UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                             Before
                                   YOB, KRAUSS, and BURTON
                                    Appellate Military Judges

                             UNITED STATES, Appellee
                                         v.
                  Private First Class GEORGE D.B. MACDONALD
                           United States Army, Appellant

                                          ARMY 20091118

Headquarters, United States Army Maneuver Center of Excellence and Fort Benning
                          James L. Pohl, Military Judge
             Colonel Tracy A. Barnes, Staff Judge Advocate (pretrial)
     Lieutenant Colonel Mary M. Foreman, Staff Judge Advocate (post-trial)


For Appellant: Captain Matthew T. Grady, JA (on brief); Captain Brandon H. Iriye
(on reply brief); Mr. William E. Cassara (on motion for appellate discovery); Mr.
William E. Cassara (argued).

For Appellee: Lieutenant Colonel Amber J. Roach, JA; Major Stephen E. Latino, JA;
Captain Catherine L. Brantley, JA (on response to appellant’s motion for appellate
discovery); Captain Edward J. Whitford, JA (argued).


                                              3 July 2013

                                       ----------------------------------
                                       MEMORANDUM OPINION
                                       ----------------------------------

        This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.


KRAUSS, Judge:

       A panel of officers, sitting as a general court-martial, convicted appellant,
contrary to his pleas, of resisting apprehension, premeditated murder, assault
consummated by a battery, and assault with a dangerous weapon likely to produce
death or grievous bodily harm, in violation of Articles 95, 118, and 128 Uniform
Code of Military Justice, 10 U.S.C. §§ 895, 918, and 928 (2006 & Supp. II 2008)
[hereinafter UCMJ]. The convening authority approved the adjudged sentence to a
reprimand, reduction to the grade of E-1, forfeiture of all pay and allowances,
confinement for life without eligibility of parole, and a dishonorable discharge.
MACDONALD—ARMY 20091118

        Appellant’s case is before this court for review under Article 66, UCMJ.
Appellant stabbed another soldier to death under rather mysterious circumstances.
There was no apparent motive for the killing, Appellant presented, in essence, an
insanity defense, claiming that the drug prescribed to him by Army doctors to help
him stop smoking, Varenicline (popularly known as and hereinafter referred to as
Chantix), contributed to his lack of mental responsibility for the offenses alleged.
Appellant assigns eight errors essentially asserting: 1) that the military judge erred
by refusing to give the defense requested instruction on involuntary intoxication; 2)
that appellant established his lack of mental responsibility at trial; 3) that the
military judge erred by quashing a government subpoena issued to Pfizer, Inc. to
produce information relative to the drug Chantix 1; 4) and 5) that the military judge
erred in his mental responsibility instructions; 6) that the evidence is legally and
factually insufficient to prove premeditated murder; 7) that the military judge erred
by allowing certain evidence in aggravation; and 8) that life without eligibility for
parole is inappropriately severe. After examining the record of trial, considering the
parties’ briefs and enjoying oral argument in the case, we find any error harmless as
to findings or the sentence.

     We discuss here those issues necessary for the proper disposition of the case,
namely, the judge’s quashing of the subpoena to Pfizer; his failure to instruct on the
defense of involuntary intoxication; and the sufficiency of evidence of guilt and
appellant’s mental responsibility.

                                  BACKGROUND

                                 Appellant’s Crimes

       Appellant stabbed Private (PVT) Rick Bulmer to death at Fort Benning,
Georgia in an otherwise empty barracks bay room to which PVT Bulmer repaired to
sleep after being excused from drill and ceremony training. On 18 May 2008, PVT
Bulmer had been in basic training for 3 days. Prior to entry into basic training he
underwent leg surgery requiring recuperation that prevented his participation in
certain training. He was excused from drill and ceremony training that day. His drill
sergeant directed Bulmer to wait in the shade next to the barracks. Unobserved by
his drill sergeant, PVT Bulmer went into the barracks and into his bed.

       Appellant, a nineteen year-old airborne infantry soldier awaiting matriculation
with the United States Military Academy Preparatory School (for the class of 2009),
was assigned duty with a unit at Fort Benning. On 18 April 2008, an Army doctor at
Fort Benning, prescribed appellant Chantix to facilitate his effort to quit smoking.
On 18 May 2008, appellant, who resided in the same general barracks complex


1
 Appellant also moves this court to order essentially the same discovery from
Pfizer.


                                           2
MACDONALD—ARMY 20091118

where PVT Bulmer went to lie down, attacked Private Bulmer with a knife as he
slept.

