                       UNITED STATES, Appellee

                                    v.

                  Stephen A. LLOYD, Senior Airman
                     U.S. Air Force, Appellant

                              No. 09-0755

                         Crim. App. No. 37220

       United States Court of Appeals for the Armed Forces

                         Argued April 6, 2010

                        Decided June 24, 2010

ERDMANN, J., delivered the opinion of the court, in which STUCKY
and RYAN, JJ., joined. EFFRON, C.J., filed a separate
dissenting opinion in which BAKER, J., joined.

                                 Counsel

For Appellant: Captain Reggie D. Yager (argued); Colonel James
B. Roan, and Major Shannon A. Bennett (on brief); Captain
Tiffany M. Wagner.

For Appellee: Captain Charles G. Warren (argued); Colonel
Douglas P. Cordova, Lieutenant Colonel Jeremy S. Weber, and
Gerald R. Bruce, Esq. (on brief).

Military Judge:   Maura T. McGowan


       This opinion is subject to revision before final publication.
United States v. Lloyd, No. 09-0755/AF

       Judge ERDMANN delivered the opinion of the court.

       A panel of officers sitting as a general court-martial

convicted Senior Airman (SrA) Stephen A. Lloyd of three

specifications of assault with a dangerous weapon.    Lloyd was

sentenced to confinement for one year, reduction to E-1, a bad-

conduct discharge, and a reprimand.    The convening authority

approved the adjudged sentence and the United States Air Force

Court of Criminal Appeals affirmed the findings and sentence.

United States v. Lloyd, No. ACM 37220, 2009 WL 1508442, at *3

(A.F. Ct. Crim. App. May 29, 2009) (unpublished).

       “An accused is entitled to an expert’s assistance before

trial to aid in the preparation of his defense upon a

demonstration of necessity.”    United States v. Bresnahan, 62

M.J. 137, 143 (C.A.A.F. 2005).    We granted review in this case

to determine whether the military judge abused her discretion

when she denied Lloyd’s request for the assistance of a blood

spatter expert.1    We hold that the military judge did not abuse

her discretion and affirm the Court of Criminal Appeals.




1
    We granted review of the following issue:

       Whether the Military Judge abused her discretion when
       she denied the defense request for an expert
       consultant in the field of blood spatter.




                                  2
United States v. Lloyd, No. 09-0755/AF

                            BACKGROUND

     The charges in this case arose from a bar fight that pitted

SrA Lloyd and his civilian friend, James, against three other

airmen, Jance, Gee, and Soto.2    When the fight was over, Jance,

Gee, and Soto had been stabbed.    The question of who stabbed the

three airmen was the central issue at Lloyd’s court-martial.

     Lloyd did not testify at his court-martial and the

individuals who did testify gave differing accounts as to how

the fight started.   Airman Jance testified that he, Soto, and

Gee were at a bar in Great Falls, Montana, one evening when the

man he identified as Lloyd’s friend James brushed past Airman

Soto and gave Soto the “evil eye.”    Jance gave James “the

finger” in response.   In contrast to Jance’s testimony, James

simply testified that he and Lloyd were socializing at the bar

when he noticed a man, identified at trial as Jance, about

twenty feet away giving him the middle finger gesture.    Unsure

of whether Jance was gesturing to him, James pointed to himself

in a nonverbal attempt to ask if the man was targeting him.

Jance indicated that he was indeed directing the gesture to

James.




United States v. Lloyd, 68 M.J. 413 (C.A.A.F. 2009) (order
granting review).
2
  James’s stepfather was an Air Force member and James lived with
his stepfather and mother on Malmstrom Air Force Base, Montana,
where Lloyd was also stationed. Airmen Jance, Gee, and Soto
were also stationed at Malmstrom.

                                  3
United States v. Lloyd, No. 09-0755/AF

     James testified that he took several steps through the

crowded bar towards Jance and when he was about seven feet from

him, he asked Jance if he knew him.   In response Jance asked

James “why are you ‘mean mugging’ my friend?”   James testified

that he did not know what the man was talking about.   Jance

repeated the statement and cursed at James.   James testified

that Jance then “grinded his face” against him and struck him

with his forehead.

     According to Jance, however, James started the fight when

he walked over to Jance, said “F— you,” and “head butted” him.

