CAAFlog » September 2014 Term » United States v. Torres

CAAF decided the Air Force case of United States v. Torres, 74 M.J. 154 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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Audio of yesterday’s oral arguments at CAAF is available at the following links:

United States v. Torres, No. 14-0222/AF (CAAFlog case page): Oral argument audio.

United States v. Bennitt, No. 12-0616/AR (CAAFlog case page): Oral argument audio.

Additionally, audio of yesterday’s oral argument at the NMCCA in United States v. Oakley is available here. The issues are in this week’s TWIMJ.

CAAF will hear oral argument in the Air Force case of United States v. Torres, No. 14-0222/AF (CAAFlog case page), on Wednesday, December 10, 2014. The case is the latest in a series of instructional error cases considered by the court, and presents 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.

Appellant was charged with assaulting his wife, “VJT,” by “choking her throat with his hands with a force likely to produce death or grievous bodily harm.” App. Br. at 2. Appellant’s defense was that he had suffered a seizure and his actions were involuntary. At trial, the Defense called a neurologist as an expert witness who testified that in the “postictal period” after a seizure a person may become involuntarily violent. App. Br. at 7-8. The Defense then asked the military judge to instruct the members that the Government was required to prove voluntariness beyond a reasonable doubt, with an instruction that:

began by stating, “The evidence in this case has raised an issue whether the acts alleged in the Specification of Charge I were committed voluntarily.” App. Ex. IV; J.A. 190. The instruction ended by stating, “What is in issue is whether the government has proven beyond a reasonable doubt that the accused acted voluntarily.” Id.

App. Br. at 10. The Defense also explicitly disclaimed the affirmative defense of lack of mental responsibility, noting that it “would unfairly shift the burden to the defense to prove that Appellant was not acting voluntarily.” App. Br. at 9.

The Defense position at trial highlights the difference between a defense and an affirmative defense – something that I analyzed in my recent article about defenses to adult sexual offenses (discussed here). Broadly speaking, a defense is something that disproves an element of the crime, while an affirmative defense is something that does not disprove an element but rather seeks to avoid criminal responsibility. Due process requires that the prosecution disprove all defenses, but due process permits a statutory scheme that requires the defense to prove an affirmative defense.

In Torres, the military judge refused to give the instruction requested by the Defense. Moreover, he gave the standard instruction regarding lack of mental responsibility. In accordance with Article 50A, that instruction requires the Defense to prove the affirmative defense lack of mental responsibility by clear and convincing evidence. In doing so, the military judge may have improperly relieved the Government of its burden to disprove Appellant’s defense that his actions were involuntary.

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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.