      He initiated this attack with a stab to the neck intending to kill the man with
one blow. Instead, the victim, roused from sleep, tried to ward off the attack,
ultimately suffering more than fifty knife wounds as appellant tried to finish his
victim.

       Private Bulmer’s screams and pleas for the assault to stop drew the attention
of other basic trainees nearby. Soldiers attending to their own bay then saw, through
a window, the assault continuing. They did not immediately appreciate what was
happening. Two soldiers responded and rushed to the scene still uncertain as to
what was happening. Ultimately they realized one man was attacking another with a
knife. Appellant, at first unaware of the arrival of these two soldiers, continued his
brutal assault.

       Once appellant recognized the presence of others, he lashed out at one with
the knife and pushed him aside while running away from the scene. Covered in
blood, appellant ran to his room, removed his clothes, showered, stuffed his bloody
clothes, shoes, and the knife into a backpack, dressed in casual civilian clothes, and
took off with his back pack.

       In the meantime, an alert was issued and efforts immediately undertaken to
find and apprehend the man discovered stabbing PVT Bulmer. A lone non-
commissioned officer (NCO) dispatched to the periphery of Fort Benning, to a
training area empty of people at the time, discovered appellant moving along the tree
line in a direction away from the scene of the crime. Challenged, appellant claimed
to be going to a particular store on post to buy new sneakers. Unbelieving, the NCO
suspected something amiss and directed appellant to accompany him. With a
common vulgar retort, appellant rebuffed the NCO and made every indication of his
intent to continue along, at which point the NCO attempted to apprehend appellant.

      Appellant then attempted to flee, requiring the NCO to chase him down and
physically subdue and restrain him until military police arrived on the scene and
apprehended him themselves. Several hours later, appellant waived his right to
remain silent and admitted the crime, asserting that he intended to kill when he
stabbed and that he must have been temporarily insane, describing the idea of
murder as coming to him in an ever forceful manner until he felt compelled to kill at
that moment. He acknowledged that what he did was wrong, expressed remorse and
disgust with himself for killing, and requested help. It should also be noted that a
day prior to the assault upon PVT Bulmer, appellant telephoned his girlfriend and
asked her whether she would still love him if he were to kill someone.




                                           3
MACDONALD—ARMY 20091118

       Private Bulmer died from the wounds inflicted by appellant, and appellant was
charged with premeditated murder among other offenses. His defense was that
Chantix, combined with preexisting mental conditions, drove him to a tragic,
psychotic, homicidal assault upon PVT Bulmer and that he was not guilty by reason
of lack of mental responsibility.

       On 24 September 2008, a sanity board ordered pursuant to Rule for Courts-
Martial [hereinafter R.C.M.] 706, concluded that appellant “was able to appreciate
the nature and quality or wrongfulness of his conduct” and that he was competent to
stand trial. The doctor responsible for that forensic psychiatric evaluation resolved
no clinical psychiatric diagnosis of appellant.

                   Chantix: Associated Warnings and Side Effects

       The drug Chantix, following Food and Drug Administration (FDA) approval,
became the subject of a series of increasingly severe FDA warnings culminating in a
so-called “black-box” warning in July 2008. In November 2007, the FDA had issued
an “Early Communication About an Ongoing Safety Review of Varenicline”
including reference to possible concern over links between the drug and suicidal and
aggressive behavior. In February 2008, the FDA issued an “Alert” about Chantix
addressing concern of an association between Chantix and serious neuropsychiatric
symptoms including “changes in behavior, agitation, depressed mood, suicidal
ideation, and attempted and completed suicide.” On 16 May 2008, the FDA issued a
public health advisory relating updated prescribing information “to include warnings
about the possibility of severe changes in mood and behavior in patients taking
Chantix.” The advisory stated that “Chantix may cause worsening of a current
psychiatric illness even if it is currently under control and may cause an old
psychiatric illness to reoccur.” It also stated that symptoms associated with Chantix
“may include anxiety, nervousness, tension, depressed mood, unusual behaviors and
thinking about or attempting suicide” and that “[i]n most cases, neuropsychiatric
symptoms developed during Chantix treatment, but in others, symptoms developed
following withdrawal of varenicline therapy.”

