                          UNITED STATES, Appellee

                                       v.

                      Kimberly E. DOBSON, Sergeant
                          U.S. Army, Appellant

                                 No. 05-0004
                         Crim. App. No. 20000098

       United States Court of Appeals for the Armed Forces

                           Argued August 5, 2005

                          Decided March 20, 2006

EFFRON, J., delivered the opinion of the Court, in which GIERKE,
C.J., and BAKER and ERDMANN, JJ., joined. EVERETT, S.J., joined
and filed a concurring opinion. Judge CRAWFORD did not
participate.

                                   Counsel

For Appellant: Mary T. Hall, Esq. (argued); Captain Jeremy W.
Robinson (on brief); Captain Charles L. Pritchard Jr.

For Appellee: Captain Michael C. Friess (argued); Colonel
Steven T. Salata, Lieutenant Colonel Theresa A. Gallagher, and
Captain Edward E. Wiggers (on brief); Captain Abraham F. Carpio.

Amicus Curiae: Peter M. Dapier (law student) and Daniel K.
Taylor (law student) (argued); Joanne Simboli Hodge, Esq.
(supervising attorney) (on brief); Ardath A. Hamann, Esq., for
the John Marshall Law School.

Military Judge:     Patrick J. Parrish




        THIS   OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Dobson, No. 05-0004/AR


    Judge EFFRON delivered the opinion of the Court.

    At a general court-martial composed of officer and enlisted

members, Appellant was convicted, contrary to her pleas, of

premeditated murder, in violation of Article 118, Uniform Code

of Military Justice (UCMJ), 10 U.S.C. § 918 (2000).    The

adjudged and approved sentence included a dishonorable

discharge, confinement for life without eligibility for parole,

forfeiture of all pay and allowances, and reduction to the

lowest enlisted grade.   The convening authority waived automatic

forfeitures for six months and directed payment of those funds

to the guardian of Appellant’s children.   The convening

authority also credited Appellant with 341 days of confinement

against the sentence to confinement.   The Court of Criminal

Appeals affirmed in an unpublished opinion.   United States v.

Dobson, No. ARMY 20000098 (A. Ct. Crim. App. Aug. 20, 2004).

     On Appellant’s petition, we granted review of the following

issues:

          I. WHETHER THE COURT-MARTIAL WAS IMPROPERLY
          CONSTITUTED WHEN THE MILITARY JUDGE (1)
          GRANTED PEREMPTORY CHALLENGES AFTER ENLISTED
          QUORUM HAD BEEN LOST THROUGH CHALLENGES FOR
          CAUSE AND (2) IMPROPERLY PERMITTED THE
          ADDITION OF OFFICER MEMBERS TO THE PANEL
          AFTER ASSEMBLY WHEN ONLY ENLISTED
          REPRESENTATION HAD FALLEN BELOW QUORUM.

          II. WHETHER APPELLANT WAS DENIED EFFECTIVE
          ASSISTANCE OF COUNSEL AS TO EVIDENCE OF HER
          MENTAL HEALTH STATUS WHEN DEFENSE COUNSEL
          (A) USED A PSYCHOLOGIST WHO VIOLATED


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United States v. Dobson, No. 05-0004/AR


            PSYCHOLOGICAL PROFESSIONAL ETHICS STANDARDS;
            (B) FAILED TO CONSULT WITH A MENTAL HEALTH
            EXPERT RECOMMENDED BY THE R.C.M. 706 BOARD;
            (C) ARRANGED FOR APPELLANT TO CONSULT WITH
            MILITARY MENTAL HEALTH PROVIDERS WITHOUT
            ENSURING CONFIDENTIALITY; AND (D) FAILED TO
            USE MITIGATING INFORMATION FROM THE R.C.M.
            706 REPORT.

            III. WHETHER THE MILITARY JUDGE ERRED BY
            EXCLUDING EVIDENCE OF SPECIFIC ACTS OF
            VIOLENCE BY THE PURPORTED VICTIM.

            IV. WHETHER THE EVIDENCE IS LEGALLY
            INSUFFICIENT AS TO THE FINDING THAT
            APPELLANT COMMITTED PREMEDITATED MURDER.

      For the reasons set forth below, we conclude:           (1)

Appellant was tried before a properly constituted court-martial;

(2) Appellant has not demonstrated a constitutional violation of

the right to effective assistance of counsel; (3) the military

judge erred in excluding the testimony of two witnesses offered

by the defense; and (4) the error was prejudicial only as to

premeditation, and does not preclude a finding of guilty to

unpremeditated murder.      We address the effect of the error in

our decretal paragraph.



                    I. THE DEATH OF SERGEANT DOBSON

      Appellant and her husband, Sergeant (SGT) Terry Dobson,1

were assigned to Fort Carson, Colorado.          They lived in an off-

post apartment on Sage Street in nearby Colorado Springs.

1
  Both Appellant and her husband served in the grade of Sergeant.   The opinion
will refer to Appellant’s husband as SGT Dobson.


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United States v. Dobson, No. 05-0004/AR


During the early morning hours of March 2, 1999, SGT Dobson died

in the middle of Sage Street, near his truck, as a result of

multiple knife wounds.

       The defense has maintained, both at trial and on appeal,

that Appellant killed SGT Dobson in self-defense.   The defense

further contends that the evidence did not demonstrate intent to

commit premeditated murder.

            A. EYEWITNESS TESTIMONY AND FORENSIC EVIDENCE

       At trial, the prosecution presented three witnesses who

observed portions of the events on Sage Street that immediately

preceded SGT Dobson’s death.   Each observed an altercation that

was already in process.   At the point in time where the

witnesses first observed the fight, SGT Dobson was already

staggering, apparently injured, and he had difficulty staying on

his feet.   The witnesses heard him plead for help and beg the

other person to stop.    The witnesses variously heard a voice

say:   “Shut up, Terry” and “Get up.   Nobody’s gonna . . . .”

Two of the witnesses testified that SGT Dobson either dropped or

was pushed to the ground.   The person holding the knife then

stabbed him numerous times in the chest and head, holding the

knife with two hands.    One witness also stated that the person

using the knife cut SGT Dobson methodically in a slicing

fashion.




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United States v. Dobson, No. 05-0004/AR


     The eyewitnesses described the person who used the knife as

the aggressor, acting in a controlled, deliberate fashion.

They added that SGT Dobson did not act in an aggressive or

threatening manner during the time that they observed the fight,

and that he attempted, ineffectually, to ward off the blows with

his hands.   One of the witnesses testified that after SGT Dobson

ceased moving, the person who had used the knife took off her

sweatpants and quickly left the area.

     The eyewitnesses did not see the beginning of the incident,

nor did they offer any explanation as to the cause of the fight.

The witnesses did not observe who struck the first blow or how

the affray escalated into the use of deadly force.

     The prosecution introduced detailed forensic evidence

involving analysis of the wounds, blood spatters and trails,

body position, and clothing.   The forensic evidence indicated

that the movements described by the eyewitnesses and the nature

of SGT Dobson’s wounds were consistent with defensive action on

his part.    A forensic pathologist indicated that SGT Dobson

suffered over 100 wounds, including over twenty stab wounds in

the head, and that a piece of a knife was imbedded in his skull.

According to the forensic pathologist, SGT Dobson suffered over

twenty “defensive” wounds to his hands.   The forensic evidence

also indicated that wounds on Appellant’s hands were superficial

and were not inflicted during the altercation with the knife.


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United States v. Dobson, No. 05-0004/AR


     B. APPELLANT’S TESTIMONY ABOUT THE DEATH OF SGT DOBSON

     Appellant, who testified at trial in her own behalf, could

not recall what brought her and SGT Dobson out onto Sage Street

in the middle of the night.

          I remember being out at the truck with
          Terry. I don’t remember walking to the
          truck or anything like that, but I remember
          being at the truck.

She did not recall stabbing SGT Dobson, nor did she have any

recollection as to how he died.   When asked whether she

remembered “anything,” she testified:

          I remember being scared. I remember being
          frightened. Terry . . . told me point
          blank, “It’s me or you now that -- it’s me
          or you now, Bitch. One of us has to die.”

Defense counsel then asked:   “Do you remember why he said this?”

Appellant responded:

          I don’t know what -- I can’t -- I can’t
          recall everything --

          . . . .

          I don’t know why. I mean, Terry . . . had a
          knife, and I know it was on the ground in
          between us. And while we were standing
          there with the knife between us, I remember
          looking at him. And the way Terry looked,
          he didn’t look like Terry. There was
          nothing about him that was Terry. His
          demeanor, his expression, everything was
          different. Everything about him was
          pronounced and scary. And while the knife
          was between us, that’s what he told me, that
          it was me or him. “It’s me or you now,
          Bitch.”



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United States v. Dobson, No. 05-0004/AR


          . . . .

          And I believed . . . him.

          . . . .

          I did not feel that Terry was just trying to
          say something to just scare me. I did not
          believe he was just trying to control me. I
          did not believe that he was just angry. I
          believed that he meant exactly what he said.
          And while . . . he said it and we were
          looking at each other, I was -- I thought I
          was going to die. I believed it.

Defense counsel returned to the subject of the knife, asking:

“Do you remember how the knife got in between the two of you?”

Appellant testified:

          I know Terry had it, and we struggled.   And
          it was dropped. He lost his grip.

