U.S. v. Torres, 74 M.J. 154

Military Justice Personnel: Military Judge: Instructions

1. neither epilepsy nor automatism constitutes a mental disease or defect, and CAAF has never held that the affirmative defense of lack of mental responsibility applies in such cases; in this case, where appellant sought to show that he had an epileptic seizure and was experiencing an altered state of consciousness when he assaulted his wife and that this altered state of consciousness rendered his actions involuntary, it was error for the military judge to instruct the panel that (1) the evidence raised the issue of whether the accused lacked criminal responsibility for the offenses as a result of a severe mental disease or defect, and (2) consistent with this affirmative defense, if it concluded that the government had proved all of the elements of the offense beyond a reasonable doubt, the burden then shifted to the defense to show by clear and convincing evidence that the accused suffered from a severe mental disease or defect, making him unable to appreciate the nature and quality or wrongfulness of his conduct; by instructing the panel pursuant to the provisions of RCM 916(k)(1), the military judge shifted the burden of proof to the defense to show that the accused suffered from a severe mental disease or defect, which made him unable to appreciate the nature and quality or wrongfulness of his conduct; this the military judge could not do; at trial, the burden always was required to rest with the government to prove beyond a reasonable doubt that appellant had committed each element of the offense, and one of those elements pertained to the issue of whether appellant’s actions were voluntary, and hence, unlawful
2. in cases where the issue of automatism has been reasonably raised by the evidence, a military judge should instruct the panel that automatism may serve to negate the actus reus of a criminal offense

Core Criminal Law Subjects: Crimes: Article 128 - Assault Pre-2019 offenses

1. aggravated assault under Article 128(b)(4), UCMJ, contains the following elements: (1) that the accused attempted to do, offered to do, or did bodily harm to a certain person, (2) that the accused did so with a certain weapon, means, or force, (3) that the attempt, offer, or bodily harm was done with unlawful force or violence, and (4) that the weapon, means, or force was used in a manner likely to produce death or grievous bodily harm

Core Criminal Law Subjects: Defenses: Generally

1. an accused cannot be held criminally liable in a case where the actus reus is absent because the accused did not act voluntarily, or where mens rea is absent because the accused did not possess the necessary state of mind when he committed the involuntary act
2. automatism is defined as action or conduct occurring without will, purpose, or reasoned intention, behavior carried out in a state of unconsciousness or mental dissociation without full awareness, and the physical and mental state of a person who, though capable of action, is not conscious of his or her actions; automatism is sometimes referred to as an unconsciousness defense
3. in the military justice system, neither epilepsy nor automatism has been held to be a mental disease or defect; therefore, the affirmative defense of lack of mental responsibility under RCM 916(k)(1) is not applicable in those instances
4. in cases where the issue of automatism has been reasonably raised by the evidence, a military judge should instruct the panel that automatism may serve to negate the actus reus of a criminal offense

Core Criminal Law Subjects: Defenses: Lack of Mental Responsibility

1. in the military justice system, neither epilepsy nor automatism has been held to be a mental disease or defect; therefore, the affirmative defense of lack of mental responsibility under RCM 916(k)(1) is not applicable in those instances

Trial Stages: Merits: Instructions › Affirmative defenses

1. neither epilepsy nor automatism constitutes a mental disease or defect, and CAAF has never held that the affirmative defense of lack of mental responsibility applies in such cases; in this case, where appellant sought to show that he had an epileptic seizure and was experiencing an altered state of consciousness when he assaulted his wife and that this altered state of consciousness rendered his actions involuntary, it was error for the military judge to instruct the panel that (1) the evidence raised the issue of whether the accused lacked criminal responsibility for the offenses as a result of a severe mental disease or defect, and (2) consistent with this affirmative defense, if it concluded that the government had proved all of the elements of the offense beyond a reasonable doubt, the burden then shifted to the defense to show by clear and convincing evidence that the accused suffered from a severe mental disease or defect, making him unable to appreciate the nature and quality or wrongfulness of his conduct; by instructing the panel pursuant to the provisions of RCM 916(k)(1), the military judge shifted the burden of proof to the defense to show that the accused suffered from a severe mental disease or defect, which made him unable to appreciate the nature and quality or wrongfulness of his conduct; this the military judge could not do; at trial, the burden always was required to rest with the government to prove beyond a reasonable doubt that appellant had committed each element of the offense, and one of those elements pertained to the issue of whether appellant’s actions were voluntary, and hence, unlawful
2. in cases where the issue of automatism has been reasonably raised by the evidence, a military judge should instruct the panel that automatism may serve to negate the actus reus of a criminal offense

Trial Stages: Appeals: Harmless / Prejudicial Error

1. in determining whether appellant was prejudiced by a military judge’s instructional error on findings, an appellate court applies a harmlessness analysis: whether it is clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error
2. in this case, the military judge’s instructional error in failing to provide a defense-requested instruction on findings that appellant could not be held criminally liable for his actions unless they are voluntary was harmless beyond a reasonable doubt where (1) the government’s expert witness, a neurologist, testified that: (a) post-seizure violence is rare among people who have epilepsy, (b) those individuals who do engage in post-seizure violence do it every time, but appellant did not have a history of post-seizure violence, (c) in those rare instances when post-seizure violence does occur, it typically happens in the immediate post-seizure state rather than twenty to thirty minutes from the beginning of the post-seizure state as posited in the instant case, and (d) appellant’s version of events where he engaged in post-seizure violence, then got up, got dressed, talked to a guest in his home, and then regressed into a somnolent state again did not add up in the expert’s mind, (2) the second sanity board conducted in this case found that appellant was not experiencing a post-seizure state during the alleged assault, but rather was suffering from an alcohol-induced mood disorder and partner relationship problems, (3) the military judge granted the trial defense counsel broad latitude to introduce evidence and to argue before the panel that: (a) appellant’s choking of his wife was the direct result of his altered state of consciousness brought on by an epileptic seizure, (b) this altered state of consciousness caused appellant’s conduct to be involuntary, and (c) because appellant’s conduct was involuntary, appellant could not be held criminally responsible for the assault, and (4) when the defense’s own expert witness testified on cross-examination, he agreed that it was highly improbable that appellant assaulted his wife due to the effects of being in a post-seizure state

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. an appellate court reviews de novo the instructions given by a military judge
2. in determining whether appellant was prejudiced by a military judge’s instructional error on findings, an appellate court applies a harmlessness analysis: whether it is clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error