Appendix — Loving v. Hart

Supreme Court brief1998

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THE FOLLOWING PAGES WERE POOR HARD COPY

AT THE TIME OF FILMING. LY AND WHEN A

BETTER COPY CAN BE OBTAINED, A NEW FICHE

WILL BE ISSUED.

(3) Supreme Court, U.S.

FILED

No. .

OS S51 avez -1998

IN THE QENGE GF THE CLERK

Supreme Court of the United States

OCTOBER TERM, 1998

No. 98-5

DWIGHT J. LOVING, PETITIONER

WILLIAM L. HART, COMMANDANT,

UNITED STATES DISCIPLINARY BARRACKS, AND THE

UNITED STATES OF AMERICA, RESPONDENT

APPENDIX TO THE PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE ARMED FORCES

John H. Blume*

i P.O. Box 11744

Pe Columbia, SC 29211

Hi (803) 765-1044

Teresa L. Norris

Center for Capital Litigation

P.O. Box 11311

Columbia, SC 29211

(803) 765-0650

Attorneys for Petitioner

*Counsel of Record

TABLE OF CONTENTS

Page

APPENDIX A—Loving v. Hart, 47 M.J. 438 (1998). ..... la

APPENDIX B—Court of Appeals for the

Armed Forces Order Denying Petition for

Reconsideration (April 9, 1998) ..................00. 49a

APPENDIX C—United States v. Loving,

CORO ede oe whys Wie ou Eade eeu deus 50a

APPENDIX D—Court of Appeals for the

Armed Forces Order Denying Petition for

Reconsideration (February 2, 1995)................. 289a

APPENDIX E—Court of Appeals for the

Armed Forces Order Denying Petition for

Reconsideration (February 26, 1998)................ 291a

APPENDIX F—Rule for Courts-Martial 1004

(Prior to 1991 Amendment), ...................... 293a

APPENDIX G—Rule for Courts-Martial 1006 ........ 299a

APPENDIX H—Record pages 1473-83

(Portion of Guilt-or-Innocence Phase Instructions) .... . 303a

APPENDIX I—Record pages 1863-87

(Sentencing Phase Instructions) .................... 3lla

APPENDIX J—wUnited States v. Thomas,

eR ee ee

APPENDIX A

DWIGHT J. LOVING, Private a

U.S. Army, Appellant

Vv.

WILLIAM L. HART, Colonel,

Commandant, United States Disciplinary Barracks;

and the United States, Appellees

No. 96-8022

Crim.App. No. 9601437

United States Court of Appeals for the Armed Forces

Argued December 17, 19967

Decided February 26, 1998

Counsel

For Appellant: John H. Blume (argued); Teresa L. Norris.

For Appellee: Major Lyle D. Jentzer (argued); Colonel John

Smith and Lieutenant Colonel Eva M. Novak.

Military Judge: Stephen V. Saynisch

Opinion of the Court

GIERKE, Judge:

A general court-martial convicted appellant, contrary to

his pleas, of premeditated murder, felony murder, attempted

murder, and robbery (5 specifications), in violation of Articles

118, 80, and 122, Uniform Code of Military Justice, 10 USC

§§ 918, 880, and 922, respectively. The court-martial

sentenced appellant to a dishonorable discharge, total

forfeitures, and to be put to death. On direct appeal appellant

~ raised 70 issues. After specifically addressing each issue, our

Court affirmed the decision of the Court of Military Review,!

which had affirmed the findings and sentence. 41 MJ 213, 229

(1994), modified on reconsideration, 42 MJ 109 (1995). The

Supreme Court affirmed our decision. 116 S.Ct. 1737 (1996).

After the Supreme Court’s decision, appellant filed a

petition for extraordinary relief in the nature of a writ of

mandamus with the Court of Criminal Appeals, electing to

raise only one issue: that he was entitled to extraordinary

relief because his death sentence was based in part on a

conviction of felony murder that was unsupported by a

unanimous finding of intent to kill or reckless indifference to

human life. The Court of Criminal Appeals summarily denied

relief in an unpublished order dated September 9, 1996.

Appellant then filed a writ-appeal petition with this Court,

which we granted on November 5, 1996, and set the petition

for oral argument. For the reasons set out below, we affirm the

decision of the Court of Criminal Appeals denying the

petition for extraordinary relief. At appellant’s court-martial

members unanimously found that the following three

aggravating factors were proved beyond a reasonable doubt:

1. .... The premeditated murder of Bobby Gene

Sharbino was committed while the accused was

engaged in the commission or attempted

commission of a robbery.

2... . Having been found guilty of the felony

murder of Christopher Fay as set forth in

specification 3 of Charge I, the accused was the

actual perpetrator of the killing.

'See 41 MJ 213, 229 n.* (1994).

3... . Having been found guilty of premeditated

murder of Bobby Gene Sharbino, the accused was

also found guilty of another violation of Article 118,

UCMJ, in the same case.

41 MJ at 301. In accordance with RCM 1004(b)(4)(C),

Manual for Courts-Martial, United States (1995 ed.),? the

members also unanimously found that any extenuating and

mitigating circumstances were substantially outweighed by

any aggravating circumstances. 41 MJ at 302.

In our direct review of this case, we agreed with the

Court of Military Review’s conclusion that the number of

aggravating factors did not affect the decision of the court-

martial to impose the death sentence. 41 MJ at 268.

During oral argument before the Supreme Court, Justice

Scalia questioned the constitutional validity of Article 118(4)

because it is punishable by death but does not require an

intent to kill. Tr. Oral Arg. at 8-14. In its decision, the

Supreme Court said:

Article 118 (4) by its terms permits death to be

imposed for felony murder even if the accused had

no intent to kill and even if he did not do the killing

himself. The Eighth Amendment does not permit

the death penalty to be imposed in those

circumstances. Enmund y. Florida, 458 U.S. 782,

801, 102 S.Ct. 3368, 3378-3379, 73 L.Ed. 2d 1140

(1982). As a result, additional aggravating factors

establishing a higher culpability are necessary to

save Article 118.

116 S.Ct. at 1742.

Appellant now argues that felony murder under Article

118(4) is constitutionally infirm as a capital offense because it

2This version of the rule was in effect at the time of the offense in 1988.

-does not require an intent to kill. He argues further that the

second aggravating factor--that he was the actual perpetrator

of the killing in the felony murder of Mr. Fay--is

constitutionally defective, because it is unsupported by a

unanimous finding of intent to kill or reckless indifference to

the value of human life. He argues that the errors were

prejudicial because the court members were told that there

were two death-eligible offenses when in fact there was only

one and that there were three aggravating factors when there

were only two. Defense Reply at 8. Appellant asks our Court

for “a writ of habeas corpus or other appropriate extraordinary

relief setting aside the death penalty . . . and ordering” a

sentencing rehearing. Writ-Appeal Petition at 5.

This Court has jurisdiction to act on appellant’s petition

for extraordinary relief and to issue a writ under the All Writs

Act, 28 USC §1651 (a). See Noyd v. Bond, 395 U.S. 683, 695

n. 7 (1969); Dettinger v. United States, 7 MJ 216 (1979);

United States v. Frischholz, 16 USCMA 150, 152, 36 CMR

306, 308 (1966).

The aggravating factor at issue in appellant’s case is the

so-called “triggerman” factor. The version in effect at the time

of appellant’s trial read as follows: “That only in the case of a

violation of Article 118(4), the accused was the actual

perpetrator of the killing.” RCM 1004(c)(8), Manual for

Courts-Martial, United States, 1984 (Change 2, 1986).° The

members specifically found that appellant was the “actual

perpetrator of the killing.” 41 MJ at 301.

When analyzing an appellant’s assertion that an

aggravating factor is invalid, “it is essential to keep in mind

the sense in which . . . [it] is ‘invalid.’” Zant v. Stephens, 462

Except for references to RCM 1004(c)(8), all references to RCMs are to

the 1995 edition of the Manual for Courts-Martial, which contains the

version in effect at the time of the offenses.

U.S. 862, 885 (1983). Some Supreme Court decisions on

“invalid” aggravating factors involve procedural or

evidentiary errors resulting in erroneous admission of

aggravating evidence or exclusion of mitigating evidence.

See, e.g., Tuggle v. Netherland, 116 S.Ct. 283 (1995)

(defendant erroneously denied expert assistance to rebut

psychiatric evidence of future dangerousness). In this writ

appeal appellant does not assert that inadmissible evidence

was considered on sentencing or that mitigating evidence was

erroneously excluded.

Some Supreme Court cases involve aggravating factors

that are too vague. See, e.g., Maynard v. Cartwright, 486 U.S.

356 (1988) (“especially heinous, atrocious, or cruel”

aggravating circumstance too vague). Appellant does not

assert that the “actual perpetrator” factor is too vague.

Instead, appellant asserts that the term, “actual

perpetrator of the killing,” is too broad and thus fails to

“genuinely narrow the class of persons eligible for the death

penalty.” Writ-Appeal Petition at 7, 12; see Zant, 462 U.S. at

877; see also Godfrey v. Georgia, 446 U.S. 420, 428-29

(1980) (phrase “outrageously or wantonly vile, horrible or

inhuman” too broad “because a person of ordinary sensibility

could find ‘that almost every murder fit the stated criteria’).

Quoting the Ninth Circuit in United States v. Cheely, 36 F.3d

1439, 1443 n. 9 (1994), he argues that “[t]he least culpable

mental state the Supreme Court has held death-eligible is

reckless indifference to human life during commission of a

felony.” Writ-Appeal Petition at 8.

In assessing the impact of a factor alleged to be invalid,

it is necessary to determine where in the sentencing process

the alleged error occurred. We recognized in our direct review

of this case that the various jurisdictions where capital

punishment is authorized fall into two general categories:

“weighing” and “nonweighing” jurisdictions. We explained:

A “weighing” state balances extenuating and

mitigating circumstances against statutory

aggravating factors. A “nonweighing” state requires

that a statutory aggravating factor be found in order

to adjudge a death sentence, but does not require

that it be weighed against extenuating and

mitigating circumstances.

41 MJ at 248 (RCM 1004 combines procedures of weighing

and nonweighing jurisdictions).

The military capital sentencing procedure set out in

RCM 1004 and 1006 establishes four “gates” to narrow the

class of death-eligible offenders. The first two gates parallel

nonweighing jurisdictions in that the members must convict

by unanimous vote (RCM 1004(a)(2)) and then find at least

one aggravating factor by unanimous vote (RCM

1004(b)(4)(A)). Only after these two gates are passed does the

weighing process begin. The third gate is a “weighing” gate,

where the members must all “concur” that extenuating and

“mitigating circumstances are substantially outweighed by

any aggravating circumstances,” including the aggravating

factors under RCM 1004(c). See RCM 1004(b)(4)(C). Only

after these three gates are passed does an accused become

“death eligible.”

The fourth and final gate is the sentencing decision itself

under RCM 1006. Even if all members concur that

extenuating and mitigating circumstances are substantially

outweighed by aggravating circumstances, they must

separately consider whether to impose the death sentence. A

death sentence requires the unanimous vote of all members.

RCM 1006(d)(4)(A).

The pivotal issue in this case is whether there was any

error at the second gate, in connection with the court-martial’s

finding with respect to the second aggravating factor: that

appellant was “the actual perpetrator of the killing.”

Accordingly, we first consider whether there was any error at

this gate and then evaluate whether any error tainted the death

sentence.

Several general principles guide us in determining

whether capital sentencing procedures pass constitutional

muster. First, sentencing standards “must genuinely narrow

the class of persons eligible for the death penalty.” Second,

the standards “must reasonably justify the imposition of a

more severe sentence on the defendant compared to others

found guilty of murder.” Zant, 462 U.S. at 877; see also

Tuilaepa v. California, 512 U.S. 967, 972, 114 S.Ct. 2630,

2635 (1994); Arave v. Creech, 507 U.S. 463, 474, 113 S.Ct.

1534, 1542 (1993). Third, the standards must provide

“reliability in the determination that death is the appropriate

punishment.” Zant, supra at 884-85. Finally, in order to

ensure reliability, the process must “make rationally

reviewable the process for imposing a sentence of death.”

Tuilaepa, 512 U.S. at 973, 114 S.Ct. at 2635, quoting Arave,

507 U.S. at 471, 113 S.Ct. at 1540. In most cases, the

requirement that the process be “rationally reviewable” is

satisfied by requiring specific answers to questions “with a

factual nexus to the crime or the defendant.” 512 U.S. at 973,

114 S. Ct. at 2635.

Stringer v. Black, 503 U.S. 222, 232 (1992), held that

when the weighing process is “skewed” by consideration of

an invalid factor, “only constitutional harmless-error analysis

or reweighing at the trial or appellate level suffices to

guarantee that the defendant received an individualized

sentence.”

Clemons v. Mississippi, 494 U.S. 738, 754 (1990), held

that appellate reweighing or harmless-error analysis is

constitutionally permissible, unless “peculiarities in a case

make appellate reweighing or harmless-error analysis

extremely speculative or impossible.” Although Clemons held

that appellate reweighing is constitutionally permissible,

whether a specific appellate court has authority to reweigh is

determined by the law of the jurisdiction. After Clemons was

remanded to the Mississippi Supreme Court, that court

decided that it did not have authority to reweigh. 593 So. 2d

1004 (1992); see also Reeves v. Hopkins, 871 F. Supp. 1182,

1195 (D.Neb. 1994) (appellate resentencing constitutionally

permitted but may be done only if state law permits it), rev’ d

in part, 76 F.3d 1424, 1427 (8th Cir. 1996).

Enmund y. Florida, 458 U.S. 782, 796-97 (1982), held

that the Eighth Amendment was violated by imposition of the

death penalty on a person who aided and abetted a felony

murder by driving the getaway car in a robbery, but who did

not himself kill or intend to kill. Enmund held that a death

sentence under those circumstances was excessive and

disproportionste.

Tison v. Arizona, 481 U.S. 137, 158 (1987), held that the

culpability requirement imposed by Enmund could be

satisfied by “major participation in the felony committed,

combined with reckless indifference to human life.” In Tison

the trial court had specifically found that the defendant’s

participation in the felony murder was “substantial” but made

no specific finding that the defendant exhibited reckless

indifference to human life. The Supreme Court remanded the

case for a specific finding of the latter.

Justice O’Connor, writing for the five Justices in the

Tison majority, placed Enmund at the low end of the

spectrum of culpability. 481 U.S. at 149. Justice O’Connor

observed that the Court in Enmund also “dealt with the other

polar case: the felony murderer who actually killed, attempted

to kill, or intended to kill.” She stated that the Court in

Enmund “clearly held that the equally small number of

jurisdictions that limited the death penalty to these

circumstances [actually killed, attempted to kill, or intended

to kill] could continue to exact it.” 481 U.S. at 150.

Notwithstanding Justice O’Connor’s description of the

Enmund holding, the Court’s holding in Tison is limited to the

question whether “major participation in the felony

committed, combined with reckless indifference to human

life, is sufficient to satisfy the Enmund culpability

requirement.” The Court declined “to precisely delineate the

particular types of conduct and states of mind warranting

imposition of the death penalty here.” 481 U.S. at 158.

Neither Enmund nor Tison involved an actual killer.

Thus, left unanswered after Enmund and Tison is the question

whether a person who “actually killed” may be sentenced to

death absent a finding that the person intended to kill. As

highlighted by Justice Scalia in the Loving oral argument, the

phrase “actually killed” could include an accused who

accidentally killed someone during commission of a felony,

unless the term is limited to situations where the accused

intended to kill or acted with reckless indifference to human

life. We note that Justice White, who wrote the majority

opinion in Enmund and joined the majority opinion in Tison,

had earlier written separately in Lockett v. Ohio, 438 U.S. 586

(1978), expressing his view that “it violates the Eighth

Amendment to impose the penalty of death without a finding

that the defendant possessed a purpose to cause the death of

the victim.” 438 U.S. at 624. Without speculating on the

views of the current membership of the Supreme Court, we

conclude that when Enmund and Tison were decided, a

majority of the Supreme Court was unwilling to affirm a

death sentence for felony murder unless it was supported by a

finding of culpability based on an intentional killing or

substantial participation in a felony combined with reckless

indifference to human life. Thus, we conclude that the phrase,

“actually killed,” as used in Enmund and Tison, must be

10a

construed to mean a person who intentionally kills, or

substantially participates in a felony and exhibits reckless

indifference to human life.

The version of RCM 1004(c)(8) in effect at the time of

trial contained the phrase, “actual perpetrator of the killing.”

According to the 1991 amendment to the Drafters’ Analysis of

this Rule, it was based on the Supreme Court’s holding in

Enmund. See Manual, supra (1995 ea.) at A21-73. RCM

1004(c)(8) had been amended in 1991, after appellant’s trial,

to cover persons other than the one who “actually killed” and

to incorporate the Supreme Court’s decision in Tison.

Drafters’ Analysis, supra.

The requirement of Zant, 462 U.S. at 877, to “genuinely

narrow the class of persons eligible for the death penalty” is

met in felony-murder cases only if there is a rational

connection between the level of culpability and the narrowing

process. In short, only the most culpable should be death

eligible. When Congress enacted Article 118, it made a

legislative determination that only premeditated murder under

Article 118(1) and felony-murder under Article 118(4) are

punishable by death. However, unpremeditated murder under

Article 118(2), which includes intentional killings, is not

punishable by death. Thus, unless we interpret Article 118(4)

to apply only to cases involving intentional killing or reckless

indifference to human life, we create the anomaly of the

accidental killer being death eligible under Article 118(4) but

the intentional killer not being death eligible under Article

118(2). This interpretation would allow the death penalty for

the person who unintentionally kills by firing through the

ceiling during a robbery in an effort to scare the victim or

someone whose intended victim dies of a heart attack during a

robbery, but it would not permit the death penalty for a person

who, without premeditation, intentionally kills. We believe

that such an interpretation of Article 118 and the aggravating

cial

lla

factors under RCM 1004 would violate Zant’s requirement

that the aggravating factor “reasonably justify the imposition

of a more severe sentence on the defendant compared to

others found guilty of murder.” 462 U.S. at 877.

