*1 STATES, Appellee, UNITED Four, GRAY, Specialist A.
Ronald Army, Appellant.
U.S.
No. 93-7001.
CMR No. 8800807. Appeals for Court of Forces.
the Armed
Argued March 1995.
Reargued Dec. 1996. May
Decided
SULLIVAN, J., opinion delivered the Court in which and CRAWFORD GIERKE, JJ., EFFRON, J., joined. filed a COX, C.J., dissenting opinion in which joined. Appellant: Captain
For R. Deroma Silas (argued reargued) Major and and Michael A. Smith, Egan D. (reargued); Stephen Colonel II, Phelps Captain T. Colonel John and (on brief); Christopher Royer Captain W. Captain Michael and E. E. Hatch Michael Smith. Appellee: Captain
For John G. Giovannel- (argued) Major Lyle D. li Jentzer Captain (reargued); H. Levin Colo- Steven Smith, nel John M. Lieutenant Colonel Pohl, L. James Lieutenant Colonel Eva M. Novak, Captain Mulligan E. Michael (on Cramer, brief); Dayton Ma- M. Colonel 6 Swetnam, Joseph
jor Captain C. Glenn Kirschner.
L.
Index Issues Page Service-Connection 11
I application Review infavorem vitae — II capital Unanimous vote and review in vitae CCA case favorem III organic Denial of Petition for based on damage New Trial brain panel IV Death sentence invalid because misinformed about mental con- ) dition at time of offenses Psychiatric Expert V Denial of
VI DC Failure of (1) investigate mitigating circumstances (2) challenge competence experts of defense (3) present an available defense (4) present adequate sentencing case on ' Funding
VII Denial of Motion Funding by VIII Denial of TJAG in this case but not in 2 others —effect of *6 IX Policy TJAG Memo funding -validity re of 20 — X during of guilty-plea inquiry Use statements made state-court as violating Fifth Amendment 23 XI Use of those statements of plea agreement as violation civilian 23 XII regarding validity CMR treatment of issue of use statements — (violation 31) of Article 23 XIII Failure of counsel to limit of in civilian use statements to use court 23 Prejudicial pretrial publicity XIV 27 knowing intelligent XV Election of 29 Forum — investigative XVI Denial of 29 assistance XVII Challenge for 31 cause—MSG McCormick Challenge XVIII for Cause —CSM Woods 31 XIX military’s peremptory-challenge procedure Abuse of 32 comply XX Failure to with rule 32 Batson challenge scruples against penalty XXI Peremptory based on death 32 photographs XXII 35 Gruesome Source) exculpatory (Registered XXIII 35 Nondisclosure information
7 Page 38 appellant’s on silence on comment XXIV Denial of mistrial based background 39 sentencing of on evidence XXV Exclusion larceny burglary Multiplicity of XXVI factors counting aggravating
XXVII Double “substantially meaning outweighed”
XXVIII Instruction “substantially outweighed” was finding regarding XXIX No statement unanimous beyond a “substantially outweighed” requiring finding XXX Decision reasonable doubt impose not to death sentence absolute discretion XXXI No instruction on pain suffering Validity aggravating regarding factor XXXII , 1004(c)(7)(D) (RCM Deliberating during XXXIII on sentence recess appellant’s drug proceedings because of overdose
XXXIV Abatement (Doxipin) XXXV of indictment —Fifth Amendment Denial right jury III trial —Article
XXXVI Denial capital as denial of reliable Requirement of trial members case XXXVII process verdict due *7 against guilty plea capital mitigating of Prohibition case—denial XXXVIII 49 factor process 49 less 12 as denial due XXXIX Panel of than of pool 49 panel-selection XL Exclusion of females from injecting improper XLI of enlisted members of same unit as Exclusion (enlisted status) 49 selecting for members criterion jury 50 by impartial of Questioning panel XLII members as denial 51 advocate for Government XLIII MJ as experience to of lack of or of counsel advise XLIV Failure 52 training in capital cases qualifications 53 misleading defense counsels’ gave XLV MJ advice to capital 53 counsel in cases for minimum standards for defense XLVI Need 53 capital-qualified counsel continuity of of counsel or of XLVII Lack 55 III of review Article court XLVIII Denial 8
Page power constitutionality XLIX No of I Article court review of Code provisions Manual 55 L specify penalty Failure which offenses carried death and to instruct
that a death imposed aggregate sentence could be based effect all offenses 55 meaningful premeditated LI Lack unpremedi- distinction between tated murder Sufficiency premeditat-
LII of murder instructions on distinction between unpremeditated
ed and murder Sufficiency
LIII of instruction on reasonable doubt required LIV Instructions vote on most serious offense first LV presiding impartiality Senior member as officer—effect of mem-
bers LVI “substantially outweighed” Failure to finding instruct be must
unanimous Military death-penalty separation LVII as violation of scheme Fuman powers protections racially imposition LVIII Lack of Manual against motivated death sentence
LIX sentencing Failure instruct that race could not influence LX of equal protection Denial get because civilian could not death sen-
tence federal court identical criminal conduct LXI convening authority capital Selection court members serve subject where jury case offenses were to trial state court Victim-impact LXII statements signatures
LXIII of all right Absence members on sentence work sheet or *8 poll capital to members case 60 authority adjust LXIV Lack or suspend improper of of MJ to death 61 sentence right jury community LXV Denial of to from of 61 cross-section Appellant’s punishment death as cruel and unusual LXVI sentence beyond LXVII Cumulative errors not harmless a reasonable doubt Proportionality LXVTII review insufficient
LXIX inappropriate Death sentence in this ease
LXX issues Grostefon it on opinion Military of Review denied but Court Judge SULLIVAN delivered 12, 1991, 23, September August the Court. 1991. On of request- writ-appeal petition a appellant filed During of 1987 and the first December to ing that the Government this Court order 1988, by appellant tried a of was months $10,000 emergency stay of provide and an composed of officer and general court-martial Military of proceedings before Court North Bragg, at Fort Car enlisted members 1991, 18, pleas, Review. October this Court Contrary to his he was found On olina. stay of guilty premeditated writ-appeal petition of the murder Ms. and the denied the Kimberly and Private Laura Ruggles Ann of (summary disposi- MJ application. 34 attempted pre Vickery-Clay, and the Lee tion). Mary Lang Private Ann murder of meditated 16, 1991, appellant a filed On December 80, Nameth. Arts. 118 and Uniform Military motion the Court of Review with Justice, §§ Military of and Code USC requesting that court to order additional 880, respectively. guilty was found He also neuropsychological per- medical and tests be (2 (3 specifications), robbery specifi rape of formed On Decem- authorities. (2 cations), specifica sodomy and forcible 31, 1991, granted appellant’s ber that court tions) victims, respect with above as request Magnetic and ordered a Resonance burglary larceny property
well as and (MRI) brain; 120, Imaging 20- scan of the a person, in violation of Articles another 122, 125, 121, 129, UCMJ, EEG; electrode, scalp sleep-deprived ehannel USC 920, 922, 925, 921, 929, respectively. §§ brain, and a scan of his well as SPECT death, 12, 1988, April he was sentenced to On academic, intellectual, neuropsychological, forfeitures, discharge, a dishonorable total personality psychological, tests. On 29, July Private E-l. and reduction to On 18, 1992, February report a based on these Commanding General 82d Brown, Jr., completed H. tests was Fred approved the sentence. Airborne Division Ph.D., Captain, neuropsychologist a clinical Center, The record of trial was Army then from Womack Medical Fort Appellate Division forwarded Defense and Bragg. opined in an He later affidavit filed organization August received on appellate appellant with court below pleadings filed initial with 1988. Counsel the was at the sane time of the offense and Military September Review1 Court during proceedings. these On March 13, 1990, February On that court 1989. or- a petition counsel filed for new trial board, which, sanity on June dered newly based on discovered evidence of lack of appellant mentally found that re- responsibility. mental sponsible at the time of the offense and that 26, 1992, February On filed mentally competent he was to understand his errors, supplementary assignment appellate the present proceedings. trial and responded which the Government on March 20, 1990, July Appellate the Government On Military 1992. The Court of Review appellant’s assignment Division answered 8,1992, argument April heard oral and on errors. petition December denied 27, 1990, appellant On December filed findings new and sen- trial affirmed Military with motion the Court Review 730, 734-35, 742-43, tence. 749. On requesting that court order the Govern- 30, 1992, appellant filed a motion December $15,000.00 provide expert for an ment renewing request expert for funds for an psychiatrist, death-penalty-qualified attor- *9 investigator neurologist. and a behavioral ney, investigator. arguments an Oral Appellant petition filed a for reconsideration January were heard on the motion in 1991. 4, January this on of decision 1993. 1991, 12, Military March the of On Court Military argu- of Review heard oral Court Ap- motion. 730. Review denied the 32 MJ January funding motion on request psychia- ments on the for pellant renewed the' for a 7, 1991, 21, 1993, funding investigator August and an on and denied the motion for trist * (1994). 229 n. 213, 1. See petition on appellant stating
and the
for reconsideration
Janu-
davit
that he wished
22,
11, 1993,
ary
February
appel-
1993. On
Captain Royer
repre-
“be
from his
released
suggestion
lant
filed motion and
for recon-
appellant.
granted
of’
Court
sentation
This
sitting
sideration
the court
en banc of the
19,
May
both motions on
1995.
UCMJ,
§
July
10 USC
On
FACTUAL BACKGROUND
2, 1993, this
appellant
Court ordered
to file
OF
CRIMES
31,1993,
by August
his final brief
but counsel
turning
capital
Before
of
issues
this
30,
did not do so until
Sep-
June
On
1994..
case, it
important
to view this case and its
10, 1993, appellant
tember
Court
moved this
appellant’s
issues
the factual
of
context
funding
for
of
expert investigator
and a
1987,
January
appellant
crimes.
neurologist
behavioral
whom he stated were
rape
identified and arrested for the
of a
necessary
appellant
perfect
appeal
for
his
vicinity
Acres,
woman
of Fairlane
op-
this Court. The
its
Government filed
park
trailer
Fort Bragg,
near
North Car-
17,
position
September
on
1993.
Novem-
On
day
body
olina. The next
Ms. Kimber-
1993,
counsel,
appellate
ber
lead defense
Ann
ly
Ruggles was found near that area on
Smith,
Captain Michael
filed a motion to
Bragg.
multiple
Fort
had
“She
received
stab
appellate representation
withdraw from
be-
wounds” and had “suffered bruises on her
April
was being
cause he
transferred. On
nose,
eyebrow,
on her
and a
bruises
lacera-
granted Captain
this Court
mo-
Smith’s
lip.”
on
raped
tion
her
She had been
tion.
tain capital-mur- finally that his pellant contends INTRODUCTION service charges were not shown be der 67(a) (1994) provides that the Unit- Article connected. Armed Appeals for the ed Court States in in all cases shall review the record Forces Stevens agree with Justice sentence, affirmed a Court which the in a applies question whether Solorio Appel- Appeals, extends to death. Criminal important question. How capital ease is an members to death lant was sentenced ever, response appellant particular our court-martial, this sentence was of his in his not be decided question that this need authority af- approved by convening was a member case. noteWe (now Military Review by the Court of firmed victims military; one of his murder Appeals). Defense of Criminal Court other and the was a member of has raised 70 issues for appellate counsel post; who did business was a civilian respect findings to consider with Court post. Final were found both their bodies Ap- in this case. guilty and the sentence there the Government that ly, agree we with personally assigned has pellant himself presented in this overwhelming evidence for review. more issues committed on case that the murders were long long opinion. is a It is because This service connection post. This is sufficient necessary explain our resolu- feel it is we Parker, under even O’Callahan in this numerous issues involved tion of the 258, 272, 23 L.Ed.2d 89 S.Ct. systemic Many of these issues raise case. overruled, (1969), U.S. at Solorio which in military justice system challenges to the 436, 107 trial court- to warrant sentencing procedures general capital or its generally martial. Comman Relford in our particular which we have resolved 355, 369, dant, remaining issues previous decisions. The (1971) (“a crime serviceman’s L.Ed.2d 102 application procedures concern of these upon person an individual against the supplemen- Except for the appellant’s case. ”). Accord ... connected’ base is ‘service first, issue, will turn which we consider tal require jurisdictional ingly, assuming this raised our attention to the issues the order courts-martial, we capital applies ment by appellant. case. hold that it was satisfied Supplemental Issue DENIED APPELLANT WAS WHETHER I ISSUE LAW IN VIOLA- DUE PROCESS OF SIXTH, FIFTH, AND TION OF DUE PROCESS MILITARY WHETHER AMENDMENTS BECAUSE EIGHTH AND 67 RE- ARTICLES 66 AND UCMJ BY HE TRIED COURT-MAR- WAS MILITARY QUIRE THE COURT OF *11 APPEALS[2] THE AND COURTS IDENCE ORGANIC BRAIN DAM- OF OF MILITARY TO ALL AGE. REVIEW REVIEW CAPITAL IN CASES FAVOREM VITAE 73, UCMJ, § Article 10 USC SINCE CAPITAL IN LITIGATION IS (1968),provides: THE ITS INFANCY IN MILITARY § 873. Art. 73. Petition for a new trial JUSTICE SYSTEM AND TRIAL AND At any years ap- within two time after
APPELLATE DEFENSE COUNSEL proval by convening authority of a THE LACK TRAINING AND EXPERI- sentence, may court-martial the accused ENCE NECESSARY TO PRESERVE petition Judge Advocate a General for ALL RECORD ON ISSUES AND grounds new newly trial on the discov- of PREVENT APPLICATION OF WAIV- If ered evidence or fraud on the court. ER. pending accused’s case is before Court
Military or before Review the Court Military Appeals, Judge II Gen- Advocate ISSUES petition appro- eral shall refer WHETHER A FACTFINDING COURT priate action. court for Otherwise the OF MILITARY REVIEW MUST UNAN- Judge upon Advocate General shall act IMOUSLY ON AGREE BOTH FIND- petition. INGS OF AND THE GUILT SEN- added.) (Emphasis 1210(f)(2), See RCM TENCE IN A CAPITAL CASE AND Courts-Martial, States, Manual for MUST APPLY A POLICY OF IN FAVO- Appellant 1984. presented petition such a REM VITAE. Military the Court of turn Review which in specifically The first us to issue asks man denied it. 37 at 742-43. such MJ We review date an “in favorem vitae” favor of [in life] by Military decisions on a Court Review policy appellate capital review of cases gen- clear-abuse-of-discretion standard. See words, military justice system. In other erally Williams, United States appellant asks this court eschew waiver (CMA 1993); Davis, S. Childress and M. any procedural and overlook by defaults § 2 Federal Standards Review 11.38 at reviewing counsel at trial in his death sen (2d 1992) (clear-abuse-of-discre- 11-158 ed. tence. Murray, See Smith v. standard). tion (1986) L.Ed.2d 434 appellate legal court below noted the (Stevens, J., rejected dissenting). We such requirements which must be met to warrant request Loving, United States Relying a new trial Article under 73. (1994), grounds, on other aff'd 1210(f)(2), RCM it stated that must L.Ed.2d 36 show: (1996). For Loving the reasons stated our (A) The evidence discovered after decision, rejection today. adhere .to trial; The second specifically issue has been (B) The evidence is not such that it would counsel, appellate briefed defense but we petitioner have been discovered otherwise it legal conclude that has no merit. at the of trial in time the exercise 66, UCMJ, § Art. See 10 USC 866 cf. diligence; due 52, UCMJ, § Art. 852. USC (C) evidence, newly discovered if con- light sidered a court-martial in the III
ISSUE
evidence,
pertinent
of all other
would
probably produce
substantially
more
WHETHER THE ARMY COURT OF
for the
favorable result
accused.
MILITARY REVIEW ABUSED ITS
agree
IN
DISCRETION
DENYING SPC
mented on what constitutes
in this
clear abuse
discretion
We see no
of
in this context:
cretion
v.
generally United States
decision. See
discretion)
(i.e., an
of
Legal error
abuse
(2d Cir.) (no
51,
abuse
McCarthy, 54 F.3d
55
findings
upon
of
he
if the
fact
which
occurs
deny
trial based on
of
new
discretion
predicates
ruling are not
judge]
[the
his
report),
newly
psychiatric
interim
discovered
record;
if
by evidence of
incor-
supported
214,
denied,
880,
133
516 U.S.
116 S.Ct.
cert.
by him in
legal principles were used
rect
(1995).
L.Ed.2d 145
motion;
deciding
application
or if his
legal
facts
principles
correct
of the
guilty
was found
of numerous
Appellant
clearly
particular
of a
ease
unreasonable.
nature, namely two
a heinous
offenses of
61,
Travers,
62-63
States
murders,
attempted mur
premeditated
one
Rosser,
(CMA 1987);
6
United States v.
victim,
multiple
involving
stabbing of the
der
(CMA 1979).
267, 271
See United
MJ
rapes and
At
as
forcible sodomies.
as well
Thomas,
161, 11
3
CMR
States
USCMA
court-martial,
rely
he
a de
did not
his
(1953).
161
50a, UCMJ,
insanity.
10
of
See Art.
fense
However,
§
introduce
850a.
he did
USC
37
at 356.
MJ
pur
on his
state for
expert evidence
mental
case,
Turning
present
note that
the
poses
mitigation.
of
sentence
RCM
appellate
essentially
court below
summa-
1004(b)(3)
1001(c)(1)(A)
(B);
well as
as
by appellant
the evidence offered
rized
(b)(4)(c).
attempted to
Post-trial he has
discovered,”
“newly
as follows:
insanity
the defense of
and introduce
raise
appellant
heavily
petition
In his
relies
mitigation
further mental-state
evidence
Pineus,
by Dr.
on an affidavit
Jonathan
psy
written
of two
means of the
statements
specializing
After
physician
neurology.
mental
chiatrists and
results of further
reviewing the results
the tests and eval-
Military
by the
testing ordered
Court of
appellant,
uations of the
Dr. Pineus con-
request.
Sawyer
at his
v. Whit
Review
Cf.
appellant
or-
cluded that the
suffers from
(5th
812,
Cir.1991),
ley,
F.2d
823
aff'd
ganic
probably impaired
brain
defects
2514,
333,
grounds,
other
112 S.Ct.
capacity
distinguish right
his
from
(1992).
