United States v. Lloyd , 2010 CAAF LEXIS 540 ( 2010 )

UNITED STATES, Appellee
v.
Stephen A. LLOYD, Senior Airman
U.S. Air Force, Appellant
No. 09-0755
Crim. App. No. 37220
United States Court of Appeals for the Armed Forces
Argued April 6, 2010
Decided June 24, 2010
ERDMANN, J., delivered the opinion of the court, in which STUCKY
and RYAN, JJ., joined. EFFRON, C.J., filed a separate
dissenting opinion in which BAKER, J., joined.
Counsel
For Appellant: Captain Reggie D. Yager (argued); Colonel James
B. Roan, and Major Shannon A. Bennett (on brief); Captain
Tiffany M. Wagner.
For Appellee: Captain Charles G. Warren (argued); Colonel
Douglas P. Cordova, Lieutenant Colonel Jeremy S. Weber, and
Gerald R. Bruce, Esq. (on brief).
Military Judge: Maura T. McGowan
This opinion is subject to revision before final publication.
United States v. Lloyd, No. 09-0755/AF
Judge ERDMANN delivered the opinion of the court.
A panel of officers sitting as a general court-martial
convicted Senior Airman (SrA) Stephen A. Lloyd of three
specifications of assault with a dangerous weapon. Lloyd was
sentenced to confinement for one year, reduction to E-1, a bad-
conduct discharge, and a reprimand. The convening authority
approved the adjudged sentence and the United States Air Force
Court of Criminal Appeals affirmed the findings and sentence.
United States v. Lloyd, No. ACM 37220, 2009 WL 1508442, at *3
(A.F. Ct. Crim. App. May 29, 2009) (unpublished).
“An accused is entitled to an expert’s assistance before
trial to aid in the preparation of his defense upon a
demonstration of necessity.” United States v. Bresnahan, 62
M.J. 137, 143 (C.A.A.F. 2005). We granted review in this case
to determine whether the military judge abused her discretion
when she denied Lloyd’s request for the assistance of a blood
spatter expert.1 We hold that the military judge did not abuse
her discretion and affirm the Court of Criminal Appeals.
1
We granted review of the following issue:
Whether the Military Judge abused her discretion when
she denied the defense request for an expert
consultant in the field of blood spatter.
2
United States v. Lloyd, No. 09-0755/AF
BACKGROUND
The charges in this case arose from a bar fight that pitted
SrA Lloyd and his civilian friend, James, against three other
airmen, Jance, Gee, and Soto.2 When the fight was over, Jance,
Gee, and Soto had been stabbed. The question of who stabbed the
three airmen was the central issue at Lloyd’s court-martial.
Lloyd did not testify at his court-martial and the
individuals who did testify gave differing accounts as to how
the fight started. Airman Jance testified that he, Soto, and
Gee were at a bar in Great Falls, Montana, one evening when the
man he identified as Lloyd’s friend James brushed past Airman
Soto and gave Soto the “evil eye.” Jance gave James “the
finger” in response. In contrast to Jance’s testimony, James
simply testified that he and Lloyd were socializing at the bar
when he noticed a man, identified at trial as Jance, about
twenty feet away giving him the middle finger gesture. Unsure
of whether Jance was gesturing to him, James pointed to himself
in a nonverbal attempt to ask if the man was targeting him.
Jance indicated that he was indeed directing the gesture to
James.
United States v. Lloyd, 68 M.J. 413 (C.A.A.F. 2009) (order
granting review).
2
James’s stepfather was an Air Force member and James lived with
his stepfather and mother on Malmstrom Air Force Base, Montana,
where Lloyd was also stationed. Airmen Jance, Gee, and Soto
were also stationed at Malmstrom.
3
United States v. Lloyd, No. 09-0755/AF
James testified that he took several steps through the
crowded bar towards Jance and when he was about seven feet from
him, he asked Jance if he knew him. In response Jance asked
James “why are you ‘mean mugging’ my friend?” James testified
that he did not know what the man was talking about. Jance
repeated the statement and cursed at James. James testified
that Jance then “grinded his face” against him and struck him
with his forehead.
