United States v. Loving

*229 ON MANDATORY REVIEW

Opinion of the Court

GIERKE, Judge:

1. A general court-martial composed of officers convicted appellant, contrary to his pleas, of premeditated murder, felony murder, attempted murder, and robbery (5 specifications), in violation of Articles 118, 80, and 122, Uniform Code of Military Justice, 10 USC §§ 918 , 880, and 922, respectively. The court-martial sentenced appellant to a dishonorable discharge, total forfeitures, and to be put to death.

The Court of Military Review * affirmed the findings and sentence twice. 34 MJ 956 (1992), on recon., 34 MJ 1065 (1992). The record is before us for mandatory review pursuant to Article 67(a)(1), UCMJ, 10 USC § 867 (a)(1) (1989). Appellant has assigned 70 errors, each of which is discussed seriatim. Having found no prejudicial error, we affirm the findings of guilty and the sentence of death.

Factual Background

On the evening of December 11, 1988, appellant robbed at gunpoint a 7-Eleven convenience store in Killeen, Texas, and obtained approximately $38.00. About an hour later, he robbed a second 7-Eleven store in Killeen, also at gunpoint, and obtained approximately $52.00.

Disappointed with the small amounts of money he had obtained from the 7-Eleven stores, he decided to rob taxicab drivers. At about 8:00 p.m. on the night of December 12, appellant called a cab to take him from the Handy Grocery Store in Killeen to Fort Hood. The cab driver was an active-duty soldier, Private (PVT) E-2 Christopher L. Fay, working for extra money. Appellant directed Fay to a secluded area on Fort Hood and, at gunpoint, demanded all his money. After receiving an unknown amount of money from Fay, appellant shot him in the back of the head. While watching the blood “gushing out” of the back of Fay’s head, appellant shot him in the back of the head a second time. Fay died as a result of the gunshots. His body was discovered by another soldier at Fort Hood about 30 minutes later.

Appellant fled from the cab to his barracks room, counted the money, and called for a second cab at about 8:15 p.m. The driver of the second cab was Bobby Sharbino, a retired Army sergeant. Appellant directed Sharbino to a secluded street in Killeen and, at gunpoint, took his money pouch, wallet, and a green BIC cigarette lighter. He ordered Sharbino to lie down on the seat and shot him in the head, killing him.

2. After killing Mr. Sharbino, appellant went to the home of his girlfriend, Ms. Nadia Pessina. They and a group of friends went to the Vegas Club, where Ms. Pessina was employed, to pick up her paycheck. They then went to another club, the Nubia Temple, where appellant became involved in an altercation with another male patron because the patron was staring at Ms. Pessina. During the altercation, appellant drew his pistol and invited the patron to go outside. As the patron advanced toward appellant, appellant backed up, stumbled over a chair, and dropped his pistol on the ground, causing it to discharge.

Appellant and Ms. Pessina hurriedly left the Nubia Temple. They went to a cab stand across the street from the Chapparal Club and took a cab, driven by Howard Douglas Harrison, to Ms. Pessina’s residence, located at 909 Mimosa Street in Killeen. Mr. Harrison had difficulty, pronouncing “Mimosa” and needed help to find the street. Appellant dropped off Ms. Pessina near her residence. After pulling a gun, he directed Harrison to a secluded street, demanded money, and took Harrison’s wallet and coin changer, obtaining about $94.00. Appellant jerked Harrison’s head around and told him to open his mouth. Believing that he was about to be killed, Harrison grabbed *230 the pistol. During the ensuing struggle, Harrison gained possession of the pistol after it went off. Then he attempted to shoot appellant, but the pistol would not fire. Harrison fled the scene, with appellant chasing him. After Harrison hit him, appellant ran to Ms. Pessina’s house, having regained possession of the pistol.

Harrison returned to his cab and reported to his dispatcher that he had been robbed and that his assailant was going toward Mimosa street. Appellant spent the remainder of the night at Ms. Pessina’s residence.

In the morning appellant took a cab back to his unit and accompanied his unit on field training. At about 3:00 p.m. he rode back from the field to the unit motor pool with his supervisor, Staff Sergeant (SSG) Barshaw. During the 35-40 minute ride from the field, appellant told SSG Barshaw that he had left his weapon and his field jacket behind. SSG Barshaw told him that he would retrieve them later and bring them to appellant.

At about the time that appellant was returning from the field with SSG Barshaw, a joint investigative team composed of members of the FBI, Army Criminal Investigation Command (CID), local police, and Texas Rangers were in Ms. Pessina’s neighborhood. They had received a general description of appellant and Ms. Pessina from Mr. Harrison, the surviving cab driver. They talked to people at the Handy Grocery Store and in the neighborhood and were told, “Yeah, that’s Nadia and she has a black boyfriend.” They saw Ms. Pessina with her friend, Ms. Ira Printers. They asked her to state her name and she identified herself. They asked her where she lived, and she told them that she lived at 909 Mimosa Street. At that point “something clicked” which “connected” Ms. Pessina to Mr. Harrison’s report. They asked her to come with them to the Killeen police station and she agreed.

3. The Killeen police did not consider Ms. Pessina a suspect at the time. She gave a statement to the police in which she described her activities, including the cab ride to her residence, but she did not implicate appellant in any crimes. She stated that, after the cab driver dropped her off at her residence, appellant left in the cab to buy her some cigarettes, returned about 5 minutes later, and then spent the night with her.

At the end of the interview, at about 6:45 p.m., she signed a written consent to a search of her residence. At trial Ms. Pessina, whose command of the English language is limited, testified regarding her consent as follows:

I don’t know if they have to have a warrant, or if they no need to have a warrant; I no know that____ But then — but, when I — no, when I was to the police station, they told me ... that, if I want, I can get a warrant, to my house. And, they say: But, they gonna look, anyway, so ... I let them look.

At about the time that the interview of Ms. Pessina was ending, appellant was apprehended in the unit motor pool by CID Special Agent (SA) Schnayerson. He was transported to the CID office, advised of his rights, and at about 7:30 p.m. waived his rights and agreed to make a statement. He denied any involvement for about 30 minutes. After SA Schnayerson asked appellant who would take care of the families of the murdered cab drivers, appellant confessed. Appellant’s confession was videotaped.

In his confession appellant told SA Schnayerson that the pistol used in the crimes was hidden in a paper bag behind Ms. Pessina’s residence. He also mentioned that he had worn black gloves during the offenses and that he took a ski mask to the 7-Eleven stores but decided not to wear it. He told SA Schnayerson that he only took cash from PVT Fay. He took money, a wallet, and a green BIC cigarette lighter from Mr. Sharbino. He threw the wallet into a dumpster next to his barracks but left the green BIC lighter at Ms. Pessina’s residence. He told SA Schnayerson that he kept Mr. Harrison’s wallet and its contents.

At about 9:00 p.m., while appellant was still being interviewed, SSG Barshaw returned to the unit’s field location and retrieved appellant’s field jacket and weapon. He found a coin changer after it fell out of a pocket of the field jacket. Suspecting some significance since he had been present when *231 appellant had been apprehended in the motor pool, SSG Barshaw gave the field jacket and coin changer to his first sergeant and a CID agent. At trial, Mr. Harrison identified the coin changer as the one taken from him by appellant.

The taped interview of appellant ended at about 10:00 p.m., at which time appellant went to sleep on a sofa in the CID office. From 10:00 p.m. until 6:00 a.m., the CID prepared a written transcript of the videotaped confession.

4. Meanwhile, a search outside Ms. Pessina’s residence had yielded appellant’s pistol, which was later identified as the weapon used in the murders and robberies; several spent and unspent bullets; and a bloodstained man’s jacket. At 11:50 p.m., Ms. Pessina returned to the Killeen police station, was advised of her rights as a suspect, and gave a second statement. She admitted driving appellant to the vicinity of the two 7-Eleven stores on December 11. She admitted seeing appellant with a pistol at an unknown time prior to the murders and robberies. She said that appellant had told her on December 12 that “he was going to go and get some money” and “he was going to go kill somebody.” Ms. Pessina said that she did not believe that appellant was serious. When appellant left the house in the early evening of December 12, Ms. Pessina “felt a bulge in his waistband” that she thought was a pistol. When appellant returned, he said, “I got the money---- I shot him.”

After completing her second statement, she signed a written consent form for a second search of her residence, which occurred at about 2:15 a.m. on the morning of December 14. The second search resulted in seizure of a black ski mask, a pair of gloves, and a green BIC cigarette lighter.

Appellant was awakened in the CID office at about 6:00 a.m. on December 14. From about 6:15 to 7:15 a.m. he reviewed the 14-page transcript of his confession. He then signed it and swore to it. At 7:45 a.m. he was interviewed by Investigator John Wedge, a member of the Killeen police, and again confessed.

On December 16, Ms. Pessina gave a third statement to the police in which she said that appellant told her he had “shot two people” but she did not believe him. She also said that while in the cab on the way to 909 Mimosa, appellant “had the pistol I believe in the front of his pants or on the side and he pulled it out and keep it in his hand on the seat.” She stated further, “I don’t know what he was going to do, but I had a bad feeling about it.”

5. The court-martial convicted appellant of the following Charges and specifications:

Charge I

Specification 1 — Premeditated murder of Christopher L. Fay

Specification 2 — Premeditated murder of Bobby Sharbino

Specification 3 — Felony murder of Christopher L. Fay

Specification 4 — Felony murder of Bobby Sharbino

Charge II

Specification — Attempted murder of Howard Douglas Harrison

Charge III

Specification 1 — Robbery of Christopher L. Fay

Specification 2 — Robbery of Bobby Sharbino

Specification 3 — Robbery of Howard Douglas Harrison

Specification 4 — Robbery of Genevieve Grant (7-Eleven cashier)

Specification 5 — Robbery of Kimberly Gray and Guy Ensinger (7-Eleven cashiers)

The findings of guilty of the premeditated murder of Bobby Sharbino (specification 2 of Charge I), the felony murder of Christopher L. Fay (specification 3 of Charge I), and the felony murder of Bobby Sharbino (specification 4 of Charge I) were announced as unanimous. The fraction of the court voting for all other findings of guilty was not announced.

After the findings were announced, the military judge dismissed as multiplieious *232 specification 1 of Charge I (premeditated murder of Fay), specification 4 of Charge I (felony murder of Sharbino), and specification 1 of Charge III (robbery of Fay). A sentencing hearing was conducted in accordance with RCM 1004, Manual for Courts-Martial, United States, 1984 (Change 2), after which the court-martial, by unanimous vote, sentenced appellant to a dishonorable discharge, total forfeitures, and “to be put to death.”

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

ISSUE I

WHETHER APPELLANT’S SENTENCE OF DEATH MUST BE SET ASIDE AND ONLY A LIFE SENTENCE AFFIRMED BECAUSE THE PANEL MEMBERS FOLLOWED IMPROPER VOTING PROCEDURES DURING THE SENTENCING DELIBERATIONS.

6. Based on ex parte affidavits obtained from 3 of the 8 court members almost 4 years after the court-martial, appellant now contends that the members did not vote at all on aggravating factors, did not follow the correct procedure for proposing sentences, did not vote first on the least severe sentence proposal, voted on proposals for life imprisonment and the death sentence at the same time, and reconsidered a less than unanimous vote to impose the death sentence without following the procedures for reconsideration.

A Procedural Rules

In order to adjudge a death sentence, members must follow the voting procedures set forth in RCM 1004 (Change 2) and 1006. RCM 1004(b)(7) provides:

In closed session, before voting on a sentence, the members shall vote by secret written ballot separately on each aggravating factor under subsection (c) of this rule on which they have been instructed. Death may not be adjudged unless all members concur in a finding of the existence of at least one such aggravating factor. After voting on all the aggravating factors on which they have been instructed, the members shall vote on a sentence in accordance with RCM 1006.

Under RCM 1006(c), “[a]ny member may propose a sentence.” When the voting begins, RCM 1006(d)(3)(A) provides:

All members shall vote on each proposed sentence in its entirety beginning with the least severe and continuing, as necessary, with the next least severe, until a sentence is adopted by the concurrence of the number of members required under subsection (d)(4) of this rule. The process of proposing sentences and voting on them may be repeated as necessary until a sentence is adopted.

RCM 1006(d)(4) provides that a death sentence must be adopted by unanimous vote and a sentence to life imprisonment requires a consensus of three-fourths of the members. See Garrett v. Lowe, 39 MJ 293 (CMA 1994).

B. The Instructions

7. During his sentencing instructions, the military judge informed the members that “a death sentence may not be adjudged unless all the court members find beyond a reasonable doubt that one or more of the aggravating circumstances existed.” He then described the three aggravating circumstances listed on the sentence worksheet and explained that “all the members of the court must agree beyond a reasonable doubt that one or more of the aggravating circumstances that I just mentioned existed at the time of the offenses or resulted from the offenses.” He further explained:

It is not sufficient that some members find that one aggravating circumstance existed while the remaining members find that a different aggravating circumstance existed. Rather, all of you must find beyond a reasonable doubt that the same aggravating circumstance or circumstances existed before a sentence of death may be adjudged.

After further instructions repeating the definition of reasonable doubt and describing the aggravating circumstances, he gave the following procedural instructions:

*233 You may consider all the evidence that has been presented to you in this case, including evidence presented prior to the findings of guilty in this ease, as well as evidence, of course, presented after the findings during the sentencing phase of the trial. Your deliberation on the aggravating circumstances should properly include a full and free discussion of all the evidence that has been presented to you.

After you have completed your discussion, then voting on each aggravating circumstance must be accomplished by secret written ballot. All of the members must vote, none of you are allowed to abstain. If you fail to find unanimously that at least one aggravating circumstance existed, then you may not adjudge a sentence of death. If, however, you determine that at least one of the aggravating circumstances existed, then you may consider, along with all other appropriate sentence possibilities, for example, punitive discharge and forfeitures in this case, whether a sentence of death should be adjudged. In this regard, you may not adjudge a sentence of death unless all of you find that any and all extenuating or mitigating circumstances are substantially outweighed by any aggravating circumstances, including such circumstances as you have found existed in the first step of the procedure____

The military judge then listed six other “nonstatutory” aggravating circumstances as well as the extenuating and mitigating circumstances. The military judge concluded this portion of the instructions by again reminding the members that “[a] sentence of death may be adjudged only upon the unanimous vote of all the members.”

8. Turning to the sentence worksheet, the military judge explained:

Part A are those aggravating factors that I mentioned and at least one of them has to be found beyond a reasonable doubt, a unanimous finding on that particular aggravating circumstance before the rest of the procedures even apply in this case, and that would be the death sentencing procedures. All right. So that’s step one.

Step two, then, as you see on the worksheet, is this balancing of the aggravating and mitigating — extenuating and mitigating factors, it should be. It should read, Balancing of Aggravating and Extenuating and Mitigating Factors. There’s a word left out. You might want to jot that in on the title under Part B. But in any case, that’s step two, and what’s reflected under Part B on the worksheet is step two of this process.

Then, you move down to Part C, which is the actual sentence and that — that is step three, as I say, and I’ll go into that in just a few moments with you in how to go about then determining an actual sentence in this case.

After instructing the members on forfeitures and punitive discharges, the military judge then gave the following procedural instructions for “step three,” voting on sentences:

When you close to deliberate and vote, only the members will be present during your closed session deliberations and your deliberations should begin, first, with a full and free discussion on the general subject of sentencing. The influence of superiority in rank shall not be employed in any manner in an attempt to control the independence or judgment of any other court member. When you have completed that discussion, then any member who desires to do so may propose a sentence and you do that by writing it down on a slip of paper, and that would be a complete or entire sentence. The idea behind that instruction is you shouldn’t piecemeal the punishments. The junior member will collect those proposed sentences, submit them to the president, who will arrange them in the order of severity.

You then vote on those proposed sentences by secret written ballot. All of you must vote, none of you are allowed to abstain. You vote on each proposed sentence in its entirety, beginning with the lightest, until you arrive at the required concurrence. For a sentence to death, all of you must concur in the sentence. For a sentence that includes life imprisonment, which is the mandatory minimum sentence, *234 three-fourths of the members must agree on a sentence and that would be, because there are eight, six of you must agree.

The junior member will then collect and count the votes. The count is then checked by the president, who will immediately announce the result of the ballot to the rest of the court members. If you vote upon all of the proposed sentences without arriving at the required concurrence, then you repeat the process of proposing and voting on the sentences. The second time around, a member may desire — if a member desires to do so, you may vote on all new proposals or proposals rejected by an earlier vote. But remember, unanimous— a death sentence, unanimous vote, all the members, three-quarters for a sentence that includes life in prison.

Now, you may reconsider your sentence, no matter what it is, you may reconsider that sentence at any time before it is announced in open eourt by the colonel. If that occurs, then the proper procedure would be, just as I’ve indicated on findings, and that procedure would be: Number one, don’t try to do it yourselves; number two, come back out, open the court, tell me, in very general terms, colonel, that a member, no specifics, please, a member has requested reconsideration. Then, at that time, I’ll tell you what those instructions are. They are somewhat lengthy and involved, a little complicated, so I won’t give them now, remember though that, legally, any member may request reconsideration. Please, though, remember the process.

