                        UNITED STATES, Appellee

                                     v.

                        Richard R. MOTT, Seaman
                          U.S. Navy, Appellant

                              No. 12-0604
                       Crim. App. No. 200900115

       United States Court of Appeals for the Armed Forces

                        Argued January 23, 2013

                         Decided July 8, 2013

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


                                  Counsel

For Appellant:   Lieutenant Ryan C. Mattina, JAGC, USN (argued).

For Appellee: Major William C. Kirby, USMC (argued); Colonel
Stephen C. Newman, USMC, and Brian K. Keller, Esq. (on brief);
Colonel Kurt J. Brubaker, USMC.

Military Judges:    Moira Modzelewski and Daniel Daugherty




        THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Mott, No. 12-0604/NA


         Chief Judge BAKER delivered the opinion of the Court.

         Contrary to his plea, Appellant was convicted at a general

court-martial with members of attempted premeditated murder in

violation of Article 80, Uniform Code of Military Justice

(UCMJ), 10 U.S.C. § 880 (2006).      The adjudged and approved

sentence included confinement for nine years, a dishonorable

discharge and reduction to pay grade E-1. 1    The United States

Navy-Marine Corps Court of Criminal Appeals (CCA) affirmed.

United States v. Mott, No. 200900115, 2012 CCA LEXIS 157, 2012

WL 1514770 (N-M. Ct. Crim. App. Apr. 30, 2012) (unpublished).

We granted review on the following two issues:

    I.     A LACK OF MENTAL RESPONSIBILITY DEFENSE EXISTS WHEN A
           MENTALLY DISEASED ACCUSED CANNOT APPRECIATE THE
           WRONGFULNESS OF HIS CONDUCT. HERE, EXPERTS TESTIFIED
           THAT APPELLANT’S PARANOID SCHIZOPHRENIA AND SEVERE
           DELUSIONS CREATED HIS SUBJECTIVE BELIEF THAT STABBING THE
           VICTIM WAS JUSTIFIED. BUT THE MILITARY JUDGE AND NMCCA
           ADOPTED AN OBJECTIVE STANDARD FOR “WRONGFULNESS.” WHAT
           IS THE APPROPRIATE STANDARD IN DETERMINING WHETHER AN
           ACCUSED CAN APPRECIATE THE WRONGFULNESS OF HIS CONDUCT?

    II.    UNDER THE FIFTH AMENDMENT, AN ACCUSED’S STATEMENT TO
           INVESTIGATORS IS ADMISSIBLE ONLY IF IT WAS OBTAINED WITH
           A VOLUNTARY, KNOWING, AND INTELLIGENT WAIVER WHERE THE
           ACCUSED UNDERSTANDS HIS RIGHTS AND THE CONSEQUENCES OF
           WAIVING THEM. HERE, EXPERT WITNESSES TESTIFIED THAT
           APPELLANT COULD NOT UNDERSTAND HIS RIGHTS OR THE

1
  Appellant was initially convicted in 2008 of attempted
premeditated murder in violation of Article 80, UCMJ, 10 U.S.C.
§ 880 (2006), and sentenced to twelve years of confinement. On
November 24, 2009, the CCA set aside the findings and sentence
and ordered a rehearing. United States v. Mott, No. 200900115,
2009 CCA LEXIS 424, 2009 WL 4048019 (N-M. Ct. Crim. App. Nov.
24, 2009) (unpublished).


                                    2
United States v. Mott, No. 12-0604/NA


       CONSEQUENCES OF WAIVING THEM BECAUSE OF HIS SEVERE MENTAL
       DISEASE. DID THE MILITARY JUDGE ERR BY ADMITTING THE
       STATEMENT?

In short, we conclude that the military judge did not err in his

instructions in adopting an objective standard for

“wrongfulness,” but did abuse his discretion by admitting

Appellant’s statement without first contextually analyzing

whether Appellant could and did knowingly and intelligently

waive his right to counsel.    See Edwards v. Arizona, 451 U.S.

477, 484 (1981) (“[T]he voluntariness of a consent or an

admission on the one hand, and a knowing and intelligent waiver

on the other, are discrete inquiries.”).

                              BACKGROUND

     On March 6, 2007, Seaman Recruit (SR) JG reported for duty

as a crew member aboard the USS CAPE ST. GEORGE (CG-71).     2009

CCA LEXIS 424, at *2, 2009 WL 4048019, at *1.    Appellant and JG

had never met before.   2012 CCA LEXIS 157, at *4, 2012 WL

1514770, at *2.   On March 7, Appellant was at an office computer

when he thought he overheard JG say to another crew member that

he was “‘going to have to kill MOTT’” and that he was going to

kill Appellant’s family.   Later that day Appellant purchased a

Winchester lock blade folding knife from the base exchange.      The

following morning, March 8, Appellant was working on the mess

deck of the berthing barge being used by the ship’s crew when he

noticed JG sitting at a table.    Appellant approached JG from


                                  3
United States v. Mott, No. 12-0604/NA


behind, slashed his throat and began repeatedly stabbing him in

the chest and abdomen while repeatedly shouting “you raped me”

or “he raped me.”   Appellant was subdued by nearby crew members

and was taken into custody.   2012 CCA LEXIS 157, at *3, 2012 WL

1514770, at *1; 2009 CCA LEXIS 424, at *2, 2009 WL 4048019, at

*1.   That same day, he provided a sworn statement to Naval

Criminal Investigative Service (NCIS) after a proper rights

advisement under Article 31(b), UCMJ, 10 U.S.C. § 831(b) (2006).

2012 CCA LEXIS 157, at *3, 2012 WL 1514770, at *1.    JG survived

the attack but suffered serious and permanent injuries.

      The bizarre content of Appellant’s statement prompted the

convening authority to order a mental health examination under

Rule for Courts-Martial (R.C.M.) 706 on March 15, 2007.    This

examination concluded that Appellant suffered from “severe”

“[s]chizophrenia, paranoid type” at the time of the offense and

that he was “incompetent to stand trial.” 2   Even after months of

psychiatric treatment, as of January 2008 Appellant’s residual


2
  Among other symptoms, Appellant experienced auditory
hallucinations of his mother’s voice, visual hallucinations
including visions of a young Andrew Carnegie as an angel, and
delusions including the belief that a senior al Qaeda official
launched the 9/11 attacks because SN Mott had killed the
terrorist’s two sons after they had raped SN Mott. Appellant’s
shipmates gave him the nickname “Murder Mott” because he talked
so much about murdering people. While Appellant was being
treated at the Federal Medical Center at Butner, Appellant was
documented “rinsing his food before eating it” and
“manufactur[ing] a ‘gas mask’ from a beverage carton and strips
of cloth.”


