United States v. Simoy , 1996 CCA LEXIS 353 ( 1996 )

OPINION OF THE COURT

PEARSON, Senior Judge:

Today we affirm Senior Airman Jose F.S. Simoy’s death sentence for the felony murder of Sergeant Stacy E. LeVay, a policeman who was bludgeoned to death on his birthday during an armed robbeiy that Simoy masterminded.

I. FACTUAL BACKGROUND

A. The Offenses

Appellant and Sergeant LeVay, a newlywed, worked as law enforcement security policemen on Andersen Air Force Base, Guam. As part of their normal police duties, both escorted commissary employees to the bank for night deposits of large sums. Both also participated in training exercises involving mock robberies of employees making night deposits. However, appellant applied his police skills to commit crime instead of combatting it, ultimately murdering Sergeant LeVay in the process.

In December 1991, appellant hatched a plan to ambush a commissary worker, Ms. Armour, as she made her night deposit. He recruited his brother, Dennis; a friend of Dennis, Che Wolford; two Filipinos nicknamed Nito and Tiekboy; and Jesus Ramos, who later dropped out of the plot, to help him.

Appellant began preparations by driving his brother and Che Wolford to the base to case the layout. Appellant told them that two of the gang would have to take care of the security police escort while the other two took care of the “girl.” Appellant told Wol-ford to bring his semi-automatic rifle since he would have to “point the gun to the security officer and tell him to freeze and that somebody will knock him in the head.” Concerned about potential noise from a gunshot since the security police office was nearby, Wolford asked, “[W]hat if either of us had to shoot, the security police or me? Would anybody hear it in the office?” Appellant replied, “[N]ot to worry because there’s two doors and they won’t hear no sound.”

Later, on a separate trip, appellant drove Ramos on base to scout the job. When Ramos expressed misgivings about the difficulty of a robbery on base, appellant reassured him, saying, “[Ijt’s easy because when [I] was on duty, [I] also escorted the lady that was carrying the money.” Ramos also recalled that appellant diagramed the robbery in the moisture on the table at his brother’s house. Appellant directed where everyone would take positions, including the “two people” who would take care of the “police.” Appellant appointed himself to drive the getaway car and told Ramos to bring a pistol.

On Christmas Eve, appellant decided to make the hit because he expected a large cash haul due to holiday shopping. Even though he couldn’t locate Nito and Tiekboy, and Wolford wanted to attend a party, he continued with his plan using only Ramos and his brother, Dennis. He reminded Ramos that someone would have to hit the police escort in the head with a pipe to render him unconscious. However, the gang arrived too late to do the job. Appellant tried again four days later but did not see a commissary employee make a deposit.

Finally, on December 29th, appellant’s plan jelled. Appellant loaded his sister’s car with Wolford’s rifle, two lead pipes, a rock, and the other gang members except Ramos. They staked out the commissary, and the appellant pointed out Ms. Armour’s ear. Appellant assigned everyone’s position and duties, once again leaving himself to drive the getaway ear. Appellant told Wolford, “Che, you point the gun to the officer. Make sure he raises up his hands and gets down on his knees and Dennis will knock him out.” Wolford questioned appellant, “Jose, what if the guy dies?” Apparently unmoved by this prospect, appellant replied, “If the guy dies, he dies.”

Appellant then moved the car to a parking area across from the commissary and bought two six packs of beer and some chips. While waiting, either Tickboy or Nito suggested from the back seat, “[W]e’ll have to kill them all so that they won’t talk.” At that remark, appellant stopped talking, glanced back but didn’t say anything, and then resumed chatting with Wolford.

As soon as the police escort arrived at the commissary, the gang moved into their positions outside the bank — Tickboy and Nito were to handle the commissary employee in the lead and Wolford and Dennis Simoy were directed to “take out” the security police escort who followed. Wolford “pulled out [his] gun” and yelled “freeze.” The security policeman, Sergeant LeVay, turned around and grabbed the rifle. As Sergeant LeVay and Wolford struggled over the rifle, Dennis Simoy came out and “pounded him” with the pipe. As Wolford later recalled, he heard a “cracking sound” about five times as Dennis Simoy beat Sergeant LeVay with the pipe.

Either Nito or Tickboy grabbed the deposit bag from Ms. Armour while the other one punched her in the stomach, causing her to fall to the ground. Ms. Armour also heard a sound as Dennis Simoy beat Sergeant Le-Vay, likening it to the familiar sound of “breaking coconut.”

While Dennis Simoy was beating Sergeant LeVay to death, Wolford joined Nito and Tickboy in the getaway car with appellant, and they started to leave. Realizing they were about to leave Dennis behind, appellant backed up to get his brother who, having finished with Sergeant LeVay, was running to the ear. The group then noticed another person had driven up and was checking some papers in his ear. Wolford asked appellant, “Jose, there’s a guy in a ear. Do we have to kill him?” Appellant replied twice, “Yeah, kill him.” Wolford recalled, “Then [appellant] said something in Filipino to the guy in the front. The guy in the front passed the knife to .the guy in the back. The guy in the back got out and stabbed him.” Technical Sergeant Donald P. Marquardt, who had decided to work some “overtime” on a Sunday, found himself covered in blood “with a sucking chest wound.” In fact, the Filipino attacker stabbed Sergeant Marquardt in the chest, collapsing his left lung, and slashed his neck from the left side clear across to the right side, cutting the anterior jugular veins. According to the treating physician, the slash was “just millimeters away from being all the way through the trachea.”

Based on appellant’s previous instructions, Dennis Simoy stripped Sergeant LeVay of his radio and pistol and ran to the car carrying those items and the pipe. Appellant rammed the back fence of the base and sped away. Once safely away, appellant burned his sister’s car to destroy the evidence and split the cash haul of about $34,145 among the gang. To set up an alibi, he had them drop him off at a local cockfight from which he falsely reported to the local police that someone had stolen his sister’s car.

The next day, appellant’s father, Felix Si-moy, gave a package containing $9000 in cash to a friend for safekeeping. Felix Simoy called the friend later in the day and said appellant would pick up the money, which he did. Appellant then went into hiding and tried to make arrangements to flee the island. He met Rully Padios at an air freight company and told him about the robbery and subsequent burning of his sister’s ear to destroy the evidence. He also told Padios “that a vehicle came behind them and he told the person to stab the guy behind — the driver of the vehicle.” Appellant boasted to Pad-ios that either Nito or Tickboy was a “nine/ ten winner,” which meant a known murderer of fearsome reputation.

Appellant eluded capture until January 16, 1992, when FBI and Air Force criminal investigators found him hiding in a bedroom closet at a local civilian’s house. While being handcuffed, appellant blurted out to one of the investigators, “Rick [Air Force Office of Special Investigations Special Agent Berger-on], man I’m sorry, but I was railroaded into doing it and I was looking for the other four guys.”

Initially, appellant agreed to talk to the FBI investigators and attempted to portray himself as an unwitting accomplice. He claimed he went to the base to cheek his mailbox at the post office. While there, he ran into three friends who asked for a ride to the cockfights. When he drove around behind the post office to pick them up, he saw the three Mends and another person struggling with a security policeman. The four then ran to his car and got in. As he started to leave, one of them shouted, “Stop.” When he stopped the car, the individual got out of the car and did “something” to a person who had just driven up and parked.

B. The Trial

After a two-week trial, court members convicted appellant of conspiring with Dennis Simoy and the others to rob Ms. Armour; robbing her of $74,000 in cash, food stamps, and checks; murdering Sergeant LeVay during the robbery (felony murder); robbing Sergeant LeVay of his pistol and radio; attempting to murder Sergeant Marquardt during the robbery; and deserting from his organization until apprehended. Articles 81, 122,118(4), 122, 80, and 85, UCMJ, 10 U.S.C. §§ 881, 922, 918(4), 922, 880, and 885.

During sentencing, the members unanimously found, beyond a reasonable doubt, that two aggravating factors existed in appellant’s case to warrant the death penalty: (1) the felony murder was committed in such a way or under circumstances that the lives of persons other than the victim were unlawfully and substantially endangered, and (2) appellant was a principal whose participation in the robbery was major and he manifested a reckless indifference for human life. R.C.M. 1004(c)(4), (8). The members sentenced appellant to death, total forfeiture of pay and allowances, and reduction to E-l, which the convening authority approved.

The felony murder was service-connected because it occurred on base and the victim was an active duty military member. See Loving v. United States,—U.S.-,-, 116 S.Ct. 1737, 1751, 135 L.Ed.2d 36 (1996) (Stevens, J., concurring); Relford v. Commandant, 401 U.S. 355, 91 S.Ct. 649, 28 L.Ed.2d 102 (1971).

C. The Appeal

We heard oral argument in this case on July 2, 1996. Appellant alleges 53 errors geared to overturn his death sentence. (See list of asserted issues in the Appendix.) Many of the allegations concern issues which the United States Supreme Court recently laid to rest in Loving v. United States,-U.S.-,-, 116 S.Ct. 1737, 135 L.Ed.2d 36 (1996), as did the United States Court of Appeals for the Armed Forces in United States v. Curtis, 44 M.J. 106 (1996). In both cases, the courts upheld the military capital sentencing scheme for murder and felony murder against constitutional attack.

Rather than belabor 53 issues, almost all of which our superior courts have already answered, we address in detail the five areas unique to the trial of this case: ineffective assistance of counsel (Issues I and XXIII); flawed pretrial investigation (Issue III); exclusion of defense sentencing evidence concerning Dennis Simoy’s Mai (Issue VIII); sentencing instructional errors (Issues XXXVII, XXXVIII, and XL); and appropriateness of the sentence (Issue L). We answer the remaining issues in a summary section at the end of our opinion.

II. INEFFECTIVE ASSISTANCE OF COUNSEL

Today, a convicted military defendant rarely passes on an opportunity to lay the blame for his predicament at his lawyer’s doorstep — this case is no different. What is unique here, though, is that appellant’s two military lawyers, Major Bernard E. Doyle, Jr., and Captain James K. Bemis, agree in post-trial affidavits that they and appellant’s retained civilian attorney, Mr. Howard Trapp, did not represent appellant effectively during the sentencing phase of the trial. Although Mr. Trapp did not submit an affidavit in the case, we conclude the record of trial is sufficient to resolve this issue. See Curtis, 44 M.J. at 118 (post-trial hearing not required if record is adequate to resolve issue).

A Standard of Review

Appellate courts presume a defense counsel is competent until an appellant points out some error in performance which is unreasonable under professional norms. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); United States v. Cronic, 466 U.S. 648, 666, 104 S.Ct. 2039, 2050, 80 L.Ed.2d 657 (1984). Where more than one attorney represents an accused, the court looks at the combined efforts of the defense team in assessing overall performance. See United States v. Boone, 42 M.J. 308 (1995); United States v. Walker, 21 U.S.C.M.A 376, 380, 45 C.M.R. 150, 154, 1972 WL 14145 (1972).

