United States v. Master Sergeant TIMOTHY B. HENNIS

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before the Court Sitting En Banc 1
UNITED STATES, Appellee
v.
Master Sergeant TIMOTHY B. HENNIS,
United States Army, Appellant
ARMY 20100304
Headquarters, XVIII Airborne Corps and Fort Bragg
Patrick J. Parrish, Military Judge
Colonel Thomas E. Ayres, Staff Judge Advocate (pretrial)
Colonel Lorianne M. Campanella, Acting Staff Judge Advocate (recommendation)
Colonel Paul S. Wilson, Staff Judge Advocate (addendum)
For Appellant: Lieutenant Colonel Jonathan F. Potter, JA; Captain Ryan T. Yoder,
JA (argued) 2; Lieutenant Colonel Jonathan F. Potter, JA; Captain Michael J. Millios,
JA (on brief); Lieutenant Colonel Jonathan F. Potter, JA; Captain Ryan T. Yoder, JA
(on brief in response to specified issues and on reply brief in response to specified
issues); Lieutenant Colonel Jonathan F. Potter, JA; Captain Ryan T. Yoder, JA (on
reply brief).
For Appellee: Captain Jihan Walker, JA; Captain Carling M. Dunham, JA (argued);
Major A.G. Courie III, JA; Major Janae M. Lepir, JA; Captain Carrie L. Ward, JA
(on brief); Colonel Mark H. Sydenham, JA; Major A.G. Courie, III, JA; Captain
Jihan Walker, JA (on brief in response to specified issues).
6 October 2016
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OPINION OF THE COURT
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PENLAND, Judge:
1
Chief Judge RISCH, Senior Judge MULLIGAN, Senior Judge CAMPANELLA,
Judge FEBBO, Judge CELTNIEKS, and Judge WOLFE are taking no part in this
case as a result of their disqualifications.
2
The court heard oral argument on 5 May 2016. At that time, Chief Judge WILSON
and Senior Judge HAIGHT were members of this court; however, they took no part
in this case as a result of their disqualifications.
HENNIS—ARMY 20100304
A general court-martial with enlisted representation found appellant guilty,
contrary to his pleas, of three specifications of premeditated murder, in violation of
Article 118, Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. § 918
(1956). The panel sentenced appellant to death, a dishonorable discharge, forfeiture
of all pay and allowances, and reduction to E-1. We review this case under Article
66, UCMJ.
Appellant has assigned forty-nine errors, some of which we discuss in detail,
none of which merit relief. We have also reviewed the matters personally raised by
appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and
they are without merit. We specified and discuss three additional issues, none of
which merit relief.
BACKGROUND
The case stems from a triple homicide in Fayetteville, North Carolina,
occurring during the hours of darkness between 9 and 10 May 1985. The oldest
victim, Mrs. KE, was married to Air Force Captain GE, who was assigned to nearby
Pope Air Force Base, but, at the time of the murders, was away on temporary duty at
Maxwell Air Force Base, Alabama. Their five-year-old daughter, Miss KE, and
three-year-old daughter, Miss EE, were also murdered. Their sole surviving child,
Miss JE, was left in her baby crib and discovered on 12 May 1985 by a law
enforcement officer responding to a neighbor’s report of hearing Miss JE’s cries
from within the house. Mrs. KE’s body was partially naked and her wrists bore
ligature marks; her underwear had been cut from her body and was discovered along
with her jeans on the living room floor among other evidence of a struggle. All
victims died from multiple stab wounds and cuts to their necks; Miss EE was nearly
decapitated. The autopsy of Mrs. KE’s body revealed multiple intact spermatozoa in
her vagina.
A jury convicted appellant and sentenced him to death for the murders in a
1986 North Carolina state trial. On appeal, the Supreme Court of North Carolina
ordered a new trial, concluding the prosecution had used excessively “gruesome”
photos of the victims in obtaining the conviction. State v. Hennis, 323 N.C. 279,
372 S.E.2d 523 (1988). A jury acquitted appellant in his second state trial in 1989.
Appellant resumed full active duty status, received service credit for his civilian
confinement, and retired as a Master Sergeant (MSG) from the Regular Army in
2004.
Post-1989 advances in deoxyribonucleic acid (DNA) analysis enabled state
and military law enforcement agencies to subsequently test the recovered
spermatozoa for the presence of DNA. Multiple tests, results of which were
ultimately admitted into evidence at appellant’s court-martial, established the near-
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HENNIS—ARMY 20100304
statistical certainty that appellant produced the sperm recovered from Mrs. KE’s
body.
With this new discovery, the convening authority sent a 29 June 2006
memorandum to the Assistant Secretary of the Army (Manpower and Reserve
Affairs) (ASA (M&RA)), requesting “approval to order [appellant] to active duty in
order to facilitate courts-martial action.” In response, the acting ASA (M&RA)
issued a memorandum, with the subject “Involuntary Order to Active Duty.” In
pertinent part, it stated: “Under the provisions of Article 2(a)(4), Uniform Code of
Military Justice, 10 U.S.C. § 688, and Army Regulation (AR) 27-10, [Legal
Services: Military Justice] paragraph 5-2(b)(3), I hereby order Master Sergeant
(Ret.) Timothy B. Hennis to active duty.”
Implementing the ASA (M&RA)’s decision and order, the Army’s Human
Resources Command issued a 14 September 2006 order, noting appellant’s retention
on active duty and directing him to report to Headquarters, XVIII Airborne Corps, in
October 2006. Appellant complied and remained on active duty with that unit
through his court-martial.
ASSIGNMENTS OF ERROR 3 AND SPECIFIED ISSUES
I. WHETHER THE ARMY’S PROSECUTION OF
MASTER SERGEANT HENNIS AT THE STATE OF
NORTH CAROLINA’S REQUEST VIOLATES THE
PROHIBITION AGAINST DOUBLE JEOPARDY AND
THE DUE PROCESS CLAUSE OF THE FIFTH
AMENDMENT, WAS A SHAM ENGINEERED TO
AVOID DOUBLE JEOPARDY, AND CONSTITUTED
A VIOLATION OF POSSE COMITATUS.
Appellant asserts Army officials “engineered” his court-martial as a “sham,”
prosecuting him on North Carolina’s behalf and creating a subterfuge contrary to the
Constitution’s Double Jeopardy Clause. Our review of this case yields nothing to
support appellant’s argument, and we resolve the issue against him for the reason
succinctly announced by our superior court in United States v. Schneider, 38 M.J.
387, 391-92 (C.M.A. 1993) (“The Double Jeopardy Clause does not bar one
sovereign from proceeding on a charge of which an accused has been acquitted by
another sovereign.”) (citing United States v. Wheeler, 435 U.S. 313 (1978); Bartkus
v. Illinois, 359 U.S. 121 (1959)).
3
For clarity we adopt the assignment of error numbers appellant used in his brief.
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HENNIS—ARMY 20100304
Appellant also argues his court-martial violated the Posse Comitatus Act
(PCA), 18 U.S.C. § 1385 (2000), which states:
Whoever, except in cases and under circumstances
expressly authorized by the Constitution or Act of
Congress, willfully uses any part of the Army or the Air
Force as a posse comitatus or otherwise to execute the
laws shall be fined under this title or imprisoned not more
than two years, or both.
In United States v. Thompson, 33 M.J. 218, 220 (C.M.A. 1991), our superior
court addressed the Department of Defense’s (DoD) implementation of the PCA,
which prohibited DoD law enforcement activities that were primarily motivated by a
desire to assist civilian law enforcement agencies, while allowing DoD law
enforcement activities “related to enforcement of the Uniform Code of Military
Justice . . . .” (quoting 32 C.F.R. § 213.10(a)(2) (1982)). Appellant’s argument
lacks merit because, despite his claims to the contrary, this case involves no
governmental subversion of the PCA, but rather a lawful exercise of authority
pursuant to the UCMJ and federal law.
II – A. WHETHER THE COURT-MARTIAL LACKED
JURISDICTION TO TRY MASTER SERGEANT
HENNIS FOR THE CHARGED OFFENSES BECAUSE
HE WAS NOT LAWFULLY ORDERED TO ACTIVE
DUTY, UNDER ARTICLE 2(A)(1), UCMJ, AND
WHETHER, THEREFORE, PERSONAL
JURISDICTION DID NOT ATTACH TO MASTER
SERGEANT HENNIS’ COURT-MARTIAL
RENDERING THE COURT-MARTIAL VOID.
To more fully consider this assigned error, we specified and received briefs
regarding a closely-related issue of personal jurisdiction: whether the ASA (M&RA)
possessed authority to order appellant to active duty under 10 U.S.C. § 688, where
the Secretary of the Army did not personally issue said order. We took this
approach considering the well-established principle that the lawfulness of an order
depends on, inter alia, issuance by competent authority. United States v. Kisala, 64
M.J. 50, 52 (C.A.A.F. 2006).
This issue is the first of multiple jurisdictional disputes in this case,
with enduring principles regarding the burden of proof and standard of review
that transcend each. “When challenged, the Government must prove
jurisdiction by a preponderance of evidence.” United States v. Morita, 74
M.J. 116, 121 (C.A.A.F. 2015) (citing United States v. Oliver, 57 M.J. 170,
172 (C.A.A.F. 2002)). “When an accused contests personal jurisdiction on
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HENNIS—ARMY 20100304
appeal, we review that question of law de novo, accepting the military judge’s
findings of historical facts unless they are clearly erroneous or unsupported in
the record.” United States v. Melanson, 53 M.J. 1, 2 (C.A.A.F. 2000) (citing
United States v. Owens, 51 M.J. 204, 209 (C.A.A.F. 1999)).
Before trial, appellant moved to dismiss for lack of jurisdiction, arguing he
retired from the Army, entered a reserve component status, and was not lawfully
called to active duty therefrom (App. Ex. VIII). On 28 April 2008, the military
judge denied appellant’s motion (App. Ex. LXIX) and found:
1. In June 2006 the General Court-Martial Convening
authority submitted a request through the Criminal Law
Division, Office of the Judge Advocate General, to the
Office of the Assistant Secretary of the Army (Manpower
and Reserve Affairs) IAW [in accordance with (IAW)] AR
27-10, Chapter 5, for the purpose of obtaining the
approval to order the accused to active duty from his
retirement status to face a potential court-martial. See
[Appellate Exhibit] AE IX and its enclosures.
2. Shortly thereafter, the Acting [ASA (M&RA)]
approved that request and ordered the accused to active
duty. AE IX, encl. 2.
3. The Government has shown that it properly ordered the
accused to active duty for the purpose of prosecuting him
under the provisions of the [UCMJ].
4. Under the authority of Article 2, UCMJ, the accused, a
retiree, is subject to the UCMJ and may be prosecuted for
offenses committed while on active duty or in a retired
status.
5. Accordingly, the motion to dismiss for loss of
jurisdiction or, in the alternative, to dismiss because the
Government failed to follow Army regulations in recalling
the accused is DENIED.
Article 2(a)(1), UCMJ, which was in effect in May 1985, states “[t]he
following persons are subject to this chapter: . . . other persons lawfully called or
ordered into, or to duty in or for training in, the armed forces . . . .” While the
UCMJ does not specify who may issue such an order, 10 U.S.C. § 688, assigns
retiree recall authority to the service secretaries:
5
HENNIS—ARMY 20100304
(a) Authority. Under regulations prescribed by the
Secretary of Defense, a member described in subsection
(b) may be ordered to active duty by the Secretary of the
military department concerned at any time.
(b) Covered members. Except as provided in subsection
(d), subsection (a) applies to the following members of the
armed forces:
(1) A retired member of the Regular Army, Regular Navy,
Regular Air Force, or Regular Marine Corps.
(2) A member of the Retired Reserve who was retired
under section 1293, 3911, 3914, 6323, 8911, or 8914 of
this title.
(3) A member of the Fleet Reserve or Fleet Marine Corps
Reserve.
(c) Duties of member ordered to active duty. The
Secretary concerned may, to the extent consistent with
other provisions of law, assign a member ordered to active
duty under this section to such duties as the Secretary
considers necessary in the interests of national defense.
Not surprisingly, 10 U.S.C. § 3013, which vests in the Secretary of the
Army a broad landscape of authorities and responsibilities, specifically
authorizes the Secretary to delegate authorities to subordinate Army officials:
The Secretary of the Army may assign such of his
functions, powers, and duties as he considers appropriate
to the Under Secretary of the Army and to the Assistant
Secretaries of the Army. Officers of the Army shall, as
directed by the Secretary, report on any matter to the
Secretary, the Under Secretary, or any Assistant Secretary.
10 U.S.C. § 3013(f) (2000).
Subsection (g)(3) of the statute further authorizes the Secretary to “prescribe
regulations to carry out his functions, powers, and duties . . . .”
With this framework of legal authorities, we address whether the ASA
(M&RA) was empowered to order appellant’s recall. Pursuant to United States v.
Paul, 73 M.J. 274, 278 (C.A.A.F. 2014) and United States v. Ayers, 54 M.J. 85, 90
6
HENNIS—ARMY 20100304
(C.A.A.F. 2000), we take judicial notice of Department of the Army General Order
(DAGO) 2002-03, Assignment of Functions and Responsibilities Within
Headquarters, Department of the Army, dated 9 July 2002 (rescinded by DAGO
2012-1, dated 11 June 2012). Signed by the Secretary of the Army and citing 10
U.S.C. § 3013 as authority, DAGO 2002-03 describes and assigns, inter alia,
functions to the ASA (M&RA):
The [ASA (M&RA)] has the principal responsibility for
setting the strategic direction and providing the overall
supervision for manpower, personnel, and Reserve affairs
across all the Army components (Active, Guard, Reserve,
civilian and contractor). Among the responsibilities of the
ASA (M&RA) are: . . . [o]verseeing the personnel
security, corrections, discipline, Office of the Special
Counsel investigations; law enforcement; and military
justice matters in coordination with the Army General
Counsel. (Emphasis added).
In identifying the potential impact of this order, appellant asserts it does not
grant the ASA (M&RA) the required authority to recall appellant: “[DAGO 2002-
03] did not delegate authority specifically over retirees. A retiree is not ‘Active,’ a
member of the ‘Guard’ or ‘Reserve,’ and is not considered a ‘civilian’ or
‘contractor.’” We disagree with appellant’s narrow reading of the order. First, the
order establishes the ASA (M&RA)’s responsibilities “across all the Army
components,” and we are unaware of any authority for appellant’s tacit corollary that
his retirement removed him completely therefrom. (Emphasis added). We conclude
the opposite, noting his retirement order placed appellant in a control group
administered by the reserve component. Second and finally, with his mandate to the
ASA (M&RA) to oversee military justice matters, we conclude the Secretary enabled
that assistant official to take all actions otherwise reserved to the Secretary under
the UCMJ.
We also note the ASA (M&RA)’s citation to AR 27-10, para. 5-2(b)(3). This
regulation was issued in 2005 “By Order of the Secretary of the Army,” over the
signature block of the Chief of Staff of the Army, and signed as “Official” by the
Administrative Assistant to the Secretary of the Army. Paragraph 5-2(b)(3) states in
pertinent part:
If necessary to facilitate courts-martial action, retired
soldiers may be ordered to active duty. Requests for
active duty will be forwarded by electronic message
through the Criminal Law Division, ATTN: DAJA-CL,
Office of The Judge Advocate General, HQDA to the
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HENNIS—ARMY 20100304
Office of the Assistant Secretary of the Army (Manpower
and Reserve Affairs) for approval.
Appellant argues the passage’s use of the word “approval” means something
less than the ASA (M&RA)’s authority to actually order appellant to active duty.
Instead, appellant argues the regulation gives the assistant secretary the authority to
make a recall recommendation to the Secretary of the Army. As with DAGO 2002-
03, we do not share this narrow view of the regulation. Considering the two
documents together, we find the Secretary of the Army authorized the ASA (M&RA)
to call retirees to active duty, therefore rendering him a competent authority to recall
appellant under 10 U.S.C. § 688 and Article 2(a)(1), UCMJ.
Beyond his argument regarding the limits of DAGO 2002-03 and AR 27-10,
appellant asserts his recall from retirement under 10 U.S.C. § 688 was defective as
not “necessary in the interests of national defense.” Congress empowered the
Secretary of Defense to implement the statute, and appellant draws our attention to a
contrast between previous DoD implementation guidance, which enumerated UCMJ
proceedings as a permissible recall purpose, and its implementation guidance in
effect at the time of appellant’s recall, which is silent on the topic. 4
Appellant argues this contrast evinces the judgment of the Secretary of
Defense that UCMJ proceedings fall short in justifying a conclusion that such
proceedings are “necessary in the interests of national defense.” We disagree and
instead find nothing in the DoD guidance which prevented the ASA (M&RA), acting
as the designee of the Secretary of the Army, from recalling appellant to active duty
in order to face court-martial charges. We find no arbitrariness or capriciousness as
motivation for the ASA (M&RA)’s order as 10 U.S.C. § 688 provided an amply
lawful purpose for appellant’s recall.
Based on the foregoing, we conclude the government proved personal
jurisdiction under Article 2(a)(1), UCMJ, by a preponderance of the evidence.
4
See Dep’t of Def. Dir. [hereinafter DOD Dir.] 1352.1, Management and
Mobilization of Regular and Reserve Military Members (16 Jul. 2005) and DOD Dir.
1352.1 (2 A.K. Marsh. 1990).
8
HENNIS—ARMY 20100304
II – B. WHETHER THE COURT-MARTIAL LACKED
JURISDICTION TO TRY MASTER SERGEANT
HENNIS FOR THE CHARGED OFFENSES BECAUSE
OF HIS BREAK IN MILITARY SERVICE.
On appeal, appellant again argues a break in service occurred between his 12
June 1989 discharge and 13 June 1989 reenlistment, depriving the court-martial of
subject matter jurisdiction. The military judge denied appellant’s similar motion to
dismiss without specifically concluding whether a break in service occurred, but he
wrote, “[a]ssuming arguendo there was a break in service based on the discharge
certificate issued on 12 June 1989, Article 3(a), UCMJ, addresses the issue of
revived jurisdiction as it applies to offenses committed prior to 1992.” Reviewing
the four statutory requirements, which we ultimately address below, the military
judge ruled “if there was a break in service based on the discharge issued to the
accused on 12 June 1989, jurisdiction is revived under Article 3(a), UCMJ.”
Appellant initially enlisted in the Regular Army on 29 January 1981, agreeing
to a four-year active duty commitment. On 1 February 1984, he extended his
Regular Army enlistment obligation for one year in order to attend warrant officer
training and flight school; 28 January 1986 became the new date for his expiration
of term of service (ETS).
On 16 May 1985, appellant was arrested by civilian authorities for murder and
rape, and remained in custody until 15 December 1985, when he was released on
bail. In July 1986, appellant was convicted of murder and rape and sentenced to
death in North Carolina state court. On 6 October 1988, the Supreme Court of North
Carolina set aside his conviction and authorized a new trial. Hennis, 323 N.C. at
287, 372 S.E.2d at 528. His retrial ended in acquittal on 19 April 1989.
Appellant’s civilian pretrial confinement and post-trial incarceration tolled
the fulfillment of his enlistment obligation; and, after his acquittal he returned to
duty at Fort Knox on 21 April 1989, where he was previously assigned to the
installation’s Personnel Control Facility (PCF) after his first civilian trial. On 22
May 1989, acting under AR 630-10 (Update 13, dated 16 March 1988), Absence
Without Leave and Desertion, paragraph 1-8, appellant’s commanding general
approved the PCF commander’s recommendation to “reclassify . . . as unavoidable”
his absences from 16 May to 15 December 1985 (initial arrest until release on bail)
and from 4 July 1986 to 19 April 1989 (post-trial incarceration until release on
9
HENNIS—ARMY 20100304
acquittal). 5 Under paragraph 1-8c, “[a] period of unauthorized absence that is
excused as unavoidable will be creditable for all purposes.”
On 1 June 1989, appellant requested to reenlist for four more years using
Department of the Army (DA) Form 3340-R, Request for Regular Army
Reenlistment or Extension. Block 2c of this document contained 17 June 1989 as
the date of his then-current ETS, apparently adjusted in response to his civilian
confinement. Block 2d reflects two enlistment extensions. The first, effective 1
February 1984 for twelve additional months, corresponds with an extension
document signed by appellant on that date. The second extension, effective 6
January 1986 for seven additional months, has no corresponding extension request in
the record of trial and was apparently made in response to the seven months
appellant spent in civilian pretrial confinement.
On 12 June 1989, the Army honorably discharged appellant. On 13 June
1989, using Department of Defense Form 4, Enlisted/Reenlistment Document,
Armed Forces of the United States (which bore the typewritten words, “Immediate
Reenlistment,” in the top margin), appellant reenlisted for four more years.
Appellant remained on active duty in the Regular Army until his retirement on 31
July 2004. 6
Before we can reasonably apply the law to this issue, we must accurately
determine the necessary facts; and, to some extent, one of them is not self-evident.
This court “is required to conduct a de novo review of the entire record of trial.”
United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). Just before
appellant reenlisted on 13 June 1989, what was his ETS date in light of the
commanding general’s 22 May 1989 decision? One could perhaps conclude it was
5
Paragraph 1-8b states, in pertinent part: “[B]efore an unauthorized absence may be
excused as unavoidable, the responsible commander must decide if the following
occurred: (1) The absence was not caused by the member’s own misconduct. (2)
The member acted as prudently and responsibly as could be expected to avoid the
absence. (3) Representatives of the Army also acted as prudently and responsibly as
could be expected to avoid the absence.”
6
Appellant later requested the Army Board for Correction of Military Records
(ABCMR) correct certain aspects of his service record, and on 7 August 1991, the
ABCMR decided to direct the following corrections: showing his promotion to Staff
Sergeant was effective 1 December 1988 with a date of rank of 4 November 1988;
and, restoring an “appropriate amount of leave as determined by DFAS and by
allowing a 3 year period in which to use the restored leave.” The ABCMR
promulgated its decision on 19 August 1991.