                                 4
United States v. Mott, No. 12-0604/NA


delusional ideation and “significantly compromised cognitive

capacities” prevented him from having a reality-based

understanding of his legal situation.   Malingering -- that is,

faking mental illness -- was determined by the R.C.M. 706

examination to be “very unlikely”:   if anything, Appellant

exhibited “a hesitancy to admit to problems of a psychological

nature.”   A subsequent R.C.M. 706 examination was conducted on

May 19, 2008.   The examining psychiatrist concluded that, at the

time of the offense, Appellant believed that “he was acting in

self-defense,” that “the only way to stop [JG from killing him]

was to attack [JG],” and that his actions were “justified and

not wrong.”   There is no dispute between the parties that at the

time of his NCIS interview, Appellant was suffering from

paranoid schizophrenia.   2012 CCA LEXIS 157, at *8, 2012 WL

1514770, at *3.

     As part of Appellant’s paranoid delusion at the time of the

offense, he believed that sometime in the summer of 2003, a

group of up to fifteen men had accosted him while he was at his

girlfriend’s apartment and gang raped him.   2009 CCA LEXIS 424,

at *3, 2009 WL 4048019, at *1.   He further believed that JG had

been one of his assailants.   Appellant was apparently

hallucinating when he thought he heard JG threaten his life in

the office on March 7, 2007, the day before the attack.    Much of




                                 5
United States v. Mott, No. 12-0604/NA


Appellant’s delusion is contained in his original statement to

investigators on March 8, 2007.

       At trial, Appellant sought unsuccessfully to suppress his

statement to NCIS asserting that the waiver of his rights was

not knowing and intelligent and therefore invalid because of his

delusional state at the time.    During the merits phase of the

trial, the defense called two forensic psychiatrists who

testified regarding their evaluations of Appellant and the

delusional system Appellant had built around himself at the time

of the offense.    Each adhered to his view that because of

Appellant’s severe paranoid schizophrenia, Appellant did not

appreciate the wrongfulness of his actions at the time.    One

psychiatrist, Dr. Simmer, testified that he was aware that five

other mental health professionals, besides himself, had examined

Appellant, and that he was not aware that any of them had

returned findings inconsistent with his own.

       Appellant’s defense at trial was lack of mental

responsibility, and the military judge instructed on this

affirmative defense. 3   During deliberations, one of the members


3
    The military judge gave the following instruction:

       There are indications from the evidence that you are
       required to decide the issue of the accused’s sanity at the
       time of the offense.

        . . . .



                                  6
United States v. Mott, No. 12-0604/NA


specifically asked, “What is the legal definition of

‘wrongfulness of his conduct?’”   Over defense objection, the

military judge instructed the members as follows:

     If the accused was able to appreciate the nature, and
     quality, and the wrongfulness of (his) conduct, (he) is
     criminally responsible; and this is so, regardless of
     whether the accused was then suffering from a severe mental
     disease or defect, and regardless of whether or not (his)
     own personal moral code was violated by the commission of
     the offense.

     . . . .

     When the law speaks of wrongfulness[,] the law does not
     mean to permit the individual to be his own judge of what
     is right or wrong. What is right or wrong is judged by
     societal standards. The standard focuses on the accused’s
     ability to appreciate that his conduct would be contrary to
     public or societal standards.



     The accused is presumed to be mentally responsible. .
     . .

     If you determine that, at the time of the offenses . . .
     the accused was suffering from a severe mental disease
     or defect, then you must decide whether, as a result of
     that severe mental disease or defect, the accused was
     unable to appreciate the nature and quality or
     wrongfulness of his conduct.

     If the accused was able to appreciate the nature and
     quality or the wrongfulness of his conduct, he is
     criminally responsible; and this is so regardless of
     whether the accused was then suffering from a severe
     mental disease or defect.

     On the other hand, if the accused had a delusion of
     such a nature that he was unable to appreciate the
     nature and quality or wrongfulness of his acts, the
     accused cannot be held criminally responsible for his
     acts, provided such a delusion resulted from a severe
     mental disease or defect.



                                  7
United States v. Mott, No. 12-0604/NA


Emphasis added.   Defense counsel argued at trial that “the

accused not being able to appreciate it as contrary to public or

societal standards, is not the same thing as the accused not

realizing other people may perceive it as wrong.”    Similarly,

before this Court, Appellant asserts that the instruction given

by the military judge provided a purely objective standard for

wrongfulness.   He urges this Court to adopt a standard that

incorporates the subjective beliefs of the accused in

determining wrongfulness.

                              DISCUSSION

I.   Jury Instructions on Wrongfulness

     The affirmative defense of lack of mental responsibility

requires the accused to prove, by clear and convincing evidence,

that at the time of the offense, (1) the accused suffered from a

“severe mental disease or defect,” and (2) as a result of that

mental disease or defect, the accused was “unable to appreciate”

either (a) the “nature and quality” of his acts, or (b) the

“wrongfulness” of his acts.    Uniform Code of Military Justice,

Article 50a, UCMJ, 10 U.S.C. § 850a(a) (2006).    Article 50a,

UCMJ, is “substantively identical” to the federal civilian

insanity defense, enacted in the Insanity Defense Reform Act of

1984 (IDRA), Pub. L. No. 98-473, sec. 402, § 20, 1837, 2057

(codified as amended at 18 U.S.C. § 17 (2006)).




                                  8
United States v. Mott, No. 12-0604/NA


     This Court previously considered the insanity defense in

United States v. Martin, 56 M.J. 97 (C.A.A.F. 2001).   As noted

in Martin, the terms “nature and quality” and “wrongfulness”

were part of the insanity test laid out in M’Naghten’s Case,

(1843) 8 Eng. Rep. 718 (H.L.):

          [T]o establish a defence on the ground of
     insanity, it must be clearly proved that, at the time
     of the committing of the act, the party accused was
     labouring under such a defect of reason, from disease
     of the mind, as not to know the nature and quality of
     the act he was doing; or, if he did know it, that he
     did not know he was doing what was wrong.

8 Eng. Rep. at 722 (emphasis added).    In Martin, 56 M.J. at 108,

this Court favorably cited the following explanation of “nature

and quality” and “wrongfulness”:

          The first portion relates to an accused who is
     psychotic to an extreme degree. It assumes an accused
     who, because of mental disease, did not know the
     nature and quality of his act; he simply did not know
     what he was doing. For example, in crushing the skull
     of a human being with an iron bar, he believed that he
     was smashing a glass jar. The latter portion of
     M’Naghten relates to an accused who knew the nature
     and quality of his act. He knew what he was doing; he
     knew that he was crushing the skull of a human being
     with an iron bar. However, because of mental disease,
     he did not know that what he was doing was wrong. He
     believed, for example, that he was carrying out a
     command from God.

