

   
   
   
   U.S. v. Gray



United States, Appellee
v.
Ronald A. GRAY, Specialist Four
U.S. Army, Appellant
 
No. 93-7001
CMR No. 8800807
 
United States Court of Appeals for the Armed
Forces
Argued March 7, 1995
Reargued December 17, 1996
Decided May 28, 1999

SULLIVAN, J., delivered the opinion of the
Court in which CRAWFORD and GIERKE, JJ., joined. EFFRON, J., filed a dissenting
opinion in which COX, C.J., joined.
 


Counsel
For Appellant: Captain Silas R. Deroma
(argued and reargued) and Major Michael A. Egan (reargued); Colonel
Stephen D. Smith, Colonel John T. Phelps II, and Captain
Christopher W. Royer (on brief); Captain Michael E. Hatch and
Captain
Michael E. Smith.
For Appellee: Captain John G. Giovannelli
(argued) and Major Lyle D. Jentzer and Captain Steven H. Levin (reargued);
Colonel
John M. Smith, Lieutenant James L. Pohl, Lieutenant Colonel Eva M. Novak,
and Captain Michael E. Mulligan (on brief); Colonel Dayton M. Cramer,
Major Joseph C. Swetnam, and Captain Glenn L. Kirschner.
Military Judge: Raymond C. McRorie
 


THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.



Index of Issues


Service  Connection (Page 16)
I  Review in
favorem vitae-application of (Page 17)
II Unanimous vote
and review in favorem vitae by CCA in capital case (Page 18)
III Denial of Petition
for New Trial based on organic brain damage (Page 19)
IV Death sentence
invalid because panel misinformed about mental condition at time of offenses
(Page 25)
V Denial of Psychiatric
Expert (Page 29)
VI Failure of DC
(1) to investigate mitigating
circumstances (Page 35)
(2) to challenge competence
of defense experts (Page 38)
(3) to present an available
defense (Page 39)
(4) to present adequate case
on sentencing (Page 39)
VII Denial of Funding
Motion (Page 40)
VIII Denial of
Funding by TJAG in this case but not in 2 others - effect of (Page 40)
IX TJAG Policy Memo
re funding - validity of (Page 40)
X Use of statements
made during state-court guilty-plea inquiry as violating Fifth Amendment
(Page 51)
XI Use of those statements
as violation of civilian plea agreement (Page 56)
XII CMR treatment
of issue regarding use of statements  validity (violation of Article 31)
(Page 57)
XIII Failure of
counsel to limit use of statements to use in civilian court (Page 58)
XIV Prejudicial
pretrial publicity (Page 62)
XV Election of Forum
- knowing and intelligent (Page 67)
XVI Denial of investigative
assistance (Page 69)
XVII Challenge
for cause - MSG McCormick (Page 75)
XVIII Challenge
for Cause - CSM Woods (Page 75)
XIX Abuse of militarys
peremptory  challenge procedure (Page 77)
XX Failure to comply
with Batson rule (Page 78)
XXI Peremptory challenge
based on scruples against death penalty (Page 78)
XXII Gruesome photographs
(page 86)
XXIII Nondisclosure
of exculpatory information (Registered Source) (Page 87)
XXIV Denial of
mistrial based on comment on appellants silence (Page 95)
XXV Exclusion at
sentencing of evidence on appellants background (Page 97)
XXVI Multiplicity
of larceny and burglary (Page 106)
XXVII Double counting
of aggravating factors (Page 107)
XXVIII Instruction
on meaning of "substantially outweighed" (Page 113)
XXIX No statement
that finding regarding "substantially outweighed" was unanimous (Page 114)
XXX Decision on
"substantially outweighed" as requiring finding beyond a reasonable doubt
(Page 115)
XXXI No instruction
on absolute discretion not to impose death sentence (Page 115)
XXXII Validity
of aggravating factor regarding pain and suffering (RCM 1004(c)(7)(I))
(Page 117)
XXXIII Deliberating
on sentence during recess (Page 119)
XXXIV Abatement
of proceedings because of appellants drug overdose (Doxipin) (Page 123)
XXXV Denial of
indictment - Fifth Amendment (Page 124)
XXXVI Denial of
right to jury trial - Article III (Page 124)
XXXVII Requirement
of trial by members in capital case as denial of reliable verdict and due
process (Page 125)
XXXVIII Prohibition
against guilty plea in capital case - denial of mitigating factor (Page
125)
XXXIX Panel of
less than 12 as denial of due process (Page 125)
XL Exclusion of females
from panel-selection pool (Page 126)
XLI Exclusion of
enlisted members of same unit as injecting improper criterion (enlisted
status) for selecting members (Page 126)
XLII Questioning
by panel members as denial of impartial jury (Page 129)
XLIII MJ as advocate
for Government (Page 130)
XLIV Failure of
military counsel to advise appellant of lack of experience or training
in capital cases (Page 136)
XLV MJ gave misleading
advice as to defense counsels qualifications (Page 136)
XLVI Need for minimum
standards for defense counsel in capital cases (Page 136)
XLVII Lack of
continuity of counsel or of capital-qualified counsel (Page 137)
XLVIII Denial
of review by Article III court (Page 142)
XLIX No power of
Article I court to review constitutionality of Code or Manual provisions
(Page 142)
L Failure to specify
which offenses carried death penalty and to instruct that a death sentence
could not be imposed based on aggregate effect of all offenses (Page 142)
LI Lack of meaningful
distinction between premeditated and unpremeditated murder (Page 144)
LII Sufficiency
of murder instructions on distinction between premeditated and unpremeditated
murder (Page 145)
LIII Sufficiency
of instruction on reasonable doubt (Page 146)
LIV Instructions
required vote on most serious offense first (Page 148)
LV Senior member
as presiding officer - effect on impartiality of members (Page 150)
LVI Failure to instruct
that "substantially outweighed" finding must be unanimous (Page 151)
LVII Military death-penalty
scheme as violation of Furman and separation of powers (Page 152)
LVIII Lack of
Manual protections against racially motivated imposition of death sentence
(Page 153)
LIX Failure to instruct
that race could not influence sentencing (Page 153)
LX Denial of equal
protection because civilian could not get death sentence in federal court
for identical criminal conduct (Page 154)
LXI Selection of
court members by convening authority to serve in capital case where offenses
were subject to trial by jury in state court (Page 155)
LXII Victim-impact
statements (Page 156)
LXIII Absence
of signatures of all members on sentence work sheet or right to poll members
in capital case (Page 157)
LXIV Lack of authority
of MJ to adjust or suspend improper death sentence (Page 158)
LXV Denial of right
to jury from cross-section of community (Page 158)
LXVI Appellants
death sentence as cruel and unusual punishment (Page 159)
LXVII Cumulative
errors not harmless beyond a reasonable doubt (Page 159)
LXVIII Proportionality
review insufficient (Page 160)
LXIX Death sentence
inappropriate in this case (Page 165)
LXX Grostefon issues
(Page 166)
 
 
Judge SULLIVAN delivered the opinion
of the Court.
During December of 1987 and the first
4 months of 1988, appellant was tried by a general court-martial composed
of officer and enlisted members at Fort Bragg, North Carolina. Contrary
to his pleas, he was found guilty of the premeditated murder of Ms. Kimberly
Ann Ruggles and of Private Laura Lee Vickery-Clay, and the attempted premeditated
murder of Private Mary Ann Lang Nameth. See Arts. 118 and 80, Uniform Code
of Military Justice, 10 USC §§ 918 and 880, respectively. He
was also found guilty of rape (3 specifications), robbery (2 specifications),
and forcible sodomy (2 specifications) with respect to the above victims,
as well as burglary and larceny of property of another person, in violation
of Articles 120, 122, 125, 121, and 129, UCMJ, 10 USC §§ 920,
922, 925, 921, and 929, respectively. On April 12, 1988, he was sentenced
to death, a dishonorable discharge, total forfeitures, and reduction to
Private E-1. On July 29, 1988, the Commanding General of the 82d Airborne
Division approved the sentence.
The record of appellants trial was
then forwarded to Defense Appellate Division and received by that organization
on August 8, 1988. Counsel filed initial pleadings with the Court of Military
Review1
on September 15, 1989. On February 13, 1990, that court ordered a sanity
board, which, on June 30, 1990, found that appellant was mentally responsible
at the time of the offense and that he was mentally competent to understand
his trial and the present appellate proceedings. On July 20, 1990, the
Government Appellate Division answered appellants assignment of errors.
On December 27, 1990, appellant filed a motion
with the Court of Military Review requesting that court to order the Government
to provide $15,000.00 for an expert psychiatrist, a death-penalty-qualified
attorney, and an investigator. Oral arguments were heard on the motion
in January 1991. On March 12, 1991, the Court of Military Review denied
the motion. 32 MJ 730. Appellant renewed the request for a psychiatrist
and an investigator on August 7, 1991, but the Court of Military Review
denied it on August 23, 1991. On September 12, 1991, appellant filed a
writ-appeal petition requesting that this Court order the Government to
provide $10,000 and an emergency stay of the proceedings before the Court
of Military Review. On October 18, 1991, this Court denied the writ-appeal
petition and the stay application. 34 MJ 164 (summary disposition).
On December 16, 1991, appellant filed a motion
with the Court of Military Review requesting that court to order additional
medical and neuropsychological tests be performed by military authorities.
On December 31, 1991, that court granted appellants request and ordereda
Magnetic Resonance Imaging (MRI) scan of the brain; a 20-channel scalp
electrode, sleep-deprived EEG; and a SPECT scan of his brain, as well as
intellectual, neuropsychological, academic, psychological, and personality
tests. On February 18, 1992, a report based on these tests was completed
by Fred H. Brown, Jr., Captain, Ph.D., a clinical neuropsychologist from
Womack Army Medical Center, Fort Bragg. He later opined in an affidavit
filed with the appellate court below that appellant was sane at the time
of the offense and during these proceedings. On March 9, 1992, counsel
filed a petition for new trial based on newly discovered evidence of lack
of mental responsibility.
On February 26, 1992, appellant filed a supplementary
assignment of errors, to which the Government responded on March 27, 1992.
The Court of Military Review heard oral argument on April 8, 1992, and
on December 15, 1992, denied the petition for new trial and affirmed the
findings and sentence. 37 MJ 730, 734-35, 742-43, 749. On December 30,
1992, appellant filed a motion renewing his request for funds for an expert
investigator and a behavioral neurologist. Appellant filed a petition for
reconsideration of this decision on January 4, 1993. The Court of Military
Review heard oral arguments on the motion for funding on January 21, 1993,
and denied the motion for funding and the petition for reconsideration
on January 22, 1993. On February 11, 1993, appellant filed a motion and
suggestion for reconsideration by the court sitting en banc of the
denial of funding, and a motion and suggestion for reconsideration by the
court sitting en banc of the decision of December 15, 1992. On March
11, 1993, the court denied both motions and the suggestions for reconsideration
en
banc, but granted a motion allowing appellant to file a supplemental
assignment of errors (XXVIII-LVI). The Government answered this assignment
of errors on April 12, 1993. On June 9, 1993, the Court of Military Review
again affirmed the findings and sentence. 37 MJ 751. Appellant filed a
motion for reconsideration on June 28, 1993, which the court denied on
June 30, 1993.
This case is before our Court for mandatory
review pursuant to Article 67(a)(1), UCMJ, 10 USC § 867(a)(1) (1989).
On July 2, 1993, this Court ordered appellant to file his final brief by
August 31, 1993, but counsel did not do so until June 30, 1994. On September
10, 1993, appellant moved this Court for funding of an expert investigator
and a behavioral neurologist whom he stated were necessary for appellant
to perfect his appeal to this Court. The Government filed its opposition
on September 17, 1993. On November 24, 1993, lead defense appellate counsel,
Captain Michael Smith, filed a motion to withdraw from appellate representation
because he was being transferred. On April 7, 1994, this Court granted
Captain Smiths motion. 40 MJ 14.
This Court denied appellants motion for funding
on April 25, 1994, without prejudice to appellants raising in the ordinary
course of appellate review whether the Court of Military Review erred in
upholding denial of the funding. 40 MJ 25. On June 30, 1994, appellant
filed his final brief; however, the index was not received until July 11,
1994. The Government filed its answer to final brief on August 26, 1994,
and appellants reply was received on October 7, 1994. Oral argument was
first heard in this case on March 7, 1995.
On May 4, 1995, defense appellate counsel,
Captain Royer, moved to withdraw from appellate representation because
he was being transferred; he also moved to admit an affidavit by appellant
stating that he wished Captain Royer "be released from his representation
of" appellant. This Court granted both motions on May 19, 1995. 43 MJ 129.
On June 3, 1996, the Supreme Court issued its
decision in Loving v. United States, 517 U.S. 748, 116 S.Ct. 1737,
135 L.Ed. 2d 36. On November 20, 1996, based on Justice Stevens separate
opinion in Loving, 517 U.S. at 774-75, 116 S.Ct. at 1751-52, appellants
counsel moved to file a supplemental issue challenging the jurisdiction
of his court-martial. On December 4, 1996, this motion was granted. 46
MJ 196. On December 13, 1996, the Government filed its Answer to Appellants
Supplemental Issue. Oral argument was held again in this case on December
17, 1996.

FACTUAL BACKGROUND OF THE CRIMES
Before turning to the issues of this capital
case, it is important to view this case and its issues in the factual context
of appellants crimes. In January 1987, appellant was identified and arrested
for the rape of a woman in the vicinity of Fairlane Acres, a trailer park
near Fort Bragg, North Carolina. The next day the body of Ms. Kimberly
Ann Ruggles was found near that area on Fort Bragg. "She had received multiple
stab wounds" and had "suffered bruises on her eyebrow, bruises on her nose,
and a laceration on her lip." She had been raped and anally sodomized.
Evidence in her vehicle and in his possession implicated appellant.
Later the same month, the body of Private (PVT)
Laura Lee Vickery-Clay was found. "She had been shot four times (while
she was alive), in the neck, forehead, chest, and back of the head. Also,
she had suffered blunt force trauma to the right cheek, the left side of
her face, around her left eye, her left breast, abdomen, and both legs
and arms." PVT Vickery-Clay "had been raped and anally sodomized." Evidence
on her car and the murder weapon implicated appellant.
Subsequent media coverage of appellants arrest
for these crimes produced another victim (PVT Nameth), who recognized his
face from photographs of appellant on television and in the newspaper.
She reported that appellant had "raped her, and stabbed her repeatedly
in the neck and side"; she "suffered a laceration of the trachea and a
collapsed or punctured lung." 37 MJ at 736.
The above crimes were tried by court-martial
which found appellant guilty and gave him the death penalty. Appellant
was also convicted in a North Carolina state court of the murders and rapes
of two other young women, and he was given sentences of life in prison.
Appellant entered guilty pleas to the murders tried in State court. See
37 MJ at 733 n.1.

INTRODUCTION
Article 67(a)(1994) provides that the United
States Court of Appeals for the Armed Forces shall review the record in
all cases in which the sentence, as affirmed by a Court of Criminal Appeals,
extends to death. Appellant was sentenced to death by the members of his
court-martial, and this sentence was approved by the convening authority
and affirmed by the Court of Military Review (now the Court of Criminal
Appeals). Defense appellate counsel has raised 70 issues for this Court
to consider with respect to the findings of guilty and the sentence in
this case. Appellant himself has personally assigned 31 more issues for
review.
This is a long opinion. It is long because
we feel it is necessary to explain our resolution of the numerous issues
involved in this case. Many of these issues raise systemic challenges to
the military justice system in general or its capital sentencing procedures
in particular which we have resolved in our previous decisions. The remaining
issues concern application of these procedures in appellants case. Except
for the supplemental issue, which we consider first, we will turn our attention
to the issues in the order raised by appellant.




Supplemental Issue
WHETHER APPELLANT WAS DENIED DUE PROCESS OF
LAW IN VIOLATION OF THE FIFTH, SIXTH, AND EIGHTH AMENDMENTS BECAUSE HE
WAS TRIED BY COURT-MARTIAL FOR CAPITAL MURDER DURING PEACETIME.



The thrust of appellants argument is that the
decision of the Supreme Court in Solorio v. United States, 483 U.S.
435 (1987), upholding court-martial jurisdiction solely on the basis of
an accuseds status as a servicemember, without considering the service
connection of those offenses, applies only in non-capital cases. He cites
Justice Stevens concurring opinion in Loving, 517 U.S. at 774,
116 S.Ct. at 1751, where he stated that "[t]he question whether a service
connection requirement should obtain in capital cases is an open one[.]"
Appellant finally contends that his capital-murder charges were not shown
to be service connected.
We agree with Justice Stevens that the question
whether Solorio applies in a capital case is an important question.
However, our particular response to appellant is that this question
need not be decided in his case. We note that appellant was a member of
the military; one of his murder victims was a member of the military and
the other was a civilian who did business on post; and both their bodies
were found on post. Finally, we agree with the Government that there was
overwhelming evidence presented in this case that the murders were committed
on post. This is sufficient service connection even under OCallahan
v. Parker, 395 U.S. 258, 272 (1969), which Solorio overruled,
483 U.S. at 436, to warrant trial by court-martial. See generally
Relford v. Commandant, 401 U.S. 355, 369 (1971) ("a servicemans crime
against the person of an individual upon the base . . . is service connected").
Accordingly, assuming this jurisdictional requirement applies in capital
courts-martial, we hold that it was satisfied in appellants case.




ISSUE I
WHETHER MILITARY DUE PROCESS AND UCMJ
ARTICLES 66 AND 67 REQUIRE THE COURT OF MILITARY
APPEALS[2] AND THE COURTS
OF MILITARY REVIEW TO REVIEW ALL CAPITAL CASES IN FAVOREM
VITAE SINCE CAPITAL LITIGATION IS IN ITS INFANCY IN THE MILITARY
JUSTICE SYSTEM AND TRIAL AND APPELLATE DEFENSE COUNSEL LACK THE TRAINING
AND EXPERIENCE NECESSARY TO PRESERVE THE RECORD ON ALL ISSUES AND PREVENT
APPLICATION OF WAIVER.

ISSUES II
WHETHER A FACTFINDING COURT OF MILITARY REVIEW
MUST UNANIMOUSLY AGREE ON BOTH FINDINGS OF GUILT AND THE SENTENCE IN A
CAPITAL CASE AND MUST APPLY A POLICY OF IN FAVOREM VITAE.



The first issue asks us to specifically mandate
an "in favorem vitae" [in favor of life] policy for appellate review
of capital cases in the military justice system. In other words, appellant
asks this court to eschew waiver and overlook any procedural defaults by
his counsel at trial in reviewing his death sentence. See Smith
v. Murray, 477 U.S. 527, 539 (1986) (Stevens, J., dissenting).
We rejected such a request in United States v. Loving, 41 MJ 213,
266 (1994), affd on other grounds, 517 U.S. 748, 116 S.Ct. 1737
(1996). For the reasons stated in our Loving decision, we adhere
to that rejection today. The second issue has not been specifically briefed
by defense appellate counsel, but we otherwise conclude that it has no
legal merit. See Art. 66, UCMJ, 10 USC § 866 (1989); cf.
Art. 52, UCMJ, 10 USC § 852.




ISSUE III
WHETHER THE ARMY COURT OF MILITARY REVIEW ABUSED
ITS DISCRETION IN DENYING SPC GRAYS PETITION FOR NEW TRIAL BASED ON NEWLY
DISCOVERED EVIDENCE OF ORGANIC BRAIN DAMAGE.



Article 73, UCMJ, 10 USC § 873 (1968), provides:



§ 873. Art. 73. Petition for a new
trial
At any time within two years after approval
by the convening authority of a court-martial sentence, the accused
may petition the Judge Advocate General for a new trial on the grounds
of newly discovered evidence or fraud on the court. If the accuseds
case is pending before a Court of Military Review or before the Court of
Military Appeals, the Judge Advocate General shall refer the petition to
the appropriate court for action. Otherwise the Judge Advocate General
shall act upon the petition.



(Emphasis added.) See RCM 1210(f)(2), Manual
for Courts-Martial, United States, 1984. Appellant presented such a petition
to the Court of Military Review which in turn denied it. 37 MJ at 742-43.
We review such decisions by a Court of Military Review on a clear-abuse-of-discretion
standard. See generally United States v. Williams,
37 MJ 352, 356 (CMA 1993); S. Childress and M. Davis, 2 Federal Standards
of Review §
11.38 at 11-158 (2d ed. 1992) (clear-abuse-of-discretion standard).
The appellate court below noted the legal requirements
which must be met to warrant a new trial under Article 73. Relying on RCM
1210(f)(2), it stated that appellant must show:



(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
considered by a court-martial in
the light of all other pertinent
evidence, would probably produce a
substantially more favorable result
for the accused.



37 MJ at 742. We agree with the Court of Military
Review that this is a proper explanation of Article 73. See Williams,
supra
at 356. Moreover, we have previously commented on what constitutes an abuse
of discretion in this context:



Legal error (i.e., an abuse of discretion)
occurs if the findings of fact upon which he [the judge] predicates his
ruling are not supported by evidence of record; if incorrect legal principles
were used by him in deciding this motion; or if his application of the
correct legal principles to the facts of a particular case is clearly unreasonable.
United
States v. Travers, 25 MJ 61, 62-63 (CMA 1987); United States v.
Rosser, 6 MJ 267, 271 (CMA 1979). See United States v. Thomas,
3 USCMA 161, 11 CMR 161 (1953).



37 MJ at 356.
Turning to the present case, we note that the
appellate court below essentially summarized the evidence offered by appellant
as "newly discovered," as follows:



In his petition the appellant relies heavily
on an affidavit by Dr. Jonathan Pincus, a physician specializing in neurology.
After reviewing the results of the tests and evaluations of the appellant,
Dr.
Pincus concluded that the appellant suffers from organic brain defects
that probably impaired his capacity to distinguish right from wrong and
conform his conduct to the law. Dr. Pincus did not personally examine
the appellant, nor did he review the testimony of the experts. His diagnosis
is based only upon his review of all the previous sanity evaluations and
the neurological test results.



37 MJ at 742 (emphasis added).
That court also was required to determine "beyond
a reasonable doubt" whether a reasonable factfinder, considering "the totality
of evidence, would . . . be convinced by clear and convincing evidence
that appellant lacked mental responsibility for his crimes" or should not
get the death penalty for them. See United States v. Cosner,
35 MJ 278, 281, 282 (CMA 1992), cert. denied, 510 U.S. 1085 (1994).
The Court of Military Review concluded that this post-trial medical evidence
was "not of a caliber to produce a more favorable verdict" and that they
were "convinced beyond a reasonable doubt that the panel would still have
imposed the death sentence." Id. at 743. We see no clear abuse of
discretion in this decision. See generally United States
v. McCarthy, 54 F.3d 51, 55 (2d Cir.) (no abuse of discretion to deny
new trial based on newly discovered interim psychiatric report), cert.
denied, 516 U.S. 880 (1995).
Appellant was found guilty of numerous offenses
of a heinous nature, namely two premeditated murders, one attempted murder
involving multiple stabbing of the victim, as well as rapes and forcible
sodomies. At his court-martial, he did not rely on a defense of insanity.
See
Art. 50a, UCMJ, 10 USC § 850a. However, he did introduce expert evidence
on his mental state for purposes of sentence mitigation. RCM 1001 (c)(1)(A)
and (B); as well as 1004(b)(3) and (b)(4)(c). Post-trial he has attempted
to raise the defense of insanity and introduce further mental-state mitigation
evidence by means of the written statements of two psychiatrists and the
results of further mental testing ordered by the Court of Military Review
at his request. Cf. Sawyer v. Whitley, 945 F.2d 812, 823
(5th Cir. 1991), affd on other grounds, 505 U.S. 333
(1992).
The Court of Military Review, in its opinion
below, noted the development of evidence and other information concerning
appellants mental state. It stated:




___ ___ ___
Prior to his court-martial, two psychiatrists
and a psychologist individually examined the appellant. Based on their
evaluations, including a statement that the appellant exhibited symptoms
associated with organic involvement, the defense did not raise a sanity
issue on the merits of the trial. Since his court-martial, the appellant
has been the subject of two sanity boards and extensive neurological testing,
which the appellant contends contains the new evidence warranting a new
trial. . . .

* * *
The most recent sanity board (June 1990) concluded
that the appellants mental infirmities were not so severe as to render
him not mentally responsible. Additionally, although the members found
undifferentiated brain damage, the board reported that it does not appear
of sufficient magnitude to negate criminal responsibility. In the words
of the board, in order to warrant a finding of a severe mental defect,
there would have to be a severe organic disorder, which there is not. The
neuropsychological evaluation, ordered by this Court on 31 December 1991
and administered by Dr. Fred Brown, a clinical neuropsychologist, does
refer to evidence of organic brain damage. Nevertheless, although Dr. Brown
states he did find evidence of symptoms of an undetermined organic brain
syndrome, he did not find evidence of a psychological or personality disorder
resulting from the organic brain syndrome such that it would meet criteria
of an organic mood (thought anxiety).
More specifically, in an affidavit dated
23 March 1992 obtained by the appellee, Dr. Brown stated that despite appellants
mild organic brain damage the appellant is now, and Dr. Brown believes
was at the time of the offenses, able fully to appreciate the nature and
quality of his acts and the wrongfulness of his acts.



37 MJ at 742-43 (emphasis added).
Organic brain damage by itself does not equate
to lack of mental responsibility for ones crimes, and its discovery after
trial does not necessarily require a new trial. See Robedeaux
v. State, 908 P.2d 804, 808 n. 22 (Okl. Cr. 1995); James v. State,
489 So.2d 737, 739 (Fla. 1986), overruled on other grounds, James
v. Singletary, 957 F.2d 1562, 1574-75 (11th Cir.
1992). Moreover, the establishment of conflicting expert opinion
on an accuseds mental state does not necessarily require a rehearing.
United
States v. Van Tassel, 38 MJ 91, 96 (CMA 1993). In appellants case
the Court of Military Review pointed out that there was some evidence of
appellants organic brain damage in existence prior to this trial
and the post-trial evidence was disputed as to the extent of this damage.
More importantly, the post-trial evidence was somewhat speculative on the
effect of this mental condition on appellant at the time of these offenses
and it too was disputed. See Oats v. Singletary, 141 F.3d
1018, 1028 (11th Cir. 1998); Bryan v. Singletary, 140
F.3d 1354, 1360 (11th Cir. 1998), cert. denied, ___ U.S.
___ (Feb. 22, 1999); State v. Stuard, 863 P.2d 881, 901 (Ariz. 1992).
In these circumstances we hold that the Court of Military Review did not
clearly abuse its discretion in concluding this post-trial evidence, in
light of all other pertinent evidence in this case, would probably not
produce a substantially more favorable result for appellant at a new trial.
See
Brewer v. Reynolds, 51 F.3d 1519, 1526-27 (10th Cir. 1995), cert.
denied, 516 U.S. 1123 (1996); Robedeaux v. State,
supra.




ISSUE IV
WHETHER APPELLANT WAS CONVICTED AND SENTENCED
TO DEATH IN VIOLATION OF THE FIFTH, SIXTH, AND EIGHTH AMENDMENTS OF THE
UNITED STATES CONSTITUTION BECAUSE THE SENTENCE AND CONVICTIONS ARE FOUNDED
AT LEAST IN PART UPON MISINFORMATION OF A CONSTITUTIONAL MAGNITUDE CONCERNING
HIS MENTAL HEALTH.



Appellant grounds this attack on his conviction
primarily on the decision of the Supreme Court in Johnson v. Mississippi,
486 U.S. 578, 580, 590 (1988). There, the Supreme Court reversed a death
sentence because it was based in part on aggravating-factor evidence which
was purposefully presented to the jury and which was "materially inaccurate"
(i.e., a state conviction later reversed on appeal). Appellant argues
here that the post-trial evidence concerning his mental state at the time
of the offenses shows that his court-martial members were substantially
misinformed when they found him guilty and sentenced him to death. See
United States v. Tucker, 404 U.S. 443, 447 (1972) and Townsend v.
Burke, 334 U.S. 736 (1948) ("misinformation of constitutional magnitude"
or "materially untrue" required); see also United
States v. Mack, 9 MJ 300, 319 (CMA 1980). He also asserts that
the Court of Military Review employed the wrong legal standard in deciding
this legal issue.
Appellate defense counsel argued as follows:



[T]rial defense counsel did not present any
evidence on the merits concerning appellants mental health because they
had been informed by Drs. Armitage and Rose that there was nothing that
could be used on the merits. On sentencing, the trial counsel made repeated
arguments to the court-martial panel that appellants personality disorder
was completely insignificant and that appellant had not given the court-martial
any type of "empirical" explanation to help make some sense of the crimes
for which appellant stood convicted. (R. at 2534-37.) The wealth of evidence
in mitigation which has been uncovered following the court-martial shows
that the governments position at trial, which was urged and apparently
adopted by the panel, was incorrect and inaccurate.
There is a great difference between a personality
disorder described as "an umbrella, a nonspecific personality disorder...a
little bit of this, and a little bit of that...hes not quite normal...."
(R. at 2535), and a disorder which would cause marked cognitive impairment.
Appellants organic brain damage is a demonstrable, physical disorder of
appellants brain with broad reaching implications. (See Def. App.
Exh. H, O.) The powerful explanatory impact this evidence would have on
a court-martial cannot be ignored. See Issue III.