10
HENNIS—ARMY 20100304
17 June 1989, as the DA 3340-R showed, particularly where there is no evidence of
appellant’s disputing it when he requested to reenlist. Alternatively, the documented
ETS date was simply incorrect, in light of the plain and, in our judgment, self-
executing “creditable for all purposes” language in AR 630-10, paragraph 1-8b. We
conclude the latter, for the first view would effectively enable a soldier and his
chain of command to incorrectly establish a term of service inconsistent with
controlling Army policy. For these reasons, we find that, immediately before the
reenlistment in question, appellant’s correct ETS date was—at the latest, applying
both enlistment extensions—27 August 1986.
These facts lead us to examine the impact of our superior court’s decisions
and legislative changes to the UCMJ as they relate to two issues: whether
appellant’s military status was terminated before his June 1989 reenlistment,
resulting in a break in service; and, if terminated, whether the Army lost authority to
subject him to court-martial.
Considering appellant’s ETS was 27 August 1986, our resolution of the first
issue is partly informed by United States ex rel. Hirshberg v. Cooke, 336 U.S. 210
(1949), which held a servicemember’s honorable discharge, followed the next day by
reenlistment, divested the United States of court-martial jurisdiction for crimes
committed during the previous enlistment period. However, we recognize our
superior court’s decision in United States v. Clardy, which distinguished Hirshberg
and examined jurisdictional issues where a service member was prosecuted for
offenses “committed shortly before [he] had been discharged from a prior enlistment
for the purpose of immediate reenlistment and [that] were not in the category of
offenses as to which military jurisdiction was preserved by Article 3(a), UCMJ.” 13
M.J. 308, 309, 311 (C.M.A. 1982).
Focusing on whether Clardy had shed his military status, the majority quoted
Colonel William Winthrop’s, Military Law and Precedents (2d ed. 1920 reprint):
[I]t is the opinion of the author that, in separating in any
legal form from the service an officer or soldier or
consenting to his separation therefrom, and remanding him
to the civil status at which the military jurisdiction
properly terminates, the United States . . . must be deemed
in law to waive the right to prosecute him before a court-
martial for an offence previously committed but not
brought to trial. In this view, a subsequent re-appointment
or re-enlistment into the army would not revive the
jurisdiction for past offences, but the same would be
properly considered as finally lapsed.
Clardy, 13 M.J. at 309 (Emphasis in original.).
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HENNIS—ARMY 20100304
The majority further reasoned:
Colonel Winthrop’s remark . . . would be consistent with a
view that, where a servicemember is discharged prior to
the expiration of his enlistment for the specific purpose of
immediate reenlistment, he is never remanded ‘to the civil
status,’ so he can be tried for offenses committed in the
earlier enlistment.
Id. at 310 (Emphasis added.).
In an explanatory footnote, the court wrote:
This type of discharge is now often referred to as a “short-
term discharge” -- i.e., a discharge given to a
servicemember even before he completes his obligated
term of service, which is granted for the mutual
convenience of the servicemember and the Government in
order to allow him to reenlist immediately and thus remain
on active duty.
Id. at n4.
Affirming this court’s decision to set aside the findings of guilty of the crimes
that the soldier had committed in his previous enlistment, Clardy prospectively
established the short-term discharge exception to a jurisdictional bar based on a
break in service. However, this exception was narrow:
[W]e do not question that under Hirshberg military
jurisdiction is terminated by a discharge at the end of an
enlistment or period of obligated term of service even
though the servicemember immediately reenters the
service. This break in “status,” irrespective of the length
of time between discharge and reenlistment, is sufficient
to terminate jurisdiction.
Id. at 316 (footnote omitted) (Emphasis in original).
Following his acquittal and release from incarceration, appellant served
continuously on active duty on active duty until 12 June 1989. We further find as
fact that, the next day, appellant continued to maintain significant indicia of military
status and reenlisted. Until 22 May 1989, appellant’s post-acquittal military service
was pursuant to his contractual enlistment, the fulfillment of which had been tolled
during his civilian confinement. However, once his confinement-related absence
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HENNIS—ARMY 20100304
was excused on 22 May 1989, appellant’s ETS date reverted to 27 August 1986 (at
the latest). Therefore, from 22 May until 12 June 1989, appellant served on active
duty beyond the “period of obligated service” required by his enlistment. We
further find appellant’s discharge appeared to be, as a matter of fact, solely for the
purposes of immediate reenlistment; however, as a matter of law under Clardy, we
cannot characterize appellant’s discharge as “short-term,” where it occurred after his
contractual service obligation expired. We therefore find appellant’s military status
terminated—albeit briefly—immediately before his reenlistment. 7
Our resolution of this first question, however, is not dispositive, for we must
consider whether subject matter jurisdiction was nonetheless preserved under the
version of Article 3(a), UCMJ, applicable to the case. In response to Hirshberg, 8
Congress passed legislation codified at 10 U.S.C. § 803(a) (1950): 9
Subject to section 843 of this title (article 43) [statute of
limitations], no person charged with having committed,
while in a status in which he was subject to this chapter,
an offense against this chapter, punishable by confinement
for five years or more and for which the person cannot be
tried in the courts of the United States or of a State, a
Territory, or the District of Columbia, may be relieved
from amenability to trial by court-martial by reason of the
termination of that status.
Appellant argues Article 3(a), UCMJ, does not confer jurisdiction, because he
“could have been tried in a U.S. state, territory, or the District of Columbia. In fact,
he was tried twice by North Carolina.” According to appellant, the “more logical
and appropriate definition of ‘cannot be tried’ is ‘could not have been tried.’”
Appellant writes, “the CAAF in Willenbring also reiterated that Congress’ intent
7
Considering this finding, it is unnecessary to consider the effect of any statutory
time limit, under 10 U.S.C. § 651 (1976), on appellant’s initial enlistment term.
8
In United States v. Gallagher, 7 U.S.C.M.A. 506, 509, 22 C.M.R. 296, 299 (C.M.A.
1957), our superior court wrote, “[w]e have not the slightest doubt but what
Congress passed this statute for the principal purpose of covering the situation
brought about by the decision in [Hirshberg].” In support of this observation, the
court provided detailed excerpts from the associated legislative history.
9
Congress amended the statute in 1992, removing the five-year confinement and
“cannot be tried” in civilian courts provisions. Pub. L. 102–484, div. A, title X, §
1067, Oct. 23, 1992.
13
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behind Article 3(a) was meant to only confer ‘jurisdiction to serious offenses that
could not otherwise be tried.’” (internal quote from Willenbring v. Neurauter, 48
M.J. 152, 161 (C.A.A.F. 1998)) (Emphasis added by appellant).
Essentially, appellant argues we should replace Article 3(a)’s present tense
“cannot” with the past tense “could not.” However, these words are not fungible.
Describing “cannot” as “[t]he negative form of can,” the American Heritage
Dictionary of the English Language (Third Edition, 1992) defines the present tense
verb “can” as, inter alia, “possession of a specified power, right, or privilege.” The
same dictionary describes “could” as the “[p]ast tense of can . . . [u]sed to indicate
ability, possibility, or permission in the past.” 10
When analyzing the jurisdictional disputes in this case, we recognize “[a]
court-martial organized under the laws of the United States is a court of special and
limited jurisdiction.” Runkle v. United States, 122 U.S. 543, 555 (1887). Had
Congress intended for Article 3(a), UCMJ, to be applied with a view toward a state
or federal court’s past ability to try a case, we are confident it would have used the
“could not have been tried” phrase–or an equivalent variant–for which appellant
advocates. Instead, the statute is worded in a manner which requires us to evaluate
whether such courts “cannot.”
We return to the Willenbring decision in resolving this question against
appellant. In that case, the accused was charged with rapes occurring on a federal
enclave in the United States. However, at the time of his court-martial, prosecution
in federal district court was barred by the following statute of limitations:
Except as otherwise expressly provided by law, no person
shall be prosecuted, tried, or punished for any offense, not
capital, unless the indictment is found or the information
is instituted within five years next after such offense shall
have been committed.
10
In Willenbring, at the time of preferral, one might have said, “The government
could have tried the accused in a federal district court within the statute of
limitations under 18 U.S.C. § 3282, but because that time has expired, now it
cannot.” Similarly, at the time of appellant’s court-martial—and today, for that
matter—one might have said of the prospects of a North Carolina trial, “The state
could have, and did, prosecute appellant previously; the state cannot do so today,
because of the constitutional protection against double jeopardy.” These
hypothetical statements illustrate the fundamentally different meanings of “could
not” and “cannot.”
14
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Willenbring, 48 M.J. at 176 (quoting 18 U.S.C. § 3282 (1994)) (Emphasis in
original).
Focusing on the effect of a statute of limitations, our superior court wrote, “a
statute of limitations does not establish a defense to the merits of a charge; rather, it
is a limitation on the power of a prosecutor to bring charges and on the power of a
court to try a case.” Id. (citing Waters v. United States, 328 F.2d 739, 743 (10th
Cir. 1964)). After discussing the practically, if not legalistically, jurisdictional
effect of a statute of limitations, the court noted the absence of the word
“jurisdiction” from the law now in question:
[E]ven though Congress specifically used the word
“jurisdiction” at several points in the drafting of other
aspects of Articles 2 and 3, it did not use that word in the
Article 3 criteria limiting court-martial jurisdiction over
prior-service offenses, which it could have done by
restricting military trials to cases outside the
“jurisdiction” of civilian courts. Instead, the statute
referred to cases that “cannot” be tried.
Willenbring, 48 M.J. at 177.
This observation squarely addresses appellant’s argument that Article 3(a),
UCMJ, only allows court-martial jurisdiction where a state or federal court lacks its
own jurisdiction to adjudicate the case. The statute is not so limited. Of course the
bar to Willenbring’s civilian prosecution was different from the one here, but any
distinction between the two works to appellant’s detriment, because his
constitutional double jeopardy protection against further state prosecution is at least
as powerful as, and perhaps more powerful than, another’s benefit under a statutory
limitations period. 11
For these reasons, we find by a preponderance of the evidence that despite any
break in service created by appellant’s discharge and reenlistment, the version of
11
On remand, the trial judge determined no break in Willenbring’s service occurred.
On appeal of his subsequent conviction and sentence, our court found jurisdiction
was based on his continuous military service, further determining “we need not
consider whether the criteria of the applicable version of Article 3(a), UCMJ, have
been met.” United States v. Willenbring, 56 M.J. 671, 676 (Army Ct. Crim. App.
2001) (citing Willenbring, 48 M.J. at 175). Our superior court summarily affirmed.
United States v. Willenbring, 57 M.J. 321 (C.A.A.F. 2002), cert. denied, 537 U.S.
1112 (2003).
15
HENNIS—ARMY 20100304
Article 3(a), UCMJ, in effect at the time of his court-martial provides jurisdiction
over the offenses of which he was found guilty.
II – C. THE GOVERNMENT FAILED TO PROVE
SUBJECT MATTER JURISDICTION OVER THE
OFFENSES BECAUSE THE ALLEGED OFFENSES
WERE NOT SERVICE CONNECTED.
The Supreme Court overturned the service-connection requirement for court-
martial jurisdiction in Solorio v. United States, 483 U.S. 435 (1987). Citing Justice
Stevens’s concurring opinion in Loving v. United States, 517 U.S. 748, 774 (1996),
appellant asserts Solorio was limited to non-capital cases: “Solorio’s review of the
historical materials would seem to undermine any contention that a military
tribunal’s power to try capital offenses must be as broad as its power to try
noncapital ones.”
Appellant also cites United States v. Gray, 51 M.J. 1, 11 (C.A.A.F. 1999), a
capital case in which our superior court recognized Justice Stevens’s concurrence
but declined to decide the question of Solorio’s reach. Instead, our superior court
determined it was unnecessary to do so because, assuming arguendo Solorio left
intact the service-connection jurisdictional requirement in capital courts-martial, the
facts in Gray satisfied it.
Justice Stevens’s separate concurrence in Loving does not control the result
here. We perceive nothing in the Solorio majority opinion which limits its holding
to non-capital cases. Considering the holding therein—that court-martial
jurisdiction depends on whether the accused “was a member of the Armed Services
at the time of the offense charged,” Solorio, 483 U.S. at 451—we can identify no
principle of law to support appellant’s tacit argument that it must specifically
identify classes of cases to which it extends.
The following passage from the Loving majority further informs our opinion
on the topic:
In 1950, Congress confronted the problem of what
criminal jurisdiction would be appropriate for Armed
Forces of colossal size, stationed on bases that in many
instances were small societies unto themselves. Congress,
confident in the procedural protections of the UCMJ, gave
to courts-martial jurisdiction of the crime of murder. Cf.
Solorio, supra, at 450-451 (Congress may extend court-
martial jurisdiction to any criminal offense committed by
a service member during his period of service). It further
declared the law that service members who commit
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premeditated and felony murder may be sentenced to death
by a court-martial. There is nothing in the constitutional
scheme or our traditions to prohibit Congress from
delegating the prudent and proper implementation of the
capital murder statute to the President acting as
Commander in Chief.
Loving, 517 U.S. at 768-69.
While recognizing the passage is dicta, we note the Supreme Court in Loving
cited Solorio but did not take the opportunity to qualify a service member’s
jurisdictional eligibility for capital punishment with any service-connection
requirement. Therefore, we hold, in accordance with Solorio and Loving, an
accused’s military status at the time of the offense under the UCMJ is the sole
criterion for establishing subject matter jurisdiction in a court-martial, capital or
otherwise.
III. THE EGREGIOUS DELAY FROM MASTER
SERGEANT HENNIS’ ACQUITTAL IN STATE
COURT IN 1989 TO THE ARMY’S PREFERRAL OF
CHARGES IN 2006 VIOLATED MSG HENNIS’ DUE
PROCESS RIGHTS.
Denying appellant’s similarly grounded motion before trial, the military judge
found, inter alia, the following facts:
There is no evidence that the Government, intentionally or
otherwise, used the time from the acquittal in state court
in 1989 to the preferral of these offenses on 10 November
2006 to gain some sort of tactical advantage. Evidence of
the Army’s good faith in this process is that the accused’s
command held in abeyance the execution of his
administrative discharge for a civilian conviction in 1986
pending appellate review. That appellate review ended in
a reversal and the accused’s subsequent acquittal in state
court. The Army acted reasonably in accepting the results
of the civilian justice system in 1989 and allowing the
accused to continue with his military career. There is no
evidence the Army became involved in investigating this
case after the acquittal in 1989 until after the local civilian
authorities provided it with the new DNA evidence test
results in 2006 during its cold case review. The military
authorities at Fort Bragg proceeded in a timely manner
after receiving that new evidence.
17
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To obtain relief for pre-preferral delay under the Fifth Amendment Due
Process Clause, which grants protections beyond an applicable statute of limitations,
an accused must show the “prosecutor intentionally delayed the indictment [here,
preferral] to gain a tactical advantage and that the [accused] incurred actual
prejudice.” United States v. Reed, 41 M.J. 449, 452 n.1 (C.A.A.F. 1995) (quoting
United States v. Byrd, 31 F.3d 1329, 1339 (5th Cir.1994)).
Citing United States v. Lovasco, 431 U.S. 783 (1977) and United States v.
Marion, 404 U.S. 307 (1971), the military judge concluded appellant had not met his
burden to establish a due process violation and denied the motion to dismiss.
Appellant does not argue the military judge abused his discretion, which is the
correct standard for our review of this issue. Reed, 41 M.J. at 453 (Sullivan, C.J.,
dissenting) (citing United States v. Fuzer, 18 F.3d 517, 519 (7th Cir. 1994)). See
also United States v. Sherlock, 962 F.2d 1349, 1354 (9th Cir. 1992), cert. denied sub
nom. Charley v. United States, 506 U.S. 958 (1992). The military judge’s findings
of fact were not clearly erroneous, and his application of the applicable law was
correct. We hold the military judge did not abuse his discretion in denying
appellant’s motion to dismiss.
IV. THE MILITARY JUDGE’S DENIAL OF EXPERT
ASSISTANCE IN TESTING EVIDENCE POSSESSED
BY THE GOVERNMENT DENIED MSG HENNIS HIS
RIGHT TO PRESENT A DEFENSE.
On 27 April 2009, appellant filed a Motion to Compel Appointment of Experts
and/or Equal Access to Evidence or for Appropriate Relief. Despite its title, the
motion itself provided few examples of evidence to which appellant sought access by
two requested experts, Dr. EB and Mr. PB. Appellant did specifically mention in
Appellate Exhibit 154 his desire to gain access to anonymous “Mr. X” letters, in
which the writer suggested another person committed the crimes:
These letters were analyzed by government experts using
DNA and non-DNA analysis. The results do not connect
MSG Hennis as the author. Yet, the government is denying
access by the defense experts to these potentially
exculpatory letters.
Despite the motion’s vagueness, multiple enclosures thereto provided a
clearer picture of what appellant wanted to analyze. 12 For example, in his 25 March
12
Defense-requested items, listed by Cumberland County Sheriff’s Office evidence
voucher numbers:
(continued . . .)
18
HENNIS—ARMY 20100304
(. . . continued)
22 - Plastic bag of fibers from [Miss KE’s] left hand
24 - Plastic bag of nail clippings from [Miss KE’s] left hand
25 - Plastic bag of nail clippings from [Miss KE’s] right hand
26 - Plastic bag of fibers from [Miss KE’s] mouth
28 - Plastic bag of nail clippings from [Miss EE’s] left hand
29 - Plastic bag of nail clippings from [Miss EE’s] right hand
30 - Plastic bag from [Miss EE] containing hair from body and clothing
33 - Brown bag containing pubic hair from [Mrs. KE]
36 - Cardboard container containing vaginal smears of [Mrs. KE] by
medical examiner’s office
37 - Cardboard container containing anal and oral smear from [Mrs.
KE] by medical examiner’s office
38 - Yellow envelope containing vaginal swabs of [Mrs. KE]
39 - Small box of oral swabs from [Mrs. KE]
40 - Clear plastic bag containing left hand fingernail and fibers from
[Mrs. KE]
41 - Clear plastic bag containing right hand fingernail and fibers from
[Mrs. KE]
42 - Clear plastic bag containing hair and fibers from back of [Mrs.
KE]
60 - Yellow envelope containing hair from foot of bed in master
bedroom
62 - Yellow envelope containing hair from blue cover in master
bedroom
63 - Yellow envelope containing hair from chest of [Mrs. KE]
64 - Yellow envelope containing hair from outside door of master
bedroom
66 - Yellow envelope containing hair from leg of [Mrs. KE]
67 - Yellow envelope containing hair on carpet beside [Miss EE’s]
body
68 - Yellow envelope containing hairs from between [Miss EE’s] legs
on carpet
69 - Yellow envelope containing hairs from [Miss EE’s] groin
71 - Yellow envelope containing hair from pillow from first bedroom
72 - Yellow envelope containing hair from bed near [Miss KE] in first
bedroom
82 - Brown paper bag containing four envelopes of drain pipe parts and
a glass jar of sink contents
83 - Brown paper bag containing five envelopes of drain parts and hair
with one glass jar of water from drain
(continued . . .)
19
HENNIS—ARMY 20100304
2009 letter requesting appointment and funding of Dr. EB, a DNA expert, civilian
defense counsel wrote:
A complete list of items to be forensically analyzed,
whether by DNA analysis or other analysis, is attached.
Some of the items have been analyzed by the government
and some have not. Part of the purpose of analyzing items
that have not previously been examined is investigatory,
i.e., to determine whether other suspects or third parties
were present at the crime scene and potentially involved in
the crimes . . . . This list is not exhaustive as [the
requested expert] has indicated that further consultation
may disclose that additional items should be examined.
Civilian defense counsel attached and similarly referred to this list of items in
a 6 April 2009 letter requesting appointment and funding of Mr. PB, a criminalistics
expert, “mean[ing] fiber, hair, fingerprint and document analysis.”
(. . . continued)
84 - Brown bag containing three envelopes of drain pipe parts, one
connect pipe, and two glass jars with drain water
88 - Brown bag of three envelopes containing vacuum particles from
living room carpet
89 - Brown paper bag of three envelopes containing vacuum particles
from master bedroom carpet
100 - Yellow envelope containing hair from master bedroom sink’s
countertop
101 - Yellow envelope containing white bath sponge with hair on same
102 - Yellow envelope containing bar of soap with hair on same
103 - Yellow envelope containing paper tissue from trash can in master
bedroom with hair on same
111 - Yellow envelope containing eight latent lift cards lifted at crime
scene 5/29/85
112 - Yellow envelope containing three latent lift cards lifted at crime
scene 5/22/85
114 - Brown paper bag containing hair collected from [family] living
room and known head hair samples of Mr. JR, Ms. JC, and Mr. BW
115 - Clear plastic bag containing sixty-four latent lifts and eight photo
copies of Mr. X letters
[104] - Original Mr. X letters and envelopes
20
HENNIS—ARMY 20100304
In an Article 39(a), UCMJ, session on 8 May 2009, the military judge heard
parties’ arguments on the motion; no witnesses testified. In response to the military
judge’s observation that the defense had apparently not used the experts after the
convening authority appointed them, civilian defense counsel explained, “we were
basically waiting for the government to complete their testing and to have all of the
evidence back at this location so that we could send it off to our experts at one
time.”
Seeking to clarify the proposed responsibilities of Dr. EB and Mr. PB, the
military judge asked about the scope of work for Dr. DK, another defense expert.
Civilian defense counsel explained, “[Dr. DK’s] focus was on examining the lab
work performed by the government experts. So we were not bringing him on board--
we did not request him for the purpose of analyzing any evidence.” Defense counsel
then stated: “Dr. [EB] . . . is the one who is actually going to do an analysis on the
evidence. So they are not duplicating their efforts. They’re working in completely
different areas.”
The military judge and civilian defense counsel had the following exchange:
MJ: But the government has already provided Dr. [DK]?
