                       United States, Appellee

                                     v.

                     Dennis P. COLLINS, Captain
                        U.S. Army, Appellant


                               No. 01-0664

                       Crim. App. No. 9900937

___________________________________________________________

    United States Court of Appeals for the Armed Forces

                       Argued April 20, 2004

                       Decided August 25, 2004

     BAKER, J., delivered the opinion of the Court, in
which GIERKE, EFFRON, and ERDMANN, JJ., joined. CRAWFORD,
C.J., filed a separate opinion concurring in the result.

                                 Counsel

For Appellant: Captain Danyele Jordan (argued); Colonel
Robert D. Teetsel, Lieutenant Colonel Mark Tellitocci,
Major Allyson G. Lambert, and Captain Craig A. Harbaugh (on
brief).

For Appellee: Captain Edward E. Wiggers (argued);
Lieutenant Colonel Margaret B. Baines, Lieutenant Colonel
Virginia G. Beakes, and Lieutenant Colonel Lauren B. Leeker
(on brief); Major Natalie A. Kolb.



Military Judge: Gary Holland


  THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Collins, No. 01-0664/AR


     Judge BAKER delivered the opinion of the Court.

     At a general court-martial composed of military judge

alone, Appellant was convicted, contrary to his pleas, of

absence without leave, disobedience of a superior

commissioned officer, failure to obey a lawful order,

fleeing apprehension, assault upon a military policeman in

the execution of his duties, and an offer of violence

against a superior commissioned officer in violation of

Articles 86, 90, 92, 95, 128, Uniform Code of Military

Justice [hereinafter UCMJ], 10 U.S.C. §§ 886, 890, 892,

895, and 928 (2000), respectively.   He was sentenced to

confinement for ten months, total forfeiture of all pay and

allowances, and dismissal.   The convening authority

approved the adjudged sentence and the Court of Criminal

Appeals, in a per curiam opinion, affirmed.   United States

v. Collins, ARMY 9900937 (A. Ct. Crim. App. December 4,

2000).   We reverse.

     The critical question in this case is whether the

military judge should have engaged in further inquiry into

Appellant’s mental health in light of the nature of the

original Rule for Courts-Martial 706 [hereinafter R.C.M.]




                              2
United States v. Collins, No. 01-0664/AR


evaluation and the examining physician’s apparent change of

view during the trial.1

                            BACKGROUND

       Appellant was a commissioned officer with 14 years of

service at the time of the charged offenses.    While serving

in Saudi Arabia in 1997, Appellant notified his command of

security concerns he had regarding the lack of chemical

alarms, exceptions to policy for searching vehicles, as

well as the lack of a secure water supply.    Dissatisfied

with the response he received from his command, Appellant

went outside his chain of command and sent a letter to the

Central Command Combatant Commander addressing these

security practices and his concern for his troops.

       Although various documents presented at Appellant’s

court-martial “established,” according to the Government’s


1
    This Court granted review of the following issues:

       I.    WHETHER THE SANITY BOARD ORDERED BY THIS COURT
             HAS GENERATED NEW EVIDENCE NOT DISCOVERABLE BY
             DUE DILIGENCE AT THE TIME OF TRIAL, AND, IF SO,
             WHETHER THE NEW EVIDENCE, WHEN VIEWED IN THE
             LIGHT OF ALL OTHER PERTINENT EVIDENCE, WOULD HAVE
             PRODUCED A SUBSTANTIALLY MORE FAVORABLE RESULT
             FOR APPELLANT. SEE R.C.M. 1210(f).

       II.   WHETHER, IN THE ALTERNATIVE TO ISSUE I, AND IN
             LIGHT OF THE APPELLATE SANITY BOARD’S FINDINGS
             THAT APPELLANT WAS NOT COMPETENT TO STAND TRIAL,
             APPELLANT WAS SUBSTANTIALLY PREJUDICED WHEN THE
             MILTIARY JUDGE FAILED TO ORDER SUA SPONTE A
             SECOND SANITY BOARD. SEE R.C.M. 909(d).

                                3
United States v. Collins, No. 01-0664/AR


Brief, “that some of Appellant’s assertions” regarding the

situation in Saudi Arabia “had some basis in fact,” he

returned to Fort Bragg where he was denied his anticipated

assignment as the brigade adjutant and instead received

permanent change of station orders to American Samoa.

While working as the training officer for National Guard

soldiers in American Samoa, Appellant sent letters and

emails to his military superiors regarding what he believed

to be an ongoing conspiracy involving black-marketing and

corruption.   In light of Appellant’s actions, his commander

sent him to Tripler Army Medical Center in Hawaii for a

psychological evaluation.    In August 1998, psychiatrists at

Tripler diagnosed Appellant with delusional disorder.2    The

psychiatrists noted Appellant’s “thought content was of a

non-bizarre delusional quality and reality testing seemed

inconsistent” and his “insight, judgment, and impulse

control are questionable.”   Although the psychiatrists

ultimately cleared Appellant to return to duty, they

commented that “given his propensity for errors in

judgment, command needs to determine whether [Appellant]

can continue to be an asset for the Army.”