In response to defense counsel’s inquiry as to “what happened

with the knife next,” Appellant said:

          I remember Terry -- at one point, Terry had
          the knife, and he lunged at me, but I was
          able to . . . move out of the way. But I --
          it’s -- there’s a lot that I just cannot put
          together or that I -- I can’t recall.

Defense counsel provided Appellant with an opportunity to

“recall anything that happened with the knife after that.”

Appellant testified that she wanted to get the knife away from

her husband.   She later stated that she remembered “us both

lunging towards the knife.”

     Appellant testified that she had no recollection of

stabbing her husband:


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United States v. Dobson, No. 05-0004/AR


            I know that I felt like if I could get it
            away from him, then he would stop coming for
            me, that he wouldn’t hurt me anymore. But I
            don’t -- I just don’t remember stabbing
            Terry. I don’t remember cutting Terry. I
            don’t remember hurting Terry.

            C.     FABRICATIONS, DECEPTIONS, AND OMISSIONS

     Through the testimony of witnesses and presentation of

extensive documentation, the prosecution introduced detailed

evidence showing that in the immediate aftermath of the incident

and during subsequent examinations, Appellant made numerous

inconsistent, misleading, and false statements to medical

personnel, law enforcement officials, and psychologists in an

effort to deflect attention from herself and cast blame on

others.    Her fabrications included an effort to blame SGT

Dobson’s death on a fictitious person named “Debra,” and she

generated a series of anonymous letters corroborating her false

statements.      Appellant acknowledged at trial that many of her

pretrial statements were false, including statements to law

enforcement authorities, friends, relatives, and the

psychologist retained by the defense.     When questioned about

numerous other inconsistencies, she offered either no

recollection or no explanation.

      D.    THE DEFENSE EXPLANATION FOR APPELLANT’S BEHAVIOR
              DURING AND AFTER THE DEATH OF SGT DOBSON

     The defense theory at trial was that Appellant was an

abused spouse whose actions during and after the night of the


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United States v. Dobson, No. 05-0004/AR


killing were consistent with battered woman’s syndrome.

Appellant testified that she had been abused as a child by her

father, that as a teenager she was raped by a stranger, and that

SGT Dobson physically and verbally abused her.    Appellant

testified that SGT Dobson first threatened her during her

pregnancy.    In midst of an argument, “[h]e told me that he would

stomp the oblivion out of me and the babies inside me.”     She

stated that she felt “scared” and attempted, unsuccessfully, to

seek help from his unit.    While she was on the phone, he pressed

his hands against her head, pushed her head “violently,” and

threatened to kill her if she interfered with his career.     She

then called 911, and he left the house.    She also called her

brother, and both the police and her brother came to the house.

     On cross-examination, the prosecution asked her to “repeat

about that 911 call, what that was all about.”    In response to

trial counsel’s question, Appellant told the panel:

                  First I tried to call Terry’s unit, but
             I couldn’t get a hold of anybody. I
             couldn’t get a hold of the unit. Then after
             Terry threatened me and putting his fingers
             up against my head and pushing my head
             violently and telling me that if I did
             anything to hurt his career that he would
             “f---ing kill me,” I called 911, and I told
             him “I’m calling 911.” And when I told him
             I was calling 911, Terry left. After I
             called -- I did call 911, and I also called
             my brother. My brother beat 911 there, and
             then the police officer came.

Trial counsel then said:


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United States v. Dobson, No. 05-0004/AR


            And that’s a pretty significant report;
            would you agree? That’s pretty significant,
            what he did; would you agree?

Appellant agreed.   Trial counsel then engaged in a lengthy

cross-examination based upon the notes taken by Dr. Brill, the

psychologist who examined Appellant on behalf of the defense.

The questioning was designed to characterize Appellant’s

testimony at the court-martial as an exaggeration of the 911

incident.   Trial counsel suggested through his questions that in

discussing the 911 incident with Dr. Brill, Appellant had not

described any threats, and that it was merely an overreaction to

an insignificant dispute about cleaning kitchen dishes.

     The 911 incident occurred more than a year prior to SGT

Dobson’s death.   Appellant described another incident, from that

period, in which SGT Dobson pushed her and caused her to fall

down some stairs.   Appellant then depicted an escalating pattern

of verbal abuse, threats, and physical abuse, including

incidents in which he squeezed her throat.

     According to Appellant, the situation deteriorated

significantly in the days before SGT Dobson’s death.   She

testified that she told him that she was going to leave, “get

help,” and “tell someone what was going on.”   He responded that

if she were to discuss her concerns with anyone, she would never

see her children again.   She added:   “He told me that he would

whip my ass, that he’d kick my ass.”   When asked if she feared


                                 10
United States v. Dobson, No. 05-0004/AR


that he would act on his threats, she responded affirmatively,

noting that she believed his threats because his behavior was

markedly worse since he returned from the Basic Noncommissioned

Officer course.    She testified that on the evening prior to SGT

Dobson’s death, he had forced her to perform an act of oral sex

while he read a biblical verse.

     Through expert witnesses, the defense sought to explain

Appellant’s actions on the night of SGT Dobson’s death, as well

as her subsequent problems of memory loss, inconsistent

statements, and fabrications, as consistent with the behavior of

a victim of spousal abuse acting in self-defense.     This

evidence, and the prosecution’s evidence in rebuttal, is

considered in Section III, infra.      The defense also sought to

introduce the testimony of two witnesses who would have

corroborated portions of Appellant’s testimony regarding spousal

abuse.    In Section IV, infra, we consider the proposed testimony

of the two witnesses and the related rulings by the military

judge.



         II. COMPOSITION OF THE COURT-MARTIAL PANEL (ISSUE I)

                   A. PANEL MEMBERSHIP REQUIREMENTS

     Appellant was tried by a general court-martial panel

composed of officer and enlisted members.     A general court-

martial panel consists of “not less than five members” appointed


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United States v. Dobson, No. 05-0004/AR


by the convening authority.    Articles 16, 22, UCMJ, 10 U.S.C. §§

816, 822 (2000).   If an enlisted accused requests that the panel

include enlisted members, “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,” subject to an

exception for physical conditions or military exigencies.

Article 25(c), UCMJ, 10 U.S.C. § 825(c) (2000).

     Whenever a general court-martial panel “is reduced below

five members, the trial may not proceed unless the convening

authority details new members sufficient in number to provide

not less than five members.”   Article 29(b), UCMJ, 10 U.S.C. §

829(b) (2000).   The prohibition against proceeding, however, is

subject to the procedure for making and ruling on challenges

under Article 41, UCMJ, 10 U.S.C. § 841 (2000).

     Article 41 authorizes challenges for cause and permits each

party to exercise one peremptory challenge.   Article 41 contains

specific guidance on how to proceed when challenges reduce a

court-martial below the minimum composition requirements of

Article 16.   Article 41(a)(2) provides:

          If exercise of a challenge for cause reduces
          the court below the minimum number of
          members required by . . . [Article 16], all
          parties shall (notwithstanding . . .
          [Article 29]) either exercise or waive any
          challenge for cause then apparent against
          the remaining members of the court before


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United States v. Dobson, No. 05-0004/AR


           additional members are detailed to the
           court. However, peremptory challenges shall
           not be exercised at that time.

Article 41(b)(2) provides:

           If exercise of a peremptory challenge
           reduces the court below the minimum number
           of members required by . . . [Article 16],
           the parties shall (notwithstanding . . .
           [Article 29]) either exercise or waive any
           remaining peremptory challenge (not
           previously waived) against the remaining
           members of the court before additional
           members are detailed to the court.

Article 41(c) provides for additional challenges when members

are added to a court-martial:

           Whenever additional members are detailed to
           the court, and after any challenges for
           cause against such additional members are
           presented and decided, each accused and the
           trial counsel are entitled to one peremptory
           challenge against members not previously
           subject to peremptory challenge.

   B. THE COMPOSITION AND RECONSTITUTION OF APPELLANT’S PANEL

     Upon Appellant’s request for a panel with enlisted

membership, the convening authority detailed ten members -- six

officers and four enlisted personnel -- to serve on the court-

martial.   After the military judge ruled on challenges for

cause, the panel membership was reduced to seven, including five

officers and two enlisted personnel.   As such, the panel

satisfied the total composition requirement of a general court-

martial under Article 16, but the enlisted representation was




                                13
United States v. Dobson, No. 05-0004/AR


short of the one-third minimum enlisted requirement under

Article 25.2

      The prosecution then exercised a peremptory challenge

against an enlisted member and the defense exercised a

peremptory challenge against an officer, leaving the panel with

a total of five members, including four officers and one

enlisted person.     The military judge, on his own motion, decided

to reconsider whether he should have allowed the parties to

exercise peremptory challenges after the completion of

challenges for cause in view of the reduction below the required

enlisted representation.       After considering the matter, he

adhered to his original decision.         He noted that the plain

language of Article 41(a)(2) precluded peremptory challenges

only when causal challenges reduced the total composition of the

panel to a number below requirements of Article 16, and that the

plain language did not address reductions in enlisted

representation.     He concluded that Article 41(a)(2) did not

preclude peremptory challenges when the total panel composition

satisfied Article 16, even if the enlisted representation fell

below the minimum required by Article 25.          Both parties agreed

with the military judge’s interpretation.




2
  The changes in the composition of the panel discussed in this section are
summarized in the table at ___ M.J. ___ (17).


                                     14
United States v. Dobson, No. 05-0004/AR


     At that point, the military judge observed that the

convening authority would need to appoint additional members in

view of the shortfall in enlisted representation.   He added that

the new members would be subject to challenge for cause, and

noted that each party would be entitled to one additional

peremptory challenge against the new members under Article

41(c).   Both parties agreed.   Five additional members were added

to the panel, including two officers and three enlisted members.

