. Lilly, 25 M.J. 403

(C.M.A.1988), we see no reason to disturb the decision by the court

below denying appellant's petition for new trial.

3a

20 months, and reduction to the lowest enlisted pay grade.

Upon appeal to this Court, we granted review of these two

issues:

WHETHER THE MILITARY JUDGE COM-

MITTED PREJUDICIAL ERROR BY ALLOWING

THE PROSECUTION TO INTRODUCE EXPERT

PSYCHIATRIC TESTIMONY IN ITS CASE-IN-

CHIEF AND PRIOR TO THE DEFENSE IN-

TRODUCING EXPERT TESTIMONY

[MIL.R.EVID. 302(b)(2)}.

WHETHER THE MILITARY JUDGE ERRED TO

THE PREJUDICE OF THE SUBSTANTIAL

RIGHTS OF APPELLANT BY ALLOWING THE

PROSECUTION TO ELICIT TWO STATEMENTS

MADE BY APPELLANT TO A PSYCHIATRIST

DURING HIS PARAGRAPH 121, M.C.M. 1969

(REVISED) EVALUATION.

Bledsoe was alleged to have stolen property of two

fellow airmen on July 14, 1982. at Kelly Air Force Base,

Texas. After having been charged with this offense, he

went on leave to Houston, Texas, purportedly to see a

civilian attorney in connection with his case. Once there,

he committed himself to a civilian mental ward; and later

he was transferred to the Air Force Regional Medical

Center at Wilford Hall, Texas. There a sanity board was

convened, which reported on December 22 that Bledsoe

had a conversion disorder and also that he was malinger-

ing.

4a

Appellant was advised of this report on December 29;

and at that time he, presumably, was made aware that he

would be returned to Kelly Air Force Base for trial on the

larceny charge. The next day Bledsoe damaged the

hospital room to which he had been assigned at Wilford

Hall; and later that day, after being returned to Kelly Air

Force Base, he damaged his dormitory room there. These

acts were the basis for an additional charge with two

specifications alleging willful damage to military property.

At an initial Article 39a)’ session, Bledsoe appeared

non-responsive and incoherent in his responses to inquiries

from the military judge. As a result, the judge proceeded

to take evidence about his capacity to stand trial. After

hearing testimony from Dr. Thomas Martin and Dr.

Wallace Robert Townsend-Parchman—two psychiatrists

who had served on the sanity board convened at Wilford

Hall to evaluate appellant as to the larceny charge —the

military judge ruled that Bledsoe was competent to stand

trial.

Later during the Article 39(a) session, the military judge

asked trial counsel about his intention to produce expert

testimony during the Government's case-in-chief. The

response was that the prosecutor’s plans were “conditioned

upon the accused’s demeanor raising that issue, sort of ina

play-that-by-ear situation.” In any event, trial counsel “an-

ticipat{[ed] bringing no more than one psychiatrist,” who

“would be Townsend-Parchman, the treating physician.”

Defense counsel expressed no objection to such evidence;

and he indicated to the military judge that his own an-

ticipated experts were Dr. Martin and Dr. Newsome,

* Uniform Code of Military Justice, 10 U.S.C. § 839(a).

Sa

ea wher psychiatrist, who would discuss the effects of

w’.» aol.4 :

Subsequently, during voir dire of the court members,

defense counsel asked about the receptiveness of the court

members to a defense that Bledsoe lacked mental respon-

sibility on December 30 when the military property was

damaged. However, counsel did not state that he intended

to call expert witnesses to testify about mental respon-

sibility.

During his opening statement, assistant trial counsel

outlined the government witnesses to be called and their

expected testimony. In this connection, he stated that Dr.

Townsend-Parchman would testify about the results of a

sanity board. When this opening statement had ended,

defense counsel asked for a mistrial on the grounds that “it

is very improper for the Government to talk about the

sanity issue here. The only sanity defense, . . . or any type

of evidence whatsoever of such a defense coming out in

the trial should be by the Defense. . . . The Government

has commented upon it and that is highly prejudicial.”

Defense counsel also indicated that mental responsibility

was not an issue as to the larceny charge but only with

respect to the alleged damage to military property. The

motion for mistrial was denied; and the military judge

commented that “his mental state as it relates to the of-

fenses is up to the fact finders. | don’t see any possible

prejudice from him laying that out. I think, matter of fact,

it even clarifies it.”

Ultimately, Dr. Townsend-Parchman did testify for the

Government in its case-in-chief; and the defense offered

* As to the lurceny charge, the defense contended that appellant had

not taken the property and also that he had been too drunk to enter-

iain the requisite specific intent.

6a

no objection to his testimony. Subsequently, the defense

called Dr. Martin, who testified that he and the other two

members of the sanity board had concurred in the

diagnosis that Bledsoe had a “conversion disorder” even

before the larceny in July. Dr. Martin had reviewed ap-

pellant’s hospital records and family history, but he said

that “[w]e got very little information from Airman Bled-

soe.” Dr. Martin could not offer “a good answer” as to

whether, in light of the conversion disorder, appellant’s

damage to the two rooms on December 30 “was willful.”

At the end of the direct examination of this witness, trial

counsel

ask[ed] for an opportunity to review the sanity board

since there has been sufficient opening of that door by

the testimony of Doctor Martin as to the history of

the accused, particularly the statements made by the

accused in the evaluation process and the Govern-

ment would request permission for access to whatever

statements he might have made, so we can conduct an

effective cross-examination of this witness, That is

Rule 302,

The defense objected and contended that Dr, Martin's

testimony had not opened “any door for the Government

to go behind and see what the sanity board had to say

whatsoever.” After reviewing the sanity board’s entire

summary, the military judge overruled the defense objec-

tion and provided the sanity board documents to the pros-

ecutor.