Jance then “head butted” James and the fight was on.   James

punched Jance on the side of his face and as Jance fell to the

ground, James was tackled by Airman Gee.   The three of them then

scuffled on the floor.   James testified that during the fight he

could not see any of his surroundings and he assumed that Lloyd

was still in another area of the bar.

     The third airman with Jance and Gee that night, Airman

Soto, testified that when Gee tackled James, Lloyd walked

towards the three men but before he could engage in the fight,

Soto grabbed Lloyd “from behind and threw him on the floor.”

Soto continued to hit Lloyd and testified that Lloyd seemed to

be hitting him on his side.   All participants were on the floor

at this point and the two groups of fighters were no more than

two to three feet apart.



                                 4
United States v. Lloyd, No. 09-0755/AF

       The fight was broken up by the bouncers and the men were

thrown out of the bar.    Once outside, the three airmen realized

they had each been stabbed and employees of the bar drove them

to the hospital.    None of the three realized during the fight

that they had been stabbed and none of them saw a knife during

the fight.    James testified that once he and Lloyd were in

Lloyd’s car, Lloyd told him, “I stabbed those guys.”    James and

Lloyd initially went to Lloyd’s home.    James testified that he

watched Lloyd wash blood off of a knife that Lloyd had been

carrying that evening.3    It was then that James noticed that his

own clothes were covered with a “fair amount” of blood although

he had not been cut.    James testified that his shirt was

“[f]airly saturated” and his jeans were soaked in blood.     James

threw his shirt away in a dumpster outside Lloyd’s apartment.

The two then went to James’s house where Lloyd took off the

shirt he was wearing and left it in James’s parents’ basement.

       After hearing a report on the local news that the police

were looking for suspects in the stabbing, James testified that

he called the Great Falls Police Department to report the

incident.    Special Agent (SA) Travis Williamson was the lead

agent from the Air Force Office of Special Investigations

(AFOSI) for the investigation.     Williamson had responded to the

hospital and interviewed the victims and later interviewed James


3
    No knife was ever recovered.

                                   5
United States v. Lloyd, No. 09-0755/AF

at his stepfather’s home.    While at James’s home, SA Williamson

seized a dark, long-sleeved shirt that James said Lloyd was

wearing during the fight to determine whether there was blood on

it.4   He also seized a pair of jeans that James said he wore

during the fight.

       In February 2007, seven months before charges were

preferred against Lloyd, the seized clothing was sent to the

United States Army Criminal Investigation Laboratory (USACIL)

for DNA comparison testing.   In order to conduct the DNA

testing, the lead biologist at the lab took five cuttings from

the shirt.   The test results revealed that Lloyd’s shirt had

eight blood stains, all of which contained Jance’s DNA.     While

James’s jeans had one blood stain, there was no DNA match with

any of the victims’ blood.

       The charge and its specifications were referred on October

31, 2007.    On January 28, 2008, Lloyd’s defense counsel filed a

request for expert assistance in the form of a blood spatter

expert with the convening authority.   After the convening

authority denied the request, defense counsel renewed their

request in a motion to the military judge.   In the motion

defense counsel argued:

       15. A forensic scientist is relevant and necessary
       because the government intends to present testing
       results on DNA as evidence of guilt. It is

4
  When asked if there were blood specks on the shirt, SA
Williamson testified that it was “[d]iscolor[ed].”

                                  6
United States v. Lloyd, No. 09-0755/AF

     anticipated that the government’s expert witness will
     discuss the location of the blood on the shirt and who
     matched the DNA contained on the shirt. DNA analysis
     can only confirm that genetic makeup of physical
     evidence, not how it came to be on the evidence
     seized. As a result of that presentation of evidence,
     the defense is free to explore theories of the case
     that the government may not be pursuing as it pertains
     to this relevant physical evidence. That would
     include exploring all possibilities as to how the
     blood came to be on the shirt that SrA Lloyd was
     wearing at the time of the altercation. There are no
     witnesses in this case who can testify to seeing SrA
     Lloyd stab anyone. The case hinges upon an alleged
     confession to an interested party and on blood
     evidence on SrA Lloyd’s clothing. The consultant
     currently provided to the defense is not qualified to
     provide information or testify as to bloodstain
     spatters. . . .

