                        UNITED STATES, Appellee

                                        v.

                  John C. HARRIS, Airman First Class
                       U.S. Air Force, Appellant

                                 No. 04-0238

                           Crim. App. No. 34918


       United States Court of Appeals for the Armed Forces

                        Argued December 7, 2004

                       Decided September 2, 2005

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


                                    Counsel


For Appellant: Captain Martin L. Powell (argued); Colonel
Beverly B. Knott, Lieutenant Colonel Carlos L. McDade, and Major
Terry L. McElyea (on brief).

For Appellee: Captain Kevin P. Stiens (argued); Colonel Gary F.
Spencer, Lieutenant Colonel Robert V. Combs, and Major John C.
Johnson (on brief).

Military Judge:    Gregory E. Pavlik


            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION
United States v. Harris, No. 04-0238/AF


      Judge BAKER delivered the opinion of the Court.

      Appellant was tried by members at a general court-martial.

In accordance with his pleas, he was convicted of three

specifications of writing bad checks with the intent to defraud

in violation of Article 123a, Uniform Code of Military Justice

(UCMJ), 10 U.S.C. § 923a (2000).          Contrary to his pleas, he was

convicted of unauthorized absence and larceny1 in violation of

Articles 86 and 121, UCMJ, 10 U.S.C. §§ 886, 921 (2000),

respectively.    The adjudged and approved sentence provided for a

dishonorable discharge, confinement for two years, forfeiture of

all pay and allowances and reduction to grade E-1.            The United

States Air Force Court of Criminal Appeals affirmed the findings

and sentence in a short-form per curiam opinion.           United States

v. Harris, No. ACM 34918 (A.F. Ct. Crim. App. Dec. 5, 2003).

      The issue before us is whether Appellant’s petition for new

trial should be granted based on newly discovered evidence of

Appellant’s lack of mental responsibility.          For the reasons that

follow, the petition is granted as to the contested offenses.

Further, and for different reasons, we conclude that Appellant’s

pleas of guilty must be set aside.




1
  Although Appellant’s plea to wrongful appropriation was accepted by the
military judge, the Government proceeded on the greater offense and Appellant
was ultimately convicted of larceny.


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United States v. Harris, No. 04-0238/AF


                                    BACKGROUND

      Appellant was a twenty-year-old E-3 at the time of the

offenses.    On or about October 19, 2000, he wrote two bad checks

to a Ford dealership in Clovis, New Mexico, in the course of

purchasing a new truck.      The checks totaled $10,000.00.2

Appellant then drove the truck from Cannon Air Force Base (AFB)

in New Mexico to Lynn, Indiana, to visit his family without

obtaining authority to leave his command.          After Appellant

arrived in Lynn, his father, who testified later at a post-trial

session, became concerned because it seemed his son had traveled

a great distance for a relatively short weekend visit.             He was

also concerned that his son seemed unable to remain in one place

for any appreciable time during this short visit.            For instance,

the father later testified that over the weekend period from

Friday to Sunday, his son had traveled from New Mexico to

Indiana and only visited with him for about thirty to forty-five

minutes before driving another two-and-a-half hours to see his

brother.    Following this five-hour round-trip, he then made a

five-hour drive to another part of the state.           According to the

father, the following Thursday he received a call from Appellant

who indicated he was upset about the situation that he had

gotten himself into and expressed some thoughts of suicide. His


2
  Earlier, on or about October 17, 2000, Appellant had negotiated an
additional check to an establishment called “The Buckle” that was ultimately
dishonored.


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United States v. Harris, No. 04-0238/AF


father subsequently contacted his unit and arranged to have him

picked up by local law enforcement authorities for subsequent

return to military custody.   While awaiting ultimate return to

his command, Appellant was detained at the confinement facility

at Scott AFB.   There, authorities apparently observed Appellant

acting strangely.   There was testimony at the post-trial session

that Appellant was observed sitting on the floor of his cell

polishing it with his sock.

     Prior to trial, Appellant’s defense counsel learned that

before joining the military, Appellant had received

psychological counseling.   As a result, counsel requested a

sanity board convened under Rule for Courts-Martial (R.C.M.) 706

on November 1, 2000.   On November 8, 2000, the convening

authority detailed Major (MAJ) Pfeiffer, a clinical

psychologist, to conduct the evaluation.   On November 9, 2000,

MAJ Pfeiffer concluded that Appellant did not suffer from any

mental defect and that he “is mentally responsible for his

behavior.”

