United States v. Witt

IN THE UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

UNITED STATES

Appellee,

v.

Senior Airman (E-4)

ANDREW P. WITT, USAF

Appellant.

A.F. Ct. Crim. App. No. ACM 36785

(recon)

Before the Court En Banc

OPINION OF THE COURT

UPON RECONSIDERATION

JUDGES

HELGET, HARNEY, SARAGOSA, MARKSTEINER, MITCHELL, and PELOQUIN

This opinion is subject to editorial correction before final publication.

1 ACM 36785 (recon)

Table of Contents

I. Background............................................................................................................................................... 5

II. Findings Issues ........................................................................................................................................ 8

A. Qualifications of Trial Defense Counsel ............................................................................................. 8

B. Challenge for Cause of Colonel DH.................................................................................................. 10

C. Unlawful Command Influence .......................................................................................................... 13

D. Findings Argument ........................................................................................................................... 15

E. Admission of Crime Scene and Autopsy Photographs ...................................................................... 18

F. Findings Instructions ......................................................................................................................... 19

G. Impeachment of Staff Sergeant PG ................................................................................................... 21

III. Assistance of Counsel .......................................................................................................................... 26

A. Counsel’s Performance in Findings .................................................................................................. 26

1. Military Judge’s Sentencing Comments During Voir Dire............................................................ 27

2. Trial Counsel’s Voir Dire Questions.............................................................................................. 28

3. Peremptory Challenge of Colonel DC ........................................................................................... 28

4. Courtroom Security ........................................................................................................................ 29

5. Promises Made During Opening Statement ................................................................................... 30

6. Witnesses’ Sequestration ............................................................................................................... 33

7. Mental Health Issues ...................................................................................................................... 35

B. Counsel’s Performance in Sentencing............................................................................................... 37

1. Motorcycle Accident Injury ........................................................................................................... 40

2. Mental Health Records of the Appellant’s Mother ........................................................................ 52

3. Evidence of Remorse ..................................................................................................................... 68

4. Failure to Offer Evidence of Future Violence Risk ....................................................................... 75

5. Failure to Offer Testimony of SP and KP ...................................................................................... 75

6. Failure to Object to Inadmissible Victim Impact Evidence and Argument, and Failure to Request

Appropriate Curative Instruction ........................................................................................................ 76

IV. Additional Sentencing Issues................................................................................................................ 80

A. Sentencing Argument ........................................................................................................................ 80

B. Military Judge’s Instructions ............................................................................................................. 81

1. Voir Dire Reference to Sentencing Procedure ............................................................................... 81

2 ACM 36785 (recon)

2. Presentencing Instructions on Voting Procedure ........................................................................... 83

3. Presentencing Instruction on Members’ Duty – Community Expectations ................................... 85

C. Other Impermissible Trial Counsel Sentencing Arguments .............................................................. 92

D. Erroneously Admitted Victim Impact Testimony ............................................................................. 93

V. Cumulative Error................................................................................................................................... 94

VI. Post-Trial Issues................................................................................................................................... 94

A. Post-Trial Challenge of Military Judge ............................................................................................. 94

B. Assistant Trial Counsel’s Authentication of the Record ................................................................... 95

C. Post-Trial Delay ................................................................................................................................ 95

VII. Assignments of Error Regarding New Convening Authority Action................................................... 96

VIII. Systemic Issues ................................................................................................................................ 105

IX. Summary Assignments of Error.......................................................................................................... 112

X. Proportionality Review........................................................................................................................ 113

XI. Conclusion.......................................................................................................................................... 113

3 ACM 36785 (recon)

UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS

UNITED STATES

v.

Senior Airman ANDREW P. WITT

United States Air Force

ACM 36785

(recon)

30 June 2014

____ M.J. ____

Sentence adjudged 13 October 2005 by GCM convened at Bibb County

Courthouse, Georgia. Military Judge: W. Thomas Cumbie.

Approved Sentence: To be put to death.

Appellate Counsel for the Appellant: Dwight H. Sullivan, Esquire (argued);

Major Daniel E. Schoeni (argued); Colonel Nikki A. Hall; Lieutenant

Colonel Shannon A. Bennett; Major Michael A. Burnat; Major Timothy M.

Cox; Major Michael S. Kerr; Major Matthew T. King; Major Nicholas W.

McCue; and Captain Tiaundra D. Sorrell.

Appellate Counsel for the United States: Major Charles G. Warren

(argued); Gerald R. Bruce, Esquire (argued); Colonel Don M. Christensen;

Colonel Douglas P. Cordova; Colonel Martin J. Hindel; Colonel Matthew S.

Ward; Lieutenant Colonel Linell A. Letendre; Lieutenant Colonel Jeremy S.

Weber; Lieutenant Colonel Nurit Anderson; Major Deanna Daly; Major

Jason M. Kellhofer; Major G. Matt Osborn; Major Donna S. Rueppell;

Major Roberto Ramirez; and Major Ryan N. Hoback.

EN BANC

HELGET, HARNEY, SARAGOSA, MARKSTEINER, MITCHELL, and PELOQUIN

Appellate Military Judges

OPINION OF THE COURT

UPON RECONSIDERATION

This opinion is subject to editorial correction before final publication.

4 ACM 36785 (recon)

MARKSTEINER, S.J., delivered the opinion of the Court, in which HELGET, C.J., 1 and

HARNEY, S.J., join. MITCHELL, J., filed an opinion concurring dubitante.

SARAGOSA, J., with whom PELOQUIN, J., 2 joins, filed an opinion concurring in part

and dissenting in part. PELOQUIN, J., filed an opinion concurring in part and dissenting

in part.

MARKSTEINER, Senior Judge: 3

The appellant was tried by a general court-martial composed of twelve officers,

between April and October 2005. He was found guilty of the premeditated murders of

Senior Airman (SrA) AS and his wife JS, as well as the attempted premeditated murder

of (then) SrA JK, in violation of Articles 118 and 80, UCMJ, 10 U.S.C. §§ 918, 880,

respectively. On 13 October 2005, the members sentenced the appellant to death. The

convening authority approved the findings and sentence as adjudged.

On appeal, the appellant has raised 89 issues which relate to the findings of guilty,

the sentence, post-trial processing, and other miscellaneous systemic errors. In a

previous decision, this Court affirmed the findings but set aside the sentence, ordering the

record of trial to be returned to The Judge Advocate General for remand to the convening

authority. United States v. Witt, 72 M.J. 727 (A.F. Ct. Crim. App. 2013). Following our

decision, the Government motioned the Court, inter alia, for reconsideration and

reconsideration en banc, opposed by the appellant. On 21 October 2013, we granted the

Government’s motion, vacating our previous opinion, and on 28 January 2014 heard oral

argument on a specified issue relating to three of the appellant’s ineffective assistance of

counsel claims.

For the reasons set forth below, we now affirm the approved findings and

sentence.

I. Background

On the evening of 4 July 2004, SrA AS and his wife, JS, arrived at the on-base

home of SrA JK and his wife to celebrate Independence Day. SrA JK’s wife went to bed

1

The Judge Advocate General of the Air Force designated Senior Judge Helget as Chief Appellate Military Judge

for United States v. Witt, ACM 36785 (recon), via memorandum dated 18 October 2013, due to the recusal of Chief

Judge Roan.

2

Judge Peloquin was a member of the Court when it heard oral argument en banc and participated in the decision

before his retirement on 1 June 2014.

3

Although it is customary for the opinion of the Court to appear after the name of a single author judge, we note

that significant portions of this opinion—in particular Parts I, II.D–G, III.A, IV.A–B, VI, and IX—represent the

original authorship of Judge Saragosa, who wrote the Court’s majority opinion when it first considered this case.

See United States v. Witt, 72 M.J. 727 (A.F. Ct. Crim. App. 2013). As much of that opinion was left unchanged by

our reconsideration, it was unnecessary to refashion those sections previously authored by Judge Saragosa.

5 ACM 36785 (recon)

at approximately 0100 hours on 5 July 2004. At some point in the morning hours, JS told

her husband and SrA JK that on the evening of 3 July 2004, when the appellant was a

guest at her home, the appellant had made a sexual advance toward her. This disclosure

made her husband angry, so he called and confronted the appellant at 0137 hours. He

followed up with two additional completed phone calls to the appellant and nine

additional unanswered calls. The last call originating from either SrA AS or SrA JK was

at 0212 hours. At 0221, the appellant called SrA AS, and they spoke for 33 minutes.

At some point during the phone call exchanges, the appellant changed into his

battle dress uniform (BDU). He retrieved a knife from his closet, placed the knife in the

trunk of his car, and drove onto Robins Air Force Base, Georgia, arriving at

approximately 0315. He would later write in a statement to the Air Force Office of

Special Investigations (AFOSI) that he wore his BDU because he “wanted to observe

them unseen to see what was going on.” He also told his roommate he wore the BDU so

“they wouldn’t see [him].” He further told his roommate that SrA AS had threatened to

get him into trouble by disclosing his advance toward JS and an affair he was having. In

his written statement, the appellant stated that SrA AS was yelling at him during the

phone calls and threatened his career.

After arriving on base, the appellant parked his car in base housing about 50 yards

from SrA JK’s residence. From there, he went to the residence and observed SrA JK,

SrA AS, and JS from behind the bushes and the trees. There were additional heated

phone calls between the appellant and SrA JK after the appellant arrived on base. There

were also phone calls in which the appellant was apologetic or told SrA JK that he and

SrA AS “should come over here and kick [his] ass.” SrA JK responded with words to the

effect of, “You need your ass kicked.”

At approximately 0400 hours, SrA JK, SrA AS, and JS drove from SrA JK’s

house to SrA AS’s house, approximately 0.2 miles away and still in base housing. The

appellant watched the three get into a vehicle and drive away. He then traveled to

SrA AS’s house by foot. The trio was already inside the home when the appellant let

himself in and found SrA AS in the kitchen. SrA AS yelled at the appellant to get out of

his house, and a scuffle ensued between them. SrA JK came in and tried to get the

appellant off of SrA AS by putting him in a headlock. The appellant took out his knife

and stabbed SrA JK in the chest. As SrA JK backed up, JS screamed, “Oh my God,

you’re bleeding!” The appellant stabbed SrA AS, who “fell to the floor,” as one of the

wounds rendered SrA AS paralyzed from the upper waist down. JS fled to a bedroom

where she locked herself in. SrA JK attempted to run out of the house through a kitchen

door, but as he struggled with a deadbolt the appellant stabbed him again. SrA JK was

eventually able to get outside, where he ran for “the first house [he] could see that had a

light on.” SrA JK ultimately reached the neighbor’s home, bleeding profusely, and the

neighbor called for help.

6 ACM 36785 (recon)

Not wanting “to leave any evidence,” the appellant returned to SrA AS’s house

and found SrA AS on the phone with 911. He went to the bedroom where JS had locked

herself in and broke through the door. He found JS in a fetal position and, “scared to

leave a witness,” he broke her arm and stabbed her multiple times. He then returned to

SrA AS, stabbing him in the ribs and the heart.

During the AFOSI’s investigation, the appellant led the special agents to the

location where he disposed of the knife he used in the crimes, as well as his BDU cap and

boots. DNA analysis revealed blood stains from the appellant’s BDU blouse, BDU pants,

BDU hat, and boots matched the DNA profile of JS. Trace evidence in the form of red

fibers were recovered from the knife. Microscopic analysis showed the fibers were

consistent with the characteristics and color of the fibers in the shirts worn by SrA AS

and SrA JK, who were both wearing red shirts on the night of 4 July 2004.

SrA JK was stabbed four times and sustained a laceration to his arm. Three of

these stab wounds were potentially life-threatening. He suffered a stab wound to the

chest that punctured his left lung and nearly went through his entire chest cavity. He also

suffered stab wounds to his back—one to the splenic hilum that cut the splenic artery and

a second to the kidney. He underwent emergency surgery and was hospitalized for 15

days. He also underwent four to five follow-up surgeries, spending over 30 cumulative

days in the hospital.

SrA AS suffered three stab wounds. The first of these wounds was to the left side

of his back. The knife entered the right chest cavity, penetrated his diaphragm and went

into his liver. A second wound cut through SrA AS’s backbone at the thoracic vertebrae

and severed his spinal cord. This wound left him instantly paralyzed from his upper

waist down. While these two wounds were medically significant, they were not lethal or

life-threatening. The final stab wound was to his chest, piercing the front and back of the

left ventricle of his heart. This wound was immediately lethal and delivered after the

previously described paralyzing wound.

JS was stabbed a total of five times, four of which were to her back. One of these

wounds was to her left chest cavity, through her diaphragm, and into her spleen, causing

her left lung to collapse. A second wound entered the side of her body, going into the

abdomen and spleen. A third wound was to her lower back, entering into her kidney and

liver. The fourth wound was to the right edge of her back, entering her right chest wall

and collapsing her right lung. She also suffered an incised wound to the back, cutting

into her sixth, seventh, and eighth ribs. Her final stab wound was located beneath her

right armpit, piercing the soft tissue of her breast and entering her chest cavity.

The court-martial convicted the appellant of all the charges and specifications; the

7 ACM 36785 (recon)

findings of guilty of the capital offenses, the premeditated murders of SrA AS and JS,

were announced as unanimous. A sentencing hearing was conducted pursuant to Rule for

Courts-Martial (R.C.M.) 1004, after which the court-martial, by unanimous vote,

sentenced the appellant to be put to death. 4

Additional relevant facts are set out below in connection with specific issues.

II. Findings Issues

We begin our analysis by addressing the various issues the appellant has raised

related to the findings portion of the case.

A. Qualifications of Trial Defense Counsel

As a preliminary issue, the appellant argues that his three trial defense counsel

were not qualified to represent him because they did not satisfy the American Bar

Association Guidelines for the Appointment and Performance of Counsel in Death

Penalty Cases (rev. ed. 2003), reprinted in 31 Hofstra L. Rev. 913 (2003) [hereinafter

“ABA Guidelines”]. Relying on various policy memoranda to support his argument, the

appellant asserts that the ABA Guidelines are binding on military and civilian trial

defense counsel in Air Force courts. In 2005, The Judge Advocate General (TJAG) of

the Air Force issued TJAG Policy Memorandum TJS-3, Air Force Standards for

Criminal Justice (AFSCJ) (15 May 2005). That memorandum states, in part, that the

AFSCJ “were adapted from the American Bar Association Standards for Criminal Justice

[hereinafter “ABA Standards”].” Id. at ¶ 2. Because paragraph 4-1.2(c) of the

ABA Standards incorporates the ABA Guidelines, 5 the appellant argues that the

ABA Guidelines are binding upon Air Force practitioners through the AFSCJ. We

disagree.

We review questions of regulatory construction de novo. United States v. Estrada,

69 M.J. 45, 47 (C.A.A.F. 2010) (citing United States v. McCollum, 58 M.J. 323, 340

(C.A.A.F. 2003); United States v. Phillips, 39 C.M.R. 230, 234 (C.M.A. 1969)). When

interpreting regulations, we will apply normal rules of statutory construction. Id. (citing

United States v. Custis, 65 M.J. 366, 370 (C.A.A.F. 2007)). In our view, the

ABA Standards, including those that refer to the ABA Guidelines, are only recommended

4

A sentence of death includes a dishonorable discharge and, as a necessary incident of the sentence, confinement.

Rule for Courts-Martial (R.C.M.) 1004(e). By operation of Article 58b, UCMJ, 10 U.S.C. § 858b, such a sentence

also results in forfeiture of pay and allowances during that confinement.