A defense counsel has a duty either to make a reasonable investigation of the law and the facts or make a reasonable decision which makes a particular investigation unnecessary. Strickland, 466 U.S. at 691, 104 S.Ct. at 2066. However, when examining an appellant’s allegation of ineffectiveness, an appellate court will not second-guess defense counsel’s tactical decisions with “Monday-morning quarterbacking.” United States v. Sanders, 37 M.J. 116, 118 (C.M.A.1993); see also United States v. Morgan, 37 M.J. 407, 410 (C.M.A.1993); United States v. Washington, 42 M.J. 547 (A.F.Ct.Crim.App.1995). Likewise, while the court will consider a defense counsel’s opinion of his or her trial performance in determining competency, counsel’s opinion does not dictate the court’s decision on the issue. See United States v. Thomas, 43 M.J. 550, 581 (N.M.Ct.Crim.App. 1995) (court rejects military defense counsel’s claim that he was ineffective at capital sentencing proceeding); Atkins v. Singletary, 965 F.2d 952, 959 (11th Cir.1992), cert, denied,-U.S.-, 115 S.Ct. 2624, 132 L.Ed.2d 865 (1995); Harris v. Dugger, 874 F.2d 756, 761 n. 4 (11th Cir.1989).

Thus, to obtain relief on an ineffective assistance of counsel claim, an appellant must show: (1) an error in performance so serious that defense counsel was not functioning as the counsel guaranteed an accused by the Sixth Amendment, and (2) counsel’s • error deprived appellant of a fair trial — that is, a trial whose result is reliable. Strickland, 466 U.S. at 687,104 S.Ct. at 2064; United States v. Scott, 24 M.J. 186 (C.M.A.1987). See also Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993). Appellant fails to clear the first hurdle.

B. The Defense Attorneys

Captain Bemis was the Andersen AFB Area Defense Counsel, an independent military lawyer assigned to represent Air Force members in pretrial investigations, adverse administrative and disciplinary actions, and courts-martial. He became a military lawyer in December 1988, and before that practiced in a civilian community for about one year, handling some misdemeanor criminal cases. He began representing appellant on January 1,1992.

Major Doyle was a Circuit Defense Counsel, an independent military lawyer assigned to represent Air Force members in the more serious criminal and administrative matters. He became a military lawyer in 1984, and had extensive military justice experience. Before the Simoy ease, he had defended or prosecuted 30-40 trials and represented about 200 convicted service members as an appellate defense attorney in Washington, D.C. He joined Captain Bemis in representing appellant in late January 1992.

Mr. Trapp had practiced law on Guam for 32 years. He took over as lead counsel of the defense team representing appellant in late January 1992.

C. The Defense Sentencing Case

During the defense sentencing ease, Mr. Trapp presented two documents but did not call live witnesses. One of the documents discussed appellant’s unsuccessful attempts to secure a pretrial agreement. In the other, appellant wrote a 3 1/2 page statement in which he apologized for his actions, explained he did not intend for Sergeant LeVay to die, asked for rehabilitation, and prayed for forgiveness and his life. Mr. Trapp supplemented appellant’s written statement by telling the members that appellant was married with three children, and had three brothers, two sisters, and living parents.

As is customary in military practice, the prosecution offered appellant’s three military performance reports covering his time in the service and a personal data sheet reflecting appellant’s age, marital status, medals, and other personal data. See Rule for Courts-Martial (R.C.M.) 1001(b). In particular, the performance reports documented generally good duty performance and described appellant as an intelligent, well-adjusted airman with noteworthy “dual language communication talents.”

Mr. Trapp persuaded the military judge to instruct the members to consider the following specific factors in extenuation and mitigation of the offenses: (1) appellant’s age, family status, performance reports, medals, apparent acceptance of responsibility, offer to plead guilty, and pretrial confinement; (2) appellant was not the one who actually committed the murder or attempted murder; (3) appellant was not within the immediate presence of the commission of the act or acts causing death; (4) the lack of significant physical injury to Ms. Armour; and (5) the original robbery plan did not include murder.

D. The Affidavits

In his post-trial affidavit of February 13, 1995, Major Doyle states he worked the pretrial motions and findings portions of the trial, but participated in “most aspects of the defense pretrial preparation, investigation and trial strategy development.” Based on his handling of two other capital murder cases after this one, he is “very concerned that Senior Airman Simoy did not receive effective assistance of counsel during his trial.” Major Doyle continues, “Although our efforts were sufficient for a non-capital felony court-martial, we failed to perform up to the professional standards I have since realized are necessary in the representation of a capital ease.” (Emphasis added).

Specifically, Major Doyle contends the defense team failed to: (1) conduct an adequate pretrial investigation of appellant’s “upbringing and family background”; (2) seek assistance from “investigators with specialized experience in preparing a capital sentencing ease” (often called a mitigation specialist); (3) present any evidence in mitigation; (4) develop “a theme” for the sentencing case; and (5) request any special mitigation instructions.

Regarding appellant’s background, Major Doyle states he advised Mr. Trapp to hire “a mitigation specialist,” but Mr. Trapp rejected that idea in favor of his own “private investigator, a former Guamanian police officer.” According to Major Doyle, Mr. Trapp made the final calls on the scope of the investigation and theory of the case at trial, including the decision not to call witnesses during sentencing, a tactic Major Doyle “questioned” Mr. Trapp on during trial. Major Doyle explains they “concluded that it would [be] most effective for Mr. Trapp to focus upon sentencing and to preserve his credibility before the court members by not being active in presenting our ease in findings.”

Major Doyle contends the defense team decided appellant’s “role in the offense was the central matter in extenuation” and his “character, upbringing and family background had little overall importance to the case because he was not the actual murderer, nor did he plan for the crime to include murder.” Instead, they chose to emphasize appellant’s “minor involvement in the actual murder itself.” However, Major Doyle believes they fell short in showing the court members “the character and nature of the accused” as they made their choice of trial strategy without fully investigating that avenue.

In his affidavit of January 25, 1995, Captain Bemis generally echoes Major Doyle’s comments but adds that Major Doyle did question Mr. Trapp about having some of appellant’s family testify on his behalf at sentencing. According to Captain Bemis, “Mr. Trapp apparently decided against doing this. My recollection was the reasons for this included his concerns about the quality of the witnesses they would make.” Captain Bemis summarizes the defense team’s performance as, “While I naturally believe that we made what we believed to be sound tactical decisions at the time in most instances, I now realize that the standards required of us a greater effort than we made to not only present extenuation matters, but to present the kind of mitigating evidence required in capital sentencing cases.” (Emphasis added).

E. Appellant's Complaint

Riding on the crest of his two attorneys’ post-trial affidavits, appellant claims he was short-changed during the sentencing proceeding. Appellant complains his counsel were almost ineffective per se by not retaining a mitigation specialist in a capital case to present a “case for life.” Appellant points to a post-trial mitigation specialist’s extensive report on his cultural background and upbringing, medical and mental history, and favorable statements from friends and family to show the evidence his counsel could have presented with an adequate pretrial investigation (Issue I). As a side issue, appellant also complains that his counsel should have objected to a photograph of Sergeant LeVay taken in uniform with the American flag in the background (Issue XXIII).

F. Discussion

We admitted the post-trial mitigation specialist’s report at appellate defense counsel’s request on the ineffective assistance issue. However, we conclude appellant was ably represented, and as the Court of Appeals for the Armed Forces held in United States v. Loving, 41 M.J. 213, 250 (1994), a trial defense counsel is not per se ineffective by failing to use a mitigation specialist.

While Major Doyle tends to minimize his knowledge of capital ease precedent in his affidavit, he displayed a wealth of information on that subject at trial. He briefed and argued many of the constitutional and capital case-specific procedural issues appellate defense counsel now argue before us; and on several of those issues, appellate counsel “invite[ed] the Court’s attention to the motion and argument of trial defense counsel.” (See Appendix, Issues II, V, VI, XVIII, XIX, XXX, XXXIV, XXXVIII, XXXIX, XL.) Moreover, before trial, Major Doyle filed a petition for an extraordinary writ with this Court asking us to direct the convening authority to refer this case as noncapital because there was no evidence that appellant personally murdered Sergeant LeVay (he was a “nontriggerman” accused). On June 29,1992, we denied the petition without prejudice to appellant’s right to raise the issue to the trial judge, which Major Doyle did, albeit unsuccessfully.

During voir dire questioning of the court members, Major Doyle once again displayed his keen knowledge of capital case sentencing requirements. During individual questioning of the first court member, he asked:

Okay. Now, the U.S. Supreme Court has said that the decision on whether society may execute a person for his or her crimes requires the trial court to inquire into the character and record of the individual offender. If Airman Simoy were convicted of the charges, would you be able to fully aspects- of him as a person in deciding whether he should be put to death?

Receiving an affirmative response, Major Doyle posed a similar question to the other members.

Consequently, we give no weight to either Major Doyle’s or Captain Bemis’ statement, almost 18 months after the event, that the defense team somehow negligently overlooked the entire “character and nature of the accused.” Instead, examining the record of trial and case file from cover to cover, including the post-trial mitigation specialist’s report, we are convinced that the defense team made tough tactical choices in this case based on a keen appreciation of constitutional legal precedent and a reasonable trial strategy-

1. The Trial Strategy

First, the defense team adopted a reasonable trial strategy or “theme” of the case which they outlined during the litigated findings portion of the trial — appellant was only an unwary getaway car driver who did not physically harm anyone and became the scapegoat only when his immunized accomplices needed to finger a ringleader to cut deals with the government. The strategy was reasonable because appellant could not plead guilty to capital felony murder or any related offense. Article 45(b), UCMJ, 10 U.S.C. § 845(b); United States v. Matthews, 16 M.J. 354, 363 (C.M.A.1983).

Contrary to appellate defense counsel’s contention during oral argument, there is no way to know if the members rejected the defense theory when they convicted appellant of felony murder. The elements of that offense only required the members find beyond a reasonable doubt that appellant was a knowing participant in the robbery, not that he engineered and commanded it. See Manual for Courts-Martial, United States (MCM), Part IV, 1f43b(4), c(5) (1984). Thus, it was entirely reasonable for the defense team to continue with their strategy during sentencing, focusing on the two aggravating factors to show death was not warranted because appellant did not endanger anyone— his brother and Wolford did — and he was not a major participant, only the getaway driver.

Granted, the defense strategy was not successful. However, the success of a criminal defense attorney’s trial theory is not the measure of its soundness — if it were, every conviction would have at least one incompetent defense lawyer. Instead, we look at whether counsel made an objectively reasonable choice in strategy from the alternatives available at the time. United States v. Ingham, 42 M.J. 218 (1995), cert, denied,—U.S.-, 116 S.Ct. 745, 133 L.Ed.2d 693 (1996); United States v. Fluellen, 40 M.J. 96 (C.M.A.1994).