CDC: Right. And there are no issues about Dr. [DK].
Now, with Dr. [DK], though, where his role comes in is
that one of the reasons that we did not specifically identify
what items we wanted tested is because--or re-analyzed by
Dr. [EB] is because we wanted Dr. [DK’s] input after
looking at the lab results by [United States Army Criminal
Investigation Laboratory] USACIL or whatever labs--the
[State Bureau of Investigation] SBI lab, whatever labs the
government used--we wanted Dr. [DK’s] input in terms of
his recommendations of what items we should send off for
analysis.
MJ: So you are only going to send off for analysis those
items which Dr. [DK] suggests that you do?
CDC: Dr. [DK] or one of our other experts. He was one
person who provided input to us, and he did not complete
his work until January of this year.
MJ: So Dr. [DK] has examined all of the evidence, and he
completed his work in January?
CDC: Yes, Your Honor.
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HENNIS—ARMY 20100304
MJ: And he has made certain recommendations as to
items which he believes should be retested or tested--
either tested anew or tested which wasn’t tested
originally?
CDC: Yes, Your Honor. We also--we have been provided
a number of--we’ve been provided an investigator, Mr.
[TVO]. We’ve also been provided another crime scene
expert. We have basically asked our--those experts who
have already been provided to us for their input as well,
based on their expertise and experience. So you see, as an
attachment to our request for Dr. [EB] and for Mr. [PB], a
list of exhibits that we want to send off for testing. Those
exhibits were created based on the inputs of our other
confidential consultants.
[. . .]
MJ: As I understand it, the defense theory is that someone
else raped and murdered these individuals?
CDC: Exactly, Your Honor.
MJ: And it’s not a case of there was any consensual sex at
all; there was never any sex and so someone else had
raped [Mrs. KE] and killed her and her two children?
CDC: Yes, Your Honor . . .
In an 11 May 2009 ruling which granted the motion in part and denied it in
part, the military judge found:
As set forth in the enclosures to the appellate exhibits, the
government originally granted the defense request for the
appointment of Dr. [EB] as a forensic serology/DNA
analyst and Mr. [PB] as a forensic criminalist. The
government rescinded those appointments after the
government believed the defense was not utilizing their
expert services. The government later re-appointed Dr.
[EB] as an expert consultant; however, the government
limited Dr. [EB’s] access only to certain evidence.
22
HENNIS—ARMY 20100304
The defense has shown, and the government initially
conceded, that the requested expert assistance is
necessary.
The defense requests the court order the government to
provide access to the evidence set out in enclosure 1 to AE
154. The defense has had access to inspect the requested
evidence located in the law enforcement evidence locker.
The defense is essentially requesting the court to order the
evidence be sent to the defense experts for inspection and
testing at the defense expert’s lab. The evidence consists
of essentially three groups.
[1] Evidence which was tested and inculpates the
accused. The defense has shown how further testing of
that evidence is necessary for the preparation of its
case.
[2] Evidence which was tested and exculpates the
accused because it does not link the accused to the
crime scene. Those test results allow the defense to
argue to the court members the exculpatory nature of
that evidence. The defense has not shown how
additional testing by defense experts of that established
exculpatory evidence will materially add to the
preparation of the defense case.
[3] Evidence which was not analyzed by government
experts. The failure by the government to test some
items seized from the crime scene necessarily allows
the defense to argue that absence of evidence
exculpates the accused. The defense has not shown
how testing of that type of evidence will materially add
to the preparation of the defense case.
The defense motion is granted in part and denied in part:
[1] The government will arrange for the expert
consultant services of Dr. [EB] and Mr. [PB]. Those
experts will be a part of the defense team with the same
confidentiality as any other member of the defense
team.
23
HENNIS—ARMY 20100304
[2] The government will arrange for the delivery of the
[vaginal smears from Mrs. KE, vaginal swabs from Mrs.
KE, left hand fingernail and fibers from Mrs. KE, right
hand fingernail and fibers from Mrs. KE, 64 latent lifts
and 8 photo copies of Mr. X letters, original Mr. X
letters and envelopes] to the defense expert’s lab . . .
[3] The motion to provide all of the other evidence
listed in enclosure 1 to AE 154 to the defense expert’s
lab is denied. If the defense is able to show how further
inspection and possible testing of the evidence
described in [subparagraphs 2 and 3] above is material
to the preparation of its case, the court is willing to
reconsider its ruling.
On 10 July 2009, the defense filed a motion to continue the court-martial until
11 January 2010, “in order to allow the defense sufficient time to conduct DNA
analysis of evidence now in the possession of the government and engage in trial
preparation.” The defense also wrote that the evidence regarding which the military
judge granted testing in his 11 May 2009 ruling had been provided to Dr. EB and
Mr. PB for analysis. The defense stated its “inten[t] to revisit and justify additional
testing and analysis.” However, Dr. EB’s work was pending completion, and the
defense continued:
Without his consultation and analysis, the defense is
unable to proceed at this time on three motions: due
process, former jeopardy and third party exculpatory
evidence, not to mention an anticipated motion for
additional laboratory analysis.
On 28 July 2009, the military judge ordered the court-martial continued until
February 2010. On 3 September 2009, civilian defense counsel filed a motion
requesting additional expert funding for Dr. EB, writing, inter alia: he had been
unable to complete the testing and consultation services previously ordered by the
military judge; and, the convening authority denied additional funding to facilitate
consultation. Civilian defense counsel also wrote that Dr. EB had not been able to
forensically examine the Mr. X letters before exhausting the previously ordered
funding.
The military judge held an Article 39(a), UCMJ, session on 9 September 2009
to address, inter alia, the defense’s request for additional funding. Defense counsel
explained he was working with Dr. [EB] to not only examine the evidentiary items
which he had received, but also to develop one of multiple “affidavits from several
24
HENNIS—ARMY 20100304
experts supporting . . . additional testing.” Referring to a future Article 39(a),
UCMJ, session scheduled for 29 September 2009, defense counsel continued:
Those 10 [additional] hours are for consultation with Dr.
[EB] to fully understand what he’s done so far, prepare an
affidavit to submit to the court that says--from an expert
that says, “Hey, here are some things that were not tested
but in my experience should be tested, and here’s how
they will help the case. Here’s how they are material to
the preparation of the case,” which is what the court at
least alluded to in its order and its statement regarding
potential reconsideration. That’s what the defense is
trying to do was to give the court, as promptly as possible,
that material so that it could rule.
On 10 September 2009, the military judge ordered, inter alia, additional
funding for Dr. EB’s DNA expert consultation. As foreshadowed by the previous
day’s motion session, the defense filed another motion, dated 25 September 2009,
seeking the military judge “to order the government to fund additional DNA analysis
and to order that the government provide the defense equal access to evidence . . . .”
The defense additionally wrote:
Upon further consultation with Dr. [EB] and Mr. [LR], the
defense crime scene analyst and reconstructionist, the
defense hereby renews the motion for equal access to
evidence and funding in the amount of $20,000 for
examination of evidence and additional DNA testing.
The motion included subsequent declarations signed by Mr. LR and Dr. EB
and requested the military judge to allow ex parte defense submissions, “if the
proffered declarations are found to be inadequate . . . .”
Mr. LR’s declaration contained, inter alia, 13 the following:
13
The declaration included “a three level priority list of evidence . . . and type of
significant findings to be examined . . . .” The list contained 147 line items, ranging
from the vaginal swab obtained from the autopsy of [Mrs. KE’s] body to four
toboggans and duffle bag fibers obtained from appellant’s residence. At the
subsequent Article 39(a) session, civilian defense counsel informed the military
judge that the defense sought access to examine and test this broader list.
25
HENNIS—ARMY 20100304
A Crime Scene Analyst, when employed as a defense
consultant, often does more than analyze items of
evidence or even simply analyze items that have been
subjected to analysis by government experts. The analyst
consults with defense counsel as part of the investigative
team, with the goal of locating, identifying, and sampling
items of evidence to determine whether bloodstains, hair,
fibers, fingerprints, shoeprints, handwriting, or other
physical evidence exists that can be used to identify
individuals involved in the crime or present at the crime
scene and patterns of activity at the crime scene or at
other locations relevant to the commission of the crime....
Thus, these services are more comprehensive than simply
performing a laboratory analysis.
Based on my experience, it is not unusual for government
analysts to mishandle or miss sources of relevant evidence
seized at a crime scene or other locations. This evidence
can be exculpatory. I also realize that the defense often
has access to information not known by the government.
That is why confidentiality is important. Using
information from defense counsel or other members of the
defense team, I often examine or sample items of evidence
that are not analyzed by government experts, because they
may be relevant to a defense theory that is not held by the
government. Additionally, in the course of consulting
with the defense team, it has not been uncommon that in
the course of performing my services, other items of
evidence than those originally identified become important
. . . . 14
Dr. EB’s declaration contained, inter alia, the following:
14
Mr. LR would testify later at trial as a defense witness and, while the contents of
his testimony were unknown to the military judge when he ruled on the motion, it is
not irrelevant to our appellate review. Called by the defense and recognized as an
expert in forensic crime scene analysis, Mr. LR said he focused on the blood, fiber,
hair and fingerprint analyses—not DNA. He further testified that the law
enforcement agencies “processing this reportedly did a good job. I haven’t seen all
the paperwork that would have been involved.” He responded, “No,” in response to
a question from the panel whether his review of the case yielded “anything out of the
ordinary based on the standards that were applicable in 1985?”
26
HENNIS—ARMY 20100304
At this point, I have independently analyzed certain items
of evidence already analyzed by government experts. My
confidential report of this work is dated July 22, 2009. I
have not yet analyzed what has been characterized as the
“Mr. X” letters and envelopes. I also understand that the
convening authority disapproved a defense request for me
to examine and analyze other items of evidence deemed
relevant to defense counsel. This affidavit justifies my
access to other items of evidence deemed relevant for
examination and potential DNA analysis by defense
counsel.
[. . .]
It is my understanding that the government does not
challenge my credentials or expertise, they simply seek to
deny the defense access to certain items of evidence for
the purpose of my examination and analysis. Therefore,
my comments below address the reasons for requiring
access to the disputed items of evidence.
A forensic serologist, when employed as a defense or
prosecution consultant in a criminal case, often does more
than analyze items of evidence that have been subjected to
analysis by government experts. The serologist consults
with defense counsel, with the goal of locating,
identifying and sampling items of evidence to determine
whether biological material exists that can be used to
identify individuals involved in the crime or present at the
crime scene or at other locations relevant to the
commission of the crime. Expert serologists may also
prepare reports to aid defense counsel in identifying who
was present at the crime scene, the association of one
individual with another at the crime scene or to develop a
more comprehensive understanding of the series of events
at the crime scene. Thus, these services are more
comprehensive than simply performing a laboratory
analysis . . . .
Based on my experience, it is not unusual for government
analysts to miss sources of relevant biological matter
seized at a crime scene or other locations. This evidence
can aid in identifying who was at the crime scene. I also
realize that the defense may have access to information
27
HENNIS—ARMY 20100304
not known by the government. Using information from
defense counsel, I often examine or sample items of
evidence that are not analyzed by government experts,
because they may be relevant to a defense theory.
Additionally, in the course of consulting with the defense
counsel, other items of evidence than those originally
identified become relevant . . .
In this case, it is my understanding that MSG Hennis was
previously tried twice for the same offenses for which he
is currently charged. Furthermore, over the years multiple
experts have investigated this case and analyzed evidence
from the crime scene. According to defense counsel, no
one has been able to prove whether there were two or
more perpetrators in this case. Importantly, defense
counsel believe no forensic evidence has established that
MSG Hennis was ever physically present in any of the
rooms where the murders occurred. Finally, defense
counsel state that no physical evidence from the crime
scene was ever located in or on property possessed by
MSG Hennis. Given this context and in light of their duty
to provide effective assistance, it is critical that the
defense attorneys receive broad latitude in their
investigation of the extent [sic] physical evidence. This
investigation includes the confidential investigation of
biological evidence from the crime scene and perhaps
other locations that defense counsel believe may reveal the
identity of perpetrators not revealed or considered by the
government’s investigation.
In my judgment defense counsel should be given access to
appropriate items of physical evidence for examination
and potential DNA testing. The evidence defense counsel
deems necessary to provide effective assistance to their
client has apparently already been specified. Defense
counsel is in the best position to identify such evidence
because they are the ones with the most complete
knowledge of the case history . . . .
On 1 October 2009, the military judge heard argument in an Article 39(a),
UCMJ, session, which began with civilian defense counsel indicating that the motion
constituted a request to reconsider his 11 May 2009 ruling, supra. Civilian defense
counsel also stated he was now seeking access to additional items, listed in an
attachment to Mr. LR’s declaration. After the military judge confirmed with
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government counsel that its DNA analysis of the vaginal swabs was “[t]he only
forensic evidence” linking appellant to the crime scene and that fingerprints,
footprints, hair, fibers and blood excluded him, civilian defense counsel argued:
Your Honor, in that regard, obviously there are two ways--
there are a couple of different ways to defend a case. One
is to hold the government to its burden of proof and to say
that--and argue just those points that were made through
the questioning with the trial counsel. Another way to
defend a case is to prove that someone else could have
committed the crime--for the defense to put on affirmative
evidence to show that someone else was present at the
crime scene and, therefore, is the potential perpetrator.
[. . .]
[I]f you find the same DNA evidence in one room and the
same DNA into [sic] another room and you find more of it
and, if at some point, some of it can be shown to have
originated from sperm and it’s not the accused’s sperm,
then that is very strong exculpatory evidence at that point.
But as it sits right now, without our experts being able--
either of our experts--both our DNA expert and our non-
DNA expert being able to look at that evidence, then
you’ve essentially tied one hand behind our backs as
defense counsel whereas the government has freedom to
test and examine all of the evidence.
The military judge and civilian defense counsel later had the following
exchange:
MJ: Let’s assume for the moment that they analyze the
hair and determine they can do the DNA testing. If the
testing that’s been done already excludes the accused as
the contributor of that hair, how does further testing make
that even more exculpatory?
CDC: Further examination, Your Honor, may lead to
DNA analysis, which may lead to a DNA profile, which
through CODIS [Combined DNA Index System] and other
databases, may point to someone else who committed the
crime . . . .
MJ: In order to build a potential DNA profile?
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HENNIS—ARMY 20100304
CDC: That’s correct, Your Honor. And, furthermore, if
you test a hair and you can get a DNA reading on it and
then you test a towel and you get the same DNA reading
on the towel, and now you have two items of evidence that
connect another person to the crime scene. And if the
towel is a towel that has the blood of the victims on it,
then that would be pretty significant evidence, Your
Honor. So you may not have identified exactly who that
person is, but now you have put together some pretty
strong and powerful circumstantial evidence to show that
it was not Sergeant Hennis . . . .
[. . .]
MJ: It might be helpful if I were to know the results of
your expert’s analysis of the DNA swab and smear in
order to put your argument in context.
CDC: Your Honor, I will say right now it’s totally
irrelevant to this issue. First of all, we have been limited
in how we can connect that information with other
information from the crime scene and in consultation with
our experts. And so one aspect of this is that semen was
found in these vaginal swabs inside [Mrs. KE’s] body, but
you don’t know where you go with that information.
MJ: Well, if for instance, the experts who analyzed the
DNA evidence came to opposite conclusions as to who
contributed the DNA sample that might put things in a
different context.
[. . .]
MJ: My concern is, Mr. Spinner, that the evidence is--or
lack of--either there is evidence or there’s lack of
evidence both of which are exculpatory for the accused;
and you’ve said that you wish to examine and then perhaps
test the evidence to develop a potential DNA profile of
someone else who may have contributed--
CDC: Who may have committed the crime or then
assisted in some way.
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HENNIS—ARMY 20100304
MJ: Yes. But you can’t cite me any case law that says
you have a right to develop this potential DNA profile.
CDC: Yes, Your Honor. I have. I’ve cited [United States
v. McAllister, 55 M.J. 270 (C.A.A.F. 2001)] and [United
States v. Walker, 66 M.J. 721 (N.M. Ct. Crim. App.
2008)]. And those cases don’t say the defense does not
have a right to test other items; but they do say DNA is
powerful evidence, it’s unique evidence, it provides us
things that we can do today that other types of forensic
testing cannot do . . . .
MJ: And McAllister was assistance to test the items that
were admitted in court?
CDC: Right, Your Honor. But there’s nothing in
McAllister inconsistent with what I’m arguing here today.
Arguing in opposition, government counsel expressed its view that the
defense conceded Mrs. KE had been raped and murdered. This argument prompted
civilian defense counsel to respond that whether she had been raped, an alleged
aggravating factor, was a matter “in contest.” Government counsel continued, later
indicating that four other persons of interest, Mr. WHH, Mr. PC, Mr. BWW, and Mr.
JR, had provided buccal swabs, DNA analysis of which excluded them as
contributors of the semen on the vaginal smear. Ultimately, government counsel
concluded his argument by agreeing with the defense motion only to the extent it
would allow the defense expert to analyze the Mr. X letters.
In rebuttal, responding to government counsel’s argument that the defense
could not cite a case supporting its motion, civilian defense counsel referred to the
earlier state proceedings in which the trial court granting defense expert access to
evidence obtained during the original investigation but not otherwise tested. The
defense did not argue for permission to submit matters ex parte, instead relying on
its brief. Aside from the declarations described above, the defense offered no
matters with its motion indicating the government’s forensic analysis in this case
was faulty.
The military judge denied the defense motion on 13 October 2009, finding and
concluding inter alia:
The defense request amounts to a request for the court to
reconsider its [11 May 2009 ruling] which, in part, denied
expert assistance to analyze and test certain items. This
defense motion also expands upon the prior defense
31
HENNIS—ARMY 20100304
motion...and now includes all the items of evidence set out
in [Mr. LR’s declaration]. . . .
The defense has access to all the evidence set out in [Mr.
LR’s declaration]. What defense is more specifically
requesting is for the court to order the government to fund
a defense expert to analyze the evidence in [Mr. LR’s
declaration] in an effort to develop a potential DNA
profile of the person or persons who were the contributors
of biological matter on the evidence in an effort to
identify the actual perpetrator(s). It is unclear how a
specific person could be identified without comparing the
results to a known DNA sample. There is no proffer that
the test results would indicate when the evidence which
the defense requests to be analyzed had been left in the
house rented by the [E] family. The accused has the right
to necessary expert assistance. He does not have the right
to unrestricted expert assistance. See United States v.
Gray, 51 M.J. 1 (C.A.A.F. 1999) and United States v.
Garries, 22 M.J. 288 (C.M.A. 1986).
Under Rule for Court Martial 701(a)(2)(A) the government
shall permit the defense to inspect inter alia tangible
objects “which are within the possession, custody, or
control of military authorities, and which are material to
the preparation of the defense or are intended for use by
the trial counsel as evidence in the prosecution case-in-
chief at trial, or were obtained from or belong to the
accused.”
The defense has had the opportunity to examine and
conduct independent DNA testing on the physical,
linchpin, evidence the government intends to offer at trial.
See United States v. Walker, 66 M.J. 721 (N.M. Ct. Crim.
App. 2008), United States v. McAllister, 55 M.J. 270
(C.A.A.F. 2001), and United States v. McAllister, 64 M.J.
248 (C.A.A.F. 2007).
The government has previously tested some of the
requested items. The results of those tests conducted by
the government experts exclude the accused as the
contributor of any biological matter on that evidence.
Those test results are, therefore, exculpatory for the
accused. While the government indicates that it does not
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HENNIS—ARMY 20100304
intend to use those items in its case-in-chief, the defense
may use those items and test results in its case. The
defense has not shown how further testing of items which
are already exculpatory for the accused is material to the
preparation of the defense.
The other items requested by the defense to be analyzed
by its own experts which were not previously tested by
government experts are necessarily exculpatory for the
accused without any further testing because the trial
counsel are precluded from arguing those non-tested items
incriminate the accused in anyway. The defense has not
shown how testing of those items which are already
exculpatory for the accused is material to the preparation
of the defense.
The defense cites no authority for the position that the
accused is entitled to government funded expert assistance
to analyze items which are already established as
exculpatory. The defense has not met its burden to show
why it is necessary for the court to order the government
to fund DNA analysis on the requested items.
Accordingly, the defense motion is denied.
(Internal paragraph markings omitted).
“We review a military judge’s decisions on requests for expert assistance for
abuse of discretion.” McAllister, 55 M.J. at 275 (citing United States v. Short, 50
M.J. 370, 373 (C.A.A.F. 1999), cert. denied, 528 U.S. 1105 (2000)). In McAllister,
DNA analysis of genetic material taken from a victim’s fingernails became the
government’s “linchpin” evidence, but the accused was denied the opportunity to
subject it to renewed testing by a competent defense expert. Relying on the
principle that an accused “must demonstrate the necessity for” expert assistance, our
superior court concluded the trial judge abused his discretion by denying the
requested testing. Id. at 275 (quoting United States v. Garries, 22 M.J. 288, 291
(C.M.A. 1986), cert. denied, 479 U.S. 985 (1986)).
We distinguish appellant’s case from McAllister, for the military judge here
granted the defense request to facilitate renewed testing on the only forensic
evidence which linked appellant to the murder scene. In other words, his decision
was McAllister-compliant. Appellant urged at trial and renews the argument on
appeal that McAllister is not limited to an accused’s opportunity to examine and test
inculpatory evidence; instead, appellant insists McAllister reinforces the right to do
so with all evidence when it will aid the preparation of the defense. We agree in
principle, but appellant’s case causes us to recall the fundamental showing he must
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make in requesting expert assistance: “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.” United States v. Lloyd, 69
M.J. 95, 99 (C.A.A.F. 2010) (quoting United States v. Freeman, 65 M.J. 451, 458
(C.A.A.F. 2008)). 15
Appellant’s case is more analogous to Lloyd, where defense counsel requested
expert assistance in blood spatter analysis, in order to defend a service member
charged in connection with a bar fight involving four other people. By fight’s end,
three of them had stab wounds, and Lloyd, whose shirt bore multiple blood stains,
was charged as the culprit. After the convening authority denied the defense request
for expert assistance, the defense renewed the request with the military judge,
writing, inter alia:
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.