5

Paragraph 4-1.2(c) of the American Bar Association Standards for Criminal Justice states, in part: “Since the

death penalty differs from other criminal penalties in its finality, defense counsel in a capital case should respond to

this difference by making extraordinary efforts on behalf of the accused. Defense counsel should comply with the

[American Bar Association] Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases.”

8 ACM 36785 (recon)

guidelines and not mandatory rules. Here, the ABA Standards state that they are

“intended to be used as a guide to professional conduct and performance” and not as

criteria for the “judicial evaluation of alleged misconduct of defense counsel to determine

the validity of a conviction.” ABA Standards, ¶ 4-1.1. Moreover, the ABA Standards

state only that defense counsel “should comply with the ABA Guidelines.”

ABA Standards, ¶ 4-1.2(c). The AFSCJ also provides a means for resolving any conflict

between the AFSCJ and any standard or guideline inconsistent with legal precedent:

“[I]n the event of conflict, the [UCMJ, Manual for Courts–Martial, United States

(MCM)], Air Force Instructions (AFI), the Air Force Rules of Professional Conduct

[(AFRPC)], case law, and the Air Force Uniform Code of Judicial Conduct (AFUCJC)

will control.” See TJS-3, Attachment 1 (15 October 2002).

We also note that our superior court has declined to mandate compliance with the

ABA Guidelines. United States v. Loving, 41 M.J. 213, 300 (C.A.A.F. 1994). That Court

has also noted that limited experience does not raise a presumption of ineffectiveness.

Id. (citing United States v. Cronic, 466 U.S. 648, 665 (1984)). See also United States v.

Murphy, 50 M.J. 4, 9-10 (C.A.A.F. 1998) (citation omitted). Instead, the “quality of legal

representation” is determined under the standards set by Strickland v. Washington,

466 U.S. 668 (1984), as analyzed below.

More practically, the absence of enumerated qualifications does not equate to

deficient performance in a particular case. This is not a case where trial defense counsel

“put on a halfhearted mitigation case” or “abandoned their investigation of [appellant’s]

background after having acquired only rudimentary knowledge of his history from a

narrow set of sources.” See Wiggins v. Smith, 539 U.S. 510, 526 (2003) (holding trial

defense counsel rendered constitutionally deficient performance by failing to investigate

petitioner’s life history beyond the presentence investigation report, notwithstanding

availability of funds to conduct thorough social history investigation). Similarly,

counsel’s performance in the case at bar does not resemble the conduct of counsel in

cases where the courts have specifically recognized pronounced shortcomings in attorney

performance. See Sears v. Upton, 561 U.S. 945 (2010) (trial defense counsel spent a

single day on sentence preparation and failed to discover voluminous non-speculative

information about severe privation and mental illness); Porter v. McCollum, 558 U.S. 30

(2009) (trial defense counsel failed to obtain any school, medical, or military service

records, and to interview any members of Porter’s family); Rompilla v. Beard,

545 U.S. 374 (2005) (trial defense counsel failed to retrieve and examine an easily

obtainable file pertaining to appellant’s prior conviction, which he was clearly on notice

the prosecutor intended to reference); Williams v. Taylor, 529 U.S. 362 (2000) (trial

defense counsel’s one-week preparation for sentencing case failed to uncover extensive

records of a “nightmarish” childhood).

The appellant was represented by three counsel in this case: two appointed

9 ACM 36785 (recon)

military counsel and a civilian of his own selection. His civilian counsel, FS, who was

lead counsel on the case, was a retired judge advocate. Though FS had no capital

experience, he did have experience defending many complex military cases. At the time

of trial, he had been practicing military law for over twenty-five years, having spent most

of that time as a defense counsel working at both the trial and appellate levels. He had

represented hundreds of military members at trial and on appeal, and taught military law

for four years at the United States Air Force Academy. He also served on the adjunct

faculty at the Air Force Judge Advocate General’s School, where he taught basic and

advanced trial advocacy.

One of the appellant’s two military counsel, Captain (Capt) DR, was, at the time

of trial, a Circuit Defense Counsel. A graduate of Cornell Law School and licensed in

Massachusetts, Capt DR served as the Chief of Military Justice at Rhein-Main Air Base,

Germany, the Area Defense Counsel (ADC) at Kunsan Air Base, Korea, and was newly

appointed as a Circuit Defense Counsel (CDC) roughly the month before the appellant’s

crimes. By the start of the appellant’s trial, Capt DR had defended thirteen non-capital

cases in his capacity as a CDC. He attended three separate advocacy courses between

Spring 2003 and Spring 2004, plus an additional three-day course sponsored by the

National Association of Criminal Defense Lawyers entitled “Making the Case for Life.”

The focus of this law course, which Capt DR attended in Fall 2004, was on jury selection,

developing mitigation evidence, and working mitigation into the findings case. In

addition to his formal training, he visited the Navy-Marine Corps Death Penalty Resource

Center and reviewed a substantial number of files, which at the time consisted mostly of

records of trial from the various Navy-Marine Corps death penalty cases as well as the

appellant briefs that had been filed in those cases. Further, he regularly communicated

with the Navy appellate judge advocate who was assigned to the Navy-Marine Corps

Death Penalty Resources Center as he and the trial defense team worked the case.

FS and Capt DR worked with the base ADC, who was admittedly very

inexperienced in defense work at the time. In short order, they had retained a mitigation

expert and a highly-recommended expert forensic psychologist to augment their trial

defense team. Although it is true that none of the appellant’s trial defense counsel had

ever defended a capital case prior to representing the appellant at trial, their combined

qualifications and demonstrated performance at trial do not reveal them to have been per

se unqualified or otherwise substantively unqualified to represent the appellant, as our

dissenting colleague argues.

Accordingly, we find this alleged error to be without merit.

B. Challenge for Cause of Colonel DH

The appellant argues that the military judge abused his discretion by denying the

10 ACM 36785 (recon)

defense challenge for cause against Colonel (Col) DH. The appellant asserts that the

military judge (1) failed to grant the challenge on implied bias and (2) failed to refer to

the liberal grant mandate in his ruling. We disagree on both counts.

Rule for Courts-Martial 912 includes challenges based upon the concepts of both

actual and implied bias. United States v. Moreno, 63 M.J. 129, 133 (C.A.A.F. 2006)

(citing United States v. Napoleon, 46 M.J. 279, 283 (C.A.A.F. 1997); United States v.

Minyard, 46 M.J. 229, 231 (C.A.A.F. 1997)). The issue sub judice concerns implied bias.

Rule for Courts-Martial 912(f)(1)(N) provides that a member shall be excused for cause

whenever it appears that the member “[s]hould not sit as a member in the interest of

having the court-martial free from substantial doubt as to legality, fairness, and

impartiality.”

The test for implied bias is objective, viewed through the eyes of the public, and

focuses on the appearance of fairness in the military justice system. United States v.

Leonard, 63 M.J. 398, 402 (C.A.A.F. 2006) (citations omitted); Moreno, 63 M.J. at 134;

United States v. Rome, 47 M.J. 467, 469 (C.A.A.F. 1998); United States v. Daulton,

45 M.J. 212, 217 (C.A.A.F. 1996). If the public perceives that an accused received less

than a court composed of fair, impartial, and equal members, our superior court has not

hesitated to set aside the affected findings and/or sentence. See Leonard, 63 M.J. at 403;

Moreno, 63 M.J. at 135; United States v. Wiesen, 56 M.J. 172, 176-77 (C.A.A.F. 2001).

However, implied bias should be relied upon sparingly. United States v. Strand,

59 M.J. 455, 458 (C.A.A.F. 2004).

We review rulings on challenges for implied bias under a standard that is less

deferential than abuse of discretion, but more deferential than de novo review. Moreno,

63 M.J. at 134; United States v. Armstrong, 54 M.J. 51, 54 (C.A.A.F. 2000); Napoleon,

46 M.J. at 283. Military judges are required to follow the liberal-grant mandate in ruling

on challenges for cause made by an accused. Moreno, 63 M.J. at 134 (citing

United States v. James, 61 M.J. 132, 139 (C.A.A.F. 2005)); United States v. Downing,

56 M.J. 419, 422 (C.A.A.F. 2002); United States v. White, 36 M.J. 284, 287 (C.M.A.

1993). “[I]n the absence of actual bias, where a military judge considers a challenge

based on implied bias, recognizes his duty to liberally grant defense challenges, and

places his reasoning on the record, instances in which the military judge’s exercise of

discretion will be reversed will indeed be rare.” United States v. Clay, 64 M.J. 274, 277

(C.A.A.F. 2007).

The defense challenged Col DH based upon his relationships with the convening

authority and the staff judge advocate (SJA), Col JR. During individual voir dire,

Col DH stated that his relationship with the convening authority consisted of attending

church and Sunday school together and having an occasional lunch together after church.

Col DH stated he had never been to the convening authority’s house, and that the

11 ACM 36785 (recon)

convening authority had been to his house on two occasions: once for a birthday

celebration and the other to offer condolences after Col DH had been injured.

Col DH also stated he knew the SJA, Col JR, and that he and Col JR interacted

together at social activities and at the gym: “We basically only see each other in the

locker room. We do not work out together. We see each other in the locker room, we

have normal conversation for literally a matter of minutes and that’s the extent of our

normal relationship.” He also stated that he and Col JR had never been to each other’s

house for dinner, but he had on two occasions sought legal advice from Col JR, though he

interacted mostly with Col JR’s subordinate attorneys.

We find that the military judge did not abuse his discretion in denying the

challenge for cause against Col DH and that he applied the correct legal standard. Prior

to issuing his ruling on all the challenges for cause, both for the Government and the

defense, the military judge set forth legal standards governing bias and the liberal-grant

mandate:

In making my determination on the challenges for cause, there are two

potential bias standards that I’m required to look at. One is actual bias,

which involves an allegation that the member’s bias will not yield to the

military judge’s instructions, and that is a subjective determination on my

part. The second test is implied bias, which indicates would a reasonable

member of the public have substantial doubt as to the legality, fairness, and

impartiality of the proceedings if the challenge for cause were not granted,

and again, an objective test of the public—through the eyes of the public.

The court is also mindful of our appellate court’s direction that challenges

for cause be granted liberally.

In his ruling denying the challenge for cause against Col DH, the military judge

stated the following:

As to [Col DH], the defense challenge for cause appears to be based

primarily on the implied bias standard based on his relationships with the

convening authority and/or [Col JR]. In that regard, the defense challenge

for cause is denied. While [Col DH] attends Sunday school and church

with the convening authority, he is not a close friend. Further, he has not

discussed the case with the convening authority, nor has the convening

authority mentioned the case to him. The relationship in this case is much

less close than many of the other panel members. The fact that [Col DH]

sees [Col JR] in the gym—or [Col DH] sees [Col JR] in the gym but does

not work out with him, nor have they discussed the case. Neither of these

relationships arise to the level of actual or implied bias. His answers and

12 ACM 36785 (recon)

the answers of [another court member] in voir dire gave me no indication

that they would be unable to give fair and balanced consideration to all of

the evidence presented by both sides and clearly indicated that they could

follow my instructions.

Viewing the ruling through the eyes of the public and focusing on the appearance

of fairness in the military justice system, we also find that the military judge did not err.

He considered the challenge based upon implied bias, recognized his duty to liberally

grant defense challenges, and placed his rationale on the record. Under the “totality of

the circumstances particular to [this] case,” we find no reason to disturb his ruling.

United States v. Terry, 64 M.J. 295, 302 (C.A.A.F. 2007) (citing Strand, 59 M.J. at 456).

See also United States v. Bagstad, 68 M.J. 460, 463 (C.A.A.F. 2010).

C. Unlawful Command Influence

The appellant argues that Col JR exercised Unlawful Command Influence (UCI)

throughout the court-martial, based on his role as the SJA for the convening authority.

He alleges three ways the actions of the SJA amounted to UCI: (1) the SJA attended

most days of the court-martial; (2) the SJA sat in the immediate vicinity of the victims’

families and the prosecution’s paralegals; and (3) the SJA engaged in communications

with the prosecutors during the court-martial proceedings. We find no UCI.

We review allegations of UCI de novo. United States v. Wallace, 39 M.J. 284,

286 (C.M.A. 1994). Article 37(a), UCMJ, 10 U.S.C. § 837(a), states in part, “No person

subject to this chapter may attempt to coerce or, by any unauthorized means, influence

the action of a court-martial or any other military tribunal or any member thereof, in

reaching the findings or sentence in any case . . . .” The appellant has the initial burden

of raising UCI. United States v. Stombaugh, 40 M.J. 208, 213 (C.M.A. 1994). Once the

issue of command influence is properly placed at issue, “no reviewing court may properly

affirm findings and sentence unless [the court] is persuaded beyond a reasonable doubt

that the findings and sentence have not been affected by the command influence.”

United States v. Thomas, 22 M.J. 388, 394 (C.M.A. 1986). At the appellate level, we

evaluate UCI in the context of a completed trial using the following factors: “[T]he

defense must (1) show facts which, if true, constitute [UCI]; (2) show that the

proceedings were unfair; and (3) show that [UCI] was the cause of the unfairness.”

United States v. Biagase, 50 M.J. 143, 150 (C.A.A.F. 2003) (citing Stombaugh, 40 M.J. at

213). See also United States v. Simpson, 58 M.J. 368, 374 (C.A.A.F. 2003);

United States v. Reynolds, 40 M.J. 198, 202 (C.M.A. 1994).

Both the appellant and the Government submitted affidavits addressing this issue.

After reviewing the record, to include these affidavits, we find the SJA did not exert UCI.

13 ACM 36785 (recon)

With respect to Col JR’s presence at the court-martial, the record merely shows

that he attended the trial but is silent on how his presence created actual or apparent UCI.

In his post-trial affidavit, Col JR states that he “attended most days of the trial.” He

further states that “Public Affairs asked that I be the spokesperson to the media in

attendance to answer their questions and provide sound bites.” Other trial participants,

however, only recall Col JR attending portions of the trial. For example, the lead

prosecutor, then-Major VS, recalls that Col JR “attended portions of voir dire, opening

statement, maybe a day or so of testimony, closing argument, and sentencing argument.”

This is corroborated by assistant trial counsel, Capt SW, who states in his affidavit,

“[Col JR] did attend portions of the trial, but I do not believe it was on a regular basis.”

Affidavits from the appellant affirm that Col JR attended the court-martial but shed no

light on how his presence created UCI. The defense paralegal states, “I recall [Col JR]

attending portions of [the appellant’s] court-martial.” Likewise, another affiant states

that Col JR would “make an appearance” at the courthouse but would “not always stay

the entire day.”

With respect to Col JR sitting near the victims’ families when he attended the

court-martial, the record convinces us that where he sat was a matter of logistics, not a

conscious decision to deliberately align himself with the victims or the prosecution. The

record indicates that the courtroom gallery held between 175-200 persons. The

appellant’s family and friends sat on the side of the courtroom nearest the court members

and farthest from the courtroom entrance. The victims’ families and friends sat on the

side of the courtroom nearest the prosecution, as well as the main entrance and exit to the

courtroom, and typically sat in the second and third rows. If someone entered the

courtroom during a session, as did Col JR, they would “naturally gravitate” towards the

seats nearest the entrance and exit to the courtroom, which happened to be closest to the

prosecution and the victims’ families. We find no actual or apparent UCI stemming from

where Col JR sat during the court-martial.

