UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                         Before
                             TOZZI, CELTNIEKS, and BURTON
                                Appellate Military Judges

                            UNITED STATES, Appellee
                                         v.
                      Sergeant JOSEPH C. BOZICEVICH, JR.
                           United States Army, Appellant

                                     ARMY 20110683

                        Headquarters, 3d Infantry Division
                         Tara A. Osborne, Military Judge
           Colonel Jonathan C. Guden, Staff Judge Advocate (pretrial)
        Colonel Francisco A. Vila, Staff Judge Advocate (recommendation)
          Colonel Luis O. Rodriguez, Staff Judge Advocate (addendum)


For Appellant: Captain Patrick J. Scudieri, JA; William E. Cassara, Esquire (on
brief); Captain Cody D. Cheek, JA; William E. Cassara, Esquire (on amended brief
and reply brief).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III,
JA; Major Steven J. Collins, JA; Captain Tara E. O’Brien, JA (on brief); Colonel
Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III, JA; Major Anne C.
Hsieh, JA; Captain Tara E. O’Brien, JA (on amended brief).


                                        13 June 2017

                                -----------------------------------
                                 MEMORANDUM OPINION
                                -----------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

TOZZI, Senior Judge:

       A panel with enlisted representation, sitting as a general court-martial,
convicted appellant, contrary to his pleas, of two specifications of premeditated
murder, in violation of Article 118, Uniform Code of Military Justice, 10 U.S.C.
§ 918 (2006 & Supp. I 2008) [hereinafter UCMJ]. The panel sentenced appellant to
a dishonorable discharge, confinement for life without eligibility for parole,
BOZICEVICH—ARMY 20110683

forfeiture of all pay and allowances, and reduction to the grade of E-1. The
convening authority approved the adjudged findings and sentence.

       This case is before us for review pursuant to Article 66, UCMJ. Appellant
raises nine assignments of error, four 1 of which warrant discussion but no relief. We
find the matters personally raised by appellant pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982), are without merit.

                                   BACKGROUND

        On 14 September 2008, at Patrol Base Jurf as Sahkr, Iraq, appellant shot and
killed Staff Sergeant (SSG) DD and Sergeant (SGT) WD when they attempted to
administer a counseling statement to him. Appellant was heard shouting, “I’m going
to kill you” before firing his rifle at SSG DD. Eyewitnesses saw appellant continue
to shoot his rifle while SSG DD was running away from appellant and after SSG DD
collapsed and pleaded for appellant to stop. Sergeant WD was found fatally shot,
lying in the Joint Security Station where the attempted counseling took place.
Appellant was immediately apprehended after shooting his victims and was heard
stating, “I did it so what.” At trial, appellant testified he acted in self-defense after
SSG DD and SGT WD drew their weapons and threatened to shoot him if he did not
sign the counseling statement.

       On 2 October 2008, charges were preferred against appellant for premeditated
murder. On 7 July 2009, the convening authority referred the charges as a capital
case to a general court-martial.

                              LAW AND DISCUSSION

                   A. Discovery Violations and Judicial Remedies

         The Due Process Clause of the Fifth Amendment requires the prosecution to
disclose evidence that is material and favorable to the defense. Brady v. Maryland,
373 U.S. 83, 87 (1963). This requirement exists whether there is a general request
or no request at all. United States v. Agurs, 427 U.S. 97, 107 (1976). Under due
process discovery and disclosure requirements, the Supreme Court has “‘rejected any
. . . distinction between impeachment evidence and exculpatory evidence.’” United
States v. Eshalomi, 23 M.J. 12, 23 (C.M.A. 1986) (quoting United States v. Bagley,
473 U.S. 667, 676 (1985)). “[W]hen an appellant has demonstrated error with
respect to nondisclosure, the appellant will be entitled to relief only if there is a

1
 We address appellant’s first two assignments of error in the same section below
because they are controlled by a similar body of law concerning discovery violations
and the discretion of military judges to craft appropriate remedies.


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reasonable probability that there would have been a different result at trial if the
evidence had been disclosed.” United States v. Santos, 59 M.J. 317, 321 (C.A.A.F.
2004).

       However, “[t]he military justice system provides for broader discovery than
due process and Brady require.” United States v. Trigueros, 69 M.J. 604, 610 (Army
Ct. Crim. App. 2010). In courts-martial, Congress provides both trial and defense
counsel with an “equal opportunity to obtain witnesses and other evidence in
accordance with such regulations as the President may prescribe.” UCMJ art. 46.
Under the Rules for Courts-Martial [hereinafter R.C.M.], disclosure by the
government generally falls into two categories: (1) information the trial counsel
must disclose without a request from the defense; and (2) information the trial
counsel discloses upon an appropriate defense request. United States v. Shorts, 76
M.J. 523, 530 (Army Ct. Crim. App. 2017) (comparing R.C.M. 701(a)(1), (a)(3),
(a)(4), (a)(6), with R.C.M 701(a)(2), (a)(5)). “If it falls into the first category, the
defense need not request it—they are always entitled to the evidence. In the latter
category, the [trial counsel] is responding to a defense request.” Id. Therefore,
“whether the trial counsel exercised reasonable diligence in response to the request
will depend on the specificity of the request.” Id.