That court also was to determine evaluations, including that the a statement “beyond a reasonable whether a rea doubt” factfinder, appellant symptoms exhibited associated totality considering sonable “the involvement, evidence, organic the defense did ... be with would convinced clear sanity not raise a issue on the merits convincing appellant evidence lacked court-martial, ap- his the trial. Since responsibility for crimes” or mental sanity subject of two pellant has been get penalty the death for them. should testing, Cosner, neurological boards and extensive States v. See United (CMA 1992), denied, contains which contends cert. (1994). trial---- warranting new evidence a new L.Ed.2d 206 Military that this Court of Review concluded
post-trial medical was “not of a evidence (June produce sanity a more most recent board favorable verdict”
caliber 1990) they beyond were a rea- concluded mental and that “convinced infirmities were not so severe as to render these disputed. offenses and it too was him mentally responsible. (11th Additional- Singletary, Oats v. 141 F.3d ly, although the members found Cir.1998); undiffer- Bryan v. Singletary, 140 F.3d — damage, entiated brain reported the board (11th Cir.1998), appear that it does not magni- sufficient -, negate tude to criminal responsibility. Stuard, State v. 176 Ariz. board, words in order to warrant P.2d In these circumstances *13 a finding defect, of a severe mental there we hold that Military the Court of Review disorder, would organic have to be a severe clearly did not abuse its discretion in con which there is not. The neuropsychologi- evidence, cluding post-trial this light of all evaluation, cal ordered this Court on 31 pertinent other case, evidence this would December 1991 and administered Dr. probably produce not substantially more Brown, Fred a clinical neuropsychologist, appellant favorable result at a new trial. does refer to evidence of organic brain See Reynolds, 1519, Brewer v. 51 F.3d 1526- damage. Nevertheless, although Dr. (10th Cir.1995), 27 516 U.S. Brown states he did symp- find evidence of 1123, 936, toms of an organic undetermined brain State, supra. Robedeaux v. syndrome, he did not find evidence of a psychological personality disorder re-
sulting organic from the ISSUE IV syndrome brain such that it would meet criteria of an
organic
(thought anxiety).
mood
WHETHER APPELLANT WAS CON-
More
VICTED
specifically, in
AND
an
SENTENCED TO
dated
affidavit
DEATH
23 March
IN
1992 obtained
VIOLATION
THE
appellee,
OF
FIFTH,
SIXTH,
Dr.
despite
Brown stated
AND EÍGHTH
organic
mild
damage
appellant
brain
THE
AMENDMENTS OF
UNITED
now,
is
and Dr. Brown believes
STATES
was at the
CONSTITUTION BECAUSE
offenses,
time
fully
able
appreci-
SENTENCE AND CONVIC-
ate the nature and quality
his acts and
TIONS' ARE FOUNDED AT LEAST
wrongfulness
his acts.
IN PART UPON MISINFORMATION
AOF
CONSTITUTIONAL MAGNI-
added).
37 MJ at
(emphasis
742-13
TUDE CONCERNING HIS MENTAL
Organic
damage by
brain
itself
HEALTH.
equate
does not
to lack
responsibil
of mental
Appellant grounds this attack on his
ity
crimes,
for one’s
discovery
and its
after
primarily
conviction
on the decision of the
trial does
necessarily require
a new trial.
Supreme Court in
Mississippi,
Johnson v.
State,
804,
See Robedeaux v.
908 P.2d
n.
578, 580, 590,
1981,
(Okl.Cr.1995);
108 S.Ct.
State,
James v.
489 So.2d
(1988). There,
737,
L.Ed.2d 575
Supreme
(Fla.1986),
overruled on other
Court reversed a death
grounds,
sentence because it
James v. Singletary, 957 F.2d
(11th Cir.1992).
part
was based in
aggravating-factor
Moreover,
1574-75
evi
the es
dence which
purposefully presented
was
tablishment of
conflicting expert opinion on
jury
and which
“materially
was
inaccu
accused’s mental state does not necessari
(i.e.,
ly require
rate”
rehearing.
state conviction later
reversed
States v. Van
Tassel,
(CMA
1993).
appeal).
Appellant argues
38 MJ
here that the
appel
post-trial
mental,
lant’s
Military
concerning
case the Court of
evidence
his
Review
pointed out that
state at the time
there was some
of the offenses shows that
evidence of
appellant’s organic
damage
brain
his court-martial
substantially
members were
existence
prior to this trial
post-trial
they
and the
misinformed when
guilty
evidence
found him
disputed
as to
damage.
the extent
this
sentenced him to death. See United States
Tucker,
More importantly,
post-trial
evidence was
92 S.Ct.
speculative
(1972)
Burke,
somewhat
on the effect of this L.Ed.2d 592
and Townsend v.
appellant
mental
condition on
at the time of 334 U.S.
(CMA 1989); 1203(c)(5). provision RCM 706 and of counsel we leave to the State held, however, have never post-trial that a implement decision on how to psychiatric report per requires se a new trial right. hearing
or a
under
DuBay,
United States v.
added.)
(Emphasis
competent psy
aWho is
(1967).
17 USCMA
tion
were not
delineated
Supreme Court in Ake. The Court of Mili
ISSUE V
tary
flatly rejected appellant’s prof-
Review
erred “national
psychia
standard of care in
WHETHER APPELLANT WAS CON-
try”
argument
and his
based on this standard
VICTED WITHOUT DUE PROCESS
psychiatrists
that his trial
psychologist
OF LAW
HE
BECAUSE
DE-
WAS
provided him ineffective assistance under
NIED COMPETENT PSYCHIATRIC
Ake. 37
agree.
744—15. We
ASSISTANCE IN THE EVALUA-
(9th
Vasquez,
Harris v.
among psychiatrists is not Imaging Magnetic Resonance and concluding that one tests provide legal basis (MRI) of the brain. absence inappropriate scan performing is or the other Ake, Gray’s case alone work-up Mr. Supreme such In or examinations. tests not, however, of care because the standard “Psychiatry violates Court said: point possible brain signs that science, disagree numerous psychiatrists exact injury, the nature of damage: prior head frequently on constitutes widely and what committed, EEG the abnormal crimes illness, diagnosis appropriate mental results, all history of alcohol abuse symp and the given behavior to be attached diag- for further treatment, indicative of the need toms, and on likeli are on care steps. nostic dangerousness.” See 470 U.S. hood of future event, four thorough history of absence of a b. sub post-trial other evaluations history, Gray’s including a medical Mr. experts trial stantially agree with the Gray’s Mr. particular attention on with disorders, if ac even appellant’s personality injury military parachut- prior head from damage, by organic brain did companied illnesses, a history any present ing, a responsibility at his mental eliminate history past life family history, and a of his (PhD) Kea, Doctor time of the offenses: education, occupa- including development, (MD) (MD) Marceau, Doctor Ed Doctor marriage. tions and (PhD)
wards, Brown. Vick and Doctor Review, We, Military do like the Court of (9th Stewart, 144 615-16 F.3d ers “psycho-legal” descent into the not welcome — -, Cir.1998), psychiatrists psy quagmire battling Finally, opinions, especially when one side chiatric ease, experts other unlike the seven experts wages against, this war its own Pincus, primary proponent of the Doctor *16 Harris, post-trial affidavits. means of appel diagnosis and organic-brain-damage event, any appellant’s at In F.2d responsibility, did not lant’s lack of mental inadequate psychiatric particular claim of in appellant or the record personally examine find without merit for several assistance we Wimberley, case. United States this See First, provided the Government reasons. 3, 8, 36 CMR 16 USCMA psychiatric ex qualified two with Nevertheless, appellant a more mounts choosing prior to trial. perts own of his psychiatrists trial particular attack on his 250-51; Loving, 41 MJ at Smith cf. psychologist, resting post-trial on the (9th McCormick, Cir. 914 F.2d Merikangas, a civilian affidavits of Doctor 1990). Second, experts pro these defense Merikangas posits a psychiatrist. Doctor testimony, al appellant with favorable vided psychiatry care” in “national standard of degree he de though perhaps psychiatric assis- pretrial asserts Stricklin, F.2d Cowley v. sired. Cf. appellant’s case failed to meet tance (11th Cir.1991). Finally, the al pertinent part: He states in standard. experts’ evalu leged deficiencies the trial substantially by the obviated upon my of the above ations were 9. Based review ease which records, testing ordered this my professional opinion that additional it is substantially the same results. 37 psychiat- produced Gray yet received a Mr. has Lockhart, 745; Fairchild v. applicable at see also evaluation that meets the ric (8th Cir.), 1296 n. 3 professional 900 F.2d national standard of care Specifically, the psychiatric evaluations. (1990). Accordingly, we con the L.Ed.2d 834
following problems
apparent
are
with
gen
Gray
is without merit. See
has re-
clude this issue
psychiatric evaluations Mr.
Wilson,
at 400-02.
erally
155 F.3d
to date:
ceived
(1)
ISSUE VI
investigate
Failure to
appellant’s
We turn first
argu
WHETHER APPELLANT
DENIED
WAS
ment that his defense counsel failed
in
“to
HIS SIXTH AMENDMENT RIGHT
vestigate
mitigating
ap
circumstances of
TO EFFECTIVE ASSISTANCE OF
pellant’s
social,
family,
traumatic
and medical
BY
COUNSEL
TRIAL DEFENSE
appellant’s
histories and
intoxication at the
1)
COUNSEL’S FAILURE
TO INVES-
time of the
problem
offenses.” The
with
TIGATE THE MITIGATING CIR-
appellant’s argument
equates
is that it
failure
CUMSTANCES OF APPELLANT’S
FAMILY,
SOCIAL,
to discover certain
TRAUMATIC
facts with failure to con
AND
proper
addition,
MEDICAL
investigation.
HISTORIES AND duct
In
it
APPELLANT’S
AT ignores
INTOXICATION
may
played
role he himself
have
OFFENSES; 2)
THE TIME
THE
OF
remaining
failing
silent and
to make full
TO
THE
CHALLENGE
PROFES-
attorney
disclosure to his
on these matters.
SIONAL COMPETENCE OF THE
Wilson,
402-03;
supra
Mahaffey,
at
PRETRIAL
AP-
EVALUATIONS OF
685; Harris,
F.3d
Appellant relies on Strickland v.
Washing-
reasonableness of counsel’s actions
ton,
may
80 L.Ed.2d
substantially
be determined or
influ-
(1984),
to assert that he was denied his
enced
the defendant’s own statements
right
constitutional
to effective assistance of
usually
or actions. Counsel’s actions are
counsel. He then
lists four areas which he
based, quite properly, on informed strate-
performance
contends counsel’s
was defi-
gic
choices made
the defendant and on
Finally,
cient.
he asserts that his counsel’s
supplied by
information
the defendant.
*17
regard
conduct in
prejudiced
him in a
particular,
investigation
what
decisions are
way directly leading to his convictions and
depends critically
reasonable
on such infor-
disagree
appel-
sentence to death. We
with
example,
mation. For
when the facts that
lawyers’
lant that his
conduct was deficient
support
potential
a certain
line of defense
meaning
within the
of Strickland v. Wash-
generally
are
known to counsel because of
ington, supra.
said,
what the defendant has
the need for
investigation may
further
considerably
be
part
The first
of the Strickland test
altogether.
diminished or eliminated
And
perfor
focuses whether defense counsel’s
given
a
when defendant has
counsel reason
constitutionally
mance was
ineffective. The
pursuing
to believe that
investiga-
certain
Supreme Court has made clear that determi
harmful,
tions would be fruitless or even
question requires
nation of this
assessment
pursue
counsel’s failure
investiga-
those
case,
particular
of the
using
facts of a
“an
may
tions
challenged
not later be
as unrea-
objective standard
reasonableness.” Id. at
of
short,
sonable.
inquiry into counsel’s
688,
added).
(emphasis
19
omission of
particular
elude
a
act or
that
litigation decisions. See United
other
Decoster,
Engle
unreasonable.
v.
U.S.App.
counsel was
swpra, [199
States v.
Cf.
Isaac,
107, 133-134,
372-373,
F.2d,
102 S.Ct.
456 U.S.
624
at 209-10.
at
D.C.]
(1982).
1558,
A fair assess-
merits of his the sentence. Hind *18 ISSUE VII sight usually matters in these is not counte Supreme THE OF this Court or WHETHER ARMY COURT nanced Strickland, Court, BY RE- 466 MILITARY REVIEW ERRED which said U.S. at 689-90, 104 2052: FUSING TO GRANT APPELLANT’S 7, MOTION AUGUST FUNDING OF scrutiny perfor- of counsel’s Judicial 1991. highly It
mance must be deferential. is all tempting too for a defendant second-
guess
after
counsel’s assistance
conviction
ISSUE VIII
sentence,
easy
or adverse
and it is all too
court,
examining
a
counsel’s defense WHETHER THE JUDGE ADVOCATE
(TJAG)’S
unsuccessful,
proved
it
THE
after
has
con-
GENERAL OF
ARMY
may
DATED
granting
MEMORANDUM
DECEMBER dard for
such assistance
not be
17, 1992,
appropriate
post-trial
APPELLANT
setting.
DEPRIVED
OF
a
Unit
See
Welbom,
EQUAL
HIS RIGHT TO
ed
rel.
PROTECTION
States ex
Collins v.
(N.D.Ill.1994),
IN
OF THE
F.Supp.
VIOLATION
FIFTH
sub
aff'd
(7th
AMENDMENT
THE
Bracy
Gramley,
TO
CONSTITU-
nom.
REQUESTS THE IN ARMY’S TWO 848(q)(4)(B) (indigent § (q)(9) USC and cf. CASES, OTHER CAPITAL BUT ARBI- federal defendants collateral attack on TRARILY DENIED APPELLANT’S RE- penalty reasonably death entitled to neces QUEST IN A SUMMARY MANNER. services); sary investigative expert see (9th Vasquez,
Jackson
F.3d
Cir.1993); DeLong v. Thompson,
F.Supp.
IX
ISSUE
(E.D.Va.1991), aff'd,
sion
assistance
investigative
appellant.
services
in assess
Our standard
review
(CMA
*19
Tharpe,
ing
Military
deny
States
United
v.
were
chosen
Curtis,
In
v.
United States
163;
Wright, 151 F.3d
Martin Wain
(1990),
Judge Advo-
ordered the
this Court
(11th Cir.1985),
770 F.2d
rnight,
provide adequate assistance
cate General to
denied,
cert.
U.S.
litigate
capital
properly
“to
defendant
psychiatric
Four more
L.Ed.2d 281
which,
unique
...
the
constitutional issues
appellant post-trial as a
experts examined
indeed,
litigation of matters relat-
affect the
sanity
by the
board ordered
Court
result of
in
ing
imposition
penalty
of the death
each
psychi
Military
of
Review and the additional
di-
the
services.” This Court
of
uniformed
by
post-trial
testing also ordered
atric
$15,000
ap-
be made available to
rected that
the
They specifically
ques
addressed
court.
pellate counsel and
damage
organic
tion of
brain
expenditure
the
of such funds shall
[t]hat
rejected
responsi
criminal
negating
it as
his
approved by
[appellate
the
de-
be
same
had,
also
bility.
Appellant
standard).
provides
Purpose.
1.
This memorandum
policy guidance concerning
requests for
fee
Appellant further attacks
deci
purposes,
expert
and related
services
Acting Judge
sion of the
Advocate General
Judge Advo-
which are submitted to The
19, 1993,
August
refusing
consider
cate General.
post-trial
expert
request
funding
for
for
as
Policy.
complains
sistance. He
that he was denied
equal protection
Judge
a.
Advocate
will not
the law because the
General
merits,
approve,
re-
Judge
granted equally
Advocate General had
nor consider
requests
funding
Septem
quests
expert
to obtain
services
meritorious
for funds
Moreover, The
equally
purposes.
from two
or for related
ber and December of 1992
*20
Judge
consider,
Advocate General will not
4.
Before
December
there was
parte,
ex
support
matters submitted in
policy regarding
no OTJAG
consideration
requests.
such
requests
capital
of fee
Apparent-
cases.
ly,
requests in
Loving
v.U.S.
and U.S.
requests
b.
funding
Such
for
should be
Murphy
were
requests
the first such
appropriate
made to the
Ap-
authorities.
office,
addressed to this
and the issue of
propriate authorities include courts and
funding
requests
our
these
awas
novel
convening authorities.
reluctance,
one. With considerable
fees
(1)
appropriate
The
court
is
court
approved by
were
Judge
The
Advocate
before which
currently pending.
the case is
Loving
General in the
Murphy
cases.
(after
This would be the trial court
referral
experience
After
dealing
our
with those
but before authentication of the record of
however,
requests,
we concluded that
it
by military
trial
judge)
appellate
or the
orderly
was not conducive to an
appellate
(the
court
United States
Military
Court of
process for this office to intervene and
Appeals or
Army
the United States
Court
regarding
determine issues
during
fees
Review,
Military
appropriate).
as
appeal
capital
perceived
cases. We
no
(2)
appropriate
The
convening authority
duplicating a
beneficial effect from
func-
convening authority
is the
presently
who
adequately
tion
by
addressed
authorities
general
jurisdiction
exercises
court-martial
already empowered to consider such re-
accused/appellant.
over the
quests
funding. Despite the 17 Decem-
for
Nothing
3.
policy
is intended to
policy,
litigant
ber 1992
no
is
without
left
legal authority
diminish the
Judge
of The
funding
by
when warranted
the law and
Advocate
grant requests
General to
for
the case.
facts of
expert
funds for
pur-
services and related
Although your request
5.
pro-
for funds
poses.
by
Judge
vided
The
Advocate
is
[sic]
de-
August
On
Acting Judge
Ad-
nied, you have not been'prevented from
vocate
Army
General of the
issued the fol-
addressing requests to traditional authori-
lowing
response
memorandum in
appel-
considering
ties for
funding requests. My
request
lant’s renewed
expert funding:
for
denial is not based on an assessment of the
Request
SUBJECT: Ex Parte
Ex-
for
merits of
request
for
funding
witness
pert Assistance,
Specialist
United States v.
your
case,
client’s
but is made in accor-
261-69-7258,
A Gray,
Ronald
ACMR
dance with
policy.
policy
established
That
8800807,CMA 93-7001/AR
only your
affects not
request,
client’s
but
August
request,
1. Your 9
subject
requests
similar
by
appel-
submitted
all
above, is denied.
capital
lants in
cases after 17 December
2.
policy
by
Pursuant
established
1992.
Judge
Advocate General on 17 Decem-
added.)
(Emphasis
requests
ber
fee
expert
services
Appellant’s equal protection argument
purposes
and related
in capital cases are
clearly
Equal
without merit. The
Protection
longer
no
considered on their merits or
generally designed
Clause is
to ensure that
approved by
Judge
Advocate General.
persons
Government treats “similar
in a
policy
This
deny your
does not act to
similar
generally
manner.” See
R. Rotunda
client access to funds when those funds are
Nowak,
and J.
