Petition for Writ of Certiorari — Andrew P. Witt, Petitioner v. United States
Supreme Court briefOct 31, 2023
Ask Donna
What actually matters in this document.
Text
No. ______
IN THE
Supreme Court of the United States
__________
ANDREW P. WITT,
Petitioner,
v.
UNITED STATES,
Respondent.
__________
On Petition for a Writ of Certiorari to the
United States Court of Appeals for the
Armed Forces
__________
PETITION APPENDIX
__________
HEATHER M. CAINE
Counsel of Record
MEGAN P. MARINOS
United States Air Force
Appellate Defense Division
1500 West Perimeter Road
Suite 1100
Joint Base Andrews, MD 20762
(240) 612-4770
heather.caine.1@us.af.mil
Counsel for Petitioner
November 2, 2023
TABLE OF APPENDICES
CAAF Opinion, United States v. Witt,
No. 22-0090 (June 5, 2023) ....................................... 1a
AFCCA Opinion, United States v. Witt,
No. ACM 36785 (reh) (November 19, 2021) ........... 21a
CAAF Opinion, United States v. Witt,
No. 15-0260 (July 19, 2016) .................................. 156a
AFCCA Opinion, United States v. Witt,
No. ACM 36785 (recon) (June 30, 2014) .............. 167a
AFCCA Opinion, United States v. Witt,
No. ACM 36785 (August 9, 2013) ......................... 409a
1a
This opinion is subject to revision before publication.
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Andrew P. WITT, Senior Airman
United States Air Force, Appellant
No. 22-0090
Crim. App. No. 36785
Argued December 6, 2022—Decided June 5, 2023
Military Judge: Mark A. Bridges
For Appellant: Major Jenna M. Arroyo (argued);
Major Kasey W. Hawkins and Mark C. Bruegger, Esq.
(on brief).
For Appellee: Major Morgan R. Christie (argued);
Colonel Naomi P. Dennis, Lieutenant Colonel Thomas
J. Alford, and Mary Ellen Payne, Esq. (on brief);
Lieutenant Colonel Amanda L. K. Linares, Lieutenant
Colonel Matthew J. Neil, and Major Zachary T. West.
Judge SPARKS delivered the opinion of the Court, in
which Judge MAGGS and Senior Judge CRAWFORD
joined. Judge HARDY filed a separate opinion
concurring in the judgment. Chief Judge OHLSON
filed a separate dissenting opinion.
_______________
2a
Judge SPARKS delivered the opinion of the Court.
In 2005, a general court-martial consisting of
officer members convicted Senior Airman Andrew P.
Witt (Appellant), contrary to his pleas, of one charge
and two specifications of premeditated murder in
violation of Article 118, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. § 918 (2000); and one
charge and specification of attempted premeditated
murder in violation of Article 80, UCMJ, 10 U.S.C. §
880 (2000). The panel sentenced Appellant to death.
On appeal, the United States Air Force Court of
Criminal Appeals affirmed the findings, but set aside
the sentence and ordered a rehearing, after finding
that Appellant had received ineffective assistance of
counsel due to trial defense counsel’s failure to
investigate certain mitigating evidence. United States
v. Witt, 72 M.J. 727, 758-66 (A.F. Ct. Crim. App. 2013).
On reconsideration, the lower court held that the trial
defense counsel’s defective performance did not result
in prejudice and affirmed the approved findings and
sentence. United States v. Witt, 73 M.J. 738, 824-25
(A.F. Ct. Crim. App. 2014). Relevant to the current
appeal, this Court vacated the lower court’s second
opinion and returned the case for a sentence rehearing
in accordance with the lower court’s original opinion.
United States v. Witt, 75 M.J. 380, 385 (C.A.A.F.
2016).
On rehearing, Appellant was sentenced to
confinement for life without the possibility of parole,
a reduction in grade to E-1, forfeiture of all pay and
allowances, a reprimand, and a dishonorable
discharge. In relevant part, on appeal to the lower
court, Appellant argued that trial counsel committed
prosecutorial misconduct during sentencing. United
3a
States v. Witt, No. ACM 36785 (reh), 2021 CCA LEXIS
625, at *131, 2021 WL 5411080, at *40 (A.F. Ct. Crim.
App. Nov. 19, 2021) (unpublished). The lower court
found error in some of the Government’s sentencing
arguments but ultimately found no prejudice. Id. at
*140-45, 2021 WL 5411080, at *43-44. The lower court
affirmed the findings and new sentence. Id. at *166,
2021 WL 5411080, at *50. We then granted review of
the following issue:
During sentencing proceedings the trial counsel
urged the panel members to consider how the
sentence they imposed would reflect on them
personally and professionally, and suggested
that the members would be responsible for any
harm Appellant committed in the future. Did
the trial counsel’s sentencing argument
constitute prosecutorial misconduct that
warrants relief?
United States v. Witt, 82 M.J. 424, 424-25 (C.A.A.F.
2022) (order granting review).
Appellant argues that the lower court erred when
it found that trial counsel’s improper argument did
not constitute prejudice. Brief for Appellant at 18,
United States v. Witt, No. 22-0090 (C.A.A.F. Aug. 5,
2022). We answer the granted issue in the negative
and affirm the decision below.
I. Background
The Underlying Offenses
The genesis of the instant case stems from the
murders of Senior Airman A.S. and his wife, J.S., and
the attempted murder of Senior Airman J.K. by
Appellant in 2004. Appellant and the couple were
friends until he attempted to kiss J.S. After being told
4a
by his wife about the attempted kiss, A.S. and his
friend J.K. called Appellant several times to confront
him about the attempted kiss, as well as to threaten
to tell his leadership about an alleged affair Appellant
was having with an officer’s wife. After the phone
calls, Appellant changed into his battle dress uniform,
drove to A.S.’s house where A.S., J.S., and J.K. were
located, and stabbed all three, making sure not to
“leave any evidence” or “witnesses.”
The Sentence Rehearing
At the rehearing on Appellant’s sentence in 2018,
trial counsel asked the panel variations of the
following: “[w]hat will you stand for”; “[w]here will you
draw the line”; “what risk will you accept on someone
else’s behalf”; and if the panel would not sentence
Appellant to death in this case, in what case would
they do so? Trial counsel made these types of
comments approximately seventy times while also
displaying PowerPoint slides which contained the
same questions. Additionally, throughout his
argument trial counsel unequivocally requested the
panel return a sentence of death.
Defense counsel objected only twice during
arguments. The first objection was made near the end
of trial counsel’s two-hour argument, when defense
counsel objected to trial counsel comparing
Appellant’s prison conditions to the surviving victim’s
future life.1 The second objection was made almost
immediately after the first, with defense counsel
objecting to trial counsel’s asking the panel “what risk
will you accept on someone else’s behalf?” The military
judge overruled both objections. The panel deliberated
1 The content of this comment is not before us on appeal.
5a
for approximately eight hours before returning a
sentence of life without the possibility of parole.
II. Discussion
Appellant argues that trial counsel acted
improperly when he asked the panel questions such
as (1) “what will you stand for”); (2) “[w]here will you
draw the line”); and “[w]hat risk will you accept on
someone else’s behalf.” Appellant’s theory is that
these comments asked the panel members to consider
what others would think of them based on their
sentencing decision, which is improper under this
Court’s precedent in United States v. Norwood, 81
M.J. 12, 19 (C.A.A.F. 2021).
The Government’s principal response is that trial
counsel was not asking the panel members to consider
how others would perceive them but instead asking
them to act as the conscience of the community in
making their decision. The Government asserts that
the United States Courts of Appeals for the Fifth,
Sixth, Eighth, Ninth, and Eleventh Circuits have all
held that arguments appealing to the jury to act as the
conscience of the community are permissible so long
as the comments are not intended to inflame the
passions of the jury.2
“Improper argument involves a question of law
that this Court reviews de novo.” United States v.
Frey, 73 M.J. 245, 248 (C.A.A.F. 2014). “The legal test
for improper argument is whether the argument was
2 See United States v. Ebron, 683 F.3d 105, 146 (5th Cir. 2012);
United States v. Alloway, 397 F.2d 105, 113 (6th Cir. 1968);
United States v. Johnson, 968 F.2d 768, 770 (8th Cir. 1992);
United States v. Koon, 34 F.3d 1416, 1444 (9th Cir. 1994), aff’d
in part and rev’d in part, 518 U.S. 81 (1996); United States v.
Bailey, 123 F.3d 1381, 1401 (11th Cir. 1997).
6a
erroneous and whether it materially prejudiced the
substantial rights of the accused.” Id. (internal
quotation marks omitted) (citation omitted). Because
defense counsel failed to object to the arguments at
the time of trial, we review for plain error.3 United
States v. Rodriguez, 60 M.J. 87, 88 (C.A.A.F. 2004).
The standard for plain error review requires that: “(1)
an error was committed; (2) the error was plain, or
clear, or obvious; and (3) the error resulted in material
prejudice to substantial rights.” United States v.
Maynard, 66 M.J. 242, 244 (C.A.A.F. 2008) (internal
quotation marks omitted) (citation omitted). The
burden lies with Appellant to establish plain error. Id.
Even were we to conclude that prosecutorial
misconduct occurred, relief is merited only if that
misconduct “actually impacted on a substantial right
of an accused (i.e., resulted in prejudice).” United
States v. Fletcher, 62 M.J. 175, 178 (C.A.A.F. 2005)
(internal quotation marks omitted) (citation omitted).
“[P]rosecutorial misconduct by a trial counsel will
require reversal when the trial counsel's comments,
taken as a whole, were so damaging that we cannot be
confident that the members convicted the appellant on
the basis of the evidence alone.” United States v.
3 Appellant concedes in his brief that trial defense counsel never
objected to trial counsel’s statements regarding the members’
personal and professional reputations. But Appellant argues
trial defense counsel did object to trial counsel’s statements
concerning the panel members’ responsibility for future harm.
We disagree. Trial defense counsel’s only objection was:
“Improper Argument. There is no evidence of future
dangerousness in this case. It is not an aggravator.” This
objection concerns only the sufficiency of the evidence to support
trial counsel’s argument. The objection does not concern the
general appropriateness of the argument, which is the subject of
the assigned issue.
7a
Hornback, 73 M.J. 155, 160 (C.A.A.F. 2014) (internal
quotation marks omitted) (citation omitted). “Where
improper argument occurs during the sentencing
portion of the trial, we determine whether or not we
can be confident that [the appellant] was sentenced on
the basis of the evidence alone.” Frey, 73 M.J. at 248
(alteration in original) (internal quotations omitted)
(citation omitted).
Here, we need only address the third element of
plain error because, even assuming error, we see no
evidence that the trial counsel’s arguments resulted
in material prejudice to any of Appellant’s substantial
rights. In assessing prejudice in cases of prosecutorial
misconduct, we have looked at three factors: “(1) the
severity of the misconduct, (2) the measures adopted
to cure the misconduct, and (3) the weight of the
evidence supporting the conviction.” Fletcher, 62 M.J.
at 184. In Fletcher we made no determinations
regarding how much weight to give each factor.
However, in United States v. Halpin, we found that
the third factor so overwhelmingly favored the
government it was sufficient to establish lack of
prejudice. 71 M.J. 477, 480 (C.A.A.F. 2013).
Here, as in Halpin, we find the weight of the
evidence supporting the conviction strong enough to
establish a lack of prejudice in and of itself. Given the
charges for which Appellant was convicted there were
three sentencing options for the panel to choose from:
(1) death, (2) life without the option of parole, and (3)
life with the option of parole. Article § 118, UCMJ, 10
U.S.C. § 918 (2000); Manual for Courts-Martial,
United States pt. IV, para.43.e.(1) (2000 ed.) (MCM).
The military judge instructed the panel prior to their
deliberation that “a death sentence may not be
adjudged unless all of the court members find, beyond
8a
a reasonable doubt, that one or more aggravating
factors existed,” and “may not adjudge a sentence of
death unless [the panel] unanimously find[s] that any
and all extenuating and mitigating circumstances are
substantially outweighed by any aggravating
circumstances.”
The Government contends that a sentence of life
without the possibility of parole at a minimum was a
“foregone conclusion,” and thus regardless of any
improper argument, the panel would have reached the
same result. Appellant argues, however, that the
panel’s imposition of a sentence of life without parole
was not supported when taking into consideration the
many mitigating factors he presented,4 his
rehabilitative potential, and defense counsel’s request
that the panel choose the sentence offering Appellant
the possibility of redemption—in addition to the fact
that the option of life with parole was available to the
panel.
We reject both arguments. It is unquestionable
that throughout his argument, trial counsel’s singular
and unambiguous goal was to obtain a sentence of
death. Additionally, the evidence of the crimes for
which Appellant was convicted supported a death
sentence. Appellant confessed to a set of incredibly
vicious and deliberate stabbings resulting in the death
of a young married couple and permanent injury to the
third victim. Yet despite trial counsel’s request and
Appellant listed twenty-six mitigating factors which include
such things as Appellant’s lack of prior criminal history, positive
enlisted performance reports, his upbringing (which was
influenced by mental health disorders in relatives and by
relatives’ addictive disorders), his schizotypal personality
disorder, and his remorse for his crimes.
4
9a
the nature of Appellant’s crimes, the panel
unanimously sentenced Appellant to life without
parole, suggesting that they believed the aggravating
circumstances were substantially outweighed by the
extenuating and mitigating circumstances. True, we
can never know what exactly is in the mind of the
members, yet here it stands to reason that they
applied their own critical analysis to this case given
their rejection of the death sentence despite trial
counsel’s comments. Thus, we find that Appellant has
suffered no prejudice.
III. Conclusion
The decision of the United States Air Force Court
of Criminal Appeals is affirmed.
Judge HARDY, concurring in the judgment.
I concur with the Court’s ultimate conclusion that
trial counsel’s sentencing argument did not result in
material prejudice to any of Appellant’s substantial
rights. The majority arrives at that conclusion by
faithfully applying this Court’s precedents assessing
whether trial counsel’s improper comments at
sentencing prejudiced Appellant. I write separately to
express my view that those precedents are too
permissive of improper argument at sentencing. In an
appropriate case, I believe that we should reevaluate
our approach to assessing prejudice from such errors.
The Court first developed the factors for assessing
prejudice used today in United States v. Fletcher, a
case addressing improper argument at the findings
stage. 62 M.J. 175, 184 (C.A.A.F. 2005). In United
States v. Erickson, this Court repurposed the Fletcher
factors to assess prejudice from improper sentencing
argument. 65 M.J. 221, 224 (C.A.A.F. 2007). As I
believe this case illustrates, the Fletcher factors are ill
10a
suited for use at sentencing because they do not orient
us toward our stated goal of determining “‘whether or
not we can be confident that [the appellant] was
sentenced on the basis of the evidence alone.’ ” United
States v. Witt, __ M.J. __, __ (6) (C.A.A.F. 2023)
(alteration in original) (quoting United States v. Frey,
73 M.J. 245, 248 (C.A.A.F. 2014)).
As modified for the sentencing context, the
Fletcher factors instruct a reviewing court to weigh
three considerations: (1) the severity of the
misconduct; (2) the curative measures taken, if any;
and (3) the weight of the evidence supporting the
adjudged sentence. Erickson, 65 M.J. at 224-26. In the
past, this Court has often placed significant weight on
the third Fletcher factor—the weight of the evidence
supporting the sentence. For example, in Erickson, we
found no prejudice in a case where trial counsel erred
by comparing the appellant to Adolph Hitler, Saddam
Hussein, and Osama bin Laden and describing him as
a demon belonging in hell. Id. at 222, 226. Noting that
the appellant’s criminal acts were “particularly
egregious,” the Court held that the evidence
supported the conclusion that the appellant would
have received the same sentence irrespective of trial
counsel’s improper comments. Id. at 225-26.
Similarly, in United States v. Halpin, the appellant
argued that trial counsel committed reversible error
when he suggested during his sentencing argument
that the appellant wanted his wife to die even though
this assertion—as well as several others made by trial
counsel—was not supported by any evidence in the
record. 71 M.J. 477, 481-82 (C.A.A.F. 2013) (Erdmann,
J., with whom Effron, S.J., joined, dissenting)
(describing the alleged errors). Jumping straight to
prejudice and the Fletcher factors, the Court
11a
concluded that “the third Fletcher factor weighs so
heavily in favor of the Government that we are
confident that Appellant was sentenced on the basis
of the evidence alone.” Id. at 480.
Finally, in Frey, the Court agreed with the lower
court that trial counsel erred when he urged the panel
members to apply common sense and their knowledge
of the “ways of the world”—rather than any evidence
in the record—to sentence the accused based on a risk
of recidivism through serial molestation. 73 M.J. at
249. Applying the Fletcher factors, the Court found
that “although the first two factors favor Appellant,
the weight of the evidence supporting the sentence
adjudged is such that we can be ‘confident that
Appellant was sentenced on the basis of the evidence
alone.’” Id. (quoting Halpin, 71 M.J. at 480).
