CAAF decided the Air Force case of United States v. Torres, __ M.J. __ No. 14-0222/AF (CAAFlog case page) (link to slip op.), on Tuesday, May 12, 2015. The court unanimously finds that the military judge erred in instructing the members on the defense of lack of mental responsibility when Appellant asserted the defense of automatism in that that his act of choking his wife with his hands was involuntary because he had suffered a seizure. However, the court splits 3-2 to find this error harmless, affirming the findings, sentence, and the decision of the Air Force CCA.
Judge Ohlson writes for the majority, joined by Chief Judge Baker and Judge Ryan. Judge Stucky dissents, joined by Judge Erdmann.
CAAF granted review of a single issue:
Whether the military judge erred by denying the defense requested instruction.
Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of one specification of aggravated assault and three specifications of assault consummated by a battery, in violation of Article 128. He was sentenced to confinement for six months, reduction to E-1, and a bad-conduct discharge.
The aggravated assault specification alleged that Appellant assaulted his wife by “choking her throat with his hands with a force likely to produce death or grievous bodily harm.” Slip op. at 2. Appellant’s defense was that he suffered a seizure and his actions were involuntary. Specifically:
Appellant sought to show that he had an epileptic seizure on the morning of May 13, 2008, and that he thus was experiencing an altered state of consciousness when he assaulted his wife. Appellant further asserted that this altered state of consciousness rendered his actions involuntary, and argued that the Government had therefore failed to prove that his conduct “was done with unlawful force or violence” as required for aggravated assault.
Slip op. at 4 (emphasis in original) (citation omitted). Appellant’s defense counsel also asked the military judge to instruct the members that they must be “satisfied beyond a reasonable doubt that the accused, at the time of the alleged offense acted voluntarily” in order to convict him. Slip op. at 5 (quoting record).
However, the military judge refused to give the instruction requested by the defense. Rather, the military judge instructed the panel consistent with the affirmative defense of lack of mental responsibility, and “consistent with this affirmative defense, the military judge further instructed the panel that 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.” Slip op. at 5.
CAAF holds that the military judge erred in giving this instruction, though it acknowledges that military law is not exactly clear on how to handle a defense of automatism:
Thus, as noted above, at the time of trial in the instant case, the state of the law was not particularly clear in regard to whether automatism should be viewed as potentially negating an accused’s mens rea, or potentially negating the actus reus, or both. What was clear, however, was that neither epilepsy nor automatism constituted a mental disease or defect and this Court has never held that the affirmative defense of lack of mental responsibility applies in these cases. Indeed, we find it was error for the military judge in the instant case to instruct the panel in that manner.
Slip op. at 7-8 (emphasis in original).
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