Final Brief at 47-48 (footnote omitted).
The Court of Military Review in resolving this
claim held that appellant had "failed to show by clear and convincing evidence
that, but for constitutional error . . . no reasonable court members would
have imposed the death penalty under the Uniform Code of Military Justice."
37 MJ at 743-44; cf. Romano v. Oklahoma, 512 U.S. 1, 11 (1994)
(Johnson does not establish per se rule of reversal of a
death sentence). Also, it rejected his argument based on Johnson v.
Mississippi, supra, because appellant had not shown the information
relied on by the court members was "incorrect." 37 MJ at 743; see Mahaffey
v. Page, 151 F.3d 671, 681 (7th Cir. 1998),
vacated as
to another issue, 162 F.3d 481 (7th Cir. 1998);
Del Vecchio
v. Illinois Dept. of Corrections, 31 F.3d 1363, 1385 (7th
Cir. 1994) (mere inaccuracy in sentencing information is not enough to
invalidate death sentence), cert. denied, 514 U.S. 1037 (1995).
As noted above, the post-trial evidence as to the extent of the organic
brain damage and its impact on appellants mental responsibility at the
time of the offenses was speculative and disputed. Cf. James,
957 F.2d at 1575 (alleged actual incompetence rather than probable incompetence).
Moreover, the court below pointed out earlier in a different context, that
"according to the appellants own brief there were clear indicators of
appellants organic brain damage . . . presented at the time of trial.
. . ." 37 MJ at 742. See Wright v. Angelone, 151 F.3d 151,
162 (4th Cir. 1998). Accordingly, we conclude that there
was no material or substantial inaccuracy in the sentencing information
established in this case by the post-trial psychiatric evidence. See
generally Brewer v. Reynolds, supra.
It is the normal rule of military appellate
practice that review of the guilt of an accused is limited to evidence
presented at trial. United States v. Bethea, 22 USCMA 223, 46 CMR
223 (1973). However, recourse to post-trial affidavits during direct review
is appropriate to decide petitions for new trial under Article 73 (see
United States v. Parker, 36 MJ 269, 270 (CMA 1993), or clarify collateral
matters such as claims of unlawful command influence or denial of effective
assistance of counsel. Id. at 271-72. Finally, this Court has approved
consideration of post-trial affidavits by Courts of Military Review on
direct review to determine whether a post-trial sanity hearing should be
ordered. See United States v. Massey, 27 MJ 371 (CMA 1989);
RCM 706 and 1203(c)(5). We have never held, however, that a post-trial
psychiatric report per se requires a new trial or a hearing under
United
States v. DuBay, 17 USCMA 147, 37 CMR 411 (1967).




ISSUE V
WHETHER APPELLANT WAS CONVICTED WITHOUT DUE
PROCESS OF LAW BECAUSE HE WAS DENIED COMPETENT PSYCHIATRIC ASSISTANCE IN
THE EVALUATION, PREPARATION, AND PRESENTATION OF HIS CASE.



Appellant challenges the findings of guilty and
his death sentence in this case on the basis that he was not provided "competent
psychiatric assistance" at his court-martial. He particularly attacks the
psychiatric assistance provided to him prior to and during trial by Doctor
Armitage, Doctor Rose, and Doctor Warren. He claims that they all misdiagnosed
him as having an unspecified personality disorder rather than organic brain
damage and failed to follow recognized standards of care in treating him.
He bases these claims on the post-trial statements of two other psychiatrists,
Doctor Pincus and Doctor Merikangas.
The Supreme Court in Ake v. Oklahoma,
470 U.S. 68, 83 (1985), stated:



We therefore hold that when a defendant demonstrates
to the trial judge that his sanity at the time of the offense is to be
a significant factor at trial, the State must, at a minimum, assure
the defendant access to a competent psychiatrist who will conduct an appropriate
examination and assist in evaluation, preparation, and presentation of
the defense. This is not to say, of course, that the indigent defendant
has a constitutional right to choose a psychiatrist of his personal liking
or to receive funds to hire his own. Our concern is that the indigent defendant
have access to a competent psychiatrist for the purpose we have discussed,
and as in the case of the provision of counsel we leave to the State the
decision on how to implement this right.



(Emphasis added.) Who is a competent psychiatrist
and what is an appropriate examination were not particularly delineated
by the Supreme Court in Ake. The Court of Military Review flatly
rejected appellants proferred "national standard of care in psychiatry"
and his argument based on this standard that his trial psychiatrists and
psychologist provided him ineffective assistance under Ake. 37 MJ
at 744-45. We agree. See Harris v. Vasquez, 949 F.2d
1497 (9th Cir. 1990), cert. denied, 503 U.S. 910 (1992); Silagy
v. Peters, 905 F.2d 986 (7th Cir. 1990), cert. denied, 498 U.S.
1110 (1991).
As a starting point, we note that prior to
his court-martial appellant was personally examined by a military forensic
psychiatrist, Colonel David Armitage. He was also personally examined by
Doctor Selwyn Rose, a civilian forensic psychiatrist, and Doctor John Warren,
a civilian psychologist. The latter two were chosen by the defense, Answer
to Final Brief at 31 n.22, and all three testified at appellants sentence
hearing. Moreover, all three were offered as qualified medical experts
by the defense and accepted as such by the judge. Clearly, these persons
were qualified experts within the meaning of Ake. See Dunn
v. Johnson, 162 F.3d 302, 308 (5th Cir. 1998); Provenzano
v. Singletary, 148 F.3d 1327, 1333 (11th Cir. 1998).
Appellants post-trial attack, however,
is on the psychiatric assistance these experts provided to the defense
in his case. See Wilson v. Greene, 155 F.3d 396, 400 (4th
Cir. 1998) Initially, he focuses on "[t]he striking disparity between the
pretrial [unspecified personality disorder] and post-conviction [organic
brain damage] evaluations." Final Brief at 52, 53. He essentially argues
that his trial experts were so wrong in their diagnosis of appellant that
they must have been incompetent or ineffective. We must reject this argument.
We initially note that divergence of opinion
among psychiatrists is not novel and does not provide a legal basis for
concluding that one or the other is performing inappropriate tests or examinations.
In Ake, the Supreme Court said: "Psychiatry is not, however, an
exact science, and psychiatrists disagree widely and frequently on what
constitutes mental illness, on the appropriate diagnosis to be attached
to given behavior and symptoms, on care and treatment, and on likelihood
of future dangerousness." See 470 U.S. at 81. In any event, four
other post-trial evaluations of appellant substantially agree with the
trial experts that appellants personality disorders, even if accompanied
by organic brain damage, did not eliminate his mental responsibility at
the time of the offenses: Doctor (PhD) Kea, Doctor (MD) Marceau, Doctor
(MD) Edwards, and Doctor (PhD) Brown. See Vickers v. Stewart,
144 F.3d 613, 615-16 (9th Cir. 1998), cert. denied, 119
S.Ct. 809 (1999). Finally, unlike the seven other experts in this
case, Doctor Pincus, the primary proponent of the organic-brain-damage
diagnosis and appellants lack of mental responsibility, did not personally
examine appellant or the record in this case. See United States
v. Wimberley, 16 USCMA 3, 8, 36 CMR 159, 164 (1966).
Nevertheless, appellant mounts a more particular
attack on his trial psychiatrists and psychologist, resting on the post-trial
affidavits of Doctor Merikangas, a civilian psychiatrist. Doctor Merikangas
posits a "national standard of care" in psychiatry and asserts that the
pretrial psychiatric assistance in appellants case failed to meet that
standard. He states in pertinent part:



9. Based upon my review of the above records,
it is my professional opinion that Mr. Gray has not yet received a psychiatric
evaluation that meets the applicable national standard of care for professional
psychiatric evaluations. Specifically, the following problems are apparent
with the psychiatric evaluations Mr. Gray has received to date:
a. the absence of a complete neurological work-up
to include a battery of blood tests and Magnetic Resonance Imaging (MRI)
scan of the brain. The absence of such a work-up in Mr. Grays case alone
violates the standard of care because of the numerous signs that point
to possible brain damage: prior head injury, the nature of the crimes committed,
the abnormal EEG results, and the history of alcohol abuse all are indicative
of the need for further diagnostic steps.
b. the absence of a thorough history of Mr.
Grays including a medical history, with particular attention on Mr. Grays
prior head injury from military parachuting, a history of any present illnesses,
a family history, and a history of his past life including development,
education, occupations and marriage.



We, like the Court of Military Review, do not
welcome descent into the "psycho-legal" quagmire of battling psychiatrists
and psychiatric opinions, especially when one side wages this war against
its own experts by means of post-trial affidavits. Harris,
949 F.2d at 1518. In any event, appellants particular claim of inadequate
psychiatric assistance we find without merit for several reasons. First,
the Government provided appellant with two qualified psychiatric experts
of his own choosing prior to trial. Loving, 41 MJ at 250-51; cf.
Smith
v. McCormick, 914 F.2d 1153, 1159 (9th Cir. 1990). Second, these defense
experts provided appellant with favorable testimony, although not perhaps
to the degree he desired. Cf. Cowley v. Stricklin, 929 F.2d
640, 645 (11th Cir. 1991). Finally, the alleged deficiencies in the trial
experts evaluations were substantially obviated by the additional testing
ordered in this case which produced substantially the same results. 37
MJ at 745; see also Fairchild v. Lockhart, 900 F.2d
1292, 1296 n.3 (8th Cir.), cert. denied, 497 U.S. 1052 (1990). Accordingly,
we conclude this issue is without merit. See generally Wilson, 155
F.3d at 400-02.




ISSUE VI
WHETHER APPELLANT WAS DENIED HIS SIXTH AMENDMENT
RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL BY TRIAL DEFENSE COUNSELS FAILURE
1) TO INVESTIGATE THE MITIGATING CIRCUMSTANCES OF APPELLANTS TRAUMATIC
FAMILY, SOCIAL, AND MEDICAL HISTORIES AND APPELLANTS INTOXICATION AT THE
TIME OF THE OFFENSES; 2) TO CHALLENGE THE PROFESSIONAL COMPETENCE OF THE
PRETRIAL EVALUATIONS OF APPELLANT BY THE TWO FORENSIC PSYCHIATRISTS AND
TO ENSURE A COMPLETE AND COMPETENT MENTAL HEALTH EVALUATION OF APPELLANT
WAS PERFORMED BEFORE TRIAL; 3) TO DEVELOP AND PRESENT AN AVAILABLE DEFENSE
ON THE MERITS; 4) TO PRESENT AN ADEQUATE CASE DURING THE SENTENCING HEARING.



Appellant relies on Strickland v. Washington,
466 U.S. 668 (1984), to assert that he was denied his constitutional right
to effective assistance of counsel. He then lists four areas in which he
contends counsels performance was deficient. Finally, he asserts that
his counsels conduct in this regard prejudiced him in a way directly leading
to his convictions and sentence to death. We disagree with appellant that
his lawyers conduct was deficient within the meaning of Strickland
v. Washington, supra.
The first part of the Strickland test
focuses on whether defense counsels performance was constitutionally ineffective.
The Supreme Court has made clear that determination of this question requires
assessment of the particular facts of a case, using "an objective standard
of reasonableness." Id. at 688 (emphasis added). Appellant must
show that his counsels conduct was not within the "wide range of professionally
competent assistance." Id. at 690.

(1) Failure to investigate
We turn first to appellants argument that
his defense counsel failed "to investigate the mitigating circumstances
of appellants traumatic family, social, and medical histories and appellants
intoxication at the time of the offenses." The problem with appellants
argument is that it equates failure to discover certain facts with failure
to conduct a proper investigation. In addition, it ignores any role he
himself may have played in remaining silent and failing to make full disclosure
to his attorney on these matters. See Wilson, supra
at 402-03; Mahaffey, 151 F.3d at 685; Harris, 949 F.2d at
1521 n.22. Finally, it further overlooks the substantial mitigating evidence
presented in this case from appellants trial psychiatric experts and his
family. In these circumstances we find no defective or inadequate assistance
of counsel. See Harris, supra at 1524-25; cf.
Brewer
v. Aiken, 935 F.2d 850, 857-58 (7th Cir. 1991) (no investigation at
all).
In this regard, the Supreme Court stated in
Strickland:



The reasonableness of counsels actions may
be determined or substantially influenced by the defendants own statements
or actions. Counsels actions are usually based, quite properly, on informed
strategic choices made by the defendant and on information supplied by
the defendant. In particular, what investigation decisions are reasonable
depends critically on such information. For example, when the facts that
support a certain potential line of defense are generally known to counsel
because of what the defendant has said, the need for further investigation
may be considerably diminished or eliminated altogether. And when a defendant
has given counsel reason to believe that pursuing certain investigations
would be fruitless or even harmful, counsels failure to pursue those investigations
may not later be challenged as unreasonable. In short, inquiry into counsels
conversations with the defendant may be critical to a proper assessment
of counsels investigation decisions, just as it may be critical to a proper
assessment of counsels other litigation decisions. See United
States v. Decoster, supra, [199 U.S. App. D.C.] at 372-373,
624 F.2d, at 209-10.



466 U.S. at 691.

(2) Failure to challenge competence of psychiatrists
Appellant also chides his counsel for not challenging
"the professional competence of the pretrial evaluations of appellant by
the two forensic psychiatrists and" not ensuring "a complete and competent
mental health evaluation of appellant was performed before trial." As noted
earlier, we do not agree with appellant that he received inadequate psychiatric
assistance prior to trial. Moreover, we also do not agree that his trial
defense counsel was professionally inadequate in relying at trial on the
work of three mental-status experts. See Fitzgerald v. Greene,
150 F.3d 357, 368-69 (4th Cir.), cert. denied, 119 S.Ct.
389 (1998); Waters v. Thomas, 46 F.3d 1506 (11th Cir.),
cert.
denied, 516 U.S. 856 (1995); Sidebottom v. Delo, 46 F.3d 744,
752-54 (8th Cir.), cert. denied, 516 U.S. 849 (1995);
LaRette v. Delo, 44 F.3d 681, 685-86 (8th Cir.),
cert.
denied, 516 U.S. 894 (1995); ONeal v. Delo, 44 F.3d 655, 659-60
(8th Cir.), cert. denied, 516 U.S. 843 (1995);
Harris,
949 F.2d at 1524-25.

(3) & (4) Failure to present available
defense and adequate sentencing case
Finally, appellant attacks his counsels decisions
on strategy and tactics on both the merits of his guilt and the sentence.
Hindsight in these matters is not usually countenanced by this Court or
by the Supreme Court, which said in Strickland, 466 U.S. at 689-90:



Judicial scrutiny of counsels performance
must be highly deferential. It is all too tempting for a defendant to second-guess
counsels assistance after conviction or adverse sentence, and it is all
too easy for a court, examining counsels defense after it has proved unsuccessful,
to conclude that a particular act or omission of counsel was unreasonable.
Cf.
Engle v. Isaac, 456 U.S. 107, 133-134 (1982). A fair assessment
of attorney performance requires that every effort be made to eliminate
the distorting effects of hindsight, to reconstruct the circumstances of
counsels challenged conduct, and to evaluate the conduct from counsels
perspective at the time. Because of the difficulties inherent in making
the evaluation, a court must indulge a strong presumption that counsels
conduct falls within the wide range of reasonable professional assistance;
that is, the defendant must overcome the presumption that, under the circumstances,
the challenged action "might be considered sound trial strategy." See
Michel v. Louisiana, supra, [350 U. S.] at 101. There are countless
ways to provide effective assistance in any given case. Even the best criminal
defense attorneys would not defend a particular client in the same way.
See Goodpaster, The Trial for Life: Effective Assistance of Counsel
in Death Penalty Cases, 58 N.Y.U.L. Rev. 299, 343 (1983).



Therefore, appellant merits no relief on this
issue. See Wright, 151 F.3d at 162 (organic-brain-dysfunction
evidence "is a double-edged sword that might as easily have condemned [petitioner]
to death as excused his actions"); Thomas v. Gilmore, 144 F.3d 513,
517 (7th Cir. 1998) (aspects of psychological mitigation evidence
could be used by prosecutor as further evidence in aggravation), cert.
denied, 119 S.Ct. 907 (1999).




ISSUE VII
WHETHER THE ARMY COURT OF MILITARY REVIEW ERRED
BY REFUSING TO GRANT APPELLANTS FUNDING MOTION OF AUGUST 7, 1991.

ISSUE VIII
WHETHER THE JUDGE ADVOCATE GENERAL OF THE ARMY
(TJAG)S MEMORANDUM DATED DECEMBER 17, 1992, DEPRIVED APPELLANT OF HIS
RIGHT TO EQUAL PROTECTION IN VIOLATION OF THE FIFTH AMENDMENT TO THE CONSTITUTION
BECAUSE TJAG FAVORABLY CONSIDERED SIMILAR FUNDING REQUESTS IN THE ARMYS
TWO OTHER CAPITAL CASES, BUT ARBITRARILY DENIED APPELLANTS REQUEST IN
A SUMMARY MANNER.

ISSUE IX
WHETHER THE POLICY MEMORANDUM OF THE JUDGE
ADVOCATE GENERAL OF THE ARMY DATED DECEMBER 17, 1992, DEPRIVES APPELLANT
OF DUE PROCESS OF LAW IN VIOLATION OF THE FIFTH, EIGHTH, AND FOURTEENTH
AMENDMENTS.



The three issues assigned above address the refusal
of the Court of Military Review and the Judge Advocate General to make
available funding to the defense, post-trial, to hire a defense background
investigator and a mental-health expert. Appellant asserts that the requested
funding is necessary so a behavioral neurologist can personally and professionally
examine him and determine the true extent of his organic brain damage discovered
for the first time after his trial. He contends that such information is
critical not only to the question of his mental responsibility at the time
of the offense but as extenuation and mitigation evidence in his death-penalty
case. He also contends that he was denied equal protection of the law under
the Fifth Amendment (see United States v. Tuggle, 34 MJ 89,
92 (CMA 1992)) because the Judge Advocate General had previously granted
such funding to two other death-row inmates.
At the outset we note that we are asked to
review the Court of Military Reviews decision denying post-trial
psychiatric assistance and investigative services to appellant. United
States v. Tharpe, 38 MJ 8 (CMA 1993); United States v. Curtis,
31 MJ 395 (CMA 1990). Ake v. Oklahoma, 470 U.S. 68 (1985), however,
was a trial-assistance case, and its standard for granting such assistance
may not be appropriate in a post-trial setting. See United States
ex rel. Collins v. Welborn, 868 F. Supp. 950, 989 (N.D. Ill. 1994),
affd
sub nom. Bracy v. Gramley, 81 F.3d 684 (7th Cir.
1996), revd on other grounds, 520 U.S. 899 (1997);
cf.
21 USC § 848 (q)(4)(B) and q(9) (indigent federal defendants in collateral
attack on death penalty entitled to reasonably necessary investigative
or expert services); see Jackson v. Vasquez, 1 F.3d 885,
888 (9th Cir. 1993); Delong v. Thompson, 790 F.Supp. 594, 617 (E.D.Va
1991), affd, 985 F.2d 553 (4th Cir. 1993). In any event
he certainly is not entitled to a more generous standard; accordingly,
review under the reasonable-necessity standard of Ake,
supra
at 82-83, and its progeny is appropriate. See Tharpe,
supra
at 14.
Turning first to the decision of the Court
of Military Review, we note that it denied appellants request for this
assistance two times. See 37 MJ at 734-35. We also have denied this
request. 34 MJ 164 (1991) and 40 MJ 25 (1994). To support his last request,
appellant filed affidavits from a psychiatrist and a social worker asserting
that appellants pretrial evaluations were defective. Then he filed the
results of certain psychiatric tests ordered by that same appellate court
on December 31, 1991, which showed appellant had organic brain damage.
37 MJ at 742. Finally, he filed an affidavit from another psychiatrist,
specializing in neurology, whose opinion was that appellant suffered "organic
brain damage" and probably was not mentally responsible at the time of
the charged offenses but further testing was required. Basically he argues
that he has shown that the requested expert assistance is necessary as
the Court of Military Review suggested it be shown in its earlier opinion
of March 12, 1991. 32 MJ 730, 732-33.
Our standard of review in assessing a Court
of Military Review decision denying funding for additional appellate expert
mental health assistance is abuse of discretion. See Tharpe,
supra
at 16; see also United States v. Nichols, 21 F.3d
1016, 1017 (10th Cir.), cert. denied, 513 U.S. 1005 (1994);
United
States v. Rinchack, 820 F.2d 1557, 1563 (llth Cir. 1987). Here, we
note that appellant had already been personally examined by three psychiatric
experts at trial, two of whom were personally chosen by the defense. See
Wright, 151 F.3d at 163; Martin v. Wainwright, 770 F.2d 918,
935 (11th Cir. 1985), cert. denied, 479 U.S. 909 (1986).
Four more psychiatric experts examined appellant post-trial as a result
of a sanity board ordered by the Court of Military Review and the additional
psychiatric testing also ordered post-trial by that court. They specifically
addressed the question of appellants organic brain damage and rejected
it as negating his criminal responsibility. 37 MJ at 743. Appellant also
had, in post-trial affidavit form, the defense expert opinions of Doctor
Pincus, a neurologist, that he was not mentally responsible at the time
of the offense, and of Doctor Merikangas that earlier evaluations by others
were defective. See 770 F.2d at 934-35; see Lawson v.
Dixon, 3 F.3d 743, 753 (4th Cir. 1993), cert. denied, 510 U.S.
1171 (1994). Finally, he had the results of the testing ordered by the
Court of Military Review which indicated organic brain damage of some type
in appellant. See Nichols, 21 F.3d at 1018; Shaw,
762 F. Supp. at 862. Thus, the lower appellate court had a sufficient basis
in the record for considering the mental-state issues before it and concluding
that additional defense psychiatric expenditures were not reasonablynecessary.
See Wright v. Angelone, supra; Martin, 770 F.2d at
935 (numerous defense or independent evaluations already conducted justified
denial of additional testing); see also Vickers, 144
F.3d at 616 (weight-of-prior-evidence standard).
Appellant further attacks the decision of the
Acting Judge Advocate General on August 19, 1993, refusing to consider
his post-trial request for funding for expert assistance. He complains
that he was denied equal protection of the law because the Judge Advocate
General had granted equally meritorious requests for funding in September
and December of 1992 from two equally deserving death-row inmates. He also
complains that TJAGs adherence to a new policy not to consider the merits
of such requests unfairly burdened his access to the courts and denied
him due process of law. We disagree.
In United States v. Curtis, 31 MJ 395
(1990), this Court ordered the Judge Advocate General to provide adequate
assistance to a capital defendant "to properly litigate the unique constitutional
issues...which, indeed, affect the litigation of matters relating to imposition
of the death penalty in each of the uniformed services." This Court directed
that $15,000 be made available to appellate counsel and



[t]hat the expenditure of such funds shall
be approved by the same [appellate defense counsel] or his designee for
such expenses as are determined by him to be reasonable and necessary in
furtherance of the defense of the appellant in this appellate proceeding,
subject to such procedures as are in effect within the Department of the
Navy for the proper disbursement of public funds; [and]
That the determination of such reasonable and
necessary expenditures shall be subject to review only by this Court[.]



In 1992, without a court order, the Judge Advocate
General of the Army made funding available to two other death-row inmates
whose cases were on appeal.
On December 17, 1992, the Judge Advocate General
of the Army issued the following memorandum on his policy covering all
future requests for funding of experts:



SUBJECT: Fee Requests for Expert
Services and Related Purposes
in Capital Cases
1. Purpose. This memorandum provides
policy guidance concerning fee requests for expert services and related
purposes, which are submitted to The Judge Advocate General.
2. Policy.
 
a. The Judge Advocate General will not approve,
nor consider on the merits, requests for funds to obtain expert services
or for related purposes. Moreover, The Judge Advocate General will not
consider, ex parte, matters submitted in support of such
requests.
b. Such requests for funding should be made
to the appropriate authorities. Appropriate authorities include courts
and convening authorities.
(1) The appropriate court is the court before
which the case is currently pending. This would be the trial court (after
referral but before authentication of the record of trial by the military
judge) or the appellate court (the United States Court of Military Appeals
or the United States Army Court of Military Review, as appropriate).
(2) The appropriate convening authority is
the convening authority who presently exercises general court-martial jurisdiction
over the accused/appellant.
3. Nothing in this policy is intended to
diminish the legal authority of The Judge Advocate General to grant requests
for funds for expert services and related purposes.



On August 19, 1993, the Acting Judge Advocate
General of the Army issued the following memorandum in response to appellants
renewed request for expert funding:



SUBJECT: Ex Parte Request for Expert
Assistance, United States v. Specialist Ronald A. Gray, XXX-XX-XXXX,
ACMR 8800807, CMA 93-7001/AR
1. Your 9 August 1993 request, subject as above,
is denied.
2. Pursuant to the policy established by The
Judge Advocate General on 17 December 1992, fee requests for expert services
and related purposes in capital cases are no longer considered on their
merits or approved by The Judge Advocate General.
3. This policy does not act to deny your client
access to funds when those funds are deemed warranted by the appropriate
authorities. Appropriate authorities include the court presently hearing
your client's case and the General Court-Martial Convening Authority. This
policy was implemented to avoid interference by this office with the orderly
functioning of the appellate process, and to avoid duplicating a function
traditionally carried out by others.
4. Before 17 December 1992, there was no OTJAG
policy regarding consideration of fee requests in capital cases. Apparently,
the requests in U.S. v. Loving and U.S. v. Murphy were the
first such requests addressed to this office, and the issue of our funding
these requests was a novel one. With considerable reluctance, fees were
approved by The Judge Advocate General in the Loving and Murphy
cases. After our experience dealing with those requests, however, we concluded
that it was not conducive to an orderly appellate process for this office
to intervene and determine issues regarding fees during the appeal of capital
cases. We perceived no beneficial effect from duplicating a function
adequately addressed by authorities already empowered to consider such
requests for funding. Despite the 17 December 1992 policy, no litigant
is left without funding when warranted by the law and facts of the case.
5. Although your request for funds provided
by The Judge Advocate [sic] is denied, you have not been prevented from
addressing requests to traditional authorities for considering funding
requests. My denial is not based on an assessment of the merits of the
request for witness funding in your client's case, but is made in accordance
with established policy. That policy affects not only your client's request,
but similar requests submitted by all appellants in capital cases after
17 December 1992.



(Emphasis added.)
Appellants equal protection argument is clearly
without merit. The Equal Protection Clause is generally designed to ensure
that the Government treats "similar persons in a similar manner." See
generally R. Rotunda and J. Nowak, Treatise on Constitutional Law:
Substance and Procedure, 2d § 18.38 at 488; § 18:41 at
495 (1992). As then-Chief Judge Everett, writing for this Court in United
States v. Means, 10 MJ 162, 165 (1981), said:



For the Government to make distinctions does
not violate equal protection guarantees unless constitutionally suspect
classifications like race, religion, or national origin are utilized or
unless there is an encroachment on fundamental constitutional rights like
freedom of speech or of peaceful assembly. The only requirement is that
reasonable grounds exist for the classification used. Cf. Oyler
v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962); United
States v. Batchelder, 442 U.S. 114, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979).



