              UNITED STATES NAVY-MARINE CORPS
                 COURT OF CRIMINAL APPEALS
                      WASHINGTON, D.C.

                               Before
           M.D. MODZELEWSKI, R.Q. WARD, J.R. MCFARLANE
                      Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                          ALEX J. DURAN
            PRIVATE FIRST CLASS (E-2), U.S. MARINE CORPS

                           NMCCA 201200440
                       GENERAL COURT-MARTIAL


Sentence Adjudged: 11 June 2012.
Military Judge: LtCol Stephen Keane, USMC.
Convening Authority: Commanding General, 1st Marine
Logistics Group, MarForPac, Camp Pendleton, CA.
Staff Judge Advocate's Recommendation: LtCol E.J. Peterson,
USMC.
For Appellant: LT Gabriel Bradley, JAGC, USN.
For Appellee: LT Ann Dingle, JAGC, USN.

                            31 January 2014

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                     OPINION OF THE COURT
     ---------------------------------------------------

THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

WARD, Senior Judge:

     A general court-martial composed of members with enlisted
representation convicted the appellant, contrary to his pleas,
of attempted murder, maiming, and assault upon a sentry, in
violation of Articles 80, 124, and 128, Uniform Code of Military
Justice, 10 U.S.C. §§ 880, 924, and 928. The appellant was
sentenced to 15 years’ confinement, total forfeitures, reduction
to pay grade E-1, and a dishonorable discharge. The convening
authority approved the sentence as adjudged, and, except for the
dishonorable discharge, ordered the sentence executed.

      The appellant asserts four assignments of error (AOE). 1
First, he asserts that the evidence in the case was neither
factually nor legally sufficient to support his convictions, due
to his mental illness. Second, he asserts that the military
judge erred by failing to exclude a jailhouse recording showing
that the appellant hoped to be released from confinement on an
insanity defense under MILITARY RULE OF EVIDENCE 403, MANUAL FOR COURTS-
MARTIAL, UNITED STATES (2012 ed.). Third, he asserts that his trial
defense counsel’s failure to request certain genetic testing as
potential mitigation evidence constituted ineffective assistance
of counsel. Fourth, he asserts that his Fifth Amendment
privilege against self-incrimination was violated when the
military judge allowed the Government to introduce evidence from
the appellant’s RULE FOR COURTS-MARTIAL 706, MANUAL FOR COURTS-MARTIAL,
UNITED STATES (2012 ed.) mental examination as a means of rebutting
his mental responsibility defense.

     After carefully considering the record of trial and the
submissions of the parties, we are convinced that the findings
and the sentence are correct in law and fact, and that no error
materially prejudicial to the substantial rights of the
appellant was committed. Arts. 59(a) and 66(c), UCMJ.

                            Factual Background

     Shortly after midnight on the morning of 20 October 2011,
the appellant entered the 7th Engineer Support Battalion
headquarters building on board Camp Pendleton, California, and
attacked Staff Noncommissioned Officer of the Day, Gunnery
Sergeant (GySgt) CA, by striking him with a homemade machete.
Two other Marines, Corporal (Cpl) AC and Lance Corporal (LCpl)
JP, were also standing duty that evening with GySgt CA.
However, both were asleep in the duty hut at the time of the
appellant’s attack. Upon hearing a commotion in the passageway
outside the duty hut, both Cpl AC and LCpl JP stepped to the
door only to see GySgt CA staggering back into the duty hut,
bleeding from deep lacerations on his neck and hands. Once


1
  A fifth AOE, originally numbered as AOE IV, was withdrawn by the appellant,
through counsel, in the appellant’s reply brief. The appellant cited the
Court of Appeals for the Armed Forces’ recent opinion in United States v.
Mott, 72 M.J. 319 (C.A.A.F. 2013) as the basis for his decision to withdraw
this AOE.
                                      2
inside, GySgt CA locked the door. The appellant stood outside
the duty hut for several moments before fleeing the building.