C. The Announcement of the Sentence

9. The court members closed to determine a sentence at 1:14 p.m. Four hours and 41 minutes later, at 5:55 p.m., they informed the military judge that they had arrived at a sentence. The president of the court-martial then announced that they had unanimously found, “beyond a reasonable doubt,” all three aggravating factors. Then he announced that the court-martial had found unanimously that “any extenuating and mitigating circumstances are substantially outweighed by any aggravating circumstances, including the factors as found indicated in Part A.” Finally, the president announced the sentence: “To forfeit all pay and allowances, to be discharged from the service with a Dishonorable Discharge, to be put to death.” A copy of the sentence worksheet is attached as an Appendix at 301.

D. The Post-Trial Affidavits

10. The sentence was adjudged on April 3,1989. In February 1993, appellate defense counsel obtained affidavits from Colonel Aylor, the court-martial president; and Major Napoli and Captain (CPT) Williams, members. Defense Appellate Exhibits (DefApp. Ex.) F, G, and H.

Colonel Aylor’s affidavit states the following:

The jury received instructions from the judge on sentencing and then we went into the jury room. I explained to the other members of the jury what we were supposed to do and how we would do it. I also reminded everyone that the minimum sentence was life imprisonment as explained to me by the judge. We did not re-vote and [sic] aggravating factors during the sentencing procedure____ The first vote resulted in the following: 7 votes of reduce to El, forfeiture of all pay and allowances, bad conduct discharge and death; 1 vote of reduce to El, forfeiture of all pay and allowances, bad conduct discharge and life imprisonment. The judge had explained before we adjourned that the death penalty required a unanimous vote..... After another l'k hours of review, I asked if everyone was prepared to vote again. They said they were____ The second vote resulted in the following: 8 votes of reduce to El, forfeiture of all pay and allowances, bad-conduct [sic] discharge and death.

Major Napoli’s affidavit states the following:

Following Colonel Aylor’s remarks, we voted by secret written ballot. Colonel Aylor counted the ballots.

Since there was not a consensus, we discussed the facts and evidence in the case again. Afterwhich [sic] Colonel Aylor in *235 structed us to vote again. This vote resulted in an unanimous sentence to death____

Captain Williams’ affidavit states the following:

We discussed the facts and evidence in the case. Then Colonel Aylor told us that we each had two options, we could vote life imprisonment or death, but that death required a unanimous vote.

Following Colonel Aylor’s remarks, we voted by secret written ballot. Colonel Aylor counted the ballots and the result was seven in favor of death and one in favor of life imprisonment.

Since there was no consensus, we discussed the facts and evidence in this case again. We did not seek help from the military judge. Instead, following our continued deliberations, Colonel Aylor instructed us to vote again. We voted using the same procedure as before, picking between death and life imprisonment. The result of the second vote was eight in favor of death and zero in favor of life....

Based on the affidavits, appellant argues that the court-martial members did not follow the judge’s procedural instructions. More specifically, he argues that the members did not vote at all on the aggravating factors, did not follow the correct procedure for proposing sentences, did not vote first on the least severe proposed sentence, voted on the sentences to life imprisonment and death at the same time, and revoted after a 7-1 vote to impose the death sentence without following the procedures for reconsideration.

We conclude that the affidavits are ambiguous at best. For example, it is unclear what COL Aylor means when he speaks of a “re-vote” on aggravating factors. Likewise, it is unclear whether the 7-1 “vote” was actually the first round of proposed sentences or a permissible “straw poll.” See United States v. Lawson, 16 MJ 38, 41 (CMA 1983).

11. Court members “are presumed to follow the military judge’s instructions.” United States v. Holt, 33 MJ 400, 408 (CMA 1991). In this case that presumption is reinforced by the sentence worksheet and the president’s announcement that all members found that the aggravating factors were proven beyond a reasonable doubt, that all members found that the aggravating circumstances outweighed the extenuating and mitigating circumstances, and that all members voted to impose the death sentence. No court member disputed the president’s announcement at the time.

We recognize that the presumption of compliance with the military judge’s instructions can be rebutted by competent evidence to the contrary. The pivotal question with respect to Issue I is whether the affidavits are competent evidence. In this regard, Mil.R.Evid. 606(b), Manual, supra, provides:

Upon an inquiry into the validity of the findings or sentence, a member may not testify as to any matter or statement occurring during the course of the deliberations of the members of the court-martial or, to the effect of anything upon the member’s or any other member’s mind or emotions as influencing the member to assent to or dissent from the findings or sentence or concerning the member’s mental process in connection therewith, except that a member may testify on the question whether extraneous prejudicial information was improperly brought to the attention of the members of the court-martial, whether any outside influence was improperly brought to bear upon any member, or whether there was unlawful command influence____

Mil.R.Evid. 606(b) is taken from Fed. R.Evid. 606(b). Except for changes to reflect court-martial terminology, Mil.R.Evid. 606(b) is identical to Fed.R.Evid. 606(b) with one addition: the reference to unlawful command influence. See Drafters’ Analysis of Mil.R.Evid. 606, Manual, supra at A22-41 (Change 2). The identical language is consistent with the statutory mandate in Article 36(a), UCMJ, 10 USC § 836 (a), that the President prescribe procedures which, “so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts.-...” By adopting the language of Fed.R.Evid. 606(b) in Mil.R.Evid. 606(b), the *236 drafters clearly intended that the federal rule apply to courts-martial, with an additional provision for cases involving unlawful command influence.

12. The purpose of this rule is to protect “freedom of deliberation,” protect “the stability and finality of verdicts,” and protect court members “from annoyance and embarrassment.” United States v. Bishop, 11 MJ 7, 9 (CMA 1981).

Appellant makes three arguments for considering the affidavits in this case. First, he argues that the rule is only intended to protect the subjective thoughts of the court members and does not preclude inquiry into objective factors such as voting procedures. Second, he argues that the affidavits indicate unlawful command influence on the part of the president, Colonel Aylor. Third, he argues that “death is different” and that Mil. R.Evid. 606(b) should not be strictly applied if there is evidence of a procedural irregularity in imposition of the death sentence. We find these arguments unpersuasive. Based on our review of judicial and legislative history, we hold that the affidavits are not competent evidence.

With regard to appellant’s first argument, there is some authority among the precedents of this Court for the proposition that affidavits of court members may not be considered to support an allegation that the court members used erroneous procedures during deliberations. See United States v. West, 28 USCMA 77 , 48 CMR 548 (1974) (opinion by Duncan, C.J., with Quinn, J., concurring in the result and Ferguson, S.J., not participating). Two Courts of Military Review have permitted asking court members whether voting was by secret written ballot, but both cases have justified such an inquiry on the ground that the possibility of oral voting raises the possibility of unlawful command influence. See United States v. Greene, 36 MJ 1068, 1071 (1993 ACMR), aff'd on other grounds, 41 MJ 57 (CMA 1994); United States v. Martinez, 17 MJ 916, 918, 919-20 (NMCMR 1984). Most recently, in a capital murder case, the Navy-Marine Corps Court of Military Review has refused to consider post-trial evidence that court members did not follow the proper procedure for reconsidering their findings. United States v. Thomas, 39 MJ 626 (1993) (on motion).

The federal Courts of Appeals have uniformly refused to consider evidence from jurors indicating that the jury ignored or misunderstood instructions in criminal cases. See United States v. Miller, 806 F.2d 223, 225 (10th Cir.1986) (rejected general allegation by juror that she may not have understood judge’s instructions); United States v. Neary, 552 F.2d 1184, 1190 (7th Cir.), cert. denied, 434 U.S. 864 , 98 S.Ct. 197 , 54 L.Ed.2d 139 (1977) (rejected evidence that juror may not have understood burden of proof in criminal case); United States v. Stacey, 475 F.2d 1119, 1121 (9th Cir.1973) (rejected evidence that three jurors did not understand that “intent to defraud” was element of offense); United States v. Dioguardi, 492 F.2d 70 (2d Cir.) (rejected opinions of psychiatrists that juror was mentally incompetent and incapable of understanding instructions), cer t. denied, 419 U.S. 829 , 95 S.Ct. 49 , 42 L.Ed.2d 53 (1974); Dobbs v. Zant, 720 F.Supp. 1566, 1568-69 (NDGa. 1989) (rejected evidence that jury may have considered prior convictions contrary to judge’s instructions), aff'd, 963 F.2d 1403 (11th Cir.1991), rev’d on other grounds, — U.S. -, 113 S.Ct. 835 , 122 L.Ed.2d 103 (1993). See generally 65 ALR Fed. § 10 at 852 (1983). As noted by Chief Judge Sullivan in his separate concurrence, 41 MJ at 303 ¶ 134, several state courts have held, even in capital eases, that evidence obtained from jurors concerning the deliberative process may not be used to impeach the verdict.

13. It may be improper even to ask jurors whether they followed the judge’s instructions. See United States v. Greer, 620 F.2d 1383 , 1385 n. 2 (10th Cir.1980). See also RCM 922(e) and 1007(c) (“Except as provided in Mil.R.Evid. 606, members may not be questioned about their deliberations and voting.”).

Appellant argues that Fed.R.Evid. 606(b) and its military counterpart preclude inquiry only into the jury’s compliance with substan *237 tive instructions such as what the jury may consider, but do not preclude inquiry into the jury’s compliance with objective instruction such as voting procedures. This objective-subjective distinction was expressly rejected in Tanner v. United States, 483 U.S. 107 , 107 S.Ct. 2739 , 97 L.Ed.2d 90 (1987). In Tanner the Supreme Court traced the legislative history of Fed.R.Evid. 606. They observed that Congress rejected an expansive House version of the rule which would have allowed juror testimony regarding “objective juror misconduct.” The House version specifically drew a distinction between inquiry into “the mental processes” of jurors and “what happened in terms of conduct in the jury room.” 483 U.S. at 123 , 107 S.Ct. at 2749 . The House version would have allowed a juror to testify as' to “what happened during the jury’s internal deliberations, for example, where a juror alleged that the jury refused to follow the trial judge’s instructions or that some of the jurors did not take part in deliberations.” 483 U.S. at 123-24 , 107 S.Ct. at 2749 , citing S.Rep. No. 93-1277, 2d Sess., at 13-14, U.S.Code Cong. & Admin.News 1974, pp. 7051, 7060. Congress rejected the House version and instead adopted the more restrictive Senate version, which prohibits all juror testimony about what occurred during deliberations, except for testimony about extraneous influences. 483 U.S. at 125 , 107 S.Ct. at 2750 .

The Supreme Court made it clear in Tanner that Fed.R.Evid. 606(b) is a blanket prohibition on juror testimony to impeach a verdict. The only exception in that rule is for evidence of extraneous influence. Absent that exception, a juror “may not testify as to any matter ... occurring during the course of the jury’s deliberations.” Fed.R.Evid. 606(b) (emphasis added).

14. Fed.R.Evid. 606(b) makes incompetent any testimony from jurors about the decision-making process of the jury as well as the mental processes of individual jurors. Following the Supreme Court’s decision in Tanner , at least two federal Courts of Appeals have refused to inquire into allegations of irregularities in jury voting procedures. In United States v. Ortiz, 942 F.2d 903, 913 (1991), cert. denied, 504 U.S. 985 , 112 S.Ct. 2966 , 119 L.Ed.2d 587 (1992), the Fifth Circuit rejected an affidavit of a juror alleging oral voting, voting on all counts together instead of voting on each count presented against each defendant, and alleging that the verdict announced in court was not her verdict. The court in Ortiz specifically noted that “the Advisory Committee notes accompanying 606(b) single out voting as such a ‘component of deliberation.’ ” In United States v. Ford, 840 F.2d 460 (7th Cir 1988), the court rejected evidence that votes were taken before all evidence was reviewed and “votes were cast verbally.” The court held that it “will not inquire into the jury’s deliberative process, including arguments, statements, discussions, mental and emotional reactions, and votes, in the absence of a claim of external influence.” Id. at 465 (emphasis added). Based upon the foregoing, we are satisfied that the overwhelming weight of authority prohibits inquiry into the voting procedures actually used by court members to arrive at a sentence.

Since Mil.R.Evid. 606 was taken from Fed.R.Evid. 606, that same blanket prohibition applies to testimony of court members about “any matter,” including voting procedures, “occurring dining the course of the deliberations.” Accordingly, we hold that the affidavits of Colonel Aylor, Major Napoli,' and Captain Williams may not be considered except for the limited purpose of determining if extraneous influence or unlawful command influence may have been injected into the deliberations. See United States v. Accordino, 20 MJ 102, 105 (CMA 1985).

Appellant has not alleged that Colonel Aylor exercised unlawful command influence during the deliberations. Nevertheless, our dissenting brother detects “a distinctly disconcerting aroma” of unlawful command influence “emanating” from the affidavits of the court members. 41 MJ at 315 ¶ 155 (Wiss, J.). We note first that the reference to unlawful command influence in Mil.R.Evid. 606(b) is not limited to “external command influences.” It also applies to “use of rank by a court member to pervert military justice.” United States v. Accordino, 20 MJ at 104 . See United States v. Carr, 18 MJ 297, 302 *238 (CMA 1984) (allegation that president of court-martial used influence of rank to pressure other members during deliberations falls within “unlawful command influence” exception to Mil.R.Evid. 606(b)).

15. Our review of the affidavits is limited to determining if there is any evidence of unlawful command influence. United States v. Accordino, supra at 105. We hold that the affidavits do not raise an issue of unlawful command influence in this case. Colonel Aylor was the president of the court-martial and, as such, had certain administrative duties and discretion in the performance of those duties. His authority as president included “the discretion to call for a vote when, in [his] judgment, discussion of the issues is complete or further debate would be pointless.” 20 MJ at 105 . The affidavits reflect no more than Colonel Aylor’s proper exercise of authority as president to preside over the deliberations. The affidavits also contain no evidence that Colonel Aylor used his “rank to ‘enhance’ an argument — i.e., to coerce a subordinate to vote in a particular manner.” Id. at 105 . In this regard, it is important to remember that full and free discussion cuts both ways. “Senior ranking court members, like their juniors, are free to express their opinions in the strongest terms and to engage in the most robust discussions without fear of retribution or appellate sniping.” Id. at 105 .

Our dissenting brother relies on the oral arguments of appellate counsel to conclude that “the command influence issue is squarely before this Court.” 41 MJ at 315 ¶ 155. Suffice it to say, oral arguments are not evidence. There must be more than a mere allegation of command influence to raise the issue; there must be evidence. See United States v. Levite, 25 MJ 334, 341 (CMA 1987) (Cox, J., concurring) (“[A]n appellant’s unsubstantiated assertion that unlawful command influence exists is not going anywhere____”). There is absolutely no suggestion in the affidavits that Colonel Aylor exercised unlawful command influence.

16. We turn finally to appellant’s argument that “death is different.” Appellant argues that the nature of the death sentence requires heightened scrutiny of the process by which it is imposed. He cites the Supreme Court’s observation in McDonald v. Pless, 238 U.S. 264, 268-69 , 35 S.Ct. 783, 785 , 59 L.Ed. 1300 (1915), “that it would not be safe to lay down any inflexible rule because there might be instances in which such testimony of the juror could not be excluded without ‘violating the plainest principles of justice.’ ” Mattox v. United States, 146 U.S. 140, 148 , 13 S.Ct. 50, 52 , 36 L.Ed. 917 (1892), was cited to support this statement. We do not believe that McDonald v. Pless, supra, supports appellant’s argument. In McDonald v. Pless and Mattox v. United States (a capital murder case), both supra, the Supreme Court was dealing with the common law rule “that a juror cannot impeach his own verdict,” 238 U.S. at 267 , 35 S.Ct. at 784 , and they decided that an exception should be made where external influences on the jury were involved. Of course, that exception was later adopted in Fed.R.Evid. 606(b) and Mil. R.Evid. 606(b). We have found no authority for a capital-case exception to the general prohibition against jurors impeaching their sentence. In fact, the weight of authority is to the contrary. See Dobbs v. Zant, 963 F.2d 1403, 1411 (11th Cir.1991) (refused to consider juror’s testimony that jury arbitrarily imposed death sentence because they did not believe it would be executed), rev’d on other grounds, — U.S. -, 113 S.Ct. 835 , 122 L.Ed.2d 103 (1993); Silagy v. Peters, 905 F.2d 986, 1008 (7th Cir.1990) (refused to consider juror’s testimony that jury did not believe a death sentence would be executed), cert. denied, 498 U.S. 1110 , 111 S.Ct. 1024 , 112 L.Ed.2d 1106 (1991); Dobbs v. Zant, 720 F.Supp. at 1568 (refused to consider juror’s deposition that she voted for death sentence because of prior convictions which judge had instructed jurors not to consider), rev’d on other grounds, — U.S.-, 113 S.Ct. 835 , 122 L.Ed.2d 103 (1993). See also Songer v. State, 463 So.2d 229, 231 (Fla.1985) (refused to consider juror’s testimony that she erroneously thought she could not consider nonstatutory mitigating factors).