2
 “The essential feature of Delusional Disorder is the
presence of one or more nonbizarre delusions that persist
for at least one month[.]” Diagnostic and Statistical
Manual of Mental Disorders 296 (4th ed. 1994).


                               4
United States v. Collins, No. 01-0664/AR


     During a subsequent examination at Tripler in

September 1998, Appellant was diagnosed with adjustment

disorder3 instead of delusional disorder.      In light of this

evaluation, Appellant was placed on an “S-3 profile” for

six months beginning on September 14, 1998.      The S-3

profile required that Appellant be moved to a location

where he could receive close monitoring by an Army

psychiatrist or psychologist with enough mental health

resources to support weekly counseling or psychotherapy.

On September 24, 1998, Appellant submitted a letter of

resignation to his battalion commander, but the resignation

was not immediately accepted.       On October 22, 1998,

Appellant received a poor performance report indicating

that Appellant “definitely should not lead soldiers in

combat” and evaluated his potential as “below center of

mass do not retain.”

     Because Appellant’s request for resignation had not

yet been accepted, he began out-processing from the Army on

his own volition.   After completing most of his out-

processing and requesting a permanent change of station,

Appellant went to the airport in Hawaii en route to his


3
 “The essential feature of an Adjustment Disorder is the
development of clinically significant emotional or
behavioral symptoms in response to an identifiable
psychosocial stressor or stressors.” Id. at 623.

                                5
United States v. Collins, No. 01-0664/AR


home in New York.   When confronted at the airport by a

member of his unit, Appellant refused to return to base

because he believed the “orders to be completely bogus” as

he was no longer in the Army.       After spending six months at

his home, Appellant went to Fort Hamilton, New York, on May

19, 1999, to determine why he was not being paid.

Appellant was informed that he was absent without leave and

was returned to military control.      Because the Army

considered Appellant a deserter, he was sent to the

Personnel Control Facility at Fort Knox, Kentucky.

     While at this facility, Appellant relayed his

conspiracy theories to the commander, Major (MAJ) Harris.

Concerned with Appellant’s mental stability, MAJ Harris

ordered Appellant to undergo a mental health evaluation.

The results of this assessment indicated Appellant was

“sound enough to face any administrative actions that [the

facility] needed to do.”   On June 28, 1999, MAJ Harris

ordered Appellant to have another examination in the form

of a R.C.M. 706 sanity board conducted by Colonel (COL)

Richmond.   Appellant, however, ignored the order because he

believed it to be “an illegal immoral [sic] order.”

     Upon learning of Appellant’s refusal to go to the

evaluation, MAJ Harris confronted Appellant.      At the time

of this confrontation, Appellant was watching television


                                6
United States v. Collins, No. 01-0664/AR


and playing pool.   When MAJ Harris ordered Appellant to

give him the pool cue, Appellant jumped to his feet and

made threats against MAJ Harris.    Prior to being subdued,

Appellant threatened MAJ Harris with the pool cue, ran away

from MAJ Harris and four military policemen, and swung the

pool cue at a military policeman.   Appellant was

subsequently apprehended by military police.

     Later that day at Appellant’s jail cell, COL Richmond

conducted Appellant’s one person sanity board that had

originally been scheduled for earlier that morning.     COL

Richmond, the Chief of Behavioral Medicine at Ireland Army

Community Hospital at Fort Knox, Kentucky, previously

performed between 10 to 15 sanity boards.   After examining

Appellant for two hours, COL Richmond diagnosed Appellant

as having delusional disorder.    COL Richmond did not review

Appellant’s prior mental health records from Tripler Army

Medical Center during this examination.

     COL Richmond compiled the results of the sanity board

later that day.   In his written report, COL Richmond

concluded that Appellant’s thought content contained

“pervasive beliefs of probable delusional nature in the

conspiratorial wrong doing [sic] of high ranking Army

officials across many years and several different units.”

COL Richmond noted Appellant’s “delusions were not bizarre


                              7
United States v. Collins, No. 01-0664/AR


and could be seen as plausible if they were not so

pervasive and resistant to any other interpretation.”

Ultimately, COL Richmond concluded that Appellant was

“fully capable of understanding the nature of the

proceedings and to assist in his defense.      His cognitive

deficits appear to be limited only to areas of his

delusional belief system.”   Appellant was subsequently

charged with two specifications of failure to obey a lawful

order, desertion, disobedience of and disrespect to a

superior commissioned officer, fleeing apprehension, two

specifications of assault upon a military policeman in the

execution of his duties, two specifications of wrongfully

communicating a threat, and an offer of violence against a

superior commissioned officer.

     Prior to trial, Appellant requested the appointment of

Dr. Patrick Burba as a defense psychiatric expert.      Due to

financial reasons, including the convening authority’s

approval of less than half of defense counsel’s requested

funding for Dr. Burba’s assistance, the only help Dr. Burba

provided the defense was a letter indicating he was “unable

to determine whether [Appellant’s] mental disease rendered

him unable to appreciate the nature, quality, or

wrongfulness of his conduct.”       Dr. Burba also noted that

“many of [Appellant’s] actions and decisions during the


                                8
United States v. Collins, No. 01-0664/AR


time in question were at least moderately influenced by his

delusional interpretation of events.”   Notwithstanding

these opinions, Dr. Burba determined Appellant “was able to

clearly state the nature of the court-martial, the roles of

defense and prosecution counsel, the charges against him,

the[]potential sentence if found guilty, and the behavior

expected of him during the court-martial.”