Treatise on Constitutional
appropriate
deemed warranted
au-
Procedure,
§
Law: Substance and
2d
18.38
Appropriate
thorities.
authorities include
488;
§
18:41 at 495
As then-Chief
presently
hearing your
court
Ghent’s
Everett,
Judge
writing for this Court
case and the General Courk-Martial Con-
Means,
States
vening Authority.
policy
imple-
This
(1981),said:
mented to avoid interference
this office
orderly functioning
with the
appel-
For the Government to make distinctions
process,
late
and to
duplicating
equal
avoid
protection guaran-
does not violate
traditionahy
function
constitutionally
carried out
others.
tees
suspect
unless
elassi-
*21
race,
X
religion, or national
ISSUE
fieations like
is an
origin
utilized or unless there
are
MILITARY JUDGE
WHETHER THE
constitu-
on fundamental
encroachment
TO THE SUBSTANTIAL
ERRED
speech
or of
rights like freedom
tional
AL-
APPELLANT BY
OF
PREJUDICE
assembly.
only requirement
peaceful
THE
TO USE
LOWING
GOVERNMENT
for
grounds exist
is that reasonable
STATEMENT MADE
APPELLANT’S
Boles,
Oyler v.
classification used. Cf.
A
A
PLEA IN
GUILTY
PURSUANT TO
L.Ed.2d 446
S.Ct.
(1)
TRIAL,
CIVILIAN
WHERE
CIVIL-
Batchelder,
States
AD-
FAILED TO
IAN AUTHORITIES
60 L.Ed.2d
U.S.
APPELLANT OF HIS FIFTH
VISE
(1979).
RIGHT
AGAINST
AMENDMENT
death-penalty inmates
We do not consider
TO
SELF-INCRIMINATION
PRIOR
expert
requests for
assistance
who submit
INCRIMINATING INFOR-
ELICITING
being suspect
1992 as
class. We also
after
TO HIS CIVIL-
MATION UNRELATED
Judge
Advo-
do not consider
action
(2) THE
DID
IAN PLEA:
PARTIES
establishing
Curtis-type
cate General
OF THE
NOT CONTEMPLATE USE
dispensing expert
procedure for
assistance
APPELLANT
STATEMENT UNLESS
Army
as unreasonable.
See United
AT THE CIVILIAN
PLED GUILTY
Curtis,
(CMA 1990).
Smith, BY THE ERRED ALLOWING GOV- (1977). disagree. L.Ed.2d MAKE APPEL- ERNMENT USE OF TO Judge policy letter Advocate General’s LANTS STATEMENTS IN VIOLATION deny appellant purport not or does OF A PLEA AGREEMENT. CIVILIAN expert servieemember assistance on other Moreover, suggest appeal. it does Judge refuse XII Advocate General will ISSUE if
make such funds available so ordered THE OF THE WHETHER OPINION competent v. Cur court. See United States WHICH FOUND THAT ARMY COURT however, tis, does, supra It establish a DID STATEMENTS APPELLANT’S request procedure by which a soldier’s for THE NOT FIND- CONTRIBUTE TO funding appropriate will be forwarded AND MISINTER- INGS SENTENCE in a forum consideration action more MISAPPLIES PRETS AND policy manner. Art. 73. efficient Such Cf. RECORD. FACTS OF procedure is reasonable our view and deny appellant process due of law. does 617, citing DeLong, F.Supp. Unit XIII ISSUE (7th Goodwin, 770 ed States v. F.2d 631
Cir.1985), AND 106 WHETHER MILI- CIVILIAN TARY DEFENSE COUNSEL WERE
INEFFECTIVE IN FAILING TO LIM- ed herself as civilian counsel IT thereby, APPELLANT’S CONFESSION discussion and on behalf of the *22 accused, MADE PURSUANT TO A CIVILIAN right the remain exercised to si- AGREEMENT, lent; PLEA indeed, INOR FAILING that as sug- the Government TO DRAFT TERMS gests, LIMITING THE the effect of the offer behalf —on OF USE SUCH STATEMENT through TO THE of the accused counsel was an CIVILIAN TRIAL. any right effective waiver such to of re- silent, main prompted his desire the granted four The issues noted above are of agreement benefit the transaction —the all appellant’s pretrial directed to statements reached; event, that he that in any it police to North Carolina officers on Novem- would have been a waiver. 2 and ber these statements Now, appellant burglarizing portions admitted the as to portion Miskanin the or the of a .22 taking pistol trailer and the caliber statements rendered admissible pawned. ruling, contrary VCR which he later He also that to admit- the —and while I pistol appreciate ted that he possession significance perceived by had this in his the Government, contrary “as late as” December the around the time to the assertions Government, of Vickery-Clay. perceive the murder of Ms. of the I the admis- prosecution at relating his court-martial called sions—or the statements to Detec- the Wilson, tive to shooting Oakes the stand to establish actual of I that believe the — was, appellant pistol made these statements. The her name same with .22-caliber to pistol unduly prejudicial overly .22-caliber was the be sugges- found at murder and is Accordingly, any site of Laura tive. Vickery-Clay. prose- type Lee of statements provided by cution used all this evidence evidence show that the witnesses appellant burglarized pertaining pertain the Miskanin to these admissions will trailer as charged solely to pistol, and as “circumstantial the .22-caliber evidence” state- identifying him the of the regarding as murderer of Ms. ments accused it and Vick- its ery-Clay. larceny or from removal the residence of if, Miskanin, indeed, Sergeant that can be objected Appellant to admission of evi- established, readily even much that is pretrial dence his statements trial but statements, apparent from the inasmuch as military judge against ruled him. The identified, my the residence is not if memo- following colloquy occurred: me, statements, ry serves within the but suppress MJ: The motion the out-of- rather, parties doing the discussion at court of the statements accused rendered they the time that talking assumed were November, on the 2d and 4th of with re- given about a residence. for both Counsel gard portions to certain of those state- not, sides understand what I’ve said? If is I specifically ments denied. find that clarify I’ll it. January on the 6th of 7th of Janu- —or affirmative) (Nodding in DC: Under- ary, the was rights accused advised of his stand. Arizona, pursuant to Miranda [v. (1966)j; L.Ed.2d your I don’t nod MJ: want a head. I indeed, January, that on the 13th of as want to know. counsel, represented by he exercised those Understand, yes, DC: sir. rights; while there was a considerable Sir, you I TC: understand what said. I passage of time between then and the 2d inquire wish to the court whether we September of—the 27th of when the state- testimony can elicit concerning the fact rendered, actually ment was there were no posses- had that the accused admitted tending to factors indicate that the ac- possession having sion —or in his the .22- any way cused had not recalled his pistol caliber 11th of December— silent, right to remain and indeed ren- MJ: Within the realm of that statement. presence dered statements frequently, —along
his counsel his counsel TC: with admission he statements, interject- pistol— reflected within the had in fact hidden .22-ealiber counsel, agreed provide information posses- Anything pertaining to the MJ: murder Tam statement, police concerning the sion, .22-eali- state within the it, Finally, de my appellant’s civilian if it’s Wilson. pistol he obtained ber —how present appellant at one, was with may he done with fense counsel what have same police it, statements to the time he made his hiding but not terms it in terms of generally 1 W. the court. See shooting and later to Wilson. Israel, Procedure LaFave and J. Criminal Understood, sir. TC: (“It (1984) accepted generally § 6.8 at initially is correct note that attorney actually present if Military asserting the Court of Re- *23 during interrogation, then this obviates pretrial stating in appellant’s erred that view Accordingly, warnings.”). for the the need brought never to atten- statements “were not statements were we conclude that these ” members.... and there- tion of the court Fifth in violation of the Amend admitted prejudiced appellant could not have fore Ar v. generally ment. United States findings and at 740-41. It sentence. MJ (7th Cir.1996); 144, rington, F.3d 149-50 pleas the two mur- guilty true that his to is Benson, F.2d v. see also United States gave in which prosecuted ders state court 136, 139 (8th Cir.1981). presented these rise to statements were More- to the members of his court-martial. (2) of statements as violation Use over, given to the actual written statements plea agreement of state concerning authorities these offenses state court-martial. were not admitted his Appellant 'argues evi next that However, above, as noted Detective Oakes erroneously was dence of these statements testify as to the fact that such statements did by judge use at admitted because their by appellant. were made plea his civilian his court-martial violated Guilty pleas agreement. accompanying Nevertheless, question before us is jurisdiction generally in one are statements whether admission of evidence of these state- jurisdictions to prove in other admissible by legal appellant ments error. The element other United crimes. States Military legal no Court of Review found er- (8th Cir.1997); Williams, 104 F.3d ror, and we agree. Benson, supra; United States (1) Fifth Violation of Amendment (7th Howze, 668 F.2d 324 n. 3 States v. Appellant argues that his first state Cir.1982). agreement in plea The civilian pleas pursuant guilty ments made to his preclude this case does not otherwise use erroneously court admitted be state were subsequent his in a court-martial statements cause “civilian authorities failed to advise only Agreement for different offenses. Fifth right his Amendment states, plea “In the that event above eliciting against prior self-incrimination to arrangement is not out for whatever carried incriminating to information unrelated his ci reason, by no statement made the Defendant Initially, plea.” vilian Final Brief at 109. will pursuant agreement to this be used pistol that taken note the .22-caliber from against any subsequent prosecutions.” him in pistol the Miskanin trailer was the same used App. Appellant’s sugges Ex. XLVHI Wilson, Tammy kill to which to crime he agreement implies tion a limited use that the plead agreed guilty court. The state simply proceedings unsupported state questioning offense fact about this also by this record of trial. military touched on a matter relevant to his require specific did offenses more advice. (3) Article Violation of 564, 576-77, Spring,
See Colorado v.
479 U.S.
(1987).
Appellant
argues
L.Ed.2d
next
that evidence
More
over,
erroneously
military judge, appel
as
of his
admitted
noted
statements was
rights against
lant was
of his
at his
in violation Article
advised
self-
court-martial
Amendment, UCMJ,
§
incrimination under the Fifth
831. He contends that his
USC
counsel,
right
investigation
Fayetteville
his
for
in the
invoked
consulted with
murders
Lockhart,
military
(1984),
52, 106
police
area
civilian and
had
and Hill v.
(1985).
“merged”
meaning
within the
of the case law
88 L.Ed.2d
Accordingly,
of this Court.
he
concludes
Appellant particularly
that his ci-
contends
warnings
given
Article 31
be
civil-
had to
vilian defense counsel at his
Carolina
North
they
police
questioned
ian
when
him about
permitted
trial should not have
him to admit
the offenses tried later in the court-martial.
part
guilty
his
plea
to state murder
disagree.
charges
burglarized
that he
the Miskanin
premise
argu
Article 31
trailer November of
a .22-
and stole
ment is that
civilian
investi
pistol.
charges
caliber
He
*24
charge
he
murdering
notes that the
Ms.
App.Ex.
Moreover,
31. See
XLVII.
no at Vickery-Clay
pending
was also
court-martial
tempt
proper
to
develop
factual
for
basis
at the time
this
admission and that he was
suppression
grounds
on Article 31
was made
of that
upon
convicted
offense based
his ad-
by the defense at the
Finally,
court-martial.
regard,
mission at the
State trial.
(R.
questioning by military judge
both on
note that a
pistol
.22-caliber
taken from the
353)
argument
and in
his
the motion to Miskanin residence
shown
was
at
court-
suppress, defense
made
counsel
clear that
pistol
martial to be the same
at
found
suppress
solely
basis
his motion to
was
Yickery-Clay.
murder scene of Ms.
fi-He
the Fifth Amendment and Miranda v. Ari
nally
military
that
asserts
his
defense counsel
zona,
436,
1602,
384
86
U.S.
S.Ct.
16 L.Ed.2d
in this case who attended the State court
(1966).
plain
694
In this context we find no
proceedings
attempted to
should have
inter-
error under
31 in
Article
admission of those
preclude
vene and
these admissions.
statements.
reject appellant’s
(4)
ineffective-as
Ineffective Counsel
for
sistance-of-counsel claim several reasons.
Appellant finally
contends
he was de- First, the burden is on him to show deficient
nied effective assistance of counsel at his
professional
conduct
his counsel and
guaranteed by
court-martial as
the Sixth
prejudice
resulting from such conduct.
grounds
argument
Amendment. He
his
Strickland,
687,
The thrust of is ing supra at S.Ct. facing charges an accused different in both Finally, Supreme recognized Court has military state and to determination, courts entitled [...], that “[s]heer outcome defense, especially coordinated and unified was not sufficient to make out a claim under might penalty where he receive the death for the Sixth Amendment.” 506 U.S.
his crimes in either
He
forum.
has cited no
authority proposition, for this other than general Appellant challenge ineffective-assistance-of-counsel did not admis Washington, guilty-plea cases such as Strickland v. 466 sion of his state-trial statements 2052, 80 U.S. 104 S.Ct. L.Ed.2d at his court-martial on Sixth Amendment guilty-plea statements limit de not call civilian He also did grounds. beyond a was harmless reasomng, trial the North Carolma explain Ms to fense counsel court-martial. in his appellant, or doubt gave reasonable he advice which signifi which he had awareness in a guilty-plea statements cance of these XIV ISSUE Here, facts on the court-martial.
future
defense counsel
civilian
were that
record
DE-
APPELLANT WAS
WHETHER
penalty in state court
avoided
death
AN IMPAR-
TRIAL BY
A FAIR
NIED
appel
charges and he knew
two murder
PANEL IN
TIAL COURT-MARTIAL
capital court-martial
possible
lant faced
SIXTH,
FIFTH,
VIOLATION OF
charges and
other murder
referral for two
DUE
AMENDMENTS
AND EIGHTH
also shows
offenses. The record
related
PUB-
PRETRIAL
TO PREJUDICIAL
that,
civilian de
appellant’s questioning,
LICITY.
objected to refer
successfully
fense counsel
conviction and
next attacks Ms
Appellant
in
to offenses under
questions
in the
ences
that Ms court-
on the basis
sentence
death
find
authorities. We
vestigation
prejudicial
with
panel
saturated
martial
m
professional conduct
no unreasonable
Louisiana,
(see
v.
publicity
Rideau
pretrial
Single
Lane v.
these circumstances.
1417,
authority
grant
request
necessity
did
if
this
but he Government
he demonstrates the
did make
available the services
the Crimi-
for such assistance.
v. Robin
United States
(CID)
son,
(CMA 1994);
Investigation
nal
Command
towho
a
with North Carolina other federal and/or which working during drivers were agencies, e.g., Drug law enforcement night hours of 1800-2200 on RUG- (DEA), Agency Enforcement [sic] concern- GLES’ death and their be whereabouts ing the existence of a dark colored Lincoln during period. determined All of the allegedly drug automobile used trans- located, except taxi drivers were for Mr. Ruggles party action that Kim was a CRUMBLE, driving who was a Terminal death; 3) night of her the failure taxi owned which was sub-leased to Chris- family, employer, CID contact the Fayetteville, Company, tian Taxi NC. acquaintances Tommy Arrington, D. only taxi driver known have been in the suspect both murders who bears area in which RUGGLES’ was murdered strong appellant, resemblance to to ascer- FAUST, Drive, Capital Mr. James Arrington’s *28 tain location on relevant dates. Lake, NC, Spring who stated that had he (R. XXXVII.) 159-61; App. Exh. stopped along No Name Rd about dusk Final Brief at 157-58. He concludes that attempt help Jan 87 to to a disabled the “[n]one of aforementioned areas were to vehicle. FAUST was unable remember adequately investigated by CID.” Final with him in taxi who was or who was Brief at 158. stopped the vehicle he to assist. All other beyond military they It cavil in drivers that had not been related justice system Bragg, a right that accused has to around the No Name Rd area of Ft investigative expense night assistance at the NC on the 6 Jan 87. helpful were not inquiries of these that all the results requested
4. CPT BREWER these efforts does not render questioned be to the defense from Terminal Taxi drivers explanation provide concrete any ineffective or they passengers carried as to whether Ward, See Castro for further assistance. description given SSG fit (10th Cir.), cert. de of 138 F.3d None and PVT GRISBY STEPHENS. - -, they remember whom drivers could nied Goodwin, F.2d L.Ed.2d 343 taxis on 6 Jan 87. had their Accordingly, conclude that sub request for information To deny judge to existed for the stantial basis Lincoln, he stated: the dark appellant. to expert further assistance requested that law en- 6. CPT BREWER agencies along Interstate 95 and forcement XVII ISSUE Miami, FL to Maine Interstate 75 from Naples Michigan FL to be contacted and MILITARY JUDGE WHETHER THE they if from Jan 87 Oct determine RIGHT TO APPELLANT’S VIOLATED pertain- arrested or received information BY IMPROPERLY PROCESS DUE drug males ing to who are black dealers THE GOVERNMENT GRANTING message A was and drove dark Lincoln. AGAINST CHALLENGE FOR CAUSE units, no appropriate but dispatched UPON BASED MSG McCORMICK fit- concerning any individuals information TO THAT MEMBER’S OPPOSITION description ting was obtained. the above PENALTY, MSG THE DEATH WHERE Finally, Tommy-Arrington re- NEVER INDICATED as to the McCORMICK HE COM- quest, he THAT WAS “IRREVOCABLY stated: ... AGAINST THE MITTED TO VOTE ap- requested 8. CPT BREWER OF DEATH PENALTY REGARDLESS County propriate Nash authorities AND CIRCUMSTANCES FACTS Rocky Po- and the Mount Sheriffs Office MISSISSIPPI, ...” GRAY V. SEE be Department lice contacted to determine U.S. 648 Tommy if D. ARRINGTON’S whereabouts on the times and dates of the crimes SP4 with, currently charged be GRAY is can XVIII ISSUE Further, re-
determined. CPT BREWER THE MILITARY JUDGE WHETHER samples quested that be blood saliva GRANTED THE GOV- IMPROPERLY from The Nash obtained ARRINGTON. ERNMENT FOR CAUSE CHALLENGE County Department Sheriffs WOODS. AGAINST CSM Rocky police Department Mount did any concerning AR- have information Appellant argues that whereabouts. Mr. ARRING- RINGTON’S granted judge improperly government two was interviewed but could deter- TON challenges against his detailed members of A mine on these dates. his whereabouts opposition to court-martial because of their sample blood and saliva was obtained penalty. Supreme relies on the death He sent USACIL-CONUS. supra, Gray Mississippi Court decision view, McCormick and asserts that neither MSG In our has confused “irrevocably necessary nor committed right investigative assistance CSM Woods against penalty regard right with an unrestricted to search for ... to vote the death might in his case. less of the facts and circumstances which be relevant evidence proceed might emerge in the beyond counsel’s course Here the went defense CID ings.” Brief at 160. The Court request questioned all the drivers from Final Military held that the correct “stan appropriate Terminal Taxi. It contacted Review also is whether the member’s views would police along concerning 1-95 dark dard units *29 perfor substantially impair the requested by ‘prevent Fi- or Lincoln as defense counsel. juror____’ Tommy Arrington and lo- mance of his duties as Wain- nally, it contacted Witt, 412, 424, 105 Simply wright v. 469 U.S. S.Ct. police investigating cal him. because 32 (1985)
844, 852,
Review,
(quoting
Military
military judge,
capital
right,
defendant’s
under the Sixth
Amendments,
impar-
Fourteenth
to an
ISSUE XIX
jury prohibited
tial
the exclusion of venire
WHETHER
THE
PEREMPTORY-
“simply
they
gen-
members
because
voiced
CHALLENGE
IN THE
PROCEDURE
objections
penalty
eral
to the death
or
SYSTEM,
JUSTICE
WHICH
MILITARY
expressed
religious
or
conscientious
scru-
THE
ALLOWS
GOVERNMENT TO RE-
522,
ples against its infliction.” 391 U.S. at
MOVE ANY' ONE JUROR WITHOUT
S.Ct.,
at
It
reasoned that
CAUSE, IS UNNECESSARY AND SUB-
exclusion of venire members must be limit-
JECT TO ABUSE IN ITS APPLICA-
“irrevocably
ed to those who were
commit-
TION AND WAS ABUSED IN APPEL-
against
ted ...
penalty
to vote
LANT’S CASE.
regardless
death
of the facts and circum-
might emerge
stances that
in the course of
proceedings,”
and to those whose views
XX
ISSUE
prevent
would
making
them from
an im-
WHETHER THE MILITARY JUDGE
partial
question
decision on
guilt.