Id. at 98.
Affirming the service appellate court’s decision, our superior court observed,
“[d]ue to the different factual circumstances, particularly the fact that the evidence
at issue implicated the ‘linchpin’ of the government’s case, McAllister I lends little
support for Lloyd’s position.” Id. at 100.
Considering the defense’s decision here not to proffer specific alternate
theories in this case—contrast the defense approach in Lloyd, including specifically
naming another person as the one potentially responsible for the stab wounds—we
conclude McAllister lends even less support. Appellant only offered the general
15
The first factor involves a more specific three-part analysis: (1) why the expert is
needed; (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. United States v. Gonzalez, 39 M.J. 459, 461 (C.M.A. 1994).
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HENNIS—ARMY 20100304
hypothesis that additional forensic testing could potentially disclose a DNA profile,
an investigative lead which could again potentially lead to identifying another
person who was perhaps in the E family home at some unknown point in time. We
share the position which our superior court described under the unique factual
circumstances in Gray: “In our view, appellant has confused his right to necessary
investigative assistance with an unrestricted right to search for any evidence which
might be relevant in his case.” Gray, 51 M.J. at 31 (Emphasis in orginal.). We
conclude the military judge was well within the bounds of reasonable discretion in
denying the defense request to examine and test items of evidence beyond those
described in his 11 May 2009 order.
V. THE MILITARY JUDGE ABUSED HIS
DISCRETION WHEN HE DENIED PRODUCTION OF
NECESSARY AND RELEVANT WITNESSES WHO
WERE CRITICAL TO A THIRD PARTY
CULPABILITY DEFENSE.
On 13 January 2010, the defense moved the trial court to compel production
of Mr. WHH, Mr. GS, and Ms. MK. The motion proffered the following:
[Mr. WHH] - Will testify he lived on Hawfield Drive with
[Mr. GS], near the [KE] residence. Stated in previous
interview that scratches on his face around the time of the
murders were as a result of a single black male trying to
steal his bicycle, which differs from what he told his
girlfriend. Moved from Fayetteville shortly after the
murders. Refused to give hair, fingerprint, and
handwriting samples in 1989. Written summaries of
witness interviews from Mr. [WHH] are attached as
Enclosure 9. 16
[Ms. MK] - Will testify to the following: She was a
Winn-Dixie employee and she dated [Mr. WHH] in 1985
and, around the time of the [E family] murders, [Mr.
WHH] had scratches on his face. He told her that “two or
three black guys jumped him and beat him up.” He later
denied ever having the scratches. [Mr. WHH] had
financial problems at the time of the murders and asked to
16
The enclosure is comprised of multiple summaries of conversations between law
enforcement investigators and Mr. WHH in the summer of 1989.
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HENNIS—ARMY 20100304
be transferred to Raleigh, NC shortly after the murders. A
written summary of a witness interview from Ms. [MK] is
attached as Enclosure 5. 17
[Mr. GS] - Roommate of [Mr. WHH] and owner of a light-
colored work van that resembled one seen outside of the
[E family] home on the night of the murders.
On 20 January 2010, the military judge held an Article 39(a), UCMJ, session
to address, inter alia, this defense motion. Asked to explain the need for Ms. MK’s
testimony, the defense indicated she would “emphasize the inconsistency over time
that [Mr. WHH has] said different things.” The military judge and defense counsel
had the following exchange:
MJ: I assume that your position is that Mr. [WHH] is a
suspect?
IMC: It is.
MJ: And that’s why you want Ms. [MK] to testify about
Mr. [WHH] because you think he’s a suspect?
IMC: Yes, Your Honor. And you asked me my reply
regarding the DNA-exclusion argument? I would note that
the DNA is just one piece of forensic evidence and that, in
the defense’s view, it does not identify who the killer was
in this case.
MJ: OK. And how do you come to the conclusion that
Mr. [WHH] is a suspect?
IMC: It again, sir, is because of proximity--
MJ: What, what’s the proximity? You say around the
time. I don’t know what that means.
17
The enclosure is comprised of a single summary of a conversation between law
enforcement investigators and Ms. MK in the summer of 1989. The summary does
not indicate, as suggested in the motion, that Mr. WHH denied having scratches;
however, the defense did state at the motion hearing that the defense team had also
spoken with her.
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HENNIS—ARMY 20100304
IMC: With--okay--I was going proximity in terms of
location.
MJ: Okay.
IMC: Okay. Let me give you both, Your Honor.
MJ: But you said around the times Mr. [WHH] had
scratches on his face. I don’t know what around the time
means. That could be weeks or it could be months. I
don’t know what that means.
IMC: Well, the statement from [Ms. MK] is that she
recalls it happening around that time, and I don’t have
days or weeks. But that’s what her recollection is, that she
recalls the time of the [E family] murders and that at that
time or around that time that he had scratches. He had
various explanations and then later denied that the
scratches ever took place.
MJ: Well, how does that make him a suspect of three
murders?
IMC: Because the defense anticipates there will be some
conversation and testimony in the government’s case
regarding the violence at the murder scene and that
wounds to your face certainly are relevant in contrast to
Master Sergeant Hennis who the next day is at a PT run
and has no scratches, no signs of distress, no physical
signs whatsoever.
MJ: So anybody in or around May 1985 who had
scratches on his face would be a suspect?
IMC: Well, there’s more, Your Honor.
[. . .]
IMC: [I]t’s in the proffer regarding the van. It’s in the
proffer of Mr. [GS] that he was the owner of such a van.
Mr. [GS] was [Mr. WHH’s] roommate.
[. . .]
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HENNIS—ARMY 20100304
MJ: How does that make Ms. [MK] a necessary witness?
IMC: . . . Ms. [MK] is a witness as to the scratches she
observed and what [Mr. WHH] told her regarding those
scratches and how that story changed.
Regarding the defense request to compel production of Mr. WHH, the
following exchange occurred:
MJ: Okay. Mr. [WHH]? Anything to add there, Defense?
IMC: Not beyond what we’ve already discussed, Your
Honor.
MJ: It’s your theory that he’s a suspect?
IMC: Yes, sir.
[. . .]
MJ: What about the government’s proffer that the DNA
evidence or the DNA sample from Mr. [WHH] excludes
him as the donor of the semen?
IMC: Your Honor, there is--again, the defense would
argue that that is not the only bit of relevant forensic
evidence in this case. There is forensic evidence at the
crime scene--at the crime scene, but has never been linked
and indeed the accused has been excluded as a link.
MJ: Does it link to Mr. [WHH]?
IMC: Mr. [WHH] to my knowledge has never been tested
on fingerprints.
MJ: So it doesn’t link to Mr. [WHH]?
IMC: I don’t know, Your Honor.
MJ: And you say he moved from Fayetteville, shortly
after the murders. What does that mean?
IMC: I beg--
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HENNIS—ARMY 20100304
MJ: Last time you said shortly was months. So I don’t
know what this means.
IMC: Let me double check, Your Honor. I believe its
months again.
Regarding the defense request to compel production of Mr. GS, the following
exchange occurred:
MJ: Mr. [GS]?
IMC: We’ve addressed, Your Honor, the defense’ belief
that Mr. [GS] is relevant because, as a neighbor of the [E
family] and a roommate of Mr. [WHH], he owned a light-
colored van that matches the description that was seen
close to outside the [E family] residence.
MJ: What do you expect him to say? You haven’t given a
synopsis of what you expect him to say, just that you say
he’s a roommate.
IMC: . . . He will testify that he was a roommate of [Mr.
WHH] and that he was the owner of a light-colored van.
MJ: And you expect--because you think Mr. [GS] is a
suspect?
IMC: I don’t know whether we believe him to be a
suspect.
MJ: Well, didn’t--what about the government’s DNA
testing that excludes Mr. [WHH] as a donor of the semen?
IMC: Well, again, Your Honor, we’re rehashing old
ground but the DNA test, in the defense’s view, is not
dispositive. In its attempt to put on a defense for Master
Sergeant Hennis, it’s going to introduce relevant evidence
and argue all reasonable inferences regarding that
evidence. Whether or not Mr. [GS’s] DNA evidence
matches that--
MJ: Well, not Mr. [GS’s]--Mr. [WHH’s].
IMC: I apologize. Are we going back to Mr. [WHH], sir?
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HENNIS—ARMY 20100304
MJ: No, but you said that Mr. [GS] is not a suspect. You
said that he was a roommate of Mr. [WHH]?
IMC: Yes, sir.
MJ: And that he owned a light-colored van that
apparently resembled one seen outside the [E family]
residence. You have indicated that Mr. [WHH] perhaps is
a suspect?
IMC: Yes, sir.
MJ: The government proffers that the DNA sample from
Mr. [WHH] excludes him as a donor of the semen.
IMC: And as we discussed with the discussion of Mr.
[WHH], there’s other forensic evidence to the defense’s
knowledge -- including fingerprints, hair analysis--that
has not excluded Mr. [WHH]. And again, Your Honor, the
relevance is that the defense does not buy the
government’s version that even if there is a DNA match
with Master Sergeant Hennis, that is dispositive of who is
the murderer.
On 26 January 2010, the military judge denied the portions of the defense
motion regarding Ms. MK, Mr. WHH, and Mr. GS, and ruled as follows:
[Mrs. MK]: She will testify that she dated Mr. [WHH] in
1985 and he had scratches on his face around the time of
the [KE] murders. While the defense theory is that Mr.
[WHH] is a suspect in the [KE] murders, the defense
proffered no evidence to support that theory or that Mr.
[WHH] in any way resembles the person seen near the [E
family] residence at the time of the murders. The DNA
sample provided by Mr. [WHH] excludes him as the donor
of the semen found at the crime scene. The defense made
no proffer that the DNA testing is inaccurate. The defense
has failed to show that Ms. [MK] is a relevant and
necessary witness. The motion to order the production of
Ms. [MK] is denied.
[Mr. WHH]: His testimony is related to Ms. [MK’s]
testimony. Mr. [WHH] had scratches on his face around
the time of the [E family] murders. While the defense
40
HENNIS—ARMY 20100304
theory is that Mr. [WHH] is a suspect in the [E family]
murders, the defense proffered no evidence to support that
theory or that Mr. [WHH] in any way resembles the person
seen near the [E family] residence at the time of the
murders. The DNA sample provided by Mr. [WHH]
excludes him as the donor of the semen found at the crime
scene. The defense made no proffer that the DNA testing
is inaccurate. The defense has failed to show that Mr.
[WHH] is a relevant and necessary witness. The motion to
order the production of Mr. [WHH] is denied.
[Mr. GS]: Mr. [GS] was the roommate of Mr. [WHH]. He
will testify that Mr. [WHH] owned a light-colored work
van similar to one seen outside the [E family] home on the
night of the murders. While the defense theory is that Mr.
[WHH] is a suspect in the [E family] murders, the defense
proffered no evidence to support that theory or that Mr.
[WHH] in any way resembles the person seen near the [E
family] residence at the time of the murders. The DNA
sample provided by Mr. [WHH] excludes him as the donor
of the semen found at the crime scene. The defense has
made no proffer that the DNA testing is inaccurate. Since
there is no evidence connecting Mr. [WHH] to the crime
scene, the relevance of the color of his van is not the least
bit clear. The motion to order the production of Mr. [GS]
is denied.
In United States v. McElhaney, our superior court succinctly re-stated the
standards regarding production of witnesses:
Article 46, UCMJ, 10 [U.S.C.] § 846, provides all parties
to a court-martial with “equal opportunity to obtain
witnesses and other evidence in accordance with such
regulations as the President may prescribe.” Under
[R.C.M.] 703(b)(1), Manual, supra, “each party is entitled
to the production of any witness whose testimony on a
matter in issue on the merits or on an interlocutory
question would be relevant and necessary.” See also
[Military Rule of Evidence] 401. A military judge’s
ruling on a request for a witness is reviewed for abuse of
discretion. United States v. Rockwood, 52 [M.J.] 98, 104
([C.A.A.F.] 1999). The decision on a request for a
witness should only be reversed if, “on the whole,” denial
of the defense witness was improper. United States v.
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HENNIS—ARMY 20100304
Ruth, 46 [M.J.] 1, 3 ([C.A.A.F.] 1997). We will not set
aside a judicial denial of a witness request “unless [we
have] a definite and firm conviction that the [trial court]
committed a clear error of judgment in the conclusion it
reached upon a weighing of the relevant factors.” United
States v. Houser, 36 [M.J.] 392, 397 ([C.M.A.] 1993),
quoting Judge Magruder in The New York Law Journal at
4, col. 2 (March 1, 1962).
Factors to be weighed to determine whether personal
production of a witness is necessary include: the issues
involved in the case and the importance of the requested
witness to those issues; whether the witness is desired on
the merits or the sentencing portion of the case; whether
the witness’s testimony would be merely cumulative; and
the availability of alternatives to the personal appearance
of the witness, such as depositions, interrogatories, or
previous testimony. United States v. Tangpuz, 5 [M.J.]
426, 429 ([C.M.A.] 1978); Ruth, supra at 4. Timeliness of
the request may also be a consideration when determining
whether production of a witness is necessary. R.C.M.
703(c)(2)(C); United States v. Reveles, 41 [M.J.] 388, 394
([C.A.A.F.] 1995).
54 M.J. 120, 126-27 (C.A.A.F. 2000).
We understand a person accused of a crime may obtain production of relevant
evidence tending to show that another person may have committed the charged crime
instead. The right to obtain and present such “third party culpability” evidence is an
important component of an accused’s right to present a defense. The military judge
determined the proffered testimony was not relevant and necessary. Relying heavily
on the treatment of third party culpability evidence in Holmes vs. South Carolina,
547 U.S. 319, 327 (2006), appellant now asserts the military judge’s determination
was unsound. We disagree.
In Holmes, the defendant was convicted of, inter alia, murder and sentenced
to death. At trial, the defendant was prohibited from offering evidence from
multiple witnesses who would have testified about seeing another named person in
the victim’s neighborhood on the morning she was attacked. The defendant also
sought to call four additional witnesses who would either: testify that the same third
person admitted the defendant was actually innocent; or, testify that the same third
person admitted he was the actual culprit. Arrayed against the defendant, however,
were several items of inculpatory forensic evidence, buttressed in multiple respects
by DNA analysis.
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Affirming the trial court’s decision to exclude the third party culpability
evidence, South Carolina’s Supreme Court held “where there is strong evidence of
an appellant’s guilt, especially where there is strong forensic evidence, the proffered
evidence about a third party’s alleged guilt does not raise a reasonable inference as
to the appellant’s own innocence.” Holmes, 547 U.S. at 324 (citing State v. Holmes,
361 S.C. 333, 342-43, 605 S.E.2d 19, 23-24 (2004)).
Reversing in a unanimous opinion, the Supreme Court provided examples of
unconstitutional evidentiary rules, stricken because of their arbitrary nature and
effect. The court continued to describe the balanced approach which trial judges
must use in ruling on admissibility of third party culpability evidence:
A specific application of this principle is found in rules
regulating the admission of evidence proffered by criminal
defendants to show that someone else committed the crime
with which they are charged. See, e.g., 41 C.J.S.,
Homicide § 216, pp 56-58 (1991) (“Evidence tending to
show the commission by another person of the crime
charged may be introduced by accused when it is
inconsistent with, and raises a reasonable doubt of, his
own guilt; but frequently matters offered in evidence for
this purpose are so remote and lack such connection with
the crime that they are excluded”); 40A Am. Jur. 2d,
Homicide § 286, pp 136-138 (1999) (“[T]he accused may
introduce any legal evidence tending to prove that another
person may have committed the crime with which the
defendant is charged . . . . [Such evidence] may be
excluded where it does not sufficiently connect the other
person to the crime, as, for example, where the evidence is
speculative or remote, or does not tend to prove or
disprove a material fact in issue at the defendant’s trial”
(footnotes omitted)). Such rules are widely accepted, and
neither petitioner nor his amici challenge them here.
Id. at 327.
Finding the state supreme court’s approach arbitrary, illogical and, therefore,
unconstitutional, the court wrote:
The rule applied in this case is no more logical than its
converse would be, i.e., a rule barring the prosecution
from introducing evidence of a defendant’s guilt if the
defendant is able to proffer, at a pretrial hearing, evidence
that, if believed, strongly supports a verdict of not guilty.
In the present case, for example, petitioner proffered
evidence that, if believed, squarely proved that [a named
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third person], not petitioner, was the perpetrator. It would
make no sense, however, to hold that this proffer
precluded the prosecution from introducing its evidence,
including the forensic evidence that, if credited, provided
strong proof of petitioner’s guilt.
Id. at 330.
Appellant now describes the military judge as falling “into the same trap [as]
in Holmes, excluding the introduction of evidence simply because it did not
necessarily square on all fours with a piece of the forensic evidence in the case.”
Our assessment is different. The military judge considered that DNA analysis
excluded Mr. WHH as the source of sperm obtained from one of the murder victims,
but this consideration was one of several. Had the military judge considered only
this DNA result, he would have erred under Holmes. However, he went beyond the
government’s evidence, pressing defense counsel for any information that could
fairly be described as surpassing speculation and constituting probative evidence to
support a theory that Mr. WHH, worthy of suspicion as a culpable third party in the
defense’s estimation, 18 was responsible for the murders. Holmes is an important
reminder of what should be a self-evident principle—the admissibility of defense
evidence cannot depend on the admissibility of government evidence. However, it
leaves intact an appellant’s burden to establish the relevance and necessity of a
requested witness’s testimony. The military judge’s conclusion that the defense did
not fulfill this burden was reasonable and not an abuse of discretion.
VI. THE MILITARY JUDGE ERRED IN DENYING
THE DEFENSE A NEW TRIAL PREDICATED ON
THE GOVERNMENT’S FAILURE TO DISCLOSE
THE NORTH CAROLINA “SWECKER/WOLF”
REPORT, IMPEACHMENT EVIDENCE REQUESTED
PURSUANT TO A SPECIFIC DEFENSE DISCOVERY
REQUEST THAT WOULD HAVE LIKELY CAST
DOUBT ON THE PROCEEDINGS.
The panel sentenced appellant to death on 15 April 2010. On 15 October
2010, the defense filed a “Motion for Appropriate Relief - Motion for a
18
Interestingly, the defense team suggested a named nearby neighbor, not Mr. WHH,
possessed motive and opportunity to commit the murders. According to another
theory, a named person, who was involved in illegal drugs with one of the E family’s
babysitters, could have exacted vengeance upon the E family in retaliation for a
botched drug deal involving the babysitter. The defense attributed neither of these
motives, or any, to Mr. WHH.
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Mistrial/Motion for a New Trial and Request for Post-Trial 39(A).” The basis for
the motion was a report released on 18 August 2010 by the North Carolina Attorney
General, entitled “An Independent Review of the SBI Forensic Laboratory”
(“Swecker/Wolf report”). The motion cited the report’s finding that Ms. BBD
“misidentified or incompletely discussed blood evidence in twenty-four (24) cases.”
It also states that “[t]his information was not provided to the Defense prior to, or
during, trial in U.S. v. Hennis.”
The military judge held a post-trial Article 39(a), UCMJ, session on 21
January 2011 and heard the parties’ arguments on the motion. He ruled on 27
January 2011, finding:
a. Ms. [BBD] worked in the Forensic Biology Section of
the State Bureau of Investigation (SBI) Crime Laboratory
where she analyzed certain evidence in the course of the
investigation in this case. Ms. [BBD] was qualified at
trial as a Government expert in forensic serology. Ms.
[BBD’s] testimony included such matters as blood
evidence, blood samples, vaginal swabs, luminol testing,
and luminol photographs.
b. The North Carolina Attorney General commissioned an
independent review of the activities and performance of
the Forensic Biology Section of the SBI Crime Laboratory
in March, 2010, by Mr. Chris Swecker and Mr. Michael
Wolf, hereinafter referred to as the Swecker/Wolf report.
The North Carolina Attorney General commissioned the
independent review based on a case completely unrelated
to the Hennis case. The Swecker/Wolf report focused on
the policies, procedures, and practices of the Forensic
Biology Section of the SBI Crime Laboratory between
January 1987 and January 2003. The completed
Swecker/Wolf report was released on 18 August 2010.
While Ms. [BBD] and her work product were not the basis
for commissioning the independent review, Ms. [BBD’s]
work was reviewed by the commission because she had
been an employee at the SBI Crime Laboratory during a
portion of the time on which the Swecker/Wolf report
focused its review of the SBI Crime Laboratory.
c. The Swecker/Wolf report, attached to AE 531,
reviewed cases unrelated to the Hennis investigation. The
report speaks for itself so there is no need to summarize
its findings or recommendations. However, it is important
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to note paragraph 9 in its Summary Findings: “No
evidence was found that laboratory files or reports were
concealed or evidence deliberately suppressed. Anyone
with access to the lab notes could discover the
discrepancies and omissions in this report.” The Defense
had full access to all of the lab files and reports done by
Ms. [BBD] in her evaluation of evidence in the Hennis
investigation.
d. Ms. [BBD] testified that her analysis of the blood
evidence and blood samples obtained during the
investigation did not connect MSG Hennis to the crime
scene. Ms. [BBD] testified she did not detect any blood
on any evidence seized from MSG Hennis’ car or from his
quarters. Ms. [BBD] testified she detected a blood smear
on a wall at approximately her shoulder height in the
hallway of the crime scene. Ms. [BBD] is considerably
shorter than MSG Hennis. Ms. [BBD] testified she
detected a partial print at the crime scene using luminol
testing. It was beyond her expertise to determine the shoe
size of the print. A Defense expert testified, in his
opinion, the shoe print was smaller than the shoe size of
MSG Hennis. Ms. [BBD’s] testimony was actually
exculpatory for MSG Hennis. A defense counsel, in
effect, conceded this during closing argument when he
said that, concerning blood evidence, “[Ms. BBD] could
have been a witness for the defense.” ROT at 6564.
e. The Defense had evidence available at trial to use in an
attempt to impeach Ms. [BBD] based on her work in an
unrelated case. See AE 119. The Defense chose not to
use that potential impeachment evidence. The court
reasonably infers the Defense made a tactical decision not
to attempt to impeach Ms. [BBD] because doing so would
likely have undermined the Defense argument that she
“could have been a witness for the defense” because of the
exculpatory nature of her expert testimony.
f. There is no allegation the Defense was denied access to
any of the laboratory files, reports, or test results done by
Ms. [BBD] in the Hennis case. Unlike some of the files
reviewed in the Swecker/Wolf report, it is important to
note that the defense had access to all of Ms. [BBD’s]
laboratory files and notes concerning the testing she
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HENNIS—ARMY 20100304
conducted in the Hennis investigation. Ms. [BBD] did not
testify concerning any of the DNA analysis done in this
case as she is not a DNA expert. While Ms. [BBD] did
testify that a vaginal slide contained sperm, the presence
of sperm was corroborated by several other expert
witnesses. The Defense had its own forensic experts. It is
significant that the Defense has not alleged that Ms.