According to Jance, however, James started the fight when
he walked over to Jance, said “F— you,” and “head butted” him.
Jance then “head butted” James and the fight was on. James
punched Jance on the side of his face and as Jance fell to the
ground, James was tackled by Airman Gee. The three of them then
scuffled on the floor. James testified that during the fight he
could not see any of his surroundings and he assumed that Lloyd
was still in another area of the bar.
The third airman with Jance and Gee that night, Airman
Soto, testified that when Gee tackled James, Lloyd walked
towards the three men but before he could engage in the fight,
Soto grabbed Lloyd “from behind and threw him on the floor.”
Soto continued to hit Lloyd and testified that Lloyd seemed to
be hitting him on his side. All participants were on the floor
at this point and the two groups of fighters were no more than
two to three feet apart.
4
United States v. Lloyd, No. 09-0755/AF
The fight was broken up by the bouncers and the men were
thrown out of the bar. Once outside, the three airmen realized
they had each been stabbed and employees of the bar drove them
to the hospital. None of the three realized during the fight
that they had been stabbed and none of them saw a knife during
the fight. James testified that once he and Lloyd were in
Lloyd’s car, Lloyd told him, “I stabbed those guys.” James and
Lloyd initially went to Lloyd’s home. James testified that he
watched Lloyd wash blood off of a knife that Lloyd had been
carrying that evening.3 It was then that James noticed that his
own clothes were covered with a “fair amount” of blood although
he had not been cut. James testified that his shirt was
“[f]airly saturated” and his jeans were soaked in blood. James
threw his shirt away in a dumpster outside Lloyd’s apartment.
The two then went to James’s house where Lloyd took off the
shirt he was wearing and left it in James’s parents’ basement.
After hearing a report on the local news that the police
were looking for suspects in the stabbing, James testified that
he called the Great Falls Police Department to report the
incident. Special Agent (SA) Travis Williamson was the lead
agent from the Air Force Office of Special Investigations
(AFOSI) for the investigation. Williamson had responded to the
hospital and interviewed the victims and later interviewed James
3
No knife was ever recovered.
5
United States v. Lloyd, No. 09-0755/AF
at his stepfather’s home. While at James’s home, SA Williamson
seized a dark, long-sleeved shirt that James said Lloyd was
wearing during the fight to determine whether there was blood on
it.4 He also seized a pair of jeans that James said he wore
during the fight.
In February 2007, seven months before charges were
preferred against Lloyd, the seized clothing was sent to the
United States Army Criminal Investigation Laboratory (USACIL)
for DNA comparison testing. In order to conduct the DNA
testing, the lead biologist at the lab took five cuttings from
the shirt. The test results revealed that Lloyd’s shirt had
eight blood stains, all of which contained Jance’s DNA. While
James’s jeans had one blood stain, there was no DNA match with
any of the victims’ blood.
The charge and its specifications were referred on October
31, 2007. On January 28, 2008, Lloyd’s defense counsel filed a
request for expert assistance in the form of a blood spatter
expert with the convening authority. After the convening
authority denied the request, defense counsel renewed their
request in a motion to the military judge. In the motion
defense counsel argued:
15. A forensic scientist is relevant and necessary
because the government intends to present testing
results on DNA as evidence of guilt. It is
4
When asked if there were blood specks on the shirt, SA
Williamson testified that it was “[d]iscolor[ed].”
6
United States v. Lloyd, No. 09-0755/AF
anticipated that the government’s expert witness will
discuss the location of the blood on the shirt and who
matched the DNA contained on the shirt. DNA analysis
can only confirm that genetic makeup of physical
evidence, not how it came to be on the evidence
seized. As a result of that presentation of evidence,
the defense is free to explore theories of the case
that the government may not be pursuing as it pertains
to this relevant physical evidence. That would
include exploring all possibilities as to how the
blood came to be on the shirt that SrA Lloyd was
wearing at the time of the altercation. There are no
witnesses in this case who can testify to seeing SrA
Lloyd stab anyone. The case hinges upon an alleged
confession to an interested party and on blood
evidence on SrA Lloyd’s clothing. The consultant
currently provided to the defense is not qualified to
provide information or testify as to bloodstain
spatters. . . .