One federal Court of Appeals appeared to recognize a “due process” exception to Fed. *239 R.Evid. 606 in Shillcutt v. Gagnon, 827 F.2d 1155, 1159 (7th Cir.1987):

The rule of juror incompetency cannot be applied in such an unfair manner as to deny due process. Thus, further review may be necessary in the occasional case to discover the extremely rare abuse that could exist even after the court has applied the rule and determined the evidence incompetent.

In fact, however, Shillcutt actually involved an external influence on the jury, i.e., racial prejudice, and thus may not involve an exception to Fed.R.Evid. 606. See Tobias v. Smith, 468 F.Supp. 1287, 1291 (WDNY 1979) (racial prejudice is external influence).

17. Likewise, there is some authority for a “clerical error” exception, which may or may not fall under the “due process” umbrella, in which affidavits of a juror were received to show that the verdict announced was not the verdict “actually agreed upon.” United States v. Dotson, 817 F.2d 1127, 1130 (5th Cir.1987), revised in part on other grounds, 821 F.2d 1034 (5th Cir.1987). There is no allegation of clerical error in appellant’s case. Even if the affidavits are construed in the light most favorable to appellant, they fall short of suggesting that the multiple findings regarding’ aggravating circumstances, the balancing of aggravating circumstances against extenuating and mitigating circumstances, and the announced sentence are not what was actually agreed upon. At most, the affidavit of Colonel Aylor could be construed to suggest that the court members did not “revote” on the aggravating factors after their earlier unanimous findings. Accordingly, the clerical error exception does not apply to this ease.

18. The only remaining question is whether this Court should carve out an exception for military capital cases. We decline to do so. We believe that invading the court-martial deliberations on the basis of the three affidavits proffered by appellant would be contrary to the intent of Congress in adopting Fed.R.Evid. 606(b), contrary to the intent of the President in promulgating Mil.R.Evid. 606(b), and contrary to the decision of the Supreme Court in Tanner v. United States, supra, and the overwhelming weight of authority among the federal courts which have considered the issue. Accordingly, we will not consider the affidavits or order further inquiry into the matters addressed by them. Moreover, in the absence of any competent evidence to the contrary, we hold that the court members followed the military judge’s correct instructions on voting procedures to be followed during the sentencing deliberations.

ISSUE II

WHETHER APPELLANT WAS DEPRIVED OF HIS RIGHT TO A RELIABLE MENTAL HEALTH EVALUATION WHICH IN TURN DEPRIVED APPELLANT OF THE EFFECTIVE ASSISTANCE OF TRIAL DEFENSE COUNSEL IN VIOLATION OF THE FIFTH, SIXTH, AND EIGHTH AMENDMENTS AND ARTICLE 55, UCMJ, 10 USC § 855 .

19. Appellant did not attack the qualifications of his sanity board at trial or before the Court of Military Review. He attacked his counsel before the Court of Military Review, contending that they were ineffective for not raising the issue of his mental responsibility. 34 MJ at 1067-68. Having lost before the Court of Military Review on the ineffectiveness-of-counsel issue, appellant now maintains that he was deprived of the effective assistance of counsel because his counsel relied on a defective sanity board.

On January 6, 1989, prior to his court-martial, appellant requested psychiatric assistance in accordance with Ake v. Oklahoma, 470 U.S. 68 , 105 S.Ct. 1087 , 84 L.Ed.2d 53 (1985) and United States v. Toledo, 25 MJ 270 (CMA 1987), cert. denied, 488 U.S. 889 , 109 S.Ct. 220 , 102 L.Ed.2d 211 (1988). On January 9, a sanity board was ordered in accordance with RCM 706 (Change 3). The sanity board was composed of two psychiatrists, Major David Orman, M.D. and Captain Richard Moczygemba, M.D.; and a clinical psychologist, Captain Lang Coleman. The board concluded that appellant had an antisocial personality disorder and a border *240 line personality disorder but no severe mental disease or defect.

The sanity board submitted its report on February 6, 1989. On February 9, defense counsel repeated concern expressed earlier that appellant had an organic brain dysfunction. Captain Moczygemba, a member of the sanity board, agreed that appellant should be tested further and referred him to Dr. Pamelia F. Clement, Ph.D., a clinical psychologist, for neuropsychological evaluation. Dr. Clement found no evidence of mental impairment.

CPT Moczygemba also requested radiologic testing to exclude possible organic brain defects. A CT scan was conducted on appellant, which showed no abnormalities. The sanity board issued an addendum on February 17 reflecting the additional testing. Def. App. Ex. C.

20. Defense counsel also requested funding to hire a defense psychiatric expert and later named the one they wanted. The request for funding was denied on January 27, 1989, but the Government offered a military psychiatrist as a substitute. After rejecting two military psychiatrists, the defense accepted COL David Armitage, a forensic psychiatrist, who holds professional degrees in both medicine and law. COL Armitage is Associate Chairman for Forensic Science and Litigation Support, Department of Legal Medicine, Armed Forces Institute of Pathology, Washington, D.C., and Consultant Emeritus to the Surgeon General of the Army on Forensic Psychiatry. COL Armitage worked as a member of the defense team, was present at most of appellant’s court-martial, and participated in voir dire of the court members.

After appellant was convicted and sentenced, appellate defense counsel obtained evidence that Captain Coleman, who had been identified in the sanity board report (¶ 3) as “Ph.D. clinical psychologist,” did not receive his Ph.D. until May 1989 and was not licensed by the State of Wisconsin until September 1989. In response to the defense evidence, government appellate counsel produced evidence that Captain Coleman completed all his educational requirements for his Ph.D. in the fall of 1988, even though he did not receive his degree until May of 1989 and that Captain Coleman was credentialed by the Army to serve as a clinical psychologist.

After trial, appellate defense counsel obtained several affidavits attacking the validity of the psychological and neuropsychological tests performed by Captain Coleman and Dr. Clement. An affidavit from Dr. Niles, Director of the Trauma Recovery and Counseling Center, Alexandria, Virginia, asserts that Captain Coleman erred by not conducting follow-up psychological tests for Post-Traumatic Stress Disorder. Dr. Niles further asserts that there are clear indicators that appellant suffers from post-traumatic stress disorder. Affidavits from Dr. H. Anthony Semone (psychologist) and Dr. James Merikangas (psychiatrist) assert that the neuropsychological testing conducted by Dr. Clement was performed improperly and thus is invalid.

21. The first question is whether appellant’s constitutional right to have access to a competent psychiatrist has been infringed. In Ake v. Oklahoma, 470 U.S. at 83 , 105 S.Ct. at 1096 , the Supreme Court set out the standard:

We therefore hold that when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense. This is not to say, of course, that the ... defendant has a constitutional right to choose a psychiatrist of his personal liking or to receive funds to hire his own____

We hold that the Ake standard has been met in appellant’s case. Appellant was given access to several competent psychiatrists. Major Orman and Captain Moczygemba, whose credentials have not been attacked, evaluated appellant during his initial sanity board. Colonel Armitage, whose competence has not been attacked, participated throughout the trial as a member of the defense team.

*241 The next question is whether the requirements of RCM 706 (Change 3) have been met. RCM 706(c)(1) provides that an inquiry into mental capacity or mental responsibility “shall be referred to a board consisting of one or more persons. Each member of the board shall be either a physician or a clinical psychologist.”

22. We hold that the requirements of RCM 706(c)(1) have been met in appellant’s case. A board consisting of a single psychiatrist would have satisfied the rule. Furthermore, even assuming arguendo that CPT Coleman had not received his Ph.D. degree at the time he participated in the board, there is nothing in the rule requiring that a “clinical psychologist” possess a Ph.D. The record before us reflects that CPT Coleman was a trained psychologist, was credentialed by Army medical authorities as a clinical psychologist, and was assigned to duties as a clinical psychologist. RCM 706 was amended in 1986 to parallel prevailing federal practice of allowing use of clinical psychologists in mental status evaluations. Drafters’ Analysis of RCM 706(c)(1), Manual, supra at A21-36 (Change 3). Unlike 18 USC § 4247 (b), RCM 706(c)(1) does not specify that the psychiatrist or psychologist performing the evaluation be “licensed or certified.” Nevertheless, in the absence of evidence to the contrary, the fact that CPT Coleman was credentialed by military medical authorities to perform duties as a clinical psychologist raises a presumption that he was qualified to do so. See United States v. Masusock, 1 USCMA 32, 35 , 1 CMR 32 , 35 (1951) (“presumption of regularity in the conduct of governmental affairs”). That presumption has not been rebutted in this case.

23. Next we must ask whether the post-trial affidavits warrant additional mental examinations pursuant to RCM 706(c)(4). We hold that they do not. While the defense experts attack the methodology of the mental health professionals who evaluated appellant, there is not one iota of evidence that appellant lacked mental responsibility at the time of the offenses or mental capacity at the time of trial.

Finally, we must address appellant’s claim that he was deprived of effective assistance of counsel because they relied on a flawed examination into his mental health. While appellant has produced affidavits of experts who assert that the methodology was flawed, he has produced nothing to show that the results are incorrect. Disagreements among professionals do not per se show incompetence. Appellant has premised his ineffective-counsel argument on an Ake violation, which, as noted above, he has not shown. Since we hold that there was no Ake violation, we resolve this issue against appellant.

Ill

WHETHER APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL GUARANTEED BY THE SIXTH AMENDMENT AT BOTH STAGES OF HIS BIFURCATED TRIAL.

Appellant alleges ten different errors that he asserts rise to the level of ineffective assistance of counsel as defined in Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). We will analyze each alleged error separately.

A Trial defense counsel failed to conduct an adequate investigation and thus did not discover necessary and relevant information concerning appellant’s drug and alcohol use prior to and during the offenses.

24. Appellant contends that defense counsel failed to utilize the testimony of two potential witnesses, Ms. Gérlinde Joseph and Ms. Beverly Sedberry. It is unclear from the post-trial affidavits of counsel whether defense counsel knew prior to trial what these potential witnesses would have said if called to testify.

In a post-trial affidavit, Ms. Joseph declared that on the night of December 12, 1988, she noticed appellant “drinking an entire bottle of Jack Daniels, and taking cocaine, hash, marijuana, and amphetamines.” She further swore that “[h]e seemed to be taking anything that he could get his hands on. By the time he left, he was extremely intoxicated and high.”

*242 In a post-trial statement, Ms. Sedberry stated that on the day of the 7-Eleven robberies, appellant used cocaine. She also declared that on December 12, 1988, she knew “for a fact that he got some cocaine that afternoon. At the very least, Dwight was doing cocaine, marijuana and drinking.” Def.App. Ex. R (Vol. IV, Appellate Papers).

Appellant contends that defense counsel failed to properly investigate this evidence and failed to raise intoxication as a defense. Government appellate counsel argue that defense counsel’s pretrial investigation of the ease was reasonable.

25. The Supreme Court has stated that “counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” However, “a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.” Strickland v. Washington, 466 U.S. at 691 , 104 S.Ct. at 2066 .

In this case appellant told his counsel that “he had been drinking” alcohol “and smoking some marijuana prior to the murders,” but that his marijuana and alcohol usage had “not intoxicated or affected” him during his crimes. Govt.App. Ex. R at 1. See Mattheson v. King, 751 F.2d 1432 (5th Cir.1985) (rejecting a post-trial attack on counsel’s performance where appellant did not tell counsel he was intoxicated at the time of the offense), cert. dismissed, 475 U.S. 1138, 106 S.Ct. 1798 , 90 L.Ed.2d 343 (1986); Bertolotti v. Dugger, 883 F.2d 1503 (11th Cir.1989) (counsel not ineffective where he failed to raise voluntary intoxication defense to murder where defendant told police that he lied about his intoxication and where evidence of intoxication was not sufficient), cert. denied, 497 U.S. 1031 , 110 S.Ct. 3296 , 111 L.Ed.2d 804 (1990).

In post-trial affidavits, defense counsel have stated that they chose not to present evidence of voluntary intoxication for strategic reasons. Defense counsel discussed the possibility of an intoxication defense with a medical expert who advised against raising such a defense. The defense team was aware of psychological literature stating that criminals use “alcohol and drugs to ‘get up their nerve’ to commit crimes” and were concerned that appellant’s use of drugs would be viewed as an aggravating factor rather than a mitigating factor. Govt.App. Ex. 2 at 7. See Rogers v. Zant, 13 F.3d 384 (11th Cir.) (decision not to investigate possible defense based on drug use was reasonable where counsel knew that local jury would likely react hostilely to such a defense), ce rt. denied, — U.S.-, 115 S.Ct. 255 , 130 L.Ed.2d 175 (1994); Wilkins v. Iowa, 957 F.2d 537, 541 (8th Cir.1992) (failure to present evidence of voluntary intoxication a “reasonable professional judgment[ ]” because jury might be unsympathetic to “self-induced intoxication”).

Furthermore, defense counsel believed that a voluntary intoxication defense could be impeached by appellant’s detailed confession and the detailed statements to the psychiatrist at the sanity board. These detailed recollections were not likely to come from a mind significantly diminished in capacity by drugs and alcohol, thus they would have made the defense appear contrived.

We hold that appellant has not satisfied the first prong of Strickland v. Washington, 466 U.S. at 687 , 104 S.Ct. at 2064 , by showing that his counsel’s performance was deficient. Although defense counsel were aware of some evidence of voluntary intoxication, they chose not to pursue that defense. They have offered sound reasons for their decision, and we will not second-guess counsel after-the-fact. Id. at 689 , 104 S.Ct. at 2065 . See id. at 690-91 , 104 S.Ct. at 2066 (“[Strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.”).

B. Trial defense counsel failed to move to suppress appellant’s confessions on the basis that they were improperly coerced and involuntary.

26. Appellant does not claim that he was interrogated without being advised of his rights, but rather that his confession was coerced. Mil.R.Evid. 304 states that, notwithstanding valid police warnings given pur *243 suant to Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966), and Article 31, UCMJ, 10 USC § 831 (b), involuntary statements made by an accused are per se inadmissible to prove guilt. Voluntariness is to be determined through a totality-of-the-circumstances test. Blackburn v. Alabama, 361 U.S. 199 , 80 S.Ct. 274 , 4 L.Ed.2d 242 (1960).

Appellant asserts four reasons why his confession was involuntary: (1) he was denied the opportunity to talk with an attorney; (2) CID threatened to deport appellant’s girlfriend; (3) appellant was intoxicated; and (4) investigators consistently promised appellant that he could see his girlfriend. Appellant argues that his counsel was aware of these indicators of involuntariness but failed to move to suppress appellant’s confessions.

Appellant’s first reason is unsupported by the record. The record reflects that appellant was advised of his rights by SA Schnayerson, that he waived his right to a lawyer in writing, that his confession was videotaped, and that appellant slept for 8 hours while the tapes were transcribed into a written statement. On the following morning appellant acknowledged in writing that he had again been advised of his right to a lawyer. He took about an hour to review the 14-page, single-spaced transcript of his interview, initialed each page, and then signed and swore to his statement. Other than his bare post-trial assertion, appellant has offered no evidence to contradict the evidence of record. On the basis of the record before us, we cannot fault counsel for failing to object to the confession based on a denial of counsel.

27. The second reason is likewise unsupported by the record. Appellant claims that this allegation is corroborated by the fact that his girlfriend was located in an adjoining room during part of appellant’s confession where the police would have ready access to her passport. In fact, the record reflects that Ms. Pessina was at her home in Killeen while it was being searched at the same time appellant was being questioned at Fort Hood by the CID. Unfortunately for appellant, the record is devoid of any evidence that Ms. Pessina was threatened with deportation, that any such threats were communicated to appellant, or that appellant complained to his counsel or anyone else of any threats to deport his girlfriend. Indeed, in an affidavit, the lead defense counsel specifically denied that appellant told him about any mention of deportation or of appellant’s being shown her passport during the interrogation. (Def.App. Ex. S at 3d page.) Appellant, however, asserts the contrary. (Def. App. Ex. T.)

Appellant also asserts that his confession was involuntary because he was intoxicated at the time of the confession. This assertion is also unsupported by the record. On the evening of appellant’s arrest, he had been at work for 8 hours. Appellant gave a detailed and coherent confession, which was videotaped. After sleeping for 8 hours, appellant reviewed the transcript of his interview, signed it, and swore to it. We cannot fault counsel for failure to raise this baseless objection. See Boggs v. Bair, 892 F.2d 1193, 1199 (4th Cir.1989) (defendant’s “confession was not made inadmissible by any degree of intoxication he may have suffered the night in question,” where the record supported findings that he was not “so intoxicated that his will was overborne”), cert. denied, 495 U.S. 940, 110 S.Ct. 2193 , 109 L.Ed.2d 521 (1990).

