UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                             GALLUP, TOZZI, and JOHNSON
                               Appellate Military Judges

                            UNITED STATES, Appellee
                                         v.
                        Private E2 CHARLES M. SAVAGE
                           United States Army, Appellant

                                   ARMY 20060167

                               1 st Armored Division
                 James L. Pohl and Denise R. Lind, Military Judges
               Lieutenant Colonel Karen V. Fair, Staff Judge Advocate

For Appellant: Mr. William E. Cassara, Esquire (argued); Captain William J.
Stephens, JA; Mr. William E. Cassara, Esquire (on brief).

For Appellee: Captain Anthony O. Pottinger, JA (argued); Major Elizabeth G.
Marotta, JA; Major Tami L. Dillahunt, JA (on brief).

                                     19 March 2009

                               ---------------------------------
                                OPINION OF THE COURT
                               ---------------------------------
JOHNSON, Judge:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of one specification of absence without leave and one
specification of breaking restriction in violation of Articles 86 and 134, Uniform
Code of Military Justice, 10 U.S.C. §§ 886 and 934 [hereinafter UCMJ]. A panel of
officer members convicted appellant, contrary to his pleas, of one specification of
attempted premeditated murder in violation of Article 80, UCMJ, and sentenced
appellant to a dishonorable discharge, confinement for 23 years, total forfeiture of
all pay and allowances, and reduction to Private E1. The convening authority
approved the sentence as adjudged. This case is before us for review under Article
66, UCMJ.

       Appellant asserts, inter alia, that: (1) the military judge erred by ordering the
release of privileged statements made during the course of a sanity board and further
erred by permitting the government to use those statements during the cross-
examination of a defense expert witness; (2) his first detailed military defense
counsel was ineffective during pretrial representation for disclosing the full contents
SAVAGE − ARMY 20060167

of the sanity board report to the government; and (3) his conviction for attempted
premeditated murder is factually and legally insufficient.

        These three assignments of error relate directly or indirectly to appellant’s
claim that, at the time he stabbed the victim, he was asleep due to a sleep disorder
called parasomnia. Appellant’s parasomniac explanation is relevant to the factual
and legal sufficiency of the evidence and also implicates appellant’s privilege to
prohibit disclosure and use of statements made during a mental health evaluation
ordered pursuant to Rule for Courts-Martial (R.C.M.) 706. We must determine when
it is appropriate for defense counsel to disclose such statements and how the
government can use the statements at trial to rebut a claim that a crime occurred
during a parasomniac episode.

       We begin our discussion with privileges related to the sanity board and
actions by the military judge at trial, followed by appellant’s claim of ineffective
assistance of counsel. We conclude by addressing the factual and legal sufficiency
of the evidence. For the reasons set forth below we affirm the findings and
sentence.

                                       FACTS

       At the time of his offenses, appellant was stationed with the 1st Armored
Division at H.D. Smith Barracks, near Baumholder, Germany. On 7 April 2005,
appellant received non-judicial punishment for disrespect and assault of a non-
commissioned officer in his unit. As punishment for these offenses, appellant was
restricted to specified areas on H.D. Smith Barracks. On 8 April 2005, appellant
broke the terms of his restriction and absented himself from his unit without
authority. On 10 April 2005, while still absent without authority, appellant arrived
at the home of the victim in this case, Ms. KM, a local German national appellant
met through an acquaintance. Appellant asked Ms. KM if he could stay at her
apartment that night and she agreed. When Ms. KM went to work the following
morning, appellant was asleep on the couch in her living room. Ms. KM arrived
home later that evening and found appellant still in her apartment.

       During the second evening of his stay, 11 April 2005, appellant engaged Ms.
KM in discussion about whether he should return to his unit. Ms. KM advised
appellant “it would be better for [appellant] to drive back.” Prior to going to bed
that evening, appellant went into Ms. KM’s bedroom, stood in the doorway, and
engaged her in yet another conversation about his unauthorized absence from his
unit. Ms. KM again advised appellant that he should return to his unit. After the
brief discussion, Ms. KM got out of bed and gave appellant a key for him to use to
exit her building, as well as some Euros for gas, in case appellant decided to leave
that evening. Ms. KM then returned to bed. Approximately 30 minutes later,
appellant entered her bedroom and stabbed her in the back seven times causing




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SAVAGE − ARMY 20060167

lacerations and a collapsed lung. In addition, while defending herself, Ms. KM
received a cut on her finger that severed a tendon.