     During trial, COL Richmond testified that Appellant’s

ability to function normally was limited to areas that did

not involve his delusional beliefs and that Appellant’s

delusions would preclude him from performing military

duties.   When questioned whether Appellant’s offenses

stemmed from his delusions, COL Richmond testified that an

individual with a delusional disorder would “probably react

consistently with their delusion.”   COL Richmond further

indicated that Appellant’s reaction to the commander of the

Personnel Control Facility was consistent with his

delusional disorder.   “[H]is belief system at the time was

that these were individuals who were hostile towards him,

who were acting on behalf of an agency, the US Army, of

which he was no longer a member and over which they had no

legitimate authority over him.”

     Trial counsel asked COL Richmond, “[D]o you recall in

your report saying that the accused was able to appreciate


                              9
United States v. Collins, No. 01-0664/AR


the nature and quality of the wrongfulness of his conduct

for the 5 November charges?”   COL Richmond responded, “I do

recall that.”   When asked why he said that, COL Richmond

replied, “Because he told me that.”   Trial counsel also

inquired of COL Richmond, “[W]ould your belief to [sic] be

that the accused’s decisions and overall behavior during

this period was basically-he understood the nature and

quality of the wrongfulness of his conduct[?]”   COL

Richmond answered, “I don’t believe he did.”    Additionally,

trial counsel asked COL Richmond, “Sir, would your--with

your idea of what specific intent means, after evaluation

of the accused, in your opinion, do you believe Captain

Collins could have had the mental capacity to form the

requisite specific intent to permanently remain away from

his unit, his unit of original assignment?”    COL Richmond

responded, “I believe Captain Collins being a very

intelligent man could have the specific intent to do just

about anything, so to answer your question, yes, he could

have.”

     Following Appellant’s conviction and separation from

the Army, he experienced legal difficulties in the state of

New York.   In light of these problems, Appellant underwent

a psychiatric evaluation on November 6, 2000.    This

psychiatrist diagnosed Appellant with delusional disorder


                               10
United States v. Collins, No. 01-0664/AR


and opined that Appellant “has no insight into his illness

and (his) judgment is poor.”   Pursuant to this Court’s

order, Appellant underwent a second sanity board composed

of two psychiatrists on April 15, 2002.    This sanity board

noted that Appellant “is not presently suffering from a

mental disease or defect rendering him unable to understand

the nature of the proceedings against him or to cooperate

in his defense.”   The board also stated that Appellant “was

competent to participate in appellate proceedings at the

time of this evaluation.”   He “had a firm grasp of the

factual aspects of legal proceedings, and clearly

understood the nature of the charges against him, the

penalties imposed by his initial court-martial, and

potential remedies available to him through the appellate

process.”

     The board continued by explaining, “These cognitive

aspects of competency have never been at issue in

[Appellant’s] case; rather, the concern is whether his

delusions would render him unable to conduct or cooperate

intelligently in his own defense.   This would appear to

have been the case when his delusions were active, leading

him to withhold information and opinions from his attorney

and evaluators and to seek prosecution in order to gain a

public forum to espouse his delusional beliefs.”    However,


                               11
United States v. Collins, No. 01-0664/AR


according to the sanity board, Appellant “had been restored

to competency last year by adequate treatment . . . and was

free of such delusions at the time of this evaluation.”

Finally, the board concluded that, at the time of the

offenses, Appellant had a delusional disorder and “was

unable to appreciate the nature and quality or wrongfulness

of his conduct.   Whether or not he understood that

technically his conduct appeared to be unlawful, he did not

appreciate it was wrongful, but believed it to be

necessary.”

                          DISCUSSION

     Appellant contends trial defense counsel presented

enough evidence during trial to raise doubts about

Appellant’s mental competency.     Appellant further suggests

that his irrational and incoherent trial testimony, along

with COL Richmond’s testimony contradicting the written

sanity board report, triggered the military judge’s

responsibility to conduct a second sanity board.

     The Government maintains Appellant failed to establish

sufficient doubt regarding his mental competency or mental

responsibility.   In support of this position, the

Government relies on Appellant’s four previous mental

health evaluations.   Moreover, the Government argues that

Appellant’s own trial defense counsel did not question


                              12
United States v. Collins, No. 01-0664/AR


Appellant’s competency since he made no objections or

motions at trial.   Therefore, according to the Government,

Appellant did not create enough doubt about his mental

competency or mental responsibility to require the judge to

order another sanity board.

     The arguments presented by the parties raise questions

regarding Appellant’s capacity4 to stand trial as well as

his mental responsibility for the charged offenses.   R.C.M.

909 addresses an accused’s capacity to stand trial:   “No

person may be brought to trial by court-martial if that

person is presently suffering from a mental disease or

defect rendering him or her mentally incompetent to the

extent that he or she is unable to understand the nature of

the proceedings against them or to conduct or cooperate

intelligently in the defense of the case.”   R.C.M. 909(a).