Finally appellant asserts that his confession was coerced through promises that he could see his girlfriend, Nadia. Once again, the record does not support his assertion. The only evidence of record pertaining to this alleged coercion is SA Sehnayerson’s testimony that appellant asked to talk to Nadia and SA Schnayerson responded that it would be “no problem.” Because the Killeen Police also were conducting interviews, appellant and Nadia “just never got together.” See Miller v. Fenton, 741 F.2d 1456, 1467 (3d Cir.1984) (“promises by interrogators will not invalidate confession unless they are sufficient to overbear defendant’s will”), rev’d on other grounds, 474 U.S. 104 , 106 S.Ct. 445 , 88 L.Ed.2d 405 (1985). We cannot fault counsel for failure to raise this unsupportable objection.

*244 We hold that appellant’s confession was properly received in evidence and that failure of defense counsel to seek suppression of appellant’s confessions did not make their representation deficient.

C. Trial defense counsel failed to move to suppress evidence which was unlawfully seized from Ms. Pessina’s apartment.

28. Appellant’s girlfriend, Ms. Pessina, was approached by police investigators on the afternoon of December 13, 1988, and asked to come to the Killeen police station for questioning. She provided a written statement and signed a written consent to a search of her residence. The search yielded appellant’s pistol, spent and unspent bullets, and a blood-stained man’s jacket.

Ms. Pessina returned to the police station just before midnight on December 13-14 for further questioning, at which time she made a second statement and again consented to a search of her residence, which resulted in seizure of a black ski mask, a pair of gloves, and a green BIC lighter.

Appellant argues that defense counsel’s performance was ineffective in that he failed to move to suppress the evidence obtained during the two searches on the grounds that Ms. Pessina’s consent was not voluntary. Since the written consent forms were not introduced in evidence, see Appendix I to Answer to Final Brief; and Pros. Ex. 104 for ID, we will not consider them to uphold the search but will consider them for the limited purpose of determining whether counsel were ineffective for failing to contest their efficacy. In each form, Ms. Pessina acknowledges that she was advised of her “constitutional right” to have a search of her property made only with a warrant and of her “right to refuse to consent to such a search.” App. I, supra.

Ms. Pessina’s testimony at trial suggests that she may not have understood that she had a right to refuse. What is clear is that she understood that her residence would be searched whether she consented or not.

Appellant bases his argument on primarily two factors: Ms. Pessina was unfamiliar with search and seizure procedures; and investigators coerced Ms. Pessina by telling her that if she did not consent, they could obtain a warrant anyway.

29. Where a claim of ineffective assistance of counsel is based on “defense counsel’s failure to litigate a Fourth Amendment” objection to evidence, appellant “must ... prove that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence____” Kimmelman v. Morrison, 477 U.S. 365, 375 , 106 S.Ct. 2574, 2583 , 91 L.Ed.2d 305 (1986).

Assuming arguendo that appellant would have had standing to object to a search of Ms. Pessina’s home, which is questionable, we hold that appellant has failed to demonstrate that a Fourth Amendment objection to the evidence would have been meritorious. While defense counsel could have challenged the validity of Ms. Pessina’s consent, a motion to suppress would not have been meritorious for two reasons. First, an otherwise valid consent is not vitiated by a threat to obtain a warrant if the threat is well-founded. United States v. Duran, 957 F.2d 499, 502 (7th Cir.1992). Second, a search of Ms. Pessina’s residence was inevitable.

The investigators’ threat to obtain a search warrant was firmly grounded in that they had probable cause to search the residence. At the time of the first search, the investigators knew that appellant and Ms. Pessina fit the general description given by Mr. Harrison, the surviving cab driver. Mr. Harrison’s destination when he was robbed and almost murdered was Ms. Pessina’s residence. She had told police that she and appellant had taken a cab to her residence,that she exited at her residence while appellant purportedly continued in the cab to buy cigarettes, and that appellant returned to her residence after a short time and spent the night. Mr. Harrison remembered taking appellant and Ms. Pessina to the vicinity of 909 Mimosa Street and told police and his dispatcher that he observed his assailant going back toward Mimosa Street with the pistol and the fruits of his robbery. Under the *245 circumstances, we hold that there was probable cause to search the premises at 909 Mimosa Street, making any police threat to obtain a warrant well-founded.

30. By the time of the second search, police also had found a cab driver’s coin changer in appellant’s field jacket, appellant had confessed, and in his confession he said that he left a green lighter taken from one of his victims in Nadia’s residence.

Apart from the validity of Ms. Pessina’s consent, it is clear that the items seized during the two searches were admissible because a search of her residence was inevitable. Mil.R.Evid. 311(b)(2); Nix v. Williams, 467 U.S. 431 , 104 S.Ct. 2501 , 81 L.Ed.2d 377 (1984); United States v. Kozak, 12 MJ 389 (CMA 1982). While the search of Ms. Pessina’s residence was ongoing, appellant was confessing. In his confession, he told investigators that he had hidden the murder weapon and some of the fruits of the crime in Ms. Pessina’s residence. We have no doubt that the fast-moving investigation of appellant’s crimes would have included a search of Ms. Pessina’s residence.

Appellant is not entitled to “a windfall” based on erroneous exclusion of evidence. See Lockhart v. Fretwell, — U.S. -, -, 113 S.Ct. 838, 843 , 122 L.Ed.2d 180 (1993). In this case the evidence was clearly admissible, and appellant’s counsel were not ineffective for failing to object to its admission.

D. Trial defense counsel failed to object to improper evidence of uncharged misconduct during findings.

31. During the Government’s case-in-chief, one of the court members asked Ms. Ira Printers, Ms. Pessina’s roommate, if appellant had ever been physically violent towards Ms. Pessina. Without objection from defense counsel, Ms. Printers responded that she did not know about it beforehand, but found out during Ms. Pessina’s statements to police that appellant had assaulted Ms. Pessina previously.

Defense counsel then submitted Ms. Pessina’s sworn statements to police as defense exhibits without requesting that the referenees to physical violence be redacted. Furthermore, defense counsel did not object to admission of Ms. Pessina’s hospital records concerning injuries allegedly caused by appellant. The same court member who questioned Ms. Printers about the physical violence asked about the hospital records which were then admitted without defense objection. Finally, defense counsel did not object to Ms. Pessina’s testimony concerning the alleged assaults.

Appellant argues that the evidence of uncharged misconduct violated Mil.R.Evid. 404(b) and 403. The Government argues that the uncharged misconduct was admissible as rebuttal evidence under ROM 913(c)(1)(C).

32. This Court has set out a basic test for determining admissibility of evidence of uncharged misconduct. “The threshold question ... ‘is whether the evidence of the misconduct is offered for some purpose other than to demonstrate the accused’s predisposition to crime____’ ” United States v. Rodriguez, 31 MJ 150, 155 (CMA 1990). If this threshold is crossed, the uncharged misconduct must meet a three-part test. First, the extrinsic evidence is not admissible unless it reasonably tends to prove that the accused committed the uncharged crimes, wrongs, or acts. Id. at 155 . Second, the evidence must make some “fact that is of consequence to ... the action more probable or less probable.” United States v. Ferguson, 28 MJ 104, 108 (CMA 1989). Finally, the “probative value” of the evidence must not be substantially outweighed by “the danger of unfair prejudice” or confusion. United States v. Reynolds, 29 MJ 105, 109 (CMA 1989).

Appellant pays little attention to the threshold question and the first part of the test. Instead, appellant argues that the pri- or assaults on Ms. Pessina do not relate to a material issue in the ease. See United States v. Munoz, 32 MJ 359, 364 (CMA) (Extrinsic evidence must relate to a “material issue” in the case.), cert. denied, 502 U.S. 967 , 112 S.Ct. 437 , 116 L.Ed.2d 456 (1991). Specifically, appellant argues that the assaults did not have anything to do with the murders, attempted murders, and robberies of unrelat *246 ed persons. Furthermore, appellant argues that any probative value of the evidence is substantially outweighed by the danger of unfair prejudice.

We hold that defense counsel were not deficient for failing to object to the evidence of uncharged misconduct, because such an objection would not have been meritorious. The overall defense approach was to portray Ms. Pessina as a manipulator who was deeply involved in appellant’s crimes. Evidence depicting appellant as a person who abuses his girlfriend directly contradicted the defense’s theory that appellant was under her domination. Furthermore, the probative value of such evidence does not appear to be substantially outweighed by danger of unfair prejudice.

E. Trial defense counsel failed to present the defense of voluntary intoxication or to introduce any evidence, either on the merits or at sentencing, regarding appellant’s mental condition at the time of the offenses.

33. We hold that defense counsel was not deficient for failing to present evidence of voluntary intoxication, for the reasons stated with respect to sub-issue A, 41 MJ at 242 ¶ 25. We hold that defense counsel was not deficient for failing to introduce evidence regarding appellant’s mental condition for the reasons stated with respect to Issue II, 41 MJ at 241 ¶ 23.

F. Trial defense counsel failed to object to improper aggravation evidence and improper instructions allowing the panel to' consider “lack of rehabilitative potential” during the sentencing proceedings.

34. During the sentencing hearing, the prosecution introduced evidence of appellant’s unsatisfactory performance as a soldier, including three records of nonjudicial punishment under Article 15, UCMJ, 10 USC § 815 , and one record of proceedings in which a suspension of nonjudicial punishment was vacated. The records show the following nonjudieial actions: (1) punishment imposed on May 19, 1987 for a 1-day unauthorized absence; (2) punishment imposed on July 31, 1987, for wrongful use of marijuana; (3) punishment imposed on October 4, 1988, for missing formations on three occasions and willfully disobeying a noncommissioned officer’s order to lay out equipment for an inspection; and (4) an action dated October 28, 1988, vacating the suspension of the forfeiture imposed on October 4, because appellant broke restriction.

35. The prosecution also called Captain (CPT) Bush, appellant’s battery commander, who testified about appellant’s duty performance and disciplinary problems. CPT Bush testified that when he assumed command, approximately 1 year prior to appellant’s court-martial, the outgoing commander and he discussed all the soldiers in the battery. The outgoing commander told CPT Bush that appellant “had been in trouble before and that he was somebody you might want to keep an eye on, but he seemed to be doing good at the time.” During the early days of CPT Bush’s command, appellant’s “duty performance was pretty good, motivated, worked hard for his section chief. He stayed out of trouble, basically.” In January of 1988, the unit recommended appellant for a medal because of his performance at the National Training Center. After a short while, “[h]e got involved with a — a woman downtown and he just started showing up late for formations and missing formations and problems like that.” After counseling and other corrective actions failed, appellant received nonjudicial punishment from the battalion commander, and part of the punishment was suspended. CPT Bush testified that he believed “if we suspended [sic] him for the maximum amount of time it might break up the relationship with the woman he was hanging around with and that might help solve his problems.” Within 10 days, the suspension was vacated because of further misconduct. At that point, CPT Bush decided to recommend that appellant be administratively discharged from the Army. When trial counsel asked, “How much rehabilitation potential did he have as a soldier?,” CPT Bush responded, “At that point he had — in my opinion, he had none. There was nothing we could do for him.”

On cross-examination, defense counsel further explored the effects of appellant’s relationship with Ms. Pessina on his duty perfor *247 manee. CPT Bush testified that appellant responded to the leadership of Sergeant (SGT) Key and himself and “[h]e was doing well for a while.” Appellant earned back the rank he had lost. In the words of defense counsel, “And then Nadia came into the picture,” after which appellant’s performance deteriorated.

36. The military judge later instructed the members, without defense objection, that they could consider the evidence of appellant’s nonjudicial punishment and CPT Bush’s testimony as aggravating circumstances. The military judge also instructed the members that the military recognizes five principal reasons for sentencing those who violate the law: 1) “protection of the society from the wrongdoer”; 2) “punishment of the wrongdoer”; 3) “rehabilitation of the wrongdoer”; 4) “preservation of good order and discipline”; and 5) “deterrence of the wrongdoer and those who know of his crime and his sentence.” Defense counsel objected only to the deterrence portion of the instruction.

Appellant now asserts that the failure of trial defense counsel to object to CPT Bush’s testimony and the military judge’s sentencing instruction constituted ineffective assistance of counsel. Appellant argues that CPT Bush’s testimony concerning appellant’s rehabilitative potential should not have been considered as an aggravating circumstance and that his defense counsel was deficient in not objecting to it.

Furthermore, appellant asserts that the judge erred in instructing the members to consider all five reasons for sentencing in the military since only two (punishment and deterrence of others) have been recognized to be appropriate in capital cases, and his defense counsel was deficient for failing to object to the instructions. See Gregg v. Georgia, 428 U.S. 153, 183 , 96 S.Ct. 2909, 2929-30 , 49 L.Ed.2d 859 (1976) (Opinion of Stewart, Powell, and Stevens, JJ.); Jurek v. Texas, 428 U.S. 262 , 96 S.Ct. 2950 , 49 L.Ed.2d 929 (1976).

37. Appellant buttresses his argument that rehabilitation evidence is not admissible in a capital murder case by citing Spaziano v. Florida, 468 U.S. 447 , 104 S.Ct. 3154 , 82 L.Ed.2d 340 (1984). In a separate opinion, Justices Stevens, Brennan, and Marshall stated:

In general, punishment may rationally be imposed for four reasons: (1) to rehabilitate the offender; (2) to incapacitate him from committing offenses in the future; (3) to deter others from committing offenses; or (4) to assuage the vietims’s or the community’s desire for revenge or retribution. The first of these purposes is obviously inapplicable to the death sentence. The second would be served by execution, but in view of the availability of imprisonment as an alternative means of preventing the defendant from violating the law in the future, the death sentence would clearly be an excessive response to this concern. We are thus left with deterrence and retribution as the justification for capital punishment.

Id. at 477-78 , 104 S.Ct. at 3171-72 (emphasis added). See also Furman v. Georgia, 408 U.S. 238, 306 , 92 S.Ct. 2726, 2760 , 33 L.Ed.2d 346 (1972) (Stewart, J., concurring) (The death penalty “is unique in its rejection of rehabilitation of the convict as a basic purpose of criminal justice.”); Beam v. Pasket, 966 F.2d 1563, 1572 (9th Cir.1992) (A death sentence cannot be obtained unless the sentence is in furtherance of “its interest in retribution, in deterrence, or in the elimination of those likely to kill again.”), vacated, — U.S. -, 113 S.Ct. 1837 , 123 L.Ed.2d 464 (1993), rev’d on other grounds, 3 F.3d 1301 (9th Cir.1993), cert. denied — U.S.-, 114 S.Ct. 1631 , 128 L.Ed.2d 354 (1994).

The Government, however, points to RCM 1001(b)(5), which states that the prosecution may present “evidence, in the form of opinion, concerning the accused’s previous performance as a servicemember and potential for rehabilitation.” See United States v. Stinson, 34 MJ 233 (CMA 1992) (In a sentencing hearing, an accused’s potential for rehabilitation is a proper subject of testimony by qualified experts.).

38. We agree with the Government that appellant’s nonjudicial punishment and CPT Bush’s opinion about his duty performance *248 were admissible under RCM 1001(b)(2) and (5). Cf. Barclay v. Florida, 463 U.S. 939, 956 , 103 S.Ct. 3418, 3428 , 77 L.Ed.2d 1134 (1983) (evidence admissible to show that mitigating circumstance did not exist). CPT Bush’s testimony arguably violated our prohibition against euphemisms for a punitive discharge in United States v. Ohrt, 28 MJ 301 (CMA 1989), but we do not find defense counsel’s performance deficient for failing to object to it. Defense counsel had already presented the testimony of SGT Key, appellant’s first-line supervisor on the merits. SGT Key had testified that appellant was “having problems” when SGT Key first arrived, but that he later responded to leadership and “was squared away for 12 good months.” SGT Key testified further that “[wjhen he met Nadia, it went out the window.” It is clear from the cross-examination of CPT Bush that trial counsel played into defense counsel’s hands by reinforcing the defense proposition that appellant was obsessed with Ms. Pessina. Rather than object to the testimony, defense counsel used it to advantage by cross-examining CPT Bush to establish that appellant was developing into a good, responsible soldier until he fell under the spell of Nadia Pessina. In our view, this defense strategy was sound.

39. We turn next to the question whether the military judge erred by characterizing appellant’s lack of rehabilitative potential as an aggravating circumstance. RCM 1004 creates two categories of aggravating evidence: a broad category of aggravating “circumstances” and a narrower category of aggravating “factors.” RCM 1004(b)(4) (Change 2) provides:

Death may not be adjudged unless:

(A) The members find that at least one of the aggravating factors under subsection (c) existed;

(B) Notice of such factor was provided in accordance with paragraph (1) of this subsection and all members concur in the finding with respect to such factor; and

(C) All members concur that any extenuating or mitigating circumstances are substantially outweighed by any aggravating circumstances admissible under RCM 1001(b)(4), including the factors under subsection (c) of this rule.