       When either party fails to meets its discovery obligations, a military judge has
broad discretion in crafting an appropriate remedy for the nondisclosure. See
R.C.M. 701(g)(3); United States v. Stellato, 74 M.J. 473, 488-89 (C.A.A.F. 2015)
(explaining the broad authority of a military judge to remedy discovery violations);
United States v. Bower, 74 M.J. 326, 326 (C.A.A.F. 2015) (summ. disp.) (“Because a
[military] judge has broad discretion and a range of choices in crafting a remedy to
cure discovery violations and ensure a fair trial, [appellate courts] will not reverse
so long as his or her decision remains within that range.”); United States v.
Pomarleau, 57 M.J. 351, 364-65 (C.A.A.F. 2002) (reviewing for an abuse of
discretion a military judge’s decision to exclude evidence that the defense failed to
disclose in a timely manner).

                     1. Trial Remedies for Disclosure Violations

       In this case, trial defense counsel alleged two discovery violations that
appellant now assigns as errors for insufficient judicial remedies. First, the defense
alleged the government failed to disclose notes from its investigator, Mr. Garland
Slate [hereinafter “Slate notes”], which documented specific instances of appellant’s
behavior that could support the conclusion of Dr. Thomas Grieger, one of the
defense experts, that appellant suffered from a delusional disorder. The defense
argued this information was discoverable even without a specific request because it
“tended to negate or reduce Appellant’s degree of guilt and tended to reduce the
punishment.” Second, the defense claimed the government failed to disclose


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information from Ms. LD that SSG DD threatened her with a gun during an unrelated
argument [hereinafter “LD statement”].

      After reviewing the Slate notes in their entirety, the military judge found:

             They contain[ed] inculpatory material. They also
             contain[ed] material favorable to the defense that the
             government was required to disclose to the defense under
             RCM 701(a)(6) at a minimum with respect to sentencing.
             The government intentionally withheld this material in a
             good faith but mistaken belief that it did not need to be
             disclosed to the defense. There was not intentional
             prosecutorial misconduct.

The military judge did not find any specific prejudice to appellant from the untimely
disclosure because the Slate notes were “not inconsistent with Dr. Grieger’s
testimony” and “after having read the interview notes, his diagnosis would not
change . . . .” Nevertheless, to cure any potential prejudice “that could be caused if
one were to infer from the cross-examination that [appellant] recently [feigned] the
symptoms of delusional disorder and to ameliorate any harm otherwise caused by the
government’s untimely disclosure,” the military judge fashioned the following
remedy:

             [T]he court grants the defense wide latitude to recall
             Dr. Grieger and to go into [appellant’s] specific instances
             of behavior, history, and events that support or are
             consistent with delusional disorder. The government will
             not be permitted to cross-examine Dr. Grieger on these
             matters. The government will not be permitted to present
             any evidence in rebuttal of Dr. Grieger’s testimony. The
             government will be allowed to cross-examine and rebut
             the testimony of any other experts the defense chooses to
             call, and the court will also give an instruction to the
             members.

             ....

             Now, let me be clear with counsel just in case there is any
             ambiguity, which I do not think there is. Just so there is
             no mistake; Defense, if you call any other experts other
             than Dr. Grieger, even if they testify to the same thing that
             Dr. Grieger testifies to, the government is going to be
             allowed to cross-examine them or to put on rebuttal
             testimony to those experts witnesses. My ruling goes

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             simply to Dr. Grieger, and I am also going to allow you,
             Defense, when you put Dr. Grieger back on, when I said
             “wide latitude,” I will also allow you to ask leading
             questions.

       At the close of the defense case but before government’s rebuttal, the military
judge expanded her previous remedy to preclude the government from calling two
additional witnesses “because they specifically were witnesses that had been
interviewed by Garland Slate, your investigator, that you had for quite some time
and did not disclose because you misidentified that you were supposed to disclose
that information.” She also limited the testimony of the remaining government
witnesses about the victims’ character for peacefulness. The military judge,
however, denied the defense motion to strike Ms. Cathy Rassmussen’s testimony
about appellant’s character for peacefulness. In short, the military judge did “not
believe that it [was] a necessary remedy for the government’s failure to timely
disclose Mr. Slate’s interview notes that Ms. Rassmussen’s testimony with regard to
character for peacefulness be stricken.” Instead, she found there were several
instances in appellant’s testimony that she believed “placed his character for
peacefulness at issue” and the government was “entitled to rebut not only specific
evidence that defense introduces but also any reasonable inferences which may be
drawn from such evidence.”