Mental capacity is a question of fact.   R.C.M. 909(e)(1).

Mental capacity will be presumed unless the contrary is

established by a preponderance of the evidence.   R.C.M.

909(b),(e)(2).

4
  The parties in their briefs and at oral argument framed
their arguments in terms of competency and mental
responsibility. We note that the Rules for Courts-Martial
“use the term ‘mental capacity’ to refer to what civilian
courts call competency.” Captain Margaret A. McDevitt,
Defense Counsel’s Guide to Competency to Stand Trial, Army
Law., 33, 33 (March 1988). For the purpose of this opinion
and in light of counsel’s arguments, we use the terms
interchangeably.

                              13
United States v. Collins, No. 01-0664/AR


     Lack of mental responsibility is an affirmative

defense that must be raised and proven by Appellant by

clear and convincing evidence.      See R.C.M. 916(k)(1)-

(3)(a).   See also United States v. Cosner, 35 M.J. 278, 280

(C.M.A. 1992)(citing United States v. Ramsey, 28 M.J. 370,

371 n.2 (C.M.A. 1989)).    An accused is presumed to be

mentally responsible at the time of the alleged offenses

until the accused establishes by clear and convincing

evidence that he was not mentally responsible at the time

of the alleged offenses.   R.C.M. 916(k)(3)(A).    “Clear and

convincing evidence is that weight of proof which ‘produces

in the mind of the factfinder a firm belief or conviction’

that the allegations in question are true.”     United States

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

omitted).

     Although an accused bears the burden of introducing

evidence to establish lack of mental responsibility, R.C.M.

706(a) provides,

            If it appears to any commander who considers
            the disposition of charges, or to any
            investigating officer, trial counsel,
            defense counsel, military judge, or member
            that there is reason to believe that the
            accused lacked mental responsibility for any
            offense charged or lacks capacity to stand
            trial, that fact and the basis of the belief
            or observation shall be transmitted through
            appropriate channels to the officer
            authorized to order an inquiry into the


                               14
United States v. Collins, No. 01-0664/AR


          mental condition of the accused. The
          submission may be accompanied by an
          application for a mental examination under
          this rule.


     The purpose of the R.C.M. 706 sanity board “is to

determine if an accused ‘lacks capacity to stand trial’ or

‘lacked mental responsibility for any offense charged.’”

United States v. Murphy, 50 M.J. 4, 12 (C.A.A.F.

1998)(quoting R.C.M. 706).   Although concerns emerged

during trial regarding Appellant’s mental competency and

mental responsibility, for the reasons expressed below,

this case hinges on the military judge’s response to

questions raised concerning Appellant’s mental

responsibility.

     A “military judge may order a mental examination of

the accused regardless of any earlier determination by the

convening authority.”   R.C.M. 706(b).   As a result, the

military judge in Appellant’s case had the authority and

the responsibility to determine whether a second sanity

board needed to be convened in light of COL Richmond’s

testimony at trial.   See Drope v. Missouri, 420 U.S. 162,

180 (1975); see also Short v. Chambers, 33 M.J. 49, 52

(C.M.A. 1991).    The question of whether an additional

psychiatric examination is “necessary rests within the

discretion of the military judge and is reviewable only for


                               15
United States v. Collins, No. 01-0664/AR


abuse of discretion.”   United States v. Carpenter, 37 M.J.

291, 298 (C.M.A. 1993)(citing United States v. Frederick, 3

M.J. 230, 232-33 (C.M.A. 1977)).   Thus, we test a military

judge’s decision whether to order additional inquiry into

an accused’s mental responsibility for abuse of discretion.

See United States v. Gray, 51 M.J. 1, 13 (C.A.A.F. 1999).5

     COL Richmond testified that after examining Appellant

for two hours he diagnosed him with delusional disorder.

He explained that delusional disorder is a severe mental

disease or defect that is “different from other psychotic

disorders in that the psychosis is limited to specific

delusions as opposed to, you know, all aspects of life, and

reality testing, the ability to determine fact from

fiction, reality from unreality, is essentially maintained

across a broad spectrum of other activities with the

exception of the delusion beliefs.”   COL Richmond further

explained that he based his opinions regarding Appellant’s

requisite intent with respect to the charged offenses “on

my perception that his belief system at the time was that

5
 “Legal error (i.e., an abuse of discretion) occurs if the
findings of fact upon which he [the judge] predicates his
ruling are not supported by the evidence of record; if
incorrect legal principles were used by him in deciding
this motion; or if his application of the correct legal
principles to the facts of a particular case is clearly
unreasonable.” United States v. Gray, 51 M.J. 1, 13
(C.A.A.F. 1999)(quoting United States v. Williams, 37 M.J.
352, 356 (C.M.A. 1993)).

                              16
United States v. Collins, No. 01-0664/AR


these individuals who were hostile towards him, who were

acting on behalf of an agency, the US Army, of which he was

no longer a member and over which they had no legitimate

authority over him.”

