# Petition for Writ of Certiorari — Triomphe Investors v. City of Northwood

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1995
- **Citation:** 516 U.S. 816

## Text

Supreme Court, U.5.
FILED

931991 WN 14 199%

No. QEFICE OF THE CLERK

In the Supreme Court of the United States

OCTOBER TERM, 1993

OSCAR ANDERSON, JR., PETITIONER
Vv.

UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF MILITARY APPEALS

PETITION FOR WRIT OF CERTIORARI

JAY LINDSEY COHEN

Colonel, United States Air Force

Chief Appellate Defense Division
(Counsel of Record)

RICHARD D. DESMOND

Captain, United States Air Force

Appellate Defense Counsel
Counsel for the Petitioner

AIR FORCE LEGAL SERVICES AGENCY
Appellate Defense Division

172 Luke Avenue, Suite 208

Bolling AFB, DC 20332-5113

JUNE 1994

QUESTION PRESENTED

Where no comparable evidence is likely to be available
to the defendant, do the Due Process clauses of the Fifth
and Fourteenth Amendments require that police, irrespec-
tive of bad faith, preserve physical evidence of a type that
they reasonably should know has the potential, if tested,
to exculpate a defendant charged with a crime?

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TABLE OF CONTENTS

Page
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Constitutional Provisions Involved ............. 2
gk ee ee 2
Reasons for Granting the Writ ................. 5
errr Ss er rrr TS ne 13
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TABLE OF AUTHORITIES

Cases: Page
SUPREME COURT:
Arizona v. Youngblood, 488 U.S. 51 (1988) .. 5, 6,

7, 11
Brady v. Maryland, 373 U.S. 83 (1963) ...... 7,8
California v. Trombetta, 467 U.S. 479
Ll.) eee 6, 7, 8, 9, 10
Killian v. United States, 368 U.S. 231 (1961) .. 6,9
Mooney v. Holohan, 294 U.S. 103 (1935) .... 8
United States v. Agur, 427 U.S. 97 (1976) .... Pa
FEDERAL:
Mitchell v. Goldsmith, 878 F.2d 319 (9th Cir.
eer re 10, 11
United States v. Barton, 995 F.2d 931 (9th Cir. !
CT Col CL i weeh aes 40s's Se escecencess 11
United States v. Morgenstern, 933 F.2d 1108
(2d Cir. 1989) ......... eee eee eee eee 10
United States v. Rastelli, 870 F.2d 822 (2d Cir.
Pry rrr roo 10
MILITARY:
United States v. Keen, 22 M.J. 49 (C.M.A.
ais ce nents wasieeassewscesess il
United States v. Mobley, 31 M.J. 273 (C.M.A.
PO nn ncn sce sccccscccesccncccseesess 11

UNIFORM CODE OF MILITARY JUSTICE:
Article 46, 10 U.S.C. § 846 ........----++->: i]

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In the Supreme Court of the United States

OCTOBER TERM, 1993

No.
OSCAR ANDERSON, JR., PETITIONER
V.

UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF MILITARY APPEALS

PETITION FOR WRIT OF CERTIORARI

The petitioner, Oscar Anderson, Jr., respectfully prays
that a writ of certiorari issue to review the order and judg-
ment of the United States Court of Military Appeals
entered in his case on 17 March 1994.

OPINIONS BELOW

The order and judgment of the United States Court of
Military Appeals, dated 17 March 1994, USCMA Docket
No. 93-0926/AF, is located at Appendix A. The opinion
of the United States Air Force Court of Military Review,
reported at 36 M.J. 963 (AFCMR 1993), affirming the
conviction (setting aside only the escape from confinement
conviction) is reported at Appendix B.

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JURISDICTION

The final order of the United States Court of Military
Appeals was entered on 17 March 1994. The jurisdiction
of this Court is invoked under 28 U.S.C.A. § 1259(3)
(Supp. 1992) and 10 U.S.C.A. § 867(a) (Supp. 1992).

CONSTITUTIONAL PROVISIONS INVOLVED

The Fifth and Fourteenth Amendments of the Constitu-
tion of the United States provide in relevant part:

No person shall . . . be deprived of life, liberty,
or property, without due process of law. .

STATEMENT OF THE CASE

On 2 January 1990, petitioner’s sister telephoned the
Austin City Police Department. She related to the police a
telephone conversation petitioner had with his mother in
which he claimed to have killed his wife, Arlene Anderson,
at Mrs. Anderson’s apartment. Senior Sergeant Donald
McDavid, Austin City Police Department, responded to
Arlene Anderson’s apartment at 1730 hours on 2 January
1990. (R. 457-58). Not knowing whether anyone was still
in the apartment, it was determined to effectuate a
“dynamic entry” into the residence. (R. 460). That tech-
nique involves forcing the door and bursting into the
dwelling quickly and violently with weapons drawn. (Id.).
The “dynamic entry” technique does not concern itself
with the preservation of evidence. The body of Arlene
Anderson was discovered in the apartment. (R. 462).

Homicide detectives were immediately notified and
soon the apartment was full of police officers. (R. 476-80).
In addition to uniformed officers, the homicide detectives,
two photographers, and other forensic experts, at least

3

two agents from the Air Force Office of Special Investiga-
tions (AFOSI) were present. Although the domicile was a
small, efficiency apartment, as many as 14 police officers
were logged into the crime scene area before any of them
were logged out. (R. 480). Sergeant McDavid conceded
that it would be difficult to preserve evidence with that
many people milling about. (R. 481).

The homicide team arrived at around 1910 hours. (R.
$03). At trial, homicide detective Sergeant Bruce Board-
man described the scene. (R. 491-94). The living room
contained signs of a struggle, including spatterings of
blood on the carpet and a woman’s purse, earrings, loose
change, and other items near the kitchen. (Id.; Pros. Ex.
55). A note was discovered on the floor near the kitchen as
well. (Pros. Ex. 62).

An autopsy report showed that Arlene Anderson died as
a result of three stab wounds to the chest. (R. 568-74,
Pros. Ex. 71). Doctor Joseph Jachimczyk, the Chief
Medical examiner for Harris County, Texas conducted the
autopsy and concluded that the evidence at the crime scene
and that discovered in his examination was consistent with
a mutual combat scenario. (R. 578).

At trial, the government also called Dr. (Captain) Glen
N. Wagner (U.S.N.), who concluded that the crime scene
and autopsy evidence indicated an escalating confronta-
tion that moved from room to room. (R. 750-51). Specifi-
cally, Dr. Wagner found that the evidence was thoroughly
consistent with a spontaneous, mutual combat situation
and that no evidence of plan or design by the perpetrator
was discovered at the scene or on the body. (Id.).

Two knives were found in the apartment. (R. 491, Pros.
Ex. 58, 59). A fillet knife with blood stains on it was laying
on the breakfast bar and a steak knife with a bent blade

4

was laying on the kitchen floor close to the dishwasher.
(R. 491). The civilian police affixed gummed tape to the
blade of one of the weapons, thereby obliterating any
fingerprints that could have demonstrated whether Arlene
might have wielded it during the confrontation. (R.
149-51). Apparently, neither knife was subjected to blood
testing or typing. (R. 150).

The police never tested or typed many of the bloodstains
found at the scene. (R. 147-48, 508). Bloodstains on the
clothes hamper were not preserved (R. 538), bloody boot
prints were not preserved (R. 539) and even the blood near
the victim’s feet was never tested. (R. 509). The largest ac-
cumulation of blood at the scene was concentrated on the
carpeting under the coffee table in the living room. (R.
508). The bloodstained carpeting, however, was not pre-
served by the police. When AFOSI Special Agent (SA)
Felicia Carroll returned to the apartment over a week after
the incident in a belated effort to secure this evidence, she
discovered that the landlord had already taken it up and
thrown it away. (R. 153-54).

A day after the incident, petitioner attempted suicide by
driving his vehicle into the path of an 18-wheel semi
tractor-trailer. Although not fatal, the attempt left peti-
tioner seriously injured. He had to appear at trial in a
wheelchair.

Petitioner was convicted of escape from confinement,
premeditated murder, and an assault. The charges were
referred without limiting instructions, permitting a capital
sentence to be available for murder, but the findings were
not reached unanimously, and so mandatory confinement
for life was adjudged. In addition to the life sentence, peti-
tioner was sentenced to a dishonorable discharge, forfei-
ture of all pay and allowances, and reduction to the lowest
enlisted grade.

5

Petitioner filed an appeal with the Air Force Court of
Military Review alleging 17 errors in his court-martial and
inviting the Court’s attention to 5 additional issues raised
by trial defense counsel. In an opinion dated 15 February
1993, the Air Force Court of Military Review found merit
with only one of the alleged errors and dismissed the
escape from confinement charge based on petitioner’s
argument that the evidence was legally insufficient to sup-
port the charge.

Addressing the issue of the government’s failure to pre-
serve evidence, the Court of Review found that while the
police were negligent in failing to preserve certain evi-
dence, there was no showing of bad faith on the part of the
police investigators and, thus, no violation of due process.
Arizona v. Youngblood, 488 U.S. 51 (1988).

The United States Court of Military Appeals granted
review: of the Air Force Court’s decision and summarily af-
firmed, thereby preserving this issue for review by this
Honorable Court.

REASONS FOR GRANTING THE WRIT

In Arizona v. Youngblood, 488 U.S. 333 (1988), this
Court held that failure by police to preserve potentially ex-
culpatory evidence, absent a showing of bad faith on the
part of the police, was not a violation of due process. The
Youngblood decision, however, is based on a line of cases
in which there was no requirement that government ac-
tions that deny a defendant access to exculpatory evidence
be taken in bad faith to violate due process. Additionally,
while the Youngblood majority was quick to create a re-
quirement that heretofore never existed in the prior case-
law it used to support its decision, it also never explained
what constituted “bad faith”. This Honorable Court needs

6

to revisit and definitively address the failure of police to
preserve potentially exculpatory evidence for a defendant,
irrespective of good faith or bad faith. As noted by Justice
Blackmun in his dissent in Youngblood, the Constitution
requires that criminal defendants be provided with a fair
trial, not merely a “good faith” try at a fair trial. Young-
blood at 339.

In Youngblood, this Court held that unless a criminal
defendant can show bad faith on the part of the police,
failure to preserve potentially exculpatory evidence does
not constitute a denial of due process of law. The police in
Youngblood failed to refrigerate the clothing of a 10 year-
old sodomy victim aid failed to perform tests on his
semen samples. The defendant argued that the destruction
of evidence which could have eliminated him as the perpe-
trator (identity was an issue at trial) violated his right to
due process. While referring to a number of past decisions
in the area of “what might loosely be called the area of
constitutionally guaranteed access to evidence”, the
Youngblood court relied on California v. Trombetta, 467
U.S. 479 (1984), to support its holding. Youngblood at 55.

Trombetta arose out of a drunk driving prosecution in
which the State had introduced test results indicating the
concentration of alcohol in the blood of two motorists.
The defendants sought to suppress the test results on the
ground that the State had failed to preserve the breath
samples used in the test. The 7rombetta court rejected this
argument for several reasons: first, “the officers here were
acting in ‘good faith and in accord with their normal prac-
tice,’ ” (quoting Killian v. United States, 368 U.S. 231, 242
(1961)); second, in light of the procedures actually used
the chances that the preserved samples would have excul-
pated the defendants were slim; and third, even if the
samples might have shown inaccuracy in the tests, the de-

7

fendants had “alternative means of demonstrating their in-
nocence.” Trombetta at 488-90.

Relying heavily on its decision in Trombetta, the
Youngblood court concluded that requiring a defendant to
show bad faith on the part of the police both limits the ex-
tent of the police’s obligation to preserve evidence to rea-
sonable bounds and confines it to that class of cases where
the interests of justice most clearly require it, i.e., those
cases in which the police themselves by their conduct indi-
cate that the evidence could form a basis for exonerating
the defendant. Youngblood at 58. The Youngblood
Court, however, misapplied its decision in Trombetta,
creating a heretofore unknown requirement of bad faith.
Further, the Court made minimal reference to its past
decisions that did not require an examination of the intent
of the government in access to evidence cases.

In Brady v. Maryland, 373 U.S. 83 (1963), this Court
held that “the suppression by the prosecution of evidence
favorable to the accused upon request violates due process
where the evidence is material either to guilt or to punish-
ment, irrespective of the good faith, or bad faith of the
prosecution.” Id., at 111 (emphasis added). In United
States v. Agurs, 427 U.S. 97 (1976), this Court held that
the prosecution had a duty to disclose evidence favorable
to the accused even though no requests were made for it,
but at the same time the Court rejected the notion that “a
prosecutor has a constitutional duty routinely to deliver
his entire file to defense counsel.” /d., at 111.