Trial counsel then remarked:

During the course of my investigation, by talking to

Doctor Martin and talking to Doctor Townsend-

Parchman, there were certain statements made by the

accused during the course of the evaluation underly-

ing the sanity board. These statements were made to

these doctors and they were made known to me. Be-

Ta

ing aware of the restrictions of paragraph 121 of the

Manual, however, they were not mentioned before,

and I have not used this information in any way up to

this point. However, it is the Government’s conten-

tion that the door has been opened by Defense by ask-

ing Doctor Martin about the background history

related to him by the accused and this clearly would

indicate verbal statements both by the accused and by

the accused’s wife during the course of the sanity pro-

ceedings and the Government at this time would like

to make an offer of proof as to those statements.

* * * * * *

The one statement that was given to Doctor Martin

earlier in his evaluation dealt with financial problems

that the accused and his wife were experiencing and,

of course, the relevancy of this is the Government

contends that financial problems underlie the

larcenies, Secondly, the accused stated to Doctor

Townsend-Parchman, in the presence of Doctor Mar-

tin, “You are not going to get me on this offense, I’m

going to beat this rap.” That goes to his entire motiva-

tion, and checking himself in a hospital in Houston,

which supports the Government’s theory of what we

have here is an attempt to avoid prosecution.

The defense objected that evidence of Bledsoe’s statements

would be prejudicial and lacking in probative value. The

military judge, concluding that “the Defense has opened

the door,” overruled the objections.

On cross-examination by the prosecutor, Dr. Martin

testified that Bledsoe had been “having considerable finan-

cial difficulties and as he put it, he was receiving a lot of

pressure from his wife to obtain funds.” In response to

questions by trial counsel, Dr. Martin also testified that on

December 15, 1982, he had overheard Bledsoe talking to

8a

Dr. Townsend-Parchman in the hallway of a hospital

ward. As he “was passing by. . . [he] heard Airman Bled-

soe comment to Dr. Townsend-Parchman that, ‘I am go-

ing to show you guys. I am going to beat this rap’

something to that effect and I did not stand around and

listen to the rest of the conversation.”

After all the evidence was received and counsel had

presented closing arguments, the military judge gave ex-

tensive instructions to the court members. With respect to

the alleged larceny, he did not advise the members as to

mental responsibility, since appellant had defended

against that charge only on the grounds that he had not

taken the property and that at the time he had been too in-

toxicated to form a specific intent, However, as to the

charge of willful damage to the two rooms, the military

judge instructed not only on mental responsibility but also

on partial mental responsibility as it might affect the ele-

ment of willfulness, The members deliberated only half an

hour before returning their findings of guilty,

Mil.R.Evid, 302(b)(2), Manual for Courts-Martial,

United States, 1969 (Revised edition), as originally pro-

mulgated, provided: “An expert witness may testify as to

the reasons for the expert’s conclusions and the reasons

therefor as to the mental state of the accused, but such

testimony may not extend to statements of the accused ex-

cept as provided in (1).” However, prior to appellant’s

trial, the Rule was revised to read: “An expert witness for

the prosecution may testify as to the reasons for the

expert’s conclusions and the reasons therefor as to the

mental state of the accused if expert testimony offered by

the defense as to the mental condition of the accused has

been received in evidence, but such testimony may not ex-

9a

tend to statements of the accused except as provided in

(1).”* (Emphasis added.) This amendment clearly

manifested an intent that prosecution experts should

testify as to the accused’s sanity only after the defense ex-

perts had testified. See also S. Saltzburg, L. Schinasi, and

D. Schlueter, Military Rules of Evidence Manual 65

(1981); see at 116 (1986).

Although Mil.R.Evid. 302(b)(2) dictates the usual se-

quence for the presentation of expert testimony as to sani-

ly, it is subject to exceptions. For example, if read literal-

ly, the Rule would imply that the Government could not

offer any expert testimony as to an accused’s sanity, if the

defense did not offer its own expert testimony and, in-

stead, relied only on lay testimony to raise the sanity issue;

but we are sure that, in amending Mil.R.Evid. 302(b)(2),

the drafters never intended to mandate such a result.

Moreover, we cannot disregard Mil.R.Evid. 611(a),

which provides:

The military judge shall exercise reasonable control

over the mode and order of interrogating witnesses

and presenting evidence so as to (1) make the inter-

rogation and presentation effective for the ascertain-

ment Of truth, (2) avoid needless consumption of

time, and (3) protect witnesses from harassment and

undue embarrassment.

Under this Rule—to which the Court of Military Review

also called attention in its opinion —we are convinced that

a military Judge has some discretion as to the sequence in

which expert witnesses testify about an accused’s sanity.

This discretion, however, is not unlimited; and so far as

we can determine, the military judge did not exercise his

discretion in an informed manner. Instead, he apparently

’ Mil.R. Evid. 302(b)(1) states: “There is no privilege under this rule

when the accused first introduces into evidence such statements or

derivative evidence.”

10a

proceeded on the premise that the Government was free to

present its evidence in whatever sequence it chose.

Moreover, nothing in the record indicates that the pros-

ecution called Dr. Townsend-Parchman in its case-in-chief

for any of the reasons set forth in Mil.R.Evid. 611(a). In-

stead, this order of presentation probably was designed to

gain the tactical advantage of making the court members

aware as soon as possible that the experts had come to the

conclusion that appellant was malingering.

Even though the presentation of expert testimony

should have followed the sequence contemplated by

Mil.R.Evid. 302(b)(2), we perceive no prejudice to ap-

pellant. Of course, appellant never claimed that he lacked

mental responsibility for the larceny; and, instead, he

defended on other grounds. Thus, as to this charge, he was

unaffected by the error.

With respect to the willful-damage charge —as to which

issues were raised of both mental responsibility and partial

mental responsibility — we also are convinced that no pre}-

udice was suffered. Both Dr. Townsend-Parchman and

Dr. Martin agreed on the basic diagnosis of conversion

disorder and malingering; and we see no great disadvan-

tage to appellant because the Government’s witness ex-

pressed his opinion on this score before the defense

witness did so. Moreover, there is no indication that any

change in the defense presentation of its evidence resulted

from the Government’s having called Dr. Townsend-

Parchman to testify in its case-in-chief.