        When asked whether Appellant’s testimony at trial

changed his diagnosis, COL Richmond responded, “No, it has

not.”    But he also testified that Appellant could function

pretty normally “in all the areas that are not involved in

his delusional belief system.”       (Emphasis added.)   When

asked on cross-examination, “28 June, would that same--

would your belief to be that the accused’s decisions and

overall behavior during this period was basically--he

understood the nature and quality of the wrongfulness of

his conduct as well, those days?”      COL Richmond replied, “I

don’t believe he did.”    Nonetheless, when questioned

whether Appellant “could have had the mental capacity to

form the requisite specific intent to permanently remain

away from his unit,” COL Richmond responded, “I believe

Captain Collins being a very intelligent man could have the

specific intent to do just about anything, so to answer

your question, yes, he could have.”

        At this point in the trial, the military judge had a

responsibility to consider whether COL Richmond, the sole

member of Appellant’s sanity board, had changed his


                                17
United States v. Collins, No. 01-0664/AR


diagnosis regarding Appellant’s mental responsibility and

whether further inquiry was needed.    For example, in United

States v. Bray, 49 M.J. 300, 302 (C.A.A.F. 1998), when

testimony at trial raised the question of whether the

appellant was responsible for his actions despite the

mental responsibility findings previously made by a sanity

board, the trial judge halted the proceedings and advised

the appellant of the possibility of a mental responsibility

defense.   We believe the military judge should have done

something more in this case as well.

     As noted above, the Rules for Courts-Martial permit

additional mental health inquiry at any point during a

court-martial proceeding.   Although this Court has no case

law directly addressing a military judge’s responsibility

to order additional inquiry when questions regarding an

accused’s mental responsibility are raised during trial,

such a process is consistent with the federal approach of

addressing questions of competence that arise during trial.6


6
  See United States v. Drope, 420 U.S. 162, 180
(1975)(“There are, of course, no fixed or immutable signs
which invariably indicate the need for further inquiry to
determine fitness to proceed; the question is often a
difficult one in which a wide range of manifestations and
subtle nuances are implicated.”); see also Walton v.
Angelone, 321 F.3d 442, 459 (4th Cir. 2003)(“Even if a
defendant is mentally competent at the beginning of the
trial, the trial court must continually be alert for
changes which would suggest that he is no longer

                              18
United States v. Collins, No. 01-0664/AR


     In this case, the military judge was aware of the

following:   COL Richmond, a defense witness, was the sole

witness testifying about Appellant’s mental capacity and

mental responsibility.    COL Richmond’s testimony was based

on his R.C.M. 706 sanity board evaluation of Appellant.

This evaluation occurred on June 28 after Appellant’s

arrest and confinement.   The evaluation consisted of a two-

hour interview at Appellant’s jail cell.   The military

judge was also aware Appellant had been referred for

psychological evaluations on three prior occasions and that

COL Richmond did not review these evaluations before

Appellant’s R.C.M. 706 sanity board.   COL Richmond also

testified that his conclusion that Appellant could

understand the wrongfulness of his actions was based on

Appellant’s own belief that he understood the wrongfulness

of his actions.   It was in this testimonial context that

COL Richmond appeared to contradict his own R.C.M. 706

conclusions when he was asked “would your belief to [sic]

be that the accused’s decisions and overall behavior during

this period was basically-he understood the nature and


competent.”)(citing Drope, 420 U.S. at 180 (“We conclude
that when considered together with the information
available prior to trial and the testimony of petitioner’s
wife at trial, the information concerning petitioner’s
suicide attempt created a sufficient doubt of his
competence to stand trial to require further inquiry on the
question.”)).

                               19
United States v. Collins, No. 01-0664/AR


quality of the wrongfulness of his conduct” and stated in

response “I don’t believe he did.”

     This was not a tangential or supplementary question,

but the central question of the mental responsibility

inquiry.   In the context presented, such a statement from

the only doctor testifying to Appellant’s mental

responsibility warranted further inquiry.     Although this

inquiry may, and perhaps should have come from defense

counsel, the Rules for Courts-Martial are clear.      Mental

competence and responsibility are the duty of all trial

principals.   See R.C.M. 706(a).     In the courtroom, however,

the military judge is ultimately responsible for ensuring

that R.C.M. 706 is followed.    As a result, we conclude the

military judge abused his discretion by not ordering

further inquiry into Appellant’s mental responsibility at

the point in the trial when COL Richmond appeared to change

his testimony and conclusion.    This conclusion is

reinforced by COL Richmond’s earlier testimony regarding

the scope of his evaluation of Appellant.     He testified

that he did not review Appellant’s mental health history,

including repeated mental health evaluations ordered by the

Army.7   As a result, Appellant was prejudiced when his trial


7
 Although the military judge’s decision must be evaluated
based on what was known to him at the time of trial, the

                                20
United States v. Collins, No. 01-0664/AR


proceeded to conclusion without further and complete

inquiry into his mental responsibility.

