U.S. v. Gray, 51 M.J. 1

First Principles: Jurisdiction: Subject Matter

1. assuming that there is a requirement for subject matter jurisdiction or service connection in a capital case, then capital appellant’s crimes were service connected where: (1) one murder victim was a military member; (2) one murder victim was a civilian who did business on post; (3) both bodies were found on post; and, (4) overwhelming evidence indicated that the murders were committed on post

First Principles: Constitutional Matters: Generally

1. no right to grand-jury presentment or indictment
2. no right to a jury trial; see United States v. Loving, 41 MJ 213, 287 (1994), aff’d on other grounds, 517 U.S. 748 (1996)
3. claim that court-martial procedures deny an accused his Sixth Amendment right to jury trial and an impartial cross-section of the community lacks merit; see United States v. Loving, 41 MJ 213, 285 (1994), aff’d on other grounds, 517 U.S. 748 (1996)

First Principles: Constitutional Matters: Confessions

1. statements made by appellant pursuant to a guilty plea in state court were not admitted at court-martial in violation of appellant’s Fifth Amendment right against self-incrimination as appellant had received rights warnings, invoked right to counsel, consulted with counsel, and agreed to provide information to both the police and to state court, and did so, in the presence of counsel

First Principles: Constitutional Matters: Cruel and Unusual Punishment

1. death sentence per se does not violate Eighth Amendment as cruel and unusual punishment

First Principles: Constitutional Matters: Due Process

1. appellant was not denied due process by Judge Advocate General’s decision to establish and adhere to procedures to request funding for additional appellate expert mental health assistance where those procedures forwarded such requests to the appropriate forum for consideration and action in a more efficient manner
2. double counting of aggravating factors did not exist where the military judge’s instructions allowed double murder to be considered only once as an aggravating factor; CAAF also declines to adopt rule against double counting aggravating circumstances based on a single offense and substantially the same evidence as no such rule appears in RCM 1004 and is not required by the Due Process Clause of the Fifth Amendment
3. requirement for trial by members in a capital case does not violate the Fifth and Eighth Amendment guarantee of due process and reliable verdict; see United States v. Loving, 41 MJ 213, 291 (1994), aff’d on other grounds, 517 U.S. 748 (1996)
4. capital court-martial in peacetime by a court-martial panel composed of fewer than twelve members does not deny accused due process of law under the Fifth, Sixth, and Eighth Amendments; see United States v. Loving, 41 MJ 213, 287 (1994), aff’d on other grounds, 517 U.S. 748 (1996)
5. the appropriate test to apply to determine whether a court-martial procedure violates due process is to ask whether the factors militating in favor of overturning that procedure are so extraordinarily weighty as to overcome the balance struck by Congress
6. appellant was entitled to no relief on claim that limitation on enlisted members of the accused’s unit serving on the accused’s court-martial violated due process; appellant failed to show that the factors militating in favor of overturning that limitation are so extraordinarily weighty as to overcome the balance struck by Congress
7. the lack of a system which designates minimum standards of qualification for defense counsel in capital cases was not shown to have denied appellant due process; see United States v. Loving, 41 MJ 213, 298-299 (1994), aff’d on other grounds, 517 U.S. 748 (1996)
8. voting procedures instructions which required members to vote first on the charged offense before voting on any lesser-included offenses was based on RCM 921(c)(5), and CAAF perceived no real prejudice arising from this voting procedure; moreover, appellant failed to make a legally sufficient denial of due process argument in this regard
9. in light of the traditional practice at courts-martial, instructions reflecting that members have “equal voice”, and instructions condemning the influence of superiority in rank, appellant failed to establish a due process violation resulting from designation of the senior member as the presiding officer pursuant to RCM 502(b)(1)
10. appellant’s due process claim that each member should sign the death sentence worksheet or that the condemned be afforded the opportunity to poll the members was not properly framed; in any event, the death penalty verdict must be unanimous; see United States v. Loving, 41 MJ 213, 296 (1994), aff’d on other grounds, 517 U.S. 748 (1996)

First Principles: Constitutional Matters: Equal Protection

1. appellant was not denied equal protection by Judge Advocate General’s decision to establish and adhere to procedures to request funding for additional appellate expert mental health assistance where: (1) death-penalty inmates who submit requests for expert assistance after the new policy became effective were not considered a suspect class; (2) the procedures established were not unreasonable; and, (3) prior funding to other death-penalty inmates did not create any fundamental constitutional right for capital defendants to initially request the Judge Advocate General to provide such funding
2. members of the armed forces are not denied equal protection by virtue of the fact that their cases are not reviewed by an Article III court; see United States v. Loving, 41 MJ 213, 295-296 (1994), aff’d on other grounds, 517 U.S. 748 (1996)
3. rejecting claim that imposition of death penalty violated equal protection because RCM 1004 subjects appellant, as a member of the armed forces, to a penalty which is not otherwise available under the criminal code of the United States for identical criminal conduct; see United States v. Loving, 41 MJ 213, 294 (1994), aff’d on other grounds, 517 U.S. 748 (1996)