Defense counsel inquired as to why officers had been added when

the only problem was a shortfall of enlisted members, but he did

not raise an objection.   The military judge observed that he

knew of no legal prohibition, and the defense did not offer any

further views.

     The panel now consisted of ten members, including six

officers and four enlisted members.   After challenges for cause

were granted against two of the new enlisted members, the panel

was reduced to eight members, including six officers and two

enlisted members.   The military judge reminded the parties that

the challenges had produced the same situation that occurred

earlier in the trial.   The total composition of the panel met

the minimum requirement for a general court-martial under

Article 16, but the enlisted representation fell short of the

minimum one-third requirement under Article 25.




                                 15
United States v. Dobson, No. 05-0004/AR


     The military judge noted that he and the parties had agreed

earlier in the trial that so long as the panel met the total

composition requirement of Article 16, both sides could exercise

peremptory challenges.   He expressly asked the defense counsel

to reaffirm the defense position, and defense counsel agreed

with the reading of Article 41 articulated by the military

judge.   The prosecution exercised one peremptory challenge

against an officer, and the defense declined to offer a

peremptory challenge.

     The panel now had seven members, including five officers

and two enlisted personnel.   In view of the shortfall of

enlisted representation under Article 25, three more enlisted

members were detailed.   After voir dire, both parties joined in

a challenge for cause against one of these new enlisted members,

which was granted.   The prosecution then peremptorily challenged

one of the new enlisted members, and the defense declined to

offer a peremptory challenge.

     As a result of the series of challenges and replacements,

the panel consisted of eight members, including five officers

and three enlisted members.   As such, the composition of the

panel met the minimum total requirement of Article 16 and the

minimum enlisted requirement of Article 25.   The following table

summarizes the actions taken in the course of forming the panel:




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United States v. Dobson, No. 05-0004/AR


        Panel Composition                      Total   Officer   Enlisted
        Initial                                10      6         4
        After 1st causal challenges             7      5         2
        After 1st peremptory challenges         5      4         1
        After 1st additions                    10      6         4
        After 2nd causal challenges             8      6         2
        After 2nd peremptory challenges        7       5         2
        After 2nd additions                    10      5         5
        After 3rd causal challenges             9      5         4
        Final (after 3rd peremptory             8      5         3
        challenges)



                                C. DISCUSSION

1.    Timing of peremptory challenges

       At trial, the military judge stated that the parties could

exercise peremptory challenges so long as the panel contained

sufficient members to meet the total composition requirements of

a general court-martial under Article 16, even if the proportion

of enlisted members fell below the one-third representation

requirement of Article 25.         Defense counsel agreed.          In this

appeal, however, Appellant asserts that when enlisted

representation falls below one-third, no peremptory challenges

may be exercised until the convening authority appoints

additional members.

       The military judge relied on the plain language of Article

41.   Under Article 41(a)(2), when challenges for cause reduce

panel membership below the minimum total number of members

required under Article 16, the military judge is not required to

halt the proceedings until new members are appointed.                 Instead,

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United States v. Dobson, No. 05-0004/AR


the parties proceed with any remaining challenges for cause

“before additional members are detailed” to serve on the panel.

The rule then provides that “peremptory challenges shall not be

exercised at that time.”   There is no mention in the statute of

applying a similar procedure when the total number is adequate

under Article 16 but the percentage of enlisted membership is

deficient under Article 25.

     Appellant relies on the Rule for Courts-Martial (R.C.M.)

912(g)(2) Discussion in the Manual for Courts-Martial United

States (MCM) (1998 ed.), which states:    “When the membership of

the court-martial has been reduced below a quorum (see R.C.M.

501) or, when enlisted members have been requested, the fraction

of enlisted members has been reduced below one-third, the

proceedings should be adjourned and the convening authority

notified so that new members may be detailed.”   We do not view

this provision as mandating a halt in proceedings prior to

further action on challenges.

     At the outset, we note that the language appears in the

nonbinding Discussion, not in the rule.   Use of the word

“should” suggests a recommendation, rather than a command,

particularly in the absence of direct precedent in our case law.

Moreover, the Discussion does not expressly prohibit the

exercise of either a causal or peremptory challenge before new

members are detailed.   This is understandable, because such a


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United States v. Dobson, No. 05-0004/AR


prohibition would be contrary to Article 41(a)(2), which

requires the parties to complete causal challenges even though

the total membership has fallen below quorum under Article 16.

It also would be contrary to Article 41(b)(2), which requires

the parties to exercise any remaining peremptory challenges if

the peremptory challenge by one party has reduced the panel

below the minimum required under Article 16.

     In Article 41, Congress has made specific choices as to

when challenges should continue after a quorum is lost under

Article 16, and when challenges should be deferred pending

appointment of new members.   Congress has not applied such

limitations to a change in composition that affects enlisted

representation under Article 25.

     There is a rational basis for distinguishing between a

deficit under Article 16 and a deficit under Article 25.     The

quorum requirement for a general court-martial under Article 16

involves an absolute number -- there must be at least five

members.   Once membership drops below the total required by

Article 16, new members will have to be detailed regardless of

the exercise of peremptory challenges.    By contrast, the

enlisted representation requirement in Article 25 employs a

percentage, not an absolute number.   As a result, there are

circumstances in which an enlisted representation deficit under

Article 25 can be corrected through exercise of a peremptory


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United States v. Dobson, No. 05-0004/AR


challenge against an officer.   Because it is possible that

exercise of a peremptory challenge could preclude the need for

appointment of new members under Article 25, we do not view the

omission of Article 25 from Article 41 as a drafting error or as

otherwise warranting an interpretation of Article 41 to include

Article 25.    Accordingly, we conclude that the military judge

properly ruled that the composition of the court-martial under

Article 25 is not a pertinent factor for purposes of determining

the timing of peremptory challenges under Article 41.

2. The addition of officer members

     When the panel fell below the required enlisted

representation under Article 25, officers and enlisted members

were added to the panel.   Appellant notes that this was done

even though the size of the panel exceeded the minimum required

for a general court-martial, and that the only deficit was in

enlisted representation under Article 25.   According to

Appellant, the addition of officers at this stage was improper

under R.C.M. 505(c)(2)(B) (permitting additions when the total

number of members has been reduced below quorum or the number of

enlisted members has been reduced below one-third of the panel’s

membership).   Appellant acknowledges that the rule does not

expressly prohibit the action taken by the convening authority

here, but contends that such action may unfairly dilute the

right to enlisted representation.


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United States v. Dobson, No. 05-0004/AR


     At trial, defense counsel made an inquiry about this

matter, but did not object.   We need not consider whether this

issue was waived, however, because there was no error.   An

enlisted accused who requests enlisted membership on the panel

under Article 25(c)(1) is entitled by the statute only to a

minimum proportion -- “at least one-third of the total

membership of the court.”   R.C.M. 505(c)(2)(B) limits the

circumstances under which a convening authority may add members

to the panel, but it does not require the authority to add only

the minimum number and type necessary to address any deficit

under Articles 16 or 25.    Neither the statute nor the rule

entitles an enlisted accused to maintain the proportion of

officer and enlisted members that was contained in the initial

convening order or at any other point during trial.



              III. ASSISTANCE OF COUNSEL (ISSUE II)

     Appellant contends that she was denied effective assistance

of counsel under the Sixth Amendment because of deficiencies in

her counsel’s approach to various mental health issues related

to her defense to the charge of premeditated murder.   In this

section, we note the applicable standard of review, briefly

discuss the relationship between mental health and self-defense,

describe the pretrial evaluations of Appellant, summarize




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United States v. Dobson, No. 05-0004/AR


pertinent trial testimony, and analyze Appellant’s claims

regarding the assistance of counsel.

                         A. STANDARD OF REVIEW

     The right to counsel under the Sixth Amendment includes the

right to the effective assistance of counsel.     Strickland v.

Washington, 466 U.S. 668, 686 (1984); see also United States v.

Scott, 24 M.J. 186, 187-88 (C.M.A. 1987).     We review allegations

of ineffective assistance of counsel de novo.     United States v.

Wean, 45 M.J. 461, 463 (C.A.A.F. 1997).

     “On appellate review, there is a ‘strong presumption’ that

counsel was competent.”    United States v. Grigoruk, 56 M.J. 304,

306-07 (C.A.A.F. 2002) (citing Strickland, 466 U.S. at 689).      A

servicemember “who seeks to relitigate a trial by claiming

ineffective assistance of counsel must surmount a very high

hurdle.”   United States v. Moulton, 47 M.J. 227, 229 (C.A.A.F.

1997).

     Under the first prong of Strickland, which examines the

issue of deficiency in performance, we ask:      (A) Are appellant’s

allegations true?   (B) If so, is there a reasonable explanation

for counsel’s actions?    (C) If there is not a reasonable

explanation, did defense counsel’s level of advocacy fall

measurably below the performance ordinarily expected of fallible

lawyers?   See Grigoruk, 56 M.J. at 307 (citing United States v.

Polk, 32 M.J. 150, 153 (C.M.A. 1991)).


                                  22
United States v. Dobson, No. 05-0004/AR


     Even if counsel’s performance was deficient, the defense

must surmount the second prong of Strickland, which measures

prejudice.    The defense bears the burden of demonstrating that

“there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have

been different.”    466 U.S. at 694.