As noted previously, Trombetta addressed the question
of “whether the Fourteenth Amendment ... demands
that the State preserve potentially exculpatory evidence on
behalf of defendants.” Justice Marshall, writing for the
Court, noted that while the particular question was one of

8

first impression, the general standards to be applied had
been developed in a number of cases, including Brady and
Agurs. As noted by Justice Marshall, those cases in no
way required that government actions that denied a de-
fendant access to material evidence be taken in bad faith in
order to violate due process. Citing Brady, Justice Mar-
shall explained that the principle underlying earlier cases,
e.g., Mooney v. Holohan, 294 U.S. 103 (1935) (violation
of due process when the prosecutor presented perjured
testimony) was “not punishment of society for misdeeds of
a prosecutor but avoidance of an unfair trial to the ac-
cused.” Brady at 87 (emphasis added). The failure to turn
over material evidence, the Brady Court stated, “casts the
prosecutor in the role of an architect of a proceeding that
does not comport with standards of justice, even though,
as in the present case, his action is not ‘the result of
guile.’ ” Id. at 88 (emphasis added).

In Trombetta, the Court also relied on Agurs which re-
quired a prosecutor to turn over to the defense evidence
that was “clearly supportive of a claim of innocence” even
without a defense request. The Court noted that the prose-
cutor’s duty was not one of constitutional dimension
unless the evidence was such that its “omission deprived
the defendant of a fair trial,” id., at 108, and explained:

Nor do we believe the constitutional obiigation is
measured by the moral culpability, or the willful-
ness, of the prosecutor. If evidence highly proba-
tive of innocence is in his file, he should be pre-
sumed to recognize its significance even if he has
actually overlooked it . . . If the suppression of
evidence results in constitutional error, it is be-
cause of the character of the evidence, not the
character of the prosecutor.

Id. at 110 (emphasis added).

9

The Agurs Court held that the prosecutor’s state of
mind is not determinative. Rather, the proper standard
focuses on the materiality of the evidence, and that stand-
ard reflects the Court’s “overriding concern with the
justice of the finding of guilt.” Jd. at 112.

Brady and Agurs clearly state that a prosecutor’s bad
faith in interfering with a defendant’s access to material
evidence is not an essential part of a due process violation.
Nor did Trombetta create such a requirement. The
Trombetta decision initially focused on the due process re-
quirement “that criminal defendants be afforded a mean-
ingful opportunity to present a complete defense,” 467
U.S. at 485, and then noted that the delivery of exculpa-
tory evidence to the defendant “protect[s] the innocent
from erroneous conviction and ensur{es] the integrity of
our criminal justice system.” /bid. The language of
Trombetta includes a quotation in which the words “in
good faith” appear. The words are the antecedent part of
the fuller phrase “in good faith and in accord with their
normal practice.” Jd. at 488. That phrase is found in
Killian v. United States, 368 U.S. 231 (1961), where the
Court held that the practice of discarding investigators’
notes, used to compile reports that were then received in
evidence, did not violate due process. In both Killian and
Trombetta, the importance of police compliance with
usual procedures was manifest.

Secondly, Trombetta demonstrated that the absence of
bad faith does not end the analysis. The determination in
Trombetta that tne prosecution acted in good faith and ac-
cording to normal practice merely prefaced the primary in-
quiry, which centers on the “constitutional materiality” of
the evidence itself. 467 U.S. at 489. There is nothing in
Trombetta that intimates that good faith alone should be
the measure. To the contrary, Trombetta instructs a court

10

to determine whether the evidence possesses “an exculpa-
tory value that was apparent before the evidence was de-
stroyed” and whether it was “of such a nature ihat the de-
fendant would be unable to obtain comparable evidence
by other reasonably available means.” Trombetta at 489.
Neither requirement was met in Trombetta. The evidence
in Trombetta, samples of breath taken from suspected
drunk drivers, had been discarded after police had tested
them using an Intoxilyzer, a device for measuring blood-
alcohol levels. The Court reasoned that the likelihood of
the post-test samples proving to be exculpatory was ex-
tremely low, and that the defendants were able to attack
the test’s reliability by presenting evidence of ways in
which the Intoxilyzer might have malfunctioned. Jd. at
481-82. There was nothing in the Trombetta decision that
intimated that good faith alone shouid be the measure in
cases where the police have failed to preserve exculpatory
evidence.

Unfortunately, lower courts have placed more emphasis
on Youngblood’s “bad faith” standard than on
Trombetta’s requirement that “the evidence possess ex-
culpatory value that was apparent before the evidence was
destroyed.” Lower court application of Youngblood’s
“bad faith” standard is more troubling in light of the
Youngblood’s majority’s failure to define what constitutes
“bad faith”. See, e.g., United States v. Morgenstern, 933
F.2d 1108, 1115-16 (2d Cir. 1991) (loss of evidence through
unthinkable negligence of gross magnitude—\oaning
materials to complaining witnesses —did not substantially
prejudice defense), cert. denied, U.S. >» Moe 3

Ct. 1188 (1992) (emphasis added); United States v.
Rastelli, 870 F.2d 822, 833-34 (2d Cir. 1989) (no prejudice;
government lost tapes of three conversations through
negligence, not bad faith); Mitchell v. Goldsmith, 878

11

F.2d 319 (9th Cir. 1989) (negligent failure to preserve
photographic lineups, even if the evidence were potentially
useful, did not deprive defendant of due process) (empha-
sis added); United States v. Barton, 995 F.2d 931 (9th Cir.
1993) (absent a showing that officers knowingly destroyed
marijuana plants seized from defendant’s house, defend-
ant’s due process rights were not violated) (emphasis
added).

As Justice Blackmun noted in his Youngblood dissent,
what constitutes bad faith? “Does a defendant have to
show actual malice, or would recklessness, or the deliber-
ate failure to establish standards for maintaining and pre-
serving evidence, be sufficient? Does ‘good faith police
work’ require a certain minimum of diligence, or will a
lazy officer, who does not walk the few extra steps to the
evidence refrigerator, be considered to be acting in good
faith?” Youngblood at 66.

The decision in Youngblood has also impacted on mili-
tary law. Article 46 of the Uniform Code of Military Justice
(UCM) provides that the defense is entitled to equal access
to all evidence, whether or not it is apparently exculpatory
and irrespective of bad faith. In United States v. Keen, 22
M.J. 49(C.M.A. 1986), the United States Court of Military
Appeals held that the rule announced in Trombetta satis-
fied both constitutional and military standards of due pro-
cess and was applicable to courts-martial. However, in
United States v. Mobley, 31 M.J. 273 (C.M.A. 1990), the
Court of Military Appeals, in deciding that the failure of
civilian police to preserve potentially exculpatory evidence
was not a denial of due process of law, relied on Young-
blood’s requirement for a showing of bad faith on the part
of the police. The Mobley court’s decision failed to note the
lack of a bad faith requirement in either Article 46 of the
UCM or the Trombetta decision.

12

In the case sub judice, the Austin police officers at the
crime scene knew that the evidence was clearly exculpa-
tory. Two knives were found at the scene. The investigat-
ing officer, Officer Boardman, admitted the evidence and
crime scene was consistent with mutual combat and self-
defense. Any attempts to fingerprint one knife were ruined
by the placing of tape by an unknown investigator on its
handle. Photographs showed numerous bloodstains at
various locations around the apartment, but no swabbings
were taken and the carpet was not seized. The police made
absolutely no efforts to ascertain whether the blood was
attributed to the victim or the petition. Had the evidence
been properly seized and tested, its constitutional
materiality would be clear. Had petitioner been convicted
of unpremeditated murder, the rigors of a mandatory life
sentence may well have been avoided. The Austin police’s
conduct deprived petitioner, and the courts, of the oppor-
tunity to determine with certainty the import of this
evidence.

13

CONCLUSION

Until this Court reexamines its decision in Youngblood,
the issue of police conduct which destroys exculpatory evi-
dence will continue to hinge on the undefined concept of
“bad faith” as opposed to the analysis of the apparent ex-
culpatory nature of the evidence per Trombetta. For these
reasons, a writ of certiorari should issue to review the
judgment and opinion of the Court of Military Appeals.

JUNE 1994

Respectfully submitted,

Jay LINDSEY COHEN

Colonel, United States Air Force

Chief Appellate Defense Division
(Counsel of Record)

RICHARD D. DESMOND

Captain, United States Air Force

Appellate Defense Counsel
Counsel for the Petitioner

AIR FORCE LEGAL SERVICES AGENCY
Appellate Defense Division

172 Luke Avenue, Suite 208

Bolling AFB, DC 20332-5113

APPENDICES

APPENDIX A

UNITED STATES COURT OF MILITARY APPEALS

USCMA Dkt. No. 93-0926/AF
CMR Dkt. No. 29091

UNITED STATES, APPELLEE
wv.

OSCAR ANDERSON, JR. (415-98-6646), APPELLANT

ORDER

On consideration of the petition for grant of review of
the decision of the United States Air Force Court of Mili-
tary Review, it is by the Court this 17th day of March,
1994,

ORDERED:
That said petition is hereby granted; and

That the decision of the United States Air Force Court
of Military Review is affirmed.

For the Court,

/s/ John A. Cutts, Ill
Deputy Clerk of the Court

ce: The Judge Advocate General of the Air Force
Appellate Defense Counsel (PARKS)
Appellate Government Counsel (INFELISE)

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2a

APPENDIX B

UNITED STATES AIR FORCE
COURT OF MILITARY REVIEW

ACM 29091
UNITED STATES
v.

SERGEANT OSCAR ANDERSON, JR. FR415-98-6646
UNITED STATES AIR FORCE

16 February 1993

M.J.

Sentence adjudged 31 October 1990 by GCM convened at
Bergstrom Air Force Base, Texas. Military Judge: Donald
E. Weir.

Approved sentence: Dishonorable discharge, confinement
for life, forfeiture of all pay and allowances, and reduc-
tion to E-1.

Appellate Counsel for the Appellant: Captain Michael D.
Burt (argued), Colonel Jeffrey R. Owens, Lieutenant
Colonel Terry J. Woodhouse, Captain Mark R. Land,
Major Richard W. Aldrich, Captain Ursula P. Moul, and
Captain Robert I. Smith.

Appellate Counsel for the United States: Major Jeffrey C.
Lindquist (argued), Lieutenant Colonel Brenda J. Hollis,
Lieutenant Colonel Jeffery T. Infelise, and Major Paul H.
Blackwell, Jr.

3a

Before

LEONARD, McLAUTHLIN, and JAMES
Appellate Military Judges

OPINION OF THE COURT
JAMES, Judge:

Sergeant Anderson was convicted of escape from con-
finement, premeditated murder, and an assault.' The
charges were referred without any limiting instructions,’
permitting a capital sentence to be available for the
murder,? but the findings were not reached unanimously,‘
and so confinement for life was adjudged.° Sergeant
Anderson now assigns numerous errors, categorized below
as those relating to pretrial procedural matters (referral
and venue), rights to counsel, multiplicity of charges, voir
dire, evidentiary matters, sufficiency of the evidence, and
sentencing matters.® It is not necessary to understand all
the grisly facts of this case to follow our discussion of the
assignments, and we turn directly to the assignments,
discussing the facts at each point to the extent necessary.
We find some of the assignments to be moot, and we do

' Violations of Articles 95, 118(1), and 128, UCM§J, 10 u.SA.
§§ 895, 918(1), and 928 (1988), respectively.

2 See R.C.M. 601(e)(1).
3 See Article 118(1), UCMJ, 10 U.S.C. § 918(1) (1988).
4 See R.C.M. 921(c)(2), 922(b)(2).

’ Sergeant Anderson was also sentenced to be discharged from the
service with a dishonorable discharge, to forfeit all pay and allow-
ances, and to be reduced to E-1. The convening authority approved
the sentence as adjudged.

6 The briefs of appellate counsel in this case would have been even
more useful had the errors and arguments been grouped as listed in the
text above.

~ a

4a

not decide those. We conclude that one finding must be set
aside, but we affirm the remaining findings and the
sentence.

I. Mootness

Our jurisdiction in this case is conferred by Article 66,
UCMJ, 10 U.S.C. § 866 (1988). It permits us to “act only
with respect to the findings and sentence as approved by
the convening authority.” Some of the errors assigned in
this case pertain only to matters directly related to capital
sentencing, but the sentence as approved does not include
death. Those issues are beyond our jurisdiction.

They are also moot. This Court need not review moot
issues. To do so is uneconomical and usually exceeds the
limits of responsible judging. Several kinds of cases seem
to have been disposed of as moot: those which would pro-
duce only advisory decisions, would not produce a sub-
stantial change in the relationship of the parties, would ad-
dress only academic questions, and those which would
consider only policy issues more appropriately addressed
to a legislature.’ “Of course, if the case has become moot

? See, e.g., United States v. Valead, 32 M.J. 122 (C.M.A. 1991)
(court of military review set aside confinement remaining, mooted
constitutionality of “bread & water”); United States v. Gay, 18 M.J.
104 (C.M.A. 1984) (summary disposition) (capital referral issues
mooted by disapproval of capital sentence that resulted); United
States v. Kelly, 14 M.J. 196 (C.M.A. 1982) (advisory decisions);
United States v. MclIvor, 21 U.S.C.M.A. 156, 44 C.M.R. 210 (1972)
(would not produce a substantial change in the relationship of the par-
ties); United States v. Aletky, 16 U.S.C.M.A. 536, 37 C.M.R. 156
(1967) (academic questions); United States v. Gilley, 14 U.S.C.M.A.
226, 34 C.M.R. 6 (C.M.A. 1963) (board of review set aside one of
three specifications, found it to have had no effect on sentence, and
that mooted the propriety of set aside, which TJAG certified. Court
of Military Appeals refused to review it as moot.); United States v.