        Regarding the LD statement, the military judge found trial counsel’s late
disclosure of the potential impeachment evidence “was grossly negligent” and a
Brady violation. Although she concluded the alleged specific instance of
misconduct in the LD statement was inadmissible under Military Rule of Evidence
[hereinafter Mil. R. Evid.] 403 and Mil. R. Evid. 404(b), the military judge stated it
was potential support for “opinion [or] reputation testimony of the victim’s character
trait for violence . . . .” Defense counsel again moved the military judge to declare a
mistrial, but the military judge denied the request. As a lesser remedy for the
untimely disclosure, the military judge offered to strike Dr. Grieger’s testimony
about appellant’s delusion disorder, which would allow the defense to pursue a self-
defense strategy without reference to appellant’s mental health. After weighing the
strategic implications of the lesser remedy, defense counsel declined.

                      2. Appellate Review of Judicial Remedies

       On appeal, this court reviews questions regarding discovery requirements de
novo. However, we review the sufficiency of judicial remedies crafted to cure
discovery violations for an abuse of discretion. Stellato, 74 M.J. at 480. Neither the
government nor appellant challenges the military judge’s findings regarding the
asserted discovery violations. Instead, the parties disagree about the sufficiency of
the military judge’s remedies. After a careful review of the record, we find the


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military judge did not abuse her discretion in crafting remedies for the disclosure
violations.

       As an initial matter, we note the high standard before declaring a mistrial:
“when such action is manifestly necessary in the interest of justice because of
circumstances arising during the proceedings which cast substantial doubt upon the
fairness of the proceedings.” R.C.M. 915(a). Because a mistrial is such an “unusual
and disfavored” remedy, it “should be applied only as a last resort to protect the
guarantee for a fair trial.” United States v. McFadden, 74 M.J. 87, 89 (C.A.A.F.
2015) (internal quotation marks and citation omitted). See R.C.M. 915(a) discussion
(“The power to grant a mistrial should be used with great caution, under urgent
circumstances, and for plain and obvious reasons.”). Thus, when a military judge
determines the extreme remedy of a mistrial is unwarranted, appellate courts will not
reverse this decision absent “findings of fact [that] are clearly erroneous, . . . an
erroneous view of the law, or the military judge’s decision . . . is outside the range
of choices reasonably arising from the applicable facts and the law.” Stellato, 74
M.J. at 480 (internal quotation marks and citation omitted).

       Here, appellant’s speculation that the government “took affirmative steps to
shape [the] evidence before it made any disclosures” fails to meet the high standard
for discounting the military judge’s findings of gross negligence as opposed to
intentional misconduct. In addition, appellant’s speculation that he would have
pursued a different trial strategy had the LD statement been timely disclosed
similarly fails to meet this high standard. See Trigueros, 69 M.J. at 610 (finding the
government’s nondisclosure harmless beyond a reasonable doubt after rejecting
appellant’s speculative claim that absent the nondisclosure he “would have altered
his pretrial strategy”). As is the case here, when a military judge “is satisfied that
the Government has not engaged in intentional misconduct . . . and concludes that an
instruction will cure the potential error, such a procedure is ‘preferred.’” United
States v. Garces, 32 M.J. 345, 349 (C.M.A. 1991) (citations omitted). Accordingly,
we find no abuse of discretion when the military judge determined the circumstances
in this case failed to justify such an extreme remedy.

       Looking next to the remedies proposed and implemented, we find they
sufficiently cured any potential prejudice from the untimely disclosures. “As a
general matter, when an appellant has demonstrated error with respect to a Brady
nondisclosure, the appellant is entitled to relief only if there is a reasonable
probability that there would have been a different result at trial had the evidence
been disclosed.” Trigueros, 69 M.J. at 609 (citing United States v. Santos, 59 M.J.
317, 321 (C.A.A.F. 2004)). Appellant asserts the untimely disclosure of the
investigator statements withheld evidence that supported Dr. Grieger’s conclusion
that appellant suffered from a delusional disorder. As a remedy, the military judge
permitted defense to recall Dr. Grieger to give unchallenged expert testimony. The
military judge also offered the defense an opportunity to strike Dr. Grieger’s

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testimony and essentially present a classic self-defense argument to the panel
without reliance on a mental health diagnosis. This multifaceted remedy along with
the late but prefindings disclosure of the Slate notes and LD statement sufficiently
cured any potential prejudice from the untimeliness of the government’s disclosure.