Military Justice Personnel: Defense Function: Detailed Military Counsel

1. normally, appellate review is limited to matters presented at trial, but post-trial affidavits are appropriate to decide petitions for new trial under Article 73, to clarify collateral matters such as claims of unlawful command influence or denial of effective assistance of counsel, and to determine whether a post-trial sanity hearing should be ordered
2. claim that counsel failed to investigate mitigating circumstances rejected where the claim equated failure to discover facts with failure to investigate, the claim ignored the role appellant himself may have played in making less than full disclosure to his counsel, and the claim overlooked the substantial mitigating evidence presented in the case
3. claim that counsel ineffective because they failed to challenge the competence of pretrial evaluations and psychiatrists as well as failing to obtain complete mental health evaluation rejected
4. attack on counsel’s decisions on strategy and tactics on merits and sentencing rejected; hindsight in such matters is not usually countenanced in reviewing counsel’s performance
5. CAAF rejects claims that detailed defense counsel and/or the military judge were required to inform appellant of counsel’s perceived lack of competence or qualification with respect to death penalty litigation; the obligation to inform rests upon a counsel who actually believes he cannot represent a client
6. CAAF declines to establish minimum standards of qualification for defense counsel in capital cases; see United States v. Loving, 41 MJ 213, 300 (1994), aff’d on other grounds, 517 U.S. 748 (1996)
7. the lack of a system which designates minimum standards of qualification for defense counsel in capital cases was not shown to have denied appellant due process; see United States v. Loving, 41 MJ 213, 298-299 (1994), aff’d on other grounds, 517 U.S. 748 (1996)

Military Justice Personnel: Defense Function: Civilian Counsel

1. civilian defense counsel representing appellant in state capital proceeding was not shown to have engaged in unreasonable professional conduct where: appellant presented no evidence to that effect at his court-martial; civilian defense counsel avoided death penalty in state court and knew that appellant faced possible capital court-martial on other charges; and civilian defense counsel successfully objected to references in state proceeding to offenses under investigation by military authorities

Military Justice Personnel: Defense Function: Civilian Counsel

1. any constitutional error with respect to Sixth Amendment right to counsel arising from civilian defense counsel representing appellant in state capital proceeding and failing to limit use of appellant’s state-court guilty plea was harmless beyond a reasonable doubt

Military Justice Personnel: Defense Function: Experts, Investigators -- Appointment to Defense Team

1. appellant was not provided inadequate psychiatric assistance where: (1) he was provided two qualified psychiatric experts of his own choosing prior to trial; (2) the defense experts provided appellant with favorable testimony, although not perhaps to the degree he desired; and, (3) any alleged deficiencies were obviated by the additional testing ordered in this case which produced substantially the same results
2. an accused has the right to investigative assistance at the expense of the government where he can meet a three-step test for determining necessity: (1) why the expert or investigator is needed; (2) what the investigative or expert assistance would accomplish for the accused; and, (3) why the defense counsel is unable to gather and present the evidence that the expert or investigative assistant would be able to develop
3. military judge did not abuse his discretion in denying further expert assistance where: (1) defense request went beyond request for necessary investigative assistance; (2) the defense request essentially argued that prior assistance was not helpful to the defense; and, (3) the request failed to provide concrete explanation of need for further assistance
4. Court of Military Review (now Court of Criminal Appeals) decision denying funding for additional appellate expert mental health assistance was not an abuse of discretion where that court had sufficient basis in the record for considering the mental-state issues before it and concluded that additional defense psychiatric expenditures were not reasonably necessary
5. appellant was not denied equal protection by Judge Advocate General’s decision to establish and adhere to procedures to request funding for additional appellate expert mental health assistance where: (1) death-penalty inmates who submit requests for expert assistance after the new policy became effective were not considered a suspect class; (2) the procedures established were not unreasonable; and, (3) prior funding to other death-penalty inmates did not create any fundamental constitutional right for capital defendants to initially request the Judge Advocate General to provide such funding
6. appellant was not denied due process by Judge Advocate General’s decision to establish and adhere to procedures to request funding for additional appellate expert mental health assistance where those procedures forwarded such requests to the appropriate forum for consideration and action in a more efficient manner