RCM 1004 combines the two procedures generally employed by the states in capital cases. The states generally fall into two categories: “weighing” and “nonweighing.” A “weighing” state balances extenuating and mitigating circumstances against statutory aggravating factors. A “nonweighing” state requires that a statutory aggravating factor be found in order to adjudge a death sentence, but does not require that it be weighed against extenuating and mitigating circumstances. RCM 1004 combines both processes, by first requiring that an aggravating factor be found, and then requiring that extenuating and mitigating circumstances be weighed against aggravating circumstances, which include the aggravating factors.

This Court has specifically opined that lack of rehabilitative potential is not an aggravating circumstance. United States v. Aurich, 31 MJ 95 , 96-97 n. *. See RCM 1001(b)(4) and (5). Accordingly, we hold that the military judge’s characterization of appellant’s disciplinary record and CPT Bush’s testimony as aggravating circumstances, as that term is used in RCM 1001(b)(5), was error.

40. Where, as in this case, the sentencing authority in a “weighing” jurisdiction has considered an invalid aggravating circumstance, an appellate court may either reweigh the circumstances or conduct .a harmless-error analysis. Stringer v. Black, 503 U.S. 222, 230 , 112 S.Ct. 1130, 1136 , 117 L.Edüd 367 (1992); Barclay v. Florida, 463 U.S. 939 , 103 S.Ct. 3418 , 77 L.Ed.2d 1134 (1983).

We hold that appellant was not prejudiced by the military judge’s characterization of appellant’s duty performance as an aggravating circumstance or by his counsel’s failure to object to that characterization, because the error was harmless. The Supreme Court has recently held that when ineffective assistance is alleged, “a criminal defendant alleging prejudice must show ‘that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.’ ” Lockhart v. Fretwell, — U.S. at-, 113 S.Ct. at 842, citing Strickland v. *249 Washington, 466 U.S. at 687 , 104 S.Ct. at 2064 . “The essence of an ineffective-assistance claim is that counsel’s unprofessional errors so upset the adversarial balance between defense and prosecution that the trial was rendered unfair and the verdict rendered suspect.” Kimmelman v. Morrison, 477 U.S. at 374 , 106 S.Ct. at 2582 .

In the case before us, CPT Bush’s evaluation of appellant’s potential for military service pales in the context of the overwhelming evidence of a series of brutal murders and robberies. We are satisfied that the military judge’s characterization of appellant’s disciplinary record and CPT Bush’s testimony as an aggravating circumstance did not prejudice appellant, especially in light of the defense strategy of attributing appellant’s decline in performance to Ms. Pessina’s domination. See Zant v. Stephens, 462 U.S. 862, 889 , 103 S.Ct. 2733, 2749 , 77 L.Ed.2d 235 (1983) (mislabeling aggravating evidence had ‘“an inconsequential impact on the jury’s decision regarding the death penalty1 ”). Furthermore, our review of the evidence presented and the arguments of counsel satisfy us that the decision to impose the death sentence was based on the facts and circumstances of the case rather than a numerical weighing of aggravating factors and circumstances against mitigating circumstances.

G. Trial defense counsel failed to adequately investigate and ensure the accuracy and reliability of the pretrial sanity board and neuropsychological evidence before relying on the evidence.

41. Based on defense counsel’s exhaustive inquiry into appellant’s mental condition, as outlined in our discussion of Issue II, 41 MJ at 239 -240 ¶¶ 19-20, we hold that defense counsel fully complied with the requirement to “make reasonable investigations.” Strickland v. Washington, 466 U.S. at 691 , 104 S.Ct. at 2066 .

H. Trial defense counsel failed to request funds for a mitigation specialist or to present a cohesive, comprehensible background, social, medical, and environmental history for appellant.

Appellant argues two points on this sub-issue; trial defense counsel failed to request funds for a mitigation specialist, and counsel failed to present all of the mitigation evidence available, including the testimony of Dr. Armitage.

Trial defense counsel did not utilize a mitigation expert. Instead, defense counsel conducted his own investigation and presented his evidence through lay witnesses, and then used his sentencing argument to link the evidence to an appropriate sentence. Through the testimony of appellant’s father, mother, brother, and sister, and the affidavit of another brother, defense counsel established that appellant was the youngest of eight children. They produced evidence that appellant’s father drank heavily, had a long police record, was physically abusive, did not know appellant’s age or birthday, and left all responsibility for child rearing with appellant’s mother. They established that appellant’s mother worked nights to support the family until she could no longer work because of illness. Finally, using the testimony of family members as well as the testimony of a police officer from appellant’s home town, they established that appellant grew up in an economically depressed, violent, drug-infested neighborhood with substandard schools.

Through the stipulated testimony of a teacher and appellant’s school records, defense counsel established that appellant was academically substandard in high school and a frequent truant and disciplinary problem. Appellant was “moody and temperamental in the classroom” and “would easily flare up.” Appellant’s parents showed no interest in “his progress or problems.”

Mr. Lord Johnson, a boxing coach, testified that appellant entered his program when he was 7 or 8 years old. Appellant trained hard and did well. They had a “beautiful relationship” until appellant left the program when he was 15 years old. Mr. Johnson opined that appellant could be “manipulated or controlled.” Finally, Mr. Johnson testified that in his opinion appellant would not be a dangerous person if confined.

42. Finally, defense counsel called two noncommissioned officers from the Fort Hood Detention Facility, who testified that *250 appellant presented no disciplinary problems while in pretrial confinement, that he was a good worker, and that he “adjusted well to confinement.”

CPT Bush, during his testimony, established that appellant responded well to the leadership of SGT Key and was performing well until he became involved with Ms. Pessina.

The thrust of the defense ease on sentencing was to convince the court-martial to confine appellant rather than execute him. The defense presented evidence to show that, if appellant were isolated from external influences and placed in a structured environment, he would not be dangerous and that, therefore, the needs of justice and society made his execution unnecessary.

In argument, defense counsel pointed out that appellant was the product of parental neglect and violent surroundings. Defense counsel portrayed appellant as a person of limited intelligence and arrested emotional development, who was a follower, manipulated and controlled by Ms. Pessina. Defense counsel emphasized that appellant, in spite of his upbringing, responded well to leadership of Mr. Johnson and SGT Key, adjusted well to confinement, and would not be a threat to society if he were confined.

43. Appellant asserts that mitigation experts are essential for capital murder cases. He argues that a mitigation expert would have been able to present all the appropriate evidence in a more logical and coherent order. He further asserts that the mitigating factors presented should have been linked through expert testimony with the actions of appellant. Finally, appellant argues that the mitigating evidence presented was disjointed and piecemeal.

Trial defense counsel explains that his failure to present expert mitigation testimony was a tactical choice. Trial defense counsel specifically considered using expert testimony for the purpose of drawing “a nexus between” appellant’s “past problems and his present conduct.” COL Armitage, a forensic psychiatrist and a member of the defense team, could have testified and “draw[n] a nexus between” appellant’s past and the present and his “tendency to be led,” but if he had done so, he'also would have had to acknowledge on cross-examination that appellant had a classic “sociopathic personality” and could very easily commit similar crimes in the future. To prevent this damaging result, defense counsel avoided psychiatric testimony.

We hold that counsel’s decision not to utilize Colonel Armitage’s testimony or that of any other mental health professional was a reasonable tactical choice. See White v. Singletary, 972 F.2d 1218, 1225-26 (11th Cir.1992) (trial defense counsel did not provide ineffective assistance of counsel dining penalty phase of capital murder prosecution by failing to present mitigation expert testimony on defendant’s intoxication because it contradicted trial testimony regarding defense and because jurors generally disdain “drunkenness as an excuse for violent behavior”). The mere fact that defense counsel did not “shop around” for another more favorable expert does not render them ineffective. See Poyner v. Murray, 964 F.2d 1404, 1419 (4th Cir.), cert. denied, — U.S.-, 113 S.Ct. 419 , 121 L.Ed.2d 342 (1992).

We hold further that defense counsel’s investigation and presentation of defense mitigation evidence and their decisions regarding use of expert testimony were reasonable. While use of an analysis prepared by an independent mitigation expert is often useful, we decline to hold that such an expert is required. What is required is a reasonable investigation and competent presentation of mitigation evidence. Presentation of mitigation evidence is primarily the responsibility of counsel, not expert witnesses. In this case defense counsel investigated appellant’s background and competently presented his evidence during the sentencing phase of the trial. Based on the advice of Colonel Armitage, defense counsel wisely used argument to link the evidence to appellant rather than use an expert who would be vulnerable to devastating cross-examination or rebuttal. This was not ineffective assistance.

*251 I. Trial defense counsel failed, to object to improper government rebuttal evidence.

44. Appellant contends that trial counsel elicited improper rebuttal evidence from two witnesses, Texas Ranger Aycock and Private Brown. As to Aycock, appellant asserts that it was improper to permit him to testify that, to the best of his knowledge, Ms. Pessina had no criminal activity in her past, that she was “not a suspect here,” and that there were no state charges pending against her for concealing knowledge of the felony, making false statement to police, or possession of drugs.

Defense counsel had cross-examined OPT Bush about rumors of Ms. Pessina’s drug use and involvement in criminal activity, including murder. This testimony was tendered by the defense to support their theory that Ms. Pessina was the instigator of appellant’s crimes.

We hold that Ranger Aycock’s testimony was proper rebuttal, and therefore defense counsel were not deficient in failing to object to it. In United States v. Banks, 36 MJ 150, 166 (CMA 1992), we explained that “the function of rebuttal evidence is to explain, repel, counteract or disprove the evidence introduced by the opposing party.” Of course, proper rebuttal evidence must be restricted to the scope outlined by the evidence of the opposing side. United States v. Hallum, 31 MJ 254, 255 (CMA 1990). In this case Ranger Aycock’s testimony rebutted the defense evidence characterizing Ms. Pessina as a known criminal who exercised undue influence over appellant.

45. Appellant also asserts that his counsel failed to object to improper rebuttal testimony by Private Brown. Brown testified that, in private conversation, appellant told him that he “did it the first time to see if he could get away with it, and then he did it because it was fun.” Brown testified further that he heard appellant say that if he could do it over again, “the only difference” would be that he would not “get caught.” Appellant argues that this evidence was improper because the defense produced no evidence of remorse.

We hold that the evidence was proper rebuttal and that counsel were not deficient for failing to object to it. During cross-examination of SA Schnayerson, who had interrogated appellant regarding the offenses, defense counsel elicited testimony that SA Schnayerson had asked appellant hypothetical questions about the families of the victims, to which appellant responded that he was sorry. During sentencing argument defense counsel specifically mentioned appellant’s remorse as a mitigating factor, arguing that “Agent Schnayerson, when he was interviewing Dwight over at the CID building, asked him about feelings for the family or feeling of remorse at that time and asked him if he was sorry, and he did say he was sorry. And that is what prompted the confession, that’s when he made the confession and that — that is evidence of remorse.” We hold that defense counsel opened the door to the issue of remorse during cross-examination of SA Schnayerson, making Private Brown’s testimony proper rebuttal.

J. Trial defense counsel were ineffective in failing to request a sentencing instruction which would properly inform the panel members that the only offenses which authorized the death sentence were felony murder and premeditated murder.

46. During instructions on sentencing, the military judge instructed the panel that “a single sentence shall be adjudged for all of the offenses.” He then properly instructed the panel that the court-martial was authorized to adjudge a sentence of death or the mandatory minimum sentence of life imprisonment. The military judge failed to instruct the panel, however, that death was an authorized punishment only for the offenses of premeditated murder and felony murder. Defense counsel neither objected to the sentencing instruction nor requested a specific instruction identifying the offenses for which death was an authorized punishment.

The Government contends that the aggregate effect of the other offenses did not render the death sentence improper because the members’ discretion was circumscribed by the three specific aggravating factors concerning which the judge instructed the members. Furthermore, the list of aggravating circumstances presented to the court members by trial counsel and the judge did not *252 include the robbery or attempted murder offenses.

Appellant’s argument is founded on this Court’s previous cases in which we have held that the court members must be informed of the basis for permissible additional punishment if the additional punishment is permitted based on previous convictions or multiple offenses. See United States v. Yocum, 17 USCMA 270, 273 , 38 CMR 68, 71 (1967) (must tell members punitive discharge (BCD) authorized because accused convicted of 2 or more offenses for which authorized total confinement is 6 months or more); United States v. Hutton, 14 USCMA 366, 370 , 34 CMR 146, 150 (1964) (must tell members BCD authorized because accused had two or more previous convictions).

The factual premise for appellant’s argument is that the court members did not know which offenses were punishable by death and, therefore, they sentenced him to death for an aggregate of offenses. Neither side’s brief mentions the military judge’s instructions on findings, in which he explained how to announce the vote on the four capital offenses. The four capital offenses were specifically identified on the findings worksheet (App. Ex. CXXIII) and specifically identified by the military judge when he was instructing on the voting procedures for findings. The military judge called specific attention to pages 1, 3, 5, and 6 of the worksheet which identified the four capital offenses and contained specific instructions on how to announce whether the findings were unanimous with respect to those offenses.

47. While it might have been better practice for the military judge to again identify the offenses punishable by death in his sentencing instructions, we are unwilling to presume that the court members did not know that a “capital” offense is punishable by death. We note that defense counsel told the court members on general voir dire that “this is a capital murder case” and that “you may have to make a decision whether or not to confine ... [appellant] in prison for the rest of his life, or to execute him.” We hold that the military judge did not err by failing to repeat the portion of his findings instruction which identified which offenses were “capital.” We further hold that defense counsel’s failure to object or request additional instructions was not ineffective representation within the meaning of Strickland .

K. Cumulative error.

Although not specifically asserted by appellant, we deem it appropriate to consider whether defense counsel’s conduct of the trial as a whole might have been defective within the meaning of Strickland , even though individual oversights or mistakes standing alone might not satisfy Strickland. See Frey v. Fulcomer, 974 F.2d 348 , 361 n. 12 (3d Cir. 1992) (prejudice determined by review of all of counsel’s errors combined), cert. denied, - U.S. -, 113 S.Ct. 1368 , 122 L.Ed.2d 746 (1993). Our review of the entire record satisfies us that appellant was vigorously and competently defended.

ISSUE IV

WHETHER THE MILITARY JUDGE ABANDONED HIS ROLE AS A NEUTRAL OFFICER OF THE COURT THEREBY DENYING APPELLANT A FAIR TRIAL.

48. Appellant contends that the military judge denied him a fair trial by becoming an advocate for the prosecution. At the initial session of the court-martial under Article 39(a), UCMJ, 10 USC § 839 (a), on January 31.1989, defense counsel conducted an extensive voir dire of the military judge and then elected not to challenge him for cause at that time. At an Article 39(a) session on March 16.1989, defense counsel challenged the military judge for cause based on adverse rulings and comments by the military judge at preceding pretrial sessions.

It is axiomatic that a military “judge may not abandon” his “impartial” role and “assist” the prosecution. United States v. Reynolds, 24 MJ 261, 264 (CMA 1987). On the other hand, the military judge “is not a mere figurehead” or “simply an umpire in a contest between the Government and accused.” United States v. Kimble, 23 USC-MA 251, 253, 49 CMR 384 , 386 (1974). The military judge has the responsibility to “exer *253 cise reasonable control over the proceedings.” RCM 801(a)(3). He “should prevent unnecessary waste of time and promote the ascertainment of truth, but must avoid undue interference with the parties’ presentations or the appearance of partiality.” RCM 801(a)(3), Discussion. Because “jurors are ever watchful of the words that fall from him,” a military judge must be circumspect in what he says to the parties and in how he examines witnesses. United States v. Clower, 23 USCMA 15 , 18, 48 CMR 307 , 310 (1974), quoting Bollenbach v. United States, 326 U.S. 607, 612 , 66 S.Ct. 402, 405 , 90 L.Ed. 350 (1946).

RCM 902(a) provides that “a military judge shall disqualify himself or herself in any proceeding in which that military judge’s impartiality might reasonably be questioned.” RCM 902 is based on 28 USC § 455 and contains substantially the same language. Drafters’ Analysis of RCM 902, Manual, supra at A21-45. The standard of appellate review of the recusal decision is abuse of discretion. S. Childress & M. Davis, 2 Federal Standards of Review § 12.05 at 12-37 (2d ed. 1992). The standard is based on “the ‘reasonable person’ test: if a reasonable person would not question the judge’s impartiality on the basis of the facts presented, then it is not an abuse of discretion for the judge to deny the motion for recusal.” Id. at 12-38.

49. Appellant has asked this Court to consider the military judge’s “track record” and has cited nine cases in which the military judge has allegedly exhibited pro-government conduct. Final Brief at 155-57. We decline to decide this case on the basis of the military judge’s “track record.” In the first place, we do not regard nine cases as a representative sample of the record of an experienced trial judge. Second, our obligation is to review the record of trial in this case, not that in other decided cases, to determine if the military judge was partial in this case. See Liteky v. United States, — U.S. -, -, 114 S.Ct. 1147, 1157 , 127 L.Ed.2d 474 (1994) (“[Jjudieial rulings alone almost never constitute [a] valid basis for a bias or partiality motion.”), citing United States v. Grinnell Corp., 384 U.S. 563, 583 , 86 S.Ct. 1698, 1710 , 16 L.Ed.2d 778 (1966).