We do not consider death-penalty inmates who submit
requests for expert assistance after 1992 as being a suspect class. We
also do not consider the action of the Judge Advocate General in establishing
a Curtis-type procedure for dispensing expert assistance in the
Army as unreasonable. See United States v. Curtis, 31 MJ
395 (CMA 1990). Finally, we hold that the action of the Judge Advocate
General in Loving and Murphy did not create any fundamental
constitutional right for capital defendants to initially request him to
provide such funding.
Appellants due process argument is also without
merit. In substance he contends that the Judge Advocate Generals policy
of refusing to entertain future requests for expert and investigative assistance
infringed his right to access the courts and process his appeal. See
generally Bounds v. Smith, 430 U.S. 817 (1977). We disagree.
The Judge Advocate Generals policy letter
does not purport to deny appellant or any other servicemember expert assistance
on appeal. Moreover, it does not suggest that the Judge Advocate General
will refuse to make such funds available if so ordered by a competent court.
See
United States v. Curtis, supra. It does, however, establish
a procedure by which a soldiers request for funding will be forwarded
to the appropriate forum for consideration and action in a more efficient
manner. Cf. Art. 73. Such a policy or procedure is reasonable in
our view and does not deny appellant due process of law. See DeLong,
790 F. Supp. at 617, citing United States v. Goodwin, 770 F.2d 631
(7th Cir. 1985), cert. denied, 474 U.S. 1084 (1986).




ISSUE X
WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL
PREJUDICE OF APPELLANT BY ALLOWING THE GOVERNMENT TO USE APPELLANTS STATEMENT
MADE PURSUANT TO A GUILTY PLEA IN A CIVILIAN TRIAL, WHERE (1) CIVILIAN
AUTHORITIES FAILED TO ADVISE APPELLANT OF HIS FIFTH AMENDMENT RIGHT AGAINST
SELF-INCRIMINATION PRIOR TO ELICITING INCRIMINATING INFORMATION UNRELATED
TO HIS CIVILIAN PLEA: (2) THE PARTIES DID NOT CONTEMPLATE USE OF THE STATEMENT
UNLESS APPELLANT PLED GUILTY AT THE CIVILIAN TRIAL; (3) MILITARY DEFENSE
COUNSEL WERE NOT PRESENT WHEN THE STATEMENT WAS RENDERED: AND (4) CIVILIAN
DEFENSE COUNSEL SHOULD HAVE KNOWN THAT MILITARY AUTHORITIES HAD PREFERRED
CHARGES AGAINST APPELLANT, WITH A VIEW TOWARD THE DEATH PENALTY, ON AUGUST
5, 1987.

ISSUE XI
WHETHER THE MILITARY JUDGE ERRED BY ALLOWING
THE GOVERNMENT TO MAKE USE OF APPELLANTS STATEMENTS IN VIOLATION OF A CIVILIAN
PLEA AGREEMENT.

ISSUE XII
WHETHER THE OPINION OF THE ARMY COURT WHICH
FOUND THAT APPELLANTS STATEMENTS DID NOT CONTRIBUTE TO THE FINDINGS AND
SENTENCE MISINTERPRETS AND MISAPPLIES THE FACTS OF RECORD.

ISSUE XIII
WHETHER CIVILIAN AND MILITARY DEFENSE COUNSEL
WERE INEFFECTIVE IN FAILING TO LIMIT APPELLANTS CONFESSION MADE PURSUANT
TO A CIVILIAN PLEA AGREEMENT, OR IN FAILING TO DRAFT TERMS LIMITING THE
USE OF SUCH STATEMENT TO THE CIVILIAN TRIAL.



The four granted issues noted above are all directed
to appellants pretrial statements to North Carolina police officers on
November 2 and 4, 1987. In these statements appellant admitted burglarizing
the Miskanin trailer and taking a .22 caliber pistol and a VCR which he
later pawned. He also admitted that he had this pistol in his possession
"as late as" December 1986, around the time of the murder of Ms. Vickery-Clay.
The prosecution at his court-martial called Detective Oakes to the stand
to establish that appellant made these statements. The same .22-caliber
pistol was found at the murder site of Laura Lee Vickery-Clay. The prosecution
used all this evidence to show that appellant burglarized the Miskanin
trailer as charged and as "circumstantial evidence" identifying him as
the murderer of Ms. Vickery-Clay.
Appellant objected to admission of evidence
of his pretrial statements at trial but the military judge ruled against
him. The following colloquy occurred:



MJ: The motion to suppress the out-of-court
statements of the accused rendered on the 2d and 4th of November, with
regard to certain portions of those statements is denied. I specifically
find that on the 6th of January - or the 7th of January, the accused was
advised of his rights pursuant to Miranda [v. Arizona, 384
U.S. 436 (1966)]; that indeed, on the 13th of January, as represented by
counsel, he exercised those rights; while there was a considerable passage
of time between then and the 2d of--the 27th of September when the statement
was actually rendered, there were no factors tending to indicate that the
accused had in any way not recalled his right to remain silent, and indeed
rendered the statements in the presence of his counsel and his counsel
frequently, as reflected within the statements, interjected herself as
the civilian counsel in the discussion and thereby, on behalf of the accused,
exercised the right to remain silent; that indeed, as the Government suggests,
the effect of the offer by - on behalf of the accused through counsel was
an effective waiver of any such right to remain silent, prompted by his
desire for the benefit of the transaction - the agreement that he reached;
that in any event, it would have been a waiver.
Now, as to the portion or the portions of the
statements rendered admissible by that ruling, contrary to the - and while
I appreciate the significance perceived by the Government, contrary to
the assertions of the Government, I perceive the admissions - or the statements
relating to the actual shooting of the - Wilson, I believe her name was,
with a .22-caliber pistol to be unduly prejudicial and is overly suggestive.
Accordingly, any type of statements or any evidence provided by the witnesses
pertaining to these admissions will pertain solely to the .22-caliber pistol,
the statements of the accused regarding it and its larceny or removal from
the residence of Sergeant Miskanin, if, indeed, that can be established,
even that much is not readily apparent from the statements, inasmuch as
the residence is not identified, if my memory serves me, within the statements,
but rather, the parties doing the discussion at the time assumed that they
were talking about a given residence. Counsel for both sides understand
what Ive said? If not, Ill clarify it.
DC: (Nodding in the affirmative) Understand.
MJ: I dont want a nod of your head. I want
to know.
DC: Understand, yes, sir.
TC: Sir, I understand what you said. I wish
to inquire of the court whether we can elicit testimony concerning the
fact that the accused had admitted possession - or having in his possession
the .22-caliber pistol on the llth of December--
MJ: Within the realm of that statement.
TC: -- along with his admission that he had
in fact hidden the .22-caliber pistol --
MJ: Anything pertaining to the possession,
within the statement, of the .22-caliber pistol--how he obtained it, if
its the same one, and what he may have done with it in terms of hiding
it, but not in terms of shooting Wilson.
TC: Understood, sir.



We initially note that appellant is correct in
asserting that the Court of Military Review erred in stating that appellants
pretrial statements "were never brought to the attention of the court members...."
and therefore could not have prejudiced appellant on findings and sentence.
37 MJ at 740-41. It is true that his guilty pleas to the two murders prosecuted
in state court which gave rise to these statements were not presented to
the members of his court-martial. Moreover, the actual written statements
given to state authorities concerning these offenses were not admitted
at his court-martial. However, as noted above, Detective Oakes did testify
as to the fact that such statements were made by appellant.
Nevertheless, the question before us is whether
admission of evidence of these statements by appellant was legal error.
The Court of Military Review found no legal error, and we agree.

(1) Violation of Fifth Amendment
Appellant first argues that his statements
made pursuant to his guilty pleas in state court were erroneously admitted
because "civilian authorities failed to advise appellant of his Fifth Amendment
right against self-incrimination prior to eliciting incriminating information
unrelated to his civilian plea." Final Brief at 109. Initially, we note
that the .22-caliber pistol taken from the Miskanin trailer was the same
pistol used to kill Tammy Wilson, a crime to which he agreed to plead guilty
in state court. The fact that questioning about this offense also touched
on a matter relevant to his military offenses did not require more specific
advice. See Colorado v. Spring, 479 U.S. 564, 576-77 (1987).
Moreover, as noted by the military judge, appellant was advised of his
rights against self-incrimination under the Fifth Amendment, invoked his
right to counsel, consulted with counsel, and agreed to provide information
to state police concerning the murder of Tammy Wilson. Finally, appellants
civilian defense counsel was present with appellant at the time he made
his statements to police and later to the court. See generally
1 W. LaFave and J. Israel, Criminal Procedure § 6.8 at 519
(1984) ("It is generally accepted that if the attorney was actually present
during the interrogation, then this obviates the need for the warnings.").
Accordingly, we conclude that these statements were not admitted in violation
of the Fifth Amendment. See generally United States v.
Arrington, 73 F.3d 144, 149-50 (7th Cir. 1996); see also
United States v. Benson, 640 F.2d 136, 139 (8th Cir. 1981).

(2) Use of statements as violation of state
plea agreement
Appellant next argues that evidence of these
statements was erroneously admitted by the judge because their use at his
court-martial violated his civilian plea agreement. Guilty pleas and accompanying
statements in one jurisdiction are generally admissible in other jurisdictions
to prove the element of other crimes. United States v. Williams,
104 F.3d 213, 216 (8th Cir. 1997); United States v. Benson,
supra;
United States v. Howze, 668 F.2d 322, 324 n.3 (7th Cir.
1982). The civilian plea agreement in this case does not otherwise preclude
use of his statements in a subsequent court-martial for different offenses.
The Agreement only states, "In the event that the above plea arrangement
is not carried out for whatever reason, no statement made by the Defendant
pursuant to this agreement will be used against him in any subsequent prosecutions."
App. Ex. XLVIII at 14. Appellants suggestion that the agreement implies
a limited use in state proceedings is simply unsupported by this record
of trial.

(3) Violation of Article 31
Appellant next argues that evidence of his
statements was erroneously admitted at his court-martial in violation of
Article 31, UCMJ, 10 USC § 831. He contends that his investigation
for murders in the Fayetteville area by civilian and military police had
"merged" within the meaning of the case law of this Court. Accordingly,
he concludes that Article 31 warnings had to be given by civilian police
when they questioned him about the offenses tried later in the court-martial.
We disagree.
The premise of appellants Article 31 argument
is that the civilian and military investigations "merged" within the meaning
of United States v. Lonetree, 35 MJ 396, 403 (CMA 1992), cert.
denied, 507 U.S. 1017 (1993). However, we note that appellants original
motion to suppress his pretrial statements to civilian police made only
a vague reference to Article 31. See App.Ex. XLVII. Moreover, no
attempt to develop a proper factual basis for suppression on Article 31
grounds was made by the defense at the court-martial. Finally, both on
questioning by the military judge (R. 353) and in his argument on the motion
to suppress, defense counsel made clear that the basis of his motion to
suppress was solely the Fifth Amendment and Miranda v. Arizona,
384 U.S. 436 (1966). In this context we find no plain error under Article
31 in admission of those statements.

(4) Ineffective Counsel
Appellant finally contends that he was denied
effective assistance of counsel at his court-martial as guaranteed by the
Sixth Amendment. He grounds his argument on conduct of his civilian defense
counsel at his earlier state criminal trial for other murder charges which
caused or permitted him to incriminate himself on the military offenses.
He also cites his military defense counsels failure to intervene in the
earlier state proceedings and prevent this self-incrimination.
The thrust of appellants argument is that
an accused facing different charges in both state and military courts is
entitled to a coordinated and unified defense, especially where he might
receive the death penalty for his crimes in either forum. He has cited
no authority for this proposition, other than general ineffective-assistance-of-counsel
cases such as Strickland v. Washington, 466 U.S. 668 (1984), and
Hill
v. Lockhart, 474 U.S. 52 (1985).
Appellant particularly contends that his civilian
defense counsel at his North Carolina trial should not have permitted him
to admit as part of his guilty plea to state murder charges that he burglarized
the Miskanin trailer in November of 1986, and stole a .22-caliber pistol.
He notes that charges for burglary of the Miskanin residence and larceny
of the pistol were pending referral to court-martial at the time of his
admission in the State case. He further notes that he was later convicted
of these offenses at his court-martial on the basis of this admission.
Also, he notes that the charge of murdering Ms. Vickery-Clay was also pending
court-martial at the time of this admission and that he was convicted of
that offense based upon his admission at the State trial. In this regard,
we note that a .22-caliber pistol taken from the Miskanin residence was
shown at the court-martial to be the same pistol found at the murder scene
of Ms. Vickery-Clay. He finally asserts that his military defense counsel
in this case who attended the State court proceedings should have attempted
to intervene and preclude these admissions.
We reject appellants ineffective-assistance-of-counsel
claim for several reasons. First, the burden is on him to show deficient
professional conduct by his counsel and prejudice resulting from such conduct.
Strickland,
466 U.S. at 687. Moreover, in showing less than reasonably competent conduct
by counsel, "it is necessary to judge ...counsels challenged conduct
on the facts of the particular case, viewed as of the time of counsels
conduct." Lockhart v. Fretwell, 506 U.S. 364, 371, 113 S.Ct. 838,
844 (1993), quoting Strickland, supra at 690. Finally, the
Supreme Court has recognized that "[s]heer outcome determination, [...],
was not sufficient to make out a claim under the Sixth Amendment." 506
U.S. at 370.
Appellant did not challenge admission of his
state-trial guilty-plea statements at his court-martial on Sixth Amendment
grounds. He also did not call civilian defense counsel to explain his reasoning,
the advice which he gave to appellant, or any awareness which he had as
to the significance of these guilty-plea statements in a future court-martial.
Here, the facts on the record were that civilian defense counsel avoided
the death penalty in state court for two murder charges and he knew that
appellant faced a possible capital court-martial referral for two other
murder charges and related offenses. The record also shows that, at appellants
questioning, civilian defense counsel successfully objected to references
in the questions to offenses under investigation by military authorities.
We find no unreasonable professional conduct in these circumstances. See
Lane v. Singletary, 44 F.3d 943( 11th Cir.), cert. denied, 515
U.S. 1163 (1995); see generally Bordenkircher v. Hayes,
434 U.S. 357 (1978).
Assuming appellant established constitutional
error with respect to his Sixth Amendment right to counsel, we would still
not reverse his convictions for burglary, robbery, and the Vickery-Clay
murder on this basis. See generally Lockhart, 506
U.S. at 369 n.2, 113 S.Ct. at 842 n.2. The record in this case established
beyond a reasonable doubt that any such error was harmless.
First, we note that appellants admission that
he took a .22-caliber pistol from the Miskanin trailer and possessed it
around December 11, 1986, falls far short of a full confession to the Miskanin
burglary on November 12, 1986, and the murder of Ms. Vickery-Clay 4 days
later. Cf. Arizona v. Fulminante, 499 U.S. 279 (1991). Second,
appellants admissions to taking the .22-caliber pistol from the Miskanin
trailer was not the only evidence linking him to the burglary of that residence
and the murder of Ms. Vickery-Clay. It was also established that appellant
pawned a VCR taken with the pistol from the Miskanin trailer. Moreover,
he was linked to the murder of Ms. Vickery-Clay by fingerprints and fiber
evidence. In this context, the Government has persuaded us that any error
by civilian defense counsel in failing to limit appellants guilty-plea
statements in the North Carolina trial was harmless beyond a reasonable
doubt in his court-martial.




ISSUE XIV
WHETHER APPELLANT WAS DENIED A FAIR TRIAL BY
AN IMPARTIAL COURT-MARTIAL PANEL IN VIOLATION OF THE FIFTH, SIXTH, AND
EIGHTH AMENDMENTS DUE TO PREJUDICIAL PRETRIAL PUBLICITY.



Appellant next attacks his conviction and death
sentence on the basis that his court-martial panel was saturated with prejudicial
pretrial publicity (see Rideau v. Louisiana, 373 U.S. 723
(1963)) and the military judge failed to take necessary steps to protect
his right to a fair and impartial jury. See Chandler v. Florida,
449 U.S. 560 (1981). He notes that 93 articles were published in five newspapers
for over 14 months concerning appellants civilian and military trials
which "essentially convicted appellant prior to his court-martial." Final
Brief at 144. He further notes that the military judge failed to grant
timely motions by the defense to neutralize this publicity. "Timely motions
were made to: sequester the members, or in the alternative, exclude the
media; change the location (venue) of the court-martial; direct the convening
authority to detail all the members from another command outside the 82d
Airborne Division, or in the alternative, detail six additional members
from a location other than Fort Bragg." Final Brief at 149-50.
To legally support his pretrial-publicity claim,
appellant relies heavily on the Fifth Circuit decision in Mayola v.
State of Alabama, 623 F.2d 992 (1980), cert. denied, 451 U.S.
913 (1981). There, that court stated:



II. Prejudicial Pretrial Publicity
One seeking to have his conviction nullified
on the ground that he was denied a fair trial to an impartial jury due
to adverse pretrial publicity ordinarily must demonstrate an actual,
identifiable prejudice attributable to that publicity on the part of members
of his jury. Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1642,
6 L.Ed. [2d] 751 (1961); United States v. Capo, 595 F.2d 1086, 1090
(5th Cir. 1979), cert. denied, 444 U.S. 1012, 100 S.Ct. 660, 62
L.Ed. [2d] 641 (1980); Hale v. United States, 435 F.2d 737, 746-47
(5th Cir. 1970)[,] cert. denied, 402 U.S. 976, 91 S.Ct. 1680, 29
L.Ed.2d 142 (1971).



623 F.2d at 996 (emphasis added).
That Court, however, also recognized that an
exception to the rule requiring a showing of actual prejudice was established
by the Supreme Court in Rideau v. Louisiana, supra. The Courtsaid:



The principle distilled from this holding
by courts subsequently discussing the case is that where a petitioner adduces
evidence of inflammatory, prejudicial pretrial publicity that so pervades
or saturates the community as to render virtually impossible a fair trial
by an impartial jury drawn from that community, "[jury] prejudice is presumed
and there is no further duty to establish bias." United States v. Capo,
595 F.2d at 1090. E.g., Murphy v. Florida, 421 U.S. 794,
798-99, 95 S.Ct. 2031, 2035-2036, 44 L.Ed.2d 589 (1975); United States
v. Haldeman, 559 F.2d at 60-61; McWilliams v. United States,
394 F.2d 41, 44 (8th Cir. 1968), cert. denied, 393 U.S. 1044, 89
S.Ct. 643, 21 L.Ed.2d 593 (1969); Pamplin v. Mason, 364 F.2d 1,
4-5 (5th Cir. 1966). See also, e.g., Jenkins v.
Bordenkircher, 611 F.2d 162, 165 (6th Cir. 1979) (reciting equivalent
standard without referring to Rideau itself). These courts have
held that where the Rideau principle applies, the petitioner clearly
need not show that the pervasive community prejudice actually entered the
jury box, Pamplin v. Mason, 364 F.2d at 5, and some circuits have
indicated that the petitioner need not even demonstrate that the members
of the jury panel or venire were, themselves, actually exposed to the publicity,
e.g.
McWilliams v. United States, 394 F.2d at 44.



623 F.2d at 997. Appellant asserts his case was
like Rideau.
To establish presumed prejudice, the record
must demonstrate "that the community where the trial was held was saturated
with prejudicial and inflammatory media publicity about the crime[s]."
See
Troiani v. Poole, 858 F.Supp. 1051, 1062 (S.D. Cal. 1994). Here,
we note that the challenged 93 articles by 5 different papers did not cover
a single crime, a single investigation, or a single trial. Instead, they
addressed a veritable crime spree, involving five murders, six rapes, and
attendant lesser crimes. Moreover, they covered dual investigations and
trials by state and military authorities. Appellants gross-statistical-saturation
argument ignores this context and, to that extent, is unpersuasive.
In any event, we are not persuaded by appellant
that the pretrial publicity in his case was prejudicial and inflammatory.
This is simply not a case like Rideau, where the defendants uncounseled
pretrial confession was broadcast three times on television before his
trial. Here, the articles appear to be no more than routine reports of
heinous crimes, investigation of these crimes, the arrest of appellant,
and the preliminary steps taken to bring appellant to trial in both state
and military courts. These articles do not appear to be unduely sensationalistic.
See
Rock v. Zimmerman, 959 F.2d 1237, 1253 (3d Cir.), cert. denied,
505 U.S. 1222 (1992). Moreover, they clearly do not create any actual unfairness
to appellant as a defendant in the sense delineated in Rideau. See
United States v. DiSalvo, 34 F.3d 1204, 1222 n.16 (3d Cir. 1994);
cf. Mayola, 623 F.2d at 997-98.
Appellants remaining argument is that the
military judge failed in his duty to ensure that he receive a fair trial.
See
generally Chandler v. Florida, supra. The military
judge was in fact aware of the pretrial publicity surrounding appellants
case, but he did reject the defense-proffered solutions to this problem.
However, the military judge did permit extensive voir dire of the
panel members concerning exposure to pretrial publicity and its possible
impact on deliberations in this case. He also instructed the members not
to "expose" themselves to any particular information pertaining to the
accused and instructed the members to use "common sense" in dealing with
media exposure. Finally, he twice ruled that the members of this court-martial
were impartial in fact. We see no abuse of discretion by the judge in these
matters.




ISSUE XV
WHETHER THE MILITARY JUDGE FAILED TO PROPERLY
DETERMINE, AND THE EVIDENCE OF RECORD FAILS TO CONCLUSIVELY DEMONSTRATE,
THAT APPELLANTS ELECTION AS TO FORUM WAS KNOWINGLY AND INTELLIGENTLY MADE.



The factual basis for this issue is appellants
apparent signing of his request for a court-martial panel composed of at
least one-third enlisted members with the words "Negative Reading." Appellant
submitted his request so signed after twice being advised of his forum
rights by the military judge and orally electing trial by enlisted members.
At the urging of his counsel, he later signed his proper name above the
words "Negative Reading."
We further note that the military judge did
not accept appellants request without his proper signature. The record
states:



ACC: (confers with defense counsels) I will
accept ---
MJ: No, you wont accept. Youll elect. Youll
either elect by officer members, or a court that includes enlisted members.
ACC: I will elect enlisted members.
[Defense counsel begins to return document
to the judge]
MJ: Wait a minute, leave that there. You have
there before you a written request for enlisted members. On that appears
your typed signature block, and above it what appears to be your signature.
Is that your signature?
ACC: (Examining document) No, thats not my
name.
MJ: Let me see that (receives document from
defense counsel/examining document) What is that supposed to be?
DC: Hes confused, Your Honor.
MJ: Well, lets un-confuse him.
[Defense counsel hands document to accused,
who signs it, and defense counsel returns it to the judge.]
MJ: The record should reflect the accused has
just now signed the written request for enlisted members.



Appellant asserts that the above record suggests
that appellant did not understand his rights and was coerced by defense
counsel to elect trial with enlisted members. We disagree. There is no
question in this case that appellant understood his choice of forum rights
and he voluntarily exercised it. See 37 MJ at 738. The military
judge twice explained those rights to appellant; appellant twice acknowledged
understanding those rights; and finally, appellant requested enlisted members
both orally and in writing. United States v. Barnes, 8 MJ 115, 117
(CMA 1979); United States v. Stegall, 6 MJ 176, 177 (CMA 1979).
Appellants decision to submit his request signed "Negative Reading" rather
than his proper name suggests confusion as to his name, not his right to
choose a forum. The military judges decision to permit counsel to have
a reasonable opportunity to rectify this problem was not error. See
RCM 801(a)(3).




XVI
WHETHER APPELLANT WAS DENIED DUE PROCESS UNDER
THE FIFTH AND FOURTEENTH [3]
AMENDMENTS TO THE UNITED STATES CONSTITUTION AND MILITARY DUE PROCESS WHEN
THE MILITARY JUDGE DENIED RESOURCES NECESSARY TO RETAIN EXPERT SERVICES
IN CRIMINAL INVESTIGATION TO ASSIST THE DEFENSE IN THE EVALUATION, PREPARATION,
AND PRESENTATION OF ITS DEFENSE.



Prior to trial, appellant twice requested the
convening authority to provide an independent criminal investigator to
assist in the preparation of his defense.
The convening authority did not grant this request but he did make
available the services of the Criminal Investigation
Command (CID) who to a certain extent investigated the matters requested
by the defense. At trial the defense renewed its "request" for an independent
criminal investigator, noting three areas which had not been investigated
to its satisfaction. The military judge denied this "request."
Citing the decisions of this Court in United
States v. Garries, 22 MJ 288, cert. denied, 479 U.S. 985 (1986),
and United States v. Mustafa, 22 MJ 165, cert. denied, 479
U.S. 953 (1986), counsel argue that the military judge abused his discretion
in denying his request for an independent criminal investigator. He asserts
that his motion "was made at trial as a result of the failure of government
investigators (CID special agents) to adequately provide the defense with
critical information necessary for the formation of appellants defense."
Final Brief at 157. He particularly states:



Appellant enumerated three areas to the military
judge: 1) The failure of CID to provide the names and locations of all
Terminal Taxi Cab Company drivers on duty at the time of Kim Ruggles death;
2) the failure of CID to sufficiently coordinate with North Carolina and/or
other federal law enforcement agencies, e.g., the Drug Enforcement
Agency [sic] (DEA), concerning the existence of a dark colored Lincoln
automobile allegedly used in a drug transaction that Kim Ruggles was a
party to on the night of her death; and 3) the failure of CID to contact
the family, employer, and acquaintances of Tommy D. Arrington, a suspect
in both murders who bears a strong resemblance to appellant, to ascertain
Arringtons location on relevant dates. (R. at 159-61; App. Exh. XXXVII.)



Final Brief at 157-58. He concludes that "[n]one
of the aforementioned areas were adequately investigated by CID." Final
Brief at 158.
It is beyond cavil in the military justice
system that an accused has a right to investigative assistance at the expense
of the Government if he demonstrates the necessity for such assistance.
United
States v. Robinson, 39 MJ 88 (CMA 1994); United States v. Kelly,
39 MJ 235 (CMA), cert. denied, 513 U.S. 931 (1994). In United
States v. Gonzalez, 39 MJ 459, 461, cert. denied, 513 U.S. 965
(1994), this Court recognized a three-step test for determining necessity,
as follows:



First, why the expert assistance is needed.
Second, what would the expert assistance accomplish for the accused. Third,
why is the defense counsel unable to gather and present the evidence that
the expert assistant would be able to develop.



We review a military judges decision on providing
expert assistance on an abuse-of-discretion standard. See United
States v. Washington, 46 MJ 477, 480 (1997); see also United States
v. Gadison, 8 F.3d 186, 191 (5th Cir. 1993); United States v. Sanchez,
912 F.2d 18, 22 (2d Cir. 1990). Here, the military judge denied the requested
expert assistance because he determined that the letter of the CID commander
adequately responded to appellants inquiries in the three areas noted.
To appellants request for the taxi-driver
information, the CID commander stated:



3. CPT BREWER requested that Terminal Taxi
logs be researched to determine which drivers were working during the hours
of 1800-2200 on the night of RUGGLES death and their whereabouts be determined
during that period. All of the taxi drivers were located, except for Mr.
CRUMBLE, who was driving a Terminal owned taxi which was sub-leased to
Christian Taxi Company, Fayetteville, NC. The only taxi driver known to
have been in the area in which RUGGLES was murdered was Mr. James FAUST,
309 Capital Drive, Spring Lake, NC, who stated that he had stopped along
No Name Rd about dusk on 6 Jan 87 to attempt to help a disabled vehicle.
FAUST was unable to remember who was with him in the taxi or who was in
the vehicle he stopped to assist. All other drivers related that they had
not been around the No Name Rd area of Ft Bragg, NC on the night of 6 Jan
87.
4. CPT BREWER requested that all drivers from
Terminal Taxi be questioned as to whether they carried any passengers that
fit the description given by SSG GRISBY and PVT STEPHENS. None of the drivers
could remember whom they had in their taxis on 6 Jan 87.



To appellants request for information on the
dark Lincoln, he stated:



6. CPT BREWER requested that law enforcement
agencies along Interstate 95 and Interstate 75 from Miami, FL to Maine
and Naples FL to Michigan be contacted to determine if from Jan 87 to Oct
87 they arrested or received information pertaining to drug dealers who
are black males and drove a dark Lincoln. A message was dispatched to the
appropriate units, but no information concerning any individuals fitting
the above description was obtained.



Finally, as to the Tommy-Arrington request, he
stated:



8. CPT BREWER requested that the appropriate
authorities in the Nash County Sheriffs Office and the Rocky Mount Police
Department be contacted to determine if Tommy D. ARRINGTONs whereabouts
on the times and dates of the crimes SP4 GRAY is currently charged with,
can be determined. Further, CPT BREWER requested that blood and saliva
samples be obtained from ARRINGTON. The Nash County Sheriffs Department
and the Rocky Mount police Department did not have any information concerning
ARRINGTONs whereabouts. Mr. ARRINGTON was interviewed but could not determine
his whereabouts on these dates. A blood and saliva sample was obtained
and sent to USACIL-CONUS.