16. To the extent that SrA Lloyd was apparently in
the proximity of the area where the altercation
occurred, the defense must understand and potentially
present expert testimony on the manner in which blood
spatters from a stab wound. Depending on a number of
factors which the defense intends to pursue through an
expert, blood may spatter a significant distance from
a stab wound. For this reason, presence of an alleged
victim’s blood on the clothing may be far less
significant than intuition, or even theories the
government intends to explore, suggests. To mount an
effective defense, the defense must understand the
physics of bloodstain patterns to either rule out or
present such a theory. This is crucial to testing the
government’s theory of the case and for the
presentation of evidence on behalf of SrA Lloyd.
Neither member of the defense has the requisite
training or experience to understand this complex
field without the assistance of an expert.
The Government responded that the defense failed to
articulate a real probability that their requested expert would
be of assistance and failed to meet the three-pronged Gonzalez
test for expert assistance. The military judge denied the
7
United States v. Lloyd, No. 09-0755/AF
defense motion, concluding, “the defense has not shown the
requisite ‘reasonable probability’ that an expert in blood
spatter would be of meaningful assistance to the Defense as
opposed to a ‘mere possibility.’” The military judge went on to
say “[n]otwithstanding that the Defense may have met the second
and third prong of Gonzalez this Court determines that a blood
spatter expert’s assistance is not ‘needed’ as intended by
Gonzalez, supra.”5
At trial the Government presented testimony from James,
Jance, Gee, and Soto. James, Gee, and Soto testified under a
grant of immunity. The defense case included testimony from a
woman who witnessed the fight and who claimed that she had seen
a person matching James’s description making a stabbing motion
towards Jance but did not see a knife. The Government attacked
the credibility of this witness on cross-examination by raising
the fact that her testimony was different from the statement she
gave police the day after the incident. The defense also
presented testimony from an acquaintance of James and from
James’s former stepfather, with whom James had lived for sixteen
years, each of whom characterized James as untruthful. The
defense also presented favorable witness testimony to show
5
There was no oral argument on the motion and although the
record suggests that there may have been some discussion of the
motion in a pretrial Rule for Courts-Martial (R.C.M.) 802
conference, there is no transcript of that discussion. Our
8
United States v. Lloyd, No. 09-0755/AF
Lloyd’s character for peacefulness and submitted thirty
character letters.
The USACIL lab results were admitted into evidence through
the stipulated testimony of Deborah Haller, lead biologist at
USACIL. Ms. Haller’s testimony explained that samples taken
from the shirt worn by Lloyd on the evening of the attack
matched the blood of Airman Jance. Her tests also indicated the
presence of blood on the jeans worn by James but the blood did
not match that of any of the victims. Haller’s stipulated
testimony also stated:
The analysis of DNA and the blood stains on the
physical evidence only confirms the physical presence
of the sample and who it belonged to. It does not
explain how the blood got on the shirt or what caused
the presence of the blood. The presence of blood on
SrA Lloyd’s shirt only indicates that he was in
proximity to the individual, SrA Jance, who the blood
came from. If the shirt had been analyzed by a blood
stain pattern expert prior to collecting cuttings and
swabbings for DNA analysis, such an expert may have
been able to draw conclusions about the nature of how
the blood came to be on the shirt, whether it was
smeared, dripped, or was airborne and possibly the
distance that it traveled.
DISCUSSION
A military judge’s ruling on a request for expert
assistance is reviewed for an abuse of discretion. Bresnahan,
62 M.J. at 143. “An abuse of discretion occurs when the trial
court’s findings of fact are clearly erroneous or if the court’s
review is therefore constrained to the arguments made by the
defense in their written motion.
9
United States v. Lloyd, No. 09-0755/AF
decision is influenced by an erroneous view of the law.” United
States v. Freeman, 65 M.J. 451, 453 (C.A.A.F. 2008). “The abuse
of discretion standard is a strict one, calling for more than a
mere difference of opinion. The challenged action must be
‘arbitrary, fanciful, clearly unreasonable,’ or ‘clearly
erroneous.’” United States v. McElhaney, 54 M.J. 120, 130
(C.A.A.F. 2000) (quoting United States v. Miller, 46 M.J. 63, 65
(C.A.A.F. 1997); United States v. Travers, 25 M.J. 61, 62
(C.M.A. 1987)).
