# Appendix — Loving v. Hart

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1998
- **Citation:** 525 U.S. 1040

## Text

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

v

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

la
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

2a

§§ 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).

3a

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.

4a

-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.

5a

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:

6a

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

7a

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

8a

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

9a

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).

I

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.

.
a

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.

Il
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:

(c) Aggravating factors. Death may be adjudged
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;

(C) The murder was committed for the purpose
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.

Il

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

IV

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).

V
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.

VI
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

(c) of this rule.”) The fact of appellant’s status as an actual
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,

V.

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
v.

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

54
54

63

68
70

73
73

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

39

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

7

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
E)

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.

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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.

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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

1

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

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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

1

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 o

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_1405%3A2. Public record. Not legal advice.