Furthermore, the defense did not preserve the issue ef-

fectively. See Mil.R.Evid. 103(a)(1). The objection and

motion for mistrial were made with respect to the assistant

trial counsel’s opening statement about the evidence he

planned to offer. No objection as to Dr. Townsend-

Parchman’s testifying was made by the defense when he

lla

appeared as a witness during the Government’s case-in-

chief.

Mi.R.Evid. 304(d)(1) requires: “Prior to arraignment,

the prosecution shall disclose to the defense the contents

of all statements, oral or written, made by the accused that

are relevant to the case, known to the trial counsel, and

within the control of the armed forces.” In this case, trial

counsel informed the military judge that, while talking

with Drs. Martin and Townsend-Parchman, he had

learned about two statements by Bledsoe. It seems clear

from the record that the prosecutor had not informed

defense counsel about these statements until he sought to

use them in cross-examining Dr. Martin. Possibly trial

counsel learned about the statements after arraignment;

and if so, this information did not fall within the terms of

Mil.R.Evid. 304(d)(1). Instead, under Mil.R.Evid.

304(d)(2)(B), trial counsel was under a duty to “provide

timely notice to the military judge and to the counsel for

the accused” if he formed an intent to offer the statement

in evidence.

The defense did not enter any objection on grounds of

untimely notice; and it did not request a continuance or

other relief by reason of surprise. Instead, the defense ob-

jection centered on lack of relevance and probative value

under Mil.R.Evid. 401 and 403; and so any prosecution

failure to provide “timely notice” was waived.

Mil.R.Evid. 302(a) grants an accused “a privilege to pre-

vent any statement made by the accused in a mental ex-

amination ordered under” the Manual for Courts-Martial

“and any derivative evidence obtained through use of such

a statement from being received into evidence against the

accused on the issue of guilt or innocence or during sen-

12a

tencing proceedings.” The privilege disappears, however,

“when the accused first introduces into evidence such

statements or derivative evidence.’®

The privilege against use by the prosecution of any

statement made by an accused in a mental examination

signifies that such statement would not be revealed to the

prosecution by the doctors who performed the sanity

evaluation. Apparently, this obligation of confidentiality

was violated.

The defense, however, did not move to disqualify trial

counsel because of his receipt of privileged information.

Moreover, trial counsel specifically represented that he

had “not used this information in any way up to this

point.” We have no reason to doubt this representation by

counsel; and certainly nothing in the record indicates that

trial counsel’s misacquired knowledge of Bledsoe’s

statements affected the preparation of the Government’s

case in any way. Thus, we need only focus on whether the

military judge committed prejudicial error by allowing

trial counsel to cross-examine Dr. Martin about

appellant’s two statements.

An accused opens the door for use of his otherwise

privileged statements made during a mental examination if

6 Fed.R.Crim.P. 12.2(c) has a comparable provision whereunder a

mental examination may be ordered upon motion by the Government,

and no statement made by the defendant during this examination

“shall be admitted in evidence against the defendant in any criminal

proceeding except on an issue respecting mental condition on which

the defendant has introduced testimony.” As noted in Estelle v. Smith,

451 U.S. 454, 465-66, 101 S.Ct. 1866, 1874, 68 L-.Ed.2d 359 (1981), a

plea of insanity, coupled with use of psychiatric testimony, may waive

the defendant’s Fifth Amendment privilege with respect to use of in-

formation obtained in a mental examination for litigating the issue of

sanity.

well toe

l3a

he “first introduces into evidence such statements or

derivative evidence.” Mil.R.Evid. 302(b)(1) (emphasis

added). Bledsoe’s statements had not been introduced by

the defense; but the Government claims that Dr. Martin’s

testimony as a defense witness was, at least in part,

“derivative evidence.”

We are unsure how broad this term was intended to be.

We doubt that the diganosis offered by a defense expert

can, in and of itself, be considered “derivative evidence”

merely because it is based in part on what the accused has

told the examining psychiatrists. Otherwise, in virtually

every instance in which the defense offered expert

testimony as to sanity, the expert witness could be cross-

examined about every statement the accused had made to

him. On the other hand, “derivative evidence” seems

broad enough to include any factual information provided

to the evaluators by an accused.

During the direct examination of Dr. Martin, he had

testified about “stresses” to which Bledsoe was subject;

and, in this connection, he mentioned “financial obliga-

tion”; and trial counsel apparently considered that this

reference opened the door for his asking Dr. Martin about

any statement by Bledsoe concerning his financial affairs.

As we read the record, the basis for this contention is

weak, because Dr. Martin’s reference to appellant’s finan-

cial status was minimal.

With respect to appellant’s statement to Dr. Townsend-

Parchman concerning his intent to “beat the rap” —a state-

ment which Dr. Martin had overheard in the hallway —the

Government contends that Mil.R.Evid. 302 is not even in-

volved. The premise for this contention is that Bledsoe’s

statement was not made pursuant to a compelled sanity ex-

amination. We cannot accept the premise, because it relies

on an unduly fine distinction. Bledsoe was at Wilford Hall

l4a

for a sanity evaluation and talked to various psychiatrists

from time to time. We assume that every remark that he

made to the psychiatrists might have been taken into ac-

count in evaluating his sanity; and this would be true

whether a remark was made in the context of a formal in-

terview or instead was part of a chance encounter. It suf-

fices that the remark was made to a member of the sanity

board, Dr. Townsend-Parchman, even though Dr. Mar-

tin, another board member, had only overheard it.

Even though appellant may have been entitled to pre-

vent use of the two statements in cross-examining Dr.