[BBD’s] analysis of the evidence in this case was wrong
or misleading.
g. The evidence concerning Ms. [BBD’s] work product in
other unrelated cases discovered after the trial is not
substantive evidence addressing the guilt or innocence of
MSG Hennis. This recently obtained evidence may have
been used for what value it may have served as potential
impeachment of Ms. [BBD]. Assuming, without deciding,
the matter contained in the Swecker/Wolf report was
subject to discovery, the value of the recently obtained
potential impeachment evidence is, at best, de minimus by
itself, and even less valuable when considered in
connection with the exculpatory nature of Ms. [BBD’s]
testimony and all other pertinent evidence.
h. A military judge may declare a mistrial, as a matter of
discretion, when such action is manifestly necessary in the
interest of justice because circumstances cast substantial
doubt on the fairness of the proceedings. See R.C.M.
915(a). The de minimus value of the recently obtained
potential impeachment evidence does not cast substantial
doubt on the fairness of the proceedings. A mistrial is
viewed as a drastic remedy reserved for those cases in
which it is necessary to avoid a miscarriage of justice.
See United States v. Garces, 32 M.J. 345 (C.M.A. 1991);
[United States] v. Fisiorek, 43 M.J. 244 (C.A.A.F. 1995).
The court specifically finds the lack of this recently
obtained potential impeachment evidence of de minimus
value for use at trial was harmless beyond a reasonable
doubt and did not cause a miscarriage of justice.
Accordingly, the motion for a mistrial is denied.
i. The defense moves for a new trial in the event the court
denies the motion for a mistrial. There is a three part test
to be used to determine if a request for a new trial should
be granted. See United States v. Bacon, 12 M.J. 489
47
HENNIS—ARMY 20100304
(C.M.A. 1982); United States v. Williams, 37 M.J. 352[,]
356 (C.M.A. 1993). Assuming, without deciding, the
defense meets the first two prongs of the test that is, the
files from Ms. [BBD’s] unrelated cases “were discovered
since the trial” and they “could not have been discovered
by the [accused] at the time of trial by the exercise of due
diligence,” the defense fails to meet the third prong of the
test which is this “newly discovered evidence, if
considered by the court-martial in light of all other
pertinent evidence, would probably produce a
substantially more favorable result for” the accused. See
United States v. Williams, supra at 356.
j. The Defense cites United States v. Webb, 66 M.J. 89
(C.A.A.F. 2008) in support of its motion. The potential
impeachment evidence of the observer for the urinalysis
test in Webb, whose testimony was inculpatory, was much
more significant than potential impeachment evidence for
Ms. [BBD] whose testimony was exculpatory for the
accused. It is important to note that while the court in
Webb found that the trial judge did not abuse her
discretion in ordering a new trial, the court in Webb did
not find that a new trial was actually required. This court
specifically finds the de minimis value of the recently
obtained potential impeachment evidence concerning Ms.
[BBD’s] work product in cases unrelated to the accused
would not have probably produced a substantially more
favorable result for the accused in light of all other
pertinent evidence presented at trial which includes, but is
not limited to, the results of the DNA testing done by
experts other than Ms. [BBD], and particularly in light of
the exculpatory nature of Ms. [BBD’s] testimony.
Furthermore, lack of this recently obtained potential
impeachment evidence for use at trial did not prejudice
MSG Hennis. If anyone concludes there was any
prejudice to MSG Hennis, any alleged prejudice was
harmless beyond a reasonable doubt. Accordingly, the
motion for a new trial is denied.
We review a military judge’s ruling on a petition for a new trial for an abuse
of discretion. United States v. Rios, 48 M.J. 261, 268 (C.A.A.F. 1998). In United
States v. Johnson, our superior court restated the standards for evaluating petitions
for new trial:
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Article 73, UCMJ, 10 U.S.C. § 873 (2000), allows
petitions for new trials “on the grounds of newly
discovered evidence or fraud on the court.” Implementing
this UCMJ provision, Rule for Courts-Martial (R.C.M.)
1210(f)(2) [] provide[s] . . . :
(2) Newly discovered evidence. A new trial shall not be
granted on the grounds of newly discovered evidence
unless the petition shows that:
(A) The evidence was discovered after the trial;
(B) The evidence is not such that it would have been
discovered by the petitioner at the time of trial in the
exercise of due diligence; and
(C) The newly discovered evidence, if considered by a
court-martial in the light of all other pertinent evidence,
would probably produce a substantially more favorable
result for the accused.
61 M.J. 195, 198 (C.A.A.F. 2005).
The military judge’s findings of fact were well supported by the evidence and
the parties’ submissions on the motion, including the Swecker/Wolf report. We
consider Ms. BBD’s testimony predominantly exculpatory; as the main witness
regarding the presence or absence of blood, she testified about the lack of such
evidence linking appellant to the crime. Though her testimony included a
description of intact spermatozoa on forensic slides derived from Mrs. KE’s autopsy,
hers was only one of multiple similar findings regarding that evidence. Assuming
arguendo the Swecker/Wolf report would have achieved appellant’s desired effect of
impeaching Ms. BBD, we consider the implications: the exculpatory nature of her
testimony diminished, to appellant’s detriment; and, the inculpatory nature of her
testimony perhaps somewhat diminished, given the multiple witness accounts of the
presence of spermatozoa and resultant DNA analysis. The military judge remained
well within the bounds of reasonable discretion in denying appellant’s motion for a
new trial, for the newly discovered evidence did not bring with it the “[probability
to] produce a substantially more favorable result for the accused.” Id.
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VII – A. THE MILITARY JUDGE’S DENIAL OF
DEFENSE COUNSEL’S PROPOSED VOIR DIRE AND
THE SUBSEQUENT LIMITATION OF THE SCOPE
AND NATURE OF VOIR DIRE DEPRIVED MSG
HENNIS OF HIS CONSTITUTIONAL RIGHT IN A
DEATH PENALTY CASE TO EXERCISE HIS RIGHT
TO CHALLENGE FOR CAUSE PROSPECTIVE AND
BIASED PANEL MEMBERS AND EXERCISE
PEREMPTORY CHALLENGES.
In his brief, appellant asserts:
Throughout the individual voir dire of the prospective
panel members, defense counsel attempted to use the
Colorado Method of Capital Voir Dire (Colorado Method),
the most widely accepted method of voir dire in a capital
case, but was repeatedly undercut by the military judge’s
frequent interruptions, inconsistencies in his rulings on the
“appropriateness” of voir dire questions, attempted
rehabilitation of panel members, and ultimately, the
truncation of the defense voir dire. (Footnote omitted).
We appreciate appellate defense counsel’s citation to Matthew Rubenstein’s,
Overview of the Colorado Method of Capital Voir Dire, 19 for it offers an excellent
survey of the technique. However, when we compare roughly 2,000 pages of voir
dire transcript in this case to the method’s principles, appellant’s argument is
unpersuasive, for it is difficult to imagine a defense voir dire more strictly adherent
to the Colorado Method. We recognize the Colorado Method is not the standard for
assessing the sufficiency of voir dire; we briefly focus on it, however, to illustrate
our conclusion after reviewing this record that the military judge’s involvement did
not prevent the defense from using it.
The right to voir dire is a component of the constitutional right an impartial
jury, which the Supreme Court announced in Wainwright v. Witt: “the proper
standard for determining when a prospective juror may be excluded for cause
because of his or her views on capital punishment . . . is whether the juror’s views
would ‘prevent or substantially impair the performance of his duties as a juror in
accordance with his instructions and his oath.’” 469 U.S. 412, 424 (1985) (quoting
19
34-Nov Champion 18, Capital Resource Center (2010).
50
HENNIS—ARMY 20100304
Adams v. Texas, 448 U.S. 38, 45 (1980)). In Morgan v. Illinois, our nation’s
highest Court wrote of the intertwined nature of the right to jury trial and voir dire:
The Constitution, after all, does not dictate a catechism
for voir dire, but only that the defendant be afforded an
impartial jury. Even so, part of the guarantee of a
defendant’s right to an impartial jury is an adequate voir
dire to identify unqualified jurors.
504 U.S. 719, 729 (1992) (citing Dennis v. United States, 339 U.S. 162, 171-72
(1950) and Morford v. United States, 339 U.S. 258, 259 (1950)).
Appellant now asserts the military judge arbitrarily intervened in voir dire and
constrained the defense from asking constitutionally-required questions. 20 We
20
The military judge allowed, inter alia, the following questions during voir dire:
If evidence shows the accused committed the premeditated murders of a
mother and two of her daughters, would you automatically vote to
impose the death penalty?
If the accused--if you find the accused guilty of premeditated murders
of a mother and two of her daughters, would you automatically vote to
impose the death penalty?
Can you fairly consider a life sentence if the evidence shows the
accused committed the premeditated murders of a mother and two of
her daughters?
Would you automatically reject a life sentence if the evidence shows
the accused committed the premeditated murders of a mother and two
of her daughters?
If you find the accused guilty, would you automatically impose a death
sentence no matter what the facts of this case were?
Have you given much thought to the death penalty before being notified
as a court member? Can you fairly consider all of the evidence before
reaching your determination of a sentence?
Can you fairly consider all of the sentencing alternatives, if the accused
were convicted of premeditated murder, to include life and death?
(continued . . .)
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understand voir dire is important in any panel case, particularly so in one with the
possibility of capital punishment. However, we do not share appellant’s criticism of
the military judge’s involvement, mindful of his “responsibility to remove
prospective jurors who will not be able impartially to follow the court’s instructions
and evaluate the evidence . . . .” Morgan, 504 U.S. at 730 (quoting Rosalez-Lopez v.
United States, 451 U.S. 182, 188 (1981) (plurality opinion)). Further considering
the discretion with which trial judges are entrusted in supervising voir dire, we
conclude the military judge’s regulation thereof was appropriate and not an abuse of
discretion.
VII – B. THE MILITARY JUDGE, BY FAILING TO
DISMISS THREE PANEL MEMBERS FOR CAUSE
BASED ON ACTUAL BIAS AND IMPLIED BIAS
MANIFESTED BY A PREDISPOSITION TO
ADJUDGE DEATH, AN INELASTIC OPINION
AGAINST CONSIDERING MITIGATING EVIDENCE
ON SENTENCING, VISCERAL REACTIONS TO THE
CHARGED ACTS, PRECONCEIVED NOTIONS OF
GUILT, AND A BIAS TOWARD DEFENSE COUNSEL
DENIED MSG HENNIS A FAIR TRIAL.
Appellant asserts the military judge erred in denying his causal challenges
against Lieutenant Colonel (LTC) B, Major (MAJ) W and LTC W. Before analyzing
appellant’s arguments regarding each, which analyses include rather lengthy
excerpts from their individual voir dire, we restate the relevant legal principles
associated with the right to an impartial factfinder, “the sine qua non for a fair
court-martial.” United States v. Wiesen, 56 M.J. 172, 174 (C.A.A.F. 2001) (quoting
United States v. Modesto, 43 M.J. 315, 318 (C.A.A.F. 1995)).
(. . . continued)
What types of extenuation and mitigation evidence would you want to
see from the defense?
Would you automatically reject a life sentence for a premeditated
murder?
Do you believe the death sentence or death penalty must be imposed for
all premeditated murders?
Would you automatically reject a life sentence for premeditated murder
regardless of the facts and circumstances in a case?
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HENNIS—ARMY 20100304
“The proper standard for determining when a prospective juror may be
excluded for cause because of his or her views on capital punishment . . . is whether
the juror’s views would ‘prevent or substantially impair the performance of his
duties as a juror in accordance with his instructions and his oath.’” Morgan, 504
U.S. at 728 (quoting Wainwright, 469 U.S at 424).
“Actual bias is personal bias that will not yield to the military judge’s
instructions and the evidence presented at trial.” United States v. Woods, 74 M.J.
238, 243 (C.A.A.F. 2015) (quoting United States v. Nash, 71 M.J. 83, 88 (C.A.A.F.
2012)). Our evaluation of implied bias has a slightly different focus, based on an
“objective test” and “the consideration of the public’s perception of fairness in
having a particular member as part of the court-martial panel.” Woods, 74 M.J. at
243 (quoting United States v. Peters, 74 M.J. 31, 34 (C.A.A.F. 2015)).
“A military judge’s ruling on a challenge for cause is reviewed for an abuse of
discretion. Military judges are afforded a high degree of deference on rulings
involving actual bias. This reflects, among other things, the importance of demeanor
in evaluating the credibility of a member’s answers during voir dire. By contrast,
issues of implied bias are reviewed under a standard less deferential than abuse of
discretion, but more deferential than de novo.” Woods, 74 M.J. at 243 (quoting
United States v. Downing, 56 M.J. 419, 422 (C.A.A.F. 2002)).
“[T]he burden of establishing grounds for a challenge for cause rests upon the
party making the challenge.” United States v. Wiesen, 57 M.J. 48, 49 (C.A.A.F.
2002) (citing R.C.M. 912(f)(3), United States v. New, 55 M.J. 95, 99 (C.A.A.F.
2001); United States v. Rolle, 53 M.J. 187, 191 (C.A.A.F. 2000); United States v.
Warden, 51 M.J. 78, 81 (C.A.A.F. 1999); and United States v. Giles, 48 M.J. 60, 63
(C.A.A.F. 1998)). However, “military judges must follow the liberal-grant mandate
in ruling on challenges for cause . . . .” Wiesen, 56 M.J. at 174 (quoting United
States v. Daulton, 45 M.J. 212, 217 (C.A.A.F. 1996) and United States v. White, 36
M.J. 284, 287 (C.M.A. 1993)).
We now address seriatim the individual voir dire and causal challenges of
LTC B, MAJ W and LTC W.
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A. LIEUTENANT COLONEL B 21
DC: One of the things that we had talked about yesterday
was, of course, a situation where if you were to consider
the case of a premeditated murder of children and, in the
case where there is a premeditated murder that has been
proven beyond a reasonable doubt of children, that you
indicated that you would not consider life imprisonment to
be an appropriate punishment for the premeditated murder
of children . . . .
LTC B: Okay.
[. . .]
DC: . . . My understanding of your answer yesterday was
that in the case of premeditated murder of innocent
children, you believe that life imprisonment was not an
appropriate punishment for that crime, is that--am I
misstating what you said?
LTC B: No. You are not misstating me. That is correct.
DC: Okay. And so I wanted to make sure that I
understood what was it about that situation that caused
you to have that belief?
LTC B: Well, I am a father first and foremost; and I love
my kids like most of us do.
DC: Certainly.
LTC B: And because kids bring a great deal of innocence
to their being, to take- to premeditate and to actually take
a child’s life is unforgiveable in my mind.
21
In group voir dire, LTC B responded negatively when the defense asked, “[D]o
you agree with this statement if someone is convicted of premeditated murder of
children they should be given the death penalty?” He then responded positively
when asked by defense counsel, “Do you agree with the statement that life in prison
is not really punishment for premeditated murder of children?”
54
HENNIS—ARMY 20100304
DC: Certainly. And again, that’s all we are asking for is
what your personal beliefs are; and again, nobody is
criticizing that obviously. So, with regard to that, the fact
that it was--an innocent child has been murdered and it
was done by premeditated murder, that just simply
overrides anything else with regards to the appropriateness
of punishment for children--appropriateness of the
punishment of death?
LTC B: I would be willing to listen to any other type of
feedback. I have my personal belief, but that doesn’t
mean that I would necessarily strongly stand on it from the
standpoint of not listening to anything else, but I would be
willing to take other types of information in the event that
I am selected and there are other panelists that have other
opinions that differ from mine.
DC: Okay. And I certainly respect that; but as I
understand you though it is that your belief is--as you sit
here, is that that is just--that life imprisonment would not
be an appropriate punishment for someone who had with
premeditation killed innocent children, meant to do it, did
do it, killed innocent children, that just simply wouldn’t
be an appropriate punishment.
LTC B: As I sit here and I think about it, to be honest
with you, for someone who fits that category to actually
execute them or however way that they are terminated--
their life is terminated, it kind of frees them from not
having to think about it for the rest of their lives--
DC: Okay
LTC B: --as I think about it.
[. . .]
TC: . . . Sir, as has been discussed already and as I said
yesterday when I was talking to the group, the law in this
case that will be given to you for consideration at the end
of the case will come from the military judge. Do you
understand that, sir?
LTC B: Yes.
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HENNIS—ARMY 20100304
[. . .]
TC: And so the military judge is going to tell you at the
end of this case that if a person is convicted of
premeditated murder, under the circumstances that are
presented in this case--if convicted of premeditated
murder by a unanimous vote, then there are two possible
sentences that you could adjudge: one is confinement for
life and the other is the death penalty.
So with that understanding, sir, do you understand that
there are two choices that you would have?
LTC B: Yes.
TC: Sir, will you be able to fairly and fully consider both
of those choices?
LTC B: Yes.
TC: Sir, and in that consideration, will you be able to
consider not only the aggravating evidence that is
presented -- the facts of the case, the crimes--but also any
mitigation, extenuating circumstances, anything else that
may be presented by the defense? Will you be able to
consider all of that, sir?
LTC B: Absolutely.
TC: And give full and fair consideration to all of that?
LTC B: Yes.
TC: And, sir, you understand that, as far as the timing of
it, that you are not allowed to decide until you have heard
all of that evidence, to include the mitigation and
extenuation?
LTC B: I understand.
[. . .]
MJ: [Lieutenant Colonel B], you indicated that you had
learned of some--had learned of some things from the
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HENNIS—ARMY 20100304
media but had not paid much attention to it. Can you set--
will you be able to set that aside and base your decisions
based solely on what you hear in the courtroom and the
law as I instruct you and the argument that you hear from
counsel?
LTC B: Yes, sir.
MJ: Okay. Now, with regards to some questions by
counsel, you indicated that--as the scenario put forth to
you by counsel with the premeditated murder of young
children, you indicated that life is not appropriate. You
also indicated that, sitting here today, that imposing the
death penalty may free that person from having to think
about that for the rest of his life.
With those two statements, sir, if you believe that life is
not appropriate, does that mean that you automatically
have to vote for the death penalty if you were to sit on a
panel where two little girls were the victims of
premeditated murder?
LTC B: Sir, let me clarify. My initial--the emotional
portion within me as a father, I initially said life wouldn’t
be appropriate. Now, as I sat here and I was thinking
about it, I had also indicated that to take someone’s life as
a result of premeditation in the murder would free them
from having to be reminded of it for the rest of their lives.
So, simply what I am saying, sir, is that I would be open-
minded. I know what my views are, but I would be open-
minded to listen to other panelists.
MJ: Are you open-minded to be persuaded by other panel
members to what an appropriate sentence should be if you
were required to decide on an appropriate sentence in this
case?
LTC B: In terms of persuaded, sir?
MJ: Well, there will be a--you will be instructed, if we
get to sentencing, that you should discuss appropriate--
discuss sentencing and some people during that may have
differences of opinions. Those with differences of
opinions will likely discuss the individual opinion.
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HENNIS—ARMY 20100304
LTC B: Right, sir.
MJ: And likely, you know, try to tell other people why
they believe his particular opinion is correct, not using
any coercion at all--
LTC B: Right, sir.
MJ: --but just trying to explain, “Well, this is why I think
it’s right.” But are you willing to listen to what others
have to say on that matter, if we get to sentencing, before
you draw any conclusions to what you believe an
appropriate sentence is?
LTC B: Yes, sir. I would.
MJ: Now, when you have these two divergent statements
with the understandable, emotional response, I have two
children, two little girls are dead at the hands of
premeditated murder; and then you say, well also
executing that person may then free that person from
having to think about that the rest of his life. So can you
envision then that, not knowing what the evidence is--but
can you consider and envision that life might be
appropriate depending on whatever the evidence is that
comes out?
LTC B: Yes, sir.
MJ: So, when you say that life is not appropriate for this
type of offense, please again explain to me whether that
was your initial reaction or whether that is something that
you concluded after giving some thought to it?
LTC B: That was the initial reaction, sir, because I am a
father.
Defense counsel challenged LTC B for cause, citing implied bias and the
liberal grant mandate. The military judge and the defense had the following
exchange:
DC: . . . With regards to his views on the death penalty,
again, he was another panel member who in general voir
dire indicated that life in prison was not an appropriate
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punishment for a premeditated murder of children. When
questioned about that, he had very firm opinions that said
it was based upon his reaction, stating that he is a father,
and that killing a child--taking a child’s life is
unforgiveable. That this was an emotional issue with him;
that it is his personal belief; that it is one that, while he
would listen to others, he is not really open to persuasion;
that this is the appropriate punishment. Further, and I
believe most critically, he would believe that the
imposition of the death penalty would be the appropriate
punishment because it would “free the person to think
about”–“free the person from having to think about it for
the rest of their life.”