     Following his subsequent conviction, and during his

confinement at the Naval Confinement Facility in Miramar,

California, Appellant was evaluated a second time by a U.S. Navy

psychiatrist, Lieutenant (LT) LaCroix.    During his initial

intake, Appellant was sent to see LT LaCroix because according

to her, the confinement facility’s policy was to refer for


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United States v. Harris, No. 04-0238/AF


psychiatric assessment any prisoner who had been previously

prescribed psychiatric medication.    Prior to his arrival at the

facility Appellant had been placed on a prescription for

medication to treat depression.   During this initial assessment,

LT LaCroix learned that Appellant had experienced repeated

episodes of depression and mania since age fifteen and that his

mother had been diagnosed with a bipolar disorder.   She also

learned that leading up to the days of the offenses, Appellant

had exhibited a number of symptoms such as grandiosity, sleep

disruption and unusual goal-directed activity.   Following the

assessment, LT LaCroix diagnosed Appellant as suffering from a

Bipolar Type I disorder, prescribed additional medication to

treat his condition, and met with him one or two times a month

to assess his progress.

     As part of Appellant’s clemency submissions, trial defense

counsel submitted an affidavit from LT LaCroix detailing her

diagnosis.   Based upon her determination that Appellant “was not

able to control his actions or appreciate the wrongfulness of

his conduct due to psychiatric symptoms [at the time of the

offenses],” trial defense counsel requested that the convening

authority grant a new trial or, in the alternative, disapprove

the adjudged dishonorable discharge.   Instead, the convening

authority ordered a post-trial session pursuant to Article

39(a), UCMJ, 10 U.S.C. § 839(a) (2000).   According to the


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United States v. Harris, No. 04-0238/AF


convening authority’s memorandum to the military judge, the

stated purpose of the session was “to inquire into a matter

which has arisen post-trial . . . which may substantially affect

the legal sufficiency of your findings of guilty.”            The

memorandum further defined the scope of the session as “a

limited inquiry to determine whether the accused’s pleas of

guilty were provident and should have been accepted” in light of

LT LaCroix’s diagnosis and conclusions.3

      The Article 39(a) session was conducted on June 14, 2001.

After hearing testimony from MAJ Pfeiffer, LT LaCroix and

others, the military judge issued findings of fact and concluded

that at the time of the offenses, Appellant suffered from “a

bipolar disorder that would equate to a severe mental disease or

defect,” but that he appreciated the wrongfulness of his actions

and was subsequently competent to stand trial.           The military

judge concluded that the pleas were provident, but suggested

that the convening authority take into account Appellant’s

illness when considering clemency.

      After receipt of the military judge’s findings and

conclusions, the convening authority ordered a second sanity

3
  The parties do not agree on whether the convening authority’s action was
limited to having the military judge reconsider the accused’s guilty pleas,
or whether this action is also appropriately cast as an inquiry into the
necessity for a new trial under R.C.M. 1210, in light of the “newly
discovered” evidence of Appellant’s illness. We need not resolve this
dispute, as we have before us Appellant’s petition for a new trial, which we
review de novo. However, the evidence considered at the post-trial session
is, of course, relevant to our analysis.


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United States v. Harris, No. 04-0238/AF


board be convened.    Appellant was evaluated this time by Captain

(CAPT) Ho, a Navy psychiatrist, who concluded that at the time

of the offenses, Appellant suffered from a severe mental

disease, i.e., bipolar disorder.       CAPT Ho, however, concluded

that Appellant “was able to appreciate the nature and quality or

wrongfulness of his conduct.”   On January, 16, 2002, the

convening authority denied Appellant clemency and approved the

sentence as adjudged.

     During review in the court below, Appellant raised several

issues.   But he did not raise the issue of a new trial in light

of newly discovered evidence.   Rather, he argued that his

sentence was inappropriately severe in light of his mental

health.   As a result, he requested that the court order a

rehearing on sentence or reassess the sentence in light of post-

trial developments.   The lower court subsequently affirmed the

findings and sentence without discussion, noting only that the

issues raised by Appellant were without merit.

     Appellant subsequently filed a petition for review before

this Court as well as a separate petition for a new trial

pursuant to Article 73, UCMJ, 10 U.S.C. § 873 (2000), based on

newly discovered evidence of lack of mental responsibility.      In

his supplement to the petition for grant of review Appellant

assigned two issues, one of which asserted that he deserved a




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United States v. Harris, No. 04-0238/AF


new trial because he suffered from a severe mental disease at

the time of the offenses.4

                                      DISCUSSION

A.     The Petition for New Trial

        Petitions for new trials are disfavored in the law; relief

is granted only to avoid a “manifest injustice.”               United States

v. Williams, 37 M.J. 352, 356 (C.M.A. 1993).              R.C.M. 1210(f)(2)

provides granularity to this standard, stating that a new trial

shall not be granted on the grounds of newly discovered evidence

unless the petition demonstrates that:

        (A) The evidence was discovered after the trial;

        (B) The evidence is not such that it would have been
        discovered by the petitioner at the time of trial in the
        exercise of due diligence; and

        (C) The newly discovered evidence, if considered by a
        court-martial in the light of all other pertinent evidence,
        would probably produce a substantially more favorable
        result for the accused.