     16. To the extent that SrA Lloyd was apparently in
     the proximity of the area where the altercation
     occurred, the defense must understand and potentially
     present expert testimony on the manner in which blood
     spatters from a stab wound. Depending on a number of
     factors which the defense intends to pursue through an
     expert, blood may spatter a significant distance from
     a stab wound. For this reason, presence of an alleged
     victim’s blood on the clothing may be far less
     significant than intuition, or even theories the
     government intends to explore, suggests. To mount an
     effective defense, the defense must understand the
     physics of bloodstain patterns to either rule out or
     present such a theory. This is crucial to testing the
     government’s theory of the case and for the
     presentation of evidence on behalf of SrA Lloyd.
     Neither member of the defense has the requisite
     training or experience to understand this complex
     field without the assistance of an expert.

     The Government responded that the defense failed to

articulate a real probability that their requested expert would

be of assistance and failed to meet the three-pronged Gonzalez

test for expert assistance.   The military judge denied the



                                 7
United States v. Lloyd, No. 09-0755/AF

defense motion, concluding, “the defense has not shown the

requisite ‘reasonable probability’ that an expert in blood

spatter would be of meaningful assistance to the Defense as

opposed to a ‘mere possibility.’”    The military judge went on to

say “[n]otwithstanding that the Defense may have met the second

and third prong of Gonzalez this Court determines that a blood

spatter expert’s assistance is not ‘needed’ as intended by

Gonzalez, supra.”5

     At trial the Government presented testimony from James,

Jance, Gee, and Soto.   James, Gee, and Soto testified under a

grant of immunity.   The defense case included testimony from a

woman who witnessed the fight and who claimed that she had seen

a person matching James’s description making a stabbing motion

towards Jance but did not see a knife.    The Government attacked

the credibility of this witness on cross-examination by raising

the fact that her testimony was different from the statement she

gave police the day after the incident.   The defense also

presented testimony from an acquaintance of James and from

James’s former stepfather, with whom James had lived for sixteen

years, each of whom characterized James as untruthful.   The

defense also presented favorable witness testimony to show

5
  There was no oral argument on the motion and although the
record suggests that there may have been some discussion of the
motion in a pretrial Rule for Courts-Martial (R.C.M.) 802
conference, there is no transcript of that discussion. Our



                                 8
United States v. Lloyd, No. 09-0755/AF

Lloyd’s character for peacefulness and submitted thirty

character letters.

     The USACIL lab results were admitted into evidence through

the stipulated testimony of Deborah Haller, lead biologist at

USACIL.   Ms. Haller’s testimony explained that samples taken

from the shirt worn by Lloyd on the evening of the attack

matched the blood of Airman Jance.   Her tests also indicated the

presence of blood on the jeans worn by James but the blood did

not match that of any of the victims.    Haller’s stipulated

testimony also stated:

     The analysis of DNA and the blood stains on the
     physical evidence only confirms the physical presence
     of the sample and who it belonged to. It does not
     explain how the blood got on the shirt or what caused
     the presence of the blood. The presence of blood on
     SrA Lloyd’s shirt only indicates that he was in
     proximity to the individual, SrA Jance, who the blood
     came from. If the shirt had been analyzed by a blood
     stain pattern expert prior to collecting cuttings and
     swabbings for DNA analysis, such an expert may have
     been able to draw conclusions about the nature of how
     the blood came to be on the shirt, whether it was
     smeared, dripped, or was airborne and possibly the
     distance that it traveled.

                            DISCUSSION

     A military judge’s ruling on a request for expert

assistance is reviewed for an abuse of discretion.   Bresnahan,

62 M.J. at 143.   “An abuse of discretion occurs when the trial

court’s findings of fact are clearly erroneous or if the court’s



review is therefore constrained to the arguments made by the
defense in their written motion.

                                 9
United States v. Lloyd, No. 09-0755/AF

decision is influenced by an erroneous view of the law.”    United

States v. Freeman, 65 M.J. 451, 453 (C.A.A.F. 2008).    “The abuse

of discretion standard is a strict one, calling for more than a

mere difference of opinion.   The challenged action must be

‘arbitrary, fanciful, clearly unreasonable,’ or ‘clearly

erroneous.’”   United States v. McElhaney, 54 M.J. 120, 130

(C.A.A.F. 2000) (quoting United States v. Miller, 46 M.J. 63, 65

(C.A.A.F. 1997); United States v. Travers, 25 M.J. 61, 62

(C.M.A. 1987)).