“An accused is entitled to expert assistance provided by
the Government if he can demonstrate necessity.” United States
v. Gunkle, 55 M.J. 26, 31 (C.A.A.F. 2001). “[T]he accused has
the burden of establishing that a reasonable probability exists
that (1) an expert would be of assistance to the defense and (2)
that denial of expert assistance would result in a fundamentally
unfair trial.” Freeman, 65 M.J. at 458. In order to satisfy
the first prong of this test, this court applies the three-part
analysis set forth in United States v. Gonzalez, 39 M.J. 459,
461 (C.M.A. 1994). The defense must show (1) why the expert is
necessary; (2) what the expert would accomplish for the accused;
and (3) why defense counsel is unable to gather and present the
evidence that the expert would be able to develop. Id.In her ruling on the defense motion for expert assistance,
the military judge concluded “[n]othwithstanding that the
10
United States v. Lloyd, No. 09-0755/AF
Defense may have met the second and third prong of Gonzalez this
Court determines that a blood spatter expert’s assistance is not
‘needed’ as intended by Gonzalez, supra.” The Court of Criminal
Appeals agreed, holding that “trial defense counsel failed to
make the requisite showing of necessity.” Lloyd, 2009 WL
1508442, at *2. For purposes of this appeal, we will assume
without deciding that the defense met its burden under prongs
two and three of the Gonzalez test and review that portion of
the military judge’s ruling which found the defense did not
establish that the expert consultant was necessary.
In the motion for blood spatter expert assistance, defense
counsel noted that the Government was likely to present an
expert witness to testify about the DNA analysis performed on
Lloyd’s shirt and the defense needed to present testimony from
their expert about how the blood came to be on Lloyd’s shirt.6
The defense argued that a blood spatter expert was necessary to
“explor[e] all possibilities as to how the blood came to be on
the shirt that SrA Lloyd was wearing at the time of the
altercation.”
The defense’s stated desire to “explor[e] all
possibilities,” however, does not satisfy the requisite showing
of necessity. The defense has the burden to show that there is
6
While the defense was provided with a DNA expert, they did not
challenge the DNA testimony.
11
United States v. Lloyd, No. 09-0755/AF
more than the “mere possibility of assistance from a requested
expert.” Bresnahan, 62 M.J. at 143 (emphasis added) (citation
and quotation marks omitted). The defense must show a
“reasonable probability” the expert would assist the defense and
that denial of the expert would result in an unfair trial. Id.(emphasis added).
Before the military judge the defense also argued that they
needed to “understand and potentially present expert testimony
on the manner in which blood spatters from a wound” and
“[d]epending on a number of factors which the defense intends to
pursue through an expert, blood may spatter a significant
distance from a stab wound.” The defense suggested that expert
assistance on the physics of bloodstain patterns would allow
them to “either rule out or present” a theory about the presence
of the alleged victim’s blood on Lloyd’s clothing. However, the
defense did not specify what “theory” they sought to present.
Absent a more precise explanation of the theory they hoped to
pursue through the assistance of a blood spatter expert, we
cannot find that the military judge abused her discretion when
she denied the defense motion for expert assistance.
This situation is clearly distinguishable from United
States v. McAllister (McAllister I), 55 M.J. 270, 276 (C.A.A.F.
2001), where we found that the military judge abused her
discretion in denying expert assistance in a case where DNA
12
United States v. Lloyd, No. 09-0755/AF
analysis was the “linchpin” of the government’s case. In
McAllister I the convening authority had already approved a DNA
expert requested by the defense, but that expert, who
specialized in medical genetics, subsequently recommended that a
forensic DNA expert experienced in Polymerase Chain Reaction
(PCR) testing be substituted. Id. at 273. The military judge
refused to allow the substitution even though it would not have
incurred any increased cost to the government. Id. at 275.