In this case, the parties agree that the evidence of Appellant’s

mental illness was discovered after trial.             However, the parties

do not agree as to whether Appellant exercised due diligence in

discovering the evidence prior to trial.


4
    The issue granted on Appellant’s petition for review is:

        WHETHER APPELLANT SHOULD BE GRANTED A NEW TRIAL BECAUSE HE
        SUFFERED FROM A SEVERE MENTAL DISEASE AT THE TIME OF HIS OFFENSES
        THAT RENDERED HIM UNABLE TO APPRECIATE THE NATURE AND QUALITY OR
        THE WRONFULNESS OF HIS ACTIONS.

As noted, on January 15, 2004, Appellant also submitted a petition for new
trial pursuant to Article 73 based on this same issue.


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United States v. Harris, No. 04-0238/AF


     The Government argues that Appellant failed to disclose

pertinent information to MAJ Pfeiffer, who conducted the

pretrial sanity board, namely Appellant’s prior psychological

counseling, disclosed by Appellant’s father at the post-trial

session, and evidence of the mental health issues of Appellant’s

parents.   According to the Government, had Appellant been

forthcoming, his true mental state would have been discovered

prior to trial.    However, this argument assumes that a person

with a severe mental defect will have the savvy to know what

information the trained mental health professional needs to

evaluate him as well as the wherewithal to consciously choose to

withhold such information.   Moreover, previously, this Court has

applied the due diligence standard in the rule to the efforts of

defense counsel.   United States v. Fisiorek, 43 M.J. 244, 248

(C.A.A.F. 1995); Williams, 37 M.J. at 357.    Therefore, on the

record before this Court we conclude that counsel exercised the

requisite due diligence by requesting the initial sanity board

prior to trial.

     We turn now to the third prong of analysis.    In context,

the question is whether LT LaCroix’s diagnosis and the testimony

at the Article 39(a) session would have had an impact on the




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United States v. Harris, No. 04-0238/AF


trial result.    However, the parties disagree on the applicable

substantive measure.5

     The Government avers that the standard is stated clearly in

the rule, which provides that a new trial shall not be ordered

unless “the newly discovered evidence, if considered by a court-

martial in the light of all other pertinent evidence, would

probably produce a substantially more favorable result for the

accused.”    R.C.M. 1210(f)(2)(C).        Appellant’s contrasting

argument is that a new trial must be granted where the request

is based upon post-trial discovery of a severe mental disorder

unless “the court is convinced beyond a reasonable doubt that a

different result would not occur had the court been aware of the

new evidence.”     Emphasis added.     Appellant argues that this

standard pertains whether he is before this Court on direct

appeal pursuant to Article 67, or whether he is petitioning this

Court under Article 73.      Appellant further argues that

“[h]istorically. . . we have given preferential treatment to the

question of mental responsibility of a military member, even

though the matter was not litigated at trial.”           United States v.

Young, 43 M.J. 196, 197 (C.A.A.F. 1995).          Appellant also notes that

this Court has applied a reasonable doubt standard in other contexts

5
  Identification of the correct substantive standard before this Court is
complicated because the parties’ arguments are addressed to both Appellant’s
petition for direct review under Article 67, UCMJ, 10 U.S.C. § 867 (2000),
and his petition for new trial under Article 73. However, for the reasons




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United States v. Harris, No. 04-0238/AF


involving new evidence of mental responsibility.           See United

States v. Van Tassel, 38 M.J. 91 (C.M.A. 1993); United States v.

Dock, 28 M.J. 117, 120 (C.M.A. 1989); United States v. Lilly, 25

M.J. 403 (C.M.A. 1988).

      This reasonable doubt standard has its genesis in United

States v. Triplett, 21 C.M.A. 497 (1972).          Triplett was

convicted at a trial before a military judge of the murder of a

fellow soldier.     At trial, the parties litigated the accused’s

mental responsibility at the time of the killing.            A

psychiatrist, who examined the accused prior to trial testified

that in his opinion the accused was suffering from a psychotic

episode at the time of the offense that was self-induced by the

accused’s voluntary drug use.        Finding the accused mentally

responsible beyond a reasonable doubt, the military judge found

the accused guilty as charged.        Id. at 498-99.     While the case

was pending review before the Court of Military Review, Triplett

was evaluated by a sanity board that concluded that at the time

of the offense, he suffered an acute psychosis that rendered him

unable to distinguish right from wrong.          A subsequent review by

the Surgeon General concurred with the sanity board.             Id. at

499-501.




stated below, in either appellate context we reach the same conclusion
applying R.C.M. 1210(f).