In our view, appellant has confused his right
to necessary investigative assistance with an unrestricted right
to search for any evidence which might be relevant in his case. Here the
CID went beyond defense counsels request and questioned all the drivers
from Terminal Taxi. It also contacted appropriate police units along I-95
concerning the dark Lincoln as requested by defense counsel. Finally, it
contacted Tommy Arrington and local police investigating him. Simply because
the results of these inquiries were not helpful to the defense does not
render these efforts ineffective or provide a concrete explanation for
further assistance. See Castro v. Ward, 138 F.3d 810, 827
(10th Cir.), cert. denied, 119 S.Ct. 422 (1998); Goodwin,
770 F.2d at 635. Accordingly, we conclude that a substantial basis existed
for the judge to deny further expert assistance to appellant.




ISSUE XVII
WHETHER THE MILITARY JUDGE VIOLATED APPELLANTS
RIGHT TO DUE PROCESS BY IMPROPERLY GRANTING THE GOVERNMENT CHALLENGE FOR
CAUSE AGAINST MSG McCORMICK BASED UPON THAT MEMBERS OPPOSITION TO THE
DEATH PENALTY, WHERE MSG McCORMICK NEVER INDICATED THAT HE WAS "IRREVOCABLY
COMMITTED . . . TO VOTE AGAINST THE DEATH PENALTY REGARDLESS OF THE FACTS
AND CIRCUMSTANCES . . ." SEE GRAY V. MISSISSIPPI, 481 U.S.
648 (1987).

ISSUE XVIII
WHETHER THE MILITARY JUDGE IMPROPERLY GRANTED
THE GOVERNMENT CHALLENGE FOR CAUSE AGAINST CSM WOODS.



Appellant argues that the military judge improperly
granted two government challenges against detailed members of his court-martial
because of their opposition to the death penalty. He relies on the Supreme
Court decision in Gray v. Mississippi, supra, and asserts
that neither MSG McCormick nor CSM Woods was "irrevocably committed . .
. to vote against the death penalty regardless of the facts and circumstances
that might emerge in the course of the proceedings." Final Brief at 160.
The Court of Military Review held that the correct "standard is whether
the members views would prevent or substantially impair the performance
of his duties as a juror . . . . Wainwright v. Witt, 469 U.S. 412,
424, 105 S.Ct. 844, 852, 83 L.Ed. 2d 841 (1985) (quoting Adams v. Texas,
448 U.S. 38, 45, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581 (1980)); see also
Morgan v. Illinois, 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed. 2d 492
(1992); United States v. Curtis, 33 MJ 101, 107 (CMA 1991)." 37
MJ at 736-37.
Appellants argument is based on a faulty legal
premise. The Supreme Court in Gray, 481 U.S. at 657-58, addressed
this question definitively:



In Witherspoon, this Court held that
a capital defendants right, under the Sixth and Fourteenth Amendments,
to an impartial jury prohibited the exclusion of venire members "simply
because they voiced general objections to the death penalty or expressed
conscientious or religious scruples against its infliction." 391 U.S. at
522, 88 S.Ct., at 1776. It reasoned that the exclusion of venire members
must be limited to those who were "irrevocably committed . . . to vote
against the penalty of death regardless of the facts and circumstances
that might emerge in the course of the proceedings," and to those whose
views would prevent them from making an impartial decision on the question
of guilt. Id., at 522, n.21, 88 S.Ct. at 1777, n.21. We have reexamined
the Witherspoon rule on several occasions, one of them being Wainwright
v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), where
we clarified the standard for determining whether prospective jurors may
be excluded for cause based on their views on capital punishment. We there
held that the relevant inquiry is "whether the jurors views would prevent
or substantially impair the performance of his duties as a juror in accordance
with his instructions and his oath." Id., at 424, 105 S.Ct. at
851, quoting Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 2526,
65 L.Ed.2d 581 (1980).



Here, MSG McCormick indicated that the chances
of his voting for a death penalty were "very remote" (R. 745) and CSM Woods,
an ordained minister, said he could never vote for the death penalty (R.
596). After careful examination of the record, we conclude, for the reasons
stated by the Court of Military Review, that the military judge, using
the proper standard, did not abuse his discretion in granting these challenges.
See
United States v. Gonzalez-Balderas, 11 F.3d 1218, 1222 (5th Cir.)
("heightened scrutiny" of decision to grant challenge), cert. denied,
511 U.S. 1129 (1994); cf. United States v. Chandler, 996
F.2d 1073, 1102 (11th Cir. 1993) (abuse-of-discretion standard for decision
to deny challenge), cert. denied, 512 U.S. 1227 (1994).




ISSUE XIX
WHETHER THE PEREMPTORY-CHALLENGE PROCEDURE
IN THE MILITARY JUSTICE SYSTEM, WHICH ALLOWS THE GOVERNMENT TO REMOVE ANY
ONE JUROR WITHOUT CAUSE, IS UNNECESSARY AND SUBJECT TO ABUSE IN ITS APPLICATION
AND WAS ABUSED IN APPELLANTS CASE.

ISSUE XX
WHETHER THE MILITARY JUDGE FAILED TO COMPLY
WITH BATSON V. KENTUCKY, 476 U.S. 79 (1986), AND UNITED STATES
V. MOORE, 28 MJ 366 (CMA 1989), WHEN HE REFUSED TO HAVE TRIAL COUNSEL,
ON THE RECORD, ARTICULATE A RACE-NEUTRAL EXPLANATION FOR THE GOVERNMENTS
PEREMPTORY CHALLENGE OF ONE OF ONLY TWO BLACK MEMBERS ON APPELLANTS COURT-MARTIAL
PANEL.

ISSUE XXI
WHETHER THE GOVERNMENT ERRED BY USING ITS PEREMPTORY
CHALLENGE TO EXCLUDE A PANEL MEMBER BASED UPON HIS SCRUPLES ABOUT THE DEATH
PENALTY.



Appellant initially attacks the system of military
justice because it unnecessarily permits the Government a peremptory challenge
even when it has not been denied a challenge for cause. He cites Ford
v. Georgia, 498 U.S. 411 (1991), for the proposition that "the apparent
reason for the one peremptory challenge procedure is to remove any lingering
doubt about a panel members fairness . . . ." In such a system he asserts
that "the [unrestricted] peremptory challenge becomes a device subject
to abuse." Final Brief at 179. He thus suggests that his conviction and
sentence should be overturned on this basis alone.
Article 41(b), UCMJ, 10 USC § 841(b),
at the time of trial4
provided: "Each accused and the trial counsel is entitled to one peremptory
challenge." See RCM 912(g). Obviously, Congress and the President,
the constitutionally authorized rulemakers for the military justice system,
thought that a reason existed to provide the Government, as a party, a
peremptory challenge.
See 37 MJ at 737-38, citing Swain v. Alabama,
380 U.S. 202 (1965), overruled by Batson, 476 U.S. at 93.
Neither Ford v. Georgia, supra, nor any other case invalidates
their judgment. Thus, we reject this challenge to appellants conviction
and sentence, as we did in Loving, 41 MJ at 294-95.
Appellant next asserts that the military judge
erred by failing to require the prosecution to "timely" articulate a "race-neutral"
explanation for the Governments use of its peremptory challenge against
one of only two black panel members. He contends that the belated submission
of an unsworn statement by trial counsel does not comply with Batson
or our case law. The Court of Military Review noted the facts surrounding
this challenge and rejected appellants timeliness argument. We agree.
The lower court stated:



When the government used its peremptory challenge
to remove one of the two black court members, the defense counsel demanded
an explanation on the record. Although the trial counsel offered to articulate
the reason for the challenge, the military judge stated one was not necessary.
We agree with the appellant that the trial counsel must articulate a race-neutral
explanation for a peremptory challenge if objected to by the defense. Batson,
476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); Moore, 28 MJ
366 (CMA 1989) (per se rule adopted; when the accused is a member
of a recognized racial group and the government uses a peremptory challenge
on a member of that racial group and the accused objects, the government
is required to provide an explanation). The trial counsel did, however,
provide a statement at the next court session, stating a race-neutral explanation
for the challenge, to wit, the members responses concerning the death
penalty were equivocal. This statement was included in the record as Appellate
Exhibit LVIII. A statement included in the record is sufficient as long
as it provides the court with a complete explanation for the challenge.
Moore,
28 MJ at 366, 368 n. 6-7. The trial counsels statement provides a sufficiently
race-neutral explanation for the challenge, and we find that public confidence
in the military justice system has not been undermined. We therefore find
the appellants assertion to be without merit.



37 MJ at 738 (emphasis added). No legal authority
has been proffered for appellants untimeliness argument in these circumstances.
Cf.
Morning v. Zapata Protein (USA), Inc., 128 F.3d 213, 215-16 (4th
Cir. 1997). Moreover, we also find his unsworn-statement argument to be
without merit. See Moore, 28 MJ at 368 nn. 7-8 (noting broad
discretion afforded military judge in how to comply with
Batson),
revd after remand, 30 MJ 162 (CMA 1990).
Our dissenting brothers, venturing somewhat
beyond the particular claims of the defense on this appeal, conclude that
the military judge failed to comply with all three of the requirements
established in Batson v. Kentucky, supra, for evaluating
peremptory challenges. In United States v. Greene, 36 MJ 274, 278
n.2 (1993), we summarized these requirements as follows:



The three-step process includes: (1) a defendant
must make a prima facie showing that the prosecutor has exercised
a peremptory challenge on the basis of race; (2) the burden then shifts
to the Government to articulate a race-neutral explanation for striking
the jurors in question; and (3) the trial court must determine whether
the defendant has carried his burden of proving purposeful discrimination.
Batson
v. Kentucky, 476 U.S. 79, 97-98, 106 S.Ct. 1712, 1723-24, 90 L.Ed.2d
69 (1986).



The dissent further concludes that this failure
denied appellant his constitutional right to equal protection of the law
and requires setting aside the findings of guilty and the sentence in this
capital case. We disagree. See generally United States
v. Ladell, 127 F.3d 622, 625 (7th Cir. 1997); United
States v. Carter, 111 F.3d 509, 512 (7th Cir. 1997).
In this regard, we initially note that appellant
was tried in 1987 and the early months of 1988, before the decision of
this Court in United States v. Moore, 28 MJ 366 (1989), and United
States v. Santiago-Davila, 26 MJ 380 (1988). At that time we had not
yet held that Batson applied at courts-martial or that a prima
facie case of discrimination could be made out by merely showing that
a peremptory challenge was lodged against a court-martial member who was
of the same minority race as the accused and he objected to that challenge.
See
Moore, 28 MJ at 368 ("After today [August 10, 1989], every peremptory
challenge by the Government of a member of the accuseds race, upon objection,
must be explained by trial counsel."). Nevertheless, trial counsel did
provide, albeit belatedly, a race-neutral explanation for his challenge,
mooting any question of error in the judges apparent determination that
the defense had not made a sufficient showing to require government explanation.
See United States v. Cooper, 30 MJ 201, 203 (CMA 1990); Mahaffey,
151 F.3d at 679.
Turning to the second Greene prong,
we obviously conclude that the military judge did not preclude trial counsel
from offering any explanation for the challenge against Major Quander.
The military judge did more than require trial counsel to simply state
whether his "challenge was a result of his bias or prejudice against the
black race . . . ." Shortly after trial counsel denied such an intent and
proffered unsuccessfully an explanation for that challenge, the military
judge relented and permitted trial counsel to attach to the record a memorandum
signed by trial counsel explaining the challenge. See Turner
v. Marshall, 121 F.3d 1248, 1254 n.2 (9th Cir. 1997) (contemporary
explanation of prosecutor favored), cert. denied, 118 S. Ct. 1178
(1998); cf. Simmons v. Beyer, 44 F.3d 1160, 1168 (3d Cir.)
(record not sufficient without prosecutorial explanation), cert. denied,
516 U.S. 905 (1995); Cochran v. Herring, 43 F.3d 1404, 1411 n.11
(11th Cir. 1995), cert. denied, 516 U.S. 1073 (1996).
Finally, the reason articulated in the memorandum, i.e., Major Quanders
indecisiveness on the death penalty as a punishment, is a well recognized
race-neutral explanation for a peremptory challenge. See Howard
v. Moore, 131 F.3d 399, 407-08 (4th Cir. 1997), cert.
denied, 119 S.Ct. 108 (1998); Kilgore v. Bowersox, 124 F.3d
985, 992 (8th Cir. 1997), cert. denied, 118 S.Ct. 2352
(1998); see generally United States v. Canoy, 38 F.3d
893, 898 (7th Cir. 1994).
Finally, on the third Greene prong,
we do not agree with the dissent that "the military judge [did not] make
a determination as to whether trial counsels explanation was credible
or pretextual." ___ MJ at (9). Optimally, an express ruling on this
question is preferred. However, the judge clearly stated his satisfaction
with trial counsels disavowal of any racist intent in making the challenge.
Moreover, he asked defense counsel whether they "have some facts that would
indicate a different result," and he permitted trial counsel "to append
to the appellate record a Memorandum for Record indicating the Governments
reason for perempting Major Quander." Finally, he ensured that defense
counsel had "seen" the memorandum for record and inquired whether there
was "[a]nything else." Viewing this conduct of the judge in its entirety,
we conclude that it constitutes an implied ruling on his part that trial
counsels explanation was genuine and that appellants Batson claim
was without merit. See generally Purkett v. Elem,
514 U.S. 765, 769, 115 S.Ct. 1769, 1771-72, 131 L.Ed. 2d 834 (1995); seealso
United States v. Clemons, 941 F.2d 321, 323-24 (5th Cir.
1991)(district court has discretion to determine procedures to test genuineness
of race-neutral explanations); cf. United States v. Tucker,
836 F.2d 334, 340 (7th Cir. 1988), cert. denied, 490
U.S. 1105 (1989); see also United States v. Arce,
997 F.2d 1123, 1127 (5th Cir. 1993)(no need to make ruling where
defense fails to dispute government explanation).
Appellant finally asserts that the Governments
exercise of its peremptory challenge against Major Quander because of his
scruples against capital punishment was unconstitutional. See Brown
v. North Carolina, 479 U.S. 940, 942 (1986) (Brennan and Marshall,
JJ., dissenting on denial of certiorari). The record indicates that Major
Quander on voir dire admitted that "I would have a very difficult
time doing it." The Government argues that his answers suggest that his
views also would "prevent or substantially impair the performance of his
duties as a juror . . ." and this was a proper consideration under Witt,
469 U.S. at 412. Answer at 84 n.57. The Court of Military Review opined
that the Government proffered "a sufficiently race-neutral explanation"
for its challenge which did not otherwise violate the Constitution. 37
MJ at 738.
We reject appellants argument under the circumstances
of this case. We note that extension of Batson v. Kentucky, 476
U.S. 79 (1986), to a peremptory challenge based on death-penalty scruples
rather than on race has not been accepted by a majority of the Supreme
Court. See Brown, 479 U.S. at 940-41 (OConnor, J., concurring
on denial of certiorari); cf. id. at 942 (Brennan and Marshall,
JJ., dissenting on denial of certiorari). Moreover, even if Batson
was extended to prevent the prosecutor from obtaining a "hanging jury"
without death-penalty scruples, this rule would not apply to Major Quanders
challenge. His removal was based on his "indecisive[ness]" about capital
punishment, an attitude which "would prevent or substantially impair the
performance of his duties as a juror in accordance with his instructions
and his oath." See Witt, 469 U.S. at 424. Finally, no objection
was lodged at trial against the Governments explanation of Major Quanders
challenge on this basis; thus, we see no plain error by the judge in allowing
the prosecutors peremptory challenge. See Arce, 997 F.2d
at 1126-27.




ISSUE XXII
WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL
PREJUDICE OF APPELLANT IN A CAPITAL CASE BY ADMISSION OF GRUESOME PHOTOS
OF THE DECEDENTS, INCLUDING PROSECUTION EXHIBIT 214, WHICH IS A PHOTOGRAPH
OF A VICTIMS BADLY DECAYED FACE, WITH A GUNSHOT WOUND TO THE EYE SOCKET.



We reject appellants argument for the reasons
ably stated by the Court of Military Review. 37 MJ at 738-39. In this multiple
violent-murder case, it cannot be seriously argued that these photographs
were admitted only to inflame or shock this court-martial. Moreover, we
agree with the court below that the photographs probative value in thiscontext
was not substantially outweighed by any prejudicial effect.
See
Mil.R.Evid. 403, Manual, supra.




ISSUE XXIII
WHETHER THE OUTCOME OF APPELLANTS TRIAL WAS
JEOPARDIZED BY THE ERRORS OF THE MILITARY JUDGE AND THE PROSECUTION WHEN
THE PROSECUTION FAILED TO DISCLOSE THE IDENTITY OF A REGISTERED SOURCE
IN POSSESSION OF INFORMATION FAVORABLE TO THE DEFENSE, AND THE MILITARY
JUDGE WOULD NOT ORDER DISCLOSURE.



For the first time on appeal before us, appellant
challenges the decision of the military judge not to order the prosecution
to reveal the identity of its informant, "Registered Source No. 0590 [hereinafter
RS]." At trial he asserted that the judges action precluded the defense
from disproving the prosecutions factual theory that Ms. Vickery-Clay
was murdered in the woods prior to the burning of her house trailer.
See
Roviaro v. United States, 353 U.S. 53 (1957). On appeal, he also
asserts that the prosecution unfairly denied him an opportunity to question
the RS about other possible defenses which might arise from his pretrial
statements to CID. See Brady v. Maryland, 373 U.S. 83 (1963).
The first step we must take to resolve this
issue is to identify the expected testimony of the RS sought by thedefense.
Trial defense counsel initially asserted based on CID reports, that this
witness would testify that "the Vickery-Clay vehicle [was parked] outside
her trailer when the fire began." Final Brief at 193. He also would testify
that he saw a large heavy set black male at the scene of the fire.
Next, we must address the question whether
this information sought by the defense was relevant to the murder, rape,
and sodomy charges concerning Ms. Vickery-Clay. We initially note that
appellant was not charged with arson of Ms. Vickery-Clays trailer. However,
the prosecutor at this court-martial acknowledged that his murder-charge
proof would show that appellant murdered Ms. Vickery-Clay in the woods,
returned to her trailer in her car, and then burned that trailer to destroy
any evidence linking him to the murder. In this context, RS testimony
on placement of the car next to the trailer before the fire was relevant,
if not supportive, of the prosecutions theory of guilt. See
Mil.R.Evid. 401 and 402.
Nevertheless, trial defense counsel asserted
that the testimony of the RS in conjunction with a second expected defense
witness was also helpful to his defense. He notes that Ms. Winhoult [or
Wineholt] was expected to testify that, prior to the fire, she saw
Ms. Vickery-Clays automobile parked outside Ms. Winhoults trailer and
observed "a black, heavyset male leaning into the drivers window" and
she heard "a female voice." Appellate counsel argues that the RSs testimony
was material because



[t]he defense counsel related that he had
interviewed several witnesses and determined that the RS and one unknown
individual with him were the only witnesses who saw the Vickery-Clay vehicle
outside her trailer when the fire began. The defense argued that this evidence,
combined with Ms. Winhoults, demonstrated that when the Vickery-Clay vehicle
was spotted prior to the fire, there was a female inside. Shortly after
it was spotted, a heavy set black male walked away from the area. After
this occurred, the vehicle was moved over to the Vickery-Clay trailer,
and then the fire occurred. The defense counsel argued that this evidence
created reasonable doubt in the government theory that the appellant killed
Vickery-Clay in the woods, drove her car to the vicinity of the Winhoult
trailer, and burned the Vickery-Clay trailer. (R. at 1022-27).



Final Brief at 193.
The military judge denied appellants request
for disclosure of the RSs identity on this somewhat complicated proffer.
He held that "the benefit of this information the source could provide
is far outweighed by the loss -- of the Government would suffer as a consequence
of a revelation of the name." There is no dispute in this case with the
judges determination that the RS was an "extremely productive" source
of "long standing." The military judge reached this conclusion after reviewing
in
camera this operatives file. However, there was a dispute over the
favorability of the RSs expected testimony to the defense and the judges
balancing of these concerns as required by Roviaro, 353 U.S. at
61. We conclude that the military judge did not abuse his discretion in
implicitly holding that, under the circumstances, "the disclosure of [this]
informers identity . . . is [not] relevant and helpful to the defense
of [this] accused, or is [not] essential to a fair determination of [this]
cause[.]" Id. at 60-61; see United States v. Sai Keung
Wong, 886 F.2d 252, 255 (9th Cir. 1989).
In this regard, we note that the defense theory
of contradiction of the prosecutions case was largely based on the expected
testimony of Mrs. Winhoult, not that of the RS. She was supposed to testify
that she observed Ms. Vickery-Clays car parked outside the Winhoult trailer
prior to the fire and heard an unidentified female voice in that car talk
to a large male prior to the fire. Her testimony, even if corroborated
in some respect by the RS, does not clearly establish that Ms. Vickery-Clay
was alive prior to her trailers fire, thus contradicting the prosecutions
case. In any event, the defense did not even call this witness or otherwise
pursue this theory of contradiction at trial. Id.; see United
States v. Robinson, 144 F.3d 104, 107 (1st Cir. 1998)(court
need not order disclosure where informant not the only witness to contradict
government case).
We further note that the defense did not establish
that the RS would corroborate Mrs. Winhoults testimony on any of its critical
points. The RS was not expected to testify that he heard a female voice
come from Ms. Vickery-Clays vehicle prior to the fire talking to a large
male. Moreover, the RSs expected testimony on the placement of the victims
vehicle as being adjacent to the victims trailer contradicted Mrs. Winhoults
expected testimony. Finally, the speculative movement-of-the-car theory
proposed by the defense was not directly supported by Mrs. Winhoults statements.
In this context, the military judge did not abuse his discretion, in refusing
to disclose the identity of RS for testimony on what became an immaterial
matter. See United States v. Wright, 145 F.2d 972, 975 (8th
Cir.), cert. denied, 119 S.Ct. 272 (1998); cf. Devose
v. Norris, 53 F.3d 201, 206 (8th Cir. 1995) (first-hand witness or
participant in charged crime should be disclosed).
Further relying on other CID reports, appellant
asserts that he was denied the opportunity to question the RS about various
other matters which might have provided a defense to the Vickery-Clay murder
charge. He asserts that the prosecution did not "disclose the full extent
of the RSs involvement in appellants case" until after trial. He notes
that Appellate Exhibit LXX shows that the RS had additional knowledge about
this case, as follows:



1. That the RS had seen appellant in the
area of the Bragg hotel.
2. That another taxi driver named "Ann" had
driven appellant around the Fort Bragg and Pope Air Force Base area on
16 December 1986 at approximately 2200-2300 hours.
3. That he had spoken with another taxi driver
named "Debbie" who had driven SPC Gray and his wife to various destinations.
4. That one of the destinations included the
East Coast Pawn Shop and "that Grays wife did most of the pawning."



Final Brief at 194.
He concludes that in determining the RSs materiality,
this Court should consider the possible defense which questioning of the
RS might have produced." Counsel identified these questions for the RS:



1. Was Vickery-Clay . . . alive at the time
of the fire, contrary to the theory of the government?
2. Did the RS see the same heavy set black
male at the scene of the fire?
3. Was that individual SPC Gray?
4. If that individual was SPC Gray, had he
departed the area prior to the fire?
5. Were the accused and his wife engaged in
a pattern of "pawning" stolen property?
6. Was the accuseds wife involved in the Miskanin
offenses?
7. Whether the Miskanin pistol was stolen for
the purpose of "pawning" it, rather than for the commission of premeditated
murder?
8. Were "Ann" and "Debbie" the only other taxi
cab drivers that had contact with SPC Gray?
9. What was the nature of that contact?



Final Brief at 197.
Appellants second approach to failure of the
prosecution to disclose the identity of the RS suggests a violation of
Brady
v. Maryland, 373 U.S. 83 (1963). He asserts that his right to a fair
trial is violated when exculpatory evidence in the prosecutions possession
is not turned over to defense. Moreover, he asserts that the newly discovered
knowledge of the RSs existence should be considered exculpatory (material
and favorable to the defense) when the Government precludes the defense
from fully investigating such information. See United States
v. Bagley, 473 U.S. 667, 683 (1985)(opinion of Blackmun, J.), and United
States v. Fisher, 24 MJ 358, 362 (CMA 1987).
We note that none of the information purportedly
possessed by the RS comes anywhere near being considered exculpatory evidence.
See
United States v. Watson, 31 MJ 49, 54 (CMA 1990). It does not provide
a defense to appellant or contradict the prosecutions case in any substantial
way. Moreover, we are not inclined to speculate as to the answers the RS
would have given to defense appellate counsels questions where there is
no basis in the record for concluding his answers would provide Brady
material. Cf. United States v. Rivera, 24 MJ 156, 158 (CMA
1987) (content reasonably available from later defense proffer); Fisher,
24 MJ at 362 (record imports a reasonable possibility that proffered evidence
was material). We find no violation of Roviaro or Brady in
this context.




ISSUE XXIV
WHETHER THE MILITARY JUDGE IMPROPERLY DENIED
A DEFENSE MOTION FOR A MISTRIAL BASED ON TRIAL COUNSELS COMMENTS ON APPELLANTS
DEMEANOR AND RIGHT TO REMAIN SILENT.



During his argument on sentencing, trial counsel
stated the following:



Youve had an opportunity to -- to see the
accused on a daily basis here for about three weeks. Ask yourself a question:
has he ever indicated to you by his actions any remorse for what hes done?
You can consider that. You should consider that.



Defense counsel did not object at that time. At
the conclusion of trial counsels argument, defense counsel requested a
side-bar conference and objected to the prosecutors language as an impermissible
comment on appellants right to remain silent. The military judge then
instructed the members as follows:



With regard to the counsels indication,
or phrase, "has the accused indicated by his actions any remorse?", that
is susceptible of an interpretation of a comment upon his--the accused
having remained silent and not having testified in the case, as Im sure
you [sic] aware. The right to remain silent is a constitutional guarantee
of all of us, and no inference--adverse inference may be drawn from the
fact that the accused elected not to testify in this case. And Im sure
that you will not draw any such adverse inference, nor read into it--the
counsels--trial counsels closing argument, that that was a comment upon
his right to remain silent.



At the conclusion of the military judges instructions
on sentencing, trial defense counsel made a motion for a mistrial.
The military judge was concerned enough with
trial counsels argument to issue an instruction to the members to prevent
their being misled by it. See Gaskins v. McKellar, 916 F.2d
941, 951 (4th Cir. 1990), cert. denied, 500 U.S. 961 (1991); see
also Resnover v. Pearson, 965 F.2d 1453, 1465 (7th Cir. 1992),
cert.
denied, 508 U.S. 962 (1993). This instruction was protective in nature
and expressly directed the members to refrain from drawing any inference
from appellants exercise of his right to remain silent. Cf.
United
States v. Moore, 917 F.2d 215, 226 (6th Cir. 1990). We are satisfied
that these circumstances did not require that the military judge grant
a mistrial. See United States v. Rushatz, 31 MJ 450, 456
(CMA 1990) (mistrial is an extraordinary remedy; curative instruction "preferred
remedy"); see also Feltrop v. Delo, 46 F.3d 766, 775
(8th Cir. 1995);5 Hughes
v. Johnson, 991 F.Supp. 621, 637 (S.D. Tex. 1998); Six v. Delo,
885 F.Supp. 1265, 1285 (E.D. Mo. 1995), affd, 94 F.3d 469 (8th
Cir. 1996), cert. denied, 520 U.S. 1255 (1997).




ISSUE XXV
WHETHER APPELLANT WAS SENTENCED TO DEATH IN
VIOLATION OF THE EIGHTH AMENDMENT PROHIBITION AGAINST CRUEL AND UNUSUAL
PUNISHMENT WHEN THE MILITARY JUDGE PRECLUDED THE SENTENCING PANEL FROM
CONSIDERING APPELLANTS BACKGROUND AS A BASIS FOR A SENTENCE LESS THAN
DEATH.