Martin, we do not believe that prejudicial error was com-

mitted. In the first place, the two statements would have

had minimal impact on the factfinder’s determination of

guilt or innocence, including mental responsibility. More

importantly, any privilege that Bledsoe enjoyed under

Mil.R.Evid. 302 was waived by reason of the defense

failure to particularize its objection, as required by

Mil.R.Evid. 103(a)(1). The only objection was on grounds

that the statements lacked relevance and probative value;

and since no claim of privilege was asserted at trial, it can-

not be asserted now on appeal.

Iv

The decision of the United States Air Force Court of

Military Review is affirmed.

Judge COX concurs.

SULLIVAN, Judge (concurring):

| agree with the majority opinion that prejudicial error

did not occur in this case. | would add, however, that

Mil.R.Evid. 302(b)(1) must be read and applied in light of

Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d

359 (1981). See Fed.R. Crim.P. 12.2(c). See also United

States v. Parker, 15 M.J. 146 (C.M.A.1983).

lSa

APPENDIX B-1

UNITED STATES AIR FORCE COURT OF MILITARY

REVIEW

ACM 23926

and

Misc. Dkt. No. 83-06

UNITED STATES

v,

AIRMAN First CLASS KirBy D. BLEDSOE, JR...

FR 459-27-1207 UNITED STATES AIR FORCE

30 September 1983

Sentenced adjudged 24 February 1983 by GCM convened

at Lackland Air Force Base, Texas. Military Judge: Ken-

neth D. Randall.

Approved sentence: Dishonorable discharge, confinement

at hard labor for thirty (30) months, forfeiture of four

hundred dollars ($400.00) per month for thirty (30)

months, and reduction to airman basic.

Appellate Counsel for the Accused: Colonel George R.

Stevens and Major Richard A. Morgan. Appellate

Counsel for the United States: Colonel Kenneth R.

Rengert and Captain Brenda J. Hollis.

Before: KASTL, RAICHIE and SNYDER Appellate Military

Judges

l6a

DECISION

Kastl, Senior Judge:

In the face of telling professional opinion questioning

the accused’s mental state, we return this case for further

inquiry into his mental capacity and responsibility

The accused was convicted of larceny and damage to

property of the United States, in violation of Articles 121

and 108, U.C.M.J. His sentence extends to a dishonorable

discharge, confinement at hard labor for 30 months, and

accessory penalties.

The facts bearing on this issue are set forth in the able

appellate defense brief:

During an Article 39(a) session prior to arraign-

ment, the military judge conducted an inquiry into

the petitioner’s competence to stand trial. This in-

quiry was due to the petitioner’s failure to respond to

the military judge’s questions concerning whe*her or

not he understood his rights to counsel. When the

petitioner did respond, his responses in the record of

trial appear garbled or unintelligible.

The prosecution presented the military judge with

Prosecution Exhibit 1, a copy of the Sanity Board

report. They also called Dr. (Lt. Colonel) Thomas A.

Martin, IIl, as a witness. Dr. Martin testified that he

is the Chief of In-Patient Psychiatry at Wilford Hall

Medical Center. He was one of the staff psychiatrists

involved in the Sanity Board proceedings pertaining

to the petitioner. He diagnosed the petitioner as hav-

ing symptoms of a conversion disorder and malinger-

ing. In his opinion the conversion disorder was the

predominant symptom. Dr. Martin explained that

17a

malingering is an unconscious process. The conver-

sion symptoms that the petitioner exhibited were an

unusual gait and stance, a very unusual form of stut-

tering, and atasia (stumbling about).

The petitioner was evaluated by neurologists, a

speech pathologist and a psychologist. There was no

organic origin for his symptoms. The initial

psychological testing done by Dr. Wooten, Chief

Psychologist, Wilford Hall Medical Center, resulted

in a diagnosis of malingering.

A conversion disorder is not a character and

behavior disorder or a psychosis, but is a neurosis.

The Sanity Board concluded that the conversion

disorder was present at the time of the alleged

larceny.

During his initial evaluation at Wilford Hall, the

petitioner's symptoms fluctuated widely from being

nearly catatonic to being someone who had just as

much energy as anyone else.

Dr. Martin expressed his belief that the petitioner

had sufficient mental capacity to understand the

nature of the proceedings in the court-martial and the

ability to cooperate or to conduct an intelligent

defense.

The defense called Airman Basic Rex Anderson, a

former inmate at the Consolidated Detention Facility,

Lackland Air Force Base, as a witness on the issue of

the petitioner’s competence to stand trial. Anderson

was confined with the petitioner from | January until

14 February 1983. He noticed that the petitioner

sometimes got emotionally upset in his cell and cried.

The petitioner was also frightened of things that had

motors, such as the washing machine and the floor

buffer. He noticed the petitioner often appeared to be

18a

mumbling and talking to non-existent people. Ander-

son further stated that the petitioner would

sometimes play in the commode or urinal after he had

used it and would also say he saw purple people.

Although it is not reflected in the record of trial,

the staff judge advocate pointed out, in his post-trial

review, that the demeanor of the petitioner during

portions of the trial might also have raised the issue of

Sanity in the minds of the court members because he,

at times, appeared to shake uncontrollably, had a

blank stare, and what appeared to be involuntary

movements, such as foot shuffling and leg jerking.

(Staff Judge Advocate Post-Trial Review, pages

22, 30).

The Sanity Board was unable to determine whether

the petitioner had a personality disorder because he

was not cooperative. Dr. Martin felt there may have

been a mixed personality disorder. This would have

been an anti-social personality or what in the past has

been called a sociopathic or psychopathic personality.

This is the type of person who cannot conform his

behavior to the usual norms of society, tends to be

amoral, remorseless, and without guilt for actions he

has performed against society. The petitioner also ex-

hibited a dependent personality and a schizotype per-

sonality. He reported seeing purple people or

chickens pecking on his skin and played with fecal

materials while in the confinement facility. A schizo

personality is one where the individual's thinking is a

little bit different than the norm and involves the type

of person who tends to say and do unusual things. In

Dr. Martin’s opinion, the conversion disorder was the

most prominent symptom during the petitioner's

hospitalization.