2 Charles E. Torcia, Wharton’s Criminal Law § 101, at 17 (15th

ed. 1994).

     However, in enacting the IDRA and Article 50a, UCMJ,

Congress sought to broaden the insanity defense test from



                                   9
United States v. Mott, No. 12-0604/NA


M’Naghten’s “know” to the Model Penal Code’s “appreciate.”      See

Martin, 56 M.J. at 107-8; United States v. Meader, 914 F. Supp.

656, 658 n.2 (D. Me. 1996); 4   United States v. Freeman, 357 F.2d

606, 623 (2d Cir. 1966) (“The choice of the word ‘appreciate,’

rather than ‘know’ in the first branch of the test also is

significant; mere intellectual awareness that conduct is

wrongful, when divorced from appreciation or understanding of

the moral or legal import of behavior, can have little

significance.”).

       The UCMJ does not define “wrongfulness of the acts.”   The

meaning of appreciating “wrongfulness” was analyzed at length in

the original M’Naghten’s Case and analyzed more recently in the



4
    As explained in Meader:

            Congress adopted the language of the Model Penal
       Code rather than the M’Naghten rule (“appreciate” vs.
       “know”) and thereby broadened the inquiry. Model
       Penal Code § 4.01 comment 2 at 166 (“Know” leads to an
       excessively narrow focus on “a largely detached or
       abstract awareness that does not penetrate to the
       affective level.”); S. Rep. No. 307, 97th Cong., 1st
       Sess. 100-01 (1981) (Model Penal Code “uses the more
       affective term ‘appreciate’ for the more coldly
       cognitive ‘know’ of M’Naghten.”), referred to in S.
       Rep. No. 225, 98th Cong., 2d Sess. (1984), reprinted
       in 1984 U.S.C.C.A.N. 3182, 3404 n.1; accord ABA
       Criminal Justice Mental Health Standards 7-6.1 at 343-
       44 (1989).

914 F. Supp. at 658 n.2.



                                 10
United States v. Mott, No. 12-0604/NA


context of the IDRA in United States v. Ewing, 494 F.3d 607 (7th

Cir. 2007).   Like the court in Ewing, we infer that wrongfulness

carries the same meaning in the IDRA and Article 50a, UCMJ, as

in M’Naghten’s Case and its accompanying common law.    See 494

F.3d at 618; NLRB v. Amax Coal Co., 453 U.S. 322, 329 (1981)

(“Where Congress uses terms that have accumulated settled

meaning under either equity or the common law, a court must

infer, unless the statute otherwise dictates, that Congress

means to incorporate the established meaning of these terms.”).

     In M’Naghten’s Case, the judges of the Queen’s Bench

responded to the questions of the House of Lords about insanity

and mental responsibility for criminal conduct.   The judges

explained that the jury should determine whether, at the time of

committing the alleged act, the accused “knew the difference

between right and wrong . . . in respect to” the charged act.      8

Eng. Rep. at 722-23.   The jury instruction is for knowing “right

and wrong” rather than knowing that the act violates the law, so

as to not confuse the jury by suggesting that the accused must

have “actual knowledge of the law of the land.”   Id.

“Wrongfulness” in the context of the M’Naghten rule thus has two

components:   (1) that “the accused was conscious that the act

was one which he ought not to do,” and (2) that the “act was at

the same time contrary to the law of the land.”   Id.   As Ewing

explains, the “relevant inquiry . . . was not a defendant’s


                                11
United States v. Mott, No. 12-0604/NA


actual knowledge of the criminal law under which he was accused,

but rather whether the defendant understood the difference

between right and wrong.”   Ewing, 494 F.3d at 619.    In short:

      M’Naghten’s Case demonstrates that “wrongfulness” is
      substituted for “criminality” not to create two (or
      more) distinct moral codes by which a defendant’s
      conduct could be judged, but rather to ensure that the
      inquiry remains focused on a defendant’s ability to
      understand wrongfulness, rather than his actual
      knowledge of the law.

      Id. at 620 n.6.

      The M’Naghten court also considered the effect of delusions

on mental responsibility. The court explained that a person

under the influence of a delusion “must be considered in the

same situation as to responsibility as if the facts with respect

to which the delusion exists were real.”   8 Eng. Rep. at 723.

For example:

      [I]f under the influence of his delusion he supposes
      another man to be in the act of attempting to take
      away his life, and he kills that man, as he supposes,
      in self-defence, he would be exempt from punishment.
      If his delusion was that the deceased had inflicted a
      serious injury to his character and fortune, and he
      killed him in revenge for such supposed injury, he
      would be liable to punishment.

Id.

      On appeal, Appellant challenges the military judge’s

instructions to the members regarding the meaning of

“wrongfulness” for purposes of the defense of lack of mental

responsibility.   Appellant urges us to find that “wrongfulness”



                                12
United States v. Mott, No. 12-0604/NA


in Article 50a, UCMJ, means a subjective wrongfulness as

determined by the accused’s sense of right and wrong.   Appellant

finds support in two federal appellate cases -– one of which was

written before the adoption of the IDRA and the other relying

heavily on the former.   See United States v. Segna, 555 F.2d

226, 232-33 (9th Cir. 1977) (describing three interpretations of

wrongfulness as (1) “legally wrong, or contrary to law,” (2)

“contrary to public morality,” and (3) “subjective” or “contrary

to one’s own conscience,” and adopting the third “subjective”

test (internal quotation marks omitted)); United States v.

Dubray, 854 F.2d 1099, 1101 (8th Cir. 1988) (“Dubray asked that

the jury be instructed that ‘wrongfulness’ implies moral, rather

than criminal, wrongdoing, and proposed the verdict director

drawing this distinction discussed in [Segna].    Like the Ninth

Circuit, our Court recognizes that a defendant’s delusional

belief that his criminal conduct is morally justified may

establish an insanity defense under federal law, even where the

defendant knows that the conduct is illegal.”).

     “Whether a panel was properly instructed is a question of

law” which we review de novo.   United States v. Garner, 71 M.J.

430, 432 (C.A.A.F. 2012) (quoting United States v. Ober, 66 M.J.

393, 405 (C.A.A.F. 2008) (internal quotation marks omitted).

     As in M’Naghten’s Case, courts examining the issue since

the enactment of the IDRA and Article 50a, UCMJ, have found that


                                13
United States v. Mott, No. 12-0604/NA


“wrongfulness” should be determined using an objective standard.

See, e.g., United States v. Ewing, 494 F.3d 607, 621 (7th Cir.

