Petition for Writ of Certiorari — Mansfield v. United States

Supreme Court brief1994

Ask Donna

What actually matters in this document.

Text

No. ® ® .,

Supreme Court of the United

OCTOBER TERM, 1993

IN THE °

CLYDE E.L. MANSFIELD, PETITIONER

UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

PETITION FOR A WRIT OF CERTIORARI

December 1993

JAY LINDSEY COHEN

Lt Colonel, United States Air Force

Chief, Appellate Defense Division

Counsel of Record

FRANK J. SPINNER

Lt Colonel, United States Air Force

Chief Appellate Defense Counsel

Counsel for the Petitioner

ROBERT E. WATSON

Captain, United States Air Force

Appellate Defense Counsel

Counsel for the Petitioner

AIR FORCE LEGAL SERVICES AGENCY

172 Luke Avenue, Suite 208

Bolling AFB, DC 20332-5113

(202) 767-1562

States

QUESTION PRESENTED

Following the successful challenge of a conviction on the

basis of ineffective assistance of counsel, does the due process

clause of the Fifth Amendment bar the subsequent use of

statements prepared by an accused at the request of his inef-

fective trial defense counsel, which statements were intro-

duced during the evidentiary hearing for the limited purpose of

establishing the denial of the Sixth Amendment right to effec-

tive counsel

TABLE OF CONTENTS

Page

OPINIONS BELOW ; hz seioabee l

JURISDICTION aoae whaliereuceeciedn 2

CONSTITUTIONAL PROVISIONS INVOLVED ........... 2

PEPE EMGEETE COE BEM CIROUE i crtsciselaciatccsseantteaunn 2

REASONS FOR GRANTING THE WRIT .. 10

CONCLUSION $ 2

APPENDIX A la

APPENDIX B 10a

APPENDIX C 25a

APPENDIX D 95a

TABLE OF AUTHORITIES

Supreme Court Cases: Page

Adams v. United States ex rel. McCann, 317 US

a oe eulbpentceveonedwenrins

Chapman v. California, 386 U.S. 18 (1967) ...

Harris v. New York, 401 U.S. 222 (1971) ...............

James v. Illinois, 110 §. Ct. 648 (1990).....000000........

Kastigar v. United States, 406 U.S. 441, 92 S. Ct

Re Re es) a Pe

Lockhart v. Fretwell, 113 S. Ct. 838 (1993) ..

Oregon v. Hass, 420 U.S. 714 (1975) .

Simmons v. United States, 390 U.S. 377 (1968) . me 16,

Strickland v. Washington, 466 U.S. 688 (1984) ..... 8, 10,

United States v. Chronic, 466 U.S. 648 (1984) ...... 10, 11,

Federal Cases:

Polythane Systems v. Marine Ventures International,

Lid., 993 F.2d 1201 (Sth Cir. 1993) 00000...

lasby v. United States, 504 F.2d 332 (8th Cir.)

(1974)... "

United States ex rel Williams Vv Twome y, 510 F.2d

634 (7th Cir. 1975), cert. denied sub nom. Sielaff

v. Williams, 423 U.S. 876 (1975) 2000000...

United States v. Suarez, 820 F.2d 1158 (11th Cir

1987) ....... Sceaaudeiaaediceracecaveswcdeousoukhs . 16,

States Cases

In re Gillham, 704 P.2d 1019 (Mont. 1985)

Waitkus v. Mauet, 757 P.2d 615 (Ariz. Ct. App

1988)

Military Cases

United States v. DuBay, 17, US.C.M.A. 147, 37

ea. csvacnnsanneves

United States v. Gnibus, 21 M.J. 1 (C.M.A. 1985) ...

United States v. Johnson, 21 MJ. 211 (C.M.A

1986)...

TABLE OF AUTHORITIES—Continued

Military Cases—Continued Page

United States v. Mansfield, 24 M.J. 611 (A.F.C.M.R.

1987) awe ; he l

United States v Mansfield. 33 MJ. 972 (A F.C.M.R

1991) PI ee eR ORE te Beh SUE Zz. ea

18, 21

United States v. Mansfield, No. 67,973, slip op.

(C.M.A. 30 September 1993)........ care Pan FF

19, 21

United States v. Myles, 29 MJ. 589 (A.F.C.M.R

1989) 2 Macnee! 20

United States v. Stark, 24 MJ. 381 (C.M.A. 1989)... 20

United States v. Ward. | MJ. 176 (1975) 17

Constitutional Provisions

U.S. Const. amend. V 2. 10, 22

U.S. Const. amend. VI 2, 10, 22

Federal Statutory Provisions

10 U.S.C.A. § 867(a) (Supp. 1992) ; 2

12 USCA. § 1259(3) (Supp. 1992) 2

Uniform Code of Military Justice

Art. 32, 10 US.C. § 832 5

Art. 36, lOUSC. § 836 7

Art. 38, (O USC. § 838 10

Federal Rules of Evidence

Fed. R. Evid. 103(a) 17

Fed R. Evid 105 : 9

Fed R. Evid. 705 20

TABLE OF AUTHORITIES Continued

Military Rules of Evidence Page

Mil.R Evid. 103 17

Mil.R.Evid. 105 9

Mil.R.Evid. 502(d)(3) 7

Mil.R.Evid 802(d)(2) 19

IN THE

Supreme Court of the United States

OCTOBER TERM, 1993

No.

CLYDE E.L. MANSFIELD, PETITIONER

Vv.

UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

PETITION FOR A WRIT OF CERTIORARI

The petitioner, Clyde E.L. Mansfield, respectfully prays

that a writ of certiorari issue to review the order and judgment

of the United States Court of Military Appeals entered in his

case on September 30, 1993.

OPINIONS BELOW

The order and judgment of the United States Court of

Military Appeals, No. 67,973, slip op. (C.M.A. 30 September

1993) is located at Appendix A. The opinion of the United

States Air Force Court of Military Review setting aside

petitioner’s conviction following the first trial (Mansfield 1) is

reported at 24 MJ. 611 (AF.C.MR. 1987) (Appendix B).

(1)

The opinion of the United States Air Force Court of Military

Review which affirmed petitioner’s conviction following re-

trial (A/ansfield 11) is reported at 33 MJ. 972 (A F.C.MR.

1991) (Appendix C).

JURISDICTION

The final order of the United States Court of Military

Appeals was entered on September 30, 1993. The jurisdiction

of this Court is invoked under 28 USCA § 1259(3) (Supp.

1992) and 10 USCA § 867(a) (Supp. 1992)

CONSTITUTIONAL PROVISIONS iNVOLVED

The fifth Amendment of the Constitution of the United

States provides in relevant part:

No person shall... be compelled in any criminal

case to be a witness against himself, nor be deprived

of life, liberty, or property, without due process of

law. . .

The Sixth Amendment of the Constitution of the United

States provides in relevant part:

In all criminal prosecutions, the accused shall enjoy

the right to have the Assistance of Counsel for

his defense.

STATEMENT OF THE CASE

| The first trial

Yang Chae-Song was found dead in an alley in Song-Tan,

Korea on February 4, 1984 The cause of death was a single

stab wound to his back. The petitioner, a Staff Sergeant (E-5)

in the United States Air Force, was soon identified as a suspect

and was apprehended at Edwards Air Force Base, California,

on April 4, 1984. The victim was the ex-husband of Un-Cha

Haney, the petitioner’s lover. The facts leading up to and

culminating in the death of Yang Chae-Song are detailed in the

opinion of the Air Force Court of Military Review, and need

not be repeated here. United States v. Mansfield, 33 M.J. 972-

1010 (A.F.C.M.R. 1991) (Appendix C).'

The appellant was ultimately tried and convicted of pre-

meditated murder and received a sentence which included life

imprisonment, a dishonorable discharge, reduction to the grade

of E-1, and total forfeiture of pay and allowances. On appeal

the petitioner argued, inter alia, that he had been denied the

effective assistance of counsel. The basis for this assertion was

the failure of trial counsel to investigate, prepare and present

evidence which would properly support the defense of insan-

ity, or diminished capacity so as to reduce the degree of guilt.

In order to resolve the issue the Air Force Court of Military

Review, at the joint and several request of appellate govern-

ment and appellate defense counsel, ordered an evidentiary

hearing pursuant to United States v. DuBay, 17 U.S.C.M.A.

147, 37 C.M.R. 411 (1967).

The allegation of ineffective assistance of counsel arose

from the decision of petitioner’s defense counsel team to

abandon an insanity defense in mid-trial. The sanity issue had

it’s genesis in the petitioner’s pretrial confinement hearing.

Captain Prater, the local Air Force Area Defense Counsel,

established an attorney-client relationship and represented the

petitioner at the hearing. Captain Prater was one of four

military lawyers who were responsible for the petitioner’s

defense. It was during this hearing that Captain Prater first

became aware of the petitioner’s bizarre behavior and obses-

sion with Un-Cha Haney. Unfortunately, Captain Prater did

not communicate his concerns regarding the petitioner’s san-

ity to his co-counsel.

' The facts set forth infra are contained within the opinions of the Air

Force Court of Military Review in Mansfield] ( Appendix B) and Mansfield

// (Appendix C).

Following the pretrial confinement hearing, petitioner was

returned to Korea. Upon his arrival, the petitsoner was inter-

viewed by another defense attorney, Major (then Captain)

Gregory P. Holder. In order to begin preparing a defense,

Major Holder obtained a verbal rendition of the circumstances

surrounding the offense from the petitioner. Initially, the peti-

tioner told Major Holder that he could not recall the events

surrounding the killing. Around this time Lieutenant Colonel

Nowak became a member of the defense team. Lieutentant

Colonel Nowak was the Chief Circuit Defense Counsel for the

Seventh Circuit, United States Air Force Judiciary.*

Since Major Holder and Lieuteant Colonel Nowak did not

believe they had obtained the truth, they advised petitioner not

to cooperate with the sanity board initiaily scheduled by the

government. As defense counsel continued questioning peti

tioner they became aware, as had Captain Prater, of petitioner’s

preoccupations and obsessions. Lieuteant Colonel Nowak and

Major Holder then made a defense request for a sanitary

board The defense request was granted and on June 21, 22

and 25, 1984, the petitioner appeared before Lieutenant Colonel

(Doctor) Robert L_ Vosburg, who served as the sole member

of the sanitary board. In Doctor Vosburg’s opinion, the peti-

tioner had a diminished capacity to appreciate the criminality

of the offense and lacked capacity to conform his conduct to

the law as the result of a mental disorder. The disorder Doctor

Vosburg diagnosed was post traumatic neurosis, chronic

Subsequently, at the request of his counsel, petitioner pre-

pared a 58 page handwritten statement. This statement was

later reterred to as his “Life Story” during the evidentiary

hearing and the retrial in Mansfield 1]. Major Holder reduced

Atthe time of these events, the Air Force Judiciary consisted of seven

circuits. The Seventh Circuit consisted of all Air Force installations in

the Pacific region

the handwritten statement to a typed document. This typed

document was admitted as Hearing Exhibit 7 at the post-trial

evidentiary hearing, and ultimately became Prosecution Ex-

hibit 65 in Mansfield I. Both of these documents were .reated

as attorney work product and kept with the case files.

The petitioner’s rendition contained a number of incriminat-

ing statements. These included his attempt to hire a “hit man”

to kill Yang, his purchase of a knife shortly before the homi-

cide and the manner of its use at the scene. The petitioner later

informed his counsel that the “Life Story” was false in a

number of respects. He informed Major Holder that he had

“dreamt” the information about the hit man and the purchas-

ing of a knife. The petitioner eventually provided defense

counsel with another version of the events. This version was

one defense counsel believed was closest to the truth and

excluded the inculpatory information concerning a hit man and

the knife. This version was typed by Captain Holder and

introduced at the evidentiary hearing 23 Hearing Exhibit 8

Major Holder had reservations about the strength of Doctor

Vosburg’s potential testimony because he felt Doctor Vosburg

lacked experience. However, Major Holder did not discuss his

concern with Doctor Vosburg because yet another defense

attorney, Major Poole, was responsible for preparing the in-

sanity defense. The defense attorneys were aware that a por-

tion of the pretrial investigation would be conducted in Cali-

fornia at Edwards Air Force Base.’ In order to bolster the

testimony of Doctor Vosburg, Captain Prater was contacted

and requested to locate civilian psychiatrists in the local Cali-

fornia area. Captain Prater arranged appointments with Doc-

ters Michael B. Coburn, John Beck, and William T Vicary, all

' A pretrial investigation conducted pursuant to Article 32, Uniform

Code of Military Justice, 10 U.S.C. § 832, is comparable in purpose to a

Civilian grand jury

of whom subsequently evaluated the petitioner. Captain Prater

never discussed the results of these evaluations with the Doc-

tors involved. The three doctors were provided with petitioner’s

final statement, as set forth in Hearing Exhibit 8

On 26 July 1984, the portion of the pretrial investigation

scheduled to be held at Edwards Air Force Base was con-

ducted. During the course of the hearing, Majors Poole and

Holder learned of 37 lay witnesses who described the peti-

tioner as “‘strange”’ or “crazy.” Although these defense attor-

neys obtained the names and addresses of the witnesses, they

never attempted to interview them, nor did they request Cap-

tain Prater interview them

Subsequent to the hearing at Edwards Air Force Base,

Captain Prater received the evaluations of the civilian doctors

Captain Prater learned that Doctor Vicary could support a

defense based on partial mental responsibility, but he never

communicated this to co-counsel. Captain Prater also received

an evaluation from Doctor Beck which stated the petitioner

suffered from a mental defect which resulted in his lacking

capacity to conform his conduct to the law. Similarly, Doctor

Coburn contacted Captain Prater and advised him that he had

changed his original opinion and could now support an insan-

ity defense

Upon a prosecution motion, a second sanity board was

ordered by the military judge. The board, consisting of three

psychiatrists, rendered an opinion that the petitioner did not

have a mental disease or defect. The defense made no attempt

to interview any member of this second board until the board

president arrived in Korea as a government witness at trial

Likewise, Doctors Coburn and Vosburg were not inter-

viewed until they arrived in Korea. In fact, Doctor Coburn did

not arrive until approximately the same day the prosecution

rested its case-in-chief. It was the interview with Doctor

Coburn which caused the defense to abandon the insanity

defense. Although the defense had not provided the experts

with either of the petitioner’s statements, Doctor Coburn’s

interview notes mentioned the petitioner attempting to hire a

“hit man.” Doctor Coburn was surprised to find this entry and

informed counsel that he had not relied on the “hit man”

information in reaching his opinion. Fearing this information

would be devastating on cross-examination, the defense coun-

sel abandoned the mental responsibility defense. Not all of the

defense team was satisfied with this approach. Lieutenant

Colonel Nowak felt that it was overwhelmingly dangerous to

abandon the insanity defense in mid-stream, but did not inter-

cede in his supervisory capacity.