In my view, this Court’s heavy reliance on the third
Fletcher factor is problematic. Weighing the evidence
supporting a conviction makes sense when there has
been improper argument during the findings stage
because there may be overwhelming evidence of guilt
beyond a reasonable doubt despite the improper
argument. But as the Court recently recognized in
United States v. Edwards—a case dealing with the
similar problem of erroneously admitted sentencing
materials—prejudice tests developed in the findings
context are not always well suited to sentencing. 82
M.J. 239, 247 (C.A.A.F. 2022). An appellate court faces
a more challenging task when asked to determine
whether an error had a substantial influence on the
sentence (where there is a broad spectrum of lawful
punishments), as opposed to the finding (where there
is only a binary choice between guilty and not guilty).
Id.
Sentencing
requires
balancing
multiple
considerations to craft a punishment that best serves
12a
the varied purposes of sentencing. See Rule for
Courts-Martial (R.C.M.) 1002(f) (2019 ed.) (explaining
that in imposing a sentence, the court-martial shall
consider, inter alia, the circumstances of the offense
and the history of the accused; the impact of the
offense on others and on the command of the accused;
rehabilitation; deterrence; and the protection of
others). The Fletcher factors do not account for these
nuances, especially when significant weight is placed
on the third factor.
In applying the Fletcher factors to sentencing
errors, the Court seems to be asking whether the
adjudged sentence was appropriate for the committed
offense despite the improper argument. But this is a
different question than the one we purport to be
answering: whether we are confident that Appellant
was sentenced based on the evidence alone. And of
course, this Court—unlike the service courts—has no
authority to engage in sentence appropriateness. See
United States v. Fee, 50 M.J. 290, 291 (C.A.A.F. 1999)
(“Congress has vested the responsibility for
determining sentence appropriateness . . . in the
Court[s] of Criminal Appeals, not in this Court.”).
Employing a test that focuses on whether the evidence
supports the sentence, despite the presence of error,
arguably transcends those jurisdictional limitations.
This Court’s precedents emphasizing the third
Fletcher factor only exacerbate that concern.
In the case at hand, I believe that trial counsel’s
comments amounted to obvious error, for the reasons
explained by Chief Judge Ohlson. Witt, __ M.J. at __
(3-4) (Ohlson, C.J., dissenting). I add only that I am
dubious of the Government’s defense of these remarks
as permissible appeals for the panel to speak as the
“conscience of the community.” Although the
13a
Government cites various cases from the federal
courts of appeals in support of this argument,5 I do not
find those cases—which arise solely from the civilian
context—to be persuasive in the military context.
As this Court recently recognized in United States
v. Norwood, trial counsel commits plain error by
pressuring panel members to sentence the defendant
based on how their fellow servicemembers will view
the sentence they adjudge. 81 M.J. 12, 21 (C.A.A.F.
2021). This result makes sense because this type of
sentencing argument invokes the specter of unlawful
command influence when presented in a courtmartial. In this case, trial counsel asked the panel
members, “What will your sentence stand for? What
will your sentence say?” Even if these comments can
be characterized as asking the panel to speak as the
5 See, e.g., United States v. Ebron, 683 F.3d 105, 145-46 (5th Cir.
2012) (deeming the prosecution’s question, “ ‘[w]hat message
would a life sentence send to [the defendant’s] crew and the
prison community’ ” a permissible appeal to act as the conscience
of the community where the defendant, already imprisoned for a
separate murder, killed a fellow inmate); United States v.
Alloway, 397 F.2d 105, 113 (6th Cir. 1968) (finding the
prosecution’s request that the jury “ ‘speak out for the
community’ ” to be a permissible “conscience of the community”
argument); United States v. Shirley, 435 F.2d 1076, 1079 (7th
Cir. 1970) (finding the closing argument not improper where the
prosecution noted a rise in car thefts and increasing concern
surrounding car thefts); United States v. Bailey, 123 F.3d 1381,
1401 (11th Cir. 1997) (finding the closing argument permissible
where the prosecution asked the jurors to be people of dedication,
judgment, integrity, and courage in rendering a decision); but see
United States v. Johnson, 968 F.2d 768, 770-72 (8th Cir. 1992)
(determining that the prosecution’s request for the jury to “
‘stand as a bulwark against’ ” the continuation of the defendant’s
drug dealing was an inflammatory and improper appeal to be the
conscience of the community).
14a
conscience of the community, they also implicitly ask
panel members to consider how the adjudged sentence
will be perceived by their chain of command and
encourage them to impose a harsher sentence for the
sake of their own careers. These arguments have no
place in the military justice system.
Nevertheless, due to the particular facts of this
case, if we apply the Fletcher factors as our precedents
dictate, Appellant cannot prevail.6 Appellant
committed gruesome crimes, and the panel members
rejected the Government’s explicitly requested
sentence of death. In addition, rather than a broad
spectrum of lawful punishments, Appellant faced only
three possible sentences—death, life imprisonment
without the possibility of parole, or life imprisonment
with the possibility of parole. Article 118, UCMJ, 10
U.S.C. § 918 (2000); Manual for Courts-Martial,
United States pt. IV, para. 43.e.(1) (2000 ed.).
Considering all these factors, I agree that Appellant
has not shown a reasonable probability that but for
trial counsel’s error, his sentence would have been
different.
Chief Judge OHLSON, dissenting.
Overview
As the United States Air Force Court of Criminal
Appeals (CCA) stated in its opinion, the trial counsel
in this highly visible and emotionally charged murder
case asked the panel “members to consider how they
would be judged by others by virtue of the sentence
they mete[d] out.” United States v. Witt, No. ACM
6 Interestingly, when this Court recently found prejudice from
similar improper sentencing argument in Norwood, it cited but
did not expressly analyze the Fletcher factors. 81 M.J. at 19-21.
15a
36785 (reh), 2021 CCA LEXIS 625, at *141, 2021 WL
5411080, at *43 (A.F. Ct. Crim. App. Nov. 19, 2021)
(unpublished) (emphasis added). In a military
environment where the panel members could not only
face social opprobrium from their peers but also suffer
significant professional harm at the hands of their
superiors, this potently toxic argument irredeemably
poisoned the entire sentencing process. Because the
majority declines to order a new, untainted sentencing
proceeding, I respectfully dissent.
Instances of Prosecutorial Misconduct
As noted by the CCA, during his presentencing
argument the “[t]rial counsel described the members’
obligations in notably personal terms, such as when
he asked the members, ‘From E-6 to O-6, where else
in your career will you have the opportunity to draw
the line as an individual, and as an Airman on what
you will allow?’” Id. at *133-34, 2021 WL 5411080, at
*40. Trial counsel also argued as follows:
Members, make no mistake about it; your
sentence will send a message. It will send a
message about what you as an individual, and
what you as an Airman will accept. It will—it
will tell everyone where you draw the line, and
what you will stand for. It will.7
Trial counsel repeated this sentiment in various ways
more than seventy times.
I am nonplussed by the Government’s assertion that these
arguments by trial counsel were merely calls for the panel
members to act as the proverbial conscience of the community
when deciding what sentence to impose. As can be seen, the plain
language of the trial counsel’s statements refutes that claim.
7
16a
As if this improper line of sentencing argument
were not egregious enough, the trial counsel also
essentially told the panel members that they would be
accepting personal responsibility for any future
victims of Appellant if they failed to sentence him in
accordance with the Government’s wishes. As one
example, trial counsel’s sentencing argument
contained the following line: “What risk will you
accept on another family’s behalf?” As the CCA
correctly concluded: “While Appellant’s future risk of
misconduct . . . was an appropriate consideration in
fashioning Appellant’s sentence, the suggestion that
the members would be personally responsible for any
such misconduct was not.” Id. at *142, 2021 WL
5411080, at *43.
As can be seen, trial counsel engaged in flagrant
and egregious improper argument. And as
demonstrated below, I strongly believe that the
majority’s prejudice analysis is fundamentally flawed.
The Fletcher Factors
In seeking to assess the prejudicial effect of the
trial counsel’s grossly inappropriate arguments, the
majority relies on the factors derived from United
States v. Fletcher, 62 M.J. 175, 184-85 (C.A.A.F. 2005).
These factors include the severity of the misconduct,
the curative measures adopted, and the weight of the
evidence supporting the sentence. However, in
concluding that under Fletcher Appellant suffered no
prejudice at the hands of the Government because of
the overwhelming weight of the sentencing evidence,
the majority fails to adequately take into account
three essential points.
First, this Court’s recent observation in United
States v. Edwards, 82 M.J. 239, 247 (C.A.A.F. 2022),
17a
about the prejudice test for improperly admitted
sentencing evidence holds equally true for the Fletcher
prejudice test applied to improper sentencing
arguments. Specifically, the Court stated:
Before analyzing the individual factors, it is
worth noting that this test—which the Court
has applied to errors that occur during both the
findings and sentencing phases of the courtmartial— is considerably more difficult to apply
to sentencing. Although there is a binary
decision to be made with respect to the findings
(guilty or not guilty), there is a broad spectrum
of lawful punishments that a panel might
adjudge. Complicating matters further, it is
much more difficult to compare the “strengths”
of the competing sentencing arguments than it
is to weigh evidence of guilt. Proof of guilt can
be overwhelming even without the erroneously
admitted evidence, but there is no analogous
analysis for determining the appropriate
sentence. It is thus harder for the Government
to meet its burden of showing that a sentencing
error did not have a substantial influence on a
sentence than it is to show that an error did not
have a substantial influence on the findings.
Id.
Second, in a case such as this one, the severity of
the misconduct by the government—as captured by
the initial Fletcher factor—may be so pernicious and
so pervasive and so ponderous that the scales of
justice can never be righted by the other Fletcher
factors.
And third, the multiple Fletcher factors can be
distilled to a single passage from that opinion:
18a
“[P]rosecutorial misconduct by a trial counsel will
require reversal when the trial counsel’s comments,
taken as a whole, were so damaging that we cannot be
confident that the members [sentenced] the appellant
on the basis of the evidence alone.” Fletcher, 62 M.J. at
184 (emphasis added).
Analysis
Trial counsel’s conduct—“[a]sking members to
consider how they would be judged by others by virtue
of the sentence they mete out”—grossly violated
fundamental principles of proper sentencing
argument. Witt, 2021 CCA LEXIS 625, at *141, 2021
WL 5411080, at *43; see also United States v. Baer, 53
M.J. 235, 237 (C.A.A.F. 2000) (Members must make
their sentencing decision based upon “cool, calm
consideration of the evidence and commonly accepted
principles of sentencing.” (citation omitted) (internal
quotation marks omitted)). A trial counsel’s
sentencing argument must be limited to “the evidence
of record, as well as all reasonable inferences fairly
derived from such evidence.” Baer, 53 M.J. at 237.
Sentencing must be about an accused and his crimes,
not about the panel members and their desire for
public approval and self-promotion. United States v.
Shamberger, 1 M.J. 377, 379 (C.M.A. 1976) (noting
that trial counsel are prohibited from encouraging
panel members “to cast aside the objective
impartiality demanded of [them] as . . . court
member[s] and judge the issue from the perspective of
personal interest” (citation omitted) (internal
quotation marks omitted)). Here, the trial counsel’s
repetitive and heavy-handed appeal to self-interest
contaminated the sentencing proceedings beyond
redemption.
19a
Indeed, it is instructive to ponder the following
point. During voir dire, if any of the panel members
had stated that—when deciding upon the severity of
the sentence to adjudge in this case—they would
consider the effect a particular sentence could have on
their personal reputation and military career, that
panel member would have been deemed manifestly
unqualified to sit on the court-martial. See United
States v. Youngblood, 47 M.J. 338, 342
(C.A.A.F. 1997) (holding “that it was ‘asking too
much’ of [two panel members] to expect them to
impartially adjudge an appropriate sentence without
regard for its potential impact on their careers”
(citations omitted)); see also United States v. Wood, 18
C.M.A. 291, 296, 40 C.M.R. 3, 8 (1969). And yet here—
without so much as a simple curative instruction—the
trial counsel essentially implored all of the panel
members to adopt that precise approach and the
majority fails to find sufficient prejudice to merit a
new sentencing proceeding. In the recent case of
United States v. Norwood, 81 M.J. 12, 21 (C.A.A.F.
2021), we held that it was reversible error for trial
counsel to “pressure[] the [panel] members to consider
how their fellow servicemembers would judge them
and the sentence they adjudged instead of the
evidence at hand.” I cannot see any meaningful
distinction between that case and the instant case,
and the majority opinion offers none. Thus, the result
in this case should be the same result as in Norwood—
setting aside the sentence and authorizing a sentence
rehearing.
Even in a case such as this one where the offenses
are so heinous and the outcome of the sentencing
proceeding is seemingly so obvious, the fundamental
fairness of the court-martial process matters. Deeply.
20a
And by discounting that principle in the instant case
by finding “no prejudice” when the Government has
employed such flagrant and noxious tactics, the
majority’s decision bodes ill for how trial counsel will
think they can conduct themselves in future
sentencing proceedings.
Conclusion
The prosecution in this court-martial repeatedly
exhorted the panel members to disregard the objective
impartiality demanded of them under the law by
urging them to factor into their sentencing decision
their own personal and professional interests. Such
misconduct by the Government irredeemably
contaminated the entirety of the sentencing process.
Because the majority has declined to take the
necessary step of ordering a new sentencing
proceeding in this case, I respectfully dissent.
21a
UNITED STATES AIR FORCE COURT OF
CRIMINAL APPEALS
________________________
No. ACM 36785 (reh)
________________________
UNITED STATES
Appellee
v.
Andrew P. WITT
Senior Airman (E-4), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial
Judiciary
Decided 19 November 2021
________________________
Military Judge: Mark A. Bridges, U.S. Army (sentence
rehearing).1
Approved
sentence:
Dishonorable
discharge,
confinement for life without eligibility for parole,
forfeiture of all pay and allowances, reduction to E-1,
and a reprimand. Sentence adjudged 6 July 2018 by
GCM convened at Robert Dole Federal Courthouse,
Kansas City, Kansas.
1 An Army military judge was detailed to this case due to the fact
the Chief Trial Judge of the Air Force had been detailed as trial
counsel at Appellant’s initial court-martial.
22a
For Appellant: Major Amanda E. Dermady, USAF;
Mark C. Bruegger, Esquire; Brian L. Mizer, Esquire.
For Appellee: Lieutenant Colonel Amanda L.K.
Linares, USAF; Lieutenant Colonel Matthew J. Neil,
USAF; Lieutenant Colonel Dayle P. Percle, USAF;
Major Alex B. Coberly, USAF; Major Kelsey B. Shust,
USAF; Major Zachary T. West, USAF; Mary Ellen
Payne, Esquire.
Before JOHNSON, KEY,
Appellate Military Judges.
and
RICHARDSON,
Senior Judge KEY delivered the opinion of the court,
in which Chief Judge JOHNSON and Judge
RICHARDSON joined.
________________________
This is an unpublished opinion and, as such,
does not serve as precedent under AFCCA Rule
of Practice and Procedure 30.4.
________________________
KEY, Senior Judge:
I. BACKGROUND
Seventeen years ago, in the early morning hours of
5 July 2004, Appellant murdered Senior Airman (SrA)
AS and SrA AS’s wife, Ms. JS, with a knife. Appellant
attempted to murder another Airman, SrA JK, who
survived despite suffering grievous wounds inflicted
at Appellant’s hands. Later that day, Appellant was
apprehended by military law enforcement, and he
subsequently confessed to the offenses. Appellant was
charged with two specifications of premeditated
murder and one specification of attempted
premeditated murder, in violation of Articles 118 and
80, Uniform Code of Military Justice (UCMJ), 10
23a
U.S.C. §§ 918, 880.2 These specifications were referred
as capital to a general court-martial, and just over a
year after his attack, Appellant was found guilty of all
three offenses and sentenced to death.
In August 2013—eight years after Appellant was
sentenced—this court completed its Article 66, UCMJ,
10 U.S.C. § 866, review of Appellant’s court-martial,
affirming the findings of guilt but setting aside his
sentence. United States v. Witt, 72 M.J. 727 (A.F. Ct.
Crim. App. 2013) (en banc). Several of the judges
assigned to the court did not participate in the opinion
because they had joined the court after oral
arguments had been heard but before the opinion was
released. The court found Appellant’s trial defense
team deficient for not adequately investigating
certain aspects of Appellant’s case, including: the
potential impact his motorcycle accident four months
before the murders may have had on his mental
processes; Appellant’s mother’s history of psychiatric
issues and Appellant sharing, in part, the same
diagnosis she had received; and the fact Appellant had
expressed significant remorse for his conduct to a
deputy sheriff tasked with guarding and escorting
Appellant. Two judges dissenting in part agreed trial
defense counsel were deficient but determined
Appellant had not shown he was prejudiced. In setting
aside Appellant’s sentence, the court returned the
2 Unless otherwise noted, all references in this opinion to the
Uniform Code of Military Justice (UCMJ), the Rules for CourtsMartial (R.C.M.), and the Military Rules of Evidence are to the
Manual for Courts-Martial, United States (2016 ed.), which was
the version in effect at the time of Appellant’s rehearing. The
relevant punitive articles in this edition of the Manual are
substantially the same as those in effect at the time of
Appellant’s offenses.