1¥a

In his Goode response, the trial defense counsel

pointed out that the Government, at the petitioner’s

; pretrial confinement hearing, had argued that he was

| a danger to himself because of his mental condition

and produced the testimony of a clinical psychologist

and a staff psychiatrist. One of the reasons that the

petitioner was continued in pretrial confinement was

because he presented a danger to himself and others.

The investigating officer, at the second Article 32 in-

vestigation, [a military judge] pointed out, in his

report of 18 January 1983, that the “accused’s

responses at the investigation were barely comprehen-

sible and sometimes unintelligible” (€10c, page 3, In-

vestigating Officer Report). The investigating officer

stated that he believed the petitioner “did not fully

comprehend the nature of the proceedings.” He

described his observations of the petitioner as “an ex-

perience I shall never forget.” (€18c, page 4, In-

vestigating Officer Report).

In his post-trial review, the staff judge advocate

agreed that it was “clear that the accused did have a

mental disease or defect, namely, a conversion

disorder .. .” (SJA Review, page 29). However, it

was the SJA’s belief that the petitioner nevertheless

did not lack substantial capacity to form the specific

intent necessary to commit the offenses charged [page

references omitted].

~

Basis For New Trial Request

Based on these facts, the appellate defense counsel peti-

tion this Court for a new trial under Article 73, U.C.M.J.,

noting that we may also wish to order a new sanity board

as well.

i

20a

In his Affidavit In Support of Petition for New Trial,

Lieutenant Colonel Wooten concludes as follows:

I am now of the opinion that [the accused at trial] was

then incapable of cooperating and assisting in his own

defense on a reasonably intelligent basis. I also judge

him to be less than fully mentally competent at the

time of the offenses.

Colonel Wooten had seen the accused in about 12 sessions

of psychotherapy. He now concludes that his initial con-

sultation and final diagnosis “while not in error, were in-

complete.” Colonel Wooten’s initial contact with the ac-

cused had led him “to the opinion that he was competent.”

Appellate defense counsel urge that such information

raises a substantial doubt as to the accused’s sanity at the

time of the offenses and at trial. They contend that trial

defense counsel did all he could to inquire into the ac-

cused’s sanity pretrial, and the information before us now

is newly discovered evidence thus entitling the accused to a

new trial.

Analysis

Military law accords insanity a preferred status. United

States v. Babbidge, 18 U.S.C.M.A. 327, 40 C.M.R. 39, 41

(1969); United States v. Carey, 11 U.S.C.M.A. 443, 29

C.M.R. 259 (1960). There are three district stages when

the issue of the accused’s sanity, if reasonably raised,

should be the subject of inquiry: (1) at the time of the com-

mission of the offense; (2) at the time of trial; and (3) at

time Of appellate review. United States v. Thomas, 13

U.S.C.M.A. 163, 32 C.M.R. 163 (1962). Of course, if an

accused is found to be insane at the time of appellate

review, the appellate proceedings are tolled. United States

v. Korzeniewski, 7 U.S.C.M.A. 314, 22 C.M.R. 104

(1956). Further inquiry into the accused’s mental condition

LAS 1h le EE ten POF

2la

is required when it appears warranted in the interest of

justice, regardless of whether the question was raised at

trial or how it was determined if raised. M.C.M., 1969

(Rev.), para. 124. See United States v. Walker, 20

U.S.C.M.A. 241, 43 C.M.R. 81 (1971).

In the case sub judice the information available to us

creates a sufficient doubt to warrant further inquiry into

the accused’s mental capacity at the time of the commis-

sion of the offenses and time of trial. United States v.

Triplett, 21 U.S.C.M.A. 497, 45 C.M.R. 271 (1972).

Hence, we set aside the convening authority’s action and

return the case.

The covening authority may institute a further sanity in-

quiry consistent with this decision. Any additional sanity

proceeding will specifically review and determine, in ac-

cordance with M.C.M., para. 121:

1. The accused’s mental responsibility for the of-

fenses of which he was convicted;

2. The accused’s mental capacity during his court-

martial; and

3. The accused’s present mental capacity as it

relates to the appellate process.

If the results of these proceedings demonstrate the ac-

cused’s mental capacity and responsibility, a new staff

judge advocate’s review should be prepared and furnished

to accused’s counsel pursuant to United States v. Goode, |

M.J. 3 (C.M.A. 1975).

If: (a) further sanity study is not feasible for any reason;

or (b) during the course thereof or after its completion the

supervisory authority is satisfied that the accused lacked

or lacks mental capacity or responsibility; or (3) for any

other reason the prosecution should be terminated, the

convening authority may dismiss the charges and

specifications.

22a

The action of the convening authority is set aside and

the record of trial is returned to The Judge Advocate

General, United States Air Force, for return to the con-

vening authority.

SNYDER, Judge concurs. RAICHLE, Judge, absent.

OFFICIAL

/S/ CAROLE V. PETTI

CAROLE V. PETTI

Clerk of Court

Court of Military Review

— se

én .

ter oh ore EM ee Sete 7 ohne

ee Se ee os

23a

APPENDIX B-2

UNITED STATES AIR FORCE COURT OF MILITARY

REVIEW

MISCELLANEOUS DOCKET NO. 83-06

ACM 23926

UNITED STATES

Vv.

AIRMAN First CLASS KirnBy D. BLEDSOE, JR.,

FR 459-27-1207

22 June 1984

ORDER

KASTL, Senior Judge:

In United States v. Bledsoe, 16 M.J. 977 (A.F.C.M.R.

1983), we held that psychiatric information available on

appeal created sufficient doubt so as to warrant further in-

quiry into the accused’s mental capacity at time of the

commission of the offenses of which he was convicted and

at time of his trial. Accordingly, we set aside the conven-

ing authority’s action and returned the case for such fur-

ther inquiry.

