          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                        UNITED STATES

                                                    v.

                         Airman First Class DUSTIN A. MILLER
                                United States Air Force

                                             ACM 37869

                                          17 January 2014

         Sentence adjudged 12 December 2010 by GCM convened at Charleston Air
         Force Base, South Carolina. Military Judge: Terry A. O’Brien.

         Approved Sentence: Dishonorable discharge, confinement for 11 years, and
         reduction to E-1.

         Appellate Counsel for the Appellant: Major Nathan A. White; Captain
         Thomas A. Smith; and Donald G. Rehkopf, Jr.

         Appellate Counsel for the United States: Colonel Don M. Christensen;
         Lieutenant Colonel Linell A. Letendre; Lieutenant Colonel C. Taylor Smith;
         Major Scott C. Jansen; Major Rhea A. Lagano; and Gerald R. Bruce,
         Esquire.

                                                 Before

                           ROAN, MARKSTEINER, and WIEDIE
                               Appellate Military Judges

                                   OPINION OF THE COURT

                   This opinion is subject to editorial correction before final release.



MARKSTEINER, Judge:

       The appellant was convicted, contrary to his pleas, by a panel of officers of one
specification of attempted murder, two specifications of aggravated assault, and one
specification of assault with intent to commit murder under Articles 80, 118, and
134, UCMJ, 10 U.S.C. §§ 880, 918, 934. He was sentenced to a dishonorable discharge,
confinement for 11 years, forfeiture of all pay and allowances, and reduction to E-1.1
Excepting the forfeitures, the convening authority approved the sentence as adjudged.2

         The appellant initially assigned six errors: (1) Whether Specification 2 of Charge
II is a lesser included offense (LIO) of Specification 1 of Charge II; (2) Whether Charges
II and III are LIOs of Charge I and are thereby multiplicious with Charge I; (3) Whether
the military judge abused her discretion by failing to find Charges II and III unreasonably
multiplicious for findings; (4) Whether the Specification of Charge III failed to state an
offense; (5) Whether the evidence was legally and factually sufficient; and (6) Whether
the military judge erroneously instructed the members that the appellant would receive
credit for good time served. We also address as supplemental assignments of error the
following issues:3 (7) Whether trial defense counsel committed fraud on the court-
martial, when they represented that they were qualified and certified to defend the
appellant, because they were not sufficiently prepared – ergo not qualified – to try the
case; (8) Whether the Government’s failure to comply with discovery and Brady4
obligations contributed to fraud on the court-martial; (9) Whether trial defense counsel
provided constitutionally ineffective assistance, as articulated in 23 separately alleged
errors; and (10) Whether a new trial is warranted because newly discovered evidence
disproves that the appellant had the requisite mens rea required to be found guilty of
attempted unpremeditated murder.

       For the reasons articulated below, Charges II and III are dismissed. We deny the
appellant’s request for appellate discovery and a new trial.5 The remaining findings and
sentence, as reassessed, are affirmed.6




1
  The charges and specifications were merged for sentencing purposes.
2
  The convening authority waived the mandatory forfeitures, directing they be paid to the appellant’s spouse.
3
  On 4 September 2013, the appellant filed a Motion for Appropriate Relief requesting that we consider the matters
raised in his Petition for a New Trial as supplemental assignments of error under United States v. Luke, 69 M.J.
309 (C.A.A.F. 2011).
4
  Brady v. Maryland, 373 U.S. 83 (1963).
5
   On 11 March 2013, the appellant, through his then-newly-retained civilian appellate defense counsel and his
originally assigned military appellate defense counsel, petitioned for a new trial and moved to attach various
documents to the record of trial, citing “fraud on the court” and “newly discovered evidence” under Rule for Courts-
Martial (R.C.M.) 1012(c). On 26 March 2013, he filed a Motion for Appropriate Relief requesting (1) appellate
discovery of various documents and/or records, and (2) the replacement of various pages in his copy of the record of
trial that were either missing entirely, or that were otherwise unclear or illegible.
6
  The appellant asked this Court to order the Government to provide his civilian appellate defense counsel with
copies and/or duplicates of certain materials that he purports were removed from the copy of the record of trial
provided to him in confinement. In his 12 April 2013 Reply, the appellant noted that his civilian appellate defense
counsel had “sought relief in the form of an unredacted trial transcript [and that] a digital version has been provided
to civilian appellate defense counsel, mooting that specific request.” To the extent his request for relief in the form
of a complete record of trial is not rendered moot by this decision, he is free to seek relief from this Court if his
civilian counsel is unable to gain access to any portion of the record in this case to which he is entitled under our
Rules of Practice and Procedure.


                                                          2                                               ACM 37869
                                        Background

        The charges stemmed from the appellant’s shooting of JEH. In late July 2009, the
appellant and his wife travelled from Charleston Air Force Base (AFB), South Carolina,
to visit family and to attend the funeral of the appellant’s grandmother. Prior to this visit,
there had arisen considerable acrimony between his family and friends and JEH’s family
and friends. The dispute regarded ZS, the appellant’s sister’s boyfriend, who had
previously dated JEH’s relative. The appellant testified that TG, the husband of JEH’s
cousin, had threatened ZS.

        On the morning of 26 July 2009, JEH smoked methamphetamine, watched
television, then around noon went outside into his yard to repair his truck. An
acquaintance who was assisting him noticed a white sedan driving slowly back and forth
in front of JEH’s home. As JEH walked out to the road and approached the vehicle,
which was being driven by the appellant, the appellant asked JEH where TG lived. JEH
used profanity and told the appellant that he (appellant) would have to go through him
(JEH) to get to TG, or words substantially to that effect. As JEH walked alongside the
appellant’s slowly moving car, the two began to argue. At some point the appellant
brandished a pistol. When the argument became heated, the appellant started to drive off,
and JEH threw a wrench he had been carrying, striking the appellant’s car. The appellant
then stopped the car and fired a handgun from inside the vehicle. The bullet struck JEH
in the back as he was running away.

       Investigator GP responded to the call regarding the shooting, interviewed JEH,
and gathered evidence, including a .40 caliber spent cartridge and a 9/16th inch wrench.
His investigation led him to the home of the appellant’s in-laws, where he questioned the
appellant about the shooting. The appellant denied any involvement and denied ever
being on Highway 77 at all that day. Investigator GP specifically provided an
opportunity for the appellant to offer information about whether he may have shot the
victim in self-defense, but the appellant continued to deny any involvement. When
asked if he had any weapons, the appellant directed Investigator GP to his car, where the
detective retrieved the appellant’s .40 caliber Glock pistol and a .38 caliber revolver.

        The appellant essentially testified that the shooting was an accident motivated by
self-defense, saying that when he asked JEH about TG, JEH became extremely
belligerent, lunged at his car and threw something the appellant thought was a knife.
Approximately 2 or 3 seconds after the appellant “slammed on the gas and floored it,” he
heard a loud bang from something striking the back of his car, at which point he stopped,
pointed the gun over his left shoulder out the driver side window, “and fired one shot into
the air. . . . to keep him away from me because I was scared.” The crux of trial defense
counsel’s findings argument was that the appellant’s account was more believable than
that of the meth-using JEH, and that the appellant lacked the requisite criminal intent.



                                              3                                    ACM 37869
                                        Lesser Included Offenses

      The appellant avers that Specification 2 of Charge II is an LIO of Specification 1
of Charge II, and that Charges II and III are a LIOs of Charge I.7

        At trial, the parties agreed that all charges and specifications arose from the same
set of facts: the appellant’s shooting of JEH. The Specification of Charge I alleged that
the appellant attempted to murder JEH by shooting him with a loaded firearm, in
violation of Article 80, UCMJ. Charge II alleged two violations of Article 128, UCMJ:
Specification 1 alleged the appellant committed an aggravated assaulted upon JEH by
shooting him in the back with a loaded firearm, intentionally inflicting grievous bodily
harm – a deep abdominal wound; Specification 2 alleged the appellant assaulted JEH by
shooting him with a dangerous weapon – a loaded firearm. The Specification of
Charge III alleged the appellant assaulted JEH with the intent to murder him, by shooting
him with a loaded firearm, in violation of Article 134, UCMJ.

       We need not dissect the elements of the two specifications of Charge II because
both allege – based on the same conduct – aggravated assault under Article 128, UCMJ.
Furthermore, as the Government acknowledges, aggravated assault is a well-recognized
LIO of attempted murder. See, e.g., United States v. Kreutzer, 70 M.J. 444, 445
(C.A.A.F. 2012); United States v. Dacus, 66 M.J. 235 (C.A.A.F. 2008). If an LIO is
separately pled in addition to the greater offense, an accused may not be convicted of
both the greater and the lesser offenses. United States v. Hudson, 59 M.J. 357 (C.A.A.F.
2004), rev’d on other grounds; United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010).
Accordingly, Charge II is dismissed.8

                              Failure to State an Offense – Charge III

      The appellant argues that Charge III, and its Specification, should be set aside
because it fails to allege any of the terminal elements required under Article 134, UCMJ.

       Whether a charge and specification state an offense and the remedy for their
failure to do so are questions of law that we review de novo. United States v. Ballan,
71 M.J. 28, 33 (C.A.A.F. 2012). Because the appellant did not complain about the
missing element at trial, we analyze for plain error and, in doing so, find that the failure
here was “plain and obvious error that was forfeited rather than waived.” United States v.
Humphries, 71 M.J. 209, 211 (C.A.A.F. 2012). The remedy, if any, depends on “whether
the defective specification resulted in material prejudice to [the appellant]’s substantial
right to notice.” Id. at 215 (citing Article 59(a), UCMJ, 10 U.S.C. § 859(a)). The
prejudice analysis of a defective specification under plain error requires close review of
7
  As we ultimately dismiss Charge III for failing to allege a terminal element, we need not address here whether
Charge III is a lesser included offense of Charge I.
8
  The military judge granted the defense’s motion to merge the offenses for sentencing purposes.


                                                       4                                           ACM 37869
the record: “Mindful that in the plain error context the defective specification alone is
insufficient to constitute substantial prejudice to a material right, we look to the record to
determine whether notice of the missing element is somewhere extant in the trial record,
or whether the element is ‘essentially uncontroverted.’” Id. at 215-16. (citations omitted).