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United States v. Harris, No. 04-0238/AF


     Relying on paragraph 124 of the 1969 revised edition of the

Manual for Courts-Martial (MCM),6 the lower court held after

reviewing the record as a whole “that no reasonable doubt exists

as to the sanity of the accused.”         Triplett, 21 C.M.A. at 502.

Affirming the Court of Military Review, this Court construed the

language and purpose of paragraph 124, and stated, “If on the record,

as a whole, the tribunal concludes ‘that a reasonable doubt exists

as to the sanity of the accused,’ it should set aside the

findings of guilty and dismiss the charge.”          Id. at 503

(citation omitted).      In those instances when reasonable minds

might differ as to the weight of the new and the old evidence,

the Court stated, the question is “whether, considering all the

matter on the issue, a different verdict might reasonably result

if the issue was again presented to a court-martial.”            Id.   This




6
  Paragraph 124 states: ACTION BY CONVENING OR HIGHER AUTHORITY. After
consideration of the record as a whole, if it appears to the convening
authority or appropriate higher authority that a reasonable doubt exists as
to the sanity of the accused, the findings of guilty affected by that doubt
should be disapproved . . . .” MCM (1969 revised ed.), ¶124 (emphasis
added).




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United States v. Harris, No. 04-0238/AF


Court framed the question in like manner in Dock,7 Van Tassel,8

and Lilly.9

      However, as in Triplett, these cases arose in the context

of appeals taken from decisions by the lower courts on the issue

of later-discovered evidence of a lack of mental responsibility.

As a result, the trial court or courts of criminal appeals were

required to apply a beyond a reasonable doubt standard with

respect to guilt.     Because an accused now has the burden of

demonstrating lack of mental responsibility by clear and

convincing evidence, this results in what is an admittedly

convoluted appellate standard of review as set out in United

States v. Cosner:

      Is the appellate court convinced beyond a reasonable doubt
      that reasonable fact finders would not find by clear and
      convincing evidence that, at the time of the offense,
      appellant suffered from “a severe mental disease or defect”
      such as to be “unable to appreciate the nature and quality
      or the wrongfulness of” his acts?

35 M.J. 278, 281 (C.M.A. 1992)(citations and emphasis omitted).



7
  “Is the appellate court convinced beyond a reasonable doubt that a different
result would not obtain if the trier of fact had this new evidence before
it?” 28 M.J. at 120.
8
  “The standard to be applied by a Court of Military Review to determine
‘whether the issue of insanity was adequately raised . . . post-trial’ is
whether ‘the appellate court [is] convinced beyond a reasonable doubt that a
different result would not obtain if the trier of fact had this new evidence
before it[.]” 38 M.J. at 95 (quoting Dock, 28 M.J. at 119-20) (emphasis
added).
9
  “Whether the fact finder, after considering all the evidence that would be
available, might have a reasonable doubt as to appellant’s mental
responsibility?” 25 M.J. at 408.



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United States v. Harris, No. 04-0238/AF


For the fact-finder, such a demonstration would amount to a

reasonable doubt as to guilt.

        In addition, Triplett rested on language in paragraph 124

of the 1969 MCM,10 which expressly included the “beyond a

reasonable doubt” standard.      Paragraph 124 was not included in

the 1984 MCM; however, the Triplett standard continues in case

law.     The Court’s discussion in Triplett suggests why:

        The actions [paragraph 124] sanctions demand an
        analysis of the content, and a weighing of the value,
        of the new information. Manifestly, consideration of
        content and weight is required to determine whether,
        on ”the record as a whole,” a ”reasonable doubt
        exists“ as to the sanity of the accused at the time of
        the offense.

21 C.M.A. at 502 (emphasis added).       This language contemplates a

weighing function carried out by the authorities empowered to do

so.     This was borne out later in paragraph 124, which stated

that if it is determined that the accused lacks mental capacity,

“a conviction may not be approved or affirmed under Articles 64,

65, or 66.”11      MCM, ¶124 (1969 revised ed.)   Neither paragraph

124 nor the Triplett Court referenced Article 67.