Finally, with respect to Col JR communicating with the prosecution during the

court-martial, we also find no actual or apparent UCI. The record demonstrates that

Col JR sometimes, but not often, spoke to both the prosecution and trial defense counsel

during recesses in the court-martial and did so outside the presence of the members.

Col JR characterized the conversations as “light in nature, but when official would

usually deal with the logistics of the proceeding.” He periodically sent updates to the

convening authority but only asked assistant trial counsel for information on one

occasion. The lead prosecutor also stated that it is “simply inaccurate” that Col JR sent

notes to the prosecution or frequently gave them trial advice. He notes that “[Col JR]

gave us remarkably little advice on the course of the trial. He was hands off on the

strategy decisions, list of witnesses, selection of exhibits, and the like. He left those

decisions completely in the hands of the trial team.”

14 ACM 36785 (recon)

There must be more than “[command influence] in the air” to justify action by an

appellate court. United States v. Allen, 33 M.J. 209, 212 (C.M.A. 1991) (alteration in

original). The appellant has failed to show facts which, if true, constituted UCI by

Col JR. The facts instead only show that he attended the trial, sat near the victims’

families, and sometimes interacted with counsel for both sides. Having reviewed the

appellant’s claim, we also conclude that a fact-finding hearing is not necessary.

United States v. Ginn, 47 M.J. 236 (C.A.A.F. 1997).

D. Findings Argument

The appellant asserts trial counsel committed plain error during his closing

argument of the findings portion of the court-martial by “seeking vindication for family

members of the victims.” The appellant highlights several passages from the argument in

support of his position. First, trial counsel stated:

As has become apparent, Mr. President, Members of the Court, evil

does exist in this world. And it didn’t take your week here, when we were

putting on our case, to learn that very fact. All you have to do is read a

newspaper, watch a movie, or watch the news. The hard part for people to

recognize is that evil can walk through anyone’s door at anytime, for the

most senseless of reasons. That’s the part that people would struggle with,

that’s the part that those families struggle with every day.

At times, this argument may sound like it’s going to go long and I

apologize for that, but I think they deserve to hear what happened that

night, because what you’re going to find out is that the [G]overnment has to

prove what you see on that screen, the specifications, beyond a reasonable

doubt. But as many of your questions have already shown, you all have

questions well beyond the elements.

Trial counsel further argued:

And I’m going to tell you members, some of those things you will

never know when you deliberate. You will guess, you will talk about, you

will theorize about. And another thing you will do, besides just deal with

whether or not these things happened, is you’re going to want to try to put

what happened in the house, blow by blow, stab by stab and you already

know you can’t; just from hearing the evidence here, you know you will not

be able to, because that man killed two of the witnesses.

He chased one of the witnesses out of the house, who, by all

accounts—his doctor, himself, EMT and everybody—should have been

15 ACM 36785 (recon)

dead. Evil exists, and for those families evil exists right here, he sits right

here.

At a later point in the argument, trial counsel argued:

The defense will suggest to you that adrenaline, adrenaline can cause

this. And you heard from [Dr. BM] in the Stipulation of Testimony, we all

have it. Members, I would suggest that getting up to give a closing

argument in a case with all of the family members here watching can cause

a rush of adrenaline. My memory feels fine.

In his closing remarks, trial counsel stated:

When you go back and deliberate and you look at the evidence and

the premeditation, it is so very obvious. Talk about the crime, go through

the order of the crime, understand the order as best you can with the

knowledge that you will never have all of your answers. We have struggled

to give you as many as we can and the families as many as we can, but at

the end of this go back and deliberate on the elements of premeditation and

use your common sense and your knowledge of human nature and your

understanding of the facts of this case. And take a reasonable doubt

instruction that you’ve now heard and you apply this one that’s so obvious

and so clear, while sad, and while tragic, and while difficult to comprehend

a man like that in the Air Force. You know what he did. You know his

purpose. You know his plan. You know his method. Now convict him of

premeditated murder and attempted premeditated murder.

Finally, trial counsel’s references to the victim’s family members in rebuttal

argument included:

[T]hroughout this process we’ve tried to give you the facts. That does not

just mean the facts that prove our case beyond a reasonable doubt. We

gave you those facts because you need those for us, the [G]overnment, to

satisfy our burden. We gave you others because you all have the same

questions the families grapple with every day, every night.

....

The prosecution agrees that justice is what we require. Premeditated

murder is, by its nature, the hardest thing to understand. But do not

cheapen it by finding passion where there’s none, by finding passion where

you see planning, by finding passion where you see motive, by finding

16 ACM 36785 (recon)

passion where you see opportunity, ruins what we have set up to protect our

citizens. We do demand justice. Those families have waited 15 months for

their day for their kids, because [SrA AS] and [JS] aren’t here to tell you

they need justice. Your common sense tells you what happened to them.

The standard of review for determining the propriety of counsel’s argument is

whether the statement is erroneous and materially prejudices substantial rights of the

accused. Article 59(a), UCMJ, 10 U.S.C. § 859(a); United States v. Baer, 53 M.J. 235,

237 (C.A.A.F. 2000). Failure to make a timely objection to matters raised in argument

constitutes waiver in the absence of plain error. United States v. Ramos, 42 M.J. 392, 397

(C.M.A. 1995). “To establish plain error, an appellant must satisfy a four-pronged test.

There must (1) be error (2) that is plain (3) that affects substantial rights of an accused.”

United States v. Roberson, 46 M.J. 826, 828 (A.F. Ct. Crim. App. 1997) (citing United

States v. Olano, 507 U.S. 725, 732 (1993)), aff’d, 48 M.J. 411 (C.A.A.F. 1997). “Once

these first three criteria are met, an appellate court may exercise its discretion to notice a

forfeited error only if (4) the error seriously affects the fairness, integrity, or public

reputation of judicial proceedings.” Id. In the case at hand, trial defense counsel did not

object to the passages of trial counsel’s arguments laid out above. As such, we embark

upon the plain error analysis by first asking if these remarks were error at all.

“Argument must be limited to evidence of record and to the fair inferences that

can be drawn from that evidence.” United States v. Edmonds, 36 M.J. 791, 792

(A.C.M.R. 1993) (citing United States v. Nelson, 1 M.J. 235 (C.M.A. 1975)). It is

appropriate for trial counsel—who is charged with being a zealous advocate for the

Government—to argue the evidence of record, as well as all reasonable inferences fairly

derived from such evidence. Nelson, 1 M.J. at 239. However, arguments designed by

trial counsel to inflame the passions or prejudices of the court members are clearly

improper. United States v. Clifton, 15 M.J. 26, 30 (C.M.A. 1983).

With respect to arguments pertaining to a victim or victim’s family, military courts

have long held that “Golden Rule” arguments asking the court members to place

themselves in the position of a near relative of the victim are improper. United States v.

Shamberger, 1 M.J. 377 (C.M.A. 1976) (trial counsel asked members to place themselves

in the position of rape victim’s husband, who was restrained and watched as his wife was

repeatedly raped); United States v. Wood, 40 C.M.R. 3 (C.M.A.1969) (trial counsel asked

members to sentence accused from the perspective that their own sons had been the

victims of indecent liberties by the accused); see also United States v. Teslim,

869 F.2d 316, 328 (7th Cir. 1989) (“A ‘Golden Rule’ appeal in which the jury is asked to

put itself in the plaintiff’s position ‘is universally recognized as improper because it

encourages the jury to depart from neutrality and to decide the case on the basis of

personal interest and bias rather than on the evidence.’” (citations omitted)).

17 ACM 36785 (recon)

Nothing about the arguments posed by trial counsel in this case asked the

members to place themselves in the position of a near relative of the victims. Instead, the

arguments made reference to the presence of the victims’ family members throughout the

trial and their lingering questions about what happened the night of the murders. The

appellant argues these passages in trial counsel’s argument were presented with the

singular purpose of highlighting “the families and their pain.” We disagree.

As a threshold matter, the argument by a trial counsel must be viewed within the

context of the entire court-martial. The focus of our inquiry should not be on words in

isolation but on the argument as “viewed in context.” United States v. Young,

470 U.S. 1, 16 (1985). See also Dunlop v. United States, 165 U.S. 486, 498 (1897) (“If

every remark made by counsel outside of the testimony were ground for a reversal,

comparatively few verdicts would stand, since, in the ardor of advocacy, and in the

excitement of trial, even the most experienced counsel are occasionally carried away by

this temptation.”). In this regard, we are not swayed by the handful of passing comments

in a rather lengthy argument. We note:

In reviewing criminal cases, it is particularly important for appellate courts

to relive the whole trial imaginatively and not to extract from episodes in

isolation abstract questions of evidence and procedure. To turn a criminal

appeal into a quest for error no more promotes the ends of justice than to

acquiesce in low standards of criminal prosecution.

Johnson v. United States, 318 U.S. 189, 202 (1943) (Frankfurter, J., concurring).

An overall review of the record of trial, including consideration of the gruesome

nature of the offenses themselves, and the entire findings argument, leaves no basis for us

to conclude that trial counsel’s argument was calculated to inflame the members’

passions or possible prejudices. We find no error.

E. Admission of Crime Scene and Autopsy Photographs

The appellant further alleges the military judge committed error by admitting

crime scene and autopsy photographs over defense objection. We review a military

judge’s ruling on the admissibility of evidence for abuse of discretion. United States v.

Holt, 58 M.J. 227, 230-31 (C.A.A.F. 2003). A decision to admit or exclude evidence

based upon the balancing test set forth in Mil. R. Evid. 403 is within the sound discretion

of the military judge. United States v. Smith, 52 M.J. 337, 344 (C.A.A.F. 2000);

United States v. Phillips, 52 M.J. 268, 272 (C.A.A.F. 2000). “To reverse for ‘an abuse of

discretion involves far more than a difference in opinion. The challenged action must be

found to be ‘arbitrary, fanciful, clearly unreasonable,’ or ‘clearly erroneous’ in order to

be invalidated on appeal.’” United States v. Travers, 25 M.J. 61, 62 (C.M.A. 1987)

18 ACM 36785 (recon)

(citations and ellipses omitted). “An abuse of discretion arises in cases in which the

judge was controlled by some error of law or where the order, based upon factual, as

distinguished from legal, conclusions, is without evidentiary support.” Id. (citation and

internal quotation marks omitted).

The exhibits at issue included autopsy photographs for JS and SrA AS, and

29 photographs of the crime scene. Before trial, the defense moved to exclude 18 of

these photographs. A full hearing was held on the motion, wherein the military judge

heard testimony from Dr. (Lt Col) ER, the medical examiner who conducted the

autopsies, and Mr. PK, an expert witness who examined the blood spatter evidence at the

crime scene. The witnesses each articulated why every one of the proposed photographs

was necessary and helpful to the presentation of their prospective testimony and

explanation to the members.

In ruling on the motion to suppress, the record reflects the military judge

considered the expert witness testimony, written pleadings, proposed exhibits, as well as

a full set of autopsy and crime scene photographs, including those not offered into

evidence. The military judge took the matter under advisement, returning to deliver his

ruling on the motion nearly two hours after the close of the hearing. He presented an

accurate recitation of the applicable rules, Mil. R. Evid. 401, 402, and 403, and gave

detailed findings as to why each of the challenged photographs satisfied evidentiary

relevance. He granted the motion to suppress four photographs. He found that all of the

other 14 photographs had probative value that was not substantially outweighed by

prejudicial impact.

“Photographs, although gruesome, are admissible if used to prove time of death,

identity of the victim, or exact nature of wounds.” United States v. Gray, 37 M.J. 730,

739 (A.C.M.R. 1992), aff’d, 51 M.J. 1 (C.A.A.F. 1999). “It is not a matter of whether the

photographs were inflammatory but whether they served a legitimate purpose.” Id.

(citing United States v. Whitehead, 30 M.J. 1066, 1070 (A.C.M.R. 1990); United States v.

Bartholomew, 3 C.M.R. 41, 48 (C.M.A. 1952)).

In this case, the testimony of the expert witnesses clearly established the need for

the photographs in order to convey the exact nature of the wounds and the crime scene.

The probative value of the photographs was not substantially outweighed by any

prejudicial effect. The proper law with respect to relevancy and admissibility was

applied. We find the military judge did not abuse his discretion in admitting these

photographs.

F. Findings Instructions

The appellant asserts the military judge committed reversible error by denying two

19 ACM 36785 (recon)

of their requested instructions. Reviewing the military judge’s decision not to give a

requested instruction under an abuse of discretion standard, we note that the test to

determine if denial of a requested instruction constitutes reversible error is whether:

(1) the charge is correct; (2) it is not substantially covered in the main charge; and (3) it is

on such a vital point in the case that the failure to give it deprived the accused of a

defense or seriously impaired its effective presentation. United States v. Damatta-

Olivera, 37 M.J. 474, 478 (C.M.A. 1993).

The first proposed instruction was tailored from the standard instruction regarding

evidence negating mens rea. 6 See Department of the Army Pamphlet (D.A. Pam.) 27-9,

Military Judges’ Benchbook [hereinafter “Benchbook”], ¶ 5-17 (1 April 2001). Trial

defense counsel argued the proposed instruction was proper because the evidence raised

an “issue of whether the accused had an emotional or cognitive impairment that

interfered with his ability to form specific intent.” Specifically, the defense relied on

Dr. BM’s stipulation of expected testimony to argue that recent scientific studies have

shown “there is an impairment that arises in the ability to plan, to think, to control

impulses, when a stressor is presented,” and that rises to an “emotional condition of the

kind that could impact or impair the ability to premeditate.”

The military judge questioned whether the law intended for an instruction to be

given on a mental condition when “everybody in the entire world” has the ability to or

will naturally produce adrenaline. The military judge initially ruled that he would not

give the proposed instruction because he felt the mens rea issue had not been raised by

the evidence. After further deliberation on the matter overnight, the issue was again

argued and the military judge ruled as follows:

Okay. I have carefully considered the defense’s request and did so

at length last evening after we first talked about it and I do not believe that

6

The proposed language of the appellant’s mens rea instruction was as follows:

The evidence in this case has raised an issue whether the accused had an emotional and/or

cognitive impairment and the required state of mind with respect to the offenses of premeditated

murder and attempted premeditated murder. In determining this issue, you must consider all the

relevant facts and circumstances. One of the elements of [these] offenses is the requirement of

premeditation. You are advised that an accused, because of some underlying impairment, may be

mentally incapable of entertaining the premeditated design to kill. You should, therefore, consider

in connection with all relevant facts and circumstances, evidence tending to show that the accused

may have been suffering from an emotional and/or cognitive impairment of such consequence and

degree as to deprive him of the ability to entertain the premeditated design to kill. The burden of

proof is upon the government to establish the guilt of the accused by legal and competent evidence

beyond a reasonable doubt. Unless in light of all the evidence you are satisfied beyond a

reasonable doubt that the accused, at the time of the alleged offenses was mentally capable of

entertaining the premeditated design to kill, you must find the accused not guilty of those offenses.

20 ACM 36785 (recon)

the mens rea instruction has been reasonably raised by the evidence.

Obviously, if [Dr. BM] had testified and testified in accordance with his

testimony during an Article 39(a) Session, my decision would have been

different, but the evidence before the members shows nothing more than

one, that people’s ability to remember specific facts are impaired as a result

of a stressful situation and the adrenaline that arises from that stressful

situation, and there is evidence before the Court that adrenaline does cause

stress. The problem here is that there’s no fit, there is no testimony to

indicate that adrenaline or memory would affect the accused more or less

than it would affect the average person. And based on the facts of this case,

as they currently exist, it would seem that [trial defense counsel’s] request

would require a mens rea instruction in every case where someone acted in

a violent way as a result of a stressful situation, whether it was caused by

them or caused by someone else. So I will not give the mens rea

instruction.