       At trial, Ms. KM testified in detail about the attack. Ms. KM stated she
attempted to stop appellant by grabbing his arm but appellant continued to stab her.
Ms. KM further testified that appellant told her to “give and it’s over” and
“continuously said that [she] should be quiet” during the attack. Ms. KM explained
that after she nodded her head in response to appellant’s statement to “be quiet,”
appellant loosened his grip and she broke free from appellant’s grasp. Ms. KM then
ran out of the bedroom, left the apartment, and sought medical assistance from a
neighbor in the building. Appellant fled the scene without rendering aid and drove
to another friend’s home, Ms. BM. When appellant arrived at Ms. BM’s home, he
told her that a third party attacked Ms. KM.

       On 9 June 2005, before referral of the charges to general court-martial,
appellant underwent a R.C.M. 706 inquiry (hereinafter sanity board) to determine
whether he understood the pending charges and could assist in his own defense. On
30 June 2005, the sanity board published its findings and ultimately concluded
appellant was competent to stand trial. The sanity board also concluded there was a
reasonable possibility appellant suffered from “parasomnia, or somnambulism that
produced an automatism or sleep-related behavior at the time of the assault” and, as
a result, appellant “may have been unable to appreciate the nature and quality of his
conduct.” The clinical psychiatric diagnosis was parasomnia, not otherwise
specified (NOS). The full sanity board report contained numerous statements
appellant made during the sanity board process.

       On 11 August 2005, appellant was arraigned and elected representation by
Captain (CPT) JT and CPT KM. During a motions session on 8 September 2005,
appellant’s trial defense counsel argued, and ultimately lost, a motion to dismiss
based upon misleading pretrial advice to the court-martial convening authority and a
motion to suppress statements appellant made to German authorities. On 9
September 2005, appellant’s military defense counsel provided notice of intent to
rely on the defense of lack of mental responsibility. On or about 19 October 2005,
without an order from the military judge, the defense counsel e-mailed the full
sanity board report, including appellant’s statements, to the trial counsel.

       On 30 November 2005, defense counsel notified the military judge that
appellant no longer desired to be represented by CPT JT and instead wanted an
individual military counsel (IMC). At an Article 39(a), UCMJ, session on 1
December 2005, appellant informed the military judge that he wanted to be
represented by civilian counsel and an IMC. Appellant’s IMC request was
subsequently denied. Based upon this denial, at a 14 December 2005 Article 39(a),
UCMJ, session, appellant elected to be represented by a civilian counsel and one of
his original counsel, CPT KM. Appellant also excused CPT JT from further
participation in the case.



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SAVAGE − ARMY 20060167

       On 13 January 2006, appellant’s civilian defense counsel submitted a defense
witness request. The request included, among other witnesses, the president of
appellant’s sanity board, Lieutenant Colonel (Dr.) Gary Southwell. The request
proffered Dr. Southwell would testify appellant was undergoing a parasomniac
experience during the attack on 11 April 2005. One month later, on 13 February
2006, civilian defense counsel submitted an additional witness request for Dr.
William Frey, the defense sleep expert appointed by the convening authority. The
request stated that in Dr. Frey’s opinion, appellant “may well have been
experiencing a parasomniac episode” at the time of the assault on Ms. KM.
Furthermore, the request stated Dr. Frey’s testimony was relevant to the “mens rea
element of the charged offense.” In addition, civilian defense counsel notified the
government and the military judge that the defense would not present a defense
based upon lack of mental responsibility and would instead request the instruction
concerning evidence negating mens rea listed in Dep’t of Army Pam. 27-9, Legal
Services: Military Judges’ Benchbook [hereinafter Benchbook], para. 5-17 (15 Sep
2002).

       At a motion hearing on 21 February 2006, appellant sought to suppress
statements made during the sanity board and any derivative evidence from those
statements. 1 After hearing argument, the military judge ruled the government could
not use appellant’s statements from the sanity board during voir dire, opening
statements, or the government’s case-in-chief. The military judge deferred ruling on
the government’s use of appellant’s statements during cross-examination or rebuttal
until the defense presented its case-in-chief.

        At trial, the defense theory was, in part, that appellant had a parasomniac
condition and could not have formed the specific intent necessary to support a
conviction for attempted premeditated murder. 2 In support of its position, the
defense presented expert tesimony. In the defense case-in-chief, Dr. Southwell
testified that a history of sleepwalking was an important indicator of parasomnia.
Dr. Southwell also testified appellant stated during the sanity board he “didn’t have
any recollection” of prior sleepwalking episodes or of any type of parasomnia. 3
Based upon this testimony, the government requested an Article 39(a), UCMJ,
session outside the presence of the members and asked the military judge to permit

1
 Appellant also sought disqualification of government counsel, but the motion was
affirmatively withdrawn.
2
 In its brief and during oral argument before this court the defense asserted
appellant’s condition should be a complete defense.
3
 Prior to the expert testimony, defense counsel elicited lay testimony that appellant
had prior parasomniac episodes. Ms. TE testified she witnessed appellant doing the
dishes while he was not awake and Mrs. DS testified she saw the appellant sleepwalk
on two occasions.


