Last week CAAF granted review of the Air Force case of United States v. Torres, No. 14-0222/AF, with the following issue:

Whether the military judge erred by denying the defense requested instruction.

The case involves Appellant’s assaults upon his wife, including one about which a “neurologist testified it was possible the appellant had an epileptic seizure that morning which resulted in him curling up on the floor, and that his aggression towards his wife when roused by her, was a postictal violent response which did not constitute conscious and voluntary behavior on his part.” United States v. Torres, No. 37623, slip op. at 3 (A.F.Ct.Crim.App. Oct. 2, 2013) (link to slip op.). In connection with this possibly postictal violence, Appellant was convicted of aggravated assault for choking his wife with his hands.

Prior to findings, the Defense requested an instruction on “voluntariness” that included:

The evidence in this case has raised an issue [of] whether the acts alleged in the [aggravated assault specification] were committed voluntarily. An accused may not be held criminally liable for his actions unless they are voluntary. If the accused, due to a medical condition such as a seizure disorder, is incapable of acting voluntarily at the time of the offense, then his actions were involuntary, and he may not be found guilty of the offense . . . .

Slip op. at 4. The military judge refused to give the requested instruction. The AFCCA considered this issue and, after considering the defense of automatism (“[a]ction or conduct occurring without will, purpose, or reasoned intention, such as sleepwalking; behavior carried out in a state of unconsciousness or mental dissociation without full awareness,” slip op. at 7), and how it applies to mens rea (mental state) and actus reas (the guilty act), the court “reject[ed] the appellant’s effort to apply the automatism defense in terms of his actus reus.” Slip op. at 9. The court then concluded that even if Appellant could use his mental state as a defense in this manner:

The members were instructed that the prosecution had the burden of proving each of the elements beyond a reasonable doubt, including that the appellant’s choking of his wife was unlawful (defined as “without legal . . . excuse”) which, as argued by the defense, clearly goes to the question of the voluntariness or consciousness of his acts. Thus, the purpose of appellant’s requested instruction was substantially met by the instructions given to the panel.

Slip op. at 10. CAAF will now review both the CCA’s predicate finding of no error in the judge’s refusal to give the instruction and, if it finds error, the CCA’s subsequent finding of harmlessness.

Instructions are a big topic at the court this term, with CAAF’s ongoing consideration of United States v. Davis, No. 14-0029/AR (CAAFlog case page) (questioning judge’s failure to sua sponte give defense of property instruction), United States v. MacDonald, No. 14-0001/AR (post discussing grant) (questioning judge’s failure to give requested involuntary intoxication instruction), and United States v. Talkington, No. 13-0601/AF (CAAFlog case page) (questioning judge’s instructions regarding consideration of sex offender registration).

The court has also decided instructional issues in United States v. Knapp, No. 13-5012/AF, 73 M.J. 33 (C.A.A.F. 2014), recons. den., 73 M.J. 237 (C.A.A.F. 2014) (CAAFlog case page) (reversing due to the judge’s failure to instruct members to disregard improper human lie detector testimony), United States v. Payne, No. 13-0245/AF, 73 M.J. 19 (C.A.A.F. 2014) (CAAFlog case page) (affirming after finding improper instructions on the elements to be harmless error), and United States v. Hornback, No. 13-0442/MC, 73 M.J. 155 (C.A.A.F. 2014) (CAAFlog case page) (affirming despite finding significant prosecutorial misconduct, because of the effectiveness of the judge’s curative instructions).

By this count, Torres is the seventh instructional error case this term.

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