        Even assuming the military judge abused her discretion in crafting lesser
remedies by refusing to strike Ms. Rasmussen’s testimony or admit the LD
statement, we find no prejudice because of the overwhelming evidence of appellant’s
guilt in this case. Appellant’s murders of SSG DD and SGT WD were immediately
detected. Appellant’s murder of SSG DD was preceded and followed by
incriminating statements. Appellant screamed, “I’m going to kill you” before firing
his rifle, and admitted “I did it so what” immediately afterwards. Eye witnesses saw
appellant continue his attack on SSG DD under circumstances precluding any
colorable claim of self-defense, which included shooting SSG DD while he was
running away from appellant. The physical evidence also corroborated appellant’s
admissions and eyewitness testimony. Accordingly, even if we assume the military
judge erred in crafting a sufficient remedy for constitutional discovery violations,
the circumstances did not warrant a mistrial and the refusal to strike
Ms. Rasmussen’s testimony or admit the LD statement was harmless beyond a
reasonable doubt.

                       B. Evidentiary Ruling by Military Judge

        “‘A military judge’s decision to admit or exclude evidence is reviewed for an
abuse of discretion.’” United States v. Bowen, 76 M.J. 83, 87 (C.A.A.F. 2017)
(citation omitted). “‘An abuse of discretion occurs when a military judge either
erroneously applies the law or clearly errs in making his or her findings of fact.’”
Id. (citation omitted). Thus, “[t]he abuse of discretion standard calls ‘for more than
a mere difference of opinion. The challenged action must be arbitrary, fanciful,
clearly unreasonable, or clearly erroneous.’” United States v. Baker, 70 M.J. 283,
287 (C.A.A.F. 2011) (citation omitted).

       If this court finds an abuse of discretion, it then reviews de novo the
prejudicial effect of the ruling—whether the evidence substantially influenced the
findings or sentence. Bowen, 76 M.J. at 87; United States v. Griggs, 61 M.J. 402,
410 (C.A.A.F. 2005). Prejudice from an erroneous evidentiary ruling is evaluated by
weighing “(1) the strength of the [g]overnment’s case, (2) the strength of the defense
case, (3) the materiality of the evidence in question, and (4) the quality of the
evidence in question.” United States v. Roberson, 65 M.J. 43, 47-48 (C.A.A.F.
2007) (internal quotation marks and citations omitted).

       “‘Hearsay’ is a statement, other than the one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” Mil. R. Evid. 801(c). Normally, hearsay is not admissible absent an

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exception. Mil. R. Evid. 802. As a hearsay exception, a witness may offer
testimony concerning:

             A statement of the declarant’s then existing state of mind,
             emotion, sensation, or physical condition (such as intent,
             plan motive, design, mental feeling, pain, and bodily
             health), but not including a statement of memory or belief
             to prove the fact remembered or believed unless it relates
             to the execution, revocation, identification, or terms of
             declarant’s will.

Mil. R. Evid. 803(3) (emphasis added).

      In this case, defense counsel sought to elicit on cross-examination testimony
from SSG MM as follows:

             Q: [Appellant] asked to leave your platoon because
             everyone was out to get him. Isn’t that true?

             ATC3: Objection. Hearsay.

             CDC: It’s not offered for the truth of the matter asserted.
             It’s offered for his state of mind.

             MJ: Sustained.

             CDC: Sustained, Your Honor?

             MJ: Yeah. The objection is sustained. Give me an
             exception to hearsay.

             CDC: It’s not offered for the truth of the matter asserted.
             It’s offered as to what my client believed his then present
             sense.

             MJ: Your client’s present sense impression?

             CDC: Is a description of what he said -- why he said it.

             MJ: Not in the form of that question. Sustained.




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(emphasis added). In response to trial counsel’s objection to hearsay, defense
counsel offered three distinct theories of admissibility. 2 First, defense counsel
claimed the statement “was not offered for the truth of the matter asserted[,]” which
places the statement outside the definition of hearsay. Second, defense counsel
offered the “state of mind” exception under Mil. R. Evid. 803(3). Third, defense
counsel asserted the “present sense” impression exception under Mil. R.
Evid. 803(1).

       Here, the military judge identified the form of the question as requiring a
hearsay exception because it elicited an out-of-court statement by asking whether it
was true. If the focus of the question was merely whether appellant asked SSG MM
to leave the platoon, it was non-hearsay because SSG MM, as the declarant
testifying at trial, could only assert as fact that appellant asked to be transferred. If,
however, the focus of the question was on the truth of the substance of appellant’s
belief (i.e., everyone was out to get him), then the state of mind exception could not
apply to prove the fact believed nor would it qualify as a present sense impression.
Accordingly, the military judge did not err in requiring a hearsay exception or at
least a clarification regarding the form of the question.