Appellant asserts that the military judge committed
constitutional error in his case by preventing the members from considering
his social and family background as a mitigating circumstance in their
death-penalty decision. He calls our attention to the military judges
denial of his request for the members to consider that his "difficult and
impoverished upbringing" were "mitigating circumstances to be weighed against
the aggravating" circumstances in determining his eligibility for the death
penalty and whether to impose it in his case. See RCM 1004(b)(4)(c).
He particularly notes the judges decision excluding a videotape of a network
television show dealing with the poor living conditions and social dynamics
of his community, Liberty City, Miami, Florida. See RCM 1004(b)(3).
Final Brief at 212-13. The judges actions as a whole, he asserts, created
an impermissible "risk that the death penalty . . . [was] imposed in spite
of factors which may call for a less severe penalty." Lockett v. Ohio,
438 U.S. 586, 605 (1978) (plurality opinion); see Hitchcock v.
Dugger, 481 U.S. 393 (1987); Penry v. Lynaugh, 492 U.S. 302,
328 (1989).
The first question we must address is whether
exclusion of the defense-proffered video on life in Liberty City, a part
of Miami, Florida, warrants reversal of appellants death sentence. The
military judge excluded it on relevance grounds, holding that "[t]he evidence
before the court is to the effect that Gray was not affected factually
by his environment and so, its of no consequence." Appellant argues that
this holding denied him evidence of mitigating circumstances required to
be admitted by the Eighth Amendment. See Lockett, 438 U.S.
at 605 (opinion of Burger, C.J.), and Hitchcock v. Dugger, supra.
The Supreme Court has indeed recognized the
broad right of a capital defendant to introduce mitigating evidence to
avoid the death penalty. See Skipper v. South Carolina, 476
U.S. 1 (1986). This right is fully embraced in RCM 1004(b)(3). However,
the Supreme Court has not attempted to rewrite the rules of evidence for
capital-punishment proceedings. See Romano, 512 U.S. at 11-12,
114 S.Ct. at 2011. Relevance and other concerns expressed in a jurisdictions
rules of evidence are still to be applied in the traditional manner by
the judge. See Lockett, 438 U.S. at 604 n.12, 98 S.Ct. at
2965 n.12 (opinion of Burger, C.J.).
Here, the military judge determined that evidence
of conditions of appellants hometown was irrelevant because up to that
point all the evidence presented suggested that appellant was not affected
by this environment. See also Davis v. Scott, 51 F.3d
457, 462 (5th Cir.), cert. denied, 516 U.S. 992 (1995). We agree
with appellant, however, that the testimony of Doctor Armitage and Doctor
Rose that Private Grays background could have impacted upon his development
established the necessary relevance of evidence of his background. See
Boyd v. French, 147 F.3d 319, 325-27 (4th Cir. 1998),
cert.
denied, 119 S.Ct. 1050 (1999). However, we also hold that any
error in excluding the videotape on Liberty City was harmless error. Other
evidence was admitted in this case through the testimony of appellants
mother and sister regarding his childhood "in the projects" of Miami, and
his abusive relationship with his stepfather. Any error in excluding this
videotape was clearly harmless beyond any doubt. See also Castro,
138 F.3d at 832.
Appellants second argument is that the military
judge precluded the members of his court-martial from considering admitted
evidence of his family and social background as a mitigating circumstance
in their death-penalty decision. See Penry v. Lynaugh, supra.
He notes that the judge expressly refused to instruct as requested by the
defense that background evidence be considered a mitigating circumstance.
He also notes that the judge did not list these circumstances as mitigating
to the members which suggested to the members that they should not be so
considered. See Hitchcock, 481 U.S. at 398-99. We disagree.
We initially note that the applicable principle
of law established by Lockett v. Ohio, supra, and its progeny
is well recognized. Recently, in Johnson v. Texas, 509 U.S. 350,
361-62, 113 S.Ct. 2658, 2666 (1993), Justice Kennedy for a majority of
the Court stated:



"Lockett and its progeny stand only
for the proposition that a State may not cut off in an absolute manner
the presentation of mitigating evidence, either by statute or judicial
instruction, or by limiting the inquiries to which it is relevant so severely
that the evidence could never be part of the sentencing decision at all."
McKoy
v. North Carolina, 494 U.S. 433, 456, 110 S.Ct. 1227, 1240, 108 L.Ed.2d
369 (1990) (KENNEDY, J., concurring in judgment); see also Graham,
506 U.S. at 475, 113 S.Ct. at 901-02; Saffle v. Parks, 494 U.S.
484, 490-491, 110 S.Ct. 1257, 1261, 108 L.Ed.2d 415 (1990).



Moreover, in that same case, the Supreme Court
noted the standard set out in Graham v. Collins, 506 U.S. 461, 475,
113 S.Ct. 892, 902 (1993), for determining whether an instruction effectively
placed "relevant mitigating evidence . . . beyond the effective reach of
the sentencer." 509 U.S. at 366. Justice Kennedy wrote:



The standard against which we assess whether
jury instructions satisfy the rule of Lockett and Eddings
[v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982)]
was set forth in Boyde v. California, 494 U.S. 370, 110 S.Ct. 1190,
108 L.Ed.2d 316 (1990). There we held that a reviewing court must determine
"whether there is a reasonable likelihood that the jury has applied the
challenged instruction in a way that prevents the consideration of constitutionally
relevant evidence." Id., at 380, 110 S.Ct., at 1198. Although the
reasonable likelihood standard does not require that the defendant prove
that it was more likely than not that the jury was prevented from giving
effect to the evidence, the standard requires more than a mere possibility
of such a bar. Ibid. In evaluating the instructions, we do not engage
in a technical parsing of this language of the instructions, but instead
approach the instructions in the same way that the jury would--with a "commonsense
understanding of the instructions in the light of all that has taken place
at the trial." Id., at 381, 110 S.Ct., at 1198.



509 U.S. at 367-68, 113 S.Ct. at 2669.
Turning to appellants case, we note that the
military judge did not expressly instruct the members not to consider appellants
family and social background as mitigating circumstances. Moreover, we
reject appellants argument that the reasonable implication of his mitigating-
circumstances instruction was that this evidence should not be considered
as a mitigating circumstance. Although the military judge did not expressly
delineate this evidence as a mitigating circumstance, he did expressly
instruct the members to consider the psychiatric opinions of Doctors Armitage
and Rose concerning appellants personality disorder. These opinions in
turn were expressly based on and referenced appellants family and social
background. Cf. Hitchcock v. Dugger, supra.
Turning to the record, we note that the military
judge instructed the members, inter alia, on mitigating circumstances
as follows:



You must consider all evidence in extenuation
and mitigation and balance them against the aggravating factors using the
test I previously instructed you upon. Thus, you should consider the following
extenuating and mitigating factors: the accuseds age, which is 22 years,
the accuseds good military character, as well as his duty performance
and the characterization of him as--by his-- the various and sundry witnesses
on extenuation and mitigation . . . .
Additionally, you should consider in extenuation
and mitigation, and in weighing those against the aggravating factors,
the accuseds personality disorder as testified to by Dr. Armitage, Dr.
Rose, and Dr. Warren. You can best recall precisely what they had to say.
Additionally, the duration of the accuseds pretrial confinement....



Doctor Armitages testimony on appellants personality
disorder includes express reference to appellants social and family upbringing.
He testified as follows:



Q: These personality disorders, are
these--are these sub-groups-
-theyre not self-inflicted on the
part of Specialist Gray?
A: Thats correct.
Q: Theyre something that he got
either through--he inherited them
or part of the child rearing or
whatever?
A: Generally the--in the state of the
knowledge that we have now, there
are probably many different reasons
that people end up the way
Specialist Gray ends up, or the way
any of us ends up - many different
reasons.
Q: Were you able to identify any
specific factors that caused
Specialist Grays personality
disorders to develop?
A: There are a number of factors in
his background that I think are
less than helpful--were less than
helpful in his development.
Q: Such as?
A: Well, he had early in life a fair-
-fairly substantial socioeconomic
depravation, multiple male figures
in the home, multiple physical
moves, living in substandard--proverty
[sic] conditions, circumstances where
the electric lights were turned out by
the company because bills were not paid, projectal[6]
[sic] living, things of this
nature - multiple school changes.
Now, some people could say that
sounds like the military, multiple
school changes, but the reason for
the changes are different. Theyre
not planned, group accepted
changes. You have to move to some
other place cause you cant pay
the rent, so you end up in another
school. Things of that nature. He
had a stepparent at one time who
was extremely abusive to his mother
and abusive to himself, using belts
on him to the point of inflicting
injury, drawing blood. He felt the
need to protect his mother from--from
this abuse. Lived in a--in a part of
Miami that certainly was--was not where
you and I would want to live by any means.
Curiously enough, in all of this, however,
he didnt succumb to some behaviors that
many people in those environments succumb
to. He didnt become a drug abuser; he
didnt become an alcoholic. As far as we
know, didnt become a petty thief. . . .

 

* * *


Questions by Military Judge:
Q: It may not seem quite as--germane,
but it is to me. Youve listened
to all these factors that you
perceive that have some sort of
effect that would--or causation
factor, and the result that you
perceive in Gray, like economic
depravation, multiple father
figures, etcetera. If ahwith
regard to the environment, if the
evidence indicates this environment
that is as you characterizedI
believe in living--perhaps, I
believe you may have said in an
undesirable part of Miami, or some
phraseology of that nature anyway--
if the evidence indicated that the
individual was not affected by that
particular environment, then would that environment
become relevant at all?
A: No, it wouldnt, and you raised a
very excellent question, the answer
to which we dont have. And the
answer would require that we know
why one individual is affected by
the environment and why another
isnt. But this we do know.
People from backgrounds similar to
Specialist Gray have much greater
incidents of violations of societal
rules and crime. There are several
other features of his background
that we havent touched on that
would address your question. And
that is - when he came into the
Army he was a pretty socially
backward individual.



We conclude that a commonsense understanding of
the instructions in light of all that took place at the trial was that
the members should consider appellants background as a mitigating circumstance.
See
Castro, 138 F.3d at 830; Bolender v. Singletary, 16 F.3d
1547, 1566 (11th Cir.), cert. denied, 513 U.S. 1022 (1994);
cf.
Hitchcock v. Dugger, 481 U.S. 393 (1987).




ISSUE XXVI
WHETHER THE MILITARY JUDGE FAILED TO INSTRUCT
THE PANEL MEMBERS THAT THE SPECIFICATION OF CHARGE IV (LARCENY) IS MULTIPLICIOUS
FOR SENTENCING PURPOSES WITH THE SPECIFICATION OF CHARGE VII (BURGLARY).



The defense at trial made a motion that the burglary
of the Miskanin residence and the larceny of property therefrom be considered
multiplicious for sentencing. This motion was made prior to the decision
of this Court in United States v. Teters, 37 MJ 370 (1993), and
the military judge denied this motion, using a societal-norm test. See
RCM 1003(c)(1)(C), Discussion ("No single test or formula has been developed
which will resolve the question of multiplicity.") In view of the numerous
other offenses for which appellant was found guilty and their heinous nature,
any error committed by the judge in this regard was harmless beyond any
doubt. See generally Art. 59(a), UCMJ, 10 USC § 859(a).




ISSUE XXVII
WHETHER APPELLANTS DEATH SENTENCE VIOLATES
THE FIFTH, SIXTH, AND EIGHTH AMENDMENTS AND UCMJ, ARTICLE 55, IN THAT APPELLANT
WAS GIVEN THE DEATH PENALTY BASED UPON A CONGLOMERATION OF AGGRAVATING
FACTORS WHICH INEXTRICABLY DOUBLE COUNTED APPELLANTS CRIMES, AND THE FAILURE
OF THE MILITARY JUDGE TO INSTRUCT THE PANEL THAT ONE ACT CANNOT BE CONSIDERED
AS TWO AGGRAVATING FACTORS WHEN DETERMINING IF AGGRAVATING FACTORS SUBSTANTIALLY
OUTWEIGH EXTENUATING AND MITIGATING FACTORS.



Appellant was found guilty of two specifications
of premeditated murder, in violation of Article 118(1), in addition to
numerous other offenses in this case. As a first step to establish appellants
death-penalty eligibility, the Government had to establish "one or more
of the . . . aggravating factors" listed in subsection (c) of RCM 1004.
Appellant asserts that the military judge erred by failing to instruct
the members not to double count aggravating factors or find more than one
aggravating factor based on the evidence of a single offense. Such double
counting, he asserts, precludes the members from properly determining that
he was eligible to receive the death penalty (RCM 1004(b)(4)(C)) and that
he should, after all, receive it. See People v. Harris, 679
P.2d 433, 452 (Cal. 1984), and State v. Tittle, 710 P.2d 449, 454-55
(Ariz. 1985); cf. People v. Proctor, 842 P.2d 1100, 1129-30
(Cal. 1992); see generally Stringer v. Black, 503
U.S. 222, 235, 112 S.Ct. 1130, 1135 (1992) (must avoid "risk that the jury
. . . treat[ed] the defendant as more deserving of the death penalty than
he might otherwise be").
We initially note that the version of RCM 1004(b)
applicable at trial provides the following concerning aggravating factors:



(2) Evidence of aggravating factors.
Trial counsel may present evidence in accordance with RCM 1001(b)(4) tending
to establish one or more of the aggravating factors in subsection (c) of
this rule.

* * *
(4) Necessary findings. Death may not
be adjudged unless--
(A) The members find that at least one of the
aggravating factors under subsection (c) existed;
(B) Notice of such factor was provided in accordance
with paragraph (1) of this subsection and all members concur in the finding
with respect to such factor; and
(C) All members concur that any extenuating
or mitigating circumstances are substantially outweighed by any aggravating
circumstances admissible under RCM 1001(b)(4), including the factors under
subsection (c) of this rule.



The version of RCM 1004(c)(7) applicable at trial
provided:



(7) That, only in the case of a violation
of Article 118(1):

* * *
(B) The murder was committed while the accused
was engaged in the commission or attempted commission of any robbery, rape,
aggravated arson, sodomy, burglary, kidnapping, mutiny, sedition, or piracy
of an aircraft or vessel, or was engaged in flight or attempted flight
after the commission or attempted commission of any such offense;

* * *
(I) The murder was preceded by the intentional
infliction of substantial physical harm or prolonged, substantial mental
or physical pain and suffering to the victim; [and]
(J) The accused has been found guilty in the
same case of another violation of Article 118[.]



The military judge instructed the members on aggravating
circumstances as follows:



Youre advised that, in view of your findings,
the court is authorized to adjudge a sentence of death, or life imprisonment
only, with other types of punishments like reduction and forfeitures, which
Ill mention in just a moment.
You may adjudge a sentence of death only under
certain circumstances. First, the death sentence may not be adjudged unless
all the court members find beyond a reasonable doubt that one or more of
the aggravating factors existed. Those aggravating factors which are set
forth on the sentence worksheet for you are:
that the premeditated murder of Laura Lee
Vickery-Clay was committed while the accused was engaged in the commission
of a rape or sodomy of the victim;
that as to Kimberly Ann Ruggles, that the
premeditated murder of Kimberly Ann Ruggles was committed while the accused
was engaged in the commission of a rape, sodomy, or robbery of the victim;
that as to the Vickery--Laura Lee Vickery-Clay,
that the premeditated murder of Laura Lee Vickery-Clay was preceded by
the intentional infliction of substantial mental and physical pain and
suffering to the victim;
that as to the premeditated murder of Kimberly
Ann Ruggles, that the premeditated murder of Kimberly Ann Ruggles was preceded
by the intentional infliction of substantial mental and physical pain and
suffering of the victim; and finally,
that the accused has been convicted in the
same case--which he has--of more than one violation of Article 118.
Again, you may not adjudge a death sentence
unless all the court members--that is unanimously--find beyond a reasonable
doubt that one or more of those aggravating factors existed. And again,
those--those factors are set forth in the sentence worksheet.
All of the members of the court must agree
beyond a reasonable doubt that one or more of those aggravating factors
existed at the time of the offenses, or offense, or resulted from the offense.
It is not sufficient that some members find that one aggravating factor
existed, while the remaining members find that a different aggravating
factor existed. Rather, all of you must find beyond a reasonable doubt
that the same aggravating factor, or factors, existed before a sentence
of death may be adjudged. . . .



(Emphasis added.) The members found these five
aggravating factors in this case.7
See 37 MJ at 741 n.8.
Appellant initially argues that an instruction
against double counting is most appropriate in a case like his where two
murder convictions exist. He asserts that without a proper instruction,
the members might think that each murder conviction constitutes an aggravating
factor for the other;
providing two aggravating circumstances instead
of one. He cites the decision of this Court in United States v. Curtis,
33 MJ 101 (1991), cert. denied, 502 U.S. 1097 (1992), as authority
for prohibiting this double counting.
We note that in Curtis, this Court considered
a different situation. There, Senior Judge Everett noted:




COMPUTATION OF
AGGRAVATING FACTORS
In one respect, however, the procedure employed
may have prejudiced Curtis. As we noted in our earlier opinion, three "aggravating
factors" were found by the members. In substance they were: 1) "the premeditated
murder of" Mrs. Lotz "was committed while [Curtis] was engaged in the commission
of a burglary"; 2) "with regard to the premeditated murder of" Mrs. Lotz,
Curtis had "been found guilty in the same case of another murder"--that
of Lieutenant Lotz; and 3) "with regard to the premeditated murder of"
Lieutenant Lotz, Curtis had "been found guilty in the same case of another
murder"--that of Mrs. Lotz. 32 MJ at 269.



33 MJ at 108. Clearly, this type of double counting
did not occur in this case as double murder was considered only once as
an aggravating factor. See 37 MJ at 741; cf. People v.
Harris, supra.
Appellant, however, urges us to also adopt
a rule against double counting aggravating circumstances based on a single
offense and substantially the same evidence. See Harris,
679 P.2d at 450. In Harris, a plurality of the Supreme Court of
California made clear that such a rule against double counting was required
in part by its state statutes. Contra Proctor, 842 P.2d at
1129-30; People v. Melton, 750 P.2d 741, 772-74 (Cal. 1988). No
such rule appears in RCM 1004, and we do not consider it required by the
Due Process Clause of the Fifth Amendment. In any event, the Court of Military
Review reconsidered this case in light of the absence of such an instruction
and determined that the sentence would have been the same." 37 MJ at 741,
citing
Stringer v. Black, 503 U.S. 222, 112 S.Ct. 1130 (1992). We agree.




ISSUE XXVIII
WHETHER THE MILITARY JUDGE COMMITTED PLAIN
ERROR BY FAILING TO INSTRUCT THE MEMBERS ON SENTENCING AS TO THE MEANING
OF THE TERM "SUBSTANTIALLY OUTWEIGHED," WITH REGARD TO THE RELATIONSHIP
OF MITIGATING CIRCUMSTANCES TO AGGRAVATING FACTORS.



We find no plain error in the military judges
instruction. He instructed the members inter alia, as follows:



If, however, you determine that at least
one of the aggravating factors existed, then you may consider, along with
all other appropriate sentence possibilities, whether a sentence of death
should be adjudged. In this regard, you may not adjudge a sentence of death
unless you find, by unanimous vote--again, by all members--that any and
all extenuating and mitigating factors are substantially outweighed by
any aggravating factors, including the factors which youve previously
found existed in the first step of this procedure[.]



The phrase "substantially outweighed" is found
in RCM 1004(b)(4)(C). It has been approved expressly and implicitly by
this Court. See Loving, 41 MJ at 278-79; Curtis, 33
MJ at 107-08. We find no constitutional or other legal error in use of
this term. See generally Victor v. Nebraska, 511 U.S.
1, 114 S.Ct. 1239 (1994); see also Ortiz v. Stewart,
149 F.3d 923, 944 (9th Cir. 1998).




ISSUE XXIX
WHETHER THE FINDINGS MUST STATE EXPLICITLY
THAT ALL MEMBERS CONCUR THAT ANY EXTENUATING OR MITIGATING CIRCUMSTANCES
ARE SUBSTANTIALLY OUTWEIGHED BY THE AGGRAVATING FACTORS FOUND BY THE MEMBERS.



There is no requirement as a matter of constitutional
or military law that the findings state that all members concur
in the balancing judgment. However, the military judge instructed the members
on this responsibility (see ___ MJ at (114)) and the vote
sheet stated specifically: "The court-martial unanimously finds any and
all extenuating and mitigating factors are substantially outweighed by
the aggravating factors, . . . ." Therefore, appellants contention in
this regard is rejected. See 37 MJ at 756; see alsoLoving,
41 MJ at 296.




ISSUE XXX
WHETHER THE DEATH PENALTY SENTENCING STANDARD
REQUIRING AGGRAVATING FACTORS TO "SUBSTANTIALLY OUTWEIGH" EXTENUATING AND
MITIGATING CIRCUMSTANCES IS IN VIOLATION OF THE FIFTH AND EIGHTH AMENDMENTS
IN THAT THE ONLY ACCEPTABLE STANDARD MUST BE "BEYOND A REASONABLE DOUBT."
SEE
ALSO ART. 59(a), UCMJ.



Appellant acknowledges that the Supreme Court
has held "that specific standards for balancing aggravating against mitigating
circumstances are not constitutionally required." Buchanan v. Angelone,
___ U.S. ___, 118 S.Ct. 757, 761-62 (1998); Zant v. Stephens, 462
U.S. 862, 876 n.13 (1983); see Walton v. Arizona, 497 U.S.
639, 651-52 (1990). We also have particularly rejected appellants
argument that the military standard is unconstitutional. See Loving,
41 MJ at 291. No further action on this assignment of error is warranted.
See
generally RCM 1004(b)(4)(C); see also Ortiz v.
Stewart, supra.




ISSUE XXXI
WHETHER THE MILITARY JUDGE ERRED IN VIOLATION
OF THE FIFTH AND EIGHTH AMENDMENTS IN FAILING TO EXPLICITLY INSTRUCT THAT
EVEN IF THE MEMBERS UNANIMOUSLY FOUND ONE OR MORE AGGRAVATING FACTORS AND
EVEN IF THE MEMBERS UNANIMOUSLY DETERMINE THAT THE EXTENUATING OR MITIGATING
CIRCUMSTANCES ARE SUBSTANTIALLY OUTWEIGHED BY THE AGGRAVATING FACTORS,
EACH MEMBER STILL HAD THE ABSOLUTE DISCRETION TO DECLINE TO IMPOSE THE
DEATH SENTENCE.



Appellant complains that the military judge should
have expressly instructed the members concerning their absolute discretion
to decide not to award the death penalty even if they determine he was
eligible for that penalty. We find this argument to be without merit.
As pointed out by the appellate court below
(37 MJ at 757), appellants argument is not supported by the record. The
military judge, responding to a question by the president of the court-martial,
stated:



MJ: Assuming you got to that point and you
unanimously found, obviously that means by all vote--all being--all concurring,
that the aggravating factors substantially outweighed all extenuating and
mitigating factors, then you can proceed to vote on the remaining elements
of the sentence. You dont have to, indeed, even if you were to do that,
you may--you may not have to--you may not be of the mind to impose the
death penalty. Assuming you reach those two stages, then your decision
is: Shall we impose a sentence of death or life as to those two elements?
Theres--the
fact that you found unanimously as to both those factors does not dictate
death be imposed. Its your decision, but you can only impose a death
sentence if you reach those two--go through those two stages unanimously.
PRES: Okay, sir.



(Emphasis added.) This instruction substantially
conveys the point urged by appellant in this assignment of error. See
Loving, 41 MJ at 276-77.




ISSUE XXXII
WHETHER THE AGGRAVATING FACTOR STATED IN RCM
1004(c)(7)(I) IS VAGUE, FAILS TO SUFFICIENTLY CLARIFY THE FACTOR INVOLVED,
AND DOES NOT NARROW THE CLASS OF PERSONS ELIGIBLE FOR THE DEATH PENALTY,
AND IS THEREFORE INVALID UNDER THE EIGHTH AMENDMENT TO THE CONSTITUTION.



The version of RCM 1004(c)(7)(I) in effect at
the time of trial provided:



(c) Aggravating factors. Death may
be adjudged only if the members find, beyond a reasonable doubt, one or
more of the following aggravating factors:

* * *
(7) That, only in the case of a violation of
Article 118(1):

* * *
(I) The murder was preceded by the intentional
infliction of substantial physical harm or prolonged, substantial mental
or physical pain and suffering to the victim[.]



Appellant, relying on Godfrey v. Georgia,
446 U.S. 420 (1980), and Maynard v. Cartwright, 486 U.S. 356, 361-62
(1988), argues the above aggravating factor is unconstitutionally vague
under the Eighth Amendment. He contends that the word "substantial" in
that Rule is too vague to provide meaningful guidance to the members in
awarding the death penalty. See Arnold v. State, 224 S.E.
2d 386, 391-92 (Ga. 1976).
Appellant concedes that RCM 1004(c)(7)(I) might
not be constitutionally vague. He states:



The aggravating factor sufficiently channels
discretion only if it is viewed as contemplating physical harm or prolonged
pain and suffering which preceded and was demonstrably separate and distinct
from the acts which constituted the murder.
 



Final Brief at 259 (emphasis added). He argues,
however, that the military judge erred by not explaining this point to
the members. Id. However, government counsel correctly notes this
precise point was made clear to the members by the military judge. Answer
at 110. The military judge advised the members as to this factor:



that as to the Vickery--Laura Lee Vickery-Clay,
that the premeditated murder of Laura Lee Vickery-Clay was preceded
by the intentional infliction of substantial mental and physical pain and
suffering to the victim; [and]
that as to the premeditated murder of Kimberly
Ann Ruggles, that the premeditated murder of Kimberly Ann Ruggles was
preceded by the intentional infliction of substantial mental and physical
pain and suffering of the victim[.]



(Emphasis added.)
We find no constitutional infirmity in the
aggravating factor delineated in RCM 1004(c)(7)(I) and set out above. See
Loving, 41 MJ at 294; see also Ortiz, 149 F.3d
at 942; Duvall v. Reynolds, 139 F.3d 768, 793 (10th Cir.), cert.
denied, 119 S.Ct. 345 (1998). We also find no error in the judges
explanation of it. Finally, any error in this regard was unquestionably
harmless beyond a reasonable doubt in view of the other aggravating factors
found in this case. See Zant, 462 U.S. at 881 and
884.




XXXIII
WHETHER THE MILITARY JUDGE COMMITTED PLAIN
ERROR, AFFECTING SUBSTANTIAL RIGHTS OF APPELLANT, WHEN HE ALLOWED THE PANEL
TO RECESS PRIOR TO ARRIVING AT A SENTENCE, DETERMINE A SENTENCE WHILE ON
RECESS, AND REENTER THE COURTROOM TO ANNOUNCE THAT SENTENCE WITHOUT EVER
CLOSING THE COURT TO DELIBERATE ON A SENTENCE; SUCH ERROR SERIOUSLY AFFECTED
THE FAIRNESS, INTEGRITY, AND PUBLIC REPUTATION OF APPELLANTS COURT-MARTIAL.



After the military judges instructions on sentencing
in this case, the president of the court-martial asked for a recess prior
to going into deliberations. This recess lasted 11 minutes from 4:50 p.m.
to 5:01 p.m. on April 11, 1988. At that point the court reassembled with
all parties being present. The military judge then closed the court for
deliberations. At 5:29 p.m., the court assembled with the members, and
the military judge recessed the court for the night. The court reconvened
at 9:05 a.m. on April 12, 1988, and the military judge clarified some instructions
which he had previously given to the members. At 9:14 a.m., the court was
again closed for deliberations. At 10:20 a.m. April 12, 1988, the panel
returned to the courtroom and requested a 15-minute recess. It then recessed
at 10:21 a.m., and at 10:34 a.m. on April 12, 1988, the court came to order
and the military judge asked the president if the court had "determined
a sentence." The president said, "Yes, sir, it has," and gave it in written
form to the military judge. The president later orally announced this sentence
to appellant.
Appellant contends:



The actions of the military judge in the
present case, charging the court members with presentencing instructions,
allowing them to recess, arrive at a sentence while on recess, and reenter
the courtroom to announce sentence, all without ever closing to deliberate
on sentence, are patently improper and created a fair risk of prejudice
to SPC Grays substantial rights. The military judges oversight presented
the court members with an opportunity to commit several potential evils,
any of which create a fair risk of prejudice. 95/
___________
95/ E.g. that all court members
were not present to deliberate on sentence; that all court members were
not present to vote; that one of the court members indulged in unauthorized
communication with another court member or an interloper during break,
or during deliberations; or, that unauthorized publications were taken
into the closed session.



Final Brief at 261.
Appellants argument is not supported by the
record. Early in this trial, the military judge instructed the members
on their duties and how they must be performed, as follows:



You must keep an open mind throughout the
trial, impartially hear the evidence, and only--and instructions on the
law, and only when youre in closed session deliberations may you properly
make a determination as to whether the accused is guilty or not guilty,
and, should it become necessary, as to an appropriate sentence.
Furthermore, with regard to sentencing, should it become necessary, you
may not have any preconceived idea or formula as to either the type or
amount of punishment that should be imposed based solely upon the fact
of conviction for an offense alone. You must first hear the evidence in
extenuation and mitigation, as well as that in aggravation, if any, and
only
when youre in closed session deliberations may you properly arrive at
an appropriate sentence, should it become necessary, after considering
all the alternative punishments, of which I will later advise you.