2. The evidentiary hearing.

The petitioner was represented by different counsel at the

evidentiary hearing ordered by the Air Force Court of Military

Review. The issue of the attorney-client privilege was ad-

dressed and both the prosecution and defense recognized that,

while waiver of the privilege would apply, the evidence ad-

duced could only be used to resolve the ineffective assistance

of counsel issue.* The military judge ruled that communica-

tions between the petitioner and his prior counsel were in-

cluded in the limited use waiver. The defense position was that

waiver was valid solely for the purpose of resolving the

ineffective assistance of counsel claim and could not be used

for any other purpose

The counsel who represented Petitioner at the hearing pro-

vided, as a result of the military judge’s ruling, both the long

‘ The attorney-client privilege in the military is not a common law

rule. The President, exercising his power to prescribe procedures and

methods of proof in courts-martial, as granted by Article 36, Uniform

Code of Military Justice, 10 U.S.C. § 836, adopted Military Rule of

Evidence 502. Mil. R. Evid. 502(d)(3) states that there is no privilege

*[a]s to a communication relevant to an issue of breach of duty by the

lawyer to the client or by the client to the lawyer.”

| eae

version (Hearing Exhibit 7) and the redacted version (Hearing

Exhibit 8) of the “Life Story.” Defense counsel made it clear,

however, that he was objecting to any use of the documents

outside of the evidentiary hearing. Doctors Coburn and Vosburg

testified during the course of the evidentiary hearing and both

were required to review the long version of the “Life Story”

as part of their testimony

Following completion of the evidentiary hearing, the mili-

tary judge entered findings of fact’ and the record was for-

warded to the Air Force Court of Military Review. That court,

relying on this Court’s decision in Strickland v. Washington,

406 U.S. 668 (1984), held that petitioner had been denied his

constitutional right to the effective assistance of counsel as the

result of counsel’s failure to investigate, prepare, and present

the mental condition evidence. Accordingly, the Air Force

Court of Military Review set aside the finding of guilty and the

sentence

3. The second trial

The petitioner was subsequently retried on the charge of

premeditated murder (Mansfield /]). Prior to the retrial, the

defense made a motion in /imine seeking to preclude the use

of either version of the appellant’s “Life Story.” Defense

counsel argued that the prosecution could not use any evi-

dence they had obtained or became aware of as the result of

the evidentiary hearing. The prosecution opposed the motion,

contending that the attorney-client privilege no longer existed

Although different counsel represented the government, it was

clear they were well aware of the existence of the statements ‘

The military judge initially ruled that the government could

reinterview the defense experts and review reports and state-

* The findings of fact are attached as Appendix D

° This is not surprising since, at a minimum, portions of the

Statements appeared in the published decision in Afansfield /

ments of the petitioner which the expert relied upon in arriving

at an opinion, but that privileged matters released at the

evidentiary hearing still had limited use protection.’ The mili-

tary judge later retreated from this ruling and held that the

mere review of hearing exhibit 7 by defense expert witnesses

waived any protection accorded the exhibit

The defense opposed this later ruling on several grounds

First, they pointed out that Doctors Coburn and Vosburg were

required to review the long version of the “Life Story” during

the evidentiary hearing although neither relied upon it in

reaching their opinion. Further, in light of the military judge’s

ruling, the defense felt it necessary to have the other two

experts, Doctors Beck and Strefling, review the long version

in order to prepare them for possible cross-examination. The

defense made it clear that none of the witnesses relied on this

long version as a basis for their opinion. The witnesses had

already formed their opinions before its existence was re-

vealed to them and it did not change any of their original

opinions

The long version of the Life Story became Prosecution

Exhibit 65 at the retrial. The prosecution went through the

statement line by line, page by page, during their cross-exami-

nation of Doctor Beck. They also used it during cross-exami-

nation of Doctors Strefling and Coburn. Over defense objec-

tion, Prosecution Exhibit 65 was admitted as substantive evi-

dence. The prosecution relied upon it during closing argu-

ment, and it was considered by the court members during

deliberations

On appeal from his second conviction, both the Air Force

Court of Military Review and the United States Court of

Military Appeals rejected the petitioner’s argument that he had

’ The military judge relied on Military Rule of Evidence 105. That rule

is identical to, and based on, Federal Rule of Evidence 105

been denied due process by the use of the evidence which had

been released for the limited purpose of resolving the ineffec-

tive assistance of counsel claim. The courts below held that

any attorney-client privilege which existed had been waived

REASONS FOR GRANTING THE WRIT

No federal court has established a definite rule with regards

to the subsequent use of evidence derived during an evidentiary

hearing ordered to address a claim of ineffective assistance of

counsel. For the reasons set forth infra, the petitioner asserts

that the Due Process Clause of the Fifth Amendment prchibits

the use of such evidence at a retrial following 4 *.cesstul

challenge

In Strickland v. Washington,466 U.S. 668 (1984), this Court

observed that ‘“‘the right to counsel plays a crucial role in the

adversarial system embodied in the Sixth Amendment, since

access to counsel’s skill and knowledge is necessary to accord

defendant’s the ‘ample opportunity to meet the case of the

prosecution’ to which they are entitled.’ /d. at 685, citing

Adams v. United States ex rel. McCann, 317 U.S. 269. A

violation of the right to counsel, as defined by the Sixth

Amendment, denies an accused the right to a fair trial as

guaranteed by the Due Process Clause of the Fifth Amend-

ment. Strickland, supra, 466 U.S. at 684, 685. See also,

U/nited States v. Chronic, 466 U.S. 648, 658 (1984) (“the

right to the effective assistance of counsel is recognized not

for its own sake, but because of the effect it has on the ability

of the accused to receive a fair trial’). The right to counsel

applies fully to service members facing trial by courts-martial

See, e.g., Article 38, Uniform Code of Military Justice, 10

U S.C. § 838; United States v. Gnibus, 21 MJ. 1 (C.M.A

1985), United States v. Johnson, 21 M.J. 211 (C.M.A. 1986)

his Court has established a two pronged test to be applied

when a court is confronted with allegations of ineffective

assistance of counsel

First, the defendant must show that counsel’s per-

formance was deficient. This requires showing that

counsel made errors so serious that counsel was not

functioning as the “counsel” guaranteed by the Sixth

Amendment. Second, the defendant must show that

the deficient performance prejudiced the defense

his requires showing that counsel’s errors were so

serious as to deprive the defendant of a fair trial, a

trial whose result is reliable

Strickland, supra, 466 U.S. at 687. With limited exceptions,

such as the complete denial of counsel, an accused can estab-

lish a claim of ineffective assistance “only by pointing to

specific errors made by trial counsel.” United States v. Chronic.

supra, 466 U.S. at 666. An analysis of errors cannot focus

solely on outcome determination “without attention to whether

the result of the proceeding was fundamentally unfair or

unreliable.’ Lockhart v. Fretwell, 113 S.Ct. 838 (1993)

What this Court has not yet addressed, however, is the use

of the “specific error” evidence in a subsequent retrial should

the accused prevail on the claim that he was denied a fair trial

As the record of the evidentiary hearing reveals, the military

judge permitted inquiry into all aspects of the attorney/client

relationship during the evidentiary hearing. As a result, con-

siderably more information came to the attention of the pros-

ecution than would have otherwise. The prosecution, over

strenuous defense objection, relied heavily on this evidence to

not only rebut the mental capacity issue, but to also establish

premeditation. Since this evidence consisted of the very thought

processes of the petitioner, created in private at the behest of

his Own attorney in preparation for litigation, its persuasive

value was immense. The result was comparable to the “sacri-

fice of unarmed prisoners to gladiators.”” United States v.

(Chronic, supra, 466 U.S. at 657, citing United States ex rel.

Williams v. lwomey, 510 F.2d 634, 640 (7th Cir. 1975), cert.

denied sub nom. Sielaff v. Williams, 423 U.S. 876 (1975)

The government’s position, and the one adopted by the Air

Force Court of Military Review, was that the evidence could

be properly used against the appellant because he had waived

any attorney-client privilege. The petitioner argued that the

government should be barred from using the evidence derived

from an ev'dentiary hearing ordered by the court to address an

allegation of ineffective assistance of counsel. The Air Force

Court of Military Review rejected petitioner’s argument, stat-

ing

he appellant, however, seeks dismissal of the

charges as his remedy. Citing Kastigar v. United

States, 406 US. 441, 92 S.Ct. 1653, 32 L.Ed 2d

212 (1972), he argues that he was “compelled” to

waive the attorney-client privilege in order to estab-

lish grounds of ineffective assistance of counsel

rhus, he ts entitled to a “Aastigar-like” remedy

wherein the prosecution has the affirmative duty to

prove that the evidence it wishes to use at the second

trial was derived from a legitimate source wholly

independent of the “compelled” testimony relating

to his claim of inadequate representation. He con-

tends, without the protection, “ [a] retrial be-

comes nothing more than a forum whereby the gov-

ernment perfects its case at the expense of the

appellant’s Sixth Amendment right to effective as-

sistance of counsel.” This assertion misses the mark

While the appellant’s self-interest may “compel”

him to claim that his lawyer was inept, this “compul-

sion” does not allow him to re-claim his attorney-

client privilege. An attack on an attorney’s compe-

tence waives the attorney-client privilege as to mat-

ters reasonably related to the claim of inadequate

representation

United States v. Mansfield, supra, 33 M.J. at 97

Similarly, The United States Court of Military Appeals

stated

Before us, appellant again focuses on the turbu-

lence generated by the initial trial defense team. He

argues that their inadequacies compelled him to

attack them in order to demonstrate the unfairness

of his trial. To that end, he argues, it was necessary

to bring into the light of day his highly incriminating

statement, this statement which otherwise would

have remained enshrouded by the attorney-client

privilege. Thus, appellant contends, he was unfairly

penalized in his subsequent rehearing by the

prosecution’s cross-examination of his witnesses and

by the receipt in evidence of the statement.

To put this in context, in order to present his

mental responsibility defenses at the second trial,

appellant found it necessary to call expert witnesses,

armed with his incriminating statement, to testify

about his mental condition at the time of the killing

In providing his witnesses with the statement in this

manner, appellant waived his privilege with respect

to it. But for this fact, we agree there would have

made a dynamite issue. As the case stands, however,

its resolution becomes a paradigm of simplicity

U/nited States v. Mansfield, No. 67-973, slip op. at 5-6 (C.M.A

30 September 1993) (emphasis in original)

Both the Air Force Court of Military Review and the United

States Court of Military Appeals erred by summarily dismiss

ing the appellant's assertions on the basis of waiver. As the

Montana Supreme Court correctly noted, “waiver’’ may not

even be the correct term to use tn this type of situation. That

Court observed

While a petition for post-conviction relief alleging

inadequate assistance of counsel has been held to be

a waiver of the attorney-client relationship relating

to privilege waiver may be a misnomer in the true

sense of that legal term. Waiver is the voluntary

relinquishment of a known right. More important

than the privilege granted to the attorney-client re-

lationship are the effective administration of justice

and integrity of the fact-finding system in criminal

matters. Unlike the usual waiver situation, a petition

by one convicted of a crime alleging that his convic-

tion is the result of inadequate assistance of counsel

attacks the system of judicial administration and the

fairness of our trial procedures Therefore the

comprehension of waiver by a petitioner or his

knowledge and consent to waiver are irrelevant

In re Gillham 704 P.2d 1019, 1020 (Mont. 1985) (emphasis

added).°

his Court has considered an analogous situation involving

the question of whether the testimony of an accused during a

"The government argued before the United States Court of Military

Appeals that /n re Gillham actually supported their position that an

incilective assistance of counsel claim waives any right to a claim of

privilege. This is an overly broad reading of the case. /n re Gillham did

not address the use of evidence deduced during an evidentiary hearing in

a subsequent retrial. The issue in the case was whether trial defense

counsel was required to comply with an order to submit an affidavit to the

appellate court

suppression motion can be introduced against him during the

trial. This Court observed

It seems obvious that a defendant who knows that

his testimony may be admissible against him at trial

wil! sometimes be deterred from presenting the tes-

timonial proof of standing necessary to assert a

Fourth Amendment claim. The likelihood of inhibi-

tion is greatest when the testimony is known to be

admissible regardless of the outcome of the motion

tO suppress

lhe rule adopted by the courts below does not

merely impose upon a defendant a condition which

may deter him from asserting a Fourth Amendment

objection—it imposes a condition of a kind to which

this Court has always been peculiarly sensitive. For

a defendant who wishes to establish standing must

do so at the risk that the words which he utters may

later be used to incriminate him. Those courts which

have allowed the admission of testimony given to

establish standing have reasoned that there is no

violation of the Fifth Amendment’s Self-Incrimina-

tion Clause because the testimony was voluntary. As

an abstract matter, this may well be true. A defen-

dant is ‘“compelled”’ to testify in support of a motion

to suppress only in the sense that if he refrains from

testifying he will have to forego a benefit, and testi-

mony is not always involuntary as a matter of law

simply because it is given to obtain a benefit. How-

ever, the assumption which underlies this reasoning

is that the defendant has a choice: he may refuse to

testify and give up the benefit. When this assumption

iy applied to a situation in which the “benefit” to be

gained is that afforded by anotiver provision of the

Bill of Rights, an undeniable tension is created.

lhus, in this case Garrett was obliged either to give

up what he believed, with advice of counsel, to be a

valid Fourth Amendment claim or, in legal effect, to

waive his Fifth Amendment privilege against self-

incrimination. /n these circumstances, we find it

intolerable that one constitutional right should have

to be surrendered in order to assert another.

Simmons v. United States, 390 U.S. 377, 392-393 (emphasis

added)

A situation similar to the petitioner’s was considered in

l/uted States v. Suarez, 820 F.2d 1158 (11th Cir. 1987). In

that case, the accused pled guilty to various charges arising

trom the possession and transfer of weapons. Seven months

later, Suarez requested an evidentiary hearing on the issue of

whether his attorney had adequately disclosed the nature and

consequences of his guilty plea. “At the hearing, Suarez

expressly waived his attorney-client privilege to permit’”’ his

prior attorney, Feldman, to testify. 820 F 2d at 1159 (emphasis

added). Following the hearing, the trial court set aside the

guilty plea on the grounds that Suarez may not have been

completely aware of the consequences of his plea

During the subsequent jury trial, the prosecution called the

attorney as a witness during its case in chief. The trial judge,

over defense objection, “ruled that the attorney-client privi-

lege had been waived as to the matters to which Feldman had

testified at the prior evidentiary hearing, and the court allowed

Feldman to testify” 820 F.2d at 1159. On appeal, Suarez

argued that the rationale expressed in Simmons v. United

States, supra, applied. In affirming the conviction, the Court

of Appeals observed

Appellant’s contention is an interesting and diffi-

cult one, but we need not address it in this case

After a careful review of the record, we have con-

luded that Suarez did not present to the district

court the Simmons rationale as a basis for his objec-

tion to Feldman’s testimony. He argued Only that use

of the testimony would violate his attorney-client

privilege. Fed.R.Evid. 103(a) provides that error

may not be predicated upon a ruling which permits

evidence unless the specific ground for the objection

is inade clear. The nature of the error must be

“called to the attention of the judge, so as to alert

him to the proper course of action and enable Oppos-

ing counsel to take proper corrective measures a

Suarez, 820 F.2d at 116]

lhe facts in Suarez are distinguishable from those present in

the case sub judice. The petitioner did not expressly waive his

attorney-client relationship. Instead, the parties made it cleat

that the release of privileged information during the evidentiary

hearing was for the limited purpose of addressing the ineffec-

live assistance claim. Further, the defense made the basis of

their objection clear at the subsequent trial

‘Military Rule of Evidence 103 is nearly identical to, and based on

Federal Rule of Evidence 103. The military rule makes it clear however,

that errors of a constitutional dimension are handled differently. The

relevant section states

"he standard provided in this subdivision does. not apply to

errors involving requirements imposed by the Constitution of

the United States as applied to members of the armed forces

except insofar as the error arises under these rules and this

subdivision provides a standard that is more advantageous to

the accused than the constitutional standard

When a constitutional error is involved, the United States Court of

Military Appeals has long held that the correct standard to apply is the

one set forth by this Honorable Court in Chapman v. California, 386 U.S

18 (1967). See, e.g., United States v. Ward 1MJ. 176 (1975)

At Mansfield’s second trial, his counsel contended

the government could not use any evidence that they

had gained access to, or become aware of, through

the limited waiver of attorney-client privilege during

the evidentiary hearing. He argued that Mansfield

only waived the privilege to show the ineffective

assistance of his counsel at the first trial and use of

this compelled evidence in the second trial would

violate due process

Mansfield, supra, 33 M3. at 1000 (Leonard, J., dissenting)

(emphasis added)

lhe Arizona Court of Appeals has squarely addressed the

petitioner's concerns in a similar case. In Waitkus v. Mauet,

757 P 2d 615 (Ariz. Ct. App. 1988), the accused raised a post-

conviction claim of ineffective assistance of counsel. In re-

sponse, the state sought discovery of his defense counsel’s

files. The trial court granted the state’s request, but ruled that

the prosecutor was prohibited from disclosing this information

to other attorneys and that the county prosecutor’s office had

to withdraw from the case. On appeal the Arizona Court of

Appeals vacated the order and noted

| These measures did] not avoid the obvious chill-

ing effect the ruling has on a defendant’s right to

raise a claim of ineffective assistance of counsel. It

appears to a defendant that the state will have access

to information it could use in other proceedings in

addition to information it could use in the event the

new trial motion ts granted

757 P.2d at 616

Before the Air Force Court of Military Review and the

United States Court of Military Appeals, the petitioner, rely-

ing on Waitkus, supra, urged the adoption of a standard similar

to that employed in AKastigar v. United States, 406 U.S. 441

(1972). While petitioner asserts that a Kastigar approach best

serves the interest of avoiding the “chilling effect” on accused

who have meritorious claims of ineffective assistance of coun-

sel, the result in petitioner’s case would be the same should a

Simmons-type standard be employed.

To demonstrate this position it is necessary to break the

evidence down into the component parts. According to the

Court of Military Appeals, ““[w]ith respect to the prosecutor’s

direct introduction of the incriminating statement [Prosecu-

tion Exhibit 65], it was an admission by a party-opponent,

Mil. R. Evid. 802(d)(2), and was admissible.” Mansfield, supra,

slip op. at 6. This position is overly simplistic and ignores the

fact that the statement was introduced to establish that the

petitioner was denied the protection afforded by the Bill of

Rights, the right to effective assistance of counsel. An accused’s

testimony On a motion to suppress may also be an admission

by a party-opponent, but the introduction of such testimony

during the subsequent trial would be “intolerable.” Simmons,

supra, 390 US. at 394.

Of course, even under a Simmons-type analysis an accused

may be impeached with otherwise inadmissible statements

should he take the stand on his own behalf. See, e.g., Harris

v. New York, 401 U.S. 222 (1971); Oregon v. Hass, 420 U.S

714 (1975).'° However, the suppressed statements cannot be

used to impeach the testimony of other witnesses. James v.

/llinois, 110 S.Ct. 648 (1990). As this Honorable Court noted

in James, “an expanded impeachment exception likely would

chill some defendants from calling witnesses who would oth-

erwise Offer probative evidence.”'' 110 S.Ct. at 654.

” An accused can also be tried for perjury should he provide false

testimony at the evidentiary hearing. See, e.g., Tasby v. United States,

504 F.2d 332 (8th Cir. 1974)

" Petitioner recognizes that the concern of the Court in James was that

“the proposed expansion of the current impeachment exception would

significantly weaken the exclusionary rule’s deterrent effect on police

misconduct.’’ This Court has also observed, however, that ‘‘an expanded

Phe result should not turn on whether the witness is provid-

ing expert or lay testimony. The use of experts Is not a carte

blanche to smuggle in inadmissible evidence

Federal Rule of Evidence 705 [sic] provides that an

expert may give an opinion on a matter without prior

disclosure of the facts or data underlying his opin-

ion, unless the court requires otherwise. “The expert

may in any event be required to disclose the under-

lying facts or data on cross-examination.”’