In support of appellant’s assertion that the military judge “has a track record of pro-government conduct,” Final Brief at 155, appellate defense counsel assert that the military judge “had reason to celebrate with the prosecution, law enforcement agents, and the murder victim’s families the very night appellant was sentenced to die.” Final Brief at 157-58. This accusation is based on an affidavit from former-Captain Ibbotson, lead defense counsel, in which he asserts, “After the verdict was announced, the prosecutors held a party.” Mr. Ibbotson further asserts, “The defense later learned that, in addition to the prosecutors, investigators and family members, the Military Judge attended as an invited guest.” Def.App. Ex. S. Mr. Ibbotson does not disclose the source of his information. The defense has produced no direct or corroborating evidence of this assertion.

The Government countered with an affidavit from Lieutenant Colonel (LTC) (then-Major) Ley, the lead prosecutor and one of the alleged sponsors of the party. LTC Ley asserts unequivocally, “There was no party.” Govt.App. Ex. 6, ¶ 2. After comparing Mr. Ibbotson’s accusation based on hearsay with LTC Ley’s denial based on personal knowledge, we conclude that further inquiry is not warranted.

We turn next to appellant’s specific allegations regarding the military judge’s conduct of the trial, which we discuss seriatim.

A. The military judge refused to allow appellant access to information showing inaccurate media coverage which bore upon the advisability of changing venue.

50. At trial appellant requested a change of venue, which the military judge denied. Appellant also requested funding for a “clipping service” and subpoenas to the news directors of all local television stations in order to obtain videotapes of television coverage regarding the charges against appellant. These requests were denied as unnecessary after the military judge received assurances from the Government that the Fort Hood Public Affairs Office would make all news clippings and videotapes of televi *254 sion coverage available to the defense. We hold that the record does not support appellant’s allegation that he was refused access to relevant information.

Appellant also asserts that the military judge demonstrated bias by stating that his ruling on the requested change of venue “wouldn’t change by my viewing any of these television reports of this trial.” The military judge stated that the defense would be permitted to raise the venue issue again if voir dire of the court members indicated that they had been influenced by pretrial publicity and that he would liberally grant challenges based on exposure to pretrial publicity.

We note that the military judge’s ruling was unsuccessfully challenged before the Court of Military Review. 34 MJ at 964 — 65. Appellant now asserts that the military judge’s treatment of the issue reflects bias against him.

We do not regard the military judge’s statement as a demonstration of bias, but rather as a reflection that he correctly understood the law. Pretrial publicity does not necessarily establish that court members have been influenced. The question is whether the members, having been exposed to publicity, can “fairly and honestly try the issues.” United States v. Vigneault, 3 USC-MA 247, 255, 12 CMR 3, 11 (1953). It is only when pretrial publicity creates “so great a prejudice against the accused that the accused cannot obtain a fair and impartial trial” that he is entitled to a change of venue. RCM 906(b)(ll), Discussion; United States v. Gravitt, 5 USCMA 249, 256-57 , 17 CMR 249, 256-57 (1954).

B. The military judge accused defense counsel of being unethical and manipulating the speedy trial clock.

51. Appellant’s argument is based on an exchange regarding a trial date. After listing what needed to be done, defense counsel argued, “There’s an awful lot of things hanging here, and it seems unfair to make the defense go to trial on the 27th and say we’re held to any delay.” Trial counsel retorted, ‘Your Honor, we’re not ... opposing a defense delay, but I get the feeling that the Government is being maneuvered here into somehow the defense saying, ‘I’m not ready to go, we’re going to need to evaluate a lot of different things; but somehow, it should all be accountable to the Government.’” The military judge responded:

Well, that’s my perception exactly. Certainly, you fellows aren’t trying to maneuver the system, are you? If you want delay, I’d be more than happy to give you delay. If you want time to check out these things, be my guest; take whatever time you feel is necessary. But in my view so far, the Government has been extremely cooperative with you. If you want more time, as I say, just ask.

To the extent that the military judge perceived that the defense was attempting to gain additional preparation time without foregoing a possible speedy-trial motion, we agree with appellant that defense counsel were “accused” of attempting to use the speedy-trial rules to their advantage. We disagree, however, that the military judge’s use of the term “maneuver” amounted to an accusation of unethical conduct.

C. The military judge suggested to trial defense counsel that he should use an inadequate expert to prepare for trial.

52. The allegation is unsupported by the record. After the defense requested expert assistance, the Government proffered two medical officers in succession who were unacceptable to the defense. The military judge •declined to force the defense to accept them. A third medical officer, Colonel Armitage, was offered by the Government and was acceptable to the defense. The basis of the controversy was not being forced to accept an “inadequate expert”; the basis of the controversy was whether, for speedy-trial purposes, the delay in finding an acceptable expert would be charged to the defense.

D. The military judge ignored prosecutorial misconduct in excusing a pro-life court member without cause.

LTC Hardie was detailed to be a court member in appellant’s case on February 14, 1989. On February 21, appellant requested enlisted members. On February 23 LTC Hardie completed an extensive *255 “Court-Martial Member Questionnaire” in which he wrote, “I have morale [sic] reservations regarding capital punishment.” On March 23 appellant changed his mind and requested an all-officer court. On March 24, LTC Hardie “faxed” a handwritten request for exeusal from court-martial duty to the convening authority, reciting that he had been notified just that morning that he was required to be present for court-martial duty. LTC Hardie, a battalion commander at Fort Sill, listed training commitments scheduled to begin on March 30 which could not be rescheduled because of short notice. Also on March 24, the division staff judge advocate (S JA) submitted a decision paper and a list of nominees to the convening authority. The convening authority relieved the enlisted members and appointed five more officers. LTC Hardie was not reappointed.

53. Appellant’s accusation that the military judge ignored prosecutorial misconduct is unsupported by the record. In the first place, there is no evidence of prosecutorial involvement in the selection of court members. All correspondence was between the SJA and the convening authority. Furthermore, there is no evidence that the convening authority was aware of the questionnaire, which apparently was sent out by counsel and returned to counsel in preparation for voir dire of court members. Finally, even if the convening authority had been aware of the questionnaire, he would have been justified in not appointing LTC Hardie to sit on appellant’s case, because LTC Hardie would not have been “best qualified” within the meaning of Article 25, UCMJ, 10 USC § 825 , by virtue of the likelihood of his being challenged for cause based on his moral opposition to the death penalty. See United States v. Curtis, 33 MJ 101, 106-07 (CMA 1991) (juror subject to challenge for cause if “religious views or moral scruples” against death sentence would prevent giving “meaningful consideration to impose a death penalty”), ce rt. denied, 502 U.S. 1097 , 112 S.Ct. 1177 , 117 L.Ed.2d 421 (1992); RCM 503(a)(1), Discussion and Drafters’ Analysis to RCM 503(a)(1), Manual, supra at A21-25 (convening authority should avoid detailing members who would be subject to challenge for cause).

E. The military judge restricted defense counsel’s voir dire and chastised him in the presence of a court member.

Appellant’s assertion involves three issues: (1) whether the military judge improperly restricted voir dire; and (2) whether the oral exchanges between defense counsel and the military judge reflect that the judge was biased; and (3) whether the military judge prejudiced appellant by scolding defense counsel in the presence of a court member.

1. Restrictions on voir dire.

Prior to trial each court member completed and submitted a 7-page “Court-Martial Member Questionnaire,” consisting of 35 questions covering personal and family history, civilian and military education, past duty assignments, non-military employment, awards and decorations, volunteer work, previous contacts with the legal system, hobbies, memberships in organizations, and reading habits. These questionnaires were submitted to trial counsel and used by counsel for both sides.

During general voir dire, defense counsel asked about familiarity with the evidence, witnesses, and court personnel; court-martial experience; hobbies and reading habits; associations with judges, lawyers, and policemen; attitudes about capital punishment; and general attitudes toward sentencing.

After general voir dire was completed, the military judge asked counsel for both sides how much time they needed for individual voir dire. Trial counsel anticipated “a few moments,” but defense counsel anticipated 45 minutes per member. The military judge then scheduled the members for individual voir dire at 30-minute intervals, closed the court, and moved voir dire to a more informal setting in another room.

54. The first court member, LTC Dobbs, was then questioned individually for 57 minutes by both sides, without comment or interruption by opposing counsel or the military judge. Questioning by trial counsel included civilian education, prior experience as a crime victim, previous military assignments, attitudes toward the criminal justice system in general and capital punishment in particu *256 lar, as well as Ms attitude toward conflicts between court-martial duty and other duties.

Defense counsel then questioned LTC Dobbs about Ms career as a public affairs officer in the Army, other military assignments, family Mstory, participation in sports, volunteer work, attitude toward bumper stickers, reading habits, prior court-martial experience, personal values, capital purnshment, and race relations.

After LTC Dobbs was excused, the following exchange took place between the military judge and defense counsel:

MJ: ... You guys are going to have to hold down tMs process [to defense]. I’m not going to take an hour for every one of these guys. For example, I’m having great difficulty understanding why you need to know whether a court member has done any volunteer work, put stickers on Ms car, anything about a divorce, concept [sic] with the enemy in time of war, thoughts on boxing. This process is going to have to be streamlined; because as I say, I’m not going to allow you to have an hour for each one of these guys, with questions like that. Can we get to the core issues? Be my guest and get to those core issues, and do it quickly. So let’s jettison some of tMs stuff that I see as non-essential. Those are just some indications of what I tMnk is non-essential information.

IDC: Sir, in the ones you pointed out there, we have certain reasons why we asked some of those questions. I can— just to give you an example on the stickers. When somebody has a sticker on there that, you know, “my wife, yes; my dog, maybe; my gun, never,” or something like that, it tells a little bit about the —

MJ: Ask them about gun control, or something like that. We’re not going to go through all of tMs stuff here. And volunteer work, tell me why you need to know about his volunteer work; clue me in on that one.

[No response from the defense.]

MJ: Well, my point exactly.

DC: No, sir. Well, sir—

MJ: Well, then answer.

DC: Sir, we’ve consulted with [a] jury consultant on tMs, as well as our expert, and we feel that tMs discloses attitudes of the panel, just as the attitudes on divorce, and these other matters. Many of these matters directly have to do with certain mitigating evidence we plan on presenting in tMs case, as does boxing. It all ties into specific elements and the mitigating evidence we plan on presenting, and their attitudes — or lack of attitude — on these issues is important. We’ll drop the part on volunteer work if you insist. We’d just note on the record that we’re not able to ask about tMs____

MJ: Well, I feel that you’re wasting time.

DC: Okay, sir.

MJ: Do not waste time. Get to the core issues. Let’s move on quickly. Let’s not ask these people their entire life Mstory; that’s not the design behind voir dire. The design is whether they can sit as an impartial court member.

The individual voir dire of the second court member, LTC Griffith, then commenced. Questioning followed the same general pattern and covered the same topics as with LTC Dobbs. Neither opposing counsel nor the military judge interrupted until near the end of the voir dire, when defense counsel asked about boxing. The military judge interjected and the following exchange occurred:

MJ: Didn’t I tell you, no? I could have sworn I said, don’t do that. What is tMs, open defiance here?

DC: No, sir.

MJ: What are you doing then?

DC: As I’ve explained to you, some of the key elements in our mitigation case mvolve — In fact, one of our witnesses, a boxer—

MJ: Answer the question. What are you doing?

DC: I thought that I explained to you about that, sir.

MJ: You can asked [sic] one boxing question, and that’s it. That’s all the question [sic] you can ask.

*257 Defense counsel then asked LTC Griffith what he thought about boxing, and LTC Griffith gave a lengthy and detailed response.

55. After LTC Griffith was excused, defense counsel asked the military judge to examine their voir dire outline and indicate which questions he considered irrelevant or objectionable. Defense counsel then pointed out to the military judge that LTC Griffith had reacted to the military judge’s interruption of the questioning about boxing. The military judge responded:

Call him back and ask him. I’m not going to be defied at this court-martial. When I tell you guys to do something, I expect you to do it. I said no boxing questions. You mentioned boxing would be an issue, or something you would present during extenuation and mitigation. That was what I understood.

The military judge then asked defense counsel to explain why questions about boxing were important. After considerable discussion, defense counsel explained that one of the defense witnesses would be appellant’s boxing coach and that the coach’s “evaluation of’ appellant’s “character is inextricably tied to the sport of boxing.” Defense counsel then repeated their request that the military judge annotate their voir dire outline. The military judge responded:

Well, I’m not going to waste my time doing that. Ask the questions you want to ask. I’ll do this, though. I’ll jump in and tell you when to stop, when I think you’re just wasting time. I’ll allow you to ask a boxing question, then, if you think it’s so important to your case. Let’s not explore every punch that’s ever been thrown by a man here. Let’s just ask a nice, brief, brisk question on boxing.

The remainder of voir dire was conducted without controversy or interruption, except for one question by trial counsel to which the military judge responded, “An unfair question,” and one time when the military judge interrupted a series of defense questions about the importance of schools by interjecting, “Last question in that area. Move on.” The next six court members (Major (MAJ) Napoli, MAJ Wilson, CPT Williams, CPT Weiss, Chief Warrant Officer (CW)4 Giebner, and CW3 Hasenauer) were asked substantially the same questions, including questions about boxing, without interruption. Four court members (LTC Thomas, LTC Keating, LTC Aylor, and MAJ Staples) were not asked about boxing.

LTC Keating was challenged for cause and excused. LTC Griffith, the only court member who witnessed any of the exchanges between defense counsel and the military judge, was challenged peremptorily by trial counsel. LTC Thomas and LTC Dobbs were peremptorily challenged by defense counsel.

[52] 56. When this Court reviews a military judge’s limitations on voir dire, we “should reverse only when a clear abuse of discretion, prejudicial to a defendant, is shown.” United States v. Smith, 27 MJ 25, 28 (CMA 1988), quoting United States v. Parker, 6 USCMA 274, 280 , 19 CMR 400, 406 (1955). See RCM 912(d), Discussion (“The nature and scope of the examination of members is within the discretion of the military judge.”).

We hold that the military judge did not abuse his discretion in this case. Virtually no topic was off-limits for voir dire. Even questions about boxing, the basis of all exchanges between the military judge and counsel, were permitted after defense counsel explained the relevance of the questions.

2. Bias of the military judge.

In order to constitute grounds for reversal, a “judge’s bias” against a party “must be personal and extrajudicial.” McWhorter v. Birmingham, 906 F.2d 674 , 678 (11th Cir.1990). See Liteky v. United States, — U.S. -, 114 S.Ct. 1147 , 127 L.Ed.2d 474 (1994). Generally, courtroom clashes between counsel and the judge do not constitute disqualifying bias. In re Cooper, 821 F.2d 833, 838 (1st Cir.1987). See Liteky v. United States, — U.S. at-, 114 S.Ct. at 1157 (“expressions of impatience, dissatisfaction, annoyance, and even anger” not sufficient to disqualify judge). Where bias is alleged to be against an attorney rather than a party, it must be so virulent “that the judge’s impartiality toward the client may reasonably be questioned.” 821 F.2d at 839; *258 United States v. Jacobs, 855 F.2d 652 , 656 n. 2 (9th Cir.1988). Applying these principles, we hold that the clashes between defense counsel and the military judge regarding the scope of voir dire were not sufficient to disqualify the military judge.

3. Chastising defense counsel in the presence of a court member.

57. The record reflects that defense counsel were not chastised in the presence of any court member who sat on appellant’s case. All exchanges between the military judge and counsel during voir dire were out of the presence of the members, except for one exchange. That was in the presence of LTC Griffith, who was peremptorily challenged by the prosecution, thus mooting any question of prejudice.

F. The military judge sarcastically criticized defense counsel in the presence of the court members when defense counsel objected to inadmissible hearsay testimony of the medical examiner.

This assertion is unsupported by the record. The exchange in question did not start with an “objection” by defense counsel, but with the following comment as the pathologist began to read from a report that had not been marked as an exhibit: “Uh-sir, it might be good, just for the record, that she’s referring to some notes — I believe it’s the autopsy report.” The military judge responded, “Don’t interrupt, will you please?” The military judge then turned to trial counsel and asked, “[D]o you want to get that into evidence, first, so that the doctor can talk from it?” After laying an incomplete foundation, trial counsel offered several documents in evidence. The military judge commented, “Well, it’s slightly premature; but, do you have any objections to it, defense?” Defense counsel responded, “Well, we’d agree with you, sir; but we don’t have any objections to it being admitted.”

In our view the record does not reflect hostility to the defense, but impatience with both sides as trial counsel was having difficulty with what should have been straightforward testimony of a pathologist on an uncontested issue: the cause and manner of death of Private (PVT) Fay. While the military judge demonstrated impatience with both counsel, his comments fall far short of the “verbal abuse” alleged by appellant. Final Brief at 144-46. See Liteky v. United States, supra (impatience not sufficient to disqualify judge).