     The second prong is critical because, “[i]f we conclude

that any error would not have been prejudicial under the second

prong of Strickland, we need not ascertain the validity of the

allegations or grade the quality of counsel’s performance under

the first prong.”    United States v. Saintaude, 61 M.J. 175, 179-

80 (C.A.A.F. 2005).

                   B. MENTAL HEALTH AND SELF-DEFENSE

     Appellant’s contention that she was denied effective

assistance of counsel under the Sixth Amendment pertains

primarily to the relationship between her mental health and her

claims of self-defense.    R.C.M. 916(e)(1) provides:

             It is a defense to a homicide . . . that the
             accused:

                       (A) Apprehended, on reasonable
                  grounds, that death or grievous bodily
                  harm was about to be inflicted
                  wrongfully on the accused; and

                       (B) Believed that the force the
                  accused used was necessary for
                  protection against death or grievous
                  bodily harm.



                                  23
United States v. Dobson, No. 05-0004/AR


     The first element, under subparagraph (A), has an objective

component, involving the perception of a reasonable person under

the circumstances.   The second element, under subparagraph (B),

is wholly subjective, involving the personal belief of the

accused, even if not objectively reasonable.   Although mental

health evaluations may be relevant to both elements of self-

defense, such evaluations may have particular import with

respect to the second element, which involves the personal,

subjective perceptions of the accused.

       C. PRETRIAL MENTAL HEALTH EVALUATIONS OF APPELLANT

     Appellant’s multiple claims of ineffective assistance of

counsel concern the actions taken by trial defense counsel with

respect to the various examinations of Appellant’s mental health

that were conducted in the aftermath of SGT Dobson’s death.

1.   The first mental health evaluation by Doctor Bissell and
Doctor Paliani

     On March 4, 1999, two days after SGT Dobson’s death, the

Military Police (MPs) became concerned about Appellant’s

behavior and potential to commit suicide in pretrial

confinement.   The MPs brought her to the mental health clinic,

where she was interviewed by Dr. William Bissell, the chief of

psychiatric services at the clinic, and Dr. Melissa Paliani, a

clinical psychologist who was the chief of mental health care

services.   Dr. Bissell observed that Appellant generally was



                                24
United States v. Dobson, No. 05-0004/AR


coherent and that she exhibited occasional amnesia and mild

anxiety.   He concluded that although she met the criteria for

acute stress disorder with disassociative amnesia, he could not

rule out a diagnosis of malingering -- fabricating a mental

state in order to avoid responsibility.    He did not administer

or interpret any psychological tests at that time.

2.   The R.C.M. 706 Board

     Both parties subsequently requested a formal inquiry under

R.C.M. 706 to determine whether Appellant lacked mental

responsibility for SGT Dobson’s death or whether she lacked the

mental capacity to stand trial.    The R.C.M. 706 Board, which

included a psychiatrist and a clinical psychologist, issued its

report on August 16, 1999.   The Board concluded that she did not

lack mental responsibility for the offense, see R.C.M. 916(k),

and that she was competent to stand trial.   See R.C.M. 909(a).

Appellant did not challenge the Board’s conclusions at trial,

and the conclusions are not at issue in the present appeal.

     Although the Board did not provide Appellant with a basis

for claiming a lack of mental responsibility, the Board’s report

stated that the evaluation indicated that Appellant appeared “to

have several personality factors that may have influenced her

behavior on the night of the incident in question,” specifically

noting the impact of spousal abuse on her perceptions of a

threat prior to the death of SGT Dobson.   After noting that


                                  25
United States v. Dobson, No. 05-0004/AR


“some of the issues facing this defendant lie outside the area

of expertise of the Board members,” the report “recommended that

outside experts within these areas be allowed to examine the

defendant to more completely comment on her state of mind at the

time of the offense.”   The report added:   “Locally, Diane

Shelton, Ph.D. . . . has the experience and expertise in this

area,” and included Dr. Shelton’s phone number.

3.   Dr. Brill’s evaluation

      After the R.C.M. 706 Board completed its report, Appellant

was examined by Dr. Alice Brill, a licensed psychologist

retained by the defense.   Dr. Brill conducted five examinations

of Appellant beginning on August 28, 1999.    She concluded that

Appellant suffered from battered woman’s syndrome and post-

traumatic stress disorder (PTSD).

4.    Further evaluation by Dr. Bissell

      On December 29, 1999, personnel at the confinement facility

became concerned that Appellant’s behavior indicated a suicide

risk, and they brought her to the mental health clinic.    At that

time, she was again examined by Dr. Bissell.    He concluded that

she was not suffering from either PTSD or acute anxiety

disorder, but that she met the criteria for adjustment disorder

with mixed emotions of depression and anxiety.    A week later,

Dr. Bissell received a call from Dr. Brill, who expressed

concern that Appellant was psychotic.     Dr. Bissell said that if


                                26
United States v. Dobson, No. 05-0004/AR


defense counsel submitted a request, he would conduct a further

examination of Appellant.

      After defense counsel made the arrangements, Dr. Bissell

evaluated Appellant on January 9, 2000.    At the examination,

Appellant provided Dr. Bissell with the same information that

she had described in her prior examinations, and he once again

concluded that she did not suffer from PTSD or any other serious

psychiatric illness.   Dr. Bissell’s evaluations were based upon

his interviews with Appellant.    He did not conduct or evaluate

any psychological tests during his three meetings with

Appellant.

                       D.     TRIAL TESTIMONY

1.   The Defense Case Concerning Appellant’s Mental Health

      The defense presented the testimony of Ms. Janet Kerr,

Executive Director of the Center for the Prevention of Domestic

Violence, to explain the concepts of battered woman’s syndrome,

PTSD, and disassociation.    Ms. Kerr, who was qualified as an

expert, specifically addressed the relationship between spousal

abuse and self-defense.     Ms. Kerr, who had not examined

Appellant, set the stage for the testimony of Dr. Brill, who had

evaluated Appellant.

      Dr. Brill, who was qualified as an expert, testified that

she conducted a number of interviews with Appellant and

administered a series of different psychological tests,


                                  27
United States v. Dobson, No. 05-0004/AR


including the Minnesota Multiphasic Personality Inventory I

(MMPI-I).   For each test, she provided an explanation of the

methodology and results.

      Based on the tests and her evaluation, Dr. Brill diagnosed

Appellant as suffering from PTSD.     She opined that Appellant’s

behavior on the night of SGT Dobson’s death reflected a person

acting in fear of her life, and that her subsequent

inconsistencies reflected the behavior of an abused person.

2.   The prosecution’s critique of Dr. Brill’s testimony

      Dr. Bissell, who had examined Appellant for mental health

problems during her pretrial confinement, testified at trial as

a prosecution witness in rebuttal.    He stated that during his

examinations of Appellant, she had not described herself as a

battered spouse, and that he could recall her recounting only

one incident of abuse.   He also testified that the term

“battered spouse syndrome” was not a recognized diagnosis

because it was “very simplistic” and did not “describe anything

that’s clinically meaningful.”    According to Dr. Bissell,

Appellant suffered from stress and sleep disorder, but not PTSD.

He disagreed with Dr. Brill’s assessment of Appellant as

suffering from PTSD or another psychotic condition.    He also

stated that he did not believe it was possible to determine,

months after the event, what Appellant’s mental state had been

at the time she killed SGT Dobson.    Dr. Bissell testified that


                                 28
United States v. Dobson, No. 05-0004/AR


Appellant’s behavior reflected a pattern of self-serving

statements, intermittent memory lapses, and fabrications that

were “more consistent with malingering than any other diagnoses

[sic].”   Dr. Bissell criticized Dr. Brill’s use of the MMPI-I

test on the grounds that it was outdated and had been replaced

by the MMPI-II test.

     During cross-examination by the defense, Dr. Bissell

acknowledged that in his position, he was not responsible for

administering or interpreting psychological tests.   He also

stated that his evaluations were conducted for the purpose of

determining whether Appellant had presented any suicidal

tendencies during pretrial confinement, and whether treatment

was necessary.   He did not evaluate her for purposes of

assessing her state of mind on the date of SGT Dobson’s death.

     The prosecution sought to bolster its critique of Dr.

Brill’s testimony through the testimony of Dr. Paliani.    Dr.

Paliani, who had reviewed the psychological tests that Dr. Brill

had performed on Appellant, criticized Dr. Brill’s use of the

MMPI-I test as outdated.   She also stated that it was unethical

to use such a test under standards of the American Psychological

Association.   In addition, Dr. Paliani identified various

mathematical errors committed by Dr. Brill in the course of her

analysis of Appellant.




                                29
United States v. Dobson, No. 05-0004/AR


3.   Dr. Brill’s response

      In response to the testimony from Doctors Bissell and

Paliani, the defense recalled Dr. Brill.   She testified that she

was experienced in using both the MMPI-I and MMPI-II and that

the differences between the two were not significant.     She also

stated that the MMPI-I remained valid as an analytical tool.

She added that any mathematical errors reflected minor clerical

mistakes that did not affect the substance of her evaluation of

Appellant.

     E.   APPELLATE ISSUES CONCERNING THE ASSISTANCE OF COUNSEL

      In the present appeal, Appellant submits four separate

claims alleging constitutionally defective representation by the

trial defense team.