Fed R.Evid. 705. While revealing the basis for an

expert’s opinion is allowed, such disclosure does not

facilitate the admission of otherwise inadmissible

evidence

Polythane Systems v. Marina Ventures International, Litd.,

993 F.2d 1201, 1207 (Sth Cir. 1993).'* Both the Air Force

Court of Military Review and the United States Court of

Military Appeals have relied on this principle to exclude tes-

timony in previous cases. See, United States v. Myles, 29 M.J

589, S91 (AFCMR. 1989) (“This rule does not permit

either party to ‘smuggle’ hearsay evidence into the case’’);

(/nited States v. Stark, 24 M.J. 381 (C.M.A. 1987).

The government argued at trial, as well as on appeal, that

the cross-examination of the experts through the use of the

long version of the petitioner’s “Life Story” was proper

because the experts relied upon it in forming their opinions

The Air Force Court of Military Review summarily disposed

of petitioner’s arguments to the contrary by simply stating that

impeachment exception likely would chill some defendants from calling

witnesses who would otherwise offer probative evidence.”” 110 S.Ct. at

654. A similar chilling cffect would occur should cross-cxamination be

permitted using testimony otherwise inadmissible under a Simmons analy-

SIS

'* Military Rules of Evidence 703 and 705 are identical to, and based

on, the Federal Rules

“appellate counsel are arguing semantics. It is clear that

defense psychiatrists used the statement in reaching a diagno-

sis.’’ Mansfield, 33 M.J. at 985. The United States Court of

Military Appeals relied on this brief language to hold that “the

majority of the Court of Military Review squarely found” the

statement was relied upon by the experts. Mansfield, slip op

at note 4. The Court of Military Appeals, therefore, found it

unnecessary to decide whether the experts “‘used”’ the state-

ment

However, as the dissenting judge on the Air Force Court of

Military Review correctly noted,

The mere release of the narrative statements to

trial counsel did not necessarily give him the author-

ity to use the statements outside his interviews with

the defense psychiatrists. His ability to use the state-

ments in cross-examination depended upon the cir-

cumstances of each psychiatrist’s access to the state-

ment and the extent, if any, the expert relied upon

the statement to form his opinion.

Doctors Beck, Coburn, and Strefling had no pre-

vious involvement with any mental examination or-

dered under [Rule for Courts-Martial] 706(b). Nei-

ther Beck or Strefling were potential expert wit-

nesses at the first trial and they did not testify at the

evidentiary hearing. They reviewed both versions of

the narrative statement to prepare them for expected

cross-examination. Appellant related portions of the

first narrative statement to Doctor Coburn during

interviews in preparation for the first trial. Coburn

also reviewed both versions during his testimony at

the evidentiary hearing. None of the three testified

that he relied upon either narrative statement as a

basis for his opinion

Mansfield, 33 M.J. at 1005 (Leonard, J., dissenting). As Judge

Leonard observed, but for the fact that an evidentiary hearing

was required, none of the witnesses would have been exposed

to the statement. But for the fact that the trial judge at the

retrial ruled the prosecution could use the statement on cross-

examination, none of the experts (with the exception of Doc-

tor Coburn who saw the statement at the evidentiary hearing)

would have even seen the statement. The addressing of the

statements on direct was simply a recognition that disclosure

was a fait accompli given the military judge’s ruling

CONCLUSION

Ensuring that convictions are obtained in a manner which is

fundamentally fair and reliable is the bedrock of the Due

Process Clause of the Fifth Amendment. As such, the impor-

tant issue presented in this case affects not only the interests

of the petitioner, but that of all citizens. The effective assis-

tance of counsel, as guaranteed by the Sixth Amendment, ts an

indispensable and inseparable component in satisfying these

constitutional concerns. We necessarily rely upon the accused

themselves to bring these matters to the attention of the

courts. When a court orders an evidentiary hearing to address

these issues and thereafter reverses the conviction, the court

has made a finding that society cannot feel confident that the

conviction was fundamentally fair and reliable. To permit the

government to use attorney-client communications, disclosed

for the purpose of exposing a constitutionally infirm convic-

tion, will only chill the assertion of similar claims in the future

For all the reasons stated, the petition for a writ of certiorari

should be granted

Respectfully submitted,

JAY LINDSEY COHEN

Lt Colonel, United States Air Force

Chief, Appellate Defense Division

C'ounsel of Record

FRANK J. SPINNER

Lt Colonel, United States Air Force

Chief Appellate Defense Counsel

Counsel for the Petitioner

ROBERT E. WATSON

Captain, United States Air Force

Appellate Defense Counsel

Counsel for the Petitioner

AIR FORCE LEGAL SERVICES AGENCY

172 Luke Avenue, Suite 208

Bolling AFB, DC 20332-5113

(202) 767-1562

APPENDICES

APPENDIX A pee

U.S. COURT OF MILITARY APPEALS

No. 67.973

CMR No. 24758

UNITED STATES, APPELLE!

CLYDE E.L. MANSFIELD, STAFF SERGEANT

U.S. AIR FORCE, APPELLANT’

Argued June 3, 1993

Decided Sept. 30, 1993

For Appellant: Major Marilyn A. Gordon (argued); Colonel

lerry J. Woodhouse (on brief); Lieutenant Colonel Frank J

Spinner, Major Mary C. Yastishock, Major Alice M. Kottmyer

For Appelle: Captain Jane M.E. Peterson (argued); Colo-

nel Richard L. Purdon and Lieutenant Colonel Jeffery 1.

Infelise (on brief); Lieutenant Colonel Brenda J. Hollis, Ma-

jor Jeffrey C. Lindquist, Major Morris D. Davis, Major Paul

H. Blackwell, Jr., and Captain James C. Sinwell.

Military Judges: ROBERT M. RICHARDS (trial), PHiLip F

O'NEILL (DuBay), Jimmy D. PUETT (rehearing)

Opinion of the Court

Cox. Judge

The critical facts of this appeal can be succinctly stated

Appellant made a highly incriminating statement to one of his

original trial defense counsel, though he later recanted the

incriminating portions of it. This statement, when made, clearly

fell within the protection of the attorney-client relationship

Mil.R Evid. 502. Ultimately, the incriminating version of the

statement was provided by the defense to various psychiatrists

enlisted by the defense to assist in the preparation and ad-

vancement of an insanity/partial-mental-responsibility defense

At the court-martial in question, appellant presented an insan-

ity/partial-mental-responsibility defense. The various defense

experts testified on direct examination that appellant lacked

mental responsibility Or was only partially mentally respon-

sible

Over defense objection, the military judge permitted the

prosecution to cross-examine the defense experts about the

content of the incriminating statement and its impact on thei

conclusions. The judge also permitted the prosecution, in

rebuttal, to introduce into evidence a copy of the statement

The primary questions before us, then, are whether the judge

erred in permitting the prosecution access to and use of the

incriminating statement

' These issues, as assigned by appellant, were

WHETHER THE AIR FORCE COURT OF MILITARY RE-

VIEW ERRED IN FINDING THAT APPELLANT WAS NO’

DENIED A FAIR RETRIAL AS A RESULT OF THE

GOVERNMENT'S ACCESS TO, AND PROBABLE USE OF,

ATTORNEY-CLIENT PRIVILEGES THAT WERE DIS-

So framed, the issues admit of Hornbook-style resolution

We hold that the judge did not err in permitting the cross-

examination of the defense experts or in permitting introduc-

tion of the statement

lhe critical facts emerge from the somewhat more involved

backdrop of a court-martial, a limited evidentiary hearing, and

a rehearing. Prior to the initial trial, appellant made a series of

statements, both oral and written, to his counsel. These sev-

eral statements varied widely in content as to the degree of

recollection and culpability admitted. Ultimately, according to

counsel, appellant settled upon a particular, innocuous version

of the facts. This version was provided selectively to potential

civilian expert witnesses enlisted to assist in the preparation of

a mental responsibility defense. Appellant was thereafter tried

(September 4-November 27, 1984) by a general court-martial

on a charge of premeditated murder. Art. 118(1), Uniform

Code of Military Justice, 10 USC § 818(1). While this court-

martial was in progress, defense counsel discovered that ap-

pellant had made a seriously incriminating admission to one of

CLOSED IN AN EARLIER DUBAY HEARING ON

APPELLANT’S SUCCESSFUL CLAIM OF INEFFECTIVE

ASSISTANCE OF COUNSEL

WHETHER THE MILITARY JUDGE ERRED, TO THE SUB-

STANTIAL PREJUDICE OF APPELLANT, WHEN HE AD-

MITTED PROS. EX. 65

In addition, we granted review of two separate issues wherein appel-

lant challenged the authority of the military judge and the Court of

Military Review under the Appointments Clause. U.S. Const., art. I], § 2,

para. 2, cl. 2. We resolve both of those issues adversely to appellant in

accordance with our opinion in United States v. Weiss, 36 MJ 224 (CMA

1992), cert. granted, 113 S.Ct. 2412 (1993)

the defense psychiatrists. Realizing that the prosecution would

readily discover this admission through cross-examination,

detense counsel elected not to call the witness or to present

the mental responsiblity defenses to prevent disclosure of the

admission. (24 MJ at 615-16) In default, the court-martial was

contested on a theory of failure of proof, and appellant was

convicted as charged

On appeal before the Court of Military Review, appellant

attacked his trial defense team. He theorized that counsel must

have been incompetent in bungling and failing to present his

lack of mental responsibility defenses. In starkly inconsistent

alternative, however, appellant also suggested that counsel

may have been attempting to perpetrate a fraud upon the

court-martial. In appellant’s hypothesis, the fraud would have

arisen from counsel’s preparation and dissemination of the

sanitized version of the statement, which counsel knew to be

false and misleading, to potential defense witnesses. In at-

tempting to manipulate the experts, and thus to “create” a

defense where none existed, counsel’s actions allegedly preju-

diced appellant when it appeared the true facts would come

out, collapsing the fraudulent defense in mid-trial. (Supple-

mental Brief on Behalf of Appellant, Feb. 7, 1986)

In the face of these serious allegations before the Court of

Military Review, the Government joined appellant in petition-

ing that court to order a limited hearing into the conduct of

Certainly appellant's urine was “fungibic” at that point. There was

nothing distinctive about her urine that would differentiate it from other

urine or that would differentiate it from her urine which might be

tampered with im some way. Further, there was nothing distinctive about

iis “packaging” that would make it anything other than fungible, since

the containers were typical of those provided by the Government for

urinalysis inspections. Cf United States v. Courts, 9 MJ 285 (CMA

1980). U/nited States v. Fowler, 9 MJ 149 (CMA 1980). United States v

Vault, 4 MJ 318 (CMA 1978)

counsel and the preparation of the mental responsibility de-

fenses. See United States v. DuBay, 17 USCMA 147,37 CMR

411 (1967). The court obliged the parties. (Unpublished order

dated March 5, 1986)

The military judge conducting the limited hearing com-

pelled the new defense team, over their objection, to produce

both the incriminating and the innocuous versions of appellant’s

statement. Both were received as hearing exhibits. The hear-

ing (May 6-8, 1986) featured an intense grilling of all members

of the original defense team regarding their preparation of the

mental responsibility issues. Particular emphasis was placed

on the circumstances surrounding the origin of the incriminat-

ing statement and its sanitized counterpart. In addition, both

the of the psychiatrists slated to testify for the defense at the

original trial testified. Both indicated that, from a psychiatric

point of view, appellant’s incriminating revelation did not

significantly alter their conclusions regarding his mental state

at the time of the killing. At the conclusion of the hearing, the

military judge entered extensive findings, including the finding

that “‘the potential defenses of insanity and of partial mental

responsibility were not ‘created’ defenses ” (Findings at

15)

On return to the Court of Military Review, appellant omit-

ted the fraud allegation. He relied exclusively on the claim of

incompetence through failing to prepare and present the men-

tal responsibility defenses. The Court of Military Appeals

agreed that the original trial defense team’s preparation on the

issue Of mental responsibility was inadequate. Accordingly,

that court set aside the findings of guilty and the sentence,

authorizing a rehearing. 24 MJ 611, 617-18 (1987).

The rehearing (June 29-December 9, 1987) was duly con-

vened by a different convening authority. None of the original

defense team represented appellant at the rehearing. At the

rehearing, appellant formally asserted defenses of lack of

mental responsibility and partial mental responsibility. In sup

port of these defenses, a number of experts were presented as

defense witnesses. As previously indicated, each had been

provided by the defense with the incriminating version of

appellant’s pretrial statement. Each witness acknowledged

taking appellant’s statement into consideration in articulating

his opinion at trial. As indicated, the Government was permit-

ted, over defense objection, to cross-examine these witnesses

about the statement’ and to introduce a copy of the statement

into evidence. Appellant was again convicted of premeditated

murder and was sentenced to a dishonorable discharge, con

tinement for lite, reduction, and forfeitures. The convening

iuthority approved the sentence, and the Court of Military

Review aflirmed 33 M 2 (1991)

Betore us, appellant again focuses on the turbulence gener

ited by the initial trial defense team. He argues that thei

inadequacies compelled him to attack them in order to demon

trate the unfairness of his trial. To that end, he argues, it was

necessary to bring into the light of day his highly incriminating

statement, this statement which otherwise would have re

mained enshrouded by the attorney-client privilege. Thus

ippellant contends, he was unfairly penalized in his subse

quent rehearing by the prosecution's cross-examination of his

vilnesses and by the receipt in evidence of the statement

lo put this in context, in order to present his mental respon

sibility defenses at the second trial, appellant found it neces

sary to call expert witnesses, armed with his incriminating

‘

statement. to testify about his mental condition at the time ¢

the killing. In providing his witnesses with the statement tn this

Indeed, as to cach defense expert, it appears that it was the defens:

on direct cxamination that first adverted to the incriminating statement

manner, appellant waived his privilege with respect to it. But

for this fact, we agree there would have made a dynamite

issue.’ As the case stands, however, its resolution becomes a

paradigm of simplicity

There is no physician-patient or psychotherapist-patient

privilege in federal law, including military law. Under certain

circumstances, here presumptively present, a physician, psy-

chotherapist, etc., who assists the defense in the preparation of

a defense may fall within the scope of the attorney-client

privilege. Statements or information provided to such experts

are privileged to the extent of the protection of the attorney-

chent privilege. (/nited States v. Tharpe, MJ (CMA

1993). United States v. loledo, 25 MJ 270, 275-76 (CMA

1987). However, when such experis are called as a witness on

behalf of an accused and the witness has relied upon state-

ments of the accused in formulating an opinion,* the attorney-

[he scenario could potentially arise anytime an accused makes an

incriminating statement, falling within the attorney-clicnt privilege, to

yunsel. If the accused subsequently accuses counsel of uncthical conduct

or incompetence in connection with that statement, such that the state-

ment must be revealed to cnable a court to deiermine whether uncthical

conduct or prejudice has occurred, has the accused waived the attorncy-

client privilege with respect to that statement, and if so to what extent?

Does it maticr if the alleged uncthical conduct or incompetence has not

occurred? We defer resolving these matters until such time as they are in

issuc before us

‘In this case, the majority of the Court of Military Review squarcly

found that it was “clear that defense experts used the statement in

reaching a diagnosis MJ at 972. The record of trial strongly

supports this conclusion, and we accept the Court of Military Review's

finding. Art. 67(c), UCMJ, 10 USC § 867(c) (1989). Thus. technically, it

iS not necessary on this record for us to reach a broad conclusion

regarding the admussibility of any and all statements made by an accused

to a physician/psychotherapist tendered by the defense, regardicss of

whether the statements were “used” by the expert in arriving at conclu-

sions. But cf Nogele v. Marshall, 706 F.2d 1408 (6th Cir. 1983). cert

client privilege terminates with respect to those matters placed

in issue by the expert’s testimony. United States v. Toledo,

supra; United States v. Frederick, 3 MJ 230, 233-34 (CMA

1977); see generally McCormick on Evidence 384 (4th ed

1992); cf Mil.R.Evid. 302(c), Manual for Courts-Martial,

United States, 1984. Further, any expert who offers a testimo-

nial opinion is subject, at the request of a party opponent, “to

disclose the underlying facts or data on cross-examination.”’