     Cpl AC and LCpl JP attempted to render first aid to GySgt
CA and called 9-1-1. Responding to the call, the Camp Pendleton
Provost Marshal Office dispatched military police to render aid
and apprehend the appellant. Military police soon discovered
the appellant in the area and pursued him on foot. The
appellant ran through a wide ditch between two buildings and,
while standing on the far side of the ditch, proceeded to taunt
military police while brandishing his homemade machete. Using
pepper spray, a military working dog, and by throwing rocks and
other heavy objects at the appellant, military police closed in,
subdued, and apprehended the appellant.

                                Discussion

1. Mental Responsibility Under R.C.M. 916(k)(1) and (2)

     In his first AOE, the appellant argues that his convictions
are factually and legally insufficient because his mental
illness prevented him from forming the specific intent to kill,
and furthermore rendered him unable to appreciate the nature and
wrongfulness of his actions. At trial, the military judge
instructed the panel on both the affirmative defense of lack of
mental responsibility (LMR) under R.C.M. 916(k)(1), and the
issue of partial mental responsibility (PMR) under R.C.M.
916(k)(2). 2 Record at 720-24. The appellant now challenges both
the sufficiency of the evidence underlying the specific intent
element required for the attempted murder offense and the
panel’s findings rejecting his LMR defense.

     We review legal and factual sufficiency of guilty findings
de novo. United States v. Washington, 57 M.J. 394, 399
(C.A.A.F. 2002). The tests for both are well-known. Id.;
United States v. Turner, 25 M.J. 324, 324-25 (C.M.A. 1987). But
the standard for reviewing the panel’s finding rejecting the

2
  The military judge correctly instructed the panel on the two-tiered voting
process required when the affirmative defense of LMR is raised. Record at
721; Appellate Exhibit XIV. R.C.M. 921(c)(4) requires that the panel must
first determine whether the prosecution has proven all elements of the
offense(s) beyond a reasonable doubt. If the panel members return any guilty
findings, then they must determine whether the accused has proven the
affirmative defense of LMR by clear and convincing evidence. If a majority
of the panel votes that the accused has proven LMR by clear and convincing
evidence, then findings of not guilty only by reason of LMR result. However,
if the panel does not return such findings, then the defense of LMR has been
rejected and the guilty findings remain.
                                     3
affirmative defense of LMR is perhaps less well-known. For
factual sufficiency, we must determine for ourselves whether the
appellant proved LMR by clear and convincing evidence. United
States v. Martin, 56 M.J. 97, 104 (C.A.A.F. 2001). However,
when we reviewthe legal sufficiency of the panel’s finding on
LMR, we apply a “substantial evidence” standard wherein we defer
to the panel’s decision so long as the record contains “‘such
relevant evidence as a reasonable mind might accept as adequate
to support a conclusion . . . .’” Id. at 106 (quoting NLRB v.
Columbian Enameling & Stamping Co., 306 U.S. 292, 300 (1939).
In such cases, “an appellate court should reject the jury
verdict [on lack of mental responsibility] . . . only if no
reasonable trier of fact could have failed to find that the
defendant’s criminal insanity at the time of the offense was
established by clear and convincing evidence.” Id. at 107
(citations and internal quotation marks omitted).

     At trial, the appellant raised and the military judge
instructed the members on the affirmative defense of LMR. The
defense presented testimony from other members of the
appellant’s unit, medical records documenting his mental health
treatment, and expert testimony from Dr. CM, a psychiatrist, who
conducted an extensive evaluation of the appellant, reviewed his
medical and mental health records, and reviewed the
investigative report and the appellant’s videotaped
interrogation. Dr. CM testified that he diagnosed the appellant
with chronic Post-Traumatic Stress Disorder, atypical psychosis,
and major depression. Record at 543-44. He testified that in
his opinion the appellant was suffering from a severe mental
disease or defect that “would have impaired [the appellant’s]
ability to appreciate the nature of his acts.” Id. at 545.
During cross-examination, however, Dr. CM conceded that his
opinion focused on the appellant’s subjective ability to
appreciate the wrongfulness of his actions. Id. at 566, 578-80,
584-85.