        In light of the service courts’ fact-finding function, the

standard articulated in Triplett, Dock, Van Tassel, and Cosner

continues as the appropriate standard for lower courts

considering the impact of newly discovered evidence regarding

10
     See supra note 6.




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United States v. Harris, No. 04-0238/AF


mental responsibility.      In contrast, this Court applies the

separate standard set forth in R.C.M. 1210(f)(2)(C) in reviewing

requests for new trials on the ground of mental responsibility.

The rule sets out the standard in plain text, and there is no

ambiguity or anything in the rule that suggests a reasonable

doubt standard.     Moreover, unlike the lower courts, because we

have no fact-finding authority, we are prohibited from weighing

evidence in the manner suggested in Cosner and Triplett.

      This conclusion is consistent with United States v. Murphy,

50 M.J. 4 (C.A.A.F. 1998).       While Murphy’s case was pending

before the Court of Military Review, he obtained funding from

the Judge Advocate General to employ the services of a social

history investigator.      However, the court completed its review

of his case before the investigation could be completed.             Id. at

13.   After the court’s decision in his case, Murphy was examined

by a clinical psychologist and three psychiatrists.            These

mental health professionals severally opined that Murphy

suffered from various psychological dysfunctions at the time of

the offenses, that he suffered a severe mental defect that

rendered him unable to form the requisite intent for

premeditated murder, that he was unable to appreciate the nature

and quality or the wrongfulness of his acts, and that the prior


11
  These provisions reference respectively the post-trial responsibilities of
the convening authority, the judge advocates general, and the courts of
military review.


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United States v. Harris, No. 04-0238/AF


sanity board was based on inadequate assessment methods.    Id. at

13-14.    Murphy presented this information for the first time to

this Court in the form of affidavits.   The two-year limitation

in Article 73 for filing petitions for new trials having

expired, this Court concluded that Murphy’s case could not be

resolved pursuant to R.C.M. 1210(f).    Murphy, 50 M.J. at 14.     We

further acknowledged that “[a]lthough there has been some

disagreement as to the correct standard of review, there clearly

is agreement that, if the requirements of R.C.M. 1210(f)(2) are

present, the accused is entitled to a new trial.”     Murphy, 50

M.J. at 15.   However, notwithstanding the temporal

inapplicability of R.C.M. 1210(f), we concluded that the

standard found in R.C.M. 1210(f)(2)(C) “provides us with a clear

rule for testing whether the result obtained in the court-

martial proceeding is a reliable result.”     Murphy, 50 M.J. at

15.   But rather than ordering a new trial, we remanded to the

lower court to “[r]eview the new evidence to determine if a

different verdict as to findings might reasonably result in

light of post-trial evidence.”   Id. at 16.    This, of course, is

the standard found in Triplett and the remand took into account

the situation, like Murphy’s, where the discovery of the new

evidence occurred after the Court of Criminal Appeals had

concluded its review under Article 66, UCMJ, 10 U.S.C. § 866

(2000).   In other words, the remand allowed that court to apply


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United States v. Harris, No. 04-0238/AF


its fact-finding authority to the new evidence, an opportunity

not previously provided to it.    Thus, as in the case of a

timely Article 73 request, Murphy had the benefit of a review

before a fact-finding court prior to a review by this Court.

B.   Application

      Turning to Appellant’s case, we note that he has filed

within the statutory period under Article 73.   Unlike the

situation in Murphy, we also have before us the record of the

post-trial Article 39(a) session where the testimony of the two

mental health professionals was tested in the “crucible of

examination.”   Triplett, 21 C.M.A. at 503.

      The question becomes whether the post-trial evidence in

Appellant’s case “would probably produce a substantially more

favorable result for the accused.”    R.C.M. 1210(f)(2)(C).   Or,

alternatively, is it necessary to remand for further analysis

under the reasonable doubt standard applied by the Courts of

Criminal Appeals?    At this point, three Government mental health

professionals have offered varying conclusions as to Appellant’s

mental responsibility at the time of the offenses.   Only one of

these evaluations was specifically sought by Appellant.   MAJ

Pfeiffer concluded that Appellant suffered no severe mental

defect or disease.   In contrast, LT LaCroix concluded that he

did suffer a severe disease at the time of the offenses and that

he was “not able to control his actions or appreciate the


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United States v. Harris, No. 04-0238/AF


wrongfulness of his conduct due to psychiatric symptoms.”          CAPT

Ho concluded that Appellant suffered from a severe mental

disease or defect, but he was able to appreciate the nature and

quality or wrongfulness of his conduct.