After finding that the military judge abused her discretion in
denying the new expert, we remanded the case to the Court of
Criminal Appeals for additional factfinding as to possible
prejudice.7 Id. at 277. Due to the different factual
circumstances, particularly the fact that the evidence at issue
7
Following remand the Court of Criminal Appeals ordered a
factfinding hearing under the authority of United States v.
DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967), to determine whether
the new evidence would have changed the result of the initial
trial. United States v. McAllister (McAllister II), No. ARMY
9601134, 2003 CCA LEXIS 440, at *26 (A. Ct. Crim. App. Dec. 9,
2003) (memorandum opinion on remand). The DuBay judge found
that the new evidence would not have changed the member’s
findings and the Court of Criminal Appeals affirmed that
determination. United States v. McAllister (McAllister III),
No. ARMY 9601134, 2005 CCA LEXIS 561, at *31 (A. Ct. Crim. App.
Oct. 28, 2005) (memorandum opinion on remand). McAllister then
appealed to this court a second time arguing that the military
judge and the Court of Criminal Appeals erred in finding that
the error was harmless. Finding that the error was not harmless
beyond a reasonable doubt we reversed the Court of Criminal
Appeals. United States v. McAllister (McAllister IV), 64 M.J.
248, 253 (C.A.A.F. 2007). In his brief, Lloyd relied on
McAllister IV, but that case dealt with the issue of prejudice,
not whether the military judge erred in denying expert
assistance, which was addressed in McAllister I.
13
United States v. Lloyd, No. 09-0755/AF
implicated the “linchpin” of the government’s case, McAllister I
lends little support for Lloyd’s position.
In their brief and at oral arguments before this court,
appellate defense counsel presented several new and more
detailed arguments in support of the expert assistance sought by
the defense at trial. Specifically, defense counsel argued that
without the testimony of a blood spatter expert, trial defense
counsel did not know whether it was necessary to file a motion
to suppress the evidence of Lloyd’s shirt based on the fact that
the Government failed to preserve it when the USACIL biologist
cut it up for DNA analysis prior to Lloyd’s court-martial.
Appellate defense counsel also argued that the expert’s
analysis may have established that James was the stabber or may
have exonerated Lloyd by explaining the lack of blood spatter on
the sleeves of his long-sleeved shirt. According to the
appellate defense counsel, “the expert could have offered a
favorable opinion that, based on the locations of the wounds,
clothing each was wearing, and patterns of blood stains, the
blood on Appellant’s shirt was consistent with Appellant being
in the vicinity of the stabbing rather than being responsible
for the stabbing.”
These appellate arguments are somewhat more compelling than
those presented at trial and had they been explicitly presented
to the military judge, they may have persuaded her that a blood
14
United States v. Lloyd, No. 09-0755/AF
spatter expert was necessary. In reviewing a military judge’s
ruling for abuse of discretion, however, we review the record
material before the military judge. We find that the military
judge did not abuse her discretion by failing to adopt a theory
that was not presented in the motion at the trial level. See
generally United States v. Palmer, 55 M.J. 205, 207-08 (C.A.A.F.
2001) (“If defense counsel had two theories of admissibility, it
was incumbent on him to alert the military judge to both
theories. . . .”). This is consistent with the general rule
that a legal theory not presented at trial may not be raised for
the first time on appeal absent exigent circumstances. United
States v. Bowers, 3 C.M.A. 615, 619, 14 C.M.R. 33, 37 (1954)
(citations omitted). Indeed, at oral argument appellate defense
counsel conceded that the defense motion for expert assistance
“could have been more articulate.”
CONCLUSION
The military judge did not abuse her discretion when she
denied the defense motion for expert assistance in the form of a
blood spatter expert. The decision of the United States Air
Force Court of Criminal Appeals is affirmed.
15
United States v. Lloyd, No. 09-0755/AF
EFFRON, Chief Judge, with whom BAKER, Judge, joins
(dissenting):
Appellant made a specific request for expert assistance
necessary for his defense on a central issue in a closely
contested case. The military judge erred in denying the defense
the equal opportunity to obtain evidence and witnesses
guaranteed by Article 46 of the Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 846 (2006). For the reasons set forth
below, I respectfully dissent from the majority opinion’s
decision to affirm the findings and sentence.