     “An accused is entitled to expert assistance provided by

the Government if he can demonstrate necessity.”    United States

v. Gunkle, 55 M.J. 26, 31 (C.A.A.F. 2001).    “[T]he accused has

the burden of establishing that a reasonable probability exists

that (1) an expert would be of assistance to the defense and (2)

that denial of expert assistance would result in a fundamentally

unfair trial.”    Freeman, 65 M.J. at 458.   In order to satisfy

the first prong of this test, this court applies the three-part

analysis set forth in United States v. Gonzalez, 39 M.J. 459,

461 (C.M.A. 1994).   The defense must show (1) why the expert is

necessary; (2) what the expert would accomplish for the accused;

and (3) why defense counsel is unable to gather and present the

evidence that the expert would be able to develop.    Id.

     In her ruling on the defense motion for expert assistance,

the military judge concluded “[n]othwithstanding that the



                                 10
United States v. Lloyd, No. 09-0755/AF

Defense may have met the second and third prong of Gonzalez this

Court determines that a blood spatter expert’s assistance is not

‘needed’ as intended by Gonzalez, supra.”   The Court of Criminal

Appeals agreed, holding that “trial defense counsel failed to

make the requisite showing of necessity.”   Lloyd, 2009 WL

1508442, at *2.   For purposes of this appeal, we will assume

without deciding that the defense met its burden under prongs

two and three of the Gonzalez test and review that portion of

the military judge’s ruling which found the defense did not

establish that the expert consultant was necessary.

     In the motion for blood spatter expert assistance, defense

counsel noted that the Government was likely to present an

expert witness to testify about the DNA analysis performed on

Lloyd’s shirt and the defense needed to present testimony from

their expert about how the blood came to be on Lloyd’s shirt.6

The defense argued that a blood spatter expert was necessary to

“explor[e] all possibilities as to how the blood came to be on

the shirt that SrA Lloyd was wearing at the time of the

altercation.”

     The defense’s stated desire to “explor[e] all

possibilities,” however, does not satisfy the requisite showing

of necessity.   The defense has the burden to show that there is



6
  While the defense was provided with a DNA expert, they did not
challenge the DNA testimony.

                                11
United States v. Lloyd, No. 09-0755/AF

more than the “mere possibility of assistance from a requested

expert.”   Bresnahan, 62 M.J. at 143 (emphasis added) (citation

and quotation marks omitted).   The defense must show a

“reasonable probability” the expert would assist the defense and

that denial of the expert would result in an unfair trial.    Id.

(emphasis added).

     Before the military judge the defense also argued that they

needed to “understand and potentially present expert testimony

on the manner in which blood spatters from a wound” and

“[d]epending on a number of factors which the defense intends to

pursue through an expert, blood may spatter a significant

distance from a stab wound.”    The defense suggested that expert

assistance on the physics of bloodstain patterns would allow

them to “either rule out or present” a theory about the presence

of the alleged victim’s blood on Lloyd’s clothing.   However, the

defense did not specify what “theory” they sought to present.

Absent a more precise explanation of the theory they hoped to

pursue through the assistance of a blood spatter expert, we

cannot find that the military judge abused her discretion when

she denied the defense motion for expert assistance.

     This situation is clearly distinguishable from United

States v. McAllister (McAllister I), 55 M.J. 270, 276 (C.A.A.F.

2001), where we found that the military judge abused her

discretion in denying expert assistance in a case where DNA



                                 12
United States v. Lloyd, No. 09-0755/AF

analysis was the “linchpin” of the government’s case.      In

McAllister I the convening authority had already approved a DNA

expert requested by the defense, but that expert, who

specialized in medical genetics, subsequently recommended that a

forensic DNA expert experienced in Polymerase Chain Reaction

(PCR) testing be substituted.    Id. at 273.   The military judge

refused to allow the substitution even though it would not have

incurred any increased cost to the government.    Id. at 275.