       The July 2008 “black box” warning for Chantix included:

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



                                          4
MACDONALD—ARMY 20091118

            caregivers that the patient should stop taking CHANTIX
            and contact a healthcare provider immediately if agitation,
            hostility, depressed mood, or changes in behavior or
            thinking that are not typical for the patient are observed,
            or if the patient develops suicidal ideation or suicidal
            behavior.

Additional warnings were provided along with the “black box” warning that
included:

            Serious neuropsychiatric symptoms have been reported in
            patients being treated with CHANTIX. These post-
            marketing reports have included changes in mood
            (including depression and mania), psychosis,
            hallucinations, paranoia, delusions, homicidal ideation,
            hostility, agitation, anxiety, and panic, as well as suicidal
            ideation, suicide attempt, and completed suicide.

Also associated with issuance of the “black box” warning was “Information for
Patients” which included:

            Patients should be informed that quitting smoking, with or
            without CHANTIX, may be associated with nicotine
            withdrawal symptoms (including depression or agitation)
            or exacerbation of pre-existing psychiatric illness.
            Furthermore, some patients have experienced changes in
            mood (including depression and mania), psychosis,
            hallucinations, paranoia, delusions, homicidal ideation,
            aggression, anxiety, and panic, as well as suicidal ideation
            and suicide when attempting to quit smoking while taking
            CHANTIX. If patients develop agitation, hostility,
            depressed mood, or changes in behavior, they should be
            urged to discontinue CHANTIX and report these
            symptoms to their healthcare provider immediately.

There was also included “a list of treatment-emergent adverse events reported by
patients treated with CHANTIX during all clinical trials” that included:
“PSYCHIATRIC DISORDERS. Frequent: Anxiety, Depression, Emotional disorder,
Irritability, Restlessness. Infrequent: Aggression, Agitation, Disorientation,
Dissociation, Libido decreased, Mood swings, Thinking abnormal. Rare:
Bradyphrenia, Euphoric mood, Hallucination, Psychotic disorder, Suicidal ideation.”

Finally, included under the heading “Post-Marketing Experience” in the same
publication is the following:



                                          5
MACDONALD—ARMY 20091118


             The following adverse events have been reported during
             post-approval use of CHANTIX[.]sic Because these
             events are reported voluntarily from a population of
             uncertain size, it is not possible to reliably estimate their
             frequency or establish a causal relationship to drug
             exposure. There have been reports of depression, mania,
             psychosis, hallucinations, paranoia, delusions, homicidal
             ideation, aggression, hostility, anxiety, and panic, as well
             as suicidal ideation, suicide attempt, and completed
             suicide in patients attempting to quit smoking while taking
             CHANTIX (See Boxed Warning . . .).” Smoking cessation
             with or without treatment is associated with nicotine
             withdrawal symptoms and the exacerbation of underlying
             psychiatric illness.

Defense Exhibit (DE) I.

       Trial defense counsel requested discovery of information relative to Chantix,
including the product’s a. clinical trial data, b. adverse event reports, c. post-market
surveillance, d. stability studies, and e. analytical standards. Trial counsel issued a
subpoena to Pfizer requiring production of the information requested by the defense.
Pfizer expressed a qualified willingness to produce the analytical standards and
stability studies but ultimately refused to produce any of the other information
despite the subpoena.

      Subsequently, defense counsel demanded production of items a-d, above, and
requested the military judge enforce the subpoena. The defense articulated its
relevance and necessity to a defense of lack of mental responsibility or diminished
capacity. The judge refused to enforce the subpoena.

       The judge declined to enforce the subpoena for essentially four reasons: 1)
there was no evidence that Chantix was in appellant’s system at the time of the
offense (indeed two toxicology blood reports indicated negative presence); 2) the
R.C.M. 706 board made no indication of a mental responsibility issue; 3) there was
no evidence impugning the reliability of the 706 board; and, 4) there was no
evidence that Chantix adversely influenced appellant. The judge concluded,
therefore, that, under R.C.M. 703, the defense had failed to establish sufficient
relevance and necessity of the requested evidence to enforce the subpoena.

       In relation to the third reason given, the judge stated that if that issue were
raised “the court will revisit its findings.”




                                            6
MACDONALD—ARMY 20091118

       After this ruling, the defense succeeded in having a previously collected
sample of appellant’s urine tested for the presence of Chantix. The urine sample
was originally taken (along with a blood sample) when appellant was apprehended.
The urine test revealed the presence of Chantix in appellant’s system at the time of
the offense.