Within the given instructions regarding heat of passion and the ability to

premeditate, the military judge instructed the members several times, “An accused cannot

be found guilty of premeditated murder if, at the time of the killing, his mind was so

confused by anger, rage, sudden resentment or fear that he could not or did not

premeditate.” In applying the test set forth in Damatta-Olivera, we find that the military

judge did not abuse his discretion. The evidence of adrenaline was properly before the

members for consideration, and the instructions covered the confusion of the mind that

may negate the ability to premeditate. As such, we find this alleged error without merit.

The second defense-requested instruction also addressed premeditation. 7

However, instead of giving the additional instruction requested, the military judge

properly instructed the members on premeditation from the standard Benchbook

instructions. The definition and requirements for premeditation were substantially

covered in the main instruction given to the members in this case. As such, the members

were properly instructed, and the appellant has failed to meet the second prong of the

Damatta-Olivera test. We find the military judge did not abuse his discretion in giving

only the standard Benchbook instruction on premeditation.

G. Impeachment of Staff Sergeant PG

The appellant alleges the military judge erred in not allowing the presentation of

7

The requested instruction read, “Premeditation requires that one with a cool mind did, in fact, reflect on the intent

to kill before committing the lethal act. Intent to kill alone is insufficient to reach a finding of guilty for

premeditated murder. To reach such a finding of guilty, the lethal act must have been committed after reflection on

the consequences by a cool mind.”

21 ACM 36785 (recon)

extrinsic evidence of a prior inconsistent statement of Staff Sergeant (SSgt) PG.

Specifically, the defense wanted to call a witness who had interviewed SSgt PG prior to

trial to testify about SSgt PG’s prior statements regarding whether the door to SrA AS’s

home was open or closed when he arrived to investigate.

This Court reviews a military judge’s ruling on the admissibility of evidence for

abuse of discretion. United States v. Ediger, 68 M.J. 243, 248 (C.A.A.F. 2010). A trial

judge will typically have a great deal of discretion to determine whether trial testimony is

inconsistent with a prior statement. United States v. Harrow, 65 M.J. 190, 200

(C.A.A.F. 2007).

Here, SSgt PG was called as a Government witness. When first questioned on

direct examination about the front door to SrA AS’s home, SSgt PG testified:

Q. When you got there, did you ascertain whether the front door was locked

or not?

A. I didn’t.

Q. Did somebody?

A. I don’t know.

Q. What door—well, did you enter the [S]’s residence?

A. We did.

Q. What door did you go through?

A. The side door under the carport.

Q. And, what room does that lead you into?

A. The kitchen.

Q. And, what is your—who was the lead cop?

A. Sergeant [A] was in the lead.

Q. All right. What was your understanding as to why you went through that

door and not another door to the house?

22 ACM 36785 (recon)

A. The door was already open.

Q. So, you did not go through the front door?

A. I did not go through the front door.

Q. All right. I’m showing you Prosecution Exhibit 22, picture 066. What is

that a picture of, Sergeant [PG]?

A. It appears to be the front door of the residence.

Q. All right. That is not—that door was not in that configuration. In other

words, it was not open when you arrived at the house?

A. No, it wasn’t.

On cross-examination, trial defense counsel further questioned SSgt PG about his

observations as follows:

Q. I want to take you to when you first went to the [S] house, excuse me.

When you got there, were you the person at the front door?

A. I was.

Q. You actually knocked on the front door?

A. I did.

Q. But you didn’t try to open the front door, is that correct?

A. I did not.

Q. Okay. The other three Security Forces members you were with, that was

Sergeant [A], Sergeant [HA], and Sergeant [G]. Is that correct?

A. Correct.

....

Q. Okay. And, you did not try the door?

A. I didn’t.

23 ACM 36785 (recon)

Q. And, you don’t know if the door was locked or not?

A. I do not know.

....

Q. Okay. And, the door itself was closed?

A. The door is closed.

Q. Okay. Do you remember speaking with the [AFOSI] agents on the 13th

of July, 2004, about what you did that night?

A. Vaguely.

Q. Okay. You spoke with Sergeant, or—Special Agent [N] and Special

Agent [R]?

A. I don’t recall their names.

Q. Okay, but two Special Agents. Do you do [sic] remember that?

A. Yes, sir.

Q. Do you remember them taking notes on that incident?

A. I do.

Q. Okay. During that interview, they took notes that said you said the front

door was opened.

ATC1: I’m going to object as to improper 613.

DC: Your Honor, I’ll rephrase the question.

MJ: Rephrase the question.

Q: If the agents had written that you had seen that the door was opened,

would that have been accurate, inaccurate?

ATC1: Your Honor, that’s not a proper question. There is a procedure for

24 ACM 36785 (recon)

doing this. Counsel needs to follow it.

MJ: Overruled. Go ahead.

DC: Thank you.

Q. If the Agents had said that you had said the door was opened in that

interview, would they have been correct in writing that down?

A. That would have been correct.

Q. Okay. So, it’s possible that the door was open—you told them?

A. I never stated the door was open.

The process of impeachment by prior inconsistent statement is a tool to attack the

credibility or recollection of a witness. “By showing self-contradiction, the witness can

be discredited as a person capable of error.” United States v. Banker, 15 M.J. 207, 210

(C.M.A. 1983); 3A John H. Wigmore, Evidence § 874 (Chadbourne rev. 1970).

Military Rule of Evidence 613(b) provides that “[e]xtrinsic evidence of a prior

inconsistent statement by a witness is not admissible unless the witness is afforded an

opportunity to explain or deny the same and the opposite party is afforded an opportunity

to interrogate the witness thereon.” If the inconsistency is not admitted, or the witness

equivocates, extrinsic evidence may be admitted, but only for impeachment.

Damatta-Olivera, 37 M.J. at 478 (“[W]hether testimony is inconsistent with a prior

statement is not limited to diametrically opposed answers but may be found as well in

evasive answers, inability to recall, silence, or changes of position.”).

Here, proper procedure was followed, and a proper foundation was laid for the

appellant to admit extrinsic evidence of the inconsistent statement for impeachment

purposes. The military judge’s evidentiary ruling was an abuse of discretion in that the

findings of fact upon which he predicated his ruling are not supported by the evidence

contained in the record of trial. See United States v. Ellis, 68 M.J. 341, 344

(C.A.A.F. 2010).

Having found error, “we conduct a de novo review to determine whether this error

had a substantial influence on the members’ verdict in the context of the entire case.”

United States v. Harrow, 65 M.J. 190, 200 (C.A.A.F. 2007) (citing Kotteakos v.

United States, 328 U.S. 750, 764-65 (1946); United States v. Berry, 61 M.J. 91, 97

(C.A.A.F. 2005)). “We consider four factors: (1) the strength of the government’s case;

(2) the strength of the defense case; (3) the materiality of the evidence in question; and

(4) the quality of the evidence in question.” Id. (citing Berry, 61 M.J. at 98).

25 ACM 36785 (recon)

In the appellant’s court-martial, the Government’s case was very strong and

included significant admissions by the appellant. Trial defense counsel conceded that the

case was not a question of who committed the crimes, but instead, why the crimes were

committed. The focus of the defense case throughout was the state of mind of the

appellant at the time of the offenses. The inconsistent statement sought to be introduced

in this case would have offered extremely little, if any, impact on the defense’s theory of

the case or presentation of evidence such that it cannot be said to be material to the case.

After full consideration of all of the above factors, as well as the fact that the military

judge gave trial defense counsel an opportunity to recall SSgt PG to confront him with

the prior statement, 8 we find the error was harmless in this case.

III. Assistance of Counsel

The appellant has asserted numerous allegations that his trial defense counsel were

deficient in their representation of him during the court-martial. He contends he received

ineffective assistance of counsel during both the findings and sentencing phases.

A. Counsel’s Performance in Findings

The appellant cites Strickland v. Washington, 466 U.S. 668 (1984), to assert that

he was denied his constitutional right to effective assistance of counsel during the

findings phase of the court-martial. He lists seven different areas where he asserts his

counsel were deficient, which prejudiced him and resulted in his conviction. We review

ineffective assistance of counsel claims de novo. United States v. Anderson, 55 M.J. 198,

201 (C.A.A.F. 2001); United States v. Wiley, 47 M.J. 158, 159 (C.A.A.F. 1997).

In Strickland, the Supreme Court found that the Sixth Amendment 9 entitles

criminal defendants to the “effective assistance of counsel”—that is, representation that

does not fall “below an objective standard of reasonableness” in light of “prevailing

professional norms.” Strickland, 466 U.S. at 686, 688. Inquiry into an attorney’s

representation must be “highly deferential” to the attorney’s performance and employ

“a strong presumption that counsel’s conduct falls within the wide range of professionally

competent assistance.” Id. at 689. Our superior court has applied this standard to

military courts-martial, noting that “[i]n order to prevail on a claim of ineffective

assistance of counsel, an appellant must demonstrate both (1) that his counsel’s

performance was deficient, and (2) that this deficiency resulted in prejudice.”

United States v. Green, 68 M.J. 360, 361 (C.A.A.F. 2010) (citing Strickland, 466 U.S. at

8

A review of the record of trial reveals trial defense counsel elected not to pursue this opportunity granted by the

military judge.

9

U.S. CONST. amend. VI.

26 ACM 36785 (recon)

687; United States v. Mazza, 67 M.J. 470, 474 (C.A.A.F. 2009)).

We “must judge the reasonableness of counsel’s challenged conduct on the facts

of the particular case, viewed as of the time of counsel’s conduct.” Strickland,

466 U.S. at 690. In making that determination, we consider the totality of the

circumstances, we bear in mind “that counsel’s function, as elaborated in prevailing

professional norms, is to make the adversarial testing process work,” Id., and we

“recognize that counsel is strongly presumed to have rendered adequate assistance and

made all significant decisions in the exercise of reasonable professional judgment.” Id.

“[T]here is no reason for a court deciding an ineffective assistance claim to approach the

inquiry in the same order [as the Court in Strickland did,] or even to address both

components of the inquiry if the defendant makes an insufficient showing on one.”

United States v. McConnell, 55 M.J. 479, 481 (C.A.A.F. 2001) (alterations in original)

(quoting Strickland, 466 U.S. at 697).

With these standards in mind, we separately analyze the seven alleged deficiencies

in counsel’s performance during the findings portion of the court-martial.

1. Military Judge’s Sentencing Comments During Voir Dire

In his first raised issue, the appellant alleges his trial defense counsel were

constitutionally ineffective when they failed to object to an instruction given by the

military judge during voir dire that commented on sentencing.

At the outset of voir dire of the initial panel of members detailed by the convening

authority, the military judge instructed:

This is a capital murder case. I want to direct your attention specifically to

Specifications 1 and 2 of Charge I, on the copy of the charges that you have

there. Both are a violation of [A]rticle 118 of the Uniform Code of Military

Justice, commonly referred to as premeditated murder. If the accused is

convicted of premeditated murder by a unanimous vote, then the court may,

but is not required to, impose the death penalty.

This instruction is adapted from the Benchbook. D.A. Pam. 27-9, ¶ 8-3. The

instruction is accurate and appropriate. Therefore, we find that, given the dual role of the

court-martial panel to decide both the findings of the case as well as an appropriate

sentence, trial defense counsel were not deficient in their performance by failing to

object.

27 ACM 36785 (recon)

2. Trial Counsel’s Voir Dire Questions

During voir dire, trial counsel individually questioned seven of the members who

were ultimately seated on the appellant’s court-martial panel regarding their views as to

the comparative loss a family with multiple children would feel as opposed to a family

who lost an only child. The appellant argues these questions exceeded the permissible

scope of voir dire and that trial defense counsel were constitutionally ineffective for

failing to object.

We need not undertake the related inquiry of ruling on whether or not the

questions of counsel were objectionable to resolve the issue in this case. McConnell,

55 M.J. at (C.A.A.F. 2001) (quoting Strickland, 466 U.S. at 697). Instead, we find that

the failure to object to individually posed voir dire questions of this sort is not error that

rises to the level of a constitutional violation because there is no evidence of prejudice

arising from the members’ answering such a question. Thus, the appellant has not met

his burden under the second Strickland prong.

3. Peremptory Challenge of Colonel DC

Trial defense counsel lodged a challenge for cause against potential court-martial

member Col DC, stating they “felt that [Col DC]’s responses [] show a bias and in favor

of the death penalty. And his close relationship to both the convening authority and the

Staff Judge Advocate creates a further implied bias. And the combination of those two is

such that [they] believe[d] he should be challenged for cause.” The military judge denied

this challenge. Subsequently, trial defense counsel exercised their peremptory challenge

against Col DC.

The appellant argues the use of the peremptory challenge amounts to ineffective

assistance of counsel because, “by voluntarily reducing the panel size, the defense

counsel made the [G]overnment’s burden lighter.” He further asserts that trial defense

counsel’s use of the peremptory challenge “made it measurably easier for the

[G]overnment to obtain a death sentence.”

Beyond their concerns elucidated on the record at trial, trial defense counsel, in

their post-trial affidavits, articulated that, prior to exercising the peremptory challenge,

they were cognizant that more members on the panel is better. However, they balanced

that against their concerns that this member “would be both unfavorable to our position

and also be a strong advocate to persuade others [sic] members to his position.”

Ultimately, they decided to exercise the challenge.

Here, trial defense counsel coherently expressed a strategic and tactical basis for

deciding to exercise their peremptory challenge. We will not second guess the strategic

28 ACM 36785 (recon)

or tactical value of these decisions. Anderson, 55 M.J. at 202; United States v. Morgan,

37 M.J. 407, 410 (C.M.A. 1993). Trial defense counsel were faced with an almost

impossible dilemma. A decision by the appellant’s trial defense counsel not to exercise

their peremptory challenge to excuse Col DC could likely have resulted in a different

claim of ineffective assistance of counsel. We find trial defense counsel were not

deficient in their performance in using the peremptory challenge to remove a member

from the panel whom they believed would be biased against the appellant.

4. Courtroom Security

The appellant’s trial was held at the Bibb County Courthouse in Macon, Georgia.

The courthouse provided heightened security not typically found in a courtroom at a base

legal office. This included x-ray screening, metal detectors, and armed security present

in the courtroom, in addition to the security forces personnel escorting the appellant. The

appellant argues his counsel should have objected to this additional security and their

failure to do so constitutes ineffective assistance of counsel. In his affidavit, trial defense

counsel explained:

[The trial defense team] made sure that [the appellant] was never physically

restrained in front of the members and prevailed upon his escorts to

minimize their appearance alongside [him] when the members were in the

courtroom. . . . [W]e did not perceive there was anything excessive about

the number of uniformed law enforcement personnel present in the

courtroom during the trial.

The appellant cites to an excerpt from trial defense counsel’s argument in which

the security is referenced:

The prosecution made note of the fact that there’s guards in the room, and

that’s why [the appellant] was conducting himself, conducting himself [sic]

appropriately. But, I ask you: Are the guards not here as much here [sic] to

protect him from people who are probably angry at him, as they are from

stopping him from going anywhere?

The issue as raised is one of ineffective assistance of counsel during the findings

portion of the court-martial. However, this commentary regarding the guards was made

during counsel’s sentencing argument. Based on the facts presented by both the appellant

and his counsel, we see nothing objectionable about the nature of the courthouse security.