That inquiry has now occurred. The accused advanced

the testimony of various witnesses as to his mental capaci-

ty and responsibility; in addition, a new sanity board, con-

sisting of five members, found that the accused possessed

sufficient mental capacity to commit the offenses and to

be tried for them and that he currently enjoys sufficient

mental capacity to participate intelligently in his appeal.

24a

After hearing oral argument on the accused’s petition

for a new trial, we have reached our conclusions.* We find

no reasonable doubt as to the sanity of the accused at the

relevant times; and we are convinced that, considering all

the data presented, no different verdict would reasonably

result were a new trial to be ordered. United States v.

Triplett, 21 U.S.C.M.A. 497, 45 C.M.R. 271, 277 (1972);

United States v. Norton, 22 U.S.C.M.A. 213, 46 C.M.R.

213, 217 (1973); United States v. Chambers, 47 C.M.R.

469 (A.F.C.M.R. 1973).

*The unopposed defense Motion for Leave to File Additional

Documents, dated 17 April 1984, is GRANTED. The defense Motion

to File Document and Supplementary Brief in Support of Petition for

New Trial, dated 12 March 1984, is GRANTED.

Weighed under the standard set by paragraph 124 of the Manual for

Courts-Martial, 1969 (Rev.), the request for a new trial is DENIED.

CANELLOS and RAICHLE, Judges, concur.

OFFICIAL

/s/ LEO B. WEGEMER

LEO B. WEGEMER

Captain, USAF

Chief Commissioner

25a

APPENDIX B-3

UNITED STATES AiR FORCE COURT OF MILITARY

REVIEW

ACM 23926 (f rev)

UNITED STATES

Vv.

AIRMAN First CLASS KirBY D. BLEDSOE, JrR..,

FR 459-27-1207 UNITED STATES AIR FORCE

26 October 1984

Sentenced adjudged 24 February 1983 by GCM convened

at Lackland Air Force Base, Texas. Military Judge: Ken-

neth D. Randall.

Approved sentence: Dishonorable discharge, confinement

at hard labor for thirty (30) months, forfeiture of four

hundred dollars ($400.00) per month for thirty (30)

months, and reduction to airman basic.

Appellate Counsel for the Accused: Colonel Leo L. Sergi

and Captain Timothy J. Malloy. Appellate Counsel for

the United States: Colonel Kenneth R. Rengert and Cap-

tain Kevin L. Daugherty.

Before: HODGSON, FORAY and Murpock Appellate

Military Judges

DECISION UPON FURTHER REVIEW

HODGSON, Chief Judge:

The principal issues before us are the appellant’s mental

condition and the procedure by which this evidence was

26a

presented to the members, together with the prosecution’s

pretrial knowledge of statements made by the appellant

during the sanity inquiry. We find no error to warrant set-

ting aside the appellant’s conviction. However, to better

understand the assigned errors a brief discussion of the

facts and appellate history would be helpful.

The circumstances surrounding the offenses at bar are

not complicated. The record disclosed that on 14 July

1982, the appellant took, without permission, various per-

sonal items, i.e., a color television set, camera, lens, etc.,

from two airmen living in the barracks. Some five months

later, 30 December 1982, he did considerable damage to

the hospital room where he was assigned and to his room

in the barracks. Prior to trial the appellant met a Sanity

Board which concluded that he was suffering from a con-

version disorder' and malingering—the conversion

disorder being the predominant symptom. He did not lack

the capacity to appreciate the criminality of his conduct

and could conform his conduct to the requirements of law.

He was diagnosed as competent to stand trial.

At trial he defended the larceny allegation on the lack of

credible evidence coupled with an assertion that he was too

intoxicated to form the required intent, and argued that he

lacked the necessary mental responsibility to be held ac-

countable for his actions in damaging property of the

' A conversion disorder is a pseudo-neurological symptom that

results in such difficulties as “walking,” loss of vision, loss of speech,

loss of feeling in a part of the body, blocking of memory, etc. It is not

a character and behavior disorder or a psych ..S, but-is a neurosis.

The Sanity Board was unable to determine v nether the appellant had

a personality disorder because he was not cooperative.

PR Lt ahi TR OIE SS eat

OS

27a

United States. The members were given both defense

theories with full and complete instructions.

Subsequent to his conviction, the appellant, on 22 June

1983, petitioned this Court for a new trial. See Article 73,

U.C.M.J. In support of this petition he filed a post-trial

affidavit from a clinical psychologist who stated that his

earlier diagnosis “while not in error, [was] incomplete.”

This individual was now of the opinion that the appellant

was “less than fully mentally competent at the time of the

offenses.” Appellate defense counsel maintained that this

information together with the evidence of record raised a

substantial doubt as to the appellant’s sanity at the time of

the offenses and at trial. They contended the evidence was

newly-discovered and likely to produce a different result

had it been known at trial, thus requiring that the ap-

pellant be given a new trial.

In our original review, we considered the available in-

formation from all sources to be sufficient to justify a fur-

ther inquiry into the appellant’s medical condition. Ac-

cordingly, we set aside the convening authority’s action,

and gave him the option of instituting further sanity pro-

ceedings consistent with our opinion or dismissing the

charges. United States v. Bledsoe, 16 M.J. 977

(A.F.C.M.R. 1983). A second Sanity Board was convened

on 15 November 1983. This Board determined that at the

time of the offenses of which the appellant was convicted

he had no mental disease or defect, and had no mental

disorder that would warrant a medical separation. The

psychiatric diagnosis included symptoms of malingering,

mixed personality disorder with antisocial and schizoid

features and severe psychosocial stress. The Board con-

cluded by stating that the appellant was aware of the

criminality of his actions and could conform them to the

requirements of law.

