Filed: Aug. 02, 2002
Latest Update: Mar. 03, 2020
Summary: For Appellant: Major Marc A. Jones (argued); The board, further concluded that there is no evidence that supports SrA Barreto having, any mental disease or defect either before or at the time of the motor, vehicle accident, other than appellants inability to recall the accident.witnesses.
IN THE CASE OF
UNITED STATES, Appellee
v.
David N. BARRETO, Senior Airman
U.S. Air Force, Appellant
No. 01-0819
Crim. App. No. 33948
United States Court of Appeals for the Armed Forces
Argued February 26, 2002
Decided August 2, 2002
EFFRON, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., GIERKE and BAKER, JJ., and SULLIVAN, S.J.,
joined.
Counsel
For Appellant: Major Marc A. Jones (argued); Lieutenant Colonel Beverly B.
Knott, Lieutenant Colonel Timothy W. Murphy, and Captain Patrick J. Dolan
(on brief).
For Appellee: Captain Christa S. Cothrel (argued); Colonel Anthony P.
Dattilo and Lieutenant Colonel Lance B. Sigmon (on brief).
Military Judge: Rodger A. Drew, Jr.
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Barreto, No. 01-0819/AF
Judge EFFRON delivered the opinion of the Court.
A general court-martial composed of a military judge sitting
alone convicted appellant, in accordance with his pleas, of one
specification of reckless driving and one specification of
negligent homicide, in violation of Articles 111 and 134,
Uniform Code of Military Justice, 10 USC §§ 911 and 934. He was
sentenced to a bad-conduct discharge, confinement for seven
months, forfeiture of $717 pay per month for seven months, and
reduction to E-2. The convening authority approved the
sentence. The Court of Criminal Appeals affirmed. 55 M.J. 568
(2001).
On appellant’s petition, we granted review of the following
issues:
I. WHETHER THE MILITARY JUDGE ERRED IN
DENYING THE DEFENSE'S MOTION FOR ABATEMENT
OF APPELLANT'S COURT-MARTIAL PROCEEDINGS
UNTIL SUCH TIME AS APPELLANT WAS ABLE TO
ADEQUATELY ASSIST IN HIS DEFENSE.
II. WHETHER THE MILITARY JUDGE ERRED IN
DENYING THE DEFENSE'S MOTION FOR ABATEMENT
OF APPELLANT'S COURT-MARTIAL PROCEEDINGS
UNTIL SUCH TIME AS THE GOVERNMENT WAS ABLE
TO SECURE THE PRESENCE OF ESSENTIAL
WITNESSES.
For the reasons set forth below, we affirm.
2
United States v. Barreto, No. 01-0819/AF
Background
Appellant was involved in an automobile collision on
Bundesstrasse 50 (“B-50”), a winding two-lane highway in
Germany, between Spangdahlem and Bitburg Air Bases. In support
of his guilty pleas, appellant entered into a stipulation with
the prosecution that established the following facts. The
posted speed limit was 100 kilometers per hour (kph)
(approximately 62 miles per hour). Due to congestion, traffic
in appellant’s direction was moving at 70 kph (approximately 43
miles per hour). Appellant was observed driving a 1987 BMW 325i
in excess of the posted speed limit. Appellant, while driving
in the left lane, passed three or four cars, then abruptly
reentered the right lane to avoid approaching cars.
Moments later, after moving beyond the line of approaching
cars, appellant again pulled into the left lane to begin a
second passing maneuver. The parties further stipulated:
In the second passing maneuver, the accused
crested a hill. . . . From the crest of
this hill, an observer has the ability to
see whether there is any oncoming traffic
for seven or eight hundred meters. . . .
After cresting the hill, the accused passed
at least four cars while traveling downhill
on a left curve at a speed in excess of 100
kph. As the accused was passing, passengers
in the vehicles he passed have stated that
they believed that he would not be able to
return to the right lane without hitting the
oncoming truck.
3
United States v. Barreto, No. 01-0819/AF
Witnesses further reported that appellant again reentered the
right lane abruptly, then braked to avoid going off the right
edge of the road as he rounded the curve. As appellant engaged
the brakes and steered left, he overcorrected and lost control
of his car. The car fishtailed, oscillating laterally to the
right and left, and spun into the path of the oncoming traffic.
