                           UNITED STATES, Appellee

                                    v.

           George D. B. MACDONALD, Private First Class
                       U.S. Army, Appellant

                              No. 14-0001

                       Crim. App. No. 20091118

       United States Court of Appeals for the Armed Forces

                          Argued May 13, 2014

                       Decided August 27, 2014

BAKER, C.J., delivered the opinion of the Court, in which
ERDMANN, STUCKY, RYAN, and OHLSON, JJ., joined.

                                 Counsel

For Appellant: William E. Cassara, Esq. (argued); Lieutenant
Colonel Jonathan F. Potter and Captain Robert H. Meek III (on
brief); Captain Brandon H. Iriye.

For Appellee: Captain Daniel M. Goldberg (argued); Colonel John
P. Carrell, Lieutenant Colonel James L. Varley, and Major
Catherine L. Brantley (on brief); Major Robert Rodrigues.



Military Judge:   James L. Pohl




       THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. MacDonald, No. 14-0001/AR


     Chief Judge BAKER delivered the opinion of the Court.

     A panel of members sitting as a general court-martial

convicted Appellant, contrary to his pleas, of one specification

of resisting apprehension in violation of Article 95, Uniform

Code of Military Justice (UCMJ), one specification of

premeditated murder in violation of Article 118, UCMJ, and two

specifications of assault in violation of Article 128, UCMJ.     10

U.S.C. §§ 895, 918, 928 (2012).   Appellant was sentenced to a

reprimand, reduction to E-1, forfeiture of all pay and

allowances, confinement for life without the eligibility of

parole, and a dishonorable discharge.   The convening authority

approved the adjudged sentence.   Appellant then appealed to the

United States Army Court of Criminal Appeals (CCA), which

focused on two issues:   (1) whether the military judge erred in

quashing Appellant’s subpoena request to Pfizer, Inc. (Pfizer)

for additional data; and (2) whether the military judge abused

his discretion in denying Appellant an instruction on

involuntary intoxication.   On July 3, 2013, the CCA held that

the military judge erred in failing to enforce the subpoena, but

the error was harmless beyond a reasonable doubt.   United States

v. MacDonald, No. ARMY 20091118, 2013 CCA LEXIS 548, at *25,

2013 WL 3376714, at *9 (A. Ct. Crim. App. July 3, 2013)

(unpublished).   The CCA also concluded the military judge abused

his discretion in refusing to issue the involuntary intoxication

                                  2
United States v. MacDonald, No. 14-0001/AR


instruction but the error was harmless beyond a reasonable

doubt.      Id. at *25-*26, 2013 WL 3376714, at *9.   On this basis,

the CCA determined that the findings and sentence were correct

in law and fact, and affirmed.     Id. at *32, 2013 WL 3376714, at

*10.

       On September 3, 2013, Appellant appealed to this Court.

United States v. MacDonald, 73 M.J. 40 (C.A.A.F. 2013).       We

granted review of two issues:

       I.     WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED
              IN DETERMINING THAT THE MILITARY JUDGE’S ERROR IN
              QUASHING A SUBPOENA ISSUED TO PFIZER, INC., TO
              PRODUCE RELEVANT AND NECESSARY DOCUMENTS
              REGARDING CLINICAL TRIALS, ADVERSE EVENT REPORTS,
              AND POST-MARKET SURVEILLANCE OF THE DRUG
              VARENICLINE WAS HARMLESS BEYOND A REASONABLE
              DOUBT.

       II.    WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION
              IN DENYING A DEFENSE REQUESTED INSTRUCTION ON
              INVOLUNTARY INTOXICATION, AND ERRED IN FAILING TO
              INSTRUCT THE MEMBERS ON THE EFFECT OF
              INTOXICATION ON APPELLANT’S ABILITY TO FORM
              SPECIFIC INTENT AND PREMEDITATION.


United States v. MacDonald, 73 M.J. 238 (C.A.A.F. 2014) (order

granting review).     Because we decide Issue II in Appellant’s

favor and reverse, we need not reach Issue I.

                                 SUMMARY

       The ultimate questions in resolving the second issue in

this case are whether Appellant’s ingestion of varenicline

(popularly known as and hereinafter referred to as Chantix)


                                    3
United States v. MacDonald, No. 14-0001/AR


should have resulted in an involuntary intoxication instruction

and, if so, whether a mental responsibility instruction

otherwise rendered the absence of such an instruction harmless

beyond a reasonable doubt.

     The CCA determined that the military judge erred in failing

to give an instruction on involuntary intoxication despite the

technically imprecise instruction proffered by the defense.     In

the words of the CCA, “[t]he evidence presented at trial raised

the involuntary intoxication defense.”   MacDonald, 2013 CCA

LEXIS 548, at *26, 2013 WL 3376714, at *8.   “The proposed

instruction was essentially correct . . . .”    Id. at *27, 2013

WL 3376714, at *9.   And, “[t]he judge effectively denied the

existence of an involuntary intoxication defense.”   Id. at *21,

2013 WL 3376714, at *7.   Because Appellant put on “some

evidence” that “reasonably raised” the defense of involuntary

intoxication in the form of evidence of ingestion as well as

expert testimony regarding the potential side effects of

Chantix, we hold that the military judge had a sua sponte duty

to instruct on the defense of involuntary intoxication and

therefore agree with the CCA’s ultimate determination that the

military judge erred in failing to give a separate and distinct

involuntary intoxication instruction.

     Therefore, the key question is whether this instructional

error was harmless beyond a reasonable doubt.   The CCA concluded

                                 4
United States v. MacDonald, No. 14-0001/AR


that the error was harmless because the military judge’s

instruction on mental responsibility otherwise covered the

defense of involuntary intoxication.   Further, “[e]ven if the

requested instruction were given, it is clear beyond a

reasonable doubt that the panel would have found appellant

guilty of the offenses charged in this case. . . . Appellant

cannot escape the overwhelming evidence of his mental

responsibility for the offenses he committed.”   Id. at *29, 2013

WL 3376714, at *9.    Similarly, with respect to the military

judge’s sua sponte duty, the CCA determined that “even if such

an instruction were rendered, a rational panel would have found

appellant guilty of premeditated murder, as well as the other

offenses charged, in light of the overwhelming evidence that

appellant was fully able to form the intent necessary to be held

criminally liable.”   Id. at *29, 2013 WL 3376714, at *9.    We

disagree.