Mil.R.Evid. 705. Thus the rehearing military judge did not err

in permitting the cross-examination of the defense experts

With respect to the prosecution’s direct introduction of the

incriminating statement, it was an admission by a party-oppo-

nent, Mil.R.Evid. 801(d)(2), and was admissible. Its relevance

and authenticity were established beyond cavil. These two

assignments of error are without merit

The remaining granted issue asks whether the military judge

correctly instructed the court members regarding the defense

of partial mental responsibility; we resolve the issue as did the

Court of Military Review. 33 MJ at 990. The Uniform Code of

Military Justice has never identified a defense of “partial

mental responsibility.’”” However, the Manual for Courts-Mar-

tial in effect for appellant’s initial trial (Manual for Courts-

Martial, United States, 1969 (Revised edition) (as amended

through Change 7, effective September 23, 1982), described a

limited defense of “partial mental responsibility,” as being: “A

mental condition ... which produces a lack of mental ability

to possess actual knowledge or to entertain a specific

denied, 464 U.S. 1010 (1983); State v. Tensley, 249 N.W.2d 659 (lowa

1977), Townsend v. State, 420 So.2d 615 (Fla. App. 1982), pet. denied,

430 So.2d 452 (Fla. 1983), Annotation, Privilege, in Judicial or Quasi-

Judicial Proceedings, Arising From Relationship Between Psychiatrist

or Psychologist and Patient, 44 A.L.R.3d 24 (1972)

intent or a premeditated design to kill ” Para. 120c.°

Without defense objection, the military judge rendered an

instruction at the rehearing on the defense of partial mental

responsibility in general accordance with the standard instruc-

tions set forth in paragraph 6-5, Military Judges’ Benchbook

at 6-4 (Dept. of the Army Pamphlet 27-9 (1985)). Appellant

now complains that the instruction was deficient in that the

judge omitted a phrase indicating that appellant need not be

insane in order to qualify for the defense of partial mental

responsibility. Final Brief at 90. Like the Court of Military

Review, we have carefully read the entirety of the military

judge’s instructions. There is no intimation in the instructions

that appellant needed to be “insane” in order to qualify for

partial mental responsibility. Indeed, we can detect no linkage

whatever in the instructions between the limited defense of

partial mental responsibility and the complete defense of “‘in-

sanity’ (lack of mental responsibility). We do not doubt that

the clarification now urged by appellant would have been

appropriate. However, we do not believe it was a sine gua non

or that the instructions given were incomplete or confusing

We hold that the objection now advanced was waived, and no

plain error occurred. U/nited States v. Fisher, 21. MJ 327

(CMA 1986)

The decision of the United States Air Force Court of Mili-

tary Review is affirmed

Chief Judge SULLIVAN and Judges CRAWFORD, GIERKE, and

WISS concur

* The Manual for Courts-Martial, United States, 1984, deletes refer-

ence to a defense of partial mental responsibility. But see United States

v. Berri, 33 MJ 337(CMA 1991), Ellis v. Jacob, 26 MJ 90 (CMA 1988)

10a

APPENDIX B

U.S. AIR FORCE COURT OF MILITARY REVIEW

ACM 24758 (f rev)

UNITED STATES

STAFF SERGEANT CLYDE EDWARD LYMAN MANSFIEFI

FR 048-44-1263 UNITED STATES AIR FORCI

Sentence adjudged 27 Nov. 1984

24 April 1987

Approved Sentence: Dishonorable discharge, confinement

for length of natural life, forfeiture of al! pay and allowances

and reduction to airman basic

Appellate Counsel for the Appellant: Luther C. West, Bal

timore, Maryland, Colonel Leo L. Sergi and Major Timothy J

Malloy

Appellate Counsel for the United States: Colonel Joe R

l.amport, Lieutenant Colonel Robert E. Giovagnoni, Major

David F. Barton and Captain Mare Van Nuys

Before HopGson, Foray and Murpock, Appellate Military

Judges

DECISION

Hopcson, Chief Judge

rhe appellant was convicted of the premeditated murder of

his paramour’s former husband. He was sentenced to life im-

prisonment together with ancillary punishments

lla

The paramount issue before us goes to the heart of our

adversarial process—the right to the effective assistance of

counsel in presenting a defense. In this regard the appellant

claims that his trial attorneys failed to investigate, prepare and

present properly either an insanity or diminished capacity de-

fense. We agree

In the initial appellate pleadings this issue centered on the

question of whether trial defense counsel committed the appel-

lant to an insanity defense without weighing the consequences

of such a defense, i.e., disclosure of damaging inculpatory

statements by the appellant to his expert witness, and thereafter

abandoning the defense midway through the trial because of the

trial judge’s order compelling production of these statements

See United States v. Parker, 15 M.J. 146 (C.M.A. 1983). The

defense, by its questioning of members during voir dire, cross-

examination of prosecution witnesses, and pretrial declarations

to the prosecution, made it clear that the appellant’s mental

condition was the core issue in the trial

his claim of ineffective assistance of counsel is based on the

representation made by the appellant's trial lawyers to the mili-

tary judge that Doctor Michael B. Coburn would not be called

as a witness because of the judge’s order directing production

of a statement made by the appellant at the direction of his

counsel which was given to Doctor Coburn. Doctor Coburn

was a defense psychiatrist who had travelled from the United

States to Korea and was waiting outside the courtroom while

this discussion took place. At trial, counsel asserted that the

judge’s ruling “‘[A]ffected the entire strategy of the defense’’

and their post-trial affidavits contends that ‘‘[T]he defense was

precluded from presenting to the trier-of-fact expert opinion

regarding the issue of the accused's mental responsibility, an

affirmative defense. ”’

On 3 January 1986, appellate government counsel responded

to this issue with a reply brief and supporting affidavits from the

defense counsel involved. Subsequently, the appellant moved to

file a supplemental brief contending that the post-trial state-

ments of trial defense counsel expanded the issue of ineffective

asssitance of counsel by raising additional questions of: (1)

Whether defense counsel acted improperly and contrary to their

obligation to the appellant and the court by instructing him to

withhold material information from Doctor Coburn, a defense

psychiatrist, and (2) Whether this conduct so prejudiced the

appellant that he was denied effective assistance of counsel and

therefore a fair trial

On 11 February, government and appellate defense counsel

jointly and severally asked for a limited evidentiary hearing

because the trial transcript, pleadings and supporting affidavits

suggested there were substantial and unresolved questions in-

volving the appellant’s lack of mental responsibility and claim of

ineffective assistance of counsel. We ordered such a hearing and

it was held on 6-8 May 1986. United States v. DuBay, 17

U.S.C.M.A. 147, 37 C.M.R. 411 (1967). The trial judge who

conducted the hearing prepared and submitted extensive find-

ings of fact which have made our task measurably easier.

The trial and evidentiary hearing transcripts disclose that the

appellant was apprehended at Edwards Air Force Base, Califor-

nia on 5 April 1984, for the murder of Yang Chae-Song, near

Osan Air Base, Korea, on 4 February 1984. It was at Edwards,

during a pretrial confinement hearing, that the appellant entered

into an attorney-client relationship with Captain P, the Area

Defense Counsel. Captain P became one of four military law-

yers who assisted in the appellant’s defense. The other three

were the Chief Circuit Defense Counsel for the 7th Circuit,

Lieutenant Colonel N, Circuit Defense Counsel, Major P, and

the Area Defense Counsel at Osan Air Base, Major, then Cap-

tain, H. It was during the confinement hearing that Captain P

l3a

became aware of the appellant’s ‘‘bizarre behavior’ and ‘‘ob-

session’’ with Un-Cha Haney who was the Korean wife of an

Air Force member, the former wife of the deceased, and the

appellant’s lover. Captain P did not, however, pass this informa-

tion, or his assessment of it to his co-counsel

After the appellant was returned to Korea on 20 April, he was

sent to Yokota Air Base, Japan for a sanity board hearing. He

refused to participate in the proceeding on advice of counsel as

his attorneys did not yet know enough about the case. Later. in

June, Lieutenant Colonel N and Major H requested a sanity

board citing the appellant’s ‘‘preoccupations and obsessions, ’’

his behavior described by numerous individuals as ‘‘crazy and

bizarre,’’ and his referral to the Mental Health Clinic at Edwards

by his unit commander in early January 1984. On 21, 22 and 25

June, he met a one member sanity board consisting of Lieuten-

ant Colonel (Doctor) Robert L. Vosburg. Doctor Vosburg was

of the opinion that the appellant had a mental disorder described

as a post traumatic neurosis, chronic. See American Psychiatric

Institute, Diagnostic and Statistical Manual for Mental Disor-

ders (DSM), 3d Ed. 1980. page 326. In Doctor Vosburg’s view

the appellant had a diminished capacity to appreciate the crimi-

nality of the alleged offense and lacked the capacity to conform

his conduct to the law as a result of the mental disorder. The

appellant's attorneys were both ‘‘somewhat surprised’’ and

““elated’’ with the outcome of the sanity board, and it was at this

time the defense team first considered insanity to be a viable

defense. However, Major H was concerned that Doctor Vosburg

lacked experience and might not be a ‘‘strong witness.’’ Despite

this doubt, he did not discuss the insanity defense with Doctor

Vosburg because Major P was responsible for preparing this

aspect of the trial

The “team concept’’ employed by the appellant’s attorneys

is troublesome because no lawyer served as ‘‘lead counsel’’

Therefore no one was totally familiar with the overall posture of

l4a

the case and no one could be the final arbiter on tactics and

strategy. It is also apparent that after it was decided to focus the

defense efforts on the sanity issue, Lieutenant Colonel N be-

came less active in the ongoing trial preparations, although both

Majors P and H regularly consulted him by phone.

At this point the appellant’s counsel felt they needed addi-

tional expert testimony to bolster Doctor Vosburg’s opinion

Knowing that the appellant would be returned to Edwards for a

portion of the pretrial investigation, they arranged for Captain P

to locate civilian psychiatrists in the local area. Captain P set up

appointments with Doctors Michael B. Coburn, John Beck, and

William T. Vicary. Although Captain P and the appellant still

had an attorney-client relationship, he never discussed the re-

sults of these evaluations with the examining psychiatrists or

with the other defense counsel. It is evident that Captain P’s

involvement with the case substantially diminished after Majors

P and H were appointed and that he did not regard himself as an

active member of the defense team There is also a suggestion

that the appellant was dissatisfied with Majors P and H, and

wanted Captain P to represent him. Captain P did not encourage

the appellant in this regard, and explained the advantages of

having lawyers who were near the trial location

Later, Captain P did have some contact with Doctor Coburn

over the logistics of the latter’s trip to Korea as an expert

witness. He did not, however, discuss with Doctor Coburn his

opinions as to the appellant’s mental state

Subsequent to the psychiatric evaluations, Captain P realized

that Doctor Vicary could support a defense of partial mental

responsibility, but made no attempt to discuss his conclusions

with the psychiatrist or to pass this information to his co-

counsel

On 16 August, Doctor Beck sent Captain P a written evalua-

tion of his examination of the appellant. Doctor Beck concluded

that at the time of the alleged offense the appellant had a mental

lSa

defect, i.e., a Mixed Personality Disorder and as a result of such

mental defect he lacked capacity to conform his conduct to the

requirements of law. At the time of the evidentiary hearing,

Captain P did not recall the letter’s contents and surmised he

had forwarded it to Majors P and H who received it before trial

Neither Major P nor Major H considered Doctor Beck’s diag-

nosis to support an insanity defense. But see United v. Benedict,

20 M.J. 939 (A.F.C._M R. 1985) holding that the term ‘‘mental

defect’’ includes any abnormal condition of the mind. regardless

of its medical label, that substantially affects mental or emo-

tional processes and substantially impairs behavior controls

Finally, in September, Doctor Coburn called Captain P to

advise him that he had changed his initial opinion and he could

now support an insanity defense. Doctor Coburn sent Captain P

a written evaluation, and the latter forwarded it to co-counsel in

Korea

Both Majors P and H were present during the pretrial investi-

gation held at Edwards on 26 July. Major H did not contact the

three civilian psychiatrists while he was in California because he

regarded Major P to be the ‘‘defense team member’’ respon-

sible for the insanity defense

Likewise, Major P, the attorney responsible for presenting

the insanity defense, did not interview the civilian psychiatrists

while he was at Edwards. Apparently, he was led to believe that

all three doctors found that the appellant had a personality

disorder and that their expert testimony would not support an

insanity defense. It was also his understanding that an insanity

defense could not be based on a personality disorder. As stated

earlier this position is not supported by case law. See United v.

Benedict, supra; United States v. Krauss. 20 MJ. 74]

(N.M.C.M.R. 1985): United States v. Haywood, 18 MJ. 562

(A.C.M_R. 1985)

During the pretrial investigation both attorneys learned of

approximately 37 lay witnesses who felt the appellant was

l6a

‘strange’ or “‘crazy.”’ In a 29 October 1984 letter, they asked

government counsel to provide the names and addresses of

these witnesses. Other than this request, there is no indication

that this lay witness evidence was explored, evaluated or mar-

shalled to contribute to an insanity defense in any meaningful

way.

After Doctor Coburn concluded he could support an insanity

defense, Major P contacted him by telephone from Japan. He

did not, however, discuss Coburn’s testimony with him until the

latter’s arrival in Korea. It was at this time that Major P first

provided Doctor Coburn with the definition of insanity that

would be applied in a military court-martial. See Air Force

Regulation 160-42, Psychiatry in Military Law, 25 September

1981. Major P was aware of Doctor Beck’s evaluation, but

never discussed it with him because of Major P’s assumption

that it would not support an insanity defense. Likewise, he never

discussed Doctor Vicary’s opinion with Vicary although it could

have supported the potential defense of partial mental responsi-

bility. Neither Major P nor his co-counsel ever pursued this

potential defense notwithstanding the opinions of every defense

psychiatrist who examined the appellant that he had an emo-

tional disorder

The law ts clear that a mental condition not amounting to a

general lack of mental responsibility but which produces at the

time of the offense a lack of mental ability to enter a premedi-

tated design to kill is a defense to an offense having this state of

mind as an element. R.C.M. 916(k)(2); see also United States v

ikrb, 30 C.M.R. 938 (A.F.B.R. 1960), aff'd 12 U.S.C.M.A

524, 31 C.M.R. 110 (1961)

In early September 1984, the trial judge ordered the appellant

to submit to a second sanity board to be convened at Travis Air

Force Base, California. This board, consisting of three psychia-

trists, opined that the appellant did not have a mental disease or

defect. No effort was made by either Major P or Major H to

17a

have Captain P, who was stationed in California, interview the

members of the second sanity board; nor did Major P interview

the board president until after his arrival in Korea as a govern-

ment witness just before the beginning of or early in the trial

After Major H met the appellant in late April 1984, he

obtained from him an oral version of the circumstances sur-

rounding the commission of the offense which he later reduced

to writing. This statement suggested a high degree of culpability

on the appellant’s part. Because Major H concluded that the

appellant was not completely forthcoming with the facts, he

edited the first written statement into a second written state-

ment. Since the appellant later recanted much of the inculpatory

information in the first statement, indicating that some of the

story was false, embellished, or dreamed, Major H edited the

first statement to include only information that was to some

degree, verifiable. The appellant’s first version indicated he had

hired a ‘‘hit man,’’ a Korean national, to kill the victim. The

second written statement became the factual scenario the appel

lant was instructed by his lawyers to give during psychiatric

interviews. This version omitted information relating to the

possible procurement of a ‘“‘hit man,”’ purchase of a knife

shortly before the homicide and the manner of its use at the

scene

Both Doctor Vosburg and Doctor Coburn eventually learned

of the ‘‘hit man’’ aspect of the appellant's story and both

indicated it did not substantially effect their diagnoses of his

mental condition

When Doctor Vosburg arrived in Korea he was interviewed

it length by the appellant's co-counsel Although Vosburg ba

cally agreed with Coburn as to the appellant's mental state, both

counsel still considered him a weak witness because he was

nervous’ about testifying since he was not a forensic psychia

trist

Doctor Coburn arrived in Korea approximately the same day

the prosecution rested its case-in-chief He was prepared t

18a

testify that at the time of the offense the appellant was ‘‘sub-

stantially lacking the capacity to have conformed his conduct

to the requirements of law [that] substantially diminish[{ed] his

capacity to have appreciated the criminality of his conduct

’* He would further state that the appellant ‘‘was acting in a

significantly and substantially impaired state at the time of the

offense, substantially lacking in capacities requires continuing

treatment because suicidal potential.’ (Emphasis added)

rhe decision to abandon the insanity defense was made after

Doctor Coburn’s arrival in Korea and the discovery of the ‘‘hit

man’’ information in his notes. Appellant’s counsel believed

disclosure of this information would have had a devastating

impact and would have created a substantial risk of their client’s

conviction of premeditated murder. Additionally, they were

convinced that the value of Coburn’s testimony was lessened as

counsel were not prepared to deal with the ‘‘hit man’’ factor of

his testimony. Of course, the reason Doctor Coburn was not

aware of this information earlier was that the defense team had

withheld it. In the evidentiary hearing, Doctor Coburn stated

that the “‘hit man’’ disclosure had not changed his opinion

regarding the appellant’s lack of mental responsibility and could

have been accommodated in his explanation of psychodynamics

of the events leading up to the homicide

Appellant’s counsel stated during the evidentiary hearing that

they were aware from the outset that if they presented expert

testimony of a psychiatrist as to the appellant’s mental condi-

tion, they would be required to produce materials and state-

ments by the appellant, which had been used by their witness for

use during cross-examination. See United States v. Parker,

supra. They contended that their claim in the Goode response

that the trial judge’s ruling was erroneous and caused the

collapse of the insanity defense was merely a pro forma asser-

tion of error without any belief in its validity. (/nited States v

(,oode, 1 MJ. 3 (C.M.A. 1975)

19a

Appellant’s counsel maintained they had proceeded from the

beginning with a two-pronged strategy: first, to put the pros-

ecution to its to establish beyond a reasonable doubt that the

appellant had killed the victim; and, second, to demonstrate the

appellant's lack of mental responsibility for commission of the

offense. For reasons discussed earlier, the decision was made

not to present any evidence, including evidence touching on the

appellant's lack of mental responsibility. The Chief Circuit De-

lense Counsel, Lieutenant Colonel N, discussed the situation

with co-counsel, and even though he thought there was an

overwhelming danger’ in abandoning the insanity defense at

that point in the trial, he chose no to ‘‘override’’ their decision

When trial defense counsel consulted Captain P, he told them he

thought the decision a ‘‘dangerous’’ course of action

The Sixth Amendment and the Uniform Code of Military

Justice guarantee a criminal defendant reasonably effective as-

sistance of counsel. Article 27(a), UC MJ._10USC § 827(a)

(uyler v. Sullivan, 446 U.S. 335. 344. 100 S Ct. 1708 1716,

64 L.Ed.2d 333 (1980): U/nited States v Jefferson, 13 MJ. |

(CMA. 1982). But this right does not mean that appellate

courts should vacate a conviction on a claim of ineffective

counsel in the absence of a display of a serious lack of skills that

are regularly found in the performance of fallible lawyers. United

Slates v. Dit ‘upe, 21MJ.440(CMA 1986). see also United

Mates v. DeCoster, 624 F.2d 196 (DC Cir 1979). Because

claims of inadequate representation are oft-times made by disaf-

lected cliehts seeking to assign the blame for their predicament

to their lawyers rather than themselves, the law presumes that

counsel ts effective, and places upon an appellant the burden of

establishing ineffectiveness. Commonwealth y. Molina, 358

Pa Super. 28, 516 A.2d 752 (1986)

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052.