     In rebuttal, the Government called Dr. TG, a forensic
psychiatrist, who testified that only a major psychotic episode
would render one incapable of understanding the wrongfulness of
one’s actions. He pointed to a number of factors in support of
his opinion that the appellant did not suffer from a major
psychotic episode at the time of the incident. Id. at 593-96,
637-38. Specifically, he pointed to the appellant’s detailed
recollection of events during his ensuing interrogation and the
appellant’s taunt to military police that they should just “kill
[him] like [he] killed the gunny,” as indicative of a level of
mental awareness inconsistent with a major psychotic event. Id.

                                4
at 596. Furthermore, he cited the appellant’s actions in
fleeing the scene and evading apprehension as indicating that
the appellant understood, at a minimum, that society would view
his actions as wrongful. Id. at 641. The Government also
presented Dr. RM, the clinical psychologist who conducted the
appellant’s mental examination under R.C.M. 706. Dr. RM
testified to the results of the sanity board, specifically that
he found the appellant to be mentally competent and able to
appreciate the wrongfulness of his actions at the time of the
incident. Id. at 658-60; Prosecution Exhibit 120.

     Despite the defense evidence, the members found the
appellant guilty and further found that he failed to prove that
he lacked mental responsibility. Our task is to evaluate
whether “a reasonable jury could have found that [the] appellant
failed to meet his burden of proving by clear and convincing
evidence” that he was not mentally responsible at the time of
his offenses. Id. at 110. Based on our careful review of the
entire record, including the judge’s instructions to the
members, we conclude that a reasonable panel of members could
have found that the appellant failed to carry his burden.
Additionally, we ourselves are convinced that the appellant
failed to prove by clear and convincing evidence that he lacked
mental responsibility at the time of his offenses. Id. at 104.

     Finally, we are convinced beyond a reasonable doubt that
the appellant indeed formed the specific intent to kill GySgt
CA, and we conclude appellant’s guilty findings are both legal
and factually sufficient. Turner, 25 M.J. at 324-25.

2. The Telephone Call From the Brig and MIL. R. EVID. 403

     In his second AOE, the appellant asserts that the military
judge erred when he admitted over the defense’s MIL. R. EVID. 403
objection a recording of a telephone call the appellant made at
the Camp Pendleton Brig while awaiting trial.

     While in pretrial confinement, the appellant made a series
of calls to a local motorcycle shop where his motorcycle had
been repaired. PE 105. During one of the calls, the appellant
tells “Jimmy,” the owner of the shop, that he expects to be
released soon because he was going to plead “temporary
insanity.” Id. at Track 2, 2:29 – 2:41. This phone call
preceded the appellant’s evaluation by his expert, Dr. CM.

     At trial, defense counsel objected citing a lack of
relevance and MIL. R. EVID. 403. Record at 643. After a brief

                                5
discussion between the military judge and counsel, trial defense
counsel conceded that “[his] objection is more based on 403.”
Id. He then focused on the potential for confusing the
appellant’s purported awareness of his mental responsibility
defense at trial with the separate but “very important question
which is whether or not he was – he was mentally responsible for
what happened at the time because of a severe mental disease or
defect. And I think when you – when you start blending those
two things, you’re actually confusing the members.” Id. at 644.

     We review an application of MIL. R. EVID. 403 for an abuse of
discretion. United States v. Manns, 54 M.J. 164, 166 (C.A.A.F.
2000). When a military judge conducts a proper MIL. R. EVID. 403
balancing on the record, we will not overturn that decision
absent a clear abuse of discretion. United States v. Stephens,
67 M.J. 233, 235 (C.A.A.F. 2009). But “[w]here the military
judge is required to do a balancing test under M.R.E. 403 and
does not sufficiently articulate his balancing on the record,
his evidentiary ruling will receive less deference from this
court.” United States v. Berry, 61 M.J. 91, 96 (C.A.A.F. 2005).
“[T]he term ‘unfair prejudice’ in the context of M.R.E. 403
‘speaks to the capacity of some concededly relevant evidence to
lure the factfinder into declaring guilt on a ground different
from proof specific to the offense charged.’” United States v.
Collier, 67 M.J. 347, 354 (C.A.A.F. 2009) (quoting Old Chief v.
United States, 519 U.S. 172, 180 (1997)).