(Emphasis added.)
Later he added these instructions:



During any recess or adjournment you may
not discuss the case among yourselves, nor may you discuss the case with
anyone else. You must not listen to or read any account of the trial,
or consult any source, written or otherwise, as to matters involved in
the case. You must hold your discussions in the case until you are all
together in closed session deliberations so that all the panel members
have the benefit of your discussions. If anyone attempts to discuss
the case in your presence during any recess or adjournment, I want you
to immediately tell them to stop, and immediately report that occurrence
to me. We will try to estimate the times for recesses or hearings out of
your presence. Frequently their duration is extended by considerations
of new issues arising at such hearings. Your patience and understanding
regarding these will contribute greatly to an atmosphere consistent with
the fair administration of justice.
When youre in closed session deliberations
only the members will be present. You must remain together, and you may
not allow any unauthorized intrusion into your deliberations.



(Emphasis added.)
Finally, prior to findings, he instructed the
members as follows:



The Uniform Code of Military Justice prohibits
me or anyone else from entering your closed session deliberations. You
may not consult the Manual for Courts-Martial or any other legal publications.
If its necessary for administrative reasons
that your deliberations be interrupted by a recess for whatever reason,
for anyone to depart the deliberations, its necessary that we formally
gather, formally recess, and then formally reassemble. This is an absolute
legal requirement. And I would assume that the court would like to take
a brief recess before you begin deliberations.



On this basis, we conclude that appellants argument
on this issue is without merit. See also United States
v. Jones, 37 MJ 321, 324 (CMA 1993) (if error, no structural defect;
and
no prejudice since members instructed on limitations for closed deliberations).




ISSUE XXXIV
WHETHER THE ARMY COURT ERRED BY REFUSING TO
ABATE THE PROCEEDINGS IN APPELLANTS CASE AFTER APPELLANT INGESTED AN OVERDOSE
OF DOXIPIN.



The Court of Military Review summarily denied
appellants "motion to abate the proceedings" against him "to ensure that
the appellant, as a result of an apparent drug overdose, had suffered no
permanent brain damage which would prevent his full participation in assisting
with his appeal." 37 MJ at 753. A basis for such action exists on the record
before us. Def. App. Ex. B, which appellant relies on to raise this claim,
also asserts that appellants condition had stabilized and he apparently
suffered "no permanent deficits" from this episode. See United
States v. Young, 43 MJ 196 (1995).




ISSUE XXXV
WHETHER APPELLANT WAS DENIED HIS FIFTH AMENDMENT
RIGHT TO A GRAND JURY PRESENTMENT OR INDICTMENT.

ISSUE XXXVI
WHETHER COURT-MARTIAL PROCEDURES DENIED APPELLANT
HIS ARTICLE III RIGHT TO A JURY TRIAL.



The Court of Military Review rejected appellants
argument of a right to grand-jury presentment because of the language of
the Fifth Amendment and Supreme Court cases. 37 MJ at 754-55. It also rejected
his argument of an Article III right to a jury trial on the basis of the
Supreme Courts and our case law. Id. at 755; see also Loving,
supra at 287; Curtis, 32 MJ at 267-68. No further consideration
of this claim is warranted.




ISSUE XXXVII
WHETHER ARTICLE 18 OF THE UCMJ AND RCM 201(f)(1)(C),
WHICH REQUIRE TRIAL BY MEMBERS IN A CAPITAL CASE, VIOLATE THE FIFTH AND
EIGHTH AMENDMENT GUARANTEE OF DUE PROCESS AND A RELIABLE VERDICT.



This Court has resolved the above issue against
the appellant in Loving, 41 MJ at 291 and United States v. Matthews,
16 MJ 354, 363 (CMA 1983). See generally Singer v. United
States, 380 U.S. 24 (1965). We adhere to this position in appellants
case.




ISSUE XXXVIII
WHETHER, ASSUMING ARGUENDO THAT HE DESIRED
TO PLEAD GUILTY, RCM 1004S PROHIBITION-AGAINST GUILTY PLEAS IN CAPITAL
CASES[8]
DEPRIVED APPELLANT OF A CRITICAL MITIGATING FACTOR AND CAUSED OTHER IRREPARABLE
PREJUDICE.



This issue was decided against appellant in Loving,
41 MJ at 292. There, this Court relied on its previous decision in Matthews,
16 MJ at 362-63. We continue to adhere to this position. See United
States v. Dock, 28 MJ 117 (CMA 1989).




ISSUE XXXIX
WHETHER APPELLANT WAS DENIED DUE PROCESS OF
LAW IN VIOLATION OF THE FIFTH, SIXTH, AND EIGHTH AMENDMENTS, AND UCMJ ARTICLE
55, BECAUSE HE WAS TRIED IN A PEACETIME CAPITAL CASE BY A COURT-MARTIAL
PANEL (I.E. JURY) COMPOSED OF LESS THAN TWELVE MEMBERS.



A majority of this Court has consistently rejected
this argument as a matter of constitutional law. Loving, 41 MJ at
287; Curtis, 32 MJ at 267-68; but see Curtis,
supra
at 271 (Sullivan, C.J., concurring).




ISSUE XL
WHETHER APPELLANT WAS DENIED HIS RIGHTS UNDER
THE FIFTH AND SIXTH AMENDMENTS BECAUSE THE PANEL-MEMBER SELECTION POOL
IN APPELLANTS CASE DID NOT INCLUDE ANY FEMALES.



Appellant did not raise this issue at trial. See
Gray, 37 MJ at 759. He now asserts that the convening authority "deliberately"
kept "women as a group off" his court-martial panel. Final Brief at 295.
No statistical argument has been made to support this claim. Instead, appellant
relies on the simple fact that no woman was detailed to sit on this court-martial
panel. Such a showing is inadequate to establish this claim or plain error.
See Loving, 41 MJ at 283-87; see id. at 308-09 (Sullivan,
C.J., concurring in part and in the result).




ISSUE XLI
WHETHER ARTICLE 25(c)(1)S EXCLUSION FROM COURT-MARTIAL
SERVICE OF ENLISTED MEMBERS OF THE SAME UNIT AS THE ACCUSED INJECTS AN
IMPROPER CRITERION (ENLISTED STATUS) IN SELECTING THE MEMBERS POOL.



Appellant asserts that his Fifth Amendment right
to due process of law was violated by Article 25(c)(1). It states:



(c)(1) Any enlisted member of an armed force
on active duty who is not a member of the same unit as the accused
is eligible to serve on general and special courts-martial for the trial
of any enlisted member of an armed force who may lawfully be brought before
such courts for trial, but he shall serve as a member of a court only if,
before the conclusion of a session called by the military judge under section
839(a) of this title (Article 39(a)) prior to trial or, in the absence
of such a session, before the court is assembled for the trial of the accused,
the accused personally has requested orally on the record or in writing
that enlisted members serve on it. After such a request, the accused may
not be tried by a general or special court-martial the membership of which
does not include enlisted members in a number comprising at least one-third
of the total membership of the court, unless eligible enlisted members
cannot be obtained on account of physical conditions or military exigencies.
If such members cannot be obtained, the court may be assembled and the
trial held without them, but the convening authority shall make a detailed
written statement, to be appended to the record, stating why they could
not be obtained.



(Emphasis added.) Appellant notes that this same
limitation does not apply to officer members and denies him cross-representation
on his jury panel.
The "same command" exclusion or restriction
on trial by enlisted men does not apply to trial by officers. However,
an officer has no right to trial by enlisted persons. Moreover, this provision
of law is not arbitrary or capricious. See United States v. Wilson,
21 MJ 193 (CMA 1986). Finally, appellant has not met his burden to show
that this procedure violates the Fifth Amendments Due Process Clause.
The Supreme Court in Weiss v. United States,
510 U.S. 163, 177-78, 114 S.Ct. 752, 761 (1994), noted the appropriate
test to determine due process violations in court-martial procedure. It
stated:



We therefore believe that the appropriate
standard to apply in these cases is found in Middendorf, supra,
where we also faced a due process challenge to a facet of the military
justice system. In determining whether the Due Process Clause requires
that servicemembers appearing before a summary court-martial be assisted
by counsel, we asked "whether the factors militating in favor of counsel
at summary courts-martial are so extraordinarily weighty as to overcome
the balance struck by Congress." 425 U.S., at 44. We ask the same question
here with respect to fixed terms of office for military judges.



Appellant has not even proffered such an analysis
in this case and, therefore, no relief is required on this basis.




ISSUE XLII
WHETHER APPELLANT WAS DENIED HIS RIGHT TO AN
IMPARTIAL JURY BY THE ACCEPTED PRACTICE IN THE MILITARY OF ALLOWING PANEL
MEMBERS TO ASK QUESTIONS OF WITNESSES.



Mil.R.Evid. 614(b) provides:



(b) Interrogation by the court-martial.
The military judge or members may interrogate witnesses, whether called
by the military judge, the members, or a party. Members shall submit their
questions to the military judge in writing so that a ruling may be made
on the propriety of the questions or the course of questioning and so that
questions may be asked on behalf of the court by the military judge in
a form acceptable to the military judge. When a witness who has not testified
previously is called by the military judge or the members, the military
judge may conduct the direct examination or may assign the responsibility
to counsel for any party.



There is no federal civilian counterpart to this
rule. However, the practice of court-member questioning is of long standing
at courts-martial. See W. Winthrop, Military Law and Precedents
178 (2d ed. 1920 Reprint), and reluctantly recognized in a majority of
jurisdictions. See United States v. Martinsmith, 41 MJ 343,
348 n.5 (CMA 1994); but see Morrison v. State, 845
S.W. 2d 882, 884 n.5 (Tex Crim. App. 1992). We are not persuaded by appellant's
argument that such questioning renders a member partial or biased as a
matter of law. Allowing questions by a juror is a good way to have a more
informed juror -- one who is in a better position to determine the truth
in a trial. Moreover, looking at the process in this case, the court-martial
members in this trial record of over 2500 pages asked only 39 questions,
only one of which was objected to by the parties. (R. 1921) Accordingly,
this argument is also unsupported as a matter of fact and law in this case.




ISSUE XLIII
WHETHER APPELLANT WAS DENIED DUE PROCESS OF
LAW WHEN THE MILITARY JUDGE IMPROPERLY ABANDONED HIS ROLE OF IMPARTIALITY
AND BECAME A PARTISAN ADVOCATE FOR THE GOVERNMENT.



Appellant asserts that "the military judge repeatedly
abandoned his role of impartiality and acted as a partisan advocate for
the Government." Final Brief at 301. He then notes six examples of this
supposedly pro-government conduct, as follows:



See, e.g., R. at 158-61 (military
judge characterizes defense questions as "fishing expedition"), R. at 433-36
(military judge criticizes defense counsel for not interviewing unavailable
witness), R. at 513-14 (military judge attacks defense counsels legitimate
voir
dire question), R. at 678 (military judge flippantly insults defense
counsel concerning challenge for cause of member), R. at 940 (military
judge acting as government advocate concerning questioning of witness),
R. at 2498 (military judge disregarding defense counsel attempt at explaining
alternate perception theory).



Final Brief at 301. We have examined the record
of trial concerning these purported incidents of judicial bias and find
no abandonment by the judge of his impartial role. See United
States v. Reynolds, 24 MJ 261, 265 (CMA 1987). We further note that
the members were not present during any of these incidents.
The first comment by the military judge concerned
a defense request for investigative services by CID and the CID Commanders
response to that request. We note that the judge used this expression two
times in this context. (R. 158, 160.) However, we are also aware that it
is a commonly used term of art describing a general request for information
favorable to ones client without any basis for concluding such information
exists. See United States v. Irwin, 30 MJ 87, 94 (CMA 1990),
quoting
United States v. Enloe, 15 USCMA 256, 262, 35 CMR 228, 234 (1965);
United States v. Hagen, 25 MJ 78, 85 (CMA 1987),
cert. denied,
484 U.S. 1060 (1988).
Appellants second challenge to the military
judges impartiality rests on his purported criticism of defense counsels
failure to interview possible defense witnesses concerning a fire in the
car of Ms. Vickery-Clay. These comments were made in the context of a defense
request to reveal the identity of a government source as a witness to that
fire during a hearing to determine whether such action was necessary. This
comment was not biased or inappropriate in light of the constitutional
standard of necessity. See Roviaro v. United States, 353
U.S. 53 (1957).
The third challenged comment by the judge concerned
a question asked by defense counsel on voir dire. The record states:



DC: What kind of first degree, premeditated
murders would you not vote for a death sentence on?
COL CUSICK: I dont know. I dont know how
many kinds there are. I dont understand the question maybe.
DC: Okay, of the great range of premeditated
murders, from the worst to the least aggravated, are there premeditated
murders--even the least aggravated--that you would vote for a life sentence
as versus a death sentence?--or would it have to be second degree, or unpremeditated
murder, or something like that?
COL CUSICK: I dont know. I dont know if I
can make that distinction. Id have to hear, you know, matters in extenuation
and mitigation, and after that make--if guilt was determined, then Id
have to listen to the extenuating and mitigating circumstances before I
could say whether I would go for other than a death penalty.



Subsequent to this questioning, outside the presence
of the members, the military judge suggested to defense counsel a more
effective way to communicate a question concerning the "various ranges
of premeditated murder" to a layman. The military judge also criticized
a voir dire question of trial counsel on clarity grounds.
Moreover, the following colloquy makes it obvious that his comments applied
to both counsel:



MJ: Well, you cant get their feelings until
such time as you define for them what youre talking about. The same is
true about your questions as well, counsel (to trial counsel). I want you
people to bear in mind, put yourself in their position, "How could I answer
this question?" . . .

* * *
MJ: Make your questions clearer. Try to give
them questions--and obviously, were all searching for a witness [sic]
who has no bias, who has no pre-knowledge, and Im of the mind theyre
going to give us honest answers. I certainly hope so because we have to
assume they will. But make the question such that--pose it so that you,
if you were the individual, could answer it in an intelligent, informative
manner. And thats why I say youll have time to contemplate it. Were
in recess.



Any suggestion of bias in these circumstances
is illusory.
The fourth comment by the judge is again on
the problem of intelligible voir dire questions. After a defense
challenge for cause against Major Peterson, the military judge said:



MJ: I think hes - his difficulty with the
mitigating factors is your inability to intelligently articulate it. The
challenge for cause is denied.
Call Major Lewis in.
You ought to - Ive just told you youve got
to talk to these folks - and indeed, if you want to talk about mitigating
factors and how theyre going to weigh it, why dont you give them a scenario
to base it on. Ask a man what mitigating factors would make him change
his mind. Put yourself in their positions, what mitigating factors would?
Youve got to know what the factors are. If you want to use it, use the
checklist in the Benchbook as an example, go down and check it off for
them. Call him in.



We see no flippant insult in this context and,
for reasons noted above, we see no bias in these comments.
The fifth challenged comment of the military
judge concerns his response to a challenge of trial counsels questioning
of a government witness, Special Agent Billiter, referring several times
to one of the charged crimes "as a murder." The military judge denied that
request, saying:



MJ: Well, I dont mind his characterization
of that. Indeed, thats what the Government says it is. His characterization
dont [sic] make it so. I wont instruct him to say something different.



We see no partiality in this comment.
The final challenge concerns the military judge's
alleged disregard of defense counsel's attempt to explain his perception
of a witness' previous testimony. The question at issue was whether a defense-proffered
videotape of life in a Miami ghetto, where appellant grew up, was relevant
on sentencing. This colloquy ensued:



DC: Your Honor, could I recall Doctor Armitage
in a 39(a) to go over a couple more of these questions to determine if
theres relevancy?
MJ: Ive already established, in my view, the
relevant--the lack of relevancy is already established. The evidence before
the court is to the effect that Gray was not affected factually by his
environment and, so, its of no consequence.
DC: That was not my perception from the witnesses.
MJ: Well, I dont have any other perception.
Maybe Im in--wrong. Maybe Im in error, but I will not allow the exhibit
to be shown. Youve recorded for posterity.
DC: Yes, sir. Thats it.



Denial of admission of evidence on relevance grounds
does not alone establish bias against the defense.




ISSUE XLIV
WHETHER APPELLANT KNOWINGLY AND INTELLIGENTLY
WAIVED HIS ARTICLE 38(b)(2) STATUTORY RIGHT TO CIVILIAN COUNSEL OR HIS
ARTICLE 38(b)(3)(B) STATUTORY RIGHT TO MILITARY COUNSEL OF HIS OWN SELECTION
WHERE THE MILITARY COUNSEL FAILED TO ADVISE APPELLANT OF HIS PROFESSIONAL
DEFICIENCIES (WHICH INCLUDED NO CAPITAL EXPERIENCE, NO CAPITAL TRAINING,
AND NO EXPERIENCE IN DEFENDING A MURDER CHARGE) AND FAILED TO ADVISE APPELLANT
THAT HE HAD DETAILED HIMSELF TO THE CASE.

ISSUE XLV
WHETHER APPELLANT KNOWINGLY AND INTELLIGENTLY
WAIVED HIS ARTICLE 38(b)(2) STATUTORY RIGHT TO CIVILIAN COUNSEL OR HIS
ARTICLE 38(b)(3)(B) STATUTORY RIGHT TO MILITARY COUNSEL OF HIS OWN SELECTION
WHERE THE MILITARY JUDGE MISLED APPELLANT BY STATING THAT HIS COUNSEL WERE
"QUALIFIED LAWYERS" AND THAT HIS LEAD COUNSEL WAS A "LAWYER OF CONSIDERABLE
EXPERIENCE," WHEN NEITHER COUNSEL HAD TRIED A CAPITAL CASE, TRIED A MURDER
CASE, OR RECEIVED ANY DEATH PENALTY CONTINUING LEGAL EDUCATION.

ISSUE XLVI
WHETHER DUE PROCESS REQUIRES THAT THIS COURT
ESTABLISH MINIMUM STANDARDS FOR TRIAL AND APPELLATE DEFENSE COUNSEL IN
CAPITAL CASES.

ISSUE XLVII
WHETHER THE SYSTEM OF APPOINTING CAPITAL COUNSEL
IN THE UNITED STATES ARMY PREJUDICED APPELLANT BECAUSE HE IS NOT GUARANTEED
EITHER CONTINUITY OF COUNSEL OR COMPETENT COUNSEL UNDER ANY OF THE QUALIFICATIONS
FOR CAPITAL ATTORNEYS IN FORCE IN ANY JURISDICTION IN AMERICA.



The premise of appellants unintelligent-waiver
arguments is his assertion that his trial defense counsel believed himself
unqualified to represent him in this capital case. Based on trial defense
counsels post-trial affidavit, he asserts: "It appears that Captain Brewer
questioned his ability to competently represent SPC Gray (Def. App. Exh.
L), yet failed to advise his client of this fact. His failure to do so
prevented SPC Gray from knowingly and fully exercising his right to counsel
under Article 38, UCMJ." Final Brief at 303. We disagree.
In that post-trial affidavit trial defense
counsel stated the following:



4. I was very concerned that SPC Gray receive
the best quality of legal representation possible in this death penalty
case. In fact, in December of 1987 I wrote the Ethics Committee of the
Florida Bar, my licensing state, and asked for an advisory opinion on whether
I was qualified to represent SPC Gray in a capital case. The advisory opinion
in a nutshell was "if in my professional judgment after careful evaluation
I could provide competent representation it would be ethical for me to
continue." I decided to continue representing SPC Gray. An Individual Military
Counsel was assigned to help represent SPC Gray, and Captain Craig Teller
and I shared the responsibility of defending SPC Gray at his court-martial.
Captain Teller took no part in working with the psychologists and psychiatrists
in this case, as this was my area of responsibility.



The first issue assigned above has no merit as
a matter of law or fact in appellants case. The legal predicate for this
duty-to-inform argument asserted by appellant is United States v. Thomas,
33 MJ 694 (ACMR 1991). There the Court of Military Review stated:



If a lawyer believes he cannot represent
a client competently, he should so inform the client and withdraw from
representation subject to protection of the clients interest and the approval
of the court. See generally Dept of Army Pam 27-26, Rules
of Professional Conduct for Lawyers, Rule 1.16 (31 Dec. 87); and Model
Rules of Professional Conduct Rule 1.16(1983)(amended 1990.)



33 MJ at 701-02. Appellants argument, however,
rests on the apparent existence of a question as to competence rather than
an actual belief of the same. No authority whatsoever is proffered for
the necessity of a warning in the former circumstances. In addition, we
note that military defense counsels affidavit is not only post-trial but
stops short of asserting or implying his belief in his inability to handle
this case.
Appellant also argues that the military judge
had a duty to inform him about trial defense counsels total inexperience
in capital and murder cases, and their lack of death-penalty continuing
legal education. Moreover, he asserts that he clearly breached that duty
when he labeled these lawyers "qualified" and "of considerable experience."
As a result, he asserts that he did not knowingly and intelligently waive
his right to civilian counsel under Article 38(b)(2) or individual military
counsel under Article 38(b)(3)(B). No legal authority is offered to support
this argument, and we cannot draw such authority from our decisions in
United
States v. Johnson, 21 MJ 211 (1986), or United States v. Donohew,
18 USCMA 149, 39 CMR 149 (1969). See generally United States v. Cronic,
466 U.S. 648 (1984). We are satisfied that counsel possessed the necessary
qualifications.
The final two issues address the process of
appointing defense counsel and appellate defense counsel in capital cases
in the military justice system. First, appellant asserts that there should
be minimum standards established for such defense counsel before they can
practice at capital courts-martial. Second, he asserts that a system without
such standards denies him due process of law under the Fifth Amendment.
See
Medina v. California, 505 U.S. 437, 112 S.Ct. 2572 (1992). We reject
this argument.
We initially note that the Supreme Court has
spoken on the question of establishing minimum standards for qualifications
in death-penalty cases. It said:



We consider in this case only the commands
of the Constitution. We do not pass on the wisdom or propriety of appointing
inexperienced counsel in a case such as this. It is entirely possible
that many courts should exercise their supervisory powers to take greater
precautions to ensure that counsel in serious criminal cases are qualified.
See
generally, e.g., Committee to Consider Standards for Admission
to Practice in Federal Courts, Final Report, 83 F.R.D. 215 (1979); Bazelon,
The Defective Assistance of Counsel, 42 U.Cin.L.Rev. 1, 18-19 (1973); Berger,
The Special Skills of Advocacy: Are Specialized Training and Certification
of Advocates Essential to Our System of Justice?, 42 Ford.L.Rev. 227 (1973);
Burger, Some Further Reflections on the Problem of Adequacy of Trial Counsel,
49 Ford.L.Rev. 1 (1980); Schwarzer, Dealing with Incompetent Counsel--The
Trial Judges Role, 93 Harv.L.Rev. 633 (1980).
We address not what is
prudent or appropriate, but only what is constitutionally compelled.



Cronic, 466 U.S. at 665 n.38 (emphasis
added).
Accordingly, for the reasons stated in Loving,
41 MJ at 300, we again decline the invitation to establish such a standard
on our own. Nevertheless, on a case-by-case basis, we remain vigilant as
to the quality of representation provided servicemembers in capital cases
in the military justice system. Id.; see generally Strickland
v. Washington, 466 U.S. 668 (1984).
As for appellants second argument based on
Medina
v. California, supra, we also must reject it. The test for determining
systemic due process violations in the military justice system is found
in Middendorf v. Henry, 425 U.S. 25, 44 (1976).
See Weiss,
510 U.S. at 177, 114 S.Ct. at 760-61 (Medina does not control these
questions in the military context.) No argument on this basis has been
presented to this Court. In addition, despite 21 USC § 848(q)(5)-(7),
the few state authorities cited by appellant in his brief, and the American
Bar Association Guidelines, we are not persuaded that "[c]ontemporary practice"
demonstrates a "settled view" on this question.
See Medina,
505 U.S. at 447-48, 112 S.Ct. at 2578. Finally, a similar argument (see
issue XLVII, supra) has been previously rejected
by this Court in Loving, 41 MJ at 298-99.




ISSUE XLVIII
WHETHER APPELLANT HAS BEEN DENIED EQUAL PROTECTION
UNDER THE LAW IN VIOLATION OF THE FIFTH AMENDMENT IN THAT ALL OTHER CIVILIANS
IN THE UNITED STATES ARE AFFORDED THE OPPORTUNITY TO HAVE THEIR CASES REVIEWED
BY AN ARTICLE III COURT, BUT MEMBERS OF THE UNITED STATES ARMY BY VIRTUE
OF THEIR STATUS AS SERVICEMEMBERS ARE NOT.



This argument was considered and rejected in Loving,
41 MJ at 295-96. We adhere to that holding in appellants case.




ISSUE XLIX
WHETHER THIS COURT OR THE ARMY COURT HAVE JURISDICTION
OR THE AUTHORITY TO REVIEW THE CONSTITUTIONALITY OF THE RULES FOR COURTS-MARTIAL
AND THE UNIFORM CODE OF MILITARY JUSTICE BECAUSE THIS COURT IS AN ARTICLE
I COURT, NOT AN ARTICLE III COURT WHICH HAS THE POWER TO CHECK CONGRESS
AND THE EXECUTIVE UNDER MARBURY V. MADISON, 5 U.S. (1 Cranch) 137
(1803).



We reject this argument. See Loving,
41 MJ at 296. The position of this Court on this issue was articulated
by Chief Judge Everett in Matthews, 16 MJ at 364-68. We continue
to adhere to this view.




ISSUE L
WHETHER THE MILITARY JUDGE ERRED IN VIOLATION
OF THE FIFTH AND EIGHTH AMENDMENTS AND UCMJ ARTICLE 55 IN HIS FAILURE TO
INSTRUCT THE PANEL MEMBERS THAT THE ONLY OFFENSES FOR WHICH APPELLANT COULD
BE SENTENCED TO DIE WERE FELONY MURDER AND PREMEDITATED MURDER AND THAT
APPELLANT COULD NOT BE SENTENCED TO DIE ON THE BASIS OF THE AGGREGATE OR
CUMULATIVE EFFECT OF ALL THE OFFENSES.



Appellant asserts that the military judge erred
by failing to instruct the members "that death was an authorized sentence
only
for the offenses of premeditated murder and felony murder." Final Brief
at 323. He grounds such a duty to instruct on the Fifth and Eighth Amendments
and Article 55. He further asserts that appellant was prejudiced by this
failure to instruct because



appellant may have been sentenced to die
because the panel members felt that, although appellant did not deserve
to die for the specific capital crimes he was convicted of, he did deserve
to die when the additional offenses of rape, robbery, burglary, and larceny
were thrown into the equation. This latter result is clearly improper and
cannot be discounted in this case.



Final Brief at 324. He cites decisions of this
Court in United States v. Wheeler, 17 USCMA 274, 277, 38 CMR 72,
75 (1967); United States v. Yocum, 17 USCMA 270, 273, 38 CMR 68,
71 (1967); United States v. Hutton, 14 USCMA 366, 370, 34 CMR 146,
150 (1964).
Appellants argument is not supported in law
or fact. As a starting point, we note that no legal authority has been
cited to this Court which prohibits the members from considering appellants
other crimes in their decision to impose the death penalty. In any event,
the military judge early on in this case told the members that this was
a capital murder case permitting the death penalty. Moreover, prior to
findings, he told the members that whether the vote for the premeditated
murders and the felony murders was unanimous should be announced. Also,
the military judge instructed the members that, "in view of your findings,
the court is authorized to adjudge a sentence of death or life imprisonment
only, with other types of punishments. . . ." Finally, appellant did not
object to these instructions on the basis asserted on this appeal or specifically
request the complained about missing instructions. See RCM 1005(f)
(rule of waiver for sentencing instructions); cf. Art. 51(c), UCMJ,
10 USC § 851(c). In this context, we conclude that there is no "reasonable
likelihood" that the members of this court-martial were acting in any unconstitutional
manner. See also Boyde, 494 U.S. at 380.




LI
WHETHER THERE IS NO MEANINGFUL DISTINCTION
BETWEEN PREMEDITATED AND UNPREMEDITATED MURDER IN THE MILITARY, ALLOWING
DIFFERENTIAL TREATMENT AND SENTENCING DISPARITY IN VIOLATION OF THE FIFTH
AND EIGHTH AMENDMENTS.