28a

After hearing oral argument on the Petition for New

Trial, we found no reasonable doubt as to the sanity of the

appellant at the relevant times. Accordingly, on 22 June

1984, it was denied. The appeal is now before us for con-

sideration of assigned errors.

Appellate counsel contend the trial judge committed

prejudicial error in allowing the prosecution to put on ex-

pert psychiatric testimony in its case prior to the defense

offering any evidence of the issue on insanity. The record

reveals that the appellant’s mental state was considered a

major issue early in the proceedings with the judge hearing

evidence as to the accused’s mental capacity to stand trial.

Two psychiatrists who were members of the Sanity Board

which had earlier examined the appellant testified that he

had sufficient mental acumen to understand the pro-

ceedings and could cooperate in his defense. After con-

sidering this testimony and hearing argument the trial

judge ruled that the appellant was competent to stand

trial.

During an out-of-court session to discuss preliminary

matters, defense counsel indicated that Doctor Martin, a

military psychiatrist who had earlier testified as to the ap-

pellant’s capacity to stand trial, would attest that the ap-

pellan: was not able to control his behavior in formulating

the specific intent required to cause “willful damage to

government property.” Later, during voir dire of the

members, the defense made it clear that their client’s lack

of mental responsibility was a key issue as to the damage

to government property allegations, and that a defense

based on that condition would be urged in his behalf.

al ines Tila in tire MN th ag ek i Seishin

CE I Ae iat Nelle Rl fo HY tt

29a

After Government counsel suggested in his opening

Statement that the appellant was free from any mental

defect or disease that might affect him being held account-

able for his actions, and that the prosecution would offer

evidence to support this, individual defense counsel asked

for a mistrial, urging that a “sanity defense” should be ini-

tiated by the defense, not the government. The trial judge

denied the mistrial and allowed the prosecution to offer

evidence establishing the appellant’s sanity during it case

in chief.

Appellate counsel contend the judge’s ruling was er-

roneous and resulted in prejudice in two areas. First, it

allowed the government to control the defense’s case by re-

quiring it to respond to the testimony in kind. And second,

the ruling permitted the government to put on extensive

evidence that the appellant was not truly mentally ill, but a

malingerer. They assert, referring to the post-trial af-

fidavit in support of the Petition for New Trial, that such

testimony was not a true reflection of the appellant’s men-

tal state.

Citing Mil. R. Evid. 302(b)(2)? as authority they urge

that introduction of expert testimony on mental respon-

sibility by the defense is a condition precedent to the

government’s ability to put on expert testimony to the con-

trary. We agree that the defense’s interpretation of this

provision is reasonable, but hasten to suggest that it must

? Rule 302. Privilege Concerning Mental Examination of an

Accused.

(b) Exceptions.

(2) An expert witness for the prosecution may testify as to the

reasons for the expert’s conclusions and the reasons therefor as to the

mental state of the accused if expert testimony offered by the defense

as to the mental condition of the accused has been received in

evidence, but such testimony may not extend to statements of the ac-

cused except as provided in (1) [Emphasis provided]

30a

be read in conjunction with Mil. R. Evid. 611(a), which

allows the trial judge to exercise reasonable control over

the presentation of evidence in order to develop the facts

without needless consumption of time. Clearly, a trial

judge retains the traditional power to depart from the

usual order of proof. United States v. Terry, 727 F.2d

1063 (6th Cir. 1984). While we think it the far better prac-

tice for the government to respond to a‘ defense assertion

that the accused lacks the requisite mental responsibility,

we do not find, in the case before us, that the trial judge

abused his discretion in allowing the government to pro-

ceed in its case in chief with testimony relating to ap-

pellant’s mental state. It is readily apparent from the

record that mental responsibility or lack thereof was the

pivotal issue as to the damaging government property

allegation; trial defense counsel made that clear during his

voir dire. The evidence the government offered during its

initial presentation was admissible in rebuttal. Malinger-

ing, as a symptom of the appellant’s overall condition, was

a medical diagnosis and was relevant testimony. The ap-

pellant was not surprised by the testimony nor was he pre)-

udiced. Accord United States v. Watson, 12 M.J. 983

(A.F.C.M.R. 1983).

After Doctor Martin testified concerning the appellant's

mental condition, the trial counsel asked the military

judge to release the narrative portion of the Sanity Board’s

findings as an aid in cross-examination. He contended that

Doctor Martin’s testimony “opened the door” to examina-

tion of statements the appellant may have made during the

sanity hearing. In the course of his argument urging the

trial judge to release the material, the prosecutor disclosed

that he had knowledge of these statements prior to trial.

3la

The first statement concerned the financial problems the

appellant was experiencing, which the prosecution main-

tained went toward establishing the motive for the thefts.

The second related to a conversation Doctor Martin

overheard in the hospital corridor between the appellant

and Doctor Townsend-Parchman (a Sanity Board

member) to the effect that he (appellant) was “going to

beat this rap” and no one was “going to get [him] on this

offense [referring to the larceny].” Doctor Martin was not

a party to the conversation but overheard it as he was

walking by.

Appellate defense counsel contend that the trial

counsel’s knowledge of these statements, which he ad-

mitted he knew were privileged, were in contravention of

paragraph 121, M.C.M., 1969 (Rev.) which states in part:

No individual, other than defense counsel, accused,

or after referral of charges, the military judge, shall

disclose to the trial counsel any statement made by the

accused to the [Sanity Board] or any evidence derived

from that statement. [Emphasis added]

Relying on this provision they urge that the trial judge

erred in admitting the statements which were breaches of

the privilege created in Mil. R. Evid. 302(a).

Appellate government counsel argue that the defense

“opened the door” to a discussion of the appellant's finan-

cial problems by their examination of Doctor Martin

about their client’s background, and that conversation

Martin overheard in the hallway was not part of the Sanity

Board evaluation and thus was not privileged.

There is no question but that trial counsel had knowl-

edge of at least one statement by the appellant that was

directly connected to the Sanity Board. He admitted this

to the trial judge and candidly acknowledged knowing it

was restricted information.