Military Justice Personnel: Military Judge: Qualifications and Appointment of

1. CAAF rejects claims that detailed defense counsel and/or the military judge were required to inform appellant of counsel’s perceived lack of competence or qualification with respect to death penalty litigation; the obligation to inform rests upon a counsel who actually believes he cannot represent a client
2. CAAF declines to establish minimum standards of qualification for defense counsel in capital cases; see United States v. Loving, 41 MJ 213, 300 (1994), aff’d on other grounds, 517 U.S. 748 (1996)
3. the lack of a system which designates minimum standards of qualification for defense counsel in capital cases was not shown to have denied appellant due process; see United States v. Loving, 41 MJ 213, 298-299 (1994), aff’d on other grounds, 517 U.S. 748 (1996)

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. military judge did not abuse his discretion and fail to ensure appellant received fair trial in light of pretrial publicity where, although he rejected defense-proffered solutions, he did permit extensive voir dire, instructed the members not to expose themselves to any particular information about the accused, instructed the members to use common sense in dealing with media coverage, and twice ruled that the members were impartial in fact

Military Justice Personnel: Military Judge: General Powers

1. rejecting claim that military capital sentencing procedure is unconstitutional because the military judge lacks the power to adjust or suspend a sentence of death that is improperly imposed; see United States v. Loving, 41 MJ 213, 297 (1994), aff’d on other grounds, 517 U.S. 748 (1996)

Military Justice Personnel: Military Judge: Conduct/Misconduct

1. comments by the military judge, made outside the presence of the members, are individually analyzed, and the CAAF finds no abandonment by the military judge of his impartial role, no bias, no partiality, no flippant insult to defense counsel, and no evidence of bias in a ruling denying admission of evidence on relevance grounds

Military Justice Personnel: Court Members: Challenges for Cause

1. the standard for determining whether a member should be removed from a capital court-martial because of opposition to the death penalty is whether the member’s views would prevent or substantially impair the performance of the member’s duties in accordance with his instructions and his oath
2. military judge did not abuse his discretion in sustaining challenges for cause against members of capital court-martial who indicated that the chances of voting for a death penalty were very remote or stated he could never vote for the death penalty

Military Justice Personnel: Court Members: Eligibility/Selection

1. fact that no women were selected to sit on court-martial panel was inadequate by itself to establish that appellant was denied his rights under the Fifth and Sixth Amendments or to show plain error; see United States v. Loving, 41 MJ 213, 283-287 (1994), aff’d on other grounds, 517 U.S. 748 (1996)
2. limiting eligible enlisted members of a court-martial to other than those who are in the same unit as the accused is not arbitrary or capricious
3. convening authority is not prohibited from selecting court-members pursuant to Article 25(d), UCMJ, for capital trial for offenses that occur on a military reservation but where there is concurrent jurisdiction with a state authority; see United States v. Loving, 41 MJ 213, 297 (1994), aff’d on other grounds, 517 U.S. 748 (1996)

Military Justice Personnel: Court Members: Interrogation by Members

1. practice of permitting court-martial members to ask questions of witnesses is of long-standing and recognized, and CAAF was not convinced that this procedure rendered the members partial or biased as a matter of law

Military Justice Personnel: Court Members: Peremptory Challenges

1. Congress and the President, the constitutionally authorized rulemakers for the military justice system, properly determined to provide the government, as a party, with a peremptory challenge
2. peremptory challenge against member who indicated he would have a very difficult time imposing the death penalty was not unconstitutional in that the member’s indecisiveness would prevent or substantially impair the performance of his duties as a member in accordance with his instructions and his oath
3. even though the military judge did not require trial counsel to articulate a race-neutral reason for a peremptory challenge at the time of the challenge and defense demand for explanation, an unsworn statement tendered the following day and included in the record provided a sufficient race-neutral explanation for the challenge
4. an unsworn statement, tendered the day after a Batson challenge to a peremptory challenge and included in the record, provided a sufficient race-neutral explanation for the challenge and complied with all three requirements established by Batson for evaluating peremptory challenges: (1) trial counsel’s belated race-neutral explanation mooted any question of error in the judge’s apparent determination that the defense had not made a sufficient showing to require a government explanation; (2) the military judge did not preclude trial counsel from offering an explanation; and (3) the military judge made an implied ruling that the explanation was proper when he accepted a memorandum of the government’s reason for exercising the peremptory challenge and asked if the defense had anything else on the matter