G. The military judge allowed a murder victim’s wife to testify as to cumulative matters.

58. During a preliminary session prior to arraignment, the military judge ruled that he would permit non-witness members of the victims’ families to sit in the courtroom, but would caution them against any displays of emotion or opinion. During the prosecution case on the merits, trial counsel called Mrs. Sharbino, widow of the victim Bobby Sharbino, to testify. Defense counsel remarked, ‘Your Honor, we would just note, for the record, our earlier comments — at this juncture.” The “earlier comments” referred to defense counsel’s concern that family members of the victims might influence the court members by making comments or “doing something physically.” The military judge did not respond.

Mrs. Sharbino then testified for the limited purpose of identifying Mr. Sharbino’s money bag and wallet. After Mrs. Sharbino was excused, defense counsel asked for and received a side-bar conference, where he stated: ‘We renew our objections to the testimony of the previous witness-” The military judge responded, “Don’t waste my time ... Your objection’s on the record. Her demeanor was neutral: She didn’t cry; she didn’t raise her voice; she didn’t use any hand gestures ... [A]s a matter of fact, she was rigid, [o]n the stand.” Defense counsel then protested, “She had little eye-contact, but she began to lose her voice, and her control.” The military judge concluded the side-bar by stating, “She had only eye-eon-tact with the prosecutor, when he was asking questions. Let’s drive on here.”

Based on this exchange, appellant now argues that the military judge “torpedo[ed]” a defense objection to victim-impact testimony with an “order to sit down and ‘don’t waste my time.’” Appellant argues that “[t]he message to the panel was clear; appellant’s *259 life was worthless and to put up a defense was an inconvenience to the judge’s valuable time.” Final Brief at 145.

59. This argument misstates the record on several counts. First, defense counsel did not lodge a specific objection prior to Mrs. Sharbino’s testimony. Second, Mrs. Sharbino did not give victim-impact testimony; she merely identified two items of real evidence which had been found in a trash container. Third, counsel were not told to “sit down.” Fourth, there was no message sent to the panel members because the exchange occurred in a side-bar conference out of the hearing of the members. The members were unaware that there was any controversy about Mrs. Sharbino’s testimony.

We are satisfied that the military judge did not abandon his impartial role by allowing Mrs. Sharbino to testify. Her neutral testimony on an uneontested matter was admissible and did not unfairly prejudice appellant as to findings.

H. The military judge allowed a surprise government witness to testify without adequate notice or discovery to the defense.

On December 28, 1988, and January 7, 1989, defense counsel filed discovery requests for, among other things, “[a]ny statements, confessions, or admissions by the accused”; “[t]he name, identity, and current location of any informant”; and “[a] list of the names, addresses, and telephone numbers for all witnesses ... on the merits or sentencing----” On February 25, 1989, the military judge ordered the Government to disclose the identity of all informants to the defense. On March 24, 1989, trial counsel notified the defense that Private Forrest Brown, an inmate at the U.S. Army Correctional Activity at Fort Riley, Kansas, was a possible prosecution witness. On March 26, defense counsel filed a motion in limine, asking that the prosecution be prohibited from introducing the testimony of Private Brown “until the Government complies with all discovery requests submitted by the defense in this case and the defense is given an opportunity to interview and confront this witness against Private Loving.”

At an Article 39(a) session on March 27, the military judge asked trial counsel if he was “attempting to provide the information requested by defense.” Upon being told that virtually everything the defense requested was available through Private Brown’s former unit and his court-martial record, the military judge then ordered the prosecution to call Private Brown’s former unit and to provide the record of trial pertaining to Private Brown’s court-martial to the defense.

60. During the sentencing hearing, Private Brown testified for the prosecution, without further objection by the defense. He was asked if appellant said “anything about how he felt about the shootings.” Private Brown responded:

I believe he said — I—we were talking and I believe he said — I asked him why he did something like that — I thought he was joking or he wasn’t serious or'he was bragging — he said — he did the first — did it the first time to see if he could get away with it, and then he did it because it was fun, and then he said something along the lines, “Because love makes you do crazy things.”

Private Brown testified that at a “later time” he heard appellant say “if he had to do it over, the only difference is he wouldn’t get caught.” On cross-examination defense counsel questioned PVT Brown about his court-martial conviction, his pretrial agreement, and other drug offenses for which Brown was investigated but not tried. In a post-trial affidavit, MAJ Hayden, individual defense counsel, states that the defense was “notified” about PVT Brown “the night before [the Government] presented rebuttal testimony.” PVT Brown was interviewed by CPT Ibbotson, the lead defense counsel. MAJ Hayden states, “In hindsight, I would have liked more time to investigate PVT Brown.” Def.App. Ex. Y. The defense did not request additional time.

ROM 701(a)(5)(B) requires the prosecution to disclose sentencing witnesses upon defense request. If a party fails to comply with the discovery rules, RCM 701(g)(3) empowers a military judge to “[o]rder the [noncom-pliant] party to permit discovery”; “[g]rant a continuance”; exclude the evidence; or “[e]n *260 ter such other order as is just under the circumstances.”

Appellant now argues that the military judge demonstrated an “apathetic attitude over a government surprise witness, Private Brown.” He also argues that the military judge “idly ignored defense counsel’s motion to exclude his testimony for failure to provide adequate notice.” Final Brief at 147.

The record in this case does not reflect noncompliance. Trial counsel disclosed the witness on March 24, 1989. There is no evidence of an attempt to ambush the defense. See generally United States v. Dancy, 38 MJ 1 , 5 n. 3 (CMA 1993) (“[Djiscovery rules are intended to eliminate ... ‘gamesmanship.’ ”). Since the defense case did not begin until March 30, the defense had time to adjust their strategy. Private Brown did not testify until April 1. Defense counsel interviewed the witness prior to his testimony and did not request additional time or other relief. The record does not support appellant’s accusation of an “apathetic attitude” or “idly ignor[ing]” defense counsel’s motion. To the contrary, the military judge acted on the motion and directed the Government to comply-

I. The military judge restricted trial defense counsel’s direct examination of Ms. Pessina so that she would not be viewed as an accomplice.

61. There are two elements to this sub-issue. Appellant contends that (1) Ms. Pessina was an accomplice and should have been treated as such on cross-examination and in the military judge’s instructions; and (2) Ms. Pessina, although called by the defense, was a hostile witness.

1. Ms. Pessina as an accomplice

Confronted with overwhelming evidence of guilt, defense counsel wisely focused on avoiding a death sentence. Integral to the defense strategy was an effort to shift the focus from appellant to Ms. Pessina. In his opening statement defense counsel asked the court members to look for “any evidence of Dwight Loving’s motivation of what was pushing him toward this crime.” Defense counsel urged the members to “[l]ook at the involvement of Nadia in this, and his viewing of that incident; and, see how it all fits together____ Look at who needed the money. Look at who had the real agenda for these crimes; who was the idea behind all of this.”

62. Appellant asserts that the following evidence supports his argument that Ms. Pessina was an accomplice:

(1) she and appellant were lovers;

(2) she needed money;

(3) she drove the car for the 7-Eleven robberies;

(4) she used money from the robberies to buy cocaine;

(5) before the cab driver murders, appellant told her that he was going to kill someone for money;

(6) appellant told her about the murders and showed her some of the proceeds;

(7) she slept with appellant after he confessed his crimes to her;

(8) the murder weapon and other evidence were found “littered throughout her home”;

(9) she lied to the police;

(10) her letters to appellant in prison expressed concern about their being screened by prison authorities;

(11) Mr. Harrison heard her “crinkling” something in the backseat of his cab, which probably was the pistol concealed in a paper bag, and the murder weapon was later found in a crinkled paper bag outside her home;

(12) as they exited Mr. Harrison’s cab, she asked appellant, “Have you got everything?”;

(13) it was her idea to ride a cab home because her feet hurt;

(14) she saw appellant with the weapon outside the cab and did nothing to stop him;

(15) despite her aching feet, she exited the cab a block from her house and walked home;

(16) she wore the blood-stained jacket which appellant wore in the murders;

(17) she was told by police not to leave the area;

(18) she had no alibi;

*261 (19) she manipulated and controlled appellant; and

(20) she had a motive to avoid involvement because she could be deported if she got into trouble.

Final Brief at 287-89.

At the outset we note that several of appellant’s assertions are unsupported by the record. Ms. Pessina was gainfully employed, regularly received money from her father, and denied needing money or asking appellant for money. The testimony of SGT Key, pointed to in appellant’s brief in support of his assertion, establishes that appellant was “burning off a lot of money,” but makes no references to Ms. Pessina’s needs or requests.

68. Appellant’s assertion that Ms. Pessina used the proceeds from the robberies to buy cocaine is overstated. She testified that after the 7-Eleven robberies, appellant put some of the money in her jacket pocket, but that she did not use it. The money remained in the jacket pocket until discovered by the police. She testified that she and appellant purchased cocaine on the night after the 7-Eleven robberies. When asked where they obtained the money for the purchase of cocaine, she speculated, “I guess, with the money from the store.”

Appellant’s assertion that the murder weapon and other evidence were found “littered throughout [Ms. Pessina’s] home” is hyperbolic at best. The record reflects that four unspent bullets were found in a dresser drawer along with some clothing; some empty shell casings and one unspent round were found in a trash can in the kitchen; a jacket, ski mask, and gloves were in a closet; and the murder weapon was hidden in a paper bag outside the rear door.

Ms. Pessina’s letters to appellant in prison add nothing to appellant’s theory. As found by the Court of Military Review, the letters were love letters, nothing more. 34 MJ at 961 n. 6. Ms. Pessina’s question whether her letters are inspected reveals nothing more than concern about her intimate letters to appellant being read by prison censors.

Appellant’s theory that Ms. Pessina carried the pistol into Mr. Harrison’s cab is unsupported by the record. When Mr. Harrison was asked if Ms. Pessina was taking something out of a bag, he prefaced his answer by describing it as “speculation.” He then answered that he “heard some plastic bag.” (Emphasis added.) The murder weapon was found in a paper bag.

64. Appellant’s theory that Ms. Pessina manipulated and controlled appellant is likewise unsupported. SGT Key testified that appellant was “overwhelmed with [Ms. Pessina]. He was possessed.” On the other hand, she told appellant that he was getting too serious. While it is beyond cavil that appellant was obsessed with Ms. Pessina, there is no evidence that she exploited his obsession to cause the murders and robberies.

With respect to the fact that Ms. Pessina drove the car when appellant robbed the two 7-Eleven stores, the record reflects that appellant did not tell her where he was going. He told her to stop in a place where the first 7-Eleven store was not visible. Both before and after the first robbery she saw him carrying nothing. They then drove to “a street with houses on it” where the 7-Eleven was not in sight. Only after the second 7-Eleven robbery did appellant tell Ms. Pessina what he had done.

With respect to Ms. Pessina’s participation in the robbery of Mr. Harrison, the most that the evidence shows is that she knew what was going to happen when she saw appellant’s pistol as she exited the cab.

65. In determining whether Ms. Pessina was an accomplice, the test is whether she could have been convicted of any of appellant’s crimes. United States v. McKinnie, 32 MJ 141, 143 (CMA 1991). If the evidence in this case “raises a reasonable inference that [Ms. Pessina] may have been an accomplice,” then the military judge should have allowed the question whether she was an accomplice to have been submitted to the court members with proper instructions upon request. United States v. Gillette, 35 MJ 468, 470 (CMA 1992).

We hold that the military judge correctly refused to allow Ms. Pessina to be treated as *262 an accomplice. Even if we construe all the evidence and inferences in the light most favorable to appellant’s theory, they fall short of making Ms. Pessina an accomplice. Indeed, in his detailed confession, appellant told SA Sehnayerson that Ms. Pessina “didn’t have anything to do with it. Nothing at all. She didn’t know nothing.”

66. There is no evidence that Ms. Pessina knew of the robberies and murders beforehand, that she aided or encouraged them, or that she shared appellant’s criminal intent. See United States v. Knudson, 14 MJ 13, 15 (CMA 1982) (“The law requires that it be established that there is a concert of purpose or the aiding or encouraging of the commission of the criminal act and a conscious sharing of the criminal intent.”). Her knowledge of appellant’s robberies and murders after the fact, her failure to stop appellant from robbing Mr. Harrison, her failure to report appellant’s crimes after he admitted them to her were insufficient to make her an accomplice. See para. lb(3)(b), Part IV, Manual for Courts-Martial, United States, 1984 (“Mere presence at the scene of a crime does not make one a principal____”); United States v. Pritchett, 31 MJ 213, 217 (CMA 1990) (“[M]ere presence at the scene of a crime committed by another is not sufficient evidence____”); United States v. Epps, 25 MJ 319, 321 (CMA 1987) (“failure to stop” a crime is not sufficient). Her less-than-candid initial statements to the police may have made her an accessory after the fact, but no more. See Art. 78, UCMJ, 10 USC § 878 ; para. 3b(4), Part IV.

While Ms. Pessina may have been an accomplice to appellant’s offenses involving cocaine, those offenses were not' before the court. Appellant’s theory was that Ms. Pessina was an accomplice to the murders and robberies. Unlike the accomplice contemplated by the law, Ms. Pessina was not trying to save herself at appellant’s expense. To the contrary, all the evidence indicates that she was trying to protect him. Accordingly, we hold that the military judge properly refused to treat Ms. Pessina as an accomplice.

2. Ms. Pessina as a hostile witness

67. Ms. Pessina was called as the first defense witness on the merits. After defense counsel questioned her about her place of birth, family background, education, language abilities, marital status, previous residences, immigration status, and present employment, trial counsel objected to defense counsel’s leading questions. The military judge excused the court members and convened an Article 39(a) session. Defense counsel argued that Ms. Pessina was “a key person in the investigation” and that he was “compromised in [his] ability to present evidence” without using leading questions. Upon inquiry by the military judge, defense counsel stated that Ms. Pessina had cooperated in submitting to interviews but had not been responsive to all his questions and that he had not asked her about certain areas which he intended to explore on direct examination. Trial counsel stated that he “would not object to leading questions” if Ms. Pessina demonstrated during her testimony “that she is, in fact, hostile.” The military judge then concluded the Article 39(a) session by ruling, “She’s not a hostile witness — not now.”

Defense counsel then questioned Ms. Pessina on her relationship with appellant, her knowledge of appellant’s crimes, her driving the car used in the 7-Eleven robberies, her conversations with appellant after the 7-Eleven robberies, her use of cocaine with appellant, the events leading up to the robbery and attempted murder of Mr. Harrison, the two searches of her residence, and her withholding of information from the police. At that point trial counsel again objected to use of leading questions. Defense counsel again asked permission to use leading questions, arguing that “[s]he is clearly adverse to my client.” The military judge responded, “No — absolutely ridiculous. Proceed.”

At that point the president of the panel asked the military judge to define an “adverse witness.” The military judge explained that counsel were arguing about whether they should be allowed to ask leading questions as an exception to the general prohibí *263 tion against leading questions on direct examination.

68. After a few more minutes of testimony, the military judge sustained another prosecution objection to leading questions. Defense counsel argued: “The testimony that I seek to elicit from her is that [the police] told her that she was the key witness in the case against Dwight Loving; which makes her — in the defense view — an adverse witness to my client.” With the panel members still present, the following exchange then occurred:

MJ: I told you that was ridiculous, before. How many times have I gotta tell you it’s ridiculous? The objection is sustained.

DC: Yes, sir.

MJ: Don’t challenge me.

DC: Yes, sir. We will — we would like to submit a written brief, on this, at a later date, if we could, to make sure that we note all the objections we have.

MJ: No.

DC: No.

MJ: You’ve entered your objections—

DC: All right—

MJ: —I have listened to your objections— three or four times — I have sustained; and, you’re not going to ask any leading questions.

DC: Yes, sir.

MJ: So, please, drive on.

DC: We feel this—

MJ: You open your mouth about it, again, counsel, and I’m going to clear the courtroom and we’re going to have a discussion. DC: Yes, sir.

IDC [Major Hayden]: Your Honor, may we have a side-bar?

MJ: I think we’d better. Gentlemen, why don’t you take a break. Court’s in recess.

The military judge then convened an Article 39(a) session. Individual defense counsel (Major Hayden) expressed concern about the military judge’s characterization of the defense position as “absolutely ridiculous.” The military judge offered to give a curative instruction and invited the defense to draft an appropriate instruction. He concluded the session by explaining:

But, I’ll tell you — and, especially you (to defense counsel) — that I’m not going to be challenged. When I tell you a ruling— when I give you a ruling — that’s it. I’ll be more than happy to reconsider; but, you have to tell me, “Please, Judge, reconsider; based on X, Y, and Z.” You just can’t keep bringing it up — especially, in front of the court members. Now, they asked a question about what an adverse witness is all about. You just can’t keep bringing it up, and in my view, try and challenge the bench. That’s what I perceived it as ... but I understand your point; and, I will be more than happy to work with you. Major Hayden, you fashion some language that you think appropriate____ Please — if you want to write something out — show it to the prosecutor. Court is in recess.