Accordingly, a failure to object to the described security does not meet the Strickland

standard for ineffective assistance of counsel. In addition to finding no deficiency in trial

defense counsel’s decision not to object to the security, we also find no prejudicial impact

to the appellant.

29 ACM 36785 (recon)

5. Promises Made During Opening Statement

Next, the appellant asserts his trial defense counsel were constitutionally

ineffective when they made promises during the opening statement to produce certain

testimony and then failed to present that testimony. Civilian trial defense counsel gave

the opening statement in the case and explained:

The defense is going to put on witnesses who will tell you who [the

appellant] is; where he came from; the Christian home that he was raised

in; the divorce of two loving parents; the facts that led him into the United

States Air Force; the environment that created the person who committed

the acts on the 5th of July. [The appellant] is in his early twenties. For the

most part, he was raised by [his step father, GP, and his mother, MP].

....

[Y]ou will hear evidence regarding [the appellant’s] upbringing. You will

hear from his parents, his natural mother and stepfather, and you will hear

from his natural father [CW] and [EW], who was married to [CW] at one

point, but is not married to him today. I also anticipate that you will hear

from the sister of [MP], [the appellant’s] aunt, [LS]. With their testimony,

you’re going to learn about those forces that shaped [the appellant] and

brought him to the point where he was handed over to the Air Force and

began an Air Force career.

I anticipate that you’re going to hear from two expert witnesses that

the defense will call. [Dr. BM] is a forensic psychologist. He has looked at

the facts of this case; he’s interviewed multiple individuals and witnesses;

and he will testify regarding [the appellant’s] state of mind on the night of

the 4th and into the early morning hours of the 5th of July of 2004.

....

[Dr. BM], the forensic psychologist, I anticipate will testify about

[the appellant’s] state of mind at that point in his life; his state of fear about

the fact that these people were threatening to ruin his career; the

provocation that flowed from that.

In his post-trial affidavit, trial defense counsel states that, at the time the opening

statement was delivered, the trial defense team whole-heartedly intended to present the

evidence alluded to in their opening statement. They understood the risk of making a

promise and not delivering but were confident based upon their lengthy trial preparation

30 ACM 36785 (recon)

with Dr. BM, that there was “no conceivable reason that [they] would not call [Dr. BM]”

as a witness. Additionally, they fully intended “to call [the] appellant’s family members

to provide the context for Dr. [BM]’s testimony.”

On 26 September 2005, civilian trial defense counsel announced, at a hearing

outside the presence of the members pursuant to Article 39(a), UCMJ,

10 U.S.C. § 839(a), that the defense had “elected to name [Dr. BM] as an expert witness

based on the opinions he’s formed as a result of performing his duties [as a consultant].”

The findings testimony of Dr. BM was intended to address issues of the appellant’s

ability to premeditate. Pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc.,

509 U.S. 579 (1993), the defense presented preliminary testimony to establish Dr. BM’s

qualifications as an expert witness.

Dr. BM testified that he subjected the appellant to a series of psychological tests

when he first met with the appellant in October 2004. Dr. BM subsequently met with the

appellant on 19 June 2005, 23 June 2005, and 10 September 2005. He testified that, as of

17 September 2005, he still had not formulated a psychological diagnosis of the

appellant. It was not until after the trial began that he concluded the appellant had an

Axis II diagnosis of a Personality Disorder, Not Otherwise Specified. During direct

examination at the hearing, he testified that he identified schizoid and borderline traits in

the appellant. He also acknowledged telling the prosecution in an interview that the

appellant displayed schizoid features. However, during cross-examination, he clarified

his testimony, stating the schizoid traits diagnosis was inaccurate, and that his actual

diagnosis included paranoid and borderline traits. Trial defense counsel admitted to the

court that he was surprised at Dr. BM’s direct examination testimony given his previous

discussions with him.

Due to the late diagnosis, change in diagnosis, and testimony from Dr. BM

regarding other tests that were not administered, the Government argued for an

independent psychological evaluation of the appellant. The defense objected. The

military judge found Dr. BM’s testimony admissible under Daubert but reserved ruling

on the Government’s request for an independent psychological evaluation. Based on

Dr. BM’s testimony at the Daubert hearing, trial defense counsel concluded his ability to

testify in the case had been compromised due to errors and inconsistencies between what

he told the defense and the Government.

Some time prior to the morning of 28 September 2005, the defense came to an

agreement with the Government to avoid a court-ordered independent psychological

evaluation. They agreed to allow Dr. CR, the Government’s expert consultant, to

conduct further testing of the appellant and to interview the appellant. The results of this

further evaluation would only be revealed to trial defense counsel, but they could

potentially be revealed to the Government under limited circumstances. The appellant

31 ACM 36785 (recon)

was thoroughly involved in the decision regarding his agreement to subject himself to

this further voluntary evaluation with Dr. CR.

Trial defense counsel explained that “Dr. [CR]’s opinion countered Dr. [BM]’s

assessment on several points. . . . [Dr. CR identified] that Dr. [BM] had improperly read

the results of at least one personality test . . . [although Dr. CR] did not offer an opinion

that would have assisted [the defense] at trial.” At this critical stage in the proceedings,

trial defense counsel decided they would not call Dr. BM as a witness and reevaluated

their findings strategy, opting to proceed with their theory regarding the effects of

adrenaline. The decision to not call Dr. BM was supported by Dr. BM. As a result, all

sides agreed upon a stipulation of expected testimony for Dr. BM.

At trial, the defense presented the testimony of Dr. RS, who testified regarding the

physiological and psychological effects of stress, adrenaline, and alcohol on perception

and memory. They further presented two stipulations of expected testimony. The first

was from CC, the appellant’s roommate, who testified that he received a voicemail

message from SrA AS, in the early morning hours of 5 July 2004, telling him that the

appellant had made a pass at his wife and wanting CC to call him back to talk about it.

The second was from Dr. BM, who testified about the physiology of “fight or flight” and

the cognitive effects of stress-induced release of epinephrine from the adrenal glands into

the body. Specifically, he testified these adrenal gland releases can impair cognitive

functions that guide behavior, thoughts, feelings, impulse control, judgment, decision-

making, and insight. Finally, the defense introduced the curriculum vitae of Dr. RS; the

curriculum vitae of Dr. BM; and a timeline of the phone calls made between the

appellant, the victims, and related individuals on the night of 4 July 2004 and early

morning of 5 July 2004. The defense then rested without presenting any of the evidence

referenced in opening statement regarding the appellant’s upbringing, life, family, or

what brought him to the Air Force.

“‘It is important for counsel to evaluate all of the evidence and determine the

strategy that is most likely to be successful.’” United States v. Christy, 46 M.J. 47, 50

(C.A.A.F. 1997) (quoting United States v. Fluellen, 40 M.J. 96, 98 (C.M.A. 1994)). This

evaluation should include tactical decisions regarding which witnesses to call during the

trial. In this case, those tactical decisions were made and included a reasonable strategy

to call Dr. BM and the appellant’s family members to help explain the mental health

issues the appellant may have been experiencing at the time of the murders in an effort to

dispel premeditation. While there may have been some risk in highlighting this

anticipated testimony during opening statement pending a ruling on its admissibility, that

risk was laid to rest when the military judge ruled the testimony admissible. To the

extent the appellant argues that his counsel were deficient in the presentation of their

opening statement, we disagree.

32 ACM 36785 (recon)

“A fair assessment of attorney performance requires that every effort be made to

eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s

challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.”

Strickland, 466 U.S. at 689. Counsel’s performance at the time the opening statement

was delivered was based on a sound theory of the case developed over months of

consultation with Dr. BM. We find no deficient performance by trial defense counsel in

the content of his opening statement.

Turning to counsel’s decision to not call the witnesses they told the members they

anticipated hearing from, we again find no error. “[U]nexpected events at trial may lead

to changed circumstances or different trial tactics.” Christy, 46 M.J. at 50. This is

exactly the scenario presented in this case. The record establishes the inconsistencies in

Dr. BM’s testimony at the Daubert hearing. Civilian trial defense counsel noted his

surprise at the testimony in an Article 39(a), UCMJ, hearing. Counsel’s affidavits

sufficiently demonstrate their tactical quandary: calling an expert witness who had lost

credibility and who, in their minds, had become at least somewhat unreliable, or limiting

their presentation of witnesses but still presenting some expert testimony as promised.

The success of the strategy they chose is irrelevant. The question is whether their

strategy was reasonable given an evaluation of “counsel’s perspective at the time.”

Strickland, 466 U.S. at 689. We find the decision to limit Dr. BM’s testimony to the

effects of adrenaline and to present it in the form of a stipulation of expected testimony

was reasonable. We also find that, under the circumstances, the decision not to seek the

testimony of the family members, without the corresponding expert testimony from

Dr. BM, was also reasonable and conclude that such testimony would have likely been

inadmissible. Thus, we find this theory of ineffective assistance of counsel to be without

merit.

6. Witnesses’ Sequestration

The appellant next claims that his counsel were ineffective during the findings

phase of his trial by failing to move the court to sequester the family member witnesses.

In a related issue, the appellant argues that the military judge committed plain error as

well by allowing the family members and friends of the victims to remain in the

courtroom during the entire trial. We will address these related issues together.

The trial defense team’s decision not to request sequestration of the witnesses

pursuant to Mil. R. Evid. 615 was not an oversight. Rather, as discussed in an

Article 39(a), UCMJ, hearing, it was a conscious decision. Both parties agreed that

family members for both the appellant and the victims would be allowed to remain in the

courtroom. Capt DR noted, “[W]e felt that it was important for our client to have his

family present in the courtroom as a show of support and because they had an obvious

33 ACM 36785 (recon)

interest in what was being discussed in the trial.” Both Capt DR and Capt DJ recounted

that they reached an agreement with trial counsel that neither side would object to their

sentencing witnesses being in the courtroom.

The underlying purpose of Mil. R. Evid. 615 is to preclude witnesses from

listening to the testimony of another witness in the trial, then shaping or conforming their

subsequent testimony to match what was heard. United States v. Langston, 53 M.J. 335,

337 (C.A.A.F. 2000). The appellant has made no argument that the witnesses who

remained in the courtroom without sequestration proffered findings testimony that was

fabricated, tainted, or shaped in any way. In fact, JB (victim JS’s father) was the first

witness called by trial counsel. As such, his testimony could not have been tainted in any

way that could be deemed a violation of the policy behind Mil. R. Evid. 615. The second

witness called to testify was DS, who gave limited testimony to identify his son, one of

the victims, from a photograph. The record reflects no evidence that his testimony was

altered in any way by his presence in the courtroom during the prior witness. The third

witness was JPS, the wife of SrA JK. She was the first witness to testify as to her

memory of what transpired on 4 July 2004. SrA JK was the last of the findings witnesses

noted in the appellant’s brief. A review of the record of trial belies any insinuation that

either JPS’s or SrA JK’s testimony was tainted by the testimony that preceded it.

As previously mentioned, to prevail on a theory of ineffective assistance of

counsel, the appellant must demonstrate both prongs of the Strickland test: (1) that his

counsel’s performance was deficient, and (2) that this deficiency resulted in prejudice.

Green, 68 M.J. at 361 (citing Strickland, 466 U.S. at 687). Thus, we may address these

prongs in any order we choose. Strickland, 466 U.S. at 697; United States v. Loving,

68 M.J. 1, 6 (C.A.A.F. 2009).

We find that the appellant has failed to meet his burden of demonstrating prejudice

based on his counsel’s decision not to move for sequestration of the witnesses. As such,

an ineffective assistance of counsel claim cannot be sustained.

Turning to the related issue of the military judge’s failure to sua sponte sequester

the witnesses, we also find no error. To establish plain error by the military judge for

allowing the witnesses to remain in the courtroom, the appellant bears the burden of

demonstrating “(1) there was an error; (2) it was plain or obvious; and (3) the error

materially prejudiced a substantial right [of the appellant].” United States v. Kho,

54 M.J. 63, 65 (C.A.A.F. 2005); United States v. Miller, 64 M.J. 666, 671 (A.F. Ct. Crim.

App. 2007). Once the appellant persuades this Court of the plain error, “the burden

shift[s] to the Government to show that the error was not prejudicial.” United States v.

Powell, 49 M.J. 460, 464-65 (C.A.A.F. 1998). After review of the entire record, we find

no evidence of error, plain or obvious, that violated the appellant’s right to a fair trial.

The military judge accepted the agreement of the parties with respect to the spectators,

34 ACM 36785 (recon)

and we find no evidence that the appellant suffered a material prejudice to his substantial

rights based upon the presence of the family members of the victims during the findings

phase of this court-martial.

We also note that while these issues appear under the appellant’s assignments of

errors affecting the findings portion of the trial, the majority of the factual assertions

regarding the emotional display of the victims’ family members occurred during

sentencing. In lieu of addressing the lack of a motion for sequestration on grounds

underlying the policy behind Mil. R. Evid. 615, the appellant instead more plainly argues

counsel were deficient because they should have anticipated and avoided the emotional

displays by the aggrieved family members. Alternatively, the appellant argues that once

emotions were displayed, the military judge’s admonition to the spectators was

insufficient and it amounted to plain error not to force sequestration at that point.

Because these factual allegations took place during the sentencing phase of the

court-martial, neither the spectator’s conduct, whether prejudicial or not, nor counsel’s

performance, whether deficient or not, would have impacted the members’ determination

of guilt.

Additionally, counsel specifically considered the sequestration issue, weighed the

pros and cons, and made a choice not to request sequestration. Whether the luxury of

hindsight ultimately reveals the choice counsel made to have been the most effective

option is not the standard. “Because of the difficulties inherent in making [such an]

evaluation, a court must indulge a strong presumption that counsel’s conduct f[ell] within

the wide range of reasonable professional assistance; that is, the defendant must

overcome the presumption that, under the circumstances, the challenged action ‘might be

considered sound trial strategy.’” Strickland, 466 U.S. at 690 (quoting Michel v.

Louisiana, 350 U.S. 91, 101 (1955)). Trial defense counsel’s judgment with respect to

sequestration was not unreasonable, and we find no ineffectiveness based on the

approach they chose.

7. Mental Health Issues

The appellant argues six different areas in which his trial defense counsel were

ineffective with respect to the handling of mental health issues that arose during trial.

The first of these claims is that counsel acted ineffectively by releasing statements made

by the appellant contained within the full sanity board report to the Government.

Military Rule of Evidence 302(c) 10 clearly provides the accused protection from

10

The Rule states:

If the defense offers expert testimony concerning the mental condition of the accused, the

35 ACM 36785 (recon)

the disclosure of statements made during an examination performed pursuant to

R.C.M. 706. This protection does not automatically translate into a corresponding

prohibition on the part of the accused from voluntarily releasing statements for strategic

or tactical purposes.

The appellant’s allegation that the release of his sanity board statements “played a

significant role in crippling [his] case” is unsupported and merely conclusory. The

appellant’s statements that were disclosed to the Government were not introduced to the

members, none of the witnesses’ testimony was derived from the appellant’s

incriminating statements, and the appellant’s statements were not the subject of any other

testimony presented. As such, we find the appellant has not demonstrated how he was

prejudiced by counsel’s alleged error. Thus, he has not satisfied the second prong of the

Strickland test. We do not address whether counsel’s performance was deficient.

See McConnell, 55 M.J. at 481.

The next four issues all stem from trial defense counsel’s decision to allow an

independent evaluation of the appellant by Dr. CR, the Government’s expert witness, and

what the appellant believes would have happened had the military judge ordered an

independent evaluation.