2007) (“We conclude that wrongfulness for purposes of the

federal insanity defense statute is defined by reference to

objective societal or public standards of moral wrongfulness,

not the defendant’s subjective personal standards of moral

wrongfulness.”); United States v. Cuebas, 415 F. App’x 390, 396-

97 (3d Cir. 2011) (unpublished) (“The term ‘wrongful’ means

contrary to or against generally-accepted standards of right and

wrong . . . . ‘Evidence that the defendant knew and understood

that his conduct was against the law may be considered . . . in

determining whether the defendant appreciated that his conduct

was contrary to public morality.’”); State v. Singleton, 48 A.3d

285, 295-96 (N.J. 2012) (“[A] majority of states following the

M’Naghten test have interpreted ‘wrong’ as encompassing legal as

well as moral wrong.”); People v. Serravo, 823 P.2d 128, 137

(Colo. 1992) (en banc) (“We believe that the better reasoned

interpretation of ‘wrong’ in the term ‘incapable of

distinguishing right from wrong’ refers to a wrongful act

measured by societal standards of morality.”); see also State v.

Crenshaw, 659 P.2d 488, 493 (Wash. 1983) (“[I]n discussing the

term ‘moral’ wrong, it is important to note that it is society’s

morals, and not the individual’s morals, that are the standard

for judging moral wrong under M’Naghten.”); State v. Hamann, 285


                               14
United States v. Mott, No. 12-0604/NA


N.W.2d 180, 183 (Iowa 1979) (“Those states which believe the

right or wrong test should be conducted with a view to moral

right or wrong are quite uniform in rejecting a subjective

test.”); State v. Corley, 495 P.2d 470, 473 (Ariz. 1972) (“We

find no authority upholding the defendant’s position that one

suffering from a mental disease could be declared legally insane

if he knew that the act was morally and legally wrong but he

personally believed that act right.”); People v. Rittger, 355

P.2d 645, 653 (Cal. 1960) (“The fact that a defendant claims and

believes that his acts are justifiable according to his own

distorted standards does not compel a finding of legal insanity.

This is necessarily so if organized society is to formulate

standards of conduct and responsibility deemed essential to its

preservation or welfare, and to require compliance, within

tolerances, with those standards.”).

     Society formally expresses its determinations of “right and

wrong” and “public morality” through law.    See State v. Worlock,

569 A.2d 1314, 1321 (N.J. 1990) (“Law is largely the

crystallization of societal morals.    Rarely would an allegedly

illegal act not also be wrongful morally.”).    Thus, wrongfulness

is based on the law, even if it does not require the accused to

have actual knowledge of the law. 5   While “appreciate” is


5
  The Supreme Court of New Jersey in Worlock and other courts
have considered whether there is a difference between legal and


                                15
United States v. Mott, No. 12-0604/NA


subjective, “wrongfulness” must be objective.    Cf. State v.

Cole, 755 A.2d 202, 210-11 (Conn. 2000) (noting that the issue

in the case was not whether the homicide was wrongful, but

rather whether the accused failed to understand it to be

wrongful).    Thus, “appreciating wrongfulness” is the accused’s

ability to understand and grasp that his conduct violates

society’s essential rules, and is supported by an accused’s

understanding that his conduct violated the law, and is

contradicted by evidence that -- if the facts of the accused’s

delusions were true -- then his conduct would not violate the

law.

       Therefore, like the majority of federal and state appellate

courts who have addressed the issue, we adopt an “objective”

standard for determining “wrongfulness” 6 in the context of




moral wrong for the purpose of applying the insanity defense.
569 A.2d at 1320-21; see also People v. Schmidt, 110 N.E. 945,
949-50 (N.Y. 1915). The Worlock court concluded that the only
generally recognized distinction is the “command from God”
exception. 569 A.2d at 1321. However, like the Worlock court,
we need not ultimately define the distinction, if any, between
legal and moral wrong, as in this case Appellant argued that he
acted in perceived self-defense, and that Appellant’s mental
illness prevented him from appreciating that the attempted
killing was wrongful in any sense.
6
  While the issue on appeal in this case is the standard for
“wrongfulness,” it is important to note that the defense of
mental responsibility turns on the accused’s ability to
appreciate the nature and quality or wrongfulness of his
actions. See Martin, 56 M.J. at 107-09. Thus while
wrongfulness is determined objectively, the determination of the


                                 16
United States v. Mott, No. 12-0604/NA


Article 50a, UCMJ.    Thus, the military judge correctly

instructed the members when he stated that wrongfulness “is

judged by societal standards,” rather than the accused’s “own

personal moral code,” and that the “standard focuses on the

accused’s ability to appreciate that his conduct would be

contrary to public or societal standards.”    We hold that the

military judge did not err in providing an objective standard

for wrongfulness in his jury instructions regarding the

affirmative defense of lack of mental responsibility.

II.   Knowing and Intelligent Waiver

      The issue here is whether Appellant knowingly and

intelligently waived his Fifth Amendment and Article 31, UCMJ,

rights to counsel.   Appellant argues that Appellant’s severe

mental disease prevented him from knowingly and intelligently

waiving his right to counsel.   The Government argues that the

evidence shows by a preponderance of the evidence that Appellant

sufficiently understood his rights at the time of the waiver.

Without deciding whether Appellant knowingly and intelligently

waived his right to counsel, we hold that the military judge

abused his discretion by failing to analyze as a matter of law

whether Appellant could and did knowingly and intelligently

waive his rights.    Colorado v. Connelly, 479 U.S. 157, 168,



accused’s ability to “appreciate” that wrongfulness is
necessarily specific to that accused.


                                 17
United States v. Mott, No. 12-0604/NA


(1986), focuses on whether a statement is voluntary and in

particular the product of police coercion, which the military

judge addressed.    Edwards, however, requires that a waiver of

rights be knowing and intelligent, and not merely voluntary.

See 451 U.S. at 484.

A.    Appellant’s Suppression Hearing

     Before trial, Appellant moved to suppress the statement he

gave to NCIS.    At the ensuing hearing, the Government called

Special Agent Jonathan Oakes, one of two NCIS agents who took

Appellant’s statement.    The defense called Dr. Sadoff, a

psychiatrist who had reviewed Appellant’s history and was

recognized by the court as an expert in forensic psychiatry.

The court also considered Appellant’s signed statement, waiver

of rights form, and the video from the last hour and fifteen

minutes of the four-and-a-half-hour interrogation. 7

1.    Special Agent Oakes’s Testimony

       Oakes testified that he interviewed Appellant with another

unarmed agent in an NCIS office.       Appellant signed the standard

rights waiver form.    Oakes interviewed Appellant, then typed

Appellant’s statement and let Appellant review the statement.