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SAVAGE − ARMY 20060167

limited cross-examination of Dr. Southwell. The following colloquy ensued among
the assistant trial counsel, the military judge, and civilian defense counsel:

            ATC: We do believe that the defense has opened the door
            to submit the issues about statements from the accused.
            The witness testified that [appellant] did not have any
            recollection of sleep behaviors from before. That would
            be a statement that the accused used in his sanity board to
            [Dr. Southwell] which the defense brought out in
            testimony.

            ...

            MJ: What do you believe you are entitled to?

            ATC: We’d like to ask about that in cross-examination.

            MJ: That statement alone?

            ATC: Yes, ma’am.

            CDC: No objection.

       During cross-examination, the government attacked Dr. Southwell’s diagnosis
that appellant was experiencing a parasomniac episode during the attack.

            Q: So if something is labeled like you said parasomia,
            NOS, it doesn’t fit into other categories. Did you – why
            did [appellant’s case] not fit sleepwalking, doctor?

            A: Well, one of the issues was the history of sleepwalking
            that was absent. So rather than – without the history of
            sleepwalking it was difficult to assign an actual
            sleepwalking disorder.

       Later during the cross-examination of Dr. Southwell, the government asked
direct questions about statements made by appellant during the sanity board
concerning his sleep history.

            Q: Sir, you testified that [appellant] didn’t have a
            recollection of previous sleepwalking?

            A: Right.

            Q: And you interviewed him in June 2005?


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SAVAGE − ARMY 20060167

             A: Yes.

             Q: When you talked to him he never told you he had been told that he
             was a sleepwalker?

             A: Apparently – he didn’t tell me that he had been told.

      On re-direct, civilian defense counsel attempted to rehabilitate Dr. Southwell.

             Q: Now you indicated back in June when you made your
             diagnosis it was parasomnia NOS in large part because the
             history was missing.

             A: Right.

             Q: Now that you have heard the history [from the lay
             witnesses] would you still maintain that diagnosis or
             would you refine it?

             A: I’d be more comfortable with the diagnosis of sleepwalking.

                             LAW AND DISCUSSION

       Appellant alleges the military judge abused her discretion by “ordering the
defense to turn over the full sanity board report [to the government] when appellant
did not raise an insanity defense” and further erred by permitting the government to
cross-examine Dr. Southwell, a defense witness, concerning statements made by
appellant during the sanity board. We find appellant’s allegation that the military
judge “ordered” disclosure of the full sanity board report factually incorrect.
Furthermore, the military judge properly permitted limited cross-examination of Dr.
Southwell concerning statements made by appellant.

       Military Rule of Evidence [hereinafter Mil. R. Evid.] 302 grants an accused a
privilege for all statements made during the course of a mental examination ordered
pursuant to R.C.M. 706. Specifically, Mil. R. Evid. 302(a) states an accused has “a
privilege to prevent any statement made by the accused in a mental examination
ordered under” the Manual for Courts-Martial “and any derivative evidence obtained
through use of such a statement from being received into evidence against the
accused on the issue of guilt or innocence or during sentencing proceedings.” This
rule was proposed and implemented to provide “a form of testimonial immunity
intended to protect an accused from use of anything he might say during a mental
examination related to a criminal case” ordered under R.C.M. 706. Manual for
Courts-Martial, United States (2005 ed.) [hereinafter MCM], App. 22, A22-8.




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SAVAGE − ARMY 20060167

       The privilege, however, is limited to an accused’s statements and any
derivative evidence obtained through the use of the statements. The ultimate
conclusions of the sanity board, commonly referred to as the short form sanity board
report, must be provided to the government. See R.C.M. 706(c)(3)(A). Under
certain circumstances, other portions of the sanity board report can be released to
the government. Military Rule of Evidence 302(c) authorizes release of the full
sanity board report to the government, absent statements made by the accused, when
the defense presents expert testimony concerning an accused’s “mental condition.”
The term “mental condition,” however, is not defined. The rule states:

             If the defense offers expert testimony concerning the
             mental condition of the accused, the military judge, upon
             motion, shall order the release to the prosecution of the
             full contents, other than any statements made by the
             accused, of any report prepared pursuant to R.C.M. 706.
             If the defense offers statements made by the accused at
             such examination, the military judge may upon motion
             order the disclosure of such statements made by the
             accused and contained in the report as may be necessary in
             the interests of justice.