      After sustaining the objection, defense counsel attempted to rephrase the
question to SSG MM as follows:

             Q. Did [appellant] tell you why he wanted to leave the
             unit?

             ATC3: Objection. Hearsay and relevance.

             CDC: Your Honor, this witness was asked repeatedly
             about counseling [appellant]. As you pointed out -- yes,
             Your Honor. Once the government has opened that door,
             I’m allowed to explore it.


2
  We recognize defense counsel’s discussion of hearsay, in the rush of trial, contained
an element of imprecision. Claiming a statement was made as a “present sense”
impression is not the same as claiming it is “not offered for the truth of the matter
asserted.” Similarly, “state of mind” is not part of the “present sense impression”
exception; it is part of the “then existing mental, emotional, or physical condition”
exception. Hearsay exceptions are based on specific indicia of reliability (e.g., made
as a present sense impression, made while under the excitement of an event, made for
the purpose of medical treatment, etc.), which justify the admission of a statement for
the truth of the matter asserted notwithstanding the general prohibition against
hearsay. Here, we resolve this imprecision by addressing the theories of admissibility
as being offered in the alternative.
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BOZICEVICH—ARMY 20110683

At this point, the military judge excused the members for an Article 39(a), UCMJ,
session. Then, defense counsel continued with his relevance arguments concerning
the “rule of completeness” under Mil. R. Evid. 304(h)(2) and whether trial counsel
“opened the door” during direct examination. The military judge rejected both of
defense counsel’s relevance arguments. First, the military judge found the rule of
completeness did not apply because trial counsel had not offered an admission or
confession from appellant during the counseling sessions. The rule of completeness
is only triggered after “part of an alleged admission or confession is introduced
against the accused . . . .” Mil. R. Evid. 304(h)(2). Second, because trial counsel
did not introduce the substance of any statement from the counseling sessions, trial
counsel had not “opened the door” to cross-examination about the substance of those
conversations.

      After the military judge rejected the arguments above, defense counsel
continued his argument as follows:

            CDC: This witness testified that my client left first
            platoon and went to second platoon. The reason why he
            left is not offered for the truth of the matter asserted. It’s
            offered for what my client believed the reason he wanted
            this transfer. It’s a statement of his state of mind, Your
            Honor, not the fact that everyone was out to get
            [appellant] because we don’t believe that’s true, but
            [appellant] stated that he believed that to be true and it’s
            not hearsay. It’s not offered for the truth of the matter
            asserted, it’s offered to demonstrate what my client’s
            state of mind was when he was transferred from one
            platoon to the other at his own request.

            ....

            CDC: It’s relevant to my client’s mental state, which is
            admissible -- which will be -- which we have an expert
            witness to testify about, and it’s not offered for the truth
            of the matter asserted, therefore it is not hearsay. It is
            relevant and it is admissible and therefore should be
            admitted. It tends to prove a fact of consequence to the
            case, my client’s state of mind.

            MJ: I got your theory of relevance. Again, confusion on
            theory of relevance and theory of admissibility. Your
            theory of admissibility is ----



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BOZICEVICH—ARMY 20110683

             CDC: Not offered for the truth of the matter asserted,
             therefore it is non-hearsay.

             MJ: Then why are you offering it?

             CDC: Because it tends to prove my client’s state of
             mind. It’s not offered to show that everyone was out to
             get him. It’s offered to show that [appellant] believe[d]
             that and it demonstrates that this is a matter that had
             come up long before the shooting, therefore it takes away
             the argument that we created some sort of defense.

             MJ: I don’t understand that.

             CDC: That our expert basically cooked this up without
             having a factual basis for it, Your Honor.

             MJ: But we haven’t heard any expert testimony or
             anything. There’s never been -- there has not been an
             attack or anything as to your expert’s testimony that you
             may have “cooked this up.” Your expert hasn’t even
             testified. We’re on the prosecution’s case in direct.

             CDC: I understand. I understand that. So, we’re
             establishing why this witness testified my client went
             from one platoon to the other. It was at his request and it
             was for -- he stated the reason. It’s not offered for the
             truth of the matter asserted. It’s offered to show my
             client’s state of mind at the time, Your Honor. It is non-
             hearsay. That’s why it is admissible. It is relevant
             because it does tend to show my client’s state of mind.

             ....

             MJ: Your objection is sustained. Call the members back
             in.

             CDC: Objection to that ruling, Your Honor.

             MJ: I understand.