Obviously an imposition of a death penalty essentially--
and not to be glib about it--because it would be good, it
would release them from having that burden for the rest of
their lives is an inappropriate reason to impose the death
penalty. And we believe it would be an illegal reason to
impose the death penalty, i.e., making a moral decision
that it’s going to be good for them.
MJ: Well, I got the impression from [LTC B] when he
said, “The death penalty may free that person to have to
think about it the rest of their life,” as a reason not to
impose the death penalty--that is the way I interpreted his
response.
DC: Your Honor, I read that as being that it was the
reason to impose the death penalty is that it would--and in
either event, it would still be an inappropriate sentencing
consideration. But the way that it was--the context in
which the question was asked, it was asked as to why he
believed the death penalty was appropriate for the
premeditated murder of children; and he said it would free
that person. I believe that’s an inappropriate sentencing
determination on the death penalty--the application of the
death penalty in the premeditated murder of children.
And further, quite frankly, it comes down to the fact that
he obviously had and expressed very strong personal
beliefs that he simply--while he would consider as far as
listening--and he put it in terms of listening to other panel
members--he made it very clear that he was not open to
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persuasion, that this was something that he believed and
that there was no--unlike another--there was no wavering
in that decision.
So we believe that because of that deeply held personal
belief, that [LTC B] should be excused.
Denying the challenge, the military judge reasoned:
MJ: [Lieutenant Colonel B], he is clearly willing--excuse
me--his initial reaction to the nature of the charged
offenses was an understandable visceral reaction.
Members are not expected or required to react in a robotic
manner. He is clearly willing to give his decisions a lot of
thought. He does not have a kneejerk reaction to impose a
certain sentence. [LTC B] made it clear, in an extremely
credible manner, that he is willing to listen to all of the
evidence and will consider the full range of punishments.
[Lieutenant Colonel B] does not believe the death penalty
must be imposed. In fact, in response to a defense
question in comparing a life sentence to the death penalty,
[LTC B] believes a life sentence may in some ways be
more of a punishment than the death penalty because a
death sentence will then free the person from having to
think about it for the rest of his life. [Lieutenant Colonel
B] is not unalterably in favor of imposing the death
penalty.
Viewing all of [LTC B’s] responses as a whole, a
reasonable person would not conclude that he is biased
under the implied bias standard. The liberal grant
standard does not warrant granting the challenge;
therefore, the challenge for cause is denied.
We shall not second-guess the military judge’s assessment of LTC B as
credible; nothing in the record of trial undermines it. The military judge considered
the liberal grant mandate. In light of LTC B’s multiple commitments to consider all
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evidence in mitigation, any lawful sentence and the views of fellow members, we
conclude the military judge did not err in denying the challenge against him. 22
B. MAJOR W 23
TC: . . . Could you tell us what your views are of the death
penalty?
MAJ W: I do believe that the death penalty is a viable
option for anyone who’s committed and found guilty of an
egregious crime. I think the question was asked yesterday
about children and my views towards that.
TC: Right.
MAJ W: And I think it would be a little more difficult for
me to, you know being the father of four small children
under the age of 10--to have their lives cut short, I think
that would--it would be hard. I mean, I could be fair and
objective; but I think that it would be something that I
would consider.
TC: Yes, sir. But you said that you believe that you
could be fair and objective?
MAJ W: Yes.
22
Our superior court recently emphasized that a member’s incorrect—and
uncorrected—belief regarding a relevant legal principle is a basis for exclusion.
United States v. Rogers, 75 M.J. 270, 271 (C.A.A.F. 2016). Appellant’s case is
distinguishable, for LTC B’s statement that execution would “free [a murderer] from
having to be reminded of it” does not constitute an opinion that a life sentence is
more severe than the death penalty. Lieutenant Colonel B’s voir dire fully
demonstrated his understanding that the death penalty is the most severe sentence
under the law.
23
In group voir dire, MAJ W responded negatively when the defense asked, “[D]o
you agree with this statement if someone is convicted of premeditated murder of
children they should be given the death penalty?” He responded positively when
asked by defense counsel, “Do you agree with the statement that life in prison is not
really punishment for premeditated murder of children?”
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HENNIS—ARMY 20100304
TC: Sir, is there any crime that you could think of--to
include the premeditated murder of children, is there any
crime that you can think of for which you would
automatically vote for the death penalty with no other
considerations?
MAJ W: Automatically with no other considerations?
You know, I would have to hear the evidence and hear
what the circumstances were. You know, I understand in
our nation we have the option of life in prison or the death
penalty, but I think the decision on that would have to be
made based on all the evidence at hand. Again, now I
think it is a viable option; but it would be dependent on,
you know, what the circumstances were--intent, and
premeditation and those sorts of things.
So, I mean, I try, you know being a commander for 7
years, I have tried very hard to be fair when I administer
UCMJ; hear both sides of every story. I understand that
there are extenuating circumstances in some cases. So I
try to be very objective and very fair and open about those
sorts of things. But I can’t think of absolutely
automatically death penalty, I would have to hear all of
the evidence.
[. . .]
TC: If the defense presents--if they do--they have no
burden to present anything of course.
MAJ W: Right.
TC: But if they were to present any extenuation or
mitigation, would you be able to also consider that in
determining a punishment?
MAJ W: Oh, absolutely.
[. . .]
TC: --you will be instructed that if the accused has been
found guilty of premeditated murder by a unanimous vote
of all of the members of the panel--
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HENNIS—ARMY 20100304
MAJ W: Right.
TC: --by a unanimous vote, and the conviction is for
premeditated murder, you will then be instructed that you
have two choices as to punishment: one is for
confinement for life, the other is the death penalty.
MAJ W: Uhm-hmm [indicating an affirmative response.]
TC: Do you understand that you would have those two
choices?
MAJ W: Yes.
TC: And, sir, do you also understand that there is no
presumption in favor of either of those two?
MAJ W: Correct.
TC: So with that understanding, would you be able to
fairly and completely consider the possibility of either of
those?
MAJ W: Yeah, absolutely. I mean, that would be in the
second phase, and I would worry about that when I got
there.
TC: Right.
MAJ W: But once I get into the second phase, then I
know that we will be briefed by the military judge on what
our options are.
[. . .]
TC: And now can you assure us that you will be able to
follow those instructions?
MAJ W: Absolutely.
TC: So, if the military judge tells you that you must
consider all mitigation and extenuation evidence in
addition to everything else, you will be able to follow
that?
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HENNIS—ARMY 20100304
MAJ W: Absolutely.
[. . .]
DC: One of the things that I just want to cover is to put
you in a perspective of a case involving--that you have
been selected for a panel, as a military court-martial
panel. This hypothetical case--it’s not this case. It’s not
any particular case, but it’s a hypothetical case where you
have the responsibility to sentence an accused who has
been convicted by proof beyond a reasonable doubt, by a
unanimous decision, of premeditated murder.
MAJ W: Uhm-hmm [indicating an affirmative response.]
DC: Specifically premeditated murder of a mother and
two children, okay?
MAJ W: Yes.
DC: Now, in that situation we have also, as a panel in this
case, found that the case did not involve--there weren’t
any facts involving, for example, self-defense. There was
no self-defense. There was no heat of passion, no
provocation. These were innocent people that were
murdered--the victims that were murdered. There wasn’t
any mistaken identity. There’s no accident. There’s no
defense of others. None of those things are present. All
that was present was a clear finding of proof beyond a
reasonable doubt of premeditated murder, i.e., there’s a
specific intent to kill. There’s an opportunity to consider
that act and it was premeditation--premeditated murder
and that was proved beyond a reasonable doubt.
Now, sitting in a panel where there’s been a finding of
premeditated murder of a mother and two children, what is
your feeling of the death penalty as the appropriate
penalty for that guilty murderer?
MAJ W: Again, it is an option. It is a legal option. It is,
at that point in the game, when we move into the
sentencing phase and we receive the instructions from the
military judge, that I think it would certainly be an option.
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DC: Okay, now you understand that the military judge is
not going to give you any instructions as to how you
should consider whether death is appropriate or not?
MAJ W: Uhm-hmm [indicating an affirmative response.]
DC: That is entirely up to a panel member and their own
personal moral judgment. The judge will never give you a
checklist or never give you law that says that you must or
must not vote for death. Okay. That is a personal
judgment. Now, in the context of that personal judgment,
what is it that--and remember there’s no provocation,
intent is proven--it’s beyond a reasonable doubt, that there
was an intent to kill and there was the actual killing of a
mother and two innocent children. What else would be
important to you in making that decision?
MAJ W: As far as the death penalty--
DC: Yes.
MAJ W: --what else?
DC: Yes, as far as the death penalty being important?
MAJ W: Well, again, it’s like what I mentioned earlier,
it’s the circumstances that lead up to it. I mean, certainly
murder is probably in my mind one of the most heinous
crimes there is and life in prison versus the death penalty
is--that both are viable options for sentence. However, I
think what would sway me one way or the other are the
circumstances around it.
DC: Okay.
MAJ W: The premeditation would be part of it; perhaps
the ferocity of it or whatnot, you know; and for me
personally, I mean having, you know, four children of my
own under the age of 10, you know, the killing of children
would be difficult, would make me think of the death
penalty; but at the end, it would depend on all of the
evidence and the circumstances behind it.
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DC: Okay. And by circumstances behind it, just so I
understand what you are talking about, you talked about
premeditation--obviously you would want to know that it
was a premeditated killing?
MAJ W: Yes.
[. . .]
DC: . . . [Y]ou believe that the finding or part of that
consideration that would be important would be the
premeditation, the finding of premeditation?
MAJ W: Part of it would be the premeditation, part of it
would be the evidence that’s presented. I mean, you know,
if it’s beyond a reasonable doubt, they are found guilty,
and there’s a unanimous jury that says, yes, absolutely this
person did this--
DC: Right.
MAJ W: --I would definitely look personally I would look
at all of the evidence and try to keep it as--to be as
objective as possible.
DC: Okay.
MAJ W: But I certainly think premeditation and the
ferocity and those sorts of things would play into my
mind.
DC: Okay. And when we talk about the circumstances, I
understood you were talking about, like, the acts of the
violence in the offense itself; is that what you are
referring to or is there something else?
MAJ W: No, that is what I am referring to.
DC: And so the events that lead up to the act of violence
and the nature of that violence and whether it was
accompanied by the necessary premeditated intent, that is
what you are talking about as to the factors you would
consider as to whether you determine death is the
appropriate punishment?
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MAJ W: I believe so, yes.
DC: Is there anything else that would be important to you
personally?
MAJ W: To consider death as an option?
DC: Yes.
MAJ W: I think, I mean, those are the major things. I
mean, it is a viable option of the death penalty; and I think
what would probably sway me more towards that is the
premeditation part and the ferocity of it. You know, I
think that would be one of the things that I would
consider.
DC: Okay. So as I understand and just so I can get it clear
in my mind is that if you were to find beyond a reasonable
doubt--you and a panel unanimously determine beyond a
reasonable doubt, that there was premeditated murder of
children--
MAJ W: Uhm-hmm [indicating an affirmative response.]
DC: --and that it was done in a violent way, with just
great disregard for all human life. And it was done in a
violent way that was upon those children, that that would
be a case where you are inclined to view death as the
appropriate punishment for that crime?
MAJ W: That is correct.
[. . .]
DC: . . . [W]hen we had the discussion about--first of all,
in a case obviously not everybody as I indicated yesterday,
not everybody has the same views, and we would expect
that of panel members.
MAJ W: Right.
DC: And some people have different views, based upon
their own personal background and their own personal
situation; and of course, you indicated earlier that this is
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an especially difficult thing, when we are talking about the
death penalty, for you because of the fact that you have
children--
MAJ W: Uhm-hmm [indicating an affirmative response.]
DC: --and that is something that’s on your mind. And so
that is a different case, obviously, than a murder of an
adult which I believe you indicated would not present as
much of a moral difficulty for you as it does with
children?
MAJ W: I think that’s a true statement.
DC: Okay.
MAJ W: I don’t think that the murder of children
automatically would make it a death-penalty offense, but
it would definitely sway me to consider it more.
DC: Okay. And one of the other aspects of that, of course,
is the discussion about--you said considering the nature of
the offense, the premeditation, and so forth. Now, again,
you understand that even before a panel would be
permitted to even consider death as a possible punishment,
there would have to be a finding of guilty beyond a
reasonable doubt of premeditated murder?
MAJ W: Right.
DC: Okay. And that if there was no finding of
premeditated murder, then there would never be a
consideration of death as a potential sentence. Do you
understand that?
MAJ W: Yes.
DC: And within the context of that though, you had
indicated that not only that the premeditation was
important but also the circumstances surrounding the
offense itself?
MAJ W: Uhm-hmm [indicating an affirmative response.]
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DC: And correct me if I am wrong, but I understood you
to say that that’s your--that’s the important factors to you
in consideration of death as an appropriate punishment?
MAJ W: Yeah, if--hypothetically, if it was a unanimous
decision that there was guilt beyond a reasonable doubt
and the death penalty was an option, yes, I would weigh
many factors into it and one of them is the premeditation.
As I said, one of them would be the ferocity of the crime;
and you know those would be primarily, you know, what I
would be looking at.
DC: Okay. And in order to explain or to make sure we
understand your views, what other things might be of
importance to you?
MAJ W: For?
DC: In making a consideration, along with those factors,
what other things might be important to you with regards
to the imposition or decision as to whether death or life in
prison is the appropriate punishment?
MAJ W: I think one thing that would be important to me
is remorse. You know, in part of my job when I, you
know, see patients, I have seen people have--you know, do
things and, you know, have affairs or whatnot that they
have admitted to and they have no remorse over it. Other
people are devastated, and I know that there are different
personalities of people in the world. I know there’s
different ways people think and act and do, but I think
remorse would be one of those factors too.
DC: And if you were--are there any other factors that
come to mind that you would consider important?
MAJ W: Well, I mean, it was mentioned earlier, the
background of the person. If a person would have--I
mean, I would consider the background of a person. You
know, we mentioned that, you know, perhaps if they have
had a long crime record of, you know, serious crimes and
stuff like that and then murder was brought on there.
Would that play a factor? Possibly, but it would really
depend on the circumstances behind it.
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DC: Okay. And in that respect, if you were to--you know
again, in the case of premeditated murder of children done
in a violent way, if you were to receive information about
the person’s background that wasn’t necessarily negative
but was favorable, i.e., they lived life without committing
any crime or violent crimes up to the point of the offenses
themselves. Would that be something that you would
consider important?
MAJ W: I would consider it, but it would really depend
on--you know, it would depend on the circumstances
honestly in my mind. Good people can sometimes snap
and do horrible things; but if people, you know, got out
with an honorable discharge a lot of people get out with an
honorable discharge. If someone was a, you know, hero or
whatever, you know, that might play into it; but really it’s
the facts at hand of the case that is important to me. You
know, so I would consider it, but I don’t think the
background would sway me one way or another towards or
against the death penalty. But again, it would really
depend in my mind what background information is
presented.
DC: Okay. In my hypothetical situation and I would draw
you back to it again--
MAJ W: Uhm-hmm [indicating an affirmative response.]
DC: --I had told you that, you know, it was premeditated
murder, a finding beyond a reasonable doubt of children
was done without any finding of--there wasn’t any mental
health issues, there’s no defenses, there’s no raising of
insanity, and there’s no alcohol or drug involvement. All
of those things were eliminated prior to a finding of
premeditated murder. Okay?
MAJ W: Okay.
DC: With that understanding, is that what you were
talking about with regards to the background that you
know, absent that kind of background, that your starting
point or your inclination is that death would be the
appropriate punishment for the murder of a child?
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[. . .]
MJ: Before we get to that question, let me ask you a
question, [MAJ W].
MAJ W: Yes, sir.
MJ: Based on the scenario by defense counsel that you, in
fact, found someone guilty in a unanimous decision of this
murder he has described including two little children. Are
you going to make up your mind as to what is an
appropriate sentence that should be imposed before you
hear all of the evidence that would be presented on
sentencing?
MAJ W: No, sir. I would wait to hear all of the evidence
before I would make up my mind on anything.
MJ: Okay. With that in mind, [DC], you may continue.
DC: [MAJ W], without making up your mind, would you,
under those circumstances where there’s a finding beyond
a reasonable doubt, et cetera, and none of those defenses
are present and it’s a heinous crime, and the murder of two
children---
MAJ W: Uhm-hmm [indicating an affirmative response.]
DC: --would you be in a position, just in your processing
of starting at a position where you are inclined to say
death is the right answer and then look for mitigation
factors, is that how you would approach it?
MAJ W: Most likely, yes.
DC: One of the things that we had touched a little bit on
yesterday, but I want to just cover it a little more in depth
with you personally--
MAJ W: Okay.
DC: --one is that--and I think that you understand that the
law never requires anyone, any particular panel member to
vote for death.
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MAJ W: Uhm-hmm [indicating an affirmative response.]
DC: And you would agree with that?
MAJ W: I would.
DC: And that the judge nor any law that he would read
you or any requirement of anything that you would receive
in this court would ever require you or any other member
to vote for death.
MAJ W: Okay.
DC: And that the decision as to whether the appropriate
punishment for a qualified offense is life or death is a
personal one, one that is individual to each juror. Do you
understand that?
MAJ W: I do.
DC: And that the decision to extend mercy or to find or
not find a mitigation factor is sufficient to give a vote of
life, is personal to each individual panel member?
MAJ W: Correct.
DC: Okay. And that a panel member could decide to vote
for life based upon something that they heard in the
courtroom or something that they brought in with them.
Does that make sense?
MAJ W: It does.
DC: Their own personal sense of what is right, what is
moral, what is merciful, what is just can be anything that
is either presented in a courtroom or brought in by that
person. Does that make sense also?
MAJ W: Yeah, it does.
DC: And that once a person makes that decision, that
panel member or that person is entitled to have that
decision respected. Would you agree with that?
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MAJ W: I would.
DC: So that when you would make a decision about your
own personal moral judgment, you would expect that your
opinion would be respected by others, would you not?
MAJ W: I would.
DC: And if somebody else expressed an opinion or didn’t
express any opinion at all but voted in that regard, you
would respect their opinion, correct?
MAJ W: Absolutely, sir.
DC: And when the individual who is making that personal
moral judgment you would expect that they wouldn’t be
subjected to any bullying or intimidation to try and change
their personal moral views, would you?
MAJ W: No, sir. I wouldn’t have trouble with anybody
here.
DC: Well, I’m not talking about you. But you wouldn’t
expect that they would. In fact, you wouldn’t tolerate it,
would you?
MAJ W: No, sir.
DC: And you wouldn’t allow anybody to attempt to bully
or intimate you to change your own personal moral view?
MAJ W: No, sir.
DC: Likewise the understanding that you wouldn’t
necessarily be required or wouldn’t feel required to
explain your personal moral judgment to anybody, would
you?
MAJ W: No, sir.
DC: And you wouldn’t expect anybody to explain their
own personal judgment once they make that moral
decision themselves, would you?
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MAJ W: Correct.
[. . .]
TC: [Major W], just a very quick follow-up. With regard
to the questions about the hypothetical that was posed
earlier when the defense counsel was talking to you, you
understand that that is just a hypothetical?
MAJ W: Yes.
TC: And you understand, as we discussed earlier when I
was up here talking to you, that you are to wait and weigh
the facts that are presented in court?
MAJ W: Correct.
TC: And you agreed earlier when I was asking you
questions that you would, in fact, wait until everything is
presented?
MAJ W: Yeah, absolutely.
TC: And that you would follow the instructions from the
military judge in determining an appropriate sentence?
MAJ W: Absolutely.
TC: And that you would be able to--in fact, let me ask
you again, can you assure the court that you will be able
to consider everything that’s presented by both sides in
reaching a conclusion?
MAJ W: Yes, I can.
TC: And with regard to the background of the accused, I
think there were some questions about good stuff and bad
stuff that may be presented as to the background of the
accused. You don’t know, at this point, what those facts
are?
MAJ W: No, I do not.
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TC: So is it possible for you to evaluate how much weight
you would give to the accused’s background at this point?
MAJ W: I mean at this point I can’t hypothesize what I
don’t know. So I don’t know. I mean, I know a little bit
about this case from, you know, the paper but not enough
to go into any kind of intelligent discussion.
TC: So it’s impossible for you to do that at this point?
MAJ W: Right. You know, what happens in here is what
I’ll base all of my judgment and my deliberation on.
TC: Okay. And you will keep an open mind until the
end?
MAJ W: Absolutely.
The defense challenged MAJ W for cause, “based upon implied bias standard
as well as the baseline of the liberal grant mandate.” The defense emphasized MAJ
W was the father of four children, and his statement that he would consider, inter
alia, the “ferocity of the crime” in considering the appropriate punishment for
premeditated murder. The defense also emphasized MAJ W’s statement that in a
case involving the premeditated murder of children, he would “start at the death
penalty and would need to be presented some sort of mitigation to convince him
otherwise. That is a clear statement of a burden-shifting requirement . . .”
Describing MAJ W as “very credible,” the military judge denied the
challenge, reasoning:
MJ: . . . While he believes the death penalty is an option
for an egregious crime, and the decision becomes more
difficult when children are the victims, he is clearly
willing to hear all of the evidence, to include the
background of the accused, before making a decision. He
could not think of a case in which he would automatically
impose the death penalty. While he is willing to consider
all the evidence, he cannot say at this point, and is not
expected to be able to say, how much weight he would
give to any particular evidence. As he said, he cannot
hypothesize what he does not know.
Now, in response to the graphic scenario presented by the
defense counsel, [MAJ W] said he may start with the death
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penalty; however, he is not unalterably in favor of the
death penalty. And, as he said, he could not think of any
case in which he would impose the death penalty.