Here, the three defense attorneys saw the handwriting on the wall before trial that appellant was going to be convicted. After all, appellant submitted several plea bargain offers before trial which the government rejected, and then tried to plead guilty at trial. Knowing that, counsel used the findings portion of the trial to hammer away at appellant’s accomplices, a tack they continued in sentencing. Thus, the defense team tactically focused on the very two aggravating factors which the members had to decide beyond a reasonable doubt before they could adjudge death.

A viable strategy? You bet — the dissenting judges of our Court grab hold and embrace that strategy when voting to overturn appellant’s death sentence.

2. Minimizing Your Losses

Second, all three defense counsel well knew that the prosecution could launch a devastating counterattack if they opened the door to appellant’s character closet, or tried to blame his problems on alcohol or any perceived mental or intellectual deficiency. Consequently, they had to present a sentencing case which minimized appellant’s exposure to rebuttal. In that regard, they successfully won a motion to preclude the prosecution from presenting any evidence, except in rebuttal, that appellant may have committed another robbery off-base. They would have squandered that hard-fought victory by presenting character evidence in sentencing. See Mil. R. Evid. 404(a); United States v. Pruitt, 43 M.J. 864 (A.F.Ct. Crim.App.1996).

Defense counsel were also aware of the results of a mental examination (“sanity board”) of the appellant which they requested before trial under R.C.M. 706. The medical board which examined appellant concluded he was not suffering from a mental disease or defect that impaired his judgment at the time of the crimes and he understood the nature of his acts and the quality of his conduct. The board also diagnosed appellant, in pai't, as suffering from “Alcohol Abuse, In Remission; Mixed Substance Abuse (THC, Cocaine), In Remission.” More importantly, defense counsel were aware of the entire contents of the board’s report, not just the board’s general conclusions. See R.C.M. 706(c)(3).

Generally, the complete report concerning an accused’s mental examination under R.C.M. 706 is a privileged document for the defense. The government only gets a copy of the board’s ultimate conclusions, but not the underlying data. See Mil. R. Evid. 302; R.C.M. 706(c)(3) and (5). However, under our evidentiary rules, an accused may waive that privilege by “offering expert testimony concerning” his mental condition. Mil. R. Evid. 302(b)-(c); United States v. Mansfield, 38 M.J. 415 (C.M.A.1993), cert, denied, 511 U.S. 1052, 114 S.Ct. 1610, 128 L.Ed.2d 338 (1994). Appellant waived the privilege in this case at the appellate level when he: (1) faulted his attorneys for not presenting expert testimony on his mental state, and (2) offered his own expert’s post-trial neuropsy-chological evaluation which included a personal evaluation at the confinement facility. Consequently, we ordered production of the entire report on appellate government counsel’s motion so we could fairly review whether appellant’s counsel were deficient in that area. They were not.

In the expanded report, the medical examination board members determined appellant was trying to manipulate the results to make himself appear “intellectually impaired as well as psychiatrically dysfunctional” when he was not. Their belief was borne out by appellant’s own post-trial expert who found appellant was of average intelligence “with essentially normal neuropsychological test results.”

Furthermore, in deciding which pretrial investigative avenues to explore, a defense attorney may rely on information the client furnishes. United States v. Powell, 40 M.J. 1 (C.M.A.1994); Mitchell v. Kemp, 762 F.2d 886 (11th Cir.1985). The expanded report disclosed that appellant described his childhood as “happy” with “loving” parents— hardly the type of tragic childhood background information a criminal defense attorney usually wants pitched to a jury, in the defense ease-in-chief or in rebuttal.

Even if defense counsel had elected to package appellant as an abused child with alcohol and mental problems, that alternative does not guarantee success but instead might backfire by convincing court members that appellant was a danger to society. See Curtis, 44 M.J. at 121. Here, that danger was especially great, since the prosecution presented records from appellant’s personnel file which disclosed he had been disciplined in the past for disorderly conduct and assaulting an individual with a knife.

In determining whether particular evidence might benefit an accused during sentencing, we consider that military courts are “blue ribbon juries” when compared to their civilian counterparts. The average military court member is highly educated and has years of experience either leading or dealing with people. Moreover, by Congressional mandate, military court members are those “best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament,” qualification criteria not required in civilian criminal jurisprudence. Article 25(d)(2), UCMJ, 10 U.S.C. § 825(d)(2). Thus, military court members are more inclined to follow a trial judge’s instructions on the law and vote with their heads instead of their emotions, which does not usually bode well for adult criminals who place the blame for their predicaments on their social environment, parents, alcohol, drugs, or similar excuses not amounting to a legal defense. See R.C.M. 916 (defenses).

3. Quantity of Evidence v. Quality of Decision ■

Our dissenting Chief Judge faults the defense team for not presenting enough evidence in this, a capital case. Our discussion has focused, instead, on the reasonableness of their trial strategy and the evidence they elected to support that strategy from the alternatives available while minimizing unfavorable rebuttal.

A defense counsel may tactically choose not to put on any mitigation evidence whatsoever in a capital case and still meet the standard of competence set out in Strickland. Strickland’s attorney did not seek psychiatric reports on his client or develop or present character evidence — the Supreme Court found Strickland’s lawyer competent. Likewise, in Burger v. Kemp, 483 U.S. 776, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987), Burger’s lawyer did not present any mitigation evidence even though the evidence was available — the Supreme Court found Burger’s lawyer competent. Consequently, we do not measure a defense counsel’s effectiveness by the quantity of the evidence counsel introduces. Instead, we look at the quality of counsel’s decisions, and we find the defense team made a well-thought out tactical choice to limit the defense presentation. See United States v. Curtis, 38 M.J. 530, 536-39 (N.M.C.M.R.1993), affd, 44 M.J. 106 (1996).

For instance, we agree with Mr. Trapp’s observation to Major Doyle that appellant’s family might not make good witnesses. After all, appellant’s brother was a murderer and his father helped stash part of the robbery loot. Appellant also used his sister’s car to commit the offenses. Those aspects of the case would appear to put a damper on the effectiveness of family testimony.

4. Sergeant LeVay’s Photograph

Counsel likely did not object to Sergeant LeVay’s photograph because they knew it was admissible. Each side is entitled to present “certain basic information about the victim of an alleged offense, either for a specific evidentiary purpose such as establishing the victim’s identity, size, or apparent physical condition, or to help the court formulate an accurate mental picture of the circumstances of the ease.” United States v. Combs, 35 M.J. 820, 823 (A.F.C.M.R.1992), aff'd, 39 M.J. 288 (C.M.A.1994). Photographs of the victim generally fall within that parameter. United States v. Taylor, 41 M.J. 701, 705 (A.F.Ct.Crim.App.1995), affd, 44 M.J. 475 (1996); Combs. Here, Sergeant LeVay was killed in the line of duty while in uniform, and his basic training photograph was not inflammatory. Taylor. Thus, defense counsel wisely decided to save their ammunition and credibility with the trial judge for the more graphic autopsy photos, and succeeded in excluding two prosecution exhibits.

G. Conclusion

The defense team ably represented appellant at trial with a viable strategy which was consistent from beginning to end. They tried to prevent the death sentence by contesting it with round after round of pretrial motions where they raised most of the issues now briefed to us on appeal. They started their sentencing case during findings when they doggedly pursued appellant’s accomplices, particularly Che Wolford, to show that they cut deals with the government, and thus had the motive to wrongly finger appellant as the ringleader. They made maximum mileage out of the prosecution sentencing evidence, such as appellant’s performance reports and medals, and kept out unfavorable information by motion in limine or not opening the door to rebuttal. Finally, they tied up their theory for the members with closing argument followed by tailored instructions from the judge on their theory of the extenuation and mitigation case. Had defense counsel presented the very character and mental evidence which appellant now claims they should have presented, we would still be litigating ineffective assistance of counsel, although this time because defense counsel were ineffective by opening the door to prosecution rebuttal.

It is worth remembering, however, that a military judge is not just a referee at a criminal trial. Instead, the judge must protect the record for the future and clear up uncertainties and loose ends. See United States v. Ramos, 42 M.J. 392 (1995). Any military judge presiding today knows that ineffective assistance of counsel is one of the defense flavors of choice on appeal. Thus, when the judge spots a defense tactic that looks out of the ordinary — like not presenting any sentencing evidence — the judge may step in and ask counsel if he or she has a tactical reason for choosing the road less travelled, and whether counsel discussed that option with the accused. Assuming counsel states that a reasonable tactic exists, the judge may get the accused’s assent to counsel’s choice, and thus nip an ineffectiveness issue in the bud.

III. ARTICLE 32 INVESTIGATION

A Background

Appellant argues the pretrial investigation of his case under Article 32, UCMJ, 10 U.S.C. § 832, was flawed because the investigating officer denied his request for the presence of two government witnesses, Che Wol-ford and Sergeant Marquardt; or, in the alternative, a delay in the investigation of about one month until they returned to Guam to testify in Dennis Simoy’s Federal trial. The Article 32 investigating officer determined the two witnesses resided more than 100 miles away (Wolford was in prison and Marquardt at a new assignment) and were thus unavailable under R.C.M. 405(g)(1)(A), Production of witnesses and evidence; alternatives. The investigating officer then considered their earlier sworn written statements to criminal investigators and made his recommendation to proceed to trial as a capital case.

When appellant renewed the issue at trial, the military judge also interpreted R.C.M. 405(g)(1)(A) as establishing a “bright line” rule of availability based on distance alone and denied appellant’s motion for a new investigation. We conclude the investigating officer and judge erred but find the error harmless.

B. Discussion

R.C.M. 405(g)(1)(A) establishes the procedure for producing witnesses at an Article 32 pretrial investigation. In United States v. Mamie, 39 M.J. 993 (A.F.C.M.R. 1994), aff'd, 43 M.J. 35 (1995), we held this procedural rule did not prohibit the calling of witnesses from beyond the 100-mile limit set forth in it or make them per se unavailable. Instead, we concluded the investigating officer must balance the significance of the witness’s live testimony against the relative difficulty and expense of obtaining the witness’s presence at the hearing. Here, that did not occur.

Consequently, the investigating officer and the trial judge were wrong in applying only a distance-driven analysis, particularly when the two witnesses were crucial to the government’s proof of a potential capital case. However, the error did not prejudice appellant nor did the denial of the continuance which was based on the investigating officer’s application of the distance rule. Article 59(a), UCMJ, 10 U.S.C. § 859(a). An accused who wants to preserve the right to the personal attendance of a witness at a pretrial investigative hearing must move to take the witness’s testimony by deposition under R.C.M. 702. United States v. Chuculate, 5 M.J. 143, 145^6 (C.M.A.1978); Mamie, 39 M.J. at 998.