As previously discussed, unexpected things happened during the Daubert hearing

that impacted the defense decision to have Dr. BM provide expert testimony. Dr. BM’s

direct examination testimony regarding his diagnosis of the appellant contradicted his

previously stated diagnosis to trial defense counsel during consultation. This came as a

surprise to the trial defense team, who had intended to use Dr. BM to establish a

psychological diagnosis of the appellant that could have contributed to an inability to

premeditate his actions. On cross-examination, the situation worsened when Dr. BM

changed his testimony, indicating he had inaccurately stated his diagnosis during direct

examination. However, cross-examination revealed that he not only erred in stating the

appellant’s diagnosis during direct examination, but also erroneously conveyed this

inaccurate diagnosis to the prosecution during an interview in the days prior to his

testimony. This unusual situation—arising in the middle of trial—left the defense team

concerned that these obvious inconsistencies could degrade his credibility and their

theory of the case. Additionally, the Government asked for an independent evaluation of

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).

36 ACM 36785 (recon)

the appellant, given Dr. BM’s testimony.

Viewing the strategic and tactical decisions of counsel in light of the

circumstances at the time of the decision, we find neither deficient performance nor

prejudice after application of the Strickland test. See Strickland, 466 U.S. at 687. Trial

defense counsel was placed between the proverbial rock and a hard place after the

Daubert hearing testimony. They had to decide whether to use Dr. BM as a witness

during the findings phase, whether his credibility issues would hinder or help their theory

of the case, and how to handle the Government’s request for an independent evaluation of

their client. While unorthodox, we cannot find the decision to allow their client to be

evaluated by Dr. CR was deficient given the unique circumstances that surfaced mid-trial.

Concern over Dr. BM’s testimony and his credibility arose unexpectedly during the

Daubert hearing, not due to the evaluation by Dr. CR. Attorneys may disagree with the

approach taken, but counsel’s performance here reflects strategic and tactical decisions

that will not be second-guessed by this Court. Anderson, 55 M.J. at 202.

Furthermore, the appellant agreed to this approach at the time of trial. He was

present during the Daubert hearing, aware of Dr. BM’s change in testimony regarding his

diagnosis, and knew of the Government’s request for an independent evaluation and the

possibility of the military judge’s granting such request. The record fails to establish that

he was inadequately advised by trial defense counsel. Instead, he was thoroughly

questioned by the military judge regarding the approach and restrictions on Dr. CR’s

evaluation. The record of trial reflects he was in full agreement. His change of heart at

the appellate level does not justify any relief.

The final issue presented in this area is that it was trial defense counsel’s

mishandling of the mental health issues that caused a “catastrophic decision” to abandon

Dr. BM as a sentencing witness. While raised in the context of ineffective assistance of

counsel during the findings phase of the trial due to alleged mishandling of mental health

issues, in reality this is a claim of ineffective assistance of counsel during sentencing. As

such, we will address this issue further below.

In accordance with the analysis above, we find that the trial defense counsel were

effective throughout the findings portion of the court-martial.

B. Counsel’s Performance in Sentencing

We turn now to the appellant’s assignments of error alleging ineffective assistance

of counsel in the sentencing phase of the case. We will first examine the three issues this

Court previously found to have constituted ineffective assistance of counsel: (1) the

scope of trial defense counsel’s investigation into, and failure to present evidence

deriving from, a motorcycle accident the appellant was involved in four and a half

37 ACM 36785 (recon)

months prior to the murders; (2) trial defense counsel’s failure to investigate and obtain

records pertaining to the appellant’s mother’s treatment at an inpatient mental health

facility; and (3) trial defense counsel’s failure to investigate and develop evidence of

remorse through Deputy Sheriff LF. Then we will examine whether counsel were

ineffective in failing to offer evidence of the appellant’s future risk of violence, failing to

offer testimony of SP and KP, and failing to object to inadmissible victim impact

evidence.

We conclude that although trial defense counsel were deficient in some areas, the

appellant was not prejudiced by these deficiencies, and therefore under the second prong

of Strickland we must resolve these issues against the appellant.

When the issue is the adequacy of counsel’s investigatory efforts in preparation for

the sentencing phase of a capital trial, “hindsight is discounted by pegging adequacy to

‘counsel’s perspective at the time’ investigative decisions are made, and by giving a

‘heavy measure of deference to counsel’s judgments.’” Rompilla, 545 U.S. at 381 (citing

Strickland, 466 U.S. at 689, 691). To assess the thoroughness of counsel’s investigative

efforts, this Court reviews performance for “reasonableness under prevailing professional

norms.” Wiggins, 539 U.S. at 523 (citing Strickland, 466 U.S. at 688).

The Supreme Court has historically noted that the ABA Standards for Criminal

Justice are informative guidelines for assessing “prevailing professional norms” and

determining what is reasonable. See Strickland, 466 U.S. at 688-89; Williams,

529 U.S. at 396; Wiggins, 539 U.S. at 524; Rompilla, 545 U.S. at 387. Although these

standards are instructive, it is important to note, as we did earlier, that they are not

mandated for military defense counsel. Murphy, 50 M.J. at 9 (citing Loving, 41 M.J. at

300), quoted in Loving, 68 M.J. at 19-20 (Stucky, J., concurring in part and in the result).

With respect to investigative efforts, Guideline 10.7 of the ABA Guidelines sets

forth that “[c]ounsel at every stage have an obligation to conduct thorough and

independent investigations relating to the issues of both guilt and penalty.” Id., reprinted

in 31 Hofstra L. Rev. 913, 1015. The Commentary to Guideline 10.7 states counsel need

to explore medical history, including hospitalization, mental illness, family history of

mental illness, physical injury, and neurological damage. Id. at 1022. Guideline 10.11

also sets forth an ongoing duty of counsel to “seek information that supports mitigation or

rebuts the prosecution’s case in aggravation.” Id. at 1055.

In Lockett v. Ohio, 438 U.S. 586, 604 (1978), the Supreme Court concluded:

[T]he Eighth and Fourteenth Amendments 11 require that the sentencer . . .

11

U.S. CONST. amend. VIII, XIV.

38 ACM 36785 (recon)

not be precluded from considering, as a mitigating factor, any aspect of a

defendant’s character or record and any of the circumstances of the offense

that the defendant proffers as a basis for a sentence less than death.

Similarly, the sentencer may not “refuse to consider, as a matter of law, any

relevant mitigating evidence.” Eddings v. Oklahoma, 455 U.S. 104, 114 (1982). These

well-established rules necessarily imply that counsel should seek to investigate and

develop any evidence which might mitigate against the appropriateness of the death

penalty. “In assessing the reasonableness of an attorney’s investigation . . . a court must

consider not only the quantum of evidence already known to counsel, but also whether

the known evidence would lead a reasonable attorney to investigate further.” Wiggins,

539 U.S. at 527.

The case at hand is not one in which trial defense counsel shirked their

responsibility to conduct any investigation into the appellant’s family and social history,

upbringing, or history of mental illness, or utterly failed to present a case in mitigation

and extenuation. To the contrary, prior to the Article 32, UCMJ, 10 U.S.C. § 832,

investigation, trial defense counsel secured the services of a professional mitigation

specialist, CP, whose role was to:

collect any and all records regarding a criminal defendant [and] interview

friends, family members, co-workers, acquaintances, teachers, therapists,

social workers, medical doctors, and anyone who has had contact with the

defendant[;]

....

obtain all discovery materials from defense attorneys, law enforcement

agencies [sic] documents, previous criminal history records of the

defendant, all records from the jail, autopsy report, crime scene pictures and

videos, defendant’s audio and/or videotaped statement, indictment as well

as factors that the state intends to use as aggravating factors[; and]

....

research, obtain, evaluate and coordinate the use of any and all information

from the life of the defendant that may serve in the process of mitigation.

From August 2004 until 13 October 2005, when the sentence was announced, CP

“collected thousands of pages of documents related to [the appellant] and interviewed

approximately a hundred individuals with the goal of understanding the crime as well as

the person of who [the appellant] was.” Trial defense counsel also retained a forensic

39 ACM 36785 (recon)

psychologist, Dr. BM, prior to the Article 32, UCMJ, investigation. Consequently, the

question presented in the first three issues is whether, despite the assistance of the

mitigation specialist and forensic psychologist, trial defense counsel’s investigation and

failure to present what the appellant argues would have been mitigating evidence fell

short of the performance expected by reasonably competent counsel.

1. Motorcycle Accident Injury

In August 2004, the trial defense team’s mitigation specialist, CP, sent a

memorandum to the appellant’s military trial defense counsel strongly recommending the

appellant undergo a full battery of psychological testing because he had been involved in

a motorcycle accident four and a half months before the murders. She conveyed her

opinion that the defense team had a responsibility to pursue any possible brain damage

due to the closed head injury and behavioral changes reportedly observed in the appellant

after the accident, and emphasized this was an important area of inquiry. She described

her experience with closed head injuries, opining that often such injuries can explain

aberrant behavior, and made clear her recommendations for further investigation,

neuropsychological testing, and brain scanning.

In October 2004, the defense forensic psychologist consultant, Dr. BM, spent

between 12 and 14 hours over the course of two days conducting more than a dozen tests

on the appellant, including neuropsychological, intellectual, and personality tests. At

some point, the defense team asked Dr. BM about the mitigation specialist’s suggestion

that additional testing and inquiry be conducted into the possibility of a traumatic brain

injury (TBI). Although trial defense counsel were aware that the Government would

likely fund additional expert assistance if they needed it, they ultimately accepted

Dr. BM’s conclusion that there was no connection between the accident and the murders,

and that there would be no value to be gained by conducting further neuropsychological

testing. Trial defense counsel conducted no further investigation into the possibility of a

TBI and introduced no evidence of the motorcycle accident at the appellant’s trial.

The appellant asserts trial defense counsel were ineffective when they failed to

investigate and develop potential mitigation evidence related to the motorcycle accident.

The argument can be summarized as follows: (1) the appellant was involved in a

motorcycle accident on 22 February 2004, four and a half months before his crimes;

(2) occurrence of a blow to the head during the accident itself is sufficient to establish the

appellant suffered a traumatic brain injury, and even if it is not, his symptoms

immediately following the accident in combination with a behavioral change noted in the

months following the accident clearly do so; (3) TBIs can cause disinhibited impulse

control and aggressive behavior; (4) therefore, the appellant was prejudiced when his trial

defense counsel did not introduce evidence of the motorcycle accident, because there is a

reasonable probability the panel would have found the injury mitigating on the question

40 ACM 36785 (recon)

of the appellant’s moral culpability and imposed a sentence other than death.

In the abstract, and considering only the unrebutted assertions listed above, the

argument sounds reasonable. However, our review is not limited to favorably-presented

assertions. Instead, we “must consider all the evidence—the good and the bad—when

evaluating prejudice.” Wong v. Belmontes, 558 U.S. 15, 26 (2009). “In assessing

prejudice, we reweigh the evidence in aggravation against the totality of available

mitigating evidence.” Wiggins, 539 U.S. at 534. The question is whether if the members

had been able to place the additional evidence “on the mitigating side of the scale, there

is a reasonable probability that at least one [member] would have struck a different

balance.” Wiggins, 539 U.S. at 537.

Regardless of whether counsel’s performance was deficient, in order for an

appellant to demonstrate prejudice under the second prong of a Strickland analysis, the

appellant bears the burden on appeal of demonstrating a reasonable probability that but

for his counsel’s error(s), there would have been a more favorable outcome. Strickland,

466 U.S. at 694. In other words, it is not enough for the appellant to show that his

counsel overlooked certain mitigation and extenuation evidence and that such evidence

might have made a difference; rather, the appellant must show that such overlooked

evidence would have been sufficiently persuasive to give rise to a reasonable probability

of a different outcome. Id. at 695.

As discussed below, we agree that a panel member could find a TBI mitigating on

the question of a person’s moral culpability if there were evidence the injury influenced

that person’s behavior. However, the appellant has failed to demonstrate the injuries he

sustained in his motorcycle accident had any impact on his behavior the night of the

murders, or that the members would have considered an unsupported proposition in that

regard to have been sufficiently mitigating to render a more lenient sentence. We

therefore conclude that the appellant was not prejudiced by his counsel’s failure to

introduce evidence of the accident and the appellant’s injuries, because under the facts of

this case we do not find a reasonable probability of a different outcome.

Because of the volume of after the fact interpretations—and reinterpretations—of

what the evidence actually showed, or should have shown, it is necessary to individually

analyze the assertions made in the appellant’s argument.

(a) The motorcycle accident

There is no dispute the appellant was involved in a motorcycle accident on

22 February 2004. According to Ms. DP (then Technical Sergeant DH), who

encountered the appellant sometime after the accident, the appellant told her he lost

control on a patch of gravel about two blocks from his house. It is also undisputed he

41 ACM 36785 (recon)

suffered some injuries in the accident. The severity of the accident, however, is difficult

to assess. While the appellant’s post-trial affiants describe the motorcycle he was riding

as “totaled” and his helmet as “badly damaged,” the appellant evidently rode the same

motorcycle two miles to base without incident after the accident, as opposed to the two

blocks to his home. Despite the accident occurring at “the corner of a neighborhood

street,” there was no reported emergency medical or law enforcement response.

The appellant’s mitigation expert, CP, initially described the damage to the

appellant’s helmet when she wrote, “[Capt DJ] and I noticed numerous scratches on the

helmet and that the front plate was missing.” In subsequent post-trial affidavits, her

descriptions of the damage to the helmet and motorcycle take on a more serious tone.

For example, CP writes, “The helmet was scratched, gouge [sic] in the front, and the

visor was completely missing.” Other post-trial affiants, who never saw the motorcycle

or the helmet, appear to accept as fact CP’s descriptions of the damage to both and

include it in their assessments. For example, relying on CP’s description, Dr. CA writes,

“[The appellant’s] motorcycle was badly damaged, and his helmet was scratched and

gouged in the front.” Similarly, MF writes, “I am aware that [the appellant] was involved

in a serious motorcycle accident that totaled his motorcycle, caused serious damage to his

helmet . . . .”

Consequently, while the occurrence of the accident is undisputed, the appellant’s

post-trial commentators who describe the accident do so in terms indicating certain

assumptions about its seriousness. The post-trial affidavits establish that an accident

occurred, though the actual severity of the accident is unclear.

(b) Evidence the appellant suffered a TBI

We next examine the appellant’s contention he suffered a TBI in the motorcycle

accident.

From the opening language of the appellant’s Reply Brief, to his counsel’s oral

argument before us, the appellant argues that the accident and an unspecified period of

unconsciousness that followed are sufficient to establish that he suffered a TBI. In the

“Introduction” section of the brief, the appellant’s counsel unequivocally states an

“effective mitigation case would have included evidence that Appellant suffered a

traumatic brain injury in a motorcycle accident just four-and-a-half months before the

murders.” (emphasis added). The brief continues: “The members would have seen full-

color exhibits showing the regions of Appellant’s brain injured in the motorcycle

accident.” (emphasis added). When questioned about where, precisely, the record

demonstrated that the appellant in fact suffered a TBI, the appellant’s counsel responded,

“The very fact that he suffered from a motorcycle accident and was unconscious, that was

a brain injury of some kind, a traumatic brain injury of some kind.” When asked what he

42 ACM 36785 (recon)

based that conclusion on, counsel responded, “Your Honor, I think that’s common

knowledge. That traumatic brain injury occurs when people lose consciousness. I think

that’s—any neuropsychologist would tell you that.”