1.   Defense counsel’s reliance upon Dr. Brill

      Appellant contends that defense counsel should not have

presented the testimony of Dr. Brill, whose evaluation was

vulnerable because she used an outdated and inappropriate test,

committed computational errors in scoring the tests, and relied

on outdated scoring methods.   Although Dr. Brill was a

vulnerable witness, Appellant does not detail a specific

alternative approach that should have been taken by the trial

defense team.   It is not apparent whether Appellant believes

that it would have been better to:    (a) present no testimony on




                                 30
United States v. Dobson, No. 05-0004/AR


this subject; (b) obtain a different witness; or (c) somehow

improve the quality of Dr. Brill’s testimony.

     In view of the strong case presented by the prosecution

during its case-in-chief, testimony about Appellant’s

psychological state on the night of SGT Dobson’s death and

afterwards was an important component of the defense case.     Dr.

Brill presented exculpatory expert testimony supportive of

Appellant’s claim of self-defense, both in terms of Appellant’s

role in SGT Dobson’s death, and in explaining her subsequent

fabrications, inconsistencies, and memory lapses.    In that

context, Appellant was not prejudiced by presenting Dr. Brill’s

testimony, as opposed to presenting no evidence on this subject.

     In terms of an using an alternative witness, Appellant has

not demonstrated what an alternative witness could have done

that Dr. Brill did not do in addressing Appellant’s behavior on

the night of SGT Dobson’s death and Appellant’s subsequent

behavior.   Finally, although the defense might have marginally

enhanced the quality of Dr. Brill’s testimony by using the

initial direct examination to anticipate and rebut the critiques

offered by the prosecution’s experts, such tactics would not

have eliminated either the critiques or Dr. Brill’s rebuttal

from consideration by the panel.     Accordingly, Appellant has not

demonstrated a reasonable probability that a different approach

would have produced outcome-altering testimony.    See Grigoruk,


                                31
United States v. Dobson, No. 05-0004/AR


56 M.J. at 307-08.   In the absence of such a showing, Appellant

has not met the defense’s burden of demonstrating prejudice

under the second prong of Strickland.

2.   Dr. Shelton

     Appellant faults the trial defense team because the record

does not reflect that they pursued the recommendation of the

R.C.M. 706 Board to contact Dr. Shelton, an expert on domestic

violence and female offenders.    Assuming that the defense did

not contact Dr. Shelton, and that this was a deficiency,

Appellant has not demonstrated prejudice.     Even if Dr. Shelton

could have provided favorable background information about the

various psychological concepts at issue, Appellant has not

identified any outcome-altering difference between what she

would have offered and the background testimony presented by Ms.

Kerr, who testified as an expert witness for the defense.

     With respect to the vulnerabilities in the testimony of Dr.

Brill, the burden is on Appellant to demonstrate that an

evaluation of Appellant by Dr. Shelton would have reached

similarly favorable conclusions about Appellant’s behavior on

the night of SGT Dobson’s death and about her subsequent

behavior.   There has been no such showing.   Under these

circumstances, Appellant has not demonstrated prejudice under

the second prong of Strickland.




                                  32
United States v. Dobson, No. 05-0004/AR


3.   The R.C.M. 706 Board

      Appellant asserts that the trial defense team was

ineffective for not calling members of the R.C.M. 706 board to

testify at trial.   According to Appellant, this testimony would

have been helpful in a number of respects on findings and

sentence, including serving to rebut Dr. Bissell’s suggestion

that Appellant was malingering and showing that Appellant

suffered from a post-traumatic reaction.

      Testimony by the Board members, however, would have carried

significant risks for the defense.     The Board, for example,

administered the MMPI-II test, but did not conclude that

Appellant was suffering from PTSD -- the centerpiece of the

defense case.   The Board also expressly noted that its members

did not have expertise in the other key aspect of the defense

case -- battered woman’s syndrome.     Moreover, much of the Board

report was based upon information provided by Appellant,

including information that she later acknowledged to be false.

Under these circumstances, the decision not to call the Board

members as witnesses was well within the range of discretion

afforded to defense counsel under the first prong of Strickland.

4.    Statements to Dr. Bissell

      Appellant met with Dr. Bissell on three separate occasions

to address mental health problems she encountered during

pretrial confinement.   The meetings took place on March 4, 1999,


                                  33
United States v. Dobson, No. 05-0004/AR


December 29, 1999, and January 9, 2000.   The last meeting was

held at the request of Dr. Brill, and was facilitated by defense

counsel.

     Appellant notes that Dr. Bissell provided damaging

testimony based upon his third evaluation of Appellant.    In

particular, he testified that Appellant had not presented a

pattern of being battered by her spouse; that he disagreed with

Dr. Brill’s assessment that she was psychotic and suffered from

PTSD; and that her symptoms were more consistent with

malingering than any other diagnosis.   Appellant contends that

her trial defense team was ineffective for:   (1) not moving at

trial to suppress her December 29 and January 9 statements; and

(2) not ensuring that her statements during the January 9

meeting were treated as confidential before permitting her to

meet with Dr. Bissell.

     Appellant, who asserts that none of the statements were

confidential under Military Rule of Evidence (M.R.E.) 513

(psychotherapist-patient privilege), does not identify the

source of law that could have been invoked at trial to suppress

her December 29 and January 9 statements to Dr. Bissell.

Moreover, Appellant does not assert that Appellant’s statements

to Dr. Bissell on December 29 resulted from any defect on the

part of counsel.




                               34
United States v. Dobson, No. 05-0004/AR


      In any case, there was no prejudice from Dr. Bissell’s

reliance on statements made during the latter two examinations.

Dr. Bissell testified that in his first evaluation of Appellant,

he did not diagnose her as suffering from PTSD, and that there

was the possibility of malingering.   The information from the

latter two evaluations confirmed his initial evaluation.   Even

if the results of the December 29 and January 9 evaluations had

been excluded, Dr. Bissell would have provided adverse testimony

covering much of the same matter.    Although his testimony might

have been somewhat less forceful if based only on his first

evaluation, there is no reasonable probability that the panel,

without the December 29 and January statements, would have had a

reasonable doubt about Appellant’s guilt.    See United States v.

Paaluhi, 54 M.J. 181, 185 (C.A.A.F. 2000).

5.   Assistance of counsel -- conclusion

      The prosecution presented a very strong case in terms of

eyewitness testimony, forensic evidence, and numerous examples

of Appellant’s false, inconsistent, and incomplete statements.

In view of both the strength of the prosecution’s case and the

nature of the errors alleged by Appellant, we conclude that the

alleged errors, both individually and collectively, were not

prejudicial under the second prong of Strickland.




                                35
United States v. Dobson, No. 05-0004/AR


    IV.   EVIDENCE CONCERNING SPECIFIC INCIDENTS OF PRIOR ABUSE
                               (ISSUE III)

                        A.   TRIAL PROCEEDINGS

1. Specific Instances of Prior Abuse Discussed by Both Parties
in the Opening Statements

     The prosecution, in its opening statement, told the members

that premeditation could be inferred from Appellant’s acts

before, during, and after the killing of SGT Dobson.   With

respect to events before the killing from which intent could be

inferred, the prosecution noted that the couple had argued over

possessions, infidelity, a possible divorce, and custody of

their infant twin daughters.   Defense counsel’s opening

statement also focused on the impact of prior events on

Appellant’s intent.   According to defense counsel, SGT Dobson’s

abuse of Appellant had created a situation in which she “was

desperate and felt she had no other alternative.”

     Defense counsel told the panel that Appellant would testify

about incidents of mental cruelty and physical abuse inflicted

by SGT Dobson from 1997 through 1999.   Defense counsel also

advised the panel that two separate witnesses would confirm her

testimony.   The first witness would be a friend who was talking

to Appellant on the phone and “heard Sergeant Terry Dobson

threaten to kill her and heard the phone go dead.”   The second

witness would corroborate a 911 call Appellant made after SGT

Dobson had threatened her and she was in “fear for her safety.”


                                 36
United States v. Dobson, No. 05-0004/AR


Defense counsel stated that these incidents, along with others,

would demonstrate that Appellant acted out of fear for her

safety on the night SGT Dobson was killed.

2. Exclusion of Ms. Waddell’s specific incident testimony

     During the trial on the merits, defense counsel proffered

the stipulated testimony of Karen Waddell, including testimony

concerning the phone conversation that had been described by

defense counsel in his opening statement.    In the stipulated

testimony, Waddell stated that she overheard SGT Dobson threaten

to kill Appellant, and then the phone went dead.

     When the military judge inquired as to the basis for

admitting this testimony, defense counsel offered two grounds:

first, the testimony would prove that the victim had a character

trait to be a violent person, which would be relevant to self-

defense; and second, the evidence would be relevant to show

Appellant’s state of mind.   The military judge focused on the

first ground -- the character trait of the victim -- and ruled

that the testimony was inadmissible.   In support of the ruling,

the military judge cited the rules of evidence concerning proof

of character traits.   See M.R.E. 404(a)(2) (evidence of a

pertinent character trait of a victim); M.R.E. 405(a) (when a

character trait is at issue, it may be proved by reputation or

opinion testimony); M.R.E. 405(b) (specific instances of a

person’s conduct may be introduced if the person’s character or


                                37
United States v. Dobson, No. 05-0004/AR


trait of character is an “essential element” of an offense or

defense).   The military judge added that SGT Dobson’s character

for peacefulness was not an “essential element” of Appellant’s

claim of self-defense, citing United States v. Keiser, 57 F.3d

847 (9th Cir. 1995) (holding that although the victim’s

character for violence could be proved by opinion or reputation

evidence, a third party’s testimony as to specific acts by the

defendant was not admissible because the character trait for

violence was not an “essential element” of the self-defense

claim).    See R.C.M. 916 (setting forth the two elements of self-

defense:    (1) that the accused reasonably believe that death or

grievous bodily harm is about to be inflicted; and (2) that the

accused believe that the force used was necessary for protection

against death or grievous bodily harm).   The military judge did

not address the question of whether evidence of specific acts of

violence known to Appellant were admissible on the issue of

Appellant’s intent.