Mil. R. Evid. 302(c).

      The privilege to prohibit the use of an accused’s statements from a sanity
board or the derivative evidence at trial is forfeited “when the accused first
introduces into evidence such statements or derivative evidence.” See Mil. R. Evid.
302(b)(1).

                          Disclosure of Sanity Board Report

       Appellant first argues the military judge erred by ordering disclosure of the
sanity board report. The military judge, however, did not order its release.
Appellant’s first detailed military defense counsel, CPT JT, disclosed the long form
sanity board report, including all of appellant’s statements, after notifying the
government of the defense’s intent to rely on the defense of lack of mental
responsibility. 4 Eight days before trial, on 13 February 2006, the defense changed

4
  Notably, Appendix 22 to the MCM indicates it may be appropriate for defense
counsel to disclose the entire sanity board report. See MCM, App. 22, A22-9. The
pertinent part of the analysis section states, “the defense may consider that it is
appropriate to disclose the entire sanity report to the trial counsel in a case in which
the defense concedes the commission of the offense but is raising as its sole defense
the mental state of the accused” (emphasis added). Id. In this case, at the time the
sanity board report was released to the government, the defense team had notified
the government of their intent to rely on the lack of mental responsibility defense.


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SAVAGE − ARMY 20060167

course and notified the government that it no longer intended to rely on a lack of
mental responsibility defense. 5 The question before this court is not whether the
military judge abused her discretion in disclosing the contents of the sanity board
report, but whether the government received privileged statements in error, and if so,
the appropriate remedy.

       Appellant argues the government was only entitled to the ultimate conclusions
of the sanity board because the case involved a physiological condition, rather than a
mental condition. We disagree. Based upon the facts of this case, we concur with
the military judge’s finding that parasomnia was a “mental condition” as defined by
Mil. R. Evid. 302. 6

       The military judge made detailed findings of fact and conclusions of law
concerning the term “mental condition.” 7 After hearing extensive expert psychiatric
testimony, the military judge concluded parasomnia “can have an effect on behavior
or the mind.” The military judge determined parasomnia is, at the very least,
comprised of both physiological and mental aspects. The military judge also noted
parasomnia is a condition listed in the Diagnostic and Statistical Manual of Mental
Disorders, 4 th Edition, Text Revision, and is classified as a mental disorder

5
  Instead of relying on the defense of lack of mental responsibility, defense counsel
requested instruction 5-17, Evidence Negating Mens Rea, from the Benchbook.
6
  We note that courts have not come to a consensus on the legal status of parasomnia
and the parasomnia defense. See People v. Sedeno, 518 P.2d 913, 922 (Cal. 1974)
(classifying sleepwalking as an unconsciousness defense); McClain v. Indiana, 678
N.E.2d 104, 106-07 (Ind. 1997) (classifying sleepwalking as an automatism
defense); Tibbs v. Commonwealth, 128 S.W. 871, 874 (Ky. 1910) (classifying
sleepwalking as an insanity defense); State v. Overton, 357 N.J. Super. 387, 395
(App.Div. 2003) (classifying sleepwalking as an involuntary act). Parasomnia,
however, is not an affirmative defense recognized by R.C.M. 916. See generally,
United States v. Axelson, 65 M.J 501 (Army Ct. Crim. App. 2007). We do not go as
far as our sister court which implied that parasomnia is “but one of the many
disorders encompassed by the defense of insanity.” United States v. Harvey, 66 M.J.
585, 588 (A.F. Ct. Crim. App. 2008). Furthermore, we need not decide whether
parasomnia is per se a “mental condition” under Mil. R. Evid. 302. If, for example,
the evidence presented at trial shows parasomnia is a purely physical disorder and
the defense does not seek to introduce evidence to negate an accused’s mens rea, it
is possible parasomnia would not fit within the definition of “mental condition.”
Those facts, however, are not before this court.
7
 The military judge made the ruling concerning the term “mental condition” with
respect to the use of appellant’s statements at trial, not the disclosure of the sanity
board report. The analysis of the term “mental condition” is the same for purposes
of both use and disclosure.


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SAVAGE − ARMY 20060167

recognized by the American Psychiatric Association. Furthermore, the military
judge found that defense counsel sought to introduce evidence of appellant’s alleged
parasomniac episode to negate mens rea. 8 Based upon all the evidence, the military
judge found parasomnia was a “mental condition” as defined by Mil. R. Evid. 302.