Defense counsel did not request to depose the two witnesses and appeared to have more than adequate opportunity to interview them before they testified at trial. For example, at one pretrial session counsel told the judge that he was having problems interviewing Che Wolford and Jesus Ramos. The judge informed all parties that the defense would “have that opportunity one way or another,” and the very next day asked the defense team if they had an opportunity “to do the sufficient interview of the witnesses they thought were necessary?” Defense counsel replied, “I believe so, your Honor, yes.” Likewise, defense counsel also had adequate time to prepare for the pretrial investigation; the investigation was delayed three times at appellant’s request, from January 29 to April 7, 1992. Consequently, we find any error was harmless.

IV. ADMISSIBILITY OF DENNIS SIMOY’S SENTENCE

A. Background

Dennis Simoy was prosecuted in the United States District Court for the Territory of Guam for robbery and murder and was facing only a mandatory life sentence since the local United States Attorney could not seek the death penalty. Dennis Simoy had already pled guilty and was awaiting sentencing when appellant’s trial began.

During a motions hearing, the prosecutor moved in limine to preclude appellant from presenting any evidence or comments concerning Dennis Simoy’s potential sentence. The prosecutor argued the evidence was not relevant, particularly since appellant and his brother were not “similarly situated.” In this regard, the prosecutor pointed out that the death penalty was not available in Dennis Simoy’s case because Congress failed to enact a constitutional sentencing scheme to accompany its capital offense statute. 18 U.S.C. § 1111.

Defense counsel conceded that the death penalty was not an option to the United States Attorney, but countered that Dennis Simoy’s sentence was still a relevant mitigation factor since he was the actual killer. Defense counsel pointed out that R.C.M. 1004(b)(3) gave an accused facing a death sentence “broad latitude” in presenting evidence in extenuation and mitigation.

The trial judge granted the prosecutor’s motion in limine, ruling that Dennis Simoy’s sentence was not relevant to appellant’s sentencing case. The judge also performed the evidentiary balancing test of Mil. R. Evid. 403 and concluded the evidence would result in a “mini-trial” which would be “misleading and confusing” to the members “far beyond its probative weight.”

B. Discussion

1. Standard of Review

As a general proposition, we review a trial judge’s decision to admit or exclude sentencing evidence under an abuse of discretion standard. United States v. Sullivan, 42 M.J. 360, 363 (1995) (evidentiary rulings in general); United States v. Murphy, 26 M.J. 454, 457 (C.M.A.1988) (sentencing evidence). In performing that review, we recognize a trial judge may even exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the members, or by consideration of undue delay, waste of time, or needless presentation of cumulative evidence. Mil. R. Evid. 403; United States v. Robertson, 39 M.J. 211, 215 (C.M.A.1994), cert, denied, 513 U.S. 1076, 115 S.Ct. 721, 130 L.Ed.2d 626 (1995).

To reverse for an abuse of discretion requires more than a difference of opinion — we must find the judge’s decision was arbitrary, fanciful, clearly unreasonable, or clearly erroneous. United States v. Travers, 25 M.J. 61, 62 (C.M.A.1987). Where the judge’s decision involves a mix of law and fact, we look at the fact-finding under a eleai’ly erroneous standard and the judge’s conclusions of law under a de novo standard. Sullivan, 42 M.J. at 363. We find no abuse of discretion here.

2. Sentence Comparison

The judge did permit defense counsel to cross-examine appellant’s accomplices about the plea agreements they had negotiated with the government, including specific jail terms, as it was admissible evidence of potential bias under Mil. R. Evid. 608(e). See United States v. Colcol, 16 M.J. 479 (C.M.A.1983). Since Dennis Simoy did not testify at appellant’s trial, the trial judge recognized appellant’s theory of admissibility for what it really was — sentence comparison, plain and simple.

One accused’s acquittal is not relevant to another’s conviction, even in trials of co-conspirators. See, e.g., United States v. Garcia, 16 M.J. 52 (C.M.A.1983). Likewise, an accomplice’s sentence is not a relevant sentencing consideration at an accused’s trial, even in a capital case. See United States v. Hutchinson, 15 M.J. 1056, 1062-63 (N.M.C.M.R.1983) and eases cited therein, rev’d on other grounds, 18 M.J. 281 (C.M.A. 1984) (summary disposition).

Instead, the appropriateness of an accused’s sentence is based on the individual circumstances of the case, giving due regard to both the offense and offender. Mil. R. Evid. 401, 402; United States v. Snodgrass, 37 M.J. 844 (A.F.C.M.R.1993); cf. Hatch v. Oklahoma, 58 F.3d 1447,1466 (10th Cir.1995) (Constitution does not require sentence comparison between nontriggerman sentenced to death and triggerman sentenced to life), cert. denied,—U.S.-, 116 S.Ct. 1881, 135 L.Ed.2d 176 (1996). If Dennis Simoy had been sentenced to death, would that result have been admissible in appellant’s trial to show appellant deserved death? Certainly not! Now, we turn to the “denial of allocution right” twist on the issue.

3. Denial of Allocution Right

We agree that R.C.M. 1004 gives an accused in a capital case “broad latitude” in presenting sentencing evidence. Moreover, military law recognizes the right of an accused to make an unsworn statement, and a trial judge may not lightly restrict that right. R.C.M. 1001(c)(2); United States v. Provost, 32 M.J. 98 (C.M.A.1991); United States v. Rosato, 32 M.J. 93 (C.M.A.1991).

However, we also agree with appellate government counsel that an unsworn statement is not “a vehicle to parade before a court matters that are otherwise inadmissible.” Appellee’s Reply Brief at 164. For example, an accused may not use a sentencing statement as a vehicle to challenge the court’s findings of guilt in a litigated case. United States v. Teeter, 16 M.J. 68 (C.M.A. 1983); United States v. Tobita, 3 U.S.C.M.A. 267, 12 C.M.R. 23, 1953 WL 2174 (1953).

Similarly, an accused may not use a sentencing statement as a vehicle to smuggle in otherwise inadmissible evidence. United States v. Ezell, 24 M.J. 690 (A.C.M.R. 1987) (accused could not use unsworn statement to discuss noneonsensual sexual offense victim’s past sexual behavior as a prostitute which was inadmissible under Mil. R. Evid. 412); see also United States v. Fox, 24 M.J. 110 (C.M.A.1987). We also do not view an accused’s right to make a statement in allocution as the right to stand on a soapbox and discuss whatever the accused wants — the statement must be relevant to matters in extenuation, mitigation, or in rebuttal to prosecution evidence. See R.C.M. 1001(c)(2)(A); see generally United States v. Britt, 44 M.J. 731 (A.F.Ct.Crim.App.1996) (excellent discussion on the origins of the unsworn statement and its historic limitations). Even in a capital case, the military judge has discretion to exclude irrelevant or marginally-relevant sentencing evidence. Loving, 41 M.J. at 273.

Consequently, the military judge did not abuse his discretion in precluding appellant from presenting evidence of Dennis Simoy’s sentence. We will defer discussing whether appellant has a right to sentence comparison on appeal in the sentence appropriateness section of our opinion.

V. SENTENCING INSTRUCTIONS

Appellant contends that the military judge erred in instructing the members that: (1) R.C.M. 1004(c)(4), substantially endangering “lives of persons other than the victim,” was an “aggravating factor” in his case which would support the imposition of the death penalty (Issue XXXVIII); (2) in deciding whether death was appropriate, the members could consider five “aggravating circumstances” under R.C.M. 1001(1)(b)(4) in addition to the two specific aggravating factors under R.C.M. 1004(c) (Issue XL); and, (3) the members should vote on proposed sentences which included death before voting on proposed sentences which included life (Issue XXXVII).

A R.C.M. 100k(c)(4) Aggravating Factor 1. Legal Background of Aggravating Factors

Under Supreme Court precedent, just murdering another human being is not sufficient to warrant the lawful taking of the murderer’s life. Instead, the murder must be accompanied by aggravating circumstances (called aggravating factors in military law) which narrow the range of individuals eligible for the death penalty and which reasonably justify that sentence for the accused when compared to others found guilty of murder. Otherwise, the death sentence amounts to cruel and unusual punishment prohibited by the Eighth Amendment. Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976).

Concerning felony murder in particular, the Supreme Court has concluded that the Eighth Amendment prohibits the death penalty for an accused convicted of felony murder who did not kill, attempt to kill, or intend that a killing take place or that lethal force be employed, unless the accused was a major participant in the felony and manifested a reckless indifference to human life. Compare Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982) with Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987). See also United States v. Curtis, 32 M.J. 252, 265-66 (C.M.A.1991) (aiding and abetting a felony is sufficient to support felony murder conviction but not death sentence without “active” participation).

For military trials, Congress authorized the death penalty for murders committed during a burglary, sodomy, rape, robbery or aggravated arson — felony murders. Article 118(4), UCMJ, 10 U.S.C. § 918(4). To comply with Supreme Court guidelines, the President established aggravating factors for military capital trials in R.C.M. 1004(c), including the major participant/reckless indifference aggravating factor for felony minders in R.C.M. 1004(c)(8) which has passed constitutional muster. Loving,—U.S. at-, 116 S.Ct. at 1751; United States v. Curtis, 32 M.J. at 271. With that general framework, we turn to appellant’s complaint concerning the second aggravating factor in his case, R.C.M. 1004(c)(4).

2. Facts

Over defense objection, the trial judge instructed the members that R.C.M. 1004(c)(4) was an aggravating factor applicable to appellant’s case; that is, “the offense was committed in such a way or under circumstances that the lives of persons other than the victim, if any, were unlawfully and substantially endangered.” The judge ruled that Sergeant LeVay and Ms. Armour did not qualify as “persons other than the victim” since appellant always intended at a minimum to assault them during the robbery. However, the judge concluded Sergeant Marquardt qualified as an unanticipated victim whose life was unlawfully and substantially endangered through the stabbing. The parties presented closing arguments tailored to the judge’s ruling.

Appellant contends “persons” as used in R.C.M. 1004(c)(4) means just what it says— more than one. The government, on the other hand, counters that we should interpret plural to mean singular, and in any event, appellant endangered the lives of other “persons” in the form of security policemen who responded to the scene.

3. Discussion

Plain and unambiguous language in a Rule for Courts-Martial should be applied, not interpreted. United States v. Leonard, 21 M.J. 67, 69 (C.M.A.1985). By anyone’s reading of the dictionary, “persons” means more than one.

Even if we had to interpret the term, we need look no farther than a companion aggravating factor, R.C.M. 1004(e)(11)(B), which authorizes the death penalty for aiding the enemy or espionage when “in committing the offense, the accused knowingly created a grave risk of death to a person other than the individual who was the victim.” (Emphasis added). If the drafters meant one person, as opposed to persons, they knew' how to say so, and did so two years after this trial by amending R.C.M. 1004(c)(4) to cover endangerment of “one or more persons other than the victim.” Executive Order No. 12936, 59 Fed.Reg. 59075 (1994).