LII
WHETHER THE MILITARY JUDGE ERRED BY INSUFFICIENTLY
DESCRIBING THE DISTINCTION BETWEEN THE OFFENSES OF PREMEDITATED AND UNPREMEDITATED
MURDER.



The first issue noted above asserts as its premise
that there is no meaningful distinction in military law between premeditated
murder and unpremeditated murder. We implicitly resolved this question
long ago in United States v. Teeter, 16 MJ 68, 71-72 (1983). More
recently in a capital-case context we again resolved this question contrary
to appellants argument. Loving, 41 MJ at 279-80. Accordingly, we
conclude that appellants argument on this issue must again be rejected.
The second issue noted above focuses on the
military judges instructions explaining the distinction between premeditated
murder and unpremeditated murder. We note that appellant did not object
at trial to the instructions on this matter given by the judge or proffer
a substitute. 37 MJ at 759. Moreover, the judge gave the following instruction
on the difference between the two types of murder:



Youll notice that the principal difference
between this offense--that is, premeditated murder--and unpremeditated
murder is that there would-the accused must have had the premeditated design
to kill, that is, had considered the act prior to the application of the
force and must have had the specific intent to kill, whereas unpremeditated
murder requires the specific intent to kill or inflict great bodily harm
without premeditation.



We approved such an instruction in Teeter,
supra
at 71-72, absent any objection by the defense. In this context and in view
of the overwhelming evidence of premeditation in this case we find no error
on this basis. Loving, 41 MJ at 280.




LIII
WHETHER THE PREDOMINANCE OF MISLEADING LANGUAGE
IN THE REASONABLE-DOUBT INSTRUCTIONS GIVEN BY THE MILITARY JUDGE FOR FINDINGS
AND SENTENCING CREATED A HIGHER DEGREE OF DOUBT THAN IS REQUIRED UNDER
THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT.



Appellant notes that the military judge in this
case gave the following instruction on reasonable doubt:



A "reasonable doubt" is what the words imply,
a doubt founded in reason. It is not a fanciful or ingenious doubt, or
conjecture, but an honest conscientious doubt suggested by the material
evidence or lack of it in the case. It is an honest misgiving caused by
the insufficiency of proof of guilt. "Proof beyond reasonable doubt" means
proof
to a moral certainty, although not necessarily an absolute or mathematical
certainty. A reasonable doubt is a doubt which would cause a reasonably
prudent person to hesitate to act in the more important and weighty of
his own personal affairs. The proof must be such as to exclude not
every hypothesis or possibility of innocence but every fair and rational
hypothesis except that of guilt. The rule as to reasonable doubt extends
to every element of the offense, although each particular fact advanced
by the prosecution which does not amount to an element need not be established
beyond reasonable doubt. However, if on the whole evidence you are satisfied
beyond a reasonable doubt of the truth of each and every element, you should
find the accused guilty.



(Emphasis added.) He further notes that a similar
instruction was given on sentencing concerning the existence of aggravating
factors. (R. 2561-62) Relying on Cage v. Louisiana, 498 U.S. 39,
111 S.Ct. 328 (1990), and several of the separate opinions of the Justices
in Victor v. Nebraska, 511 U.S. 1, 114 S.Ct. 1239 (1994), he asserts
that these instructions were constitutionally defective, so his conviction
and sentence must be reversed. See Sullivan v. Louisiana,
508 U.S. 275, 113 S.Ct. 2078 (1993).
We note that the reasonable-doubt instruction
in appellants case was taken from paragraph 2-29.1 of the Military Judges
Benchbook at 2-34 (Oct 1986). A similar instruction was approved by this
Court in United States v. Meeks, 41 MJ 150, 155-57 (1994). We also
note that appellant did not object to this instruction or offer an alternative.
See
United States v. Robinson, 38 MJ 30 (CMA 1993). In our view there
was no reasonable probability that appellants court-martial members used
a lower standard of guilt or a higher standard for acquittal than required
by law. Victor v. Nebraska, supra; see Loving, 41
MJ at 281.




LIV
WHETHER THE MILITARY JUDGES INSTRUCTIONS RESTRICTED
FREE CONSIDERATION OF THE EVIDENCE BY REQUIRING THE MEMBERS TO VOTE ON
THE MOST SERIOUS OFFENSE FIRST.



Appellant asserts that the voting-procedure instructions
given by the military judge in this case restricted the members free consideration
of the evidence. In particular he complains that requiring the members
to vote on the greater more serious offense first precluded their full
and fair consideration of lesser-included offenses. He contends that the
risk of danger in this regard is greatest in savage murder cases because
they naturally call for the "maximum denunciation." See Austin
v. United States, 382 F.2d 129, 138 (D.C. Cir. 1967).
We initially note that appellant does not support
his argument with any authority except Austin v. United States,
supra.
That case does not support creation of a new rule for voting on findings
in murder cases, but only comments in dicta on the natural unrestrained
tendencies of the layman as compared to a judge. 382 F.2d at 138-39. We
also note that the challenged instructions are based on RCM 921(c)(5),9
which states:



(5) Included offenses. Members shall
not vote on a lesser included offense unless a finding of not guilty of
the offense charged has been reached. If a finding of not guilty of an
offense charged has been reached the members shall vote on each included
offense on which they have been instructed, in order of severity beginning
with the most severe. The members shall continue to [10]
vote on each included offense on which they have been instructed until
a finding of guilty results or findings of not guilty have been reached
as to each such offense.



We fail to appreciate any real prejudice that
appellant may suffer as a result of this procedure, and appellant has not
made a legally sufficient denial-of-due process argument in this regard.
See
Weiss v. United States, 510 U.S. 163, 114 S.Ct. 752 (1994). Accordingly,
we resolve this issue against appellant.




LV
WHETHER DESIGNATION OF THE SENIOR MEMBER AS
THE PRESIDING OFFICER FOR DELIBERATIONS ESTABLISHES THE SENIOR MEMBERS
SUPERIORITY IN AND CONTROL OF THE DELIBERATION PROCESS AND DENIED APPELLANT
DUE PROCESS OF LAW AND A FAIR AND IMPARTIAL CONSIDERATION OF THE EVIDENCE
BY THE MEMBERS.



RCM 502(b)(1) states:



(b) President.
 
(1) Qualifications. The president
of a court-martial shall be the detailed member senior in rank then serving.
(2) Duties. The president shall have
the same duties as the other members and shall also:
(A) Preside over closed sessions of the members
of the court-martial during their deliberations;
(B) Speak for the members of the court-martial
when announcing the decision of the members or requesting instructions
from the military judge; and
(C) In a special court-martial without a
military judge, perform the duties assigned by this Manual to the military
judge except as otherwise expressly provided.




It is a traditional practice at courts-martial
since at least 1828. See W. Winthrop, Military Law and Precedent
170 (2d ed. 1920 Reprint). Moreover, the members of appellants court-martial
were instructed on their "equal voice" with the president of the court-martial
in discussing, deciding, and voting. They were also instructed that "[t]he
influence of superiority in rank will not be employed in any manner to
attempt to control the independence of members in the exercise of their
own personal judgment." In these circumstances, appellant has failed to
establish a due process violation resulting from the designation of the
president of the court-martial. See Weiss v. United States,
supra.




LVI
WHETHER THE MILITARY JUDGES INSTRUCTION THAT
"YOU MAY NOT ADJUDGE A SENTENCE OF DEATH UNLESS YOU FIND THAT ANY AND ALL
EXTENUATING [AND] MITIGATING [FACTORS] ARE SUBSTANTIALLY OUTWEIGHED BY
ANY AGGRAVATING FACTORS . . ." DID NOT SUFFICIENTLY INFORM THE MEMBERS
THAT THIS FINDING MUST BE UNANIMOUS.



Appellants basic argument is that the military
judges sentencing instructions could be construed to permit a less-than-unanimous
finding by the members on the weighing-death-eligibility question. The
record as a whole does not support this argument. It11
states:



Your deliberation on the aggravating factors
should properly include a full and free discussion of all the evidence
thats been presented. After youve completed your discussion, then voting
on the--each aggravating factor must be accomplished by secret written
ballot. All members are required to vote. If you fail to find unanimously
that at least one of the aggravating factors existed, then you may
not adjudge a sentence of death. If, however, you determine that at
least one of the aggravating factors existed, then you may consider, along
with all other appropriate sentence possibilities, whether a sentence of
death should be adjudged. In this regard, you may not adjudge a
sentence of death unless you find, by unanimous vote--again, by all
members--that any and all extenuating and mitigating factors are substantially
outweighed by any aggravating factors, including the factors which
youve previously found existed in the first step of this procedure. Thus,
in addition to the aggravating factors that have been found by unanimous
vote--assuming you do--you may consider the following aggravating factors
as well:
[list of factors omitted].



(R. 2562-63) (emphasis added). The "you singular"
or "you plural" ambiguity argument also posited by appellant, Final Brief
at 347, is not a reasonable likelihood in these circumstances. See generally
Victor v. Nebraska, 511 U.S. 1, 114 S.Ct. 1239 (1994).




LVII
WHETHER THE MILITARY DEATH PENALTY SCHEME IS
INVALID DUE TO FURMAN V. GEORGIA, 408 U.S. 238 (1972), AND THE SEPARATION
OF POWERS DOCTRINE.



This is the fourth time this issue has been presented
to this Court. Loving, 41 MJ at 293; United States v. Curtis,
32 MJ 252 (CMA), cert. denied, 502 U.S. 952 (1991), and Matthews,
16 MJ at 381. The Supreme Court has resolved this issue in the Governments
favor. Loving v. United States, 517 U.S. 748, 116 S.Ct. 1737 (1996).




LVIII
WHETHER RCM 1004 FAILS TO INCORPORATE CONGRESSIONALLY
MANDATED PROTECTIONS TO PREVENT RACIALLY MOTIVATED IMPOSITION OF THE DEATH
PENALTY IN VIOLATION OF UCMJ ARTICLE 55 AND THE EIGHTH AMENDMENT TO THE
CONSTITUTION.

LIX
WHETHER THE MILITARY JUDGE COMMITTED PLAIN
ERROR WHEN HE FAILED TO SUA SPONTE INSTRUCT THE PANEL MEMBERS THAT
RACE COULD NOT BE CONSIDERED AS A FACTOR IN THE SENTENCING PROCESS.



Appellant calls this Courts attention to 21 USC
§ 848(o)(l), which states:



(o) Right of the defendant to justice
without discrimination
(1) In any hearing held before a jury under
this section, the court shall instruct the jury that in its consideration
of whether the sentence of death is justified it shall not consider the
race, color, religious beliefs, national origin, or sex of the defendant
or the victim, and that the jury is not to recommend a sentence of death
unless it has concluded that it would recommend a sentence of death for
the crime in question no matter what the race, color, religious beliefs,
national origin, or sex of the defendant, or the victim, may be. The jury
shall return to the court a certificate signed by each juror that consideration
of the race, color, religious beliefs, national origin, or sex of the defendant
or the victim was not involved in reaching his or her individual decision,
and that the individual juror would have made the same recommendation regarding
a sentence for the crime in question no matter what the race, color, religious
beliefs, national origin, or sex of the defendant, or the victim, may be.



This provision of federal law was enacted after
appellants court-martial (November 18, 1988 - 102 Stat. 4545). It is not
constitutionally mandated. Loving, 41 MJ at 274. Finally, this provision
of law is specifically limited in its application to offenses under 21
USC.

LX



WHETHER IMPOSITION OF THE DEATH PENALTY IN
THIS CASE VIOLATED APPELLANTS RIGHT TO EQUAL PROTECTION UNDER THE FIFTH
AMENDMENT BECAUSE RCM 1004 SUBJECTS APPELLANT, AS A MEMBER OF THE ARMED
FORCES, TO A PENALTY WHICH IS NOT OTHERWISE AVAILABLE UNDER THE CRIMINAL
CODE OF THE UNITED STATES FOR IDENTICAL CRIMINAL CONDUCT.



Article 118 authorizes imposition of the death
penalty in this case. Cf. 21 USC § 848(e). Article 118, as
it read at the time of trial, stated:



§ 918. Art. 118. Murder
Any person subject to this chapter who, without
justification or excuse, unlawfully kills a human being, when he--
 
(1) has a premeditated design to kill;
(2) intends to kill or inflict great bodily
harm;
(3) is engaged in an act which is inherently
dangerous to others and evinces a wanton disregard of human life; or
(4) is engaged in the perpetration or attempted
perpetration of burglary, sodomy, rape, robbery, or aggravated arson;
 
is guilty of murder, and shall suffer such punishment
as a court-martial may direct, except that if found guilty under clause
(1) or (4), he shall suffer death or imprisonment for life as a court-martial
may direct.



RCM 1004 further delineates the capital-sentencing
procedures at courts-martial. For the reasons stated in Loving,
41 MJ at 294, we reject appellants equal protection argument.




LXI
WHETHER THE FIFTH, SIXTH, AND EIGHTH AMENDMENTS
DO NOT PERMIT, IN PEACETIME, A CONVENING AUTHORITY TO HAND-PICK MILITARY
SUBORDINATES, WHOSE CAREERS HE CAN DIRECTLY AND IMMEDIATELY AFFECT AND
CONTROL, TO SERVE AS MEMBERS IN A CAPITAL TRIAL FOR OFFENSES THAT OCCUR
ON A MILITARY BASE BUT WHERE THERE IS CONCURRENT JURISDICTION WITH A STATE
AUTHORITY.



Article 25(d) states:



(1) When it can be avoided, no member of
an armed force may be tried by a court-martial any member of which is junior
to him in rank or grade.
(2) When convening a court-martial, the convening
authority shall detail as members thereof such members of the armed forces
as, in his opinion, are best qualified for the duty by reason of age, education,
training, experience, length of service, and judicial temperament. No member
of an armed force is eligible to serve as a member of a general or special
court-martial when he is the accuser or a witness for the prosecution or
has acted as investigating officer or as counsel in the same case.



Appellants constitutional arguments not only
ignore Article 37, UCMJ, 10 USC § 837, but the decision of the Supreme
Court in Weiss v. United States, 510 U.S. 163, 114 S.Ct. 752 (1994).
See
United States v. Graf, 35 MJ 450 (CMA 1992), cert. denied,
510 U.S. 1085 (1994), and United States v. Mabe, 33 MJ 200 (CMA
1991). We again reject these arguments. See Loving, 41 MJ
at 297.




LXII
WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL
PREJUDICE OF APPELLANT BY ALLOWING THE PROSECUTION, DURING THE SENTENCING
PORTION OF A CAPITAL CASE, TO ENGAGE IN IMPROPER ARGUMENT THAT EMPHASIZED
VICTIM-IMPACT STATEMENTS IN VIOLATION OF BOOTH V. MARYLAND, 482
U.S. 496 (1987). BUT SEE PAYNE V. TENNESSEE, 501 U.S.
808, 111 S.Ct. 2597 (1991).



Appellant in his final brief offers no specifics
on this issue. Trial counsels argument did make reference to the rights
of the two murder victims and their friends and relatives (R. 2539, 2537)
and he referred to the pain and anguish suffered by the victims prior to
their deaths. This was not legal error. Payne overruled Booth.
See
37 MJ at 739; see also Loving, 41 MJ at 292.




LXIII
WHETHER MILITARY DUE PROCESS AND FUNDAMENTAL
NOTIONS OF FAIRNESS REQUIRE THAT EACH MEMBER OF THE COURT-MARTIAL SIGN
HIS OR HER NAME TO THE DEATH-SENTENCE WORKSHEET OR THAT THE CONDEMNED ACCUSED
BE AFFORDED THE RIGHT AND OPPORTUNITY TO POLL THE MEMBERS. SEE UNITED
STATES V. CURTIS, 33 MJ 101, 110 (COX, J., CONCURRING). BUT SEE
RCM 922(e).



RCM 1007(c) provides:



(e) Polling prohibited. Except as
provided in Mil.R.Evid. 606, members may not otherwise be questioned about
their deliberations and voting.



RCM 922(e) contains virtually identical language.
Appellant has not framed his due process challenge to the above military
procedures in terms of the recent decision of the Supreme Court in Weiss
v. United States, supra. In any event, the death-penalty verdict
at a court-martial must be unanimous. Loving, 41 MJ at 296.




LXIV
WHETHER THE CAPITAL SENTENCING PROCEDURE IN
THE MILITARY IS UNCONSTITUTIONAL BECAUSE THE MILITARY JUDGE LACKS THE POWER
TO ADJUST OR SUSPEND A SENTENCE OF DEATH THAT IS IMPROPERLY IMPOSED.



The above argument is submitted to this Court
without further briefing. We rejected this same argument in Loving,
41 MJ at 297. Moreover, appellant has not otherwise convinced us that this
procedure is unconstitutional under the standard provided in Weiss v.
United States, supra, and Middendorf, 425 U.S. at 43.




LXV
WHETHER COURT-MARTIAL PROCEDURES DENIED APPELLANT
HIS SIXTH AMENDMENT RIGHT TO JURY TRIAL AND AN IMPARTIAL CROSS-SECTION
OF THE COMMUNITY.



Appellants Sixth Amendment attacks on the court-martial
system are without merit. See Loving, 41 MJ at 285; United
States v. Smith, 27 MJ 242, 248 (CMA 1988); Santiago-Davila,
26 MJ at 389; see generally Ex parte Quirin, 317 U.S.
1, 39-41 (1942); Dynes v. Hoover, 61 U.S. (20 How.) 65, 15 L.Ed.
838 (1858).




LXVI
WHETHER APPELLANTS DEATH SENTENCE VIOLATES
THE EIGHTH AMENDMENT'S PROHIBITION AGAINST CRUEL AND UNUSUAL PUNISHMENT.



Appellant has not chosen to otherwise brief this
issue. Thus, we assume that he argues that a death sentence per se
violates the Eighth Amendment as cruel and unusual punishment. Supreme
Court case law does not support this argument as a matter of law. Gregg
v. Georgia, 428 U.S. 153 (1976); see United States v. Matthews,
16 MJ 354 (CMA 1983).




LXVII
WHETHER THE NUMEROUS ERRORS WHICH OCCURRED
DURING APPELLANTS COURT-MARTIAL CAN BE FOUND HARMLESS BEYOND A REASONABLE
DOUBT WHEN CONSIDERED COLLECTIVELY.



Appellant argues that the principle of cumulative
error warrants reversal of his death sentence. See Mak v. Blodgett,
970 F.2d 614 (9th Cir. 1992), cert. denied, 507 U.S. 951 (1993).
He argues that



at a minimum, the following issues warrant
reversal in his case: the newly discovered evidence of organic brain damage;
the ineffective assistance of his counsel; the denial of expert resources;
the incompetent assistance from his mental health experts; the improper
granting of challenges during voir dire; the use of his civilian
plea agreement against him; and the military judges instructional errors.



Final Brief at 383. We disagree.
The implied premise of the cumulative-error
doctrine is the existence of errors, "no one perhaps sufficient to merit
reversal, [yet] in combination [they all] necessitate the disapproval of
a finding" or sentence. United States v. Banks, 36 MJ 150, 170-71
(CMA 1992). Assertions of error without merit are not sufficient to invoke
this doctrine. Here, we have found no merit in appellants assertions of
error.

LXVIII



WHETHER THE ARMY COURTS PROPORTIONALITY
REVIEW IN THIS CASE WAS INSUFFICIENT AS A MATTER OF LAW.



In Curtis, 32 MJ at 270-71, this Court
held that a "proportionality review" by a Court of Military Review is required
by Article 66(c), UCMJ, 10 USC § 866(c), in death-penalty cases. Later,
in our second opinion in Curtis, 33 MJ at 109, Chief Judge Everett
defined the scope of the required review, as follows:



We recognize that this is the first case
decided under the procedural changes promulgated by the President in the
Manual for Courts-Martial, United States, 1984, and hence, there will be
few, if any, cases in military or federal district courts which would be
proper subjects for proportionality comparison. However, the gravamen of
the offenses here (i.e., double homicide during a burglary) is not
unique to the military, and it would be fitting for the Court of Military
Review to consider generally similar cases reviewed by the Supreme Court
of the United States in which state courts have imposed the death penalty
for like crimes on that basis. See United States v. Curtis,
32 MJ at 270, 271. The Court of Military Review should determine whether
the sentence here is appropriate for the crimes of which the accused stands
convicted and whether the sentence is generally proportional to those imposed
by other jurisdictions in similar situations. See generally McCleskey
v. Kemp, 481 U.S. 279, 306-08, 107 S.Ct. 1756, 1774-76, 95 L.Ed.2d
262 (1987); Pulley v. Harris, [465 U.S. 37 (1984)].



(Footnote omitted; emphasis added.)
The Court of Military Review in appellants
case performed a proportionality review, as follows:



We have examined a number of cases and have
concluded that the sentence is generally proportional to those imposed
by other jurisdictions in similar situations. 13/
______________
13/ A computer search was used to examine
cases reviewed by the Supreme Court since the reinstatement of the death
penalty following Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726,
33 L.Ed.2d 346 (1972). Among the cases examined were Boyde v. California,
494 U.S. 370, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990); Walton v. Arizona,
497 U.S. 639, 110 S.Ct. 3047, lll L.Ed.2d 511 (1990); Clemons v. Mississippi,
494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed. 2d 725 (1990); Blystone v. Pennsylvania,
494 U.S. 299, 110 S.Ct. 1078, 108 L.Ed.2d 255 (1990); and Zant v. Stephens,
462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983).



37 MJ at 749. A similar proportionality review
was approved by this Court in Loving, 41 MJ at 290-91.
Appellant challenges the Court of Military
Reviews "proportionality review" because it failed to designate appropriate
proportionality standards. Counsel refers this Court to a state-court decision
in State v. Marshall, 613 A.2d 1059 (NJ 1992), as a model for such
a review and asserts that the Court of Military Reviews decision on this
issue pales by comparison. Counsel suggests that the following important
characteristics be considered in an adequate proportionately review:



Vulnerability of the victim (i.e.;
[sic] child, female, infirmity, frailty); 2) Lack of remorse; 3) Extent
of mutilation or torture; 4) Number of victims; 5) Degree of premeditation
(planning v. spontaneity); 6) Scene of the crime (victims home v. public
setting); 7) Personal background of the accused; 8) Prior murder by the
accused at some time in the past; 9) Murder for hire; 10) Cop killer; 11)
Killing to escape detection or capture; 12) Felony-murder; 13) Emotional
disturbance of accused; 14) Age of accused; 15) Duress on accused at the
time of the killing; and 16) Intoxication level of accused at the time
of the killing.



Final Brief at 387.
Appellants initial argument is that proportionality
review prescribed by this Court in the Curtis decisions is inadequate
because it has no standards. He contends that the term "generally similar
cases" as used in Curtis (II), 33 MJ at 109, is unduly vague and
creates a "risk of arbitrariness" in the appellate review of death sentences.
Final Brief at 390, 391. We disagree. See Loving, supra
at 290-91.
At the outset we note that the "proportionality
review" ordered in the Curtis decisions is not constitutionally
required. See McClesky, 481 U.S. at 306-07; cf. Zant,
462 U.S. at 879, 890. We, however, have held that this review is required
by Article 66(c) in capital cases as part of the "sentence appropriateness"
determination by the court below. Curtis, 33 MJ at 109; see generally
United States v. Healy, 26 MJ 394, 395 (CMA 1988). In view of this
unique appellate power (see Ryder v. United States, 515 U.S.
177, 187, 115 S.Ct. 2031, 2038 (1995)), adoption of the proportionality
reviews utilized by other state or federal jurisdictions is neither required
nor appropriate.
We also disagree with appellants argument
that Curtis II provides no standard for the Court of Military Review
to conduct its proportionality review. It is true that our decision does
not provide the detailed and in-depth review that Marshall does.
That review was mandated by a state statute, N.J.S.A. 2C:11-3e, which then
required "the Supreme Court . . . to determine whether the [death] sentence
. . . is disproportionate to the penalty imposed in similar cases, considering
both the crime and the defendant" and was an "offender-oriented proportionality
review." 613 A.2d at 1062, 1069; see State v. DiFrisco, 662
A.2d 442, 448-50 (NJ 1995). Our system, however, employs a general "offense-oriented
proportionality review." (613 A.2d at 1067-68, which also is in effect
in New Jersey, id. at 1068 ("does the punishment fit the crime?"));
see
Tison v. Arizona, 481 U.S. 137, 158 (1987) (reckless-indifference
murder); Enmund v. Florida, 458 U.S. 782 (1982) (aider and abettor
to felony murder); Coker v. Georgia, 433 U.S. 584 (1977) (rape);
see
also State v. DeFrisco, supra.
Finally we do not find the proportionality
review of the Court of Military Review in this case to have violated our
command in Curtis II. That court considered Supreme Court decisions
on state cases, which presented situations similar to appellants. 37 MJ
at 749 and n.13. In these cases, death penalties were imposed in various
state jurisdictions for a single murder occurring during or after a robbery
or burglary. Appellants court-martial involved multiple premeditated murders
preceded by rapes or forced sodomies. We see no general disproportionality
in appellants sentence or with the sentence in United States v. Loving,
41 MJ 213 (1994).




LXIX
WHETHER THE ARMY COURT ERRED IN CONCLUDING
THAT THE DEATH SENTENCE WAS AN APPROPRIATE SENTENCE IN THIS CASE.



Appellant challenges the Court of Military Reviews
decision that "under all of the facts and circumstances of the case the
death sentence is appropriate, Art. 66(c). Curtis, 32 MJ at 271."
37 MJ at 749. He also notes that the Court of Military Review held "beyond
a reasonable doubt that even with the introduction of the organic brain
damage the panel would still have imposed the death sentence." Final Brief
at 397. Appellant asserts that such determinations are untenable and unsupported
by the record of trial.
In exercising its unique-sentencing power under
Article 66(c), the Court of Military Review may take into consideration
matters not considered by the court members. See United States
v. Healy, supra. In this regard we note that the Court of Military
Review was fully aware of the post-trial materials establishing appellants
organic brain damage. Moreover, it had been informed of the evidence of
a personality disorder which had been presented to the members. Finally,
they were well aware of appellants two murders, his aggravated assault
on a third woman, and the numerous sexual offenses committed on these victims.
In these circumstances, we see no abuse of discretion or other error of
law in the Court of Military Reviews sentence
appropriateness determination. See generally United States
v. Dukes, 5 MJ 71 (CMA 1978).




ISSUE LXX
ISSUES PERSONALLY ASSIGNED PURSUANT TO UNITED
STATES V. GROSTEFON, 12 MJ 431 (CMA 1982).



In footnote 3 to the Final Brief counsel calls
the attention of this Court to 31 issues personally assigned by appellant
that are contained in Appendix C to that brief. See Attachment.
We note that Grostefon does not permit an appellant to raise such
issues in an untimely manner without good cause. See Healy,
26 MJ at 397. No good cause is averred for this untimely pleading in appellants
case. Moreover, all these issues were raised without any general or particular
assertion that appellant was prejudiced by these claimed legal errors.
See
generally United States v. Pollard, 38 MJ 41, 51-52 (CMA
1993); see Rule 21(b)(4), United States Court of Military Appeals
Rules of Practice and Procedure (requiring "[a] direct and concise argument
showing why there is good cause to grant the petition, demonstrating with
particularity why the errors assigned are materially prejudicial to the
substantial rights of the appellant . . . ."). 31 MJ 466.
In any event, we have considered these issues
(see United States v. Matias, 25 MJ 356, 361 (CMA 1987)),
and note that five of them [(nos. 1-4, 26 duplicates no. 4)] raised
questions of ineffectiveness of counsel which are cumulative of issues
previously raised by appellate defense counsel and resolved in our opinion
against him. The same applies to no. 14 (Issue XVI), no. 20 (Issue LXV),
and no. 22 (Issue XXII). No. 15 is resolved by Solorio. The evidentiary-sufficiency
questions (nos. 27 and 29) we reject out of hand as unsupported in law.
See
Jackson v. Virginia, 443 U.S. 307, 319 (1979). The other 20 issues
challenged trial decisions by the military judge. We have reviewed the
record of trial and find no abuse of discretion or otherwise reversible
error by the judge in these rulings (nos. 5-13, 16-19, 21, 21-25, 28, 30,
and 31). See generally Matias, supra at 361.
The decision of the United States Army Court
of Military Review is affirmed.
FOOTNOTES:
1 See 41 MJ
213, 229 n.* (1994).
2
Now the Court of Appeals for the Armed Forces.
3
The Fourteenth Amendment only applies to the States.
4
This provision became Article 41(b)(1) by amendment for courts-martial
convened beginning November 5, 1990. The new version states: "Each accused
and the trial counsel are entitled initially to one peremptory challenge
of members of the court." Pub.L. No. 101-510, § 541(c) and (e), 104
Stat. 1565.
5
The subsequent opinion in this case, 91 F.3d 1178, 1182 (8th
Cir. 1996), did not affect the 1995 opinion regarding the issue here.
6
Apparently meaning--in a housing project.
7
Although the aggravating factors found by the members were not orally announced
as required by RCM 1004(b)(8), the sentence worksheet (App. Ex. CII) shows
that all five were found by all the members.
8
See Art. 45(b), UCMJ, 10 USC § 845(b).
9
At the time of the offense, this was RCM 921(c)(4), but as of March 12,
1987, it was renumbered as RCM 921(c)(5). See Exec. Order No. 12586
§§ 1[L] & 5, 52 Fed. Reg. 7106 & 7112.
10
Change 2 to the Manual for Courts-Martial (15 May 1986) contains the correct
word ("to"); beginning with Change 3 (1 June 1987) the word "the" is erroneously
substituted. This error is contained in the 1995 and 1998 edition.
11
Certain instructional language was omitted from the assigned issue but
was included in the first paragraph of the discussion of this issue in
his brief. Final Brief at 346.
 