       We agree with the military judge’s analysis. A parasomniac event may
involve physiological reactions and still be classified a “mental condition” for
purposes of Mil. R. Evid. 302. The triggers of Mil. R. Evid. 302 are not limited to
those cases where a lack of mental responsibility defense is presented. 9 The MCM
ascribes a broader meaning to the term “mental condition” than “mental
responsibility,” as they are used together in many instances, most notably in R.C.M.
916k(1) and (2). The evidence presented at trial established that parasomnia is both
a physical and mental condition; and the defense introduced evidence to negate
appellant’s mens rea at the time of the offense. Under these facts, parasomnia is a
“mental condition” as defined by Mil. R. Evid. 302, and consequently it was not
error for the government to receive the long form sanity board report. Appellant’s
statements made during the sanity board, however, remained protected under Mil. R.
Evid. 302.

       In the defense case-in-chief, Dr. Southwell, a defense expert witness, testified
that appellant stated he “didn’t have any recollection” of prior parasomniac events.
Because Dr. Southwell’s testimony revealed a specific statement made by appellant
relating to the lack of prior parasomniac events, appellant could not prohibit the
disclosure of his statements made during the sanity board relating to his sleep
history. Consequently, it was not error for the government to receive these
statements. Based upon the plain reading of Mil. R. Evid. 302, however, the
government was not entitled to appellant’s other statements made during the course
of the sanity board unrelated to his sleep history. Regardless, even if there was
error, the defense did not seek the appropriate remedy.

      The facts of this case are similar to those addressed by our superior court in
United States v. Bledsoe, 26 M.J. 97 (C.M.A. 1988). In Bledsoe, the government

8
  Note 2 to the instruction specifically requested by defense counsel states the
instruction should be given “when premeditation, specific intent, willfulness, or
knowledge is an element of an offense, and there is evidence tending to establish a
mental or emotional condition of any kind, which, although not amounting to lack of
mental responsibility, may negate the mens rea element” (emphasis added).
Benchbook, para. 5-17, Note 2.
9
  See United States v. Norfleet, 1998 CCA Lexis 302, *21 (A.F. Ct. Crim. App.
2000) (unpub.) (holding “the rule does not say that the defense must offer expert
testimony regarding insanity,” rather, “it simply says that, when the defense offers
expert testimony concerning the mental condition of the accused, the military judge
shall order release to the prosecution of the full sanity report.”).


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SAVAGE − ARMY 20060167

received privileged statements made by the accused during a sanity board from two
of the doctors who served on the sanity board. 10 The court noted that “[t]he
privilege against use by the prosecution of any statement made by an accused in a
mental examination signifies that such statement should not be revealed to the
prosecution by the doctors who performed the sanity evaluation. Apparently, this
obligation of confidentiality was violated.” Bledsoe, 26 M.J. at 102. The court
ultimately ruled it needed only to “focus on whether the military judge committed
prejudicial error by allowing trial counsel to cross-examine [one of the doctors]
about appellant’s two statements.” Id. at 103. The court relied on the fact that the
defense did not move to disqualify trial counsel based upon the receipt of privileged
information and that the trial counsel represented he had not used the privileged
information in preparing the government’s case. Id. at 102-3. Ultimately the record
in Bledsoe indicated trial counsel’s misacquired knowledge of the accused’s
statements did not affect the preparation of the government’s case. Id. at 103.
        Similar to Bledsoe, appellant’s defense counsel did not seek disqualification
of trial counsel based upon receipt of the privileged information. 11 Therefore, even
if appellant’s defense counsel should not have released the entire sanity board, 12 we
need only focus on whether the military judge committed prejudicial error by
allowing trial counsel to use the privileged statements in cross-examining Dr.
Southwell.

                                Use of the Sanity Board Report

       Although, as a general rule, the government is not permitted to use appellant’s
statements made during the course of a sanity board, the defense first presented
appellant’s statement about his sleep history through an expert witness to advance
and buttress its theory of the case. Therefore, appellant held no privilege for any of
the statements he made during the sanity board about his sleep history.

      As noted above, the defense disclosed the full sanity board report to the
government well before referral. The military judge’s role was therefore not to
regulate its release, but rather its use during trial. In this case, the military judge


10
  Unlike Bledsoe , appellant’s defense counsel in this case was an individual
authorized to release the contents of the sanity board to the government pursuant to
R.C.M. 706(c)(5).
11
  As previously stated, while appellant’s defense counsel initially sought to
disqualify trial counsel based upon receipt of the privileged statements, the defense
affirmatively withdrew the motion to disqualify.
12
  We address appellant’s claim of ineffective assistance of counsel separately in the
Ineffective Assistance of Counsel Pretrial section, infra.