The charges against Appellant arose from a barroom
altercation. During the evening of the incident, Appellant’s
civilian acquaintance, Stafford Joseph James Jr., initiated the
altercation by confronting Airman Jance about a perceived
insult. The confrontation degenerated into a fight between
James and Jance. Airman Gee joined Airman Jance in the fight
with James.
Up to that point, Appellant had not been involved in the
altercation. Eventually Appellant walked toward the fighters,
and was intercepted by Airman Soto, who threw Appellant to the
floor, and a fight ensued. All the fighters were in close
proximity.
After a brief period, roughly fifteen seconds, the bar’s
bouncers broke up the fight. Appellant and James left through
United States v. Lloyd, No. 09-0755/AF
one door, while Airmen Jance, Gee, and Soto left through a
separate door. Outside the bar, the three airmen noticed that
they had been stabbed.
Who inflicted the wounds on the three Airmen? Was it
Appellant, or was it his civilian acquaintance, Stafford Joseph
James? The three victims stated that they did not feel stab
wounds during the fight, and they had not seen a knife during
the fight. None of the witnesses to the incident saw a knife,
and no knife has been recovered. Only one of the three --
Airman Soto -- recalled being touched by Appellant. Two of the
three -- Airman Jance and Airman Gee -- recalled fighting with
James, but did not recall seeing Appellant. A person who
witnessed the fight recalled seeing an individual wearing the
same attire as James making stabbing motions toward Airman Jance
during the fight.
Stafford Joseph James, the person who initiated the
altercation, became the primary source of evidence against
Appellant. When James heard on the news that the local police
were looking for suspects in the incident, James called the
police department to report that Appellant was the perpetrator.
According to James, Appellant told James about the stabbings
after the incident. The police obtained a shirt that James
identified as having been worn by Appellant during the fight. A
subsequent DNA analysis of the shirt provided by James
2
United States v. Lloyd, No. 09-0755/AF
identified a match to Airman Jance’s blood. James stated that
his own shirt was “fairly saturated” with blood, but that he
threw it away, and it was never tested for a DNA match with the
victims’ blood. James also provided the police with a pair of
pants, stating that he wore the pants during the fight.
Subsequent testing identified a single spot of blood on the
pants, but the blood did not match the DNA of any of the
victims. Later, James would testify at trial that his pants
were soaked in blood through to his boxers, which raised
questions at trial as to whether the pants he provided to the
police, with the single spot of blood, were in fact the pants
that he wore during the fight.
The investigation led to charges that Appellant had stabbed
the three Airmen with a knife. From the outset, the defense
sought expert assistance to address the central question raised
by the charges -- who inflicted the knife wounds? In the
military justice system, the prosecution and the defense “shall
have equal opportunity to obtain witnesses and evidence.” Rule
for Courts-Martial (R.C.M.) 703(a); see Article 46, UCMJ. Prior
to trial, the defense counsel asked the convening authority to
appoint a blood spatter expert to provide assistance to the
defense. See R.C.M. 703(d). The convening authority denied the
request.
3
United States v. Lloyd, No. 09-0755/AF
At trial, the defense moved that the military judge approve
the appointment of a blood spatter expert to assist the defense.
The defense motion noted that the Government planned to present
the results of DNA testing to show the genetic identity of blood
on Appellant’s shirt. The defense emphasized the difference
between identification of genetic identity and explanation of
the cause of blood spattering on the shirt:
DNA analysis can only confirm that genetic makeup of
physical evidence, not how it came to be on the evidence
seized. . . . [T]he defense is free to explore theories of
the case that the government may not be pursuing . . .
[and] explor[e] all possibilities as to how the blood came
to be on the shirt that SrA Lloyd [Appellant] was wearing
at the time of the altercation.
The defense explained why the DNA expert provided by the
Government would not suffice with respect to identifying the
circumstances that led to the bloodstain on Appellant’s shirt:
There are no witnesses in this case who can testify to
seeing SrA Lloyd stab anyone. The case hinges upon an
alleged confession to an interested party and on blood
evidence on SrA Lloyd’s clothing. The [DNA] consultant
currently provided to the defense is not qualified to
provide information or testify as to bloodstain patterns.