       The theme of the Government’s case focused on the attempted murder alleged in
Charge I. As in Humphries, the Government counsel never: (1) mentioned how the
appellant’s conduct satisfied either Clause 1 or 2 of the terminal element of Article
134, UCMJ; (2) presented any evidence or called a witness to testify on either or both
clauses; (3) made any attempt to tie evidence or witness statements to either or both
clauses;9 or (4) mentioned the terminal element at any point during closing argument on
findings. See Humphries, 71 M.J. 209. Having examined the record, we find that notice
of the missing element was neither extant in the trial record nor essentially
uncontroverted. Accordingly, the Government’s failure to separately charge and prove
the terminal element materially prejudiced the appellant’s substantial right to
constitutionally required notice. See id. at 215. Charge III is therefore dismissed.10

                                     Legal and Factual Sufficiency

        The appellant argues the evidence is legally and factually insufficient to support
his conviction of attempted unpremeditated murder. He essentially attacks the mens rea
element, arguing that, when JEH struck the appellant’s car with a wrench as the appellant
was driving away, JEH provoked the appellant to fire his weapon, which rendered the
evidence sufficient to prove, at most, attempted voluntary manslaughter and assault with
intent to commit voluntary manslaughter. We disagree.

       We review legal and factual sufficiency de novo. Article 66(c), UCMJ,
10 U.S.C. § 866(c); United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). The
test for legal sufficiency is “‘whether, considering the evidence in the light most
favorable to the prosecution, a reasonable fact finder could have found all the essential
elements beyond a reasonable doubt.’” United States v. Humpherys, 57 M.J. 83, 94
(C.A.A.F. 2002) (quoting United States v. Turner, 25 M.J. 324 (C.M.A. 1987)). “The test
for factual sufficiency ‘is whether, after weighing the evidence in the record of trial and
making allowances for not having personally observed the witnesses,’ [we are] convinced
of the [appellant]’s guilt beyond a reasonable doubt.” United States v. Reed,
54 M.J. 37, 41 (C.A.A.F. 2000) (citing Turner, 25 M.J. at 325).


9
   Investigator GP answered affirmatively when asked by the assistant trial counsel, “[w]hen you learned an Air
Force member was involved in the shooting, were you surprised?” When asked to explain why he was surprised, he
responded “he said he was a cop like me and he would have understood not to be put in this situation.” While this
passage does reference the appellant’s status as an Air Force member, the reference was not made in a context
connecting it to a terminal element of Article 134, UCMJ, 10 U.S.C. § 934.
10
    Having done so, we need not address the appellant’s preemption argument as to Charge III.


                                                       5                                            ACM 37869
       The elements of the offense of attempted unpremeditated murder are: (1) the
appellant did a certain overt act (in this case, shot JEH with a loaded firearm); (2) the act
was done with the specific intent to commit unpremeditated murder; (3) the act amounted
to more than mere preparation; and (4) the act apparently tended to bring about the
commission of the offense. As noted, the appellant specifically challenges the sufficiency
of proof of the second element. See Manual for Courts-Martial, United States (MCM),
Part IV, ¶¶ 4.b., 43.b.(3) (2008 ed.).

       “An unlawful killing without premeditation is also murder when the accused had
either an intent to kill or inflict great bodily harm. It may be inferred that a person
intends the natural and probable consequences of an act purposely done. Hence, if a
person does an intentional act likely to result in death or great bodily injury, it may be
inferred that death or great bodily injury was intended. The intent need not be directed
toward the person killed, or exist for any particular time before commission of the act, or
have previously existed at all. It is sufficient that it existed at the time of the act or
omission.” MCM, Part VI, ¶ 43.c.(3).

       However, “[a]n unlawful killing, although done with an intent to kill or inflict
great bodily harm, is not murder but voluntary manslaughter if committed in the heat of
sudden passion caused by adequate provocation.” MCM, Part IV, ¶ 44.c.(1)(a); see also
Article 119(a), UCMJ, 10 U.S.C. § 919(a); United States v. Schap, 49 M.J.
317, 321 (C.A.A.F. 1998). “The provocation must be adequate to excite uncontrollable
passion in a reasonable person, and the act of killing must be committed under and
because of the passion.” MCM, Part IV, ¶ 44.c.(1)(b); see also United States v. Roukis,
60 M.J. 925 (Army Ct. Crim. App. 2005) (internal signals and quotation marks omitted).

       “Self-defense [] requires more than provocation and fear. Self-defense applies
only if it was reasonable for appellant to have feared ‘that death or grievous bodily harm
was about to be inflicted wrongfully on [him],’ and if he believed that the force used was
necessary to protect against that death or grievous bodily harm.” United States v.
Saulsberry, 47 M.J. 493 (C.A.A.F. 1998) (second alteration in original) (citing Rule for
Courts-Martial (R.C.M.) 916(e)(1)).

      We find the evidence legally and factually sufficient to support the finding of
attempted unpremeditated murder.

      The evidence supports the members’ apparent conclusion that the appellant was
not acting in self-defense or provoked into a heat of sudden passion such that the
grievously wounding shot was fired before self-control could return. Any provocation by
JEH was insufficient to excite uncontrollable passion in a reasonable person under these
circumstances. See MCM, Part IV, ¶ 44.c.(1)(a); United States v. Henderson,
48 M.J. 616 (Army Ct. Crim. App. 1998) (no provocation where appellant stabbed other


                                              6                                    ACM 37869
participant numerous times in mutual affray), aff’d, 52 M.J. 14 (C.A.A.F. 1999);
Cf. United States v. Levell, 43 M.J. 847, 853 (N.M. Ct. Crim. App. 1996) (upholding
premeditated murder conviction where movements leading up to a killing occurred in
several seconds).

        First, the appellant specifically sought out and instigated the confrontation when
he drove to JEH’s house to locate TG because TG had threatened his sister’s boyfriend.
Second, he did so while well-armed with two loaded handguns. Third, he was at all times
during the confrontation safely within his car and able to simply leave, while JEH was
walking several feet away along the roadside. Fourth, his suggestion that after he
accelerated away from JEH for 2-to-3 seconds, he blindly fired over his shoulder and still
managed to strike JEH center of mass, in the middle of his back, simply strains
credibility. Fifth, and perhaps most tellingly, even according to the appellant’s account,
he didn’t fire his weapon as JEH was purportedly lunging toward his vehicle; rather he
sped away for 2-to-3 seconds, then stopped the car and fired his weapon. Specifically, he
testified, “as soon as [JEH] lunged I slammed on the gas, it wasn’t 2-to-3 seconds later I
slammed on the brakes because something hit the back window of my vehicle.” A
member’s question suggests the panel shared our skepticism at the appellant’s proffered
self-defense theory. The member asked: “You testified that you stepped on the gas after
[JEH] lunged at you from 6 feet away and moments later you heard a noise that sounded
like the back window shattered. If you were truly scared for your life, and knew that the
alleged assailant, [JEH], was on foot why would you stop your car as opposed to
continuing to step on the gas as there was no way he could catch you?”

       Having considered the evidence in the light most favorable to the prosecution, we
find that a reasonable factfinder could have found beyond a reasonable doubt all the
essential elements of attempted unpremeditated murder. Having further weighed the
evidence in the record of trial, making allowances for not having personally observed the
witnesses, and applying our fact-finding powers under Article 66, UCMJ, we are
convinced of the appellant’s guilt beyond a reasonable doubt. Accordingly, we find
sufficient evidence to affirm his conviction of attempted unpremeditated murder.

                           Instructions on Confinement Credit

      The appellant argues that the military judge’s explanation of “good time,” in
response to a member’s question, was error meriting a one-year reduction of his
confinement, or the return of his case for a new presentencing proceeding. We disagree.

       Roughly an hour and a half after the members began deliberating on sentence, the
military judge reopened the court to answer their questions. One member asked, “as part
of rehabilitation is there time off for good behavior in confinement, i.e., a reduced term.
If so, how much is it reduced, such as one-third, one-fourth etc.” Though the military
judge explained that “good time” was awarded according to a fixed formula, depending


                                            7                                    ACM 37869
on a confinee’s conduct, she nevertheless cautioned “that is not really before you to
consider or factor into your sentence. The purpose here is to determine what you each
individually believe and then collectively believe is the appropriate sentence for this case
based on your findings.”11 As our superior court has instructed:

        Although military judges and members should not generally consider
        collateral consequences in assessing a sentence, this is not a bright-line
        rule. In certain circumstances, therefore, it may be appropriate for the
        military judge to instruct on collateral matters. In deciding whether the
        military judge erred in giving such instructions, we will take a flexible
        approach focusing on the military judge’s responsibility to give “legally
        correct instructions that are tailored to the facts and circumstances of the
        case.” For example, the “availability of parole and rehabilitation programs
        are issues of general knowledge and concern, and as such they may be
        instructed upon, especially when requested by the members.” However, in
        such a situation, the military judge should then instruct the members that
        although the possibility of parole exists in the military justice system, “they
        could not consider it in arriving at an appropriate sentence for [the]
        appellant.”

United States v. McNutt, 62 M.J. 16, 19 (C.A.A.F. 2005) (alteration in original) (citations
omitted); see also United States v. Duncan, 53 M.J. 494, 499 (C.A.A.F. 2000)(not error
for trial judge to explain parole process where his instructions also made clear the
members were to “do what you think is right today. . . . [and] not be concerned about the
impact of parole.”)

       Even assuming any error in the military judge’s instruction, we find such error
clearly harmless. See Article 59(a), UCMJ; see also Duncan, 53 M.J. at 499-500. As in
Duncan, the members themselves interrupted their deliberations to inquire about the
possibility of good time12 and the existence of rehabilitation programs. Likewise, the
inquiry was reasonable given the nature of the appellant’s crime and the issue of his
rehabilitative potential. Finally, and also as in Duncan, the military judge in this case
correctly instructed the members that although the principle of “good time” existed in the
military justice system, they should not consider it in arriving at an appropriate sentence
for the appellant. Accordingly, we conclude that these instructions, even if erroneous,
did not materially prejudice any of the appellant’s substantial rights.

                                           Assistance of Counsel


11
   The military judge used similar language in two other sections of the relatively brief exchange about “good time”
to instruct the members they were to adjudge a sentence they believed appropriate, without reference to potential
collateral matters such as good time.
12
   In United States v. Duncan, 53 M.J. 494, 499 (C.A.A.F. 2000), the inquiry was specifically about “parole.”


                                                         8                                             ACM 37869
       The appellant has averred 23 separate transactions he describes as examples of
ineffective assistance of counsel. As we have decided to consider those allegations as
supplemental assignments of error, we now evaluate his claim under Article 66(c),
UCMJ, 10 U.S.C. § 866(c). Having carefully reviewed and analyzed appellate defense
counsel’s veritable catalogue of alleged insufficiencies, and in light of the totality of facts
and circumstances before us, we find no substantive merit in the appellant’s allegations of
ineffective assistance of counsel. Article 66(c), UCMJ.