Sa

. . or is not ripe for consideration, then in the proper ex-
ercise of its jurisdiction this Court will decline to exercise
its jurisdiction.” United States v. Browers, 20 M.J. 356,
358 (C.M.A. 1985). There is flexibility in the mootness
doctrine because it is a doctrine of self-restraint, and some
exceptions have developed. Thus a court may “decide a
case which is moot on its exact facts, but which represents
a continuing controversy between the parties.” Robert A.
Leflar, Appellate Judicial Opinions 62 (1974) (quoting
Note, Cases Moot on Appeal: A Limit on the Judicial
Power, 103 U. Pa. L. Rev. 772 (1955)). Another exception
has arisen to permit resolution of “questions of great
public interest” involving issues that will recur frequently.
Id.

Though any issue involved in the capital sentencing pro-
cedure is necessarily important, capital cases are not fre-
quent in our experience, and it would be unwise for us to
begin resolving the myriad special issues that might arise in
future capital trials in a case in which the issues need not
be fully explored. Accordingly, we have declined to ad-
dress those issues, as we note at the pertinent places below.

Bedgood, 12 U.S.C.M.A. 16, 30 C.M.R. 16 (C.M.A. 1960) (board of
review mooted sentence issue by approving sentence that did not in-
clude controverted element); United States v. Wynn, 11 U.S.C.M.A.
195, 29 C.M.R. 11 (C.M.A. 1960) (adequacy of foundation for evi-
dence mooted when trial judge sustained objection to it); United
States v. Wheatly, 10 U.S.C.M.A. 537, 28 C.M.R. 103 (C.M.A. 1953)
(when board of review finds evidence factually insufficient, issue of
legal sufficiency becomes moot); United States v. Gee, 26 C.M.R. 543
(A.B.R. 1958) (board of review refused to consider policy issue).

a enn mn

6a

Il. Pretrial Procedure
A. Referral

Sergeant Anderson has three complaints about the re-
ferral of the charges. First, he complains of the appearance
of arbitrariness, an appearance into which the defense
wished to delve at trial by examining the convening authori-
ty. Second, he complains that the military judge refused to
require the convening authority to appear to testify on the
foregoing issue. Third, he complains that the convening
authority was himself suspected of misconduct.

Sergeant Anderson argues that the convening authority
had nothing to guide the exercise of his discretion. There-
fore, he concludes, the decision to refer the case as
capital — without limiting instructions* — must have been ar-
bitrary. A convening authority might, in a case like this
one, refer the major charge to a court-martial but give the
court-martial instructions limiting it to a non-capital
sentence. See R.C.M. 601(e)(1) (“proper instructions”) and
accompanying discussion. Sergeant Anderson argues that
this decision should, like the sentencing decision, be guided
by some established factors to prevent arbitrary exposure
of defendants to capital sentences. We view his assignment
as having been mooted by the non-capital sentence in his
case, and we do not decide it.? United States v. Gay, 18

®§ We do not reach the interesting question whether a convening
authority’s decision to do nothing, to refer but refrain from adding
limiting instructions, is reviewable. The defense misstates the matter a
bit, perhaps in forensic excess. The case was capital because Congress
made premeditated murder a capital offense, not because the convening
authority made it capital. Restated in less advantageous terms, one
might say that the defense complaint is that the convening authority re-
frained from extending to it a generosity that he might have extended.

® However, we also note that Sergeant Anderson is mistaken. The
discussion which accompanies R.C.M. 601(e)(1) provides that “the con-

7a

Sergeant Anderson also brings to our attention the fact
that the convening authority who referred this case was
himself suspected of misconduct. In an unrelated case in-
volving the same commander, we set aside the convening
authority’s action in an abundance of caution and remand-
ed the case for a new post-trial action under Article 60,
UCMJ, 10 U.S.C. § 860 (1988), by a different convening
authority. See generally United States v. Kroop, 34 M.J.
628 (A.F.CM.R. 1992), pet. filed, 36 M.J. 4, 41 (C.M.A.
1992). However, the commander concerned only referred
Sergeant Anderson’s case and had been succeeded by the
time the post-trial activities began. Thus, the post-trial ac-
tion in Sergeant Anderson’s case—the procedural step
about which we were concerned in Kroop—was not af-
fected.

We fashioned relief in Kroop to recognize the effect of
any “psychological baggage” that might have been borne
by a convening authority whose own misconduct was
similar to that involved in a case under his post-trial
review. Sergeant Anderson argues that the same effect
might be found in the decision to refer, and he asks that
we set aside the findings and sentence for that reason. We
decline for two reasons. First, we have never been shown
that the misconduct of which the commander in Kroop
was suspected included violent behavior like that with
which Sergeant Anderson was charged, and so the cases
are qualitatively different. See United States v. Williams,
35 M.J. 812, 820 (A.F.C.M.R. 1992) (on recon.). Second,
we addressed at length the idea that the Kroop phenom-
enon might affect referral in Kroop, 34 M.J. at 631-33,
and concluded that no relief would be warranted. We find
no need for such relief in this case, either.

vening authority should be guided by the criteria for adjudging capital
punishment found at R.C.M. 1004.”

8a

B. Change of Venue

Sergeant Anderson moved at trial for a change of the
place of trial because of pretrial publicity, see R.C.M.
906(b)(11), but his motion was denied. He assigns the
denial as error.

There is no doubt that news media published reports of
the murder and of the later car-truck collision which some
take as Sergeant Anderson’s attempt at suicide. When
questioned by the military judge, two members of the
court-martial disclosed that they had seen such reports.
They recalled the reports only generally, not in such detail
as to threaten fairness.

A change of the place of trial—the near counterpart of
“venue” in civilian practice —is available when the movant
shows that the court-martial would be influenced by a
general atmosphere of hostility or partiality. United States
v. Gravitt, 5U.S.C.M.A. 249, 17 C.M.R. 249, 257 (1954);
see also United States v. Vigneault, 3 U.S.C.M.A. 247, 12
C.M.R. 3 (1953); United States v. Hagelberger, 3
U.S.C.M.A. 259, 12 C.M.R. 15 (1953). Publicity alone is
not enough. United States v. Svenson, 35 C.M.R. 645, 650
(A.B.R. 1965), pet. denied, 15 U.S.C.M.A. 694, 36
C.M.R. 541 (1965); United States v. Doyle et al., 17
C.M.R. 615, 634-36 (A.F.B.R. 1954), pet. denied, 5
U.S.C.M.A. 840, 17 C.M.R. 381 (1954); United States v.
Smith, 1 M.J. 1204, 1207-8 (N.C.M.R. 1977), pet. denied,
3 M.J. 165 (C.M.A. 1977). The fact that a member is ac-
quainted with the case is not disqualifying. Svenson, 35
C.M.R. at 650; United States v. Talbott, 12 U.S.C.M.A.
446, 31 C.M.R. 32 (1961). The burden of proof of the
need for the change is on movant, R.C.M. 905(c); Gravitt,
17 C.M.R. 249; Doyle, 17 C.M.R. at 635-36. We review
the trial judge’s denial only for abuse of discretion. United
States v. Carter, 9 U.S.C.M.A. 108, 25 C.M.R. 370, 374
(1958); Doyle, 17 C.M.R. at 636. We find no abuse here.

9a

Cc. Motion for Abatement

The murder in this case occurred off base, in Austin,
Texas, and it was first investigated by civilian police. The
military sought and obtained the agreement of the civilian
prosecutors for a military prosecution, though perhaps
unnessarily,'® but the Texas charges remained pending
and would likely have been dismissed without prejudice to
renewal. Air Force policy provided at the time of this trial,
as now, that military prosecution should not follow a state
trial on the same misconduct without permission by the
Secretary, Air Force Regulation 111-1, Military Justice
Guide, paragraph 3-7a (30 September 1988) (hereafter
AFR 111-1).'' Sergeant Anderson was aware of the
pendency of Texas charges and asked the military judge to
abate the military prosecution until the Texas charges were
dismissed with prejudice in order to prevent a sfate prose-
cution after a federal trial. The military judge denied the
motion.

Sergeant Anderson gave no authority at trial requiring
the relief he sought, and he has not improved his argument
on appeal. While some might view a successive state prose-
cution as unfair, the legal question is within the authority
of a Texas court to decide, the policy choice is a matter for
Texas prosecutors to decide, and whether any resulting
conviction would be sustainable is a matter for the Texas

10 See generally annotation, Romualdo P. Eclavea, Acquittal or
Conviction in State Court as Bar to Federal Prosecution Based on
Same Act or Transaction, 18 A.L.R. Fed. 393 (1974).

‘1 The Department of Justice policy is similar. See generally an-
notation, Juan F. Rydstrom, Effect on Federal Criminal Prosecution
or Conviction of Prosecutor’s Noncompliance With Petite Policy Re-
quiring Prior Authorization of Attorney General for Federal Trial
Where Accused Has Been Previously Prosecuted for Same Acts in
State Court, 51 A.L.R. Fed. 852 (1981).

10a

courts to address first. See R.C.M. 201(d)(2)-(3) and ac-
companying discussion. No relief is warranted on this
assignment.

Ill. Right to Counsel

Sergeant Anderson assigned three errors relating to the
right to counsel. First, he complains that the military
judge denied his request for an order requiring that he be
supplied with “death-qualified” counsel. We regard this
issue as mooted by the non-capital sentence, and we do not
address it further. Next, he also complains that he was
denied his statutory right to military defense counsel of his
own selection. Finally, he complains that the military
judge denied his request that his defense counsel be pro-
vided with daily transcripts of the testimony.

A. Military Defense Counsel of Selection

Sergeant Anderson raises for the first time on appeal his
complaint that his pretrial request for military counsel of
his own selection was denied. See Article 38(b), UCMJ, 10
U.S.C. § 838(b) (1988); R.C.M. 506(b). He filed his re-
quest correctly before trial, and it was denied. The denial
was reviewed before trial, and the denial was affirmed.
However, Sergeant Anderson did nothing further at trial.
The government now urges that the matter is waived,
citing R.C.M. 905(b)(6).

There is some authority for such a waiver. United States
v. Mitchell, 15 U.S.C.M.A. 516, 36 C.M.R. 14 (1965); cf.
United States v. West, 13 M.J. 800 (A.C.M.R. 1982)
(denial waived where accused did not seek administrative
review of denial). However, Mitchell preceded substantial
changes in the statute and the implementing procedural
rules. The present rules seem to be in conflict on the idea
of waiver.

lla

R.C.M. 905(b)(6) requires that an objection based on a
denial of a request for military counsel of choice be raised
before a plea is entered, and R.C.M. 905(e) provides that
failure to raise an objection under R.C.M. 905(b) consti-
tutes waiver. However, a military judge has no authority
to reverse an administrative denial of a request for defense
counsel of one’s own selection because the judge does not
command the counsel, and “[dJismissal of charges for even
a ‘deliberate’ violation of the constitutional right to
counsel ‘is plainly inappropriate.’ ” United States v. Red-
ding, 11 M.J. 100, 110-12 (C.M.A. 1981) (quoting United
States v. Morrison, 449 U.S. 361 (1981)). Instead, the
military judge may only make a record and make findings
on the matter. R.C.M. 906(b)(2). This quirk in the present
rules might be said to abate the Mitchell waiver.

Thus, if there is any waiver, it may be simply the waiver
of the opportunity under R.C.M. 906(b)(2) to make a full
and complete record for appellate review and to ask a mili-
tary judge to make and enter findings on the matter. There
is great value in those findings: They can be conveyed to
the convening authority who, having the benefit of
another view, might seek to have the requested defense
counsel detailed. Another benefit to renewing the matter
before a military judge is that it clearly records the ac-
cused’s continuing wish that the lawyer sought be detailed
to his defense. In this case, for example, Sergeant Ander-
son sought and obtained the service of a different lawyer
as military defense counsel of choice, leaving his choice at
the time of trial ambiguous. The ambiguity was not helped
when, after the required advice,'? the military judge made

12 R.C.M. 901(d)(4). To make this matter even more waive-able,
note that the advice about the right to defense counsel was given twice.
The military judge who was detailed to this trial at its beginning
became ill and could not continue. He gave it once, on June 21, 1990,

the customary inquiry:

MJ: Sergeant Anderson, do you have any ques-
tions about your rights to counsel?

Acc: No, sir.

MJ: Then whom do you want to represent you?

Acc: Major B, Captain R, and Captain L.

MJ: Very well. Then you wish to be repre-
sented by your detailed counsel, Major B

and Captain R, and then Captain L as
your individually requested counsel?

Acc: And, also a representative that’s ABA
qualified.

MJ: Very well. I understand that, and that’s the
nature of a motion that we’re going to take
up. And, so you wish to be represented by
both your detailed and then by Captain L
as individual military counsel?