After a short recess the Article 39(a) session resumed, and defense counsel requested, for the fifth time, that the military judge reconsider his ruling on leading questions. After extensive argument by both sides, the military judge again denied the request.

69. Defense counsel then moved for a mistrial based on the military judge’s characterization of the defense argument as “absolutely ridiculous,” and objected to any curative instruction at that point in the trial on the ground that they did not “want to ‘red flag1 that any more than it has occurred, at this time.” The military judge denied the request for a mistrial and acceded to the defense request that no on-the-spot curative instruction be given. Thereafter, Ms. Pessina was questioned at length by counsel for both-sides, court members, and the military judge, with no further clashes between the military judge and counsel.

Mil.R.Evid. 611(a) directs the military judge to “exercise reasonable control over the mode and order of interrogating witnesses____” Mil.R.Evid. 611(c) permits use of leading questions on direct examination if the witness is “a hostile witness or a witness identified with an adverse party.” The question whether to permit “leading questions is discretionary with the military judge.” Drafters’ Analysis of Mil.R.Evid. 611(c), Manual, supra at A22-44 (Change 2). See *264 Nutter v. United States, 412 F.2d 178, 183 (9th Cir.1969) (“The decision to declare a witness hostile ... is within the court’s discretion and will be grounds for reversal only-on showing an abuse of that discretion.”), cert. denied, 397 U.S. 927 , 90 S.Ct. 935 , 25 L.Ed.2d 107 (1970).

We hold that the military judge did not become an advocate for the Government or abuse his discretion by refusing to declare Ms. Pessina a hostile witness. It was obvious that she felt great affection for appellant and had attempted to protect him. She answered without resistance or evasion even when questioned about the intimate details of her relationship with appellant, her use of cocaine, her marriage, and her knowledge of appellant’s criminal conduct.

J. The military judge called the defense theory of the case “ridiculous” in the presence of the court members and threatened to deal with defense counsel when he challenged the ruling.

70. Appellant contends that he was denied a fair trial because the military judge characterized the defense theory as “ridiculous” in the presence of the court members. We hold that appellant was not prejudiced by the military judge’s remarks. ¡:

It was obvious to the court members, as indicated by the panel president’s question, that the controversy was not about the facts of the case or the defense theory, but rather about whether defense counsel should be allowed to ask leading questions on the ground that Ms. Pessina was hostile. Our review of the military judge’s remarks, in the context in which they were made, satisfies us that the panel members understood that only defense counsel’s assertion that Ms. Pessina was hostile, and not the overall defense theory, was covered by the judge’s comment.

We also hold that the military judge did not show bias against appellant. The military judge’s remarks clearly were directed at defense counsel’s refusal to accept his ruling on leading questions and counsel’s continued challenging of the military judge in the presence of the court members. While the remarks may have been intemperate, they were not disqualifying. See Liteky v. United States, — U.S. at-, 114 S.Ct. at 1157 (“expressions of impatience, dissatisfaction, annoyance, and even anger” not sufficient to establish “bias or partiality”; “even a stern and short-tempered judge’s ordinary efforts at courtroom administration” do not establish bias or partiality.).

K. The military judge displayed his dislike for defense counsel throughout the trial by making critical comments.

71. Virtually all of the comments complained of have been discussed with respect to Issue IV, subissue E(l), 41 MJ at 255 ¶¶ 54-56 and Issue IV, subissues F and G, 41 MJ at 258 ¶¶ 57, 58. In addition, appellant asserts that the military judge implied “that defense counsel was a liar for suggesting that Mr. Sharbino” lost consciousness “instantly after being shot.” Final Brief at 145.

This assertion is unsupported by the record. The discussion referenced by appellant occurred just prior to sentencing arguments and pertained to items proposed by the defense to be listed by the military judge as mitigating factors. After individual defense counsel requested a ruling on the proposed mitigating factors prior to making his argument, the military judge said, ‘Well, I have some difficulty with number eighteen,” which recited that “[t]he murder victims experienced minimal pain and suffering.” Defense counsel argued that the forensic pathologist had testified that “any kind of major brain trauma ... would have resulted in immediate loss of consciousness.” After trial counsel argued that “[w]e don’t know what these people went through,” the military judge agreed with trial counsel, but told defense counsel, “Now, you can certainly argue whatever you want to argue in that regard to the court members, but I’m not going to list that as a mitigating factor.” In our view, the military judge’s ruling and comment fall far short of implying that defense counsel was lying.

ISSUE V

WHETHER APPELLANT WAS DENIED A FAIR TRIAL DUE TO NU *265 MEROUS ACTS OF PROSECUTORIAL AND LAW ENFORCEMENT MISCONDUCT, WHICH INCLUDE HIDING EXCULPATORY EVIDENCE, DESTROYING POLICE NOTES CONCERNING 16 MINUTES OF APPELLANT’S CONFESSION, LYING ABOUT MS. PESSI-NA’S INVOLVEMENT IN THE CRIMES TO THE JUDGE AND PANEL, AND USE OF A SURPRISE WITNESS WITHOUT REASONABLE NOTICE AND WITHOUT PROVIDING APPROPRIATE DISCOVERY.

72. Appellant asserts that exculpatory evidence, in the form of tests of his blood for alcohol and drug abuse, were illegally hidden from the defense. His assertion is unsupported by the evidence. Although blood, saliva, and hair samples were taken from him, they were not tested for alcohol or drugs because neither side requested such tests. The evidence which appellant asserts was hidden from him did not exist. Govt.App. Ex. 6, ¶ 4.

Appellant asserts that SA Schnayerson’s interview notes for a 16-minute period preceding appellant’s confession were concealed from him. He claims that the last entry in SA Schnayerson’s notes was made at 7:56 p.m. and Investigator Wedge’s investigative report reflects that appellant confessed at 8:12 p.m. Based on this evidence he speculates that there must have been additional entries which were concealed because they reflected coercive interview tactics. Final Brief at 171-72. In a post-trial affidavit SA Schnayerson asserts that there are no missing notes. Also, Government Appellate Exhibit 7 (Vol. VII, Appellate Papers) includes a page of SA Schnayerson’s notes with entries at 7:58 and 8:05 and noting the confession at 8:12. Furthermore, Investigator Wedge’s report reflects that at approximately 8:00 p.m. he was advised that the murder weapon was found at Ms. Pessina’s residence, and he interrupted SA Schnayerson to inform him of the results of the search in appellant’s presence. This Court is unwilling to assume sinister motives based on this evidence, especially when the defense chose not to litigate the voluntariness of appellant’s confession at trial.

73. Appellant also asserts that Investigator Wedge’s handwritten notes, made while observing the interrogation of appellant by SA Schnayerson, “have vanished without a trace.” Final Brief at 170. This assertion is unsupported by the record. Investigator Wedge’s investigative report recites that his interview notes were dictated onto mierotape and transcribed. He also recited that his handwritten notes were marked as evidence and secured. At an Article 39(a) session on March 17, 1989, trial counsel represented that he had provided the defense with a “four-inch-thick packet” from the Killeen Police Department, as well as reports from the FBI and the Texas Rangers. Trial counsel recited, “I just don’t know of anything, out there, possibly, that they couldn’t have.” The military judge specifically asked about investigator’s notes, and trial counsel responded:

It had everything. Yes, it had the notes— written — and, typed reports____ If there is something else, out there — if the defense is made aware — or, if something comes up — I’ll be happy to issue a subpoena.

At no time during subsequent Article 39(a) sessions or during the trial on the merits did the defense complain about the absence of Investigator Wedge’s handwritten interview notes, even though they were specifically mentioned in his typed report of investigation. During Investigator Wedge’s testimony on the merits, defense counsel did not cross-examine him about the allegedly missing notes. Based on the record before us, we will not presume noncompliance with the discovery request or that the notes were hidden or destroyed.

Appellant’s assertion that the prosecution concealed evidence of Ms. Pessina’s involvement in the crimes is unsupported by the record. Ms. Pessina’s personal life, marital status, relationship with appellant, drug use, and involvement in the crimes were fully explored on the record. There is not one iota of evidence that the prosecution withheld information from the defense about Ms. Pessina.

*266 Appellant’s assertions concerning Private Brown’s testimony as a “surprise witness” are without merit for the reasons set out in our disposition of Issue IV, subissue H, 41 MJ at 259 ¶¶ 59-60.

ISSUE VI

WHETHER MILITARY DUE PROCESS AND ARTICLES 66 AND 67, UCMJ, 10 USC §§ 866 , 867 REQUIRE THIS COURT AND THE COURTS OF MILITARY REVIEW TO REVIEW ALL CAPITAL CASES IN FAVOREM VITAE SINCE CAPITAL LITIGATION IS IN ITS INFANCY IN THE MILITARY JUSTICE SYSTEM AND TRIAL AND APPELLATE DEFENSE COUNSEL LACK THE TRAINING AND EXPERIENCE NECESSARY TO PRESERVE THE RECORD ON ALL ISSUES AND PREVENT APPLICATION OF WAIVER.

74. Appellant requests this Court to refrain from applying “waiver to any issues not technically preserved by trial defense counsel”; specify any meritorious issues not raised by appellate defense counsel; and “order that a death sentence may not be affirmed unless the Courts of Military Review and this Court are satisfied beyond a reasonable doubt that the findings and sentence are proper.”' Final Brief at 197.

As conceded by appellant, this in favorem vitae (“in favor of life”) approach to appellate review of capital cases has been rejected by the Supreme Court. See Smith v. Murray, 477 U.S. 527 , 106 S.Ct. 2661 , 91 L.Ed.2d 434 (1986). To the extent that appellant asks us to suspend the waiver provisions of Mil.R.Evid. 103 and the scope of appellate review under Articles 66 and 67, UCMJ, 10 USC §§ 866 and 867 (1989), respectively, we decline to do so. Those powers are reserved to Congress and the President.

Furthermore, we are not persuaded that such a broad scope of de novo review is warranted. While the military counsel in this case had limited experience in capital cases, most of the issues in this case dealing with pretrial discovery, voir dire, selection of court members, admissibility of evidence, and the like are not peculiar to capital eases. The broad power of plenary review exercised by Courts of Military Review, as well as this Court’s authority to specify issues; order a hearing under United States v. DuBay, 17 USCMA 147 , 37 CMR 411 (1967); apply the “plain error” doctrine; and find counsel ineffective for egregious errors, provide ample protection for the accused in this case.

ISSUES VII AND VIII

WHETHER THE GOVERNMENT’S FAILURE TO GIVE NOTICE OF THE AGGRAVATING CIRCUMSTANCES THEY INTENDED TO PROVE, OTHER THAN THOSE SPECIFICALLY LISTED IN RCM 1004, VIOLATED THE FIFTH, SIXTH, AND EIGHTH AMENDMENTS, AND ARTICLE 55, UCMJ.

WHETHER THE MILITARY JUDGE ERRED IN INSTRUCTING APPELLANT’S SENTENCING PANEL THAT THEY COULD CONSIDER AGGRAVATING CIRCUMSTANCES OF WHICH THE DEFENSE HAD BEEN GIVEN NO NOTICE PRIOR TO TRIAL, IN VIOLATION OF THE FIFTH, SIXTH, AND EIGHTH AMENDMENTS, AND ARTICLE 55, UCMJ.

75. Appellant contends that because the prosecution failed to give pretrial notice of evidence in aggravation, “[t]he unforeseen ambush of additional aggravating factors had an overwhelming prejudicial effect.” Final Brief at 205. We hold that appellant’s constitutional rights under the Fifth, Sixth, and Eighth Amendments as well as his rights under Article 55, UCMJ, 10 USC § 855 , were not violated.

Surprises should be avoided in capital sentencing. See Smith v. Estelle, 602 F.2d 694, 699-703 , aff'd, 451 U.S. 454 , 101 S.Ct. 1866 , 68 L.Ed.2d 359 (1981). In a capital case, RCM 1004(b)(1) requires the prosecution to give the defense written notice of the “aggravating factors” set out in (c) that it intends to prove. RCM 1004(b) specifically provides that the capital sentencing procedures are in *267 addition to those in RCM 1001. RCM 1001(b)(4) allows the prosecution to present evidence in aggravation. Although RCM 1001(b)(4) has no specific notice requirement, RCM 701(a)(5) requires disclosure of sentencing evidence upon request of the defense. Compliance with these rules will eliminate surprises during the sentencing hearing.

Prior to appellant’s trial the prosecution complied with RCM 1004(b)(1) by serving the defense with written notice of the Government’s intent to prove six aggravating factors. Appellant does not contest the prosecution’s compliance with RCM 1004(b)(1), but asserts that he was “ambush[ed]” by proof of the following aggravating circumstances (Final Brief at 205) not included in the prosecution’s written notice: (1) appellant’s records of nonjudicial punishment; (2) Captain Bush’s testimony regarding appellant’s lack of rehabilitative potential; (3) “the nature of the weapon used” in “the offenses and the fact that” appellant “fired the weapon during the course of each offense”; (4) the fact that appellant “killed his victims after they had fully cooperated”; (5) “the nature and extent of the injuries suffered by the victims”; (6) appellant’s “lack of any remorse”; and (7) appellant’s statements to PVT Brown “that the first killing was to see if he could get away with it and, after that, it was for fun.” Final Brief at 203.

76. The record does not support appellant’s claim of a trial by ambush. Prior to trial, defense counsel requested disclosure of sentencing evidence. When compliance with discovery requests was discussed at an Article 39(a) session prior to the trial on the merits, defense counsel made no complaint. At an Article 39(a) session prior to the sentencing hearing, trial counsel listed the evidence he intended to introduce, which included appellant’s service records, his records of nonjudicial punishment, and CPT Bush’s testimony. Although defense lodged several objections, none were based on lack of pretrial disclosure.

With respect to the testimony of Private Brown, we resolved the issue of adequate notice against appellant in our disposition of Issue IV, subissue H, 41 MJ at 259 ¶ 60. On the basis of the record before us, we hold that appellant’s claim of inadequate notice is not supported by the evidence.

ISSUE IX

WHETHER APPELLANT’S DEATH SENTENCE VIOLATES THE FIFTH, SIXTH, AND EIGHTH AMENDMENTS AND ARTICLE 55, UCMJ, IN THAT APPELLANT WAS GIVEN THE DEATH PENALTY BASED UPON A CONGLOMERATION OF AGGRAVATING FACTORS WHICH INEXTRICABLY DOUBLE COUNTED APPELLANT’S CRIMES.

77. Appellant’s court-martial unanimously found, beyond a reasonable doubt, that the following aggravating factors had been proven: (1) “The premeditated murder of Bobby Gene Sharbino was committed while” appellant “was engaged in the commission or attempted commission of a robbery” (RCM 1004(c)(7)(B)); (2) appellant “was the actual perpetrator of the killing” in the felony murder of Christopher Fay (RCM 1004(c)(8)); and (3) “[h]aving been found guilty of premeditated murder of Bobby Gene Sharbino,” appellant was also convicted “of another violation of Article 118, UCMJ, in the same case” (RCM 1004(c)(7)(J)). These findings as to aggravating factors were consistent with the court-martial’s unanimous findings of guilty as to the premeditated murder of Bobby Gene Sharbino (specification 2 of Charge I); the felony murder of Bobby Gene Sharbino (specification 4 of Charge I), which was later dismissed as multiplicious; and the felony murder of Christopher Fay (specification 3 of Charge I).

Appellant contends that there was a double counting of aggravating factors, since the same two murders constituting the first two aggravating factors were used to constitute the third. See United States v. Curtis (Curtis I), 32 MJ 252, 269 (CMA), cert. denied, 502 U.S. 952 , 112 S.Ct. 406 , 116 L.Ed.2d 354 (1991). He argues that the double counting was prejudicial because the court members sentenced him to death based on three aggravating factors, when there were only two. As we noted in our second *268 consideration of United States v. Curtis (Curtis II), 33 MJ 101, 108 (CMA 1991), cert. denied, 502 U.S. 1097 , 112 S.Ct. 1177 , 117 L.Ed.2d 421 (1992), “we doubt that the President intended for commission of a double murder to constitute two ‘aggravating factors,’ rather than only one.”

In Curtis II, we remanded the case to the Court of Military Review to determine “[w]hether the number of ‘aggravating factors’ in th[at] case had any effect on the sentence.” 33 MJ at 108. We need not remand appellant’s case, however, because the Court of Military Review has already found, and we agree, “that the number of aggravating factors” did not affect the decision of the court-martial “to impose the death sentence.” 34 MJ at 969.

78. Furthermore, unlike Curtis II, there was no double counting in appellant’s case. In Curtis II, the following aggravating factors were found:

1) “the premeditated murder of’ Mrs. Lotz “was committed while [Curtis] was engaged in the commission of a burglary”; 2) “with regard to the premeditated murder of’ Mrs. Lotz, Curtis had “been found guilty in the same case of another murder” — that of

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