(emphasis added). Based on defense counsel’s clarification, we agree the question
called for either non-hearsay regarding what appellant said or state-of-mind evidence
regarding what appellant believed. What remains unexplained is a relevant basis for
asking this question at this point of the trial. Bolstering the defense expert’s

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BOZICEVICH—ARMY 20110683

testimony was premature during the government’s case-in-chief because the expert’s
testimony had not been offered, much less attacked. Evidence must be relevant to be
admissible whether it is non-hearsay or hearsay under an established exception. It is
not enough for evidence to be potentially relevant if and when expected testimony is
offered and attacked. Therefore, the military judge did not err when sustaining the
government’s objection on the basis of relevance. 3

       Moreover, even if relevant, the probative value of appellant’s desire to
transfer to another unit two years before killing SSG DD and SGT WD is marginal at
best. Thus, appellant was not prejudiced by the military judge’s ruling. First, as
noted above, the government’s case was strong because of the testimonial and
physical evidence in this case. Second, the defense’s case was weak, particularly in
light of appellant’s admissions. Third, the materiality of SSG MM’s expected
response was low because it was cumulative of the same evidence presented to the
panel later in the trial, most directly during appellant’s testimony. 4 Its materiality
was also low because, as defense counsel repeated multiple times, SSG MM’s
testimony was not offered for the truth that anyone was actually out to get appellant.
It was merely offered for the assertion that appellant believed people were out to get
him prior to the murders. Fourth, the quality of the evidence was relatively low,
particularly when compared to the relatively high-quality expert testimony that was
admitted about appellant’s delusional disorder. Therefore, any error in the military
judge’s hearsay analysis was harmless in light of the strength of the government’s
case, the weakness of the defense’s case, and because the evidence in question was
immaterial and of relatively low quality.



3
  While the military judge later explained the basis of her ruling as the
inapplicability of Mil. R. Evid. 803(3), this explanation was part of her larger
analysis that if the statement was not offered for the truth it was irrelevant. Even
assuming, arguendo, the military judge erred in her analysis, she reached the correct
result in sustaining the objection because SSG MM’s response was irrelevant at this
point in the trial. Accordingly, we can still affirm the military judge’s ruling on
appeal. See United States v. Carista, 76 M.J. 511, 515 (Army Ct. Crim. App. 2017)
(explaining the “tipsy coachman” doctrine as a basis for appellate courts to affirm a
trial court ruling that reaches the right result for the wrong reasons so long as there
is any basis that would support the judgement in the record).
4
  For example, in his sworn testimony, appellant confirmed he switched platoons at
his own request in March 2008. He also described a situation when he felt
vindicated even though other members of his unit “always laughed at [him] and
thought [he] didn’t know what [he] was . . . talking about . . . .” In addition, he
admitted to telling SGT Christopher Muse that he was afraid every noncommissioned
officer was out to get his rank.
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BOZICEVICH—ARMY 20110683

                        C. Ineffective Assistance of Counsel

       The Sixth Amendment guarantees an accused the right to the effective
assistance of counsel. United States v. Gooch, 69 M.J. 353, 361 (C.A.A.F. 2011)
(citing United States v. Gilley, 56 M.J. 113, 124 (C.A.A.F. 2001)). To establish his
counsel was ineffective, appellant “must demonstrate both (1) that his counsel’s
performance was deficient, and (2) that this deficiency resulted in prejudice.”
United States v. Green, 68 M.J. 360, 361-62 (C.A.A.F. 2010) (citing Strickland v.
Washington, 466 U.S. 668, 687 (1984)). Although appellate courts review both
prongs of the Strickland analysis de novo, “[j]udicial scrutiny of counsel’s
performance must be highly deferential.” Strickland, 466 U.S. at 689. See United
States v. Akbar, 74 M.J. 364, 379 (C.A.A.F. 2015); United States v. Mazza, 67 M.J.
470, 474 (C.A.A.F. 2009). Accordingly, we do not assess counsel’s actions through
the distortion of hindsight; rather we consider counsel’s actions in light of the
circumstances of the trial and under the “strong presumption that counsel’s conduct
falls within the wide range of professional assistance . . . .” Strickland, 466 U.S.
at 689.

      In the context of counsel’s pretrial preparation, the Supreme Court has held:

             [the] strategic choices made after thorough investigation
             of law and facts relevant to plausible options are virtually
             unchallengeable; and strategic choices made after less
             than complete investigation are reasonable precisely to the
             extent that reasonable professional judgments support the
             limitations on investigation. In other words, counsel has a
             duty to make reasonable investigations or to make a
             reasonable decision that makes particular investigations
             unnecessary. In any ineffectiveness case, a particular
             decision not to investigate must be directly assessed for
             reasonableness in all the circumstances, applying a heavy
             measure of deference to counsel’s judgments.