The defense also explained the specific, highly relevant
analysis that could be provided by a blood spatter expert:
[T]he defense must understand and potentially present
expert testimony on the manner in which blood spatters from
a stab wound. . . . [B]lood may spatter a significant
distance from a stab wound. . . . To mount an effective
defense, the defense must understand the physics of
bloodstain patterns to either rule out or present such a
theory.
4
United States v. Lloyd, No. 09-0755/AF
The military judge denied the motion, concluding that the
defense had shown only a “mere possibility” that an expert would
provide meaningful assistance, which fell short of the
requirement to show a “reasonable probability” of necessity
under United States v. Gonzalez, 39 M.J. 459, 461 (C.M.A. 1994).
United States v. Bresnahan, 62 M.J. 137, 143 (C.A.A.F. 2005).
The case then proceeded to trial. The defense presented the
theory that the bloodstain on the shirt did not prove that
Appellant caused the bleeding, but was forced to do so without
expert testimony regarding the potential reasons for the blood
spatter on his shirt.
The majority opinion would affirm on the ground that the
defense motion established only a “mere possibility” that an
expert was necessary. United States v. Lloyd, __ M.J. __ (12)
(C.A.A.F. 2010). I respectfully disagree. The defense’s motion
explained the need for an expert in clear and compelling terms:
(1) no witnesses saw the Appellant stab anyone; (2) the primary
evidence against Appellant consisted of statements by a person,
Stafford Joseph James, interested in the outcome of the
investigation; (3) the expected DNA testimony, and the DNA
expert provided to the defense, could only establish the genetic
source of the bloodstain on Appellant’s shirt and could not
explain the physics of what may have caused the blood to spatter
on the shirt; and (4) expert assistance would enable the defense
5
United States v. Lloyd, No. 09-0755/AF
to determine whether expert testimony would be available to
explain that the bloodstain could have been caused by a wound
producing a spatter emanating a significant distance from
Appellant’s location in the altercation. The facts proffered in
the defense motion demonstrated that a “reasonable probability
exist[ed] ‘both that an expert would be of assistance to the
defense and that denial of expert assistance would result in a
fundamentally unfair trial.’” Bresnahan, 62 M.J. at 143(quoting Gunkle, 55 M.J. at 26, 31 (C.A.A.F. 2001)).
Who stabbed the three airmen? No one saw any stabbing. No
one saw a knife. None of the victims felt any stabbing during
the altercation. Was it Stafford Joseph James, the person who
started the altercation, fought with two of the victims,
destroyed his own blood-soaked shirt before it could be tested,
whose pants did not match his previous testimony and had no
blood from the altercation on him, did nothing to report the
incident until he heard about the police investigation, and then
immediately placed the blame on Appellant? Or was it Appellant,
who belatedly entered the altercation, was identified as being
in a fight with only one victim, and whose admissions were
attributable to Stafford Joseph James?
The responsibility for sorting out the facts rested with
the court-martial panel. The opportunity to present evidence
raising reasonable doubt about the Government’s case rested with
6
United States v. Lloyd, No. 09-0755/AF
the defense. The opportunity for the defense to determine
whether such evidence exists in the form of expert testimony is
guaranteed by Article 46, UCMJ, and R.C.M. 703. In this case,
the convening authority erred in denying Appellant the
opportunity to obtain such assistance, and the military judge
erred in denying the defense motion for such assistance. As a
result, the defense was compelled to rely on arguments by
counsel drawing inferences from lay testimony without the
benefit of scientific evidence regarding the blood spatter
patterns. In a close case, the defense was denied the
opportunity to explore the potential for expert testimony on the
critical issue of guilt or innocence. See Gunkle, 55 M.J. at
32. I would set aside the findings and sentence and order
further proceedings to ascertain whether Appellant was
prejudiced by the failure to provide the requisite expert
assistance. See United States v. McAllister, 55 M.J. 270, 276
(C.A.A.F. 2001).
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