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SAVAGE − ARMY 20060167

did not allow the government to introduce appellant’s privileged statements until
after the defense forfeited their privilege under Mil. R. Evid. 302.

       Assuming, arguendo, appellant preserved the issue, we review a “‘military
judge’s decision to admit or exclude evidence . . . under an abuse of discretion
standard.’” 13 United States v. Barnett, 63 M.J. 388, 394 (C.A.A.F. 2006) (citing
United States v. McDonald, 59 M.J. 426, 430 (C.A.A.F. 2004)); see also United
States v. Ayala, 43 M.J. 296, 298 (C.A.A.F. 1995). In an abuse of discretion review,
our court decides a mixed question of fact and law. United States v. Rodriguez, 60
M.J. 239, 246 (C.A.A.F. 2004). We apply a clearly erroneous standard when
reviewing a military judge’s findings of fact, and a de novo standard when reviewing
conclusions of law. Barnett, 63 M.J. at 394; Ayala, 43 M.J. at 298. Therefore, on
mixed questions of fact and law, “a military judge abuses his discretion if his
findings of fact are clearly erroneous or his conclusions of law are incorrect.”
Ayala, 43 M.J. at 298.

        When a defense expert witness introduces an accused’s statement from a
sanity board report, the accused has no privilege with respect to that statement.   
Mil. R. Evid. 302(b). In this case, the government referred to one of appellant’s
statements made during the sanity board after defense counsel purposefully elicited
appellant’s statement from their own defense expert, Dr. Southwell. Dr. Southwell
testified that a history of sleepwalking is an important indicator of parasomnia and
then explicitly stated that “Private Savage didn’t have any recollection” of prior
parasomniac episodes. This reference to appellant’s statement opened the door for
questions concerning appellant’s sleep history. There is no evidence in the record of
trial that the government used any other statement made by appellant during the
sanity board.

      Our superior court’s opinion in United States v. Clark, 62 M.J. 195 (C.A.A.F.
2005) has limited applicability to the facts of this case. In Clark, the military judge
abused his discretion when, after finding that the testimony of appellant’s expert
witness was derivative evidence of the sanity board, the military judge permitted the
government to use appellant’s statements made during his sanity board in the cross-

13
   We recognize that if appellant failed to properly preserve the issue, we would
review the admission of evidence under the plain error standard. See United States
v. Moran, 65 M.J. 178, 181 (C.A.A.F. 2007)(citing Mil. R. Evid. 103(a)(1), 103(d);
United States v. Bungert, 62 M.J. 346, 347 (C.A.A.F. 2006)). In this case, the
government notified the military judge and civilian defense counsel that it intended
to pursue cross-examination on this “one statement,” with “no objection” by civilian
defense counsel. Civilian defense counsel’s apparent waiver, however, was made
after the military judge ruled parasomnia was a “mental condition” under Mil. R.
Evid. 302. Because civilian defense counsel objected and argued that parasomnia
was a physical condition, and therefore Mil. R. Evid. 302 was inapplicable, we will
apply the higher, abuse of discretion standard.


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SAVAGE − ARMY 20060167

examination of a defense expert witness. Id. at 199. The defense expert witness
however, only reviewed appellant’s sanity board report and “did not read the report
until after forming her own opinion.” Id.

       In this case, the defense expert witness, Dr. Southwell, not only considered
the sanity board report in forming his opinion, he authored it. Furthermore, Dr.
Southwell testified about a specific statement provided by appellant directly to him
during the sanity board. Once the defense called this witness to the stand, it clearly
understood the risk of exposing appellant’s statements and, in fact, elicited
appellant’s statement from its own expert. Consequently, the statement was not
privileged and the government had the right to use the statement in the cross-
examination of Dr. Southwell. If the defense had chosen not to call Dr. Southwell
then Clark may have had more relevance here. 14

       With respect to other statements appellant made during the course of the
sanity board unrelated to his sleep history, we find the government did not use any
of the other statements at trial or in preparation of its case. Consequently, appellant
cannot claim prejudice stemming from improper use of those statements. 15

                         Ineffective Assistance of Counsel Pretrial

       Appellant also alleges his first detailed counsel, CPT JT, was ineffective in
releasing the full sanity board report, including all his statements, to the
government. We disagree.