Military Justice Personnel: Court Members: President of Courts-Martial

1. in light of the traditional practice at courts-martial, instructions reflecting that members have “equal voice”, and instructions condemning the influence of superiority in rank, appellant failed to establish a due process violation resulting from designation of the senior member as the presiding officer pursuant to RCM 502(b)(1)

Military Justice Personnel: Court Members: Pretrial Publicity

1. appellant’s trial was not prejudiced by a saturation of prejudicial and inflammatory media publicity about the crimes in the community; the articles were no more than routine reports of heinous crimes, investigations, the arrest of appellant, and the steps taken to bring him to trial in both state and military courts which did not create any actual unfairness to appellant
2. military judge did not abuse his discretion and fail to ensure appellant received fair trial in light of pretrial publicity where, although he rejected defense-proffered solutions, he did permit extensive voir dire, instructed the members not to expose themselves to any particular information about the accused, instructed the members to use common sense in dealing with media coverage, and twice ruled that the members were impartial in fact

Core Criminal Law Subjects: Crimes: Article 118 - Murder Pre-2019 offenses

1. rejecting argument that there is no meaningful distinction between premeditated and unpremeditated murder, and approving instruction that the principal difference between premeditated murder and unpremeditated murder is that for premeditated murder the accused must have had the premeditated design to kill, that is, the accused must have considered the act prior to the application of force and must have had the specific intent to kill, whereas unpremeditated murder requires the specific intent to kill or inflict great bodily harm without premeditation; see United States v. Loving, 41 MJ 213, 279-280 (1994), aff’d on other grounds, 517 U.S. 748 (1996)

Core Criminal Law Subjects: Defenses: Lack of Mental Responsibility

1. in reviewing petition for new trial on the basis of newly discovered evidence relating to a capital accused’s mental condition and state, the reviewing authority must also determine beyond a reasonable doubt whether a reasonable factfinder, considering the totality of the evidence, would be convinced by clear and convincing evidence that petitioner lacked mental responsibility for his crimes or should not get the death penalty for them

Core Criminal Law Subjects: Defenses: Lack of Mental Responsibility

1. normally, appellate review is limited to matters presented at trial, but post-trial affidavits are appropriate to decide petitions for new trial under Article 73, to clarify collateral matters such as claims of unlawful command influence or denial of effective assistance of counsel, and to determine whether a post-trial sanity hearing should be ordered

Core Criminal Law Subjects: Evidence: Balancing

1. photographs of appellant’s victims were not unduly gruesome and prejudicial in multiple, violent murder case, and probative value was not substantially outweighed by prejudicial effect

Core Criminal Law Subjects: Evidence: Confessions and Admissions › Self-incrimination

1. statements made by appellant pursuant to a guilty plea in state court were not admitted at court-martial in violation of appellant’s Fifth Amendment right against self-incrimination as appellant had received rights warnings, invoked right to counsel, consulted with counsel, and agreed to provide information to both the police and to state court, and did so, in the presence of counsel

Core Criminal Law Subjects: Evidence: Prejudice

1. photographs of appellant’s victims were not unduly gruesome and prejudicial in multiple, violent murder case, and probative value was not substantially outweighed by prejudicial effect

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Appellate Burdens, Standards, Etc. › Capital Cases

1. “in favorem vitae” [in favor of life] policy for appellate review of capital cases rejected for the reasons set forth in United States v. Loving, 41 MJ 213, 266 (1994), aff’d on other grounds, 517 U.S. 748 (1996)

Trial Stages: Pretrial: Discovery

1. military judge did not abuse his discretion in implicitly holding that disclosure of registered source’s identity was not relevant or helpful to appellant’s defense, or not essential to a fair determination of the case, where defense did not pursue theory of contradiction allegedly supported by source’s potential testimony and where defense did not establish that source would corroborate alleged testimony on this theory or any of its critical points
2. there was no failure to disclose exculpatory information where none of the information purportedly possessed by a registered source came anywhere near being considered exculpatory and court would have to speculate as to the answers the registered source would provide to specific questions

Trial Stages: Merits: Guilty Pleas

1. where plea agreement in state court did not prohibit use of appellant’s statements in subsequent court-martial for different offenses, that guilty plea and accompanying statements in state court were admissible in court-martial to prove the elements of other crimes

Trial Stages: Merits: Trial Procedures › Forum election

1. appellant knowingly and intelligently elected trial by enlisted members where: military judge twice explained rights to appellant; appellant twice acknowledged his understanding; and appellant orally and in writing requested enlisted members – military judge’s decision to give defense counsel an opportunity to clear up any confusion on the part of appellant was not error

