Petition for Writ of Certiorari — Chapman v. United States (No. 07-317)

Su rame H a

prem Cau US

07-3175: on

No. OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

SENIOR AIRMAN STEVEN M. CHAPMAN,

Petitioner

UNITED STATES OF AMERICA,

Respondent

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Armed Forces

PETITION FOR WRIT OF CERTIORARI

JOHN S. FREDLAND MARK R. STRICKLAND

CAPTAIN, U.S. AIR FORCE Lr CoLonec, U.S. AIR FORCE

Counsel of Record Counsel for Petitioner

APPELLATE DEFENSE DIVISION

Aik FuokckE LEGAL OPEKAIIONS AUEMe ¥

112 LUKE AVENUE, SUITE 343

BOLLING AFB, DC 20332-8000

(202) 767-1562

September 2007

QUESTION PRESENTED

A general court-martial tricd and convicted the

petitioner, an active duty member of the United

States Air Force, of attempted premeditated murder,

rape, and forcible sodomy of LJ and burglary of

LJ’s dwelling with the intent to commit rape. The

Air Force Court of Criminal Appeals affirmed his

conviction. The Court of Appeals for the Armed

Forces summarily granted and affirmed the Court of

Criminal Appeals’ ruling. The question presented

in this case is:

Whether the convening authority and military judge

denied the petitioner’s due process right to present

his defense by denying petitioner’s requests for an

expert on false confessions, where the government

presented little evidence connecting the petitioner to

the charged offenses besides his purported

confession, and the defense’s theory of the case was

that the confession was false?

il

TABLE OF CONTENTS

Page

EP ae FR EE FD ian ic ttdcsicierivccsnnacetiins il

Fe EIEN wecievintsddekevccsneestyversnisboctaeniniiantel I

Pa IE otis tiatilscientiicninrimainicicanailiatnil ]

CONSTITUTIONAL AND STATUTORY

EY ee Gee 1OE EW GED erecvccnsnninverevccserssturevers l

SA ER Se FM BPR rein ccciscecesccvevensoseocacncs l

REASONS FOR GRANTING THE WRIT............. 4

ee iceviccidinvsvsercouebsntieniinadesnnambiomanmcies 7

APPENDIX A

Opinion of the United States Air Force Court of

Criminal Appeals (14 July 2006)... la

APPENDIX B

Opinion of the United States Court ef Appeals for

the Armed Forces (26 June 2007)... 17a

TABLE OF AUTHORITIES

Page

Constitutional Provisions

ESET CSE IT GTO ANANSI ETE |

YE IIR a AL EERE CD SRE RT 1,4

Decisions of the Supreme Court of the United

States

Ake v. Oklahoma, 470 U.S. 68 (1985) ...........0.02.. 4-7

Military Court Decisions

United States v. Chapman,

ACM 35564 (A.F. Ct. Crim. App. 2006)

is cctectieaieauiannaniien 1-4

United States v. Chapman,

__M.J.__ No. 06-0907/AF

(C.A.A.F. Daily Journal 26 June 2007) 000000000... 1.4

United States v. Ndanvi,

Be ee Le CEs cccccorsoerncenseccsnserecces 5

United States v. Van Horn,

pf el ee Re | nen, |

10 US.

.

‘

8

-§

8

I

67a

Federal Statutes

SOOO EEE H EOE EHR EEE EEH TEES

PORTER O OEE EEE EHE SHEESH EEE HEHEHE EEE HOE OES

The petitioner, Senior Airman Steven M.

Chapman, respectfully prays that a writ of certiorari

issue to review the order and judgment of the United

States Court of Appeals for the Armed Forces entered

in his case on June 26, 2007.

OPINIONS BELOW

The Air Force Court of Criminal Appeals issued

an unpublished opinion on 14 July 2006 (Appendix

A).