     As a threshold, we note that Appellant’s defense was

immediately impacted by the newly discovered evidence, because

defense counsel was unable to prepare and fully develop the

affirmative defense of mental responsibility prior to trial

because she had no evidence that Appellant suffered from a

severe mental defect or disease.      More importantly, the

distinctions in background and methodology used by the doctors

in reaching contradictory conclusions, raises the possibility

that a different court-martial might reach a finding more

favorable to the Appellant.    For example, MAJ Pfeiffer was a

clinical psychologist and LT LaCroix a medical doctor.        LT

LaCroix had experience with “hundreds” of patients diagnosed

with bipolar disorders.   In addition, LT LaCroix met with

Appellant “one to two times a month” for the four months between

her initial intake evaluation of him and the date of the post-

trial Article 39(a) session.   MAJ Pfeiffer spent several hours

with Appellant during one visit.      Moreover, the military judge

was persuaded by LT LaCroix’s testimony that Appellant suffered

a severe mental disease at the time of the offenses.




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United States v. Harris, No. 04-0238/AF


       Of course, “the mere existence of conflicting opinion does

not necessarily require a rehearing.”   Triplett, 21 C.M.A. at

503.   However, this case presents more than conflicting

opinions.   LT LaCroix testified in detail not only as to her

qualifications, which were different than those of MAJ Pfeiffer,

but also as to her methodology in obtaining needed information

from Appellant.   We also note the absence of any “forum

shopping” by Appellant for a more favorable opinion than MAJ

Pfeiffer’s.   CAPT Ho’s examination was ordered by the convening

authority, and LT LaCroix testified that Appellant had not

initially sought her out for treatment.   In fact, she stated

that Appellant was not even aware that he was being sent to a

psychiatrist.

       In any event, the question for this Court is not whether

MAJ Pfeiffer, LT LaCroix, or CAPT Ho reached the correct

conclusion, but whether a different court-martial might have

reached a result more favorable to the accused in light of

arguments defense counsel might have brought to bear with

knowledge of Appellant’s condition as well as the differences in

the testimony of the doctors.   In light of the newly discovered

evidence regarding Appellant’s mental illness, the competing

views as to its impact on responsibility, and all other

pertinent evidence, we conclude this evidence would probably

produce a substantially more favorable result for Appellant on


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United States v. Harris, No. 04-0238/AF


the contested offenses.      We now address the offenses to which

Appellant pleaded guilty.

C.   Appellant’s Guilty Pleas

      Appellant was charged with larceny, but entered a plea of

guilty to the lesser offense of wrongful appropriation.             He also

pleaded guilty to three specifications of writing bad checks

with intent to defraud.      Appellant now urges that we apply the

new-trial construct of Article 73 and R.C.M. 1210(f) to decide

whether Appellant’s pleas were provident.          Because R.C.M. 1210

expressly precludes its application to guilty pleas, we decline

to do so.12

      A guilty plea will be rejected only where the record of

trial shows a substantial basis in law and fact for questioning

the plea.     United States v. Prater, 32 M.J. 433, 436 (C.M.A.

1991); United States v. Jordan, 57 M.J. 236, 238 (C.A.A.F.

2002); United States v. Hardeman, 59 M.J. 389, 391 (C.A.A.F.

2004).   We review de novo the military judge’s legal conclusion

that Appellant’s pleas were provident.

      A plea of guilty waives a number of important

constitutional rights. United States v. Care, 18 C.M.A 535, 541-

42 (1969).    As a result, the waiver of these rights must be an

informed one.    United States v. Hansen, 59 M.J. 410, 413

12
  “A petition for a new trial of the facts may not be submitted on the basis
of newly discovered evidence when the petitioner was found guilty of the
relevant offense pursuant to a guilty plea.” R.C.M. 1210(a).


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United States v. Harris, No. 04-0238/AF


(C.A.A.F. 2004).     In this case, the military judge concluded

after holding an Article 39(a) session that Appellant suffered a

severe mental defect or disease at the time of the offenses.13

We do not see how an accused can make an informed plea without

knowledge that he suffered a severe mental disease or defect at

the time of the offense.       Nor is it possible for a military

judge to conduct the necessary Care inquiry into an accused’s

pleas without exploring the impact of any potential mental

health issues on those pleas.        Thus, we conclude that there is a

substantial basis in law and fact to question Appellant’s pleas

of guilty.

                                  DECISION

      The decision of the United States Air Force Court of

Criminal Appeals is set aside, along with the findings and

sentence.    Appellant’s petition for new trial is granted.14           The

record of trial is returned to the Judge Advocate General of the

Air Force for action consistent with this opinion.