Based on the foregoing analysis, we conclude that

felony-murder under Article 118(4) can pass constitutional

muster as a capital offense only if it is combined with an

aggravating factor sufficient to satisfy the narrowing

requirement of Zant v. Stephens, supra, and culpability

requirements of Enmund and Tison. Although Enmund and

Tison were decided on the basis of proportionality and did not

decide the validity of an aggravating factor, the culpability

requirement is part and parcel of the narrowing process

required by Zant in felony-murder cases.

In Godfrey v. Georgia, 446 U.S. 420 (1980), a plurality

of the Supreme Court suggested that an otherwise overly

broad aggravating factor can be made constitutionally

acceptable if state courts apply a constitutionally sufficient

interpretation and narrow the factor by appropriate jury

instructions. Jd. at 429-32. An aggravating factor passes the

constitutional-vagueness test “if it has some ‘common-sense’

core of meaning . . . that criminal juries should be capable of

understanding.’” Tuilaepa, 512 U.S. at 973, 114 S.Ct. at 2636.

Thus, we hold that the aggravating factor in RCM

1004(c)(8)--that appellant was the “actual perpetrator of the

killing”--is constitutionally valid on its face, provided that it is

understood to be limited to a person who kills intentionally or

acts with reckless indifference to human life.

In appellant’s case the court members unanimously

found that appellant was the “actual perpetrator of the

killing.” For the reasons set out below, we are satisfied that in

this case the court members understood the term to mean an

intentional killing.

12a

The issue is before us in this case because the military

judge did not define the term “actual perpetrator of the

killing.” Defense counsel did not request that he do so or

object to the lack of definition. Thus, we must determine

whether there was a deficiency in the military judge’s

instructions that undermines the validity of the finding that

appellant was the “actual perpetrator of the killing.” We hold

that the military judge’s failure to define the term was not

error under the particular facts of this case. 4

Neither the aggravating factors nor the Enmund/Tison

culpability requirement are elements of the offense. See

Walton v. Arizona, 497 U.S. 639, 648-49 (1990). Thus,

definition of the term, “actual perpetrator of the killing,” was

not a required instruction unless it was “necessary” under

RCM 920(e)(7), which requires “[s]uch other explanations,

descriptions, or directions as may be necessary and which are

properly requested by a party or which the military judge

determines, sue sponte, should be given.” Under RCM 920(f),

“[flailure to object . . . to omission of an instruction. . .

constitutes waiver . . . in the absence of plain error.” We need

not decide whether waiver or plain error applies to this case,

because we hold that the military judge’s failure to define

“actual perpetrator of the killing” was not error under the

particular facts of this case.

The overwhelming and uncontested evidence established

that appellant, acting alone, personally and intentionally killed

Mr. Fay. The defense did not assert that appellant shot Mr.

Fay accidentally or unintentionally. The Court of Military

Review described the killing of Mr. Fay as follows:

After entering the taxicab and after arriving at Fort

Hood, appellant directed the driver to park in a dark

‘Notwithstanding our holding in this case, we strongly urge military

judges in future cases to define the term “actual perpetrator of the killing”

to avoid this appellate issue.

13a

secluded area behind the barracks. He produced a

pistol, held the pistol to the driver’s head, ordered

the driver to shut off the car’s motor and lights, and

demanded all the driver’s money. After replying

“bullshit” to the driver’s protests that he had

surrendered all of the money, appellant shot the

driver in the back of the head. While looking at the

hole in the back of the victim’s head and the blood

“gushing out,” appellant cocked the pistol and shot

him in the back of the head again.

34 MJ at 959. In our direct review of this case, we described

the facts similarly:

After receiving an unknown amount of money from

Fay, appellant shot him in the back of the head.

While watching the blood “gushing out” of the back

of Fay’s head, appellant shot him in the back of the

head a second time.

41 MJ at 229.

Under these facts, there is no reasonable possibility that the

court members understood the term “actual perpetrator of the

killing” to mean anything other than an intentional killing. A

reasonable factfinder at either the trial or appellate level could

come to no other conclusion, because there simply was no

issue of fact to be resolved. The issue of an accidental or

unintentional killing was not raised. Thus, we hold that no

clarifying instruction was required. See United States v.

Ferguson, 15 MJ 12, 19-21 (CMA 1983) (defense of accident

not raised by the evidence). Even assuming arguendo that an

instruction defining “actual perpetrator of the killing” should

have been given, we are satisfied that such a deficiency was

harmless beyond a reasonable doubt because it could not

possibly have affected the court-martial’s finding of the

aggravating factor. See People v. Osband, 919 P. 2d 640, 678

l4a

(Cal. 1996) (error in failing to instruct jury that special

circumstance includes an intent to kill was “harmless when

‘the evidence of defendant’s intent to kill . . . was

overwhelming, and the jury could have had no reasonable

doubt on that matter.’”’); State v. Breedlove, 655 So. 2d 74, 76-

77 (Flat 1995) (instructional error harmless where “aggravator

clearly existed and would have been found even if the

requested instruction had been given’’).

In an appropriate case we could remand to the Court of

Criminal Appeals for a specific finding of culpability, as the

Supreme Court did in Tison. See Cabana v. Bullock, 474 U.S.

376, 392 (1986) (state appellate court may make culpability

finding required by Enmund). In view of the complete absence

of any factual issue on this matter, and our conclusion that

any instructional deficiency was harmless beyond a

reasonable doubt, no remand is required.

Finally, assuming arguendo that there was a deficiency in

the military judge’s instructions regarding the

“actualperpetrator” factor, we are satisfied beyond a

reasonable doubt that any such deficiency did not affect the

sentencing process. The issue with respect to the “actual-

perpetrator” factor arose at the second gate of determining

“death eligibility,” before the weighing process began. When

there is a defective aggravating factor in the “nonweighing”

phase of the sentencing process, the error does not require

reversal where there is at least one other valid aggravating

factor. As the Supreme Court held in Stringer, 503 U.S. at

232, 112 S.Ct. at 1137: “[S]o long as the sentencing body

finds at least one valid aggravating factor, the fact that it also

finds an invalid aggravating factor does not infect the formal

process of deciding whether death is an appropriate penalty.”

Because at least one other valid aggravating factor was found

in this case, we hold that any instructional deficiency

concerning the “actual-perpetrator” factor did not affect the

a i aa RR Seiad Loe

15a

nonweighing phase of the sentencing process. We turn next to

the weighing phase of appellant’s sentencing. The Supreme

Court set the standard of review in Stringer v. Black, supra, as

follows:

But when the sentencing body is told to weigh an

invalid factor in its decision, a reviewing court may

not assume it would have made no difference if the

thumb had been removed from death’s side of the

scale. When the weighing process itself has been

skewed, only constitutional harmless-error analysis

or reweighing at the trial or appellate level suffices

to guarantee that the defendant received an

individualized sentence.

503 U.S. at 232, 112 S.Ct at 1137.

For the reasons set out below, we hold that no appellate

reweighing is required because the error was harmless beyond

a reasonable doubt. Thus, we do not reach the question

whether this Court or a Court of Criminal Appeals has the

legal authority to reweigh.

Harmless-error analysis necessarily requires review of

the entire record, including examination of the aggravating

circumstances (including the aggravating factors) and

mitigating circumstances that were presented to the

sentencing authority. Even if the court-martial’s finding

regarding the “actual-perpetrator” factor was defective,

appellant’s role as the “actual perpetrator of the killing” was

properly considered by the members as an aggravating

circumstance. See RCM 1004(b)(4)(C). In effect, any error

resulted only in the triggerman circumstance being mislabeled

as a factor, but the facts and circumstances were properly in

the balance and were unchanged. Thus, any defect in the

court-martial’s finding concerning the “actual-perpetrator”

factor did not put a “thumb” on “death’s side of the scale”

16a

because the same facts and circumstances remained on the

same sides of the scale. Stringer, supra at 232. While in some

circumstances a change of labels may change the weight to be

given to evidence, we are satisfied that changing appellant’s

role as the “actual perpetrator” from a “factor” to a

“circumstance” neither adds to nor detracts from its weight.

Since the balance of aggravating and mitigating circumstances

was unchanged, we are satisfied beyond a reasonable doubt

that any error was harmless, because any mislabeling could

have had no impact on the court members’ decision to impose

the death sentence. See Zant, 462 U.S. at 888-89 (mislabeling

aggravating circumstance as a “statutory” circumstance had an

“inconsequential impact” on sentencing where evidence was

otherwise admissible and jury was instructed to consider all

facts and circumstances in extenuation, mitigation, and

aggravation); see also Hampton v. Page, 103 F. 3d 1338, 1345

(7th Cir. 1997) (mislabeling nonstatutory aggravator as

statutory harmless; sentencer “free . . .to consider the conduct,

regardless of how it was labeled”).

Appellant argues, however, that the error is not harmless

beyond a reasonable doubt because we cannot be sure that the

. members were not influenced by the fact that appellant was

being sentenced for two capital offenses instead of one and

the presence of three aggravating factors instead of two. For

the reasons set out above, we hold that appellant was

convicted of a capital felony-murder that satisfies the

proportionality requirements of Enmund and Tison. We

further hold that the “actual-perpetrator” factor in RCM

1004(c)(8) is facially valid and was applied in-a

constitutionally permissible manner in this case. Thus, to the

extent that number of offenses and aggravating factors

influenced the sentencing decision, we hold that the court

members properly considered two capital offenses and three

aggravating factors.

17a

Finally, even if we assume arguendo that there is some

deficiency in the findings based on the military judge’s failure

to define the term, “actual perpetrator of the killing,” we are

satisfied beyond a reasonable doubt that appellant’s sentence

was not affected by numerical counting of offenses, factors, or

circumstances. See Loving, 41 MJ at 268. The only

identification of capital offenses occurred during the military

judge’s procedural instructions for voting on findings.

Although special findings were required on the three

aggravating factors submitted by the prosecution, the entire

emphasis by counsel for both sides during the sentencing

proceedings was on the facts and circumstances of the

offenses and the background of appellant, not on the number

of capital offenses or aggravating factors. Neither counsel

made reference to the number of capital offenses or

aggravating factors in their sentencing arguments. Although

the military judge instructed the members that they must find

at least one aggravating factor, the military judge’s

identification of capital offenses was so minimal that

appellant assigned as error on direct review the failure of the

military judge to identify which offenses were capital

offenses. See 41 MJ at 252; see also Davis v. Executive

Director of Department of Corrections, 100 F.3d 750, 774

(10th Cir. 1996) (examines judge’s instructions to determine if

number of aggravating factors affected sentence); White v.

Singletary, 972 F.2d 1218, 1226-27 (11th Cir. 1992)

(upholding state’s harmlesserror analysis after two of four

aggravating factors held invalid); Jackson v. State, 498 So. 2d

406, 411 (Flat 1986) (double counting of aggravating factors

harmless; “sentencing statute requires a weighing rather than

a mere tabulation of factors in aggravation and mitigation”).

Accordingly, we are satisfied beyond a reasonable doubt that

the number of capital offenses and number of aggravating

factors had no impact on the sentencing deliberations and that

18a

the mislabeling of the triggerman circumstance as a “factor”

was likewise harmless beyond a reasonable doubt.

The decision of the United States Army Court of

Criminal Appeals denying the petition for extraordinary relief

is affirmed.

Chief Judge COX and Judge CRAWFORD concur.

SULLIVAN, Judge (concurring in part and in the result):

The majority opinion is close to the right path and is

walking basically in the right direction in this case. Generally,

I agree with that opinion’s analysis and conclusion that any

error in use of RCM 1004(c)(8), Manual for Courts-Martial,

United States, 1984, as an aggravating factor in this case was

harmless beyond a reasonable doubt. Stringer v. Black, 503

U.S. 222, 232, 112 S.Ct. 1130, 1137 (1992); United States v.

Loving, 41 MJ 213, 268 (1994); but cf United States v. Curtis,

32 MJ 252, 270 (CMA 1991)(remand to lower appellate court

to consider effect of invalid aggravating factor); United States

v. McCullah, 76 F.3d 1087, 1111-12 (Oth Cir. 1996).

Nevertheless, I would also hold that RCM 1004(c)(8) (“actual

perpertrator [sic] ['] of the killing”) is a valid aggravating

factor which permits imposition of the death penalty for

felony murder in this case. Curtis, supra at 265; Calhoun v.

State, 468 A.2d 45, 74 (Md. 1983).

Background

Article 118, Uniform Code of Military Justice, 10 USC

918, proscribes the crime of murder and delineates those

murders which are capital. It stated at the time of appellant’s

offenses:

'The version of this Rule applicable at trial misspells “perpertrator.” I will

use the correct spelling (perpetrator) in quoting the rule.

19a

§ 918. Art. 118. Murder

Any person subject to this chapter who,

without justification or excuse, unlawfully kills a

human being, when he

(1) has a premeditated design to kill;

(2) intends to kill or inflict great bodily harm;

(3) is engaged in an act which is inherently

dangerous to others and evinces a wanton disregard

of human life; or

(4) is engaged in the perpetration or attempted

perpetration of burglary, sodomy, rape, robbery, or

aggravated arson;

is guilty of murder, and shall suffer such

punishment as a court-martial may direct, except

that if found guilty under clause (1) or (4), he shall

suffer death or imprisonment for life as a court-

martial may direct.

(Emphasis added.) Petitioner stands convicted before this

Court of two capital violations of this statute: the

premeditated murder of Bobby Sharbino (Article 118(1)) and

the felony murder of Christopher Fay (Article 118(4)). See 41

MJ at 231-32.

In Loving v. United States, _U.S._, 116 S.Ct. 1737,

1742 (1996), the Supreme Court, relying on Enmund v.

Florida, 458 U.S. 782, 801, 102 S.Ct. 3368, 3378-79, 73

L.Ed. 2d 1140 (1982), held that Article 118, to the extent it

delineated capital murder, violated the Eighth Amendment.

Justice Kennedy said:

[W]e agree with Loving, on the assumption that

Furman[v. Georgia, 408 U.S. 238, 92 S.Ct. 2726,

33 L.Ed.2d 346 (1972)] applies to this case, that

aggravating factors are necessary to the

20a

constitutional validity of the military capital-

punishment scheme as now enacted. Article 118

authorizes the death penalty for but two of the four

types of murder specified: premeditated and felony

murder are punishable by death, 10 U.S.C. 918(1),

(4), whereas intentional murder without

premeditation and murder resulting from wanton

and dangerous conduct are not, §§ 918(2), (3). The

statute’s selection of the two types of murder for the

death penalty, however, does not narrow the death-

eligible class in a way consistent with our cases.

Article 118(4) by its terms permits death to be

imposed for felony murder even if the accused had

no intent to kill and even if he did not do the killing

himself. The Eighth Amendment does not permit the

death penalty to be imposed in those circumstances.

Enmund v. Florida, 458 U.S. 782, 801, 102 S.Ct.

3368, 3378-3379, 73 L.Ed.2d 1140 (1982). As a

result, additional aggravating factors establishing a

higher culpability are necessary to save Article 118.

We turn to the question whether it violated the

principle of separation of powers for the President

to prescribe the aggravating factors required by the

Eighth Amendment.

(Emphasis added.) It further held that the President may

constitutionally prescribe the “aggravating factors

establishing a higher culpability” necessary to save Article

118, and he did so in RCM 1004(c). 116 S.Ct. at 1751.

Appellant’s court-martial unanimously found the

following Presidential aggravating factors existed in this case:

1... . The premeditated murder of Bobby

Gene Sharbino was committed while the accused

was engaged in the commission or attempted

commission of a robbery.

2la

2... . Having been found guilty of the felony

murder of Christopher Fay as set forth in

specification 3 of Charge I, the accused was the

actual perpetrator of the killing.

3. . . . Having been found guilty of

premeditated murder of Bobby Gene Sharbino, the

accused was also found guilty of another violation

of Article 118, UCMJ, in the same case.

41 MJ at 301. Our majority opinion in Loving pointed out:

These findings as to aggravating factors were

consistent with the court-martial’s unanimous

findings of guilty as to the premeditated murder of

Bobby Gene Sharbino (specification 2 of Charge I);

the felony murder of Bobby Gene Sharbino

(specification 4 of Charge I), which was later

dismissed as multiplicious; and the felony murder

of Christopher Fay (specification 3 of Charge I).

Id. at 267.

Appellant’s Argument

Appellant, before this Court, summarizes his argument

on this writ-appeal petition as follows:

It is now clear that Private Dwight J. Loving’s

death sentence violates the Eighth and Fourteenth

Amendments. [7] Because Private Loving was

convicted of felony murder pursuant to Uniform

Code of Military Justice, Article 118(4), 10 USC

§ 918(4) (1982) [UCMJ], and because aggravating

circumstance was that Private Loving was the

“trigger-man” in that felony murder (Manual for

The Fourteenth Amendment only applies to the States.

22a

Courts-Martial, United States, 1984, Rule for

CourtsMartial [RCM] 1004((c)(7)(B)(2)), his

sentence of death is incompatible with the Eighth

Amendment requirement that: “a capital-sentencing

scheme must ‘genuinely narrow the class of persons

eligible for the death penalty and must reasonably

justify the imposition of a more severe sentence on

the defendant compared to others found guilty of

murder.’” Lowenfield v. Phelps, 484 U.S. 231, 244

(1988) (quoting Zant v. Stephens, 462 U.S. 862, 877

(1983)). Writ-Appeal Petition at 1.