Consequently, the trial judge erred in applying the R.C.M. 1004(c)(4) aggravating factor based on the attack on Sergeant Marquardt alone. However, the judge also erred in restricting the factor to only unanticipated victims of the entire criminal enterprise, thereby eliminating Ms. Armour as falling within the category of “other persons.” Granted, the term “victim” within the R.C.M. 1004(c)(4) does not clearly state who qualifies as one. However, a Rule for Courts-Martial should be afforded a reasonable construction which avoids awkward results. United States v. Powell, 38 M.J. 153 (C.M.A.1993).

Under the judge’s theory, if an accused and an accomplice went into a store to rob the sole clerk present and the accomplice fired one shot, killing the clerk, and then wounded a passerby on the getaway, the aggravating factor would apply since the passerby was not an anticipated victim at the outset. On the other hand, if the same duo went into a crowded bank lobby and the accomplice sprayed the place with head-high machine gun fire, killing only one person, the aggravating factor would not apply since all in the lobby were potential victims at the outset — an absurd result.

Thus, we interpret the term “victim” in R.C.M. 1004(c)(4) as applying to the individual who was killed by the accused’s act and not to individuals who were victims in some fashion but were not killed. Therefore, Ms. Armour qualified with Sergeant Marquardt as “persons other than the victim” whose lives were endangered by the appellant’s offense.

■ [42] However, we still conclude the aggravating factor did not apply. The military judge’s ruling that only Sergeant Marquardt qualified under that aggravating factor constitutes the law of the case, particularly where the parties fashioned their sentencing arguments around it and the ruling inured to appellant’s benefit. See generally United States v. Morris, 13 M.J. 297, 299-301 (C.M.A.1982) (Everett, C.J., concurring in the result) (discusses law of the case doctrine and four exceptions to it, none of which we find applicable here). Consequently, we do not bite on appellate government counsel’s argument to extend R.C.M. 1004(e)(4) in this case to responding security policemen or any other passersby, and we set aside that aggravating factor.

4. Prejudice

Instructing court members on an invalid aggravating factor does not automatically reverse an accused’s death sentence on appeal. Instead, an appellate court may still affirm the death sentence if it sets aside an aggravating factor as long as the court either: (1) reweighs the remaining aggravating factor or factors and circumstances against the extenuating and mitigating circumstances in the case, or (2) finds the error harmless beyond a reasonable doubt. Stringer v. Black, 503 U.S. 222, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992); Clemons v. Mississippi 494 U.S. 738,110 S.Ct. 1441,108 L.Ed.2d 725 (1990); Curtis, 44 M.J. at 161. To find the error harmless beyond a reasonable doubt, we must be convinced, beyond a reasonable doubt, that the members would have still sentenced appellant to death on the one remaining aggravating factor. Curtis, 44 M.J. at 161; Curtis, 38 M.J. at 533-35.

To deal with the error in this case, we find a harmless error analysis more appropriate, rather than a mere reweighing of the remaining aggravating factor. In courts-martial only court members may impose a death sentence, not the trial judge. See R.C.M. 501(a)(1)(B). Thus, we should be concerned with what they would have done if properly instructed. Cf. Curtis, 38 M.J. at 533-34. Second, as we will discuss in detail later in the opinion, we have an independent statutory duty to determine the appropriateness of appellant’s sentence, which involves balancing the remaining aggravating factor and circumstances against the extenuating and mitigating circumstances. See Article 66(c), UCMJ, 10 U.S.C. § 866(c); United States v. Healy, 26 M.J. 394 (C.M.A.1988).

We conclude beyond a reasonable doubt that the invalid aggravating factor did not mislead the members or tip the scale in favor of death. First, the two aggravating factors they were instructed on are very similar, with the valid one requiring them to reach a specific finding on appellant’s degree of culpability — that is, whether he was a major participant; and his concern for human life — that is reckless indifference. Second, since the members had already convicted him of attempting to murder Sergeant Marquardt, they would not be swayed by a sentencing instruction requiring them to determine if appellant “unlawfully and substantially endangered” the life of someone other than Sergeant LeVay. Finally, the entire meat and potatoes of this ease revolved around the R.C.M. 1004(c)(8) aggravating factor, covering appellant’s degree of culpability and reckless indifference to human life. Thus, we are satisfied beyond a reasonable doubt that the members would have sentenced appellant to death for the one remaining aggravating factor. See Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983).

B. Aggravating Circumstances v. Aggravating Factors

1. Background

As required by R.C.M. 1004(b)(7), the military judge instructed the members that they could not impose a death sentence unless they unanimously found beyond a reasonable doubt that at least one aggravating factor existed in the case; here, either R.C.M. 1004(c)(4) or (c)(8). As required by R.C.M. 1004(b)(4)(C), he then told them that even if they found an aggravating factor existed, they could not impose death unless they found that any and all extenuating or mitigating circumstances were substantially outweighed by any aggravating circumstances, including the aggravating factors they had earlier considered.

As for specific aggravating circumstances, the judge instructed the members that they could consider: (l) the violent nature of the crimes; that is, the type of weapons used, such as the pipe on Sergeant LeVay, the knife on Sergeant Marquardt, a second pipe, and an assault rifle; (2) that Sergeant LeVay was beaten repeatedly after being knocked unconscious; (3) that Sergeant Marquardt continued to suffer physical injuries requiring medical treatment and cosmetic surgery, and suffered enduring psychological effects; (4) that Ms. Armour also suffered psychological effects; and (5) the LeVay family’s grief.

Appellant’s counsel did not object to these instructions at trial. On appeal, he argues the judge committed plain error by mixing aggravating circumstances with aggravating factors. He contends the members may impose death only if the specific R.C.M. 1004(c) aggravating factors on which they are instructed substantially outweigh any extenuating or mitigating circumstances. Appellant also argues the combination of aggravating circumstances with aggravating factors amounts to a constitutionally prohibited “double counting” of aggravators. See Curtis, 33 M.J. at 108 (discusses double counting theory). We disagree.

2. Discussion

We examine a military judge’s sentencing instructions as a whole to determine if they pass muster. Normally, failure to object to an instruction forfeits any issue concerning it, absent plain error. R.C.M. 1005(f); United States v. Webel, 16 M.J. 64 (C.M.A.1983). Capital cases are no exception to the rule. See Loving, 41 M.J. at 273-78. Here, we conclude the military judge’s instructions properly channeled the court members’ discretion in sentencing, outlining for them the difference between aggravating factors and aggravating circumstances. Thus, no error occurred, plain or otherwise.

Under R.C.M. 1001(b)(4), the prosecution may always present evidence of aggravating circumstances directly relating to or resulting from the offenses of which the accused is convicted. In a capital case, the prosecution also presents evidence under R. C.M 1004(b)(2) of any aggravating factor which authorizes the death penalty. While these two types of evidence sometimes intertwine, as they did in this case, they do not conflict or amount to a “double counting” of factors.

The aggravating factors of R.C.M. 1004(c) identify the class of murderers eligible for the death penalty in courts-martial. The members must unanimously find beyond a reasonable doubt that the accused fits within that class by finding at least one aggravating factor before it may even consider death. However, once the members find an accused fits within the class eligible for the death penalty, they may also constitutionally consider other aggravating circumstances of the case under R.C.M. 1001(b)(4) in determining whether the accused should be sentenced to death, including the circumstances surrounding any aggravating factors. R.C.M. 1004(b)(4)(C); Barclay v. Florida, 463 U.S. 939, 103 S.Ct. 3418, 77 L.Ed.2d 1134 (1983); Zant v. Stephens, 462 U.S. at 879-80, 103 S. Ct. at 2744; Loving, 41 M.J. at 278-79.

Unlike aggravating factors, the members do not have to make findings on whether a particular circumstance is aggravating, extenuating or mitigating. Instead, the trial judge highlights for them various items of evidence which they may consider in determining within which category a particular circumstance falls — which the judge did here.

“What is important at the selection stage is an individualized determination on the basis of the character of the individual and the circumstances of the crime.” Zant v. Stephens, 462 U.S. at 879, 103 S.Ct. at 2743-44. Here, we conclude the members made that individualized determination based on a fair-handed instruction to them which highlighted aggravating, extenuating, and mitigating circumstances which they could consider in fashioning a sentence if they unanimously found an aggravating factor existed.

C. Order of Voting on Proposed Sentences 1. Background

In courts-martial with members, any member may propose a sentence during the closed sentencing deliberation. The junior member collects the proposed sentences and submits them to the court president. R.C.M. 1006(c). The members then vote on the proposed sentences beginning with the lightest until the members arrive at their sentence-in this ease death, which required a unanimous vote. R.C.M. 1006(d)(3)-(4).

Without objection, the military judge reversed the procedure by instructing the members to begin voting first on proposed sentences which included death if they unanimously found an aggravating factor existed beyond a reasonable doubt. Appellant claims this instruction amounts to plain error because it “unconstitutionally channelled [the members’] discretion away from the life option.”

2. Discussion

As we expressed earlier, failure to object to a sentencing instruction normally forfeits the issue absent plain error. In order to obtain relief under the plain error doctrine, an appellant must show unfair prejudice from an obvious error affecting substantial rights. United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). For a defective sentencing instruction, even the one complained of here, the error must have “had an unfair prejudicial impact on the [members’] deliberations.” United States v. Fisher, 21 M.J. 327, 328 (C.M.A.1986) (quoting United States v. Young, 470 U.S. 1, 16 n. 14, 105 S.Ct. 1038, 1047 n. 14, 84 L.Ed.2d 1 (1985)). Even when an appellant clears that hurdle, appellate courts should use the doctrine sparingly, “solely in those circumstances in which a miscarriage of justice would otherwise result.” United States v. Causey, 37 M.J. 308, 311 (C.M.A.1993) (citations omitted).

Here, the judge erred in his instruction. Even though the members found an aggravating factor existed, they could still begin them voting on life first. The aggravating factor only made appellant eligible for the death penalty. However, we conclude the error did not have any impact on the jury’s deliberations — because this is a capital case, we are even convinced of that beyond a reasonable doubt. See Thomas, 43 M.J. at 582-83 (court did not find plain error where judge instructed members to begin voting on sentences with death first); Curtis, 44 M.J. at 161 (instructional error on aggravating factors harmless beyond a reasonable doubt).

First, the only two key punishments in this case were life and death. The other ancillary penalties such as reduction in rank were of little consequence. The judge instructed the members time and time again that any vote on death had to be unanimous and made only after finding that any aggravating circumstance substantially outweighed any extenuating or mitigating circumstance.