     After agreeing with the trial counsel that the evidence
tended to show that the appellant may be fabricating or
exaggerating his mental symptoms at trial, the military judge
then balanced the probative value against any potential for
confusion. Disagreeing with defense counsel, he concluded that
the evidence would not cause any confusion for the members in
light of the instructions he would provide on mental
responsibility. Id. at 645. As he articulated his MIL. R. EVID.
403 balancing on the record, we exercise “‘great restraint’” in
reviewing his ruling. United States v. Harris, 46 M.J. 221, 225
(C.A.A.F. 1997) (citing Government of the Virgin Islands v.
Archibald, 987 F.2d 180, 186 (3d Cir. 1993)). We conclude that
the military judge did not abuse his discretion in admitting
this evidence. However, even if we adopted the less deferential
standard of review urged by the appellant, our conclusion would
not change.




                                6
     Even affording the military judge only “some deference,” 3 we
conclude, as did the military judge, that the probative value of
this evidence was high: a reasonable inference is that the
appellant understood prior to his examination by his expert that
being found to be “insane” could result in his speedy release
from confinement. This probative value added strength to the
Government’s attack on the credibility of the affirmative
defense since the appellant’s telephone call preceded his mental
evaluation by his expert witness. Indeed, the trial counsel
specifically referenced this during closing argument: “[t]hey
want you to base your decision on his mental state on the report
of Dr. [CM], who primarily based all of his analysis on that six
and a half-hour interview where [the appellant] knew he was
being evaluated for an insanity defense that would get him out
of the brig.” Record at 710-11. The evidence was central to
the Government’s efforts to rebut the accused’s affirmative
defense of lack of mental responsibility.

     We disagree with the appellant’s current contention that
this evidence is “probative of nothing” or, at most, negligibly
probative of the appellant’s mental capacity to stand trial. We
also note that, unlike at trial, the appellant now also focuses
his argument on unfair prejudice instead of confusion. However,
no showing was made before the trial court as to why this
evidence was unfairly prejudicial. We find nothing in the
record to suggest that this evidence would cause the panel to
decide the case improperly, or emotionally, or cause the panel
to confuse mental capacity at trial with mental responsibility
at the time of the offenses. 4 Balancing the centrality of this
3
  See Manns, 54 M.J. at 166 (holding that appellate courts grant less
deference when a military judge conducts a MIL. R. EVID. 403 balancing test but
fails to articulate the analysis on the record).
4
  During closing argument, trial counsel referenced the appellant’s telephone
call as evidence undermining the credibility of Dr. CM’s evaluation of the
appellant and resulting expert opinion. Trial defense counsel did not
object. However, following trial counsel’s closing argument, the military
judge sua sponte raised the issue of a limiting instruction because he did
not “want the members to think or come away with the impression that the
accused necessarily would be immediately released from the brig if this
insanity defense prevails.” Record at 712. After a brief discussion and
with the concurrence of both parties, the military judge recalled the members
and advised them that “[they are] not to consider or speculate as to whether
or not the [appellant] will or will not be released from confinement if [the
members] find to elect mental responsibility for any defense.” Id. at 714.
Contrary to the appellant’s characterization, we do not find the military
judge’s concern and ensuing instruction to be evidence of potential confusion
or prejudice relating from this evidence. We presume that the members, in
the absence of any contrary evidence, followed this instruction and the
military judge’s later instructions pertaining to mental responsibility.
                                       7
evidence to the Government’s case against the danger of unfair
prejudice or confusion of the issues, we decline to disturb the
military judge’s ruling even under the less deferential review
advocated by the appellant.