      We review ineffective assistance of counsel claims de novo. United States v.
Anderson, 55 M.J. 198, 201 (C.A.A.F. 2001).

       The Sixth Amendment13 entitles criminal defendants to representation that does
not fall “below an objective standard of reasonableness” in light of “prevailing
professional norms.” Strickland v. Washington, 466 U.S. 668, 686 (1984). Our inquiry
into an attorney’s representation must be “highly deferential” to the attorney’s
performance and employ “a strong presumption” that counsel’s conduct falls within the
wide range of professionally competent assistance.” Id. at 688-89. Our superior court
has applied this standard to military courts-martial, noting that, “[i]n order to prevail on a
claim of ineffective assistance of counsel, an appellant must demonstrate (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 (C.A.A.F. 2010) (citing Strickland, 466 U.S. at
687; United States v. Mazza, 67 M.J. 470, 474 (C.A.A.F. 2009)). “The likelihood of a
different result must be substantial, not just conceivable.” Harrington v. Richter,
131 S.Ct. 770 (2011).

       We “must judge the reasonableness of counsel’s challenged conduct on the facts
of the particular case, viewed as of the time of counsel’s conduct.” Strickland,
466 U.S. at 690. In making that determination, we consider the totality of the
circumstances, bear in mind “counsel’s function, as elaborated in prevailing professional
norms, is to make the adversarial testing process work . . . [and] recognize that counsel is
strongly presumed to have rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment.” Id. “The appellant bears
the heavy burden of establishing that his trial defense counsel were ineffective.” United
States v. Garcia, 59 M.J. 447, 450 (C.A.A.F. 2004). “There is no reason for a court
deciding an ineffective assistance claim to approach the inquiry in the same order [as the
Court in Strickland] or even to address both components of the inquiry if the defendant
makes an insufficient showing on one.” United States v. McConnell, 55 M.J. 479, 481
(C.A.A.F. 2001) (quoting Strickland, 466 U.S. at 697). When making the two-part
inquiry into the reasonableness of counsel’s conduct and whether prejudice resulted, we
note that “in many cases review of the record itself is sufficient,” United States v. Lewis,
42 M.J. 1, 3 (C.A.A.F. 1995), to resolve the appellant’s claims of ineffectiveness.

13
     U.S. CONST. amend VI.


                                              9                                     ACM 37869
Although appellate courts “are normally precluded from consideration of the allied
papers in our review of a case, we may consider such evidence and other matters outside
the record where the question of effectiveness of counsel is concerned.” United States v.
Davis, 3 M.J. 430, 431 n.1 (C.M.A. 1977) (citations omitted).

1. Failure to challenge the attempted murder Specification for failing to state an offense

      The appellant avers his trial defense counsel should have challenged the attempted
murder Specification as it did not allege a specific intent, thus depriving him of his due
process right to notice. We disagree.

        Whether a specification is defective and the remedy for such error are questions of
law which we review de novo. United States v. Norwood, 71 M.J. 204 (C.A.A.F. 2012).
“[I]n order to state the elements of an inchoate offense under Articles 80 and 81, UCMJ,
a specification is not required to expressly allege each element of the predicate offense.”
Id. at 205. “A charge and specification are sufficient if they, first, contain the elements of
the offense charged and fairly inform a defendant of the charge against which he must
defend, and, second, enable him to plead an acquittal or conviction in bar of future
prosecutions for the same offense. . . . A specification is sufficient if it alleges every
element of the charged offense expressly or by necessary implication.” Id. at
205, 212 (citations omitted); R.C.M. 307(c)(3).

        An intent to kill or inflict great bodily harm is a definitional component of murder
under Article 118, UCMJ, and therefore alleged in the charge by necessary implication.
Moreover, the record contradicts any suggestion that the appellant was ever in doubt
about the specific intent element of the crime with which he was charged. On the
contrary, it appears to have been the centerpiece in the defense theory of the case at the
trial level. Accordingly, we do not find trial defense counsel’s failure to raise this issue
to constitute professional behavior falling below an objective standard of reasonableness
in light of prevailing professional norms. Strickland, 466 U.S. 668.

2. Unfamiliarity with medical evidence

       The appellant next avers that his trial defense counsel failed to familiarize
themselves with the medical evidence, and thus failed to recognize a challenge to the
allegation in Specification 1 of Charge II that JEH suffered a “deep abdominal wound,”
when in fact, according to the appellant, JEH had no abdominal wounds. We find this
claim without merit.

       As Dr. TK explained, after the bullet struck bone upon entering JEH, it broke into
several fragments that came to rest in various areas defined medically as falling within
his thoraco-abdominal region. Accordingly, we do not find trial defense counsel’s
failure to address what appellate defense counsel appear to suggest is a material


                                             10                                    ACM 37869
distinction between the terms “thoraco-abdominal region” and “abdominal” as a
representational error falling below an objective standard of reasonableness in light of
prevailing professional norms at the time the case was tried. Strickland, 466 U.S. 668.

3. Failure to challenge the Article 134, UCMJ, offense for failing to allege a terminal
   element

       The appellant’s case was tried in November and December of 2010, eight months
before our superior court issued its decision in United States v. Fosler,
70 M.J. 225 (C.A.A.F. 2011). It can hardly be said that the holding in Fosler was a
widely anticipated step in the evolution of military criminal law. At least one judge
observed that the Fosler majority’s decision “whistle[s] past sixty years of precedent and
many more of continuous and consistent practice.” Id. at 242 (Baker J., dissenting). We
therefore do not find trial defense counsel’s failure to challenge the Article 134, UCMJ,
Charge and Specification for omitting the terminal element to constitute ineffective
assistance of counsel. Strickland, 466 U.S. 668. Moreover, because we have dismissed
the Charge and Specification pursuant to Humphries, the appellant has suffered no
prejudice by his counsel’s failure to object. Id.

4. Failure to seek investigative assistance

       The appellant asserts that “a defense investigator could have done what defense
counsel apparently did not have time to do or did not think of doing” – interviewed the
surgeon who operated on JEH; obtained certificates of conviction for JEH’s three felony
convictions (and ascertained if he also had misdemeanor convictions) and what the
sentences were; and investigated JEH’s propensity and reputation for violence (one of his
convictions was for Assault in the 2nd Degree, according to the appellant, a class “C”
felony in Alabama). The appellant argues that “[w]ithout knowing the sentence [JEH]
received for his felony . . . conviction, it was impossible for [trial] defense counsel to
ascertain (a) whether or not such fell within or without the presumptive 10 year rule in
[Mil. R. Evid.] 609(b); (b) the circumstances and nature of the underlying assault that he
was convicted of; and (c) made it impossible for defense counsel to articulate why the
conviction was relevant under the Rule’s balancing test if the 10 year period had
expired.”

       The appellant articulates a reasonable litigation strategy or tactic that trial defense
counsel could have potentially exploited, depending on what such an investigation
ultimately uncovered. However, even if we were to assume that the failure to investigate
such matters constituted ineffective assistance under the first prong of the Strickland
analysis, the appellant fails to demonstrate prejudice under the second prong. It is simply
not enough to speculate that additional investigation could have impacted the outcome of
appellant’s case at the trial level. The test for prejudice on a claim of ineffective
assistance of counsel is whether “there is a reasonable probability that, but for counsel’s


                                              11                                   ACM 37869
unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. “The likelihood of a different result must be substantial, not
just conceivable.” Harrington, 131 S.Ct. 770. Accordingly, we decline to find this
example of trial defense counsels’ assistance to have been ineffective. See id. at 668;
United States v. McConnell, 55 M.J. 479, 481 (C.A.A.F. 2001).

5. Failure to recognize and assert the appellant’s four days of civilian pretrial
   confinement and two days of restriction

       Because we may correct this error now on appeal by reducing the appellant’s
confinement by the number of days for which he failed to receive credit at trial, we
decline to find any prejudice and therefore decline to find this example of trial defense
counsels’ assistance to have been ineffective. See Strickland, 466 U.S. 668; McConnell,
55 M.J. 479.

6. Failure to object to “mendacity” instruction

       The appellant argues “there is no evidence that [he] had lied during his testimony
on the merits nor did the Government argue such. The fact that [the appellant]’s
perceptions and recollections differed from the only other eyewitness, a thrice convicted
felon addicted to methamphetamines, does not rise to the level of mendacity.”

        A mendacity instruction “is normally reserved for cases where it can be inferred
from the evidence that an accused testified falsely before the members while under oath,
or trial counsel argues that an accused did so.” United States v. Smith, 25 M.J. 785
(A.C.M.R. 1988).

       The primary contested issue at trial turned on the differing versions of the facts
presented by the appellant and JEH. Both agreed that they exchanged heated words
sometime after JEH approached the appellant’s car. However, their versions of the
sequence of events happening thereafter diverge. The appellant said JEH lunged at his
car and threw something the appellant thought to be a knife, at which point the appellant
accelerated away until he heard a loud noise, then stopped the car and fired blindly over
his shoulder because he was in fear for his life. JEH said after the appellant brandished a
large black pistol and began to drive away, he threw a wrench that struck the car,
whereupon the appellant stopped the car, leaned out the window, and shot JEH in the
back as he was running away.

       Trial counsel made a spirited closing argument, the unmistakable substance of
which was that the appellant had testified falsely about a number of important facts. This
was not a case like United States v. Warren, 13 M.J. 278 (C.M.A. 1982), where the
substance of the conflicting testimony and trial counsel’s argument focused on
“falsehoods [that] were of no real importance . . . [or] only reflect[ed] [the appellant’s]


                                            12                                   ACM 37869
hedging somewhat on a minor point about which he could not bring himself to be entirely
frank.” Id. at 286. Rather, the inconsistencies in the appellant’s testimony were
unmistakably argued by the Government to have been “willful and material.” Id.14

       Following closing arguments, the members found the appellant guilty, by clear
implication believing JEH’s version and disbelieving the appellant’s. Under these
circumstances, and in light of the wide latitude accorded trial judges when crafting
instructions, see e.g., United States v. Thomas, 43 M.J. 626, 639 (A.F. Ct. Crim. App.
1995), we do not find that trial defense counsel’s failure to object to the mendacity
instruction amounted to a representational error falling below an objective standard of
reasonableness in light of prevailing professional norms, at that time the case was tried.
See Strickland, 466 U.S. 668.