Appellant missed the first two oncoming vehicles but struck two
others, a military-owned pickup truck and a civilian truck.
Appellant’s passenger, Stephanie Dorfey, a German national,
suffered massive head trauma and died at the scene. The driver
of the military pickup (a captain) and her passenger (a 15-year-
old military dependent) were seriously injured. Each was
hospitalized for three days. Appellant suffered a variety of
injuries, including a closed head injury, which required a five-
day hospital stay. As a result of the head trauma, appellant
has not been able to remember the accident or the events
immediately preceding it. Appellant has been diagnosed with
retrograde and anterograde amnesia.1 His only memory of the
1
At defense request, a sanity board was convened to evaluate appellant’s
competence to stand trial. The board concluded that appellant was not
malingering and suffered from retrograde and anterograde amnesia, a condition
“very consistent with the type of [head] injury he received.” The board
further concluded that “there is no evidence that supports SrA Barreto having
any mental disease or defect either before or at the time of the motor
vehicle accident,” other than appellant’s inability to recall the accident.
4
United States v. Barreto, No. 01-0819/AF
incident involves leaving Spangdahlem Air Base en route to the
Bitburg Exchange, and then waking up in the hospital.
* * *
Prior to entering his guilty pleas, appellant moved to
abate the proceedings on account of his amnesia, contending his
condition prevented him from competently assisting in his
defense because he could not “communicate to his attorneys the
events surrounding the . . . accident” or “accurately or
reliably testify” to these facts. Appellant also sought to
abate the proceedings on grounds that the prosecution failed to
produce two witnesses -- the driver of the oncoming truck in the
left lane and the last driver appellant passed in his lane of
travel -- whose testimony the defense claimed was “essential to
a fair trial, and there [wa]s no adequate substitute.”
The prosecution's evidence in response to the defense
motions included the findings of two accident reconstruction
experts, physical evidence from the crash site, a computer
simulation reconstructing the accident, and 14 eyewitness
accounts that included 5 sworn statements. The prosecution also
indicated that the convening authority provided appellant with
his own accident reconstruction expert and a part-time
investigator to assist the defense in analyzing the Government’s
evidence. The parties further stipulated that appellant
5
United States v. Barreto, No. 01-0819/AF
attended a “Local Conditions” briefing conducted by the Wing
Safety Office one month prior to the accident as a precondition
to obtaining a military driver’s license. The briefing noted
that B-50 was Germany’s most dangerous highway and most problems
were due to excessive speed and improper passing.
The Government’s evidence established that appellant’s BMW
had no defects which might have caused or otherwise contributed
to the accident, and the accident was the result of driver
error. Prosecution experts concluded that appellant’s second
passing maneuver was unsafe because “the passing occurred on a
curve, at a high rate of speed, and in the face of oncoming
traffic.” In addition, the experts concluded that appellant
lost control of his vehicle from overcorrecting his steering
after reentering his lane of travel. The parties entered into a
pretrial agreement whereby appellant conditionally pled guilty,
preserving the right to appeal the two issues now before us.
See RCM 910(a)(2), Manual for Courts-Martial, United States
(2000 ed.).2
ISSUE I
As previously noted, the defense at trial moved to abate
the proceedings on grounds that appellant was incompetent to
2
All Manual provisions cited are identical to the ones in effect at the time
of appellant’s court-martial.
6
United States v. Barreto, No. 01-0819/AF
stand trial by reason of his amnesia. The defense takes a
similar position in the present appeal, contending that
appellant’s memory loss “indicate[s] an inability to cooperate
rationally in [his] defense” because appellant could not tell
his counsel what happened or testify on his own behalf as to
what occurred. Final Brief at 9. The defense further contends
that as a matter of due process, a person who has no memory of
the alleged crime cannot be convicted unless the prosecution’s
evidence “negates all reasonable hypotheses of innocence.” Id.
at 10, citing Wilson v. United States,
391 F.2d 460 (D.C. Cir.
1968). The defense suggests that there is a “reasonable”
hypothesis of innocence -- the “possib[ility] that . . . his
passenger [Ms. Dorfey] engaged in some negligent act – such as
grabbing at the wheel or otherwise distracting” appellant, and
that her conduct was the proximate cause of the accident.