                          DECISION

       The decision of the United States Army Court of

Criminal Appeals is reversed.8    The findings and sentence

are set aside, and the record of trial is returned to the

Judge Advocate General of the Army.    A rehearing is

authorized.




results of the second sanity board and the psychiatric
evaluation conducted in New York both support the
conclusion that the military judge in this case needed to
inquire further into Appellant’s mental responsibility.
8
  In light of our decision, Appellant’s petition for new
trial is denied as moot.

                             21
United States v. Collins, No. 01-0664/AR


       CRAWFORD, Chief Judge (concurring in the result):

       Because there is a reasonable doubt that a different

verdict might result if a trier of fact considers the results of

the post-trial Rule for Courts-Martial 706 [hereinafter R.C.M.]

inquiry directed by this Court, we should grant Appellant’s

petition for a new trial.1    Rather than grant this well-supported

relief, the majority unnecessarily rejects decades of settled

practice in this area, applying de novo review to find error.

In so doing, the majority gravely confuses the concept of mental

capacity with the defense of mental responsibility and changes

the obligation on military judges.    I cannot join the majority

in imposing on military judges such an unwarranted and ill-

defined burden.

       Administration of justice according to law means
       administration according to standards, more or less
       fixed, which individuals may ascertain in advance of
       controversy and by which all are reasonably assured
       of receiving like treatment.2

       Like the majority, I begin my analysis by citing United

States v. Carpenter:    "The question whether additional

psychiatric examination is necessary rests within the discretion

of the military judge and is reviewable only for abuse of



1
    United States v. Breese, 47 M.J. 5 (C.A.A.F. 1997).
2
  Roscoe Pound, Justice According to Law, 13 Colum. L.
Rev. 696, 705 (1913).
United States v. Collins, No. 01-0664/AR


discretion”.3    This citation is important in understanding the

majority’s position for at least two reasons.

       First, the majority’s citation to   “abuse of discretion” is

curious.    Other than noting this legal standard, their analysis

is clearly de novo, notwithstanding their later conclusion,

bereft of discussion or guidance, that “the military judge

abused his discretion by not ordering further inquiry into

Appellant’s mental responsibility.”4    Discussion of abuse of

discretion appears nowhere in the majority’s multi-page

analysis.    Instead, the opinion predicates error on the military

judge’s failure to order a second sanity board, given the

“nature of the original” board and Colonel (COL) Richmond’s

partial departure during his testimony on the merits of the case

from the findings of the sanity board he conducted.    With good

reason, the majority fails to offer any citation of authority to

support the conclusion that, in the wake of COL Richmond’s

testimony, the evidentiary posture “warranted further inquiry.”

I would follow our precedent and determine whether the military

judge’s failure to order, sua sponte, an additional inquiry into

Appellant’s mental responsibility was “arbitrary, capricious, or




3
    37 M.J. 291, 298 (C.M.A. 1993)(emphasis added).
4
    __ M.J. (20).

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United States v. Collins, No. 01-0664/AR


unrestrained,”5 or “arbitrary, fanciful, clearly unreasonable, or

clearly erroneous,” or amounted to more than a difference of

opinion.6

       Second, the issue in Carpenter was mental capacity

(“competence”) to stand trial.7     For that reason, its value as an

analogue to mental responsibility cases is limited.     We would be

wise to tread carefully when comparing the duty of a military

judge to address and resolve “competence” as a matter of law,

with his or her concomitant duties, in a bench trial, as both

the trier of fact and source of law, when “responsibility” is an

issue.8     Competence must be resolved as an interlocutory matter

of law, while responsibility must be resolved by the finder of

law and trier of fact.9     As the majority correctly notes, if the

military judge has reason to question either the mental

competence or responsibility of an accused, he or she “may order

a mental examination of the accused regardless of any earlier


5
  United States v. Frye, 8 C.M.A. 137, 141, 23 C.M.R. 361, 365
(1957)(Latimer, J., concurring in the result).
6
  United States v. Miller, 46 M.J. 63, 65 (C.A.A.F. 1997)(citing
United States v. Travers, 25 M.J. 61, 62 (C.M.A. 1987)).
7
 Like the majority, I note that these terms are used
interchangeably.
8
  See Arts. 50a and 51(d), Uniform Code of Military Justice
[hereinafter UCMJ], 10 U.S.C. §§ 850a and 851(d)(2000).
9
    Compare R.C.M. 909(d)-(e) with R.C.M. 921(c)(4).



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United States v. Collins, No. 01-0664/AR


determination by the convening authority,”10 subject to review

for abuse of discretion.11    If the military judge finds that an

accused is not competent, trial may not proceed,12 and again the

military judge’s ruling is tested for abuse of discretion.13

       In contrast to these legal determinations is the factual

determination made by the trier of fact when the defense of lack

of mental responsibility is raised.    If an accused prevails on

the issue of mental responsibility before the trier of fact, the

result is a verdict of “not guilty only by reason of lack of

mental responsibility.”14    Such a verdict is then followed by the

procedures in R.C.M. 1102A, but is not subject to disapproval by

the convening authority,15 appeal by the United States,16 or

review by either a Court of Criminal Appeals or this Court.17

Importantly, Article 51(b) and R.C.M. 916(k)(3)(C) require



10
     R.C.M. 706(b)(2).
11
     United States v. Frederick, 3 M.J. 230 (C.M.A. 1977).
12
  R.C.M. 909(e)(2); Short v. Chambers, 33 M.J. 49, 51 (C.M.A.
1991).
13
     United States v. Proctor, 37 M.J. 330, 336 (C.M.A. 1993).
14
  Art. 50a(c)(3), UCMJ, 10 U.S.C. § 850a(c)(3) (2000); R.C.M.
921(c)(4).
15
     R.C.M. 1107(b)(4)
16
     Art. 62, UCMJ, 10 U.S.C. § 862 (2000).
17
     Arts. 66, 67, UCMJ, 10 U.S.C. §§ 866, 867 (2000).