       The right to counsel under the Sixth Amendment includes the right to the
effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984).
Allegations of ineffective assistance of counsel are reviewed de novo. United States

14
  In a similar vein, if Dr. Frey, the other defense expert, had only reviewed the
sanity report after he made a diagnosis, and no other defense expert witness testified
about appellant’s statements, then arguably Clark would prohibit cross-examination
on those statements.
15
  Under the facts of this case, had the government used the statements that remained
privileged under M.R.E. 302, we would test for prejudice under the constitutional
error standard. Although appellant asserts we should review prejudice under the
plain error standard, it is unclear from the record who requested the sanity board.
“[I]f a defendant requests the psychiatric evaluation or presents an insanity defense,
‘The defendant would have no Fifth Amendment privilege against the introduction of
[testimony from his psychiatric evaluation] by the prosecution.’” Clark, 62 M.J. at
200 (citing Buchanan v. Kentucky, 483 U.S. 402, 422-23 (1987)). Because the
record does not affirmatively show appellant requested the sanity board and we do
not decide whether parasomnia is a disorder encompassed by the insanity defense,
we would review prejudice under the higher constitutional error standard.


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v. Dobson, 63 M.J. 1, 10 (C.A.A.F. 2006) (citing United States v. Wean, 45 M.J.
461, 463 (C.A.A.F. 1997)).

       For an appellant to prevail on a claim of ineffective assistance of counsel, an
appellant must demonstrate his counsel’s performance fell below an objective
standard of reasonableness and, but for such deficient performance, the result at trial
would have been different. See Strickland, 466 U.S. at 687; United States v. Paxton,
64 M.J. 484, 488 (C.A.A.F. 2007); United States v. Jameson, 65 M.J. 160, 163
(C.A.A.F. 2007). Assistance of counsel is deficient when counsel “made errors so
serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant
by the Sixth Amendment.” Strickland, 466 U.S. at 687. An appellant has suffered
prejudice when counsel’s performance deprived him of a fair trial. Id.; Scott, 24
M.J. at 188.

       “On appellate review, there is a ‘strong presumption’ that counsel was
competent.” United States v. Grigoruk, 56 M.J. 304, 306-07 (C.A.A.F. 2002) (citing
Strickland, 466 U.S. at 689). A service member “who seeks to relitigate a trial by
claiming ineffective assistance of counsel must surmount a very high hurdle.”
United States v. Moulton, 47 M.J. 227, 229 (C.A.A.F. 1997).

       First, we find CPT JT was not ineffective when she released the entire
contents of the sanity board to the government. Under R.C.M. 706(c)(5), CPT JT
had the authority to release the contents of the sanity board to the government and,
at the time the sanity board report was released, the defense intended to rely on the
defense of lack of mental responsibility. Under these circumstances, Appendix 22 to
the MCM explicitly states that it may be appropriate for the defense counsel “to
disclose the entire sanity report” to the government. MCM, App. 22, A22-9
(emphasis added).

       Defense counsel may have had a valid tactical reason to disclose the report,
such as using the sanity board report to negotiate a favorable pretrial agreement with
the convening authority. In addition, disclosure of the sanity board report did not
automatically permit the government to use any statements made by appellant during
the sanity board process. Military Rule of Evidence 302 explicitly states that the
defense must present expert testimony about appellant’s statements made during a
sanity board in order for the government to use the statements at trial.

       Furthermore, appellant made statements to German authorities about the
events of 11 April 2005 that were nearly identical to the statements appellant made
during the sanity board concerning the facts and circumstances of the attack.
Therefore, the government was already in possession of appellant’s version of the
facts.

      Even if it was error for appellant’s defense counsel to release the entire sanity
board to the government, appellant failed to show prejudice. To show prejudice



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under Strickland, appellant must show “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. at 694. In demonstrating this “reasonable probability,” appellant
must show a “probability sufficient to undermine confidence in the outcome.” Id.;
see Paxton, 64 M.J. at 488. Ultimately, the question is “whether there is a
reasonable probability that, absent the errors, the factfinder would have had a
reasonable doubt respecting guilt.” Strickland, 466 U.S. at 695.

       Appellant has failed to demonstrate that the outcome would have been
different if his defense counsel had not disclosed the entire sanity board report to the
government. As previously stated, the sanity board report, absent appellant’s
statements, would have been disclosed to the government when the defense
presented expert testimony on appellant’s mental condition. In addition, appellant’s
statement that he did not have any recollection of prior parasomniac episodes would
have been released to the government after Dr. Southwell testified, and the
remaining statements from the sanity board report repeat almost entirely the
statements appellant gave to German authorities. There is no reasonable probability
that, but for appellant’s defense counsel’s disclosure of the entire sanity board report
to the government, the result of the proceeding would have been different. Hence,
appellant was not prejudiced by CPT JT’s disclosure of the sanity board report.