Id.
at 11.
Discussion
The question of whether an accused is mentally competent to
stand trial is one of fact, and “we will overturn the military
judge’s determination on appeal only if it is clearly
erroneous.” United States v. Proctor, 37 M.J. 330, 336 (CMA
1993); see also RCM 909(e),
Manual, supra. The governing
provision, RCM 909, provides in relevant part:
7
United States v. Barreto, No. 01-0819/AF
(a) In general. No person may be brought to
trial by court-martial if that person is
presently suffering from a mental disease or
defect rendering him or her mentally
incompetent to the extent that he or she is
unable to understand the nature of the
proceedings against them or to conduct or
cooperate intelligently in the defense of
the case.
(b) Presumption of capacity. A person is
presumed to have the capacity to stand trial
unless the contrary is established.
* * *
(e) Incompetence determination hearing.
(1) Nature of issue. The mental capacity of
the accused is an interlocutory question of
fact.
(2) Standard. Trial may proceed unless it
is established by a preponderance of the
evidence that the accused is presently
suffering from a mental disease or defect
rendering him or her mentally incompetent to
the extent that he or she is unable to
understand the nature of the proceedings or
to conduct or cooperate intelligently in the
defense of the case. In making this
determination, the military judge is not
bound by the rules of evidence except with
respect to privileges.
(3) If the military judge finds the accused
is incompetent to stand trial, the judge
shall report this finding to the general
court-martial convening authority, who shall
commit the accused to the custody of the
Attorney General.
(Emphasis added.)
8
United States v. Barreto, No. 01-0819/AF
Under the rule, an accused must have “sufficient present
ability to consult with his lawyer with a reasonable degree of
rational understanding – and . . . a rational as well as factual
understanding of the proceedings against him” in order to stand
trial. Proctor, 37 M.J. at 336 (quoting Dusky v. United States,
362 U.S. 402 (1960)). An accused’s inability to remember the
details of an offense does not, without more, compel a finding
of incompetence. United States v. Olvera, 4 USCMA 134, 15 CMR
134 (1954). With respect to amnesia, we have noted:
Concededly, such an accused is at some
disadvantage -- for, if innocent, he does
not demonstrate that quality by testimony
that he . . . does not remember. However,
he is still quite competent to assume the
witness stand, and to assure the court that
he does not remember -- and he is certainly
able to analyze rationally the probabilities
of his having committed the offense in light
of his own knowledge of his character and
propensities.
Id. at 142, 15 CMR at 142.
As in Olvera, appellant’s amnesia did not preclude him from
intelligently cooperating in his defense or taking the stand on
his own behalf. RCM 909(a). He does not contend that his
amnesic condition impaired his ability to rationally examine and
assess the strength of the Government’s evidence against him.
As noted in the military judge's findings of fact, appellant
exhibited “poise[], clearly understood the questions put to him
9
United States v. Barreto, No. 01-0819/AF
by his counsel, and provided clear and credible responses” when
he testified during the hearing to consider the abatement
motion. Moreover, the defense was provided with its own
accident reconstruction expert and an independent investigator
to assist in preparing a defense and evaluating the Government’s
evidence. The prosecution also provided the defense with
unlimited access to the Government’s experts, and all its
evidentiary files.
The military judge also noted that, although appellant had
no memory of the accident itself, he was not precluded from
“providing his defense counsel with his knowledge of his
character, propensities, driving habits, and previous
experiences with his vehicle and the roadway involved in the
incident,” and identifying character witnesses to corroborate or
otherwise testify to these matters on his behalf. See Olvera,
supra.