JURISDICTION

On June 26, 2007, the Court of Appeals for the

Armed Forces granted the petitioner’s petition for

grant of review of the Court of Criminal Appeals’

decision and affirmed the lower court. (Appendix

B) The jurisdiction of this Court is invoked under

28 U.S.C. § 1259(3) and 10 U.S.C. § 867a(a).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fifth Amendment to the United States

Constitution provides that “[n]o person shall ...be

deprived of life, liberty or property, without due

process of law....” The Fourteenth Amendment to

the United States Constitution provides that “nor

shall any State deprive any person of life, liberty or

property, without due process of law....”

STATEMENT OF THE CASE

A general court-martial tried and convicted the

petitioner, an active duty memben of the United

5

States Air Force, of attempted premeditated

murder, rape, and forcible sodomy of LJ and

burglary of LJ’s dwelling with the intent to commit

rape. Besides his purported confession, the

government presented little evidence to connect the

petitioner to the charged offenses. Both the

convening authority and the military judge had

denied the petitioner’s request to appoint a defense

expert on false confessions.

The Air Force Court of Criminal Appeals

affirmed the petitioner’s conviction. The Court of

Appeals for the Armed Forces summarily granted

and affirmed the Court of Criminal Appeals’ ruling.

Because the convening authority and military

judge’s failure to appoint an expert on false

confessions denied the petitioner his due process

right to present his defense, his case merits review.

1. Factual Background

On 10 February 2001, LJ was assaulted in her

home near Cannon Air Force Base, New Mexico.

See United States v. Chapman, ACM 35564, unpub.

op. at 2-4 (A.F. Ct. Crim. App. 14 Jul 2006). She

identified Airman First Class (AIC) CH as her

attacker. See id. at 4. She told her husband and law

enforcement officials that AlC CH had raped her,

struck her on the head, and cut her throat in a 30-

minute period between 4:00 and 5:00 that morning.

See id. at 2-4.

3

As the trial counsel prepared the case against

AIC CH, he bee ~e# concerned that the scientific

evidence failed t.. « pport LJ’s assertion that AIC

CH had raped her. See id. at 4. He made

arrangements to re-interview many of the potential

witnesses. See id. The trial counsel met with the

petitioner, LJ’s duplex neighbor. See id.

During the interview, the petitioner made

several statements that caused the trial counsel to

ask the Air Force Office of Special Investigations

(AFOSI) to interview the petitioner under rights

advisement. See id. On 7 November 2001, the

petitioner waived his rights and confessed to raping

and sodomizing LJ, and cutting her throat with a

knife. See id. He also provided a written statement

detailing his actions. See id.

Prior to the trial, the defense requested that the

convening authority appoint a false confession

expert to assist in trial preparation. The convening

authority denied the request. The defense filed a

motion to compel production of the expert, but the

military judge denied the request. See R. 681-84;

App. Ex. LXXII-LXXIV. The defense renewed its

request during the trial, but the military judge again

denied it. See R. 1433-38, 1451-52.

2. Proceedings Below

On 13 July 2002, the panel of officer and

enlisted members found the petitioner guilty of

attempted murder, rape and forcible sodomy of LJ

4

and burglary of LJ’s dwelling with the intent

to commit rape. See R. 1828. Two days later, the

panel sentenced him to a dishonorable discharge,

confinement for life with the possibility of parole,

forfeiture of all pay and allowances, and reduction

to the lowest enlisted grade. See R. 1965. The

convening authority approved the adjudged findings

and sentence. See General Court-Martial Order No.

30, dated 30 April 2003, Record of Trial, Vol. 1.

The petitioner appealed to the Air Force Court

of Criminal Appeals, which affirmed the approved

findings and sentence in an unpublished opinion on

July 14, 2006. Appendix A. On June 26, 2007, the

Court of Appeals for the Armed Forces granted the

petitioner’s petition for grant of review of the Court

of Criminal Appeals’ decision and affirmed the

lower court in a summary opinion. Appendix B.

REASONS FOR GRANTING THE WRIT

In Ake v. Oklahoma, 470 U.S. 68,75 (1985), this

Court ruled that “when a defendant has made a

preliminary showing that his sanity at the time of

the offense ts likely to be a significant factor at trial,

the Constitution requires that a State provide access

to a psychiatrist's assistance on this issue if the

defendant cannot otherwise afford one.” The Court

based its opinion in “the Fourteenth Amendment's

due process guarantee of fundamental faimess.”