Trial Stages: Merits: Instructions › Generally

1. rejecting argument that there is no meaningful distinction between premeditated and unpremeditated murder, and approving instruction that the principal difference between premeditated murder and unpremeditated murder is that for premeditated murder the accused must have had the premeditated design to kill, that is, the accused must have considered the act prior to the application of force and must have had the specific intent to kill, whereas unpremeditated murder requires the specific intent to kill or inflict great bodily harm without premeditation; see United States v. Loving, 41 MJ 213, 279-280 (1994), aff’d on other grounds, 517 U.S. 748 (1996)
2. reasonable doubt instruction taken from paragraph 2-29.1 of the Military Judges’ Benchbook at 2-34 (Oct 1986) left no reasonable probability that appellant’s court-martial members used a lower standard of guilt or a higher standard for acquittal than required by law; see United States v. Loving, 41 MJ 213, 281 (1994), aff’d on other grounds, 517 U.S. 748 (1996)
3. voting procedures instructions which required members to vote first on the charged offense before voting on any lesser-included offenses was based on RCM 921(c)(5), and CAAF perceived no real prejudice arising from this voting procedure; moreover, appellant failed to make a legally sufficient denial of due process argument in this regard

Trial Stages: Merits: Mistrial

1. mistrial was not required, even though trial counsel made remarks susceptible of being interpreted as a comment on right to remain silent, where the judge gave an instruction to prevent members from being misled by comments and directed the members not to draw any inference from appellant’s exercise of the right to remain silent

Trial Stages: Sentence and Punishment: Argument

1. it was not legal error for trial counsel to reference the rights of two murder victims and the pain and anguish suffered by the victims during sentencing argument at capital trial; see United States v. Loving, 41 MJ 213, 292 (1994), aff’d on other grounds, 517 U.S. 748 (1996)