Second, looking at the sentencing instructions as a whole and the record of trial, the instruction did not channel the members’ attention away from their sentencing options or inhibit their discussion of same. For example, after the military judge finished his instructions, the members asked if a life sentence included possible parole. The judge accurately told them that parole was a collateral matter and not something for them to consider. See generally United States v. Quesinberry, 12 U.S.C.M.A. 609, 31 C.M.R. 195, 1962 WL 4393 (1962) (members should determine sentence without regard to collateral consequences). The members then deliberated for slightly over 5 1/2 hours before asking for an overnight recess. When court resumed the next day, they continued deliberations for another 2 1/2 hours — hardly a snap decision.

Third, during oral argument, we asked appellate defense counsel if appellant’s concern was with the procedural accuracy of the vote itself or only the impact the instruction may have had on the members’ frank and full discussion of their sentencing options. Appellate defense counsel answered, “impact.” The instruction on voting would not have interfered with any discussion. The military judge specifically told the members that the “deliberations should begin with a full and free discussion on the subject of sentencing” before anyone proposed a sentence, much less voted on one. As pointed out above, the length of their deliberations, while not determinative of the issue, shows the members did not rush to judgment in this case.

We now turn to what all of us, majority or dissenting, agree is the crux of this ease: whether appellant’s sentence to death is appropriate.

VI. APPROPRIATENESS OF DEATH PENALTY

Appellant was the engineer of the train of death which crushed the life from Sergeant LeVay’s body. Athough he showed a marked indifference to the value of that life, he now asks us to blind ourselves to that indifference and find that his death sentence is both disproportionate to his felony murder offense and too severe. We discuss proportionality first.

A. Proportionality 1. Legal Background

The concept of proportionality involves an appellate court objectively evaluating the appropriateness of a sentence for a particular crime by looking at: (1) the gravity of the offense and severity of the penalty, (2) sentences imposed for other crimes, and (3) sentencing practices in other jurisdictions. In capital cases, the Constitution does not require a proportionality review for the death sentence where the sentencing procedure sufficiently narrows the class of persons subject to that penalty. Pulley v. Harris, 465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984). Since court-martial sentencing procedures accomplish that task, proportionality reviews are not constitutionally required in military capital cases. Curtis, 32 M.J. at 270-71, quoted in Loving, 41 M.J. at 290. The military sentencing procedures are constitutionally sound. Loving,—U.S. at-, 116 S.Ct. at 1751.

However, the Court of Appeals for the Amed Forces, then the United States Court of Military Appeals, determined in United States v. Curtis that the service Courts of Criminal Appeals should review any death sentence to determine “whether the sentence is generally proportional to those imposed by other jurisdictions in similar situations.” Curtis, 33 M.J. at 109 (citations omitted). The Court based the requirement on our statutory duty to determine sentence appropriateness under Article 66(c), UCMJ, 10 U.S.C. § 866(c).

In Afiele 66(c), Congress conferred upon us an “awesome, plenary, de novo power of review.” United States v. Cole, 31 M.J. 270, 272 (C.M.A.1990). The service Courts of Criminal Appeals have unique statutory fact-finding powers not shared by other Federal appellate courts. In the normal course of appellate review, we may substitute our judgment for that of the military judge on the law or the facts. Likewise, we may substitute our judgment for the court members when they sit as the trier of fact. In considering the record, we may weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that we did not see and hear the witnesses. Afiele 66(c), UCMJ; Cole. Consequently, we may only affirm a conviction when convinced of the accused’s guilt beyond a reasonable doubt. United States v. Turner, 25 M.J. 324 (C.M.A. 1987), pet. denied, 28 M.J. 78 (C.M.A.1989). Similarly, we may only affirm a sentence which we find appropriate both in law and fact. Healy, 26 M.J. 394 (C.M.A.1988).

Except for the power to suspend, we have almost unlimited power to lessen a sentence to the level we deem appropriate. Healy; see also United States v. Henry, 42 M.J. 231, 234 (1995) (discusses legislative intent regarding service appellate court’s sentencing discretion). For example, we may reduce appellant’s sentence to life imprisonment if we feel death is not appropriate based on our independent judgment. Thus, the concept of proportionality pales in comparison to our normal appellate review for sentence appropriateness since we must always determine that the sentence fits the crime, the circumstances of the offense, and the offender. With that background, we undertake the mandated proportionality review for appellant’s murder offense.

2. Proportionality Review

Appellant argues that to pass proportionality muster, we must find another appellate case affirming a “nontriggerman’s” death sentence for felony murder. As an alternative theory, appellant argues his death sentence fails proportionality review because numerous other criminals who committed much more heinous murders have received life sentences, or less. We reject both arguments.

Proportionality review, like sentencing at trial, is not a rote science, particularly in capital cases. If it were, we could just feed appellant’s case into a computer along with all the appellate opinions on hand and await the result. Instead, individuals and their cases are unique, as are their juries and judges, both trial and appellate. Thus, merely comparing one case to another to see who is the worse murderer is not the benchmark for a proportionality review. Pulley v. Harris; Solem v. Helm, 463 U.S. 277, 292, 103 S.Ct. 3001, 3010-11, 77 L.Ed.2d 637 (1983); Curtis, 32 M.J. at 270.

According to appellant’s research, and ours, the Supreme Court has not affirmed a “nontriggerman’s” death sentence for felony murder since reinstating the death penalty in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). We also agree with appellant that this is the first military case where an accused was sentenced to death for felony murder but did not physically kill the victim. However, “[a]ny system of review that requires a comparison of each case with all similar prior cases must have a beginning. There will be a first case for each type or category of capital case that may appear and that first case necessarily cannot be compared to any other similar cases. The first ease must stand alone, otherwise comparative sentence review would be forever impossible.” State v. Shaw, 273 S.C. 194, 255 S.E.2d 799, 807 (1979) (footnote omitted) (overruled on other grounds by State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991)), quoted in Curtis, 32 M.J. at 270 n. 23.

Without other military appellate cases on all fours with appellant’s case, we believe proportionality review requires us to look objectively at appellant’s sentence and determine whether it is disproportionate based on the gravity of the offense and severity of the penalty, sentences imposed for other ciimes, and sentencing practices in other jurisdictions. Pulley v. Harris, 465 U.S. at 43, 104 S.Ct. at 875-76. In other words, may an accused be sentenced to death for felony murder when the accused was the nontriggerman? As we pointed out in our discussion on aggravating factors, the Supreme Court has said “yes,” provided the accused was a major participant in the felony and manifested a reckless indifference to human life. Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982); Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987). The members unanimously found that circumstance existed beyond a reasonable doubt and so do we.

Appellant attempts to downplay his role in the robbery and murder, portraying himself as a minor player — a mere getaway driver. We on the other hand find he was not just a major participant in the felony — he was its commander-in-chief. He drew up the plans, selected the members for the gang (including two individuals whom he later described as ruthless murderers), and identified replacements for the gang when some of them fell out. He assigned the jobs to the accomplices — choosing the safety of the getaway car for himself — directed that his accomplices arm themselves with firearms and pipes, and furnished the murder weapon. Furthermore, he made no effort to assist Sergeant LeVay before, during, or after the beatings. Instead, he continued with his plan. See Tison, 481 U.S. at 152,107 S.Ct. at 1685. In essence, appellant’s grip on the lead pipe which struck the fatal blows was as tight as his brother’s, if not more so.

Appellant also showed a reckless indifference to human life. Appellant decided that Dennis Simoy would “knock out” the security police escort with a lead pipe. When Wol-ford questioned whether Dennis Simoy’s blow might kill the escort, appellant remarked indifferently, “If the guy dies, he dies.” Appellant’s statement proved chillingly prophetic since Sergeant LeVay’s treating physician testified that “one hit could have been sufficient to kill someone” — an opinion with which the pathologist concurred. Likewise, when one of his confederates suggested killing everyone so they “won’t talk,” appellant did not disagree, although he heard the comment and was the leader. Finally, appellant commanded the murder, albeit unsuccessful, of an innocent bystander who only posed a minor threat to his getaway, because he might identify him. As the Supreme Court observed in Tison, “the greater the defendant’s participation in the felony murder, the more likely that he acted with reckless indifference to human life.” 481 U.S. at 153,107 S.Ct. at 1686.

Thus, we are satisfied that the death sentence is not disproportionate for the felony murder in this case based on Supreme Court precedent in Enmund and Tison. However, as a matter of caution, we have also considered the numerous cases cited by the appellate courts in Loving (41 M.J. at 290-291, 34 M.J. 956, 969 n. 18) as well as the various decisions cited within this opinion. Also, if one accepts appellant’s argument that we must fit his case directly into another’s pigeon hole, we have considered Hatch v. Oklahoma (cited previously in Section IV.B.2.) which we now briefly discuss.

On October 15, 1979, Steven Hatch and Glen Ake entered the Douglass home with firearms intending to rob the occupants. They bound and gagged Reverend Douglass, his wife, and son. They then ransacked the house, stole items, and attempted to rape the Douglass’ 12-year-old daughter. After Hatch covered each of the victim’s heads with an article of clothing, Ake told him to return to the car, turn it around, and “wait for the sound.” Once Hatch left, Ake shot the Douglasses, killing the parents but only wounding the two children.

Hatch was convicted of capital first degree felony murder in Oklahoma; that is, a killing during a robbery with a dangerous weapon, and was sentenced to death. Ake was also convicted of capital murder and sentenced to death, but his death sentence was ultimately reduced to life imprisonment on appeal. Hatch tried to overturn his death sentence on appeal and by writ of habeas corpus, arguing he was not the triggerman and his death could not be legally justified when the real killer, Ake, received a lesser sentence.

As the United States Court of Appeals for the Tenth Circuit pointed out, proportionality review does not equate to sentence comparison. Instead, the Constitution only entitles an accused to a determination of individual culpability, and Hatch got that determination. Hatch v. Oklahoma, 58 F.3d at 1466. On August 9,1996, Hatch was executed by lethal injection. Lois Romano, Execution Closes a Tragic Circle; Douglass Children Watch Their Parents’ Killer Die, Wash. Post, Aug. 10,1996, at A3.

In summary, we find appellant’s sentence is “generally proportional to those imposed by other jurisdictions in similar situations.” Curtis, 33 M.J. at 109 (citations omitted). See also Johnson v. State, 691 S.W.2d 619 (Tex.Cr.App.1985) (accused’s death sentence for murder affirmed even though he did not actually kill during robbery), cert, denied, 474 U.S. 865, 106 S.Ct. 184, 88 L.Ed.2d 152 (1985); State v. Laws, 661 S.W.2d 526 (Mo. 1983) (same), cert, denied, 467 U.S. 1210, 104 S.Ct. 2401, 81 L.Ed.2d 357 (1984); White v. State, 403 So.2d 331 (Fla.1981) (same), cert, denied, 463 U.S. 1229, 103 S.Ct. 3571, 77 L.Ed.2d 1412 (1983).