80 L.Ed 2d 674 (1984), the Supreme Court set out a two part

he a

test to determine whether a conviction should be set aside on

the ground that the trial defense counsel was ineffective: (1) the

appellant must show that counsel’s performance was deficient

and (2) that the deficient performance prejudiced the defense

lo satisfy the first prong of the test, the appellant must show

that counsel’s actions fell beneath an objective standard of

reasonable professional assistance. The second prong ts satis-

fied by showing that there is a reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceeding

would have been different. A reasonable probability is a prob

ability sufficient to undermine confidence in the outcome of the

trial. An insufficient showing of prejudice leads to a rejection of

the claim without inquiry into the adequacy of counsel's perfor

mance. Of course, the mere fact that conviction has resulted

does not meet the criteria of prejudice. See Bates v. Blackburn

805 F.2d 569 (Sth Cir. 1986)

lhe standards of what constitutes ineffective assistance

counsel utilized by most of the federal courts have been adopted

by the military appellate courts. United States v. Jefferson

supra. In Uuted States v. Rivas, 3 MJ. 282, 288 (CMA

1977), the Court of Military Appeals stated

We believe that to exercise the skill and knowledge

which normally prevails within the range of compe

tence demanded of attorneys in criminal cases re

quires that the attorney act as a diligent and conscien-

tious advocate on behalf of his client

Disagreements as to the strategic or tactical decisions made

at the trial level by defense counsel will not support a claim of

inefiective assistance of counsel so long as the challenged con

duct has some reasoned basis. Appellate courts will not review

the wisdom of a defense counsel’s tactic unless it lacks a

plausible basis. United States v. Rivas, supra, United States \

Rogan, 19M_.J.646(A.F.C.M._R. 1984), see also State v. Stone,

2la

Sl Ariz. 455, 728 P. 2d 674 (1986), Bass v. State, 713 S.\W.2d

782 (Tex. App. 1986). Any claim of inadequate representation is

to be determined by the facts of that particular trial and the

existing circumstances under which counsel’s decisions were

made See generally Makenson v. State, 719 SW2d 112

(Mo App. 1986)

[he basic claim of error made by appellant's appellate coun-

is that the defense lawyers in the trial below failed to

nvestigate, prepare and present evidence which would properly

ipport the defense of insanity or diminished capacity so as to

‘duce the degree of guilt

[he right to reasonably competent counsel includes a correla-

duty on defense counsel to undertake reasonable steps to

estigate all open avenues of defense Wood v. Zahradnick

‘8 F 2d 980 (4th Cir. 1978). We think a reasonable level of

mpetence to be demanded of attorneys in criminal cases is to

vestigate facts known to, or with diligence accessible to them.

which would raise a reasonable doubt as their client’s mental

ondition. Oshorne v. Commonwealth. 378 Mass 104. 389

N_E 2d 981 (1979)

We have no doubt that defense counsel in the trial before us

honestly and sincerely attempted to insure that the appellant was

provided every possible defense. Much of what they did during

the trial and before demonstrates diligent and conscientious

endeavors on their part to represent their client properly. Unfor

tunately, their collective efforts with regard to the defense of

insanity did not rise to the level of representation than the law

requires

From the outset it appears that no one counsel was given

overall responsibility of orchestrating the defense efforts. Re-

sponsibility was divided so that everyone was in charge and yet

no one was in charge. For example, the Chief Circuit Defense

Counsel thought the decision to abandon the insanity defense

was ‘‘overwhelmingly dangerous’’ at that point in the proceed-

alliance eels

22a

ings, yet did not use his position as the professional supervisor

of defense counsel to intercede. See Air Force Manual 111-1,

Military Justice Guide, | August 1984, para. 13-3e. Although,

Captain P was the first counsel to enter into an attorney-client

relationship with the appellant, he did not consider himself part

of the ‘‘defense team’’ and limited his participation to providing

logistical support for appointments with the psychiatrists. After

Majors P and H arrived at Edwards for the pretrial investiga-

tion, neither they nor Captain P ever spoke with the three

civilian psychiatrists as to the results of their interviews with the

appellant. It was through casual conversations with legal office

personnel that Major P ‘‘heard’’ that all three doctors con-

cluded that the appellant had a personality disorder. Addition-

ally, both Majors P and H appeared to be unaware that a

personality disorder can be the basis of an insanity defense or

can be used to lessen the degree of culpability of the offense

charged, ie., premeditated to unpremeditated murder. See

R.C.M. 916(k)(2); United States v. Benedict, supra; United

States v. Krauss, supra; United States v. Heywood, supra.

Further, none of the attorneys interviewed or evaluated the

numerous lay witnesses who thought the appellate was ‘‘strange’’

or “‘crazy.’’ In this regard Captain P was stationed at the same

base as these witnesses.

Although defense counsel asserted during the evidentiary

hearing that the insanity defense was but one defense theory, the

other being to put the government to its proof on the evidence

proper, the thrust of voir dire, challenges, preliminary instruc-

tions by the trial judge, and questioning of prosecution wit-

nesses clearly made insanity the core of the appellant’s defense

In this context, to uphold the decision to abandon this defense

after the prosecution rested would require an explanation that is

reasoned and plausible. Such an interpretation is not possible in

this case

Doctor Coburn, a forensic psychiatrist with impressive cre-

dentials, appears to be the key to the appellant’s insanity de-

23a

fense. He had examined over 800 defendants in homicide cases

as well as thousands of other offenders. He was prepared to

testify that the appellant was legally insane. The basis for fore-

going Coburn’s testimony was the knowledge that the prosecu-

tion knew about the ‘‘hit man’’ aspect of the appellant’s pre-

pared statement, and this disclosure was ‘‘devastating’’ to both

the defense theories, i.e., reasonable doubt and insanity. During

oral argument appellate government counsel suggested that the

available prosecution rebuttal evidence as to the appellant's

mental state was so compelling that the failure of appellant’s

counsel to offer evidence on this issue was not prejudicial. We

reject this premise. If there is one area where expert witnesses

are almost always diametrically opposed, it is the field of psy-

chiatry. See United States v. Neely, 21 MJ. 606 (AF. CMR

1986), United States v. Benedict, supra. Doctor Coburn stated

at the evidentiary hearing that the introduction of the ‘‘hit man’’

theoy did not alter his diagnosis

We wish to make clear that we are not holding that a defense

counsel must always offer evidence in his client’s behalf We

know full well that many times the hes? trial tactic is to put the

prosecution to its proof. Likewise, we also know that defense

theories can and must be changed during a trial to fit changing

conditions, and where there is a reasoned plausible basis for the

decisions and tactics of counsel, we will not upset a conviction

on a claim of inadequate representation

However, the trial and evidentiary hearing transcripts in the

case at hand force us to conclude there was a fatal breakdown in

the adversarial process that our system counts on to produce

just results. kwing v. Williams, 596 F.2d 391 (9th Cir 1979)

Accordingly, this conviction cannot stand. In our decretal para-

graph we will fashion a remedy

The appellant asks that the charges be dismissed since a total

of 210 calendar days had elapsed from the day he was placed in

24a

pretrial confinement to date of trial. R.C.M. 707. In denying the

motion to dismiss, the trial judge found that only 85 days of the

total was accountable to the government. R.C.M. 707(c). We

have examined the judge’s findings of fact, the appropriate case

law and the transcript. We find no basis to overturn his ruling

denying the motion to dismiss

rhe findings of guilty and the sentence are set aside. A

rehearing may be ordered

Senior Judge Foray and Judge Murpock concur

25a

APPENDIX C

US. AIR FORCE COURT OF MILITARY REVIEW

ACM 24758 (reh.)

UNITED STATES

STAFF SERGEANT CLYDE E.L. MANSFIFI 1.

FR 048-44-1263 UNITED Starrs AIR Forc}

sentence adjudged 9 Dec. 1987

Mecided 21 Nov. 199]

Appellate Counsel for the Appellant: Major Paul M

Dankovich (argued), Colonel Richard F. O’Hair. and Colonel

Jeffrey R. Owens

Appellate Counsel for the United States: Lieutenant Colonel

Brenda J. Hollis (argued), Colonel Joe R Lamport, Colonel

Robert E. Giovagnoni, Major Paul H. Blackwell. Jr. Major

Morris D. Davis, Major Terry M. Petrie, and Captain James C

Sinwell

Before Murpock, HopGson and LEonarp. Appellate Military

Judges

OPINION OF THE COURT UPON REHEARING

I {¢ IDGSON, Chief Judge

On 4 February 1984, the body of Yang Chae-Song was

discovered in an alley near the train station in Song-Tan, Korea

Yang had been fatally stabbed in the back. The city of Song-Tan

borders the west side of Osan Air Base. a major American

26a

military installation. The appellant, Staff Sergeant Clyde

Mansfield, was convicted of Yang’s premeditated murder in

November 1984 and sentenced to life imprisonment and acces-

sory punishments. On appellant’s initial appeal we concluded he

had been denied effective assistance of counsel, set aside the

findings of guilty and the sentence, and authorized a rehearing.

United States v. Mansfield, 24M.J. 611 (A.F.C.M.R. 1987). At

the second trial in December 1987, the appellant was again

convicted of premeditated murder and sentenced to life impris-

onment in addition to lesser penalties

In March 1991 both sides completed their pleadings, and the

28 assigned errors ripened for consideration and resolution. We

find no prejudicial error and affirm

FACTS

During the summer of 1983, Mansfield was assigned to

Hawes Air Force Station, California, as an electrical power

plant technician. While he was not well-liked at the site, as he

did not make friends easily, he was considered to be a compe-

tent non-commissioned officer. He was described by co-work-

ers and associates as a ‘‘perfectionist’’ who was ‘“‘meticulous

and careful in his approach to problems.’’ Once he decided on a

course of action, it was difficult to dissuade him from following

through.

The testimony at trial also established that the appellant was

attracted to oriental women, and he actively sought their

compansionship. His first wife was Japanese, but the couple

divorced after 10 years. He retained custody of their son.

Technical Sergeant Russell Haney worked with the appellant

at Hawes AFS. He was married to a Korea, Un-Cha. Previously,

Un-Cha had been married to the murder victim, Yang Chae-

Song, but she divorced him arid married Haney in 1982. Un-Cha

and Yang had two children, Sabina and Michael, who came to

the United States with Un-Cha

27a

Sometime in the late winter or early spring of 1983, the

appellant asked Un-Cha to baby-sit his son. She agreed. This

acquaintance later developed into a close relationship. The

affair was an open secret at Hawes with the appellant speaking

candidly of his love for Un-Cha. Haney became aware of the

situation but was assured by Un-Cha that her relationship with

Mansfield was not serious

Myong-Cha Stein is Korean and during June 1983 lived with

her husband, Technical Sergeant Richard Stein and their two

daughters, Sandra and U-Sok, in an apartment near the train

station in Song-Tan. Their landlord, Yang Chae-Song, had

Myong-Cha call Un-Cha Haney and tell her that he, Yang, was

seriously ill and would like to see his children before he died

This was not true. It was merely a scheme designed to allow

Yang to get the children back in his custody. It was successful

Once the children were in Korea, Yang refused to let them

return to the United States. Haney and Un-Cha went to Korea

to locate them, but could not. Haney returned to the United

States, but Un-Cha remained in Korea to continue the search

Although she returned to the United States much earlier.

Haney did not see Un-Cha again until September. There is an

indication that Mansfield provided some of the money for the

trip to Korea. The situation concerning the children upset

Mansfield, and he told a co-worker, that he would ‘‘do what-

ever it took to get the children back.’” When Un-Cha said she

lacked the funds to return to the United States, Mansfield sent

her the money

In July, after Un-Cha returned from Korea. she and Mansfield

took a 12-day trip to Alaska to visit her sister, Eun-Hui Bend-

ing, whose husband was stationed there. It was apparent to Mrs

Bending that Mansfield was deeply in love with Un-Cha. It was

during this period that Un-Cha believed she was in love with

Mansfield

Some that summer Un-Cha said she wished to undergo breast

enlargement surgery. Mansfield arranged for the procedure and

28a

agreed to pay for it. The two consulted a doctor in Las Vegas,

Nevada. After being told there would be a 2-week convalescent

period, Mansfield rented an apartment in Las Vegas for “‘Mrs

Un-Cha Mansfield.”’ On 7 September, while the two were

returning to Las Vegas for the operation, Un-Cha who was

driving, lost control of the car. The resulting accident left Un-

Cha permanently paralyzed from the waist down. Mansfield

suffered only minor injuries.

Sergeant Haney first learned that Un-Cha had returned from

Korea and was in the hospital when he received an ambulance

bill for his wife in mid-September. When he went to Las Vegas

to visit Un-Cha, Mansfield was there. Medical personnel at the

hospital, and later at the rehabilitation center, initially thought

Mansfield was Un-Cha’s husband as he was always there with

gifts. Un-Cha, however, was equally affectionate with both her

husband and Mansfield.

After Un-Cha returned home to her husband’s quarters on

Edwards Air Force Base, Mansfield would drive by the Haney

residence at all hours and leave notes for her in the bushes

surrounding the house and under rocks. He would also hang

around Haney’s house and yard. This came to a head on 28

November, when a security policeman was summoned and

found Mansfield crouched under the Haney’s bedroom window

Mansfield told the investigating officer that he and Un-Cha were

‘good friends’’ and that he and Haney were ‘‘bitter enemies.”’

In his attempt to have Un-Cha leave her husband and marry him,

Mansfield had his sister call Un-Cha and pretend to be Haney’s

girl friend.

It was the consensus of Mansfield’s co-workers that the

accident deeply affected him. For example, he told all who

would listen that he was ‘‘in love’’ with Un-Cha, wanted to

marry her, and was responsible for her injuries. He also an-

nounced he thought Un-Cha’s husband was mistreating her

after the accident. It was, however, the “‘peeping Tom’’ inci-

29a

dent that caused the deepest concern to Mansfield’s site chief

The site chief, a senior non-commissioned officer, discussed the

episode with Mansfield and ordered him, on 8 December, to

refrain from contacting Mrs. Haney while she was married

On 17 January 1984, the situation between Mansfield and

Un-Cha Haney had reached a point that the site chief referred

Mansfield to the Edwards Mental Health Clinic for evaluation

On 25 January 1984, Doctor (Col) Oscar Juarique, a psychia-

trist and Chief of Mental Health at Edwards, interviewed

Mansfield. He found Mansfield ‘‘agreeable, calm, relaxed and

not overly depressed.’’ Dr. Juarique concluded that while

Mansfield had some problems, he was ‘‘fully responsible for

his actions.’’ At this same general time, Mansfield went to the

Edwards Housing Office, said he was going to get married, and

that his fiancee was in a wheelchair and had two children. He

inquired about modifying base quarters to accommodate her

condition

In early January 1984, Mansfield asked for 30 days leave to

go to Korea “‘to rest and recuperate and to take care of some

business [there].’’ Because of local manning requirements and

because he was scheduled to be assigned to Korea, the leave

was denied. Subsequently, Mansfield persuaded his site chief to

give him 6 days leave beginning in late January to help his sister

in Arizona move. The second leave application was submitted

after his assignment to Korea was canceled

Mansfield began his leave on 28 January. Before he left on

leave, his immediate supervisor reminded him that he had to be

back for duty on 2 February. A co-worker took him to the Los

Angeles International Airport where he enplaned for Kimpo

International Airport, Seoul, Korea. He arrived in Korea at

approximately 1840, 29 January, Korea time

Mansfield went from the airport to the Hamilton Hotel in

ltaewon, a suburb of Seoul, Korea, where he stayed from 29

January to 3 February. While a guest at the hotel, Mansfield

30a

struck up an acquaintance with the hotel manager and a bellman

and would go to bars with them. During their conversations,

Mansfield displayed a photo of a Korean woman in a wheelchair

whom he said was his wife. Mansfield indicated his wife’s ex-

husband was the cause of her injury, and that he had come to

Korea for “‘revenge.’’ During his stay in Korea a number of

phone calls were made between him and Un-Cha and between

Un-Cha and the Stein/Yang residence in Song-Tan. He also

called Un-Cha’s sister in Alaska, but denied he was in Korea

On 2 February, the owner of a rice store near the Song-Tan

train station testified he saw an American fitting Mansfield’s

description making a phone call from a booth near his shop. He

later identified Mansfield as the person making the call. During

this same period, Mansfield made numerous phone calls to the

Stein/Yang house asking for Yang. Although Mansfield used

various false names, the persons taking the calls recognized the

voice as his. Each time he called, mansfield said he had a letter

or package for Yang. During the afternoon of 3 February,

Sabina Haney, Un-Cha’s 9-year-old daughter, saw Mansfield in

an alley near their house, but he acted like he did not know her

At about 1730 hours, 3 February, Yang answered the phone,

looked bewildered, and handed the phone to Technical Sergeant

Stein who was standing nearby. The caller, who spoke ‘‘very

fluent English,’’ told Stein his name was ‘‘Sergeant ?Wilson,”’

and that he had a letter and package for Yang. He suggested

that they meet at the Son-Tan Hotel Coffee Shop at 1900 that

evening. Yang and Stein went to the hotel which was close by,

but found no “‘Wilson.”’ They both waited about an hour and

left. When Stein arrived home early the next morning, Yang was

not there. Yo Sum-Cha lives near the Song-Tan train station. At

approximately 2115, 3 February, she heard an argument, par-

tially in English, in the alley near her apartment. At the same

time, Ho Non-Yi, who also lives nearby hearing running foot-

steps.