In light of all of his answers, it is clear that [MAJ W] has
not made up his mind as to an appropriate sentence. And,
based on all of his responses, a reasonable person would
not conclude that he is biased.
The liberal grant mandate does not warrant a challenge for
cause and, therefore the challenge for cause is denied.
We shall not second-guess the military judge’s assessment of MAJ W as
credible; nothing in the record of trial undermines it. The military judge considered
the liberal grant mandate. Where a panel member demonstrates an “inelastic
disposition concerning an appropriate sentence,” the military judge should grant that
challenge. United States v. Clay, 64 M.J. 274, 276 (C.A.A.F. 2007). However, MAJ
W’s voir dire revealed no fixed or “inelastic” disposition “regarding” punishment.
In light of MAJ W’s multiple commitments to consider all evidence in mitigation,
any lawful sentence and the views of fellow members, we conclude the military
judge did not err in denying the challenge against him. 24
C. LIEUTENANT COLONEL W 25
Lieutenant Colonel W described his previous experience as a civilian law
enforcement officer, and the defense asked him about his assessment of defense
attorneys:
24
Considering Walton v. Arizona, 497 U.S. 639, 650 (1990), we find unpersuasive
appellant’s argument that MAJ W’s views inappropriately shifted the burden to
present mitigation evidence. (“So long as a State’s method of allocating the burdens
of proof does not lessen the State’s burden to prove every element of the offense
charged, or in this case to prove the existence of aggravating circumstances, a
defendant’s constitutional rights are not violated by placing on him the burden of
proving mitigating circumstances sufficiently substantial to call for leniency.”)
(rev’d on other grounds, Ring v. Arizona, 536 U.S. 584 (2002)).
25
In group voir dire, LTC W responded negatively when defense counsel asked,
“[D]o you agree with this statement if someone is convicted of premeditated murder
of children they should be given the death penalty?”
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DC: As a result of that aspect of your career, meaning the
help and assisting and processing of a crime scene, do you
ever recall being called as a witness with regards to a
crime scene that you had processed or evidence that you
had helped process?
LTC W: Yes. I’ve been to hearings; but on the major
crime scenes, no, I wasn’t called as a witness.
DC: So you’ve been--with regard to, for example, maybe
some sort of suppression hearing or some other type of
evidentiary hearing, prior to a trial you may have been
called?
LTC W: Yes.
[. . .]
DC: . . . In your time as a law enforcement officer, did
you have regular contact with prosecuting attorneys?
LTC W: Yes, on occasion.
DC: And it would be, obviously, on cases that you had
worked, made an arrest or made some other type of
evidence that they needed to talk with you?
LTC W: That’s it.
DC: Did you come in contact with defense attorneys?
LTC W: Yes.
DC: In general, what was your impression over the years
of prosecuting attorneys in general?
LTC W: Good.
DC: Okay. And what was your opinion or what kind of
impression was left to you of the defense attorneys that
you came in contact with?
LTC W: The ones I came in contact with, some good,
some not so good.
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DC: Okay. What was it about that that left you with an
impression of some of them that wasn’t so good? What
kind of things were left with you in your mind?
LTC W: When I was an arresting officer and I was the
one that was sitting on the stand, the defense--mainly on
DUI cases just the way the defense handled officers as
witnesses.
DC: And what was it about--I know it’s been a long time,
but what was it about the way the officers were treated
that struck you as leaving a negative impression in your
mind about defense attorneys?
LTC W: I think the defense had a lot of latitude--were
allowed a lot of latitude in some of the cases.
DC: By latitude, I’m not sure I understand what you mean
in that context.
LTC W: I guess, maybe with the line of questioning or
the inferences that they were making toward the officer.
I’ll use my experiences. On DUI cases, I saw a handful of
times that I had made arrests and maybe the Intoxilyzer
results weren’t admissible at the time. So the jury
couldn’t see the results of the Intoxilyzer. So, as
somebody that was trained by the state on DUI detection,
there was a lot of questions that were brought up about my
expertise as somebody that can make decisions on DUI
detection. So it would bring a lot of doubt into the jury on
my abilities as an officer and other officers, the same
thing.
DC: And so I understand, because of your knowledge of
the case, you felt there was some unfairness in the system
as far as what they allowed the defense attorney to ask and
didn’t allow the prosecutor to ask?
LTC W: I think that what they were allowed to ask was
fine, it was just the way it was shaped with the jury and
what was not allowed as evidence was some of the things
that didn’t sit well with me at that time.
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The defense challenged LTC W for cause, citing implied bias and the liberal
grant mandate with respect to his experience as a law enforcement officer. Then,
focusing on his voir dire answers regarding defense attorneys, the defense
additionally asserted actual bias:
[Lieutenant Colonel W] stated that while he had an
unfailingly good view of prosecuting attorneys--he didn’t
have anything negative to say about them--he had some
negative comments about defense attorneys, specifically
the way defense attorneys approached law enforcement
witnesses on the stand and that when defense attorneys
would ask questions that he viewed unfair, based upon his
prior knowledge of the case, he held that against defense
attorneys, specifically about evidence that may have not--
would be suppressed or otherwise not a part of the case,
that he viewed that it would be on. No such--obviously,
no such negative views toward prosecutors.
Finding LTC W “very candid and credible,” the military judge denied the
challenge and addressed this point:
[Lieutenant Colonel W] may have thought that some
defense counsel were good and some were not so good.
There is absolutely no evidence he harbors any ill feelings
against defense counsel as a whole and absolutely no
evidence that he harbors any ill feelings against defense
counsel in this case.
We shall not second-guess the military judge’s credibility assessment of LTC
W; nothing in the record of trial undermines it. The military judge considered the
liberal grant mandate. Additionally, nothing indicates that LTC W’s opinions of
individual defense attorneys in particular civilian proceedings somehow caused him
to develop a stereotypical view of defense counsel, and we conclude the military
judge did not err in denying the challenge against him.
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VII – C. THE MILITARY JUDGE ERRED IN
FAILING TO SUA SPONTE VOIR DIRE AND
REMOVE THE PANEL MEMBER WHO, BEFORE
THE CONCLUSION OF THE GOVERNMENT’S CASE
ON FINDINGS, ASKED DETECTIVE [JW], A
GOVERNMENT WITNESS, “WHAT DO YOU THINK
SGT [SIC] HENNIS’S MOTIVE WAS?”
Detective JW, of the Cumberland County Sheriff’s Office, testified during the
government’s case. After his testimony, but before excusing him from the stand, the
military judge—as is customary and allowed in military trials—asked the members
whether they had any questions. Colonel (COL) CT wrote the proposed question of
which appellant complains.
The parties reviewed COL CT’s proposed written question, and defense
counsel wrote on the question form, “Obj[ection] calls for speculation.” The
military judge did not allow the question, and the trial continued. Appellant did not
request voir dire or any other follow-up regarding this proposed question.
Now, appellant argues the military judge “erred in failing to voir dire and
ultimately remove” COL CT. Relying heavily on United States v. Nash, 71 M.J. 83,
(C.A.A.F. 2012), he argues COL CT’s question established actual bias.
Alternatively, appellant asserts the question constituted evidence of implied bias.
Without restating the standards surrounding each basis for exclusion, described
supra, we reject both arguments.
We recognize the military judge’s authority to question and, if necessary,
remove a panel member even without a party’s request to do so. Rule for Courts-
Martial 912(f)(4) provides: “Notwithstanding the absence of a challenge or waiver of
a challenge by the parties, the military judge may, in the interest of justice, excuse a
member against whom a challenge for cause would lie.” (Emphasis added); see also
United States v. Strand, 59 M.J. 455, 458 (C.A.A.F. 2004) (“It is clear that a
military judge may excuse a member sua sponte.”).
The standard of review for a case under these facts is unclear. In Strand, our
superior court stated that a “judge’s decision whether or not to excuse a member sua
sponte is subsequently reviewed for an abuse of discretion,” but then held “[s]ince
the judge did not abuse his discretion, there was no plain error.” Id. at 458, 460.
Applying the most rigorous standard of review applicable to questions of member
bias—more deferential than de novo, but less deferential than abuse of discretion,
under Woods—we hold the military judge did not err by not questioning or removing
COL CT.
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We regard COL CT’s question as an effort to probe the strength of the
government’s case, not a premature conclusion that appellant was guilty. Finding no
actual bias or a violation of R.C.M. 912(f)(1)(M), we address whether COL CT
should have been excused for implied bias under R.C.M. 912(f)(1)(N). We review
this issue through the eyes of the public and ask whether his question regarding
motive undermined the public’s perception or appearance of fairness of the military
justice system. See United States v. Townsend, 65 M.J. 460, 463 (C.A.A.F. 2008).
Noting the defense’s emphasis in its closing argument on appellant’s apparent
lack of motive, we return to our observation that trial defense counsel did not object
to COL CT’s continued service on the panel after reading his proposed question.
From these facts, we infer the trial defense team may have perceived COL CT as
potentially receptive to that aspect of the defense case and, therefore, wanted him to
remain on the panel. In our view, no member of the public could reasonably
conclude that COL CT’s question indicated a lack of fairness in the proceedings.
VII – D. THE VARIABLE SIZE OF THE COURT-
MARTIAL PANEL CONSTITUTED AN
UNCONSTITUTIONAL CONDITION ON MASTER
SERGEANT HENNIS’S FUNDAMENTAL RIGHT TO
CONDUCT VOIR DIRE AND PROMOTE AN
IMPARTIAL PANEL.
Considering the record of trial and matters asserted in the parties’ briefs, we
conclude this assignment of error merits neither discussion nor relief.
VIII – A. TRIAL COUNSEL’S REPEATED AND
IMPROPER COMMENTS AND ARGUMENTS
PREJUDICED MASTER SERGEANT HENNIS’
RIGHT TO A FAIR TRIAL.
In his brief, appellant organizes his allegations regarding government
counsel’s comments into four groups, which we address seriatim:
A. “Trial counsel made highly prejudicial, belligerent
remarks toward MSG Hennis’ defense counsel.”
Appellant focuses on several of government counsel’s comments during his
rebuttal findings argument, including remarks describing the defense’s closing
argument as “monstrous” and “evil.” We do not condone them; however, their
context is relevant. See Darden v. Wainwright, 477 U.S. 168, 179 (1986). In his
closing argument, civilian defense counsel said, inter alia, the following:
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[I]n your deliberations, you are to rely on your knowledge
of human nature and the ways of the world. One of the
ways of the world and one of the things that we know
about human nature is that things can occur spontaneously
and for no significant reason. A young Soldier [appellant]
whose wife had just had a baby recently; a Captain’s wife
[Mrs. KE] while the Captain has been away for a long
time. All I’m asking is: Is it possible that something
occurred independent of the murders, independent of the
night of the 9th of May that can answer the unanswered
questions?
[. . .]
I want you to consider that the government has created an
inference by their own argument that . . . [appellant] went
to the [E family] home, seeking sex with [Mrs. KE].
Listen to me close right now--what I’m about to say--and
I’m going to repeat it. The evidence in this case--if he
were charged with adultery--and let’s just take away the
murders. Let’s just focus on the DNA. That evidence
could support an argument of adultery. Adultery could be
--could have occurred in this case.
[. . .]
You have to ask yourselves, if you take that evidence and
if the rational hypothesis is that some form of consensual
sex occurred within 2 days or 3 days of the murders, then
that explains how it [appellant’s spermatozoa] was found
because there is no date/time stamp. Has the government
disproven that beyond a reasonable doubt? Does the
evidence take you beyond adultery to murder?
After the defense’s closing argument, the military judge convened an Article
39(a), UCMJ, session at the government’s request. Referring to a previous Article
39(a), UCMJ, session on 8 May 2009, discussed supra, regarding assignment of
error IV, government counsel argued that civilian defense counsel had represented to
the court that no sex, consensual or otherwise, had occurred. Relying on United
States v. McKeon, 738 F.2d 26 (2d Cir. 1984), the government then asked to re-open
its case and offer a portion of the previous Article 39(a), UCMJ, transcript against
appellant as an adoptive admission. The military judge denied the request and
recalled the members to hear government rebuttal, which included the following:
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Now, you saw evil and you hear an evil argument this
morning. It’s not enough that [Mrs. KE] was murdered.
The defense wants you to believe she cheated on you,
[GE]. She committed adultery. That’s what the defense
wants you to believe. That is a vile, disgusting, offensive
argument. The defense said you don’t know [Mrs. KE].
There’s a reason for that, because [appellant] killed her 25
years ago. You can’t know her now, can you? Not unless
you can pray and talk to her in your prayers. Unless you
can hold a séance, you can’t know her because she’s been
dead for 25 years.
[. . .]
And there is absolutely no evidence whatsoever before you
that [appellant] had consensual sex with [Mrs. KE]. That
is a vile, disgusting argument; and it is designed to try to
plant doubt. It is designed to get you off the ball, to get
you off the game. It gets you so shook up about the
“should have, could have, would have” world that
criminals live in to prey on some sort of doubt that’s not
reasonable but anything is possible so that you can get
away from the main facts of this case . . . . When you’re
desperate, you got to go for the Hail Mary.
Because the defense did not object to this portion of government counsel’s
argument, we review for plain error. “Plain error occurs when (1) there is error, (2)
the error is plain or obvious, and (3) the error results in material prejudice to a
substantial right of the accused.” United States v. Fletcher, 62 M.J. 175, 179
(C.A.A.F. 2005) (citing United States v. Rodriguez, 60 M.J. 87, 88-89 (C.A.A.F.
2004)). The government urges in its brief that these remarks were a fair commentary
on the defense argument and not an impermissible critique of defense counsel.
Under the circumstances here, this distinction is unpersuasive. We note and do not
condemn government counsel’s argument to the military judge during the Article
39(a), UCMJ, session that civilian defense counsel’s argument, in light of his
previous representation to the court, was an example of “sharp practices.” However,
government counsel’s subsequent characterization of the defense argument as
“monstrous,” “evil,” “vile,” and “disgusting” constituted plain and obvious error.
Despite these remarks, we conclude under the circumstances of this case they
did not materially prejudice appellant’s right to a fair trial. In cases of improper
argument we assess whether prejudice exists by examining and balancing three
factors: (1) the severity of the misconduct, (2) the measures adopted to cure the
misconduct, and (3) the weight of the evidence supporting the conviction. Fletcher,
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62 M.J. at 184; see also United States v. Frey, 73 M.J. 245, 249 (C.A.A.F. 2014);
United States v. Halpin, 71 M.J. 477, 480 (C.A.A.F. 2013) (applying the same).
Under the first Fletcher factor, we note the objectionable statements were isolated
and not a predominant part of government counsel’s argument. Under the second
factor, while the military judge did not intervene sua sponte, he did instruct the
members that counsel’s arguments were not evidence, instead charging the panel to
“base your determination of the issues in this case on the evidence as you heard it
and the law as I instruct you.” Turning to the third factor, the evidence against
appellant was strong: a witness identified him as the person parked near the E
family home at midday on 9 May 1985; a witness identified him as the person he saw
leaving the E family home in the early morning hours of 10 May 1985; another
witness identified him as the person she saw at an automated teller machine (ATM),
at the same time and place where the E family’s missing card was used after the
murders; multiple witnesses described appellant burning a substantial fire in a barrel
at his home for several hours on 11 May 1985; and, DNA analysis identified
appellant as the source of the sperm obtained from Mrs. KE’s body. We are
confident the weight of the government’s evidence “reduced the likelihood that the
[panel’s] decision was influenced by argument.” Darden, 477 U.S. at 182.
B. “Trial Counsel instructed the panel that they were the conscience of the
Army and they needed to send the world a message, compared motive to
terrorist attacks, and improperly vouched for the reliability of the DNA.”
Responding to the defense’s emphasis in closing argument on appellant’s
apparent lack of motive, government counsel rebutted with several rhetorical
questions, including: “Why would someone fly a plane into a building? Why would
someone take a weapon in a military installation and start firing it?” The defense
did not object. Government counsel later said, “the Army believes in DNA.” The
military judge sustained the defense’s objection to this statement. Then, saying
“DNA is good enough” to verify the identity of a deceased person, government
counsel rhetorically asked, “why is DNA not good enough to identify a murderer?”
The defense did not object. Later, government counsel argued:
[Civilian defense counsel] talked about the conscience of
the Army. You are the conscience of the Army. 26 Well,
let me tell you something. Verdicts in courts-martial
around the world send a message, and they reflect how our
Army, our military values things. What is acceptable
behavior and what is unacceptable behavior.
26
In his closing argument, civilian defense counsel said to members, “[C]ollectively
you represent . . . the conscience of the Army . . .”
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The defense objected, citing “the appearance of unlawful command
influence.” The military judge sustained the objection, instructing government
counsel to refrain from mentioning “Army Values.”
We perceive no plain or obvious error in government counsel’s “conscience of
the Army” remark; indeed, it appears trial counsel was merely restating the
defense’s innocuous characterization of the panel. We also find no plain or obvious
error in government counsel’s reference to various purposes for DNA analysis.
We do, however, find plain and obvious error in government counsel’s
comparison of this case to one in which a terrorist flies a plane into a building or an
active shooter targets a military installation. Counsel may urge a factfinder to draw
inferences based only on the evidence at hand and the law applicable to the case. In
this instance, government counsel strayed from that basic principle, and the military
judge should have intervened. Applying Fletcher again, we conclude these remarks
of this type were isolated and note the military judge’s instruction regarding the
limited purpose of counsels’ arguments. Finally, considering the strength of the
evidence supporting the findings, we are confident these remarks did not sway the
panel’s deliberations.
Assuming arguendo government counsel created an appearance of unlawful
command influence by conflating the members’ verdict and “Army Values,” we find
the military judge properly remedied it with his ruling on the defense objection. We
also find sufficient the military judge’s sustaining the defense objection to
government counsel’s argument that “the Army believes in DNA.” We further note,
with respect to these two matters, the defense neither requested a curative
instruction nor moved for a mistrial.
C. “Trial counsel made derogatory comments concerning
[appellant’s] fundamental right to present mitigation.”
During the sentencing case, the defense admitted multiple photographs of
appellant and his family members. In sentencing argument, government counsel, the
following occurred:
TC: Consider the aggravation in this case up against the
mitigation and extenuation. Consider what you heard
yesterday. And I ask you this, how dare they ask you to
look at pictures of [appellant] opening presents with his
kids in front of a Christmas tree?
DC: Objection, Your Honor.
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MJ: Members, the defense is allowed to present matters in
extenuation and mitigation. You must give them due
consideration. You may proceed.
TC: How dare they ask you--they’re allowed and you can
consider it and should give it its appropriate weight. How
dare they ask you to look at pictures of [appellant] sitting
on the couch reading a book to his kids?
(Emphasis added.)
We held in United States v. Carr, “it is inappropriate that any party to a court-
martial should be allowed to profit, directly or indirectly, by argument on findings
or sentence regarding an exercise of a constitutionally protected criminal due
process right.” 25 M.J. 637, 639 (A.C.M.R. 1987). “Whether there has been
improper reference to an accused’s invocation of his constitutional rights is a
question of law that we review de novo.” United States v. Moran, 65 M.J. 178, 181
(C.A.A.F. 2007) (citing United States v. Alameda, 57 M.J. 190, 198 (C.A.A.F.
2002)). We find government counsel’s use of the phrase, “how dare they,”
improperly derogated appellant’s right, guaranteed by the Sixth and Eighth
Amendments to the Constitution, to present extenuation and mitigation evidence.
Noting the defense did not object after government counsel’s second and third use of
this phrase, we nonetheless find such use plainly and obviously improper.
Evaluating prejudice in the context of this constitutional error, we note the
exacting standard announced by our superior court:
“[B]efore a federal constitutional error can be held
harmless, the court must be able to declare a belief that it
was harmless beyond a reasonable doubt.” This will
depend on “whether there is a reasonable possibility that
the evidence [or error] complained of might have
contributed to the conviction.”
Moran, 65 M.J. at 187, (quoting Chapman v. California, 386 U.S. 18, 24 (1967)
(internal citation omitted) (emphasis added)). This principle applies with equal
force to a presentencing hearing.
First, we observe government counsel’s poor phraseology occurred during a
brief portion of a nineteen-page sentencing argument which was otherwise proper,
focusing on the relative weight which the government argued the panel should give
the evidence in aggravation, extenuation and mitigation. We also note the military
judge’s multiple and clear instructions, including his sua sponte instruction
described supra, emphasizing appellant’s right to present evidence in extenuation
and mitigation and the members’ duty to consider it. Finally, the properly-admitted
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aggravation evidence in this case was exceptionally strong, depicting the calculated
and brutal slaying of multiple victims, two of whom were defenseless young
children. We are convinced beyond a reasonable doubt that government counsel’s
erroneous argument was harmless.
D. “Trial counsel asked the panel to place themselves
in the shoes of the victims and victims’ relatives.”
Relying primarily on United States v. Shamberger, 1 M.J. 377 (C.M.A. 1976),
and its prohibition of “Golden Rule” arguments which seek to place the factfinder in
the position of a victim, appellant complains of additional lines of government
argument on findings and sentencing. For example, government counsel said the
following of Mrs. KE during rebuttal findings argument:
You have to think, what’s going on in her mind? “Oh my
God, my husband’s [sic] not here. Help is not on the way.
I’ve got to protect my children. Do anything you want to
me, but save my children. I will submit. I’ll do anything,
but please save my children.”
Appellant now argues government counsel erred in asking the panel to
“imagine” several aspects of the murder scene. For example, the following occurred
during sentencing argument:
TC: Imagine the mental anguish of [Mrs. KE]. There was
no forced entry in the house but, at a certain point, once
the accused was inside there, probably using the dog to
gain entry--something about the dog somehow gaining
entry into the house. At a certain point, [Mrs. KE] had to
realize that she was in trouble. Imagine the mental
anguish of this woman, 120 or so pounds, and this 6-foot-4
man in her house now with her three small daughters there
and her husband definitely not coming home, away at
school. Imagine the mental anguish as that situation
develops. And she was eventually bound and she was
eventually raped. Imagine the fear--
DC: Objection, Your Honor. He is inappropriately
attempting to place the panel in--it’s an improper
argument.