Id. at 690-91 (emphasis added). Similarly, our superior court has echoed the need
for deference by explaining: “‘[appellate courts] address not what is prudent or
appropriate, but only what is constitutionally compelled.’ The Supreme Court has
‘rejected the notion that the same [type and breadth of] investigation will be
required in every case.’” Akbar, 74 M.J. at 380 (citations omitted).

       Moreover, “[a]n error by counsel, even if professionally unreasonable, does
not warrant setting aside the judgment of a criminal proceeding if the error had no
effect on the judgment.” Strickland, 466 U.S. at 691. “[T]he purpose of the
effective assistance guarantee of the Sixth Amendment is not to improve the quality
of legal representation, although that is a goal of considerable importance to the

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legal system. The purpose is simply to ensure that criminal defendants receive a fair
trial.” Id. at 689. “Accordingly, any deficiencies in counsel’s performance must be
prejudicial to the defense in order to constitute ineffective assistance under the
Constitution.” Id. at 691-92.

                                  1. Ginn Analysis

       Here, appellant was represented at trial by one civilian defense counsel and
two military defense counsel. On appeal, appellant claims he received ineffective
assistance from his trial defense team because they failed to investigate and use the
potentially exculpatory information he gave them. Specifically, appellate alleges he
“provided his defense team with viable evidence that SSG [DD] and SGT [WD] had
previously threatened [him] because [he] had uncovered their illegal activity.” In
support of his claim, appellant offers his own sworn affidavit, which includes
proffers of expected testimony from other witnesses and references to supporting
documentation. However, appellant—both personally and through appellate defense
counsel—did not provide this court with affidavits from the witnesses whose
testimony he proffered nor did he include any of the supporting documents he
referenced in his affidavit. The sworn affidavits from the trial defense team dispute
appellant’s factual allegations. Ordinarily, this would present conflicting affidavits
requiring a hearing under United States v. DuBay, 17 U.S.C.M.A. 147, 37 C.M.R.
411 (1967). United States v. Ginn, 47 M.J. 236, 242-43 (C.A.A.F. 1997). Applying
the first, second and fourth Ginn principles, however, we are convinced a post-trial
evidentiary hearing is unwarranted. See id. at 248.

       First, we disregard all “speculative or conclusory observations” in appellant’s
affidavit. See id. (“[I]f the affidavit does not set forth specific facts but consists
instead of speculative or conclusory observations, the claim may be rejected on that
basis.”). Instead, we look only at those factual allegations in appellant’s affidavit
that he is competent to offer. For example, appellant proffers the testimony of
several individuals and further claims his counsel failed to contact these potentially
favorable witnesses. While appellant is competent to state as fact that he relayed
these proffers to his counsel, appellant—without supporting affidavits or similar
proof from each witness—can only speculate regarding the substance of their
testimony and whether they were contacted by his counsel. See, e.g., United States
v. Loving, 64 M.J. 132, 150-52 (C.A.A.F. 2006) (finding “a potentially meritorious
claim of ineffective assistance of counsel arising from his trial defense counsel’s
failure to conduct a reasonable investigation” after the petitioner “filed voluminous
unrebutted affidavits” and other “documentary evidence to support his assertion”).
Without affidavits from potential witnesses stating they were not contacted by the
defense team or similar evidence, we have no way to assess how appellant is
competent to state as fact what his defense team did or failed to do while he was in
pretrial confinement.


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       Second, we further disregard those portions of appellant’s affidavit where
“the appellate filings and the record as a whole ‘compellingly demonstrate’ the
improbability of those facts . . . .” Ginn, 47 M.J. at 248. For example, appellant
alleges SSG JJ “was ordered to destroy [him]” even though SSG [JJ] told appellant
“how professional [appellant] was.” Appellant claims his “defense team did not
pursue this, and SSG JJ was not cross examined about this.” However, SSG JJ was
cross-examined at trial and testified appellant was a poor performer with a bad
attitude.

       Third, we also disregard the asserted facts in appellant’s affidavit that, even if
true, are irrelevant. See id. (“[I]f the facts alleged in the affidavit allege an error
that would not result in relief even if any factual dispute were resolved in appellant's
favor, the claim may be rejected on that basis.”). For example, appellant cites his
defense counsel’s failure to obtain copies of unrelated complaints made to an
inspector general’s office and an unnamed congressional representative’s office.
Even if his speculation is correct, appellant would not be entitled to relief because
his defense counsel failed to obtain an unrelated complaint protesting events “at the
Special Warfare School” or requesting a transfer “out of Fort Stewart.”