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United States v. Collins, No. 01-0664/AR


resolution of mental responsibility by the trier of fact and

prohibit interlocutory determination of mental responsibility.

       Notwithstanding a plainly announced and historically

recognized legislative scheme, and without citation of authority

or explanation, the majority decrees that “when questions

regarding an accused’s mental responsibility are raised during

trial,” the military judge’s responsibility to order additional

inquiry “is consistent with the federal approach of addressing

questions of competence that arise during trial.”18   This

“consistency” is observed for the sole purpose of importing

standards from federal decisions on the question of competence

that have no application whatever to questions of mental

responsibility.    In fact, the majority ignores both Article 3619

and significant federal case law emphasizing that the two issues

are wholly incongruent.20

       In this case, the military judge was not asked by either

party to rule on a request for further inquiry into Appellant’s

mental responsibility.    He was asked to find, as a matter of


18
     __ M.J. (19) (emphasis added).
19
     UCMJ, 10 U.S.C. § 836 (2000).
20
  See, e.g., United States v. Bartlett, 856 F.2d 1071 (8th Cir.
1988); United States v. Hollis, 569 F.2d 199 (3d Cir. 1977);
United States v. Mercado, 469 F.2d 1148 (2d Cir. 1972); United
States v. Taylor, 437 F.2d 371 (4th Cir. 1971); Floyd v. United
States, 365 F.2d 368 (5th Cir. 1966); United States v.
Westerhausen, 283 F.2d 844 (7th Cir. 1960).

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United States v. Collins, No. 01-0664/AR


fact (if he first found Appellant guilty), whether Appellant had

proved by clear and convincing evidence that, at the time he

committed the offenses of which he was found guilty, he lacked

mental responsibility for those acts.21    This is not to say that

the military judge did not retain, for the duration of the

proceedings, a responsibility to be alert for anything that

might raise a question concerning either Appellant’s competence

or responsibility.22    Because military judges are presumed to

know and apply the law, there is no reason to believe that the

military judge was not cognizant of this responsibility or that

he failed to discharge it accordingly.23    This principle applies

even when the reasoning of the military judge is not plain on

the record.24

       Two issues are not before us:   (1) whether the evidence is

sufficient as a matter of law to support the military judge’s

determination that Appellant’s lack of mental responsibility was

not proved by clear and convincing evidence; and (2) whether we,

with the clarity of hindsight and the assurance of an additional

sanity board, would have done things differently, had we been

the military judge.    After reviewing the military judge’s

21
     See generally R.C.M. 921(c)(4).
22
     R.C.M. 916(k)(3)(B); Frederick, 3 M.J. at 232-33.
23
     United States v. Prevatte, 40 M.J. 396, 398 (C.M.A. 1994).
24
     United States v. Vangelisti, 30 M.J. 234 (C.M.A. 1990).

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United States v. Collins, No. 01-0664/AR


actions solely for abuse of discretion, I conclude that he did

not err.

       A.   Competence vs. Responsibility.

       No evidence at trial placed in question the competence of

Appellant to stand trial, nor was that issue raised by the

defense under R.C.M. 909, or by any other party.    What was

litigated at trial was the mental responsibility of Appellant at

the time of the offenses.    Any reference by the majority to

mental competence or capacity is inapposite and may

unintentionally suggest to military judges that there is a

factually and legally valid analytical connection between the

two.   For this reason, I must specifically dissent from the

majority’s conclusions.

       B.   Defense of Lack of Mental Responsibility.

       There is no indication that the military judge had an

opportunity to examine the report of the R.C.M. 706 inquiry

until it was offered into evidence by the defense during the

defense case, nor did either party contend that the report was

insufficient, that the inquiry was improper, or that COL

Richmond was unqualified.    Nonetheless, the military judge was

aware that the defense would place the accused’s mental

responsibility in issue.    Far from being uninvolved, the

military judge during trial on the merits, after explaining in

open court the purpose for his inquiry, questioned COL Guthrie,


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United States v. Collins, No. 01-0664/AR


Majors O’Dell and Harris, and Specialist Austin (all witnesses

for the prosecution) on matters pertinent to Appellant’s mental

responsibility.   Counsel frequently had additional questions of

these witnesses after inquiry from the bench.   In addition, the

military judge briefly questioned Appellant regarding his duty

status and state of mind.   Appellant’s testimony was lucid,

consistent, and characteristic of those who elect to testify in

support of their lack of mental responsibility.