FAILED TO COMPLY WITH BATSON
Id.,
at
n.
88 S.Ct. at
n. 21.
KENTUCKY,
(1986),
V.
views would im- pair performance of his duties as
juror in accordance with his instructions XXI ISSUE Id., and his oath.’” WHETHER THE GOVERNMENT Texas, quoting Adams v. ERRED BY USING ITS PEREMPTORY 2521, 2526, CHALLENGE TO EXCLUDE A PANEL MEMBER BASED UPON HIS SCRU- Here, MSG McCormick indicated that the PLES ABOUT DEATH PENALTY. voting chances of his for a penalty death (R. 745) “very were Appellant initially remote” system CSM attacks the Woods, minister, justice unnecessarily ordained said he could per- because it (R. 596). penalty never vote for the challenge death mits a peremptory the Government record, After careful examination of challenge even when it has not been denied conclude, Georgia, the reasons stated the Court for cause. He cites Ford v.
33
military judge
one was not neces
stated
vice to abuse.” 1989) (CMA adopted; (per rule when se conviction and suggests thus that his He recognized a of a the accused is member be on this basis should overturned sentence government uses a group and the racial alone. a of that challenge on member peremptory objects, the group racial and the accused UCMJ, 841(b), § 41(b), at Article USC required provide to an ex government provided: “Each accused the time trial4 did, however, planation). The trial counsel per- trial counsel is entitled to one and the at the next court ses provide a statement 912(g). emptory challenge.” See Ob- RCM sion, stating explanation race-neutral for President, the the con- viously, Congress and wit, challenge, to member’s re stitutionally for the authorized rulemakers concerning penalty sponses the death were military justice system, thought that a reason Government, provide par- equivocal. as was included in existed to This statement challenge. at ty, a See 37 MJ peremptory Appellate Exhibit A LVIII. record Alabama, 737-38, citing Swain included in the record is statement suffi (1965), with long provides as it the court cient as Batson, at overruled challenge. complete explanation for Georgia, supra, 1712. Neither Ford v. Moore, The trial at 368 n. 6-7. MJ judg- their nor other case invalidates sufficiently provides a counsel’s statement Thus, reject challenge ap- ment. this explanation challenge, for the race-neutral sentence, pellant’s as we did conviction public in the and we find that confidence Loving, 294-95. military justice system has not been under appellant’s We therefore find the mined. Appellant next that the mili asserts merit. assertion be without tary require judge failing erred added). (emphasis legal No 37 MJ at “timely” prosecution to articulate “race- authority proffered has for been explanation for the Government’s neutral” argument these circum untimeliness peremptory challenge against use of its one Zapata Morning Protein stances. He only panel two black members. con Cf. (4th (USA), Inc., 213, 215-16 Cir. 128 F.3d an un tends that the belated submission of 1997). Moreover, we also find his unsworn by trial does not sworn statement counsel be without merit. comply argument with Batson or our case law. The statement Moore, Military (noting Review noted the facts 368 nn. 7-8 Court surrounding challenge rejected ap judge in broad discretion afforded pellant’s argument. agree. Batson), timeliness comply rev’d re how to with after (CMA mand, 1990). MJ 162 lower court stated: brothers, venturing dissenting Our government peremp- used its When beyond of the particular claims somewhat challenge one the two
tory to remove appeal, on this conclude members, defense the defense counsel black court military judge comply with three failed to all explanation on the record. demanded requirements Batson v. established Although trial counsel offered to artic- supra, peremptory challenge, Kentucky, evaluating the reason for the ulate 41(b)(1) peremptory challenge provision initially of members Article to one 4. This became 101-510, begin- 541(c) § amendment for courts-martial convened of the court.” Pub.L. No. ning The new version states: November (e), Stat. 1565. "Each accused and the trial counsel are entitled *31 34 Greene,
challenges.
v.
preclude
offering
States
did not
United
36
trial counsel from
274,
(1993),
2
any
MJ
278 n.
we
explanation
against
summarized
the challenge
requirements
Major Quander.
these
as follows:
military judge
did
require
simply
more than
trial
to
counsel
(1)
three-step process
includes:
“challenge
state whether his
was a result of
prima
defendant
must make
show-
facie
prejudice against
bias
the black
ing
prosecutor
has exercised a
” Shortly
race....
after
counsel
trial
denied
race;
peremptory challenge on
of
the basis
proffered unsuccessfully
such an
and
intent
(2) the burden then shifts to the Govern-
explanation
challenge,
an
for that
mili
explana-
ment to articulate a race-neutral
tary judge
permitted
relented and
trial coun
striking
jurors
question;
tion for
sel
attach to the record a memorandum
(3)
the trial court must determine
signed
explaining
trial counsel
the chal
whether the defendant has carried his bur-
lenge.
Marshall,
See
v.
121
Turner
F.3d
proving purposeful
den of
discrimination.
(9th
1248,
Cir.1997) (contemporary
1254 n. 2
79, 97-98,
Kentucky,
Batson v.
476 U.S.
favored),
explanation
prosecutor
cert. de
1712, 1723-24,
106 S.Ct.
L.Ed.2d
90
69
nied,
1153,
1178,
522
118
140
U.S.
S.Ct.
(1986).
(1998);
Beyer,
L.Ed.2d 186
v.
Simmons
cf.
The dissent further concludes that this fail-
(3d Cir.) (record
1160,
44 F.3d
1168
right
ure denied
his constitutional
prosecutorial explanation),
sufficient without
equal protection
requires
of the law and
denied,
905,
271,
cert.
116 S.Ct.
133
setting
findings
guilty
aside the
and the
(1995);
192
L.Ed.2d
v. Herring,
Cochran
43
capital
sentence in
disagree.
case. We
1404,
(11th Cir.1995),
F.3d
1411 n. 11
cert.
Ladell,
generally
See
v.
United States
127
denied,
1073,
776,
116 S.Ct.
133
(7th
622,
Cir.1997);
F.3d
United States v.
(1996). Finally,
L.Ed.2d 728
ar
reason
Carter,
(7th
Cir.1997).
111 F.3d
i.e.,
memorandum,
Major
ticulated
regard,
initially
In this
we
appel-
note that
Quander’s
penal
indecisiveness on the death
early
lant was tried in 1987 and the
months
ty
punishment,
recognized
as a
a well
is
race-
before the decision of this
Court
explanation
peremptory
neutral
for a
chal
Moore,
(1989),
United
v.
States
tion).
XXII
ISSUE
THE MILITARY
WHETHER
JUDGE
Appellant finally
asserts that
THE
ERRED TO
SUBSTANTIAL
peremptory
Government’s exercise
its
IN A
OF APPELLANT
PREJUDICE
Quander
challenge against Major
because
BY
OF
CAPITAL CASE
ADMISSION
scruples against capital punishment was
his
OF THE DECE-
GRUESOME PHOTOS
See Brown v. North Car
unconstitutional.
DENTS,
INCLUDING PROSECUTION
940, 942,
olina,
107 S.Ct.
A PHOTO-
EXHIBIT
WHICH IS
(1986) (Brennan
Marshall,
L.Ed.2d
A
BADLY DE-
GRAPH OF
VICTIM’S
certiorari).
JJ.,
dissenting on denial of
FACE,
A
CAYED
WITH
GUNSHOT
Major Quander
on voir
record indicates
THE EYE
TO
SOCKET.
WOUND
very
that “I
have a
dire admitted
would
reject
argument
appellant’s
We
doing
difficult time
it.”
Government
Military
ably
stated
the Court
reasons
argues
suggest
his answers
multiple
In this
Review. 37 MJ
738-39.
“prevent
substantially
also would
views
case,
seriously
it cannot be
violent-murder
impair
performance of
his duties as
argued
photographs
that these
were admit-
juror
proper
...” and this was a
consider
only to inflame or
this court-mar-
ted
shock
Witt,
ation under
contradict materiality, this should consider “the Court questioning of possible defense the RS which the did We further note that defense not might produced.” have Counsel identified that the RS would corroborate Mrs. establish for the RS: questions these testimony any of critical Winhoult’s its Vickery-CIay 1. ... alive at the expected Was points. testify The RS was not fire, contrary theory time the to the that he heard a female voice come from Ms. the government?
Vickery-Clay’s
prior to
fire talk
vehicle
the
Moreover,
ing
large
to a
the
male.
RS’s
heavy
2.
the
set
Did the RS see
same
testimony
placement
expected
on the
of the
fire?
black male
the scene
the
adjacent
being
the
victim’s vehicle as
vic
Gray?
that
3. Was
individual SPC
tim’s trailer contradicted Mrs. Winhoult’s ex
Gray,
4.
If that individual was
had
SPC
testimony. Finally,
pected
speculative
prior
he
area
to the fire?
departed the
theory
by
proposed
movement-of-the-ear
engaged
5.
and his wife
Were
accused
directly supported
not
defense was
Mrs.
pattern
“pawning”
property?
in a
stolen
context,
In this
Winhoult’s statements.
involved in the
6. Was the accused’s wife
discretion,
military
his
judge did not abuse
Miskanin offenses?
refusing
identity
to disclose the
of RS for
pistol
7. Whether the Miskanin
was sto-
testimony
what
became
immaterial
it,
“pawning”
len
rather
purpose
for the
Wright,
matter.
v.
See United States
—
premeditated
than for
commission of
(8th
Cir.),
F.3d
murder?
-,
119 S.Ct.
9. What the nature of that contact? he ever indicated to his actions remorse for he’s what done? You can Brief Pinal at 197. that. consider You should consider that. Appellant’s approach second to failure of prosecution identity to disclose the object Defense counsel did not time. suggests Brady Mary- RS a violation of argument, At the conclusion of trial counsel’s land, 10 L.Ed.2d requested defense counsel a side-bar confer- right He asserts his to fair objected prosecutor’s ence and lan- exculpatory trial is violated when evidence guage impermissible ap- as an comment on prosecution’s possession is not turned pellant’s right to remain silent. Moreover, over to defense. he asserts that judge then instructed the members as fol- newly knowledge discovered of the RS’s lows: exculpatory existence should be considered indication, regard With to the counsel’s (material defense) and favorable to the when phrase, “has the accused indicated precludes the Government from defense remorse?”, susceptible actions that is fully investigating such information. See interpretation of an upon a comment 667, 683, Bagley, United States v. having his—the accused remained silent (1985) (opin- case, having testified I’mas Blackmun, J.), ion of and United States v. you sure right [sic] aware. The to remain Fisher, (CMA 1987). 24 MJ guarantee silent is a constitutional of all of note pur- that none of the information us, no inference inference —adverse portedly possessed by any- the RS comes may be drawn from fact the ac- being exculpatory where near considered evi- testify cused elected in this case. Watson, dence. See United States *35 you And any I’m sure that will not draw (CMA 1990). 49, 54 provide It does a inference, such adverse nor read into it— to appellant prose- defense or contradict the closing argu- counsel’s—trial counsel’s cution’s case in way. substantial More- ment, that upon that comment his over, speculate we are not inclined to as to right remain to silent. the answers the given RS would have At the military judge’s conclusion of the in- appellate questions defense counsel’s where sentencing, structions on trial defense coun- in there is no concluding- basis record for sel made a motion for a mistrial. provide Brady his answers would material. Rivera, 156, v. 24 United States military 158 judge enough The was concerned Cf. (CMA 1987) (content reasonably available argument trial with counsel’s to issue an Fisher, proffer); from later defense 24 MJ at prevent instruction to the members to their (record imports possibility McKellar, 362 a reasonable being by v. misled it. See Gaskins material). proffered 941, (4th denied, evidence was Cir.1990), 916 F.2d 951 cert. 961, find no violation of in Brady 2277, 114 Roviaro 111 S.Ct. L.Ed.2d 728 context. Pearson, see also Resnover v. 965 (7th 1453, denied, Cir.1992),
F.2d 1465 cert. 962, 113 2935, 124 S.Ct. L.Ed.2d 685 ISSUE XXIV (1993). This protective instruction was in THE WHETHER MILITARY JUDGE expressly nature and directed the members IMPROPERLY DENIED A DEFENSE drawing any to refrain from inference from A MOTION FOR MISTRIAL BASED ON appellant’s right exercise of his to remain TRIAL COUNSEL’S COMMENTS ON Moore, silent. United States v. 917 F.2d Cf. APPELLANT’S DEMEANOR AND (6th Cir.1990). 215, 226 We are satisfied that RIGHT TO REMAIN SILENT. require these circumstances did not that the During argument his on sentencing, military judge grant a mistrial. See United following: trial counsel stated the (CMA Rushatz, 450, States v. 456 1990) (mistrial opportunity extraordinary You’ve had an remedy; to—to see the is an daily remedy”); accused on a basis here about “preferred for curative instruction see Delo, (8th yourself question: three weeks. Ask v. 46 Feltrop has also F.3d 775
39 Miami, Johnson, Liberty Cir.1995);5 City, part F.Supp. v. video on life Hughes 991 Delo, (S.D.Tex.1998); Florida, 885 warrants reversal 637 Six (E.D.Mo.1995), aff'd, judge F.Supp. military 94 excluded 1285 death sentence. (8th Cir.1996), grounds, holding “[t]he U.S. it relevance F.3d 469 (1997). L.Ed.2d 182 court 117 S.Ct. before the is effect evidence by factually envi-
Gray was not affected
his
so,
consequence.” Ap-
no
it’s of
ronment
XXV
ISSUE
pellant
holding
him
argues that this
denied
SEN-
WHETHER APPELLANT WAS
mitigating circumstances
re-
evidence of
DEATH IN
TO
VIOLATION
TENCED
quired
Eighth
Amend-
be admitted
OF THE EIGHTH AMENDMENT PRO-
Lockett,
at
98 S.Ct.
ment. See
U.S.
AND
HIBITION
CRUEL
UN-
AGAINST
J.),
(opinion Burger,
C.
Hitchcock
WHEN THE
USUAL PUNISHMENT
supra.
Dugger,
MILITARY JUDGE PRECLUDED
Supreme
recognized
has indeed
SENTENCING PANEL FROM CON-
Court
right
capital
SIDERING
APPELLANT’S
BACK-
the broad
of a
defendant
A
A
FOR
SEN-
mitigating
GROUND AS
BASIS
to avoid the
introduce
evidence
THAN DEATH.
penalty.
TENCE LESS
Skipper
death
See
v. South Car
olina,
L.Ed.2d
U.S.
Appellant
judge
asserts that
fully
right
This
embraced
committed constitutional error in his case
1004(b)(3). However,
Supreme
RCM
considering
from
preventing
members
attempted
Court has not
to rewrite the rules
family background
his social and
as miti
capital-punishment proceed
for
evidence
gating
death-penalty
circumstance
their
Romano,
11-12,
ings. See
at
decision. He calls our attention to the mili
other
2011. Relevance and
concerns
tary judge’s
request
for
denial
his
jurisdiction’s
expressed in a
rules of evidence
members to consider that his “difficult and
applied
are still
be
man
the traditional
impoverished upbringing”
“mitigating
were
Lockett,
judge.
ner
438 U.S. at
against
ag
weighed
circumstances to be
(opinion
n.
n. 12
gravating”
determining
circumstances
C.J.).
Burger,
eligibility
penalty
death
and whether
*36
impose it
in his
case. See RCM
Here,
military judge
the
determined that
1004(b)(4)(c).
particularly
He
notes
the
of appellant’s
evidence of conditions
home
judge’s
videotape
excluding
decision
of a
up
point
was irrelevant
to that
town
because
dealing
network television show
with the
presented suggested
all the evidence
that
poor living
dynamics
conditions
social
of
was not affected
this environ
Miami,
community, Liberty City,
his
Florida.
Scott,
457,
v.
51
ment. See also Davis
F.3d
1004(b)(3).
See RCM
Final Brief at 212-13.
(5th
992,
Cir.),
denied,
462
cert.
516 U.S.
116
whole,
asserts,
judge’s
actions
he
525,
(1995).
agree
432
S.Ct.
133 L.Ed.2d
We
impermissible
created an
the
“risk that
death
however,
appellant,
testimony
with
that the
penalty
imposed
spite
...
of factors
[was]
Armitage
of Doctor
and Doctor Rose that
may
penalty.”
which
call for a less severe
Gray’s background
Private
could have im
Ohio,
586, 605,
Lockett v.
438
98
U.S.