24a
case to The Judge Advocate General for remand to the
convening authority with authorization for a
rehearing on sentence. Id. at 775.
Once this court’s opinion was published, the
Government petitioned the court to reconsider it, and
the court agreed to do so. In June 2014, the court
issued a new opinion mirroring the views of the two
dissenting judges in the first opinion. United States v.
Witt, 73 M.J. 738 (A.F. Ct. Crim. App. 2014) (en banc).
Importantly, three of the judges who declined to
participate in the first opinion did participate in the
second opinion. The effect of this new opinion was to
affirm Appellant’s originally adjudged death sentence.
Two years later, however, the United States Court of
Appeals for the Armed Forces (CAAF) concluded the
three judges who declined to participate in the first
opinion were disqualified from later participation in
Appellant’s case, and the fact they participated in the
second opinion constituted error. United States v.
Witt, 75 M.J. 380 (C.A.A.F. 2016). The CAAF vacated
the second opinion and returned the case for a
sentence rehearing in accordance with this court’s
2013 opinion. Id. at 385.
Despite Appellant’s entreaties that his case be rereferred as non-capital, the convening authority
signed a capital re-referral in January 2017.
Appellant’s sentencing rehearing was conducted over
35 days spread throughout the next year and a half,
resulting in a 53-volume record of trial for the
resentencing alone. On 6 July 2018, officer and
enlisted members sentenced Appellant to confinement
for life without eligibility for parole, along with a
dishonorable discharge, forfeiture of all pay and
allowances, reduction to the grade of E-1 and a
reprimand. Appellant’s case is now before us for the
25a
third time as we consider the 23 issues he raises with
respect to his sentence rehearing, nine of which he
raises personally pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982).3
II. DISCUSSION
A. Issues Summarily Resolved
Appellant raises seven issues specific to capital
punishment procedures under the Uniform Code of
Military Justice (UCMJ).4 We have carefully
considered those issues and conclude that, because
Appellant is no longer facing the death penalty, none
of these issues warrants relief and we do not address
them in this opinion. See United States v. Matias, 25
M.J. 356, 363 (C.M.A. 1987).5
Appellant also requests relief for cumulative error,
but since we do not find a number of errors such that
3 The assignments of error (AOEs) raised through counsel, as
well as the issues personally raised by Appellant pursuant to
Grostefon, are listed in the Appendix to this decision.
4 See Appendix, AOEs I through IV, and Grostefon Issues XV,
XVII, and XXIII.
5 In the issue raised in Grostefon Issue XXIII, Appellant broadly
claims the military judge erred in not giving “various defenserequested instructions” and points us to a motion and argument
made at trial covering numerous proposed instructions. Nearly
all of those instructions were specific to the death penalty, which
we do not address in this opinion. We have carefully considered
Appellant’s claims regarding the other requested instructions
(e.g., that the members be allowed to call each other by their first
names; that the members must not make comparative judgments
between the victims’ families and Appellant’s family; and that
the military judge identify specific questions asked of certain
witnesses to test their opinions) and we conclude they warrant
neither discussion nor relief.
26a
their combination would warrant relief, we do not
analyze this allegation any further.6
Appellant has identified two minor errors in the
court-martial order.7 The Government concedes the
errors and we direct corrective action in our decretal
paragraph. Appellant invites us to reduce his sentence
to life with eligibility for parole as a “stiff rebuke” of
the
Government’s
errors.
After
considering
Appellant’s arguments and the Government’s
response, we have determined that ordering a
correction is the appropriate remedy.
B. Member Selection
Appellant was sentenced by a 12-member panel
consisting of officer and enlisted members. Prior to the
sentencing rehearing, the parties agreed to a lengthy
questionnaire which the military judge directed each
prospective member to complete and return.8 At the
rehearing itself, the military judge conducted initial
voir dire of the members as a group. The parties did
not conduct any group voir dire; instead they
conducted voir dire of each member individually.
Appellant raises five issues on appeal with respect
to the selection of the members who served on his
court-martial. Appellant personally raises the
following four issues: (1) trial counsel committed
prosecutorial misconduct by failing to timely disclose
their use of a government expert as a panel-selection
6 See Appendix, AOE XIV.
7 See Appendix, AOE XI.
8 The instructions told the prospective members that they “must
answer each question completely and accurately.”
27a
consultant;9 (2) the military judge erred by failing to
grant a defense request for additional peremptory
challenges;10 (3) the military judge improperly
rehabilitated potential panel members during voir
dire;11 and (4) the military judge erred by allowing
trial counsel to ask improper and untimely submitted
questions during voir dire.12 Through counsel,
Appellant asserts the military judge erred by not
granting the Defense’s challenges for cause of three
members who ultimately sat on his sentence
rehearing: Senior Master Sergeant (SMSgt) AK,
SMSgt ML, and Master Sergeant (MSgt) SC.13 We
resolve each of these issues adversely to Appellant.
1. Additional Background
a. Panel-Selection Consultants
One year before voir dire in the rehearing began,
the Defense requested the convening authority
appoint Mr. JG as their expert consultant in the field
of jury consultation based upon the fact the Defense
wished to use a death penalty-specific approach to voir
dire known as the “Colorado Method.” Just over a
month later, the convening authority denied the
request. The Defense then made a motion requesting
the military judge compel Mr. JG’s appointment,
noting, inter alia, that the Government had arranged
for the services of a “presentation expert” for trial
counsel’s benefit and that this expert was well versed
9 See Appendix, Grostefon Issue XX.
10 See Appendix, Grostefon Issue XIX.
11 See Appendix, Grostefon Issue XVIII.
12 See Appendix, Grostefon Issue XXI.
13 See Appendix, AOE V.
28a
in jury-selection psychology. During a hearing on the
motion, trial counsel told the military judge the
government expert would not be providing
juryconsultation services and pointed to the fact the
Defense already had a forensic psychologist on their
team who could assist in selecting a panel. The
Defense conceded their detailed psychologist was
capable in providing such jury-selection assistance,
and the military judge denied the Defense’s motion on
17 September 2017, finding as a fact that the
Government was not using a jury consultant. There is
no further discussion of the matter in the trial
transcript, with the exception that on 23 May 2018—
the day voir dire began—trial defense counsel stated
that Mr. JG was sitting at the defense table in the
courtroom and that he was the Defense’s jury
consultant who had been appointed by the convening
authority.14
At the conclusion of the rehearing, Appellant
submitted matters in clemency identifying a number
of alleged errors with respect to his court-martial, one
of which was that the Government “abruptly reversed
course” and granted the Defense’s request for Mr. JG
“[m]ere weeks before the beginning of voir dire.”
According
to
Appellant,
the
Government
communicated this reversal at the same time it
notified the Defense that the Government’s
presentation expert would, in fact, be assisting with
the Government’s voir dire. Appellant asserts he was
According to documents attached to the record of trial, the
convening authority’s legal office recommended on 5 April 2018
that the defense expert be appointed because “the Government
has requested a jury consultant expert as well. . . .” This request
was granted on 12 April 2018. The documents do not indicate
what prompted the Government’s change in position.
14
29a
denied the ability to make full use of Mr. JG’s
expertise while trial counsel “surreptitiously
expand[ed]” the scope of their own expert’s services.
Appellant
asserts
trial
counsel
committed
prosecutorial misconduct by doing so, and he proposes
we reduce his sentence to life with the possibility of
parole as a remedy.
b. Peremptory Challenges
Prior to Appellant’s sentencing rehearing, trial
defense counsel moved the military judge to grant the
Defense additional peremptory challenges. They
advanced several bases for this request, such as: that
the Government effectively had unlimited peremptory
challenges in light of the convening authority’s ability
to hand-pick all the potential members from the
outset; that because a panel in a capital court-martial
required at least 12 members while a non-capital
court-martial required only 5, Appellant should be
afforded a proportional increase in the number of
peremptory challenges; and that because other
jurisdictions provided for a significantly larger
number of peremptory challenges, so should
Appellant’s court-martial. The Government opposed
Appellant’s motion and the military judge denied the
request without setting out any particular rationale.15
In his ruling, however, the military judge advised the
Defense they could request additional peremptory
challenges during the voir dire process, “should the
need arise,” but trial defense counsel never made a
subsequent request.
The Defense also moved the military judge to prohibit the
Government from exercising its peremptory challenge, but the
military judge denied that motion as well.
15
30a
The court-martial was initially assembled for the
rehearing on Appellant’s sentence with 18 members.
Immediately before voir dire began, the members took
an oath which included each member swearing or
affirming that they would “answer truthfully the
questions concerning whether [they] should serve as a
member of this court-martial.” Eventually, 10 of the
18 members were excused for cause, but as discussed
in greater detail below, the military judge denied
defense challenges of SMSgt AK and MSgt SC.
Eight additional members were detailed to the
court-martial and sworn, and three of these eight were
excused based upon defense challenges. The military
judge denied a defense challenge to one member—
SMSgt ML. With 13 members remaining, trial counsel
elected not to exercise the Government’s peremptory
challenge, while the Defense used its peremptory
challenge to excuse one of the newly detailed
members, leaving a panel of 12. The military judge
commented, “So I think we have our panel. Any
concerns with that?” Trial defense counsel answered,
“Only those previously made in the prior motion. We
don’t believe it’s an issue at this point.” Which motion
trial defense counsel was referring to is unclear.
c. Military Judge’s Questions
Prior to the sentence rehearing, the Defense made
a motion to prevent the military judge from
“rehabilitating” members during voir dire. The basis
for the Defense’s motion was rooted in the claim that
members would be less candid when questioned by a
judge, and would be more likely to give the judge the
answers they believed the judge would want to hear
rather than their honest opinions. The Government
opposed the motion, and the military judge denied it,
31a
explaining he would not attempt to “rehabilitate”
members and that any questions he asked would be in
an “attempt to clarify a member’s answer or position
on an issue.”
Midway through the voir dire of the initial 18
members, trial defense counsel objected to the
military judge “rehabilitating” two members when he
essentially asked them if they would follow the law.
The first of these two members told trial defense
counsel that while she understood the Defense did not
have to present any evidence, if they wanted her to
vote for a less severe punishment, the Defense would
need to “help [her] understand.” The military judge
later asked that member to clarify whether or not she
would automatically vote for the death penalty if the
Defense put on no evidence. The member explained it
was the Defense’s right not to offer any evidence, and
that she would still consider any mitigating or
extenuating evidence, regardless of its source. The
military judge asked the second member about his
response to an item on his questionnaire, in which the
member indicated the death penalty was the only
appropriate punishment for killing more than one
person. The member replied, “I believe so, yes. I think
I also gave a verbal description afterwards as if—
maybe as more middle-of-the-road answer instead of
checking both boxes.”16 The military judge said, “I just
16 This item on the questionnaire, Question 105, contained four
subparts calling for the person filling out the questionnaire to
check either “yes” or “no” for each. Question 105 then asked
“please explain,” followed by five blank lines. The entire question
reads as follows:
Do you personally believe that death (and not
confinement for life either with or without the possibility
of parole) is the only appropriate punishment for a person
32a
want to make sure that—what your answer is to this
and that is, do you believe that the death penalty is
the only appropriate punishment for somebody who
kills more than one person?” The member answered,
“No.” The military judge also asked the member if he
would be willing to consider all the evidence and apply
the law before deciding whether death was an
appropriate punishment; the member said he would.
Trial defense counsel argued that the military
judge was conducting “improper rehabilitation” by
effectively asking the members if they would follow
the law. The military judge said he disagreed with
that view, and voir dire resumed. The two members
trial defense counsel asserted had been improperly
rehabilitated were ultimately excused for cause.
The root of the Defense’s objection lay in trial
defense counsel’s overall voir dire strategy, which was
to uncover the members’ perspectives—primarily with
respect to the death penalty—untainted by any
explanation or guidance given by the military judge.
As trial defense counsel explained to the military
judge at one point, “We need to have the ability to go
into their substantial beliefs, their core beliefs, what
they value, what they don’t value.” This led to a series
of defense voir dire questions posed in hypothetical
who: [1] Intentionally kills another human being? [2]
Intentionally kills more than one other person? [3]
Intentionally kills another person with a knife? [4] Does
all of the above? Please explain.
The member marked “yes” for the second and fourth subparts
and wrote the following in the “explain” area: “With out [sic]
details as to what may or may not have led to one killing another
intentionally, it would be hard to give it a blanket yes. However
if you intentionally killed several individuals with a knife it
would be more of a yes than a no.”
33a
terms, some of which called upon the members to
“pretend we’re just in a coffee shop, just chatting” and
to disclose their “personal feelings on things.” In light
of this strategy, the Defense lodged periodic objections
when the military judge or trial counsel would ask the
members whether they would follow the law or not,
under the theory that doing so interfered with the
Defense being able to determine what the members
“really” believed. As trial defense counsel explained to
the military judge,
We’re in this avenue in which they’ve been told
by the [c]ourt, they’ve been told by [trial
counsel] and in this case told by the [c]ourt
again, “You must consider everything.” So
when we ask them, can you consider something,
the answer is automatically a rote response of,
“I can consider that.”
....
. . . Before the members are even allowed to tell
us their core beliefs the [c]ourt is telling them
this is the law.
Trial defense counsel explained they were not
contesting the authority of the court to ask such
questions, but rather the timing of the questions: “So
when it’s occurring in the middle of the voir dire by
the [D]efense it hampers our abilities to get to their
personal opinions . . . because they’re parroting back
the [c]ourt’s words, I can consider, I can consider, I can
consider.”
Regarding the objections the Defense made to
questions posed by the military judge under the above
theory, all but one of these members were
subsequently excused and did not sit on Appellant’s
court-martial. The one member who did ultimately
34a
participate in Appellant’s rehearing was SMSgt AK,
whom trial defense counsel asked how he felt when
someone “use[s] their background as a—as a way to
maybe get away with something or reduce their
culpability.” SMSgt AK answered, “It’s hard to
describe how I feel about something I’ve not really
experienced so um, I just think it’s distasteful.” When
asked why he thought that, SMSgt AK said,
“Dishonest.” Trial defense counsel then sought to ask
SMSgt AK whether or not “genetics, upbringing,
circumstances of birth” would need to relate to the
crime before SMSgt AK would consider them in
determining an appropriate punishment, but trial
counsel objected. Without ruling on the objection, the
military judge engaged in the following colloquy with
SMSgt AK:
MJ [Military Judge]: Well, let me—let me tell
you this Senior Master Sergeant, that is—as
you’ve been told you are expected as a member
to consider all of the evidence right? And then
once you’ve considered it all determine what it
means to you, how much weight you’re going to
give it, right?
MBR [SMSgt AK]: Yes, sir.
MJ: So you are expected to consider any
evidence that’s presented to you. Do you
understand that?
MBR: Yes, sir.
MJ: Do you have the ability to do that?
[Trial defense counsel]: Sir—Your Honor, I’m
sorry. I just want to put on the record that we
object to this per our previous motion.
MJ: Do you have any problem in doing that?
35a
MBR: No, sir.
MJ: Okay. So you can consider any evidence
that’s presented to you?
MBR: Yes, sir.
MJ: All right. So I think that counsel’s question
then is going to go to whether or not you can
consider specific pieces of evidence, okay?
MBR: Yes, sir.
MJ: All right. You may continue.
Trial defense counsel then told SMSgt AK,
I just want to make sure that I’m being clear
with what I’m going at because a lot of the
questions are: Can you follow the law? Can you
follow the law? And I want to start a step back
from that of just, what are your feelings? What
do you think? How do you believe? And then,
you know, depending on your answer we can
certainly go back, you know, the judge—like the
judge just did.
Trial defense counsel asked SMSgt AK about whether
“genetics
or
upbringing,
or
environmental
background” would have to relate to the crime before
he would consider it, and SMSgt AK said “no,” and
that he would consider any such information,
although he was not sure how much weight he would
give it.
On appeal, Appellant adopts the arguments he
made at trial regarding the military judge “asking the
members
rehabilitative
questions.”
Appellant
highlights SMSgt AK’s presence on the panel as
evidence of the prejudice he suffered by virtue of these
questions being asked.
36a
d. Trial Counsel’s Questions
During the interim between the voir dire of the
first 18 members and the later detailing of new
members, the Defense submitted a motion asking the
military judge to preclude trial counsel from asking
“pre-scripted questions not included in their initial
anticipated voir dire submissions.”