 


ATTACHMENT
Pursuant to United States v. Grostefon,
12 MJ 431 (CMA 1982), appellant invites the Courts attention to the following,
noninclusive list of personally asserted errors:
1. His counsel did not provide him with effective
assistance of counsel due to the fact that they failed to inform him whether
they met the prevailing professional standards promulgated by the American
Bar Association and the National Legal Aid and Defender Association for
capital representation. Captain Brewer stated in his post-trial affidavit,
(Def. App. Exh. L), that he contacted his state bar association regarding
this matter; however, SPC Gray was never informed of it. Had SPC Gray known
of this, he would have requested that CPT Brewer be released from his case.
2. Appellant submits that his counsel were
ineffective because they failed to fully investigate his mental health
history. Specialist Gray had informed his counsel that he had experienced
headaches since he was a child, and constantly felt as though there was
"bleeding" inside his head. To his knowledge, however, his counsel disregarded
this information.
3. Specialist Grays counsel were ineffective
for allowing him to plead guilty to the civilian charges against him. The
fact that he had received eight life sentences as a result of his plea
created a heavy bias in the panel members against him. This information,
in combination with the sparse case in mitigation, severely disadvantaged
appellant when the time came to argue that the members should punish him
by adding one more term of life to his sentence as opposed to sentencing
him to death.
4. Captain Brewer failed to effectively represent
appellant when, during his sentencing argument, CPT Brewer referred to
appellant as a nut, and said that he was personally in favor of the death
penalty.
5. The military judge erred by refusing to
grant appellant pretrial confinement credit from January 6, 1987, when
he was first apprehended by civilian law enforcement authorities, until
the date of his trial.
6. The military judge improperly denied appellants
request for additional peremptory challenges. (R. at 16; App. Exh. III;
App. Exh. XI.)
7. The military judge improperly denied the
defense motion to sequester the panel members. (R. at 119.)
8. The military judge improperly denied the
defense motion to dismiss charges based on speedy trial. (App. Exhs. XXV,
XXVa, and XXXVI.)
9. The military judge improperly denied the
defense motion for a new pretrial investigation pursuant to UCMJ art. 32.
(App. Exh. XXVII.)
10. The military judge improperly denied the
defense motion for change of venue. (App. Exhs. XXVIII, XXVIIIa.)
11. The military judge improperly refused to
review a videotape in support of the defense motion for a change of venue.
(R. at 141-43; App. Exh. XXX.)
12. The military judge improperly denied the
defense motion to sever charges. (R. at 155; App. Exh. XXXV.)
13. The military judge improperly denied appellants
motion to hold unconstitutional Manual for Courts-Martial, United States,
1984, Rule 916(k)(2). See App. Exh. XXXIV.
14. The military judge improperly denied the
defense request for an independent investigator. (R. at 156-161.)
15. The military judge improperly denied the
defense motion to dismiss Charges IV and VI for lack of jurisdiction. (R.
at 463; App. Exh. XXXVIII.)
16. The military judge (1) improperly failed
to order a new pretrial advice due to improper advisement as to maximum
punishment for the offense of rape; and (2) failure to advise the convening
authority of mitigating factors. (R. at 172.)
17. The military judge improperly denied appellants
request for production of evidence. (R. at 176.)
18. The military judge improperly denied the
defense motion to suppress the black "ninja" pants. (App. Exh. XLIV.)
19. The military judge improperly denied appellants
motion to suppress items seized from appellants personal effects drawer
at the confinement facility, even though the military judge found that
appellant had a reasonable expectation of privacy in the items seized.
(R. at 346.)
20. The military judge improperly denied appellants
motion for a panel composed of members reflecting a fair cross-section
of the community. (R. at 414-419.)
21. The military judge improperly denied the
defense objection to handwriting exemplars gathered from appellant. (R.
at 419-22; App. Exh. XLIX.)
22. The military judge improperly denied the
defense request for the identity of a CID registered agent. (R. at 425.)
23. The military judge improperly denied the
defense challenges for cause against Captain Barner and First Sergeant
Peden. (R. at 706, 733.)
24. The military judge improperly denied the
defense request for a mistrial based on a witness reference to an uncharged
rape occurring "in November [1986]." (R. at 829.)
25. The military judge improperly denied the
defense request for a mistrial based on trial counsels comment on appellants
silence (i.e., appellant has shown no remorse).
26. The trial defense counsel was ineffective
in commenting that he personally was in favor of the death penalty.
27. The evidence is insufficient to support
the finding of guilty of attempted premeditated murder (Charge I and its
specification) where appellant allegedly said to Private Nameth, "dont
scream or me and my buddy will come back and kill you."
28. The military judge improperly denied defense
motions to suppress prosecution exhibits throughout the trial.
29. The military judge improperly denied the
defense motions for a finding of not guilty of offenses. (R. at 1876-1886,
2059.)
30. The military judge improperly denied the
defense request for instructions on lesser-included offenses.
31. The military judge improperly admitted
evidence of appellants civilian convictions in aggravation. (R. at 2240-48.)


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

I
In Batson v. Kentucky, 476 U.S. 79 (1986),
the Supreme Court held that the discriminatory use of peremptory challenges
by the prosecution to remove members of the same cognizable minority racial
group as the defendant from a jury violated the constitutional right to
equal protection of the laws. In United States v. Santiago-Davila,
26 MJ 380, 389-90 (1988), we applied Batson to the exercise of peremptory
challenges in courts-martial even if the accused had been tried prior to
the Supreme Courts decision in Batson.
The majority suggests that Batson does
not apply to this case or that it does not apply with full force, because
appellant was tried before we published our decisions in Santiago-Davila
and United States v. Moore, 28 MJ 366 (1989), in which we applied
Batson
to trials by court-martial. The majority's position is contrary to precedent
in our Court and in the Supreme Court.
In Santiago-Davila, where we first adopted
the Batson framework for the military, the accused was tried on
July 10, 1985 -- 9 months before the Supreme Courts decision in Batson.
The military judge in that case did not have the benefit of the Supreme
Courts decision when he ruled on Santiago-Davilas objection to the Governments
peremptory challenge; in fact, the military judge in that case was faced
with directly contradictory language in the 1984 Manual for Courts-Martial
(RCM 912(g)(1), Discussion), which suggested that the reasons for a peremptory
challenge need not be stated. 26 MJ at 386. Furthermore, the defense in
Santiago-Davila
did not rely on federal law but relied solely on decisions of the California
Supreme Court and other state and federal courts in its argument at trial.
Id. at 385.
Nonetheless, even in those circumstances, we
held that Batson "applied . . . retroactively to trials that preceded
its rendition," id. at 390, citing the Supreme Court's decision
in Griffith v. Kentucky, 479 U.S. 314, 316 (1987) (applying Batson
retroactively to cases not final at the issuance of Batson). We
ultimately granted Santiago-Davila a hearing on his Batson claim,
id.
at 392. See also Moore, 28 MJ at 367 n.2, 368 (remanding
for factfinding hearing where accused was tried after Batson but
before Santiago-Davila).
The present case does not involve a pre-Batson
trial. Appellant was tried in late-1987 and early-1988 -- over one year
after Batson was decided. The defense expressly cited Batson
at trial as the basis of its objection. The military judge had the benefit
of the Supreme Courts decision in Batson, yet declined to apply
the Supreme Courts precedent. In view of the relief granted in Santiago-Davila
-- where the military judge did not even have the opportunity to consider
the Supreme Courts decision in Batson -- it is inappropriate to
suggest that appellant should be denied the constitutional protections
of Batson because of concerns about retroactivity.

II
In Batson, the Supreme Court established
a three-part procedure for addressing objections to the exercise of peremptory
challenges. First, the trial judge must determine whether the defense has
established "a prima facie case of purposeful discrimination."
476 U.S. at 96-97. Second, if "the requisite showing" is made, "the burden
shifts to the" prosecution to "articulate a neutral explanation [for the
challenge] related to the particular case to be tried." Id. at 96-98.
Finally, the trial judge "will have the duty to determine if the
defendant has established purposeful discrimination." Id. at 98
(emphasis added); see United States v. Greene, 36
MJ 274, 278 n.2 (CMA 1993). In the case before us, the military judge committed
prejudicial error by failing to perform his duty under Batson.

III
The peremptory challenge at issue in this case
was exercised by the Government to remove an African-American officer,
Major Quander, from appellants court-martial panel. Appellant also is
an African-American. At the conclusion of challenges for cause, none of
which were directed at Major Quander, the prosecution sought to challenge
Major Quander peremptorily. Defense counsel, relying on the fact that appellant
and Major Quander were of the same racial minority, objected to the challenge
and asked the military judge to require trial counsel to demonstrate that
the challenge was being exercised for a reason other than Major Quanders
race.1
The military judge refused to require the prosecution
to provide a race-neutral explanation for the peremptory challenge, asserting
that no explanation was necessary. Subsequently, he asked trial counsel
to state on the record that the challenge was not based on appellants
race, and trial counsel did so. When trial counsel offered to "give some
sort of articulation as to the reason we feel that we should perempt [sic]
him based on--," the military judge cut him off in mid-sentence. The military
judge refused to allow any further explanation by trial counsel and granted
the peremptory challenge against Major Quander. The military judge did
not enter any findings of fact or conclusions of law on the merits of the
defense objection to the prosecutions exercise of the peremptory challenge.
After the peremptory challenge was allowed,
the military judge recessed the trial for the weekend. When the court-martial
reconvened following the weekend recess, trial counsel filed appellate
exhibit LVIII, a memorandum for the record, in which the prosecution team
stated that "[t]he peremptory challenge against Major Quander was exercised
because we believed his responses concerning the death penalty were equivocal."2

IV
In the present case, the military judge erred
by granting the peremptory challenge without requiring the Government to
provide a race-neutral explanation for the peremptory challenge of Major
Quander. This error was compounded by the military judges reliance on
the mere denial by trial counsel of discriminatory intent, his failure
to make findings of fact and conclusions of law, and his failure to rule
on the credibility of the post-hoc explanation filed by trial counsel as
an appellate exhibit.
When the defense objected at trial to the peremptory
challenge of Major Quander, the Government responded by stating on the
record that the challenge was not based on racial grounds. The Supreme
Court has explained, however, that a mere denial of discriminatory intent
or an affirmance of good faith does not comply with Batsons second
step. Batson, 476 U.S. at 98; see also Purkett
v. Elem, 514 U.S. 765, 769 (1995). The Government is obligated to provide
a race-neutral explanation for its challenge. In the military justice system,
"all the reasons proffered by trial counsel [must] be untainted by any
inherently discriminatory motives." Greene, 36 MJ at 280.
In this case, the military judge made clear
that he was not going to enter any findings of fact or conclusions of law
on the issue of discrimination. Trial counsel subsequently filed as an
appellate exhibit an unsworn statement asserting a race-neutral reason
for the peremptory challenge against Major Quander. The mere filing of
an appellate exhibit, after the military judge has refused to require compliance
with Batson, does not remedy the error by the military judge.
The Supreme Court has made clear that the mere
articulation of a race-neutral explanation does not satisfy Batson:
"Once the prosecutor offers a race-neutral basis for his exercise of peremptory
challenges, '[t]he trial court then [has] the duty to determine if the
defendant has established purposeful discrimination.'" Hernandez v.
New York, 500 U.S. 352, 363 (1991) (quoting Batson, 476 U.S.
at 98). The Supreme Court in Hernandez emphasized the role of the
trial judge in evaluating the sincerity of the Governments explanation
for a peremptory challenge, noting:



In the typical peremptory challenge inquiry,
the
decisive question will be whether counsels race-neutral explanation for
a peremptory challenge should be believed. There will seldom be much
evidence bearing on that issue, and the best evidence often will be the
demeanor of the attorney who exercises the challenge. As with the state
of mind of a juror, evaluation of the prosecutors state of mind based
on demeanor and credibility lies "peculiarly within a trial judges province."



Id. at 365 (emphasis added); see also
Purkett, 514 U.S. at 768 (emphasizing that it is the responsibility
of the trial judge, at the third step of the Batson process, to
assess "the persuasiveness" of the proffered "justification"). In Batson
and its progeny, the Supreme Court has placed on the trial judge the responsibility
to evaluate the explanation for a peremptory challenge, and the cases all
recognize the critical importance of the judge in uncovering pretextual
explanations.
Our Court has made clear that the military
judge bears "the ultimate responsibility . . . to determine the existence
of purposeful discrimination on the part of trial counsel." Greene,
36 MJ at 281 (citing plurality and O'Connor opinions in Hernandez).
In Greene, we described the three steps that the military judge
must take to fulfill this responsibility, as follows: The military
judge must, first, "review the record"; second, "weigh trial counsels
credibility"; and third, make "a factual determination regarding the presence
or absence of purposeful discrimination in the panel member's rejection."
36 MJ at 281. We further emphasized the critical importance of the military
judges determination in the Batson equation by noting:



[E]ven if a race-neutral explanation has
been proffered by trial counsel for the peremptory challenge, it does not
end the military judge's duties under Batson. The military judge
must still determine whether "the asserted justification is merely a pretext
for intentional race-based discrimination. See Batson
[476 U.S.] at 93, 106 S.Ct. at 1721."



36 MJ at 281 (citation omitted; emphasis added)
(quoting Hernandez, 500 U.S. at 375 (O'Connor and Scalia, JJ., concurring
in the judgment).
In this case, the military judge failed completely
to comply with the critical third step of Batson -- evaluation of
the credibility of the Governments proffered explanation. Batson
is not satisfied merely by trial counsels articulation of a race-neutral
reason for a peremptory challenge; rather, Batson places on the
military judge an affirmative duty to assess whether the Governments explanation
is credible or merely a pretext.
In Moore, we noted that we would "not
rule out" the possibility that, in a future case, "a clearly articulated
affidavit" might provide post-trial proof of a non-discriminatory
intent. 28 MJ at 368 n.7. Although there may be cases in which the record
of trial provides such clear and unambiguous support for trial counsels
post-hoc rationale that it is possible to find the military judge's error
to be harmless, this is not such a case. See generally Bennett
v. Collins, 852 F. Supp. 570, 584-85 (E.D. Tex. 1994) (prosecutions
rationale that juror "had not given much thought to the death penalty"
treated as "pretextual" by federal habeas judge in ruling
prosecution's exercise of peremptory challenge against African-American
venirepersons unconstitutional).
The credibility of the prosecutions rationale
was clearly at issue in this case. The record of trial reflects thoughtful
responses by Major Quander to questions about the death penalty. He made
clear that he could do his duty, follow the law as instructed by the military
judge, and vote for the death penalty. He stated: "I can definitely consider
it. I would honestly have to say I would have some problems saying yes,
but I could do it." Such a response is not particularly remarkable from
a member facing the awesome responsibility of adjudging the ultimate penalty.
In light of this record, it was critical that
the military judge make a determination as to whether trial counsels explanation
was credible or pretextual. If the military judge had done so, we would
sustain his "findings on this factual question unless clearly erroneous."
Greene,
36 MJ at 281 (citing Hernandez, 500 U.S. at 369). In the absence
of such a determination, however, we have no indication that the military
judge based his allowance of the challenge on a permissible criteria, and
there is no trial-level ruling for us to review.
Although it is possible that the military judge
allowed the challenge in compliance with Batson, i.e.,
after determining that the Governments explanation was not pretextual,
there are three other equally likely grounds for his decision, all of which
would violate Batson: (1) the military judge may have complied with
the then-existing provisions of the Manual for Courts-Martial, under which
no explanation was required for the exercise of a peremptory challenge3;
(2) the military judge may have found that the Governments rationale was
pretextual but believed that a pretextual reason was permissible4;
or (3) the military judge may not have considered at all the questions
of discrimination and pretext and simply allowed the peremptory challenge.
Despite the absence of a definitive ruling
by the military judge, the majority claims that the military judge "did
more than require trial counsel to simply state whether his challenge
was a result of his bias or prejudice" (___ MJ at (83)) and that
the judge made an "implied ruling" on the question of pretext (___ MJ at
(84)). These assertions are not supported by the record.
The exchange between defense counsel, trial
counsel, and the military judge demonstrates that the judge determined
that he was not required to address the Batson issue. When trial
counsel offered to "give some sort of articulation as to the reason" for
the challenge, the military judge simply stated that his blanket denial
of racial bias would suffice. When trial counsel proffered his explanation
for the challenge at the next session of court, the military judge did
not provide any indication that he considered it, but merely allowed trial
counsel to submit the statement as an appellate exhibit. There is absolutely
no indication that the military judge attached any evidentiary value to
trial counsels statement, and the statement did not constitute in any
way a ruling on the part of the military judge. In such circumstances,
the military judges "judicial inaction . . . constituted clear legal error."
Greene, 36 MJ at 282.
In this regard, this case is controlled by
Santiago-Davila,
a case which we remanded because the military judge neither required an
explanation from the Government nor ruled on the issue of discrimination,
26 MJ at 386; and by Moore, where we remanded for a DuBay
hearing on the Batson issue and instructed the judge to "determine
whether trial counsel has articulated a neutral explanation relative to
this particular case." 28 MJ at 369. Accord United States v.
Ruiz, 49 MJ 340 (1998); see also Purkett,
514 U.S. at 768 (responsibility of trial judge to uncover justifications
that are merely "pretexts for purposeful discrimination"); Jones
v. Plaster, 57 F.3d 417, 421 (4th Cir. 1995) (remanding where district
court "failed to rule squarely" on whether a peremptory strike was motivated
by "race-neutral" purposes; concluded that "on this record, we cannot determine
whether the district court applied the proper legal analysis" in overruling
the defenses objection to the peremptory challenge); cf. United
States v. Clemons, 941 F.2d 321, 325 (5th Cir. 1991) (applying clearly-erroneous
standard and upholding district court finding that "race-neutral" reasons
were not pretextual).

V
To support the evidentiary value that it attaches
to the explanation submitted by trial counsel, the majority cites Turner
v. Marshall, 121 F.3d 1248, 1254 n.2 (9th Cir. 1997), cert.denied,
118 S.Ct. 1178 (1998); Simmons v. Beyer, 44 F.3d 1160, 1168
(3d Cir.), cert. denied, 516 U.S. 905 (1995); and
Cochran v. Herring, 43 F.3d 1404, 1411 n.11 (11th Cir. 1995),
cert. denied, 516 U.S. 1073 (1996). None of these
cases addresses the proper evidentiary value to be accorded to a post-hoc
explanation for a peremptory challenge or support the proposition that
it is appropriate to sustain a trial judge on the basis of an "implied
ruling." On the contrary, these cases emphasize the importance of a factual
ruling by the trial judge.
Moreover, in each case, the court of appeals
found the Batson defect sufficiently serious to warrant either a
grant of relief or a remand for further proceedings. In Cochran,
the Eleventh Circuit affirmed the district courts grant of habeas corpus
relief on a Batson claim; in Simmons, the Third Circuit ordered
a new trial because the defendant had established a prima facie
case of discrimination under the first prong of Batson, and the
reconstructed record was inadequate to review the Batson issue;
and in Turner, the Ninth Circuit reversed as "clearly erroneous"
the district courts finding that the peremptory challenge was not racially
based.
In support of its assertion that the entirety
of the military judges conduct constitutes an "implied ruling on his part
that trial counsels explanation was genuine and that appellants Batson
claim was without merit," ___ MJ at (84), the majority cites Purkett
v. Elem, 514 U.S. 765 (1995); Clemons, 941 F.2d at 323-24; United
States v. Tucker, 836 F.2d 334, 340 (7th Cir. 1988), cert.denied,
490 U.S. 1105 (1989); and United States v. Arce, 997 F.2d 1123,
1127 (5th Cir. 1993).
Purkett bears no relation to the majority's
concept that a trial judge can make an "implied ruling" on the question
of pretext in a Batson case. On the contrary, the Supreme Court's
decision in Purkett stressed the importance of a ruling by the trial
judge in the Batson procedure. 514 U.S. at 768; see also
Part IV, supra.
In Clemons, the Fifth Circuit affirmed
the district courts denial of a Batson challenge on the ground
that a brief sidebar conference provided a sufficient opportunity for the
defense to rebut the prosecutions race-neutral explanation of a peremptory
challenge. 941 F.2d at 324. "The district judge . . . made a finding that
the race-neutral reasons stated by [the] prosecutors for striking [two
black jurors] were sufficient and non-pretextual," id. at 322; the
Fifth Circuit reviewed the record and concluded that this finding was "not
clearly erroneous," id. at 325.
In contrast to this case, where the military
judge made no factual ruling, the Fifth Circuit was presented with the
district courts express ruling on the question of pretext. Clemons,
as the majority notes, reiterates Batsons express delegation of
procedural implementation to the trial courts, but the case does not permit
an appellate court to rely on an "implied ruling" by the trial judge. To
the contrary, the Fifth Circuit emphasized the need for the district court
to "evaluate the prosecutors explanation and determine whether the explanations
are pretextual," id. at 323, "[b]ecause the issues presented in
a Batson challenge turn on evaluations of credibility," id.
at 325.
Similarly, Tucker does not address the
validity of an "implied ruling" on a Batson challenge. On the contrary,
the district court in Tucker made an express ruling when, "[a]fter
considering the governments explanation, the court concluded and was
satisfied that racial bias was not responsible for the challenge of the
black venirepersons." 836 F.2d at 337. The Seventh Circuit affirmed the
district court's denial of the Batson challenges on the grounds
that the particular procedure employed by the District Court (an ex
parte proceeding, id. at 338) was justified under the circumstances.
Id.
at 340. Although Tucker supports the well-established proposition
discussed by the majority -- that a district court has discretion to adopt
procedures for litigating Batson claims -- Tucker does not
permit a trial judge to eschew any factfinding and decision-making procedures
but still be affirmed on the basis of "implied rulings."
Finally, in Arce, the Fifth Circuit
found waiver where the defense failed to dispute one of the reasons proffered
by the Government for a peremptory challenge during a Batson proceeding.
997 F.2d at 1126-27. Arce, however, has no bearing on the present
case. In Arce, the prosecutor asserted his reasons for a peremptory
challenge during a Batson proceeding, and the defense did not object.
Here, however, the military judge did not conduct a Batson proceeding;
he made clear that he would not apply Batson. Although the Government
filed an appellate exhibit that asserted reasons for its challenge, the
matter was never litigated before, or ruled on by, the military judge.

VI
The prosecutions unsworn after-the-fact memorandum
in this case is no substitute for the findings and conclusions that should
have been made by the military judge who had presided during the voir
dire of Major Quander, observed the demeanor of trial counsel and Major
Quander, and heard the tone of trial counsel's questions and Major Quander's
responses. The end result in this case is that trial counsel was, in effect,
both the advocate for striking Major Quander and the judge of the credibility
of his own explanation. That is unacceptable under Batson,
Greene,
and their progeny.
The potential for error was called to the attention
of the military judge, and he had ample opportunity to make the determination
required by Batson. The military judge, however, expressly declined
on the record to apply Supreme Court precedent. That clear error, which
prejudiced the constitutional rights of the accused, requires that we follow
our precedent in Santiago-Davila and return the case



to the Judge Advocate General of the Army
for referral to an officer exercising general court-martial jurisdiction
for the purpose of ordering a limited hearing on the reasons for the peremptory
challenge by the prosecution. The findings and conclusions of the military
judge at this hearing, or notice of the convening authority's determination
that such a hearing is impracticable, should be provided by appellee directly
to this Court.



26 MJ at 393 (citing United States v. DuBay,
17 USCMA 147, 37 CMR 411 (1967)).5See
United States v. Ruiz, supra.
FOOTNOTES:
1 Because appellant
and Major Quander were both African-American, once appellant objected to
the Governments peremptory challenge of Major Quander, he met his burden
to establish a prima facie case of discrimination under Batson
as applied in the military justice system. See Greene, 36
MJ at 278; Moore, 28 MJ at 368 (per se showing of
prima
facie case of discrimination when African-American accused objects
to prosecution challenge of African-American panel member). The majority
notes, ___ MJ ___ (82), that we mandated application of the per
se rule for cases arising after Moore. That approach was
designed to ensure that the per se rule would not
be applied to reverse a case tried before Moore in which the military
judge -- conscientiously applying the first prong of Batson -- required
more of a showing than the fact that the defendant and the challenged
member both were African-American. Here, however, the prosecution did
not claim that the defense had failed to meet the first prong of Batson,
nor was that the basis of the military judges ultimate ruling on
the challenge. In fact, the military judge simply declined to address the
first prong of Batson. Had he done so, and had he required
appellant to demonstrate more than a per se showing, we would have
before us appellants evidence as well as the findings and conclusions
of the military judge as the basis for determining whether to sustain
the military judges ruling. In the absence of a record that demonstrates
that the military judge followed the literal requirements of Batson,
appellant is entitled to rely on his per se showing to meet the
first prong of Batson. Cf., e.g.,
United
States v. Cooper, 28 MJ 810, 814 (ACMR 1989), affd 30 MJ 201
(CMA 1990); see United States v. Ruiz, 49 MJ 340 (1998).
2
The text of the memorandum is set forth in the Appendix
to this opinion.
3See
Santiago-Davila, 26 MJ at 386.
4See
Purkett, 514 U.S. at 768; Greene, 36 MJ at 282 (remanding
where the military judge ruled only "on the race-neutrality" of the proffered
reason and not on trial counsel's "true motive").
5
This is the type of procedure used by the federal courts as an appropriate
remedy for a trial courts failure to comply with the procedural requirements
of Batson. See, e.g., Bryant v. Speckard,
131 F.3d 1076, 1076-77 (2d Cir. 1997) (decision after reconstruction hearing
held by state trial court), cert. denied, 118 S.Ct. 2066
(1998); Turner, 121 F.3d at 1250 (decision after magistrate judge
held evidentiary hearing on Batson claim); United States v. Garrison,
849 F.2d 103, 105 (4th Cir. 1988) (decision after "adversary hearing" before
district court on Batson issue), cert. denied, 488 U.S. 996
(1988).
 


APPENDIX
The memorandum referred to at n.2, supra,
is an undated document, signed by trial counsel and assistant trial counsel,
entitled "MEMORANDUM FOR RECORD. For Appellate Record, U.S. v. Gray."
The document contains the following text:

1. On Friday 18 March 1988, the government
exercised its one peremptory challenge against Major Francis Quander. Major
Quander is a black soldier and the exercise of this challenge left the
panel with only one black member. We carefully considered all of the notes
we had taken along with our independent recollections of the voir dire
process. We both agreed that the peremptory challenge should be exercised
against Major Quander.
2. The peremptory challenge against Major Quander
was exercised because we believed his responses concerning the death penalty
were equivocal. He indicated that he had never really thought about the
death penalty and that he was neither for it or against it. When asked
if he could vote for the death penalty he indicated that he "thought" he
could. He also stated he had "problems" with the death penalty and the
evidence would have to be "devastating" before he could vote for it. He
said he could vote for the death penalty but could not say if he would
vote to impose the death penalty.
3. Our impression of Major Quander was that
he was indecisive and equivocal on the death penalty issue and that it
was in the governments interest to challenge him. We did not have a sufficient
basis to challenge him for cause so the peremptory challenge was exercised
on him. Major Quanders race was of no consequence in the decision making
process except that we considered not making the challenge to avoid any
possibility of an appearance of exclusion on a racial basis. Our peremption
[sic] of Major Quander was based on our professional judgement [sic] that
it was in the prosecutions best interest to remove him.
 

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