ACCA’s decision in United States v. Hearn, __ M.J. ___, No. ARMY 20060128 (A. Ct. Crim. App. July 17, 2008), provides useful clarification regarding the law of voluntary intoxication. In Hearn, ACCA follows the lead of the Wisconsin Court of Appeals. Based on many of the Badger Staters I know, it seems sensible to use Wisconsin law as a model when considering voluntary intoxication.
In Hearn, ACCA observes that “military courts have historically treated ‘voluntary intoxication’ as a special defense.” Id., slip op. at 12. ACCA announces that it “will continue to apply voluntary intoxication as a defense to specific intent offenses.” Id.
ACCA then addresses when a military judge must provide a voluntary intoxication defense instruction to the members. “[E]vidence that an accused consumed intoxicants, standing alone, is insufficient to require a voluntary intoxication instruction.” Id. Rather, “[w]hen raising an issue of voluntary intoxication as a defense to a specific intent offense, ‘there must be some evidence that the intoxication was of a severity to have had the effect of rendering the appellant incapable of forming the necessary intent, not just evidence of mere intoxication.'” Id., slip op. at 12 (quoting United States v. Peterson, 47 M.J. 231, 234 (C.A.A.F. 1997)).
ACCA then borrows a three-part test from the Cheesehead Court of Appeals to further clarify when a military judge must instruct on voluntary intoxication: “A defendant is entitled to a voluntary intoxication jury instruction when: (1) the crime charged includes a mental state; (2) there is [evidence of impairment due to the ingestion of alcohol and drugs]; and (3) there is evidence that the [impairment] affected the defendant’s ability to form the requisite intent or mental state.” Id., slip op. at 13 (quoting State v. Kruger, 67 P.3d 1147, 1149 (Wis. Ct. App. 2003) (alterations in original)). ACCA, again quoting the Cheeseheads, synopsizes: “[T]he evidence must reasonably and logically connect the defendant’s intoxication with the asserted inability to form the required level of culpability to commit the crime charged.” Id. (quoting Kruger, 67 P.3d at 1149-50) (alteration in original).
ACCA ultimately holds that “the failure of the military judge to instruct on the affirmative defense of voluntary intoxication was prejudicial error” that prevented it from “affirm[ing] appellant’s conviction for indecent acts or liberties with a child.” Id., slip op. at 14. ACCA instead affirms an LIO of indecent acts with another. Finally, ACCA reassesses the sentence and reduces the length of confinement by five months.