S.Ct.
pacted upon
development
his
the
established
(1978)
2954,
(plurality opin
military judge instructed the fairly Well, early he in life a A: had fair — alia, follows: mitigating circumstances as depravation, substantial socioeconomic home, multiple figures in the male all evidence extenua- You must consider moves, living in sub- multiple physical mitigation and balance them and tion conditions, proverty [sic] using factors the aggravating the against standard — where the electric circumstances upon. previously you instructed I test com- turned out the lights were following Thus, you the should consider paid, pro- were not pany because bills ac- extenuating mitigating factors: the na- living, things jectal[6] [sic] years, ac- age, which is cused’s changes. multiple school character, good military as well as ture — cused’s Now, say that people some could duty performance and the characteriza- military, multiple sounds like him his—the various and tion of as — changes, but the reason for school sundry miti- witnesses on extenuation and ____ changes They’re not are different. gation accepted changes. planned, group you Additionally, in ex- should consider place You have to move some other weighing mitigation, and in tenuation rent, you pay you cause can’t so factors, aggravating against the those up Things end another school. personality disorder as testified accused’s stepparent that He had nature. Rose, Dr. Armitage, Dr. Dr. extremely abusive one time who was precisely You can best recall Warren. himself, to his mother and abusive to they Additionally, say. had what using point him to the belts on pretrial duration of the accused’s confine- inflicting injury, drawing He blood. ... ment. protect felt the need to his mother Armitage’s testimony appellant’s Doctor from —from this abuse. Lived in a— personality express disorder includes refer- part certainly in a of Miami that family upbring- ence to social you was—was not where and I would ing. He testified as follows: Curiously by any want live means. disorders, Q: personality are These this, however, enough, he in all of sub-groups they’re these —are these — didn’t to some that succumb behaviors part Spe- on the self-inflicted many people in those environments Gray? cialist drug He didn’t succumb to. become A: A: Q: They’re something Q: through knowledge that we have Were factors that caused That’s correct. are personality Generally ends Gray child probably people up many ends you *38 — —he rearing able to the —in up, disorders end inherited them or many different reasons. up or whatever? identify any specific that he different reasons Specialist to way way Specialist develop? state of now, got part Gray’s either there of us Q: Questions As but have some sort of effect that would— these factors that you perceive petty depravation, multiple environment, if the evidence indicates or causation etcetera. It abuser; he didn’t become an alcoholic. may far as it is thief____ by Military Judge: not seem [*] to me. If ah—with factor, and in know, [*] You’ve Gray, quite you didn’t become [*] father regard the result like economic listened perceive as— germane, figures, to to all you There are a number of factors in his that is char- A: this environment background living per- in that I think are less than acterized —I believe — may haps, you than in his I have said helpful helpful less believe —were Miami, development. part or some undesirable housing Apparently meaning project. a—in
phraseology of that anyway nature of the numerous other for offenses which —if evidence indicated that the indi- guilty was found and their heinous nature, vidual was not partic- affected error judge committed environment, ular regard then would that en- beyond any was harmless doubt. 59(a), UCMJ, vironment become relevant at all? generally Art. 10 USC 859(a). § No, wouldn’t, A: it you very raised a question,
excellent
the answer
which we
have. And
don’t
the answer
ISSUE XXVII
require
would
why
we know
one
WHETHER APPELLANT’S DEATH
individual is affected
the environ-
FIFTH,
SENTENCE
THE
VIOLATES
why
ment and
another isn’t. But this
SIXTH, AND EIGHTH AMENDMENTS
we do
People
know.
from back-
UCMJ,
55,
AND
ARTICLE
IN THAT
grounds
Specialist Gray
similar to
APPELLANT WAS GIVEN THE
have much greater incidents of viola-
DEATH PENALTY
A
BASED UPON
tions of societal
rules
crime.
CONGLOMERATION OF AGGRAVA-
There are several other features of his
TING FACTORS
background
WHICH
INEXTRICA-
we haven’t touched
BLY DOUBLE COUNTED APPEL-
your question.
on that would address
CRIMES,
LANT’S
AND THE FAILURE
And that is—when he came into the
THE
OF
MILITARY
Army
JUDGE TO IN-
he
a pretty socially
was
back-
STRUCT THE PANEL THAT ONE ACT
ward individual.
CANNOT BE CONSIDERED AS TWO
We conclude that a commonsense under
AGGRAVATING FACTORS WHEN DE-
standing of
light
instructions
of all that
TERMINING IF AGGRAVATING FAC-
place
took
at the trial was that the members
TORS SUBSTANTIALLY OUTWEIGH
should
appellant’s background
consider
aas
EXTENUATING AND MITIGATING
Castro,
mitigating circumstance. See
FACTORS.
830;
F.3d
Singletary,
Bolender v.
16 F.3d
(11th
1547,
Cir.),
Appellant
guilty of
specifi-
was found
two
1022,
589,
(1994);
establish the Government had to establish “one or ISSUE XXVI more the ... aggravating factors” listed WHETHER THE MILITARY JUDGE (c) Appellant subsection of RCM 1004. as- FAILED TO INSTRUCT THE PANEL military judge by failing serts that the erred MEMBERS THAT THE SPECIFICA- to instruct the members not to double count (LARCENY) TION OF CHARGE IV IS aggravating factors find more than one FOR MULTIPLICIOUS SENTENCING aggravating factor based on the evidence of PURPOSES WITH SPECIFICA- single counting, offense. Such double he as- (BURGLARY). TION OF CHARGE VII serts, precludes the properly members from The defense at determining trial made a motion that that he was eligible to receive (RCM the burglary 1004(b)(4)(C)) of the Miskanin residence and penalty death larceny property should, all, therefrom be consid- that he after receive it. See multiplicious sentencing. Harris, ered This People mo- v. Cal.Rptr. 36 Cal.3d prior tion made (1984), the decision of this 679 P.2d v. State Teters, Tittle, Court in States MJ 370 147 Ariz. 454-55 P.2d (1993), military judge Proctor, and the People denied this 4 Cal.4th cf. motion, using Cal.Rptr.2d a societal-norm test. See RCM 15 842 P.2d 1129-30 (“No *39 1003(c)(1)(C), Black, single generally Discussion Stringer test or see 222, 235, developed formula has been which will re- U.S. (must (1992) question multiplicity.”)
solve the of view “risk that L.Ed.2d avoid the the members judge instructed more ... the jury treat[ed] defendant as follows: penalty might aggravating circumstances deserving than he of the death be”). otherwise that, your in find- view of You’re advised adjudge a RCM the court is authorized to initially ings, note that the version of death, 1004(b) imprisonment or provides the fol- of life applicable at trial sentence types punishments of like aggravating only, with other lowing concerning factors: forfeitures, I’ll which men- reduction and (2) Trial aggravating Evidence factors. of just in tion a moment. accor- may present evidence in counsel 1001(b)(4) es- tending to dance with RCM may adjudge a of death You sentence aggravating or more of the tablish one First, circumstances. only under certain (c) of this rule. factors subsection may adjudged not be the death sentence beyond find unless all the court members v v si: that one or more reasonable doubt (4) may Necessary Death findings. aggra- Those aggravating factors existed. adjudged unless— be vating which are forth on the factors set (A) that at one The members find least you are: sentence worksheet aggravating under subsec- of factors premeditated Laura murder that (c) existed; of tion Vickery-Clay was committed while the Lee (B) was provided Notice of such factor engaged accused was the commission of (1) of this paragraph in accordance with victim; rape sodomy or of and all concur in the subsection members factor; finding respect and with to such Kimberly Ruggles, Ann as to that the that (C) Kimberly Ann premeditated murder any All that exten- members concur of the accused Ruggles was committed while uating mitigating circumstances are or engaged rape, the commission outweighed by any was substantially aggrava- of victim; sodomy, robbery or ting circumstances admissible under RCM of 1001(b)(4),including the factors under sub- Vickery Lee that as to the Vick- —Laura (c) section of rule. premeditated ery-Clay, that the murder of 1004(c)(7) applicable at The vei'sion RCMof Vickery-Clay preceded by Lee Laura was provided: trial the intentional substantial infliction of (7) pain That, physical suffering and only in the of a of mental case violation victim; 118(1): Article
v
[*]
%
that as
premeditated
murder of
premedi-
Kimberly
Ruggles,
Ann
(B) The murder was committed while
Kimberly Ann Ruggles
tated murder of
in the
engaged
the accused was
commis-
preceded by
the intentional
infliction
any
attempted
or
commission of
rob-
sion
physical pain
mental and
substantial
arson,
bery,
aggravated
sodomy,
rape,
victim;
finally,
suffering
sedition,
burglary, kidnapping, mutiny,
or
vessel,
piracy of an aircraft
or was en-
or
that the accused has been convicted in the
gaged
flight
attempted flight
or
after
he
more
same case—which
than
has —of
attempted
or
commission
commission
one violation Article 118.
offense;
such
you may
adjudge
Again,
death
vv
v
unless all
court members—
sentence
unanimously
beyond a
rea-
(I)
—find
preceded by the
The murder was
one
or more
those
sonable doubt
physical
infliction
intentional
of substantial
aggravating
again,
And
factors existed.
prolonged,
harm or
or
substantial mental
factors
forth in the
those —those
are set
victim;
physical pain
suffering
sentence worksheet.
[and]
(J)
guilty
accused
found
All of
members
the court must
has been
beyond
agree
the same case of another violation of Arti-
a reasonable doubt that one
aggravating
cle
more of those
factors exist-
118[.]
*40
offenses,
offense,
ed at
of
the time
or
Clearly,
type
MJ at 108.
this
of double
from
counting
resulted
the offense.
It
is
did not occur in this ease as double
only
sufficient that some
ag-
members find that one murder was considered
once as an
existed,
741;
aggravating factor
gravating
while the re-
factor. See 37 MJ at
cf.
Harris,
maining
People
ag-
supra.
members find that a different
v.
Rather,
gravating factor existed.
all of
however,
Appellant,
urges
also
us to
you
beyond
must find
a reasonable doubt
adopt
against
a rule
counting aggra
double
aggravating factor,
that the same
or fac-
vating
single
circumstances
on a
of
based
tors, existed before a sentence of death
substantially
fense and
the same evidence.
maybe adjudged____
Harris,
782,
201 Cal.Rptr.
679 P.2d at
added.)
(Emphasis
The members
found
Harris,
plurality
450. In
a
of
Supreme
aggravating
these five
in
factors
this case.7 Court of California
clear
made
that such a
See 37
MJ at
n. 8.
against
counting
rule
required
double
was
part by
Proctor,
Appellant initially
its state
argues that an
statutes. Contra
instruc
340,
1129-30;
against
Cal.Rptr.2d
tion
P.2d at
counting
double
appro
most
Melton,
priate
People
v.
a case like
Cal.3d
244 Cal.
his where two murder
(1988).
Rptr.
750 P.2d
772-74
convictions exist. He
No
asserts
without
instruction,
appears
proper
such rule
in RCM
and we do
might
the members
think
required by
not consider it
each murder
the Due
conviction
Process
constitutes an
other;
aggravating
Clause of the Fifth
providing
factor for
Amendment.
In
event,
Military
aggravating
two
the Court of
circumstances
Review reconsid
instead of
ered
“in light
one.
this case
He cites the
absence of such
decision
this Court in
Curtis,
(1991),
instruction and
determined that the sen
States
We note that this Court consid- There,
ered a different situation. Senior Judge Everett noted: ISSUE XXVIII WHETHER THE MILITARY JUDGE COMPUTATION OF AGGRAVATING COMMITTED PLAIN BY ERROR FACTORS FAILING TO INSTRUCT THE MEM- however, respect, In procedure one BERS ON SENTENCING AS THE TO
employed may
prejudiced
have
Curtis. As
MEANING OF THE TERM “SUBSTAN-
in our
opinion,
noted
earlier
“ag-
three
OUTWEIGHED,”
TIALLY
WITH RE-
gravating
by
factors” were found
the mem-
GARD TO
RELATIONSHIP OF
1)
bers.
In
they
substance
were:
“the
MITIGATING
TO
CIRCUMSTANCES
premeditated murder of’ Mrs. Lotz “was
AGGRAVATING FACTORS.
engaged
committed while
[Curtis]
plain
We find no
error in
mili
2)
burglary”;
commission
“with
tary judge’s instruction. He instructed the
regard
premeditated
murder of’
alia,
members inter
as follows:
Lotz,
Mrs.
guilty
Curtis had
found
“been
If, however,
you
the same ease of another murder” —that
determine that at least
3)
Lotz;
existed,
regard
Lieutenant
“with
aggravating
one of the
factors
premeditated
consider,
of’
you may
murder
Lieutenant
along
then
with all other
Lotz,
had
guilty
appropriate
Curtis
“been found
in the
possibilities,
sentence
whether
same
case
another murder” —that
adjudged.
sentence of death should be
regard, you may
Mrs. Lotz.
BERS CONCUR ATING OR MITIGATING CIRCUM- THE MILITARY JUDGE WHETHER ARE STANCES SUBSTANTIALLY n IN THE ERRED VIOLATION OF BY THE OUTWEIGHED AGGRAVA- AND FIFTH EIGHTH AMENDMENTS THE FOUND BY TING FACTORS IN- FAILING TO IN EXPLICITLY MEMBERS. IF THE MEM- STRUCT THAT EVEN requirement There is no as matter of ONE BERS UNANIMOUSLY FOUND military law that constitutional or the find- FACTORS OR MORE AGGRAVATING ings that all concur in the state members EVEN IF THE MEMBERS AND However, balancing judgment. military THAT UNANIMOUSLY DETERMINE judge instructed the members on this re- OR MITIGATING EXTENUATING (see 45) sponsibility 51 MJ at and the vote ARE CIRCUMSTANCES SUBSTAN- specifically: sheet stated “The court-martial TIALLY BY THE AG- OUTWEIGHED unanimously extenuating finds all FACTORS, MEM- GRAVATING EACH mitigating substantially are out- factors HAD THE BER STILL ABSOLUTE weighed factors,____” by aggravating IM- DISCRETION TO DECLINE TO Therefore, appellant’s contention in this re- THE DEATH POSE SENTENCE. 756; gard rejected. at is See 37 MJ see also Loving, MJ military Appellant complains expressly
judge should have instructed concerning members their absolute discretion XXX ISSUE penalty not to decide award death DEATH WHETHER THE PENALTY they eligible if he was even determine REQUIR- SENTENCING STANDARD argument penalty. to be We find ING AGGRAVATING TO FACTORS merit. without EX- “SUBSTANTIALLY OUTWEIGH” appellate pointed by out court be- As TENUATING AND MITIGATING CIR- (37 757), appellant’s argument low MJ IN OF CUMSTANCES IS VIOLATION supported the record. The THE FIFTH AMEND- AND EIGHTH question presi- judge, responding to a IN THAT THE ONLY AC- MENTS court-martial, BE CEPTABLE STANDARD dent of the stated: MUST Assuming you got point prolonged, MJ: to that harm or substantial mental or found, you unanimously obviously physical pain suffering victim[.] means all being- vote—all concur- —all Appellant, relying Godfrey Georgia, ring, aggravating that the substan- factors *42 tially outweighed extenuating all and miti- (1980), Maynard Cartwright, and factors, gating you proceed then can to 356, 361-62, on remaining vote elements (1988),argues aggravating the above factor is to, indeed, sentence. You don’t have even unconstitutionally vague Eighth under the that, you you may you were to may do if — Amendment. He that contends word you, may not have not be the mind to— in that vague “substantial” Rule is too to impose penalty. Assuming the death provide meaningful guidance to the members you stages, your reach those two then awarding penalty. in the death See Arnold impose decision is: Shall we a sentence of State, Ga. S.E.2d 391-92 death or life as to those two elements? (1976). you There’s—the that unani- fact found 1004(c)(7)(I) Appellant concedes RCM mously as to those both does not factors might constitutionally vague. not be He imposed. your dictate death be It’s deci- states: sion, you only but impose can a death aggravating sufficiently factor chan- you if go sentence reach those two— only nels discretion it is viewed as con- if through stages unanimously. those two templating physical prolonged harm or Okay, PRES: sir. pain suffering preceded and which added.) (Emphasis This instruction substan- demonstrably separate was and distinct tially conveys point urged by in which acts constituted the mur- from assignment Loving, this of error. der. at 276-77. added). Final Brief 259 (emphasis He however, argues, military judge XXXII
ISSUE explaining point erred However, government members. Id. coun- WHETHER THE AGGRAVATING correctly point precise sel notes this was 1004(c)(7)(I) IN FACTOR STATED RCM made clear to the members VAGUE, IS TO FAILS SUFFICIENTLY judge. military judge Answer at 110. The INVOLVED, CLARIFY THE FACTOR advised members as to this factor: AND DOES THE NOT NARROW Vickery as to the Lee Vick- OF —Laura CLASS PERSONS ELIGIBLE FOR ery-Clay, premeditated that the murder PENALTY, THE DEATH AND IS preceded by Laura Lee Vickery-Clay was THEREFORE INVALID UNDER the intentional infliction of substantial EIGHTH AMENDMENT TO THE CON mental physical pain suffering STITUTION. victim; [and] 1004(c)(7)(I) The version of RCM in effect at premeditated that as to the murder of provided: the time trial Kimberly Ruggles, premedi- Ann that the (c) Aggravating may Death be factors. Ann Kimberly Ruggles tated murder find, only adjudged beyond if the members preceded was the intentional infliction doubt, a reasonable one or more of the physical pain of substantial mental and following aggravating factors: suffering of the victim[.] [*] # v (Emphasis added.) (7) That, infirmity We find no constitutional only in the case of a violation of 118(1): aggravating factor delineated RCM Article
1004(c)(7)(I) Loving, and set out above. See 294; Ortiz, 942; 41 MJ at see also 149 F.3d at (I) (10th preceded by Reynolds, murder was the Duvall v. 139 F.3d — Cir.), -, physical intentional infliction of substantial orally announced this sen- president later find no We also 142 L.Ed.2d appellant. Final tence to judge’s explanation of it. error regard unquestion ly, any error in this Appellant contends: beyond doubt ably harmless a reasonable military judge in the The actions aggravating factors found
view of the other
case, charging the court members
present
Zant,
at 881 and
this case. See
instructions, allowing
presentencing
with
884,
you
together
are all
in closed session de-
PIN.
panel
liberations so that all the
members
have
your
If
discussions.
Military
The Court of
Review sum
benefit of
anyone attempts
marily
to discuss the
case
denied
“motion to abate
your presence during any recess or ad-
proceedings” against
him “to ensure that
*44
journment,
you
I
immediately
appellant,
want
to
tell
apparent drug
as a
of an
result
stop,
immediately report
overdose,
them to
permanent
had suffered no
brain
try
occurrence to
damage
prevent
me. We will
to estimate
partic
which would
his full
for
hearings
ipation
assisting
times
recesses or
out of
appeal.”
with his
37 MJ
your presence. Frequently their duration
at 753. A basis for such action exists on the
is extended
B,
considerations of new issues
record
Def.App.
before us.