     The defense of lack of mental responsibility requires

demonstration that the accused suffered from a mental disease or

defect and that as a result he was unable to appreciate the

nature and quality or wrongfulness of his act.   Article 50a,

UCMJ, 10 U.S.C. § 850a (2012).   In turn, the defense of

involuntary intoxication “require[s] a finding that there has

been involuntary ingestion of an intoxicant” and that the

accused was “unable to appreciate the nature and quality or

                                  5
United States v. MacDonald, No. 14-0001/AR


wrongfulness of his acts.”    United States v. F.D.L., 836 F.2d

1113, 1117 (8th Cir. 1988).   As the CCA explained:

     the defense of involuntary intoxication is similar to
     that of lack of mental responsibility in that the
     defense must prove by clear and convincing evidence
     that he did not appreciate the nature and quality or
     wrongfulness of his acts, but different in that he
     need not prove that he suffered a severe mental
     disease or defect, but rather that he was intoxicated
     by some substance that results in what amounts to
     legal insanity.

MacDonald, 2013 CCA LEXIS 548, at *26, 2013 WL 3376714, at *8

(emphasis added).

     Without an involuntary intoxication instruction, it is

possible that the members may have concluded that they could not

acquit Appellant without first finding a mental disease or

defect.   It is similarly possible that the members did not

consider, as a separate matter, whether involuntary intoxication

may have prevented Appellant from appreciating the nature and

quality or wrongfulness of his act.   Further, we cannot be

confident beyond a reasonable doubt, as the CCA was, that the

members would have concluded Appellant appreciated the

wrongfulness of his actions if they had been properly instructed

on involuntary intoxication with respect to Chantix.

Consideration of such evidence was and is in the first instance

the responsibility of the trier of fact.

     As a result, we are not confident the error did not

contribute to the verdict in this case.

                                  6
United States v. MacDonald, No. 14-0001/AR


                             BACKGROUND

               The Events Leading Up to May 18, 2008

     At the time of his arrest, Appellant was nineteen years old

and had been in the service for approximately a year.      Prior to

enlisting, Appellant was an active member of his community and

led various volunteering and mentoring projects as an Eagle

Scout.   Upon turning eighteen, both Appellant and his twin

brother enlisted in the United States Army.   After successfully

completing Infantry Training and the Airborne Course, they were

both selected for an appointment to the United States Military

Academy Preparatory School (USMAPS), class of 2009.

     During the pendency of his matriculation to USMAPS,

Appellant was assigned to the supply room at Delta Company, Fort

Benning, Georgia.   Multiple coworkers described him as a

peaceful person.    On April 18, 2008, a week shy of his

nineteenth birthday, Appellant visited the Martin Army Community

Hospital to seek help in quitting smoking.    According to the

medical record, he sought medical help because he had smoked up

to a half pack of cigarettes daily for the past three years.

During the visit, the Army doctor prescribed Chantix to

Appellant as a smoking cessation drug.    On May 18, 2008, one

month after the Army doctor prescribed Chantix, Appellant

fatally attacked Private (PVT) Bulmer while he was sleeping,



                                  7
United States v. MacDonald, No. 14-0001/AR


stabbing him to death.   Prior to this attack, Appellant did not

know nor had he ever interacted with PVT Bulmer.

     At the time of Appellant’s attack, PVT Bulmer was a twenty-

three-year-old recruit who had been in training for three days.

PVT Bulmer was recovering from surgery he underwent prior to his

arrival at Fort Benning.    Because of this, PVT Bulmer had been

excused by his drill sergeant from drill and ceremony training

that day and was instructed to wait in the shade next to the

barracks.   Undetected, PVT Bulmer slipped away and went to sleep

in his rack.

     Meanwhile, Appellant was in his room reading a book and

waiting to do laundry.   For some days, however, according to his

statement, Appellant had been experiencing “new and strange

thoughts” including a “person [was] telling me . . . dangerous

things that arent [sic] me.”   These included violent thoughts of

killing someone.   In fact, the night before the attack,

Appellant had asked his girlfriend whether she would still love

him if he killed someone.

     Appellant eventually left his room to do laundry and

without thinking he placed a small, black, double-edged knife

into his pocket that he used to cut string.   He headed toward

the closest laundry facility, which was in the same bay as PVT

Bulmer.   Along the way, Appellant happened upon a sleeping PVT

Bulmer.   According to his confession, something “snapped” and he

                                  8
United States v. MacDonald, No. 14-0001/AR


went “crazy,” attacking PVT Bulmer with the knife in his pocket.

Appellant first stabbed PVT Bulmer in the neck, intending it to

be a fatal blow.   PVT Bulmer awakened mid-attack and tried to

ward off the blows.   His resulting screams and pleas for help

drew the attention of nearby trainees.   Two soldiers saw the

assault through a window.   When they realized one man was

attacking another, they entered PVT Bulmer’s room and

intervened.   Lashing out at one of the soldiers who tried to

stop the attack, Appellant fled to his room, covered in PVT

Bulmer’s blood.    There, Appellant showered, placed all the

bloody clothes into a backpack, and hastily left his room

wearing civilian clothes.   Although the soldiers’ intervention

had stopped Appellant’s assault, PVT Bulmer had already suffered

more than fifty knife wounds that would ultimately prove fatal.

     By the time Appellant left his room, a general alert had

been issued to apprehend the man who attacked PVT Bulmer.      A

noncommissioned officer (NCO) patrolling the periphery of Fort

Benning found Appellant walking along the tree line away from

the scene of the crime.   When questioned by the NCO, Appellant

said he was going to buy a new pair of sneakers on post.

Suspecting something was amiss, the NCO questioned Appellant

further at which point Appellant attempted to flee.   The NCO

chased him and physically subdued him until military police

arrived and apprehended Appellant.

                                  9
United States v. MacDonald, No. 14-0001/AR


     Taken into custody, Appellant waived his right to remain

silent and admitted he had stabbed PVT Bulmer.    In a handwritten

statement, he described an internal struggle and that he “was

someone else, something was wrong” and that he “want[ed] help.”

Appellant also acknowledged that he “didn’t even know the guy

[PVT Bulmer], didnt [sic] think about it before-hand . . . .