Trial Stages: Sentence and Punishment: Capital Punishment

1. assuming that there is a requirement for subject matter jurisdiction or service connection in a capital case, then capital appellant’s crimes were service connected where: (1) one murder victim was a military member; (2) one murder victim was a civilian who did business on post; (3) both bodies were found on post; and, (4) overwhelming evidence indicated that the murders were committed on post
2. “in favorem vitae” [in favor of life] policy for appellate review of capital cases rejected for the reasons set forth in United States v. Loving, 41 MJ 213, 266 (1994), aff’d on other grounds, 517 U.S. 748 (1996)
3. in reviewing petition for new trial on the basis of newly discovered evidence relating to a capital accused’s mental condition and state, the reviewing authority must also determine beyond a reasonable doubt whether a reasonable factfinder, considering the totality of the evidence, would be convinced by clear and convincing evidence that petitioner lacked mental responsibility for his crimes or should not get the death penalty for them
4. evidence considered when members found appellant guilty and sentenced him to death was not materially or substantially inaccurate where post-trial evidence of organic brain damage and its impact on appellant’s mental responsibility was speculative and disputed, and where there were clear indicators of appellant’s organic brain damage presented at time of trial
5. the standard for determining whether a member should be removed from a capital court-martial because of opposition to the death penalty is whether the member’s views would prevent or substantially impair the performance of the member’s duties in accordance with his instructions and his oath
6. there is no requirement as a matter of constitutional or military law that the findings state that all members concur in the balancing of extenuating or mitigating circumstances and aggravating factors; the members were properly instructed and the worksheet reflects the unanimous finding
7. military standard for balancing of extenuating or mitigating circumstances and aggravating factors, “substantially outweigh”, is not unconstitutional; see United States v. Loving, 41 MJ 213, 291 (1994), aff’d on other grounds, 517 U.S. 748 (1996)
8. requirement for trial by members in a capital case does not violate the Fifth and Eighth Amendment guarantee of due process and reliable verdict; see United States v. Loving, 41 MJ 213, 291 (1994), aff’d on other grounds, 517 U.S. 748 (1996)
9. prohibition against pleading guilty to offenses which could subject a military accused to death penalty does not deprive military accused of critical mitigating factor and cause other irreparable damage; see United States v. Loving, 41 MJ 213, 292 (1994), aff’d on other grounds, 517 U.S. 748 (1996)
10. capital court-martial in peacetime by a court-martial panel composed of fewer than twelve members does not deny accused due process of law under the Fifth, Sixth, and Eighth Amendments; see United States v. Loving, 41 MJ 213, 287 (1994), aff’d on other grounds, 517 U.S. 748 (1996)
11. CAAF declines to establish minimum standards of qualification for defense counsel in capital cases; see United States v. Loving, 41 MJ 213, 300 (1994), aff’d on other grounds, 517 U.S. 748 (1996)
12. the lack of a system which designates minimum standards of qualification for defense counsel in capital cases was not shown to have denied appellant due process; see United States v. Loving, 41 MJ 213, 298-299 (1994), aff’d on other grounds, 517 U.S. 748 (1996)
13. where appellant did not object to instructions as given and did not request instruction to the effect that he could not be sentenced to death on the basis of the aggregate or cumulative effect of all offenses, there was no reasonable likelihood that members of this court-martial were acting in any unconstitutional manner where: (1) no authority was cited which prohibits members form considering appellant’s other crimes in decision to impose death penalty; (2) the members were told early that this was a capital murder case permitting the death penalty; (3) the members were told that whether the vote for the capital offenses was unanimous should be announced; and (4) the members were instructed that death and life imprisonment, with other types of punishments, were the only authorized punishments
14. read as a whole, military judge’s sentencing instructions informed the members that the finding that the extenuating and mitigating circumstances are substantially outweighed by the aggravating factors must be unanimous
15. military death penalty scheme is not invalid; see United States v. Loving, 41 MJ 213, 293 (1994), aff’d on other grounds, 517 U.S. 748 (1996)
16. 21 USC § 848(o)(1), “Right of the defendant to justice without discrimination”, was enacted after appellant’s trial, is not constitutionally mandated, and is specifically limited to offenses under 21 USC; see United States v. Loving, 41 MJ 213, 274 (1994), aff’d on other grounds, 517 U.S. 748 (1996)
17. rejecting claim that imposition of death penalty violated equal protection because RCM 1004 subjects appellant, as a member of the armed forces, to a penalty which is not otherwise available under the criminal code of the United States for identical criminal conduct; see United States v. Loving, 41 MJ 213, 294 (1994), aff’d on other grounds, 517 U.S. 748 (1996)
18. convening authority is not prohibited from selecting court-members pursuant to Article 25(d), UCMJ, for capital trial for offenses that occur on a military reservation but where there is concurrent jurisdiction with a state authority; see United States v. Loving, 41 MJ 213, 297 (1994), aff’d on other grounds, 517 U.S. 748 (1996)
19. it was not legal error for trial counsel to reference the rights of two murder victims and the pain and anguish suffered by the victims during sentencing argument at capital trial; see United States v. Loving, 41 MJ 213, 292 (1994), aff’d on other grounds, 517 U.S. 748 (1996)
20. appellant’s due process claim that each member should sign the death sentence worksheet or that the condemned be afforded the opportunity to poll the members was not properly framed; in any event, the death penalty verdict must be unanimous; see United States v. Loving, 41 MJ 213, 296 (1994), aff’d on other grounds, 517 U.S. 748 (1996)
21. rejecting claim that military capital sentencing procedure is unconstitutional because the military judge lacks the power to adjust or suspend a sentence of death that is improperly imposed; see United States v. Loving, 41 MJ 213, 297 (1994), aff’d on other grounds, 517 U.S. 748 (1996)
22. death sentence per se does not violate Eighth Amendment as cruel and unusual punishment

Trial Stages: Sentence and Punishment: Capital Punishment › Aggravating factors

1. double counting of aggravating factors did not exist where the military judge’s instructions allowed double murder to be considered only once as an aggravating factor; CAAF also declines to adopt rule against double counting aggravating circumstances based on a single offense and substantially the same evidence as no such rule appears in RCM 1004 and is not required by the Due Process Clause of the Fifth Amendment
2. the aggravating factor in RCM 1004(c)(7)(I), “[t]hat, only in the case of a violation of Article 118(1) [t]he murder was preceded by the intentional infliction of substantial physical harm or prolonged substantial mental or physical pain and suffering to the victim”, is not unconstitutionally vague; see United States v. Loving, 41 MJ 213, 294 (1994), aff’d on other grounds, 517 U.S. 748 (1996)

Trial Stages: Sentence and Punishment: Capital Punishment › Instructions

1. the military judge did not commit plain error by using the terms “substantially outweighed” without further definition with regard to the relationship of mitigating circumstances to aggravating factors; see United States v. Loving, 41 MJ 213, 278-279 (1994), aff’d on other grounds, 517 U.S. 748 (1996)
2. military judge’s instructions adequately conveyed to members that even if all other requirements were met, each member still had the discretion to decline to impose the death penalty; see United States v. Loving, 41 MJ 213, 276-277 (1994), aff’d on other grounds, 517 U.S. 748 (1996)