                                2. Deficiency Analysis

       After stripping from appellant’s affidavit all allegations that are speculative,
conclusory, irrelevant, and compellingly contradicted by the record and appellate
filings, what is left is a series of non-specific proffers appellant claims to have made
to his defense counsel. Accepting as fact that appellant made each of these
remaining proffers to his defense counsel, our task is to determine whether counsel
exercised reasonable professional judgement in response to these proffers. This task
does not involve picking which proffers counsel should have investigated or
presented at trial. Instead, we focus on whether the investigation supporting
counsel’s pretrial preparation and trial performance strategy was itself reasonable.
See Wiggins v. Smith, 539 U.S. 510, 522-23, 534-35 (2003) (limiting the scope of
appellate review of counsel’s pretrial preparation to the same reasonableness
standard used in Strickland to assess counsel’s trial performance).

       In this case, we find the trial defense team completed sufficient pretrial
investigation and analysis to justify our deference to their tactical and strategic
decisions. Notwithstanding appellant’s speculation about what his counsel failed to
do, defense counsel’s sworn affidavits recounting their pretrial efforts remain
unrebutted by competent evidence. Among the clearest examples of the
reasonableness of counsel’s pretrial investigation is their treatment of appellant’s
self-defense claim. When appellant presented a self-defense theory that included an
alleged conspiracy involving a secret organization within the unit known as the
“black masons,” defense counsel did not reflexively dismiss his account as fanciful
or contrived. Instead, defense counsel, among other things, “interviewed nearly

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every soldier in [appellant’s] platoon. No one admitted they had heard of the ‘black
masons.’” After an exhaustive investigation, it was not unreasonable for the defense
team to conclude they were spending “valuable time trying to corroborate a
conspiracy that was simply not there.”

       Moreover, counsel had the expert assistance of a psychiatrist and forensic
psychologist, among other experts, during their pretrial investigation. Both of these
experts examined appellant and concluded he “suffered from ‘Delusional Disorder’
characterized by non-bizarre delusions based on paranoia that led to a ‘perfect storm
of events’ on the night of the shootings.” Importantly, this diagnosis did not lead
counsel to disregard appellant’s proffers without investigation. Instead, it helped
explain why the majority of appellant’s proffers could not be corroborated. Under
these circumstances, defense counsel executed a trial strategy that placed appellant’s
diagnosis before the panel at trial. This was done in an apparent attempt to recast
any perceived inaccuracies in appellant’s testimony as the product of a disorder, not
dishonesty. Without considering the outcome, we find this strategy was reasonable
under the circumstances based on sufficient pretrial investigation. Accordingly, we
conclude appellant has failed to meet his burden to show deficient performance or
preparation by his trial defense team.

                                3. Prejudice Analysis

        Even assuming deficient preparation or performance by counsel, it is
important to again note the overwhelming evidence of appellant’s guilt in this case.
Appellant’s murders of SSG DD and SGT WD were immediately detected.
Appellant’s murder of SSG DD was preceded and followed by incriminating
statements (e.g., screaming, “I’m going to kill you” before firing his rifle, and “I did
it so what” immediately afterwards). Eyewitnesses saw appellant continue his attack
on SSG DD under circumstances precluding any colorable claim of self-defense
(e.g., shooting him six times while he was running away from appellant before
collapsing on the ground and pleading for appellant to stop). The physical evidence
corroborated appellant’s admissions and eyewitness testimony (e.g., ballistic
evidence matched appellant’s rifle to the gunshot wounds to SSG DD and SGT WD,
and the twenty-seven spent cartridges recovered from the scene).

       Even accepting as true appellant’s speculative and uncorroborated account of
a “black masons” conspiracy, none of his allegations help justify the use of deadly
force on the night of the offenses. Conversely, many of appellant’s assertions
undercut his claim of self-defense. For example, appellant claims members of his
unit retaliated against him for his knowledge of and refusal to participate in their
illegal activity. However, appellant cites being placed “on KP duty[,]” his “TA 50
going missing, vandalism, personal property being stolen, and similar activities” as
instances of “retribution” by members of his unit. What remains unexplained is how
relatively low-level “retribution” on previous occasions would help appellant justify

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his use of deadly force at the time of the offenses. Appellant does not argue, much
less prove, he had a reasonable apprehension that death or grievous bodily harm
arising from prior instances of KP duty or missing TA 50. Instead, the full weight
of his self-defense claim depends on the events just prior to the shootings, and not
on the collateral issues appellant cites as instances of deficient pretrial investigation.
Accordingly, appellant’s assertion that his defense counsel provided ineffective
assistance lacks merit.

                                    CONCLUSION

      On consideration of the entire record, the findings of guilty and the sentence
are AFFIRMED.

      Judge CELTNIEKS and Judge BURTON concur.

                                            FORTHE
                                           FOR  THE COURT:
                                                   COURT:




                                           MALCOLM
                                            MALCOLM    H.H.
                                                          SQUIRES, JR. JR.
                                                            SQUIRES,
                                           Clerk of Court
                                            Clerk of Court




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