I can find no provision in the Manual for Courts-Martial,

United States, 1984, in effect at the time of appellant’s trial,*

which is designated RCM 1004(c)(7)(B)(2). However, the so-

called “triggerman” aggravating factor which he challenges is

found in RCM 1004(c)(8), Manual, supra. In pertinent part,

RCM 1004 stated at the time of trial:

only if the members find, beyond a reasonabie

doubt, one or more of the following aggravating

factors:

* * *

(7) That, only in the case of a violation of Article

118(1):

(A) The accused was serving a sentence of

confinement for 30 years or more or for life at the

time of the murder;

Appellant was tried between January and April 1989 at Fort Hood, Texas.

As we noted in United States v. Loving, 41 MJ 213, 232 (1994), a sentence

hearing was held in accordance with RCM 1004, Manual for Courts-

Martial, United States, 1984 (Change 2). (Change 3 to the Manual was

dated June 1, 1987, but did not amend the Change 2 version of RCM

1004).

23a

(B) The murder was committed while the

accused was engaged in the commission or

attempted commission of any robbery, rape,

aggravated arson, sodomy, burglary, kidnapping,

mutiny, sedition, or piracy of an aircraft or vessel,

or was engaged in flight or attempted flight after the

commission or attempted commission of any such

offense;

of receiving money or a thing of value;

(D) The accused procured another by means of

compulsion, coercion, or a promise of an advantage,

a service, or a thing of value to commit the murder;

(E) The murder was committed with the intent

to avoid or to prevent lawful apprehension or effect

an escape from custody or confinement;

(F) The victim was.the President of the United

States, the President-elect, the Vice President, or, if

there was no Vice President, the officer in the order

of succession to the office of President of the

United States, the Vice-President-elect, or any

individual who is acting as President under the

Constitution and laws of the United States, any

Member of Congress (including a Delegate to, or

Resident Commissioner in, the Congress) or

Member-of-Congress elect, justice or judge of the

United States, a chief of state or head of

government (or the political equivalent) of a foreign

nation, or a foreign official (as such term is defined

in section 1116(b)(3)(A) of title 18, United States

Code), if the official was on official business at the

time of the offense and was in the United States or

in a place described in Mil.R.Evid. 315(c) (2),

315(c)(3);

24a

(G) The accused then knew that the victim was

any of the following persons in the execution of

office: a commissioned, warrant, noncommissioned,

or petty officer of the armed services of the United

States; a member of any law enforcement or

security activity or agency, military or civilian,

including correctional custody personnel; or any

firefighter;

(H) The murder was committed with intent to-

obstruct justice;

(1) The murder was preceded by the intentional

infliction of substantial physical harm or prolonged,

substantial mental or physical pain and suffering to

the victim;

(J) The accused has been found guilty in the

same case of another violation of Article 118;

(8) That only in the case of a violation of Article

118(4), the accused was the actual perpetrator of

the killing[.]

(Emphasis added.)

I will address his arguments concerning the invalidity of

his death penalty in light of this Manual provision.

Disproportionate Punishment under

Enmund y. Florida, 458 U.S. 782 (1982)

A preliminary question this Court must decide is whether

imposition of the death penalty in appellant’s case is barred by

the Supreme Court’s disproportionate-punishment holding in

Enmund v. Florida, supra. See Kills on Top v. State, 928 P. 2d

182, 20004 (Mont. 1996); Deputy v. Taylor, 19 F.3d 1485,

1496-8 (3d Cir. 1994). There, the Supreme Court held, in the

25a

case of a felony murderer named Enmund, that imposition of

the death penalty “in the absence of proof that Enmund killed

or attempted to kill, and regardless of whether Enmund

intended or contemplated that life would be taken” violated

the Eighth Amendment. 458 U.S. at 801; see Cabana v.

Bullock, 474 U.S. 376, 386 (1986) (“Enmund . . . imposes a

categorical rule: a person who has not in fact killed, attempted

to kill, or intended that a killing take place . . . may not be

sentenced to death.”). Here, appellant was found guilty of the

premeditated murder of Bobby Sharbino, see Art. 118(1), in

addition to the felony murder of Christopher Fay. Therefore,

there was proof and a finding of an intent to kill beyond a

reasonable doubt in his case. See also Hutchins v. Garrison,

724 F. 2d 1425, 1435 n.14 (4th Cir. 1983)(holding that

Enmund does not “require any special mens rea for the

imposition of death on a person who actually committed a

killing and was convicted of first degree murder’).

In addition, the members made a unanimous finding

beyond a reasonable doubt based on overwhelming evidence

in the record that appellant actually perpetrated the killing of

Christopher Fay during the felony. See Brooks v. State, 655

A. 2d 1311, 1323 (Md. App. 1995); People v. Anderson, 742

P.2d 1306, 1326-27 (Cal. 1987)(Enmund and progeny hold

that Eighth Amendment not violated if person sentenced to

death “in fact killed” (emphasis added)). I see no violation of

Enmund and its progeny in these circumstances. See Tison v.

Arizona, 481 U.S. 137, 158 (1987)(“Only a small minority of

those jurisdictions imposing capital punishment for felony

murder have rejected the possibility of a capital sentence

absent an intent to kill, and we do not find this minority

position constitutionally required.”). Finally, the evidence in

this case overwhelmingly established appellant’s intent to kill

26a

Christopher Fay.4 See Walter v. Arizona, 497 U.S. 639, 648-

49 (1990) (“Cabana held that an appellate court could

constitutionally make the Enmund v. Florida . . . finding--that

the defendant killed, attempted to kill, or intended to kill--in

the first instance.”).

‘Appellant confessed to killing Private Christopher L. Fay, a taxi-driver

who appellant directed to a secluded area of Fort Hood and robbed. The

Court of Military Review summarized his confession as follows:

Dissatisfied with the meager amount of money he had

obtained from the 7-Eleven robberies, appellant made the

intentional and considered decision to rob taxicab drivers. On

the night of 12 December 1988, appellant called for a taxicab

to take him from a grocery store in Killeen to his barracks at

Fort Hood. The driver of the taxicab was an Army private

[Fay] who was moonlighting for extra money. After entering

the taxicab and after arriving at Fort Hood, appellant directed

the driver to park in a dark secluded area behind the barracks.

He produced a pistol, held the pistol to the driver’s head,

ordered the driver to shut off the car’s motor and lights, and

demanded all the driver’s money. After replying “bullshit” to

the driver’s protests that he had surrendered all of the money,

appellant shot the driver in the back of the head. While look-

ing at the hole in the back of the victim’s head and the blood

“gushing out,” appellant cocked the pistol and shot him in the

back of the head again. The taxi driver died as a result of these

gunshot wounds.

34 MJ 956, 959 (1992). Accident or accidental killing is simply not a rea-

sonable possibility in these circumstances. Accordingly, failure to

expressly instruct on the requirement for an intent to kill as part of being

an actual perpetrator of a killing was clearly harmless beyond a reasonable

doubt. See People v. Johnson, 859 P.2d 673, 698 (Cal. 1993); see also

People v. Osband, 919 P.2d 640, 720-21 (Cal 1996) (Kennard, J., concur-

ring and dissenting).

27a

Invalid Aggravating Factor

under Loving v. United States,

116 S.Ct. 1737 (1996)

Appellant, nonetheless, attacks his death penalty on the

procedural grounds that the President, in establishing the

“triggerman” aggravating factor, did “not narrow the death-

eligible class in a way consistent with our cases.” Loving,

supra at 1742; see Writ Appeal Petition at 1. He contends that

the “actual-perpetrator” aggravator in RCM 1004(c)(8) (“That

only in the case of a violation of Article 118(4), the accused

was the actual perpetrator of the killing”[.]) is legally

insufficient to impose death as a penalty. See Tuilaepa v.

California, 512 U.S. 967, 971, 114 S.Ct. 2630, 2634 (1994)

(“To be eligible for the death penalty, the defendant must be

convicted of a crime for which the death penalty is a

proportionate punishment.”). He argues that it is invalid

because it still “permits death to be imposed for felony

murder even if the accused had no intent to kill.” Loving,

supra at 1742; see United States v. Cheely, 36 F.3d 1439, 1443

n.9 (9th Cir. 1994)> (“The least culpable mental state the

Supreme Court has held death-eligible is reckless indifference

to human life during commission of a felony.”’).

There are several reasons why I reject appellant’s claim

that RCM 1004(c)(8) is an invalid or insufficient aggravating

factor under the Supreme Court’s Loving decision.

First of all, I note that RCM 1004(c)(8) permits the death

penalty to be imposed on the felony murderer who actually

>Appellant has cited note 9 of Cheely as support for his argument that

RCM 1004(c)(8) (actual perpetrator of killing) is an invalid aggravator

under Tison v. Arizona, 481 U.S. 137 (1987). The Court in that case, how-

ever, did not decide that question because Cheely was charged with “inten-

tional murder,” not felony murder. 36 F. 3d at 1443 and n. 10.

28a

kills a person during the felony (“actual perpetrator of the

killing”). In Loving, supra at 1742, the Supreme Court held

Article 118 invalid because it “permits death to be imposed

for felony murder even if the accused had no intent to kill and

even if he did not do the killing himself.” (Emphasis added.)

RCM 1004(c)(8) does not violate both prongs of Loving.

Second, the Supreme Court in Enmund v. Florida, supra,

and its progeny clearly held that the death penalty is not

disproportionate for a felony murderer who actually kills a

person during the felony. “Enmund did not kill or intend to

kill and thus his culpability is plainly different from that of

the robbers who killed; yet the State treated them alike and

attributed to Enmund the culpability of those who killed the. .

. [victims]. This was impermissible under the Eighth

Amendment.” 458 U.S. at 798. In Tison, 481 U.S. at 149-50,

the Court spoke more clearly in these words:

Enmund explicitly dealt with two distinct

subsets of all felony murders in assessing whether

Enmund’s sentence was disproportional under the

Eighth Amendment. At one pole was Enmund

himself: the minor actor in an armed robbery, not on

the scene, who neither intended to kill nor was

found to have had any culpable mental state. Only

a small minority of States even authorized the death

penalty in such circumstances and even within those

jurisdictions the death penalty was almost never

exacted for such a crime. The Court held that

capital punishment was disproportional in these

cases. Enmund also clearly dealt with the other

polar case: the felony murderer who actually killed,

attempted to kill, or intended to kill. The Court

clearly held that the equally small minority of

jurisdictions that limited the death penalty to these

circumstances could continue to exact it in

29a

accordance with local law when the circumstances

warranted.

(Emphasis added.) In this light, RCM 1004(c)(8) also passes

muster because it requires actual killing by the felony

murderer. See also Perdue v. Commonwealth, 916 S.W. 2d

148, 166 (Ky. 1995) (Enmund not applicable where felony

murderer a principal).

Third, this Court has already indicated that RCM

1004(c)(8) complies with Enmund. In Curtis, 32 MJ at 265-

66, we said:

“Aggravating factor” (8) applies only in the

case of a violation of Article 118(4), and so relates

only to felony murders. We have held that an

accused may be convicted of murder under Article

118(4) even though he did not kill the victim and

only aided and abetted commission of the felony on

which the felony-murder conviction was based.

United States v. Jefferson, 22 MJ 315 (CMA 1986).

The Supreme Court has concluded that the Eighth

Amendment is violated when a defendant is

sentenced to death for a felony murder if he did not

participate actively in the killing. Enmund vy.

Florida, 458 U.S. 782, 102 S.Ct. 2368, 73 L.Ed.2d

1140 (1982); but cf. Tison v. Arizona, 481 U.S. 137,

107 S.Ct. 1676, 95 L.Ed.2d 127 (1987) (upholding a

death penalty for an accused who did not kill the

victim, but whose conduct was related to the

killing).

(Emphasis added.)

Finally, several state supreme courts have considered the

effect of Enmund v. Florida, supra, on aggravating factors

similar to RCM 1004(c)(8) and have found no Eighth

Amendment violation. See Brooks v. State, 655 A.2d 1311

30a

(Md. App. 1995); People v. Anderson, 742 P.2d 1306 (Cal.

1987); see generally Calhoun vy. State, 468 A.2d 45 (Md.

1983); but see State v. Ramseur, 524 A.2d 188, 220 n.21 (NJ.

1987).

Lowenfield v. Phelps, 484 U.S. 231 (1988)

Appellant’s additionally argues is that RCM 1004(c)(8)

is invalid because it does not “genuinely narrow the class of

persons eligible for the death penalty [nor] . . . reasonably

justify the imposition of a more severe sentence on the

defendant compared to others found guilty of murder.” See

Loving, 116 S.Ct. at 1742, quoting Lowenfield, supra at 244.

He asserts that this aggravating factor is meaningless and is

the equivalent of saying any felony murderer who acts alone

is death eligible. I disagree.

3la

PAGE

INTENTIONALLY

LEFT

BLANK

32a

Article 118 proscribes murder in the military and breaks

it down into four groups: premeditated, intentional, wanton

disregard, and certain felony murders. It then further narrows

these four groups to two groups: premeditation and certain

felony murders, which are initially eligible for the death

penalty. See Gray v. Lucas, 677 F.2d 1086, 1104 (Sth Cir.

1982) (provides “rational basis” for determining death penalty

appropriate for felony murders). RCM 1004(c)(8) still further

narrows the class of felony murders to those who actually kill

during the felony. See generally Enmund vy. Florida, supra. \n

my view, a genuine narrowing has occurred in making only

felony murderers who have actually killed during the felony

eligible for death. See Johnson v. Dugger, 932 F.2d 1360,

1369-70 (iith Cir. 1991); Grandison v. State, 670 A. 2d 398,

409 (Md. 1995); Calhoun, 468 A.2d at 75.

RCM 1004(c)(8) and

Intent to kill

Assuming an intent to kill is required as a necessary

aggravating factor to permit imposition of the death penalty

on a person who is guilty of felony murder, I would still find

no error in this case. Admittedly, Article 118 permits

imposition of the death penalty on one who is guilty of felony

murder “even if the accused had no intent to kill and even if

he did not do the killing himself.” Moreover, the Supreme

Court found this statutory provision inadequate by itself to

constitutionally permit imposition of the death penalty.

However, the Supreme Court in Loving also clearly held that

the President could lawfully promulgate “additional

aggravating factors establishing a higher culpability .. .

necessary to save Article 118.” 116 S. Ct. at 1742.

33a

RCM 1004(c)(8) is such an additional aggravating factor.

It establishes as an aggravating factor: “That only in the case

of a violation of Article 118(4), the accused was the actual

perpetrator of the killing.” In my view this language requires

as a matter of common sense that the members find appellant

killed during the felony with an intent to kill. See generally

Tuilaepa, 512 U.S. at 976, 114 S. Ct. at 2637 (“Factor (b) is

phrased in conventional and understandable terms.”’). This

conclusion flows from the common meaning of “perpetrate”

as “to bring about or carry out (as a crime).” Webster’s Ninth

New Collegiate Dictionary 877 (9th ed. 1991); see People v.

Harrison, 176 Cal. App. 2d 330, 1 Cal. Rptr 414 (Ct.App.

1959), decision disapproved, People v. Washington, 402 P.2d

130, 134-35 (Cal. 1965).

Professor Perkins confirms this well-established meaning

of this term by stating:

Culpable parties are of four different kinds,

who may be called respectively: (1) perpetrators, (2)

abettors, (3) inciters, and (4) criminal protectors. A

“perpetrator,” as here used, is one who, with mens

rea, '' has caused a socially-harmful occurrence

either with his own hands, or by means of some too!

or instrument or other non-human agency, or by

means of an innocent agent. Nothing novel is

involved in this suggestion, because the word has

been employed with this meaning at least since the

time of Blackstone. !*

''That is, one who has acted with malice aforethought or with criminal

negligence in a homicide case, with animus furandi in a larceny case, with

intent to commit a felony in a burglary case or, in other words, with what-

ever kind of mind at fault is required in order that the particular socially-

harmful occurrence may be classified as a crime.

124 B1. Comm. [Blackstone’s Commentaries] *34. See also Smith v. State,

37 Ark. 274, 276 (1881); In re Vann, 136 Fla. 113, 118, 186 So. 424, 426

34a

R. Perkins and R. Boyce, Criminal Law 723-24 (3d ed.

1982)(emphasis added); see also B. Garner, A Dictionary of

Modern Legal Usage 653 (2d ed. 1995)(“Perpetrator = one

who, with mens rea (q.v.) has caused a socially harmful

occurrence either personally or through some. . . agent.)

Accordingly, even accepting appellant’s view of Enmund vy.

Florida, supra, and its progeny as requiring proof of an intent

to kill, I find such a requirement in RCM 1004(c)(8).

Vil

Harinless error

In any event, I agree with the majority opinion that any

error in considering RCM 1004(c)(8) as a constitutionally

valid aggravating factor in this case was harmless. See

generally Stringer, 503 U.S. at 232, 112 S Ct. at 1137. RCM

1004(c) provides: “Death may be adjudged only if the

members find, beyond a reasonable doubt, one or more .. .

aggravating factors.” (Emphasis added.) As noted above,

there were two other valid aggravating factors in this case

which made appellant death eligible. Moreover, I agree that

appellant’s triggerman status, at the very least, could be

considered in the subsequent weighing step as an aggravating

circumstance under RCM 1004(b)4)(C) (“Death may not be

adjudged unless— .. . (C). All members concur that any

extenuating or mitigating circumstances are substantially

outweighed by any aggravating circumstances admissible

under RCM 1001(b)(4), including the factors under subsection

(1939). One court has spoken of an offender who commits his offense by

the aid of an innocent agent as “not the actual perpetrator.” People v.