3. Ineffective Assistance of Counsel and Genetic Testing

     In his third AOE, the appellant claims that he was denied
effective assistance of counsel when his trial defense counsel
failed to pursue behavioral genetic testing to present in
sentencing. He avers that certain genetic testing for the “low-
activity [Monoamine Oxidase (MAOA)] gene” when combined with
certain environmental factors, may have revealed that he was
genetically predisposed to violence. Appellant’s Brief of 14
Mar 2013 at 27-30. Without said genetic testing, he argues, his
case in mitigation was negatively impacted.

     We analyze the appellant's claim of ineffective assistance
of counsel under the test outlined by the Supreme Court in
Strickland v. Washington, 466 U.S. 668 (1984). To prevail on
such a claim “an appellant must demonstrate both (1) that his
counsel’s performance was deficient, and (2) that this
deficiency resulted in prejudice.” United States v. Green, 68
M.J. 360, 361-62 (C.A.A.F. 2010) (citing Strickland, 466 U.S. at
687) (additional citation omitted).

     We begin by presuming that trial defense counsel provided
effective assistance throughout the trial unless there is “a
showing of specific errors made by defense counsel that were
unreasonable under prevailing professional norms." United v.
Davis, 60 M.J. 469, 473 (C.A.A.F. 2005) (citation omitted); see
also Strickland, 466 U.S. at 687. The tactical and strategic
choices made by defense counsel need not be perfect; instead,
they must be judged by a standard ordinarily expected of
fallible lawyers. In this regard, an appellant “must surmount a
very high hurdle” to prevail on a claim of ineffective
assistance of counsel. United States v. Smith, 48 M.J. 136, 137
(C.A.A.F. 1998) (citation and internal quotation marks omitted).

     When assessing Strickland's first prong, courts “must
indulge a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance[.]” 466
U.S. at 689 (citation omitted). Here, we are not convinced that
the behavioral genetic testing cited by the appellant is part of
“reasonable professional assistance” and that failure to pursue



                                8
it therefore amounted to deficient performance under Strickland. 5
Accordingly, we decline the appellant’s invitation to create a
presumption that defense counsel must seek behavioral genetic
testing in cases involving violent crime or risk a finding of
ineffective assistance. We agree with the Government that
“[t]he science on the connection between this MAOA gene and
aggression is not settled.” Government Answer of 15 Jul 2013 at
23. Indeed, the main scientist cited by the appellant in his
brief suggests that the practical value of this field of
research may not be realized for “10-15 years.” Deborah W.
Denno, Courts’ Increasing Consideration of Behavioral Genetics
Evidence in Criminal Cases: Results of a Longitudinal Study,
2011 Mich. St. L. Rev. 967, 975 fn. 46 (2011) (quoting Dr.
William Bernet, M.D.).

     We also note the considerable efforts that trial defense
counsel made in presenting the mental health of the appellant
first, both as an affirmative defense and, subsequently, as
mitigation in sentencing. As explained infra, the defense
called their expert witness, Dr. CM, who testified at length on
the appellant’s mental health background, history, and treatment
before concluding that the appellant’s ability to appreciate the
nature and quality or wrongfulness of his acts was “impaired.”
Record at 503-45. As the military judge later instructed the
panel, 6 Dr. CM’s extensive testimony was also considered by the