          Factual and Legal Sufficiency of Attempted Premeditated Murder

       Appellant also claims the evidence was factually and legally insufficient to
support his conviction for attempted premeditated murder. Article 66(c), UCMJ,
requires our court to conduct a de novo review of the factual and legal sufficiency of
the evidence. In conducting our analysis, we are required “to evaluate not only the
sufficiency of the evidence but also its weight.” United States v. Turner, 25 M.J.
324, 325 (C.M.A. 1987).

       In United States v. Turner, our superior court held “[f]or factual sufficiency,
the test is whether, after weighing the evidence in the record of trial and making
allowances for not having personally observed the witnesses, [this court is]
convinced of [appellant’s] guilt beyond a reasonable doubt.” Turner, 25 M.J. at 325
(emphasis added). Under a legal sufficiency analysis, on the other hand, we must
determine whether, “considering the evidence in the light most favorable to the
government, a rational fact-finder could have found all the essential elements of the
offense beyond a reasonable doubt.” United States v. Craion, 64 M.J. 531, 534
(Army Ct. Crim. App. 2006) (citing United States v. Brooks, 60 M.J. 495, 497
(C.A.A.F. 2005); Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)).

       The elements of the offense of attempted premeditated murder are: (1)
appellant did certain acts (stabbed Ms. KM); (2) the acts were done with the specific
intent to kill; (3) at the time of the acts, appellant had a premeditated design to kill;
(4) the act amounted to more than mere preparation; and, (5) the act apparently



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tended to effect the commission of premeditated murder. Articles 80 and 118(1),
UCMJ.

       The record supports our conclusion that appellant’s conviction is factually and
legally sufficient. Indeed, we find the evidence before us overwhelmingly supports
the verdict. The victim is credible, with no motive to distort the facts surrounding
the attack. Based on all the evidence, the panel appropriately concluded that
appellant tried to kill the victim in this case, Ms. KM. Further, the panel did not
believe the alleged parasomniac event affected appellant’s ability to specifically
intend that result, and neither do we.

       Appellant’s acts are entirely consistent with attempted premeditated murder
and subsequent consciousness of guilt, and inconsistent with a parasomniac event.
Appellant was AWOL from his unit and did not want to return. He also lied about
his location to at least one individual. Appellant knew that the victim thought it best
if he turned himself in, although she never threatened to do so herself. Furthermore,
appellant’s violent acts were only separated from a previously conscious and lucid
conversation by approximately a half-hour’s time. Appellant obtained a knife,
deliberately entered the bedroom, and repeatedly stabbed the victim causing
lacerations, a collapsed lung, and a severed tendon in her finger. During the attack,
appellant choked the victim, told her to “give, and it’s over,” and repeatedly told her
to be quiet. After the attack, rather than rendering aid, he pulled on his pants and
fled the scene. Once appellant arrived at the house of Ms. BM, he told her that a
third party had actually attacked the victim.

       Like the panel at trial, we are not swayed by the defense experts in this case,
neither of whom was overwhelmingly confident in his diagnosis. In concluding that
appellant had the specific intent to kill, the panel also considered the following
evidence. First, the appellant had no history of sleepwalking as a child, an
important factor usually necessary in diagnosing parasomnia. Second, there was
only a short length of time between appellant’s conversation with the victim and the
attack. This length of time is inconsistent with appellant’s ability to enter the phase
of sleep most often associated with parasomniac events. Third, appellant’s
deliberate and complex movements associated with the attack were inconsistent with
a parasomniac event. Fourth, violent parasomniac events are rare; coupled with the
already rare occurrence of any adult onset parasomniac event, this made appellant’s
explanation at trial extremely unlikely. Finally, appellant evinced lack of empathy
after the attack; he obviously knew Ms. KM was hurt, but fled the scene rather than
render aid or even inquire as to her condition. As the experts testified, this is
inconsistent with the rare occurrences of documented violent parasomniac events,
which typically include acts of remorse and attempts by the assailants to aid their
victims.




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      Under the facts of this case and our de novo standard of review, appellant’s
conviction for attempted premeditated murder is factually and legally sufficient
beyond a reasonable doubt.

                                  CONCLUSION

       We have considered the other assignments of error and the errors personally
asserted by appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.
1982) and find them to be without merit.

      The findings of guilty and the sentence are affirmed.

      Senior Judge GALLUP and Judge TOZZI concur.

                                       FOR
                                        FOR THE COURT:
                                            THE COURT:




                                        MALCOLM H. SQUIRES,
                                       MALCOLM         SQUIRES,JR.
                                                                JR.
                                        Clerk of Court
                                       Clerk     Court




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