[w]as telling myself ‘NO’ . . . [this] wasn’t me.”    “I fought

myself with the idea,” he continued, stating that, “I guess I

thought I was supposed to kill this man.”     Appellant wrote that

“I was someone else, something was wrong . . . . I want help.”

When asked why he stabbed PVT Bulmer, Appellant replied by

writing “Insanity, temp.” because “this is not who I am, I went

crazy for a while, I should have seen the signs, was hurting, I

snapped Im [sic] so sorry.”   He also admitted that he felt

“stretched thin” due to his extended stay as a private at Fort

Benning and complained of abuse by drill instructors.    Appellant

ended his confession by writing “Im [sic] very sorry, dont [sic]

know what happened to me.   Sorry.”

               The Escalation of Chantix Warnings

      Chantix was approved by the Food and Drug Administration

(FDA) in May 2006, at which point the most common side effects

listed in the labeling were nausea, changes in dreaming,

constipation, gas, and vomiting.     Dep’t of Health & Human

Servs., FDA, NDA 021928, Chantix, at 25 (May 2006) (Chantix

                                10
United States v. MacDonald, No. 14-0001/AR


approval label), available at

http://www.accessdata.fda.gov/drugsatfda_docs/nda/2006/021928_s0

00_Chantix_PrntLbl.pdf (last visited Aug. 27, 2014).    However,

over the course of the next two years, the nature and scope of

the warnings rapidly escalated.    By November 2007, the FDA

issued an update noting that “suicidal thoughts and aggressive

and erratic behavior” were reported in patients taking Chantix.

Dep’t of Health & Human Servs., FDA, Early Commc’n About an

Ongoing Safety Rev. of Varenicline (marketed as Chantix) (Nov.

20, 2007), available at

http://www.fda.gov/Drugs/DrugSafety/PostmarketDrugSafetyInformat

ionforPatientsandProviders/DrugSafetyInformationforHeathcareProf

essionals/ucm070765.htm (last visited Aug. 27, 2014).    The

update revealed that “many cases reflect new-onset of depressed

mood, suicidal ideation, and changes in emotion and behavior

within days to weeks of initiating Chantix treatment.”   Id.

Three months later, in February 2008, the FDA issued an Alert to

“highlight important revisions to the WARNINGS and PRECAUTIONS

sections of the full prescribing information . . . regarding

serious neuropsychiatric symptoms” associated with Chantix.

Dep’t of Health & Human Servs., FDA, Info. for Healthcare

Prof’ls:   Varenicline (marketed as Chantix) (Feb. 1, 2008),

available at

http://www.fda.gov/Drugs/DrugSafety/PostmarketDrugSafetyInformat

                                  11
United States v. MacDonald, No. 14-0001/AR


ionforPatientsandProviders/ucm124818.htm (last visited Aug. 27,

2014).   Specifically, the Alert acknowledged that since the FDA

issued their November 2007 communication, “it appears

increasingly likely that there is an association between Chantix

and serious neuropsychiatric symptoms.”      Id.   The Alert listed

the symptoms as “changes in behavior, agitation, depressed mood,

suicidal ideation, and attempted and completed suicide.”       Id.

The February Alert also stated that while most symptoms

“developed during . . . treatment,” for others “symptoms

developed following withdrawal of Chantix therapy.”      Id.

     On May 16, 2008, two days before Appellant killed PVT

Bulmer, the FDA issued a Public Health Advisory, the third

warning in less than six months.     Dep’t of Health & Human

Servs., FDA, Pub. Health Advisory:    Important Info. on Chantix

(varenicline) (May 16, 2008), available at

http://www.fda.gov/Drugs/DrugSafety/PostmarketDrugSafetyInformat

ionforPatientsandProviders/DrugSafetyInformationforHeathcareProf

essionals/PublicHealthAdvisories/ucm051136.htm (last visited

Aug. 27, 2014).   This time the Alert urged patients to stop

taking Chantix and to call their doctor right away if they, or

their family or caregiver, noticed “agitation, depressed mood,

or changes in behavior that are not typical for you, or if you

have suicidal thoughts or actions.”    Id.    The Advisory stated

that “Chantix may cause worsening of a current psychiatric

                                12
United States v. MacDonald, No. 14-0001/AR


illness . . . and may cause an old psychiatric illness to

reoccur.”   Id.   The Advisory also stated that patients may

experience “vivid, unusual, or strange dreams.”   Id.

     By July 2009, the FDA issued a Black Box warning -- the

strongest FDA warning level before a drug is pulled from the

market.   Dep’t of Health & Human Servs., FDA, Chantix, at 1

(July 2009) (updated Chantix safety label), available at

http://www.accessdata.fda.gov/drugsatfda_docs/label/2009/021928s

012s013lbl.pdf (last visited Aug. 27, 2014).   This Black Box

warning stated:

     All patients being treated with CHANTIX should be
     observed for neuropsychiatric symptoms including
     changes in behavior, hostility, agitation, depressed
     mood, and suicide-related events, including ideation,
     behavior, and attempted suicide. These symptoms, as
     well as worsening of pre-existing psychiatric illness
     and completed suicide have been reported in some
     patients attempting to quit smoking while taking
     CHANTIX in the post-marketing experience.

Id. (emphasis added).   In addition to the Black Box warning,

this update included the following information under the

WARNINGS section:

     Serious neuropsychiatric symptoms have been reported in
     patients being treated with CHANTIX (See Boxed Warning,
     PRECAUTIONS/Information for patients, and ADVERSE
     REACTIONS/Post-Marketing Experience). These post-marketing
     reports have included changes in mood (including depression
     and mania), psychosis, hallucinations, paranoia, delusions,
     homicidal ideation, hostility, agitation, anxiety, and
     panic, as well as suicidal ideation, suicide attempt, and
     completed suicide.
Id. at 9 (second emphasis added).

                                 13
United States v. MacDonald, No. 14-0001/AR


     Similar warnings were also included in the section titled

“Information for Patients” under PRECAUTIONS.   For example, one

of the bullets in this section noted that “some patients have

experienced . . . psychosis, hallucinations, paranoia,

delusions, homicidal ideation, aggression, anxiety, and panic.”

Id. at 13 (emphasis added).   Likewise, in the “Post-Marketing

Experience” section under ADVERSE REACTIONS, one of the

paragraphs noted “[t]he following adverse events have been

reported during post-approval use of CHANTIX . . . [t]here have

been reports of . . . homicidal ideation, aggression, hostility,

anxiety, and panic.”   Id. at 17 (emphasis added).