3.   Specific incidents of prior abuse admitted into evidence

     During her testimony on the merits, Appellant described

specific instances of violent conduct by SGT Dobson, including

threats and acts of physical abuse.   Her testimony included the

incident, noted in defense counsel’s opening statement, in which

Appellant had placed a 911 call to the police.   According to

Appellant, the incident occurred during her pregnancy.    She


                                 38
United States v. Dobson, No. 05-0004/AR


testified that SGT Dobson “told me that he would stomp the

oblivion out of me and the [twin] babies inside of me.”    She

added that she was “scared” and picked up the phone to call his

unit.    SGT Dobson pressed his fingers against her head and told

her that he would kill her if she interfered with his military

career.    When she responded by calling 911, SGT Dobson left the

premises, and she called her brother.    Both the police and her

brother came to the apartment, and she decided to spend the

night with her brother “just in case” SGT Dobson returned.

        Appellant also described a separate incident in which she

was talking on the phone with a friend.    SGT Dobson threatened

to kill her if she did not get off the phone, and he then

grabbed the phone from her and hung it up.

        Appellant testified without objection by the prosecution to

the evidence of specific acts of violence by SGT Dobson.    On

cross-examination, trial counsel emphasized that the 911 call

was “significant.”    The prosecution sought to discredit her

testimony by suggesting that in her pretrial sessions with Dr.

Brill, Appellant treated the incident as insignificant.    The

prosecution pursued a similar line of inquiry during cross-

examination of Dr. Brill, focusing the panel on

“inconsistencies” and “lies” in what Appellant told Dr. Brill --

including differences between her in-court testimony and her

pretrial statements to Dr. Brill about the 911 call.    Through


                                  39
United States v. Dobson, No. 05-0004/AR


the cross-examination, the prosecution expressly sought to

challenge Dr. Brill’s testimony “that the accused could not form

the intent to murder.”   On redirect examination, Dr. Brill

testified, without objection, that Appellant told her that she

had made the 911 call after SGT Dobson “threatened to kill her.”

4. Exclusion of Sergeant First Class Johnson’s specific incident

testimony

     After Dr. Brill completed her testimony, the defense

attempted to call as a witness Sergeant First Class (SFC) Lester

Johnson, Appellant’s brother.   The prosecution requested a

session pursuant to Article 39(a), UCMJ, 10 U.S.C. § 839(a)

(2000), for the purpose of objecting to testimony from SFC

Johnson about the 911 call.   Defense counsel proffered that SFC

Johnson would testify that he received a phone call from

Appellant.    She was upset, he went to her apartment, the police

arrived, and she told him that SGT Dobson had threatened her.

Defense counsel indicated that SFC Johnson’s testimony about

Appellant’s remarks to him would be admissible as a hearsay

exception -- an excited utterance by Appellant.   See M.R.E.

803(2).   Trial counsel objected on the same grounds used to

exclude the testimony of Ms. Waddell -- that a specific instance

of conduct could not be used “to shed bad light on the victim’s

character.”




                                 40
United States v. Dobson, No. 05-0004/AR


     At the Article 39(a) session, SFC Johnson stated that he

had received a phone call from Appellant in which she “sounded

real shaken-up, like . . . she had been crying . . . [i]t was a

voice I had never heard her in that state before . . . .”    He

said that he immediately went to the apartment, arriving within

minutes after receiving the call.    At the apartment, Appellant

“was kind of nervous like, shaken-up and looked as though she

had been crying.”   Appellant told him that SGT Dobson “had been

threatening her and talking about what he would do to her.”

     The prosecution then renewed its objection on the grounds

that the defense was improperly trying to use a specific

instance of conduct to portray SGT Dobson as having a character

trait for issuing violent threats.   According to the

prosecution, the evidence, like the Waddell stipulation, was

inadmissible under M.R.E. 405(a) because it improperly sought to

prove a character trait through a specific instance of conduct

when the trait was not an essential element of self-defense.

Defense counsel responded that the evidence was not being

offered solely as to SGT Dobson’s character, but to rebut the

prosecution’s suggestion, through its cross-examination of

Appellant, that she had fabricated her testimony concerning

abuse by SGT Dobson.   See M.R.E. 801(d)(1)(B).   Defense counsel

also stated that the testimony was addressed to a specific

component of self-defense -- Appellant’s state of mind.    The


                                41
United States v. Dobson, No. 05-0004/AR


military judge rejected defense counsel’s arguments by referring

to his prior reliance on the Ninth Circuit’s decision in Keiser,

and by stating that the prosecution had not specifically

challenged Appellant’s testimony about the fact of the 911 call

or why she had made the call.    On that basis, the military judge

granted the prosecution’s objection to SFC Johnson’s testimony.

Following the military judge’s ruling, the defense relied solely

on the testimony of Appellant to establish the facts pertinent

to the defense theory that she had been abused repeatedly by SGT

Dobson.

5. Consideration of specific incidents during the closing
statements

        Defense counsel, in his closing statement, focused the

attention of the members on both self-defense and the intent

element of premeditated murder, as well as the intent elements

of lesser included offenses.    The defense theme was that

Appellant “wasn’t intending to kill Sergeant Terry Dobson.       She

was acting out of fear for her safety that night.”    The defense

emphasized that Appellant’s actions, and her subsequent

inconsistencies, were the product of a cycle of abuse inflicted

by SGT Dobson, specifically highlighting the incident of the 911

call.

        Trial counsel’s rebuttal attacked the credibility of

Appellant’s testimony that she had been abused by SGT Dobson:



                                  42
United States v. Dobson, No. 05-0004/AR


          [T]he accused . . . [is] trying to
          manipulate you. But she’s failed. She
          isn’t satisfied with merely killing her
          husband in a most gruesome and brutal
          fashion that you could possible [sic]
          imagine. She’s not done with him yet. Now
          she’s trying to assassinate his character,
          as well.

The rebuttal emphasized the absence of corroboration for

Appellant’s testimony about abuse:

          Now, one of the things about the accused’s
          defense is -- the thing that needs to just
          jump right out at you is the fact that it
          relies entirely upon her. There is
          absolutely no corroboration for what she has
          tried to tell you or what she has tried to
          imply.

After noting that the testimony of Dr. Brill, the defense

expert, was dependent entirely upon Appellant’s pretrial

statements, trial counsel said:

          You know that the accused lied to her, lied
          to the police, lied to fellow members of her
          unit. Lies, lies, lies, lies.

Trial counsel then returned, for a second time, to the subject

of corroboration:

          The defense is a sort of a combination of
          things here, I guess: battered spouse
          syndrome, post-traumatic stress disorder,
          disassociativeness. There’s no evidence --
          other than the accused, there is no
          corroboration that there was any physical or
          mental abuse.

At that point, defense counsel objected on the grounds that the

prosecution was shifting the burden of proof to the defense, and



                                  43
United States v. Dobson, No. 05-0004/AR


the military judge reminded the members of his earlier

instruction that the Government bears the burden of proof.

Shortly thereafter, trial counsel, for the third time,

emphasized the absence of corroborating evidence:

            There’s no corroboration for the accused’s
            claims that she was abused.

As trial counsel began to identify inconsistencies in

Appellant’s various pretrial and trial statements, defense

counsel asked for an Article 39(a) session.   In that session,

defense counsel emphasized that it was improper for the

prosecution to highlight a lack of corroboration, particularly

in light of the Government’s objection to the Waddell

stipulation and testimony of SFC Johnson.   The military judge

said that it would be permissible for the prosecution to

emphasize inconsistencies in her statements, but reminded trial

counsel to refrain from saying that the defense had not

presented any evidence.

     When the trial resumed, the military judge again reminded

the panel that the defense had no burden to produce any

evidence.   Trial counsel argued that the evidence demonstrated

that Appellant’s claims of abuse were fabricated:

            [Y]ou cannot rely on what she says. She has
            chosen to tell people all the time leading
            up till [sic] trial . . . “I was never
            mentally or physically abused.” There’s no
            cycle of violence in this case.



                                 44
United States v. Dobson, No. 05-0004/AR


Trial counsel added that Appellant’s statements:

           [are] not just inconsistencies. They’re
           lies. She lies. She came in here and she
           lied to you. She told you that she was
           abused. But she told everybody else up
           until then that she had never been abused.

     Later in the argument, when trial counsel referred to a

chart that contained its list of “proven lies,” the defense

objected to a reference on the chart to the “911 call.”    In the

ensuing Article 39(a) session, trial counsel said that the

prosecution was focusing on the credibility of her statement as

to the purpose of the call, rather than on the question of

whether the call was made.   Trial counsel asserted that there

was an inconsistency between her trial testimony that she called

because of abuse and Dr. Brill’s notes indicating that she

called because there had been an argument about washing the

dishes.   The military judge stated that he recalled the

inconsistency between Appellant’s testimony and Dr. Brill’s

version of Appellant’s pretrial statements, and he ruled that it

was permissible for prosecution to include the 911 call on its

display of “proven lies” on the grounds that the record

contained “different stories” as to why the call was made.    On

that basis, trial counsel told the members:

           She lied about why she made the 911 call
           when she was in Texas. On the stand, she
           says she made the 911 call because Terry put
           his fingers up to her head and pushed her
           head and threatened her.