Similar to their objections to the military judge’s
questions, trial defense counsel argued the
Government’s questions merely exhorted the
members to “follow the law” and, further, that the
questions were not provided in advance of voir dire as
required by the military judge’s scheduling order. This
latter claim was premised on the fact that trial
counsel had been asking the members questions not
appearing in the Government’s proposed voir dire
questions which had been submitted in advance of the
rehearing. These new questions largely asked the
members to commit to considering all the evidence
they were presented with—whether in aggravation,
extenuation, or mitigation—in deciding on an
appropriate punishment and to not prematurely
decide on a sentence before all the evidence was
presented.17
Trial defense counsel wrote in their motion that
the Defense needed to ascertain whether the members
were “truly capable of giving meaningful
consideration and effect to mitigation evidence,” but
trial counsel’s approach to voir dire “tells [the
The military judge earlier told the parties he wanted the
proposed voir dire submissions to include questions the parties
intended to ask the members either individually or in a group
setting. He added that he would allow the parties to “follow up
on certain questions if necessary.”
17
37a
prospective members] the law and then demands that
they follow the law.” Thus, the Defense argued, the
prospective members were merely agreeing to
consider evidence because they were being told to do
so, not because they were actually capable of
considering or willing to consider all the evidence.
Trial counsel responded to the motion orally,
arguing they were only asking the members whether
they would consider the range of sentencing options
available to them, whether they would consider all the
evidence, and whether they would follow the military
judge’s instructions to do those things. To this, trial
defense counsel reiterated their chief complaint that
they were “not able to determine [the members’] core
beliefs and whether they are capable of following the
court’s instructions” because trial counsel’s questions
had the effect of telling the members what the law
required of them. The military judge denied the
Defense’s motion, saying he did not find “anything
improper about the questions that the [G]overnment
was asking.” Neither the military judge nor trial
counsel made reference to the Defense’s claim that
trial counsel had failed to follow the scheduling order.
e. Challenge of SMSgt AK
The Defense challenged SMSgt AK on three
grounds: (1) that he was biased in favor of law
enforcement; (2) that he would not consider all
mitigation evidence;18 and (3) that he would require
the Defense to establish a nexus between mitigation
evidence and the crime.19 The Defense argued SMSgt
18 At trial, the Defense referred to this ground as “mitigation
impairment.”
19 The Defense called this “mitigation nexus.”
38a
AK had demonstrated both an actual and implied bias
with respect to the first ground and an implied bias
with respect to the other two.
During voir dire, trial counsel asked SMSgt AK
about the fact he had indicated on his pretrial
questionnaire that he was more likely to believe a
witness who worked in law enforcement. In the
questionnaire, SMSgt AK answered, “Yes, in general,
I believe law enforcement professionals are held to a
higher standard and are considered honest and
trustworthy.” Trial counsel then asked SMSgt AK
whether he would agree to not give law enforcement
officers who testified any more or less credibility “off
the bat” than other witnesses. SMSgt AK said he
would so agree, and in response to questions from trial
counsel, he further agreed he would consider any
evidence provided by law enforcement witnesses along
with all the other evidence in the case and “make a
judgment as to whether [that is] supported or
contracted by all the other evidence that may be
presented in the case.” Trial defense counsel also
asked about the matter, and SMSgt AK said, in part,
“Though I do believe that law enforcement does have
some credibility over somebody that doesn’t have that
kind of background but I would still have to listen to
all of the information before I could apply any kind of
weight.” Later, the military judge asked SMSgt AK,
“Do you think the fact that you assign some credibility
to law enforcement officers is going to prevent you
from weighing a law enforcement officer’s testimony
the same as you would any other witness’s
testimony?” SMSgt AK responded, “No, sir,” and told
the military judge he would use the same standards
for weighing a law enforcement officer’s testimony as
he would any other witness. The military judge then
39a
asked if there was any doubt in his mind about that,
and SMSgt AK answered, “No, sir.”
With respect to mitigation evidence, Question 106
on the questionnaire asked,
Aside from the crime, do you believe that the
background and life circumstances of a person
guilty of killing another should play a part in
the decision as to their punishment?
SMSgt AK circled “no” and wrote, “We are all a
product of our background, however we all
understand right from wrong, with very few
exceptions.” Trial counsel pointed to this
questionnaire response and asked SMSgt AK whether
or not—if he was given evidence of the background
and life circumstances of a person convicted of
murder—he would consider that evidence. Trial
counsel also asked him if he would “seriously think
about the evidence before [he would] assign it any
weight or value.” SMSgt AK answered both questions
in the affirmative. Trial counsel further asked SMSgt
AK if he had any doubt whether he would be able to
“seriously think about” evidence of “the accused’s
background, how he grew up, . . . what he was like as
a kid, what his family was like.” SMSgt AK responded,
“I have no doubts.” Trial defense counsel also asked
SMSgt AK to elaborate on his answer to Question 106,
and SMSgt AK explained, “I think just as you’re
brought up you are developed as a person based on
your upbringing. And I understand that. Um, your
parents affect you, your school, your community
makes you the person that you are.”
Question
members,
107
on
the
questionnaire
asked
40a
Some people feel the genetics, circumstances of
birth, upbringing and environment should be
considered when determining the proper
punishment of someone convicted of a crime.
What are your thoughts?
In response to this question, SMSgt AK wrote that he
did not agree with this proposition, “unless there is a
proven mental health condition associated with the
issue.” Trial counsel asked SMSgt AK if he would be
able to consider such evidence before deciding an
appropriate sentence and whether he would “agree to
hear it and seriously think about it” before assigning
the evidence any weight or value. To both questions,
SMSgt AK said he would. Trial defense counsel asked
whether “genetics, upbringing, or circumstances of
birth” would have to relate to the crime before SMSgt
AK would consider it, at which point trial counsel
objected and the colloquy quoted in Section II(B)(1)(c),
supra, between the military judge and SMSgt AK
followed. As explained above, SMSgt AK told trial
defense counsel he would consider evidence about
Appellant’s background and upbringing “whether it
was applicable to the case or not,” but that he was not
sure how much weight he would give it. He added, “If
it’s applicable to the individual it does tie to the case.
I can see that.”
Trial defense counsel also asked SMSgt AK about
Question 108 on the questionnaire:
In a sentencing-only case, what kind of
information do you think would be important
for you in determining an appropriate
sentence?
SMSgt AK wrote, “The facts as to what happened,
how it played out. Are there any proven mental health
41a
issues.” Trial defense counsel asked SMSgt AK what
he meant, and SMSgt AK said, “Anything that would
prove that the individual had some sort of mental
health issue that would have contributed towards the
commission of the crime.” Trial defense counsel then
asked if it would be “on us” to prove mental health
evidence, to which SMSgt AK said, “No, ma’am. . . .
It’s not on your side to actually prove anything.” Trial
counsel objected to a follow-on defense question as
confusing at which point SMSgt AK volunteered, “If it
makes it any easier for you, ma’am, if it’s presented it
will be considered.” Shortly thereafter, he added, “I
know that there are mental health issues that do
affect people and their decision making.”
Trial defense counsel never asked SMSgt AK
whether he would automatically reject evidence
related to Appellant’s mental health which was
unconnected to the crime, and SMSgt AK never said
he would.
In lodging a challenge against SMSgt AK, trial
defense counsel argued SMSgt AK had said he would
give greater credibility to those in law enforcement,
although trial defense counsel somewhat selectively
quoted SMSgt AK’s answers. For example, trial
defense counsel asserted SMSgt AK had said, “I do
believe that law enforcement has credibility over
someone who doesn’t have that . . . background,” but
omitted the rest of his answer in which he said, “but I
would still have to listen to all of the information
before I could apply any kind of weight.” Trial defense
counsel’s primary contention was that SMSgt AK had
maintained he would give law enforcement witnesses’
credibility more weight up until the point where the
military judge “asked him whether he could follow the
law.”
42a
Trial defense counsel also argued SMSgt AK had
“an impairment as to mitigation and particularly an
impairment as to any mitigation if it’s not directly tied
to the offense.” As an example, trial defense counsel
asserted SMSgt AK said he would consider mental
health issues, but only if they had “something to do
with the crime.” In seeking to clarify the Defense’s
challenge, the military judge asked, “am I hearing you
right, that the mitigation impairment and the
mitigation nexus all involved mental health
evidence?” Trial defense counsel answered, “Well,
Your Honor, that’s the most clear instance in which he
responded. . . . But specifically with mental health,
those are the two—the only version of mitigation that
he offered but it has to be mental health that is
associated with the crime.” In support of this
contention, trial defense counsel pointed to SMSgt
AK’s discussion of Question 108, to which the military
judge noted it was SMSgt AK who first suggested he
would consider mental healthrelated evidence. Trial
defense counsel argued SMSgt AK was “not
acknowledging that he can consider mitigation that’s
not connected to the crime, mental health that’s not
connect [sic] to the crime.” At this point in their
challenge, trial defense counsel shifted to a broader
attack on the voir dire process, asserting they were
“significantly impaired by the 30 minutes of voir dire
from the [G]overnment saying, ‘this is the law, this is
the law, this is the law’ and this [c]ourt itself saying,
‘this is the law, this is the law.’” Trial defense counsel
claimed these interjections interfered with the
Defense’s “ability to go into [the members’]
substantial beliefs, their core beliefs, what they value,
what they don’t value.”
43a
After some discussion about the military judge’s
ability to ask the members whether they will follow
his instructions, the military judge denied Appellant’s
challenge of SMSgt AK. He noted that being more
likely to believe a person who works in law
enforcement might not be “universally held,” but was
“not an unusual view,” and that SMSgt AK had said
he would weigh the testimony of law enforcement
witnesses “along with all the other evidence in the
case and using the same standards as any other
witness.” The military judge found no indication
SMSgt AK held “law enforcement officers in such high
esteem that he’s going to be unable to follow [his]
instructions to use the same standards in weighing
and evaluating the testimony.” The military judge
further determined SMSgt AK “clearly indicated that
he would consider mental health issues” and told the
Defense, “there is no evidence here or no indication, as
you’ve phrased it, mitigation impairment and
mitigation nexus problems with respect to mental
health evidence in this case.” As a result, he found no
actual bias on SMSgt AK’s part with respect to either
law enforcement or his ability to consider mitigation
evidence. The military judge also explained he found
no implied bias because he did not believe “that the
average member of the public, somebody watching
this trial would think that [SMSgt AK] was not able
to perform his duties or that [Appellant] was not
getting a fair trial,” and that he was denying the
challenge after considering the liberal grant mandate.
f. Challenge of MSgt SC
The Defense also challenged MSgt SC, advancing
three main theories: (1) that she would automatically
vote to impose the death penalty; (2) that she would
44a
shift the burden of proof to the Defense; and (3) that
she had a poor ability to follow directions.
In her questionnaire, MSgt SC indicated that she
supported the death penalty, that she believed it
should be an option in the case of “heinous” crimes,
and that factors such as whether an accused showed
remorse or evidence of rehabilitative potential should
be considered in deciding whether to impose such a
sentence. Question 92 provided respondents the
opportunity to pick from seven different answers to
this question:
Which of the following statements accurately
represent the way you feel about the death
penalty? (Select as many or as few of the
following choices as you wish.)
Of the seven options, MSgt SC chose these three:
(1) In a case in which the accused is convicted
of murder and in which the death penalty is
requested, I will always vote to impose the
death penalty, regardless of the facts and the
law in the case.
(2) I am generally in favor of the death penalty,
but I would base a decision to impose it on the
facts and the law in the case.
(3) I am generally opposed to the death penalty,
but I believe I can put aside my feelings against
the death penalty and impose it if it is called for
by the facts and the law in the case.
When asked by the trial counsel about her
selection of the first choice during voir dire, MSgt SC
answered,
45a
Um, I was thinking that I would be weighing all
of the evidence and depending on the
circumstances of the evidence then it would
either be a dead set we’re going to go death
penalty . . . or I think there’s a different avenue
we can take. And so it was— it’s really just—
there will be a consequence or rehabilitation
possibility or it could be the death penalty.
MSgt SC also said that just by hearing the nature
of the charges in Appellant’s case, without having
heard any evidence, she “would probably be leaning
more towards the death penalty. . . . I wouldn’t say it’s
necessarily automatic.” Trial counsel reminded MSgt
SC that the military judge had told her she would
need to consider all the sentencing options, and then
asked her if she thought “the death penalty is just
kind of automatic.” MSgt SC answered, “Yes, in this
case, the way you just asked it, it would probably be
an automatic for the death penalty because I don’t
know anything else. . . . And it’s premeditated.” Trial
counsel then asked MSgt SC a series of questions
related to evidence offered in extenuation and
mitigation before asking MSgt SC whether she could
“seriously think about and give meaningful
consideration to a sentence of even life with the
possibility of parole for somebody who’s committed
two counts of premeditated murder,” to which MSgt
SC responded, “Absolutely.” Trial counsel asked why
she was so confident she could do so, and MSgt SC
said, “Because you just said that we—once I get all the
evidence then I’m going to do the weight factor on this
. . . so therefore, all options are still available . . . until
I get everything.” She also told trial counsel she would
consider all sentencing options, that she could not
46a
make a decision yet because she had not heard the
evidence, and that she would keep an open mind.
Trial defense counsel followed up on MSgt SC’s
statement about voting for the death penalty based on
the charges alone, and MSgt SC explained,
Yes, and that’s—that’s still the same. If I have
to give a choice and there’s like no evidence and
that’s all I got is he’s been found guilty for these
then yes, I would be leaning towards the death
penalty. But I mean, if—I mean, that’s just the
way I see it. [ ] But if I have the option now to
ask questions [ ] and get [ ] more information [
] then that’s going to persuade.
MSgt SC went on to explain that while the death
penalty would be “seriously considered but until you
get all of the evidence I can’t make that
determination.” Trial defense counsel asked whether
there were any crimes in MSgt SC’s mind which
automatically warranted the death penalty, and MSgt
SC answered that premeditated murder is “pretty
heavy,” but “there’s still a lot of unanswered questions
and so if we’re going to go on I’m making sure that
we’ve got all of the evidence.” MSgt SC later said she
would consider such factors as whether a person could
be rehabilitated, whether a person is suffering from
mental illness, and whether a person has shown
remorse in deciding whether or not the death penalty
was warranted. She also agreed that the death
penalty would not be appropriate if the Government
could not establish evidence in aggravation
substantially outweighing mitigation evidence, that
she would give meaningful consideration to all the
evidence before deciding on a punishment, and that
the Government had the entire burden in the case.
47a
One of the questionnaire’s questions asked MSgt
SC what she understood the phrase “burden of proof”
to mean. MSgt SC wrote, “I believe this to be where
each party within the trial produced the evidence that
will prove the claims they have made against the
other party.” When trial defense counsel asked her to
elaborate, MSgt SC first noted that she was
unfamiliar with the legal terminology and then
explained that when she was completing the
questionnaire, she was unaware the issue of
Appellant’s guilt had already been decided. Later, in
response to trial counsel’s questions, MSgt SC said
that once she knew the case would be solely about
sentencing, she understood “the evidence will just
come from one side,” that is, the Government. Trial
counsel responded by telling her, “Your duty is to
consider all the evidence that’s presented in this case,
no matter who it’s presented by,” and MSgt SC then
said, “Okay. Then if that’s the case then yes, I would
take [evidence offered by either party] under
consideration.” Trial counsel emphasized this point
again by specifically asking MSgt SC if she would
consider whatever evidence the Defense offered, and
she said she would. The military judge asked her if she
understood the Defense did not have to actually
present any evidence; that if the Defense did present
evidence, she was bound to consider it; that the
Government had the burden; and that she was
required to consider all evidence, regardless of which
party offered it. She said she understood each of those
propositions.
In challenging MSgt SC, the Defense argued she
had “an implied bias for the automatic death penalty”
and that “she has a burden shift toward the
[D]efense.” The Defense essentially claimed MSgt
48a
SC’s starting position was that the death penalty was
warranted, and that she would require the Defense to
prove a lesser sentence was appropriate by
introducing evidence of such mitigating factors as
remorse or rehabilitative potential. The Defense also
said they had “a concern with her ability to follow
directions” because MSgt SC left three questions on
her questionnaire blank and answered others with
only a “yes” or a “no,” in spite of the military judge’s
instructions to fully answer every question. Finally,
the Defense pointed to her demeanor during voir dire,
saying that she was “repeatedly laughing and things
like that.”20
The military judge denied the Defense’s challenge,
explaining that MSgt SC did not exhibit actual bias
because she said she would consider all punishment
options and that she would consider all the evidence
in deciding what punishment was appropriate. The
military judge further said that, considering the
totality of her answers, there was “nothing that
indicated that she believes the death penalty is an
automatic in any case, in fact, quite the opposite. She
said she’ll consider all the evidence.” The military
judge concluded the Defense had not established
either actual or implied bias on MSgt SC’s part and
that he would not excuse her, even after considering
the liberal grant mandate. The military judge did not
comment on the Defense’s concern about MSgt SC
being able to follow directions.
20 Other than this comment by trial defense counsel, there is no
indication in the record that MSgt SC was laughing at all, much
less when or why.