7. Failure to object to “duty to retreat” arguments and instruction

        The appellant further argues his trial defense counsel should have objected to the
trial counsels repeated arguments as well as the military judge’s instruction regarding the
appellant’s failure to retreat because he had no duty to retreat as a matter of law under the
factual circumstances. Citing Article 36, UCMJ, 10 U.S.C. § 836, Brown v. United
States, 256 U.S. 335 (1921), and Beard v. United States, 158 U.S. 550 (1895), the
appellant argues he “was in his vehicle on a public road where he had every right to be
[and therefore] had no duty to retreat.” In light of the facts of this case, we do not find
Brown or Beard to support the argument the appellant makes.

       Although the two cases the appellant cites do establish a person’s general right to
“stand his ground” under certain circumstances, they are distinguishable from the case at
bar in a number of important respects. Brown was at work where he was required to be
when he was attacked. Beard was on his own property. Neither of them sought out their
victims. Neither of them instigated the confrontations. And, neither of them was safely
insulated from his attacker inside a steel enclosure capable of almost instantly outpacing
even the most determined on-foot assailant, at the time they brought deadly force to bear.

       The precedent, as articulated by Justice Holmes in Brown, is that “[r]ationally the
failure to retreat is a circumstance to be considered with all the others in order to
determine whether the defendant went farther than he was justified in doing; not a

14
   Specifically, in closing, trial counsel argued: “[H]e brought his vehicle to a stop, grabbed his loaded .40 caliber
weapon with hollow point bullets, stuck it out the window, and took aim. That caused [JEH] to turn around and start
running back to his house. Then the accused intentionally and deliberately pulled the trigger of that gun. . . . [T]he
accused’s version is bizarre on so many levels. I don’t want to sound unduly harsh, critical or offensive but in many
respects it just lacks common sense. Yesterday he claimed that he made the Hail Mary of shots. When the vehicle
stopped, he just for whatever reason threw his weapon behind him and[sic] the victim 20 yards behind him and just
happened to shoot him the middle of the back. The accused got up on the stand and he’s claiming that he was the
victim, that [JEH] was attacking him but who showed up with a loaded gun in the first place. . . . He expects you to
believe . . . .”


                                                         13                                              ACM 37869
categorical proof of guilt.” Id. (emphasis added). Notably, that very principle was
squarely included in the charge the trial judge gave the jury in the appellant’s case: “A
person may stand his ground when he is at a place at which he has a right to be.
Evidence tending to show that the accused had an opportunity to withdraw safely is a
factor which should be considered along with all other circumstances in deciding the
issue of self-defense.” Applying the legal principles highlighted in the cases to which the
appellant invites our attention to the facts of the case now before us, we find the
appellant’s use of potentially deadly force was therefore unlawful.

       The instruction the military judge gave the members in the appellant’s case was
also in substantial conformity with the Manual’s guidance on the extent to which
opportunity to retreat should be considered in the context of self-defense. See R.C.M.
916(e)(4), Discussion; see also United States v. Behenna, 71 M.J. 228, 236 (C.A.A.F.
2012) (finding “especially” relevant the fact that Behenna “had every opportunity to
withdraw from the confrontation and there was no evidence he either attempted or was
unable to do so,” where he was initial aggressor).

        We reject the appellant’s assertion that trial defense counsel’s failure to object to
the military judge’s instructions on the appellant’s ability to retreat, which – not
incidentally for purposes of the Strickland analysis – tracked the Department of the Army
Pamphlet 27-9 (hereinafter Benchbook), amounted to a representational error falling
below an objective standard of reasonableness in light of prevailing professional norms,
at that time the case was tried. See Strickland, 466 U.S. 668. Likewise, we reject his
related assertion that his counsel’s failure to object to trial counsel’s comments on his
ability to retreat amounted to ineffective assistance. Id.

8. Failure to recognize exhibit’s relevance and rebuttal effect

       Trial defense counsel objected on relevance grounds to the admission of
Prosecution Exhibit 14, the appellant’s small arms training record, which showed the
appellant met minimal qualification standards with an M9 pistol and met expert
qualification standards with the M-4 and M-16. The appellant now argues that his trial
defense counsel essentially misunderstood what the training record established about the
appellant’s shooting ability with a pistol, and that such misunderstanding prevented them
from objecting to the trial counsel’s mischaracterization of the appellant as a “good shot.”
More particularly, the appellant argues that while he qualified with the pistol, he did so
only minimally. Accordingly, he asserts, trial counsel perpetuated fraud on the court
when they argued that the appellant was a “good shot” with a pistol, and that his trial
defense counsel evinced professional ineffectiveness by failing to understand, and failing
to object to, the inaccuracy of trial counsel’s characterization of him as a “good shot.”

      The appellant was a security forces member who was trained and qualified on the
use of firearms. The one and only shot he fired out the window of his vehicle after


                                             14                                    ACM 37869
placing some distance between himself and JEH struck JEH center of mass as he was
running away. On these facts we reject the proposition that trial defense counsels’ failure
to object to trial counsel’s characterization of the appellant as a “good shot” amounted to
ineffectiveness. Strickland, 466 U.S. 668.

9. Failure to seek R.C.M. 917 relief

       On cross examination, JEH testified that he may have provoked the appellant prior
to the shooting. The appellant now argues that his trial defense counsel was ineffective
because he did not seize upon that admission and move the trial court to find him not
guilty under R.C.M. 917 based on insufficient showing of premeditation to support the
attempted murder charge.

       “Under R.C.M. 917(a), the military judge ‘shall enter a finding of not guilty . . . if
the evidence is insufficient to sustain a conviction of the offense affected.’” United
States v. Parker, 59 M.J. 195, 200 (C.A.A.F. 2003) (omission in original). Further,
“R.C.M. 917(d) states that a motion for a finding of not guilty ‘shall be granted only in
the absence of some evidence which, together with all reasonable inferences and
applicable presumptions, could reasonably tend to establish every essential element of an
offense charged. The evidence shall be viewed in the light most favorable to the
prosecution without an evaluation of the credibility of witnesses.’” Id.

       During the Government’s case in chief, witnesses testified: (a) On 26 July 2009
the appellant drove to JEH’s house intending to identify the individual who had been
involved in an altercation with his family’s friend; (b) he brought two loaded handguns
with him; (c) upon arriving at JEH’s residence, he repeatedly drove back and forth in
front of his house until JEH approached his car; (d) after JEH made contact with him, the
appellant brandished the handgun with which he later shot JEH, and communicated to
JEH a threat about TG, the husband of JEH’s cousin; (e) after exchanging heated words
as the appellant was driving away, JEH threw a wrench that struck the appellant’s
vehicle; (f) after the wrench struck the appellant’s vehicle, the appellant stopped, leaned
out of the vehicle’s driver side window, and shot JEH in the back as JEH was running
away; (g) after shooting JEH and watching him fall, the appellant, himself a law
enforcement officer, fled the scene; and (h) when questioned by Investigator GP about
the incident, the appellant denied any involvement whatsoever in the shooting.

       Viewing this evidence in light of R.C.M. 917 and our superior court’s guidance as
articulated Parker, we do not find trial defense counsel’s failure to make a motion for
finding of not guilty under R.C.M. 917, either at the close of evidence or following trial
counsel’s closing argument, to amount to ineffectiveness. See Strickland, 466 U.S. 668.




                                             15                                    ACM 37869
10. Failure to raise self-defense during voir dire

        Trial defense counsel did not mention self-defense during voir dire or in opening
statement. Accordingly, the appellant now argues, “the members had no idea from the
beginning that it was both a relevant and important concept that would have an important
role in the defense (or at least should have).”

       Even if we were to conclude that trial counsel’s failure to mention self-defense
during voir dire or their opening statement constituted ineffective assistance, we reject
any assertion that such omission was prejudicial to the appellant, particularly in light of
the extent to which self-defense was an ever present – even if not specifically stated –
theme in the defense’s case, and was a thoroughly argued issue in closing by both sides.
Accordingly, having found no prejudice, we therefore decline to find this example of trial
defense counsels’ assistance to have been ineffective. See Strickland, 466 U.S. 668;
Harrington, 131 S.Ct. 770; McConnell, 55 M.J. 479.

11. Failure to assert the appellant’s deployment as relevant to self-defense

       The appellant contends that trial defense counsel failed to understand, and thus did
not advocate that his recent deployment to an active combat zone was, at minimum,
relevant to the subjective prong of self-defense.

        At trial, following the appellant’s testimony on the merits, a jury member asked
several questions about his recent deployment, including: “(1) When did you return back
stateside from your deployment to Afghanistan;” (2) “What duties did you perform while
on that deployment;” (3) “Were you exposed to any troops in contact events while
deployed;” and (4) “Do you feel the events you encountered during your deployment in
any way affected your actions / reactions on 26 July 09?” Trial counsel objected to the
questions, noting “[t]o the extent it’s relevant at all it may be relevant in sentencing, but
to the extent that there’s – it also raises mental capacity issues, which were never pled as
an affirmative defense at this point.” Trial defense counsel declined to offer responsive
argument, and the military judge found the questions irrelevant.

       The appellant submitted the post-trial affidavits of his mother and his wife
describing his behavioral changes after his return from the eight-month deployment.
They described him as being standoffish, anxious and easily agitated, having bad dreams
and experiencing sleep disturbances, and feeling vulnerable in front of windows or in
crowds or unlocked rooms. His wife attested that she believed “that all this [referring to
the shooting] occurred because he felt threatened and scared.”

      “It is a defense to a homicide, assault involving deadly force, or battery involving
deadly force that the accused: (A) Apprehended, on reasonable grounds, that death or
grievous bodily harm was about to be inflicted wrongfully on the accused; and

                                             16                                    ACM 37869
(B) Believed that the force the accused used was necessary for protection against death or
grievous bodily harm.” R.C.M. 916(e). Further, “[r]elevant evidence” means evidence
having any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without the
evidence.” Mil. R. Evid. 401.

        At first blush, it would appear reasonable to question why the appellant’s trial
defense counsel would have conceded that the questions were not relevant. It is not
unheard of for military members to have encountered deployment situations that could
impact the subjective level of apprehension they may feel in potentially dangerous
situations following their deployments. That fact, together with the affidavits submitted
here could, in isolation, raise a concern regarding trial defense counsels’ failure to
advocate the relevance of his deployment in response to the member’s question.
However, under the present facts, considering the totality of the information in the record
before us, such a concern would be unwarranted.