                Appellant’s Defense Theory at Trial

     Appellant argued that use of the smoking cessation drug

Chantix was a key factor in his violent, homicidal outburst

leading to the tragic death of PVT Bulmer.   This defense theory

was premised on showing Appellant had Chantix in his system and,

given this, that Chantix was a factor in Appellant’s fatal

stabbing of PVT Bulmer.

     1.   Presence of Chantix in Appellant’s System

     On May 19, 2008 -- a day after the fatal stabbing --

Appellant voluntarily supplied a sample of blood and urine.

This was later tested by the Armed Forces Institute of Pathology

(AFIP) but came back negative for Chantix.   From Appellant’s

perspective, however, the reliability of the AFIP tests was

                                14
United States v. MacDonald, No. 14-0001/AR


questionable, particularly because AFIP did not have the

stability studies necessary for testing pursuant to the correct

toxicological standards.    Appellant argued that a drug “degrades

in urine or blood over time depending on the manner in which it

is stored,” and the results can be affected by tolerance levels

of the testing equipment.

     Subsequently, Appellant had his previously collected sample

of urine independently tested for the presence of Chantix at NMS

Labs -- a private laboratory -- in June 2009, over a year after

the death of PVT Bulmer.    In contrast to the earlier AFIP test,

this time the laboratory had the stability studies from Pfizer.

The NMS results reported positive for Chantix.   Although

questions were raised by both sides about whether the test

accurately represented the actual concentration of Chantix in

Appellant’s system at the time of the incident -- due to the

uncertainty regarding the conditions under which the sample was

stored and transported, as well as the potential impact on the

test result given the passage of time -- the parties proceeded

at trial on the basis that there was Chantix in Appellant’s

system at the time of the incident, as noted in the stipulation

of fact.

     Based on this positive test, Appellant made a motion for

the military judge to reconsider the quashing of an earlier

subpoena requesting data from Pfizer regarding Chantix and its

                                 15
United States v. MacDonald, No. 14-0001/AR


potentially harmful effects.   Appellant requested this

reconsideration for several reasons; namely, the positive test

result demonstrated the presence of Chantix in Appellant’s

system at the time of the incident, a new and more severe

warning about Chantix had been issued, and the Rules for Courts-

Martial (R.C.M.) 706 board had not considered the potential of

Chantix influencing Appellant.1

     However, the military judge denied this motion.      In doing

so, the military judge concluded that “‘[i]t doesn’t make any

difference as far as [he could] see whether [Appellant’s mental

condition was] caused by Chantix or not caused by Chantix.

Chantix is an explanation.’”   MacDonald, 2013 CCA LEXIS 548, at

*13, 2013 WL 3376714, at *4.   He continued that:

     the court does not believe that the new evidence or
     that anything has changed since its last ruling. The
     court still believes the proper standard is R.C.M. 703
     because this is a court order to a third party, and
     therefore the defense motion for a reconsideration of
     its ruling of 24 June is hereby denied.

Id. at *13-*14, 2013 WL 3376714, at *4.

     2.   Neuropsychiatric Symptoms Associated with Chantix and
          the Involuntary Intoxication Instruction

     During trial, Appellant provided evidence that Chantix was

subject to a number of escalating FDA warnings about its


1
  Appellant also argued that Dr. Lupcho -- the psychologist that
did the R.C.M. 706 evaluation -- “[n]ever factored into any of
her analysis whether or not there was a pharmaceutical or
pharmacological basis for the actions of Private MacDonald.”
                                  16
United States v. MacDonald, No. 14-0001/AR


potential side effects.   A defense expert in forensic

psychiatry, Dr. Glenmullen, provided testimony on the effects of

Chantix on the brain’s neurochemistry.   Specifically, Dr.

Glenmullen described that the level of dopamine in the brain

affects a person’s behavior and “probably has one of the most

profound effects on human emotion and behavior.”    Increases in

dopamine can cause one to “feel more agitated, irritable,

anxious, sleepless; keep turning it up and up you can get manic;

keep turning it up and up you can get psychotic.”   Dr.

Glenmullen elaborated that because Chantix effectively causes an

increase of dopamine in the brain, it can be correlated with

behavioral changes.   Further, though the side effects of

increased dopamine vary, some of the more severe side effects

are more likely when there are underlying mental health issues

in the patient.

     To that end, Dr. Glenmullen conducted an assessment of

Appellant and interviewed his friends and family members,

concluding that Appellant suffered from three diagnoses of

untreated psychiatric conditions.    Specifically, Appellant had a

“schizoid personality disorder which was kind of his reaction to

his childhood,” as well as a “history of long term mild

depression” and “psychosis . . . [that included] auditory

hallucinations.”   These conditions predated Appellant’s

treatment with Chantix.   Specialist Harrison -- who intervened

                                17
United States v. MacDonald, No. 14-0001/AR


during the stabbing of PVT Bulmer -- testified that Appellant

was acting “completely crazy,” “[l]ike he was possessed.”

Another expert, Dr. Pancholi, also testified that based on her

assessment, Appellant previously suffered from psychotic

disorder, schizoid personality disorder, and dysthymic disorder.

On this basis, she said she would not have prescribed Chantix to

a person with these underlying psychiatric issues.   In addition,

another defense expert -- Thomas Moore -- testified that due to

the serious psychiatric side effects of Chantix, a number of

defense and civil agencies had banned the use of this drug.    For

example, the Department of Defense banned the use of this drug

for missile crews and aircraft personnel.    Similarly, the

Federal Aviation Administration restricted the use of Chantix by

all pilots and air controllers and the Department of

Transportation banned its use by people driving trucks.

     During trial, Appellant argued that he was under the

influence of Chantix both before and during the fatal stabbing

of PVT Bulmer.   To that end, Appellant requested an instruction

on involuntary intoxication, which he argued could be a complete

defense to the charges or, in the alternative, could negate the

element of premeditation and intent.2   Specifically, Appellant

requested the following instruction:


2
  The question this Court is asked to address is whether
Appellant was entitled to an involuntary intoxication
                                18
United States v. MacDonald, No. 14-0001/AR


     To invoke the defense of involuntary intoxication, the
     defendant must produce sufficient evidence to raise a
     reasonable doubt as to the voluntariness of his
     intoxication. Involuntary intoxication results from
     fraud, trickery or duress of another, accident or
     mistake on defendant’s part, pathological condition,
     or ignorance as to the effects of prescribed
     medication and is a complete defense where the
     defendant is so intoxicated that he is unable to
     distinguish between right and wrong, the same standard
     as applied in an insanity defense. Salahdin v.
     Gibson, 275 F.3d 1211.