After finding that the military judge abused her discretion in

denying the new expert, we remanded the case to the Court of

Criminal Appeals for additional factfinding as to possible

prejudice.7   Id. at 277.   Due to the different factual

circumstances, particularly the fact that the evidence at issue


7
  Following remand the Court of Criminal Appeals ordered a
factfinding hearing under the authority of United States v.
DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967), to determine whether
the new evidence would have changed the result of the initial
trial. United States v. McAllister (McAllister II), No. ARMY
9601134, 2003 CCA LEXIS 440, at *26 (A. Ct. Crim. App. Dec. 9,
2003) (memorandum opinion on remand). The DuBay judge found
that the new evidence would not have changed the member’s
findings and the Court of Criminal Appeals affirmed that
determination. United States v. McAllister (McAllister III),
No. ARMY 9601134, 2005 CCA LEXIS 561, at *31 (A. Ct. Crim. App.
Oct. 28, 2005) (memorandum opinion on remand). McAllister then
appealed to this court a second time arguing that the military
judge and the Court of Criminal Appeals erred in finding that
the error was harmless. Finding that the error was not harmless
beyond a reasonable doubt we reversed the Court of Criminal
Appeals. United States v. McAllister (McAllister IV), 64 M.J.
248, 253 (C.A.A.F. 2007). In his brief, Lloyd relied on
McAllister IV, but that case dealt with the issue of prejudice,
not whether the military judge erred in denying expert
assistance, which was addressed in McAllister I.

                                 13
United States v. Lloyd, No. 09-0755/AF

implicated the “linchpin” of the government’s case, McAllister I

lends little support for Lloyd’s position.

     In their brief and at oral arguments before this court,

appellate defense counsel presented several new and more

detailed arguments in support of the expert assistance sought by

the defense at trial.   Specifically, defense counsel argued that

without the testimony of a blood spatter expert, trial defense

counsel did not know whether it was necessary to file a motion

to suppress the evidence of Lloyd’s shirt based on the fact that

the Government failed to preserve it when the USACIL biologist

cut it up for DNA analysis prior to Lloyd’s court-martial.

     Appellate defense counsel also argued that the expert’s

analysis may have established that James was the stabber or may

have exonerated Lloyd by explaining the lack of blood spatter on

the sleeves of his long-sleeved shirt.   According to the

appellate defense counsel, “the expert could have offered a

favorable opinion that, based on the locations of the wounds,

clothing each was wearing, and patterns of blood stains, the

blood on Appellant’s shirt was consistent with Appellant being

in the vicinity of the stabbing rather than being responsible

for the stabbing.”

     These appellate arguments are somewhat more compelling than

those presented at trial and had they been explicitly presented

to the military judge, they may have persuaded her that a blood



                                14
United States v. Lloyd, No. 09-0755/AF

spatter expert was necessary.   In reviewing a military judge’s

ruling for abuse of discretion, however, we review the record

material before the military judge.   We find that the military

judge did not abuse her discretion by failing to adopt a theory

that was not presented in the motion at the trial level.   See

generally United States v. Palmer, 55 M.J. 205, 207-08 (C.A.A.F.

2001) (“If defense counsel had two theories of admissibility, it

was incumbent on him to alert the military judge to both

theories. . . .”).   This is consistent with the general rule

that a legal theory not presented at trial may not be raised for

the first time on appeal absent exigent circumstances.   United

States v. Bowers, 3 C.M.A. 615, 619, 14 C.M.R. 33, 37 (1954)

(citations omitted).    Indeed, at oral argument appellate defense

counsel conceded that the defense motion for expert assistance

“could have been more articulate.”

                             CONCLUSION

     The military judge did not abuse her discretion when she

denied the defense motion for expert assistance in the form of a

blood spatter expert.   The decision of the United States Air

Force Court of Criminal Appeals is affirmed.




                                 15
United States v. Lloyd, No. 09-0755/AF


     EFFRON, Chief Judge, with whom BAKER, Judge, joins
(dissenting):

     Appellant made a specific request for expert assistance

necessary for his defense on a central issue in a closely

contested case.    The military judge erred in denying the defense

the equal opportunity to obtain evidence and witnesses

guaranteed by Article 46 of the Uniform Code of Military Justice

(UCMJ), 10 U.S.C. § 846 (2006).   For the reasons set forth

below, I respectfully dissent from the majority opinion’s

decision to affirm the findings and sentence.