Acc: Yes, sir.

before his illness. On that occasion, Sergeant Anderson named as his
lawyers Major B and Captain R, the two detailed defense counsel. The
request for Captain N as defense counsel was made on July 10, 1990,
between sessions. The last administrative review of the denial of that
request was dated August 1, 1990. Meanwhile, Sergeant Anderson had
been informed that Captain N would not be available, and so on July
30, 1990, he requested Captain L as defense counsel. Captain L was
made available and appeared at the next session of trial on September
5, 1990. The passage quoted above is from the transcript of that ses-
sion, presided over by a different military judge. It would be difficult
for Sergeant Anderson to suggest that he remained mute about the
denial of his request for Captain N because he was uninformed of his
rights or of the interest of the military judges in his exercise of them.
Furthermore, there was no motion at trial for a continuance of such a
period as might alleviate the workload impediments that prevented the
government from making making Captain N available.

13a

No one at trial ever mentioned Captain N, the counsel
whose service had been denied.

We conclude, with hesitation, that the Mitchell waiver
still exists. It was based on consideration of sound and
orderly procedure that would be reduced to a “shambles”
if it were otherwise. 36 C.M.R. at 18. Sergeant Anderson
waived his objection to the denial of his request for
counsel of choice by failing to make an objection at trial.
Mitchell, 36 C.M.R. 14. While his only available relief at
trial was the opportunity to make a record, that oppor-
tunity is a critical element of the judicial process. Sergeant
Anderson’s failure to exercise this opportunity requires
this Court to speculate on whether he still wanted the re-
quested counsel at trial. An orderly and efficient judicial
process does not tolerate speculation.

Because of our hesitation concerning waiver, we also
review the denial on its merits. In so doing, we treat
Sergeant Anderson’s failure to raise the issue at trial as a
waiver of his opportunity to make a record of the denial of
his request because that much is clear. We will hold
against Sergeant Anderson any ambiguities or deficiencies
in the record because the burden of showing the denial to
have been an abuse of discretion must be borne by the ag-
grieved party. United States v. Gatewood, 15 U.S.C.M.A.
433, 35 C.M.R. 405, 408 (1965); United States v. Cutting,
14 U.S.C.M.A. 347, 34 C.M.R. 127, 132 (1964).

The record is adequate in this case to permit us to review
the denials. It includes:

1. Sergeant Anderson’s request for Captain N, the area
defense counsel'3 at Eaker Air Force Base, Arkansas, as
an individual military counsel, dated 10 July 1990;

13 An area defense counsel is an Air Force lawyer detailed exclusive-
ly to defense work at a base. Such counsel are organized geographical-

l4a

2. Areply, dated 27 July 1990, by the conven-
ing authority reciting a denial by Captain N’s
supervisor, the chief circuit defense counsel for
the Third Judiciary Circuit;

3. A second request, dated 30 July 1990, for a
different lawyer, Captain L; and

4. A teletype message from the acting chief of
the Military Justice Division in the Office of The
Judge Advocate General, dated | August 1990,
affirming the supervisor’s denial of Captain N,
the first requested lawyer.'*

Since Captain N was not assigned to the convening author-
ity’s command and was not exempted,'* the convening
authority properly forwarded Sergeant Anderson’s request
to the chief circuit defense counsel for the Third Judiciary
Circuit to determine Captain N’s availability.'® The chief
circuit defense counsel determined that Captain N was not
available.'’ We cannot examine the reasons for his deter-

ly according to the Judiciary Circuits in which they are located. The
area defense counsel in a Judiciary Circuit are supervised and man-
aged by a chief circuit defense counsel.

'4 While Sergeant Anderson’s appeal of the earlier denial of his re-
quest for Captain N is not contained in the record, this message is a
response to such an appeal.

'S An area defense counsel is exempt from service as a defense
counsel of choice only if assigned to a different Judiciary Circuit and
at location that is more than 300 miles away from the site of the trial.
Air Force Regulation 111-1, Military Justice Guide, paragraph 8-4b(2)
(September 30, 1988). We take judicial notice that Captain N was
assigned to the same Judiciary Circuit as the site of the trial.

'6 See AFR 111-1, paragraph 8-5b.

'? The regulation required the chief circuit defense counsel to notify
the convening authority of his reasons. See AFR lil-1, paragraph
8-4d(4). We infer from the evidence of the government's compliance

lSa

mination directly because they are not in the record.
Sergeant Anderson’s request for Captain L was ultimately
granted. Captain L and two detailed counsel represented
Sergeant Anderson at trial. Sergeant Anderson’s appeal of
the denial of his request for Captain N was properly for-
warded to the chief of the Military Justice Division in the
Office of the Judge Advocate General.'* The teletype
message recites the causes for the denial that were missing
from the convening authority’s reply:'*

Captain N is not available . . . in view of [Cap-
tain N’s] having assumed the position of area
defense counsel only on 29 July 1990, one month
after the previous area defense counsel had
departed [pursuant to a permanent change of sta-
tion}. Further, in the absence of unique qualifi-
cations of this particular counsel, counsel’s
assignment as [military counsel of choice] would
disrupt the orderly administration of military
justice at [the base to which the requested
counsel was assigned] and within the Third
Judiciary Circuit by virtue of his extended
absence.

with the regulation that the chief circuit defense counsel also complied
with this requirement. Were it otherwise, presumably Sergeant Ander-
son would have made a record of the procedural non-compliance as
R.C.M. 906(b)(2) would have permitted.

'® See AFR 111-1, paragraphs 8-4e(2), 8-Sb, and 8-Sc.

'9 “(T]he case before us teaches the need to record the action of ap-
proprate officers on accused’s request, together with any reasons for
its refusal. Only then will this Court and other agencies be able to
make an enlightened decision concerning its disposition before or at
trial.” United States v. Cutting, 14 U.S.C.M.A. 347, 34 C.M.R. 127,
132 (1964). Nothing has changed. The record in this case was marginal
but the explicit provision at R.C.M. 906(b)(2) of an opportunity to
make a record puts the fault for its brevity at the movant’s doorstep.

l6a

There is no constitutional right of an accused to have
counsel of his own choice provided free by the govern-
ment. Redding, 11 M.J. at 110. However, Article
38(b)(3)(B), UCMJ, 10 U.S.C. § 838(b)(3)(B) (1988), gave
Sergeant Anderson the right to military counsel of his own
selection if that counsel was reasonably available. See
generally United States v. Gnibus, 21 M.J. 1 (C.M.A.
1985). The code specifically directs each branch of service
to define “reasonably available” and establish procedures
for determining when a requested counsel is reasonably
available. Article 38(b)(7), UCMJ.

As a prelude to our further discussion, one must first
notice that some counsel are exempted from service as
defense counsel of choice by virtue of objective criteria in
R.C.M. 506(b)(1) and, by delegation, AFR 111-1, para-
graph 8-4b. They are, by definition at R.C.M. 506(b)(1),
not “reasonably available.” When the request is for a
lawyer who is not so exempted, the decision-maker must
determine the matter according to more subjective criteria
set by the Secretary pursuant to the delegation of authority
at R.C.M. 506(b). The Air Force defines “reasonably
available” as follows:

{T]he requested person is not considered to be
unavailable by either the MCM or this regulation
and. . . the appropriate authority . . . has deter-
mined, in light of the circumstances surrounding
the request, that the requested person can per-
form the duties of individual military defense
counsel for the requesting accused without un-
reasonable expense or detriment to the United
States and without unreasonable delay in the
proceedings for which requested.

AFR 111-1, paragraph 8-4b(1); see generally United States
v. Quinones, 23 U.S.C.M.A. 457, 50 C.M.R. 476, 477 n4

17a

(1975). This regulation also provides the administrative
procedure for answering and reviewing requests for
counsel.2° For those requests for defense counsel who are
not exempted, AFR I11-1, paragraph 8-4b(4), provides
the following subjective considerations for determining
whether the requested counsel is reasonably available:

(a) The duties, workload, and assignment
status of the requested counsel.

(b) The experience level, duties, and workload
of the military counsel detailed to represent the
accused.

(c) The nature and complexity of the charges
and legal issues involved in the case.

(d) Whether a certified assistant trial counsel
has been detailed to the case.

(e) Scheduled, pending, and predictable work-
load of the office to which the requested counsel
is assigned and the availability of personnel to
meet those demands.

We will examine the denial of the requested counsel and
its review for an abuse of discretion. Quinones, 50 C.M.R.
at 480; Gatewood, 35 C.M.R. at 407; see also United
States v. Matthews, 15 M.J. 622 (N.M.C.M.R. 1982);
United States v. Paul, 46 C.M.R. 421, 424 (A.C.M.R.
1972); United States v. Genessee, 26 C.M.R. 845, 849
(A.F.B.R. 1958); cf. United States v. Brownd, 6 M.J. 338
(C.M.A. 1979) (denial of deferment of service of adjudged
confinement by convening authority tested for abuse of
discretion); United States v. Berri, 30 M.J. 1169, 1173
(C.G.C.M.R. 1990), aff'd, 33 M.J. 337 (C.M.A. 1991)

20 See AFR 111-1, paragraphs 8-4d, 8-4e, 8-Sb, and 8-Sc.

18a

(denial of a request for retention of detailed counsel when
the accused was represented by individual military
counsel). Though Sergeant Anderson’s request received a
remarkably perfunctory and conclusory answer that did
not address either the five factors or all the elements of the
definition of “reasonably available,” see generally
Quinones, 50 C.M.R. 476, we find that sound reasons ex-
isted for the denial. See United States v. Ettleson, 13 M.J.
348, 354-55 (C.M.A. 1982). The point was that the re-
quested counsel suffered the disadvantages of a lawyer
newly assigned to an office that had been vacant for a
month, and the community he was to serve had done with-
out for that time. The decision-makers concluded that it
would be an “unreasonable detriment” to the United States
to overcome the further disservice to that community
which would have resulted had the lawyer been sent away
from it on other business without a substitute. That is a
sensible reply. We find no abuse. Accordingly, we find no
merit to Sergeant’s Anderson’s complaint concerning the
denial of his request for Captain N.?!

2! Even if we did find merit in the complaint, Sergeant Anderson
has not demonstrated any prejudice. Article 59(a), UCMJ, 10 U.S.C.
§ 859(a)(1988); see United States v. Berri, 30 M.J. 1169, 1173
(C.G.C.M.R. 1990), aff'd, 33 M.J. 337 (C.M.A. 1991) (testing for
prejudice). Sergeant Anderson’s second request for a particular
military counsel was granted, and he was permitted to retain both of
his detailed counsel. Furthermore, Captain N was not shown to have
had any qualifications or experience that distinguish him from the
counsel of record.

Having found the denials not to have constituted an abuse of discre-
tion, we need not address the further, interesting issue, Was the first
denial remedied when the second request was granted? The statutory
right is to a lawyer of the accused’s own selection, and Sergeant
Anderson did have the services of such a lawyer, though not his first
choice. Cf. United States v. Cutting, 14 U.S.C.M.A. 347, 34 C.M.R.
127, 131 (1964) (no waiver where accused was wrongly denied, pro-
ceeded with detailed counsel without objection).

19a

B. “Dailies”

Sergeant Anderson moved at trial for daily transcripts
of the testimony. He cited no authority except general
references to the Fifth and Sixth Amendments. His motion
was denied. Nothing in military procedure provides for
daily transcripts of the testimony. Cf. Articles 1(14), 28,
38(a), 54, UCMJ, 10 U.S.C. §§ 801(14), 828, 838(a), 854
(1988); R.C.M. 502(d)(5), (e)(3)(B), 1103, and discussion
accompanying R.C.M. 502(d)(5) at (E) and (F). Nothing
grants a right to the accused to have them, valuable as
“dailies” might be to an advocate. Indeed, Articles 54(d)
and 1103 might imply the opposite. There is no right of an
indigent to have daily transcripts. Walle v. Sigler, 456 F.2d
1153, 1156 (8th Cir. 1972); Martin v. Commonwealth, 221
Va. 436, 271 S.E.2d 123, 130 (1980). Cf. Roberts v. La
Vallee, 389 U.S. 40 (1967) (if a transcript of preliminary
hearing is made available and sold to other defendants,
then indigents must be given access for free). Even had
there been some authority for the motion, Sergeant
Anderson has made no offer at all of any prejudice result-
ing from the denial. No relief would be warranted without
it. Article 59(a), UCMJ, 10 U.S.C. § 859(a) (1988).

IV. Multiplicity

Sergeant Anderson was charged separately with murder
and with an assault consummated by a battery, violations
of Articles 118 and 128, UCMJ, respectively. He moved
for relief before pleas on the ground that the two charges
were multitplicious for findings. The military judge denied
the motion, and Sergeant Anderson now renews the mat-
ter on appeal.

Perhaps the best guide to multiplicity is United States v.
Baker, 14 M.J. 361 (C.M.A. 1983). It requires that we

20a

first determine whether the two offenses were part of one
transaction or what was substantially one transaction. We
conclude that they were. Next, we examine the pleadings
to determine whether they constitute a multiplication of
charges. That state is apparently necessarily implied when
on of the two allegations is a lesser included offense of the
other, and such might seem to be the case here. However,
when examining the relationship between the two charges,
one looks not only at the elements of proof but also to the
factual allegations. United States v. Stottlemire, 28 M.J.
477 (C.M.A. 1989). The assault charge alleged different
touchings from thsoe alleged in the murder, so they are
separate. Cf. United States v. McCray, 16 M.J. 122
(C.M.A. 1983) (summary disposition) (same touchings).