     In support, Appellant relied on his experts’ testimony.

Specifically, Dr. Glenmullen testified that at the time of the

incident, Appellant had “substance intoxication” where the

substance was Chantix which “essentially catapult[ed] him into

the equivalent of an acute psychotic break in a schizophrenic.”

During the four weeks Appellant took Chantix, Dr. Glenmullen

noted that Appellant became more “paranoid” and “thought that

people were out to get him,” eventually developing “homicidal

thoughts” during the fourth week of taking Chantix.   Dr.

Glenmullen further testified that Appellant’s preexisting

neuropsychiatric condition was exacerbated by Chantix and

because of a Chantix-induced psychosis, he would not have been

able to possess the conscious intent to kill.   Moreover, Dr.



instruction, not whether he was entitled to the instruction
requested by Appellant which, admittedly, was flawed but not
fatally so. Because we hold that the military judge had a sua
sponte duty to instruct on involuntary intoxication we do not
reach the issue of whether the military judge should have
instructed despite the technically imprecise instruction
proffered by Appellant.
                               19
United States v. MacDonald, No. 14-0001/AR


Glenmullen specifically referenced “substance intoxication” and

testified on cross-examination that involuntary intoxication

occurs when an individual takes a prescription drug without

correct warnings and is thereby not responsible for his

behavior.   In fact, when Appellant raised this issue of the

escalating Chantix warnings at trial, he noted that these facts

went toward the issue of involuntary intoxication and mental

responsibility generally.

     Of note, the Government also offered an instruction on

involuntary intoxication, albeit using different language.

However, the military judge declined to give this instruction or

an alternative involuntary intoxication instruction on the basis

that his mental responsibility instruction was sufficient.

During this exchange, the military judge elaborated:

     MJ:    Got it. But that’s not a correct statement of
            the law. It says here, it says where the
            defendant is so intoxicated [he] is unable to
            distinguish between right from wrong the same
            standard is applied in an insanity defense.
            Don’t you need a mental disease -- a serious
            mental disease or defect causing the accused not
            to appreciate the wrongfulness of his act or the
            quality of his act?

     DC:    Sir, that’s what I got out of the case, the
            federal case.

     MJ:    I understand that, but I’m talking about under
            military law that’s passed by Congress does not
            it require a superior --

     DC:    But I found no military case law to support this


                                 20
United States v. MacDonald, No. 14-0001/AR


           instruction, sir. But that said, that doesn’t
           mean the instruction shouldn’t be given.

     MJ:   No, I agree. I agree that we can look at other
           courts for guidance in a particular area. But
           Congress is legislator in this area and in my
           view we’re bound by the congressional act, and
           therefore I will give the mental responsibility
           instruction I discussed earlier, but not that
           particular one.

     Accordingly, the military judge did not provide an

involuntary intoxication instruction.    Ultimately, Appellant was

convicted of all charges and sentenced to a reprimand, reduction

to E-1, total forfeitures, confinement to life without the

eligibility of parole, and a dishonorable discharge.   The

convening authority approved the sentence as adjudged.     Though

the CCA determined that the military judge erred in failing to

issue the involuntary intoxication instruction, the CCA also

held this error to be harmless beyond a reasonable doubt.

Appellant then appealed to this Court.

                        STANDARD OF REVIEW

     The adequacy of a military judge’s instructions is reviewed

de novo.   United States v. Dearing, 63 M.J. 478, 482 (C.A.A.F.

2006).   “The military judge bears the primary responsibility for

ensuring that mandatory instructions . . . are given and given

accurately.”   United States v. Miller, 58 M.J. 266, 270

(C.A.A.F. 2003); see also R.C.M. 920(a).




                                21
United States v. MacDonald, No. 14-0001/AR


     If an affirmative defense is reasonably raised by the

evidence, the military judge has a sua sponte duty to instruct

the members on that defense.   United States v. Davis, 53 M.J.

202, 205 (C.A.A.F. 2000).   A defense is reasonably raised when

“some evidence, without regard to its source or credibility, has

been admitted upon which members might rely if they chose.”

United States v. Stanley, 71 M.J. 60, 61 (C.A.A.F. 2012)

(internal quotation marks and citations omitted); United States

v. Watford, 32 M.J. 176, 178 (C.M.A. 1991) (noting a defense is

reasonably raised when there is “some evidence” to which the

panel members “might attach credence”).   Any doubt regarding

whether an affirmative defense instruction is in order should be

resolved in favor of the accused.    Davis, 53 M.J. at 205.

      “Where an instructional error raises constitutional

implications, this Court has traditionally tested the error for

prejudice using a “‘harmless beyond a reasonable doubt’

standard.”   United States v. Davis, 73 M.J. 268, 271 (C.A.A.F.

2014) (quoting United States v. Wolford, 62 M.J. 418, 420

(C.A.A.F. 2006)).   The test for determining if the

constitutional error is harmless is “whether it appears ‘beyond

a reasonable doubt that the error complained of did not

contribute to the verdict obtained.’”   United States v.

McDonald, 57 M.J. 18, 20 (C.A.A.F. 2002) (quoting Chapman v.

California, 386 U.S. 18, 24 (1967)).    “Whether the error is

                                22
United States v. MacDonald, No. 14-0001/AR


harmless beyond a reasonable doubt is a question of law that we

review de novo.”   United States v. Simmons, 59 M.J. 485, 489

(C.A.A.F. 2004).

                             ANALYSIS

     The threshold questions presented are whether the military

judge should have instructed on involuntary intoxication and

whether there was prejudice in the absence of this instruction.