     The charges against Appellant arose from a barroom

altercation.   During the evening of the incident, Appellant’s

civilian acquaintance, Stafford Joseph James Jr., initiated the

altercation by confronting Airman Jance about a perceived

insult.   The confrontation degenerated into a fight between

James and Jance.   Airman Gee joined Airman Jance in the fight

with James.

     Up to that point, Appellant had not been involved in the

altercation.   Eventually Appellant walked toward the fighters,

and was intercepted by Airman Soto, who threw Appellant to the

floor, and a fight ensued.   All the fighters were in close

proximity.

     After a brief period, roughly fifteen seconds, the bar’s

bouncers broke up the fight.   Appellant and James left through
United States v. Lloyd, No. 09-0755/AF


one door, while Airmen Jance, Gee, and Soto left through a

separate door.   Outside the bar, the three airmen noticed that

they had been stabbed.

     Who inflicted the wounds on the three Airmen?       Was it

Appellant, or was it his civilian acquaintance, Stafford Joseph

James?   The three victims stated that they did not feel stab

wounds during the fight, and they had not seen a knife during

the fight.   None of the witnesses to the incident saw a knife,

and no knife has been recovered.       Only one of the three --

Airman Soto -- recalled being touched by Appellant.      Two of the

three -- Airman Jance and Airman Gee -- recalled fighting with

James, but did not recall seeing Appellant.      A person who

witnessed the fight recalled seeing an individual wearing the

same attire as James making stabbing motions toward Airman Jance

during the fight.

     Stafford Joseph James, the person who initiated the

altercation, became the primary source of evidence against

Appellant.   When James heard on the news that the local police

were looking for suspects in the incident, James called the

police department to report that Appellant was the perpetrator.

According to James, Appellant told James about the stabbings

after the incident.   The police obtained a shirt that James

identified as having been worn by Appellant during the fight.     A

subsequent DNA analysis of the shirt provided by James


                                   2
United States v. Lloyd, No. 09-0755/AF


identified a match to Airman Jance’s blood.    James stated that

his own shirt was “fairly saturated” with blood, but that he

threw it away, and it was never tested for a DNA match with the

victims’ blood.   James also provided the police with a pair of

pants, stating that he wore the pants during the fight.

Subsequent testing identified a single spot of blood on the

pants, but the blood did not match the DNA of any of the

victims.   Later, James would testify at trial that his pants

were soaked in blood through to his boxers, which raised

questions at trial as to whether the pants he provided to the

police, with the single spot of blood, were in fact the pants

that he wore during the fight.

     The investigation led to charges that Appellant had stabbed

the three Airmen with a knife.    From the outset, the defense

sought expert assistance to address the central question raised

by the charges -- who inflicted the knife wounds?    In the

military justice system, the prosecution and the defense “shall

have equal opportunity to obtain witnesses and evidence.”     Rule

for Courts-Martial (R.C.M.) 703(a); see Article 46, UCMJ.     Prior

to trial, the defense counsel asked the convening authority to

appoint a blood spatter expert to provide assistance to the

defense.   See R.C.M. 703(d).    The convening authority denied the

request.




                                   3
United States v. Lloyd, No. 09-0755/AF


     At trial, the defense moved that the military judge approve

the appointment of a blood spatter expert to assist the defense.

The defense motion noted that the Government planned to present

the results of DNA testing to show the genetic identity of blood

on Appellant’s shirt.   The defense emphasized the difference

between identification of genetic identity and explanation of

the cause of blood spattering on the shirt:

     DNA analysis can only confirm that genetic makeup of
     physical evidence, not how it came to be on the evidence
     seized. . . . [T]he defense is free to explore theories of
     the case that the government may not be pursuing . . .
     [and] explor[e] all possibilities as to how the blood came
     to be on the shirt that SrA Lloyd [Appellant] was wearing
     at the time of the altercation.

The defense explained why the DNA expert provided by the

Government would not suffice with respect to identifying the

circumstances that led to the bloodstain on Appellant’s shirt:

     There are no witnesses in this case who can testify to
     seeing SrA Lloyd stab anyone. The case hinges upon an
     alleged confession to an interested party and on blood
     evidence on SrA Lloyd’s clothing. The [DNA] consultant
     currently provided to the defense is not qualified to
     provide information or testify as to bloodstain patterns.