Appellant reviewed the statement and made some changes.      The

7
  Appellant arrived at the interview room at 11:00 a.m. and was
advised of his rights at 12:10 p.m. NCIS did not start
recording the interview until over three hours later, at 3:36
p.m., at which point most of the statement was already written.
The video recording ends at 4:50 p.m.


                                  18
United States v. Mott, No. 12-0604/NA


statement followed a standard template.    Appellant appeared

alert and sober, and was offered breaks and snacks.

     Oakes testified that Appellant gave a number of bizarre

statements during the interrogation.    For example, Appellant

told the agents that when he was thirteen years old, Special

Forces troops kidnapped him in the Bronx and broke his neck.

Appellant also described his connection to the terrorist

Zacarias Moussaoui and claimed that he had spoken with

Presidents Clinton and Bush.

     Oakes did not believe Appellant’s “bizarre” statements.

Oakes was not surprised when Appellant stated that he was of

“sound mind and body,” because Oakes had experience with

mentally ill persons and understood that they sometimes do not

recognize that they are ill.

     When asked by defense counsel, Oakes at first denied that

Appellant’s interview was videotaped because of Appellant’s

bizarre statements and behavior, and instead attributed the

videotaping to the “growing CSI effect.”   On further probing,

Oakes stated that at the time of Appellant’s interview:    NCIS’s

policy was to not videotape interviews; that he had previously

interviewed other suspects of aggravated assault and attempted

murder; and that he had never -- in over two hundred suspect

interviews -- recorded an interrogation other than that of

Appellant.   In Appellant’s case, Oakes was specifically


                                19
United States v. Mott, No. 12-0604/NA


instructed by his supervisor to videotape part of the interview.

The military judge found that “[t]he later portion of SN Mott’s

interrogation was recorded on video due to the bizarre nature of

his initial statements.”

2.   Interrogation Statement and Video

     In conjunction with Oakes’s testimony, the Government

presented Appellant’s signed statement and the videotape of

approximately one hour of Appellant’s interrogation.

     The statement described Appellant’s account of the events

leading up to the attack, the attack itself, the alleged rape by

JG and others in 2003, and a previous unrelated alleged rape. 8

Appellant described hearing JG say “he was ‘going to have to

kill MOTT’” and his family.   Appellant considered asking someone

for a gun, but “thought it might cause a confrontation or

someone would question why I wanted the gun.”   Instead,

Appellant “purchased the knife for protection.”   Appellant saw

JG again the next morning, poured a glass of water, approached

JG, and stabbed him.   The statement then describes Appellant’s

intent:

     When I heard [JG]’s voice, on 07Mar07, I immediately
     knew I wanted to kill him. I purchased the knife

8
  Appellant never “actually met or had dealings with the victim
[JG] prior to the attack” on March 8, 2007. Mott, 2009 CCA
LEXIS 424, at *4, 2009 WL 4048019, at *1 (N-M. Ct. Crim. App.
Nov. 24, 2009). The rape delusion which Appellant tragically
assigned to JG appears to be only one of several rape delusions
that Appellant experienced.


                                20
United States v. Mott, No. 12-0604/NA


     knowing I wanted to kill him. When I was “hitting”
     [JG], I wanted him to die. If [JG] does not die, then
     he still will be a threat to my life. I believe this
     was divine intervention. God placed us on the ship
     together so justice could be served.

     The statement devotes just as much space to meticulous

descriptions of Appellant’s perceived previous rapes.   According

to the statement, Appellant was with his girlfriend MQ in 2003

when she breathed a drug into him, “several unknown males (one

of which being [JG]) jumped out of the closet,” the males then

“shoved an unknown liquid (contained in a zip-lock bag) and a

powder (contained in a second bag) up my anus,” turned the bags

inside out, and then “cut inside my anus with small plastic

pieces.”   The statement alleges that JG was part of a team of

about fifteen people involved in the assault.   The statement

also describes a previous incident in which Appellant’s

girlfriend “drugged me with an unknown drug,” Appellant “passed

out,” and during that time “unknown girls in the apartment were

putting drugs up my ass, then removing them and selling them.”

     The video starts approximately three hours into the

interrogation, after most of the statement was already written.

The video also contains a number of extraordinary statements.

In one exchange, Appellant asserts that he was looking into

buying psychedelic mushroom spores so that he could give the

mushrooms to a hospital.   The agent responds that you cannot

sell psychedelic mushrooms to a hospital, Appellant considers a


                                21
United States v. Mott, No. 12-0604/NA


moment, and then responds that he will just build his own

hospital then.   Later, when the agent asks Appellant to confirm

that the written statements are his thoughts, Appellant does not

contest the account of the attempted murder but instead exhorts

the agent, “Did we put the part in there about the bag?”    When

the agent asks if Appellant wanted to kill everyone involved in

his alleged rape, Appellant considers the question and in

seriousness notes that “I mean, everybody dies, unless they are

immortal or something, which is a possibility,” but that he

wanted to see his assailants “killed or in jail forever.”    The

agent suggests “brought to justice” and Appellant responds

“that’s even better.”   Appellant seemed to waver between whether

he wanted JG dead, in jail, or simply no longer a danger to him.

Appellant similarly wavered between whether, during the alleged

2003 rape by JG and others, JG and the other assailants had

actually killed Appellant (he was later “zapped back up”) or

whether Appellant only feigned death. 9



9
  The written statement also contradicts itself. At first, it
states that Appellant “was able to fight [the assailants] off”
and saw them leaving “because of a reflection in the mirror
while crawling to the toilet.” Later in the same paragraph, the
statement indicates that “[JG] put a bag over my face during the
incident and . . . I played dead until they left the room and
then wiggled the bag off my head.” Thus, Appellant apparently
believed, at different times in the interview, that he had
either: (1) fought off his attackers and seen them leaving; (2)
played dead and once the assailants left removed the bag from
his head; or (3) temporarily died.


                                22
United States v. Mott, No. 12-0604/NA


3.   Dr. Sadoff’s Expert Opinion Regarding Waiver

     Dr. Sadoff testified that Appellant was not competent to

waive his right to remain silent:

     Q: Now, Doctor, in your expert medical opinion, would
     Seaman Mott have been competent to understand the
     waiver of his rights to remain silent, and the full
     consequence of waiving those rights?

     A: In my opinion, he would not have been because he
     was so psychotic with delusional carryover, and
     hallucinations that were ongoing at the time, that he
     [sic] could have prevented him from fully appreciating
     and understanding the implications and consequences of
     waiving his rights and making a statement.

Dr. Sadoff explained “competency” as:   a person who “knows and

understands the nature and consequences of the legal situation

in which he is involved, really, the consequences of making

statements, appreciating them, from not only an intellectual,

but also an emotional point of view.”   While Appellant appeared

to be acting logically, his psychotic state prevented him from

emotionally appreciating what he was doing.    Moreover, while

Appellant was able to answer questions, much of what Appellant

said was “bizarre and delusional,” “reflecting [the]

hallucinations that [Appellant] was having.”