        There is little support in the record before us to find the assertions submitted on
the appellant’s behalf persuasively neutral, objective, or reliable. Rather, every indicator
before us suggests the contrary. The feud between the appellant’s family and JEH and
his circle of family and friends had been going on for some time and was quite volatile.15
The Article 32, UCMJ, investigation found that “[w]hile all necessary witnesses will
likely be made available upon issuance of a subpoena, . . . most of the witnesses in this
case refused to testify at the Article 32 hearing and will likely be uncooperative at trial.
This includes [JEH], the parents and sister of the accused and his wife.” See Davis, 3
M.J. at 431 (appellate courts may consider allied papers where the question of
effectiveness of counsel is concerned) (citations omitted).

        Moreover, even if we were to conclude the post-trial affidavits were sufficient to
raise a question about the actions of trial defense counsel with respect to this allegation of
ineffective assistance, we would nevertheless find no prejudice. Against the contextual
backdrop of this case, as amply laid out in other portions of this opinion, although it is
conceivable that information about the appellant’s experiences during his deployment
may have, based on the right evidence, led to a different outcome in his case, the standard
is not mere conceivability. Rather, “[t]he likelihood of a different result must be
substantial.” Harrington, 131 S.Ct. at 770. Accordingly, we decline to find this example
of trial defense counsels’ assistance to have been ineffective. Strickland, 466 U.S. 668;
McConnell, 55 M.J. 479.

12. Failure to call the appellant’s father as a witness

15
    During a previous confrontation between the parties, the appellant’s father was alleged to have shot the tire of
JEH’s vehicle. The appellant’s father admitted to having threatened JEH with the weapon, but denied shooting the
tire.


                                                         17                                              ACM 37869
        The appellant argues that trial defense counsel were ineffective in not calling his
father, Pastor Charles Wayne Miller, to testify in corroboration of the appellant’s account
of the events.

       Pastor Miller was on the telephone with the appellant during the confrontation and
shooting. The Article 32, UMCJ, investigating officer concluded that the “voice was
audible to [Pastor Miller] via speakerphone just before the shot.” In his sworn written
statement to the Alabama authorities, Pastor Miller described what he heard:

       [The appellant asked] if [JEH] could tell him where [TG] lived. The other
       voice said Hell not I’m not telling you a fu_ _ ing thing, I am going to cut
       your f _ _ king guts out. Then [the appellant] said Daddy he’s running after
       me, he’s almost at my window. He’s throwing the knife at the same time I
       heard a gunshot.

        Though Pastor Miller’s written statement potentially could have been
corroborative, as the appellant suggests, other information in the record could just as
easily be understood as reasonable bases counseling against calling him as a witness at
trial. After hearing the shot over the speaker phone, Pastor Miller advised the appellant
to flee the scene. Pastor Miller had, himself, previously threatened JEH with a firearm.
Finally, Pastor Miller’s written statement contained repugnant, racially-charged epithets
which would almost certainly evoke a profoundly negative reaction from a military panel
if the statement were to come before the members.

      Consequently, we do not consider trial defense counsels’ failure to call Pastor
Miller to testify to constitute behavior falling below an objective standard of
reasonableness in light of prevailing professional norms. See Strickland, 466 U.S. 668.

13. Failure to object to reasonable doubt instructions

       The appellant argues that the reasonable doubt instruction provided by the military
judge was erroneous, as evinced by the variance between the model Benchbook
instruction and those given by the military judge in his case.

       The military judge instructed the members:

       A “reasonable doubt” is a conscientious doubt, based upon reason and
       common sense, and arising from the state of the evidence. . . . “Proof
       beyond a reasonable doubt” is proof that leaves you firmly convinced of the
       accused’s guilt.




                                            18                                   ACM 37869
       There are very few things in the world that we know with absolute
       certainty, and in criminal cases the law does not require proof that
       overcomes every possible doubt. If, based on your consideration of the
       evidence, you are firmly convinced that the accused is guilty of the offenses
       charged, you must find him guilty. If, on the other hand, you think that
       there is a real possibility that the accused is not guilty, you must give him
       the benefit of the doubt and you must find him not guilty.

        The appellant argues that the given instruction watered down the Government’s
constitutional burden because, unlike the model instruction, it failed to charge the
members that “the proof must rise to ‘an evidentiary certainty.’” Additionally, he argues
that the phrase “if you are ‘firmly convinced’ that the accused is guilty . . . you must find
him guilty” returns the military reasonable doubt jurisprudence to the long-condemned
“substantial doubt” era. Finally, he argues that the phrase “If . . . you think there is a real
possibility that the accused is not guilty,” considered in combination with the other flaws
he identifies, “decreases the Government’s burden while conversely, unconstitutionally
increasing the burden on the accused.” We disagree.

        The military judge has substantial discretion in deciding which instructions to
give, and we review his or her refusal to give a defense-requested instruction for an abuse
of discretion. United States v. Thomas, 43 M.J. 626, 639 (A.F. Ct. Crim. App. 1995)
(citations omitted).     The very language the appellant now challenges, which was
originally drafted by the Federal Judicial Center, has withstood appellate judicial scrutiny
before us, our Navy colleagues, and our superior court. We find no reason to revisit
those determinations here. See id.; United States v. Meeks, 41 M.J. 150 (C.M.A. 1994);
United States v. Jones, 46 M.J. 815 (N.M. Ct. Crim. App. 1997).

       The appellant is correct in his observation that the language used by the military
judge does vary from the Benchbook’s language. However, although the Benchbook
language is the standard reasonable doubt instruction used in Army courts-martial, the
language used by the military judge in the appellant’s case is – and has been for many
years – an accepted reasonable doubt instruction used in Air Force courts-martial. See,
e.g., United States v. Sanchez, 50 M.J. 506 (A.F. Ct. Crim. App. 1999).

       Consequently, we do not consider trial defense counsels’ failure to object to the
reasonable doubt instruction given here to constitute behavior falling below an objective
standard of reasonableness in light of prevailing professional norms at the time. See
Strickland, 466 U.S. 668.

14. Failure to employ scene reconstruction expertise

      The appellant suggests that a defense expert may have been able to offer an
opinion contradicting those opinions provided by other witnesses as to the location of the


                                              19                                    ACM 37869
appellant and JEH at the time of the shooting. He articulates a reasonable potential
litigation strategy or tactic trial defense counsel could have exploited, depending on what
such an investigation uncovered. However, even if we were to assume that the failure to
pursue such matters constituted ineffective assistance under Strickland’s first prong, the
appellant fails to demonstrate prejudice under the second prong. It is simply not enough
to speculate that retaining a crime scene reconstruction specialist could have impacted the
outcome of appellant’s case at the trial level. The test is not whether a different outcome
is merely conceivable, but whether the likelihood of a different outcome is substantial.
Harrington, 131 S.Ct. 770. Accordingly, we find this issue meritless.

15. Failure to attempt to impeach JEH

        First, the appellant avers that “[a]side from [JEH’s] felony Assault 2nd conviction,
he also had two convictions for Receiving Stolen Property, crimes arguably falling within
the parameters of crimen falsi due to the dishonesty involved.” (Emphasis in original).
The appellant references “three prior felony convictions” without identifying any source
or citation, and without providing any information about such convictions other than his
own averments, which do not, standing alone, constitute evidence. See e.g., United States
v. Lewis, 42 M.J. 1, 3 (C.A.A.F. 1995). Accordingly, he provides insufficient
information upon which we may assess whether such convictions would or would not
have been admissible under the Military Rules of Evidence. We therefore have no basis
upon which to conclude that trial defense counsel’s failure to attempt to impeach JEH
with prior convictions amounted ineffectiveness. See Strickland, 466 U.S. 668.

       Second, we find the appellant’s assertion that JEH’s refusal to testify under oath at
the Article 32, UCMJ, hearing “should have been fair game for cross examination,” to be
a non sequitur. Without more, we simply have no basis upon which to conclude that
cross examining JEH about his disinclination to testify under oath at the hearing would
have been helpful to the appellant’s case at trial. We therefore find the appellant’s
argument with regard to this example of trial defense counsels’ performance to be
without merit. See Strickland, 466 U.S. 668.

       Third, as we have found no error in trial defense counsels’ decision not to call the
appellant’s father as a witness, we decline to rehash the discussion here.

16. Failure to submit JEH’s statement in sentencing

        At the Article 32, UCMJ, hearing, JEH stated he “doesn’t want to see the accused
prosecuted or sent to jail.” The appellant now argues that the trial defense counsel’s
failure to admit this statement in sentencing seriously prejudiced his sentencing case.

       In his affidavit, JOH (JEH’s father), attested, “My son [JEH] has informed the
District Attorney of Franklin County, Alabama, . . . that he does not wish to pursue any

                                             20                                   ACM 37869
criminal charges against [the appellant] and will not testify if called to do so in any
criminal proceeding.” The affidavit is dated 9 June 2010. Six months later JEH testified
at the appellant’s trial on 14 December 2010.

       Independent of any credibility vulnerabilities the appellant’s father may have had,
and putting aside for the moment the double hearsay nature of the statement at issue here,
JEH’s desires with regard to whether the appellant would be prosecuted or incarcerated
were thoroughly covered before the members during sentencing. On direct examination,
JEH explained that his intentions changed during the trial. Specifically, he testified:

        I come in here, I told you, I told the defense counsel before I was ever
        brought up here that I was going to ask this court not to put this man in jail.
        I come up here with every intention of that and I forgave him. . . . I thought
        about this for the last year. I come in here and this man looked at me with
        the same hatred that he looked at me on the day he shot me and it changed
        my feelings. I don’t know how to feel about the whole situation no more
        and I don’t know what to say about nothing.

       On cross examination, after being informed by the senior trial defense counsel that
the appellant cried and became emotional when the court reviewed photographs of JEH’s
injuries, JEH evinced some willingness to again soften his opinion regarding the
appellant’s future.

        Accordingly, although the record supports the appellant’s allegation that his trial
defense counsel did not attempt to admit JEH’s pretrial statement expressing his desire
not to see the appellant prosecuted, the substance of that statement was unmistakably
presented to the members in the live testimony the members heard. Therefore we do not
find trial defense counsel’s failure to offer such pretrial statement to be ineffective. See
Strickland, 466 U.S. 668.

17. Failure to investigate or corroborate evidence for impeachment value

       The appellant avers that his trial defense counsel were ineffective by failing to
investigate and or corroborate a Kentucky Fried Chicken (KFC) restaurant receipt
purporting to show the appellant was at a KFC several miles away 15 minutes before the
9-1-1 call that reported the shooting.