13
   At this juncture the military judge had two options. He could have
inquired whether Appellant still wished to plead guilty, now aware of a
possible affirmative defense based on mental illness. Alternatively, the
military judge could have advised the convening authority that a substantial
basis in law and fact now existed to question whether Appellant’s pleas were
provident.
14
   Our resolution of Appellant’s Petition for New Trial renders the granted
issue moot because the same standard articulated in our opinion to resolve
the petition for new trial applies as well to the issue when presented to us
for the first time on direct review.


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United States v. Harris, 04-0238/AF


     CRAWFORD, Judge (dissenting):

     Lack of mental responsibility can be a valid defense

in only one situation, when:

     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 his or her acts.

R.C.M. 916(k)(1).

     If Appellant appreciated the “nature and quality or

the wrongfulness” of his actions, he does not qualify for

this defense.   During his providence inquiry, Appellant

explained several times that he understood that he had

insufficient funds when he stole the truck and wrote the

bad checks.   His father’s testimony during the Article

39(a) session also suggested a motive:   emulation of his

relatively wealthy brother.

     The accused is always presumed to have been mentally

responsible and bears the burden of proving, “by clear and

convincing evidence, that he or she was not mentally

responsible at the time of the alleged offense.”1   R.C.M.

916(k)(3)(A).   Even if an accused can prove that he lacked

1
 “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)
(internal quotation marks and citations omitted), quoted in
United States v. Collins, 60 M.J. 261, 265 (C.A.A.F. 2004).
United States v. Harris, 04-0238/AF


mental responsibility over a long period of time that

included the day of the offense, the prosecution can rebut

this by proving that the accused was mentally responsible

at a specific time during that period –- for example, while

signing checks.    United States v. Martin, 56 M.J. 97

(C.A.A.F. 2001).

     The providency hearing made clear the intent behind

Appellant’s offense involving the truck:

     ACC: Your Honor, I was counting on the deal not
     going through. I thought that the vehicle was
     too much and that the loan wouldn’t get approved.
     I believed I was going to have to turn it back in
     at the end of the week.

     MJ: All right. You said you planned for the
     deal not to go through . . . . [and] you wrote
     them some checks that you knew weren’t going to
     go through?

     ACC:   Yes, Your Honor . . .

     MJ: [Y]ou knew at that point that you didn’t
     have the money in the bank, so you were
     defrauding them. Is that right?

     ACC:   Yes, Your Honor . . .

     . . . .

     MJ: And as a result, you were taking [the truck]
     for your own personal use, you said “to show
     off”?

     ACC:   Correct, Your Honor.

After Appellant changed his plea on the desertion charge to

not guilty, the military judge returned to the issue of



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United States v. Harris, 04-0238/AF


intent during discussion of the uttering specifications.

When the judge asked him why he believed himself guilty of

Specification 1, Appellant replied:

     When I made the check I knew that I, the
     maker thereof, did not or would not have
     sufficient funds in the bank for the payment
     of the check in full . . . .

     MJ: You made this check for $1,090.39. Did
     you know at the time you didn’t have that
     money in the bank?

     ACC:    Yes, Your Honor . . . .

     . . . .

     MJ: You read off the intent to defraud, and
     I defined that earlier for you. Basically,
     obtaining items through misrepresentation
     and intending to use those items for the use
     and benefit of yourself or the use and
     benefit of someone else. Is that what you
     did when you presented this check?

     ACC:    Yes, Your Honor.

Appellant’s accounts of the remaining specifications were

similar.    He admitted that the making of all three of the

bad checks in the additional charge was “wrongful,

unlawful, and with intent to defraud.”

     Appellant’s father, John Cochran Harris, disclosed a

possible motive during his testimony for the defense.

After recounting Appellant’s history of problems with

depression, low self-esteem, and lack of discipline, Mr.




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United States v. Harris, 04-0238/AF


Harris went on to describe Appellant’s relationship with

his older brother:

     A: His brother has been very successful.
     He was an average student in high school.
     But then upon graduating from high school he
     went to ITT Technical Institute and . . .
     built his way up into some respectable
     earning positions with some companies. Even
     to the point where he was earning enough
     that he purchased a small private plane to
     learn how to fly . . . . So, that was very
     impressionable [sic] I know to John the fact
     that his brother was earning good money, and
     had a plane, and had a family, and was
     moving ahead. Even to the point now that my
     oldest son did get his private license; and
     has now sold that plane; and has gone back
     to college full time at Indiana State
     University and enrolled in the professional
     pilot program . . . .

     Q: Do you think that Airman Harris looks up
     to his older brother?

     A: Completely . . . . And there’s one thing
     about Chris, my oldest son, was material
     things. He liked . . . nice things; a good
     car; but he was making the money that he
     could handle those things. I know John was
     kind of caught up into that materialistic
     image that his brother kind of projected and
     wanted to be like him in that respect.