       With this information, and in light of the FDA’s issuance of a “black box”
warning, the defense made a motion for the judge to reconsider his quashing of the
subpoena. This time the defense requested the judge order Pfizer to comply with the
subpoena and produce only items a-c, above, adding emphasis to post-market
surveillance relevant to the “black box” warning. The defense argued for
reconsideration of the subpoena request and its enforcement because it had now
demonstrated Chantix was in appellant’s system, a new and more severe warning
about the drug had been issued issued, and the R.C.M. 706 board had never
considered the possible influence of Chantix in rendering its conclusions.

       The judge concluded that “[i]t doesn’t make any difference as far as [he
could] see whether [appellant’s mental condition was] caused by Chantix or not
caused by Chantix. Chantix is an explanation.” He went on to deny the motion for
reconsideration, stating, “the court does not believe that the new evidence or that
anything has changed since its last ruling. The court still believes the proper
standard is R.C.M. 703 because this is a court order to a third party, and therefore
the defense motion for a reconsideration of its ruling of 24 June is hereby denied.”

       Additionally, in their request for reconsideration, the defense asserted that all
of the adverse event reports relative to Chantix were in the FDA’s possession and
requested the government produce all of the reports from the FDA. The judge
responded, “That strikes me as a discovery issue and we will talk about that.”

       In a subsequent pretrial session, trial defense counsel again raised its demand
stating, “the requested information is what we’ve litigated before vis-a-vis v. Pfizer,
sir, and that is adverse memory reports, clinical trial data, other things that Pfizer- at
least the government has placed two documents from Pfizer Pharmaceutical counsel
that indicate all of the material is in possession of the Food and Drug
Administration.” Because the information was in the possession of a federal
government agency, the defense demanded the government counsel be directed to
produce it. Trial defense counsel went on to state, “The defense is done playing
games with Pfizer and everyone else. The FDA has all of the materials that trigger
their warnings.”

        In response, the military judge required trial counsel to ascertain whether the
FDA possessed the information and, if so, whether it would produce it declaring that
“[i]f the FDA says it will not release . . . without a court order or to the judge for an
in camera review I’ll do both of those things.” The judge reiterated his willingness



                                            7
MACDONALD—ARMY 20091118

to issue a court order to obtain such information from the FDA and directed trial
counsel to provide a written status of the matter in eight days.

       Later, in another session prior to trial, the defense again raised objection to
the judge’s refusal to enforce the subpoena issued to Pfizer, obtain the requested
information, and review the material in camera to make a determination of
relevance. The judge merely acknowledged the objection.

      At trial, the defense attacked the qualification, reliability and value of the
R.C.M. 706 board in cross-examination of the doctor tasked to complete the forensic
psychiatric evaluation.

       In its case, the defense introduced all of the FDA/Pfizer warnings associated
with Chantix, produced an expert on the subject of drug safety, and two qualified
forensic psychiatrists. The drug safety expert opined that Chantix can cause
aggression or violent behavior. The two psychiatrists separately and independently
diagnosed appellant as suffering from a severe mental disease or defect at the time
of the offense and that he did not appreciate the nature, quality, and wrongfulness of
his acts. Each diagnosed appellant as suffering preexisting mental conditions, each
concluded that appellant suffered a psychotic episode at the time of the killing, and
each concluded that the psychotic episode was short-lived. In essence, the defense
experts opined that appellant’s mental condition experienced an escalation to
psychosis, resulting in a psychotic break on the day of the killing, which subsided
soon thereafter. The first psychiatrist testified that appellant suffered a Chantix-
induced psychosis. The second defense psychiatrist testified that she would not
recommend prescription of Chantix to someone such as appellant.

       During the government cross-examination of the first defense psychiatrist,
defense counsel objected to questions referencing the clinical trials previously
requested by defense. The defense counsel made plain his dissatisfaction with the
judge’s ruling and repeated his assessment that this same information would have
been helpful to the defense. The judge curtailed that aspect of the government’s
cross-examination as a result.

      Otherwise, the defense did not renew demand for the production of this
information, and neither the judge nor the United States raised the matter of its
production again.