Parallel concerns in the petitioner's case dictate that

5

the convening authority and military judge

likewise violated his due process right to present his

defense by denying his request for an expert in false

confessions.

It is true that the trial court did not enter a

finding on whether the petitioner was, in fact,

unable to afford an expert in false confessions.

Nevertheless, the highest military appellate court

has recognized the parallel between this Court’s

standards for indigent defendants and the military’s

standards for all service members when analyzing

whether a military accused is entitled to expert

assistance at government expense. See, e.g., United

States v. Ndanvi, 45 M.J. 315 (C.A.A.F. 1996);

United States v. Van Horn, 26 M.J. 434, 437

(C.M.A. 1988). In this light, the petitioner asks this

Court to extend the protections offered to indigent

defendants to the men and women of our armed

services.

When these standards are applied, it follows that

the petitioner was tried without “the raw materials

integral to the building of an effective defense.”

Ake, 470 U.S. at 77. The petitioner’s purported

confession was the linchpin of the government's

case; little evidence corroborated it. Certainly — and

as signaled by the defense in their motion to compel

— the question of the truthfulness of the petitioner’s

statements to AFOSI were likely to be a “significant

factor in his defense.” /d. at 86.

6

This Court’s opinion in Ake provided a three-

factor analysis for determining whether the

government must provide an expert to an indigent

defendant: the private interest affected by the

government’s action, the governmental interest

affected if the safeguard is provided and the value

of the safeguards and risk of an_ erroneous

deprivation of the affected interest. See id. at 77.

The petitioner’s “private interest in the accuracy of

a criminal proceeding that places [his] life or liberty

at risk” is just as “uniquely compelling” as it was

for the defendant in Ake. /d. at 78. Because the

government’s obligation would have been limited to

providing one expert in false confessions and it

would have had the same interest in “the fair and

accurate adjudication of its criminal cases” as in

Ake, the government’s interest would have been

equally “not substantial.” /d.

The third factor — the probable value of the

assistance sought and the risk of error if it were not

offered to the petitioner — also points in the

petitioner’s favor. The defense requested an expert

to advance a counterintuitive theory: that the

petitioner would have confessed to something that

he did not do. Because of its counterintuitiveness,

the theory would have had little chance of success

before the trier of fact — a panel of officer and

enlisted members — without the authoritative

support that an expert would have provided.

Consequently, the requested expert assistance had

7

great value, and its denial carried high risk of error.

It follows that the same principles that caused this

Court to find a denial of due process in Ake are

present in the petitioner’s case. His trial similarly

represents a denial of his due process right to

present his defense.

CONCLUSION

The petitioner therefore respectfully requests

that this Court grant his petition for a writ of

certiorari.

8

Respectfully submitted,

JOHN S. FREDLAND

CAPTAIN, U.S. AiR FORCE

Counsel of Record

MARK R. STRICKLAND

LT COLONEL, U.S. AiR FORCE

Counsel for Petitioner

Appellate Defense Division

Air Force Legal Operations Agency

112 Luke Avenue, Suite 343

Bolling AFB, DC 20332-8000

(202) 767-1562

September 2007

la

Appendix A

UNITED STATES AIR FORCE COURT OF

CRIMINAL APPEALS

UNITED STATES

v.

Senior Airman STEVEN M. CHAPMAN

United States Air Force

ACM 35564

14 July 2006

Sentence adjudged 15 July 2002 by GCM

convened at Cannon Air Force Base, Texas.

Military Judge: Patrick M. Rosenow.

Approved sentence: Dishonorable discharge,

confinement for life with the possibility of

parole, forfeiture of all pay and allowances, and

reduction to E-|

Appellate Counsel for Appellant: Colonel

Beverly B. Knott, Colonel Carlos L. McDade,

2a

Major Terry L. McElyea, Major

Sandra K. Whittington, Major David P. Bennett,

and Major Karen L. Hecker.

Appellate Counsel for the United States:

Colonel LeEllen Coacher, Colonel Gary F.