     Involuntary intoxication is an affirmative defense under

the UCMJ.3   Although not expressly listed as an affirmative

defense under R.C.M. 916, not all affirmative defenses are

listed.   See Davis, 73 M.J. at 272 n.5 (C.A.A.F. 2014)

(“Although, R.C.M. 916 does not expressly list defense of

property as a special defense, this Court and its predecessor

have long recognized defense of property as an available defense

in the military justice system.”).   R.C.M. 916 states that the

term “defenses” includes “any special defense which, although

not denying that the accused committed the objective acts

constituting the offense charged, denies, wholly or partially,

criminal responsibility for those acts.”   By its own terms,

R.C.M. 916 provides an illustrative rather than an exhaustive

3
  The Rules for Courts–Martial suggest that the terms “special
defense” and “affirmative defense” are interchangeable. R.C.M.
916(a) Discussion; see also Davis, 73 M.J. at 271 n.3. In this
case, it is more accurate to use the term “affirmative defense”
because the accused bears the burden of showing it by clear and
convincing evidence.

                                23
United States v. MacDonald, No. 14-0001/AR


list of defenses.   Further, a number of courts -- including this

Court -- recognize involuntary intoxication as an affirmative

defense.   See, e.g., United States v. Hensler, 44 M.J. 184, 187-

88 (C.A.A.F. 1996); United States v. Craig, 3 C.M.R. 304, 311

(A.B.R. 1952) (“The general rule that involuntary intoxication

excuses an accused from criminal responsibility applies where

one involuntarily becomes drunk by being compelled to drink

against his will, or through another’s fraud or stratagem, or by

taking liquor prescribed by a physician.”); see also Waller v.

Tucker, No. 11-21841-CIV-JORDAN, 2011 U.S. Dist. LEXIS 156455,

at *40-*44, 2011 WL 9350129, at *14-*15 (S.D. Fla. Dec. 12,

2011); Lucherini v. State, 932 So. 2d 521 (Fla. Dist. Ct. App.

2006); People v. Garcia, 113 P.3d 775 (Colo. 2005); Colon v.

State, 568 S.E.2d 811 (Ga. Ct. App. 2002); see generally Phillip

E. Hassman, Annotation, When Intoxication Deemed Involuntary So

as to Constitute a Def. to Crim. Charge, 73 A.L.R.3d 195 (1976);

2 Crim. Prac. Manual § 40:2 (2014).   In Hensler, this Court

recognized involuntary intoxication as an affirmative defense

and the Government has not challenged that legal conclusion at

trial or on appeal.   Rather, the Government challenge has been

to the scope of the defense and its factual applicability in

this case.

     Here, the CCA determined Appellant provided some evidence

at trial that reasonably raised the defense of involuntary

                                24
United States v. MacDonald, No. 14-0001/AR


intoxication and the military judge erred in not providing a

corresponding instruction.    The CCA did not analyze whether

involuntary intoxication was an affirmative defense, but

summarily concluded:

          As to whether the military judge had a sua sponte
     duty to address involuntary intoxication as it related
     to the questions of intent and premeditation, we also
     find that even if such an instruction were rendered, a
     rational panel would have found appellant guilty of
     premeditated murder, as well as the other offenses
     charged, in light of the overwhelming evidence that
     appellant was fully able to form the intent necessary
     to be held criminally liable.

MacDonald, 2013 CCA LEXIS 548, at *29, 2013 WL 3376714, at *9.

     We hold that the military judge had a sua sponte

responsibility to instruct.   However, unlike the CCA, we are not

confident the absence of an involuntary intoxication instruction

did not contribute to the verdict.    In determining that the

instructional error was harmless beyond a reasonable doubt, the

CCA relied on two related conclusions.   First, “[t]he ultimate

issue to be decided by the panel relative to each [defense] is

sufficiently equivalent to ensure the reliability of the

convictions in this case.”    Id. at *29, 2013 WL 3376714, at *9.

Second, “even if such an instruction were rendered, a rational

panel would have found appellant guilty of premeditated murder,

as well as the other offenses charged, in light of the

overwhelming evidence that appellant was fully able to form the



                                 25
United States v. MacDonald, No. 14-0001/AR


intent necessary to be held criminally liable.”   Id. at *29,

2013 WL 3376714, at *9.   We address each argument in turn.

     The military judge instructed the members on mental

responsibility as well as partial mental responsibility, which

covered whether or not Appellant was suffering from a mental

disease or defect at the time of the crime.   In doing so, the

military judge relied on Article 50a, UCMJ:

     It is an affirmative defense in a trial by court-
     martial that, at the time of the commission of the
     acts constituting the offense, the accused, as a
     result of a severe mental disease or defect, was
     unable to appreciate the nature and quality or the
     wrongfulness of the acts. Mental disease or defect
     does not otherwise constitute a defense.
     The accused has the burden of proving the defense of
     lack of mental responsibility by clear and convincing
     evidence.

Article 50a(a)-(b), UCMJ; see also 18 U.S.C. § 17; United States

v. Martin, 56 M.J. 97, 103 (C.A.A.F. 2001).   Specifically, the

military judge’s instructions read:

     If you determine that, at the time of the offenses,
     the accused was suffering from a severe mental disease
     or defect, then you must decide whether, as a result
     of that severe mental disease or defect, the accused
     was unable to appreciate the nature and quality or
     wrongfulness of his conduct.
     If the accused was able to appreciate the nature and
     quality and the wrongfulness of his conduct, he is
     criminally responsible; and this is so regardless of
     whether the accused was then suffering from a severe
     mental disease or defect.
     On the other hand, if the accused had a delusion of
     such a nature that he was unable to appreciate the
     nature and quality or wrongfulness of his acts, the