Mansfield caught a taxi at the Osan Air Base Main Gate at

approximately 2] if) ; Fehn) ry and h id sf take him tc Se

He left Korea at about 1240 4 February. K

rean time. and

arrived in Los Angeles at 113 + February, California time

Later on 4 February, there was a disturbanc e when Mansfield

attempted {tO pass a note ft Ln-Cha at the t-dwards Ba

| heater The se inity p e were lied Nut the ?

found

Yane's bod , na '

itel 52 + Felt H is f 1 and |

eather jacket with a hole in the back \ stainless steel kitcher

Knife was lying near the t dy Thecrime s Is three-quart

fa mile from the Osan Main Gate and near the Song- Tan Hote

ind the train station. The autopsy establis!

is a single stab wound in the back which penetrated the ribs a

severed the aorta. Death occurred almost immediatel, Ihe

vould was consistent with the knife found it the

time of death could not be pinpointed. but wa

time between 2100 and 2200 hours 3 Febn iry Th

defensive wounds or injuries to the body. and no signs of

struggle

Mansfield became a suspect almost immediatels upon the

discovery of Yang’s body. On 4 April, he was arrested at Hawes

and questioned. After proper warnings and advice as to the right

to counsel, Mansfield acknowledged knowing Un-Cha and stated

he loved her. He said he knew her children were the most

important thing in her life, and she had told him she would never

divorce her husband until she had her children He admitted

calling Un-Cha from Korea, but denied discussing the children

during any of the calls

Mansfield was returned to Korea in mid-April 1984, and

placed in pretrial confinement. During this confinement he stated

to a fellow prisoner, ‘‘I’m in this piace for a killing a

gook. I mean, they think I killed a gook.”’ After his first

32a

trial, when asked by co-workers if he had killed Yang, he

cryptically replied, ‘‘I’m not going to say I did, and wouldn't

say I didn’t.”’ He indicated that such a response was necessary

‘‘because it’s not over’’ and ‘‘there’s a possibility there will be a

round two.”’ There is some evidence that Un-Cha suggested to

Mansfield that if her first husband were dead, she would get the

children back. Mansfield also indicated to the Korean wife of a

co-worker that he was going to Korea to kill Yang so that Un-

Cha could get her children back. This woman thought he was

serious, and tried to talk him out of it

Captain Mark Paris is the Chief Psychologist, Directorate of

Mental Health, United States Disciplinary Barracks, Fort

Leavenworth, Kansas. In mid-June 1985, Mansfield told Davis

he want to Korea to bring back Un-Cha’s children. He said he

saw Yang and initially Yang agreed to return the children. The

two met in a fairly populated area and then went through some

winding streets and ended up in an area with no people around

There was a ‘‘verbal altercation.’’ The next thing Mansfield

remembered was seeing a man lying on the ground with a knife

in him

During their opening statement at Mansfield’s second trial,

the defense acknowledged that ‘‘although [the appellant] may

have been the physical agent of the death of Mr. Yang, there is a

serious doubt whether he was responsible [for] that death ’’ The

defense stressed that when Mansfield was in the alley with

Yang, he was ‘‘a man who lacked the ability to conform his

conduct to the requirements of the law.’”’

To assist the court members tn understanding what caused

the appellant to act the way he did on 3 February 1984, the trial

defense counsel offered extensive expert testimony from an

array of highly qualified witnesses: Doctor John Beck, a psy-

chiatrist with over 23 years experience, Doctor Robert Vosburg,

a former Air Force Psychiatrist, now in private practice, who

was a member of the sanity board that examined Mansfield in

33a

1984: Doctor John Streffling, Chief of Psychiatry at the United

States Disciplinary Barracks: and Doctor Michael Coburn, a

forensic psychiatrist. While their views regarding specific diag-

noses differed, they shared a common view on the forces that

made the appellant behave as he did. They all agreed that while

Mansfield could appreciate the criminality of his conduct, he

lacked the substantial capacity to conform his conduct to the

requirements of the law at the time of the offense

Doctor Beck concluded that the appellant suffered from a

Post-Traumatic Stress Disorder (PTSD), and Adjustment Dis-

order with Mixed Disturbance of Mood and Conduct. and a

Mixed Personality Disorder which amounted to a mental dis-

ease or defect. Beck opined that in the 4 to 8 weeks before

Yang’s death, Mansfield was ‘in an altered state of personality

function and personal desperation.’’ The car accident of 3

September 1983 was the triggering event, and was a dual

trauma: 1) injury to a loved one and 2) rejection of him by her in

favor of her husband. The appellant ‘‘idealized’’ his relationship

with Un-Cha. He saw her as the ‘‘personification’’ of sweetness

and love. He rationalized that if he could get the children back,

they could be used as Pawns to get Un-Cha to leave her hus-

band Dr. Beck acknowledged that his diagnosis of the appellant’s

mental condition does not meet the American Psychiatric

Association’s (APA) definition of a severe mental disease or

defect, but thinks their Standard is too narrow and inflexible. In

his view a severe mertal disease or defect should not be limited

to psychoses because other behavior disorders can be just as

severe as any behavior compelled by a psychosis

Doctor Vosburg first saw the appellant in May and June

1984. He was not sure why there had been a psychiatric referral

as the appellant was ‘‘not flamboyantly psychotic’ and ‘‘not

grossly disturbed.’’ At that time Vosburg found Mansfield ori-

ented to time, place, circumstance, and in contact with reality

Later, he concluded that the appellant suffered from a PTSD

34a

behavioral problem. The stressors included the car accident,

problems at work, survival guilt as a result of the accident, and

memory impairment. The accident triggered a ‘‘traumatic neu-

rosis.’” The appellant’s PTSD was described as mild to moder-

ate and he was not psychotic. While he was deeply attracted to

Un-Cha and looked upon her as a “‘mother surrogate,”’ he was

not obsessed with her in a clinical sense. See American Psychi-

atric Institute, Diagnostic and Statistical Manual for Mental

Disorders (DSM) (3d Ed. 1980.) Dr. Vosburg agreed that a

PTSD is not service-disqualifying, and that car accidents do not

always result in PTSD

Doctor Streffling has conducted over 6,000 mental examina-

tions. He first saw the appellant in March 1985, when the latter

had trouble sleeping and had contemplated suicide. After

Streffling conducted two clinical evaluations and reviewed the

prior mental health records, he diagnosed the appellant's mental

condition as Alcohol Abuse in Remission, and a Mixed Person-

ality Disorder with Paranoid, Schizoid, Schizotypal, Depen-

dency and Obsessive Traits—he ruled out PTSD. He consid-

ered malingering as a possibility, but adhered to his opinion that

the appellant lacked the substantial capacity to conform his

conduct to the requirements of the law at the time of the

ottense

Doctor Coburn interviewed the appellant four times— the last

being in July, 1987. He found the appellant to be a ‘‘very sick’’

person whom he diagnozed as suffering from PTSD with a

Mixed Personality Disorder manifested by Paranoid, Schizoid,

Narcissistic, Avoidant, Dependent, and Obsessive-Compulsive

traits. The car wreck that resulted in Un-Cha’s injury and the

earlier death of the appellant's mother were stressors that trig-

gered the impairment which Coburn described as “‘very, very

serious.’’ Coburn acknowledged that the appellant did not have

an organic brain disease and was not psychotic, but maintained

that his mental condition was a disease or defect which pre-

35a

vented him from conforming his actions to the requirements of

the law. Dr. Coburn also thought the APA standard on what

amounted to a mental disease or defect was too restrictive. He

felt that the impairment should not have to be a psychosis, but

merely a serious disorder. The appellant’s stressors ‘‘snow-

balled’’ and, after the accident, he lost interest in everything and

everyone but Un-Cha

In preparation for his first trial, Mansfield wrote a lengthy and

detailed account of his relationship with Un-Cha, the events that

led up to the meeting with Yang, and what happened at that

meeting. The parties at the second trial referred to this state-

ment as ;the appellant’s ‘‘life story.’’ The statement told of

Mansfield’s attempt to hire a ‘‘hit man’’ to kill Yang, his

purchase of a knife shortly before the homicide and the manner

of its use at the scene. Both the defense and prosecution used

the statement during the direct and cross-examination of the

defense’s expert witnesses, all of whom had read the statement

and with the exception of Dr. Vosburg had considered it in

arriving at a diagnosis

The statement itself was a very difficult document for a

psychiatrist to assess as it was a ‘‘combination of fact and

fiction.’” Doctor Beck opined that even if the appellant had the

knife in his hand when he met Yang, he lacked the ability to

control himself. Doctor Vosburg’s diagnosis of the appellant’s

mental state was not changed by his reading of the ‘‘life story.”’

Likewise, Doctor Streffling’s diagnosis remained the same after

he read the statement. Doctor Coburn stated he was aware of

the “hit man’’ theory the first day he met the appellant. He

indicated further that the appellant had told him two versions of

the events in Korea, but neither was complete or believable

Nothing in the “‘life story’’ changed his assessment of the

appellant’s mental makeup

In his “‘life story’’ the appellant related that he attempted to

negotiate the return of Un-Cha’s children from Yang by offering

36a

him a substantial sum of money. Initially, this offer was consid-

ered by Yang, but he changed his mind and started berating Un-

Cha. The appellant and Yang argued, a scuffle followed, and the

appellant took a knife from a plastic bag which Yang pulled

from his hand. According to the appellant was happened next is

unclear, but when he saw Yang on the ground, he attempted to

remove any incriminating evidence from the scene and left.

The defense sought to show Yang as a violent person, skilled

in martial arts, who had assaulted a former boyfriend of Un-

Cha’s with a knife. A professor of Korean Traditional Culture at

the Seoul National University testified that offering money for a

man’s children is a ‘“‘shameful thing,’’ and would anger a Ko-

rean father. The defense suggested that when Mansfield offered

to “‘buy’’ Un-Cha’s children from Yang this so angered him that

he attacked Mansfield who then was forced to defend himself

An instruction on self-defense was given the members priot to

findings

In rebuttal to the testimony just discussed the prosecution

responded with three equally distinguished and qualified expert

witnesses: Doctor Philip Resnick, a forensic psychiatrist who

teaches courses on the detection of deception and faked mental

illness; Major (Dr) Paul Sorgi, staff psychiatrist, and Director,

Psychiatric Residency Training, Wright-Patterson Air Force

Base, Ohio, and Colonel (Dr) Ali Baser, Chairman, Department

of Psychiatry, Wiesbaden Regional Medical Center, Wiesbaden,

Germany. Doctor Baser has 30 years experience as a psychia-

trist

All three psychiatrists who appeared for the prosecution

testified that the appellant did not have PTSD, but at the very

most a Mixed Personality Disorder which did not prevent him

from conforming his conduct to the requirements of the law

None of these psychiatrists observed any evidence of a major

mental illness, e.g., schizophrenia or manic-depressive state, or

any indication of a psychosis. All three, using the American Law

37a

Institute standard, found the appellant fully responsible for his

actions.

Doctor Resnick cited various bases for concluding that the

appellant had the capacity to conform his conduct to the re-

quirements of the law and to refrain from stabbing Yang. For

example, the appellant did not suffer from command hallucina-

tions and there was no evidence that a delusion, delirium,

psychosis or misperception of reality caused the act. Doctor

Resnick observed that the appellant ‘‘did not act with an uncon-

trollable urge’’ and stab Yang in front of the coffee shop where

he first met him, but waited until the two were in an isolated

area and after Yang had refused to release Un-Cha’s children in

return for money. The appellant was only “driven” to kill Yang

in order to please Un-Cha by getting her children back. In his

opinion, the appellant was not an ‘‘out of control, quivering

person welling up with hate,’’ but a person who could control

his actions until a time when he is less likely to be caught

Doctor Resnick acknowledged that Mansfield had an intense

love for Un-Cha and spent substantial sums to win her affection,

but stated that “‘being in love is not a mental disease.”’

Doctor Sorgi was a member of the sanity board that inter-

viewed Mansfield in August 1987. At that time the appellant's

behavior was appropriate, speech was in normal limits, and he

possessed an above average I.Q. After reviewing the appellant's

medical and prior mental evaluations, Doctor Sorgi found no

evdience of a mental disease or defect. He concluded that the

appellant had a mixed personality disorder, and had the capacity

to conform his conduct to the requirements of the law. The basis

for this conclusion was much the same as Doctor Resnick’s in

that Sorgi saw no hallucinations or delusions and no indication

of a psychosis

In September 1984, Doctor Baser was a member of a sanity

board that evaluated the appellant. The board’s conclusion

indicated a mild to moderate Personality Disorder. There was

38a

no evidence of PTSD. Doctor Baser pointed out that PTSD

usually results in an impairment of the sexual drive, but Mansfield,

in his “‘life story,’’ stated he was sexually active in Korea, and

had a “‘great time.”’ Further, those suffering from PTSD avoid

discussions of their traumatic events, however, here the appel-

lant wanted to talk about the accident all the time. In Doctor

Baser’s opinion, Mansfield had the capacity to conform his

conduct to the requirements of the law

The prosecution also offered lay testimony that Mansfield

appeared ‘‘normal, rational, and coherent’’ in his behavior up

until his arrest. His mental stability was not questioned. Further,

in June 1984, Mansfield told a cellmate he wanted to convince a

psychiatrist he was ‘‘crazy.’’ To this end he started acting

‘“strange in the latrine’’ by staring at the walls. After the guard

was called, Mansfield looked at his cellmate and “‘winked.”’

In closing its rebuttal case, the prosecution offered evidence

that Yang was a peaceful, educated person who was not known

to carry a knife

INEFFECTIVE ASSISTANCE OF COUNSEL

The initial issue we address is one of first impression within

the military justice system: Was the appellant denied his Sixth

Amendment right to effective representation of counsel in his

second trial because of a taint emanating from this Court’s

reversal of the results of his first trial? Mansfield, 24 M.J. 611

(A.F.C_.M.R. 1987) (Mansfield 1)

The main thrust of appellant’s argument is that the prosecu-

tion, at his second trial, had access to, and probably used,

privileged attorney-client information he was forced to disclose

to support the claim of ineffective assistance of counsel at his

first trial

In the appeal following the first trial, the appellant claimed

that his trial attorneys had failed to investigate, prepare, or

properly present either an insanity or diminished capacity de-

39a

fense. Later, his appellate counsel expanded the issue of ineffec-

tive assistance of counsel by suggesting that the trial defense

counsel in Mansfield / acted improperly and against the

appellant's best interests by instructing him to withhold material

information from Doctor Coburn, a potential defense insanity

defense witness. Both the government and the appellant asked

for a limited evidentiary hearing to investigate the claim of

ineffective representation. See generally United States v. DuBay,

17 U.S.C.M.A. 147,37 C.M.R. 411 (1967). We ordered such a

hearing. Our earlier decision in Mansfield J] discussed the evi-

dence supporting the appellant’s allegation of inadequate repre-

sentation

A military accused is entitled to effective assistance of coun-

sel. This is true whether the counsel is detailed or selected by the

accused. United States v. Scott, 24 MJ. 186 (C.M.A. 1987):

Bates v. Blackburn, 805 F.2d 569 (Sth Cir. 1986). Further.

where an accused is denied effective representation, he or she is

entitled to a new trial. This is the rule in both military and

civilian jurisdictions. (/nited States v. Scott, supra; United States

v. Mansfield, supra; United States v. Cronic, 839 F.2d 1401

(10th Cir. 1988): Martin v. Rose, 744 F.2d 1245 (6th Cir

1984), Morrison v. Kimmelman, 650 F.Supp. 801 (D.C.N.J

1986). State v. kelton, 110 Wis.2d 485, 329 N.W.2d 161

(1983)

he appellant, however, seeks dismissal of the charges as his

remedy. Citing Kastigar v. United States, 406 U.S. 441, 92

S.Ct. 1653, 32 L.Ed.2d 212 (1972), he argues that he was

‘“compelled’’ to waive the attorney-client privilege in order to

establish grounds of ineffective assistance of counsel. Thus, he

is entitled to a ‘‘Kastigar-like’’ remedy where in the prosecu-

tion has the affirmative duty to prove that the evidence it wishes

to use at the second trial was derived from a legitimate source

wholly independent of the ‘‘compelled’’ testimony relating to

his claim of inadequate representation. He contends, without

40a

this protection, “ [a] retrial becomes nothing more than a

forum whereby the government perfects its case at the expense

of the appellant’s Sixth Amendment right to effective assistance

of counsel.’’ This assertion misses the mark. While the appellant’s

self-interest may ‘‘compel’’ him to claim that his lawyer was

inept, this “‘compulsion’’ does not allow him to re-claim his

attorney-client privilege. An attack on an attorney’s compe-

tence waives the attorney-client privilege as to matters reason-

ably related to the claim of inadequate representation. United

States v. Johnson, 21 M.J. 211 (C.M.A. 1986); United States v.