Even if there was any multiplication, we conclude that it
was not unreasonable. It simply put Sergent Anderson on
notice of the prosecution’s intent to prove the non-lethal
striking and kicking as distinct from the stabbings by
which the murder was committed. As Sergeant Anderson
remarks in his brief, evidence of those acts would likely
have been admissible even without the assault charge, but
pleading the assault left no doubt either of the admissibili-
ty of that evidence or of the prosecution’s intent to offer it.
We conclude on these factors that it was not error to deny
the motion to dismiss the assault charge.

Next we must determine whether it was proper to permit
findings of guilty on both charges. Baker, 14 M.J. at 367.
Once again, it is important that the two charges have dif-
ferent allegations of facts, different enough that they are
separate. In view of our last step on this issue, we doubt
that any relief would be required if they weren’t, except
perhaps to tidy up the conviction record by consolidating
the two.

2la

The last step in a multiplicity case is sentencing. The
military judge correctly determined, sua sponte, that the
assault and murder were multiplicious for sentencing and
instructed the members accordingly.

V. Voir Dire and Challenges

Sergeant Anderson has three complaints about voir dire
and challenges. He proposed that a questionnaire of his
design be submitted to the members before voir dire, but
the military judge denied the proposal. He moved for an
order requiring that challenged members be replaced by at
least one replacement for each members excused, but the
military judge denied that motion, too. Finally, he ob-
jected at trial to excusal (on challenge for cause) of a
member, Major S.

A. Questionnaire

Sergeant Anderson’s questionnaire was extensive. He
cited as authority R.C.M. 912(a)(1), which provides that
the trial counsel shall upon request submit to the members
a questionnaire that solicits information enumerated in the
rule,?? and which further provides that “[a]dditional infor-
mation may be requested with the approval of the military

22 This is the so-called “Credit information,” after United States v.
Credit, 2M.J. 631 (A.F.C.M.R. 1976), rev'd on other grounds, 4M.5J.
118 (C.M.A. 1977). Credit simply listed the information to which ac-
cess may be given under the Freedom of Information and Privacy
Acts, codified at 5 U.S.C. §§ 552 and 552a (1988). Regardless where
Credit came from, the name is unfortunate. We have often wondered
how members must react and view our system when young counsel
considerably their junior have the gall to demand “Credit
information” about them. Formbooks everywhere should be scrubbed
clean of that phrase, and, where authority is needed, R.C.M. 912(a)(1)
should be cited in its stead.

22a

judge.” (Emphasis added.) The Executive procedural rule
simply follows a middle course between the public right of
access to information and the traditional discretion of the
military judge to regulate voir dire, which is reflected at
R.C.M. 912(d). See generally United States v. Slubowski,
7 M.J. 461, 463 (C.M.A. 1979) (judge’s authority to regu-
late examination). When the inquiry seeks more than the
public has a right to know, the matter lies within the
judge’s discretion, and we will review his decision only for
abuse.

The military judge did not foreclose inquiry into the
matters proposed by Sergeant Anderson’s questionnaire.
Instead, he simply refused to order use of a questionnaire.
As a result, any such inquiry would be conducted in the
courtroom, subject to his supervision. We cannot fault
such a choice, and we certainly find no abuse of discre-
tion.

B. Replacements

Sergeant Anderson’s argument for one-for-one replace-
ment of challenged members has numerical appeal. His
point is that every challenge that does not reduce the
court-martial below its quorum would otherwise reduce
the number of concurring members needed to reach the re-
quired unanimous finding on capital murder,?? the capital
factors,?* and on a capital sentence.?> Of course, the same
is true in a non-capital case: Every member excused with-
out a replacement is one fewer member who must be per-
suaded by the prosecution to vote for a conviction or
sentence, regardless of the crime or punishment or the

23 See R.C.M. 922(b)(2).
24 See R.C.M. 1004(b)(7).
25 See R.C.M. 1006(d)(4)(A).

23a

fraction needed for a conviction or sentence. Because his
proposal relates as well to non-capital cases as to capital
cases, it can hardly be said to have become moot by the
absence of a death sentence in this case. However, an
allied idea was been considered in a capital case, United
States v. Curtis, 32 M.J. 252, 267-68 (C.M.A. 1991), cert.
denied, U.S. , 112 S. Ct. 406, 116 L. Ed. 2d 354
(1991), which held that nothing requires that a steady
membership of 12 be maintained. The code provides no
support for Sergeant Anderson, either. Accordingly, we
find no merit to his assignment.

C. Member Excused

Sergeant Anderson’s last assignment about voir dire and
challenges has to do with Major S, a member whose replies
on examination showed that he opposed capital punish-
ment. Major S also had a prior acquaintance with Sergeant
Anderson: Major S had been Sergeant Anderson’s super-
visor, and she was aware of a prior episode in which
Sergeant Anderson assaulted his wife. Trial counsel
challenged Major S for cause. Sergeant Anderson objected,
but the military judge considered both aspects of Major S’s
replies and excused Major S. Sergeant Anderson now relies
on Witherspoon vy. Illinois, 391 U.S. 510 (1968), and im-
plicitly urges us to see this solely as a capital punishment
matter.

Even if we viewed this challenge as solely a capital
punishment matter, we would find no error. See Curtis, 33
M.J. at 106-7. However, thai aspect is now moot. Wither-
spoon and Curtis are cases in which a death penalty was
adjudged, and Witherspoon was clearly and explicitly
limited to relief from the capital sentence and equally
clearly and explicitly barred relief from the conviction.
Death was not adjudged here, and so the no-death and

24a

pro-death composition of the court-martial is irrelevant.
Thus, instead of focusing on the Witherspoon aspect as
Sergeant Anderson asks, we find it much less important
than the member’s prior knowledge.

The trial judge has considerable discretion on chal-
lenges, even if not boundless. United States v. Berry, 34
M.J. 83 (C.M.A. 1993); United States v. Smart, 21 M.J.
15, 18-19 (C.M.A. 1985). The military judge’s wise choice
also prevented the possibility of serious harm to this trial
from Major S’s prior knowledge, which carried significant
potential for prejudice. She was clearly vulnerable to
challenge for that reason, R.C.M. 912(f)(1)(N), regardless
of her views on capital punishment.?° There was no abuse
of discretion.

VI. Evidentiary Matters

Sergeant Anderson assigned several errors which may be
categorized as evidentiary matters. He moved at trial to
have the charges dismissed for failure to preserve all the
evidence at the crime scene, but the motion was denied. He
also brought to the military judge’s attention that the trial
counsel had consulted with the president of the pretrial
mental examination board. He objected to admission of a
policeman’s opinion about the cause of injuries to the vic-
tim’s neck. Perhaps his most complicated complaint
relates to admission of his “Last Will and Testament,” a
narrative which he contended was more prejudicial than

26 To put Witherspoon even further into context, note that the
veniremen in Witherspoon were apparently questioned first about
their views on capital punishment, and the no-death veniremen were
stricken immediately. Thus, Witherspoon tells us nothing about the
present case, in which a no-death member was questioned further and
found to suffer another dangerous impediment to service that sup-
plied an independent and sound ground for challenge.

25a

probative and which contained uncharged misconduct. He
also complains that the military judge erred when he omit-
ted a limiting instruction about the “Last Will,” and he
complains that his trial defense counsel were ineffective
because they elected to have no instruction rather than the
instruction proposed by the military judge. Finally, he
complains that the second of two prior statements of a
witness to police investigators was admitted over his objec-
tion.

A. Failure to Preserve Evidence

Sergeant Anderson telephoned relatives and told them
that he thought he might have killed his wife. The relatives
telephoned authorities in the city where Mrs. Anderson
lived, and police went to her apartment. With little infor-
mation in hand, they used a rapid method of entry calcu-
lated to surprise and overwhelm any remaining hostile oc-
cupants to assure that the premises were made safe as
quickly as possible. Other investigators arrived later for
the customary crime scene investigation. During the
course of the police entry and investigation, argues
Sergeant Anderson, it is possible that exculpatory evidence
was destroyed. Furthermore, not all the evidence was
secured, and some that was seized was mishandled. As an
example of the former, the landlord removed, discarded,
and replaced blood-stained carpet before the stain was
analyzed. As an example of the latter, the blade of a
knife— which might have yielded fingerprints or other in-
formation—was covered with tape during the investiga-
tion, perhaps corrupting any evidence that had remained.
Sergeant Anderson objected to these events at trial. He
claimed that his theory of defense included the idea that he
and his wife engaged in mutual combat that escalated, an
idea which, if believed in the context of the other evidence,

26a

might have refuted the evidence tending to prove premedi-
tation and perhaps that tending to prove intent to kill. He
moved for a dismissal of the charges on the theory that the
several failures to preserve evidence constituted a denial of
due process.

The Supreme Court limited the duty of the government
to preserve evidence on behalf of defendants in its first
major decision on the subject:

Whatever duty the Constitution imposes on the
States to preserve evidence, that duty musi be
limited to evidence that might be expected to play
a significant role in the suspect’s defense. To
meet this standard of constitutional materiality,
evidence must both possess an exculpatory value
that was apparent before the evidence was de-
stroyed, and be of such a nature that the defend-
ant would be unable to obtain comparable evi-
dence by other reasonably available means.

California v. Trombetta, 467 U.S. 484, at 488-89 (1984)
(citations omitted). See United States v. Kern, 22 M.J. 49
(C.M.A. 1986) (making Trombetta applicable in military
law in the context of Article 46). The police in this case
made no effort to test the blood on the carpet. Sergeant
Anderson argues that it might have been found to have
been his blood, proving the mutuality of the combat,
perhaps even self defense. He makes at least a superficial
case for relief under Trombetta, but there is yet another
step:

We ... hold that unless a criminal defendant
can show bad faith on the part of police, failure
to preserve potentially useful evidence does not
constitute a denial of due process of law.

27a

Arizona v. Youngblood, ___ U.S. ___, at ___, 109 S.
Ct. 333 at 337 (1988). Accord United States v. Garries, 22
M.J. 288, 292-93 (C.M.A. 1986), cert. denied, 479 J...
985 (1986); Kern, 22 M.J. at 52 (no bad faith found);
United States v. Mobley, 28 M.J. 1024, 1028 (A.F.C.M.R.
1989), aff'd, 31 M.J. 273, 274-78 (C.M.A. 1990) (q.v., ad-
dressing Article 46 “equal access’ aspect when, as here, the
police neglect was by civilian police); see generally annota-
tion, Gary Knapp, Prosecution Failure to Preserve Poten-
tially Exculpatory Evidence ..., 102 L. Ed. 2d 1041
(1990). Here, as in Youngblood, the police failure can be
described as, at most, negligence or, in the terms of the
dissenters in Youngblood, ineptitude. There was no show-
ing of bad faith in this case. Accordingly, no relief was
warranted, and the assignment is without merit.

B. Mental Examination & Privilege

Sergeant Anderson moved at trial to inquire into the
prosecution’s discussions with a forensic psychiatrist who
had been the president of a mental examination board that
examined Sergeant Anderson. See generally R.C.M. 706.
The purpose of the inquiry was to discern whether there
had been any breach of the privilege in favor of Sergeant
Anderson’s statements to the board and any derivatives of
those statements. If there had been any, that would violate
R.C.M. 706(c)(3)(B), (C), and (c)(5).

R.C.M. 706 is the rulemaker’s effort to reconcile com-
peting interests. Manual For Courts-Martial, United
States, 1984 (hereafter MCM), Appendix 21, at p. A21-36
(analysis accompanying R.C.M. 706). On the one side is
the need of a mental examination board to have full access
to the accused’s thoughts. On the other is the accused’s in-
terest in keeping those thoughts private and protecting
them through his privilege not to give evidence against

28a

himself. See generally United States v. Frederick, 3 M.J.
230 (C.M.A. 1977); United States v. Babbidge, 18
U.S.C.M.A. 327, 40 C.M.R. 39 (1969). The rule resolves
the conflict by extending a privilege against disclosure of
the accused’s statements and the report, thereby protecting
the accused’s admissions while still permitting the parties
to have the benefit of the board’s psychiatric conclusions.

The military judge accommodated Sergeant Anderson’s
motion to explore the matter, but he found no leaks, and
neither do we. What is at stake is a privilege protected by
Mil. R. Evid. 302. It provides that the remedy is to exclude
evidence at trial. There is no appearance that any evidence
obtained in violation of the privilege was ever offered,
but, if it had been, there was no objection at trial, and so
the matter is waived.2’? R.C.M. 905(b)(3), (e); Mil. R.
Evid. 103(a)(1).

C. Policeman's Opinion

During the trial the prosecution questioned a police
detective about his opinion about the cause of an injury to
the victim’s neck. The defense objected that the policeman
lacked the expertise to give such an opinion. The objection
was overruled, and the policeman opined that the injury
was caused by “[a] kick to the side of the neck.”

The admissibility of such opinions is governed by Mil.
R. Evid. 702, “Testimony by experts.” It provides a “help-
fulness” standard: If the evidence “will assist the trier of

27 Our disposition of the legal issue in this case implies nothing
about our view of the wisdom or prudence of the government’s un-
necessary brinkmanship. As the witness himself admitted, it is easily
conceivable that his discussions with trial counsel might have revealed
more than is permissible, though, luckily, they did not. Trial counsel
took a great risk.