     Dr. Sadoff explained how psychosis affects a person’s

thinking.   According to Dr. Sadoff, psychosis affects how a

person “intellectually, cognitively, and also emotionally”

understands “everything that goes into the brain.”    Dr. Sadoff

testified that, as a result, “psychosis affects a person’s


                                23
United States v. Mott, No. 12-0604/NA


judgment, affects his thinking, [and] affects his reaction.”

Dr. Sadoff explained that “[p]sychotic people have different

ways of looking at things, and they do things that may appear to

be logical but, in their own [mind] -- if you probe even

further, and get below the surface of that paralogic, I think

you will find a whole set of psychotic bizarre ideas.”

     With regard to Appellant in particular, the Government

asked Dr. Sadoff during cross-examination whether Appellant’s

psychosis “prevent[ed] him from understanding the consequences

of waiving his rights to remain silent.”   Dr. Sadoff testified

that “it did, because he was so certain about what he did and

why he did it, even though his reasons were based on psychotic

delusions and hallucinations.”   Dr. Sadoff asserted that

Appellant’s evolving and contradictory stated reasons for his

actions were not the result of an awareness of how his conduct

might be perceived, but rather are typical of psychotic persons

and “reflected [Appellant’s] degree of confusion, and his

psychotic state of mind.”   Dr. Sadoff concluded that “it was

[Appellant’s] paranoia that caused him to make these

adjustments, not logical concern about how it would look.”

     On the other hand, Dr. Sadoff also testified that “even

people who are psychotic and paranoid have an awareness and an

intellectual ability to understand and be aware of the reality

of what they may do, and its effect on other people.”    Thus,


                                 24
United States v. Mott, No. 12-0604/NA


even though Appellant was psychotic, Appellant knew that asking

for a gun would raise suspicions.

4.   Military Judge’s Findings

     In his ruling, the military judge did not address Dr.

Sadoff’s testimony, but apparently rejected it in finding (as a

finding of fact, not law) that Appellant “knowingly,

intelligently, and voluntarily waived his rights.”    The military

judge found that the “accused’s memory and thought processes

were functioning” during the interrogation and that “[t]he

accused gave, although bizzare [sic] in content, logical answers

to the questions that were asked.”

a.   Abuse of Discretion

       “We review a military judge’s decision to deny a motion to

suppress evidence -- like other decisions to admit or exclude

evidence -- for an abuse of discretion.”   United States v.

Freeman, 65 M.J. 451, 453 (C.A.A.F. 2008) (citing United States

v. Ayala, 43 M.J. 296, 298 (C.A.A.F. 1995)).   “An abuse of

discretion occurs when the trial court’s findings of fact are

clearly erroneous or if the court’s decision is influenced by an

erroneous view of the law.”   Freeman, 65 M.J. at 453 (citing

United States v. Rader, 65 M.J. 30, 32 (C.A.A.F. 2007)).

“Further, the abuse of discretion standard of review recognizes

that a judge has a range of choices and will not be reversed so

long as the decision remains within that range.”     United States


                                 25
United States v. Mott, No. 12-0604/NA


v. Gore, 60 M.J. 178, 187 (C.A.A.F. 2004).   In certain cases,

even when “the evidence in [the] record may well have supported

the [military judge’s] decision,” the military judge may

nonetheless have abused his discretion where the military

judge’s ruling was based on a “misapprehension of the applicable

law” and the military judge’s findings failed to address the

relevant considerations.   United States v. Cokeley, 22 M.J. 225,

229 (C.M.A. 1986).

b.   Right to Counsel

     “[T]he accused’s statement during a custodial

interrogation 10 is inadmissible at trial unless the prosecution

can establish that the accused in fact knowingly and voluntarily

waived Miranda rights.”    Berghuis v. Thompkins, 130 S. Ct. 2250,

2260 (2010) (emphasis added) (internal quotation marks and

brackets omitted); M.R.E. 305 (g)(1) (waiver of the right to

counsel “must be made freely, knowingly, and intelligently”);

see also United States v. Westmore, 17 C.M.A. 406, 409-10, 38

C.M.R. 204, 207-08 (1968) (“If the interrogation continues


10
  Consistent with our precedents, we note that in the military
system the accused’s right to counsel -- and the requirement of
knowing and voluntary waiver -- are not limited to custodial
interrogation. See United States v. Delarosa, 67 M.J. 318, 320
(C.A.A.F. 2009) (“Military officials and civilians acting on
their behalf are required to provide rights warnings prior to
interrogating a member of the armed forces if that servicemember
is a suspect, irrespective of custody. Article 31(b), UCMJ, 10
U.S.C. § 831(b) (2000); Military Rule of Evidence (M.R.E.)
305(b)(1), 305(c).”).


                                 26
United States v. Mott, No. 12-0604/NA


without the presence of an attorney and a statement is taken, a

heavy burden rests on the government to demonstrate that the

defendant knowingly and intelligently waived his privilege

against self-incrimination and his right to retained or

appointed counsel.” (quoting Miranda v. Arizona, 384 U.S. 436,

475 (1966) (internal quotation marks omitted)).   Voluntariness

of consent and knowing waiver are two distinct and “discrete

inquiries.”   Edwards v. Arizona, 451 U.S. 477, 484 (1981).

Thus, in addition to showing that the waiver was “voluntary in

the sense that it was the product of a free and deliberate

choice rather than intimidation, coercion, or deception,”

Thompkins, 130 S. Ct. at 2260 (quoting Moran v. Burbine, 475

U.S. 412, 421 (1986)) (internal quotation marks and brackets

omitted), the government must also demonstrate that the accused

“understood his right to counsel and intelligently and knowingly

relinquished it.”   Edwards, 451 U.S. at 484.

     The accused has to have “full awareness of both the nature

of the right being abandoned and the consequences of the

decision to abandon it.”    Thompkins, 130 S. Ct. at 2260.

However, “[t]he Constitution does not require that a criminal

suspect know and understand every possible consequence of a

waiver of the Fifth Amendment privilege.”   Colorado v. Spring,

479 U.S. 564, 574 (1987).   In other words, the accused must

“fully understand[] the nature of the right and how it would


                                 27
United States v. Mott, No. 12-0604/NA


likely apply in general in the circumstances -- even though the

defendant may not know the specific detailed consequences of

invoking it.   A defendant, for example, may waive his right to

remain silent . . . even if the defendant does not know the

specific questions the authorities intend to ask.”     United

States v. Ruiz, 536 U.S. 622, 629-630 (2002).     The analysis

should take into account the accused’s “age, experience,

education, background, and intelligence, and [his] capacity to

understand the warnings given him, the nature of his Fifth

Amendment rights, and the consequences of waiving those rights.”