Trial Stages: Sentence and Punishment: Capital Punishment › Mitigating evidence

1. capital defendant has broad right to introduce mitigating evidence to avoid the death penalty, but relevance and other concerns expressed in rules of evidence are still to be applied in the traditional manner by the judge
2. any error in excluding a videotape depicting conditions of appellant’s home town was harmless beyond a reasonable doubt in light of other evidence of appellant’s life in the projects and abusive relationship with his stepfather
3. the standard for determining whether an instruction effectively placed relevant mitigating evidence beyond the effective reach of the sentencer is whether there is a reasonable likelihood that the members have applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence, and a reviewing court must approach the instructions in the same way that the members would, with a commonsense understanding of the instructions in the light of all that has taken place at the trial
4. although the military judge did not expressly delineate appellant’s family and social background as a mitigating circumstance, the instructions as given, including references to psychiatric opinions and testimony, viewed with a commonsense understanding of all that took place at trial, informed members that they should consider appellant’s background as a mitigating circumstance

Trial Stages: Sentence and Punishment: Instructions

1. read as a whole, military judge’s sentencing instructions informed the members that the finding that the extenuating and mitigating circumstances are substantially outweighed by the aggravating factors must be unanimous

Trial Stages: Sentence and Punishment: Lawfulness of Sentence

1. appellant’s contention that members determined a sentence while on recess was not supported by the record where members were properly instructed on procedural aspects of deliberations and had merely requested and were given a recess prior to announcing the sentence

Trial Stages: Appeals: Generally

1. normally, appellate review is limited to matters presented at trial, but post-trial affidavits are appropriate to decide petitions for new trial under Article 73, to clarify collateral matters such as claims of unlawful command influence or denial of effective assistance of counsel, and to determine whether a post-trial sanity hearing should be ordered
2. Court of Military Review had basis for summarily denying appellant’s motion to abate proceedings where evidence before that court revealed no permanent deficits from appellant’s apparent drug overdose

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. claim that Courts of Military Review (now Courts of Criminal Appeals) lack jurisdiction or authority to review the constitutionality of the Rules for Courts-Martial and the Uniform Code of Military Justice rejected; see United States v. Loving, 41 MJ 213, 296 (1994), aff’d on other grounds, 517 U.S. 748 (1996)

Trial Stages: Appeals: Courts of Criminal Appeals › Sentence appropriateness

1. Court of Military Review (now Court of Criminal Appeals) did not abuse its discretion in determining that appellant’s death sentence was appropriate where it properly considered post-trial evidence of appellant’s organic brain damage, the evidence of a personality disorder, and the offenses and circumstances surrounding those offenses
2. proportionality review is required by Article 66(c), UCMJ, in death penalty cases as part of the sentence appropriateness determination and is not constitutionally required
3. proportionality review required by Article 66(c), UCMJ, is a general offense-oriented proportionality review
4. proportionality review required by Article 66(c), UCMJ, was properly conducted in appellant’s case by considering Supreme Court decisions on state cases which presented situations similar to appellant’s

Trial Stages: Appeals: Court of Appeals for the Armed Forces

1. claim that Court of Appeals for the Armed Forces lacks jurisdiction or authority to review the constitutionality of the Rules for Courts-Martial and the Uniform Code of Military Justice rejected; see United States v. Loving, 41 MJ 213, 296 (1994), aff’d on other grounds, 517 U.S. 748 (1996)

Trial Stages: Appeals: Cumulative Error

1. cumulative error is premised on the existence of errors, no one of which merits reversal, but in combination they necessitate the reversal of a finding or sentence; however, assertions of error without merit are not sufficient to invoke the doctrine of cumulative error

Trial Stages: Appeals: Preservation of Error / Plain Error

1. claim that civilian and military investigations merged so as to require Article 31 warnings as a predicate to pretrial statements did not amount to plain error where factual basis to suppress under Article 31 was not developed at trial and defense counsel made clear that basis for suppression motion was Fifth Amendment

Trial Stages: Appeals: Grostefon

1. United States v. Grostefon, 12 MJ 431 (CMA 1982), does not permit an appellant to raise issues in an untimely manner without good cause, and such issues should be raised in accordance with Rule 21(b)(4), United States Court of Military Appeals (now United States Court of Appeals for the Armed Forces) Rules of Practice and procedure which require “direct and concise argument showing why there is good cause to grant the petition, demonstrating with particularity why the errors assigned are materially prejudicial to the substantial rights of the appellant . . . ."