5
  In his brief, the appellant argues that state and federal courts are
increasingly recognizing behavioral genetic evidence in criminal trials and
notes that three federal cases have found trial defense counsel ineffective
“when they failed to investigate potentially mitigating behavioral genetics
evidence.” Appellant’s Brief at 33-34. In support, the appellant cites
three 9th Circuit capital cases that reviewed the denial of habeas petitions
and held that trial defense counsel’s failure to adequately investigate and
present mental health evidence in mitigation fell below prevailing
professional norms under ABA guidelines. Dietrich v. Ryan, 619 F.3d at 1053-
55, vacated and remanded sub nom Ryan v. Detrich, 131 S. Ct. 2449 (2011);
Hamilton v. Ayers, 583 F.3d 1100, 1129-30 (9th Cir. 2009); Jones v. Ryan, 583
F.3d 626, 637-40 (9th Cir. 2009), vacated and remanded sub nom Ryan v. Jones,
131 S. Ct. 2091 (2011). We believe that these cases stand for the broader
proposition that trial defense counsel, in capital cases, must reasonably
investigate and present evidence of an accused’s mental health in mitigation,
and not for the proposition espoused by the appellant, that behavioral
genetics testing is the “prevailing professional norm” in cases involving a
violent offender.
6
  In instructing the panel on sentencing, the military judge advised that
“[a]lthough you have found the [appellant] guilty of the offenses charged
and, therefore mentally responsible you should consider as a mitigating
circumstance evidence tending to show that the [appellant] was suffering from
a mental condition.” Id. at 789.


                                      9
members in sentencing. Moreover, defense counsel recalled Dr.
CM in sentencing to testify as to the appellant’s amenability to
treatment and rehabilitation. Id. at 764-68.

     We conclude that the appellant has failed to meet his
burden of demonstrating “a showing of specific errors. . . by
defense counsel that were unreasonable under prevailing
professional norms." Davis, 60 M.J. at 473.

4. R.C.M. 706 and the Fifth Amendment

     The appellant last asserts that his Fifth Amendment
privilege against self-incrimination was violated when the
Government introduced his R.C.M. 706 evaluation in order to
rebut his LMR defense. At trial, the military judge admitted
over defense objection the rebuttal testimony of Dr. RM, a
clinical psychologist who conducted the appellant’s R.C.M. 706
mental examination, and the “short-form” summary of his R.C.M.
706 report. Record at 658-60; PE 120. Dr. RM. testified that,
in his clinical opinion, the appellant was mentally competent
both at the time of the offenses and at trial. Record at 658. 7

     Although MIL. R. EVID. 302(b)(1) provides that no self-
incrimination privilege exists when an accused introduces
statements or derivative evidence made by an accused during an
R.C.M. 706 examination, the appellant seeks to preserve this
issue in light of the then recent grant of certiorari by the
United States Supreme Court in Kansas v. Cheever, No. 12-609,
Order Granting Certiorari (U.S. Feb. 25, 2013).

     On 11 December 2013, the Supreme Court decided Cheever. In
that decision, the Supreme Court addressed the question of
“whether the Fifth Amendment prohibits the government from
introducing evidence from a court-ordered mental evaluation of a
criminal defendant to rebut that defendant’s presentation of
expert testimony in support of a defense of voluntary
intoxication.” Cheever, 134 S. Ct. at 598. In a unanimous
decision, the Supreme Court reiterated its earlier holding in
Buchanan v. Kentucky, 483 U.S. 402 (1987): 8 “The rule of
7
  Dr. RM briefly explained the testing and evaluation conducted during the
appellant’s R.C.M. 706 board and he testified to the board’s ultimate
findings. However, he did not testify as to any statements made by the
appellant.
8
  In Buchanan, the Supreme Court held that that Fifth Amendment did not
prohibit the prosecution from introducing evidence from a court-ordered
mental examination of the accused for the limited purpose of rebutting the
affirmative defense of extreme emotional disturbance. 483 U.S. at 423-24.
                                     10
Buchanan, which we reaffirm today, is that where a defense
expert who has examined the defendant testifies that the
defendant lacked the requisite mental state to commit an
offense, the prosecution may present psychiatric evidence in
rebuttal.” Cheever, 134 S. Ct. at 601.

     Accordingly, we conclude that the military judge’s
admission of the R.C.M. 706 board’s findings, introduced for the
limited purpose of rebutting expert testimony offered by the
appellant in support of his LMR defense, did not violate the
appellant’s right against self-incrimination.

                           Conclusion

     For the reasons stated above, the findings and the sentence
are affirmed.

     Chief Judge MODZELEWSKI and Judge MCFARLANE concur.

                                For the Court



                                R.H. TROIDL
                                Clerk of Court




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