     During cross examination of COL Richmond, the defense

expert on this issue, COL Richmond gave an answer that appeared

to conflict with his findings while acting as a one-member

“sanity board,” pursuant to R.C.M. 706.    As the defense witness

request for COL Richmond does not contain the synopsis required

by R.C.M. 703, we have no way of knowing whether COL Richmond’s

testimony at trial was a surprise to the defense, much less to

the government.   If either was surprised, he hid it well, making

very little additional inquiry into the area.   Assuming,

arguendo, that COL Richmond’s momentary departure from the

R.C.M. 706 report was unexpected, the remainder of his testimony

(as quoted by the majority) is sufficiently equivocal to

significantly reduce the weight of his “I don’t believe he did,”

comment.   Even so, COL Richmond’s, “I don’t believe he did”

answer contributed to and directly supported Appellant’s lack of

mental responsibility defense.


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United States v. Collins, No. 01-0664/AR


The defense counsel, who likely knew far more about his client’s

mental state than did any other party to the trial, did not

object when COL Richmond changed his testimony.    At that point,

with virtually no other evidence to carry the defense’s burden

to prove clearly and convincingly Appellant’s lack of mental

responsibility, the defense counsel may well have welcomed

assistance from this perhaps unexpected quarter.

       As we strongly advised in United States v. Quintanilla,25

       [t]he Manual also emphasizes the importance of an
       impartial judiciary, advising military judges that
       when carrying out their duties in a court-martial,
       they ”must avoid undue interference with the parties'
       presentations or the appearance of partiality.” RCM
       801(a)(3) (Discussion). The military judge must exert
       his authority with care, so as not to give even the
       appearance of bias for or against either party.

If, as the majority insists was required of him, the

military judge had intervened and, over defense objection,26

directed a second sanity board, on appeal we would be

evaluating two far more deserving issues:    (1) did the

military judge abuse his discretion in ordering an

additional sanity inquiry?; and (2) did the military judge


25
     56 M.J. 37, 43 (C.A.A.F. 2001)(footnote omitted).
26
   Not a mere whimsy, given Appellant’s expressed belief that
the Army was using mental status inquiries to deny him due
process. Appellant testified that he resisted additional mental
evaluation because he thought it was being used to deny him his
day in court, and that some of the acts with which he was
charged were undertaken for the purpose of getting him to a
court-martial.

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United States v. Collins, No. 01-0664/AR


depart his impartial role when, immediately following

testimony favorable to the primary defense raised by

Appellant, he sua sponte stopped the proceedings to seek

expert impeachment of that testimony?

     C.   Responsibility of the Military Judge.

     Neither counsel commented on, contradicted, or argued COL

Richmond’s seemingly anomalous interjection.   No party to the

proceedings suggested or requested any additional inquiry into

the mental responsibility of Appellant.    The report of the

R.C.M. 706 board, though not a model inquiry, is regular on its

face and no question was raised at trial regarding COL

Richmond’s qualifications or the procedures he employed.

Tellingly, the record of trial contains no reference to any

standard that COL Richmond failed to meet.

     Nonetheless, the majority finds that the military judge

erred, and in so doing, “puts trial judges in a unique ‘box.’

Military judges now must assume the role we have always left to

competent counsel” to present evidence in support of affirmative

defenses.27   Are military judges now required to ask presumably

competent counsel on the record if they are challenging the

validity of a facially valid R.C.M. 706 report?   Are military

judges now required seek an advance copy of the report, examine

27
  United States v. Wiesen, 57 M.J. 48, 55 (C.A.A.F.
2002)(Crawford, C.J., dissenting).



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United States v. Collins, No. 01-0664/AR


it and inquire into its basis, assess the qualifications of

those producing the report, and sua sponte determine whether the

report is sufficient?    Just as importantly, are military judges

now required to provide another “bite at the apple” to the

government in any case in which an expert witness for the

defense unexpectedly testifies in support of an accused’s lack

of mental responsibility?

       In deciding, without having seen any witness testify and,

in particular, without having evaluated Appellant’s in-court

demeanor on and off the stand, “we believe the military judge

should have done something more in this case,”28 the majority now

requires not only that military judges meet the qualifications

of Article 26,29 but that they possess a measure of clairvoyance

that should not reasonably be required of any human.   Given the

choice between this course of action and granting Appellant a




28
  __ M.J. (18). In support of this conclusion, the majority
relies on United States v. Bray, 49 M.J. 300 (C.A.A.F. 1998), a
case in which the military judge was required by R.C.M. 910(e)
and United States v. Jemmings, 1 M.J. 414 (C.M.A. 1976) to
advise the accused of the defense of mental responsibility
because that defense was raised during sentencing following a
guilty plea. By concluding that “the military judge should have
done something more in this case as well,” the majority
enigmatically hints that henceforth, in contested cases, the
military judge would be wise to advise the accused of a
potential defense whenever he believes it has been raised by the
evidence, during any part of the proceedings.
29
     UCMJ, 10 U.S.C. § 826 (2000).


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United States v. Collins, No. 01-0664/AR


new trial pursuant to R.C.M. 1210, I have no difficulty deciding

that the latter path is the more prudent and correct.




                               12