                                26
United States v. MacDonald, No. 14-0001/AR


     accused cannot be held criminally responsible for his
     acts, provided such a delusion resulted from a severe
     mental disease or defect.
     To summarize, you must first determine whether the
     accused, at the time of these offenses, suffered from
     a severe mental disease or defect. If you are
     convinced by clear and convincing evidence that the
     accused did suffer from a severe mental disease or
     defect, then you must further consider whether he was
     unable to appreciate the nature and quality or the
     wrongfulness of his conduct. If you are convinced
     that the accused suffered from a severe mental disease
     or defect, and you are also convinced by clear and
     convincing evidence that he was unable to appreciate
     the nature and quality or wrongfulness of his conduct,
     then you must find the accused not guilty only by
     reason of lack of mental responsibility. On the other
     hand, you may not acquit the accused on the ground of
     lack of mental responsibility, absent the accused
     suffering from a severe mental disease or defect, or
     if you believe that he was able to appreciate the
     nature and quality and wrongfulness of his conduct.
     The military judge also gave an instruction on partial

mental responsibility, in which he stated that “[i]n determining

this issue you must consider all relevant facts and

circumstances and the evidence presented on the issue of lack of

mental responsibility.”   He also noted that members should

consider, “in connection with all the relevant facts and

circumstances, evidence tending to show that the accused may

have been suffering from a mental disease, defect, condition or

disorder of such consequence and degree as to deprive him of the

ability to entertain these states of mind.”   The military judge

reinforced his instruction by asking the members to “remember

that the defense of lack of mental responsibility, that is,


                                27
United States v. MacDonald, No. 14-0001/AR


insanity, and evidence that the accused may have lacked the

required state of mind are separate defenses although the same

evidence may be considered with respect to both.”   However, as

the CCA noted, the “judge’s failure to provide the [involuntary

intoxication] instruction was aggravated by his failure to even

mention Chantix as relevant to the panel’s consideration of the

defense of lack of mental responsibility and on the question of

intent and seriously impaired the defense presentation.”

MacDonald, 2013 CCA LEXIS 548, at *28, 2013 WL 3376714, at *9.

     Because both parties rely on this Court’s Hensler decision

in support of their argument that involuntary intoxication is

either distinct from or subsumed within the defense of mental

responsibility, we address it in detail here.   And, in fairness

to the military judge and the parties, the case can be read to

support either proposition.   44 M.J. at 187.   Therefore, it is

important to distinguish the differences between Hensler and the

present case.

     In Hensler, the appellant raised a defense of involuntary

intoxication against charges of conduct unbecoming an officer

and fraternization.   At trial, the appellant argued she lacked

mental responsibility because of “a confluence of her drugs, her

personality traits, her depression, and the introduction of

alcohol.”   Id. at 187 (internal quotation marks omitted).    “The

military judge provided the members the traditional instruction

                                28
United States v. MacDonald, No. 14-0001/AR


on the insanity defense,” instructing “them that they could

presume the accused to be sane unless they were persuaded by

clear and convincing evidence that she suffered from a severe

mental disease or defect and that, as a result of her severe

mental disease or defect, she was unable to appreciate the

nature and quality or wrongfulness” of her actions.   United

States v. Hensler, 40 M.J. 892, 895-96 (N.M.C.M.R. 1994), aff’d,

44 M.J. 184 (C.A.A.F. 1996).   The military judge referenced the

term “involuntary intoxication” with respect to the issue of

whether the appellant “knew that she was fraternizing with

enlisted personnel.”   Hensler, 44 M.J. at 187.   He further

instructed the members that “alcoholism and chemical dependency

is recognized by the medical profession as a disease involving a

compulsion towards intoxication.”    Id. (internal quotation marks

omitted).

     Following conviction by a general court-martial, Hensler

appealed on the basis that this instruction was not sufficient

for a defense of involuntary intoxication.   On review, this

Court affirmed, noting three essential factors.   First, the

instructions were adequately, although not perfectly, tailored

to the evidence.   Second, the military judge instructed the

members that alcoholism and chemical dependency are a disease.

And finally, the government did not dispute the appellant’s

contention that the combination of psychological problems, job-

                                29
United States v. MacDonald, No. 14-0001/AR


related stress, over-medication, loss of liver function, and

alcohol consumption could cause a lack of mental responsibility.

Id. at 188.

     In the present action, like Hensler, the Government did not

dispute the possibility of involuntary intoxication by Chantix

as it even offered its own set of instructions on involuntary

intoxication.   However, unlike Hensler, the military judge’s

instructions were not sufficiently tailored nor did the military

judge refer to “involuntary intoxication” or the potential

effects of Chantix in the given instructions.

     Further, this Court stated in Hensler that “[i]nvoluntary

intoxication is treated like legal insanity.    It is defined in

terms of lack of mental responsibility.”   Id. at 188 (citing

F.D.L., 836 F.2d at 1116-17 (“[T]he mental state of an

involuntarily intoxicated defendant is measured by the test of

legal insanity.”)).   It is based on this language that the

Government argues that the test of involuntary intoxication is

essentially the same as mental responsibility.   If this is an

accurate statement of law, then clearly the instructions for

involuntary intoxication for mental responsibility would be

substantially the same and any error in failing to give an

involuntary intoxication instruction would be harmless.

     The underlying authority on which Hensler is based, namely

United States v. F.D.L., however, is more nuanced than the

                                30
United States v. MacDonald, No. 14-0001/AR


segment quoted in Hensler suggests.    836 F.2d at 1117 (citing 73

A.L.R.3d 203–04 (1976)).    In that case, the Eighth Circuit held

that involuntary intoxication “cases all require a finding that

there has been involuntary ingestion of an intoxicant, usually

through trickery, and that the defendant was unable to

appreciate the nature and quality or wrongfulness of his acts.”

F.D.L., 836 F.2d at 1117.    Thus, F.D.L. articulates a two-part

test for involuntary intoxication.    First, that there was an

involuntary ingestion of an intoxicant.   And second, due to this

ingestion, defendant was unable to appreciate the nature and

quality or wrongfulness of his acts.   This is substantially

distinct from a mental responsibility test requiring

demonstration of a mental disease or defect and the inability to

appreciate the nature and quality or wrongfulness of conduct.

To conflate these two defenses is not logical.    If the test for

involuntary intoxication required a showing of a mental disease

or defect in addition to the two-part F.D.L. test, this would

essentially be a mental responsibility defense and there would

be no reason to utilize an involuntary intoxication defense.

Based on the foregoing, we conclude there was not sufficient

overlap between an instruction of involuntary intoxication and

the given instruction of mental responsibility.

     On the first part of the test, neither party disputes that

Appellant ingested a medically prescribed drug.   We previously

                                 31
United States v. MacDonald, No. 14-0001/AR


held that intoxication is involuntary when an accused is unaware

of the effect of a drug or substance on him.    See, e.g.,

Hensler, 44 M.J. at 188 (concluding that “the defense was not

raised as to the remaining five episodes because appellant was

on notice that she reacted inappropriately to consumption of

alcohol”).   Here, the Government argues that MacDonald’s

intoxication was not “involuntary” because he should have been

aware of the effects of Chantix.4    However, no compelling

evidence was presented that Appellant was on notice at the time

of the incident that Chantix could cause serious

neuropsychiatric symptoms -- the Black Box warning was not

published until a year after PVT Bulmer’s death -- or that he

might suffer unanticipated side effects from Chantix.