Whitmer, 369 Ill. 317, 320, 16 N.E.2d 757, 759 (1938). But if emphasis is

placed on the crime rather than the mere physical occurrence it seems

proper to say that one who has contrived to bring about the prohibited

result by the employment of innocent hands, has perpetrated his offense in

this manner.

— A

35a

triggerman was properly before the members as aggravation

under RCM 1001(b)(4). See Williams v. Clarke, 40 F.3d 1529,

1542 (8th Cir. 1994)(error not “as egregious” as where

“sentencer considers an aggravating circumstance that would

not otherwise have been established or not considered at all’’).

Finally I agree that the military judge’s instructions and

counsel’s arguments remove any reasonable possibility that

appellant was prejudiced by the number of capital offenses or

the number of valid aggravating factors in this case. See

Davis v. Executive Director of Department of Corrections,

100 F.3d 750, 774 (10th Cir. 1996); United States v. Tipton, 90

F. 3d 861, 900 (4th Cir. 1996); United States v. Chandler, 996

F.2d 1073, 1093 (11th Cir. 1993)(“instructions made clear that

the weighing process was not a mechanical one . . . based on

the number of aggravating . . . factors”).

This case has made a long march through the American

judicial system. Here, at the end, I am satisfied that Dwight

Loving has had a fair trial and appeal. I find no defect in the

Federal law or its process that has been applied to this result

of capital punishment. Accordingly, I vote to affirm the

decision below denying the petition for extraordinary relief.

EFFRON, Judge (concurring in part and dissenting in part):

I concur in denying both appellant’s petition for

extraordinary relief and his petition for reconsideration of

mandatory review insofar as either action would require this

Court to reconsider the findings of guilty affirmed upon

mandatory review. 41 MJ 213 (1994). I dissent with respect

to the majority’s decision to affirm the sentence, however,

because fundamental questions regarding the legality of the

sentencing proceeding remain unresolved.

36a

Three commissioned officers of the United States Army

who served as members of appellant’s court-martial panel

have executed sworn affidavits describing the sentencing

procedures used in this case. Each of the affidavits describes

circumstances that constitute significant violations of

procedures designed to ensure fairness in capital sentencing

by precluding the proceedings from being infected by

unlawful command influence. The affidavits do not reflect any

juror remorse over imposition of the death penalty, and

nothing in the record indicates that any of these officers had a

motive to fabricate. Each officer set forth in neutral terms his

recollection of the sentencing process. See 41 MJ at 331-33.

The majority, however, has refused to permit any inquiry into

the voting procedures used to impose the death penalty in this

case.!

Before appellant’s death sentence may be affirmed,

applicable law and precedent require us to consider the impact

of the sworn statements from these three officers. The

statements contain direct evidence of specific violations of the

carefully constructed procedures designed to ensure that the

death penalty is not imposed in an arbitrary and capricious

manner by a court-martial panel.

I. THE UNIQUE PURPOSES AND PROCEDURES OF A

COURT MARTIAL PANEL

A. Background

In civilian life, there are few rules that govern the

conduct of jury proceedings.” In contrast, the Uniform Code

of Military Justice and the Manual for Courts-Martial provide

'The discussion of the voting procedures referred to herein is set forth in

the initial majority opinion of this Court. 41 MJ 213, 235-39 (1994).

*See, e.g., Fed.R.Crim.P. 31.

37a

detailed guidance governing the proceedings of court-martial

panels and reflect longstanding military practice. All voting is

by secret written ballot. Art. 51(a), Uniform Code of Military

Justice, 30 USC § 851(a). A proposed sentence, which may

be recommended by any member, must “be in writing” and

“contain the complete sentence” proposal. RCM 1006(c),

Manual for Courts-Martial, United States (1995 ed.).3 “All

members . . . vote on each proposed sentence in its entirety,”

and the members vote first on the least severe sentence. RCM

1006(d)(3)(A). If the least severe proposed sentence is not

adopted, the members then vote on “the next least severe,”

and this process continues “until a sentence is adopted.” /d.

The ballots are counted by the junior member of the panel.

RCM 1006(d)(3)(B). A sentence is adopted when it has the

votes of two-thirds of the members, except that confinement

for life or more than 10 years requires the votes of

threefourths of the members, and a death sentence requires a

unanimous vote. Art. 52(b), UCMJ, 10 USC 852(b); RCM

1006(d)(4).4 After a sentence has been adopted, the members

may not reconsider the sentence unless they have been

instructed by the military judge on the procedures for

reconsideration and they agree by secret written ballot to

reconsider the sentence. RCM 1009 (d), Manual for Courts-

Martial, United States (1994 ed.).

3All references are to this edition of the Manual unless otherwise indi-

cated. The Manual cited contains the provision applicable at trial.

‘Additional voting procedures apply in capital cases. The members may

adjudge the death penalty only if: They have returned a unanimous finding

of guilty as to a capital offense, RCM 1004(a)(1) & (2); they have unani-

mously found applicable at least one aggravating factor specified in the

Manual for Courts-Martial, RCM 1004(b)(7); they have unanimously

agreed “that any extenuating or mitigating circumstances are substantially

outweighed by any” admissible “aggravating circumstances,” RCM

1004(b)(4)(C); and they unanimously vote to adjudge the death penalty,

RCM 1006(d)(4)(A).

38a

B. Selection Of A Court-Martial Panel

These rules reflect the fundamental distinctions between

a civilian jury and a court-martial panel. In a civilian

proceeding, an accused person has a constitutional right to

trial by a jury of peers selected at random from a

representative cross-section of the community. U.S. Const.

amend._VI; Jury Selection and Service Act of 1968, 28 USC

1861-69; Duren v. Missouri, 439 U.S. 357 (1979). A person’s

status or stature in the community is not a permissible basis

for selection to serve on a jury, although certain

circumstances, such as a felony conviction, may disqualify an

individual from serving. A civilian jury is concerned

primarily with adjudication of guilt, although juries in some

jurisdictions have a role in the sentencing process, particularly

in capital cases.

A court-martial panel has a much broader function than a

civilian jury. Unless the accused requests a bench trial, the

court-martial panel determines guilt and adjudges the

sentence. A court-martial panel is empowered not only to

impose the typical criminal law punishments of confinement

and fines, but also to adjudge a sentence that affects an

individual’s military status. Permissible punishments include

reductions in rank, forfeiture of pay and allowances, and

separation from military service. The court-martial panel is

not simply an element of a criminal law system; it also plays a

key role in management of military personnel and

maintenance of good order and discipline in the armed forces.

See R. Everett, Military Justice in the Armed Forces of the

United States 4-7 (1956).

Given the unique functions of a court-martial, it has long

been held that a military accused does not have a

constitutional right to a panel randomly selected from a cross-

section of the military community. Art. 25, UCMJ, 10 USC

§ 825; Ex parte Quirin, 317 U.S. 1, 39-41 (1942); United

39a

States v. Smith, 27 MJ 242, 248 (CMA 1988); see also United

States ex ref. Toth v. Quarles, 350 U.S. 11, 17-18 (1955).

Selection of panel members is a function of command, and

the manner of selection reflects the disciplinary role of the

proceedings.

The convening authority who refers a case to trial selects

the panel that will adjudicate the issue of guilt and, in the

event of a finding of guilty, adjudge the sentence. Stature and

status are permissible considerations in selecting a court-

martial panel. The persons chosen by the convening authority

are those “best qualified for the duty by reason of age,

education, training, experience, length of service, and judicial

temperament.” Art. 25(d)(2); see also RCM 502(a)(1). All

panel members are officers, unless an enlisted accused

requests inclusion of enlisted members; and, if possible,

members of a court-martial panel normally must be equal to

or senior in rank and grade to the accused. Art. 25(c)(1) and

(d)(1). As a result of these criteria, the military personnel

detailed to sit on courts-martial are likely to be relatively

senior and are likely to have command or supervisory

experience.

Consistent with standard military practice, the officer

senior in rank serves as the leader of the courtmartial panel

and is designated as the president. RCM 502(b)(1). In

addition to the duties assigned to other members, the president

presides over the closed sessions of the court-martial during

deliberations of the members. RCM 502(b)(2)(A). We have

recognized that the authority to preside includes “the

discretion to call for a vote when, in their judgment,

discussion of the issues is complete or further debate would

be pointless.” United States v. Accordino, 20 MJ 102, 105

(1985). The president also speaks for the members in

announcing decisions or when “requesting instructions from

the military judge.” RCM 502(b)(2)(B).

40a

Within the court-martial proceeding, specific attention is

given to the rank structure of the panel. For example, the

Discussion accompanying RCM 911 notes: “The members are

seated with the president, who is the senior member, in the

center, and the other members alternately to the president's

right and left according to rank. If the rank of a member is

changed, or if the membership of the court-martial changes,

the members should be reseated accordingly.” Each member

is in uniform, which contains a visible display of the insignia

of rank.

The customs, traditions, and rules that govern military

life reinforce the authority of the president of a court-martial

and the willingness of members to respect that authority.

Obedience to superiors is one of the fundamental norms of

military life, emphasized from the very inception of military

status in the oath of enlistment, 10 USC § 502, and reinforced

by the criminal sanctions that may be imposed for

disobedience, Arts. 90, 91, and 92, UCMJ, 10 USC §§ 890,

891, and 892, respectively. The Supreme Court has observed

that “to accomplish its mission the military must foster

instinctive obedience, unity, commitment, and esprit de

corps.” Goldman v. Weinberger, 475 U.S. 503, 507 (1986).

Congress and the President have determined that our

national security requires a military justice system that

involves the express recognition of rank in selection of court-

martial members and in the role of the presiding officer.

Although these characteristics find no parallel in the attributes

of civilian juries, the Supreme Court has recognized that the

differences are permissible because “[t]he military constitutes

a specialized community governed by a separate discipline

from that of the civilian.”’ Orloff v. Willoughby, 345 U.S. 83,

94 (1953).

Congress and the President have recognized that the

maintenance of good order and discipline requires more than

4la

an unfettered role for command in the court-martial process.

Military law, from the time of the first Articles of War through

the establishment of the Uniform Code of Military Justice, has

reflected an understanding that members of the armed forces

are more likely to obey orders under a disciplinary system

which is fair and which they perceive to operate without the

unlawful influence of rank. This understanding is

implemented through provisions such as the general

prohibition against unlawful command influence, Art. 37,

UCMJ, 10 USC. 837, as well as specific provisions designed

to minimize the influence of rank within a court-martial panel.

The general admonitions against use of rank to control the

exercise of judgment, e.g.,.RCM 502(a)(2), 921(a), and

1006(a), are reinforced by the specific procedural rules noted

in Part A, supra, such as the requirements for secret written

ballots and written sentence proposals, reliance on the junior

member to count the votes, and limitations on reconsideration.

C. Appellate Review Of Improper Influences

In The Voting Process

The rules governing the procedures of a court-martial

panel are not self-executing. Trial and appellate courts may

entertain allegations that the rules were violated. Under RCM

1008:

A sentence which is proper on its face may be

impeached only when extraneous prejudicial

information was improperly brought to the attention

of a member, outside influence was improperly

brought to bear upon any member, or unlawful

command influence was brought to bear upon any

member.[>]

5A similar rule applies to the impeachment of findings. RCM 923.

42a

The Drafter’s Analysis, Manual, supra at A21-74, notes

that this rule is based in part on Mil.R.Evid. 606(b), Manual, ©

-upra, “Inquiry into validity of findings or sentence,” which

provides:

Upon an inquiry into the validity of the findings or

sentence, a member may not testify as to any matter

or statement occurring during the course of the

deliberations of the members of the court-martial or,

to the effect of anything upon the member’s or any

other member’s mind or emotions as influencing the

member to assent to or dissent from the findings or

sentence or concerning the member’s mental

process in connection therewith, except that a

member may testify on the question whether

extraneous prejudicial information was improperly

brought to the attention of the members of the

court-martial, whether any outside influence was

improperly brought to bear upon any member, or

whether there was unlawful command influence.

Nor may the member’s affidavit or evidence of any

statement by the member concerning a matter about

which the member would be precluded from

testifying be received for these purposes.

This rule of evidence is virtually identical to Fed.R.Evid.

606(b), with the critical addition of authority to obtain

evidence concerning “unlawful command influence.” As

noted in the Drafter’s Analysis, “The addition is required by

the need to keep proceedings free from any taint of unlawful

command influence and further implements Article 37(a) of

the Uniform Code of Military Justice. Use of superior rank or

grade by one member of a court to sway other members

would constitute unlawful command influence for purposes of

this Rule... .” Manual, supra at A22-44.

43a

In Mil.R.Evid. 606(b), as in its civilian counterpart, a

“balance is struck between the necessity for accurately

resolving criminal trials in accordance with rules of law on

the one hand, and the desirability of promoting finality in

litigation and of protecting members from harassment and

second-guessing on the other hand.” S. Saltzburg, L. Schinasi,

& D. Schlueter, Military Rules of Evidence Manual 722 (4”

ed. 1997).

In Accordino, we considered whether civilian precedents,

including precedents under Fed.R.Evid. 606(b), would

preclude consideration of affidavits from court members

concerning the procedure employed by the president of a

court-martial. 20 MJ at 104. Two members of the court-

martial panel in Accordino executed post-trial affidavits

alleging that the president of the court-martial, during

deliberation on findings, prematurely cut off discussion and

precipitated a vote. /d. at 103.

In Accordino, the Air Force Court of Military Review®

refused to consider the affidavits, citing civilian precedents

holding that jurors are not competent to challenge verdicts

based upon internal influences. 15 MJ 825, 834-42 (1983). We

expressly rejected reliance on civilian precedents with respect

to issues involving unlawful command influence, stating:

[T]hese cases miss the point. Military courts, with

their explicit rank structure, are quite different from

their civilian jury counterparts. Thus Federal

precedents, which naturally do not address a

concept of “command influence” within civilian

juries, are of extremely limited value to us in

construing our own rule.

20 MJ at 104 (footnote omitted).

®Now the Court of Criminal Appeals. See 41 MJ 213, 229 n.* (1994).

44a

We also made it clear that an affidavit raising the

potential for command influence would entitle an accused to

further review without the necessity of demonstrating actual

command influence:

{[T] he court members’ affidavits were proper

matters for examination by any and all authorities

having jurisdiction over the case. The purpose of

such review is, however, limited to looking for

evidence of any of the three specific exceptions to

Mil . R. Evid. 606(b). Under our legal threshold of

review .. ., the affidavits do not indicate unlawful

command influence. However, the Court of Military

Review, with its broader factual-review authority . .

., Must examine the affidavits under its own

standards.

20 MJ at 105. The fact that the president had used his position

of authority to-limit discussion and initiate voting, id. at 103,

was considered to raise the possibility of undue command

influence.

II. DISCUSSION

In the case before us, as in Accordino, we are faced with

affidavits from court members that indicate violations of the

rules designed to preclude the unlawful influence of rank in

the process. The affidavits before us, executed by three

commissioned officers, reveal violations more numerous and

more significant than the violations we considered in

Accordino. In the present case, however, the majority has held

that the sworn testimony of commissioned officers

specifically selected to sit on a court-martial in a capital case

is “not competent evidence,” 41 MJ at 236, and that, in any

case, the affidavits reveal “no more than Colonel Aylor’s

proper exercise of authority as president to preside over the

deliberations.” /d. at 238.

45a

Judge Wiss, in his dissent from this Court’s initial ruling,

observed that the affidavits indicate six separate procedural

deviations, 41 MJ at 313-14:

First, that the “members did not vote . . . on any of the

aggravating factors relied upon by the prosecution,” in

violation of RCM 1004(b)(7). See, e.g., United States v.

Curtis, 32 M] 252, 257-60, 268 (CMA 1991) (detailing the

RCM 1004 procedures that protect a capital defendani’s Fifth

and Eighth Amendment rights).

Second, that there “was no vote . . . on whether the

aggravating circumstances outweighed the extenuating and

mitigating circumstances,” in violation of RCM

1004(b)(4)(C).

Third, that the members did not submit written proposals

recommending sentences “in their entirety,” in violation of

RCM 1006(c). See United States v. Gutierrez, 11 MJ 122, 123

(CMA 1981) (“one sentence is imposed for all offenses before

the court”).

Fourth, that the members did not conduct a separate vote

on the proposal for a life sentence before voting on the death

penalty, in violation of RCM 1006(d)(3) (A). See United

States v. Thomas, 46 MJ 311, 313-14 (1997); United States v.

Johnson, 18 USCMA 436, 437, 40 CMR 148, 149 (1969)

(Voting on the “lightest proposed sentence” first is “more than

a mere technicality. It is, essentially, a part of military due

process.”).

Fifth, that the president, not the junior member, counted

the ballots, in violation of Article Si(a) and RCM

1006(d)(3)(B).

Sixth, that the president, after counting ballots that

revealed a non-unanimous vote for death, ordered a second

vote without obtaining or following instructions from the

46a

military judge on reconsideration procedures, in violation of

RCM 1009.

Judge Wiss pointed out that the voting procedures

described in the affidavits “occurred as a result of the

unilateral imposition by the senior-ranking member of the

court-martial of a procedure that differed markedly from the

procedure that was plotted for the pane! in the military judge’s

painstaking instructions.” 41 MJ at 314. The president of a

court-martial has no authority “to divine his own personally

preferred procedural path toward a death sentence, in

substantial disregard of the one that has been clearly

prescribed by the President of the United States in the Manual

for Courts-Martial and, in some instances, in substantial

disregard as well of checkpoints along the way that are

required by the Fifth and Eighth Amendments.” /d.