The defense also explained the specific, highly relevant

analysis that could be provided by a blood spatter expert:

     [T]he defense must understand and potentially present
     expert testimony on the manner in which blood spatters from
     a stab wound. . . . [B]lood may spatter a significant
     distance from a stab wound. . . . To mount an effective
     defense, the defense must understand the physics of
     bloodstain patterns to either rule out or present such a
     theory.



                                 4
United States v. Lloyd, No. 09-0755/AF


     The military judge denied the motion, concluding that the

defense had shown only a “mere possibility” that an expert would

provide meaningful assistance, which fell short of the

requirement to show a “reasonable probability” of necessity

under United States v. Gonzalez, 39 M.J. 459, 461 (C.M.A. 1994).

United States v. Bresnahan, 62 M.J. 137, 143 (C.A.A.F. 2005).

The case then proceeded to trial.    The defense presented the

theory that the bloodstain on the shirt did not prove that

Appellant caused the bleeding, but was forced to do so without

expert testimony regarding the potential reasons for the blood

spatter on his shirt.

     The majority opinion would affirm on the ground that the

defense motion established only a “mere possibility” that an

expert was necessary.   United States v. Lloyd, __ M.J. __ (12)

(C.A.A.F. 2010).   I respectfully disagree.   The defense’s motion

explained the need for an expert in clear and compelling terms:

(1) no witnesses saw the Appellant stab anyone; (2) the primary

evidence against Appellant consisted of statements by a person,

Stafford Joseph James, interested in the outcome of the

investigation; (3) the expected DNA testimony, and the DNA

expert provided to the defense, could only establish the genetic

source of the bloodstain on Appellant’s shirt and could not

explain the physics of what may have caused the blood to spatter

on the shirt; and (4) expert assistance would enable the defense


                                 5
United States v. Lloyd, No. 09-0755/AF


to determine whether expert testimony would be available to

explain that the bloodstain could have been caused by a wound

producing a spatter emanating a significant distance from

Appellant’s location in the altercation.   The facts proffered in

the defense motion demonstrated that a “reasonable probability

exist[ed] ‘both that an expert would be of assistance to the

defense and that denial of expert assistance would result in a

fundamentally unfair trial.’”   Bresnahan, 62 M.J. at 143

(quoting Gunkle, 55 M.J. at 26, 31 (C.A.A.F. 2001)).

     Who stabbed the three airmen?   No one saw any stabbing.     No

one saw a knife.   None of the victims felt any stabbing during

the altercation.   Was it Stafford Joseph James, the person who

started the altercation, fought with two of the victims,

destroyed his own blood-soaked shirt before it could be tested,

whose pants did not match his previous testimony and had no

blood from the altercation on him, did nothing to report the

incident until he heard about the police investigation, and then

immediately placed the blame on Appellant?   Or was it Appellant,

who belatedly entered the altercation, was identified as being

in a fight with only one victim, and whose admissions were

attributable to Stafford Joseph James?

     The responsibility for sorting out the facts rested with

the court-martial panel.   The opportunity to present evidence

raising reasonable doubt about the Government’s case rested with


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United States v. Lloyd, No. 09-0755/AF


the defense.   The opportunity for the defense to determine

whether such evidence exists in the form of expert testimony is

guaranteed by Article 46, UCMJ, and R.C.M. 703.   In this case,

the convening authority erred in denying Appellant the

opportunity to obtain such assistance, and the military judge

erred in denying the defense motion for such assistance.    As a

result, the defense was compelled to rely on arguments by

counsel drawing inferences from lay testimony without the

benefit of scientific evidence regarding the blood spatter

patterns.   In a close case, the defense was denied the

opportunity to explore the potential for expert testimony on the

critical issue of guilt or innocence.    See Gunkle, 55 M.J. at

32.   I would set aside the findings and sentence and order

further proceedings to ascertain whether Appellant was

prejudiced by the failure to provide the requisite expert

assistance.    See United States v. McAllister, 55 M.J. 270, 276

(C.A.A.F. 2001).




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