        In rebuttal, the government produced its own qualified expert psychiatrist
(different from the doctor who conducted the R.C.M. 706 board). He offered an
opinion in stark contrast to that of the defense experts, concluding instead that
appellant was not suffering from a major psychiatric illness at the time of the
stabbing, impugning the diagnosis of the defense experts. The government expert
asserted that appellant knew the nature of and consequences of his actions and knew



                                            8
MACDONALD—ARMY 20091118

right from wrong, and concluded that Chantix did not cause or influence appellant’s
actions in any way.

        Prior to instruction on findings, the defense and the government separately
proposed an instruction on the involuntary intoxication defense. Each essentially
expressed that if, as a result of side effects from the Chantix prescribed, appellant
was unable to appreciate the nature and quality or wrongfulness of his acts, the
defense applied as long as knowledge of those side effects could not reasonably be
attributed to the appellant. The judge refused to give the proffered defense
instruction, concluding that it amounted to a misstatement of the law, stating in
essence that it incorrectly substituted intoxication for a severe mental disease or
defect as cause of insanity. The judge opted for more standard mental responsibility
instructions. The judge made no mention of Chantix in his findings instructions.

       During sentencing one of the defense expert psychiatrists testified that
appellant “certainly needs to be followed by mental health, psychotherapy,
psychiatric care, substance abuse education just because his disorders certainly
could be exacerbated by exposure of chemicals into his brain.” This expert
concluded appellant did not have “the propensity to be a danger in the future” if
proper treatment were provided. Similarly, the second defense expert psychiatrist
stated appellant “needs a lot of psychotherapy. I think he needs to be followed by
mental health people. I think he needs education around substance abuse to make
sure he understands that he should not use any kind of drugs or medication that
could ever do anything like this again.” He concluded that with “proper treatment”
appellant would not be a danger to society.

      The defense made no request for instruction relative to Chantix for the
sentencing phase of the court-martial.

                             LAW AND DISCUSSION

       The military judge erred by failing to enforce the subpoena, by refusing to
provide an involuntary intoxication instruction and by failing to mention Chantix in
his instructions on findings. We ultimately deem any such errors harmless.

                                Subpoena and Waiver

       We review a military judge’s decision to quash a subpoena for abuse of
discretion. United States v. Wuterich, 67 M.J. 63, 77 (C.A.A.F. 2008); United States
v. Reece, 25 M.J. 93, 95 (C.M.A. 1987). “A military judge abuses his discretion
when his findings of fact are clearly erroneous, the court’s decision is influenced by
an erroneous view of the law, or the military judge’s decision on the issue at hand is
outside the range of choices reasonably arising from the applicable facts and the
law.” United States v. Graner, 69 M.J. 104, 107 (C.A.A.F. 2010) (citations



                                          9
MACDONALD—ARMY 20091118

omitted). Whether a judge abuses his discretion in quashing a subpoena or not, if
there is no reasonable probability that the result of trial would have been different
but for such error, relief is not warranted. See United States v. Morris, 52 M.J. 193,
197-98 (C.A.A.F. 1999). See also United States v. Kelly, 52 M.J. 773, 776 (Army
Ct. Crim. App. 1999) (citations omitted).

       The material in Pfizer’s and the FDA’s possession relative to Chantix was
relevant and worthy of discovery. The threshold of relevance is low. See Reece, 25
M.J. at 95. See also R.C.M. 703(f)(1) (“Each party is entitled to the production of
evidence which is relevant and necessary.”); Military Rule of Evidence [hereinafter
Mil. R. Evid.) 401. Defense satisfactorily established the relevance of this material
to its mental responsibility defense. Any deference to be rendered the judge’s
discretion in this case disappears in light of the evidence that appellant had Chantix
in his system at the time of the offense and that the FDA issued warnings that
Chantix may cause aggressive, hostile behavior and homicidal ideas. By the time
the defense produced expert testimony to the effect that Chantix induced a psychosis
preventing appellant from appreciating the nature and quality or wrongfulness of his
acts, certainly no reasonable basis existed upon which to deny discovery of that
information and enforcement of the subpoena. There is no doubt the material
existed, there is no doubt it included information that informed the FDA warnings,
and there is no doubt that the information would further inform the testimony of the
defense experts. It certainly, then, possessed a tendency to establish the fact of
appellant’s mental responsibility, or lack thereof, as more or less probable than it
would have been without the evidence.