                                45
United States v. Dobson, No. 05-0004/AR



Referring to Dr. Brill’s notes, trial counsel then said:

           She told Dr. Brill, “I called 911. It was
           really pretty stupid,” and she laughed. “We
           were just arguing over cleaning up, and he
           called me a bitch, so I called 911.”

     After the members returned a finding of guilty to the

charge of premeditated murder, the prosecution asked the members

to sentence Appellant to life without parole.   Trial counsel’s

argument included an emphasis on Appellant’s untruthfulness,

noting:   “Her entire defense was to trash her family and to

trash her husband.”

                           B. DISCUSSION

1.   Exclusion of the testimony

     The defense theory of the case was that Appellant suffered

a cycle of abuse from SGT Dobson, that the abuse had a direct

impact on her state of mind at the time of SGT Dobson’s death,

and that her inconsistent statements thereafter were a by-

product of the abuse.   The prosecution theory was that Appellant

committed premeditated murder and subsequently fabricated a tale

of abuse to escape responsibility for her intentional acts.

     In support of its theory, the defense presented evidence of

numerous specific incidents of abuse by SGT Dobson.   This

evidence was introduced through Appellant’s testimony, and

through Dr. Brill’s description of the information that she had

obtained from Appellant in the course of making her


                                  46
United States v. Dobson, No. 05-0004/AR


psychological evaluation.   The prosecution did not object to the

evidence about the specific incidents, but instead sought to

persuade the panel, through aggressive cross-examination of

Appellant and Dr. Brill, that the testimony was not credible.

In particular, the prosecution drew the attention of the panel

to the 911 incident by asking Appellant to repeat her

description of the incident during cross-examination.   In

response, Appellant specifically referred to her brother’s

prompt response to the call.   Although Appellant’s testimony

described specific instances of abusive treatment of Appellant

by SGT Dobson, the military judge ruled that Ms. Waddell and SFC

Johnson could not provide similar testimony, relying primarily

on the Ninth Circuit’s opinion in Keiser.

       We review the ruling on the admissibility of evidence under

an abuse of discretion standard, under which we assess whether

the military judge’s findings of fact were clearly erroneous or

whether the decision was influenced by an erroneous view of the

law.   United States v. Sullivan, 42 M.J. 360, 363 (C.A.A.F.

1995).   The military judge erred in applying Keiser to the

present case.   In Keiser, the defense sought to admit evidence

of an incident that occurred after the charged crime, in which

the alleged victim threatened a third party.   57 F.3d at 852.

The court expressly noted that the defendant made “no claim on

appeal that the incident . . . was relevant to his state of mind


                                 47
United States v. Dobson, No. 05-0004/AR


at the time of the shooting or the reasonableness of his belief

that force in self-defense was necessary.”   Id. at 853.   In that

context, the court noted that the character of the alleged

victim for violence could be proved by reputation or opinion

evidence for purposes of showing that he acted in conformity

with that trait, but could not be proved by evidence of specific

acts because the character trait is not an “essential element”

of self-defense.   Id. at 854-57 (including citations to Fed. R.

Evid. 404(a) and Fed. R. Evid. 405(b)).

     In relying on the “essential element” aspect of Keiser, the

military judge did not address the relevance of the specific

acts to Appellant’s state of mind.   As noted in several opinions

issued by the same court of appeals prior to Appellant’s trial,

evidence of a victim’s specific prior acts of violence known to

the defendant may be admitted to show Appellant’s state of mind

at the time of the victim’s death.   United States v. James, 169

F.3d 1210 (9th Cir. 1999); United States v. Saenz, 179 F.3d 686

(9th Cir. 1999).   Because the military judge applied an

erroneous view of the law, we find that the exclusion of the

stipulation of Ms. Waddell and the testimony of SFC Johnson was

an abuse of discretion.

     In the present appeal, the Government contends that even if

the military judge erred in relying on Keiser, the testimony

about specific acts was too remote in time to bear on


                                48
United States v. Dobson, No. 05-0004/AR


Appellant’s state of mind at the time of SGT Dobson’s death.

At trial, however, the prosecution offered no objection to the

detailed evidence of SGT Dobson’s prior acts from the same

period -- 1997 to 1998 -- introduced by the defense at trial.

The time for objection to the relevance of such evidence was at

trial, not on appeal.

     With respect to SFC Johnson’s testimony -- that Appellant

told him that she made the 911 call because SGT Dobson

threatened her -- the military judge also erred by ruling that

the evidence was not admissible to rebut a claim of recent

fabrication under M.R.E. 801(d)(1)(B).    In the course of

considering the prosecution’s motion to preclude SFC Johnson’s

testimony, the military judge stated that the prosecution had

not cast doubt on the content of Appellant’s testimony regarding

the substance of the 911 call.   That statement by the military

judge was clearly erroneous in light of the prosecution’s cross-

examination of both Appellant and Dr. Brill about the 911 call.

The cross-examination was designed to discredit Appellant’s

statement that she made the call because she was threatened by

SGT Dobson.   It is noteworthy, in that regard, that the military

judge -- in a different context –- had a different recollection

of the state of the record when he ruled that trial counsel in

closing argument could attack Appellant’s credibility by arguing

that her in-court testimony was inconsistent with her pretrial


                                 49
United States v. Dobson, No. 05-0004/AR


statements to Dr. Brill about the purposes of the 911 call.    As

a result of the military judge’s inconsistent rulings, trial

counsel was permitted to use a chart that expressly referred to

the 911 call under the heading “Proven Lies” even though the

defense was precluded from introducing evidence to rebut the

prosecution’s suggestion that Appellant’s testimony about the

911 call had been fabricated.

2.   The test for prejudice

     In view of the military judge’s erroneous rulings, we must

determine whether there was prejudice with respect to the issue

of self-defense; and, if not, whether there was prejudice with

respect to the issue of premeditation.    See Article 59(a), UCMJ

10 U.S.C. § 859(a) (2000).    Appellant asserts that the military

judge precluded her from presenting a defense -- the impact of

the prior acts on her state of mind -- an error of

constitutional dimension that would be prejudicial unless

harmless beyond a reasonable doubt.   As reflected in the

foregoing discussion of the record, however, Appellant had an

extensive opportunity to present a defense based on the impact

of SGT Dobson’s specific acts on her state of mind.   The error

was not that the military judge precluded her from presenting

the state-of-mind defense based on SGT Dobson’s acts, but that

he prevented her from introducing corroborating evidence when

her credibility was attacked.   Accordingly, we apply the test


                                 50
United States v. Dobson, No. 05-0004/AR


for nonconstitutional evidentiary error, which requires us to

weigh four factors:   “(1) the strength of the Government’s case,

(2) the strength of the defense case, (3) the materiality of the

evidence in question, and (4) the quality of the evidence in

question.”   United States v. Kerr, 51 M.J. 401, 405 (C.A.A.F.

1999).

3.    Impact of the error on self-defense

      Applying the Kerr factors, we conclude that there was no

prejudice on the issue of self-defense.     From the outset of the

trial, the prosecution sought to meet its burden on the issue of

self-defense by demonstrating that Appellant’s actions did not

fall within either or both of the elements of self-defense; that

is:   (1) the objective element, which involves a reasonable

apprehension that “death or grievous bodily harm was about to be

inflicted”; or (2) the subjective element, which involves a

personal belief that the force used “was necessary for

protection against death or grievous bodily harm.”    R.C.M.

916(e)(1).

      The Government presented a very strong case as to both

elements, consisting of eyewitness and expert testimony.    At the

point in the affray where the eyewitnesses first viewed it, SGT

Dobson was still standing.   They saw Appellant aggressively

pursue SGT Dobson.    Instead of fleeing when she had the

opportunity, Appellant taunted and repeatedly attacked SGT


                                 51
United States v. Dobson, No. 05-0004/AR


Dobson.    The expert witnesses testified that SGT Dobson suffered

numerous wounds consistent with defensive behavior, while

Appellant did not have any significant wounds.    The Government

further strengthened its case by focusing on the numerous

fabrications and inconsistencies in Appellant’s pretrial

statements on critical events.

     The defense was unable to offer a significant challenge,

either through cross-examination or rebuttal, to either the

eyewitness or expert testimony.    Moreover, Appellant provided

very little direct evidence.    Appellant provided virtually no

details as to events immediately preceding her use of the knife

to kill SGT Dobson.    Although her pretrial and trial testimony

is filled with detail about her relationship with SGT Dobson,

she provided no information as to how they arrived on Sage

Street in the middle of the night, who started the fight, who

produced the knife, or who first threatened or used deadly

force.    Without providing any immediate context, she simply

stated that there was a knife between them and SGT Dobson said:

“It’s me or you now that -- it’s me or you now, Bitch.    One of

us has to die.”    She also stated that he lunged at her with the

knife.    She provided no information as to how she obtained the

knife or the circumstances in which she used it.

         Although her testimony was sufficient to warrant a self-

defense instruction, particularly in the context of the


                                  52
United States v. Dobson, No. 05-0004/AR


psychological testimony provided by the defense witnesses, the

sketchy details did not provide a substantial counterweight to

the powerful eyewitness and expert testimony regarding her

aggressive behavior, the absence of aggression by SGT Dobson,

and her use of the knife when she had ample opportunity to flee.

