ACCA's Savage opinion

As foreshadowed in Friday's No Man-enhanced post on Savage, the case involves the defense's theory that the accused repeatedly stabbed his victim while in a "parasomniac" state. United States v. Savage, __ M.J. ___, No. ARMY 20060167 (A. Ct. Crim. App. March 19, 2009).

ACCA ruled that parasomnia is "a 'mental condition' as defined by Mil. R. Evid. 302." Id., slip op. at 8. Accordingly, ACCA concluded, there was nothing wrong with the prosecution receiving the long-form R.C.M. 706 report, which one of PVT Savage's military defense counsel had turned over to the trial counsel. Id., slip op. at 9. While ACCA concluded that MRE 302 didn't allow the government to receive PVT Savage's statements to the 706 board unrelated to his sleep history, ACCA held that the defense didn't properly preserve that error by seeking the trial counsel's disqualification due to the receipt of privileged information. (ACCA writes that "even if there was error, the defense did not seek the appropriate remedy." Id., slip op. at at 9. The previous sentence, however, appears to definitively find error: "the government was not entitled to appellant's other statements made during the course of the sanity board unrelated to his sleep history." Id.)

ACCA also rejected an argument that PVT Savage's military defense counsel provided ineffective assistance of counsel when he turned over the entire 706 report to the TC. Id., slip op. at 12. ACCA found that it wasn't unreasonable for the defense counsel to give the TC the entire report. The court found the DC was authorized to do so, that when he did so the defense intended to rely on a lack of mental responsibility defense, and that Appendix 22 to the MCM suggests that when the defense relies on lack of mental responsibility, it may be appropriate to turn over the entire 706 report to the government. Id., slip op. at 13. ACCA also found that no prejudice arose from turning over the whole report. Id.

ACCA also found that the evidence was legally and factually sufficient to support a finding of guilty to premeditated murder. Id., slip op. at 14-16.