       The judge’s decision was also “influenced by an erroneous view of the law”
and was “outside the range of choices reasonably arising from the applicable facts
and the law.” Graner, 69 M.J. at 107. The judge effectively denied the existence of
an involuntary intoxication defense. As we discuss below, that is an erroneous view
of the law. We gather from the record that the judge’s erroneous failure to
recognize the availability and viability of this defense influenced his decision to
quash the subpoena. The judge’s declaration that Chantix was merely an explanation
for the offense, rather than evidence relevant to a defense of mental responsibility
further establishes that his decision to quash was unreasonable, given that an
explanation of a mental condition tends to make the existence of that mental
condition more or less probable. Therefore, the judge abused his discretion in
quashing the subpoena. Graner, 69 M.J. at 109; Wuterich, 67 M.J. at 77-78; Reece,
25 M.J. at 95. See also R.C.M. 703(f)(1); Mil. R. Evid. 401.

       The specter of waiver is raised by trial defense counsel’s failure to renew its
demand for production of the Pfizer and/or FDA material despite meeting all of the
conditions articulated by the military judge for its relevance prior to trial. The
questions relative to resolution of that issue revolve around whether the judge’s
denial of the defense’s motion to reconsider his decision to quash constituted a



                                          10
MACDONALD—ARMY 20091118

“definitive ruling” sufficient to alleviate defense of the burden to raise the matter
anew and whether the defense’s apparent assessment was correct that any further
effort to require production was futile. See generally United States v. Gunkle, 55
M.J. 26, 32 (C.A.A.F. 2001); United States v. Holt, 52 M.J. 173, 185-86 (C.A.A.F.
1999); United States v. Cardreon, 52 M.J. 213, 216 (C.A.A.F. 1999). See also
United States v. Andrews, 44 C.M.R. 219, 222 (C.M.A. 1972); United States v.
Richardson, 4 C.M.R. 415, 420-21 (A.B.R. 1952).

       The matter of potential waiver is unnecessary to the disposition of the issue,
however, because, as with the abuse of discretion, there is no reasonable probability
that had the evidence been produced, disclosed, and used, the outcome of the
proceeding would have been different. Put another way, we would also find any
error in quashing the subpoena harmless beyond any reasonable doubt. See
generally United States v. Coleman, 72 M.J. 184 (C.A.A.F. 2013); Morris, 52 M.J.
197-98 (citing, inter alia, United States v. Bagley, 473 U.S. 667 (1985), United
States v. Agurs, 427 U.S. 97 (1976); United States v. Eshalomi, 23 M.J. 12 (C.M.A.
1986)).

       The evidence that appellant appreciated the nature, quality and wrongfulness
of his acts is sufficiently powerful and overwhelming to establish the reliability of
the conviction in this case, and we find that enforcement of the subpoena and
discovery of the information in Pfizer’s and the FDA’s possession would not
“create[] a reasonable doubt that did not otherwise exist.” Morris, 52 M.J. at 198
(citing Eshalomi, 23 M.J. at 22).

       Appellant admitted that he intended to kill PVT Bulmer; he consciously
conceived the thought of taking PVT Bulmer’s life and intended the act by which it
was taken; he stabbed him in the neck in order to kill him; at the time of this act, he
understood his stabbing of PVT Bulmer was wrong; he asked his girlfriend, the day
before the murder, whether she would still love him if he killed someone; upon
discovery in the act, he lashed out violently against other soldiers in order to escape;
immediately after the assault, he ran to his room and undertook efforts to conceal his
responsibility for the offense; and, in an effort to perfect his escape, he lied to an
NCO and also attempted to flee from apprehension. In light of these facts and the
entire record, we find that appellant fully appreciated the nature, quality and
wrongfulness of his acts. There is no reasonable probability that anything found in
the material sought would raise a reasonable doubt about appellant’s mental
responsibility for these offenses. Id. 2

      Furthermore, we find that the government’s expert in rebuttal effectively
undermined the credibility of the defense experts’ psychiatric diagnoses of appellant

2
 We deny appellant’s motion for appellate discovery on similar grounds. See United
States v. Campbell, 57 M.J. 134, 138 (C.A.A.F. 2002).


                                           11
MACDONALD—ARMY 20091118

and that there is no reasonable probability that enforcement of the subpoena would
result in the establishment of any lack of mental responsibility on the part of
appellant by clear and convincing evidence. See UCMJ art. 50a; United States v.
Martin, 56 M.J. 97, 110 (C.A.A.F. 2001); Morris, 52 M.J. at 198.