The affidavits should be considered under Mil.R.Evid.

606(b) as competent evidence on the issue of unlawful

command influence because, as Judge Wiss wrote, they

“portray a scenario in which the senior-ranking member,

solely by virtue of his rank, successfully imposed a procedure

that was unlawful and that, in the process, destroyed the

lawful procedural structure that would have substantially

assured a fair and reliable sentence.” /d.

The majority during our previous review of this case

cited Tanner v. United States, 483 U.S. 107 (1987), and

numerous civilian precedents for the proposition that

Fed.R.Evid. 606(b) precludes use of juror testimony to

impeach a verdict except for “evidence of extraneous

influence.” 41 MJ at 236-37. The majority recognized that

Mil.R.Evid. 606(b) goes beyond its federal civilian

counterpart by also permitting testimony concerning unlawful

47a

command influence and cites, but did not attempt to

distinguish, our decision in Accordino.’ 41 MJ at 237.

In Accordino, we made clear that “[mJilitary courts, with

their explicit rank structure, are quite different from their

civilian jury counterparts” and that “Federal precedents,

which naturally do not address a concept of ‘command

influence’ within civilian juries, are of extremely limited value

to us in construing our own rule.” 20 MJ at 104 (footnote

omitted). In that case, we relied upon post-trial affidavits to

set aside the decision below. Even though we determined that

the information in the affidavits did not constitute evidence of

unlawful command influence as a matter of law, we concluded

that the potential for unlawful command influence resulting

from the actions of the president of a court-martial required

further review by a tribunal with factfinding powers.

In Accordino, we ordered further review to protect the

rights of an individual convicted of wrongful drug use who

was sentenced to a bad-conduct discharge, forfeiture of

$250.00 pay for one month, and reduction to the pay grade of

E-3. The case before us involves convictions for murder and a

death sentence. The affidavits indicate an extensive role by the

president of the court-martial in shaping a decision-making

procedure that undermined the reliability of the sentencing

process. We upheld the right of Sergeant Accordino to a

proceeding compliant with the rules designed to preclude

unlawful command influence within the court-martial panel.

Accordino, which is a sound precedent, requires no less in the

case of Private Loving. There is nothing in the Uniform Code

or our precedents that would authorize a less favorable

7In United States v. Brooks, 42 MJ 484 (1995), an opinion issued subse-

quent to Loving, this Court precluded consideration of member testimony

to impeach a verdict, but the opinion did not consider the issue of unlawful

command influence and contains no discussion of Accordino.

48a

proceeding in a capital case than in a non-capital case. On the

contrary, the additional procedural requirements in RCM 1004

for adjudication of the death penalty require at least as much, if

not greater, concern in capital cases with respect to compliance

with rules designed to preclude unlawful command influence.

Judge Wiss, dissenting during this Court’s initial review,

stated that the evidence of irregularities in the sentencing

proceeding raised “the cancerous possibility that command

influence inside the members’ deliberation room during their

consideration of a sentence so skewed the legally required

voting procedures that it undermined the fundamental fairness

of those pror2edings.” 41 MJ at 310. I agree.

II . CONCLUSION

In view of the unresolved questions regarding unlawful

command influence during the sentencing proceeding, I would

remand tnais case for factfinding proceedings to determine if

the procedures designed to protect against unlawful command

influence were violated.

49a

APPENDIX B

Dwight J. LOVING (065-56-0228), Appellant,

William L. HART, Colonel, Commandant,

United States Disciplinary Barracks;

and The United States, Appellees

USCA Misc. Dkt. No. 96-8022/AR

Crim. App. Dkt. No. 9601437

On consideration of appellant’s petition for

reconsideration of this Court’s decision, 47 MJ 438 (1998), it

is, by the Court, this 9th day of April, 1998,

ORDERED:

That the petition for reconsideration is denied.

For the Court,

/s/ John A. Cutts, III

Deputy Clerk of the Court

EFFRON, Judge (dissenting)

I would grant the petition. See Loving v. Hart, 47 MJ

438, 454 (1998) (Effron, J., concurring in part and dissenting

in part).

CC: The Judge Advocate General of the Army

Appellate Defense Counsel (BLUME, Esq.)

Appellate Government Counsel

50a

APPENDIX C

United States, Appellee

Dwight J. LOVING, Private

U.S. Army, Appellant

No. 68,033

CMR No. 8901123

United States Court of Appeals for the Armed Forces

Argued September 30, 1993

Decided November 10, 1994

Counsel

For Appellant: Captain Teresa L. Norris (argued); Lieutenant

Colonel James H. Weise, Major Fran W. Walterhouse,

Captain David L. Thomas (on brief); Captain Roy H. Hewitt.

For Appellee: Major Joseph C. Swetnam (argued); Colonel

Dayton M. Cramer and Lieutenant Colonel Joseph A.

Russelburg (on brief); Major James L. Pohl and Captain John

G. Giovannelli.

Amicus Curiae on behalf of Appellant: John H. Blume (on

brief); George H. Kendall — For NAACP Legal Defense Fund

Military Judge: Stephen V. Saynisch

Page

Sla

INDEX

APPELLATE HISTORY

FACTUAL BACKGROUND

LEGAL ISSUES

I.Court Members’ Affidavits Regarding Voting

Procedures on Sentencing

II. Denial of Reliable Mental Health Evaluation

III. Denial of Effective Assistance of Counsel for

Failure:

A. To discover drug and alcohol use

B. To move to suppress confessions as coerced

C. To challenge search of apartment

D. To object to uncharged misconduct

E. To present intoxication defense or mental

condition evidence

F. To object to evidence of lack of rehabilitative

potential

1. As aggravation evidence

2. As aggravating circumstance

G. To investigate reliability of sanity board and

psychological evidence

H. To request funds for mitigation specialist or

adequately investigate accused’s history

I. To object to improper rebuttal

J. To request instruction on which offenses were

capital

K. Cumulative error.

IV. Military Judge Became Partisan As To:

Page

110

112

115

116

52a

A. Access to evidence of media coverage of case

B. Accusing defense counsel of being unethical and

manipulative

C. Requiring use of inadequate expert

D. Excusal of pro-life court member

E. Treatment of defense counsel during voir dire

1. Restrictions on voir dire

2. Bias of Military Judge

3. Chastising defense counsel

F. Criticizing defense counsel regarding objection

to hearsay testimony of medical examiner

G. Allowing murder victim’s wife to testify on merits

H. Allowing witness to testify without adequate notice

I. Restricting examination of Ms. Pessina

1. As accomplice

2. As hostile witness

J.Calling defense theory “ridiculous” and

threatening defense counsel for challenging ruling

K. Showing dislike for defense counsel

IV. Prosecutorial Misconduct Denying Fair Trial

VI. Requirement of Jn Favorem Vitae Review of

Capital Cases Because Counsel Lack Experience

to Prevent Waiver

VII. Failure to Give Notice of Aggravating

Circumstances

Vill. Allowing Consideration of Aggravating

Circumstances Without Notice to Defense

137

53a

IX. Double Counting of Aggravating Factors

X. Consideration of Lack of Rehabilitative Potential,

Preservation of Good Order and Discipline, and

Specific Deterrence

_ XI. Denial of Fair Sentencing Hearing

A. Admission of Article 15 punishments

B. Improper rebuttal

C. Improper bolstering of Ms. Pessina

D. Improper bolstering of Private Brown

XII. Impeachment of Findings by Testimony that

Felony Murder was Committed for Fun, Rather

than in Furtherance of Robbery

XIII. Failure to Dismiss Felony-Murder instead of

Premeditated Murder as Multiplicious

XIV. Denial of Fair Sentencing Proceeding

A. Exclusion of testimony of Ms. Fisher

B. Refusal to permit argument that victim did not

suffer

C. Exclusion of testimony that accused was subject

to manipulation

D. Adding disclaimer to summary of defense evidence

XV. Failure to Instruct that Death Sentence can only

be Based on Murder Convictions

XVI. Refusal to Instruct that Race could not be Factor

in Sentencing

XVII. Refusal to Summarize Defense Sentencing

Evidence after Summarizing Government

Evidence

Page

143

144

145

147

149

152

153

154

157

158

159

161

54a

XVIII. Failure to Instruct to Disregard any Perceived

Indication of Judge’s Opinion as to Sentence

XIX. Errors in Sentencing Instructions

A. Failure to Instruct on Absolute Discretion not to

Impose Death Sentence Regardless of Findings

Regarding Sentence

B. Failure to Define Extenuation and Mitigation

C. Failure to Define “Substantially Outweighed”

XX. Allowing Victim Impact Evidence on Findings

(see Issue IV, subissue G)

XXI. Characterizing Defense Theory as Absolutely

Ridiculous (see Issue IV, subissue J)

XXII. Refusal to Treat Ms. Pessina as Hostile Witness

(see Issue IV, subissue I)

XXIII. Refusal to Give Accomplice Instruction (see

Issue IV, subissue I)

XXIV. Absence of Meaningful Distinction in Art. 118

between Premeditated and Unpremeditated

Murder

XXV. Failure of Instructions to Distinguish between

Premeditated and Unpremeditated Murder

XXVI. Need for “Criminal State of Mind” for

Robbery as Ambiguous

XXVII. Definition of Reasonable Doubt Inadeguate

XXVIII. Failure to Instruct that Accused’s Silence

could not be Held Against Him

XXIX. Failure to Grant Change of Venue or to

Sequester Panel

Page

163

55a

XXX. Restriction of Voir Dire (see' Issue IV, subissue

XXXI. Exclusion of Potential Court Members Based

on Race

XXXII. Exclusion of Potential Court Members Based

176

177

179

180

182

185

187

on Gender

XXXIII. Trial of Capital Case in Peacetime by Court-

Martial of Less than 12 Members as Denial

of Due Process

XXXIV. Amendment of Robbery Charges After

Arraignment

XXXV. Correction of Defects in Pretrial Advice

without Rereferral of Charges

XXXVI. Staff Judge Advocate Disqualified where

Initial Advice Challenged

XXVII. Convening Authority Disqualified after

Pretrial Advice and Capital Referral

Challenged

XXXVIII. Omission from Verbatim Record of Part of

Findings Instructions

XXXIX. Denial of En Banc Consideration by Court of

Military Review (CMR)

XL. Sufficiency of Proportionality Review by CMR

XLI. Validity of Military Death Penalty Standards

Because Not Enacted By Congress

XLH. Standard for Weighing Aggravating

Circumstances Against Extenuating and

Mitigating Circumstances (see Issue XIX,

subissue C)

Page |

XLIII. Lack of Sentencing Instruction on Meaning of

“substantially outweigh” as Plain Error (see

Issues XIX & XLII)

188 XLIV. Trial by Members as Violation of Requirement

for Reliable Verdict

XLV. Denial of Equal Protection of the Laws in

Appointment of Lead Defense Appellate

Counsel

189 XLVI. Reconstruction of Defense Opening Statement

as Making Record Non- Verbatim

XLVII. Improper Sentencing Argument to Vindicate

Victims

190 XLVIII. Lack of Remorse: Evidence, Argument, &

Instructions

191 XLIX. Denial of Right to Plead Guilty

L. President’s Esceeding Authority by Issuing RCM

1004

LI. Death Penalty in Article 118 as Not Applying to

Peacetime Crime Committed in U.S.

192 LI. Death Penalty not Narrowed by Congress

Lil. Capital Referral System as Arbitrary and

Capricious

194 LIV. Denial of Equal Protection of the Laws where

——- Military Subject to Death Penalty when Civilian

who Committed Similar Crime was Not

194 LV. Aggravating Factor in RCM 1004 (c)(7)(I) as

Invalid

LVI. Allowing Prosecutor to Peremptorily Challenge

Member Whose Bias Against Death Penalty

would not Justify Challenge for Cause

S7a

197 __ LVII. Military Judges Lack Fised Term of Office

LVIII. Military Judge’s Appointment Violates

Appointments Clause

LIX. Power of U.S. Court of Appeals for the Armed

Forces to Review Death Sentence

198 LX. Denial of Equal Protection of the Laws where

Civilians have Their Cases Reviewed by Article

III Court but Soldiers Do Not

LXI. Power of U.S. Court of Appeals for the Armed

Forces under Article I to Review Constitutional

Issues

199 LXII. Denial of Right to Poll Members or Reguire

Them to Sign Sentence Worksheet

200 LXIII. Convening Authority (CA) Acting as Grand

Jury, Selecting Court Members, Having Law

Enforcement Functions, and Being First Level

of Appeal Creates Presumption CA Acts as

Prosecutor, Judge, & Jury

203. LXIV. Lack of Power in Military Judge to Adjust or

Suspend Death Sentence

LXV. Defect in Convening Order

204 LXVI. Denial of Defense Expert of Choice

LXVII. Refusal to Require Prosecution to Stipulate to

Robberies

205 LXVIII. Challenge to Appointment of Defense

Counsel in Capital Cases

208 LXIX. Defense Appellate Counsel Failed to

Adequately Investigate and Failed to Raise Many

Viable Issues Not Identified

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Page

209 LXX. Requirement for Minimum Standards for Trial

and Defense Appellate Counsel in Capital Cases

211 DECISION

~ ON MANDATORY REVIEW

Opinion of the Court

GIERKE, Judge:

A general court-martial composed of officers convicted

appellant, contrary to his pleas, of premeditated murder,

felony murder, attempted murder, and robbery (5

specifications), in violation of Articles 118, 80, and 122,

Uniform Code of Military Justice, 10 USC §§ 918, 880, and

922, respectively. The court-martial sentenced appellant to a

dishonorable discharge, total forfeitures, and to be put to

death.

The Court of Military Review” affirmed the findings and

sentence twice. 34 MJ 956 (1992), on recon., 34 MJ 1065

(1992). The record is before us for mandatory review pursuant

to Article 67(a)(1), UCMJ, 10 USC § 867(a)(1) (1989).

Appellant has assigned 70 errors, each of which is discussed

seriatim. Having found no prejudicial error, we affirm the

findings of guilty and the sentence of death.

Factual Backaround

On the evening of December 11, 1988, appellant robbed

at gunpoint a 7-Eleven convenience store in Killeen, Texas,

and obtained approximately $38.00. About an hour later, he

robbed a second 7-Eleven store in Killeen, also at gunpoint,

and obtained approximately $52.00.

59a

Disappointed with the small amounts of money he had

obtained from the 7-Eleven stores, he decided to rob taxicab

drivers. At about 8:00 p.m. on the night of December 12,

appellant called a cab to take him from the Handy Grocery

Store in Killeen to Fort Hood. The cab driver was an active-

duty soldier, Private (PVT) E-2 Christopher L. Fay, working

for extra money. Appellant directed Fay to a secluded area on

Fort Hood and, at gunpoint, demanded all his money. After

receiving an unknown ‘amount of money from Fay, appellant

shot him in the back of the head. While watching the blood

“gushing out” of the back of Fay’s head, appellant shot him in

the back of the head a second time. Fay died as a result of the

gunshots. His body was discovered by another soldier at Fort

Hood about 30 minutes later.

Appellant fled from the cab to his barracks room,

counted the money, and called for a second cab at about 8:15

p.m. The driver of the second cab was Bobby Sharbino, a

retired Army sergeant. Appellant directed Sharbino to a

secluded street in Killeen and, at gunpoint, took his money

pouch, wallet, and a green BIC cigarette lighter. He ordered

Sharbino to lie down on the seat and shot him in the head,

killing him. !

After killing Mr. Sharbino, appellant went to the home of

his girlfriend, Ms. Nadia Pessina. They and a group of friends

went to the Vegas Club, where Ms. Pessina was employed, to

pick up her paycheck. They then went to another club, the

Nubia Temple, where appellant became involved in an

altercation with another male patron because the patron was

staring at Ms. Pessina. During the altercation, appellant drew

his pistol and invited the patron to go outside. As the patron

advanced toward appellant, appellant backed up, stumbled

over a chair, and dropped his pistol on the ground, causing it

to discharge.

60a

Appellant and Ms. Pessina hurriedly left the Nubia

Temple. They went to a cab stand across the street from the

Chapparal Club and took a cab, driven by Howard Douglas

Harrison, to Ms. Pessina’s residence, located at 909 Mimosa

Street in Killeen. Mr. Harrison had difficulty pronouncing

“Mimosa” and needed help to find the street. Appellant

dropped off Ms. Pessina near her residence. After pulling a

gun, he directed Harrison to a secluded street, demanded

money, and took Harrison’s wallet and coin changer,

obtaining about $94.00. Appellant jerked Harrison’s head

around and told him to open his mouth. Believing that he was

about to be killed, Harrison grabbed the pistol. During the

ensuing struggle, Harrison gained possession of the pistol

after it went off. Then he attempted to shoot appellant, but the

pistol would not fire. Harrison fled the scene, with appellant

chasing him. After Harrison hit him, appellant ran to Ms.

Pessina’s house, having regained possession of the pistol.

Harrison returned to his cab and reported to his

dispatcher that he had been robbed and that his assailant was

going toward Mimosa street. Appellant spent the remainder of

the night at Ms. Pessina’s residence.

In the morning appellant took a cab back to his unit and

accompanied his unit on field training. At about 3:00 p.m. he

rode back from the field to the unit motor pool with his

supervisor, Staff Sergeant (SSG) Barshaw. During the 35-40

minute ride from the field, appellant told SSG Barshaw that

he had left his weapon and his field jacket behind. SSG

Barshaw told him that he would retrieve them later and bring

them to appellant.

At about the time that appellant was returning from the

field vith SSG Barshaw, a joint investigative team composed

of members of the FBI, Army Criminal Investigation

Command (CID), local police, and Texas Rangers were in Ms.