29a

fact to understand,” it is admissible. Jd.; see generally
United States v. Banks, 36 M.J. 150 (C.M.A. 1992);
United States v. King, 35 M.J. 337 (C.M.A. 1992); United
States v. Johnson, 35 M.J. 17 (C.M.A. 1992); United
States v. Gibson, 24 M.J. 246 (C.M.A. 1987); United
States v. Mustafa, 22 M.J. 165 (C.M.A. 1986), cert.
denied, 479 U.S. 953 (1986); United States v. Sawyer, 32
M.J. 917 (A.F.C.M.R. 1991), pet. denied, 34 M.J. 75
(C.M.A. 1991). The “expert” need not be a star in the
field. United States v. Stinson, 34 M.J. 233 (C.M.A.
1992); Mustafa, 22 M.J. 165 (testimony by police investi-
gator after 5-day course and several other cases about
blood splatter patterns). It is enough that the expert has
some specialized knowledge. United States v. Carter, 26
M.J. 428 (C.M.A. 1988) (rape syndrome description). On
appeal we review such rulings only for abuse of discretion.
Stinson, 34 M.J. at 238; United States v. Stark, 30 M.J.
328, 330(C.M.A. 1990); Mustafa, 22 M.J. at 168; Sawyer,
32 M.J. 917: United States v. Rojas, 15 M.J. 902, 924
(N.M.C.M.R. 1983), set aside on other grounds, 17 M.J.
154 (C.M.A. 1984) (collecting cases decided before the
Military Rules of Evidence were promulgated). We find no
abuse here, and no relief is warranted.

Even if the admission of the policeman’s opinion had
been error, we doubt that any relief would have been war-
ranted. Elsewhere in the trial a forensic pathologist testi-
fied at length about all the victim’s injuries, and he gave
the same opinion about the cause of the injury to the neck.
There was no objection to that testimony. Thus, the
policeman’s opinion was, if anything, cumulative of the
pathologist’s, and no prejudice could have resulted from
it. Article 59(a), UCMJ, 10 U.S.C. § 859(a) (1988).

30a

D. The “Last Will”

We now reach what is likely the central issue in this ap-
peal. We have mentioned that Sergeant Anderson suffered
a car accident after the victim was killed. The operators of
the two truck that hauled away his car found and gave to
police a document that the parties have come to call the
“Last Will.” It is a spiral-bound notebook including six
double-spaced pages of hand-written lines that begin, “To
whom it may concern.” Those are followed by two pages
of handwritten instructions for disposition of the author’s
effects. An expert identified the handwriting as that of
Sergeant Anderson. The prosecution offered a masked
version, but the defense objected that more needed to be
masked and some that was masked needed to be unmasked.
The military judge considered the matter and concluded
that the document could not be masked in an acceptable
way, so he admitted the entire document, with no mask-
ing.

The controversy focuses on the first six pages,?*® so we
must summarize them. The author declared his love for his
relatives. T* > he described the misery of his life with his
wife, despite his love for her. Most of the letter is about
the wife’s misconduct, but the author referred with in-
creasing detail to two courts-martial. It becomes clear that
the author held the wife responsible for his two prior con-
victions. Finally he wrote, “Black TSgt Anderson was

28 The two-page testament records that Sergeant Anderson intended
to leave nothing to his wife and her family. Such a dispostion of a
married man’s effects would supply some evidence that the husband
harbored some ill will toward the wife and her family. III will was rele-
vant in this trial to show motive and intent. While it would be unwise
to draw any inferences from those two pages alone, they were still suf-
ficiently probative that admitting them was no abuse of discretion.
There was no error in admitting the two-page testament.

ae ee ee ee eee Jat itl at a tn

3la

brought to trial twice for 2 blows to his spouse. . . . Be-
cause [the victim wife] was never brought to trial I took it
upon myself and found her guilty.” Elsewhere he wrote, “I
tried to have intercourse yet I could not because she dis-
gusted me with her lying.”

Trial defense counsel objected to “the whole document”
as irrelevant and as uncharged misconduct, citing Mil. R.
Evid. 403 and 404(b). If one parses the document sentence
by sentence, some are clearly irrelevant, but few, and we
find no fault with the military judge’s decision that those
few irrelevant passages did not need to be masked. Taken
as a whole, the “Last Will” lays out the author’s ill will
toward his wife by detailing the ways she did him wrong.
That is, of course, the least difficult aspect of this issue.

By far the more difficult problem is the uncharged mis-
conduct objection. There is clear authority in other
custodial and restraint cases that evidence about the of-
fense for which one has been confined is objectionable.
United States v. Mackie, 16 U.S.C.M.A. 14, 36 C.M.R.
170, 172-73 (1966) (correctional custody); United States v.
Yerger, 1 U.S.C.M.A. 288, 3 C.M.R. 22 (1952) (restric-
tion adjudged by prior court-martial); United States v. Er-
vin, 5 C.M.R. 699, 702 (A.F.B.R. 1952) (restriction).
Perhaps for that reason, and to eliminate the defense con-
cerns, the trial counsel offered a copy of the “Last Will”
on which he had masked all that could have been objec-
tionable except the “intercourse” passage. The defense did
not retreat from its objection to the whole document, but
it further objected to the prosecution’s version as masking
too much with the result that the pivotal “I found her guil-
ty” sentence would then be misleading when deprived of its
context. The military judge considered the problem care-
fully and decided to admit the whole document, un-
masked. Though he clearly informed the record that he

32a

had applied the required balancing test, he did not explain
the interests that he considered or how they seemed to him
to balance. A trial judge’s analysis of an offer of un-
charged misconduct under Mil. R. Evid. 404(b) is likely
the most complicated of the evidentiary decisions at trial.
We now trace that course to dispose of this issue.

The judge must first determine what the offered mis-
conduct is. In most cases that is readily apparent or ascer-

> tainable. In this case, one must parse the “Last Will.” Hav-
ing done so, we find in it the following two major points:

1. Sergeant Anderson had twice strivk his wife
in two separate episodes.

2. Sergeant Anderson had attempted inter-
course with his wife, perhaps without her con-
sent, and his statement leaves unclear whether he
did so before the melee began, during it, or after-
wards.

The parties have disputed whether the attempt at inter-
course is misconduct at all. Trial counsel noted that rape
of a spouse is no crime under either the UCMJ or Texas
law, and the government adds on appeal that neither is
necrophilia. This exploration of the legality of violent and
bizarre sexual behavior is helpful, but is not dispositive,
for the uncharged misconduct ruie is not limited to crimes
but also includes evidence of other acts, apparently with-
out regard to whether they were criminal or merely repre-
hensible. Cf. United States v. Franklin, 35 M.J. 311, 318
(C.M.A. 1992) (prior act may not have been unlawful);
United States v. Lips, 22 M.J. 679, 681 (A.F.C.M.R.
1986), pet. denied, 24 M.J. 45 (1987) (prior act was
lawful). We consider the statement to relate an attempt at
misconduct, evidence which we assume to be governed by
Mil. R. Evid. 404(b).

iio Nig it ee

Z
4
i
3

33a

The next three steps are those now familiar, often at-
tributed to United States v. White, 23 M.J. 84 (C.M.A.
1986). First in the analysis is to determine for what pur-
pose the evidence is offered. The trial counsel argued and
the military judge found that the “Last Will” was proba-
tive of intent and motive, suggesting a premeditated plan
to kill that arose because of and was motivated by the
wife’s infidelity and her failure to visit Sergeant Anderson
in jail. |

One must next determine whether the uncharged mis-
conduct was similar or required to be similar to the
charged offenses. Of course, the assaultive behavior, in-
cluding nonconsensual intercourse, shares considerable
similarity with the charged murder, but the similarity that
is present may not be necessary, for there is a clear nexus
between all the uncharged misconduct and the charged
murder. The prior assaults on the wife were mere prologue
to the final one, and they all display Sergeant Anderson’s
iil will toward her, a disposition that ultimately led him to
kill her. The attempt at intercourse is the least logical part
of the transaction, but the evidence that the victim was
partially nude during the last assault yields the inference
that the “intercourse” statement referred to an event im-
mediately before, during, or (given the other evidence) im-
mediately after the beating and fatal wounds. We think
there is enough nexus that there is no need for similarity,
but if there is, it is satisfied.

We next address the relevance of the information. The
surrounding proof showed the writing to have been by
Sergeant Anderson, and his report that he had been twice
convicted for striking his wife is conclusive on the fact of
the convictions, and the convictions make it likely that he
did do the deeds that he reported. Similarly, his “inter-
course” statement reports his own attempt, and his word

34a

may be taken as conclusive on that subject, too. Thus,
there is virtually no doubt of either the occurrence of the
uncharged misconduct or of the identity of the perpe-
trator.

Now we examine whether the evidence was offered for
some purpose other than propensity. We are satisfied that
there was indeed some tendency of the “Last Will” as a
whole to establish Sergeant Anderson’s motivation and his
intent to kill, and his intent was in issue. Indeed, the ulti-
mate defense strategy seems to have been aimed at
avoiding or defeating proof of premeditation and intent to
kill to limit any conviction to a non-capital offense, e.g.,
voluntary manslaughter in violation of Article 119, UC-
MJ, 10 U.S.C. § 919 (1988).

Finally, we must consider whether the potential preju-
dice by admission of the evidence outweighed its probative
value. The military judge enjoys wide discretion if he has
balanced the two considerations. See, e.g., United States
v. Hebert, 35 M.J. 266 (C.M.A. 1992); United States v.
Spata, 34 M.J. 284, 286 (C.M.A. 1992); United States v.
Mirandes-Gonzalez, 26 M.J. 411, 414 (C.M.A. 1988);
United States v. Hicks, 24 M.J. 3 (C.M.A. 1987), cert.
denied, 484 U.S. 827 (1987); White, 23 M.J. at 88; United
States v. Brooks, 22 M.J. 441 (C.M.A. 1986); United
States v. Jones, 25 M.J. 567 (A.F.C.M.R. 1987). While
this mi!*‘ary judge did not explain his conclusion or record
his analysis,?? he did show that he was aware of the need

29 Both we and the Court of Military Apppeals have encouraged
military judges to explain their balancing analysis on the record. See
e.g., United States v. Jones, 32 M.J. 155, 158 (C.M.A. 1991); United
States v. Dodson, 21 M.J. 237, 239 (C.M.A. 1986) (Everett, C.J., con-
curring); United States v. Lips, 22 M.J. 679, 682 (A.F.C.M.R. 1986);
United States v. Holt, 21 M.J. 946, 949 (A.F.C.M.R. 1986). The
benefits are obvious. Articulating the analysis affords one the oppor-

Boia eta Fania 5 eed heii:

ils ANS Des i aE ie MEP ad i LATS,

Ci neh RIM OD SEED

35a

to balance such considerations and declared that he had
done so. That is enough. United States v. Palmer, 29 M.J.
929, 938-39 (A.F.C.M.R. 1989), aff'd, 33 M.J. 7(C.M.A.
1991) (not required to do it on the record). This is the most
difficult and troubling step in this case, despite the latitude
given to us by the generous standard for review. It is diffi-
cult because the military judge admitted the whole docu-
ment instead of masking parts.*° As a result, he admitted
two very dangerous statements: “TSgt Oscar Anderson,

tunity to evaluate its reliability at the time, and it preserves for the
benefit of appellate reviewers the logic of the judge on an especially
sensitive and slippery matter, logic which, despite the scholarship of
appeals judges, might not occur to them.

Even more important is that the the deference afforded to trial deci-
sions by the abuse standard depends on the confidence held by ap-
pellate reviewers in the rationality and deliberation expended on the
problem at trial. Withholding the reasoning implies a certain ar-
bitrariness and threatens that deference. We emphasize to all that,
while today we do not irrevocably couple the abuse standard to the
presence of articulated trial-level reasoning, that deference need not
be permanent. United States v. Cole, 31 M.J. 270, 272 (C.M.A. 1990)
(Article 66 “neither stops [us] from applying an ‘abuse of discretion’
test nor requires such a test.”); see also United States v. Sloan, 35 M.J.
4, 6-7 (C.M.A. 1992) (convening authority must state reasons for
denial of deferment of confinement so that the decison can be re-
viewed by abuse standard).

‘© The military judge first found that it was impossible for the par-
ties to agree to a redaction that would satisfy both. As our analysis
shows, we do not regard that alone as a reason for admitting the whole
document, and we note elsewhere that the “remainder” rule, Mil. R.
Evid. 106, applies by its express terms to choices of a party to require
the whole to be admitted when part has already been. The military
judge regarded the document as being impossible to react without
leaving some confusion or possibility of misleading. We disagree. The
two statements which have most concerned us here cou!d have been
redacted without such dangers. However, it is not enough that we
disagree, for we review the military judge’s ruling on how much to ad-
mit for an abuse of discretion, and we find none.

36a

Jr., was brought to stand trial twice for 2 blows to his
spouse . . .” and the “intercourse” statement.