Ex.
which
arising at
hearings.
patience
claim,
such
Your
relies
to raise this
also
understanding
regarding these
appellant’s
will
asserts that
condition had stabi
greatly
atmosphere
contribute
to an
apparently
con-
lized and he
perma
suffered “no
with
jus-
sistent
the fair
episode.
administration of
nent deficits” from this
See United
(1995).
tice.
Young,
States
tions the members will be ISSUE XXXV together, you You must remain may WHETHER APPELLANT DE- WAS any not allow unauthorized intrusion into NIED HIS FIFTH AMENDMENT your deliberations. A RIGHT TO GRAND JURY PRESENT- added.) (Emphasis MENT OR INDICTMENT.
Finally, prior findings, he instructed the ISSUE XXXVI members as follows: Military Uniform Code of Justice WHETHER COURT-MARTIAL PRO- prohibits anyone entering me or else from CEDURES DENIED APPELLANT HIS your closed session deliberations. III A You ARTICLE RIGHT TO JURY TRI- may not consult the Manual for AL. Courts- legal publications.
Martial or
other
Military
rejected ap-
The Court of
Review
necessary
If
pellant’s argument
it’s
for administrative
right
grand-jury
reasons
of a
your
interrupted by
presentment
deliberations be
language
because of the
reason,
anyone
recess for whatever
Supreme
Fifth Amendment and
Court cases.
deliberations,
depart
necessary
rejected
it’s
argu-
This Court has resolved at not raise this issue Appellant did appellant Loving, MJ against the Gray, at 759. He now trial. See Matthews, and United States authority convening that the “deliber asserts (CMA 1983). generally Singer v. group court- ately” kept “women as a off’ his States, panel. Final Brief at 295. No statis martial posi- We adhere to this L.Ed.2d 630 support argument tical has been made case. tion Instead, appellant on the sim claim. relies
ple was detailed to sit on fact that no woman showing is panel. Such a this court-martial ISSUE XXXVIII plain claim or inadequate to establish this 283-87; see id. WHETHER, Loving, 41 MJ at error. See ARGUENDO ASSUMING (Sullivan, C.J., concurring part PLEAD 308-09 THAT HE DESIRED TO result). GUILTY, in the RCM 1004’S PROHIBITION- IN PLEAS CAPI-
AGAINST GUILTY
TAL
DEPRIVED APPELLANT
CASES8
XLI
ISSUE
A CRITICAL MITIGATING FAC-
OF
*45
25(c)(l)’S
IRREPA-
TOR AND CAUSED OTHER
EX-
ARTICLE
WHETHER
RABLE PREJUDICE.
CLUSION FROM COURT-MARTIAL
ENLISTED MEMBERS
SERVICE OF
appellant in
against
was decided
This issue
THE AC-
OF THE SAME UNIT AS
There,
Loving,
Amendment to due 25(c)(1). by It states: violated Article XXXIX ISSUE (c)(1) Any enlisted member of an armed DE- APPELLANT WAS WHETHER duty a member force on active who is not IN NIED DUE PROCESS OF LAW VIO- eligible as the accused is the same unit SIXTH, FIFTH, AND LATION OF general special on courts- to serve AMENDMENTS, AND EIGHTH UCMJ martial the trial of enlisted mem- HE ARTICLE BECAUSE WAS may lawfully be of an armed force who ber TRIED IN A PEACETIME CAPITAL trial, but he brought before such courts for BY A PANEL CASE COURT-MARTIAL if, only a court shall serve as member of (I.E. JURY) OF LESS COMPOSED by called before the conclusion of session THAN MEMBERS. TWELVE 839(a) military judge under section the (Article 39(a)) or, in consistently prior title to trial majority A of this has this Court session, the of such a before rejected argument a matter of consti- the absence this Curtis, 287; of the court assembled for the trial Loving, law. is tutional Curtis, accused, 267-68; personally has re- supra at the accused 32 MJ at but see (Sullivan, C.J., writing quested orally the record or concurring). on 45(b), 845(b). § Art. 10 USC UCMJ, Appellant proffered that enlisted members on it. After has not even such serve therefore, and, request, may analysis in this case no relief the not be such accused n by required is this basis. general special court-martial tried or membership the of which does include comprising members in a
enlisted number ISSUE XLII membership least one-third of the total APPELLANT DE- WHETHER WAS court, eligible unless enlisted mem- NIED HIS RIGHT TO AN IMPARTIAL cannot be account of bers obtained on BY THE PRACTICE JURY ACCEPTED military physical exigencies. conditions or MILITARY IN THE OF ALLOWING obtained, If such members cannot be QUES- PANEL MEMBERS TO ASK may be the trial held court assembled and OF TIONS WITNESSES. them, convening authority but the without 614(b) provides: Mil.R.Evid. statement, make a shall detailed written record, (b) appended stating why Interrogation be to the by the court-martial. they military judge may could not be obtained. The or inter- members witnesses, by rogate whether called added.) (Emphasis Appellant notes that this judge, members, military party. aor limitation to officer apply same does not shall submit questions Members their cross-representa- members and denies him military judge writing that a so jury panel. tion on may be ruling propriety made on the “same command” exclusion or restric- questions or questioning the course of by apply tion trial enlisted men does questions may on behalf so that be asked However, an to trial officers. officer has by military in a judge of the court form right military to trial persons. acceptable judge. no enlisted More- When a over, provision previously who has not arbitrary this of law or witness testified is not Wilson, military judge called or the mem- capricious. See United States bers, (CMA 1986). judge may conduct Finally, appellant 193MJ has may examination assign direct re- proce- not met his burden to show that sponsibility any party. to counsel for dure violates the Fifth Amendment’s Due Process Clause. counterpart no federal There is civilian However, practice of court- this rule. Supreme Court in v. United Weiss *46 questioning standing long member is of at States, 163, 177-78, 510 U.S. Military Winthrop, courts-martial. See W. (1994), appro- 127 1 L.Ed.2d noted (2d Law and Precedents 178 ed. 1920 Re- priate process test to determine due viola- major- print), reluctantly recognized in a It procedure. tions court-martial stated: ity jurisdictions. See United States appropri- therefore believe that We Martinsmith, n. 5 but 348 apply ate standard to in these cases is State, n. see Morrison S.W.2d in Middendorf, supra, found where we also persuad- (Tex.Crim.App.1992). We are not process challenge faced a due to a facet of ques- by appellant’s argument ed that such justice military system. In determin- or tioning partial a member biased renders whether ing the Due Process Clause re- by a Allowing questions as a matter of law. quires appearing that servieemembers be- juror good way to have a more informed summary be fore court-martial assisted juror position who is in a better —one counsel, by we asked the factors “whether Moreover, the truth in a trial. determine militating summary at favor of counsel case, process looking in this the court- extraordinarily courts-martial are so trial of over martial members this record weighty as to struck overcome the balance only only one pages questions, asked U.S., (R. by Congress.” objected parties. was of which 1921) question here with is also Accordingly, argument 1281. We ask same .respect law in unsupported to fixed terms of office for as a matter of fact and judges. this ease. (CMA 1987), XLIII ISSUE (1988). 98 L.Ed.2d DE- WAS APPELLANT WHETHER the mili challenge to second Appellant’s LAW OF PROCESS NIED DUE purport on his impartiality rests tary judge’s IM- JUDGE THE MILITARY WHEN failure to counsel’s of defense ed criticism HIS ROLE ABANDONED PROPERLY concern defense witnesses possible interview A AND BECAME IMPARTIALITY OF Vickery-Clay. in the car of Ms. ing a fire FOR ADVOCATE PARTISAN made in the context were These comments GOVERNMENT. identity aof request to reveal the a defense military judge that “the Appellant asserts fire to that source as a witness government impartiality role of abandoned his
repeatedly such hearing whether during a to determine for the partisan advocate acted as a was necessary. This comment action then at 301. He Final Brief Government.” light of the inappropriate not biased or supposedly pro- examples of this six *47 military judge The first comment determined, then I’d guilt make —if investigative request a defense for concerned extenuating and miti- have to listen to the by CID and the CID Commander’s services say I could gating circumstances before that the response request. to that We note go than a death I would for other whether judge expression two times this used penalty. (R. 160.) However, we are context. questioning, outside the commonly Subsequent used term of to this also aware that it is members, military judge presence of the describing general request for informa- art more effective any suggested to defense counsel a one’s client without tion favorable to question concerning way communicate a concluding information exists. to basis for such Irwin, ranges premeditated murder” “various 30 MJ 94 the See United States Enloe, (CMA 1990), military judge also criti- layman. to a quoting States v. 256, 262, question of trial counsel on 234 cized a voir dire 15 USCMA 35 CMR Moreover, following col- clarity grounds. Hagen, United States loquy makes it obvious that his challenged comments The fifth comment of mili- applied to both tary counsel: judge response concerns his to a chal- lenge of trial questioning counsel’s of a Well, you get feelings MJ: can’t their until witness, government Billiter, Special Agent you such time as define for them what referring several times to one of you’re talking about. The same is true charged crimes “as murder.” The mili- your well, (to questions about counsel tary judge request, denied that saying: counsel).
trial you I people want to bear Well, MJ: I don’t mind his mind, characteriza- put yourself position, in their Indeed, tion of that. that’s what the Gov- “How could I question?” answer this ... says ernment it is. His characterization * * * don’t [sic] make it so. I won’t instruct him your MJ: questions say Make to Try something clearer. to different. give questions them obviously, we’re —and partiality We see no in this comment. all searching for a witness [sic] who has no The final challenge concerns the mil bias, pre-knowledge, who has no and I’m of itary judge’s alleged disregard of defense they’re the mind going give to us honest attempt counsel’s explain perception I certainly hope answers. so because we previous witness’ testimony. question have to they assume will. But make the at issue was whether a defense-proffered vid question pose such you, it so that if that — eotape of life in a ghetto, Miami appel where you individual, were the could answer it in grew up, lant was relevant sentencing. an intelligent, informative manner. And colloquy This ensued: why say you’ll that’s I have time to con- Honor, DC: Your I could recall Doctor template it. inWe’re recess. 39(a) Armitage go in a couple over a
Any suggestion of bias in these circum- questions more of these if determine illusory. stances is relevancy? there’s The fourth comment judge again established, already view, MJ: I’ve my problem on the of intelligible ques- voir dire relevancy relevant —the lack of is al- tions. After challenge a defense for cause ready established. The evidence before against Major Peterson, judge the court is to Gray the effect that was not said: factually by and, affected his environment so, consequence. it’s of no
IMJ: think difficulty he’s—his with the mitigating your inability factors is my to intel- DC: That perception was not from the ligently challenge articulate it. The witnesses.
cause is denied. Well, MJ: I don’t percep- have other Maybe tion. wrong. Maybe I’m Major I’m Call in. Lewis in— error, but I will not allow the exhibit to ought just You you to—I’ve you’ve got told be shown. posterity. You’ve recorded for to talk indeed, to these you folks—and if Yes, DC: sir. That’s it. want to talk mitigating about factors and it, they’re going how weigh why don’t Denial of admission of evidence on relevance you give them a grounds scenario to base it on. does not alone against establish bias Ask a man mitigating what factors would the defense.
make him change yourself his mind. Put positions,
in their ISSUE XLIV what mitigating factors got would? You’ve to know what the fac- WHETHER APPELLANT KNOWING- it, you tors are. If want to use use the *48 LY AND INTELLIGENTLY WAIVED in checklist example, Benchbook as an 38(b)(2) HIS ARTICLE STATUTORY go down and check it off for them. Call RIGHT TO CIVILIAN COUNSEL OR him in. 38(b)(3)(B) HIS ARTICLE STATUTORY flippant and, seeWe no insult in this context RIGHT TO MILITARY COUNSEL OF above, for reasons noted we see no bias in HIS OWN THE SELECTION WHERE these comments. MILITARY FAILED COUNSEL TO AD- post-trial counsel’s Based on trial defense OF HIS PROFES- VISE APPELLANT (WHICH affidavit, appears Cap- “It he asserts: IN- SIONAL DEFICIENCIES EXPERIENCE, ability compe- to Brewer questioned tain CLUDED NO CAPITAL L), (Def.App.Exh. TRAINING, tently represent Gray AND EX- SPC NO NO CAPITAL this fact. failed to his client of His yet A advise DEFENDING MUR- PERIENCE IN Gray CHARGE) from prevented failure to do SPC FAILED AD- so DER AND TO right fully exercising his to knowingly and THAT HE HAD VISE APPELLANT CASE, 38, UCMJ.” Final counsel under Article TO THE DETAILED HIMSELF disagree. Brief at 303. We XLV ISSUE post-trial In that affidavit trial defense following: counsel stated the APPELLANT KNOWING- WHETHER Gray I that SPC very 4. was concerned LY AND INTELLIGENTLY WAIVED represen- quality legal receive best 38(b)(2) HIS ARTICLE STATUTORY possible penalty in this death case. tation OR RIGHT TO CIVILIAN COUNSEL fact, I of 1987 wrote the December 38(b)(3)(B) HIS STATUTORY ARTICLE Bar, my Ethics Committee of the Florida COUNSEL OF RIGHT TO MILITARY licensing state, advisory and asked for THE HIS WHERE OWN SELECTION qualified rep- I opinion on whether was APPEL- MILITARY JUDGE MISLED Gray capital in a case. The resent SPC THAT LANT BY STATING HIS COUN- “if advisory opinion my was a nutshell “QUALIFIED SEL LAWYERS” WERE professional judgment careful after evalua- LEAD AND THAT HIS WAS COUNSEL representa- provide competent tion I could A EX- “LAWYER OF CONSIDERABLE it me to tion would ethical for continue.” be PERIENCE,” WHEN NEITHER representing I decided continue SPC A HAD TRIED COUNSEL CAPITAL Gray. Military An Individual Counsel was CASE, CASE, A TRIED MURDER OR assigned represent Gray, to help SPC and DEATH RECEIVED ANY PENALTY Captain and I shared Craig Teller LEGAL EDUCATION. CONTINUING responsibility defending Gray SPC Captain Teller his court-martial. took no XLVI ISSUE part working psychologists with the RE- WHETHER DUE PROCESS case, psychiatrists my as this QUIRES THAT COURT THIS ESTAB- responsibility. area of LISH MINIMUM STANDARDS FOR assigned The first has no issue above merit APPELLATE TRIAL AND DEFENSE as a matter of fact in case. law or IN COUNSEL CAPITAL CASES. duty-to-inform legal predicate for this by appellant argument asserted is United XLVTI
ISSUE
(ACMR 1991).
Thomas,
States v.
actual belief of
same. No
take
proffered
necessity
whatsoever is
for the
of a
ensure that counsel in serious criminal
warning in
qualified.
generally, e.g.,
the former circumstances.
In
cases are
See
addition,
military
we note that
defense coun-
Committee to Consider Standards for Ad-
only post-trial
Courts,
stops
sel’s affidavit is not
but
in
mission to Practice
Federal
Fi-
asserting
implying
Bazelon,
in
(1979);
short
or
his belief
his
Report,
nal
F.R.D. 215
83
inability
Counsel,
to handle
case.
this
42
Defective Assistance of
1,
(1973); Berger,
U.Cin.L.Rev.
18-19
Appellant
argues that
also
the mili
Special
Advocacy:
Specialized
Skills
Are
tary judge
duty
had a
to inform him about
Training
Certification
of Advocates
trial
total inexperience
defense counsel’s
in
Justice?,
System
Essential
to Our
42
cases,
capital and murder
and their lack of
227
Burger,
Ford.L.Rev.
Some
death-penalty continuing legal education.
Further Reflections
the Problem of
Moreover,
clearly
he
he
asserts that
breach
Counsel,
Adequacy of Trial
49 Ford.L.Rev.
duty
lawyers
ed
when
labeled these
he
(1980); Schwarzer,
1
Dealing with Incom-
“qualified”
experience.”
and “of considerable
Role,
petent
Judge’s
Counsel—The Trial
result,
aAs
he
that he
asserts
did not know
(1980).
633
Harv.L.Rev.
address
We
ingly
intelligently
right
waive his
to civil
not
prudent
appropriate,
what is
or
but
38(b)(2)
ian counsel under Article
or individu
only
constitutionally compelled.
what
is
38(b)(3)(B).
military
al
counsel
Article
under
legal authority
support
No
is offered to
Cronic,
this
38,
665 n.
466 U.S. at
S.Ct.
argument, and
draw
we cannot
such authori
added).
(emphasis
ty from our
in
decisions
United States v.
Accordingly,
Lov-
for the reasons stated in
Johnson,
(1986),
ISSUE
ALL THE OFFENSES.
OF
EFFECT
HAS BEEN
APPELLANT
WHETHER
military judge
Appellant
that
asserts
EQUAL
UN-
DENIED
PROTECTION
by failing
instruct
the members
erred
IN
OF
DER THE LAW
VIOLATION
only
sentence
was an authorized
“that death
IN THAT
THE FIFTH AMENDMENT
murder and
premeditated
the offenses
for
IN THE
ALL
CIVILIANS
OTHER
323. He
felony murder.” Final Brief
ARE AFFORDED
UNITED STATES
the Fifth
duty
to instruct on
grounds such
HAVE THEIR
THE
TO
OPPORTUNITY
55. He
and Article
Eighth Amendments
BY AN ARTICLE
REVIEWED
CASES
prejudiced
further
COURT,
asserts
OF THE
III
MEMBERS
BUT
because
by this failure
instruct
ARMY BY VIRTUE
UNITED STATES
THEIR
AS SERVICE-
OF
STATUS
appellant may
been
to die
have
sentenced
MEMBERS ARE NOT.
that, al-
panel
felt
because the
members
though
to die for
rejected
appellant did
deserve
argument
This
was considered
specific capital crimes he was convicted
adhere to
Loving,
in
premeditation. Teeter, approved an We such instruction in LI 71-72, supra objection by absent WHETHER THERE IS NO MEANING- defense. in this context and view of the FUL DISTINCTION BETWEEN PRE- overwhelming premeditation evidence of MEDITATED AND UNPREMEDITAT- ease find no error on this basis. MILITARY, ED IN MURDER THE Loving, 41 atMJ ALLOWING DIFFERENTIAL TREAT- MENT AND SENTENCING DISPARI- LIII TY IN VIOLATION THE OF FIFTH AND EIGHTH AMENDMENTS. THE WHETHER PREDOMINANCE OF
MISLEADING
IN THE
LANGUAGE
REASONABLE-DOUBT
INSTRUC-
LII
GIVEN BY THE
TIONS
MILITARY
WHETHER
MILITARY JUDGE
JUDGE FOR FINDINGS AND SEN-
ERRED BY
DE-
INSUFFICIENTLY
TENCING CREATED
DE-
A HIGHER
SCRIBING THE
BE-
DISTINCTION
GREE OF DOUBT THAN
RE-
IS
TWEEN THE OFFENSES OF PRE-
QUIRED UNDER THE DUE PROCESS
MEDITATED AND UNPREMEDITAT-
CLAUSE OF THE FIFTH AMEND-
ED MURDER.