49a
g. Challenge of SMSgt ML
The third member the Defense unsuccessfully
challenged was SMSgt ML, whom the Defense argued
was unwilling to consider evidence in mitigation that
might not be directly tied to the crime at hand. This
argument was rooted in both SMSgt ML’s answers on
her pretrial questionnaire as well as statements she
made during voir dire.
SMSgt ML maintained that the death penalty was
never an automatic sentence, but one item on the
questionnaire asked whether “the background and life
circumstances of a person guilty of killing another
should play a part in the decision as to his
punishment,” and SMSgt ML answered, “I think that
only information pertaining to this case should
determine the outcome.” The next question read:
Some people feel that genetics, circumstances
of birth, upbringing and environment should be
considered when determining the proper
punishment of someone convicted of a crime.
What are your thoughts?
SMSgt ML answered, “I disagree with this statement.
The environment that I grew up in may have been
consider[ed] one where teenage girls get pregnant and
may not become productive citizens. However I think
we choose our own paths and determine what we want
our story to be.” During voir dire, SMSgt ML said she
could consider evidence regarding Appellant’s
upbringing and environment, and that she would
“seriously listen to it” and consider it before deciding
on a punishment. She further agreed to hear all the
evidence before coming to any conclusions regarding
an appropriate punishment and to keep an open mind.
50a
When asked about the question on the
questionnaire as to whether she thought the
background and life circumstances of a person found
guilty of murder should play a part in deciding that
person’s sentence, SMSgt ML referred to a prior courtmartial she had been a member on. SMSgt ML said
that family members had testified in the court-martial
to matters which she felt “really didn’t have to do with
the case.” She said that, as a result, she understood
she “had to weigh [that testimony] based on the
importance with the other evidence.” She said she
recognized she may hear evidence about Appellant’s
background and added, “But if it’s not part of the
actual circumstances around the case, then I need to
figure out how to weigh that information.” Trial
defense counsel asked SMSgt ML if there was any
evidence she would never give weight to, and she
answered, “None of it would never have a weight
because if it’s presented to us, then obviously I have
to consider it.” Nevertheless, SMSgt ML answered a
series of questions in which she told trial defense
counsel that one’s background does not “affect what
you do later in life;” that if someone grew up in poverty
on drugs, that would not mean anything regarding
their punishment; and that if a person used alcohol or
drugs at some point in their life, that would not mean
anything to her.
Trial counsel asked SMSgt ML if she would
consider evidence about Appellant’s background if the
military judge told her to do so, and she said she was
“pretty confident” that she could seriously consider it.
She explained,
I just feel that I know I can listen to the
information, whatever’s presented here. And
then I would take it back there and consider it.
51a
I’m not saying that I’m going [to] say no, his
background is not important at that time, if it
plays a part in the information that’s presented
to us. [ ] I think I could consider it.
Upon additional questioning by the military judge,
SMSgt ML confirmed she would consider any
mitigating evidence even if it had nothing to do with
Appellant’s crimes.
The Defense challenged SMSgt ML on an implied
bias ground described by trial defense counsel as, “she
would require [a] nexus between mitigation evidence
and the crime.” Trial counsel countered that SMSgt
ML was only required to consider evidence, not
necessarily give it any weight. The military judge
denied the challenge, reasoning that there is a
difference between having a “general view” that a
person’s upbringing does not have a large role in their
life and being unwilling to consider such evidence
when making a decision. The military judge noted
SMSgt ML said she understood she must consider all
the evidence in the case and that she would do so,
leading him to conclude SMgt ML should not be
excused under either actual or implied bias grounds,
even in light of the liberal grant mandate.
2. Law
a. Prosecutorial Misconduct
We review claims of prosecutorial misconduct de
novo; when no objection is made at trial, the error is
forfeited, and we review for plain error. United States
v. Voorhees, 79 M.J. 5, 9 (C.A.A.F. 2019) (citation
omitted). Under the plain error standard, such error
occurs “when (1) there is error, (2) the error is plain or
obvious, and (3) the error results in material prejudice
to a substantial right of the accused.” United States v.
52a
Fletcher, 62 M.J. 175, 179 (C.A.A.F. 2005) (citation
omitted).
“Trial prosecutorial misconduct is behavior by the
prosecuting attorney that ‘overstep[ped] the bounds of
that propriety and fairness which should characterize
the conduct of such an officer in the prosecution of a
criminal offense.’” Id. at 178 (quoting Berger v. United
States, 295 U.S. 78, 84 (1935)). “Prosecutorial
misconduct can be generally defined as action or
inaction by a prosecutor in violation of some legal
norm or standard, e.g., a constitutional provision, a
statute, a Manual rule, or an applicable professional
ethics canon.” United States v. Meek, 44 M.J. 1, 5
(C.A.A.F. 1996) (citing Berger, 295 U.S. at 88)
(additional citation omitted).
b. Voir Dire
Military judges have discretion in controlling the
nature and scope of voir dire. Rule for Courts-Martial
(R.C.M.) 912(d), Discussion. “Generally, the
procedures for voir dire are within the discretion of the
trial judge.” United States v. Jefferson, 44 M.J. 312,
318 (C.A.A.F. 1996). A military judge may permit
counsel for the parties to conduct voir dire, or the
military judge may conduct the examination him- or
herself. R.C.M. 912(d). Military judges may also
supplement questions asked by counsel. Jefferson, 44
M.J. at 318–19. Limitations placed by a military judge
on the voir dire process are reviewed for abuse of
discretion. United States v. Richardson, 61 M.J. 113,
118 (C.A.A.F. 2005). Military judges’ decisions
amount to abuses of discretion if their findings of fact
are clearly erroneous, their decisions were influenced
by an erroneous view of the law, or their decisions are
“outside the range of choices reasonably arising from
53a
the applicable facts and the law.” Finch, 79 M.J. 389,
394 (C.A.A.F. 2020) (quoting United States v. Frost, 79
M.J. 104, 109 (C.A.A.F. 2019)).
c. Member Challenges
An accused has the right to an impartial and
unbiased panel. United States v. Nash, 71 M.J. 83, 88
(C.A.A.F. 2012) (citation omitted). A person detailed
to a court-martial shall be excused whenever it
appears he or she “[s]hould not sit as a member in the
interest of having the court-martial free from
substantial doubt as to legality, fairness, and
impartiality.” R.C.M. 912(f)(1)(N). Such is the case
when a person “has a decidedly friendly or hostile
attitude toward a party; or has an inelastic opinion
concerning an appropriate sentence for the offenses
charged.” R.C.M. 912(f)(1)(N), Discussion. Potential
court-martial members are subject to challenges for
cause under actual bias and implied bias theories.
United States v. Hennis, 79 M.J. 370, 384 (C.A.A.F.
2020). Under the former, the question is whether the
member personally holds a bias “which will not yield
to the military judge’s instructions and the evidence
presented at trial.” Nash, 71 M.J. at 88 (citation
omitted). Claims that a military judge erred with
respect to challenges alleging actual bias are reviewed
for an abuse of discretion. Hennis, 79 M.J. at 384.
Our superior court has framed the analysis of
implied bias as: considering the totality of the
circumstances and assuming the public is familiar
with the military justice system, “whether the risk
that the public will perceive that the accused received
something less than a court of fair, impartial members
is too high.” United States v. Woods, 74 M.J. 238, 243–
44 (C.A.A.F. 2015) (internal quotation marks and
54a
citation omitted). Our review of implied bias
challenges is more deferential than de novo review,
but less deferential than abuse of discretion. Hennis,
79 M.J. at 385. Implied bias, however, “should be
invoked sparingly.” United States v. Moreno, 63 M.J.
129, 134 (C.A.A.F. 2006) (citation omitted).
When an accused challenges members for cause,
the military judge is required to liberally grant such
challenges. United States v. James, 61 M.J. 132, 139
(C.A.A.F. 2005). Reasons for this include the fact that
peremptory challenges in the military justice system
are far more constrained than in the civilian criminal
justice arena, as well as convening authorities’ broad
discretion to detail members to courts-martial. Id.
(citations omitted). “Challenges based on implied bias
and the liberal grant mandate address historic
concerns about the real and perceived potential for
command influence on members’ deliberations.”
United States v. Clay, 64 M.J. 274, 276–77 (C.A.A.F.
2007). Military judges who squarely address the
liberal grant mandate on the record are given greater
deference on appeal than those who do not. Id. at 277.
An inelastic opinion regarding the appropriate
punishment is grounds for an actual-bias challenge,
while “a mere predisposition to adjudge some
punishment upon conviction is not, standing alone,
sufficient to disqualify a member. Rather the test is
whether the member’s attitude is of such a nature that
he will not yield to the evidence presented and the
judge’s instructions.” Hennis, 79 M.J. at 385 (quoting
United States v. McGowan, 7 M.J. 205, 206 (C.M.A.
1979)) (additional citation omitted). When a potential
member in a death-penalty case has expressed views
on capital punishment, the standard for a causal
challenge of that member “is whether the juror’s views
55a
would prevent or substantially impair the
performance of his duties as a juror in accordance with
his instructions and his oath.” Morgan v. Illinois, 504
U.S. 719, 728 (1992) (internal quotation marks and
citation omitted). Thus, a member “who will
automatically vote for the death penalty in every case
will fail in good faith to consider the evidence of
aggravating and mitigating circumstances as the
instructions require him to do.” Id. at 729.
The burden in establishing the grounds for the
challenge of a member lies with the party making the
challenge. R.C.M. 912(f)(3). When a basis for
challenge is first raised on appeal, we review such
claims for plain error. United States v. Ai, 49 M.J. 1, 5
(C.A.A.F. 1998) (citation omitted).
3. Analysis
a. Prosecutorial Misconduct
Although Appellant objected to the convening
authority’s initial decision not to appoint Mr. JG as a
defense consultant and sought relief from the military
judge from that decision, the Defense did not raise any
concerns regarding Mr. JG’s subsequent detailing
until after the court-martial adjourned. Appellant’s
chief post-trial complaint is that he was denied the
ability to utilize Mr. JG’s expertise as much as he
would have, had Mr. JG been appointed earlier. This
may very well be true, but it was not raised to the
military judge who would have had the ability to grant
Appellant more tailored and relevant relief at the time
as compared to the relief he seeks from us now: a
reduction of his sentence. More saliently, had
Appellant objected prior to or during the rehearing,
we would have a more developed record on the matter
indicating how the decision to detail Mr. JG came
56a
about and what role, if any, trial counsel played in the
decision. The record is practically devoid of this
information, and it is Appellant’s inability to explain
precisely what trial counsel did or did not do that is
fatal to his claim of prosecutorial misconduct.
From the record, we know the convening authority
initially denied the Defense’s request for Mr. JG’s
services, and the military judge declined to overrule
that decision because the Defense had another expert
who could provide similar services, and because trial
counsel asserted they had no jury consultant assigned
to their team. About a month and a half before trial
was set to begin, the convening authority’s legal office
reversed its recommendation and the convening
authority reversed his earlier decision, resulting in
the appointment of Mr. JG to the defense team.
Almost immediately afterward, trial counsel notified
the Defense that the Government’s presentation
expert would in fact be providing voir dire consulting
services, after all. While it appears the convening
authority appointed Mr. JG as a defense consultant
because trial counsel made a decision to request their
own panel-selection expert, Appellant has not
demonstrated trial counsel did so in order to gain
some improper tactical advantage. Indeed, it seems
just as plausible that trial counsel belatedly realized
they needed assistance in selecting a panel and
recommended the convening authority grant the same
assistance out of their concern that Appellant receive
a fair rehearing. Moreover, nothing in the record
explains whether or how trial counsel was able to
capitalize on this reversal or its timing.
Appellant has not specified any particular legal
norm or standard trial counsel purportedly violated,
and we cannot identify one from the record before us.
57a
Thus, Appellant has not established error with
respect to Mr. JG’s detailing, much less plain error.
While we agree the convening authority’s late
reversal, and trial counsel’s expansion of their expert’s
role after telling the military judge they would not use
their expert in such an expanded capacity, might
appear suspicious, such suspicion is insufficient to
support a finding of prosecutorial misconduct.
Appellant, therefore, is entitled to no relief.
b. Peremptory Challenges
Although a common feature of criminal trials,
peremptory challenges are not guaranteed by the
United States Constitution. United States v.
Martinez-Salazar, 528 U.S. 304, 311 (2000). In courtsmartial, an accused and the Government are “entitled
initially to one peremptory challenge of the members
of the court” under Article 41(b)(1), UCMJ, 10 U.S.C.
§ 841(b)(1). If challenges for cause reduce the court
below the required minimum number of members, as
occurred here, peremptory challenges are not
exercised until additional members are detailed to the
court. Article 41(a)(2), UCMJ, 10 U.S.C. § 841(a)(2). If,
however, a peremptory challenge results in the court
having insufficient members, then the parties may
exercise another peremptory challenge against laterdetailed members. Articles 41(b)(2) and 41(c), UCMJ,
10 U.S.C. §§ 841(b)(2), 841(c). Notwithstanding this
statutory scheme, a military judge has discretion to
grant additional peremptory challenges, and indeed
has a duty to do so when necessary to ensure a fair
trial. United States v. Carter, 25 M.J. 471, 476 (C.M.A.
1988). The denial of additional challenges is reviewed
for abuse of discretion. Id.
58a
At trial, Appellant relied on Carter in support of
his argument for additional peremptory challenges. In
that case, the United States Court of Military Appeals
concluded military judges must grant additional
peremptory challenges after the original exercise of
peremptory challenges results in new members being
detailed to the court-martial; the holding in Carter led
to the amendment of Article 41, UCMJ, to explicitly
authorize additional peremptory challenges in such
cases. See, e.g., United States v. Thomas, 43 M.J. 550,
593 (N.M. Ct. Crim. App. 1995), rev’d on other
grounds, 46 M.J. 311 (C.A.A.F. 1997). This ability of
the military judge in Appellant’s case to grant
additional peremptory challenges is a far cry from a
requirement to do so. Here, when denying the
Defense’s pre-trial motion, the military judge gave the
Defense the opportunity to seek additional
peremptory challenges during the voir dire process,
but the Defense declined to do so. Even assuming
Appellant has preserved this issue for appeal, he has
failed to demonstrate that he was entitled to
additional challenges, that the military judge’s denial
of additional challenges operated to deprive him of a
fair trial, or that the military judge abused his
discretion in this regard. His claim therefore warrants
no relief.
c. Military Judge’s Questions
As explained above, trial defense counsel sought to
determine the members’ personal views on various
matters, and the counsel felt the members would be
less likely to give complete or forthright answers after
being told what was required under the law by the
military judge. We recognize voir dire is a valuable
tool in both determining whether or not potential
members will be impartial, as well as assisting the
59a
parties in deciding how or whether to exercise
peremptory challenges. See, e.g., Jefferson, 44 M.J. at
318. Appellant has not, however, demonstrated that
the fact the military judge explained the law to the
members and then asked them if they would follow the
law somehow circumvented either of these purposes.
Similarly, Appellant has cited no legal authority
prohibiting the military judge from asking the
questions that he did.
The thrust of the Defense’s objection at trial was that
when a military judge tells court members what is
expected of them under the law, the members will tell
the military judge they will rigorously follow the law,
regardless of whether they actually intend to do so.
This claim fails on various fronts. First, the parties
gave
the
members
lengthy
and
in-depth
questionnaires to complete in advance of Appellant’s
court-martial. That is, the members were required to
answer a litany of questions regarding their
perspectives on such matters as burdens of proof, the
weight of certain types of evidence, and punishment
well before stepping into the courtroom and being
asked anything at all by the military judge. As a
result, the Defense already possessed an extensive
amount of information about the members’ views
uninfluenced by any questions posed by the military
judge. Second, once at the court-martial, the members
each took an oath that they would truthfully answer
questions relating to whether they should serve as
members or not, and the parties were given
substantial leeway to ask the members about their
views on a wide variety of topics. Indeed, trial defense
counsel even exhorted some of the members to pretend
they were just “chatting” with counsel in a coffee shop.
Appellant has not alleged any of the members
60a
answered any questions falsely or otherwise violated
their oath, and we therefore conclude he had ample
opportunity and ability to elicit the members’ actual
beliefs even after they were instructed on the law by
the military judge. Third, to the extent the members
may have felt compelled to agree with the military
judge’s explanation of what the law expected of them,
the natural extension of such a conclusion would be
that the members would follow the law, as the
military judge instructed them, and not that they
would simply tell the judge what they thought he
wanted to hear in voir dire and then go rogue once in
the deliberation room. We think it more likely the
members considered all the evidence they were
presented, as the military judge told them they were
required to do. Finally, the military judge was
obligated to remove any members who were unwilling
or unable to follow his instructions on the law, and the
military judge’s questions to the members directly
sought to ascertain such willingness and ability. See
Morgan, 504 U.S. at 729–30 (discussing a “trial
judge’s responsibility to remove prospective jurors
who will not be able impartially to follow the court’s
instructions and evaluate the evidence”) (internal
quotation marks and citation omitted).