     With respect to the second part of the test, Appellant’s

expert witness, Dr. Glenmullen, testified that to be “under the

influence of a drug” meant that “a drug is affecting you . . . .

[y]ou can, in some instances, be under the influences of a drug

in ways that alters your behavior beyond your control.”

(Emphasis added.)   Moreover, Appellant’s expert witnesses

diagnosed Appellant as suffering from preexisting mental

conditions and believed Appellant suffered a short-lived,

psychotic episode at the time of the stabbing which rendered him

4
  The defense also requested an instruction on “evidence negating
[a] voluntary act.” The military judge declined to give such an
instruction and the issue was not appealed to this Court.
                                32
United States v. MacDonald, No. 14-0001/AR


unable to appreciate the wrongfulness of his conduct.   For

example, defense expert Dr. Pancholi testified that at the time

of PVT Bulmer’s stabbing, Appellant was psychotic.   She further

explained, “[b]asically psychosis is when an individual has a

break in their perception of realities.   So they lose contact

with reality and so the onset of psychosis is gradual.”     She

also noted that “it’s not an on/off switch,” but rather a

“progression where you’re slowly losing contact with reality and

then when you’re coming out of a psychotic episode it’s a

similar progression to where you can return back to having

contact with reality over a period of time.”   Similarly, Dr.

Glenmullen concluded that Appellant was psychotic at the time of

PVT Bulmer’s stabbing and that psychiatric conditions or drugs

can cause psychosis.   He noted that Appellant’s psychosis was a

combination of “underlying schizoid personality disorder and

psychotic disorder[, and] auditory hallucinations,” such that he

was the “last person in the world you’d want to give Chantix to

. . . the affect of the Chantix is the combination.”    Dr.

Glenmullen further testified that Appellant was unable to form

the conscious intent to kill “because of the psychosis,” and

that Appellant was suffering from a severe mental disease or

defect at the time of the incident which was a “Chantix induced

psychosis.”   In addition, several witnesses testified to

Appellant’s disposition during the commission of the crime,

                                33
United States v. MacDonald, No. 14-0001/AR


including one who stated Appellant was “[a]cting completely

crazy like he was possessed or something.”

     Given that a defense of involuntary intoxication is

substantially different from a defense of mental responsibility,

because it includes a distinct threshold prong, we are unable to

conclude it was harmless beyond a reasonable doubt not to

instruct the members on this separate defense.   Several experts

provided “some evidence” that Chantix affected Appellant’s

ability to appreciate the nature and quality or wrongfulness of

his acts.   There was also “some evidence” from Pfizer and the

FDA, including the rapidly escalating warnings that culminated

in a Black Box warning, that Chantix could have dramatic adverse

effects on some patients.

     Moreover, we cannot and do not know whether the members may

have determined that Appellant did not suffer from a serious

mental disease or defect at the time of the murder and declined

to consider the second prong of the mental responsibility

defense.    Further, if involuntary intoxication was not a

complete defense it could have been a partial defense by

negating an element in specific intent or premeditation.     As

such, the members were not told that involuntary intoxication

itself or in combination with Appellant’s other conditions could

impact his ability to appreciate the nature and quality of

wrongfulness of his act.    As a result, we are left with

                                 34
United States v. MacDonald, No. 14-0001/AR


reasonable doubt as to whether the absence of an instruction

contributed to the verdict.

     The Government argued that the evidence of Appellant’s

ability to form the necessary intent was so overwhelming that

Appellant could not be prejudiced by any error.   In doing so,

the Government cites Appellant’s actions prior to and

immediately following the murder of PVT Bulmer as evidencing a

state of mind that is rational and reflective of a person

cognizant of the nature and quality of his actions.   For

example, Appellant telephoned his girlfriend the evening before

the murder and asked whether she would “still love me if I

killed someone.”   Appellant also acknowledged the “idea of

violently killing someone, wasnt [sic] always, wasnt [sic] much

at all, only a little, however, I was more willing ‘to do’

whatever I thought about doing because I was so streched [sic]

thin.”   The Government also argues that Appellant acted in a

rational manner when he armed himself with a double-edge knife

en route to the laundry room and had the “presence of mind to

stalk a sleeping victim inside a barracks where he would not be

recognized and when no witnesses were present.”   Moreover, after

the attack, Appellant fled the scene, showered, and attempted to

escape from the base.

     There are two reasons why this evidence is not so

overwhelming as to render the instruction harmless beyond a

                                35
United States v. MacDonald, No. 14-0001/AR


reasonable doubt.   First, although the evidence that the

Government cites could be viewed as compelling evidence that

Appellant was mentally responsible for his actions, it does not

account for the defense expert testimony that the Chantix may

have affected Appellant’s mental state and capacity at the time

of the incident such that he was “under the influence” of

Chantix.   In a related manner, some if not all of the evidence

that the Government cites could support an involuntary

intoxication defense as well as refute it.   For example,

Appellant’s statements to his girlfriend could manifest

premeditated intent, or they could manifest the sort of

uncontrolled “homicidal ideation” Appellant argues Chantix may

induce.    That leads to the second reason we are not ultimately

persuaded that the evidence was sufficiently overwhelming on the

question of intent to negate any error.   Where the evidence can

support multiple arguments, the accused is entitled to have the

trier of fact, in this case the members, and not an appellate

court, hear and test the credibility of the evidence based on

proper instructions.

     In sum, the instructions for involuntary intoxication were

not substantially the same as those given for mental

responsibility, and the Government did not meet its burden to

demonstrate that failure to properly instruct was harmless

beyond a reasonable doubt.

                                 36
United States v. MacDonald, No. 14-0001/AR


                             CONCLUSION

     We conclude that the military judge erred in failing to

issue a separate instruction on involuntary intoxication and

that contrary to the CCA’s conclusion the error was not harmless

beyond a reasonable doubt.

     Accordingly, the decision of the United States Army Court

of Criminal Appeals is reversed.      The findings and sentence are

set aside.   The record of trial is returned to the Judge

Advocate General.   A rehearing is authorized.




                                 37