     Q: And do you think that was part of the
     reason why he did the things that he did in
     this case?

     A:   I really think it is.

The testimony of Appellant and his father does not suggest

a man who was “unable to appreciate the nature and quality

or the wrongfulness of his . . . acts,” as required for a



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United States v. Harris, 04-0238/AF


valid defense under R.C.M. 916(k)(1).   Instead, it suggests

a man who was mentally ill but nevertheless had a motive, a

plan, and the ability to commit several crimes.   Despite

any mental illness, Appellant was lucid enough to form the

necessary criminal intent.   Thus, the defense of lack of

mental responsibility is unavailable to him.

     If lack of mental responsibility is a heavy burden for

an appellant, a petition for a new trial is even heavier.

This Court generally disfavors such petitions and will

grant one “only if a manifest injustice would result absent

a new trial . . . based on proffered newly discovered

evidence.”   United States v. Williams, 37 M.J. 352, 356

(C.M.A. 1993).

     The standard for these petitions is laid out in R.C.M.

1210(f), which permits only two grounds for new trials:

newly discovered evidence and fraud on the court-martial.

Appellant petitions on the basis of newly discovered

evidence, which requires him to show all of the following:

     (A) The evidence was discovered after the trial;

     (B) The evidence is not such that it would have
         been discovered by the petitioner at the time
         of trial in the exercise of due diligence; and

     (C) The newly discovered evidence, if considered
         by a court-martial in the light of all other
         pertinent evidence, would probably produce a
         substantially more favorable result for the
         accused.


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United States v. Harris, 04-0238/AF


R.C.M. 1210(f)(2).

     This Court tends to frown on post-trial second

opinions by mental-health experts; it is reluctant to grant

an appellant a new trial solely because his search for

additional experts has yielded more favorable results.   In

United States v. Gray, 51 M.J. 1, 14 (C.A.A.F. 1999), this

Court held that “the establishment of conflicting expert

opinion on an accused’s mental state does not necessarily

require a rehearing.”   The Gray Court found a rehearing to

be particularly unwarranted where evidence of the illness

existed before trial and there was a dispute as to the

effect of that illness on the defendant at the time of the

offense(s).   Id.

     This case illustrates the problem with post-trial

second opinions.    After his providency hearing, in which he

had admitted his intent to steal the truck and pass the bad

checks, Appellant sought the help of a psychiatrist.   That

doctor, Lieutenant Camille LaCroix, examined him and

concluded that he suffered from Bipolar Disorder Type I.

In contrast to the deliberate action he had described in

his providency hearing, she later testified that:

          [h]e said he had no intention of buying a
          truck; he has no idea why that happened. He
          knows it did happen because he did do that
          and he had written these checks and



                               6
United States v. Harris, 04-0238/AF


             everything else, but he had no preconceived
             notion of going to do these things.

She added, in response to defense counsel’s question, that

the fact that Defendant had spent several days at the car

dealership before stealing the car was irrelevant; that

period could have been merely a build-up to the

irresistible impulse that is characteristic of this

disorder.    She also noted that people with bipolar disorder

cannot appreciate the wrongfulness of their actions at the

time of an offense.    Her conclusion thus became key to

Appellant’s defense, even though it contradicted his own

testimony.

     Even if we ignore our policy against expert-shopping,

Appellant’s case fails on another point:    He would have

discovered his evidence before trial, had he exercised due

diligence.    Appellant himself had struggled with mental

illness as a teenager and had received medication and

extensive counseling.    He easily could have discovered his

family history of mental illness, including his mother’s

history of bipolar disorder.    Due diligence by the defense

also would have brought to light the evidence from Senior

Master Sergeant Marilyn Toland and Captain William Cannon,

who witnessed his peculiar behavior during pretrial

confinement.    Appellant did not discover any of this



                                7
United States v. Harris, 04-0238/AF


available evidence before trial.   He thus is disqualified

from consideration for a new trial on the basis of R.C.M.

1210(f)(2)(B) and our own precedent.   Gray, 51 M.J. 1 at

14.

      I have no doubt that bipolar disorder has thrown

Appellant’s life into repeated turmoil, and I underestimate

neither his struggle nor the pain it has brought his

family.   However, we are asked to judge his actions against

the fixed standards set by Congress.   Appellant was able to

appreciate the wrongfulness of his acts at the time he

committed them.   Therefore, the lack of mental

responsibility cannot be a valid defense for him.

Moreover, he failed to exercise due diligence in pretrial

discovery.   Therefore, his petition for a new trial fails

to meet the statutory requirements.    Accordingly, I

respectfully dissent.




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