Only one member subject to this objection, SMSgt AK,
sat on Appellant’s court-martial, and the military
judge’s actual questioning does not support
Appellant’s premise. When trial defense counsel
asked SMSgt AK how he would feel if someone were
to “use their background . . . as a way to maybe get
away with something or reduce their capability,”
SMSgt AK first said it was “hard to describe,” but then
settled on “distasteful.” After being asked to clarify,
SMSgt AK added, “Dishonest.” Immediately
61a
thereafter, the military judge secured SMSgt AK’s
commitment to consider all the evidence presented.
Importantly, SMSgt AK had not indicated he would
not consider any particular piece or type of evidence
prior to the military judge’s questions, so we are not
faced with a situation in which the member said one
thing and then reversed course upon questioning by
the military judge. Instead, trial defense counsel had
negatively framed an ambiguous question about
people using their background “as a way to maybe get
away with something,” which SMSgt AK
unremarkably responded to disapprovingly. We have
considered, and we reject, Appellant’s contention the
military judge’s questions were improper or somehow
undermined his ability to exercise his challenges, and
we do not find the military judge abused his
discretion.
d. Trial Counsel’s Questions
On appeal, Appellant continues his attack on trial
counsel’s voir dire questions, which he describes as
“leading questions that conditioned the members to
answer affirmatively vice providing truthful
answers.” Appellant also argues trial counsel asked
questions which had not been divulged prior to the
court-martial, as required by the military judge’s
scheduling order. The Government argues Appellant
focused at trial on the nature of trial counsel’s
questions and thereby waived any post-trial
complaint as to the timeliness of their submission. We
find Appellant’s position on neither front warrants
relief.
An accused facing the death penalty is entitled to
attempt, through voir dire, to identify which
prospective members have already determined
62a
whether or not to impose the death penalty prior to
being presented with the evidence. Morgan, 504 U.S.
at 736. In Morgan, the United States Supreme Court
expressed doubt that simply asking members if they
would be fair and if they would follow the judge’s
instructions would be effective in identifying “jurors
with views preventing or substantially impairing
their duties in accordance with their instructions and
oath.” Id. at 734–35. Appellant invites our attention
to Morgan, arguing it highlights the harm caused by
trial counsel’s questions. But Morgan involved a trial
in which counsel were not permitted to conduct voir
dire at all and in which the judge declined to ask an
additional question posed by defense counsel: whether
the jurors would automatically vote to impose the
death penalty, regardless of the evidence. Id. at 723.
Thus, Morgan stands for the proposition that an
accused is entitled—at least in capital cases—to pose
more specific questions to members beyond simply
asking whether they will follow the law. Morgan does
not, however, say anything about the timing of such
questions, or that “follow the law” questions may not
be asked by trial counsel or the military judge—much
less that asking such questions somehow prejudices
the defense’s own voir dire. Appellant has not
identified any precedent holding otherwise. Moreover,
unlike the situation in Morgan, Appellant’s trial
defense counsel were afforded extensive opportunities
both before and during his rehearing to ask detailed
questions about the members’ views on a wide variety
of topics, such as whether or not they believed the
death penalty was employed too frequently, whether
they thought a victim’s family member should be
permitted to serve as a juror, whether they thought it
was “fair” that the Government had to secure a
63a
unanimous verdict with respect to the death penalty,
and so on.
While we acknowledge the general soundness of
Appellant’s theory that a potential member who has
already promised either trial counsel or the military
judge that he or she will consider all the evidence is
unlikely to admit the contrary under questioning by
defense counsel, there is no legal requirement the
military judge or trial counsel forego their own
questions in order to present the members to the
Defense in an untouched state.21 What is required is
that the military judge permit the Defense to identify
any disqualifying biases the members may hold, and
we see no indication he did not do so. Instead, the
military judge afforded the Defense broad latitude in
submitting an extensive pretrial questionnaire to the
members and to engage in extended and often
hypothetical discussions with each member about an
array of topics. We see no error in the military judge
permitting trial counsel to ask the members whether
they would follow the law or the military judge
instructing the members they were required to do so.
With regard to the timeliness of trial counsel’s
submission of voir dire questions, Appellant did not
waive this issue, contrary to the Government’s
position on appeal, simply because his counsel did not
present oral argument on that portion of his motion.
True, the military judge did not address the matter in
his oral ruling denying the defense motion, but the
Defense did not seek clarification or reconsideration
Midway through voir dire, the Defense asked the military
judge to direct the parties to alternate who would start individual
questioning of each member to address this concern; the military
judge declined to do so.
21
64a
on that point. Considering the military judge’s broad
discretion to control voir dire, we conclude the
military judge’s denial encompassed the Defense’s
timeliness claim, and that he did not abuse his
discretion either by not specifically addressing the
matter or in denying the Defense’s motion. In
analyzing this issue, we note that the members’
questionnaire responses were submitted the same day
the parties’ proposed voir dire questions were due.
Therefore, it would seem somewhat obvious that any
questions asked during voir dire about those
questionnaire responses would be absent from the
proposed voir dire questions without either a
modification of the military judge’s scheduling order
or a requirement that the parties submit a
supplemental proposed voir dire incorporating
matters raised by the questionnaire responses. A
substantial number of the questions ultimately asked
during voir dire were rooted in the questionnaire
responses, and we conclude one reasonable view
would be to see those questions as permissible followup questions to information provided by the members
in advance of the rehearing— questions which did not
need to be disclosed in advance. Moreover, even if the
military judge had failed to rule on this particular
component of the Defense’s claim, we conclude
Appellant suffered no prejudice. Had the military
judge wanted to enforce his scheduling order on this
point, we are confident he would have done so by
either disallowing trial counsel’s questions or taking
other appropriate action.
e. Challenge of SMSgt AK
On appeal, Appellant argues the military judge
erred by not granting the Defense’s challenge of
SMSgt AK. Appellant first renews his claim that
65a
SMSgt AK evinced a partiality in favor of members of
law enforcement, pointing to SMSgt AK’s
questionnaire answer that he would more likely
believe a witness who is a member of law enforcement
because he believed “in general . . . law enforcement
professionals are held to a higher standard and are
considered honest and trustworthy.” Appellant
concedes SMSgt AK agreed during voir dire to weigh
a law enforcement officer’s testimony the same as he
would any other witness’s testimony, but argues
SMSgt AK’s other statements belie that agreement.
Overall, Appellant’s position is that SMSgt AK
appeared poised to automatically give credit to any
law enforcement witness prior to that witness
testifying at all, so he held an actual bias. Appellant
also argues that even if SMSgt AK did not have an
actual bias in favor of law enforcement, a reasonable
observer would question the fairness of Appellant’s
sentence rehearing, especially in light of the fact
testimony from nine law enforcement officers was
introduced in the Government’s case.
Having
carefully
reviewed
SMSgt
AK’s
questionnaire and voir dire responses, we are
unconvinced. As the military judge noted, a general
belief in the credibility of law enforcement personnel
is by no means unusual, and SMSgt AK explained in
his own words that he would need to “listen to all the
information” before he assigned it any particular
weight. SMSgt AK was repeatedly asked by trial
counsel, trial defense counsel, and the military judge
whether he would assess law enforcement witnesses
the same as other witnesses, and SMSgt AK
consistently said he would. Considering SMSgt AK’s
voir dire answers in conjunction with the fact he
completed his questionnaire in somewhat of a vacuum
66a
without any clarification from the military judge or
the parties, we conclude the military judge did not err
in denying the Defense’s challenge under theories of
either actual or implied bias. With respect to
Appellant’s assertion that any bias in favor of law
enforcement was prejudicial, we note that, of the nine
witnesses Appellant references, seven of them did not
appear at Appellant’s rehearing—instead, their prior
testimony was simply read to the members, which is
to say the Defense did not challenge them via crossexamination during the rehearing. Although some of
the prior testimony included cross-examination from
Appellant’s original court-martial, the crossexamination was almost entirely geared towards
eliciting
additional
information
about
the
investigation, and did not involve any attempts at
impeaching any of the witnesses. Of the two law
enforcement witnesses who testified at the rehearing
itself, the Defense did not meaningfully attack the
credibility of the first and did not cross-examine the
second at all. In other words, the credibility of
witnesses who were members of law enforcement was
largely immaterial to the Defense’s case.
On appeal, Appellant somewhat merges and
reframes the so-called “mitigation impairment” and
“mitigation nexus” arguments he made at trial.
Appellant’s main contention now is that SMSgt AK
was biased with respect to mental health evidence
under the theory he would only consider such evidence
if it was “connected to the crime.” To arrive at this
conclusion, however, we would have to adopt a rather
cramped and one-sided view of SMSgt AK’s actual
statements, and we decline to do so. SMSgt AK
repeatedly stated he would consider the background
and life circumstances of someone convicted of murder
67a
before deciding on a sentence, and he volunteered on
several occasions his view that people are shaped by a
variety of influences as they grow up. On his
questionnaire, which he completed prior to the
rehearing, SMSgt AK wrote that he did not believe
such factors should be considered when determining a
punishment unless “a proven mental health condition
associated with the issue” was shown. However, after
the military judge told SMSgt AK he would have to
consider all the evidence presented, SMSgt AK said he
would do so, even later telling trial defense counsel, “if
it’s presented it will be considered.” SMSgt AK also
said he understood that mental health issues “do
affect people and their decision making.”
Taken as a whole, SMSgt AK’s responses indicate
he initially said that he believed a person’s
background would not factor into a decision on
punishment, but once the military judge explained to
SMSgt AK that he would have to consider all such
matters, SMSgt AK said he would. We are disinclined
to place a great deal of weight on what a lay person
thinks should or should not qualify as evidence in
extenuation and mitigation before that person is
provided guidance from a military judge regarding the
law on that point. The relevant question here is not
what SMSgt AK subjectively thought the law was
when he was filling out his questionnaire. Instead, the
question under an implied bias theory is whether the
public would perceive Appellant as receiving an unfair
hearing as a result of SMSgt AK’s service as a panel
member. Once the military judge explained to SMSgt
AK the scope of the evidence he was required to
consider, SMSgt AK readily agreed he would consider
all of it, and also said a person’s upbringing and
mental health would factor into his assessment—
68a
precisely what the public would expect him to do to
ensure Appellant a fair hearing.
Finally, SMSgt AK’s comment that he found it
“distasteful” that a person might use their background
“as a way to maybe get away with something or reduce
their culpability” goes more to the weight he would
give such evidence than whether or not he would
consider it. What the law requires is that members be
open to considering all the evidence in a case; what
weight SMSgt AK ultimately decided to give such
evidence, however, was squarely within his personal
discretion. Because the military judge explained he
factored the liberal grant mandate into his
assessment, we give his ruling greater deference.
Even considering the liberal grant mandate, we
conclude the military judge did not err or abuse his
discretion in rejecting the Defense’s challenge to
SMSgt AK.
f. Challenge of MSgt SC
Appellant argues on appeal that the military judge
committed error when he denied the Defense’s
challenge to MSgt SC, claiming the member exhibited
actual and implied bias. Appellant concedes that
MSgt SC agreed to consider all the evidence and follow
the military judge’s instructions, but he submits that
MSgt SC indicated she came to the rehearing with the
presumption that death was the appropriate sentence
before hearing any evidence. From that premise,
Appellant argues MSgt SC was akin to a juror who
would automatically vote for the death sentence,
regardless of the evidence, and was therefore
disqualified from service on the rehearing. We decline
to make this leap of logic.
69a
Before receiving any guidance from the military
judge and before even understanding that Appellant’s
case was a rehearing which only pertained to
sentencing, MSgt SC said she would vote for death in
cases of premeditated murder regardless of the facts
or law. However, as soon as she was asked to elaborate
on that response during voir dire, MSgt SC said that
her understanding was that she would be “weighing
all of the evidence” and then determining whether the
death penalty was appropriate or whether there was
“a consequence or rehabilitation possibility.” At no
time during voir dire did MSgt SC suggest she would
automatically vote for the death penalty. Rather, she
said that based solely on the charges—without
knowing more—she “would probably be leaning more
towards the death penalty,” but she also said that was
not “necessarily automatic.” When asked again if she
thought the death penalty should be automatically
adjudged in Appellant’s case, MSgt SC said it
“probably” should, but she added a critical caveat:
“because I don’t know anything else.” After her
obligation to consider all the evidence was explained
to her, MSgt SC said she understood that “all options
are still available” until she hears all the evidence.
When trial defense counsel questioned her, MSgt SC
again said that based solely on the charges, she felt
the death penalty was appropriate, but she reiterated
that was only true because she knew nothing else
about the case and added that if she was able to hear
evidence and ask questions, “then that’s going to
persuade.” She explained again she would not make a
decision until she had heard all the evidence, and she
offered up types of evidence which she felt would
warrant a punishment less severe than death. She
specifically mentioned rehabilitation potential,
70a
mental illness, and remorse—all three of which the
Defense later offered in Appellant’s case.
Contrary to Appellant’s claim that MSgt SC
arrived at Appellant’s courtmartial with the intent to
impose death regardless of the evidence or the law,
MSgt SC explained that—considering the charges
without the benefit of any evidence—she felt that the
offenses warranted the death penalty, but that when
given evidence, she would carefully consider it before
deciding on an appropriate punishment.
Appellant was not entitled to a panel of members
entirely devoid of opinions about the relative severity
of offenses or the appropriateness of certain forms of
punishment. Instead, Appellant was entitled to an
impartial and unbiased panel; that is, a panel
composed of members who would consider the
evidence in accordance with the military judge’s
instructions prior to arriving at a judgment. As MSgt
SC repeatedly said during voir dire, her views on the
appropriateness of the death penalty hinged on the
fact she had received no evidence, but once she heard
evidence, she would consider it in determining an
appropriate sentence. Not only did MSgt SC
demonstrate that she did not intend to automatically
vote for the death penalty, we are convinced a person
observing Appellant’s court-martial would not
conclude he received something less than a fair
hearing by virtue of having a panel with MSgt SC on
it.
We are similarly unpersuaded by Appellant’s
argument that MSgt SC did not understand the
concept of the burden of proof. She acknowledged she
was unfamiliar with such legal principles, but once
the military judge explained to her that she was bound
71a
to consider evidence regardless of which party offered
it, and that only the Government had the obligation to
prove the matters required to adjudge the death
penalty, MSgt SC indicated she understood and would
follow those instructions. Regardless of MSgt SC’s
understanding of what a technical definition of
“burden of proof” might be prior to Appellant’s courtmartial, the real issues were whether she understood
the law as the military judge instructed her and
whether she would follow those instructions. She told
the military judge she did and she would, and we see
nothing in the record warranting a contrary
conclusion. Additionally, Appellant does not reassert
on appeal his trial claim that MSgt SC was generally
disinclined to follow directions. We conclude the
military judge neither erred nor abused his discretion
in declining to excuse MSgt SC on actual or implied
bias grounds.
g. Challenge of SMSgt ML
On appeal, Appellant contends the military judge
erred in not excusing SMSgt ML for actual and
implied bias.22 His argument is that despite SMSgt
ML stating she would consider Appellant’s
background in arriving at an appropriate sentence,
“the totality of her answers reveal a fundamental
misunderstanding about her willingness to listen to
certain evidence and her responsibility to
meaningfully consider it.” We take a different view
and conclude SMSgt ML did not suggest she would not
consider evidence about Appellant’s background, but
instead indicated she was not likely to give it a great
22 At trial, Appellant only challenged SMSgt ML on implied bias
grounds. The military judge, however, ruled on both actual and
implied bias bases.
72a
deal of weight. We pause to note that it is not an
unreasonable view, especially for someone who is not
an expert in the criminal justice system, to be
skeptical of the notion that some aspect of an
accused’s childhood might have any obvious bearing
on a sentence for crimes he or she commits as an adult.
SMSgt ML alluded to this view when she discussed
the prior court-martial she served as a member on,
wherein she assessed some amount of testimony from
family members as not “hav[ing] to do with the case.”
But, significantly, SMSgt ML explained that even
though she took a dim view of the relevance of the
information, she understood she was required to
weigh the evidence “based on the importance with the
other evidence.” In other words, SMSgt ML expressed
that she would consider the evidence, even if its
relevance was not particularly obvious. She
elaborated that in such a case, she would “need to
figure out how to weigh that information,” which
demonstrates SMSgt ML not only understood she was
required to consider all the evidence in the case, but
that she would be called upon to assign a weight to
that evidence in order to determine an appropriate
sentence. She reemphasized this point when she
explained that “[n]one of [the evidence] would never
have a weight because if it’s presented to us, then
obviously I have to consider it”—that is, there was no
evidence she would reject from the outset.
Appellant was entitled to a panel of fair and
impartial members willing and able to follow the
military judge’s instructions and not possessing an
inelastic attitude with respect to a particular
punishment. See, e.g., United States v. Schlamer, 52
M.J. 80, 93 (C.A.A.F. 1999) (citation omitted).