('audill, 18 M.J. 514 (A.F.C.M.R. 1984); see also Mil.R.Evid

$02(aj{3)

Appellant’s counsel maintain that ‘‘[t]he unique circumstances

of this case have conspired to produce a situation wherein he

can never receive a fair trial.’’ They postulate that the appellant

can never be restored to the position he occupied before the

ineffective representation. They argue that the evidentiary hear-

ing which provided the basis for granting a new trial gave the

prosecution unfair access to facts and potential defenses that the

appellant might raise at the hearing. Accordingly, they urge that

dismissal of the murder conviction is the only just remedy.

To arrive at this conclusion, appellate counsel treat the

appellant’s situation as a two-act play where the scenes in the

first act are so important that the play can never be revised to

arrive at a different ending before the final curtain. We, on the

other hand, view the circumstances as two one-act dramas that,

while tangentially connected, need not reach the same conclu-

sion

Stated briefly, it is the appellant’s position that his lawyers in

the first trial so botched his defense that his lawyers in the

second trial were prevented from adequately defending him. In

their view the two trials are linked, and the trial tactics in the

first which resulted in a rehearing had a prejudicial impact on the

second.

sore:

4ia

For example, the appellant claims he was precluded from

testifyin the second trial because of the ‘‘Life Story’ his lawyers

on his first trial had him prepare and give to potential defense

psychiatric witnesses. Few decisions made during the course of

a litigated trial are risk-free. Whether an accused takes the stand

in a trial is a tactical decision where the danger of doing so is

weighted against the benefit. Mansfield’s decision whether to

testify may not have been easy, but the choice was there See

State v. Lucas, 164 Ariz. 540, 794 P.2d 1353 (App. 1990). The

appellant did not take the stand at the rehearing. However, there

could be any number of appropriate reasons, not related to the

first trial, as to why the appellant did not testify We need not

speculate about them. (nited States v. Hurt, 9 US.C.M.A. 735.

27C MR. 3 (1958); See United States v. Small. 48 CMR. 170

(A.F.C_M.R. 1974)

Appellant's counsel also argue that the delay between the

first and second trial prevented the appellant from obtaining

additional psychiatric testimony. The record does not support

this assertion. In addition to the psychiatrists who were poten-

tial defense witnesses at the first trial, the defense called expert

witnesses who based their testimony solely on examinations of

the appellant conducted subsequent to the first trial. There is no

showing that passage of time between the two trials blotted out

a substantial defense. Accord People v. Corona, 80 Cal. App 3d

684, 145 Cal Rptr. 894 (1978) (New trial ordered after a 7 year

lapse because an insanity defense was available, but not raised

Accused initially convicted of killing 25 migratory workers )

Any rehearing can limit trial tactics. For example, an accused

would be hard pressed to claim alibi in a second trial having

relied on self-defense in the first. Likewise, any retrial permits

the prosecution some insight into the likely strategy the accused

will follow. There are several situations where an accused must

disclose certain defenses before they can be asserted. The gov-

ernment must be informed whenever alibi is to be raised as a

42a

defense. R.C.M. 701(b)(1). If insanity is an issue, the prosecu-

tion is to be told. R.C.M. 701(b)(2). An accused may be exam-

ined by government psychiatrists where insanity is raised. United

States v. Parker, 15 M.J. 146 (C.M.A. 1983), United States v.

Babbidge, 18 U.S.C.M.A. 327, 40 C.M.R. 39 (C.M.A. 1969)

The appellant’s two trials are not a continuum, but are sepa-

rate and distinct hearings. The proper test is whether the law-

yers at the appellant’s second trial adequately defended him. See

Herman v. Butterworth, 744 F Supp. 1128 (S.D.Fla. 1989). We

find that they did. The appellant is not entitled to a risk-free

rehearing, but to a fair trial. His lawyers at the second trial were

aggressive, innovative, and skillful. They used the available

defense evidence to great potential advantage. That they were

not successful does not detract from the quality of their repre-

sentation. At the appellant’s second trial, his Sixth Amendment

right to effective representation was safeguarded to the fullest

Appellate defense counsel seek to make the appellant's law-

yers at the first trial surrogate counsel at the second. We decline

to expand the law in this manner

ADMISSION OF “LIFE STORY”

As stated earlier the appellant, in preparation for his first trial,

wrote a lengthy and detailed account of his relationship with

Un-Cha and the events that led up to his meeting with Yang and

what occurred during that meeting. This “‘Life Story’’ con-

tained incriminatory statements by the appellant regarding Yang’s

death. At the second trial, this statement was used by the

defense in direct examination of expert witnesses, Doctors

Vosburg, Strefling, and Coburn, all of whom testified the appel-

lant lacked the substantial capacity to conform his conduct to

the requirements of the law at the time of the offense

In rebuttal, the prosecution offered the entire statement as

evidence tending to show that the appellant killed Yang. They

43a

argued that since the defense based a sizable portion of its direct

examination of expert witnesses on information contained in the

document, the members were entitled to consider the entire

Statement. See Mil.R.Evid. 801(d)(2); see generally United

States v. Lonetree, 31 M.J. 849 (N.M.C.M.R. 1990) They also

urged that the statement was clearly voluntary within the mean-

ing of Mil.R. Evid. 304. The trial judge admitted the statement

Evidence that is not admissible in the prosecution’s case-in-

chief may become so by the tactics used by the defense. The

military judge has broad discretion as to what evidence is to be

admitted or excluded in rebuttal. U/nited States v. Rodriguez, 28

MJ. 1016 (AF.C.MR. 1989), aff'd 31 MJ. 150 (CMA

1990)

The appellant challenges his statement’s admissibility on two

grounds: |) His expert witnesses only ‘‘considered’’ the state-

ment but did not ‘‘rely’’ on it arriving at a conclusion as to his

mental state, and 2) No foundation was established for its

admission

As to the first objection, appellate counsel are arguing seman-

tics. It 1s clear that defense psychiatrists used the statement in

reaching a diagnosis. Regarding the second objection, the trial

defense counsel stated numerous times during direct examina-

tion of defense witnesses that Mansfield wrote the statement

Defense witnesses also testified they were given the statement

by the appellant's counsel. Further, Mansfield acknowledged to

at least two psychiatrists that he wrote the account Finally, the

document itself contains information that only the appellant

would know. All of these factors are strong circumstantial

evidence of the document's authenticity. Accord United States

v. (ook, 794 F.2d 561 (10th Cir 1986)

However, we need not decide this issue solely on the objec-

tions raised by trial defense counsel and assertion to us by

appellate counsel. Assuming, arguendo, that the trial judge

erred in admitting the statement, we see no prejudice to the

44a

appellant. The question of who killed Yang was not contested

by the defense trial team. In their opening statement, and before

the challenged statement was admitted, the defense conceded

that the appellant killed the victim. Further, various defense

witnesses (psychiatrists) were told to assume that the appellant

caused Yang’s death. Under these circumstances it is difficult to

hold that the admission of the appellant’s ‘‘Life Story’’ resulted

in prejudicial error

DENIAL OF MISTRIAL MOTION

During the government's rebuttal, Doctor Baser, a sanity

board member, testified that the appellant was mentally respon-

sible at the time of the offense. Doctor Baser stated that he had

read and considered the appellant’s ‘‘Life Story’’ in reaching a

conclusion as to his mental state. When asked by the trial

counsel if he knew why Mansfield’s narrative was created, he

replied

My understanding is that there was another docu

ment. In the course of my evaluation, the accused

handed me a long handwritten document of his con-

fession, as well as his description of the circumstances

(emphasis added)

rhis answer is non-responsive and the witness inadvertently

referred to a document not under discussion. Defense counsel

objected to the answer and requested a mistrial maintaining that

the disclosure created an impression that the witness had pet

sonal knowledge about the appellant’s ‘‘Life Story,’’ and the

existence of a second document. Further, the court-members

would expect answers to matters that could not be appropri-

ately answered.

The trial judge denied the appellant's mistrial motion, and

gave the following instruction

4Sa

Members of the court. I want to give you an

instruction. The witness referred to some sort of

confession or admission handed to him by the accused

at the time of the original sanity evaluation by this

witness’ sanity board

The court is instructed that nothing that was given to

the witness during the interviews by this witness con-

stituted a confession by the accused. and no inference

to that effect should be drawn from the Statement by

this witness

lhe defense considered the instruction inadequate, and claimed

the error was “‘irremediable’’

The decision to declare a mistrial rests within the sound

discretion of the trial judge. The preferred remedy for curing

error caused by members hearing inadmissible evidence iS a

curative instruction, so long as the curative instruction avoids

prejudice to the accused. (/mited States vy vans, 27 MJ. 34

(C.M.A. 1988), cert. denied 488 US 1011. 1098 Ct 797, 102

L.Ed. 2d 788 (1989): United States v. Rehur k, 16 MJ. §55

(AFCMR. 1988) pet. denied 17 MJ §2 (C M.A. 1984)

\ny error brought about by Doctor Baser’s nonresponsive

answer was harmless in light of the defense evidence already

before the court. Accord United States y Bledsoe, 26 MJ. 97

(CMA. 1988). The members were aware of the “Life Story

through the testimony of numberous defense witnesses. Further

while the term ‘‘confession’’ denotes a high degree of culpabil

ity, the defense had earlier conceded that the appellant had

caused the victim's death. These circumstances plus the cura

live instruction, convince us that the trial judge did not abuse his

discretion in denying the mistrial motion

KNOWLEDGE OF PRIOR TRIAI

\t the government's request, the trial judge gave the follow

ing Cautionary instruction at the beginning of the trial

46a

The accused has been tried before. You should not

concern yourself with this fact. Your verdict must be

based solely on the evidence in the present trial, in

accordance with the court’s instructions

This instruction was taken verbatim from the pattern instruction

guide for federal judges. See Devitt & Blackmar, /ederal Jury

Practice & Instructions, section 10.04, (3d ed. 1984)

Appellate defense counsel argue that this instruction together

with the trial judge allowing the prosecution to call witnesses

whose testimony directly or inferentially established that the

appellant had previously been convicted of the same charge,

denied the appellant a fair trial. They claim that the judge’s

actions effectively diluted the presumption of innocence to

which every accused is entitled

We find no fault with the challenged instruction. United

States v. Hykel, 461 F.2d 721 (3d Cir. 1972); Carsey v. United

States, 392 F.2d 810 (D.C.Cir. 1967). The government is not

limited in the second trial to the evidence that was presented in

the first, but may offer any admissible evidence that will strength

its case. United States v. Gallagher, 602 F.2d 1139 (3d Cu

1979), United States v. Shotwell Manufacturing Co., 355 U.S

233, 78 S.Ct. 245, 2 L.Ed. 2d 234 (1957). It is not uncommon

during a rehearing for a reference to be made to the previous

trial. The instruction that was given accepted that this was

likely, and sought to meet the problem head on. Court members

are presumed to follow the instructions of the trial judge. See

(/nited States v. Moreno, 10 U.S.C.M.A. 406, 27 C.M.R. 480

( 1959)

APPELLANT'S VERACITY

In rebuttal, Doctor Resnick testified that studies have indi

cated that psychiatrists are no better than lay persons in deter-

mining when someone is telling the truth. He did state, however

47a

that identifying faked mental illnesses was an area of special

interest to him, and he had taught courses on the subject. With

this background, the trial counsel asked the following question

Q: Sir, have you formed an opinion in this case as

to the accused’s veracity?

A: Yes, I have

Q: And what is that. Sir

Before the question was answered, the trial defense counsel

objected, made a motion for mistrial and, in an out-of-court

hearing, contended the government was attempting to use Dr

Resnick as a ‘‘truth telling machine.”’ See generaliy lU/nited

Mates v. Clark, 12 M.J. 978 (A.F.C_.M.R. 1982). pet. denied \3

MJ. 480(C.M.A. 1982). The trial judge sustained the objection

but denied the mistrial motion

Initially, the defense opposed giving a curative instruction,

but subsequently agreed that ‘‘it may be less hurtful to give an

instruction than to not give an instruction.”’ Thereafter. the trial

judge gave the following instruction

Mr. President and members of the court. I want to

instruct the court that it is solely the purview of you

members of the court to determine the veracity of

evidence brought before you and other matters called

to your attention

No witness, whether an expert or not is qualified to

determine as a matter of expertise or experience

whether someone is or is not telling the truth. All they

can do is express an opinion as to whether they think

a person Is or is not responding truthfully

You and you alone must make the final determination

of whether or not a witness or a party is to be be-

leved

48a

Appellate defense counsel claim that the ‘‘error was such that it

was beyond fixing,’ and the above instruction only made it

worse. Thus, they contend the trial judge erred in not granting

the mistrial.

In evaluating the judge’s ruling it must be remembered that

the question was never answered. Further, the thrust of the

question was toward the witnesses’ expertise in identifying

persons who feign mental illnesses, and not toward the appellant's

general truthfulness. Later in the trial, the government offered

evidence suggesting that the appellant had attempted to fake a

mental illness.

As we stated earlier, the decision to grant a mistrial lies with

the sound discretion of the trial judge. Here he did not abuse

that discretion, and his curative instruction was the proper

remedy. vans, 27 M.J. at 39

JURISDICTION

The appellant argues on appeal as he did at trial that the Air

Force lacks jurisdiction over him or the offense. He claims he

was in Korea ‘‘ solely on a private matter, traveling on a

tourist passport.’ He was, according to him, “‘a private citizen

on a private errand.’’ Thus, there was no official connection

between himself, the victim, and the United States. Under these

circumstances, he contends he is a private citizen and cannot be

‘‘prosecuted by any arm of the United States’’ for an offense

taking place in a foreign country.

This assigned error need not detain us long. In Solorio v.

United States, 483 U.S. 435, 107 S.Ct. 2924, 97 L.Ed.2d 364

(1987), the Supreme Court held that court-martial jurisdiction

rests on the military status of the offender and not on the nature

of the offense. Even under pre-Solorio precedents, court-mar-

tial jurisdiction has been upheld over a servicemember who

committed a crime in a foreign country where he was not

stationed, but was visiting in an authorized absence status. See

49a

e.g., United States v. Newvine, 23 U.S.C_.M.A. 208, 48 CMR

960 (1974). The assigned error is without merit

MANDATORY SENTENCE

Appellate counsel argue that a mandatory life sentence for

premeditated murder is invalid because the element of premedi-

tation is unconstitutionally vague. They argue that since the

premeditation aspect of a killing can be met in the ‘‘flicker of an

instant,’’ the government can define premeditation in an

unfettered and unrestrained fashion when trying to prove any

homicide offense. This, according to appellate counsel, ‘‘is the

ultimate manifestation of prosecutorial whom.”’

Appellate counsel contend that the original charges against

the appellant did not support a charge of premeditated murder

because, as the advice of the Staff Judge Advocate acknowl-

edged ‘‘there were no witnesses to the stabbing and no

forensic evidence linking the accused to the knife or the brutal

killing.’ The vague definition of premeditation was therefore

not enough to charge the appellant with premeditated murder

with a mandatory sentence of life imprisonment upon convic-

tion

‘“Premeditation”’ is a term of art commonly employed and

universally understood in the law of homicide. The military

definition states

PREMEDITATION: A murder is not premeditated

unless the thought of taking life was consciously

conceived and the act or omission by which it was

taken was intended. Premeditated murder is murder

committed after the formation of a specific intent to

kill someone and consideration of the act intended. /1

is not necessary that the intention to kill have been

entertained for any particular or considerable length

of time. When a fixed purpose to kill has been delib-

50a

erately formed, it is immaterial how soon afterwards

it is put into execution. The existence of premedita-

tion may be inferred from the circumstances (empha-

sis added).

MCM 1984, Part IV, para 43c(2)(a). The military definition of

‘‘premeditation,’’ with minor variations as to the language, is

the same as that in civilian courts. See generally Davis v.

Wyrick, 766 F.2d 1197 (8th Cir. 1985); United States v. Chagra,

638 F.Supp. 1389 (W.D.Tex. 1986), aff'd 807 F.2d 398 (Sth

Cir. 1986); cert. denied 484 U.S. 832, 108 S.Ct. 106, 98

L.Ed.2d 66 (1988); Hounshell v. State, 61 Md.App. 381, 486

A.2d 798 (1985).