32a

The issue before us is one of first impression. Should a

sanction be applied, e.g., disqualification of the trial

counsel or referral to a different convening authority when

the prosecution is privy to statements an accused has made

during a sanity hearing? And whether a sanction is im-

posed or not, does such disclosure require a per se rule of

gen<.al prejudice as is applied when a confession is im-

properly admitted, United States v. Taylor, 5 U.S.C.M.A.

178, 17 C.M.R. 178 (1958), or may the disclosure be

viewed as harmless error where the evidence of guilt is

compelling? The Court of Military Appeals and the

Courts of Military Review have upheld the harmless error

doctrine in numerous decisions involving errors of less

than Constitutional dimension. United States v. Colcol, 16

M.J. 479 (1983); United States v. Allen, 7 M.J. 345 (1979);

United States v. Thompson, 14 M.J. 721 (A.F.C.M.R.

1982); United States v Clark, 12 M.J. 978 (A.F.C.M.R.

1982); United States v. Olah, 12 M.j. 773 (A.C.M.R.

1981); United States v. Bell, 3 M.J. 1010 (A.C.M.R.

1977); United States v. Midkiff, 15 M.J. 1043

(N.M.C.M.R. 1983). Since the error under review con-

cerns a procedural rule, any misapplication would not

attain Constitutional proportion. An error not of Con-

stitutional proportion may be found harmless if it can be

determined that the factfinder was not influenced by it or

the error was de minimus on the resolution of the issue.

United States v. Mendoza, 18 M.J. 576 (A.F.C.M.R.

1984). We are aware that some legal commentators equate

Mil. R. Evid. 302 with the broad protections offered by

Article 31(b) of the Code. See Saltzburg, Schinasi and

Schueter, Military Rules of Evidence Manual 64 (1981).

However, we think a better reasoned approach is to deter-

mine if the challenged information was harmless error in

light of the other evidence.

de a

33a

The statement involving the appellant's financial prob-

lems impacts only the larceny allegation. The defense

theory was two-fold: 1) a denial that the appellant stole the

property; and 2) his degree of intoxication negated the

specific intent required for a wrongful taking. To meet its

burden the Government established that Airman First

Class Aaron A. Emfield left the Non-Commissioned Of-

ficers Club with the appellant at 2000 hours, 14 July 1982.

They walked to their barracks nearby. Emfield did not

remember anything after “hitting the bed” because he was

intoxicated and on medication. The next morning he

discovered his Ricoh camera, and accessories missing as

well as his roommate’s RCA color television. A security

policeman on patrol and who was in the barracks saw the

appellant enter Emfield’s room with Emfield. Later that

evening he saw the appellant leave the building carrying a

“box-like object.” That same evening the appellant ad-

mitted to a friend, while seeking to borrow his car, that he

had taken a television and other items from Emfield’s

room and needed to get off base. He later borrowed a car

from another airman and drove off base to the residence

of Gerald E. Hernandez, a former Air Force member, who

testified that the appellant brought him a television and

Ricoh camera to sell. Law enforcement officers subse-

quently recovered the items which were identified by their

owners.

Under these facts we discern no prejudice flowing to the

appellant from the use of a “privileged” statement pro-

viding a possible motive for the larceny. The evidence of

guilt is otherwise compelling. United States v. Logan, 18

M.J. 606 (A.F.C.M.R. 1984).

We turn now to the overheard conversation in the

hospital hall between the appellant and Doctor Townsend-

Parchman. The nature and location of the communication

34a

does not support a realistic assertion that it was a part of

the Sanity Board proceedings. It was made under such cir-

cumstances that a disclosure by someone overhearing it

was not only possible but quite likely. See generally United

States v. Robbins, 47 C.M.R. 917 (A.F.C.M.R. 1969). In

Our opinion this was not the communication situation that

Mil. R. Evid. 302 was enacted to protect. Not being part

of the Sanity Board’s proceedings, no privilege attached to

the overheard statement, which impacts only the larceny

conviction.

As stated earlier in this opinion, the trial counsel

recognized that the information he uncovered during his

pre-trial investigation was ostensibly privileged. However,

he did not disclose this fact until that point in the trial

when he thought it was admissible in rebuttal. As a part of

his disclosure he assured the Court that he had “not used

this information in anyway.” We accept his averment as

being made in good faith, but we nevertheless strongly

urge that where the prosecutor has directly or indirectly

learned of an accused’s statement which is apparently

privileged under Mil. R. Evid. 302, he should immediately

disclose this fact to defense counsel and the military judge.

See generally United States v. Littlehales, _» M.J.

(A.F.C.M.R. 1984).

IV

Appellate counsel urge that the evidence fails to

establish beyond a reasonable doubt that the appellant had

the capacity to form the requisite specific intent to willful-

ly damage government property. At trial the appellant

stipulated he damaged the rooms in the manner alleged.

He maintained then as he does now that his mental capaci-

ty was so impaired that he was not criminally liable for his

conduct. This issue was fully litigated at trial and sub-

3Sa

mitted to the members under the proper instructions. We

have examined the record and find no basis to disturb the

Court’s determination of mental competency implicit in its

findings of guilty. Article 66(c), U.C.M.J.; United States

v. Ragan, 10 C.M.R. 725 (A.F.B.R. 1953).

We find appropriate only so much of the sentence as

provides for a bad conduct discharge, confinement at hard

labor for 20 months, forfeiture of $397.00 per month for

20 months and reduction to airman basic. The findings of

guilty and sentence, as modified, are

AFFIRMED.

FORAY, Senior Judge and MURDOCK, Judge, concur.

OFFICIAL

/s/ CHARLES L. WILLE

CHARLES L. WILLE

Captain, USAF

Chief Commissioner

tr US. GOVERNMENT PRINTING OFFICE. 1988— 196-769/62032