Appellant was not entitled to a panel of members
73a
committed to viewing the evidence with the particular
weight he believed it deserved. We also see no
indication the military judge failed to adhere to the
liberal grant mandate with respect to SMSgt ML, or
any of the other challenged members, as evidenced by
the fact he granted 13 challenges to the 25 potential
members and denied only four—one of which was a
Government challenge. Even assuming Appellant
preserved his challenge for actual bias, we conclude
the military judge did not abuse his discretion or
otherwise err in denying the Defense’s challenge of
SMSgt ML.
C. Evidence Regarding Ms. JM’s Skirt
Appellant argues the military judge erred by: (1)
permitting the Government to introduce evidence
about the removal of a skirt worn by Ms. JS, one of
Appellant’s victims; (2) instructing the members that
the fact the skirt was removed was an aggravating
circumstance23 related to Appellant’s offenses; and (3)
allowing the Government to argue Appellant removed
the skirt for a sexual purpose.24 We disagree with
Appellant on all three points.
1. Additional Background
Appellant had been socializing with SrA AS and
Ms. JS along with others the evening of 3 July 2004.
23 In his assignment of error, Appellant states this error pertains
to an “aggravating factor,” a term of art in death penalty
litigation we discuss later in this section. Based upon his
exposition on his claim of error, however, we conclude Appellant
intended to describe this as an “aggravating circumstance,” and
we reframe his assignment accordingly. We have further
reframed this assignment based upon assertions he has made
beyond the heading of the assignment itself.
24 See Appendix, AOE VIII.
74a
At some point that evening, Appellant and Ms. JS
were alone and Appellant attempted to kiss Ms. JS.
She rebuffed his advances, and the two went their
separate ways. SrA AS, Ms. JS, SrA JK, and SrA JK’s
wife spent the next day together cooking out,
drinking, and socializing at SrA JK’s on-base house.
Late that night, after SrA JK’s wife had gone to bed,
Ms. JS decided to tell SrA AS and SrA JK about
Appellant trying to kiss her. This led to SrA AS and
SrA JK making a series of heated phone calls to
Appellant which included threats to both beat up
Appellant as well as to report him to military officials
for not only attempting to kiss Ms. JS but also for
being involved with some other non-specific, but
allegedly improper, relationship. Appellant, who lived
off-base, put on his military fatigues, drove on base,
and hid in bushes behind SrA JK’s house where he
could observe SrA AS, Ms. JS, and SrA JK.
At some point, the three decided to go to SrA AS’s
on-base house, and Appellant followed. Shortly
thereafter, the Government contended, Appellant
entered the house, and a scuffle ensued between
Appellant and SrA AS in which Appellant stabbed SrA
AS with a combat-style knife. SrA JK intervened, and
Appellant stabbed SrA JK multiple times as SrA JK
tried to disengage and leave the house. SrA JK
succeeded in getting outside, but Appellant followed
him and stabbed him again. Appellant left SrA JK,
went back inside SrA AS’s house, and killed both SrA
AS and Ms. JS. Despite his wounds, SrA JK was able
to make his way to a neighbor’s house and seek help.
The Government’s theory at the rehearing was
that Appellant first stabbed SrA AS such that SrA AS
was paralyzed but still conscious, so that when
Appellant attacked Ms. JS a short distance away, SrA
75a
AS was forced to watch helplessly. The Government
further theorized that Appellant killed Ms. JS in a
back bedroom before returning to SrA AS and killing
him. During the rehearing, the Defense disputed
details of this proposed sequence of events regarding
the attacks as well as the claim that SrA AS saw
Appellant attack his wife.
After he killed SrA AS and Ms. JS early in the
morning of 5 July 2004, Appellant left the house and
threw his knife into a neighbor’s yard before driving
back off base and returning home. When medical
responders and military law enforcement personnel
entered SrA AS’s house, they found Ms. JS’s body
behind the door of the back bedroom, out of the line of
sight where SrA AS’s body was found. She was still
wearing her shirt and panties, but the denim skirt she
had been wearing earlier in the evening was laying on
the floor a few feet from her body, unbuttoned and
unzipped. Subsequent analysis determined the skirt
had a large blood stain on the back and a smaller,
fainter blood stain near the front button. There was
no evidence indicating specifically when Ms.
JS’s skirt was taken off or who took it off, although
the blood stain on the back of the skirt and other
aspects of the crime scene suggested the skirt was
removed after she had been stabbed at least once—as
the stain indicated her blood had flowed downwards
into the skirt fabric—but before Appellant completed
his attack. The Government contended SrA AS would
have seen Ms. JS without her skirt on at some point
during the attack.
Later that day, Appellant was riding in a vehicle
driven by one of his friends. The friend decided to stop
by SrA AS’s house to see SrA AS and Ms. JS, unaware
76a
they had been killed. Once they arrived, law
enforcement agents on the scene became suspicious of
Appellant and took him in for an interview— during
which Appellant confessed to the attacks. Appellant
told investigators he stabbed SrA JK and SrA AS,
then killed Ms. JS, and then returned to SrA AS to kill
him. Appellant assisted the investigators in locating
the knife and the clothes he had been wearing, but he
never mentioned Ms. JS’s skirt.
Via pre-rehearing motions, the Defense sought to
preclude the Government from presenting evidence or
argument with respect to the removal of Ms. JS’s
skirt, even though the fact Ms. JS was not wearing her
skirt when her body was found had been proven
during the findings portion of Appellant’s original
trial. The Defense further sought to preclude the
Government from arguing that Appellant either
attempted to sexually assault Ms. JS or had some
sexual motive in attacking her. The Government
opposed both motions.
In order to obtain the death penalty, the
Government must prove, beyond a reasonable doubt,
the presence of at least one “aggravating factor.”
R.C.M. 1004(c). Pertinent here, the Government
sought to prove that the murder “was preceded by the
intentional infliction of substantial physical harm or
prolonged, substantial mental or physical pain and
suffering to the victim.” R.C.M. 1004(c)(7)(I). Part of
the Government’s theory was that Appellant inflicted
mental pain on SrA AS by attacking his wife in front
of him as she was only wearing her underwear below
her waist, while he was paralyzed and unable to
intervene. Trial counsel also told the military judge
the Government intended to argue that SrA AS may
have believed Appellant was raping Ms. JS during the
77a
portion of the attack occurring in the bedroom, where
SrA AS would not have been able to see either
Appellant or Ms. JS.
The Defense, meanwhile, contended that evidence
regarding the skirt would invite the members to
speculate that Appellant sexually assaulted Ms. JS or
attempted to do so, in spite of the lack of direct
evidence of any contemplated, attempted, or
completed sexual assault. Seemingly acknowledging
that some evidence regarding the skirt would be
permitted, trial defense counsel asked the military
judge to block the presentation of “excessive skirt
testimony.”
The military judge ruled that evidence of the
removal of Ms. JS’s skirt after she was initially
stabbed was relevant and admissible as evidence in
aggravation under R.C.M. 1001(b)(4) insofar as it
tended to show Appellant continued his attack on Ms.
JS while she was in her underwear, which Ms. JS was
“certainly aware” of and SrA AS was “likely aware” of.
Further, the military judge concluded the intervening
removal of the skirt provided some evidence of the
length of time spanned by the attack—that is, how
long Ms. JS suffered before Appellant finally killed
her. The military judge determined that there was
“sufficient evidence to infer that [Appellant] is the
person who removed the skirt, [but] it frankly does not
matter” who removed it, because the fact she was
being attacked in her underwear “adds to the
psychological trauma that [Ms. JS] and [SrA AS]
would have experienced.” The military judge further
concluded the evidence was relevant and admissible
to prove the alleged aggravating factor regarding pain
and suffering under R.C.M. 1004(c)(7)(I).
78a
In performing his Mil. R. Evid. 403 analysis, the
military judge explained the probative value of the
evidence was high because of its direct relation to the
impact on the victims, as well as it being directly
related to the facts of the case. The military judge
found that the risk of unfair prejudice was low and
what risk there was could be cured through a limiting
instruction, should the Defense request one. Based
upon this analysis, the military judge declined to
prohibit the Government from presenting additional
evidence about the skirt or the impact it may have had
on the victims.
The military judge did, however, prohibit trial
counsel from arguing that Appellant attempted to
commit any sexual misconduct against Ms. JS when
he attacked her on 5 July 2004. He further prohibited
trial counsel from making any argument that
Appellant had a “sexual purpose” for removing the
skirt, in part because the Government never provided
notice of a sexual offense prior to Appellant’s original
trial.
During opening statements, trial counsel told the
members Appellant stabbed Ms. JS and then, “before
receiving additional stab wounds,” her skirt was
“removed and tossed to the side.” Various Government
witnesses testified about the skirt, such as the fact
Ms. JS had been wearing it earlier in the evening,
where it was found, and the condition it was in. The
pathologist testifying for the Government said she
believed the blood stain and Ms. JS’s wounds
indicated Ms. JS was wearing the skirt when she was
initially stabbed by Appellant, but not when she was
subsequently stabbed—a view also held by the
Government’s bloodstain-pattern analysis expert. An
agent from the Air Force Office of Special
79a
Investigations testified that the skirt was stained
with blood, but did not appear to have been ripped,
torn, or otherwise damaged. Although trial counsel
did not make any explicit comments about Appellant
attempting to sexually assault Ms. JS, they did
present testimony from Appellant’s original trial that
Appellant underwent a sexual assault examination
during the investigation.25 Trial counsel also
presented testimony from that trial in which a second
witness made a reference to “the sexual assault kit”
without specifying whether that was from an
examination of Appellant or Ms. JS. Trial defense
counsel did not object to either reference to sexual
assault examinations.
Other than those two references, no witness
testified about the possibility of either a sexual
assault or a sexual motive on Appellant’s part. On
appeal, Appellant points to a comment made by one of
SrA AS’s brothers, who was a Federal Bureau of
Investigations special agent, in which he volunteered
in his testimony, “my brother knew what was going on
in that house, and there is an ungodly amount of
evidence to prove that.” The comment was not in
response to any question by trial counsel; trial defense
counsel promptly objected, and the military judge both
sustained the objection and told the members to
disregard the comment.
Later in the rehearing, the military judge and the
parties discussed proposed sentencing instructions.
Trial counsel asked the military judge to identify
specific matters in aggravation for the members to
consider, which the military judge and the parties
25 This testimony was read into the record from the transcript of
the original trial.
80a
referred to as “aggravating circumstances.” The
Defense objected to several of these proposed
aggravating circumstances, to include one that stated
Ms. JS’s skirt was removed during the commission of
the offenses. Trial defense counsel argued the
instruction was “raising this inference of some kind of
sexual motive or sexual intent, or that [Appellant] is
the one who removed the skirt.” Trial counsel argued
the fact the skirt had been removed pertained to “the
emotional impact, the emotional distress” suffered by
the victims. The military judge agreed with the
Government, noting that the skirt’s removal was
relevant to the alleged aggravating factor and that it
was “generally an aggravating circumstance that the
murder occurred while she was in that particular
state.” The military judge then reminded trial counsel
that they were not permitted to argue that Appellant
had sexually assaulted Ms. JS, that he attempted to
do so, or that he had any sexual motive. In his final
instructions to the members, the military judge listed
11 aggravating circumstances the members “may”
consider, to include “[e]vidence that [Ms. JS’s] skirt
was removed during the commission of the offense.”
The military judge also gave the members a
limiting instruction with regard to evidence about the
skirt:
You have heard some evidence regarding the
removal of [Ms. JS’s] skirt during the
commission of the offenses. The accused was
not charged with committing, or attempting to
commit, any sexual offense against [Ms. JS].
You may consider evidence relating to the
removal of [Ms. JS]’s skirt in determining
whether the [G]overnment has proven the
alleged aggravating factors, and as a possible
81a
aggravating circumstance. You may not
consider this evidence as an allegation or proof
of a sexual offense. Again, I remind you the
accused is to be sentenced only for the offenses
of which he has been found guilty.
In the Government’s sentencing argument, trial
counsel made a number of references to the skirt, such
as: “[W]e know her skirt was removed;” “Did he take
it off? Did he force her to take it off? How long? How
long did that last?”; “[H]e stabs her in that hallway
with her skirt off. With her skirt off;” and “He was in
uniform. Her skirt was removed.” In the Defense’s
argument, trial defense counsel posited Ms. JS might
have taken the skirt off herself to locate or examine
her wound and pointed to a lack of thorough DNA
testing of the skirt.
2. Law
A military judge’s decision to admit evidence is
reviewed under the abuse of discretion standard.
Finch, 79 M.J. at 394 (citation omitted). Relevant
evidence is generally admissible, and evidence is
relevant when it has the tendency to make a fact of
consequence more or less probable. Mil. R. Evid. 401
and 402. Under R.C.M. 1001, the Government may
present evidence in aggravation during the sentencing
portion of an accused’s court-martial. Evidence in
aggravation includes that which pertains to “any
aggravating circumstances directly relating to or
resulting from the offenses of which the accused has
been found guilty” and includes such matters as the
psychological impact of the accused’s offenses on a
victim. R.C.M. 1001(b)(4). This rule requires the
prerequisite showing that an accused caused a specific
harm, which imposes a higher standard than “mere
82a
relevance.” United States v. Rust, 41 M.J. 472, 478
(C.A.A.F. 1995) (citations omitted).
Evidence qualifying under R.C.M. 1001(b)(4) must
also pass muster under Mil. R. Evid. 403. United
States v. Hardison, 64 M.J. 279, 281 (C.A.A.F. 2007).
Under that rule, a military judge may exclude
evidence if its probative value is substantially
outweighed by such considerations as its tendency to
result in unfair prejudice, confuse the issues, or
mislead the members. A military judge has “wide
discretion” in applying Mil. R. Evid. 403, and we
exercise “great restraint” in reviewing such
applications when the military judge articulates his or
her reasoning on the record. United States v.
Humpherys, 57 M.J. 83, 91 (C.A.A.F. 2002) (citations
omitted).
In order to adjudge the death penalty, the
members must not only find the existence of one of the
aggravating factors under R.C.M. 1004(c), they must
also concur that any extenuating or mitigating
circumstances in the case are substantially
outweighed by any aggravating circumstances
admissible under R.C.M. 1001(b)(4). R.C.M.
1004(b)(4)(C); see also United States v. Loving, 41 M.J.
213, 278 (C.A.A.F. 1994).
When an appellant preserves an allegation of error
with respect to a military judge’s instructions, we
review the adequacy of those instructions de novo.
United States v. Dearing, 63 M.J. 478, 482 (C.A.A.F.
2006). Military judges have “wide discretion” in
fashioning instructions, but those instructions must
“provide an accurate, complete, and intelligible
statement of the law.” United States v. Behenna, 71
M.J. 228, 232 (C.A.A.F. 2012) (citations omitted).
83a
3. Analysis
We first turn to Appellant’s contention that the
military judge erred by permitting the Government to
present evidence of Ms. JS’s skirt being removed
during the attack. Appellant generally argues the
matter had low probative value, and whatever
probative value it had was substantially outweighed
by the danger of unfair prejudice—that is, the threat
the members would assume Appellant intended or
attempted to sexually assault Ms. JS. Res gestae
evidence—evidence which is part and parcel of an
offense—is generally admissible insofar as it “enables
the factfinder to see the full picture so that the
evidence will not be confusing and prevents gaps in a
narrative of occurrences which might induce
unwarranted speculation.” United States v. Metz, 34
M.J. 349, 351 (C.M.A. 1992). In this case, the members
were presented with not only crime scene photographs
depicting both Ms. JS’s body without her skirt on and
the blood-stained skirt itself, but also detailed
evidence supporting theories about how the attacks
unfolded. In our view, omitting evidence of the skirt
itself, to include when it was likely removed, would
have created far more confusion and squarely invited
speculation by the members as to why Ms. JS was not
wearing her skirt when her body was found. Moreover,
the fact her skirt was removed at some point during
the attack does provide insight into the length of
Appellant’s entire attack, which is to say, the amount
of physical suffering Appellant inflicted upon Ms. JS
before she died. It is also an indication of mental
suffering she may have endured, as Ms. JS may have
been all the more terrorized by the removal of an
article of her clothing during Appellant’s attack.
Members very well may have concluded that
84a
Appellant took Ms. JS’s skirt off her and that she
spent her last moments trying to understand his
reasons for doing so.
In short, the removal of Ms. JS’s skirt during the
attack—regardless of how it occurred—is squarely the
type of evidence in aggravation contemplated by
R.C.M. 1001(b)(4), as it demonstrated the pain and
suffering Appellant inflicted on one of his victims
beyond the sheer brutality of his offenses. To the
extent there was a danger of the members misusing
this evidence to inject a sexual offense into Appellant’s
case, the military judge told the members they could
not use the evidence for that purpose. Without any
evidence to indicate otherwise, we presume the
members followed the military judge’s instructions.
United States v. Taylor, 53 M.J. 195, 198 (C.A.A.F.