       Viewing the evidence in the light most favorable to the defense, and in view
of the entire record, we find a reasonable possibility that the information in Pfizer’s
and/or the FDA’s possession might establish that Chantix inspired appellant to
entertain homicidal ideas and facilitate any tendency toward violent and hostile
behavior he otherwise possessed. However, the irresistible impulse defense of
insanity was long ago rejected in favor of that now housed in Article 50a. See
United States v. Frederick, 3 M.J. 230, 236-38 (C.M.A. 1977). Again, based on the
entire record, we find no reasonable possibility, let alone probability, that the
additional information sought would undermine the finding that despite any effect
from Chantix, appellant appreciated the nature, quality and wrongfulness of his acts
in stabbing and killing PVT Bulmer.

                                         Instructions

      Similarly, we find the judge’s failure to provide an instruction on the
involuntary intoxication defense, and failure to mention Chantix as something for
the panel to consider, harmless.

       The evidence presented at trial raised the involuntary intoxication defense.
The defense of involuntary intoxication is similar to that of lack of mental
responsibility in that the defense must prove by clear and convincing evidence that
he did not appreciate the nature and quality or wrongfulness of his acts, but different
in that he need not prove that he suffered a severe mental disease or defect, but
rather that he was intoxicated by some substance that results in what amounts to
legal insanity. See United States v. Hensler, 44 M.J. 184, 188 (C.A.A.F. 1996);
United States v. Craig, 3 C.M.R. 304, 311-12 (A.B.R. 1952). Of course, the
knowing result of the intoxication in this respect cannot be reasonably attributable to
appellant for the defense to apply. See id. at 311 (stating the general rule that
involuntary intoxication excuses the accused from criminal responsibility when the
accused is compelled to drink against his will, or through fraud, stratagem, or by a
physician’s prescription)

       Appellant was prescribed Chantix. Chantix is a drug the FDA warns may
inspire homicidal ideas and hostile, violent and aggressive behavior. DE I.
Appellant was prescribed Chantix prior to the most severe warnings. A defense
expert in forensic psychiatry testified that appellant suffered a Chantix-induced
psychosis and that he therefore did not appreciate the nature, quality or
wrongfulness of his acts, and the defense provided laboratory evidence that
appellant was under the influence of Chantix at the time of the offense. Therefore,



                                           12
MACDONALD—ARMY 20091118

the military judge erred by failing to give an instruction on involuntary intoxication.
See Hensler, 44 M.J. at 188. At the very least he should have incorporated mention
of Chantix into his instructions as a matter and factor for the panel to consider on
the question of mental responsibility and intent. See id.

       His refusal to provide the defense instruction was also error. The proposed
instruction was essentially correct, it was not substantially covered in the main
instructions, and the failure to give it seriously impaired its effective presentation.
See United States v. Gibson, 58 M.J. 1, 7 (C.A.A.F. 2003) (applying this three-part
analysis in determining whether failure to give a requested instruction is error).
Though the judge’s instructions on mental responsibility and intent were correct, the
defense of involuntary intoxication, as described above, is sufficiently distinct to
warrant a separate instruction. The judge’s failure to provide the instruction was
aggravated by his failure to even mention Chantix as relevant to the panel’s
consideration of the defense of lack of mental responsibility and on the question of
intent and seriously impaired the defense presentation. Just as the military judge
may not substitute his assessment of the strength of the defense for that of the panel,
he may not undermine the credibility of a defense by refusing to give those
instructions necessary to properly define the matters for the panel’s consideration.
See United States v. Stanley, 71 M.J. 60, 62 (C.A.A.F. 2012); R.C.M. 920(e)(3). See
also United States v. Watford¸ 32 M.J. 176, 178 (C.M.A. 1991).

        However, despite the error, of course, we must test for prejudice. Here, for
the reasons stated above, we are convinced that these errors were harmless because
“[i]s it clear beyond a reasonable doubt that a rational [panel] would have found the
defendant guilty absent the error.” See United States v. Baxter, 72 M.J. 507, 513
(Army Ct. Crim. App. 2013) (citing United States v. DiPaola, 67 M.J. 98, 102
(C.A.A.F. 2008)) (internal citations omitted). Even if the requested instruction were
given, it is clear beyond a reasonable doubt that the panel would have found
appellant guilty of the offenses charged in this case. Id.