Under these circumstances, appellant’s decision to plead
guilty reflected a rational decision made in light of the
prosecution’s overwhelming evidence of his guilt. This included
14 eyewitnesses -- witnesses who were available to the defense
for interview and cross-examination -- the testimony of two
accident reconstruction experts, physical and documentary
evidence collected at the crash site, and a computer simulation
10
United States v. Barreto, No. 01-0819/AF
reconstructing the accident. This evidence provided ample
grounds to prove that appellant was driving recklessly along B-
50 prior to the accident, with specific knowledge that B-50 was
a dangerous roadway,3 and that his BMW spun out of control after
he attempted to pass four or five cars along a curve at an
unsafe speed in the face of oncoming traffic.
In affirming the military judge’s ruling, the Court of
Criminal Appeals relied on the test set out in Wilson, supra.4
In Wilson, the court identified six factors to be considered
when assessing the capacity of an amnesic defendant to stand
trial, three of which are pertinent to the present case:
(3) The extent to which the evidence in suit
could be extrinsically reconstructed in view
of the defendant's amnesia. Such evidence
would include evidence relating to the crime
itself as well as any reasonably possible
alibi.
(4) The extent to which the Government
assisted the defendant and his counsel in
that reconstruction.
(5) The strength of the prosecution's case.
Most important here will be whether the
3
Appellant’s amnesia did not prevent him from remembering the fact that he
had attended the “Local Conditions” briefing on B-50 just weeks before the
accident and had personal knowledge that it was a dangerous highway. His
memory loss was only limited to the facts of the accident. See n.1, supra.
4
We need not decide whether, as a general matter, the test in Wilson should
be applied in all memory loss cases. In the present case, the application of
the Wilson factors by the Court of Criminal Appeals satisfied the standards
we have applied in prior cases and more than adequately protected appellant’s
substantial rights.
11
United States v. Barreto, No. 01-0819/AF
Government's case is such as to negate all
reasonable hypotheses of innocence. If
there is any substantial possibility that
the accused could, but for his amnesia,
establish an alibi or other defense, it
should be presumed that he would have been
able to do so.[5]
391 F.2d at 463 (footnote omitted).
Regarding the third factor, the court below concluded that
this requirement was more than met by the Government’s
submitting into evidence the findings of its two accident
reconstruction experts, physical evidence taken from the
accident site, and a computer simulation reconstructing the
accident. 55 M.J. at 571. The court further observed that the
Government “went to great lengths to assist the defense” by
providing the defense team its own independent investigator and
accident reconstruction expert, satisfying the fourth factor.
Id.
5
The other factors identified by the Wilson court are:
(1) The extent to which the amnesia affected the
defendant's ability to consult with and assist his
lawyer.
(2) The extent to which the amnesia affected the
defendant's ability to testify in his own behalf.
* * *
(6) Any other facts and circumstances which would
indicate whether or not the defendant had a fair
trial.
12
United States v. Barreto, No. 01-0819/AF
We agree with the Court of Criminal Appeals that this
evidence “negated any other reasonable hypothesis” of
appellant’s innocence (fifth factor). Id. Appellant’s
passenger interference theory –- that Ms. Dorfey may have done
something to interfere with his driving when he abruptly
reentered the right lane –- is speculative at best. The record
is devoid of evidence that would justify concluding that this
theory constituted a “reasonable” hypothesis of innocence.
Moreover, the defense did not otherwise present sufficient
evidence to demonstrate a “substantial possibility” that
appellant could have established a defense even with a full
memory. We also note that while the fact of appellant’s amnesia
did not warrant the abatement of his trial, he was free to
present evidence of his memory loss and his theory of passenger
interference to the court-martial.6
ISSUE II
At trial, defense counsel also moved to compel production
of two witnesses -- the driver of the lead truck approaching in
the left lane and the driver of the last vehicle appellant
391 F.2d at 463-64 (footnote omitted).
6
We have noted elsewhere that if it were shown that an accused’s amnesic
condition was temporary, judicial discretion may warrant the grant of a
“reasonable continuance[] to effectuate the recovery of memory.” United
States v. Olvera, 4 USCMA 134, 142, 15 CMR 134, 142 (1954). However, the
sanity board concluded, and appellant concedes, that it is likely he will
never recover his memory of the accident.