Pessina’s neighborhood. They had received a general

6la

description of appellant and Ms. Pessina from Mr. Harrison,

the surviving cab driver. They talked to people at the Handy

Grocery Store and in the neighborhood and were told, “Yeah,

that’s Nadia and she has a black boyfriend.” They saw Ms.

Pessina with her friend, Ms. Ira Printers. They asked her to

state her name and she identified herself. They asked her

where she lived, and she told them that she lived at 909

Mimosa Street. At that point “something clicked. which

“connected” Ms. Pessina to Mr. Harrison’s report. They asked

her to come with them to the Killeen police station and she

agreed.

The Killeen police did not consider Ms. Pessina a

suspect at the time. She gave a statement to the police in

which she described her activities, including the cab ride to

her residence, but she did not implicate appellant in any

crimes. She stated that, after the cab driver dropped her off at

her residence, appellant left in the cab to buy her some

cigarettes, returned about 5 minutes later, and then spent the

night with her.

At the end of the interview, at about 6:45 p.m., she

signed a written consent to a search of her residence. At trial

Ms. Pessina, whose command of the English language is

limited, testified regarding her consent as follows:

I don’t know if they have to have a warrant, or if

they no need to have a warrant; I no know that... .

But then--but, when I--no, when I was to the police

station, they told me. . . that, if I want, I can get a

warrant, to my house. And, they say: But, they

gonna look, anyway, so . . . I let them look.

At about the time that the interview of Ms. Pessina was

ending, appellant was apprehended in the unit motor pool by

CID Special Agent (SA) Schnayerson. He was transported to

the CID office, advised of his rights, and at about 7:30 p.m.

—

62a

waived his rights and agreed to make a statement. He denied

any involvement for about 30 minutes. After SA Schnayerson

asked appellant who would take care of the families of the

murdered cab drivers, appellant confessed. Appellant’s

confession was videotaped.

In his confession appellant told SA Schnayerson that the

pistol used in the crimes was hidden in a paper bag behind

Ms. Pessina’s residence. He also mentioned that he had worn

black gloves during the offenses and that he took a ski mask

‘o the 7-Eleven stores but decided not to wear it. He told SA

Schnayerson that he only took cash from PVT Fay. He took

money, a wallet, and a green BIC cigarette lighter from Mr.

Sharbino. He threw the wallet into a dumpster next to his

barracks but left the green BIC lighter at Ms. Pessina’s

residence. He told SA Schnayerson that he kept Mr.

Harrison’s wallet and its contents.

At about 9:00 p.m., while appellant was still being

interviewed, SSG Barshaw returned to the unit’s field location

and retrieved appellant’s field jacket and weapon. He found a

coin changer after it fell out of a pocket of the field jacket.

Suspecting some significance since he had been present when

appellant had been apprehended in the motor pool, SSG

Barshaw gave the field jacket and coin changer to his first

sergeant and a CID agent. At trial, Mr. Harrison identified the

coin changer as the one taken from him by appellant.

The taped interview of appellant ended at about 10:00

p.m., at which time appellant went to sleep on a sofa in the

CID office. From 10:00 p.m. until 6:00 a.m., the CID

prepared a written transcript of the videotaped confession.

Meanwhile, a search outside Ms. Pessina’s residence had

yielded appellant’s pistol, which was later identified as the

weapon used in the murders and robberies; several spent and

unspent bullets; and a blood-stained man’s jacket. At 11:50

63a

p.m., Ms. Pessina returned to ‘the Killeen police station, was

advised of her rights as a suspect, and gave a second statement.

She admitted driving appellant to the vicinity of the two

7-Eleven stores on December 11. She admitted seeing

appellant with a pistol at an unknown time prior to the murders

and robberies. She said that appellant had toid her on

December 12 that “he was going to go and get some money”

and “he was going to go kill somebody.” Ms. Pessina said that

she did not believe that appellant was serious. When appellant

left the house in the early evening of December 12, Ms.

Pessina “felt a bulge in his waistband. that she thought was a

pistol. When appellant returned, he said, “I got the money... .

I shot him.”

After completing her second statement, she signed a

written consent form for a second search of her residence,

which occurred at about 2:15 a.m. on the morning of

December 14. The second search resulted in seizure of a black

ski mask, a pair of gloves, and a green BIC cigarette lighter.

Appellant was awakened in the CID office at about 6:00

a.m. on December 14. From about 6:15 to 7:15 a.m. he

reviewed the 14-page transcript of his confession. He then

signed it and swore to it. At 7:45 a.m. he was interviewed by

Investigator John Wedge, a member of the Killeen police, and

again confessed.

On December 16, Ms. Pessina gave a third statement to

the police in which she said that appellant told her he had

“shot two people” but she did not believe him. She also said

that while in the cab on the way to 909 Mimosa, appellant

“had the pistol I believe in the front of his pants or on the side

and he pulled it out and keep it in his hand on the seat.” She

stated further, “I don’t know what he was going to do, but I

had a bad feeling about it.”

64a

The court-martial convicted appellant of the following

Charges and specifications:

Charge I

Specification 1--Premeditated murder of Christopher L.

Fay

Specification 2--Premeditated murder of Bobby Sharbino

Specification 3--Felony murder of Christopher L. Fay

Specification 4--Felony murder of Bobby Sharbino

Charge II

Specification--Attempted murder of Howard Douglas

Harrison

Charge Ill

Specification 1--Robbery of Christopher L. Fay

Specification 2--Robbery of Bobby Sharbino

Specification 3--Robbery of Howard Douglas Harrison

Specification 4--Robbery of Genevieve Grant (7-Eleven

cashier)

Specification 5--Robbery of Kimberly Gray and Guy

Ensinger (7-Eleven cashiers)

The findings of guilty of the premeditated murder of

Bobby Sharbino (specification 2 of Charge I), the felony

murder of Christopher L. Fay (specification 3 of Charge I),

and the felony murder of Bobby Sharbino (specification 4 of

Charge I) were announced as unanimous. The fraction of the

court voting for all other findings of guilty was not

announced.

After the findings were announced, the military judge

65a

dismissed as multiplicious specification 1 of Charge I

(premeditated murder of Fay), specification 4 of Charge I

(felony murder of Sharbino), and specification 1 of Charge III

(robbery of Fay). A sentencing hearing was conducted in

accordance with RCM 1004, Manual for Courts-Martial,

United States, 1984 (Change 2), after which the court-martial,

by unanimous vote, sentenced appellant to a dishonorable

discharge, total forfeitures, and “to be put to death.”

Additional relevant facts are set out below in connection

with specific issues.

ISSUE I

WHETHER APPELLANT’S SENTENCE OF

DEATH MUST BE SET ASIDE AND ONLY A

LIFE SENTENCE AFFIRMED BECAUSE THE

PANEL MEMBERS FOLLOWED IMPROPER

VOTING PROCEDURES DURING THE

SENTENCING DELIBERATIONS.

Based on ex parte affidavits obtained from 3 of the 8

court members almost 4 years after the court-martial,

appellant now contends that the members did not vote at all

on aggravating factors, did not follow the correct procedure

for proposing sentences, did not vote first on the least severe

sentence proposal, voted on proposals for life imprisonment

and the death sentence at the same time, and reconsidered a

less than unanimous vote to impose the death sentence

without following the procedures for reconsideration.

A. Procedural Rules

In order to adjudge a death sentence, members must

follow the voting procedures set forth in RCM 1004 (Change

2) and 1006. RCM 1004(b)(7) provides:

In closed session, before voting on a sentence, the

66a

members shall vote by secret written ballot

separately on each aggravating factor under

subsection (c) of this rule on which they have been

instructed. Death may not be adjudged unless all

members concur in a finding of the existence of at

least one such aggravating factor. After voting on all

the aggravating factors on which they have been

instructed, the members shall vote on a sentence in

accordance with RCM 1006.

Under RCM 1006(c), “[a]ny member may propose a

sentence.” When the voting begins, RCM 1006(d)(3)(A)

provides:

All members shall vote on each proposed sentence

in its entirety beginning with the least severe and

continuing, as necessary, with the next least severe,

until a sentence is adopted by the concurrence of the

number of members required under subsection

(d)(4) of this rule. The process of proposing

sentences and voting on them may be repeated as

necessary until a sentence is adopted.

RCM 1006(d)(4) provides that a death sentence must be

adopted by unanimous vote and a sentence to life

imprisonment requires a consensus of three-fourths of the

“members. See Garrett v. Lowe, 39 MJ 293 (CMA 1994).

B. The Instructions

During his sentencing instructions, the military judge

informed the members that “a death sentence may not be

adjudged unless all the court members find beyond a

reasonable doubt that one or more of the aggravating

circumstances existed.” He then described the three

aggravating circumstances listed on the sentence worksheet

and explained that “all the members of the court must agree

67a

beyond a reasonable doubt that one or more of the

aggravating circumstances that I just mentioned existed at the

time of the offenses or resulted from the offenses.” He further

explained:

It is not sufficient that some members find that one

aggravating circumstance existed while the

remaining members find that a different aggravating

circumstance existed. Rather, all of you must find

beyond a reasonable doubt that the same

aggravating circumstance or circumstances existed

before a sentence of death may be adjudged.

After further instructions repeating the definition of

reasonable doubt and describing the aggravating

circumstances, he gave the following procedural instructions:

You may consider all the evidence that has

been presented to you in this case, including

evidence presented prior to the findings of guilty in

this case, as well as evidence, of course, presented

after the findings during the sentencing phase of the

trial. Your deliberation on the aggravating

circumstances should properly include a full and

free discussion of all the evidence that has been

presented to you.

After you have completed your discussion,

then voting on each aggravating circumstance must

be accomplished by secret written ballot. All of the

members must vote, none of you are allowed to

abstain. If you fail to find unanimously that at least

one aggravating circumstance existed, then you may

not adjudge a sentence of death. If, however, you

determine that at least one of the aggravating

circumstances existed, then you may consider,

along with all other appropriate sentence

68a

possibilities, for example, punitive discharge and

forfeitures in this case, whether a sentence of death

should be adjudged. In this regard, you may not

adjudge a sentence of death unless all of you find

that any and all extenuating or mitigating

circumstances are substantially outweighed by any

aggravating circumstances, including such

circumstances as you have found existed in the first

step of the procedure ....

The military judge then listed six other “nonstatutory”

aggravating circumstances as well as the extenuating and

mitigating circumstances. The military judge concluded this

portion of the instructions by again reminding the members

that “[a] sentence of death may be adjudged only upon the

unanimous vote of all the members.”

Turning to the sentence worksheet, the military judge

explained:

Part A are those aggravating factors that I

mentioned and at least one of them has to be found

beyond a reasonable doubt, a unanimous finding on

that particular aggravating circumstance before the

rest of the procedures even apply in this case, and

that would be the death sentencing procedures. All

right. So that’s step one.

Step two, then, as you see on the worksheet, is

this balancing of the aggravating and mitigating--

extenuating and mitigating factors, it should be. It

should read, Balancing of Aggravating and

Extenuating and Mitigating Factors. There’s a word

left out. You might want to jot that in on the title

under Part B. But in any case, that’s step two, and

what’s reflected under Part B on the worksheet is

step two of this process.

Then, you move down to Part C, which is the

69a

actual sentence and that--that is step three, as I say,

and I’ll go into that in just a few moments with you

in how to go about then determining an actual

sentence in this case.

After instructing the members on forfeitures and punitive

discharges, the military judge then gave the following

procedural instructions for “step three” voting on sentences:

When you close to deliberate and vote, only

the members will be present during your closed

session deliberations and your deliberations should

begin, first, with a full and free discussion on the

general subject of sentencing. The influence of

superiority in rank shall not be employed in any

manner in an attempt to control the independence or

judgment of any other court member. When you

have completed that discussion, then any member

who desires to do so may propose a sentence and

you do that by writing it down on a slip of paper,

and that would be a complete or entire sentence.

The idea behind that instruction is you shouldn’t

piecemeal the punishments. The junior member will

collect those proposed sentences, submit them to the

president, who will arrange them in the order of

severity.

You then vote on those proposed sentences by

secret written ballot. All of you must vote, none of

you are allowed to abstain. You vote on each

proposed sentence in its entirety, beginning with the

lightest, until you arrive at the required

concurrence. For a sentence to death, all of you

must concur in the sentence. For a sentence that

includes life imprisonment, which is the mandatory

minimum sentence, three-fourths of the members

must agree on a sentence and that would be,

70a

because there are eight, six of you must agree.

The junior member will then collect and count

the votes. The count is then checked by the

pres'dent, who will immediately announce the result

of the ballot to the rest of the court members. If you

vote upon all of the proposed sentences without

arriving at the required concurrence, then you repeat

the process of proposing and voting on the

sentences. The second time around, a member may

desire--if a member desires to do so, you may vote

on all new proposals or proposals rejected by an

earlier vote. But remember, unanimous--a death

sentence, unanimous vote, all the members, three-

quarters for a sentence that includes life in prison.

Now, you may reconsider your sentence, no

matter what it is, you may reconsider that sentence

at any time before it is announced in.open court by

the colonel. If that occurs, then the proper procedure

would be, just as I’ve indicated on findings, and that

procedure would be: Number one, don’t try to do it

yourselves; number two, come back out, open the

court, tell me, in very general terms, colonel, that a

member, no specifics, please, a member has

requested reconsideration. Then, at that time, I'll

tell you what those instructions are. They are

somewhat lengthy and involved, a little

complicated, so I won’t give them now, remember

though that, legally, any member may request

reconsideration. Please, though, remember the

process. ;

C. The Announcement of the Sentence

Tla

The court members closed to determine a sentence at

1:14 p.m. Four hours and 41 minutes later, at 5:55 p.m., they

informed the military judge that they had arrived at a

sentence. The president of the court-martial then announced

that they had unanimously found, “beyond a reasonable

doubt,” all three aggravating factors. Then he announced that

the court-martial'had found unanimously that “any

extenuating and mitigating circumstances are substantially

outweighed by any aggravating circumstances, including the

factors as found indicated in Part A.” Finally, the president

announced the sentence: “To forfeit all pay and allowances, to

be discharged from the service with a Dishonorable

Discharge, to be put to death.” A copy of the sentence

worksheet is attached as an Appendix.

D. The Post-Trial Affidavits

The sentence was adjudged on April 3, 1989. In February

1993, appellate defense counsel obtained affidavits from

Colonel Aylor, the court-martial president; and Major Napoli

and Captain (CPT) Williams, members. Defense Appellate

Exhibits (Def. App. Ex.) F, G, and H. Colonel Aylor’s

affidavit states the following:

The jury received instructions from the judge on

sentencing and then we went into the jury room. I

explained to the other members of the jury what we

were supposed to do and how we would do it. I also

reminded everyone that the minimum sentence was

life imprisonment as explained to me by the judge.

We did not re-vote and [sic] aggravating factors

during the sentencing procedure . . . . The first vote

resulted in the following: 7 votes of reduce to El,

forfeiture of all pay and allowances, bad conduct

discharge and death; 1 vote of reduce to El,

forfeiture of all pay and allowances, bad conduct

72a

discharge and life imprisonment. The judge had

explained before we adjourned that the death

penalty required a unanimous vote..... After

another i 1/2 hours of review, I asked if everyone

was prepared to vote again. They said they were...

. The second vote resulted in the following: 8 votes

of reduce to El, forfeiture of all pay and

allowances, bad-conduct [sic] discharge and death.

Major Napoli’s affidavit states the following:

Following Colonel Aylor’s remarks, we voted by

secret written ballot. Colonel Aylor counted the

ballots.

Since there was not a consensus, we discussed the

facts and evidence in the case again. After which

[sic] Colonel Aylor instructed us to vote again. This

vote resulted in an unanimous sentence to death

Captain Williams’ affidavit states the following:

We discussed the facts and evidence in the case.

Then Colonel Aylor told us that we each had two

options, we could vote life imprisonment or death,

but that death required a unanimous vote.

Following Colonel Aylor’s remarks, we voted by

secret written ballot. Colonel Aylor counted the

ballots and the result was seven in favor of death

and one in favor of life imprisonment.

Since there was no consensus, we discussed the

facts and evidence in this case again. We did not

seek help from the military judge. Instead,

following our continued deliberations, Colonel

Aylor instructed us to vote again. We voted using

the same procedure as before, picking between

73a

death and life imprisonment. The result of the

second vote was eight in favor of death and zero in

favor of life ....

Based on the affidavits, appellant argues that the court-

martial members did not follow the judge’s procedural

instructions. More specifically, he argues that the members

did not vote at all on the aggravating factors, did not follow

the ‘correct procedure for proposing sentences, did not vote

first on the least severe proposed sentence, voted on the

sentences to life imprisonment and death at the same time,

and revoted after a 7-1 vote to impose the death sentence

without following the procedures for reconsideration.

We conclude that the affidavits are ambiguous at best.

For example, it is unclear what COL Aylor means when he

speaks of a “revote” on aggravating factors. Likewise, it is

unclear whether the 7-1 “vote” was actually the first round of

proposed sentences or a permissible “straw poll.” See United

States v. Lawson, 16 MJ 38, 41 (CMA 1983).

Court members “are presumed to follow the military

judge’s instructions.” United States v. Holt, 33 MJ 400, 408

(CMA 1991). In this case that presumption is reinforced by

the sentence worksheet and the president’s announcement that

ali members found that the aggravating factors were proven

beyond a reasonable doubt, that all members found that the

aggravating circumstances outweighed the extenuating and

mitigating circumstances, and that all members voted to

impose the death sentence. No court member disputed the

president’s announcement at the time.