First we address the “intercourse” statement. We find it
to have no probative value in the case at all, but it has the
obviously prejudicial message that Sergeant Anderson was
such a bad and violent man that he would attempt inter-
course by force, perhaps even after the victim was dead or
dying. It was unnecessary but dangerous, and it was an
abuse of discretion to admit it. However, the statement
was harmless, for it proved little more than was suggested
by the state of the victim’s attire when she was discovered.
It is not quite accurate to say that it was cumulative, but it
is so nearly cumulative that admitting it was harmless er-
ror. Cf. United States v. Franklin, 35 M.J. 311 (C.M.A.
1992) (prior abusive, combative sexual behavior with dif-
ferent victim should not have been admitted but was
harmless); United States v. Cordova, 25 M.J. 12 (C.M.A.
1987) (insensitive remarks about prior rapes should not
have been admitted but was harmless); United States v.
Mann, 26 M.J. 1 (C.M.A. 1988), cert. denied, 488 U.S.
824 (1988) (evidence of prior sexual abuse of different
child should not have been admitted but the error was
harmless). No relief is warranted. Article 59(a), UCMJ, 10
U.S.C..§ 859(a) (1988).

Similarly, it was unnecessary to prove that Sergeant
Anderson had previously struck the victim, and that was
irrelevant. His prior convictions and consequent punish-
ments supplied part of the motivation for the present
crime—revenge and ill will—but proving prior assaults
only showed violent character and a ballistic course of
events that might have been predicted to end just as they
did, the kind of “propensity” evidence that Mil. R. Evid.
403 and 404 are intended to exclude. See Franklin, 35 M.J.
at 317-17. Whatever minimal relevance and probativeness

Raa ah CR eu

sii Aas otal

37a

that might have attended this statement was overwhelmed
by the potential for prejudice, and it was an abuse of
discretion to admit it. Once again, however, we must ex-
amine the evidence in the context of the record to deter-
mine whether it was harmless.

Taken as a whole, the evidence established Sergeant
Anderson’s motives for an assault on his wife, his presence
and opportunity to commit one, and further established
that he did commit one. It further establishes furtive be-
havior and consciousness of guilt afterward. There is no
doubt that his wife was killed after an assault. The ad-
missible parts of the “Last Will” reveal more on the
grounds—real and imagined —for Sergeant Anderson’s ill
will and desire for revenge. There is no doubt left by the
admissible parts of the “Last Will” and the uther evidence
that Sergeant Anderson was the person who killed his
wife, and that is the only substantial inference that might
have been drawn from the inadmissible uncharged miscon-
duct. Accordingly, the error was harmless, and no relief is
warranted. Article 59(a), UCMJ, 10 U.S.C. § 859(a)
(1988).

Unfortunately, that does not end the matter, for the
military judge did not give the required limiting instruc-
tion on the use of the uncharged misconduct. The defense,
unable to persuade the military judge to instruct according
to its proposal, objected to the judge’s proposal and asked
that he give no instruction at all.

Long ago the fundamental principle was established
that there is a sua sponte duty to instruct on uncharged
misconduct. United States v. Grunden, 2 M.J. 116
(C.M.A. 1977). However, qualifications came fairly soon
thereafter, and it is now clear that the instruction is not
always required sua sponte, United States v. Thompson,

38a

30 M.J. 99, 101 (C.M.A. 1990) (required on request);
United States v. Thomas, 11 M.J. 388, 392 (C.M.A. 1981)
(requirement for instruction depends on nexus); United
States v. Fowler, 9 M.J. 149, 150 (C.M.A. 1980) (reviews
development of sua sponte requirement in Grunden; not
always required); United States v. James, 5 M.J. 382
(C.M.A. 1978) (not required where uncharged event bore
“immediate relation”), and that it may be waived when it is
required, United States vy. Wray, 9 M.J. 361, 362-63
(C.M.A. 1980). See United States v. Dagger, 23 M.J. 594,
597-98 (A.F.C.M.R. 1986), pet. denied, 25 M.J. 241
(C.M.A. 1987).

The lesson in Thomas, Fowler, and James helps here.
No instruction is required here because the uncharged mis-
conduct is “part of the chain of events that leads to the
consummation of the crime charged” or is “part and
parcel.” That approach abates the need for any instruction
about the “intercourse” statement. The statement, its con-
text, and the state of the victim’s attire all combine to show
that, whatever they were, the attempts at intercourse oc-
curred in the apartment and immediately before, during,
Or immediately after ihe melee. They were “part and
parcel” of it, and no instruction was required. According-
ly, there was no error in granting the defense request not
to instruct.

As our prior discussion suggests, however, we take a
different view of the prior assaults that had resulted in the
two prior convictions. Those assau/ts were neither “part
and parcel,” “inextricably related” to the homicide, or
even “part of the chain of events” that led to the victim’s
death. A limiting instruction was required. However,
Thomas and Wray make it clear that the instruction can be
waived even where it would otherwise be required sua
sponte.. The defense waived the instruction, and no relief

39a

is required.?!

We are still not finished with this issue. As has become
increasingly the trend, appellate defense counsel seek to
avoid the waiver by claiming it to have amounted to in-
effective assistance of counsel. The Sixth Amendment be-
stows upon criminal defendants a right to the effective
assistance of counsel. See generally Strickland v.
Washington, 466 U.S. 668 (1984); United States v. Scott,
24 M.J. 186 (C.M.A. 1987); United States v. Barnard, 32
M.J. 530 (A.F.C.M.R. 1990), pet. denied, 33 M.J. 484
(C.M.A. 1991). Reversal of a conviction for denial of such
assistance requires that the appellant show that counsel’s
assistance was deficient and that the deficiency prejudiced
the appellant. /d. There is no simple standard or checklist
of factors for the examination of counsel’s performance.
Instead, one must determine whether the appellant re-
ceived a fair trial, and whether counsel’s performance was
reasonable under the circumstances, with due deference.
The range of acceptable performance is wide. Strickland,
466 U.S. at 688-91.

ne of the lawyers who represented Sergeant Anderson
replied to his arguments in an affidavit, as is typical. See,
e.g., United States v. Daffron, 32 M.J. 912, 915-16
(A.F.C.M.R. 1991), pet. denied, 34 M.J. 75 (C.M.A.
1991). Appellant did not rebut it, and he has not submitted
any evidence on his claims of ineffectiveness other than

‘| For the sake of completeness, we also note that the waiver is not
affected by any flaws in the instruction intended by the military judge.
The instruction must identify the purpose for which the evidence has
been admitted and bar its use for improper purposes, e.g., character
or “propensity” inferences. It should be given upon admission and
again before deliberation on findings. United States v. Lebitt, 35 M.J.
114(C.M.A. 1992). The judge’s instruction and his plan to give it met
those tests.

40a

the record. Accordinzly, we will rely on the affidavit as
well as the record when examining this issue. /d.

Appellate defense counsel’s arguments on this issue are
particularly strenuous, emphasizing perhaps too much the
evidentiary impact of the “Last Will.” While it is true that
it was powerful, nothing in the military judge’s proposed
instruction was likely to make it otherwise. Assuredly, the
military judge intended to limit its uses to those permissi-
ble, but that remained devastating use, and nothing that
the defense could have done would have reduced the “Last
Will” to insignificance. As appellate counsel for the
government put it, the trial defense counsel are not inef-
fective in the constitutional sense just because they cannot
make a silk purse from a sow’s ear. Left with a choice be-
tween the theoretical value of a limiting instruction and
the oft supposed disadvantage that such an instruction
simply brings even more attention to the evidence, the
defense chose to reduce the attention directed to the “Last
Will” in the instructions. The defense counsel’s explana-
tions show that the choice was a considered tactical deci-
sion.2?, We do not second-guess such choices. Sergeant
Anderson received much more than that quality of repre-
sentation that is required to assure a fair trial and a
reliable, adversarial process. Strickland, 466 U.S. at 688;
United States v. Cronic, 466 U.S. 648, 653-57 (1984).
Nothing more is required. No relief is warranted on this
claim.

32 The defense counsel’s affidavit is also particularly strident. It
conveys the feeling of betrayal that is often inevitable when ineffec-
tiveness is assigned. It is an example of the kind of damage that his
assignment does, the kind to which we referred in United States v.
Barnard, 32 M.J. 530, 532 (A.F.C.M.R. 1990), pet. denied, 33 M.J.
484 (C.M.A. 1991).

4la

E. The Witness’ Second Statement

The last important evidentiary matter arises because of
the special privilege of the members of a court-martial to
summon more evidence. See R.C.M. 913(c)(1)(F), 921(b).
After having begun deliberations, the members asked to
have a copy of the statement given to the police by the vic-
tim’s child. They knew about the statement because the de-
fense had cross-examined the child about it. She had not
related in it that she had seen Sergeant Anderson take a
large kitchen knife from under her mother’s mattress.
What the members did not know was that there were two
such statements. The second statement was given the next
day, obviously a follow-up to the first, and it included the
part about the knife.

The defense had no objection to the first statement and
even asked that it be labeled a defense exhibit, as it was.
Sergeant Anderson stipulated to its authenticity. Pre-
dictably, the defense objected to the second statement.
However, it stated no grounds other than that providing it
exceeded the request of the members.

Equally predictably, the prosecution took a different
view. It argued that the second statement was simply a
continuation, amplification, or explanation of the first,
the statement itself supports that view. Accordingly, the
prosecution urged the military judge to view the two state-
ments as effectively one. Though trial counsel never ut-
tered the words, his position could have been based on
Mil. R. Evid. 106,” ... related writings ... ,” which
seems to resolve this issue. It provides —

When a... statement ... is introduced by a
party, an adverse party may require that party at
that time to introduce . . . any other . . . state-

ment which ought in fairness to be considered
contemporaneously with it.

42a

Mil. R. Evid. 106 was adopted verbatim from Fed. R.
Evid. 106. MCM 1984, analysis at A22-4. What the
drafters did not anticipate was that a third part of a
military forum might be responsible for the “introduction”
of evidence, namely the court-martial itself. Thus, we need
only decide whether the court-martial is itself a “party”
within the meaning of this rule.

Regrettably, we find no help in this decision except Mil.
R. Evid. 102, the rule of construction which requires the
rules of evidence to be “construed to secure fairness. . . to
the end that the truth may be ascertained and proceedings
justly determined.” In the setting of this case, we think
that when the members summon more evidence, they must
be regarded for this purpose as a “party.” The prosecu-
tion’s intent was simply to assure that the truth-seeking
was not impeded by an inadvertently one-sided summons.
Any other response to this situation would have been
fatuous. We find no error.

Vil. The Findings

Sergeant Anderson asks us to review the conviction of
murder for two reasons. First, he urges that the term “pre-
meditation” is unconstitutionally vage, and, second, he
urges that the evidence is insufficient to sustain the convic-
tion of premeditated murder. We specified yet another
such issue, whether the evidence was sufficient to sustain
the conviction for escape from confinement.

A. “Premeditation”

At trial Sergeant Anderson’s counsel moved for appro-
priate relief on the grounds that “premeditation under
Rule for Courts-Martial 1004 is unconstitutionally vage.”
(Emphasis added.) R.C.M. 1004 is about capital sentenc-

43a

ing procedure and factors, not about the elements of
proof. However, the defense argument on appeal cites cs
about vague penal statutes, not about improper factors in
capital sentencing. The military judge denied the motion.
To the extent that Sergeant Anderson intended to com-
plain that premeditation is too imprecise a term to filter
capital cases from non-capital cases, see United States v.
Gay, 16 M.J. 586 (A.F.C.M.R. 1983), his complaint is
moot, for he was not sentenced to death, and we do not
address that aspect. However, generous treatment of his
assignment suggests that he also contends that Article
118(1) is unenforceable for vagueness because the term
“premeditation” is vague. That assignment was addressed
in United States v. Mansfield, 33 M.J. 972, 988-89
(A.F.C.M.R. 1991), pet. filed, 36 M.J. 16(C.M.A. 1992).
When, as here, a proper definition is supplied in the mili-
tary judge’s instructions, there is no ambiguity. See an-
notation, Lee R. Russ, Modern Status of the Rules Re-
quiring . . . “Premeditation” as Elements of Murder... ,
18 A.L.R. 4th 961 (1982). This assignment is without
merit.

B. Escape

One would have expected that Sergeant Anderson
would have been prevented from committing murder while
he was serving the confinement earlier adjudged, but he
was a minimum custody prisoner, allowed to go about the
base without escort and allowed to go off the base with an
escort. He arranged a trip off the base and got an escort.
The escort took him off the base to do his errands, which
involved a stop at his wife’s apartment, a trip to an auto
dealer, and a return to the apartment. The escort twice left
Sergeant Anderson at the apartment and finally went on
his way, leaving Sergeant Anderson unsupervised at the

44a

apartment, intending that Sergeant Anderson would
return with his wife to the base and to confinement. Mrs.
Anderson eventually returned to the apartment and told
her daughter to dress so that Mrs. Anderson could take
Sergeant Anderson back to the base. Afterwards she was
killed, and Sergeant Anderson drove away from the apart-
ment, dropped the child for safekeeping, and fled. On
these facts he was convicted of an escape from confine-
ment in violation of Article 95, UCMJ, 10 U.S.C. § 995
(1988).