Spencer, Lieutenant Colonel Robert V. Combs,

Major James K. Floyd, Major John C. Johnson,

and Major Stacey J. Vetter.

Before

ORR, JOHNSON and JACOBSON

Appellate Military Judges

OPINION OF THE COURT

ORR, Senior Judge:

The appellant was convicted, contrary to

his pleas, by a general court-martial, of attempted

premeditated murder, rape, sodomy, and burglary,

in violation of Articles 80, 120, 125, and 129,

UCMS, 10 U.S.C. §§ 880, 920, 925, 929. A panel

of officer members sentenced the appellant to a

dishonorable discharge, confinement for life with

the possibility of parole, forfeiture of all pay and

allowances, and reduction to E-!. The convening

3a

authority approved the findings and sentence

as adjudged.

The case is before this Court for review

under Article 66, UCMJ, 10 U.S.C. § 866. On

appeal, the appellant challenges the legal and

factual sufficiency of his conviction to all of the

charges and specifications. He also asserts that

the military judge erred by admitting the graphic

photograph of the injuries to the victim’s neck.

Additionally, the appellant personally asserted

13 errors for our consideration: ! ( 1) Whether the

military judge erred by denying a defense

motion to suppress his November 2001

statement; (2) Whether the military judge erred

by denying a defense motion to suppress his

October and November 2001 statements; (3)

Whether the military judge erred by admitting

testimony from the = appellant’s ex-wife

regarding a prior assault; (4) Whether the

military judge erred by admitting testimony

from the appellant’s ex-wife regarding their

sexual relationship; (5) Whether the military

judge erred by admitting testimony from two

witnesses who testified about his explanation as

to why someone may have assaulted the victim:

All of the following 13 issues are raised pursuant to

United States v. Grostefon, \2 M.J. 431 (C.M.A. 1982).

4a

(6) Whether —_ the military judge erred by

denying a defense motion for a change of venue;

(7) Whether the military judge erred by

admitting the testimony of a witness after the

government failed to provide the defense with

notice in a timely manner; (8) Whether the

appellant’s mght to a speedy trial was violated;

(9) Whether the appellant is entitled to sentence

credit due to unwarranted post-trial delay; (10)

Whether the appellant was subject to unlawful

pretrial punishment when the conditions of his

pretrial confinement violated Article 13, UCMJ,

10 U.S.C. § 813, and also constituted cruel and

unusual punishment; (11) Whether the military

judge abused his discretion by permitting an

expert witness to testify that the appellant had

low rehabilitative potential; (12) Whether the

military judge erred by denying the defense

request for an expert on false confessions; and

(13) Whether the appellant's right t- fair appeal

of his conviction is violated when the appellate

government counsel on the case are operating

under a conflict of interest. We find all 15

assignments of error to be without merit and

affirm.

an

&

Background

At the time of his court-martial, the

appellant was assigned to the 27th Civil

Engineering Squadron at Cannon Air Force

Base (AFB), New Mexico. Prior to that, he was

involuntarily removed from the Security Forces

career field after he held a gun to his head in a

gesture later determined to be a_ suicidal

ideation. The appellant and his former wife

lived in a duplex-style house on Cannon AFB

with Senior Airman (SrA) J and his wife Mrs.

LJ living in the adjoining home.

On 9 February 2001 (Airman First

Class) AIC H called the J’s and asked to speak

to SrA J. When Mrs. LJ told AIC H that her

husband would not be home until after

midnight, SrA H asked whether he could stop

by and rick up a W-2 form that SrA J was

holdiag for him. Mrs. LJ told AIC H that her

husband would probably want to see him and

that he should pick up the W-2 the following

day when her husband would be home. Even

though AIC H’s wife, Mrs. SH, and Mrs. LJ

were best friends, AIC H did not get along with

Mrs. LJ and had called her a “bitch” on a

previous Occasion. He later gave Mrs. LJ a note

apologizing for his inappropriate comments

6a

about her. Mrs. LJ read the note and placed it

on a dresser in her bedroom.

The appellant also called the J’s that

same afternoon and asked to speak to SrA J.