We recognize that the presumption of compliance with

the military judge’s instructions can be rebutted by competent

evidence to the contrary. The pivotal question with respect to

Issue I is whether the affidavits are competent evidence. In

this regard, Mil.R.Evid. 606(b), Manual, supra, provides:

74a

Upon an inquiry into the validity of the findings or

sentence, a member may not testify as to any matter

or statement occurring during the course of the

deliberations of the members of the court-martial or,

to the effect of anything upon the member’s or any

other member’s mind or emotions as influencing the

member to assent to or dissent from the findings or

sentence or concerning the member’s mental

process in connection therewith, except that a

member may testify on the question whether

extraneous prejudicial information was improperly

brought to the attention of the members of the

court-martial, whether any outside influence was

improperly brought to bear upon any member, or

whether there was unlawful command influence .. . .

Mil.R.Evid. 606(b) is taken from Fed.R.Evid. 606(b).

Except for changes to reflect court-martial terminology,

Mil.R.Evid 606(b) is identical to Fed.R.Evid. 606(b) with one

addition: the reference to unlawful command influence. See

Drafters’ Analysis of Mil.R.Evid. 606, Manual, supra at A22-

41 (Change 2). The identical language is consistent with the

statutory mandate in Article 36(a), UCMJ, 10 USC § 836(a),

that the President prescribe procedures which, “so far as he

considers practicable, apply the principles of law and the rules

of evidence generally recognized in the trial of criminal cases

in the United States district courts ..... By adopting the

language of Fed.R.Evid. 606(b) in Mil.R.Evid. 606(b), the

drafters clearly intended that the federal rule apply to courts-

martial, with an additional provision for cases involving

unlawful command influence.

The purpose of this rule is to protect “freedom of

deliberation,” protect “the stability and finality of verdicts,”

and protect court members “from annoyance and

embarrassment.” United States v. Bishop, 11 MJ 7, 9 (CMA

75a

1981).

Appellant makes three arguments for considering the

affidavits in this case. First, he argues that the rule is only

intended to protect the subjective thoughts of the court

members and does not preclude inquiry into objective factors

such as voting procedures. Second, he argues that the

affidavits indicate unlawful command influence on the part of

the president, Colonel Aylor. Third, he argues that “death is

different” and that Mil.R.Evid. 606(b) should not be strictly

applied if there is evidence of a procedural irregularity in

imposition of the death sentence. We find these arguments

unpersuasive. Based on our review of judicial and legislative

history, we hold that the affidavits are not competent

evidence.

With regard to appellant’s first argument, there is some

authority among the precedents of this Court for the

proposition that affidavits of court members may not be

considered to support an allegation that the court members

used erroneous procedures during deliberations. See United

States v. West, 23 USCMA 77, 48 CMR 548 (1974) (opinion

by Duncan, C.J., with Quinn, J., concurring in the result and

Ferguson, S.J., not participating). Two Courts of Military

Review have permitted asking court members whether voting

was by secret written ballot, but both cases have justified such

an inquiry on the ground that the possibility of oral voting

raises the possibility of unlawful command influence. See

United States v. Greene, 36 MJ 1068, 1071 (ACMR), aff’d on

other grounds, _ MJ_ (CMA Sep. 29, 1994); United States v.

Martinez, 17 MJ 916, 918, 919-20 (NMCMR 1984). Most

recently, in a capital murder case, the Navy-Marine Corps

Court of Military Review has refused to consider post-trial

evidence that court members did not follow the proper

procedure for reconsidering their findings. United States v.

Thomas, 39 MJ 626 (1993) (on motion).

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The federal Courts of Appeals have uniformly refused to

consider evidence from jurors indicating that the jury ignored

or misunderstood instructions in criminal cases. See United

States v. Miller, 806 F.2d 223; 225 (10th Cir. 1986) (rejected

general allegation by juror that she may not have understood

judge’s instructions); United States v. Neary, 552 F.2d 1184,

1190 (7th Cir.), cert. denied, 434 U.S. 864 (1977) (rejected

evidence that juror may not have understood burden of proof

in criminal case); United States v. Stacey, 475 F.2d 1119, 1121

(9th Cir. 1973) (rejected evidence that three jurors did not

understand that “intent to defraud” was element of offense);

United States v. Dioguardi, 492 F.2d 70 (2d Cir.) (rejected

opinions of psychiatrists that juror was mentally incompetent

and incapable of understanding instructions), cert. denied, 419

U.S. 829 (1974); Dobbs v. Zant, 720 F.Supp. 1566, 1568-69

(ND Ga. 1989) (rejected evidence that jury may have

considered prior convictions contrary to judge’s instructions),

aff’d, 963 F.2d 1403 (11th Cir. 1991), rev’d on other arounds,

113 S.Ct. 835 (1993). See generally 65 ALR Fed. § 10 at 852

(1983). As noted by Chief Judge Sullivan in his separate

concurrence, _ MJ at (/-2), several state courts have held,

even in capital cases, that evidence obtained from jurors

concerning the deliberative process may not be used to

impeach the verdict.

It may be improper even to ask jurors whether they

followed the judge’s instructions. See United States v. Greer,

620 F.2d 1383, 1385 n. 2 (10th Cir. 1980). See also RCM

922(e) and 1007(c) (“Except as provided in Mil.R.Evid. 606,

members may not be questioned about their deliberations and

voting.”).

Appellant argues that Fed R.Evid. 606(b) and its military

counterpart preclude inquiry only into the jury’s compliance

with substantive instructions such as what the jury may

consider, but do not preclude inquiry into the jury’s

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compliance with objective instruction such as voting

procedures. This objective-subjective distinction was

expressly rejected in Tanner v. United States, 483 U.S. 107

(1987). in Tanner the Supreme Court traced the legislative

history of Fed.R.Evid. 606. They observed that Congress

rejected an expansive House version of the rule which would

have allowed juror testimony regarding “objective juror

misconduct.” The House version specifically drew a

distinction between inquiry into “the mental processes” of

jurors and “what happened in terms of conduct in the jury

room.” 483 U.S. at 123. The House version would have

allowed a juror to testify as to “what happened during the

jury’s internal deliberations, for example, where a juror

alleged that the jury refused to follow the trial judge’s

instructions or that some of the jurors did not take part in

deliberations.” 483 U.S. at 123-24, citing S. Rep. No. 93-1277

at 13-14. Congress rejected the House version and instead

adopted the more restrictive Senate version, which prohibits

all juror testimony about what occurred during deliberations,

except for testimony about extraneous influences. 483 U.S. at

125.

The Supreme Court made it clear in Tanner that

Fed.R.Evid. 606(b) is a blanket prohibition on juror testimony

to impeach a verdict. The only exception in that rule is for

evidence of extraneous influence. Absent that exception, a

juror “may not testify as to any matter . . . occurring during

the course of the jury’s deliberations.” Fed.R.Evid. 606(b)

(emphasis added).

Fed.R.Evid. 606(b) makes incompetent any testimony

from jurors about the decision-making process of the jury as

well as the mental processes of individual jurors. Following

the Supreme Court’s decision in Tanner, at least two federal

Courts of Appeals have refused to inquire into allegations of

irregularities in jury voting procedures. In United States v.

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Ortiz, 942 F.2d 903, 913 (1991), cert. denied, 112 S.Ct. 2966

(1992), the Seventh Circuit rejected an affidavit of a juror

alleging oral voting, voting on all counts together instead of

voting on eac’) count presented against each defendant, and

alleging that the verdict announced in court was not her

verdict. The court in Ortiz specifically noted that “the

Advisory Committee notes accompanying 606(b) single out

voting as such a ‘component of deliberation.’” In United

States v. Ford, 840 F.2d 460 (7th Cir 1988), the court rejected

evidence that votes were taken before all evidence was

reviewed and “votes were cast verbally.” The court held that it

“will not inquire into the jury’s deliberative process, including

arguments, statements, discussions, mental and emotional

reactions, and votes, in the absence of a claim of external

influence.” Jd. at 465 (emphasis added). Based upon the

foregoing, we are satisfied that the overwhelming weight of

authority prohibits inquiry into the voting procedures actually

used by court members to arrive at a sentence.

Since Mil.R.Evid. 606 was taken from Fed.R.Evid. 606,

that same blanket prohibition applies to testimony of court

members about “any matter,” including voting procedures,

“occurring during the course of the deliberations.”

Accordingly, we hold that the affidavits of Colonel Aylor,

Major Napoli, and Captain Williams may not be considered

except for the limited purpose of determining if extraneous

influence or unlawful command influence may have been

injected into the deliberations. See United States v. Accordino,

20 MJ 102, 105 (CMA 1985).

Appellant has not alleged that Colonel Aylor exercised

unlawful command influence during the deliberations.

Nevertheless, our dissenting brother detects “a distinctly

disconcerting aroma” of unlawful command influence

“emanating” from the affidavits of the court members. _ MJ at

(14) (Wise, J.). We note first that the reference to unlawful

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command influence in Mil.R.Evid. 606(b) is not limited to

“external command influences.” It also applies to “use of rank

by a court member to pervert military justice.” United States v

Accordino, 20 MJ at 104. See United States v. Carr, 18 MJ

297, 302 (CMA 1984) (allegation that president of court-

martial used influence of rank to pressure other members

during deliberations falls within “unlawful command

influence” exception to Mil.R.Evid. 606(b)).

Our review of the affidavits is limited to determining if

there is any evidence of unlawful command influence. United

States v. Accordino, supra at 105. We hold that the affidavits

do not raise an issue of unlawful command influence in this

case. Colonel Aylor was the president of the court-martial, and

as such had certain administrative duties and discretion in the

performance of those duties. His authority as president

included “the discretion to call for a vote when, in [his]

judgment, discussion of the issues is complete or further

debate would be pointless.” 20 MJ at 105. The affidavits

reflect no more than Colonel Aylor’s proper exercise of

authority as president to preside over the deliberations. The

affidavits also contain no evidence that Colonel Aylor used his

“rank to ‘enhance’ an argument--i.e., to coerce a subordinate

to vote in a particular manner.” Jd. at 105. In this regard, it is

important to remember that full and free discussion cuts both

ways. “Senior ranking court members, like their juniors, are

free to espress their opinions in the strongest terms and to

engage in the most robust discussions without fear of

retribution or appellate sniping.” Jd. at 105.

Our dissenting brother relies on the oral arguments of

appellate counsel to conclude that “the command influence

issue is squarely before this Court.” _ MJ at (13). Suffice it to

say, oral arguments are not evidence. There must be more than

a mere allegation of command influence to raise the issue;

there must be evidence. See United States v. Levite, 25 MJ

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334, 341 (CMA 1987) (Cox, J., concurring) (“[A]n appellant’s

unsubstantiated assertion that unlawful command influence

exists is not going anywhere .. . .”). There is absolutely no

suggestion in the affidavits that Colonel Aylor exercised

unlawful command influence.

We turn finally to appellant’s argument that “death is

different.” Appellant argues that the nature of the death

sentence requires heightened scrutiny of the process by which

it is imposed. He cites the Supreme Court’s observation in

McDonald v. Pless, 238 U.S. 264, 268-69 (1915), “that it

would not be safe to lay down any inflexible rule because

there might be instances in which such testimony of the juror

could not be excluded without ‘violating the plainest

principles of justice.’” Mattos v. United States, 146 U.S. 140,

148 (1892), was cited to support this statement. We do not

believe that McDonald v. Pless, supra, supports appellant’s

argument. In McDonald v. Pless and Mattos v, United States

(a capital murder case), both supra, the Supreme Court was

dealing with the common law rule “that a juror cannot

impeach his own verdict,” 238 U.S. at 267, and they decided

that an exception should be made where external influences

on the jury were involved. Of course, that exception was later

adopted in Fed.R.Evid. 606(b) and Mi! R. Evid. 606(b). We

have found no authority for a capital-case exception to the

general prohibition against jurors impeaching their sentence.

In fact, the weight of authority is to the contrary. See Dobbs v.

Zant, 963 F.2d 1403, 1411 (11th Cir. 1991) (refused to

consider juror’s testimony that jury arbitrarily imposed death

sentence because they did not believe it would be executed),

rev'd on other grounds, 113 S.Ct. 835 (1993); Silacy v. Peters,

905 F.2d 986, 1008 (7th Cir. 1990) (refused to consider juror’s

testimony that jury did not believe a death sentence would be

executed), cert. denied, 498 U.S. 1110 (1991); Dobbs v. Zant,

720 F.Supp. at 1568 (refused to consider juror’s deposition

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that she voted for death sentence because of prior convictions

which judge had instructed jurors not to consider), rev’d on

other grounds, 113 S.Ct. 835 (1993). See also Songer v. State,

463 So. 2d 229, 231 (Flat 1985) (refused to consider juror’s

testimony that she erroneously thought she could not consider

nonstatutory mitigating factors).

One federal Court of Appeals appeared to recognize a

“due process” exception to Fed.R.Evid. 606 in Shillcutt vy.

Gagnon, 827 F. 2d 1155, 1159 (7th Cir. 1987):

The rule of juror incompetency cannot be

applied in such an unfair manner as to deny due

process. Thus, further review may be necessary in

the occasional case to discover the extremely rare

abuse that could exist even after the court has

applied the rule and determined the evidence

incompetent.

In fact, however, Shillcutt actually involved an external

influence on the jury, i.e., racial prejudice, and thus may not

involve an exception to Fed.R.Evid. 606. See Tobias v. Smith,

468 F.Supp. 1287, 1291 (WDNY 1979) (racial prejudice is

external influence).

Likewise, there is some authority for a “clerical error”

exception, which may or may not fall under the “due process”

umbrella, in which affidavits of a juror were received to show

that the verdict announced was not the verdict “actually

agreed upon.” United States v. Dotson, 817 F.2d 1127, 1130

(Sth Cir. 1987), revised in part on other grounds, 821 F.2d

1034 (Sth Cir., 1987). There is no allegation of clerical error in

appellant’s case. Even if the affidavits are construed in the

light most favorable to appellant, they fall short of suggesting

that the multiple findings regarding aggravating

circumstances, the balancing of aggravating circumstances

against extenuating and mitigating circumstances, and the

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announced sentence are not what was actually agreed upon.

At most, the affidavit of Colonel Aylor could be construed to

suggest that the court members did not “revote” on the

aggravating factors after their earlier unanimous findings.

Accordingly, the clerical error exception does not apply to this

case.

The only remaining question is whether this Court

should carve out an exception for military capital cases. We

decline to do so. We believe that invading the court-martial

deliberations on the basis of the three affidavits proffered by

appellant would be contrary to the intent of Congress in

adopting Fed.R.Evid. 606(b), contrary to the intent of the

President in promulgating Mil.R.Evid. 606(b), and contrary to

the decision of the Supreme Court in United States v. Tanner,

supra, and the overwhelming weight of authority among the

federal courts which have considered the issue. Accordingly,

we will not consider the affidavits or order further inquiry into

the matters addressed by them. Moreover, in the absence of

any competent evidence to the contrary, we hold that the court

members followed the military judge’s correct instructions on

voting procedures to be followed during the sentencing

deliberations.

ISSUE II

WHETHER APPELLANT WAS DEPRIVED OF .

HIS RIGHT TO A RELIABLE MENTAL HEALTH .

EVALUATION WHICH IN TURN DEPRIVED

APPELLANT OF THE EFFECTIVE

ASSISTANCE OF TRIAL DEFENSE COUNSEL :

IN VIOLATION OF THE FIFTH, SIXTH, AND ;

EIGHTH AMENDMENTS AND ARTICLE 55,

UCMIJ.

Appellant did not attack the qualifications of his sanity

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board at trial or before the Court of Military Review. He

attacked his counsel before the Court of Military Review,

contending that they were ineffective for not raising the issue

of his mental responsibility. 34 MJ at 1067-68. Having lost

before the Court of Military Review on the ineffectiveness-of-

counsel issue, appellant now maintains that he was deprived

of the effective assistance of counsel because his counsel

relied on a defective sanity board.

On January 6, 1989, prior to his court-martial, appellant

requested psychiatric assistance in accordance with Ake v.

Oklahoma, 470 U.S. 68 (1985) and United States vy. Toledo, 25

MJ 270 (CMA 1987), cert. denied, 488 US. 889 (1988). On

January 9, a sanity board was ordered in accordance with

RCM 706 (Change 3). The Sanity board was composed of two

psychiatrists, Major David Orman, M.D. and Captain Richard

Moczygemba, M.D.; and a clinical psychologist, Captain

Lang Coleman. The board concluded that appellant had an

antisocial personality disorder and a borderline personality

disorder but no severe mental disease or defect.

The sanity board submitted its report on February 6,

1989. On February 9, defense counsel repeated concern

expressed earlier that appellant had an Organic brain

dysfunction. Captain Moczygemba, a member of the sanity

board, agreed that appellant should be tested further and

referred him to Dr. Pamelia F. Clement, Ph.D., a clinical

psychologist, for neuropsychological evaluation. Dr. Clement

found no evidence of mental impairment.

CPT Moczygemba also requested radiologic testing to

exclude possible organic brain defects. A CT scan was

conducted on appellant, which showed no abnormalities. The

sanity board issued an addendum on February 17 reflecting

the additional testing. Def. App. Es. C.

Defense counsel also requested funding to hire a defense

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psychiatric expert and later named the one they wanted. The

request for funding was denied on January 27, 1989, but the

Government offered a military psychiatrist as a substitute.

After rejecting two military psychiatrists, the defense

accepted COL David Armitage, a forensic psychiatrist, who

holds professional degrees in both medicine and law. COL

Armitage is Associate Chairman for Forensic Science and

Litigation Support, Department of Legal Medicine, Armed

Forces Institute of Pathology, Washington, D.C., and

Consultant Emeritus to the Surgeon General of the Army on

Forensic Psychiatry. COL Armitage worked as a member of

the defense team, was present at most of appellant’s court-

martial, and participated in voir dire of the court members.