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. “in favorem vitae” [in favor of life] policy for appellate review of capital cases rejected for the reasons set forth in United States v. Loving, 41 MJ 213, 266 (1994), aff’d on other grounds, 517 U.S. 748 (1996)
2. Court of Criminal Appeals’ denial of a petition for new trial is reviewed under a clear abuse of discretion standard; an abuse of discretion occurs if the findings of fact upon which a ruling is based are not supported by the record, if incorrect legal principles were used in deciding the petition, or if the lower court’s application of the correct legal principles to the facts of a particular case is clearly unreasonable
3. in reviewing petition for new trial on the basis of newly discovered evidence relating to a capital accused’s mental condition and state, the reviewing authority must also determine beyond a reasonable doubt whether a reasonable factfinder, considering the totality of the evidence, would be convinced by clear and convincing evidence that petitioner lacked mental responsibility for his crimes or should not get the death penalty for them
4. the standard for determining whether an instruction effectively placed relevant mitigating evidence beyond the effective reach of the sentencer is whether there is a reasonable likelihood that the members have applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence, and a reviewing court must approach the instructions in the same way that the members would, with a commonsense understanding of the instructions in the light of all that has taken place at the trial
5. post-trial request for psychiatric assistance and investigative services reviewed under the reasonable-necessity standard of Ake v. Oklahoma, 470 U.S. 68 (1985)
6. Court of Military Review (now Court of Criminal Appeals) decision denying funding for additional appellate expert mental health assistance reviewed for abuse of discretion
7. military judge’s decision on providing expert assistance is reviewed for abuse of discretion
8. the determination of whether counsel’s performance was constitutionally ineffective requires an assessment of the facts of a case using an objective standard of reasonableness; an appellant must show that his counsel’s conduct was not within the wide range of professionally competent assistance

Trial Stages: Petition for a New Trial: Generally

1. normally, appellate review is limited to matters presented at trial, but post-trial affidavits are appropriate to decide petitions for new trial under Article 73, to clarify collateral matters such as claims of unlawful command influence or denial of effective assistance of counsel, and to determine whether a post-trial sanity hearing should be ordered

Trial Stages: Petition for a New Trial: Newly Discovered Evidence

1. to warrant a new trial on the grounds of newly discovered evidence, appellant must show: (1) the evidence was discovered after the trial; (2) the evidence is not such that it would have been discovered by the petitioner at the time of trial in the exercise of due diligence; and (3) the newly discovered evidence, if considered by a court-martial in the light of all other pertinent evidence, would probably produce a substantially more favorable result for the accused
2. in reviewing petition for new trial on the basis of newly discovered evidence relating to a capital accused’s mental condition and state, the reviewing authority must also determine beyond a reasonable doubt whether a reasonable factfinder, considering the totality of the evidence, would be convinced by clear and convincing evidence that petitioner lacked mental responsibility for his crimes or should not get the death penalty for them
3. lower court did not abuse its discretion in denying appellant’s petition for new trial on the basis of newly discovered evidence: (1) organic brain damage by itself does not equate to a lack of mental responsibility and its discovery after trial does not necessarily require a new trial; (2) conflicting expert opinion on accused’s mental state does not necessarily require a rehearing; (3) there was some evidence that organic brain damage existed prior to trial; (4) post-trial evidence was disputed as to the extent of organic brain damage; and, (5) post-trial evidence was speculative on effect of mental condition on appellant at the time of the offenses, and it too was disputed

Trial Stages: Petition for a New Trial: Appellate Review

1. Court of Criminal Appeals’ denial of a petition for new trial is reviewed under a clear abuse of discretion standard; an abuse of discretion occurs if the findings of fact upon which a ruling is based are not supported by the record, if incorrect legal principles were used in deciding the petition, or if the lower court’s application of the correct legal principles to the facts of a particular case is clearly unreasonable

Miscellaneous Matters: Command Influence: Generally

1. normally, appellate review is limited to matters presented at trial, but post-trial affidavits are appropriate to decide petitions for new trial under Article 73, to clarify collateral matters such as claims of unlawful command influence or denial of effective assistance of counsel, and to determine whether a post-trial sanity hearing should be ordered

Miscellaneous Matters: Multiplicity and Lesser Included Offenses: Multiplicity

1. any error in declining to treat larceny and burglary multiplicious for sentencing was harmless beyond a reasonable doubt in view of the numerous other heinous offenses for which appellant was found guilty

Miscellaneous Matters: Statutes, Treaties, Regulations, Executive Orders, Directives, etc.: United States Code

1. 21 USC § 848(o)(1), “Right of the defendant to justice without discrimination”, was enacted after appellant’s trial, is not constitutionally mandated, and is specifically limited to offenses under 21 USC; see United States v. Loving, 41 MJ 213, 274 (1994), aff’d on other grounds, 517 U.S. 748 (1996)