       Even if we were to assume that the appellant was present at the KFC when the
receipt was generated, the appellant offers no other specific evidence that would permit
meaningful, factual scrutiny of the proposition he appears to assert.16 More importantly,

16
   Such specific evidence would include but not be limited to the appellant’s route of travel, the speed with which
he made the trip, and the distance between the KFC and JEH’s home.


                                                        21                                            ACM 37869
as there is no dispute that the appellant shot JEH, we find the appellant’s claim meritless.
See Strickland, 466 U.S. 668.

18. Failure to confront JEH with his father’s affidavit

       For the reasons noted in the analysis under paragraph 16 above, we find this claim
meritless. See Strickland, 466 U.S. 668.

19. Failure to confront JEH with his inconsistent pretrial admission

       During a pretrial interview with AFOSI regarding where and how close he was to
the appellant just before he was shot, JEH stated “me and him’s looking at each other
dead in the eyes.” The appellant now avers his trial defense counsel were ineffective by
not confronting JEH with this statement as it reveals he could not have been 25 yards
behind the appellant’s car at that point.

        It is uncontested that the appellant did not shoot JEH while they were face to face.
Had that been the case, the bullet would have struck JEH in the stomach instead of the
back. Rather, at some time after seeing the gun and or looking the appellant in the eye,
JEH turned and began to run in order to put some distance between himself and the
appellant. As he was fleeing, the appellant shot him in the back. Though there are some
inconsistencies in the details between JEH’s pretrial statement and his in court
testimony,17 we do not find any significant inconsistency in statements with which the
appellant here takes issue. As such, we find nothing about the trial defense counsel’s
failure to confront JEH with this particular pretrial statement to constitute ineffectiveness.
See Strickland, 466 U.S. 668.

20. Failure to confront JEH with his Article 32, UCMJ, unsworn statements

       At the Article 32, UCMJ, hearing, JEH stated that, “I don’t want that boy to go to
prison,” and that, “I was on methamphetamine at the time I got shot and probably
provoked it.” JEH also admitted on cross examination during findings that: because he
was under the effects of methamphetamine, he was energetic and felt “10 feet tall and
bullet proof;” that he “got upset because [the appellant] was talking about [JEH’s]
relatives;” that he was “angry,” began “cussing,” and “arguing” with the appellant; that
he threw the wrench with the intention of breaking the window of the appellant’s car; that
the methamphetamines “could have made [him] a little angrier;” and that he, JEH,
probably provoked the escalation in the confrontation.


17
   For example, JEH testified at trial that he took “probably 5 or 6 steps after throwing the wrench before being
shot.” In the statement he made to investigators, he said he took “maybe three” steps between throwing the wrench
and being shot.


                                                       22                                           ACM 37869
        Though trial defense counsel may not have specifically confronted JEH with his
Article 32, UCMJ, testimony regarding the events leading up to the shooting, or his
feelings about whether the appellant should go to prison, the substance of that testimony
was squarely covered in JEH’s trial testimony. During that testimony trial defense
counsel elicited that JEH was under the effects of methamphetamine and, in his opinion,
“probably” provoked the escalation in the confrontation. We therefore find no merit in
this allegation of error.18

21. Failure to object to Dr. TK’s surrogate testimony as an obvious Confrontation Clause
    violation

       Dr. (Major) TK, a medical doctor with limited trauma skills training, including a
2-week trauma course designed to provide trauma response and readiness training skills,
was offered and accepted as an expert in the field of medicine without objection. After
reviewing roughly 300 pages of medical records, he testified about the nature and long-
term implications of JEH’s injuries.19 A 7-page transcription prepared by the surgeon
who treated JEH, consisting of the typed summary of his observations, and the tests and
other procedures performed during the course of JEH’s emergency treatment, was offered
and admitted as Prosecution Exhibit 17.

       If scientific, technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as an expert
by knowledge, skill, experience, training, or education may testify thereto in the form of
an opinion or otherwise if (1) the testimony is based upon sufficient facts or data, (2) the
testimony is the product of reliable principles and methods, and (3) the witness has
applied the principles and methods reliably to the facts of the case. Mil. R. Evid. 702.
The facts or data in the particular case upon which an expert bases an opinion or
inference may be those perceived by or made known to the expert, at or before the
hearing. If of a type reasonably relied upon by experts in the particular field in forming
opinions or inferences upon the subject, the facts or data need not be admissible in
evidence in order for the opinion or inference to be admitted. Facts or data that are
otherwise inadmissible shall not be disclosed to the members by the proponent of the

18
   Similarly, JEH’s wishes about the prospect of the appellant being sent to prison were also presented to the
members during his live testimony.
19
   Dr. TK testified that the bullet struck JEH a few inches to the left of his spine “around the area of the 11th and
12th ribs in the left posterior in the back.” Upon entering his body and striking bone, it fragmented. A scan
revealed metallic fragments in the lower part of his left lung, and in and around his spleen, with the largest fragment
eventually coming to rest in an area under his left arm. After reviewing JEH’s medical records, Dr. TK, who was
familiar with the treatment of gunshot wounds, described the injuries as occurring to JEH’s left thoraco-abdominal
region, “defined by the level of the nipple in the front and the lower part of the ribs, including the back and the front
of the chest, so it wraps all the way around [the body].” Regarding the location of bullet fragments in JEH, Dr. TK
explained “[o]ftentimes when the bullet hits the ribs it will ricochet and change directions or fragment and those
fragments can travel in different directions through the body.”



                                                           23                                               ACM 37869
opinion or inference unless the military judge determines that their probative value in
assisting the members to evaluate the expert’s opinion substantially outweighs their
prejudicial effect. Mil. R. Evid. 703.

       The last half decade or so has seen several judicially driven adjustments to
confrontation clause jurisprudence, particularly in the area of urinalysis cases and the
extent to which in-court experts may rely upon, and testify about, tests performed by
other experts. See, e.g., Crawford v. Washington, 541 U.S. 36 (2004); United States v.
Magyari, 63 M.J. 123 (C.A.A.F. 2006); Melendez-Diaz v. Massachusetts, 557 U.S.
305 (2009); United States v. Blazier, 68 M.J. 439 (C.A.A.F. 2010); United States v.
Blazier, 69 M.J. 218 (C.A.A.F. 2010). “[M]ore recent case law demonstrates that the
focus has to be on the purpose of the statements in the [document] itself.” Sweeney, 70
M.J. at 302. Rephrased, “would it be reasonably foreseeable to an objective person that
the purpose of any individual statement in [the document] is evidentiary?” Id. Although
the appellant references Bullcoming v. New Mexico, 131 S.Ct. 2705 (2011), in his
argument relative to this issue, we note Bullcoming was not decided until after the
appellant’s trial. Consequently, when assessing the professional reasonability of trial
defense counsels’ actions, we evaluate whether trial defense counsels’ actions met
prevailing professional norms, as informed by the state of the law, at that time.
Strickland, 466 U.S. 668.

       Having reviewed Dr. TK’s testimony, we find nothing to suggest such testimony
would have been facially objectionable under Mil. R. Evid. 702 or 703. Moreover, and
with due regard for our superior court’s recognition that “reasonable minds may disagree
about what constitutes testimonial hearsay,” United States v. Blazier, 69 M.J. 218, 222,
Dr. TK’s testimony was not akin to the type of testimonial hearsay found objectionable in
the numerous urinalysis cases defining the boundaries of the confrontation clause in this
context. Rather, it appeared to relay the type of information routinely contained in
medical reports created for treatment purposes, which under then-existing Supreme Court
precedent was unmistakably non-testimonial in nature.              See Melendez-Diaz v.
Massachusetts, 557 U.S. 305, 312 n.2 (2009) (“Medical reports created for treatment
purposes . . . would not be testimonial under our decision today.”). Therefore, we reject
the appellant’s characterization of Dr. TK’s testimony as an “obvious confrontation
clause violation,” and we do not find trial defense counsel’s failure to object to such
testimony to constitute ineffective assistance. See Strickland, 466 U.S. 668.

22. Failure to confront Investigator GP about his demotion

       The appellant notes that Investigator GP was, at various times, referred to in the
record as “Lt [GP], Sgt [GP]” and as “Deputy [GP].” Further, he argues that as the
investigator was identified as a Lieutenant in a reported case in 2010, but referred to as a
Sergeant in a newspaper article in 2012, the difference in the appellation used to identify
him demonstrates that “sometime after [the appellant’s] arrest and before his court-


                                             24                                   ACM 37869
martial, [GP] was demoted.” The appellant characterizes his trial defense counsel’s
failure to confront Investigator GP about this demotion as ineffective assistance of
counsel. We find the appellant’s argument in this regard to be purely speculative, and
therefore meritless.

23. Failing to challenge or rebut testimony and argument implying JEH was responsible
    for $180,000 in medical bills

      We find the appellant’s argument in this regard to be meritless. United States v.
Matias, 25 M.J. 356 (C.M.A. 1987).

                                              New Trial Petition

        On 11 March 2013, the appellant filed a Petition for a New Trial pursuant to
Article 73, UCMJ, 10 U.S.C. § 873. He raised four separate errors under the two
potential theories that would entitle him to a new trial under R.C.M. 1210(f): newly
discovered evidence and fraud on the court. The appellant essentially claims entitlement
to a new trial because: (1) his trial defense counsel committed fraud on the court when,
at the beginning of trial, they represented that they were qualified and certified and hadn’t
acted in a manner that might have tended to disqualify them because they were in fact not
sufficiently prepared – ergo not qualified – to try the case; (2) the trial defense counsels’
numerous errors and failures, as addressed above, “constitute[d] constitutionally
ineffective assistance of counsel and thus, negligently perpetuate[d] a fraud on the court-
martial; (3) the Government’s failure to comply with discovery and Brady20 obligations
contributed to fraud on the court-martial; and (4) newly discovered evidence would
impeach JEH’s credibility, corroborate the appellant’s self-defense claim, and contradict
that he had the required mens rea to be found guilty of attempted murder. We disagree.

1. Timeliness

       Article 73, UCMJ, permits an appellant to petition for a new trial “[a]t any time
within two years after approval by the convening authority of a court-martial sentence.”
In this case, the convening authority took action on 10 March 2011, two years and one
day prior to the filing of the Petition. Because the appellant’s claim was made beyond
the time limitations as enacted by Congress, we dismiss it as untimely.