After appellant was convicted and sentenced, appellate

defense counsel obtained evidence that Captain Coleman,

who had been identified in the sanity board report (43) as

“Ph.D. clinical psychologist,. did not receive his Ph.D. until

May 1989 and was not licensed by the State of Wisconsin

until September 1989. In response to the defense evidence,

government appellate counsel produced evidence that Captain

Coleman completed all his educational requirements for his

Ph.D. in the fall of 1988, even though he did not receive his

degree until May of 1989 and that Captain Coleman was

credentialed by the Army to serve as a clinical psychologist.

After trial, appellate defense counsel obtained several

affidavits attacking the validity of the psychological and

neuropsychological tests performed by Captain Coleman and

Dr. Clement. An affidavit from Dr. Niles, Director of the

Trauma Recovery and Counseling Center, Alexandria,

Virginia, asserts that Captain Coleman erred by not

2onducting follow-up psychological tests for Post-Traumatic

Stress Disorder. Dr. Niles further asserts that there are clear

indicators that appellant suffers from post-traumatic stress

disorder. Affidavits from Dr. H. Anthony Semone

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(psychologist) and Dr. James Merikangas (psychiatrist) assert

that the neuropsychological testing conducted by Dr. Clement

was performed improperly and thus is invalid.

The first question is whether appellant’s constitutional

right to have access to a competent psychiatrist has been

infringed. In Ake v. Oklahoma, 470 U.S. at 83, the Supreme

Court set out the standard:

We therefore hold that when a defendant

demonstrates to the trial judge that his sanity at the

time of the offense is to be a significant factor at

trial, the State must, at a minimum, assure the

defendant access to a competent psychiatrist who

will conduct an appropriate examination and assist

in evaluation, preparation, and presentation of the

defense. This is not to Say, Of course, that the .. .

defendant has a constitutional right to choose a

psychiatrist of his personal liking or to receive

funds to hire his own... .

We hold that the Ake standard has been met in

appellant’s case. Appellant was given access to several

competent psychiatrists. Major Orman and Captain

Moczygemba, whose credentials have not been attacked,

evaluated appellant during his initial sanity board. Colonel

Armitage, whose competence has not been attacked,

participated throughout the trial as a member of the defense

team.

The next question is whether the requirements of RCM

706 (Change 3) have been met. RCM 706(c)(1) provides that

an inquiry into mental capacity or mental responsibility “shall

be referred to a board consisting of one or more persons. Each

member of the board shall be either a physician or a clinical

psychologist.”

We hold that the requirements of RCM 706(c)(1) have

86a

been met in appellant’s case. A board consisting of a single

psychiatrist would have satisfied the rule. Furthermore, even

assuming arguendo that Captain Coleman had not received

his Ph.D. degree at the time he participated in the board, there

is nothing in the rule requiring that a “clinical psychologist.

possess a Ph.D. The record before us reflects that Captain

Coleman was a trained psychologist, was credentialed by

Army medical authorities as a clinical psychologist, and was

assigned to duties as a clinical psychologist. RCM 706 was

amended in 1986 to parallel prevailing federal practice of

allowing use of clinical psychologists in mental status

evaluations. Drafters’ Analysis of RCM 706(c)(1), Manual,

supra at A21-36 (Change 3). Unlike 18 USC 4247(b), RCM

706(c)(1) does not specify that the psychiatrist or psychologist

performing the evaluation be “licensed or certified.”

Nevertheless, in the absence of evidence to the contrary, the

fact that Captain Coleman was credentialed by military

medical authorities to perform duties as a clinical

psychologist raises a presumption that he was qualified to do

so. See United States v. Masusock, 1 USCMA 32, 35, 1 CMR

32, 35 (1951) (“presumption of regularity in the conduct of

governmental affairs”). That presumption has not been

rebutted in this case.

Next we must ask whether the post-trial affidavits

warrant additional mental examinations pursuant to RCM

706(c)(4). We hold that they do not. While the defense experts

attack the methodology of the mental health professionals

who evaluated appellant, there is not one iota of evidence that

appellant lacked mental responsibility at the time of the

offenses or mental capacity at the time of trial.

Finally, we must address appellant’s claim that he was

deprived of effective assistance of counsel because they relied

on a flawed examination into his mental health. While

appellant has produced affidavits of experts who assert that

87a

the methodology was flawed, he has produced nothing to

show that the results are incorrect. Disagreements among

professionals do not per se show incompetence. Appellant has

premised his ineffective-counsel argument on an Ake

violation, which, as noted above, he has not shown. Since we

hold that there was no Ake violation, we resolve this issue

against appellant.

iil

WHETHER APPELLANT WAS DENIED THE

EFFECTIVE ASSISTANCE OF COUNSEL

GUARANTEED BY THE SIXTH AMENDMENT

AT BOTH STAGES OF HIS BIFURCATED

TRIAL.

Appellant alleges ten different errors that he asserts rise

to the level of ineffective assistance of counsel as defined in

Strickland v. Washington, 466 U.S. 668 (1984). We will

analyze each alleged error separately.

A. Trial defense counsel failed to conduct an

adequate investigation and thus did not discover

necessary and relevant information concerning

appellant’s drug and alcohol use prior to and

during the offenses.

Appellant contends that defense counsel failed to utilize

the testimony of two potential witnesses, Ms. Gerlinde Joseph

and Ms. Beverly Sedberry. It is unclear from the post-trial

affidavits of counsel whether defense counsel knew prior to

trial what these potential witnesses would have said if called

to testify.

In a post-trial affidavit, Ms. Joseph declared that on the

night of December 12, 1988, she noticed appellant “drinking

an entire bottle of Jack Daniels, and taking cocaine, hash,

marijuana, and amphetamines.” She further swore that “{hje

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seemed to be taking anything that he could get his hands on.

By the time he left, he was extremely intoxicated and high.”

In a post-trial statement, Ms. Sedberry stated that on the

day of the 7-Eleven robberies, appellant used cocaine. She

also declared that on December 12, 1988, she knew “for a fact

that he got some cocaine that afternoon. At the very least,

Dwight was doing cocaine, marijuana and drinking.” Def.

App. Ex. R (Vol. IV, Appellate Papers).

Appellant contends that defense counsel failed to

properly investigate this evidence and failed to raise

intoxication as a defense. Government appellate counsel argue

that defense counsel’s pretrial investigation of the case was

reasonable.

The Supreme Court has stated that “counsel has a duty to

make reasonable investigations or to make a reasonable

decision that makes particular investigations unnecessary.”

However, “a particular decision not to investigate must be

directly assessed for reasonableness in all the circumstances,

applying a heavy measure of deference to counsel’s

judgments. Strickland v. Washington, 466 U.S. at 691.

In this case appellant told his counsel that “he had been

drinking” alcohol “and smoking some marijuana prior to the

murders,” but that his marijuana and alcohol usage had “not

intoxicated or affected” him during his crimes. Govt. App. Ex.

3 at 1. See Matheson v. King, 751 F.2d 1432 (Sth Cir. 1985)

(rejecting a post-trial attack on counsel’s performance where

appellant did not tell counsel he was intoxicated at the time of

the offense), cert. dismissed, 475 U.S. 1138 (1986); Bertolotti

v. Dugger, 883 F.2d 1503 (11th Cir. 1989) (counsel not

ineffective where he failed to raise voluntary intoxication

defense to murder where defendant told police that he lied

about his intoxication and where evidence of intoxication was

not sufficient), cert. denied, 497 U.S. 1032 (1990).

In post-trial affidavits, defense counsel have stated that

89a

they chose not to present evidence of voluntary intoxication

for strategic reasons. Defense counsel discussed the

possibility of an intoxication defense with a medical expert

who advised against raising such a defense. The defense team

was aware of psychological literature Stating that criminals

use “alcohol and drugs to ‘get up their nerve’ to commit

crimes” and were concerned that appellant’s use of drugs

would be viewed as an aggravating factor rather than a

mitigating factor. Govt. App. Ex. 2 at 7. See Rogers v. Zant,

13 F.3d 384 (llth Cir. 1994) (decision not to investigate

possible defense based on drug use was reasonable where

counsel knew that local jury would likely react hostilely to

such a defense), cert. denied, 63 U.S.L.W. 3265 (No. 94-

5383, Oct 3, 1994); Wilkins v. Iowa, 957 F.2d 537, 541 (8th

Cir. 1992) (failure to present evidence of voluntary

intoxication a “reasonable professional judgment[]” because

jury might be unsympathetic to “self-induced intoxication”),

Furthermore, defense counsel believed that a voluntary

intoxication defense could be impeached by appellant’s

detailed confession and the detailed statements to the

psychiatrist at the sanity board. These detailed recollections

were not likely to come from a mind significantly diminished

in capacity by drugs and alcohol, thus they would have made

the defense appear contrived.

We hold that appellant has not satisfied the first prong of

Strickland v. Washington, 466 U.S. at 687, by showing that his

counsel’s performance was deficient. Although defense

counsel were aware of some evidence of voluntary

intoxication, they chose not to pursue that defense. They have

offered sound reasons for their decision, and we will not

second-guess counsel after-the-fact. Jd. at 689. See id. at

690-91 (“[S]trategic choices made after less than complete

investigation are reasonable precisely to the extent that

reasonable professional judgments support the limitations on

investigation.”’) .

B. Trial defense counsel failed to move to suppress

appellant’s confessions on the basis that they were

improperly coerced and involuntary.

Appellant does not claim that he was interrogated

without being advised of his rights, but rather that his

confession was coerced. Mil.R.Evid. 304 states that, -

notwithstanding valid police warnings given pursuant to

Miranda y. Arizona, 384 U.S. 436 (1966), and Article 31,

UCMSJ, 10 USC § 831(b), involuntary statements made by an

accused are per se inadmissible to prove guilt. Voluntariness

is to be determined through a totality-of-the-circumstances

test. Blackburn vy. Alabama, 361 U.S. 199 (1960).

Appellant asserts four reasons why his confession was

involuntary: (1) he was denied the opportunity to talk with an

attorney; (2) CID threatened to deport appellant’s girlfriend;

(3) appellant was intoxicated; and (4) investigators

consistently promised appellant that he could see his

girlfriend. Appellant argues that his counsel was aware of

these indicators of involuntariness but failed to move to

suppress appellant’s confessions.

Appellant’s first reason is unsupported by the record. The

record reflects that appellant was advised of his rights by SA

Schnayerson, that he waived his right to a lawyer in writing,

that his confession was videotaped, and that appellant slept

for 8 hours while the tapes were transcribed into a written

statement. On the following morning appellant acknowledged

in writing that he had again been advised of his right to a

lawyer. He took about an hour to review the 14-page, single-

spaced transcript of his interview, initialed each page, and

then signed and swore to his statement. Other than his bare

post-trial assertion, appellant has offered no evidence to

contradict the evidence of record. On the basis of the record

9la

before us, we cannot fault counsel for failing to object to the

confession based on a denial of counsel.

The second reason is likewise unsupported by the record.

Appellant claims that this allegation is corroborated by the

fact that his girlfriend was located in an adjoining room

during part of appellant’s confession where the police would

have ready access to her passport. In fact, the record reflects

that Ms. Pessina was at her home in. Killeen while it was

being searched at the same time appellant was being

questioned at Fort Hood by the CID. Unfortunately for

appellant, the record is devoid of any evidence that Ms.

Pessina was threatened with deportation, that any such threats

were communicated to appellant, or that appellant complained

to his counsel or anyone else of any threats to deport his

girlfriend. Indeed, in an affidavit, the lead defense counsel

specifically denied that appellant told him about any mention

of deportation or of appellant’s being shown her passport

during the interrogation. (Def. App. Ex. S at 3d page.)

Appellant, however, asserts the contrary. (Def. App. Ex. T.)

Appellant also asserts that his confession was

involuntary because he was intoxicated at the time of the

confession. This assertion is also unsupported by the record.

On the evening of appellant’s arrest, he had been at work for 8

hours. Appellant gave a detailed and coherent confession,

which was videotaped. After Sleeping for 8 hours, appellant

reviewed the transcript of his interview, signed it, and swore

to it. We cannot fault counsel for failure to raise this baseless

objection. See Boggs v. Bair, 892 F.2d 1193, 1199 (4th Cir.

1989) (defendant’s “confession was not made inadmissible by

any degree of intoxication he may have suffered the night in

question,” where the record supported findings that he was not

“so intoxicated that his will was overborne”’), cert. denied,

495 U.S. 993 (1990).

Finally appellant asserts that his confession was 2oerced

92a

through promises that he could see his girlfriend, Nadia. Once

again, the record does not support his assertion. The only

evidence of record pertaining to this alleged coercion is SA

Schnayerson’s testimony that appellant asked to talk to Nadia

and SA Schnayerson responded that it would be “no

problem.” Because the Killeen Police also were conducting

interviews, appellant and Nadia “just never got together.” See

Miller v. Fenton, 741 F.2d 1456, 1467 (3d Cir. 1984)

(“promises by interrogators will not invalidate confession

unless they are sufficient to overbear defendant’s will’), rev'd

on other grounds, 474 U.S. 104 (1985). We cannot fault

counsel for failure to raise this unsupportable objection.

We hold that appellant’s confession was properly

received in evidence and that failure of defense counsel to

seek suppression of appellant’s confessions did not make their

representation deficient.

C. Trial defense counsel failed to move to suppress

evidence which was unlawfully seized from Ms.

Pessina’s apartment.

Appellant’s girlfriend, Ms. Pessina, was approached by

police investigators on the afternoon of December 13, 1988

and asked to come to the Killeen police station for

questioning. She provided a written statement and signed a

written consent to a search of her residence. The search

yielded appellant’s pistol, spent and unspent bullets, and a

blood-stained man’s jacket.

Ms. Pessina returned to the police station just before

midnight on December 13-14 for further questioning, at

which time she made a second statement and again consented

to a search of her residence, which resulted in seizure of a

black ski mask, a pair of gloves, and a green BIC lighter.

Appellant argues that defense counsel’s performance was

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ineffective in that he failed to move to suppress the evidence

obtained during the two searches on the grounds that Ms.

Pessina’s consent was not voluntary. Since the written consent

forms were not introduced in evidence, see Appendix I to

Answer to Final Brief; and Pros. Ex. 104 for ID, we will not

consider them to uphold the search but will consider them for

the limited purpose of determining whether counsel were

ineffective for failing to contest their efficacy. In each form,

Ms. Pessina acknowledges that she was advised of her

“constitutional right” to have a search of her property made

only with a warrant and of her “right to refuse to consent to

such a search.” App. I, supra.

Ms. Pessina’s testimony at trial Suggests that she may not

have understood that she had a right to refuse. What is clear is

that she understood that her residence would be searched

whether she consented or not.

Appellant bases his argument on primarily two factors:

Ms. Pessina was unfamiliar with search and seizure

procedures; and investigators coerced Ms. Pessina by telling

her that if she did not consent, they could obtain a warrant

anyway.

Where a claim of ineffective assistance of counsel is

based on “defense counsel’s failure to litigate a Fourth

Amendment” objection to evidence, appellant “must .. .

prove that his Fourth Amendment claim is meritorious and

that there is a reasonable probability that the verdict would

have been different absent the excludable evidence... .”

Kimmelman y, Morrison, 477 U.S. 365, 375 (1986).

Assuming arguendo that appellant would have had

tanding to object to a search of Ms. Pessina’s home, which is

questionable, we hold that appellant has failed to demonstrate

that a Fourth Amendment objection to the evidence would

have been meritorious. While defense counsel could have

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challenged the validity of Ms. Pessina’s consent, a motion to

suppress would not have been meritorious for two reasons.

First, an otherwise valid consent is not vitiated by a threat to

obtain a warrant if the threat is well-founded. United States v.

Duran, 957 F.2d 499, 502 (7th Cir. 1992). Second, a search of

Ms. Pessina’s residence was inevitable.

The investigators’ threat to obtain a search warrant was

firmly grounded in that they had probable cause to search the

residence. At the time of the first search, the investigators

knew that appellant and Ms. Pessina fit the general description

given by Mr. Harrison, the surviving cab driver. Mr.

Harrison’s destination when he was robbed and almost

murdered was Ms. Pessina’s residence. She had told police

that she and appellant had taken a cab to her residence, that

she exited at her residence while appellant purportedly

continued in the cab to buy cigarettes, and that appellant

returned to her residence after a short time and spent the

night. Mr. Harrison remembered taking appellant and Ms.

Pessina to the vicinity of 909 Mimosa Street and told police

and his dispatcher that he observed his assailant going back

toward Mimosa Street with the pistol and the fruits of his

robbery. Under the circumstances, we hold that there was

probable cause to search the premises at 909 Mimosa Street,

making any police threat to obtain a warrant well-founded.

By the time of the second search, police also had found a

cab driver’s coin changer in appellant’s field jacket, appellant

had confessed, and-in-his-confession he said that he left a

green lighter taken from one of his victims in Nadia’s

residence.

Apart from the validity of Ms. Pessina’s consent, it is

clear that the items seized during the two searches were

admissible because a search of her residence was inevitable.

Mil.R. Evid. 311(b)(2); Nix v. Williams, 467 U.S. 431 (1984);

United States v. Kozak, 12 MJ 389 (CMA 1982). While the

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search of Ms. Pessina’s residence was ongoing, appellant was

confessing. In his confession, he told investigators that he had

hidden the murder weapon and some of the fruits of the crime

in Ms. Pessina’s residence. We have no doubt that the fast-

moving investigation of appellant’s crimes would have

included a search of Ms. Pessina’s residence.

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