       Though the particular aspect of the presentation of appellant’s defense
involving involuntary intoxication was seriously impaired, appellant’s presentation
of the mental responsibility defense was not impaired. The ultimate issue to be
decided by the panel relative to each is sufficiently equivalent to ensure the
reliability of the convictions in this case. See Hensler, 44 M.J. at 188. Appellant
cannot escape the overwhelming evidence of his mental responsibility for the
offenses he committed. United States v. Moran, 65 M.J. 178, 187-88 (C.A.A.F.
2007).

       As to whether the judge had a sua sponte duty to address involuntary
intoxication as it related to the questions of intent and premeditation, we also find
that even if such an instruction were rendered, a rational panel would have found
appellant guilty of premeditated murder, as well as the other offenses charged, in



                                          13
MACDONALD—ARMY 20091118

light of the overwhelming evidence that appellant was fully able to form the intent
necessary to be held criminally liable. See United States v. Peterson, 47 M.J. 231,
233-34 (C.A.A.F. 1997) (requiring some evidence the intoxication was of such
severity as to render appellant incapable of forming the necessary intent, as opposed
to “evidence of mere intoxication”); Hensler, 44 M.J. at 187-88. In light of the
entire record, we find nothing credible about any indication that Chantix or
appellant’s mental condition prevented or undermined his ability to form the specific
intent necessary for the crimes alleged.

       We otherwise find no error with the judge’s instructions. Appellant is
“entitled to a fair trial, not ‘an error–free, perfect trial.’” United States v. Owens, 21
M.J. 117, 126 (C.M.A. 1985) (quoting United States v. Hasting, 461 U.S. 499, 508
(1983)). We find that the record establishes a fair trial with overwhelming evidence
of appellant’s guilt. We have considered each of the errors assigned separately and
find that none warrant relief and that, assuming error in each case, such error was
harmless. We also do not find that “there is a reasonable possibility that, taken
cumulatively, those errors might have contributed to the conviction.” United States
v. Flores, 69 M.J. 366, 373 (C.A.A.F. 2011).

       In sum, and in short, we also find the evidence legally and factually sufficient
to find the appellant guilty of premeditated murder, and the other offenses alleged,
and we are not convinced by clear and convincing evidence that he lacked the mental
responsibility necessary to be held liable for these crimes. See generally United
States v. Washington, 57 M.J. 394 (C.A.A.F. 2002).

                                       Sentencing

       The defense never articulated the relevance of Chantix evidence for the
purposes of sentencing, never demanded its production in those terms, never
requested sentencing instructions including reference to Chantix, and does not argue
that the lack thereof was error before this court. We do, however, find that the
Chantix evidence was relevant to consideration of an appropriate sentence. As the
judge below acknowledged, it serves as an explanation for the crimes committed, at
least in part. By definition, it is a matter in extenuation. R.C.M. 1001(c)(1)(A).

       However, here, appellant cannot escape waiver. Nor, under the
circumstances, do we find plain error in the judge’s failure to address Chantix in his
sentencing instructions. See United States v. Powell, 49 M.J. 460, 463-65 (C.A.A.F.
1998). Reasonable tactical considerations exist to justify the defense’s decision to
refrain from pressing the matter of Chantix at sentencing sufficient to warrant this
court’s deference and respect for the defense’s decisions in the matter. United
States v. Mazza, 67 M.J. 470, 474-75 (C.A.A.F. 2009)




                                           14
MACDONALD—ARMY 20091118

       Ultimately, the evidence as a whole, including the testimony of the defense
expert psychiatrists, establishes that appellant is dangerous and susceptible to
murderous impulses. Because of this we find no reasonable probability of a
different outcome in sentence had the Pfizer/FDA information sought been produced,
and we find the sentence appropriate. See generally UCMJ art. 66(c); United States
v. Healy, 26 M.J. 394 (C.M.A. 1988); Eshalomi, 23 M.J. at 21-28; United States v.
Lanford, 6 U.S.C.M.A. 371, 20 C.M.R. 87 (1955).

                                   CONCLUSION

       On consideration of the entire record, the parties’ briefs, and oral argument,
the findings of guilty and the sentence are AFFIRMED.

      Senior Judge YOB and Judge BURTON concur.



                                               FOR THE COURT



                                               ANTHONY O. POTTINGER
                                               Chief Deputy Clerk of Court




                                          15