       In Bowles v. Russell, 551 U.S. 205 (2007), the Supreme Court held that where a
rule requiring the filing of an appeal within 14 days was based on a statute, the rule was
mandatory and jurisdictional, and the appeals court erred by granting the litigant more
time than the statutorily based rule permitted. Clarifying the distinction between filing
time limits based on “court-promulgated rules and limits enacted by Congress,” the Court

20
     Brady v. Maryland, 373 U.S. 83 (1963).


                                                      25                           ACM 37869
unambiguously held that whereas the former are not jurisdictional, the latter are. Id. at
212. It stated:

         Because Congress decides whether federal courts can hear cases at all, it
         can also determine when, and under what conditions, federal courts can
         hear them. Put another way, the notion of subject-matter jurisdiction
         obviously extends to classes of cases . . . falling within a court’s
         adjudicatory authority, but it is no less jurisdictional when Congress
         prohibits federal courts from adjudicating an otherwise legitimate class of
         cases after a certain period has elapsed from final judgment. . . . As . . . long
         held, when an appeal has not been prosecuted in the manner directed,
         within the time limited by the acts of Congress, it must be dismissed for
         want of jurisdiction.

Id. at 213 (first omission in original) (citations and internal quotation marks
omitted).

        Our superior court took up this issue in United States v. Rodriguez,
67 M.J. 110 (C.A.A.F. 2009), a case examining whether that Court’s 60-day filing
deadline21 was mandatory and jurisdictional or waivable at that Court’s discretion. Citing
Bowles and a line of cases out of the federal appellate courts following Bowles, the Court
observed that “[w]hile the option of whether to petition or not petition the court rests with
the appellant, . . . Congress established without qualification when such petitions must be
filed. . . . within the sixty-day statutory time limit.” Id. at 115. In so doing, the Court
rejected reasoning it previously articulated in United States v. Tamez, 63 M.J. 202
(C.A.A.F. 2006), which had declared the 60-day time limit of Article 67(b), UCMJ,
10 U.S.C. § 867(b), to be waivable at the Court’s discretion for “good cause shown.”
Although the Court limited its holding to petitions filed under Article 67, UCMJ, we find
the rationale of Bowles and Rodriguez applicable to the case before us.

       The appellant argues the two-year filing period referenced in Article 73, UCMJ,
“simply is not jurisdictional, but is rather a ‘claims processing’ rule pursuant to
[Henderson v. Shinseki, 131 S.Ct. 1197 (2011)].” The appellant characterized his
Petition as a filing similar to the claim for disability compensation filed by the veteran
with the U.S. Court of Appeals for Veterans Claims in Shinseki, a transaction
“involv[ing] review by an Article I tribunal as part of a unique administrative scheme
[regarding] . . . a claim-processing rule.” Accordingly, the appellant argues, just as the
120-day filing rule in Shinseki was procedural and non-jurisdictional, so too is Article
73, UCMJ’s, two-year filing rule.

21
  “The accused may petition the [Court] for review . . . within 60 days of the earlier of -- (1) the date on which the
accused is notified of the decision . . . ; or (2) the date on which a copy of the decision of the Court . . . is [mailed].”
Article 67(b), UCMJ, 10 U.S.C. § 867(b).


                                                            26                                                ACM 37869
       We understand Rodriguez to be binding and we shall follow it. See, e.g., United
States v. Kelly, 45 M.J. 259, 262 (C.A.A.F. 1996); United States v. Allbery,
44 M.J. 226, 228 (C.A.A.F. 1996). The differences between civil litigation and the
veterans claims process are modest by comparison to the differences between the
veterans claims process and criminal prosecutions under the UCMJ. We therefore find
Shinseki inapposite to our analysis of the timeliness of the appellant’s Petition. Because
the two-year filing deadline under Article 73, UCMJ, is unambiguously statutorily based,
we find it to be jurisdictional in nature. Rodriguez, 67 M.J. 110. Accordingly, we hold
the appellant’s Petition to have been untimely filed.

         The appellant also urges us to find that the principle of equitable tolling provides a
basis upon which to find his Petition to have been timely.22 We decline to do so.
Moreover, if we were to evaluate whether the appellant had articulated good cause for his
untimely submission under the rationale of the dissenting judges in Rodriguez, we would
find no such good cause. This is not a case wherein a newly assigned or requested
military counsel received his client’s request for some appellate action after a filing
deadline had already passed, or where a service member received incorrect advice or
inaction as a result of assistance provided by a military counsel furnished by the
Government. Rather, the appellant retained a civilian appellate defense counsel in early
February 2013. At the time civilian appellate counsel received a copy of the record of
trial,23 he was well aware that “Article 73 UCMJ’s two year statute of limitations was
dangerously close,” suggesting, at the very least, he had ample time to evaluate his new
trial theory and the approaching filing deadline, and to submit his petition within the
required time limitations.

       We note that were we not to have found the petition untimely, we would have also
found it substantively without merit for the reasons that follow.

2. Newly Discovered Evidence

       R.C.M. 1210(f) provides that “[a] new trial may be granted only on grounds of
newly discovered evidence or fraud on the court-martial.” R.C.M. 1210(f)(1). It further
states that “[a] new trial shall not be granted on the grounds of newly discovered
evidence unless the petition shows that: (A) The evidence was discovered after the trial;
(B) The evidence is not such that it would have been discovered by the petitioner at the
time of trial in the exercise of due diligence; and (C) The newly discovered evidence, if
22
   The Supreme Court specifically withheld ruling on the issue of the applicability of equitable tolling to the 120-day
time limit in Henderson v. Shinseki, 131 S.Ct. 1197 (2011). Further, in both Bowles v. Russell, 551 U.S. 205 (2007),
and United States v. Rodriguez, 67 M.J. 110 (C.A.A.F. 2009), the Courts found that reviewing courts lacked
authority to apply the doctrine of equitable tolling in cases involving the challenge of jurisdictionally-based filing
deadlines.
23
    Though appellate civilian defense counsel does not specify the date on which he received the record of trial, the
affidavits he references in his various post-trial submissions, including the new trial Petition, are dated between
19 February and 6 March 2013.


                                                          27                                              ACM 37869
considered by a court-martial in the light of all other pertinent evidence, would probably
produce a substantially more favorable result for the accused. R.C.M. 1210(f)(2).

        The provisions of Article 73, UCMJ, are not designed to permit an accused to
relitigate matters which were presented below and decided adversely to him. United
States v. Bacon, 12 M.J. 489 (C.A.A.F. 1982). New trial petitions based on a witness’
recantation are not viewed favorably in the law.            United States v. Giambra,
33 M.J. 331 (C.M.A. 1991). They should only be granted if the court is reasonably well
satisfied that the testimony given by a material witness is false. United States v. Rios,
48 M.J. 261 (C.A.A.F. 1998). Furhtermore, courts may weigh testimony taken at trial
against the post-trial evidence to determine which is credible. Id. “[A] reviewing court
must make a credibility determination, insofar as it must determine whether the ‘newly
discovered evidence, if considered by a court-martial in the light of all other pertinent
evidence, would probably produce a substantially more favorable result for the accused. .
. . The reviewing court does not determine whether the proffered evidence is true; nor
does it determine historical facts. It merely decides if the evidence is sufficiently
believable to make a more favorable result probable.” Luke, 69 M.J. at 314 (citing
United States v. Brooks, 49 M.J. 64, 69 (C.A.A.F. 1998)).

      We find the appellant’s submissions do not constitute newly discovered evidence
under R.C.M. 1210.

        Pastor Miller’s affidavit recounts conversations he has had with JEH since the
shooting, during which JEH allegedly recanted certain portions of his trial testimony.
Specifically, Pastor Miller attested that JEH told him that, contrary to the distance JEH
testified to at trial, JEH was actually closer to the car at the time the appellant fired the
shot, and that at one point JEH did in fact move quickly toward the appellant’s car during
their argument. We find Pastor Miller’s affidavit unpersuasive under Rios, 48 M.J. 261,
insufficiently believable to make a more favorable result probable under Luke, and to
constitute an improper attempt to relitigate matters already addressed in the trial below
under Bacon, 12 M.J. 489.

       A document appearing to be a printed version of an online newspaper article from
the Franklin County Times, 20 December 2009 edition, identified JEH as one of several
people arrested on 16 December 2009 for manufacturing methamphetamine. Therefore,
the appellant argues now, JEH’s statement at trial that he was unable to hold a job
amounted to perjury because JEH actually “was working.                  Working illegally
manufacturing methamphetamine.” (Emphasis added). We reject this assertion on its
face and find that it also fails to meet the requirements of R.C.M. 1210(f)(2)(B) and (C).

       An affidavit by Pastor Jason Smith states that, in approximately September 2012,
JEH began working at G&G Steel and now regularly engages in manual labor. The
appellant submits this document in support of his assertion that JEH’s statement at trial


                                             28                                    ACM 37869
about being unable to work constituted perjury. We reject the suggestion that JEH’s
ability to find a job involving physical labor some three years after the shooting, and two
years after he testified to his then existing physical limitations at trial, renders his trial
testimony perjurious. Rios, 48 M.J. 261.

       Pastor Miller’s affidavit also recounts a conversation he had with JEH’s father,
during which JEH’s father suggested JEH was associated with Investigator GP (appellate
counsel suggests as an informant), and that as a result thereof Investigator GP somehow
shielded JEH from prosecution or lessened JEH’s sentence for some unspecified illegal
conduct. We find the assertion speculative and insufficiently detailed to constitute newly
discovered evidence under R.C.M. 1210(f), unpersuasive under Rios, 48 M.J. 261, and
insufficiently believable to make a more favorable result probable under Luke.

        At trial, both the trial counsel and trial defense counsel were unaware that,
following his arrest, the appellant had been confined at a jail in Franklin County,
Alabama, for four days and then restricted to a barracks room at Columbus AFB,
Mississippi, before being released to return to his unit. Consequently, the personal data
sheet was incorrect insofar as it reflected no pretrial confinement time, and counsel were
incorrect in their representation to the trial judge that the appellant had not been confined
pretrial. Though the appellant’s newly retained civilian defense counsel noted he did not
discover the information about the pretrial confinement until late-February 2013, he fails
to articulate how this information constitutes grounds for a new trial under
R.C.M. 1210(f)(2) (B) and (C), other than as support for his “fraud on the court” theory
addressed below, which we also find unpersuasive.

       Nevertheless, the appellant should have received confinement credit for the four
days he served in the Franklin County jail. See United States v. Murray, 43 M.J. 507
(A.F. Ct. Crim. App. 1995). We therefore order his sentence to be reduced by four days,
as further particularized in the decretal paragraph below.

3. Fraud on the Court24

       “No fraud on the court-martial warrants a new trial unless it had a substantial
contributing effect on a finding of guilty or the sentence adjudged.” R.C.M. 1210(f)(3).