Fare v. Michael C., 442 U.S. 707, 725 (1979).     The government

must show waiver by a preponderance of the evidence.     Thompkins,

130 S. Ct. at 2261. (citing Colorado v. Connelly, 479 U.S. 157,

168 (1986)).

     In sum, there are two branches to the waiver analysis.

First, was the waiver voluntary?     And, second, was the waiver

knowing and intelligent?   Edwards, 451 U.S. at 483-84.    Mental

illness does not make a statement involuntary per se.     See

Connelly, 479 U.S. at 170 (holding that the unprovoked

confession of a schizophrenic experiencing command

hallucinations by the “voice of God” was not involuntary).

Voluntariness “depend[s] on the absence of police overreaching.”

Connelly, 479 U.S. at 170.   Regardless of the accused’s mental

state, a confession will not be suppressed for involuntariness


                                28
United States v. Mott, No. 12-0604/NA


absent “coercive police activity.”    Id. at 167.   See also United

States v. Campos, 48 M.J. 203 (C.A.A.F. 1998) (confession not

involuntary where the accused was interrogated in the hospital

and, unbeknownst to the officers, was under the influence of

codeine).   If volition were the sole issue in this case, then

Connelly would control.

     Edwards clearly requires that the judge analyze whether the

waiver was knowing and intelligent.   However, it is not clear in

the context of mental illness what this really means.     While the

Supreme Court and this Court have declined to find confessions

involuntary absent government coercion, see Connelly, 479 U.S.

at 167 (spontaneous confession of a psychotic experiencing

command hallucinations); Campos, 48 M.J. at 204 (confession of

accused under influence of codeine), neither has addressed the

effect of mental illness on the requirement that waiver be

knowing and intelligent.   See Campos, 48 M.J. at 207 n.1 (“We

need not decide today whether a mentally impaired person can

waive his or her rights under Article 31.”).   Connelly

explicitly did not address a situation in which the accused’s

mental illness affected his ability to understand his rights:

     Dr. Metzner testified that, in his expert opinion,
     respondent was experiencing “command hallucinations.”
     This condition interfered with respondent’s
     “volitional abilities; that is, his ability to make
     free and rational choices.” Ibid. Dr. Metzner
     further testified that Connelly’s illness did not
     significantly impair his cognitive abilities. Thus,


                                29
United States v. Mott, No. 12-0604/NA


     respondent understood the rights he had when Officer
     Anderson and Detective Antuna advised him that he need
     not speak.

479 U.S. at 161 (emphasis added) (citations omitted).   Nor did

Connelly address situations where the police know the defendant

is mentally ill.   See 479 U.S. at 161 (neither police officer

“perceived [any] indication whatsoever that respondent was

suffering from any kind of mental illness”).

     The military judge’s analysis does not address the issue of

knowing and intelligent waiver, but rather focuses solely on the

question of voluntariness.   This is despite the fact that

Appellant’s suppression motion was based on knowing and

intelligent waiver, and not voluntariness.   The ruling, for

example, states that Appellant moved to suppress his statements

“because the accused was mentally ill at the time of the

statements, making them involuntary.”   The only mention of

knowing and intelligent waiver in the ruling appears in the

findings of fact, which concluded that “[t]he accused knowingly,

intelligently, and voluntarily waived his rights.”   Thus, the

findings do not address the uncontested expert testimony.     In

fairness, the Edwards test as applied in the context of mental

illness has not been articulated in military jurisprudence.     The

military judge did find a number of facts that would support a




                                30
United States v. Mott, No. 12-0604/NA


legal finding of knowing and intelligent waiver; 11 however, these

facts were not discussed or explicitly analyzed and applied to a

finding of law.

     As a result, the military judge abused his discretion in

his analysis.   The military judge did not apply the Edwards

framework, which requires a separate analysis of voluntary

waiver and knowing and intelligent waiver.   As stated in

Edwards:

     [I]n denying petitioner’s motion to suppress, the
     trial court found the admission to have been
     “voluntary” without separately focusing on whether
     [Appellant] had knowingly and intelligently
     relinquished his right to counsel. . . . Here, however
     sound the conclusion of the state courts as to the
     voluntariness of [Appellant’s] admission may be, . . .
     the trial court . . . [did not] undert[ake] to focus
     on whether [Appellant] understood his right to counsel
     and intelligently and knowingly relinquished it. It
     is thus apparent that the decision below misunderstood
     the requirement for finding a valid waiver of the
     right to counsel . . . .

Edwards, 451 U.S. at 483-84.

     The military judge also erred when he addressed whether

Appellant’s waiver was knowing and intelligent solely as a

conclusory finding of fact, rather than as a conclusion of law.

11
  For example, the military judge found that “it was clear to the
court that the accused understood the consequences of talking to
the agents,” and that “[i]t was very clear that the accused
contemplated how what he said in his written statement and how
it was recorded in his written statement would be perceived by
others and how it would affect his future and the handling of
any charges.”


                                31
United States v. Mott, No. 12-0604/NA


See United States v. Freeman, 65 M.J. 451, 453 (C.A.A.F. 2008)

(citing Arizona v. Fulminante, 499 U.S. 279, 287 (1991)).

     Moreover, while there were facts that supported a finding

of knowing and intelligent waiver, the military judge did not

address how the accused’s waiver was knowing and intelligent in

the context of:   (1) the Edwards requirement of distinct

inquiries into both knowing and voluntary waiver, 451 U.S. at

483-84, and Connelly’s limited holding as applying only to

voluntariness, 479 U.S. at 164; (2) the uncontested testimony of

the sole expert witness that Appellant’s mental illness

prevented him from understanding his rights, (3) the R.C.M. 706

board’s conclusion, only a few weeks after Appellant’s

interrogation, that Appellant suffered from severe paranoid

schizophrenia and was not competent to understand the nature of

the proceedings against him, cf. Connelly 479 U.S. at 173

(Stevens, J., concurring in the judgment in part and dissenting

in part) (“Since it is undisputed that respondent was not then

competent to stand trial, I would also conclude that he was not

competent to waive his constitutional right to remain silent.”);

and (4) Appellant’s persecutory delusions, including the

“grandiose paranoid ideation” that Appellant would go to jail

for nine years and serve six, just as he believed that Andrew

Carnegie had done.




                                32
United States v. Mott, No. 12-0604/NA


       We find that the military judge abused his discretion by

not separately analyzing whether Appellant’s waiver was knowing

and intelligent.    Therefore, we do not reach a conclusion as to

whether the confession in this case could be admissible -- only

that it was not properly admitted in this case.