We are not convinced the record before us provides us with such a concrete

conclusion. In the absence of what Dr. CA described as “gold standard” diagnostic tests

or results generated by his “neuroradiological technique of choice,” we have only the

record and post-trial submissions to discern how the parties would have endeavored to

establish or rebut the existence of a TBI, had trial defense counsel pursued this strategy at

trial.

The appellant argues that if occurrence of the accident itself is not sufficient to

establish he suffered a TBI, his symptoms immediately following the accident and a

behavioral change noted in the months following the accident clearly do so. Several

critical components of the appellant’s argument—that overlooked mitigation and

extenuation evidence related to the motorcycle accident would have made a difference at

trial—rest on representations made, many now long after the fact, by the defense

mitigation expert, Ms. CP.

Regarding acute symptoms following the accident, Ms. DP would have testified

that when she encountered the appellant after the accident, she noticed he was bleeding

over his left eye, looked disheveled, seemed disoriented, spoke slowly, and walked in a

slow and cautious manner. According to the appellant, he lost consciousness for some

unspecified period of time. After Ms. DP encouraged the appellant to seek medical

attention, medical personnel treated and released the appellant the same day of the

accident. According to the Tricare billing statements, physicians conducted a CT scan

without dye of the appellant’s “head/brain” and another of his “orbit/ear/fossa.” They

also performed an X-ray exam of his hand and “repair[ed] superficial wound(s).” There

is no evidence or suggestion that after the accident he missed work or manifested any

other physical symptoms or limitations relating to his injuries.

While we agree DP’s observations show the appellant suffered a head injury of

some indeterminate severity, the appellant’s experts base their opinions on that fact in

combination with a reported change in the appellant’s personality to support their

conclusion the appellant suffered a TBI. The evidence in the record of such a personality

change, however, is tenuous and in many respects substantially contradicted. The only

data point for this alleged personality change is a summary of an interview written by CP,

the defense mitigation specialist. After interviewing “approximately a hundred

individuals,” CP found one person who, according to her interview summary, said the

appellant’s behavior changed following the accident. Specifically, CP reported that [the

appellant’s] roommate, EL, said the appellant “became more outspoken. He wouldn’t put

up with anything anymore. After the accident was the first time [EL] saw him in a

43 ACM 36785 (recon)

fight.” 12

Relying on CP’s report of EL’s statement, one post-trial affiant—an attorney and

death penalty litigation expert—argues that additional testing was obviously necessary:

“[A]t least one potential witness noted [the appellant’s] personality changed. Where he

had previously not been violent, he was prone to emotional outbursts. . . . ‘When a person

seems to have undergone a sudden personality change . . . possible links to brain injury

should be assessed.’” (emphasis added). Similarly, Dr. FW makes repeated references to

the appellant’s “behavioral changes” as evidence “highly typical of the impairment in

emotional self[-]regulation and impulse control that results from anterior temporal lobe

damage.”

Neither MF, Dr. CA, nor Dr. FW, however, appear to have considered other

materials within DP’s and CP’s post-trial affidavits that contradict the suggestion the

appellant’s personality changed from a non-confrontational, pleasant co-worker or

acquaintance to someone prone to violence or emotional outbursts. For example, CP

elsewhere states that a correctional officer, who supervised the appellant during his

pretrial detention in the Houston County jail, “spoke very positively” of him and

described him as “dependable and respectful.” CP reports that Deputy LF, who guarded

the appellant during the Article 32, UCMJ, hearing and who maintained contact with him

for some unspecified time thereafter “would have testified to [the appellant’s] good

behavior, readiness to follow instructions, and obedience.” CP additionally states

Airman KL “had never seen him angry,” 13 and Senior Master Sergeant JM “described

[the appellant] as smart and quick, never angry.” 14 Similarly, Ms. DP states in her own

post-trial declaration she would have testified “the [appellant] she knew was good, kind,

funny, and . . . did not have any enemies. [She] also would have testified that [his

crimes] were completely out of character.”

Aside from the post-trial affidavits, the transcript of the trial includes additional

testimony, apparently not considered by the appellant’s post-trial psychological experts,

that contradicts EL’s opinion, as reported by CP, of the appellant’s personality change.

Most notably, CW, the appellant’s biological father, testified that two weeks prior to the

murders he took the appellant on a week-long golf vacation in Europe. First they visited

Capernwray, a private college the appellant attended after high school, so the appellant

could pick up a copy of his transcripts and show his father around the campus. From

there they “drove to the nearest golf course, played golf. Got up the next morning and

12

There is no affidavit or statement from EL in the record before us. Rather, the only record of what EL would

have allegedly said is contained in CP’s notes recounting her conversation with him.

13

CP’s affidavit does not specify whether Airman KL’s observations occurred before or after the accident.

14

CP’s affidavit does not specify whether Senior Master Sergeant JM’s observations occurred before or after the

accident, but as he was the appellant’s second line supervisor, it is reasonable to assume he was aware of the

appellant’s behavior before and after 22 February 2014.

44 ACM 36785 (recon)

drove to another place, played golf. That’s all [they] did for seven days.” Trial defense

counsel asked CW, “When you were together, did you notice any difference in his

behavior or how he acted and what was the young man you had known all his life?” CW

replied, “Not one bit.” Trial defense counsel pressed, “And so did you notice any

differences in [the appellant] you’d known his whole life and [the appellant] that was

with you—no clue?” CW answered, “No. No. Not one—nothing. No clue.” Although

some witnesses at trial did testify to personality changes in the appellant, these changes

were observed before the motorcycle accident and did not relate to a disposition towards

violence or emotional outbursts. 15

The appellant also told the Government’s forensic psychologist, Dr. CR, that while

it was true he had been involved in a fight, he became involved only because he was

trying to break it up. While it is not inaccurate to say the appellant was “involved in a

fight” following the accident, his own words explaining his non-violent motivation for

doing so provide an important context for evaluating his proneness toward violent

behavior or emotional outbursts. During the interview with Dr. CR, the appellant also

“denied having experienced any cognitive impairment or behavioral changes at any time

before his arrest and specifically denied having had any difficulty in the areas of

controlling anger, rage or impulsivity.”

The only data point standing for the proposition that the appellant’s motorcycle

accident changed his personality, then, comes from CP’s recitation of a conversation she

had with EL. CP described EL, moreover, as “arrogant,” “flighty,” and “not happy . . .

quite upset” with her and the defense team because they refused to return the motorcycle

helmet EL had purchased from the appellant’s father. 16 Capt DR describes the following

defense concerns about EL:

[CP] had interviewed [EL] at least once, possibly multiple times, and

expressed concerns to us about his possible testimony. We also had

concerns that [EL] had proven to be an unfaithful friend in the time leading

up the [sic] trial and had said things negative about [the appellant]. We

concluded [EL] would have been a risky witness.

15

For example, MP, the appellant’s mother, spoke of the changes she saw in her son following his entry into the

Air Force, testifying that she had become aware that he had started drinking. MR, a friend with whom the appellant

had started a grass-cutting business in junior high school, testified that when the appellant came home for a visit in

December 2003 he had changed. MR described his surprise at the appellant’s use of swear words, that he had “five

or six” girlfriends, and that he “was bragging about partying and doing all kinds of stuff.” By early 2004, the

appellant—whose parents and friends described him as a teenager as shy and immature around women—had

confided in a close friend, Staff Sergeant PS, that he was having an affair with a married woman who had a 17-year-

old daughter, and that “eventually he was going to try and sleep with the daughter as well as the mother.”

16

This is also circumstantial evidence that the motorcycle helmet was not badly damaged. We find it improbable

EL would have been upset about relinquishing a badly damaged helmet.

45 ACM 36785 (recon)

Finally, neither the record nor CP recount that others close to the appellant, such

as SSgt PS, who described herself as the appellant’s “best friend,” Mr. CC, appellant’s

roommate from February through July 2004, or SrA SF, who “was going to have [the

appellant] be his best man at this [sic] wedding,” reported any post-accident personality

change in the appellant. Substantial evidence, including the testimony of CW and

Dr. CR, squarely rebut the assertion that the appellant’s personality dramatically changed

as reported by CP’s characterization of EL’s observation. Consequently, to the extent the

evidence of a TBI is based on purported changes in the appellant’s personality, we find

this point to be resoundingly contradicted by the record.

(c) The battle of the experts waged in post-trial affidavits

We turn now to the competing opinions of the experts submitted by the parties.

Dr. FW, whose declaration was submitted by the appellant, takes issue with what he

describes as numerous errors made by Dr. AM, Dr. BM, and Dr. CR, when they arrived

at their independently derived conclusions that there was no connection between the

motorcycle accident and the appellant’s actions the night of his crimes. Dr. FW goes so

far as to say that, had he been contacted by the defense, he would have told them “with

proper scanning . . . [he] would expect to find not only whether [the appellant] suffered

from a TBI, but [he] would also be able to locate the lesion and identify the specific

behavioral abnormalities associated with the lesion.” In point of fact, Dr. FW, and

another expert, Dr. CA, cannot tell us the appellant actually experienced a TBI; the most

they tell us is that certain behaviors or symptoms exhibited by the appellant are consistent

with a TBI.

As the appellant’s counsel observed during oral argument, “[t]o what extent that

brain injury affected [the appellant’s] actions on the nights [sic] of the murders is a

separate question and whether that affected the left anterior temporal lobe as [Dr. FW]

said, would require further testing.” Nevertheless, more than two years since Dr. FW’s

first affidavit raised verifiable brain injury as a potentially overlooked mitigating factor,

no such scanning has ever been performed. 17

Dr. FW and Dr. CA attack the expert opinions supporting the Government by

saying that “gold standard” diagnostic methods were not brought to bear by the first three

17

The affidavits by Dr. FW and Dr. CA both appear to say that while the symptoms of a TBI may abate over time

as the brain essentially finds a way to create new, usable pathways around brain tissue damaged by a TBI, evidence

of the TBI itself remains detectable if the proper imaging technology is used. According to Dr. FW, “[C]linical and

research experience both teach that even permanent brain damage typically shows some remission in symptoms as

the temporarily dysfunctional areas (surrounding the overtly destroyed areas) recover, and as other initially impaired

functions are re-programmed and re-routed through healthy brain tissue.” If the correct scan or scans were to be

conducted, the threshold issue—whether the appellant suffered a TBI in the motorcycle accident—could have been

conclusively resolved. We have no such evidence before us.

46 ACM 36785 (recon)

forensic psychologists who evaluated the appellant. 18 However, instead of providing

evidence of what such tests—performed by them or others—have subsequently shown,

they appear to aver simply that the right tests, performed correctly, could reveal a TBI

and its effects. Dr. FW also states that the Government’s experts overlooked and misread

tests pertaining to the appellant’s grip strength and apparent disparities between his

verbal and visual memory capacity. But what Dr. FW does not provide us is any sort of

reference by which to assess the diagnostic persuasive weight of those indicators. For

example, though he notes the percentile of visual and verbal memory as being in the top

and bottom tenth percentiles, respectively, he does not say “and X percent of people who

demonstrate such disparities in fact have a TBI in the left temporal lobe.” He says verbal

memory deficits “are typical of left anterior lobe damage.” This raises more questions.

What else are they typical of? If typical of specified conditions, how often? Can such

disparities signal nothing at all? If the appellant’s dominant hand was weaker, how much

weaker was it? How unusual is it for a person to have a weaker dominant hand? Are

there reasons not related to a TBI that a person might have a weaker dominant hand? 19

At the end of the day, Dr. FW’s conclusions remain, just as Dr. CA described

them when commenting on Dr. FW’s comments, tentative and qualified.

Under similar circumstances, when addressing how to approach a post-trial battle

of the experts, our superior court has observed,

“We . . . note that divergence of opinion among psychiatrists is not novel

and does not provide a legal basis for concluding that one or the other is

performing inappropriate tests or examinations. In Ake, the Supreme Court

said: ‘Psychiatry is not, however, an exact science, and psychiatrists

disagree widely and frequently on what constitutes mental illness, on the

appropriate diagnosis to be attached to given behavior and symptoms, on

care and treatment, and on likelihood of future dangerousness.’”

United States v. Gray, 51 M.J. 1, 17 (C.A.A.F. 1999) (quoting Ake v. Oklahoma,

470 U.S. 68, 81 (1985)).

The opinions proffered by the appellant’s post-trial experts conflict not only with

the opinions of other forensic psychologists who evaluated the appellant, but they also

conflict to some extent with one another. For example, a death-penalty defense expert,

18

Neither Dr. FW nor Dr. CA have met or evaluated the appellant.

19

The information we do have before us would seem to suggest the appellant’s right-handed grip strength at the

time of the murders was substantial. Dr. FW states that the appellant is right handed, and the appellant told the

interrogating AFOSI agent he used his right hand to inflict the fatal wound on Senior Airman (SrA) AS. Whatever

grip strength the appellant had in his right hand enabled him to thrust the knife into the victim’s chest with sufficient

force to reach the hilt, leaving visible abrasions noted during the autopsy.

47 ACM 36785 (recon)

MF, filed a post-trial affidavit supporting the appellant. She criticized the methodology

used by Dr. BM, who concluded the accident had no connection to the murders, on the

basis that “only three of [the tests he performed] were designed to identify neurological

dysfunction.” 20 Dr. CA, on the other hand, states “I can attest that the methodology used

by [Dr. BM] . . . is consistent with a standard of practice in the field.”

The post-trial battle of the experts in the case now before us illustrates precisely

the reason our superior and sister service courts are disinclined to descend into the

“‘psycho-legal’ quagmire of battling psychiatrists and psychiatric opinions, especially

when [as in the case sub judice] one side wages this war against its own experts by means

of post-trial affidavits.” United States v. Gray, 51 M.J. 1, 17 (C.A.A.F. 1999) (citing

Harris v. Vasquez, 949 F.2d 1497, 1518 (9th Cir. 1990)).

The appellant was evaluated before trial by two forensic psychologists: Dr. AM, a

forensic psychologist, who performed the sanity board; and Dr. BM, a forensic

psychologist and J.D., who was the defense expert consultant. During the trial, following

the Daubert hearing, the appellant was evaluated by a third forensic psychologist,

Dr. CR, pursuant to a joint request by trial and defense counsel. None of these

extensively educated and experientially well-pedigreed specialists believed the appellant

suffered from any mental disease or defect that would operate as a defense or mitigating

factor resulting from the motorcycle accident. Nearly nine years after the date of the

appellant’s crimes—roughly eight from his trial—two other mental health experts,

neither of whom ever met the appellant, let alone evaluated him, have provided written

statements attacking the methodology and diagnoses of three other experts who have.

They do so based on admittedly incomplete information, 21 through the lens of hindsight,

and informed at least in part by surgical extracts from larger conversations presented, or

in some cases subtly reframed, by CP, whose job as she describes it is “to research,

obtain, evaluate and coordinate the use of any and all information from the life of the

defendant that may serve in the process of mitigation.” 22

(d) Prejudice

20

The argument raises the question: How many tests specifically designed to identify neurological dysfunction

must a defense team, or a defense-retained expert consultant, conduct to meet an acceptable standard of

investigation? Notwithstanding MF’s criticism of the tests Dr. BM performed as “incomplete,” we note the

Supreme Court has considered two of those tests, the STROOP and Trail Making-B tests, to constitute “clear and

compelling evidence” of an appellant’s frontal lobe brain function. See Sears v. Upton, 561 U.S. 945, __, 130 S. Ct.

3259, 3263 (2010).