MENT.
The first issue noted above asserts as its
Appellant
military judge
notes that the
premise
meaningful
that there
no
is
distinc-
gave
following
this case
instruction on
in military
premeditated
tion
law between
reasonable doubt:
unpremeditated
murder and
murder. We
A “reasonable doubt” is what the words
implicitly
question long
resolved this
ago in
imply, a doubt
founded
reason.
It is not
Teeter,
States
71-72
doubt,
ingenious
conjec-
fanciful or
or
recently in
capital-case
More
con-
ture, but an honest conscientious doubt
again
text we
question contrary
resolved this
suggested by the
or
material evidence
lack
appellant’s argument. Loving,
41 MJ at
of it in the
It
misgiving
case.
is an honest
Accordingly,
ap-
279-80.
we conclude that
insufficiency
caused
proof
pellant’s argument
again
on this issue must
guilt.
beyond
“Proof
reasonable doubt”
rejected.
be
proof
certainty,
means
although
to a moral
The second issue noted above
focuses
necessarily
an absolute or mathemati-
military judge’s
explaining
instructions
certainty.
cal
A
is
reasonable doubt
premeditated
the distinction between
murder
doubt
reasonably
which would cause a
unpremeditated
murder. We
note
prudent person
to hesitate to act
appellant
object
in-
did
trial to the
important
weighty
more
own
given
judge
structions on this matter
personal
proof
must be such
affairs.
proffer
or
a substitute.
You’ll notice that the
although
difference
element
is, premeditat-
particular
prose-
between this offense—that
each
fact advanced
unpremeditated
ed murder —and
murder is
cution which
not amount to
ele-
does
that there would—the accused
have
beyond
must
ment need not be established
rea-
kill,
is,
premeditated
However,
had the
design to
doubt.
if on
sonable
the whole
prior
you
beyond a
applica-
had considered the act
evidence
are
rea-
satisfied
tion of the force and must have had the
sonable doubt of the truth of each and
element,
danger
regard
greatest
in this
every
you
find the accused
the risk of
should
they
savage
murder cases because
natural-
guilty.
ly call
the “maximum denunciation.” See
added.)
further
that a
(Emphasis
*52
argument
any authority ex-
support his
with
(1990),
sepa-
of the
and several
L.Ed.2d
States, supra. That
cept Austin v. United
in Victor v.
opinions of
Justices
rate
a
rule
of new
support
case
not
creation
does
Nebraska,
1, 114 S.Ct.
cases,
findings in murder
but
voting
for
(1994),
that
these
he asserts
L.Ed.2d
only
natural unre-
in dicta on the
comments
defective,
constitutionally
instructions were
layman
com-
of the
as
strained tendencies
be
his conviction and sentence must
re-
so
judge.
pared
We fail real appellant may proce suffer as result this LIV dure, legally has not made a WHETHER THE MILITARY JUDGE’S process argument sufficient denial-of-due RESTRICTED FREE INSTRUCTIONS States, regard. this See Weiss United CONSIDERATION OF THE EVI- 752, 127 163, 114 L.Ed.2d 1 REQUIRING BY DENCE THE MEM- Accordingly, against resolve issue this BERS ON THE TO VOTE MOST SERI- appellant. OUS OFFENSE FIRST. voting-proce- Appellant asserts that LV given by military judge dure instructions WHETHER OF THE DESIGNATION in this case restricted members’ free SENIOR MEMBER PRESID- AS particular consideration evidence. ING OFFICER FOR DELIBERATIONS complains requiring he the members to THE SENIOR MEM- ESTABLISHES greater vote on the more serious offense first precluded AND full fair BER’S SUPERIORITY IN CON- their consideration of PRO- offenses. He contends that OF THE DELIBERATION lesser-included TROL offense, Change was 10. 2 to 9. At time of this RCM the Manual Courts-Martial 921(c)(4), 12, 1987, (15 1986) ("to"); May but as of March it re- contains correct word (1 1987) 921(c)(5). beginning Change with word numbered as RCM See Exec. Order June erroneously Fed.Reg. §§ "the” This error is [L] No. 12586 & 52 7106 & is substituted. in the edition. contained AND DENIED CESS APPELLANT ...” VATING FACTORS DID NOT DUE PROCESS OF LAW AND A FAIR SUFFICIENTLY INFORM THE MEM- AND IMPARTIAL CONSIDERATION THAT BERS MUST BE THIS FINDING OF THE BY EVIDENCE THE MEM- UNANIMOUS. BERS. Appellant’s argument basic that the mili- 502(b)(1) RCM states: tary judge’s sentencing instructions could be (b) President. permit construed to a less-than-unanimous (1) Qualifications. president of a finding by the weighing- members court-martial shall be the detailed member death-eligibility question. The record as a serving. senior rank then support whole argument. does It11 (2) president Duties. The shall have states: the same duties as the other members and Your aggravating deliberation on the fac- shall also: *53 properly tors should include a full and free (A) over Preside closed of sessions the discussion of all the evidence that’s been during members of the court-martial then- presented. you’ve completed your After deliberations; discussion, voting then ag- on the —each (B) Speak for the members of court- gravating accomplished by factor must be announcing martial when the decision of secret written All ballot. members are or requesting the members instructions required you to vote. unan- military from the judge; and If fail find imously that at one aggrava- least (C) of special court-martial without existed, ting you may then perform factors judge, assigned the duties If, adjudge however, a sentence of death. by this military judge Manual to the ex- you at determine that least one of the cept expressly provided. as otherwise existed, aggravating you may factors then practice It ais traditional at courts-martial consider, along appropriate with all other since at least Winthrop, 1828. See W. Mili- possibilities, sentence whether a sentence (2d tary Law and Precedent 170 ed. 1920 adjudged. of death should be In this re- Moreover, Reprint). appel- the members of gard, you may adjudge a sentence of lant’s court-martial were instructed on their you “equal find, by death unless president voice” with the unanimous of the court- in discussing, deciding, martial voting. again, any all members —that vote— They were also instructed that influ- “[t]he extenuating mitigating all factors superiority of ence in rank will not be em- substantially are outweighed by any ag- ployed in attempt manner to to control factors, gravating including the factors independence of in members the exercise you’ve previously which found existed in personal own judgment.” their In these step procedure. Thus, the first this circumstances, appellant has failed to estab- aggravating addition to the factors that process due lish a from resulting violation have been found unanimous vote —as- designation president court- suming you you may consider fol- do— States, supra. martial. See Weiss v. United lowing aggravating factors as well: [list omitted]. of factors
LVI (R. 2562-63) added). (emphasis “you WHETHER THE MILITARY JUDGE’S singular” “you plural” ambiguity argu- or THAT ‘YOU INSTRUCTION MAY NOT posited by ment also appellant, Final Brief at A ADJUDGE SENTENCE DEATH OF 347, is not a reasonable likelihood these UNLESS FIND THAT AND YOU ANY generally circumstances. See Victor v. Ne- ALL [AND] EXTENUATING MITIGAT- braska, [FACTORS] ING ARE U.S. SUBSTANTIAL- (1994). LY OUTWEIGHED BY ANY AGGRA- L.Ed.2d 583 language paragraph 11. Certain instructional was omitted first of the discussion of this issue in assigned issue from but was included his brief. Final Brief at 346. victim, dant, may jury shall or the be. LVII signed by court a certificate return DEATH WHETHER THE MILITARY race, juror each that consideration INVALID DUE PENALTY SCHEME IS beliefs, color, religious origin, or national U.S. 238 TO V. FURMAN ‘GEORGIA or the victim was not sex of the defendant (1972), THE SEPARATION OF AND reaching her individual involved POWERS DOCTRINE. juror decision, the individual and that fourth time this issue has been This is' the have made the same recommenda- would Loving, 41 presented this Court. regarding a for the crime tion sentence Curtis, 293; MJ 252 United States race, color, question what the no matter (CMA), 952, 112 beliefs, religious origin, or sex of national Matthews, (1991), defendant, victim, may or the be. Supreme has 381. The Court provision law was enacted This federal in the favor. resolved this issue Government’s (November 18, court-martial after States, Loving v. 4545). It 1988—102 Stat. is not constitution- 1737, 135L.Ed.2d 36 274. Fi- ally Loving, 41 MJ at mandated. nally, provision specifically law lim- LVIII application in its to offenses under ited WHETHER RCM 1004 FAILS TO IN- USC. CONGRESSIONALLY
CORPORATE *54 MANDATED PRE- PROTECTIONS TO LX VENT IMPO- RACIALLY MOTIVATED SITION THE DEATH PENALTY IN OF THE WHETHER IMPOSITION OF OF ARTICLE 55 VIOLATION UCMJ IN DEATH PENALTY THIS CASE VIO- THE EIGHTH AMENDMENT TO AND LATED APPELLANT’S RIGHT TO THE CONSTITUTION. EQUAL UNDER THE PROTECTION
FIFTH AMENDMENT BECAUSE RCM APPELLANT, AS A SUBJECTS LIX FORCES, THE ARMED MEMBER OF WHETHER THE MILITARY JUDGE IS OTH- TO A PENALTY WHICH NOT PLAIN COMMITTED ERROR WHEN THE ERWISE AVAILABLE UNDER HE FAILED IN- TO SUA SPONTE CRIMINAL CODE OF THE UNITED STRUCT THE PANEL MEMBERS STATES CRIMINAL FOR IDENTICAL BE THAT RACE NOT CON- COULD CONDUCT. IN SIDERED AS A THE FACTOR SEN- imposition Article 118 authorizes TENCING PROCESS. penalty in death this ease. USC Cf. Appellant calls this Court’s attention to 848(e). § as it the time Article read at 848(o)(1), §USC which states: trial, stated: (o) Right justice of the defendant § 118. Murder 918. Art. without discrimination who, (1) Any subject person chapter to this any hearing jury a held before excuse, justification unlawfully section, without or shall under this court instruct being, when he— jury kills human its consideration wheth- justified it er the sentence of death is shall (1) kill; design premeditated has race, color, religious not consider the be- (2) great bodily to kill or inflict intends liefs, origin, national or sex of the defen- harm; victim, jury or dant that the is (3) engaged in an which is inher- is act it recommend sentence death unless ently dangerous to others and evinces a it has concluded that would recommend life; disregard wanton of human or question sentence of death for the crime race, (4) color, religious engaged perpetration matter or no what the is beliefs, origin, attempted perpetration burglary, sod- national or sex of defen- (1994),
omy,
robbery,
rape,
aggravated
or
ar- L.Ed.2d 206
and United States v.
son;
(CMA
Mabe,
1991).
again
vinced us that this gues that provided tional standard Weiss under the minimum, following at warrant issues States, Middendorf, supra, newly reversal his case: the discovered 1281. U.S. at in- organic damage; brain evidence counsel; his the de- effective assistance of LXV resources; expert incompetent nial of experts; assistance from mental health WHETHER COURT-MARTIAL PRO- improper granting challenges during DENIED APPELLANT CEDURES HIS dire; plea the use of his civilian voir SIXTH AMENDMENT RIGHT TO him; agreement against and the AND AN JURY TRIAL IMPARTIAL judge’s instructional errors. OF THE CROSS-SECTION COMMUNI- TY. disagree. Brief at Final implied premise the cumulative- Appellant’s Sixth Amendment attacks on errors, error is the “no doctrine existence of system are merit. court-martial without reversal, [yet] 285; perhaps one sufficient to merit Loving, United States (CMA Smith, [they 1988); necessitate dis- all] combination Santia approval finding” sentence. United 389; generally go-Davila, MJ see Ex *56 (CMA Banks, 150, 1, 39-41, 2, v. 36 170-71 Quirin, States MJ parte 317 U.S. 87 (20 1992). Hoover, (1942); of merit are Assertions error without Dynes L.Ed. v. Here, How.) 65, 15 not sufficient to invoke this doctrine. L.Ed. 838 no in asser- have found merit tions of error. LXVT
WHETHER APPELLANT’S DEATH
LXVIII
SENTENCE VIOLATES THE EIGHTH
WHETHER THE ARMY COURT’S PRO-
AMENDMENT’S
PROHIBITION
IN
AND
REVIEW
THIS
AGAINST CRUEL
UNUSUAL
PORTIONALITY
AS A
WAS INSUFFICIENT
PUNISHMENT.
CASE
LAW.
MATTER OF
Appellant
has not chosen
otherwise
Curtis,
Thus,
270-71,
that
MJ at
this Court held
brief this issue.
we assume
he
by
argues
per
“proportionality
a
that
review”
a Court of
that
death sentence
se violates
66(c),
Military
Article
Eighth
required
the
Amendment as cruel and unusual
Review is
UCMJ,
866(c),
death-penalty
§
in
punishment. Supreme
law
Court case
does
USC
Later,
argument
opinion
in our
in
support
as a matter of law.
cases.
second
Cur-
this
tis,
Judge
Gregg Georgia, 428
Everett de-
v.
33 MJ at
Chief
review,
scope
required
fined the
749. A
proportionality
37 MJ at
similar
re-
approved by
follows:
view was
Court in Loving,
this
Curtis
eases,
pre-
Court decisions on state
which
PERSONALLY
ISSUES
ASSIGNED
appellant’s.
sented situations similar to
TO UNITED STATES V.
PURSUANT
cases,
MJ at 749 and
13. In these
death
n.
(CMA 1982).
GROSTEFON, 12
431MJ
juris-
penalties
imposed in
state
were
various
occurring
single
during
dictions for a
murder
Final Brief
In footnote
counsel
robbery
burglary. Appellant’s
or after
of this Court to 31 issues
calls
attention
*58
multiple premeditated
by appellant
court-martial involved
personally assigned
that are
preceded by rapes
murders
or forced sodom-
to
See
Appendix
contained in
C that brief.
disproportionality
general
ies. We see no
in
note that
does
Attachment. We
Grostefon
in
issues
permit
appellant
sentence or with the sentence
raise such
(1994).
untimely
good
v.
in an
manner without
cause.
Loving,
United States
Healy,
good
See
atMJ
397. No
cause is
untimely pleading
appel-
for this
averred
in
Captain
post-trial
Brewer stated
affi-
Moreover,
lant’s case.
all these issues were
davit,
L),
(Def.App.Exh.
that he contacted his
any general
particular
raised
or
without
as-
matter;
regarding
state bar association
this
appellant
by
prejudiced
sertion that
was
however,
Gray
SPC
of it.
never informed
legal
these
generally
claimed
errors. See
this,
Had
Gray
SPC
known of
he would have
Pollard,
United States v.
38 MJ
51-52
requested that CPT
be
from
Brewer
released
(CMA 1993);
21(b)(4),
see Rule
United States
his case.
Military Appeals
Court
Rules of Practice
2. Appellant
that his
submits
counsel
(requiring
and Procedure
direct and con-
“[a]
they
fully
were ineffective because
failed to
argument
why
cise
showing
good
there is
investigate
history. Spe-
his mental health
grant
petition, demonstrating
cause to
Gray
cialist
had informed his counsel that he
why
with particularity
assigned
the errors
experienced
had
headaches since he was a
materially prejudicial
are
to the substantial
child,
constantly
though
felt as
there was
rights
appellant____”).
nia, 307, 319, sentencing him to death. L.Ed.2d other 20 issues challenged by trial Captain effectively decisions 4. Brewer failed to judge. when, We have represent appellant during reviewed the record trial his sen- and find no tencing argument, abuse discretion otherwise CPT Brewer referred to nut, judge reversible error rulings these as a and said that he was (nos. 5-13, 16-19, 21, 21-25, 31). 28, 30, personally penalty. in favor of the death Matias, generally supra at 361. military judge refusing erred Army grant appellant pretrial
The decision of the United States credit confinement Military 6, 1987, Court January Review is affirmed. from when he was first
apprehended by au- civilian law enforcement thorities, until the date of his trial. ATTACHMENT military judge improperly 6. The denied Grostefon, Pursuant to United States appellant’s request peremptory for additional (CMA 1982), appellant MJ 431 invites the (R. 16; Ill; challenges. App. App. Exh. following, Court’s attention to the noninclu- XI.) Exh. personally sive list asserted errors: military judge improperly 7. The denied provide 1. His counsel did not him with sequester panel the defense motion to effective assistance counsel due to the fact (R. 119.) members. they they failed to inform him whether prevailing professional military judge met improperly standards 8. The denied promulgated charges Bar the American Associa- the defense motion to dismiss based XXV, XXVa, Legal speedy tion and the (App. National Aid and Defend- trial. Exhs. XXXVI.) capital representation. er Association for *59 military judge improperly denied 21. The improperly denied judge 9. The handwriting exem- objection to the defense pretrial a new investi-
the motion for defense (R. 419- appellant. at plars gathered from (App.Exh. gation art. 32. pursuant to'UCMJ XLIX.) 22; App. Exh. XXVII.) military judge improperly denied 22. The military judge improperly denied The 10. identity request the of a CID the for defense change of venue. motion for the defense (R. 425.) agent. registered at XXVIIIa.) XXVIII, (App. Exhs. military judge improperly The denied 23. re- military judge improperly 11. The Cap- challenges against for cause defense support videotape of to review fused (R. Sergeant Peden. tain Barner and First (R. at change for a of venue. defense motion 733.) at XXX.) 141-43; App. Exh. military judge improperly 24. denied The military judge improperly denied 12. The request a mistrial based on the defense for (R. charges. to sever at defense motion uncharged rape oc- to an witness’ reference XXXV.) 155; App. Exh. 829.) (R. “in curring [1986].” November at military judge improperly denied 13. The military judge improperly The denied 25. appellant’s motion to hold unconstitutional request for mistrial based defense Courts-Martial, States, Manual for appellant’s trial comment on silence counsel’s 916(k)(2). App. Exh. XXXIV. Rule remorse). (i.e., no appellant has shown military judge improperly The denied 14. The counsel was ineffec- 26. trial defense independent in- request for an defense commenting personally he tive in 156-161.) (R. at vestigator. penalty. favor of the death military judge improperly The denied 15. support to 27. The evidence is insufficient Charges dismiss IV the defense motion to premeditat- finding guilty attempted of of (R. 463; jurisdiction. at and VI for lack (Charge specification) I and its ed murder XXXVTII.) App. Exh. to appellant allegedly said Private where (1) military judge improperly Nameth, buddy The my 16. “don’t scream or me and pretrial you.” failed to order a new advice due to and kill will come back improper punish- as to maximum advisement military judge improperly The denied 28. (2) rape; and ment for the offense of failure suppress prosecution ex- defense motions authority mitigat- convening advise the throughout the trial. hibits (R. 172.) ing factors. at military judge improperly The denied 29. military judge improperly denied 17. The finding for a the defense motions request production of evi- appellant’s 2059.) (R. 1876-1886, at guilty of offenses.' (R. 176.) dence. at military judge improperly The denied 30. military judge improperly The denied 18. request on less- the defense for instructions suppress the black the defense motion to offenses. er-ineluded XLIV.) “ninja” pants. (App.Exh. military judge improperly The admit- 31. military judge improperly denied 19. appellant’s civilian convictions ted evidence of appellant’s suppress motion items seized (R. 2240-48.) aggravation. at appellant’s personal from effects drawer at EFFRON, COX, Judge, with whom Chief facility, though mil- even confinement joins Judge, (dissenting): judge a rea- itary found that had expectation privacy in the items sonable I (R. 346.) seized. Kentucky, In Batson v. (1986), military judge improperly denied the Su- 90 L.Ed.2d discriminatory use panel composed preme held motion for a Court prosecution reflecting peremptory challenges a fair cross-section of the
members
414-419.)