      The appellant argues that: (1) his trial defense counsel committed fraud on the
court-martial when, at the beginning of trial, they represented that they were qualified
and certified and hadn’t acted in a manner that might have tended to disqualify them

24
   The appellant initially raised this issue in a Petition for New Trial, dated 11 March 2013. As noted above, we
granted the appellant’s 4 September 2013 request that we consider the matters raised in his Petition for a New Trial
as supplemental assignments of error under United States v. Luke, 69 M.J. 309 (C.A.A.F. 2011) (applying the
analytical framework of R.C.M. 1210 to govern a supplemental assignment of error substantively presented as a new
trial petition).


                                                        29                                             ACM 37869
because they were in fact not sufficiently prepared—ergo not qualified—to try the case;
and (2) the Government’s failure to comply with discovery and Brady25 obligations
contributed to the fraud on the court-martial.

       As noted above, the crux of the appellant’s fraud on the court theory rests on the
23 separately alleged instances of his trial defense counsels’ ineffectiveness addressed
previously.26 More particularly, the appellant argues that these alleged instances of
ineffectiveness demonstrate that his trial defense counsel’s statement to the court-martial
that they were qualified and certified to represent him was fraudulently untrue because
they were in fact not sufficiently prepared or skilled to represent their client effectively.
Ergo, goes the argument, they committed fraud on the court by saying they were.

       Though novel, we reject the appellant’s attempt to recast what appears to be an
ineffective assistance of counsel claim as a fraud on the court warranting a new trial
under Article 73, UCMJ, or R.C.M. 1210(f)(3). United States v. Matias, 25 M.J. 356
(C.M.A. 1987).

                                             Appellate Discovery

       In his 26 March 2013 post-trial Motion for Appropriate Relief, the appellant
requested that we order: (1) appellate discovery of various documents and/or records; and
(2) replacement of certain pages or items from the record of trial provided to him in
confinement that were either missing or were otherwise unclear or had been redacted in
certain respects.27 On the first issue, the appellant asked this Court, pursuant to the Sixth
Amendment, Articles 46 and 73, UCMJ, 10 U.S.C. §§ 846, 873, and our authority under
the All Writs Act, to order the production of numerous records, documents, and responses
to specific interrogatories from various state, federal, and municipal agencies. On the
second issue, he requested this Court to order the Government to give his civilian
appellate defense counsel an unredacted and legible copy of the complete record of trial.

      The appellant’s request falls squarely under United States. v. Campbell,
57 M.J. 134 (C.A.A.F. 2002), which requires that we consider, among other things: (1)
whether the defense has made a colorable showing that the evidence or information

25
   Brady v. Maryland, 373 U.S. 83 (1963).
26
    The appellant’s multiple filings following his retention of civilian defense counsel in February 2013 appear to
raise numerous allegations of legal error, but the organizational scheme of those filings, in combination with the
extent to which they overlap, restate, and/or cross-reference one another in various respects, muddles specific
allegations of error with other information presumably included as background or contextual reference. We have
therefore addressed those allegations of ineffective assistance of counsel the appellant identifies in his brief under
the subject heading “Specific Issues” as supplemental assignments of error.
27
    The redacted or removed items include: photographs of the victim and his wounds; certain pictures of the
appellant’s vehicle that showed the rear license plate (numerous other photographs of the same vehicle not showing
the license plate—or the license plate of another vehicle—were apparently not removed); home addresses and/or
phone numbers; and a video recording of the crime scene.


                                                         30                                              ACM 37869
exists; (2) whether or not the evidence or information sought was previously discoverable
with due diligence; (3) whether the putative information is relevant to the appellant’s
asserted claim or defense; and (4) whether there is a reasonable probability that the result
of the proceeding would have been different if the putative information had been
disclosed. Id. at 138.

       Appellant’s request for discovery falls short of meeting the now well-established
requirements articulated in Campbell, 57 M.J. 134. As a threshold, general matter, the
appellant’s motion is completely silent as to what efforts – if any – were at any time
undertaken in the exercise of due diligence to secure materials appellant now seeks.

       Additionally, the existence and or relevance of certain other materials appellant
now requests, including information about Investigator GP’s employment history or
information appellant suspects would identify the victim as an informant for Investigator
GP is based purely on speculation.

       Certain other materials he requests are irrelevant entirely. For example, the
firearms expert’s bench notes and associated records are irrelevant because the appellant
does not refute that he fired the bullet that struck the victim. Similarly, diagrams,
documents, or reports demonstrating the trajectory of the bullet after it entered JEH
would not support appellant’s case. The appellant argues that the path between the
bullet’s entry wound and where the largest fragment stopped after entering the victim
supports the appellant’s version of events and weakens the victim’s. He does so,
presumably, by suggesting that the upward trajectory of the bullet fragment removed
from under the victim’s left arm is more consistent with the appellant’s statement that he
fired a shot up into the air over his shoulder than it is with the victim’s assertion that the
appellant shot him in the back as he was running away. We find such an argument
unpersuasive, and by implication the sought diagrams etc., irrelevant, because Dr. TK
explained that bullets often ricochet off bones and change directions after entering the
body, and because bullet fragments were found in several locations in the victim’s
thoraco-abdominal area.

      The appellant has failed to meet his threshold burden of demonstrating that some
measure of appellate inquiry is warranted. We further find the other bases he cites to
support his request for the materials without merit. Accordingly, his Motion for
Appropriate Relief is denied.

                                Incomplete Record of Trial

       “A copy of the record of the proceedings of each general and special court-martial
shall be given to the accused as soon as it is authenticated.” Article 54(d), UCMJ,
10 U.S.C. § 854(d); see also R.C.M. 1104(b)(1) (“trial counsel shall cause a copy of the
record of trial to be served on the accused as soon as . . . authenticated”); Air Force Court


                                             31                                    ACM 37869
of Criminal Appeals Rules of Practice and Procedure, Rule 12 (“Ordinarily, civilian
counsel will use the accused’s copy of the record. Civilian counsel may reproduce, at no
expense to the Government, appellate defense counsel’s copy of the record.”).

        The appellant’s request appears to have been at least partially mooted by his
civilian appellate counsel’s receipt of a digital version of the record. We have no
indication that the record provided to military appellate counsel is incomplete. To the
extent the appellant or his civilian defense counsel are unable to secure access to record
of trial-related materials under our rules, the appellant is free to readdress that issue with
this Court.

                                  Sentence Reassessment

       As we have dismissed Charges II and III, we must assess the impact on the
sentence and either return the case for a sentence rehearing or reassess the sentence
ourselves. Before reassessing a sentence, we must be confident “that, absent the error,
the sentence would have been of at least a certain magnitude.” United States v. Doss,
57 M.J. 182, 185 (C.A.A.F. 2002) (citing United States v. Sales, 22 M.J. 305, 308
(C.M.A.1986)). A “dramatic change in the ‘penalty landscape’” lessens our ability to
reassess a sentence. United States v. Riley, 58 M.J. 305, 312 (C.A.A.F. 2003).
Ultimately, a sentence can be reassessed only if we “confidently can discern the extent of
the error’s effect on the sentencing authority’s decision.” United States v. Reed,
33 M.J. 98, 99 (C.M.A. 1991), aff’d, 36 M.J. 43 (C.M.A. 1992) (mem.). Even within this
limit, we must determine that a sentence we propose to affirm is “appropriate,” under
Article 66(c), UCMJ. In short, a reassessed sentence must be purged of prejudicial error
and also must be “appropriate” for the offense involved. Sales, 22 M.J. at 307-08.

       We have set aside two of the three charges in this case, all of which indisputably
arose from the same set of facts. However, because all of the charges were merged for
sentencing purposes, our holding would have no impact on the maximum sentence the
appellant faced. The military judge clearly instructed the members that the charges were
multiplicious for sentencing purposes, directing them “[t]herefore, in determining an
appropriate sentence in this case, you must consider them as one offense.” (Emphasis
added.). Moreover, the gravamen of the appellant’s offense, as presented and argued by
the Government, revolved around a single crime and a single theory, that the appellant’s
actions – shooting JEH in the back – amounted to attempted unpremeditated murder. The
crime carries a maximum imposable confinement period of life without the possibility of
parole, MCM, ¶ 43.e.(2), yet the sentence imposed by the members was considerably
more lenient. We therefore conclude our holding would not alter the penalty landscape,
substantially influence the sentence, or materially prejudice the appellant’s substantial
rights. Accordingly, under the facts and circumstances of this case, and considering the
relative severity of the charges, we are confident that the members would have imposed



                                              32                                   ACM 37869
at least a dishonorable discharge, confinement for 11 years, forfeiture of all pay and
allowances, and reduction to E-1.

        In reaching this conclusion, we have given individualized consideration to this
particular appellant, the nature and seriousness of the offenses of which he was
convicted, his record of service, and all other matters properly before the panel in the
sentencing phase of the court-martial. See United States v. Snelling, 14 M.J. 267, 268
(C.M.A. 1982); United States v. Bare, 63 M.J. 707, 714 (A.F. Ct. Crim. App. 2006),
aff’d, 65 M.J. 35 (C.A.A.F. 2007). We find that the adjudged and approved sentence was
appropriate in this case and was not inappropriately severe.

                                                   Conclusion

       The appellant’s request for appellate discovery is denied. The appellant’s petition
for a new trial is denied. Charges II and III are dismissed. We affirm only so much of
the sentence as includes a dishonorable discharge, confinement for 10 years and
361 days, and reduction to E-1. The remaining findings, and the sentence as modified
and reassessed, are correct in law and fact, and no error prejudicial to the substantial
rights of the appellant occurred.28 Articles 59(a) and 66(c), UCMJ; Reed, 54 M.J. at 41.
Accordingly, the remaining findings and sentence, as modified and reassessed, are

                                                 AFFIRMED.


                 FOR THE COURT


                 STEVEN LUCAS
                 Clerk of the Court




28
   Though not raised as an issue on appeal, we note that the overall delay of more than 540 days between the time of
docketing and review by this Court is facially unreasonable. United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F.
2006). Having considered the totality of the circumstances and the entire record, we find that the appellate delay in
this case was harmless beyond a reasonable doubt. Id. at 135-36 (reviewing claims of post-trial and appellate delay
using the four-factor analysis found in Barker v. Wingo, 407 U.S. 514, 530 (1972)). See also United States v.
Harvey, 64 M.J. 13, 24 (C.A.A.F. 2006); United States v. Tardif, 57 M.J. 219, 225 (C.A.A.F. 2002).


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