Mrs. LJ told the appellant that he was working

late, but that she would tell her husband that he

was invited to join the appellant at the club

when he got off work. Mrs. LJ then left the

house because she had volunteered to go to the

H’s home to help Mrs. SH pack up her personal

belongings. Mrs. SH was in the process of

moving out of her house because her and her

husband were getting a divorce. After packing

some of Mrs. SH’s belongings, the two of them

took a break to meet Mrs. SH’s boyfriend. He

asked them to go the Shoppette and buy him

cigarettes. They agreed and dropped the

cigarettes off at his dormitory room before

returning to the H’s house to continue packing.

Sometime later, Mrs. LJ called her

boyfriend, SrA K, and the two women went

back to the Shoppette and bought some alcohol.

The two of them stopped to pick up SrA K and

returned to the H’s house to play a drinking

game. Mrs. LJ had a few drinks and returned

home around 0130 hours. When Mrs. LJ got

home her husband was not there. SrA J had

come home from work and went out to the

enlisted club with several of his friends. Mrs. LJ

7a

then talked to SrA K because she ~ was

concerned that one of her husband’s friends had

spotted the three of them together. After talking

to SrA K for about ten minutes, she turned out

the light on the headboard of the bed and went

to sleep.

A few hours later, Mrs. LJ awoke after

hearing rustling noises. Mrs. J has 20/400 vision

and can only see clearly for about seven inches;

she had taken her contact lenses out earlier in the

night. She turned on the light on the headboard

and saw a naked man standing next to her bed.

She thought the man was AIC H and asked him

what he was doing in her bedroom. The assailant

did not answer and reached over and turned out

the light. He then put a pillow over Mrs. LJ’s face

and put his arms around her neck and then pulled

her off of the bed and started taking off her

clothes. After the assailant took off her clothes, he

put her back onto the bed and forced her legs

apart. He then began to have sexual intercourse

with her. The assailant rolled Mrs. LJ over onto

her stomach and began to have anal intercourse

with her. He stopped when Mrs. LJ screamed: he

then turned her back over onto her back and

began having sexual intercourse with her. The

assailant then performed oral sex on Mrs. LJ.

Throughout this ordeal, the assailant asked Mrs.

LJ whether she liked it and then told her that he

8a

had wanted to have sex with her for a long

time. Not satisfied with her response, the assailant

told her to “shut up” because she was crying.

Soon after forcing himself on Mrs. LJ,

the assailant put a comforter over her head and

walked her around the house. He then started

spinning her around and asked her whether she

wanted some water. As they walked into the

kitchen, the assailant grabbed a frying pan and

hit Mrs. LJ on her head several times causing

her to fall to the floor. Mrs. LJ heard the

assailant rummaging through the kitchen

drawers and when the noise stopped, he lifted

the comforter off of her head. The assailant then

used a knife he found inside a kitchen drawer

and cut her throat almost from ear to ear.

Investigators later learned from his

confession that the appellant went outside the

house and got a large garbage can to put her

body into. As he returned to the kitchen, he

heard SrA J’s car coming into the driveway. The

appellant ran out the back door and jumped over

the back fence and went inside his house. He

grabbed his keys and drove off in his jeep.

SrA J discovered his wife on the kitchen

floor and called 911 for help. While he was on

the phone, Mrs. LJ told her husband that AIC H

had done this to her. Mrs. LJ told the responding

security forces personnel and medical team that

9a

treated her at the hospital that AIC H

raped her. Based on Mrs. LJ’s statement, and

AIC H’s note found in the J’s bedroom, the

local police and security forces members went

looking for AIC H. He was apprehended on 10

February 2001 at the gate as he was driving onto

the base. Despite his proclaimed innocence, his

commander ordered him into _ pretrial

confinement. AlC H remained in confinement

until the charges against him were dismissed on

13 August 2001.

As the trial counsel was preparing the

case against AIC H, he was concerned that the

scientific evidence was not consistent with Mrs.

LJ’s assertion that AIC H raped her. As a result,

he made arrangements to re-interview many of

the potential witnesses. The trial counsel met

with the appellant because the appellant was the

J*’s duplex neighbor. During the interview the

appellant made several statements that caused

the trial counsel some concern, so much so that

the trial counsel asked agents from the Air Force

Office of Special Investigations (AFOSI) to

interview the appellant under rights advisement.