(R.
cognizable
community.
members of
same
remove
*60
minority
present
group
pre-
racial
as the defendant from
The
case does not involve
jury
Appellant
in
right
violated the constitutional
to Batson trial.
was tried
late-
early-1988
equal protection
year
1987 and
one
In
after
laws.
—over
expressly
Batson was decided. The
Santiago-Davila,
defense
States
389-
objec-
cited Batson at trial as the basis of its
(1988),
applied
Batson
the
to
exercise
military judge
tion. The
had the benefit of
peremptory challenges
in courts-martial
Batson,
Supreme
yet
the
in
Court’s decision
if
prior
even
the accused
been tried
had
to
apply
Supreme
prece-
to
declined
the
Court’s
Supreme
the
in
Court’s decision Batson.
In
granted
dent.
relief
view the
in Santi-
majority suggests
that Batson does
ago-Davila
military judge
the
did
—where
apply
to this
ease
that
it does not
the opportunity
even have
to consider the
force,
apply
appellant
full
with
because
was Supreme Court’s decision in Batson —it
is
published
tried before we
our
in
decisions
inappropriate
suggest
appellant
to
Santiago-Davila
and United States v.
protec-
should be denied the constitutional
Moore,
(1989),
in
applied
MJ 366
which we
tions of Batson because of concerns about
Batson to trials
court-martial. The ma-
retroactivity.
jority’s position
contrary
precedent
is
to
in
Supreme
our Court and in the
Court.
II
In Santiago-Davila, where we first
Batson,
Supreme
In
the
Court established
adopted the Batson framework for
mili-
three-part
objec-
procedure
addressing
for
tary,
on July
accused was tried
peremptory
to
tions
the exercise of
chal-
Supreme
1985—9
before the
months
Court’s
First,
lenges.
judge
the trial
must deter-
in
military judge
decision
Batson. The
in mine whether the- defense has established “a
did not
case
have the benefit
prima
purposeful
case of
discrimina-
facie
Supreme Court’s decision when he ruled on
96-97,
tion.”
Nonetheless, circumstances, even those III “applied we held that ... Batson retroactive- rendition,” ly preceded to trials that its id. at peremptory challenge at issue 390, citing Supreme Court’s decision case was exercised the Government to Kentucky, Griffith officer, Major remove African-American (1987) 708, 93 (applying L.Ed.2d 649 Quander, pan- from court-martial retroactively Batson to cases not final at the Appellant el. also an African-American. Batson). ultimately granted issuance of cause, challenges At the conclusion of for Santiago-Davila hearing Batson Major Quan- none which were directed at claim, Moore, id. at 392. See also der, prosecution sought challenge Ma- (remanding factfinding 367 n. hear- jor counsel, Quander peremptorily. Defense ing accused was tried but relying Major where after Batson on the fact that Santiago-Davila). Quander minority, before were of the same racial equivo- penalty were concerning mili- the death objected challenge and asked the *61 require to cal.”2 tary judge trial counsel demon- to being challenge was exercised that the
strate Quander’s Major a other than for reason W race.1 case, military judge the the present In require military the judge The refused to challenge by granting peremptory erred the provide expla- to a race-neutral prosecution provide to requiring the Government without challenge, peremptory for the assert- nation perempto- explanation for the race-neutral necessary. ing explanation that no was Sub- Major Quander. This error ry challenge of to on sequently, asked trial counsel state he by military judge’s reli- compounded the was challenge the was not based the record that by of on mere denial trial counsel ance the race, appellant’s and trial counsel did so. on intent, discriminatory his failure to make “give to some sort When trial counsel offered law, and findings of fact and conclusions of that as the reason we feel of articulation to credibility rule the of the his failure to on ,” him the perempt based [sic] we should on— by as post-hoc explanation filed trial counsel military cut him off in mid-sentence. judge appellate exhibit. military judge any allow fur- The refused to objected at trial to the When the defense by granted explanation ther trial counsel Major Quander, the peremptory challenge of challenge against Major peremptory the responded stating on the rec Government judge Quander. military The did not enter challenge on the was not based ord any findings of fact or of law on conclusions grounds. Supreme ex racial The Court has objection the the the merits of defense to however, plained, that a mere denial of dis prosecution’s peremptory of the exercise criminatory good intent an affirmance of challenge. comply with faith does not Batson’s second peremptory challenge al- After the was 1712; Batson, 98, 106 step. at U.S. lowed, military judge Elem, the recessed the trial 765, 769, see also Purkett (1995). for the weekend. When the court-martial The L.Ed.2d 834 recess, following reconvened the weekend tri- race- obligated provide Government LVIII, appellate al counsel filed exhibit challenge. its In the explanation neutral for record, justice military system, prof memorandum which the “all the reasons peremp- prosecution team stated that untainted “[t]he [must] fered trial counsel be tory challenge against Major Quander inherently discriminatory was motives.” Greene, responses his exercised because we believed 36 MJ 280. Batson, Major Quander prong
1. Because
were
of
nor was that
the basis of
African-American,
appellant objected
military judge’s
ruling
challenge.
both
once
ultimate
on the
challenge
peremptory
fact,
to the Government’s
of
military judge simply
In
declined
Quander,
Major
he met his burden to establish a
prong
address the first
of Batson. Had he done
prima
case of
under
discrimination
Batson
so,
facie
required appellant
and had he
to demonstrate
applied
military justice system.
as
in the
showing,
per
more than a
se
we would have
Greene,
278; Moore,
(per
do
follow the law as instructed
supported by
the record.
military judge,
vote for the death
*63
definitely
penalty. He stated: “I can
consid-
counsel,
exchange
between defense
say I
honestly
it.
would
er
I would
have
counsel,
judge demon-
military
and the
trial
yes, but I
problems saying
have
could
some
judge
that he
that
the
determined
strates
response
particularly
not
do
is
it.” Such
is-
the Batson
required
was
address
facing the
from a
awe-
remarkable
member
“give
trial counsel offered
sue. When
responsibility
adjudging
the ultimate
some
for
sort
articulation
to the reason”
some
penalty.
military judge simply stat-
challenge,
the
the
record,
would
In
it
critical
ed that
denial
racial bias
light of this
was
that
his blanket
proffered
trial
his
military judge
the
make a determination as
suffice. When
counsel
explanation
challenge at
the next
explanation
was
for the
whether trial counsel’s
court,
military
military judge did not
pretextual.
judge
If
session of
the
credible or
the
it,
so,
that
considered
“findings
provide
had
we
his
indication
he
done
would sustain
question
clearly
merely allowed trial counsel to submit
on
factual
unless
errone-
but
this
Greene,
appellate
There
(citing
ous.”
MJ
the statement as an
exhibit.
36
at 281
Hernan-
1859).
dez,
369,
military
absolutely no indication that the
at
111
In the
500 U.S.
S.Ct.
determination, however,
judge
any evidentiary
to trial
value
absence of such a
we
attached
statement,
military
did
judge
counsel’s
and the statement
have no indication that
the
any way ruling
part
challenge
a not constitute in
on the
based his allowance of the
on
criteria,
judge.
permissible
military
no
the
In
circum-
and there is
trial-
such
stances,
military judge’s “judicial inaction
ruling
level
for us to
the
review.
Greene,
legal
... constituted clear
error.”
Although
possible
military
it is
that
the
at
36 MJ
282.
judge
challenge
compliance
allowed the
Batson, ie.,
In
case
determining
regard,
this
this
is controlled
with
after
that the
Santiago-Davila,
remanded
explanation
pretextu-
a case which we
Government’s
was
al,
judge
required
likely
military
equally
are three
because the
neither
there
other
decision,
explanation
the
nor
which
an
from
Government
grounds for his
all of
would
(1)
discrimination,
at
judge
26 MJ
may
ruled on the issue of
violate Batson:
the
Moore,
386;
provi-
where
remanded for
then-existing
we
complied
have
with the
Courts-Martial,
DuBay
hearing
un-
on
Batson issue
sions
the Manual for
required
judge to
whether
explanation
for
instructed the
“determine
der which no
was
(2)
expla-
challenge3;
articulated a neutral
peremptory
of a
trial counsel has
exercise
particular
case.” 28
military judge may
have found that the
nation relative to
Ruiz, 49
pretextual
at
Accord United
v.
Government’s rationale was
but MJ
369.
States
only
race-neutrality”
military judge
Santiago-Davila,
ruled
"on the
3. See
MJ 340
see also
514
court’s finding
U.S.
erroneous”
district
that
768,
(responsibility
peremptory
racially
1769
challenge
S.Ct.
of trial
was not
justifications
judge to uncover
that are mere-
based.
discrimination”);
ly “pretexts
purposeful
entirety
support
of its
assertion
Plaster,
(4th
Jones v.
F.3d
Cir.
military judge’s
conduct constitutes
1995) (remanding where
court
district
“failed “implied ruling
part
trial counsel’s
squarely”
peremptory
to rule
whether
explanation
genuine
pur-
strike was motivated
“race-neutral”
merit,”
Batson claim was
without
record,
poses; concluded that “on this
Elem,
majority
cites Purkett
cannot determine whether the district court
were not majority’s Purkett bears no relation to the
concept judge that a trial can make an “im V plied ruling” question pretext on the in a contrary, Supreme Batson case. On the evidentiary support To it value that *64 Court’s im decision Purkett stressed the explanation by attaches to the submitted trial portance ruling by judge a trial of the in the counsel, majority the Turner v. cites Mar 768, 115 procedure. at Batson 514 U.S. S.Ct. shall, (9th Cir.1997), 121 F.3d 1254 n. 1769; IV, supra. Part see also denied, cert. Beyer, L.Ed.2d 186 Clemons, Simmons In the Fifth Circuit affirmed the 1160, 1168 (3d Cir.), denied, 44 F.3d cert. challenge district denial Batson court’s of a ground that the a brief sidebar conference (1995) ; Herring, and Cochran v. 43 F.3d provided opportunity a sufficient for the de- (11th Cir.1995), 1411 n. 11 prosecution’s fense to the rebut race-neutral 1073, 116 776, 133 L.Ed.2d 728 explanation peremptory challenge. of a (1996) . of None these cases addresses the judge a F.2d at 324. “The district ... made proper evidentiary value to be accorded ato finding the that race-neutral reasons stated post-hoc explanation peremptory for a chal by prosecutors striking [the] [two for black lenge support proposition or the it is jurors] non-pretextual,” were sufficient and appropriate judge to sustain a trial on the 322; id. the Fifth Circuit reviewed the “implied ruling.” basis of an On the con finding record concluded and was trary, emphasize importance cases the these erroneous,” clearly “not at 325. id. ruling by judge.
of a factual the trial case, In contrast to this where the Moreover, ease, judge ruling, in each the ap- court of made no factual the Fifth Cir- peals sufficiently presented found the Batson cuit defect was with the district court’s grant express ruling pretext. serious to warrant either a of question relief on the of Clemons, notes, proceedings. majority remand for further Coch- as the reiterates ran, express Eleventh delegation procedural the Circuit affirmed the dis- Batson’s of courts, grant corpus implementation trict court’s of habeas relief on but trial the Simmons, claim; appellate permit a Batson the case to Third Cir- does an court ruling” rely “implied by cuit ordered new trial because the on an the trial defen- prima judge. contrary, dant had established a of the the Fifth ease To Circuit facie to prong emphasized discrimination under the first the need for the district court Bat- son, prosecutor’s explanation and the reconstructed record was “evaluate the and inade- issue; quate explanations pre- whether to review the Batson and determine the are Turner, textual,” pre- Ninth reversed the issues “[b]ecause the Circuit as “clear- id. have conclusions that should findings the and challenge turn on evalua- in Batson sented military judge who by the had made credibility,” been id. at tions Quan- Major during the dire of presided voir the va- not address Similarly, Tucker does der, the of trial counsel demeanor observed “implied ruling” on a Batson lidity of an tone Quander, and heard the Major contrary, district challenge. the On Quander’s questions Major trial counsel’s express ruling in Tucker made court case is The result in this responses. end when, considering government’s “[a]fter effect, was, in both the trial counsel and was explanation, the court ‘concluded Quander Major and the striking advocate for responsible was not that racial bias satisfied explana- judge credibility of own of the venireper- challenge black of the for Batson, unacceptable under tion. That ” The Cir- F.2d at 337. sons.’ Seventh Greene, progeny. their the district court’s denial cuit affirmed grounds that challenges on the Batson was called to the potential for error Dis- procedure employed by the particular military judge, and he of the had attention (an parte proceeding, id. at ex trict Court ample opportunity to make determination 338) justified under the circumstances. military judge, required Batson. Although supports the at 340. Tucker Id. however, record expressly declined on the to proposition discussed well-established precedent. That clear apply Supreme Court majority discretion district court has error, prejudiced the constitutional which —that adopt litigating Batson procedures accused, rights requires that we follow of the judge permit claims—Tucker does not a trial Santiago-Davila and return precedent our any factfinding decision-mak- eschew the case ing procedures but be affirmed on the still Judge Advocate General rulings.” of “implied basis Army exercising for referral to an officer jurisdiction general for the Arce, court-martial
Finally, in
the Fifth Circuit found
hearing
purpose
ordering a
limited
dispute
waiver where
defense failed
peremptory challenge
for the
reasons
proffered
Govern-
one
the reasons
*65
by
prosecution.
findings
The
and con-
the
during
peremptory challenge
ment for a
a
military judge
clusions of the
at this hear-
proceeding.
F.2d
1126-27.
Batson
ing,
convening authority’s
or notice
the
Arce, however,
bearing
present
has no
on the
hearing
is im-
determination that such
Arce,
prosecutor
the
case.
asserted his
practicable,
provided by appellee
should be
during
peremptory challenge
reasons for
directly to this Court.
proceeding,
the
did
Batson
defense
not
Here, however,
judge
object.
the
DuBay,
v.
(citing
pra, signed undated trial an counsel, counsel and assistant trial entitled VI For FOR RECORD. “MEMORANDUM Record, Appellate Gray.” The docu- prosecution’s after-the-fact unsworn following for ment text: memorandum this case is no substitute contains (decision judge magistrate type procedure after This is used the feder F.3d at 1250 5. appropriate remedy claim); for a trial evidentiary hearing al courts as on Unit held Batson comply procedural with court's failure requirements Garrison, (4th 849 F.2d ed States v. See, e.g., Bryant of Batson. Cir.1988) (decision hearing" "adversary after be Cir.1997) (2d Speckard, 131 F.3d 1076-77 issue), court Batson cert. fore district (decision hearing held after reconstruction L.Ed.2d denied,-U.S.-, court), state trial Turner, Friday govern- tating” 1. On March before he could vote for it. He peremptory ment its exercised one chal- penalty he for the death said could vote lenge against Major Quander. Francis say if would but could he vote to Quander Major is a black soldier and the impose penalty. death challenge panel exercise of this left the impression Major Quander 3. Our was only carefully with one black member. We equivocal he that was indecisive and all of had considered the notes we taken penalty death and that it issue was along independent with our recollections government’s challenge him. interest process. agreed the voir dire We both did have a sufficient to chal- peremptory challenge basis should be against Major Quander. exercised lenge peremptory him for cause so the peremptory challenge against challenge Major Ma- was exercised on him. jor Quander was exercised because we be- Quander’s consequence race of no was responses concerning lieved the death process except making decision that we penalty equivocal. were He indicated making challenge considered not really thought he had never about possibility appearance avoid of an penalty death he was neither for peremp- exclusion on racial basis. Our against it or it. asked if he When could Major Quander tion was based on [sic] penalty vote for the death he indicated professional judgement our that it [sic] “thought” that he he also could. He stated prosecution’s in the best interest to remove “problems” penalty he had with the death him. and the evidence would have to be “devas- notes gations “merged” meaning within the of burglary of the Miskanin residence and lar- Lonetree, United States v. ceny pistol pending were referral (CMA 1992), 113 court-martial at the time of his admission Howev the State case. He further he notes that was er, appellant’s original we note that motion to later convicted of his these offenses at court- suppress pretrial statements civilian Also, martial on the basis of this admission. police only vague made reference to Article
Notes
notes
did not
cir
list these
quire
prove
that the defendant
that it was
mitigating
cumstances as
to the members
likely than
jury
more
not that
suggested
they
which
members
prevented
giving
from
effect
the evi
Hitchcock,
should not be so considered. See
dence,
requires
the standard
more than a
398-99,
notes
necessity. See Ro
constitutional standard
conduct, as follows:
government
States,
53, 77 S.Ct.
viaro v. United
See,
(military judge char-
e.g., R. at 158-61
623,
He notes States, F.2d Austin v. United given sentencing instruction was similar (D.C.Cir.1967). aggravating concerning fac- the existence 2561-62) (R. Relying on v. Loui- Cage tors. initially does not note siana,