The elements of an escape from confinement include
that the prisoner “cast off” the physical restraint. See
MCM, Part IV, paragraph 19c(4)(a) and (c) (1984). We
have held in a similar case that, where the prisoner was left
by the escort, there was no “casting off.” United States v.
Standifer, 35 M.J. 615 (A.F.C.M.R. 1992). The prisoner
in Standifer, unlike Sergeant Anderson, remained where
he was supposed to stay, but in United States v. Hunter,
25 C.M.R. 568 (A.B.R. 1958), the same element was
found lacking where, as here, the escort abandoned the
prisoner, when the prisoner was not then where he was
‘supposed to be; was left with no instructions to stay, go,
or return; and whose travels thereafter are not reported.
Sergeant Anderson’s case is similar. If there existed any of
the physical restraint required in an escape from confine-
ment,*? we find the evidence insufficient to prove the

33 This theory for our disposition avoids any analysis of the extent
to which the proof in this case showed the prisoner to be under
“physical restraint,” an issue the close kin of which recently divided
this court in United States v. Felix, _._.. M.J. ____ (A. F.C.M.R.. 10
February 1993). I noted then,

There is an ofi-repeated doctrine that a prisoner remains in
“physical restraint” even when outside the jail if accompanied
by an escort who— even unarmed — has the means and duty to

— .t

45a

oppose flight. See, e.g., United States v. Hodge, 50 C.M.R. 445
(A.F.C.M.R. 1975). We have no fight to pick with the general
idea that an escort can supply the physical restraint that is other-
wise lacking outside a jailhouse, but, as one might expect, prior
cases have offered many an oportunity to find the limits of that
doctrine. For example, in United States v. Cornell, 19 M.J. 735
(A.F.C.M.R. 1984), our predecessors affirmed a conviction of
escape from confinement where the prisoner —in minimum cus-
tody — was permitted to go out of the jail unescorted to a gym,
from whence he fled without authority. Cornell was based on
United States v. Maslanich, 13 M.J. 611 (A.F.C.M.R. 1982),
pet. denied, 14 M.J. 236 (C.M.A. 1982), in which a panel of this
Court explicitly overruled with only momentary analysis the
precedent inconsistent with its view of the law relative to
“physical restraint.”

One might well criticize Cornell and Maslanich as confusing
the status of confinement whith the fact of physical restraint,
both of which appear to be required in an escape from confine-
ment. That is exactly the flaw in the majority’s approach in this
case, explicitly stated in its opening. As the clarity of the distinc-
tion between the tow has been reduced, we seem in Cornell to
have gotten to the point that proof of one element (physical
restraint) may be inferred from proof of the other (status of
confinement), regardless whether the facts of the prisoner’s life
were congruent with that inference. To put it even more bluntly,
Cornell and Maslanich \ure one seductively into assuming away
a distinct requirement for proof of “physical restraint.” Such a
flawed approach warrants reconsideration.

Felix, ___ M.J. at ____ (A.F.C.M.R. 1993). My dissenting brother,
Senior Judge McLauthlin, was in the majority in Felix and now
reiterates its view. Senior Judge Leonard and I were in the minority in
Felix, But our disposition of this case turns on an element of proof dif-
ferent from the one that divided the Court in Felix, and so we do not
feel obliged to follow Felix (a correctional custody case about “physical
restraint”) into the present setting (an escape case about “casting off”).
As is plain from our dissent in Felix, we do not agree with Judge
McLauthlin’s view in this case. However, it restates the Felix problem,
thus ironically inserting that issue in a confinement case, where it rightly
belongs, and begging the Court of Military Appeals to decide, however
belatedly, whether Maslanich and Cornell were jurisprudential disasters
or triumphs of substance over procedure.

46a

“casting off” that is also required. We set aside the convic-
tion of escape, and we address the effect of the error in our
treatinent of the sentence.

C. Sufficiency

“The test for [legal sufficiency] is whether, considering
the evidence in the light most favorable to the prosecution,
a reasonable fact-finder could have found all the essential
elements beyond a reasonabie doubt.” United States v.
Turner, 25 M.J. 324, 324 (C.M.A. 1987) (citing Jackson v.
Virginia, 443 U.S. 307 (1979)). The test for factual suffi-
ciency is “whether, [we] are [ourselves] convinced of the
accused’s guilt beyond a reasonable doubt.” Turner, 25
M.J. at 325. We have examined this record with special
care, and the convictions for assault consummated by a
battery and premeditated murder meet both tests.

VIII. Sentencing

Sergeant Anderson assigned three errors relating to
sentencing. He moved at trial for a separate “panel” on
sentencing, but the motion was denied. That motion
related to the possibility of a capital sentence. Since a non-
capital sentence was adjudged, the matter is now moot,
and we do not address it.*4 He also urges that the manda-

34 We do note, however, that courts-martial do not have “panels.”
Defense counsel’s mistaken belief to the contrary accounts for his sug-
gestion that it might be possible to have two or more sets of members
to try different phases of a case. The members are the court-martial.
They constitute it. Thus, to re-state the defense idea in correct terms,
the defense asked to have the sentencing case tried by a different
court-martial. That is a remarkable suggestion for which there is no
military precedent except those instance caused by some form of
remedial remand. The code provides no support for the idea. That, of
course, says nothing about the constitutionality of the present system
in capital cases, but that is an issue that must await a capital case for
consideration with the benefit of much more thorough analysis.

P= eae

47a

tory life sentence provision of Article 118 denied him due
process. Finally, he urges that the sentence is too severe.
After we address has assignments, we consider the effect
on the sentence of setting aside the conviction for escape.

A. Voting on a Mandatory Minimum Sentence

Sergeant Anderson points to the tangle of statutory re-
quirements that arise in a case in which there is a manda-
tory minimum sentence and urges that he was denied the
benefit of the voting contemplated by Article 52(b)(2),
UCMJ, 10 U.S.C. § 859(a) (1988). As his brief discloses,
Sergeant Anderson really asks us to follow a path different
from that taken by the Court of Military Appeals in
United States v. Shroeder, 27 M.J. 87 (1988), cert. denied,
489 U.S. 1012, 109 S. Ct. 1121, ie Se Se
(1989). To induce us to do so, he brings to our attention a
decision of a federal circuit court which he thinks did so,
Dodson v. Zelez, 917 F.2d 1250, 1255-62 (10th Cir. 1990).
We may not ignore precedent of the Court of Military Ap-
peals, United States v. Jones, 23 M.J. 301, 302 (C.M.A.
1987), and that is what we would need to do to reach the
result for which Sergeant Anderson argues. To the extent
that Dodson might require a different result from
Schroeder, we must follow Schroeder.

However, Dodson was different. It involved a soldier
whose trial was in 1981, before the present, bifurcated
procedure for capital sentencing. That procedure was not
used in Sergeant Anderson’s case because the findings
were not unanimous, and that prevents a capital sentence.
Neither Dodson nor the military judge at that court-
martial were quite so fortunate. When Dodson’s sentence
was determined, death was still a possibility. The military
judge in Dodson focused on life and death and composed
an instruction that walked right into a voting trap. He told

48a

the members that if any member voted for confinement,
the balloting could step then and there, for death was
thereafter excluded for lack of unanimity and the manda-
tory minimum life imprisonment would follow auto-
matically.

The Dodson instruction had two flaws. First, it ignored
the requirement that sentence proposals inciude any “ac-
cessory” punishments — reductions, forfeitures, et cetera —
intended and be voted on as proposals. R.C.M. 1006(c)
and accompanying discussion. The Dodson procedure
allowed separate balloting on each kind of punishment.
Second, that flaw and the premaiure abandonment of
balloting on confinement subverted the requirement that
three quarters of the members concur in any sentence in-
cluding confinement for more than 10 years. The pro-
cedure in Sergeant Anderson’s case was considerably dif-
ferent, and his case is not governed by Dodson.

The military judge instructed Sergeant Anderson’s |
court-martial (1) about the maximum punishment; (2) that
there was a minimum punishment, confinement for life;
(3) that each member could propose a sentence; (4) that
“each proposed sentence in its entirety” (emphasis ours)
would be voted in order from least to most severe, R.C.M.
1006(d)(3)(A); (5) until the members arrived at the re-
quired concurrence of three quarters of the court-martial.
Thus, in Sergeant Anderson’s case the procedure required
the concurrence specified by the code. No relief is war-
ranted on this assignment. Shroeder, 27 M.J. 87.

B. Reassessing Sentence

Because we have found the error discussed above and
set aside the conviction for escape, we must reassess the
sentence to assure that no greatei sentence is approved

al

49a

than would have been adjudged at trial, had the error not
occurred. United States v. Peoples, 29 M.J. 426 (C.M.A.
1990); United States v. Sales, 22 M.J. 305 (C.M.A. 1986).
See generally, United States v. Waits, 32 M.J. 274, 276-77
(C.M.A. 1991). We are satisfied that we can do so. Con-
sidering only the evidence admitted at trial, we reassess the
sentence and approve the sentence as adjudged. In short,
we are convinced that the conviction for escape could have
had no discernible effect on the sentence which would
have been adjudged. The confinement was a mandatory
minimum that resulted from the conviction for murder. A
dishonorable discharge was appropriate in this case for the
murder alone, as were the forfeitures and reduction in
grade, and, given the violent murder, they were certain to
be adjudged. An escape from confinement is, compared to
the murder, a relatively minor offense, and it could not
have had any real impact in sentencing.

C. Severity

Sergeant Anderson also complains that the sentence is
unduly severe. We have examined the whole record, the
convictions, and the sentence, giving due consideration to
the characteristics of this offender and to the crimes of
which he was convicted. United States v. Healy, 26M J.
394 (C.M.A. 1988); United States v. Wingart, 27M.J. 128
(C.M.A. 1988); United States v. Snelling, 14 M.J. 267, 268
(C.M.A. 1982); United States v. Ciulla, 29 M.J. 868
(A.F.C.M.R. 1989), aff'd, 32 M.J. 186 (C.M.A. 1991),
cert. denied, ___ U.S. , 112 S. Ct. 172, 116 L. Ed. 2d
135 (1991). We note that the crimes in this case were brutal .
and final, and this court-martial was shown to have been
the third in a series, all of which arose from Sergeant
Anderson’s relationship with his wife. A pathologist re-
ported that the chest bone, through which one of the stab

50a

wounds passed, “is a particularly sensitive structure.” The
evidence shows the kinds of traumatic injuries consistent
with a prolonged beating. The stab wounds opened inter-
nal cavities which filled with blood, and, if she remained
conscious, the victim. would have endured the sound of her
last breaths gurgling in her own blood. Her child —aware
of the fight — testified that she thought she heard someone
call her name as Sergeant Anderson took the child from
the apartment. She never saw her mother alive again. We
are satisfied that the sentence is not inappropriate, as ad-
judged and as approved. Article 66(c), UCMJ, 10 U.S.C.
§ 866(c) (1988).

The finding of guilty of the specification of Charge III
(escape from confinement) and of Charge III are set aside
and dismissed. The remaining findings and the sentence as
reassessed are correct in law and fact, and they are—

AFFIRMED.
Senior Judge LEONARD concurs.

McLAUTHLIN, Senior Judge (concurring in part and
dissenting in part):

I am in substantial agreement with the lead opinion in
all respects but one: I would affirm appellant’s conviction
of escape from confinement. ‘The majority detects no
“casting off” of any physical restraint in this case—I
would find to the contrary. In United States v. Maslanich,
13 M.J. 611 (A.F.C.M.R. 1982), pet. denied, 14 M.J. 236,
and in United States v. Cornell, 19 M.J. 735 (A.F.C.M.R.
1984), we concluded that a prisoner is “physically re-
strained” as long as that prisoner is in a lawful confine-
ment status. Clearly, this status continues when the
prisoner is Outside the jailhouse and even when the
prisoner is then left alone. According to the Manual’s

Sla

discussion of the offense, “Confinement is physical
restraint imposed under R.C.M. 305, 1101, or paragraph
5b, Part V.” (Emphasis added) MCM, Part IV, paragraph
19c(4)(a). The Manual also notes that the “lack of effec-
tiveness of the restraint imposed is immaterial.” MCM,
Part IV, paragraph 19c(4)(c).

In Maslanich, we found an escape from confinement
when an unattended prisoner walked out of his defense
counsel’s office and left the base. Similarly, in Cornell, we
affirmed the escape from confinement conviction of an
unescorted prisoner who departed the confinement facility
with permission to go to the gymnasium, but exited the
base instead. Maslanich is the sole case cited in the
Manual’s analysis of the “escape” element of this offense.
MCM, App. 21, paragraph 19c(4)(c).

Under the majority’s rationale, an escape from confine-
ment is conditioned upon the quality of the confinement
facility or the attentiveness of the escort. This approach il-
logically labels the fleeing prisoner an escapee if guarded,
but innocent if not. In my view, however, “restraint of
physical liberty is intrinsic in the status of confinement,”
Cornell, 19 M.J. at 736, and any prisoner who throws off
that status has escaped confinement in violation of Article
95, UCMJ.

[SEAL OMITTED]

OFFICIAL

/s/ Naomi D. Allen
NAOMI D. ALLEN
TSgt, USAF
Chief Court Administrator, AFCMR

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1711%3A1. Public record. Not legal advice.