On 7 November 2001, the appellant waived his

rights and confessed to raping, sodomizing Mrs.

LJ, and cutting her throat with a knife. He also

provided a written statement detailing his

actions on 9 February 2001.

10a

Legal and Factual Sufficiency

The test for legal sufficiency is whether,

when the evidence is viewed in the light most

favorable to the government, any rational

factfinder could have found the essential

elements of the offense beyond a reasonable

doubt. Jackson v. Virginia, 443 U.S. 307, 319

(1979); United States v. Reed, 54 M.J. 37, 41

(C.A.A.F. 2000). The test for factual sufficiency

is whether, after weighing the evidence and

making allowances for not having observed the

witnesses, we ourselves are convinced of the

appellant’s guilt beyond a reasonable doubt.

Reed, 54 M.J. at 41 (citing United States v.

Turner, 25 M.J. 324, 325 (C.M.A. 1987)).

In his first assignment of error, the

appellant argues that the evidence presented at

trial was legally and factually insufficient to

sustain the findings of guilty to the offenses

because his trial! defense counsel presented

significant evidence that someone else assaulted

Mrs. LJ. He argues that is was just as likely that

AIC H, Mrs. LJ’s husband, or a third individual

committed these offenses. Each of them had

either the motive and or the opportunity to

assault Mrs. LJ. Specifically, Mrs. LJ identified

AIC H as the person who assaulted her. In fact,

she said that on a scale of one to ten, with ten

lla

being sure beyond a_ reasonable doubt, she

believed AIC H was her assailant with a “ten”

degree of certainty.

Next, SrA J and the victim were having

marital difficulties. SrA J knew his wife was

having an affair because he went to his

commander who issued a “no contact” order to

his wife’s boyfriend, SrA K. Hours before the

assault, SrA J told a female Airman at the

enlisted club that she should talk to him and not

be concerned about the fact that he was married

“after tonight.”

Additionally, the appellant contends that

a third person may have committed the assault

because there was an unidentified fingerprint on

the frying pan found in the kitchen and

unidentified prints on an orange soda can found

in the living room. Moreover, during the assault,

Mrs. LJ asked the assailant whether her husband

was there and the attacker responded “[w]e’re

not that sick.” Next, the appellant asks this

Court to disregard his confession because of the

circumstances of how the statement was made.

Because he was a security forces member who

held law enforcement officials in high esteem.

and was not in a strong mental state when

questioned, he was unable to resist the tactics

the AFOSI agents used to obtain his confession.

l2a

Although there is some _ evidence

indicating that someone other than the appellant

may have committed the assault on Mrs. LJ, the

panel members found otherwise. See United

States v. McCarthy, 24 MJ. 841, 842-32

(A.F.C.M.R. 1987), aff'd, 27 M.J. 320 (C.M.A.

1988): United States v. Steward, 18 M.J. 506,

508 (A.F.C.M.R. 1984). The most convincing

evidence against the appellant was his 7

November 2001 statement. In his statement, he

admits details of the assault that only the

assailant and the victim would know, e.g., the

details of their conversation, the clothes Mrs. LJ

was wearing, the fact the assailant was naked

when he entered the bedroom, the sequence of

the assault, and the fact that SrA J was not home

when he entered the house. The appellant also

knew the marital problems the J’s were having

and that the J’s routinely left the inside garage

door unlocked. Additionally, his fingerprint was

found on the handle of a dented frying pan

found in the kitchen near the victim.

We also find the appellant's argument

that we should disregard his confession because

he was a former security forces member, with a

history of depression, unpersuasive. The

appellant made statements and took actions that

corroborated his confession to the AFOSI

agents. See United States v. Bubonics, 45 M.J.

13a

93, 95 (C.A.A.F. 1996); Mil. R. Evid.

304(e)(1). First, he returned his jeep to the auto

dealership after the assault and gave a

questionable reason for doing so. He also made

statements to his ex-wife's co-worker, Ms. BC,

such as “she [Mrs. LJ] had messed around on

her husband before,” and suggested she was a

“slut,” giving Ms. BC the impression that he

believed the victim deserved to be assaulted.