B. Sentence Appropriateness

A finding of proportionality does not end our analysis, however. We must still determine whether the death sentence is appropriate for appellant, considering all the facts and circumstances of the case. United States v. Snelling, 14 M.J. 267 (C.M.A.1982). To affirm the death penalty, we must be convinced from the evidence admitted at trial that any aggravating circumstances admissible under R.C.M. 1001(b)(4) substantially outweigh any extenuating or mitigating circumstances. See Article 66(c), UCMJ, 10 U.S.C. § 866(c); R.C.M. 1004(b)(4)(C). We find the death sentence appropriate and that the aggravating circumstances substantially outweigh any extenuating or mitigating circumstances.

In weighing the aggravating circumstances against the extenuating and mitigating circumstances, we are not bound by the aggravating factors. As we previously discussed in Section V.B.2., we may consider any aggravating circumstances directly relating to or resulting from the offenses.

In addition to the aggravating circumstances already discussed, we find it particularly aggravating that a uniformed security police law enforcement officer was killed while in the execution of his office after appellant knowingly planned and directed an armed aggravated assault upon him. In this regard, most people know that substantial physical harm — even a “grave risk of death” (see Tison, 481 U.S. at 157, 107 S.Ct. at 1687-88) — -may occur when you strike someone in the head with a lead pipe hard enough to “knock him out.” Furthermore, appellant did not direct his attack against a stranger. Rather, he unleashed Dennis Simoy on another member of his own unit who was performing the exact duty which he had previously performed, escorting the same Air Force civilian employee whom he had escorted. We also find it aggravating that appellant used knowledge and training garnered from his official police duties to plan the armed robbery and physical attacks in this case. Appellant was fortunate at trial that the prosecutor did not add these aggravating circumstances to the specific R.C.M. 1001(b)(4) list that he asked the trial judge to instruct upon.

Appellant argues that the evidence shows that killing someone was not a part of the original robbery plan, a mitigating factor on which the judge instructed the members, as well as the fact that appellant was not the one who actually committed the murder or attempted murder. While murder may not have been part of the original plan, appellant showed absolutely no hesitation in employing physical violence and dangerous weapons to achieve monetary gain. Moreover, when the idea first surfaced that someone might die in the ambush, appellant was unconcerned — “If he dies, he dies.” Furthermore, appellant showed his true colors with the attack on Sergeant Marquardt — when the opportunity came, he was willing to kill an innocent bystander, a mere witness, to perfect his getaway.

Appellant also renews his argument that death is not appropriate when the real killer was sentenced to life. Normally, military appellate courts and convening authorities cannot consider the punishments in other cases in determining an appropriate sentence for an accused. However, as a matter of discretion under military law, convening authorities and the service Courts of Criminal Appeals may examine the punishments in other closely related or connected cases within the same jurisdiction when there is a direct correlation between each accused and their, respective offenses, the punishments are “highly disparate,” and good and cogent reasons do not exist for the disparity. United States v. Ballard, 20 M.J. 282 (C.M.A.1985); United States v. Olinger, 12 M.J. 458 (C.M.A.1982); United States v. Commander, 39 M.J. 972 (A.F.C.M.R.), pet. denied, 40 M.J. 283 (C.M.A.1994).

The military did not have jurisdiction to try Dennis Simoy, and as we discussed previously, defense counsel conceded at trial that Federal authorities in Guam could not legally seek the death penalty for Dennis. Thus, sentence comparison is not truly applicable to this case, either for proportionality review or sentence appropriateness. But see United States v. Hawkins, 37 M.J. 718, 722 (A.F.C.M.R.1993) (“sentence comparisons among cases disposed of in civilian courts and those tried by courts-martial are even less persuasive than comparisons among courts-martial sentences, given the differing approaches in the civilian and military systems to sentencing principles and the administration of punishment”), pet. denied 39 M.J. 442 (C.M.A.1994). However, out of an abundance of caution and recognizing the oft-repeated saying that “death is different,” we will consider Dennis Simoy’s sentence in determining the appropriateness of death for appellant since the prosecuting sovereign, the United States, was the same in both cases.

Sentences of life imprisonment and death are highly disparate sentences. However, we find good and cogent reasons for the disparity. First, appellant was the commander-in-chief of the armed robbery — its motivator, solicitor, and initiator. Appellant directed the various physical attacks, including the aggravated assault which resulted in Sergeant LeVay’s death. Second, unlike Dennis Simoy, appellant was ready to kill an innocent bystander. Third, it would appear from the evidence that Dennis Simoy attacked a mere stranger; whereas, appellant directed the physical assault upon his own squadron mate and an Air Force civilian employee.

While it is undeniable that Dennis Simoy probably received an undeserved “windfall” from the fact that he was a civilian prosecuted at a time when the Federal capital sentencing scheme was in a state of uncertainty and flux, we find appellant’s sentence to death is appropriate. Cf. Hutchinson, 15 M.J. at 1068 (affirming accused’s death sentence for premeditated murder and felony murder although co-conspirator sentenced to 50 years confinement).

VII. OTHER ISSUES

Although we have individually considered each of his 53 assigned errors, the appellant’s remaining issues do not merit much discussion and do not warrant any relief.

A Death-Qualified Counsel

(Issues X XII)

Appellant argues he is entitled to representation by counsel “qualified for death penalty cases” under American Bar Association guidelines, and to “uninterrupted continuity of counsel unaffected by peacetime military personnel decisions.” The Court of Appeals for the Armed Forces has properly rejected the notion that trial and appellate defense counsel must be “death-qualified” in a capital case. Curtis, 44 M.J. at 126, 129-30; Loving, 41 M.J. at 300.

At trial, appellant had continuity of counsel who were statutorily qualified to represent him. See Article 27, UCMJ, 10 U.S.C. § 827. Moreover, the military judge fully advised appellant of his statutory rights to counsel, and appellant knowingly selected the team who defended him. See Article 38, UCMJ, 10 U.S.C. § 838; Curtis, 44 M.J. at 127. Before this Court, one primary military appellate counsel represented appellant. This counsel was not reassigned until after all briefs were filed, the case was orally argued, and appellant voluntarily released him.

B. Multiplicity

(Issue XI)

Appellant argues that Charges III (attempted murder of Sergeant Marquardt) and IV (robbery) are multiplicious — that is but one offense — for findings and sentencing with Charge II (felony murder of Sergeant LeVay), because they were part of one continuous course of conduct. However, at trial, defense counsel did not raise that issue and expressly declined any sentencing “instruction concerning multiplicity” when the military judge first broached the subject.

In United States v. Lloyd, 43 M.J. 886 (A.F.Ct.Crim.App.1995), we established a bright-line rule that multiplicity issues were-forfeited unless raised at trial. Here, however, we have more than a mere forfeiture. Defense counsel knowingly and intelligently waived any multiplicity issue after sufficiently discussing the topic with the judge. See United States v. Spears, 39 M.J. 823 (A.F.C.M.R.1994) and cases cited therein.

Even without forfeiture or waiver, it is clear to us that clubbing Sergeant LeVay to death, attempting to murder Sergeant Marquardt, and robbing Ms. Armour and Sergeant LeVay (as he lay dying) are totally discrete offenses — separate victims and separate in time — and are not multiplicious. See United States v. Wheeler, 40 M.J. 242 (C.M.A.1994); United States v. Hennis, 40 M.J. 865 (A.F.C.M.R.1994), pet. denied, 42 M.J. 210 (1995). Moreover, the MCM specifically recognizes that the underlying felony, in this case robbery, “may be charged separately from the homicide.” MCM, Part IV, H 43c(5)(b); see also United States v. Smith, 13 U.S.C.M.A. 553, 33 C.M.R. 85, 91, 1963 WL 4819 (1963) (felony murder and robbery separately charged). If offenses are separate for findings, they are separate for punishment. R.C.M. 1003(c)(1)(C); United States v. Morrison, 41 M.J. 482 (1995); United States v. Dolbow, 44 M.J. 814 (A.F.Ct. Crim.App.1996); United States v. Lenoir, 39 M.J. 751 (A.F.C.M.R.), pet. denied, 40 M.J. 276 (1994).

C. Other Evidentiary Rulings by the Milita'ry Judge

(Issues VII, XLI, XLIII, XLV, and XLVI)

Appellant attacks the judge’s decision denying a motion to suppress some of appellant’s pretrial statements, denying a motion in limine to exclude prior acts of uncharged misconduct, admitting out-of-court statements of non-testifying co-conspirators, admitting two death certificates of Sergeant LeVay, and excluding an Army regulation dealing with executions at the U.S. Disciplinary Barracks.

As discussed earlier, we will overturn an evidentiary ruling of the military judge only if there was an abuse of discretion. United, States v. Sullivan, 42 M.J. 360, 363 (1995); United States v. McLaren, 38 M.J. 112 (C.M.A.1993), cert, denied, 510 U.S. 1112, 114 S.Ct. 1056, 127 L.Ed.2d 377 (1994). We find no abuse of discretion in any of the military judge’s rulings on these issues. Furthermore, applying a de novo standard of review to the voluntariness of appellant’s confession, we find appellant freely, knowingly, and intelligently waived the presence of his counsel before making his statements to investigators on January 16, 1992. See Mil. R. Evid. 305(g)(1) (waiver of rights); United States v. LeMasters, 39 M.J. 490 (C.M.A. 1994) (waiver of notice to counsel); United States v. Vaughters, 42 M.J. 564, 566 (A.F.Ct. Crim.App.1995) (standard of review for confessions), aff'd, 44 M.J. 377 (1996).

. D. Precluding Guilty Pleas to “Felony” Offenses

(Issue IX)

The appellant alleges the military judge “improperly limited” his submission of mitigation and extenuation by not allowing him to plead guilty to conspiracy to commit robbery, attempted murder, and armed robbery. First of all, there is no constitutional right to plead guilty. United States v. Matthews, 16 M.J. at 362. Second, Congress has specified that an accused may not plead guilty to any offense for which the death penalty may be adjudged. Article 45(b), UCMJ, 10 U.S.C. § 845(b). An accused’s plea of guilty to offenses underlying a capital felony murder charge may in effect amount to a prohibited plea of guilty to the capital offense. See United States v. Dock, 28 M.J. 117 (C.M.A.1989).

By a plea of guilty to the three charges, appellant would have admitted a key element of the capital offense — that he was engaged in the perpetration of a robbery — leaving the government to prove only that Sgt. LeVay was dead, the death resulted from an act or omission of the appellant, and that the killing was unlawful. See MCM, Part IV, 1143b(4). It wouldn’t take a rocket scientist to establish the remaining three elements once appellant admitted by his guilty pleas that he was involved in, if not the mastermind for, the robbery conspiracy (Charge I); that he was involved in the attempted murder of Sergeant Marquardt (Charge III); and that he was, in fact, guilty of robbery from the murder victim and Ms. Armour (Charge IV).