21

Dr. CA points out she bases her conclusions “not on independent review of the underlying facts and testing data

but on the facts as set forth in [Dr. W’s] two declarations and [Ms. DP’s] declaration.” She also characterizes

Dr. FW’s conclusions as “qualified and tentative, as I would expect them to be, given that additional neurological

scans were not performed.”

22

We do not suggest any willful misrepresentation by any affiant. However, see section III.B.2.(b), post, regarding

trial defense counsel’s description of the reliability of CP’s summaries of potential witness testimony.

48 ACM 36785 (recon)

Even if we assume, arguendo, that there was sufficient evidence available to the

parties below to establish the appellant sustained a TBI in the motorcycle accident, we

are then bound to inquire: Is there is a reasonable probability that the omitted evidence

would have changed the panel’s conclusion that the aggravating circumstances

outweighed the mitigating circumstances and, hence, the sentence imposed?

According to Dr. FW, brain damage is “essentially certain” if the unconsciousness

from the trauma lasted as much as five minutes after the blow to the head and is present

in the majority of cases of unconsciousness lasting for less than five minutes. Even so, he

acknowledges that the “severity [of such damage] . . . would still need to be assessed.”

The parties do not dispute that the appellant was rendered unconscious for some period of

time as a result of the motorcycle accident. The unanswered question is the extent to

which this accident impacted the appellant, or if it did so at all.

While various affidavits and arguments now before us stand for the proposition

that TBIs occurring to a person’s left frontal temporal lobe may be related to increased

aggressiveness and disinhibited impulse and emotional control, other authority cited by

the appellant suggests that is not the norm. The appellant argues “a 2003 study found

that 33.7% of traumatic brain injury patients demonstrated significant aggressive

behavior during the first six months after their injury.” The obvious implication of this

data and the assertion it supports is that the other 66.3% did not. If two out of every three

people suffering a TBI do not demonstrate significant aggressive behavior, what evidence

available to the parties at the trial level would or could have tied such an injury to the

appellant’s actions in the early morning hours of 5 July 2004?

The crux of appellant’s claim with regard to the accident and a TBI is that his

counsel prejudicially erred by not showing the members the damaged helmet and arguing

the appellant was less culpable for his actions because a brain injury he sustained made

him act impulsively, impaired his cognitive functions, and suppressed his emotional self-

regulation. If they had done so, the appellant argues, there is a reasonable probability the

jury would not have sentenced him to death.

The Government, however, would have been entitled to marshal evidence to

counter such an argument had trial defense counsel made it. When examining for

prejudice, we look not only at what evidence trial defense counsel could have presented,

but also at how the Government could have responded in light of all the evidence. As

observed by the Supreme Court in Belmontes, “In balancing the mitigating factors against

the aggravators, the [lower court] repeatedly referred to the aggravating evidence the

State presented as ‘scant.’ That characterization misses Strickland’s point that the

reviewing court must consider all the evidence—the good and the bad—when evaluating

prejudice.” 558 U.S. at 26 (citation omitted).

49 ACM 36785 (recon)

The appellant’s side of the balance includes CP’s recitation of EL’s observation

about the appellant’s change in personality. That recitation forms the basis for a

substantial portion of the appellant’s post-trial experts’ qualified conclusions 23 that a head

injury reduced the appellant’s ability to refrain from acting impulsively, controlling

violent outbursts, or thinking clearly when he was killing two people and seriously

wounding a third. On the Government’s side of that balance, trial counsel could

reasonably be presumed to have pointed out the other evidence squarely contradicting

any suggestion that the appellant’s actions were impulsive and that he was unable to think

clearly.

SrA AS first called the appellant at 0137 hrs. Over the course of the next several

hours, when telephone exchanges between the appellant, SrA AS, and SrA JK made it

clear that SrA AS intended to inform the appellant’s supervisory chain about his

lecherous behavior toward JS and with another married woman, the appellant

methodically executed a protracted, multi-step plan to kill the people who threatened to

derail his career. The appellant had an IQ in the top third of the population, there is no

indication his injury impacted his ability to perform his job as an avionics technician in

an acceptable fashion, and Dr. CR observed no deficits in the appellant’s ability to plan,

organize, sequence, or abstract. Based on his two-hour interview with the appellant,

Dr. CR concluded:

[The appellant] demonstrated meticulous planning, organization skills to

carry out his plan, a logical sequencing of behavior to accomplish his goals,

and abstract reasoning.

....

A question arises whether it is clinically possible that [the appellant]

could have suffered a severe transient cognitive impairment from his

February 2004 accident that impaired his mental functioning on the night of

the July 2004 murders, but then totally remitted afterward such that an

evaluation conducted some fourteen or fifteen months later (September to

October 2005) might fail to show signs of impairment. While almost

anything is clinically possible, I consider it extremely unlikely that such a

sequence of events would occur, especially given [the appellant’s] detailed

explanations for his behavior. First of all, [the appellant’s] recounting of

his reasoning and behavior at the time of the offenses, including asocial

motivation and planning, is not consistent with cognitive impairment nor is

23

As noted previously, tests or imaging that would meet the confirmatory “gold standard” for appellant’s experts

have never been conducted.

50 ACM 36785 (recon)

his intact memory for details of those events.

[The appellant] has provided extensive information inconsistent with

impulsivity. He was negative for any symptoms of brain impairment . . .

when evaluated and described no such symptoms occurring while

committing the underlying offenses. [The appellant] denied having

experienced any cognitive impairment or behavioral changes at any time

before his arrest and specifically denied having had any difficulty in the

areas of controlling anger, rage or impulsivity.

The results of one component of the Minnesota Multiphasic Personality

Inventory-2 (MMPI-2), which Dr. CR administered during his evaluation, comported

with the appellant’s self-reported assessment that he experienced no change in aggressive

behavior. Dr. CR reports, “Various scale results [from the MMPI-2] indicated no

neurological symptoms . . . no general health concerns . . . nor anger/explosive

behavior . . . .” Dr. CR’s assessment appears to line up with the opinion of another of the

appellant’s post-trial psychological experts, Dr. TR, who opines that group statistical data

applied to the appellant “reveals no known risk factors that would suggest raising his

violence risk estimate above the low cited base rates.” Dr. TR also opines that “[s]everal

factors pointed to [the appellant] having a lower risk for serious prison violence than the

rate of capital offenders in general . . . .” Finally, the testimony of CW stands in stark

contradiction to the after-the-fact suggestion that the motorcycle accident changed the

appellant’s personality.

“The appellant bears the heavy burden of establishing his trial defense counsel

were ineffective.” United States v. McPherson, 72 M.J. 862, 870 (A.F. Ct. Crim. App.

2013) (citing United States v. McConnell, 55 M.J. 479, 484 (C.A.A.F. 2001)). “There is

no reason for a court deciding an ineffective assistance claim to approach the inquiry in

the same order the Court in Strickland did, or even to address both components of the

inquiry if the defendant makes an insufficient showing on one.” McConnell, 55 M.J. at

481 (quoting Strickland, 466 U.S. at 697) (alterations and quotation marks omitted). “An

error by counsel, even if professionally unreasonable, does not warrant setting aside the

judgment of a criminal proceeding if the error had no effect on the judgment.”

Strickland, 466 U.S. at 691.

Although the motorcycle accident is undisputed, it has never been determined that

the appellant sustained a TBI. But even assuming he did, not all TBIs make a person

more prone to violence. More importantly, even if some TBIs do make a person more

prone to violence, the evidence in this case resoundingly contradicts the single data

51 ACM 36785 (recon)

point 24 suggesting the appellant’s behavior changed following his accident. Simply

raising a possibility of a different outcome, had information about the motorcycle

accident been introduced and argued, is not enough. Strickland places the burden on the

appellant to show a reasonable probability that the result would have been different.

466 U.S. at 694. The appellant has failed to meet that burden.

We do not dispute the appellant’s assertion that panels find mental disorders

mitigating as to the question of a person’s moral culpability in death cases when the

evidence supports a conclusion that a specific injury influenced a person’s behavior.

Such evidence is simply not present in the case before us.

Whether trial defense counsel rendered substandard assistance under the

deficiency prong of a Strickland analysis may be subject to debate. Considering the role

of the mitigation specialist in this case, whose sole function was to develop mitigation

evidence, the argument may be made that trial defense counsel were deficient for not

further investigating the possibility of a TBI—in spite of their forensic psychologist’s

conclusion that doing so was unwarranted—when such an investigation could have

produced concrete evidence of an injury through “gold standard” diagnostic testing. One

could also argue that as sentencing in a capital case involves the weighing of mitigating

and aggravating factors, a premature foreclosure of any potentially mitigating factor, no

matter how tenuous, could raise doubts about the professional judgment of the trial

defense counsel. Finally, the very existence of disagreement between two of the defense

team’s experts, CP and Dr. BM, on the question of whether to further investigate the

motorcycle accident, could be argued to support the proposition that further examination

was warranted. Conversely, on the facts now before us, where CP’s investigation on

behalf of the defense produced only one witness in a hundred who observed a personality

change in the appellant following the accident, where there was substantial evidence the

appellant’s personality was not at all affected by the accident, and where the defense’s

forensic psychologist concluded there was no reason to pursue such a theory, counsel

may be deemed to have acted reasonably. We base our holding on the second prong of a

Strickland analysis, finding no prejudice to the appellant.

2. Mental Health Records of the Appellant’s Mother

The appellant asserts his trial defense counsel were ineffective when they failed to

investigate his mother’s mental health history and obtain her mental health records from

an inpatient stay when the appellant was in his early teens.

As discussed above, trial defense counsel’s rationale for not pursuing the known

24

The single data point indicating a change in the appellant’s personality is CP’s memorandum recounting EL’s

observations about the appellant.

52 ACM 36785 (recon)

lead of possible traumatic brain injury was because Dr. BM did not believe the accident

contributed to his crimes. Instead, trial defense counsel acknowledged their theory of the

case, based upon Dr. BM’s evaluation, was that the appellant’s actions were directly

influenced by his historical familial experiences, childhood, and the manner and

environment in which he was raised. At least one of the trial defense counsel

acknowledged that “as part of the case theory rested on Dr. [BM]’s assessment of [MP]’s

past mental health concerns . . . we would have wanted these records.” However, none of

the trial defense counsel presented any tactical, strategic, or other reason as to why

investigation into this known lead was not pursued. In addressing this issue, civilian trial

defense counsel stated, “To the extent we did not seek [MP]’s mental health records, in

my mind it was simply that Dr. [BM] did not ask us to obtain them. Had he done so, we

would have had trial counsel obtain them.”

The appellant argues that although the members were generally aware of MP’s

treatment at Minirith Meier New Life Clinic [hereinafter “MMC”] through “a passing

reference to [MP’s] stay at [MMC] for depression from her husband, [GP], and some

general discussions of [MP’s] family history of mental issues, no witness described,

explained, or discussed in any manner any of the results of [MP’s] psychological testing

from the [MMC] or her doctors’ conclusions.” (record citations omitted). Additionally,

the appellant argues, “No witness suggested that [MP] had struggled with depression for

years, or ‘has trouble with anger and setting boundaries. That she was having many

vegetative signs of depression; hopelessness. Or that she has had some explosive temper

with yelling.’” (internal brackets and alterations omitted).

CP felt strongly that the defense team should have subpoenaed MP’s mental health

records regarding her treatment at the MMC. In one of her six post-trial affidavits, she

uses the following terms to describe her frustration:

As part of my investigation, I learned that [MP, the appellant’s]

mother, had been placed in a mental health facility when he was a young

boy. I also had learned . . . [the appellant’s] family, on both sides, had a

history of mental diseases and/or afflictions. I therefore believed obtaining

as much information as possible about the mental histories of [the

appellant’s] family was necessary.

I created a release for [MP] to sign in order for [the defense team] to

obtain records pertaining to her institutionalization. Despite my repeated

requests to her, [MP] refused to sign the release. . . .

[MP’s] refusal to allow us access to her mental health records upset

me. . . . [B]ecause of her mental health issues, [MP] was removed from the

home and placed in an institution specifically for mental health

53 ACM 36785 (recon)

treatment. . . .

I told MP that we are trying to save her son’s life and that this

information can help. This did not seem to have an effect on her. I found

this appalling and took my concerns to [the appellant’s] defense counsel.

(emphasis added).

DB, an attorney with expertise defending death penalty cases, observes in a post-

trial affidavit:

[T]he defendant’s formative environment—not only at the time of his

mother’s psychiatric hospitalization when he was 14, but throughout his

short life prior to that time—was marred by circumstances that could have

been expected to do grave harm to any young child. Specifically, the

records indicate or suggest the following:

....

[The appellant’s] biological father was “addicted to alcohol

and drugs” during the brief time when he was married to [MP] (and

when [the appellant] was born).

The home environment into which [the appellant] was born

was marked by physical abuse of his mother by his father.

....

. . . [T]he deleterious impact of his mother’s serious mental illness

would have been exacerbated by his social isolation and lack of peer

interaction or educational supervision at school.

....

Taken together, these records tend to establish both a genetically-based risk

that [the appellant] would suffer from substance abuse and major mental

illness, and also suggested that his childhood, from infancy through early

adolescence, may have been marked by domestic violence, chronic fear,

emotional withdrawal, social isolation, and pervasive instability.

(emphasis added).

54 ACM 36785 (recon)

Similarly, Dr. RC, a clinical psychiatrist submitted a post-trial affidavit in which

he offers his opinion based on “review[ing] 30 hours of interview with and testing of [the

appellant], psychiatric evaluations (including the original sanity board) of [the appellant]

performed by other mental health professionals, the psychiatric evaluation of [MP] . . .

and the transcripts of the trial,” and meeting with and evaluating the appellant. In his

opinion, the appellant’s “upbringing and biological inheritance severely inhibited his

development.” After reciting his interpretation of what the MMC records said about

MP’s history of depression and emotional difficulties, noting “numerous markers for

profound personality disorder[s],” he writes that “while [MP] completed high school, she

had indulged in alcohol and illegal drugs on a reasonably regular basis.” He eventually

concludes, “It is my professional opinion that [the appellant] was stunted by

environmental and biological factors such that he did not have the emotional capacity

commensurate with his biological age.”

Such declarations and the appellant’s arguments paint a picture of a child born to

two drug-addled parents, whose upbringing in their care, in combination with other

disadvantaging circumstances, left him with irreparable emotional injuries one would

reasonably expect as a result of severe physical and emotional adversity. But voluminous

other evidence produced at trial painted what can only be described as a markedly

different picture.

(a) Evidence in the record regarding MP’s mental health

MP was the fourth of five children in her family. She had what she described as a

“great relationship” with her mother and denied any history of physical abuse. When her

father began acting violent toward her mother, on occasion requiring police to come to

the home, her family life became difficult. When she was in the eighth grade, her mother

attempted suicide. Shortly thereafter the family split up, and she lived with two sets of

neighbors, the second of whom paid for her college. At trial, MP testified she never

became part of social services, was an avid reader, graduated from high school in 1975,

and went on to earn a bachelor’s degree in Journalism. Following college, she worked in

what she described as “some pretty good jobs.”

MP met CW in 1980, married him roughly eight months later, then quit her job

three or four months after that when she became pregnant. Prior to the appellant’s birth

in June of 1982, MP and CW split chores in the home and enjoyed many athletic

activities together. CW coached her soccer and softball teams. MP drank socially from

the time she met CW until their divorce a few years later. She tried cocaine once but

denied any other illicit drug or cigarette use. CW testified that after

This text is long and has been trimmed here. Open the source document for the complete record.