13
United States v. Barreto, No. 01-0819/AF
passed in the right lane -- or, in the alternative, to abate the
proceedings. Neither the defense nor the prosecution had
knowledge of the names or contact information for these
witnesses. The defense first requested production of the
unknown witnesses on May 3, 1999, in a memorandum to the Article
327 investigating officer pursuant to RCM 405(g), Manual, supra,
approximately eight months after the accident. In an attempt to
locate the witnesses, the Government placed ads in German and
U.S. newspapers in the summer of 1999. Although four
eyewitnesses responded, there was no response from the two
drivers requested by the defense.
Defense counsel argued that testimony from the unknown
witnesses was essential to a fair trial because they were the
only persons with unobstructed views of the accident. In
response, the Government noted that 3 of its 14 eyewitnesses
stated that they had unobstructed views of appellant’s second
passing maneuver and of the accident itself.
The military judge denied the defense motion and noted:
[T]he prosecution has done all that it is
required to do in the way of investigating
its case, as well as disclosing the
information that it has available to the
defense . . . . It is impressive that the
number of witnesses that the prosecution has
been able to locate, even given the amount
7
Uniform Code of Military Justice, 10 USC § 832.
14
United States v. Barreto, No. 01-0819/AF
of time after the events occurred, when the
Government began its media campaign, if you
will, to try to alert the members of the
U.S. and German communities as to the need
for them to come forward. A number of such
people did, in fact, come forward[.]
The military judge further found that the prosecution’s evidence
was more than sufficient to substitute for the unknown
witnesses. The defense did not allege bad faith and agreed that
the “prosecutors have acted in good faith and done everything
they could, [but] they didn’t start until too late.”
Discussion
We have held that “[a] trial may proceed in the absence of
a relevant and necessary witness if that witness is not amenable
to process.” United States v. Davis, 29 M.J. 357, 359 (CMA 1990)
(citing Mil. R. Evid. 804(a) and RCM 703(b)(3),
Manual, supra).
The issue as to whether the prosecution has satisfied its duty
to produce under RCM 703 “‘is a question of reasonableness.’
The ultimate question is whether the witness is unavailable
despite good-faith efforts undertaken prior to trial to locate
and present that witness.”
Id. (quoting Ohio v. Roberts,
448
U.S. 56, 74 (1980)). Once the unavailability of a witness is
established, RCM 703(b)(3) provides:
Unavailable witness. Notwithstanding
subsections (b)(1) and (2) of this rule, a
party is not entitled to the presence of a
15
United States v. Barreto, No. 01-0819/AF
witness who is unavailable within the
meaning of Mil. R. Evid. 804(a). However,
if the testimony of a witness who is
unavailable is of such central importance to
an issue that it is essential to a fair
trial, and if there is no adequate
substitute for such testimony, the military
judge shall grant a continuance or other
relief in order to attempt to secure the
witness’ presence or shall abate the
proceedings, unless the unavailability of
the witness is the fault of or could have
been prevented by the requesting party.
We note, as an initial matter, that the Government had very
little with which to work as it attempted to locate the unknown
witnesses. Defense counsel did not provide the prosecution with
names, contact data, or any other identifying information that
could be used to locate and produce them, as the Manual
requires. See RCM 703(c)(2)(B)(i). Appellant does not contend
that the Government failed to undertake reasonable efforts or
exert due diligence in this endeavor, and does not allege bad
faith by the prosecutors or investigators. We also note that
defense counsel did not suggest to the court other means that
the Government could have been ordered to employ, in addition to
running newspaper ads, to locate the two drivers.
We reject appellant’s contention that the missing witnesses
were “critical and vital” to his defense and necessary for a
fair trial. It is not clear whether the driver of the lead
truck in the left lane even witnessed the accident, and the
16
United States v. Barreto, No. 01-0819/AF
record indicates that the driver of the lead truck did not stop.
Appellant hit the third vehicle, and the driver of the second
car -- a surgeon who stopped to render aid -- stated that he
witnessed the collision from his rearview mirror. Further, the
Government’s proffer of three witnesses with unobstructed views
of appellant as he drove along B-50 and the accident, in
addition to its other eyewitness and expert evidence,
constituted an adequate substitute for the testimony of the
unknown witnesses.
Conclusion
The decision of the United States Air Force Court of
Criminal Appeals is affirmed.
17