Moreover, the other possible suspects could

reasonably account for their whereabouts during

the time of the assault.

After considering all of the evidence, we

are convinced beyond a reasonable doubt that

the appellant committed these offenses.

Therefore, his conviction is legally and factually

sufficient. See Turner, 25 M.J. at 324-25.

Admission of the Photograph

In his second assignment of error, the

appellant argues that the military judge erred by

admitting a photograph of the injurtes to Mrs.

LJ’s neck because it was too graphic. He

contends that the picture was taken while

medical personnel stretched her neck skin apart,

thus making the injuries more graphic than they

actually appeared. As a result, he avers that the

photograph was unduly prejudicial and asks this

Court to set aside the findings and sentence.

Ida

We review the issue of admissibility

of evidence under an abuse of discretion

standard. United States v. Houser, 36 M.J. 392,

397 (C.M.A. 1993). A military judge's

conclusions of law are reviewed de novo.

United States v. Ayala, 43 M.J. 296, 298

(C.A.A.F. 1995). If the military judge’s ruling is

based on an erroneous view of the law, the

judge has abused his discretion. United States v.

Nash, 44 M.J. 456, 457 (C.A.A.F. 1996).

In the instant case, the appellant objected

when the government submitted the photograph

into evidence. After hearing argument from both

sides the military judge performed a balancing

test under Mil. R. Evid. 403 and determined that

the probative value of the photograph was not

substantially outweighed by the danger of unfair

prejudice. We agree.

According to Dr. Nicholas Rowley, one of

the surgeons who operated on Mrs. LJ’s neck,

the cut was from left to right, 270 degrees in

length, and approximately one and one half

inches deep. He opined the victim was most

likely cut from behind. He said it was necessary

to stretch her neck to reach her epiglottis

(cartilage at the root of the tongue) so he could

put it back were it belonged. Additionally, he

testified that a fair amount of force or a very

sharp instrument was used because most of Mrs.

lSa

LJ’s neck muscles and — external jugulars were

cut. Based on Dr. Rowley’s testimony, we

conclude that the photograph was used to depict

the extent and nature of Mrs. LJ’s injuries and

the stretching was a necessary part of the

treatment. Because the appellant was charged

with attempted murder and the government was

required to show grievous bodily harm to obtain

a conviction, the military judge did not abuse

his discretion by admitting the photograph into

evidence. See Houser, 36 M.J. at 397; Manual

for Courts-Martial, United States (MCM), Part

IV, § 43b(d) (2005 ed.).”

Remaining Issues

Finally, we considered the appellant’s

remaining assignments of error and find them to

be without merit. See Article 31, UCMJ, 10

U.S.C. § 831; Mil. R. Evid. 304(c)(1), 305, 403,

and 513; United States v. Huffman, 40 M.J. 225,

227 (C.M.A. 1994): United States v. Matias, 25

M.J. 356, 361 (C.M.A. 1987).

’ . - . - - . .

~ This paragraph ts identical in the 2002 edition of the

Manual that was in effect at the ime of the appellant's

court-martial.

l6a

Conclusion

The approved findings and sentence are

correct in law and fact, and no error prejudicial

to the substantial rights of the appellant

occurred. Article 66(c), UCMJ; Reed, 54 M.J. at

41 (C.A.A.F. 2000). Accordingly, the findings

and sentence are

AFFIRMED.

OFFICIAL

LOUIS T. FUSS, TSgt, USAF

Chief Court Administrator

17a

Appendix B

UNITED STATES, Appellee

v.

STEVEN M. CHAPMAN,

Staff Sergeant U.S. Air Force,

Appellant

No. 06-0907

Crim. App. No. 35564

M.J.

United States Court of Appeals for the

Armed Forces

Decided June 26, 2007

On consideration of the petition for grant of

review of the decision of the United States Air

Force Court of Criminal Appeals, said petition

18a

is granted and the decision of the United

States Air Force Court of Criminal Appeals is

affirmed.