In the context of the evidence presented at trial on the issue

of self-defense, the excluded testimony from Ms. Waddell and SFC

Johnson was not particularly significant, either with respect to

its quality or materiality.   The evidence was offered to

corroborate Appellant’s testimony and establish that she had

reason to fear SGT Dobson.    The excluded evidence consisted of

two incidents of verbal abuse, both of which occurred more than

a year prior to the death of SGT Dobson.   The import of the

testimony would have been diminished by the remoteness in time

from the killing of SGT Dobson, the fact that neither witness

personally observed the interaction between Appellant and SGT

Dobson, and the fact that neither incident involved actual

physical abuse.   Moreover, the support that it might have given

to Appellant’s testimony would have been heavily countered by

the evidence of her repeated fabrications and deceptions

following the death of SGT Dobson.

     In short, the prosecution case on self-defense was strong,

the defense case was weak, and the quality and materiality of

the excluded evidence was of diminished value on the issue of


                                 53
United States v. Dobson, No. 05-0004/AR


self-defense.    Under these circumstances, we conclude that the

error was not prejudicial as to self-defense.

4.   Premeditation

     The Manual provides the following guidance with respect to

premeditation:

          A murder is not premeditated unless the
          thought of taking life was consciously
          conceived and the act or omission by which
          it was taken was intended. Premeditated
          murder is murder committed after the
          formation of a specific intent to kill
          someone and consideration of the act
          intended. It is not necessary that the
          intention to kill have been entertained for
          any particular or considerable length of
          time. When a fixed purpose to kill has been
          deliberately formed, it is immaterial how
          soon afterwards it is put into execution.
          The existence of premeditation may be
          inferred from the circumstances.

MCM pt. IV, para. 43.c.(2)(a) (2005 ed.).    Unpremeditated

murder, however, does not require a similar degree of

specificity as to intent.   An unpremeditated murder does not

require a fixed intent to kill a specific person after

considering the specific act.   A person may be convicted of

unpremeditated murder even if the person had no intent to kill

prior to taking an act, so long as the act itself was

intentional and likely to result in death or great bodily harm.

Id. para. 43.c.(3)(a).

     In assessing impact of the error of excluding the testimony

of Ms. Waddell and SFC Johnson, we note that the prosecution


                                 54
United States v. Dobson, No. 05-0004/AR


presented legally sufficient evidence on the subject of

premeditation, see Jackson v. Virginia, 443 U.S. 307 319 (1979)

(test for legal sufficiency is whether, considering the evidence

in the light most favorable to the prosecution, a reasonable

factfinder could have found all the essential elements beyond a

reasonable doubt).   See supra, Section III. E. 5 (summarizing

the evidence).   Although the error did not affect the legal

sufficiency of the evidence under the low threshold of Jackson,

we must also examine whether the error was prejudicial under the

Kerr analysis.   We begin by evaluating the strength of the

Government’s case on the issue of premeditation.

     The prosecution faced a much greater challenge in proving

premeditation than it faced in disproving self-defense.   The

prosecution presented no direct evidence as to the immediate

circumstances that produced a fatal confrontation between

Appellant and her husband on Sage Street in the middle of the

night.   No one saw the argument begin, how or why it escalated

into a physical altercation, who struck the initial blow, who

introduced a knife into the affair, or who first used the knife

against the other.   Although the prosecution presented

substantial evidence from which premeditation could be inferred

from her actions on Sage Street and her subsequent attempts at

deception, it was evidence from which the panel could have

readily concluded that Appellant committed murder without a


                                55
United States v. Dobson, No. 05-0004/AR


preexisting intent -- unpremeditated murder.   Trial counsel’s

closing statement underscored the difficulties the prosecution

faced on the issue of premeditation by candidly acknowledging

that the prosecution could not identify the point in time at

which Appellant formed a premeditated intent to commit murder.

     The defense presented a substantial case on the issue of

premeditation.   Through cross-examination, the defense

repeatedly underscored the absence of direct prosecution

evidence on premeditation.   The defense then presented two

expert witnesses who provided a clear, coherent explanation of

the impact of spousal abuse on Appellant’s intent on the night

of the killing, as well as the impact of abuse on her behavior

thereafter.   The importance of that testimony has been

highlighted, in the present appeal, by the Government in

responding to Appellant’s claims of ineffective assistance of

counsel.   The significance at trial was further highlighted by

the Government’s persistent efforts to preclude testimony by

witnesses who would have corroborated Appellant’s testimony

about spousal abuse.

     In that context, the materiality of the excluded testimony

is much more significant on the issue of premeditation than it

was on the issue of self-defense.    With no direct evidence of

intent, the panel could have accepted all of the Government’s

evidence pointing to Appellant as the perpetrator of the murder,


                                56
United States v. Dobson, No. 05-0004/AR


but still have a reasonable doubt as to whether she premeditated

the murder in light of the impact of abuse on her intent.     A key

element of the Government’s strategy was to convince the panel

that they could discount the expert testimony on the impact of

abuse on the grounds that they should treat her entire testimony

as a lie.   Trial counsel emphasized that position during cross-

examination by first asking Appellant to tell the panel about

the 911 incident, which was immediately followed by detailed

cross-examination in an effort to portray her testimony as a

fabrication.   During closing argument, trial counsel returned to

the 911 incident during the course of his argument that there

was no corroboration for her testimony.   Had the military judge

permitted the testimony from Ms. Waddell and SFC Johnson, trial

counsel would not have been able to make that argument.

     The adverse impact of the military judge’s erroneous ruling

was heightened by the fact that defense counsel, in his opening

statement, specifically told the members that they would hear

this testimony of the two witnesses.   The defense was then

precluded by the military judge’s ruling from fulfilling that

promise.

     In terms of the quality of testimony, there is no

indication that the information that would have been provided by

Ms. Waddell or SFC Johnson would have been subject to effective

impeachment or rebuttal.   Under the circumstances of this case,


                                57
United States v. Dobson, No. 05-0004/AR


we cannot be confident that the error of excluding the testimony

of these two witnesses was harmless on the issue of

premeditation.    See Kotteakos v. United States, 328 U.S. 750

(1946).

5.      Other offenses

        In addition to instructing the members on premeditated and

unpremeditated murder, the military judge also instructed the

members to consider two other offenses.    First, he instructed on

voluntary manslaughter -- the unlawful killing of a person when

done in the heat of sudden passion caused by adequate

provocation.    See MCM pt. IV, para. 44.b.(1).   Second, he

instructed on involuntary manslaughter -- a killing that occurs

during the commission of an aggravated assault without

necessarily having an intent to kill or cause grievous bodily

harm.    See MCM pt. IV, para. 44.b.(2).   Although the military

judge appropriately recognized that the evidence on these

offenses met the low threshold for providing instructions, these

lesser offenses were not the focus of the trial.    The record

amply reflects the clear understanding of both parties that if

the defense was unable to prevail at trial on a theory of self-

defense, the critical question at trial would involve the choice

between premeditated and unpremeditated murder.

        At trial, the defense directed its primary attention on

self-defense and premeditation, with only perfunctory references


                                  58
United States v. Dobson, No. 05-0004/AR


to voluntary or involuntary manslaughter.   On appeal, Appellant

has likewise emphasized self-defense and premeditation.   Under

these circumstances, we conclude that error in excluding the

witnesses was harmless with respect to the offenses lesser than

unpremeditated murder.



                           V. CONCLUSION

     The decision of the United States Army Court of Criminal

Appeals is reversed.   The record of trial is returned to the

Judge Advocate General of the Army for remand to the Court of

Criminal Appeals.   The court may:   (1) affirm a conviction of

the offense of unpremeditated murder and either reassess the

sentence or order a sentence rehearing; or (2) authorize a

rehearing on the charge of premeditated murder.




                                59
United States v. Dobson, No. 05-0004/AR


     EVERETT, Senior Judge (concurring):

     I concur fully in Judge Effron’s excellent opinion in

this case. I write separately to make three observations.

     First, the opinion rejects some of the claims of

ineffective assistance of counsel because of the absence of

any prejudice to Appellant, even if defense counsel’s

performance were defective.   Certainly Strickland v.

Washington, 466 U.S. 668 (1984), authorizes such treatment

of those claims.   However, I wish to note that my own

review of the extensive record in this complex case

convinces me that defense counsel, both civilian and

military, performed their duties in a very professional

manner -- as also did the prosecutors and military judge.

     Second, under the unique circumstances of this case, I

join in holding that the testimony from third-party

witnesses relating to some incidents of spousal abuse

should have been admitted.    However, in my view the Court’s

ruling in this regard should be very narrowly applied in

future cases.

     Third, I agree fully with the principal opinion’s

conclusion that, in light of the overwhelming prosecution

evidence, the evidentiary error did not affect the court-

martial’s rejection of Appellant’s claim of self-defense.

Giving Appellant every benefit of the doubt, I also join in
United States v. Dobson, No. 05-0004/AR


concluding that Appellant was prejudiced as to the element

of premeditation.   Again, the unique circumstances of the

case are significant.   Although slaying a victim by

stabbing him a hundred times with a knife does not

automatically negate premeditation or make the

prosecution’s evidence of premeditation insufficient,

court-martial members might logically reason that this

method of homicide indicated a lack of deliberation.    In

the unusual factual situation of this case, the erroneous

exclusion of evidence of spousal abuse might have affected

the court-martial’s finding of premeditation.    Therefore, I

concur.




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