The concept of challenging a penal statute for ‘“vagueness’’

rests on the constitutional principle that procedural due process

requires fair notice and a proper standard for adjudication.

Landry v. Daley, 280 F.Supp. 938 (N.D.IIl. 1968). Criminal

statutes are presumed constitutionally valid, and the party at-

tacking the constitutionality of a statute has the burden of

proving otherwise. See People v. Revello, 735 P.2d 487 (Colo.

1987). Here, appellate counsel offer only a generalized claim

that the element of premeditation is ‘‘unconstitutionally

vague’’—they offer no authority and little discussion to support

the assigned error.

The “‘vagueness’’ test is not an exercise in semantics, but a

pragmatic test to ensure fairness. The military case law as to

what constitutes ‘‘premeditation,’’ and what that term means, is

so well-established that it prevents discriminatory enforcement

by the government, the trial court, and the factfinders. See

United States v. Teeter, 16 M.J. 68 (C.M.A. 1983); United

States v. Matthews, 16 M.J. 354 (C.M.A. 1983); United States

v. Gay, 16 M.J. 104 (C.M.A. 1984). We reject the appellant’s

claim that the element of premeditation as defined by military

law is unconstitutionally vague. Accord United States v. Coo-

per, 754 F.Supp. 617 (N.D.IIl. 1990).

5la

LEADING QUESTIONS

Appellate counsel claim that Mansfield was denied a fair trial

because the trial judge refused to permit trial defense counsel to

ask leading questions of Myong-Cha Stein on direct examina-

tion. The victim was the Stein family’s landlord, and he lived in

the same house with them. Mrs. Stein had been, at one time.

intimately involved with him. The appellant argues that Myong-

Cha Stein was an adverse witness and the trial judge’s ruling

effectively denied him the ability to develop a defense of self-

defense '

Leading questions may be defined as those which suggest to

the witness the desired answer, or which assume to be proved a

fact which is not proved, or which by stating a material fact,

permit an answer by a simple yes or no. The general rule is that

counsel, with the exception of adverse witnesses, may not ask

leading questions on direct examination of a witness. However,

the rule and the exception are not absolute, and it is within the

sound discretion of the trial judge to permit such questions

Mil.R.Evid. 611(c); Ellis v. Chicago, 667 F.2d 606 (7th Cir

1981), United States v. O'Brien, 618 F.2d 1234 (7th Cir. 1980)

Appellate counsel assert that Mrs. Stein was called to estab-

lish that Yang loved his children, was contemptuous of Un-Cha

Haney, had violent propensities, and was insulted about the

appellant’s attempt to return his children to Un-Cha. All of this

was supposedly in support of the defense theory of self-defense

In almost 20 pages of direct examination only three trial

counsel leading question objections were sustained. Further, it

doesn’t appear that these sustained objections hampered the

defense’s ability to elicit the desired testimony from Mrs. Stein

Mrs. Stein’s testimony established those facts the defense wished

to establish concerning the appellant’s self-defense theory We

hold the trial judge did not abuse inis discretion

' It was uncontested at trial that the victim died as the result of a single

Stab wound in the back

52a

PRIOR TESTIMONY

The appellant claims that the trial judge erred in admitting, at

his second trial over defense objection, the former testimony of

Sim Sang-Kuk and Yi Chong-Kwan which was taken at his first

trial. In support of this claimed error, appellate defense counsel

remind us that Mansfield was granted a new trial because he was

denied effective representation at his first trial.

We agree that the trial judge erred. Before testimony taken at

a prior trial can be used, there is a requirement the accused be

adequately represented at the former trial. United States v.

Vanderpool, 15 C.M.R. 609 (A.F.B.R. 1953). On certification

of a similar issue by The Judge Advocate General of the Air

Force to the Court of Military Appeals, Judge Brosman, wrote:

[I]t would be inconsistent for us to agree that the

accused was somehow denied adequate legal repre-

sentation at the first trial and yet hold the testimony

given at that proceeding to be admissible to ground a

conviction at the second over the objection of the

accused. On the contrary, we think that there is no

logical escape from the conclusion that the former

testimony . . . was inadmissible, and that the objection

by the defense to its introduction would have been

well taken.

United States v. Vanderpool, 4U.S.C.M.A. 561, 567, 16 C.M.R

135, 141 (1954).

We have examined the record to see if the appeilant was

harmed. Sim Sang-Kuk is a bellman at the Hamilton Hotel. His

former testimony established that he and Mansfield became

drinking companions. During the course of their acquaintance,

the appellant indicated to Sim that his “‘wife’’ was in a wheel-

chair, and her ex-husband was the reason for her condition. The

appellant stated he was in Korea to get ‘‘revent’’ against the ex-

husband.

S3a

All of Sim’s former testimony was before the court through

the testimony of other witnesses Additionally, some of Sim’s

testimony supported the defense theory that the appellant was

not mentally responsible at the time of the offense. For example,

Sim stated, at times, he thought the appellant acted like an

‘“insane person.”’

Yi Chong-Kwan owns a rice store near the Song-Tan train

station. He testified he saw an American fitting the appellant’s

description making a phone call from a booth near his shop. His

testimony established that the appellant was in the area where

Yang’s body was found before the killing took place.

The same fact was also established by other witnesses in

appellant second trial. Un-Cha’s daughter, Sabina, testified she

saw the appellant in the alley near Yang’s house, and the

appellant acted as if he did not know her. Further. Un-Cha’s

son, Michael, recognized the appellant’s voice when he called

the Stein residence and asked for Yang. Both incidents involv-

ing Un-Cha’s children occurred a few hours before Yang was

found dead

Further, the defense did not deny that the appellant was in the

alley with Yang and was ‘‘__ . the physical agent of the death of

Mr. Yang.”’ They acknowledged that in their opening state-

ment. They defended on the appellant’s lack of mental responsi-

bility at the time of the offense and he had acted in self-defense

when he killed Yang. The defense stipulated that the appellant

met Yang in the alley on 3 February 1984 sometime between

2100 and 2200

We are convinced that the erroneous admission of the prior

testimony of these two witnesses was harmless error as there is

other competent evidence of record by other witnesses estab-

lishing the same facts Accordingly, it was collateral and cumu-

lative information that had no reasonable impact on the court

United States v. Quigley, 44 CMR. 718 (NBR. 197] ), See

United States v. Finch, 22 C MR 698 (N.B.R. 1956)

54a

PARTIAL MENTAL RESPONSIBILITY

Prior to argument on findings, the trial judge, without objec-

tion by the defense, gave the members the pattern instruction on

partial mental responsibility found in Department of the Army

Pamphlet 27-9 (Feb 85), Military Judges’ Benchbook, para-

graph 6-5. See also Ellis v. Jacob, 26 M.J. 90 (C.M.A. 1988).

On appeal appellate counsel claim the unchallenged instruc-

tion was flawed in that it ‘‘omitted any reference to the fact that

the accused may have been sane.” In their view, this omission

may have allowed the members to conclude that the defenses of

mental responsibility and partial mental responsibility were mu-

tually exclusive.

We disagree and hold that the instruction given by the trial

judge correctly states the law in this area. See generally United

States v. Tarver, 29 M.J. 605 (A.C.M.R. 1989).

SELF-DEFENSE EVIDENCE

Appellate defense maintain that the trial judge denied the

appellant his right to assert self-defense effectively by excluding

‘‘alley’’ references in the video deposition of Kong Su-Chim.

The appellant sought to establish that the victim, Yang, was a

violent man by offering evidence that Yang had attacked Kong

with a knife in an ‘‘alley.’’ Thus, there was a parallel between

Yang’s earlier use of a knife, and the altercation involving the

appellant.

The record does not support the appellant’s claim of error.

Using leading questions on direct examination, trial defense

counsel sought to have Kong admit that Yang had cut him on

the ear with a knife in an ‘‘alley.’’ Kong resisted defense counsel’s

urging that the attack took place in a “‘dark alley.’’ Instead, he

insisted the assault happened in a yard outside a tea room after

both had been drinking. The incident apparently occurred some-

time in early 1974. While Kong did not agree with defense

SSa

counsel's suggestion that an ‘‘alley’’ was the locale of the

assault, he did acknowledge that Yang was a violent person

who would use a knife when provoked. This evidence sup-

ported the defense theory of self-defense. The trial judge did not

abuse his discretion by deleting the additional ‘‘alley’’ refer-

ences

STIPULATIONS

Appellate defense counsel argue the trial judge erred by

failing to explain to the appellant the meaning and effect of three

stipulations of fact and expected testimony. See RC M. 91 I(c):

see United States v. Cambridge, 3 U.S.C.M.A. 377,12 CMR

133 (1953). The written brief on this assigned error devotes

itself almost entirely to the premise that the stipulations agreed

to by the appellant, trial defense counsel, and the prosecution

were confusing to the court and should not have been admitted

The three stipulations complained of were literally the last bit

of evidence presented in this trial of almost five months. Each

stipulation began with the preamble that the facts or testimony

contained in the document was ‘‘stipulated and agreed [to] by

and between the trial counsel and defense counsel with the

express consent of the accused.”’ All in all, 17 stipulations were

offered by the parties and admitted into evidence. In the last

three the trial judge did not question the appellant as required by

Cambridge.

This oversight did not prejudice the appellant. Where the

stipulation is strictly procedural, or where, as here, the appellant

has previously been advised about the same type of stipulation,

the advice may be curtailed or omitted, in the judge’s discre-

tion. United States v. Gonzalez, 14 MJ. 50i, 505 n. 8

(A.F.C.M.R. 1982) (emphasis added)

We conclude the trial court did not err in admitting stipula-

tions agreed to by all parties even though appellate counsel now

considers them confusing and not helpful to the members

S6a

TEMPORARY ABSENCE OF LEAD COUNSEL

Appellate defense counsel argue that it was to the appellant’s

‘‘substantial detriment’’ that during the initial Article 39(a)

session the appellant was represented only by the assistant

defense counsel and not the lead counsel

in the out-of-court session on 29 June 1987, appellant specifi-

cally waived his lead counsel’s presence. Additionally, the record

indicates the appellant knew why lead counsel was unable to

attend that 2 hour portion of the proceedings

R.C.M. 805(c) states ‘‘As long as at least one qualified

counsel for each party is present, other counsel for each party

may be absent from a court-martial session.’’ Thus, no error

was created by the absence of lead counsel, and even assuming

error, it was neither jurisdictional nor prejudicial. Further, ap-

pellate defense counsel has not directed our attention to any

failure on the part of the assistant defense counsel to take any

necessary action on behalf of the appellant. U/nited States v

Batts, 3 M.J. 440 (C.M.A. 1977)

IMPROPER REBUTTAL AND CONSCIOUSNESS OF GUILT

Appellate defense contend the trial judge erred when he

allowed the prosecution to show that Mansfield had made 114

requests to use the law library at the United States Disciplinary

Barracks (USDB). Citing Bounds v. Smith, 430 U.S. 817 (1977),

the defense claims that since prisoners have a constitutional

right of access to courts, the prosecution sought to penalize the

appellant for exercising his right to use the law library. Appel-

late counsel analogize the evidence as commenting on an

accused’s right to plead not guilty or not to testify

On the other hand, the government argued at trial that the

testimony and documentary evidence was relevant as it ex-

plained how the appellant was able to educate himself on the

defense of lack of mental responsibility

S7a

To be admissible, evidence must be relevant and not too

remote in time so as to be probative. Mil.R Evid. 401: see also

United States v. Teeter, 16 MJ. 68 (1983). We are aware. of

course, of the trial judge’s broad discretion in admitting or

excluding evidence under Mil. R. Evid. 403. See United States v.

Jackson, 22 MJ. 604 (ACMR 1986). However, here we

conclude the trial court abused its discretion in admitting the

appellant's many requests to use the law library. The possibility

that the appellant may have used such visits to manufacture a

defense is too remote to justify its admission as rebuttal evi-

dence

While we find error, our examination of the record convinces

us that the prejudicial impact of this evidence is nil. Two defense

psychiatrists first broached this subject on direct and cross-

examination. There was no objection by the defense at this time

Thus, the members were already aware of the appellant’s use of

the law library before the government offered more extensive

evidence in rebuttal. Further, all aspects of the appellant’s men-

tal state were testified to by expert witnesses on both sides. and

the ability of a patient to fabricate a mental disorder had already

been discussed

In a related assigned error, appellate defense counsel main-

tain the trial judge erred when he admitted evidence offered as

‘“consciousness of guilt.’’ The testimony is of Technical Ser-

geant Smith, a friend of the appellant, who, after the first trial

and through idle curiosity, asked the appellant if he had commit-

ted the offense. According to Smith, the appellant responded,

‘I can’t say yes, and I can’t say no, because there is going to be

a round two.”’

Trial defense counsel's only objection was to the second half

of the statement, ‘‘because there is going to be a round two.”’

The defense contended that this testimony unnecessarily refer-

enced the earlier trial and penalized the appellant for exercising

his appellate rights. Thus, it posed the danger of ‘‘unfair preju-

58a

dice, confusion of issues, and the risk of misleading the court-

members.”’

Admitting evidence tending to show the accused’s conscious-

ness of guilt is an accepted principle of military jurisprudence

United States vy. Borland, 12 M.J. 855 (A.F.C.M.R. 1981). It is

within the trial judge’s discretion whether to admit evidence

offered as consciousness of guilt. Here, the judge erred in

admitting such evidence. The appellant's statement in its en-

tirety was so ambiguous that it could hardly be construed to

show consciousness of guilt. At most it was the equivalent of

saying ‘‘no comment.’ The reference to ‘‘round two’ was

innocuous because the hearing in which the statement was

repeated was the ‘‘round two,”’ i.e., a new trial

Even though the testimony should have been ruled inadmis-

sible, the impact, if any, was minor. The very ambiguity of the

statement makes it unlikely the court-members attached any

significance to it. Further, there was no reference to it by trial

counsel in the final argument. The admission of the evidence

was harmless error. United States v. Peel, 29M.J. 235 (C.M.A

(1989)), cert. denied, 493 U.S. 1025, 110 S.Ct. 731, 107

L.Ed.2d 750 (1990)

UNCHARGED MISCONDUCT

The appellant’s sister testified for the defense. On cross-

examination she stated that the appellant visited her in Arizona

while she was in the hospital and that the appellant, while still on

leave, then went to California for a short time

Trial defense counsel objected to this disclosure on the basis

of relevancy and that it was evidence of uncharged misconduct

Addressing the second ground first, this is not a situation in-

volving uncharged misconduct. The Leave Request/Authoriza-

tion Form does not require a military member to be at the leave

address. He only must be able to be contacted at that leave

address. See Form 988, Aug 86, Leave Request/Authorization,

59a

Part II, Section II, Item 6. Here the appellant, while in Califor-

nia, called his supervisor and gave him the phone number where

he could be reached. Thus, the appellant was in full compliance

with the governing regulation

he trial judge initially agreed that the prosecution's argu-

ment that the appellant's actions in going to California indicated

‘manipulative behavior’’ was ‘‘stretching relevancy’’ to the

limit. Accordingly, he sustained the defense objection. Later, he

reversed himself, and admitted the evidence

he trial yudge should have adhered to his original ruling. We

find it difficult to accept the prosecution's argument at trial that

the appellant manipulated his sister's operation for the purpose

of going to California, that such behavior is typical for the

appellant, and that is relevant. Appellate government counsel

expand this argument by claiming that ‘‘the evidence of the

appellant's leave to visit his sister in Arizona ts relevant because

it supports [its] theory concerning mental responsibility by show-

ing the appellant is the type of person who uses people and

situations for his own ends.’’ We also have difficulty accepting

this basis for admission of the evidence. We hold the admitted

evidence did not meet the relevancy test, and the trial judge

erred by admitting it

Having determined that, we conclude that admission of the

evidence was harmles error. The appellant's claim that he was

not mentally responsible at the time of the offense was examined

on all sides by expert witnesses. The likelihood that the mem-

bers were prejudicially influenced by the fact that, while on

leave in Arizona, the appellant also went to California for a

short time is minimal

VOIR DIRE

Appellate defense counsel claim the appellant was denied due

process of law when the trial judge, over defense objection,

questioned the members during voir dire on an insanity defense

that was not necessarily going to be raised

60a

This assigned error borders on the frivolous for several rea-

sons. First, even a casual reading of our decision in Mansfield /

would suggest that an insanity defense would be the key issue at

any new trial. Trial defense counsel recognized this. As early as

5 June 1987, they requested the employment of three civilian

psychiatrists, and in that request stated they expected that the

lack of mental responsibility would be a major issue in the trial

The allied papers in this record are replete with correspondence

from the defense, before the trial began, requesting the prosecu-

tion to arrange compensation and travel for the defense psychia-

trists. These circumstances belie the appellant’s later claim that

‘‘an insanity defense was not necessarily going to be raised.’’

Second, this court, and the Court of Military Appeals, along

with other federal appellate courts, have long held that a trial

judge is allowed the widest possible latitude in the manner and

extent of the questioning on voir dire. United States v. Robinson,

475 F.2d 376 (D.C Cir. 1973), United States v. Smith, 27 M.J

25 (C.M.A. 1988), United States v. kreeman, 15 U.S.C.M.A

126,35 C.MR. 98 (1964). United States v. Nixon, 30 M.J. 501

(A F.CM.R. 1989), pet. demed 31 M.J. 435 (C_M.A. 1990),