2000) (citations omitted). We also note that the
Government largely followed the military judge’s
ruling prohibiting trial counsel from raising the
specter of sexual assault. Although trial counsel did
introduce two statements indicating a sexual assault
examination had been conducted—the relevance of
which is not at all apparent from the record—those
were two isolated statements during a lengthy
rehearing and were introduced without objection from
the Defense.26 Given the brief and isolated nature of
these statements, we conclude the military judge’s
limiting instruction to the members served to
neutralize any potential unfair prejudice they may
have had. Meanwhile, SrA AS’s brother’s testimony
that there was “an ungodly amount of evidence to
26 Because the statements were from prior trial testimony and
marked as appellate exhibits, the Defense was on notice of the
statements in advance of them being read to the members.
85a
prove” that SrA AS “knew what was going on in that
house” was too vague for us to give it the import
Appellant calls upon us to give it. SrA AS’s brother
may have been suggesting Appellant attempted to
sexually assault Ms. JS, but he also may have been
suggesting that SrA AS was still alive and paralyzed
on the ground while watching Appellant kill his wife.
In any event, the Defense’s objection to the comment
was sustained, and the members were told to
disregard it almost immediately after SrA AS’s
brother made it. In light of the foregoing, we conclude
the military judge did not abuse his discretion by
admitting evidence of Ms. JS’s skirt, and the military
judge’s limiting instruction properly constrained the
members’ use of the evidence.
Appellant’s next contention—that the military
judge erred in instructing the members they could
consider evidence that Ms. JS’s skirt was removed
during the offense as a matter in aggravation—is
similarly
unpersuasive.
This
aggravating
circumstance was among 11 the military judge
highlighted for the members, which included such
other matters as the mental and physical pain
suffered by SrA JK, the nature of the weapon
Appellant used, and the fact the offenses occurred in
base
housing.
Notably,
these
aggravating
circumstances in the military judge’s instructions
were followed by 26 extenuating or mitigating
circumstances requested by the Defense. Because the
Government was seeking the death penalty, the
members had to determine whether or not
extenuating or mitigating circumstances were
substantially
outweighed
by
aggravating
circumstances in the case in accordance with R.C.M.
1004(b)(4)(C). Thus, the issue of the need to weigh
86a
these circumstances was directly before the members
and was an appropriate matter for a judicial
instruction. Although military judges are not
necessarily under any obligation to specifically
identify discrete circumstances in aggravation or in
extenuation and mitigation, doing so is not
uncommon, especially in the context of capital
litigation. See, e.g., Loving v. United States, 68 M.J. 1,
8–9 (C.A.A.F. 2009). Considering the degree of
scrutiny of such cases, it seems entirely reasonable for
a military judge overseeing a capital trial to explicitly
specify such circumstances so that there is no later
question as to what circumstances were considered by
the members. Therefore, we conclude the military
judge committed no error in instructing the members
that the removal of Ms. JS’s skirt was an aggravating
circumstance which they could consider.
Finally, we have carefully reviewed the
Government’s closing argument and rebuttal
argument, and we disagree with Appellant’s claim
that trial counsel argued Appellant removed Ms. JS’s
skirt for a sexual purpose. The Defense only objected
twice during the Government’s arguments, and
neither objection pertained to the skirt. On appeal,
Appellant argues “the connotation was clear from
[trial counsel’s] argument” that Appellant intended to
sexually assault Ms. JS, and that trial counsel
“insinuated” that SrA AS believed Ms. JS had been or
was about to be sexually assaulted. We do not see any
such connotations or insinuations. Rather, trial
counsel argued—in accordance with the military
judge’s earlier ruling—that the fact Ms. JS’s skirt had
been removed may have made Appellant’s attack all
the more traumatizing for SrA AS and Ms. JS while
they were still alive. This argument was proper and
87a
directly drawn from the evidence, and the military
judge did not err by not sua sponte interrupting the
argument.
D. Cross-Examination Lacking Good Faith Basis
The Defense sought to portray Appellant as a
model prisoner at the United States Disciplinary
Barracks, where he had been incarcerated since his
original court-martial. Trial counsel, meanwhile,
attempted to characterize Appellant’s prison conduct
as less than exemplary by asking one of the Defense’s
witnesses whether or not he was aware of misconduct
purportedly committed by Appellant. On appeal,
Appellant contends trial counsel lacked a good faith
basis for asking the questions and thereby committed
prosecutorial misconduct by doing so.27
1. Additional Background
Mr. JL, a licensed clinical social worker, had been
the Disciplinary Barracks’ chief of assessment and
was responsible for determining what risks inmates
posed. He also became Appellant’s counselor when
Appellant transitioned from death row to the prison’s
general population in September 2016 after
Appellant’s death penalty was set aside by the CAAF,
and he remained Appellant’s counselor until he
retired in November 2017. He described his role as
“[d]ay-to-day case management, helping the people
adjust, get along, make changes.” He explained the
opportunities prisoners have, the prison’s disciplinary
tools, and the informal hierarchy that existed among
the prison population. He testified Appellant
purposely sought to avoid disrupting that hierarchy
when he was transferred to the prison’s general
27 See Appendix, AOE VI.
88a
population and participated in every program offered
as soon as he was able to.28 During his incarceration,
Appellant received only a single disciplinary report.
The report arose from him retaining tobacco products
he had purchased from the prison commissary in his
cell in 2008 after the Disciplinary Barracks adopted a
facility-wide no-smoking policy. Mr. JL characterized
the infraction as “very minor” and described Appellant
as “certainly cooperative, very compliant. Follows the
rules. Very eager to get involved in programs. Very
motivated to figure out behaviors, and why he’s in the
situation he’s in, why he did what he did.”
Trial defense counsel asked Mr. JL whether
Appellant had told him about “kind of a run-in he had
with one of the other inmates, and an argument he
had with him about who might run the pod” that
Appellant was assigned to. Mr. JL agreed Appellant
had, but said,
[M]y take of it was the other inmate was
intimidated. [Appellant] was not in a position
where he was trying to take over, gain any
power, any position in that respect. And was
just wanting to go in there and be part of the
unit. He wasn’t as—he wasn’t demanding to sit
28 While on death row, Appellant had far fewer opportunities to
interact with other prisoners or to participate in programs
offered by the prison. Although the members serving on the
rehearing panel were made aware that Appellant had been
subjected to some form of restricted incarceration prior to
entering the general population, the fact Appellant had been
previously sentenced to death and placed on death row was not
revealed to them.
89a
in the front row, if you will, or anything of that
nature.[29]
At some later point, Appellant was moved to a
different pod of prisoners. According to Mr. JL,
Appellant would have received a disciplinary report if
any incident “turned physical or violent, or even if it
was loud—yelling or what have you.”
On cross-examination and without objection, trial
counsel asked Mr. JL if he was aware that once
Appellant was in the new pod that Appellant had
approached Inmate RC and “got into a shouting
match” over whether Appellant should be allowed to
be “the front row center.” Mr. JL said he was unaware
of this. The Defense subsequently called Inmate TS
from this same pod who testified Appellant had told a
particular inmate to stop attempting to exert so much
control over the other inmates, but this simply
amounted to a conversation, not an argument. Trial
counsel asked Inmate TS whether this incident
stemmed from Appellant wanting to sit in the front
row, but Inmate TS said it had not. Another inmate
said he had heard about a “conflict” between
Appellant and two other inmates, but he provided no
detail beyond acknowledging his awareness.
Trial counsel also raised the suggestion Appellant
had acted inappropriately on another occasion by
asking Mr. JL whether he had been approached by
other staff members who expressed concern about
Appellant’s “aggressive interaction with a female
biology instructor.” Mr. JL said he had been so
approached. Trial counsel asked whether Appellant
29 When watching television, prisoners with higher status among
the inmates get to sit in the front row of seats.
90a
“was angry about a grade he received on the first exam
and confronted [the instructor] in a very aggressive
manner.” Mr. JL answered affirmatively. Both
questions were asked without objection.
The Defense, however, called the biology professor
who flatly rejected trial counsel’s characterization,
testifying that Appellant approached her after the
exam to tell her he thought she was teaching the class
at a graduate level. She said he “tapped the desk [and]
waived his finger at [her] a little bit.” Concerned
Appellant was struggling with the material and that
he may not have known he could drop the class at that
stage without financial or academic penalty, she
called the prison’s academic point of contact, Mr. MM,
to see if Appellant understood his options in this
regard. The professor not only testified she did not feel
threatened, but that she was “still very angry” the
matter was discussed beyond giving Appellant advice
about his options. She also said she was
“disappointed” to hear Appellant’s conduct had been
described as aggressive. The professor explained she
gave Appellant a copy of one of her graduate-level
exams for him to look at, after which Appellant
apologized to her and the quality of his work
“increased drastically” by the end of the semester. Mr.
MM testified that he personally did not see
Appellant’s conduct as inappropriate, but that
“someone” perceived it as overly aggressive.
In prison records admitted into evidence by the
Defense, one of Mr. JL’s counseling entries notes
Appellant told Mr. JL that “he reacted to the
instructor, venting his frustration about the test,” but
that “he did not believe he was overreacting or was in
any way threatening towards her.” Mr. JL further
wrote in his notes:
91a
Discussed with [Appellant] his recent
interaction with his biology instructor. Staff
members from [the prison’s Directorate of
Correctional Programs] approached this
counselor
and
were
concerned
about
[Appellant’s] aggressive interaction with the
instructor. The staff members were told by the
instructor that [Appellant] was angry about the
grade he received on the first exam and
confronted her about the exam in what she
thought was a very aggressive manner. When
this information was relayed to [Appellant] he
was surprised. He did not believe he came
across this way at all. . . . He stated he
appreciated the feedback [ ]and will be more
aware of this [in] interactions with her in the
future.
Later in the rehearing, the military judge
instructed the members that asking witnesses “have
you heard” type questions was a permissible method
of testing a witness’s opinion and to enable the
members to assess what weight the witness’s
testimony should be given. The military judge further
explained, “If the witness admits knowledge of the
matter, then you may also consider the question and
answer to rebut the opinion given. . . . The question
may only be considered for the limited purpose I
stated.”
None of these matters was referenced in the
Government’s sentencing argument; however, as
discussed in greater detail in Section II(H), infra, of
this opinion, trial counsel did ask the members what
risk they would accept on a confinement officer’s
behalf if they did not sentence Appellant to death.
92a
2. Law
Counsel may test a witness’s opinion regarding the
character of another person by asking “have you
heard” or “are you aware” type questions which refer
to specific instances of conduct—as long as there is a
good faith basis for asking the question, and the
question is otherwise permissible under the rules of
evidence. United States v. Saul, 26 M.J. 568, 572
(A.F.C.M.R. 1988). The specific instances themselves
are not offered to prove they did or did not occur, but
rather to evaluate the proffered opinion. United States
v. Beno, 324 F.2d 582, 588 (2d Cir. 1963); see also
United States v. Anderson, No. ACM 39141, 2018 CCA
LEXIS 122, at *5 (A.F. Ct. Crim. App. 28 Feb. 2018)
(unpub. op.).
3. Analysis
Appellant argues the Government attempted to
portray him as “a violent, aggressive person” by
asking misleading “have you heard” questions about
events characterized by competing narratives or
lacking evidentiary support. The main topics at issue
here are the claims of confrontations between
Appellant and other inmates and his interaction with
his biology instructor.
Because Appellant did not object at trial to trial
counsel’s questions about his alleged confrontations
with the other inmates, Appellant forfeited this issue,
and we review for plain error. Due to the lack of a trial
objection, we are somewhat hampered in our ability to
assess what, if anything, formed the basis for trial
counsel’s suggestion that Appellant was embroiled in
“a shouting match” regarding Appellant being “the
front row center.” It was clear from the testimony that
Appellant had conversations and likely disagreements
93a
with at least two other inmates, but Mr. JL disavowed
any knowledge of the situation trial counsel
propounded, and no witness supported the version of
events suggested by trial counsel.
Regardless of whether trial counsel had a good
faith basis for asking the question, we conclude
Appellant was in no way prejudiced for two reasons.
First, the military judge told the members they could
only consider the Government’s questions if the
witness admits to knowing about the matter, which
Mr. JL did not do. Unless there is evidence to the
contrary, we will presume court members follow the
instructions they are given by the military judge.
United States v. Stewart, 71 M.J. 38, 42 (C.A.A.F.
2012) (citing Taylor, 53 M.J. at 198). Thus, the
members should have ignored trial counsel’s question
to Mr. JL, and we see nothing to indicate that they did
not do so. Second, even if the members did not and
improperly concluded from the question that
Appellant had gotten into a heated argument about
the informal prisoner hierarchy, we find it implausible
such a conclusion would have had any impact on the
members’ assessment of an appropriate sentence.
That prisoners confined in close proximity to each
other in a highly restrictive setting may have
arguments— even heated ones—from time to time is
hardly unexpected. Given the vastly more severe
character of Appellant’s charged offenses, any
jailhouse arguments not significant enough to
warrant intervention by the prison’s staff could not
reasonably be expected to have had any impact on the
members’ decision to not grant him a sentence
involving the possibility of parole.
With respect to trial counsel’s questions about
Appellant’s interaction with his biology professor, we
94a
conclude trial counsel had a good faith basis for his
questions about this episode, and therefore we do not
find prosecutorial misconduct. Because both Mr. JL
and Mr. MM testified that at least someone on the
prison staff was concerned Appellant had acted
aggressively toward the professor, and Mr. JL’s
clinical notes offered in evidence by the Defense
corroborate this, trial counsel had some basis for
framing the question as they did, despite the fact the
professor and Mr. MM saw the situation differently.
Thus, we disagree with Appellant’s contention that
trial counsel lacked a good faith basis for asking the
questions in the first place. Nevertheless, even if we
were to conclude trial counsel lacked a good faith basis
for asking about an “aggressive interaction,” we would
find no prejudice to Appellant in light of his attorneys’
effective evisceration of the suggestion Appellant had
behaved inappropriately. The professor’s own
testimony, along with the absence of disciplinary
action and the fact Appellant stayed in the biology
class, apparently successfully completing the
semester, all substantially undermined the
Government’s attempts to frame the episode as
misconduct. As a result, even if there was error here,
the likelihood of the members drawing any negative
connotation from trial counsel’s questions was remote.
If anything, Appellant’s case was potentially bolstered
by trial counsel’s efforts, which demonstrated how far
the prosecution team had to reach to imply Appellant
was a problematic prisoner. The fact trial counsel did
not reference the matter in the Government’s
sentencing argument suggests they also determined
the claim was not worth revisiting.
95a
E. Demonstrative Aid Used in Dr. TR’s CrossExamination
Appellant argues the military judge erred by
permitting trial counsel to display several slides
during the cross-examination of a defense expert
witness, because the slides contained information
which was never admitted into evidence.30 We
disagree.
1. Additional Background
The Defense called Dr. TR, an expert in the field of
“prison risk assessment and inmate adjustment,” to
testify that—in his opinion—Appellant had adapted
well to life in prison and posed a low probability of
engaging in violent behavior while incarcerated. The
Defense also admitted a report prepared by Dr. TR
detailing his assessment of Appellant. The report
indicates Dr. TR arrived at his opinion by considering:
his interview with Appellant; his review of Appellant’s
prison record; his tour of the Disciplinary Barracks;
briefings and interviews which Dr. TR participated in
regarding the facility’s population, policies, and
procedures; and his review of “capital risk assessment
scientific literature.”31 Significantly, Dr. TR explained
in his report that he was asked to evaluate Appellant’s
risk of committing violence in confinement in the
event he was sentenced to life without the possibility
of parole.
Dr. TR testified that one challenge facing the
scientific
community
in
predicting
future
30 See Appendix, AOE IX.
31 The version of the report admitted into evidence did not include
citations to the studies and articles Dr. TR relied upon, but the
parties possessed a version of the report which did.
96a
dangerousness of prisoners is that prison violence is
relatively rare and is perpetrated by only a small
percentage of inmates. He said that violence in the
Disciplinary Barracks was minimal and rarely
aggravated, and that there had only been a single case
of a prisoner murdering another in the prison’s
history. Dr. TR testified that prisoners serving
sentences to life without the possibility of parole are
generally better behaved in prison than those with
other sentences; that the severity of a prisoner’s
violence which originally resulted in his or her
incarceration is not a good predictor of whether that
prisoner will be violent in prison; and that a prisoner’s
propensity for
violent jailhouse misconduct
diminishes as he or she ages.
In assessing Appellant, Dr. TR noted the
Disciplinary Barracks staff considered Appellant to be
“a model inmate,” and that he had “continually and
successfully participated in available programming,
ongoing treatment, daily work, continued education,
and [had] received consistently positive appraisals by
[Disciplinary Barracks] staff.” Dr. TR highlighted that
Appellant had no violent infractions in his more than
12 years of incarceration and that his age of 35 at the
time of his assessment made him statistically less
likely to engage in prison misconduct of any sort. Dr.
TR also explained Appellant’s custody level had been
upgraded twice, granting Appellant relief from certain
prison restrictions.
During Dr. TR’s direct examination, trial defense
counsel used a series of 32 slides
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.