The defense argued that the appellant could have pled guilty to Charges I, III and IV (and, of course, Charge V, desertion) and fully litigated Charge II, hiding the pleas of guilty from the members. We need not decide whether the appellant could have fully litigated the felony murder charge without impeaching his proposed pleas of guilty; frankly, we doubt that so many angels could’ve danced on the head of that pin. In any event, the clarity of 20/20 hindsight is not the standard we use in evaluating this issue. The military judge — who, at the appellant’s arraignment, knew much less about the facts of the case than everybody does now — determined that there was a substantial risk that Article 45(b) might be violated if he accepted pleas of guilty to anything but desertion (Charge V). He did not abuse his discretion.

E. Rulings on Miscellaneous Motions

(Issues II, IV, V, and VI)

We have carefully reviewed the rulings on appellant’s motions for appropriate relief attacking “the administration of capital cases” in general (and the referral of his own case as capital in particular). We won’t spend any more time discussing the constitutionality or legality of military capital sentencing rules which the Supreme Court and Court of Appeals for the Armed Forces resolved in the Loving and Curtis series of cases. The military judge noted that the “decision to refer the case to trial as a capital case [was] based on what the convening authority was provided” after the Article 32 investigation was completed. The military judge found that the convening authority did not abuse his discretion in referring the ease as capital. We agree.

Appellant also argues the judge erred in denying his broad motion to compel discovery. Appellant’s counsel asked to examine interview notes compiled by one of the Federal prosecutors assigned to Dennis Simoy’s case, and to interview the convening authority to determine the extent to which his discretion was influenced by extraneous matters. The military judge reviewed the interview notes in camera and denied discovery. The judge permitted defense counsel to interview the convening authority to determine if he was influenced by information in an investigative report submitted to him in addition to the Article 32 investigation. We find no abuse of discretion in the handling of these issues. See United States v. Charles, 40 M.J. 414 (C.M.A.1994); United States v. Branoff, 38 M.J. 98 (C.M.A.1993).

F. Argument, Instructions and Voting

(Issues XXIV, XXV, XXVI, XXVII, XXVIII, XXIX, XXX, XXXI, XXXII, XXXIII, and XLVII)

Appellant next complains about the wording and timing of some of the sentencing instructions, the form of the sentence worksheet, and the trial counsel’s sentencing argument. No objection was raised at trial; hence, any objection is forfeited absent plain error, which we do not find here. See R.C.M. 1001(g), 1005(f). Moreover, the Court of Appeals for the Armed Forces rejected nearly all of appellant’s instructional complaints in Loving and Curtis.

Appellant attacks the designation of the senior member of the court-martial panel as the “president” of the court, arguing that this procedure established “the senior member’s superiority in and control of the deliberation process.” See R.C.M. 502(b)(2). In making this attack on a procedure designated by the President and upheld through numerous changes to the MCM and UCMJ, the appellant points to no evidence of any undue or improper influence exerted by the president of his court on the other members. See Curtis, 44 M.J. at 150. This issue totally lacks merit.

G. Convening Authority Disqualification (Issues XVII and XLIV)

Appellant contends the convening authority was “disqualified” from taking action in this case because his wife and “his vice commander” attended memorial services with Sgt LeVay’s wife, an issue also raised in his discovery motion. As noted above, trial defense counsel had the opportunity to determine the extent to which the convening authority was subject to outside influences, even though the judge did not permit an interview concerning the memorial service. Counsel were apparently satisfied that the convening authority had no disqualifying involvement since they did not raise any objection at trial. Absent any evidence to the contrary, we presume the convening authority performed his duties in a proper manner. United States v. Moschella, 20 U.S.C.M.A. 543, 43 C.M.R. 383, 1971 WL 12804 (1971); United States v. Townsend, 12 M.J. 861 (A.F.C.M.R.1981).

In a different twist, appellant asserts the convening authority “did not understand the law and his options” regarding the detailing of enlisted court members to appellant’s court panel. The convening authority referred this case to trial after an Article 32, UCMJ, investigation and pretrial advice from his staff judge advocate under Article 34, UCMJ, 10 U.S.C. § 834. There is no evidence that the convening authority did not understand his duties. This assignment of error also totally lacks merit.

H. Staff Judge Advocate’s Recommendation

(Issues XLII and XLVIII)

Appellant alleges that the convening authority’s approval of total forfeitures of pay and allowances was a nullity because the staff judge advocate’s recommendation (SJAR) (see R.C.M. 1106) did not advise him that appellant was not receiving pay due to the expiration of the appellant’s enlistment. Furthermore, the appellant alleges that the SJAR was deficient because it failed to address the issue of “sentence comparison” between himself and his brother.

The amount of pay that appellant actually receives has no bearing on the legality of the sentence approved by the convening authority. If the appellant is entitled to payment, he will forfeit it — if he isn’t, he won’t. Regarding sentence comparison, R.C.M. 1106(d)(4) does not require the SJAR to specifically address that issue- — only to respond to the appellant if he addresses it, which the SJA did in his Addendum. See R.C.M. 1106(f)(7). In any event, we laid the sentence comparison issue to rest in Section VLB.

I. Miscellany

(Issues XIII, XIV, XV, XVI, XVIII, XIX, XX, XXI, XXII, XXXIV, XXXV, XXXVI, XXXIX, XLIX, LI, LII, LIII)

Our superior courts have resolved most of the remaining litany of issues adversely to appellant in Loving and Curtis, and we will briefly comment on those issues below. As to Issue XLVIII, we find no cumulative error prejudicing appellant. See United States v. Banks, 86 M.J. 150, 170-71 (C.M.A.1992) (brief discussion of cumulative error doctrine).

Appellant argues, broadly, that “court-martial procedures denied [him] his Article III right to a jury trial” (Issue XVI); his “Sixth Amendment right to a jury trial and an impartial cross-section of the community” (Issue XIX); and his “Fifth Amendment right to a grand jury presentment or indictment” (Issue XIV). These issues were resolved adversely to him in Curtis, 44 M.J. at 130-33.

He asserts the “death penalty sentencing standard requiring aggravating factors to ‘substantially outweigh’ extenuating and mitigating circumstances is unconstitutional; the only acceptable standard must be ‘beyond a reasonable doubt’ ” (Issue XXVIII). This argument was also resolved against him in Curtis, 44 M.J. at 159, and Loving, 41 M.J. at 278-79, 291.

Appellant contends that R.C.M. 1004 is unconstitutional under the Fifth and Eighth Amendments and violates Article 55, UCMJ, “by not requiring that sentencing procedures be more detailed and specific to allow a rational understanding by the military judge, convening authority, and appellate authorities as to the standards used by the panel” (Issue XXXIV). This allegation refers to the trial defense team’s failure to “force the members to delineate on the [Sentencing] Worksheet which mitigating factors were considered and which were rejected.” Assignment of Errors and Brief at 110. As in Curtis, 44 M.J. at 163, trial defense counsel was given an opportunity to comment on the sentencing worksheets (there were two in this case) and had no objection to either. In the absence of plain error — and there was none — the issue was forfeited.

Appellant argues the prosecution should not have been allowed to make a “Wither-spoon challenge after the convening authority exercise[d] his Article 25 statutory responsibility in detailing members” (Issue XX). See Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). He further argues that the “peremptory challenge procedure in the military justice system” is constitutionally defective “where the prosecutor is free to remove a member whose moral bias against the death penalty does not justify a challenge for cause, contrary to ... Morgan v. Illinois [504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992) ]” (Issues XXI and XXII). All of the issues appellant raises concerning peremptory challenges have been decided against him. See Curtis, 44 M.J. at 131-32.

Appellant next alleges that “R.C.M. 1004(c)(8)’s use as an aggravator was illegal, unconstitutional, and materially prejudicial” (Issue XXXIX). As discussed earlier, R.C.M. 1004(c)(8) provides for the death penalty for felony murder when the accused was a major participant who manifested a reckless indifference for human life. This provision was based directly on the Supreme Court’s decisions in Enmund v. Florida and Tison v. Arizona. See R.C.M. 1004(c)(8), Analysis. Therefore, its inclusion in the list of “aggravators” is “constitutional.” The real question is the factual call as to whether we find sufficient evidence to affirm the members’ determination that the prosecution proved this aggravating factor beyond a reasonable doubt. Article 66(c), UCMJ. We do. See our discussion in Part VI above. Moreover, as the Supreme Court pointed out in Tison, “The reckless indifference to the value of human life may be so shocking to the moral sense as an ‘intent to kill.’ ” 481 U.S. at 157,107 S.Ct. at 1688.

Appellant alleges that the requirement in the UCMJ for capital cases to be tried before members — never judge alone— violates due process (Issue XIII). See Article 18, UCMJ, 10 U.S.C. § 818; R.C.M. 201(f)(1)(C). Further, he alleges that the statutory exclusion from the court panel of enlisted members from the appellant’s own unit “injects an improper criterion (enlisted status) in selecting the members pool” (Issue XV). See Article 25(c)(1), UCMJ, 10 U.S.C. § 825(c)(1). The Court of Appeals for the Armed Forces has considered and rejected both of these arguments. See Curtis, 44 M.J. at 130.

Appellant argues that “the Fifth, Sixth, and Eighth Amendments do not permit, in peacetime, a convening authority to handpick military subordinates ... as members to decide a capital case” when there is concurrent jurisdiction with the Federal courts (Issue XVIII). The Curtis court heard and rejected this argument. Curtis, 44 M.J. at 130-32.

As for the appellate process in general, appellant asserts this Court must unanimously agree on both findings of guilt and the sentence of death and must apply the policy of in favorem vitae (Issue XXXVI). As noted in Loving, 41 M.J. at 266, and Curtis, 44 M.J. at 165, the Supreme Court has rejected the policy of an in favorem vitae (“in favor of life”) approach to appellate review of capital cases (citing Smith v. Murray, 477 U.S. 527, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986)). Appellant cites no other authority for a requirement for unanimous affirmation of his findings and sentence, and we find none.

He further argues that this Court has a “supervisory role in ensuring that counsel are qualified in training and experience to defend a capital ease” (Issue XXXV). This issue was rejected in Loving, 41 M.J. at 300. Parenthetically, we have previously noted (see Section II) that appellant’s counsel were qualified to try this case.

Finally, the three supplemental issues (Issues LI, LII, and LIII) — identified by the appellant as “Loving issues” — have been resolved adversely to him by the Supreme Court and the Court of Appeals for the Armed Forces.

VIII. CONCLUSION

Death sentence cases in the military involve lengthy trials, double-digit issues asserted on drawn-out appeals which always include claims that the defense lawyer was incompetent and the death sentence too harsh for murdering another. This case is no different. Having individually read every page in the record of trial and considered the briefs, we are convinced appellant received an extraordinarily fair trial and the death sentence is appropriate in this case. Accordingly, the findings and sentence are

AFFIRMED.

Senior Judge SCHREIER and Judges GAMBOA, STARR, and SENANDER concur.