       We now review whether the erroneous admission of

Appellant’s confession was harmless beyond a reasonable doubt.

III.    Harmless Error

       Constitutional errors are reviewed for harmlessness beyond

a reasonable doubt.      United States v. Paige, 67 M.J. 442, 449

(C.A.A.F. 2009) (constitutional error affecting accused’s

affirmative defense reviewed for harmlessness beyond a

reasonable doubt).    The admission of the statement and

interrogation video are not harmless beyond a reasonable doubt

if “‘there is a reasonable possibility that the evidence

complained of might have contributed to the conviction.’”

United States v. Moran, 65 M.J. 178, 187 (C.A.A.F. 2007)

(quoting Chapman v. California, 386 U.S. 18, 24 (1967)).     “This

determination is made on the basis of the entire record, and its

resolution will vary depending on the facts and particulars of

the individual case.”     United States v. Sweeney, 70 M.J. 296,

306 (C.A.A.F. 2011) (quoting United States v. Blazier, 69 M.J.

218, 226-27) (C.A.A.F. 2010).




                                   33
United States v. Mott, No. 12-0604/NA


     Erroneous admission of a confession “requires a reviewing

court to exercise extreme caution before determining that the

admission of the confession at trial was harmless.”    Arizona v.

Fulminante, 499 U.S. 279, 296; see also id. (“[T]he admissions

of a defendant come from the actor himself, the most

knowledgeable and unimpeachable source of information about his

past conduct . . . . [A] full confession in which the defendant

discloses the motive for and means of the crime may tempt the

jury to rely upon that evidence alone in reaching its

decision.”); United States v. Ellis, 57 M.J. 375, 381 (C.A.A.F.

2002) (“[T]he defendant's own confession is probably the most

probative and damaging evidence that can be admitted against

him.”).

     We find that the improper admission of Appellant’s

statement and interrogation was not harmless beyond a reasonable

doubt due to its potential effect on Appellant’s affirmative

defense of not guilty by reason of insanity.   The Government

relied on Appellant’s statement to show that Appellant, though

severely mentally ill, appreciated the wrongfulness of his

actions.   As demonstrated by the Government’s closing argument,

trial counsel used Appellant’s statement extensively to support

the theory that Appellant intended to kill JG out of revenge,

not self-defense.




                                34
United States v. Mott, No. 12-0604/NA


     The Government’s closing slide presentation clearly and

visually demonstrated trial counsel’s extensive use of

Appellant’s statement.   For example, trial counsel’s first

slide, titled “Revenge – Justice,” quotes Appellant’s statement

in bold letters:

     ● “I poured myself a drink of water, then walked over to
     [JG] from behind to kill him. I took out my knife from my
     pocket, opened it, and placed it in my right hand to cut
     [JG]. (Acc hand-wrote) I wanted justice upheld and knew I
     was the one to do it because he raped me.” (acc stmt)

     ● “God placed us on the ship together so justice could be
     served”. (acc stmt)

Appellant quotes the same statement in the slide addressing the

Appellant’s appreciation of the wrongfulness of his acts.

     The Government’s closing argument repeatedly exhorted the

members to look at Appellant’s statement and video.    See, e.g.,

Record at 527, United States v. Mott, __ M.J. __ (C.A.A.F. 2013

(No. 12-0604) (“Revenge and justice.    You heard directly from

the accused’s statements that this is what he sought with the

attack of Seaman Recruit JG.   The first statement from the

accused’s hand-written statement, describing exactly what he did

. . . . ”); id. (“And then, members, remember, and you have

copies of the statement, he hand-wrote . . . .”); id. at 538

(“He wasn’t completely out of his mind.    He read that statement.

He agreed to that statement, and you saw that yourself, in the

video.”); id. at 539 (“It’s in the video, members, and you can



                                35
United States v. Mott, No. 12-0604/NA


watch that again.”); id. at 540 (“Again, he never mentioned to

NCIS that he was acting out of self-defense.    Look at his words

again, justice, and knowing he wanted to kill him.    There’s no

self-defense in there.   And again, those statements were taken

the day that the attack happened.”); id. at 558 (“Look through

this statement, and look through the video, because, yeah, he

doesn’t say ‘self-defense’ . . . .”).

     We find that there is “a reasonable possibility” the

inclusion of Appellant’s statement might have prejudiced

Appellant’s affirmative defense. 12   See Moran, 65 M.J. at 187.

We reach this conclusion because arguably the statement

contradicted Appellant’s theory that Appellant was unable to

appreciate the wrongfulness of his actions.    Under the defense

theory, Appellant’s schizophrenia not only made him think that

JG was the gang leader who previously raped and tried to kill

him and now was back to kill him, but also that he faced

imminent death and had no option but to kill JG.    Even if a

rational person would have understood that he could report JG to

the authorities or run away, Appellant asserted that he was




12
  As noted above, the effect of a constitutional error on an
accused’s affirmative defense is reviewed to see if the error
was harmless beyond a reasonable doubt. See United States v.
Paige, 67 M.J. 442, 451 (C.A.A.F. 2009).



                                 36
United States v. Mott, No. 12-0604/NA


unable to process these options like a rational person, 13 and

therefore was unable to appreciate that he was not acting in

self-defense by attacking JG -- that is, Appellant was unable to

appreciate that attacking JG was wrongful.   Without Appellant’s

statement, the Government still could argue based on the R.C.M.

706 board’s finding that Appellant believed he would go to jail

(suggesting appreciating wrongfulness); and that Appellant did

not face imminent attack (suggesting wrongfulness); and that

Appellant screamed “you raped me” and not “you won’t kill me”

(suggesting Appellant’s actions were not in self-defense).

However, the strongest Government argument and central trial

theory of revenge is significantly weakened.

     There is clearly a “reasonable possibility that the

evidence complained of,” here Appellant’s confession, “might

have contributed to [Appellant’s] conviction.”   See United

States v. Paige, 67 M.J. 442, 451 (C.A.A.F. 2009) (quoting

Moran, 65 M.J. at 187.   Therefore, the erroneous admission of

Appellant’s statement was not harmless.




13
  Moreover, defense counsel argued that Appellant’s previous
complaints to the authorities had only drawn scorn and derision
and therefore reporting JG to his superiors would not help his
situation, and that since Appellant believed God to have put him
on the ship with JG, it would be futile to run. This argument
is consistent with the findings of the R.C.M. 706 board.


                                37
United States v. Mott, No. 12-0604/NA


                             DECISION

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is reversed.     The findings of guilty and the

sentence are set aside.   The record of trial is returned to the

Judge Advocate General of the Navy for remand to an appropriate

convening authority.   A rehearing is authorized.




                                38