MJ: You may not place the members into the shoes of the
victims.
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TC: Yes, Your Honor. The fear that [Mrs. KE] must have
felt for her children, knowing that they were just a room
away is extreme mental anguish.
When you’re considering pain and suffering, remember the
defensive wounds that [Miss KE] had on her body and that
[Mrs. KE] had on her body. Remember the details
presented by the medical examiners about the injuries
suffered by the children, the physical attacks on the
children.
You’ll have the autopsy reports. You have those in
evidence, one each for the three victims. And you had the
testimony from the medical examiners. They talked
extensively, as the reports do, about the wounds, the
stabbings; each child stabbed 10 times, [Miss EE] with 5
of those stabbings in the back. None of those wounds
caused instant death. There was pain, and there was
suffering by each of those victims.
We don’t know in that master bedroom which--between
[Miss EE] and [Mrs. KE]--which was killed first. We
don’t know. But either scenario is almost too horrific to
imagine. Either little [Miss EE] was murdered first while
her mother was bound and forced to watch, or [Mrs. KE]
was murdered first in front of her 3-year-old child.
And little [Miss KE] in her bed down the hall under her
blanket--age 5, at the age where your parents tell you
monsters aren’t real. And when you’re 5 and you lay in
bed and you close your eyes and hide under the blanket
thinking I can’t see them so they can’t see me. Imagine
the screams.
There can be no doubt that there was pain and suffering by
all three of these victims, emotional and physical.
Neither these arguments nor the others of which appellant now complains
violated the “Golden Rule” principle. We so conclude, noting our superior court’s
observation in United States v. Baer, 53 M.J. 235, 238 (C.A.A.F. 2000):
[W]e also recognize that an argument asking the members
to imagine the victim’s fear, pain, terror, and anguish is
permissible, since it is simply asking the members to
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consider victim impact evidence. See, e.g., United States
v. Holt, 33 M.J. 400, 408-409 ([C.M.A.] 1991). Logically
speaking, asking the members to consider the fear and
pain of the victim is conceptually different from asking
them to put themselves in the victim’s place. See United
States v. Edmonds, 36 M.J. 791, 793 ([A.C.M.R.] 1993).
Under the circumstances of this case, including the lone surviving child’s
testimony at trial that she had no memories of her mother or sisters, we conclude
government counsel fairly and properly asked the members to consider and
“imagine” the victims’ emotional and physical pain and suffering at appellant’s
hands. We further find government counsel’s arguments regarding the impact on
other surviving family members consistent with the cases cited supra.
VIII – B. THE MILITARY JUDGE ABUSED HIS
DISCRETION WHEN HE PERMITTED THE
GOVERNMENT TO ADMIT AGGRAVATION
EVIDENCE IN VIOLATION OF THE FIFTH AND
EIGHTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION.
Considering the record of trial and matters asserted in the parties' briefs, we
conclude this assignment of error merits neither detailed discussion nor relief. The
aggravation evidence admitted in this case was well within the constitutional
safeguards described in Payne v. Tennessee, 501 U.S. 808 (1991).
VIII – C. THE MILITARY JUDGE ERRED WHEN HE
DENIED MASTER SERGEANT HENNIS’ MOTION
TO SET ASIDE THE CAPITAL REFERRAL DUE TO
THE DESTRUCTION OF OVER THREE YEARS OF
INMATE RECORDS.
Considering the record of trial and matters asserted in the parties’ briefs, we
conclude this assignment of error merits neither discussion nor relief.
VIII – D. THE MILITARY JUDGE ERRED WHEN HE
INSTRUCTED THE PANEL THAT THEY NEEDED
TO CONTINUE TO VOTE UNTIL THEY REACHED
EITHER ELEVEN VOTES FOR LIFE OR FOURTEEN
VOTES FOR DEATH.
During sentencing deliberations, the panel members submitted the following
question to the military judge:
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If there is one person who votes against the death penalty
does that mean that all other votes are for a life sentence?
i.e. does this automatically fulfill a confinement for life
sentence considering a 3/4 concurrence (understanding
para. 3, pg 21)? 27
After granting a recess in the panel’s deliberations, the military judge heard
extensive argument 28 from the parties regarding the correct response. 29
27
The parenthetical phrase referred to the portion of the written sentencing
instructions, informing the panel that a three-fourths concurrence was required in
order to sentence appellant to confinement for life.
28
The defense correctly noted to the military judge that the Military Judge’s
Benchbook states that only one vote may be taken on the death penalty. Dep’t of
Army, Pam 27-9, Legal Services: Military Judges’ Benchbook [hereinafter
Benchbook] para. 2-7-18 n.1 (1 Jan. 2010). This Benchbook provision is incorrect
as a matter of law. See R.C.M. 1006(d)(3)(A).
29
Urging the military judge to ask the members whether they had voted on the
death penalty so that he might then instruct them that only one vote thereon
was allowed, the trial defense team relied heavily on the following passage
from United States v. Simoy, 50 M.J. 1, 2 (C.A.A.F. 1998):
In order for the death penalty to be imposed in the
military, four gates must be passed:
(1) Unanimous findings of guilty of an offense that
authorizes the imposition of the death penalty, R.C.M.
1004(a)(2);
(2) Unanimous findings beyond a reasonable doubt that an
aggravating factor exists, R.C.M. 1004(b)(7);
(3) Unanimous concurrence that aggravating factors
substantially outweigh mitigating factors, R.C.M.
1004(b)(4)(C); and
(4) Unanimous vote by the members on the death penalty,
RCM 1006(d)(4)(A). See Loving v. Hart, 47 M.J. 438, 442
(1998).
(continued . . .)
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Ultimately, he provided the following instruction:
You need a required concurrence for any proposed
sentence; unanimous for death, three-quarters or 11 votes
for a life sentence. If you vote on a proposed sentence or
sentences without arriving or reaching the required
concurrence, you should repeat the process of discussion,
proposal of sentence or sentences, and then voting.
We review de novo an allegation that the military judge erred in instructing
the members. United States v. Behenna, 71 M.J. 228, 232 (C.A.A.F. 2012). “In
regard to form, a military judge has wide discretion in choosing the instructions to
give but has a duty to provide an accurate, complete, and intelligible statement of
the law.” Id. Indeed, the military judge’s instructions on voting procedure was
correct. Under Article 52(b)(1), UCMJ, “No person may be sentenced to suffer
death, except by the concurrence of all the members of the court-martial present at
the time the vote is taken.” Under Article 52(b)(2), UCMJ, “No person may be
sentenced to life imprisonment . . . except by the concurrence of three-fourths of the
members present at the time the vote is taken.” R.C.M. 1006(d)(4)(A) and R.C.M.
1006(d)(4)(B) essentially repeat these statutory provisions, and R.C.M. 1006(d)(5)
further requires: “When a mandatory minimum is prescribed under Article 118 the
members shall vote on a sentence in accordance with this rule.” Under R.C.M.
1006(d)(3)(A):
All members shall vote on each proposed sentence in its
entirety beginning with the least severe and continuing, as
necessary, with the next least severe, until a sentence is
adopted by the concurrence of the number of members
required under subsection (d)(4) of this rule. The process
of proposing sentences and voting on them may be
(. . . continued)
If at any step along the way there is not a unanimous finding,
this eliminates the death penalty as an option.
The defense argued the last quoted sentence establishes that only one vote may be
taken on the death penalty. We disagree, for the appellate issue in Simoy was the
order in which members must vote on proposed sentences, not the members'
authority to repeat the process in the absence of a required concurrence. We
perceive no conflict between Simoy and R.C.M. 1006(d)(3)(A).
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repeated as necessary until a sentence is adopted.
(Emphasis added.).
We conclude the military judge’s instructions were correct. We additionally
conclude, contrary to appellant’s argument and brief, the military judge committed
no error in denying the defense’s request to respond to the members’ question by
asking whether they had voted on a sentence.
VIII – E. THE PANEL PRESIDENT FAILED TO
ANNOUNCE THE AGGRAVATING FACTORS THAT
IT FOUND TO SUPPORT THE DEATH SENTENCE
BEFORE THE COURT ADJOURNED.
At approximately 1450 on 15 April 2010, the members returned from
deliberations with their sentence. The military judge reviewed the sentence
worksheet, which is Appellate Exhibit 515, and found, “[i]t appears to be in proper
form.” After returning the worksheet to the members, the military judge asked the
panel president to announce the sentence. The president did so, announcing that the
members unanimously concurred in sentencing appellant to reduction to E-1,
forfeiture of all pay and allowances, a dishonorable discharge, and death. The panel
returned the sentencing worksheet to the military judge, who adjourned the court-
martial at 1452.
At 1701 on 15 April 2010, the military judge called the court to order; the
members were present. The military judge informed the panel that he “neglected to
have the President read certain matters that should have been read.” He then
returned the sentencing worksheet to the panel president, with the following
instructions:
Sir, what actually must be read, in addition to--you don’t
need to reread the sentence, sir, but I need to have you
read:
On page 1, subparagraphs 1 and 2 under (a)(1);
On page 2, subparagraphs 1 and 2 under (a)(2);
On page 3, subparagraphs 1 and 2 under (a)(3); and
On page 4, subparagraph 1.
The panel president then announced the members’ unanimous findings “that
the following aggravating factor[s] [have] been proven beyond a reasonable doubt:”
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HENNIS—ARMY 20100304
Having been found guilty of the premeditated murder of
Mrs. [KE], a violation of the UCMJ, Article 118(1), you
have been found guilty in the same case of additional
violations of the UCMJ, Article 118(1), in the
premeditated murders of Miss [KE] and Miss [EE].
[. . .]
That the premeditated murder of Mrs. [KE], a violation of
the UCMJ, Article 118(1), was committed while you were
engaged in the commission of rape.
[. . .]
That the premeditated murders of Mrs. [KE], Miss [KE]
and Miss [EE], violations of the UCMJ, Article 118(1),
were preceded by the intentional infliction of substantial
physical harm or prolonged, substantial mental or physical
pain and suffering to the victims.
Master Sergeant Timothy B. Hennis, it is my duty as
President of this court-martial to inform you that, having
considered all the matters in mitigation and extenuation
and all the matters in aggravation, this court-martial, in
closed-session and upon secret, written ballot,
unanimously finds that any extenuating or mitigating
circumstances are substantially outweighed by the
aggravating circumstances, including the aggravating
factors specifically found by the court and listed above.
The president returned the sentencing worksheet to the bailiff, who handed it
to the court reporter, and the military judge adjourned the court-martial at 1704.
Under R.C.M. 1004(b)(8), “[i]f death is adjudged, the president shall, in
addition to complying with R.C.M. 1007, announce which aggravating factors under
subsection (c) of this rule were found by the members.” R.C.M. 1007(b) addresses
the erroneous announcement of a sentence, providing:
If the announced sentence is not the one actually
determined by the court-martial, the error may be
corrected by a new announcement made before the record
of trial is authenticated and forwarded to the convening
authority. This action shall not constitute reconsideration
of the sentence. If the court-martial has been adjourned
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HENNIS—ARMY 20100304
before the error is discovered, the military judge may call
the court-martial into session to correct the announcement.
Article 60(e)(2), UCMJ, also provides:
A proceeding in revision may be ordered if there is an
apparent error or omission in the record or if the record
shows improper or inconsistent action by a court-martial
with respect to the findings or sentence that can be
rectified without material prejudice to the substantial
rights of the accused. In no case, however, may a
proceeding in revision –
[. . .]
(C) increase the severity of some article of the sentence
unless the sentence prescribed for the offense is
mandatory.
10 U.S.C. § 860(e)(2) (2006).
We agree with appellant’s argument on appeal, to the extent he points out that
a “sentence cannot be upwardly corrected after adjournment of the court-martial,
even to correct clear errors in announcement of the sentence.” For this argument he
cites United States v. Jones, 34 M.J. 270, 271-72 (C.M.A. 1992) (citing United
States v. Baker, 32 M.J. 290 (C.M.A. 1991) and Article 60, UCMJ). In Jones, the
court-martial did not announce a sentence to confinement; however, the military
judge held a proceeding in revision “approximately two months later” to add the
punishment of confinement for six months, explaining “he had intended” to do so in
his original announcement. Id. at 271,
In Baker, the court-martial did not announce a punitive discharge as part of
appellant’s sentence. Baker, 32 M.J. at 291. However, after the panel president
revealed that the panel had actually voted to sentence appellant to punitive
discharge, the military judge allowed him to announce the omitted portion of the
sentence in a subsequent Article 39(a), UCMJ, session. Id. Noting an inconsistency
between R.C.M. 1007(b), which does not prohibit a subsequent announcement from
increasing a sentence’s severity, and Article 60, UCMJ, which does contain such a
prohibition while allowing subsequent announcement of a mandatory sentence, our
superior court wrote:
In our view, [R.C.M.] 1007(b) is inconsistent with Article
60(e) to the extent it permits the possibility of command
influence. For these reasons, we hold that, after a court-
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martial has announced the sentence and adjourned, the
sentence cannot be increased upon reassembly, except for
the reason noted in Article 60(d)(2)(C).
Id. at 293. In the footnote to the first sentence regarding command influence, the
court wrote: “We do not suggest that sentences cannot be corrected, even upward,
on the spot. The mere utterance of the sentence does not effect some magical
transformation. Ordinarily, it will be only after the hearing has terminated that a
charge of collective heart-changing can arise.” Id. at 293 n.6.
Appellant has made no “charge of collective heart-changing,” and we perceive
no reasonable basis for such a charge. The sentencing worksheet remained
unchanged after the original announcement. It reflected the following decisions at
Simoy “gates” two, three and four: the signatures of each member, finding each
aggravating factor proven; the signatures of each member finding any extenuating or
mitigating circumstances substantially outweighed by the aggravating circumstances;
and, the signatures of each member, sentencing appellant to death.
We understand the importance of announcing the aggravating factors in a
death penalty case. United States v. Matthews, decided before the President
promulgated the requirement in the Manual for Courts-Martial, teaches us that for a
death penalty to be constitutionally reliable, the following must be present:
1. A Bifurcated Sentencing Procedure Must Follow the
Finding Of Guilt Of a Potential Capital Offense.
2. Specific Aggravating Circumstances Must Be
Identified To the Sentencing Authority.
3. The Sentencing Authority Must Select and Make
Findings On the Particular Aggravating Circumstances
Used As a Basis For Imposing the Death Sentence.
4. The Defendant Must Have Unrestricted Opportunity To
Present Mitigating and Extenuating Evidence.
5. Mandatory Appellate Review Must Be Required To
Consider the Propriety Of the Sentence As To the
Individual Offense and Individual Defendant and To
Compare the Sentence To Similar Cases Statewide.
16 M.J. 354, 377 (C.M.A. 1983).
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Absent the requirement to announce aggravating factors, we would be unable
to determine compliance with the third requirement and, therefore, unable to fulfill
our duty under the fifth; we would be unable to assess whether the sentencing
authority “made ‘an individualized determination on the basis of the character of the
individual and the circumstances of the crime,” and whether they have ‘adequately
differentiate[d] this case in an objective, evenhanded, and substantively rational
way’ from the other murder cases in which the death penalty was not imposed.” Id.
at 379 (quoting Zant v. Stephens, 462 U.S. 862, 879 (1983)).
The procedure involved in announcing the aggravating factors in this case was
less than perfect. However, we conclude appellant did receive and continues to
receive the benefit of the fundamental protections described in Matthews.
Considering Article 60, UCMJ, and our superior court’s interpretation thereof, we
hold the panel president’s subsequent announcement of the previously-found
aggravating factors in support of its previously-announced death sentence did not
increase the severity of the sentence itself.
IX. BASED ON THE SUPREME COURT’S
REASONING IN RING V. ARIZONA, 536 U.S. 584
(2002), CONGRESS UNCONSTITUTIONALLY
DELEGATED TO THE PRESIDENT THE POWER TO
ENACT ELEMENTS OF CAPITAL MURDER, A
PURELY LEGISLATIVE FUNCTION.
Considering the record of trial and matters asserted in the parties’ briefs, we
resolve this assignment of error against appellant consistent with our superior
court’s treatment of the substantially identical issue in United States v. Akbar, 74
M.J. 364, 404 (C.A.A.F. 2015).
X. DUE PROCESS REQUIRES THAT THE MEMBERS
FIND THAT AGGRAVATING CIRCUMSTANCES
OUTWEIGH MITIGATING AND EXTENUATING
CIRCUMSTANCES BEYOND A REASONABLE
DOUBT BEFORE DECIDING WHETHER THE
DEATH PENALTY SHOULD BE IMPOSED.
Considering the record of trial and matters asserted in the parties’ briefs, we
conclude this assignment of error merits neither discussion nor relief.
XI. STANDARDS APPLICABLE TO FEDERAL AND
STATE CAPITAL DEFENSE COUNSEL HAVE
APPLICABILITY TO COURTS-MARTIAL AS
RELEVANT STANDARDS OF CARE.
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Considering the record of trial and matters asserted in the parties’ briefs, we
resolve this assignment of error against appellant consistent with our superior
court’s treatment of the substantially identical issue in Akbar. Id. at 399-400.
XII. MASTER SERGEANT HENNIS’ CAPITAL
SENTENCE CANNOT STAND BECAUSE THE
MILITARY JUDGE ERRED IN ALLOWING INTO
EVIDENCE THE PRIOR TESTIMONY OF SEVERAL
WITNESSES, TAKEN FROM AN EARLIER STATE
TRIAL IN NORTH CAROLINA, VIOLATING
ARTICLE 49(D), UCMJ, WHICH DOES NOT PERMIT
DEPOSITIONS TO BE PRESENTED INTO
EVIDENCE IN A CAPITAL COURT-MARTIAL.
Considering the record of trial and matters asserted in the parties’ briefs, we
conclude this assignment of error merits neither discussion nor relief.
XIII. THE LACK OF A SYSTEM TO ENSURE
CONSISTENT AND EVENHANDED APPLICATION
OF THE DEATH PENALTY IN THE MILITARY
VIOLATES BOTH MASTER SERGEANT HENNIS’
EQUAL PROTECTION RIGHTS AND ARTICLE 36,
UCMJ.
Considering the record of trial and matters asserted in the parties’ briefs, we
resolve this assignment of error against appellant consistent with our superior
court’s treatment of a substantially similar issue in Akbar. Id. at 405-06, 411.
XIV. MASTER SERGEANT HENNIS WAS
SUBSTANTIALLY PREJUDICED BY A LEGALLY
INSUFFICIENT PRETRIAL ADVICE, INCORRECT
POST-TRIAL RECOMMENDATION AND IN-
CORRECT ADDENDUM WHEN THE STAFF JUDGE
ADVOCATE RECOMMENDED THAT MSG HENNIS
BE TRIED IN AN ACTIVE DUTY STATUS AND
RECEIVE ACTIVE DUTY PUNISHMENT WHEN
MSG HENNIS COULD ONLY BE TRIED IN A
RETIREE STATUS, IF AT ALL. SEE 10 U.S.C. § 688
(2001) and Department of Defense Directive 1352.1
(2005).
Considering our conclusion, supra, that appellant was lawfully called to
active duty under Article 2(a)(1), UCMJ, this assignment of error merits neither
discussion nor relief.
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XV. THE DEATH SENTENCE IN THIS CASE
VIOLATES THE FIFTH, SIXTH, AND EIGHTH
AMENDMENTS AND ARTICLE 55, UCMJ, BECAUSE
THE MILITARY SYSTEM DOES NOT GUARANTEE
A FIXED NUMBER OF MEMBERS. See IRVIN V.
DOWD, 366 U.S. 717, 722 (1961).
XVI. DISCUSSION OF FINDINGS AND SENTENCING
INSTRUCTIONS AND OTHER SUBSTANTIVE
ISSUES AT R.C.M. 802 CONFERENCES DENIED
MASTER SERGEANT HENNIS’ HIS RIGHT TO BE
PRESENT AT “EVERY STAGE OF THE TRIAL.”
Appellant has assigned these two errors as headnote pleadings without
briefing; they merit neither discussion nor relief.
XVII. THE ROLE OF THE CONVENING
AUTHORITY IN THE MILITARY JUSTICE SYSTEM
DENIED MASTER SERGEANT HENNIS’ [SIC] A
FAIR AND IMPARTIAL TRIAL IN VIOLATION OF
THE FIFTH, SIXTH, AND EIGHTH AMENDMENTS
AND ARTICLE 55, UCMJ, BY ALLOWING THE
CONVENING AUTHORITY TO ACT AS A GRAND
JURY IN REFERRING CAPITAL CRIMINAL CASES
TO TRIAL, PERSONALLY APPOINTING MEMBERS
OF HIS CHOICE, RATING THE MEMBERS,
HOLDING THE ULTIMATE LAW ENFORCEMENT
FUNCTION WITHIN HIS COMMAND, RATING HIS
LEGAL ADVISOR, AND ACTING AS THE FIRST
LEVEL OF APPEAL, THUS CREATING AN
APPEARANCE OF IMPROPRIETY THROUGH A
PERCEPTION THAT HE ACTS AS PROSECUTOR,
JUDGE, AND JURY.
Appellant has assigned this error as a headnote pleading without briefing; we
resolve it against him consistent with our superior court’s treatment of the issue in
United States v. Loving, 41 M.J. 213, 296-97 (C.A.A.F. 1994).
XVIII. ARTICLE 18, UCMJ, AND R.C.M.
201(F)(1)(C), WHICH REQUIRE TRIAL BY
MEMBERS IN A CAPITAL CASE, VIOLATES THE
GUARANTEE OF DUE PROCESS AND A RELIABLE
VERDICT UNDER THE FIFTH, SIXTH, AND
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HENNIS—ARMY 20100304
EIGHTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION.
Appellant has assigned this error as a headnote pleading without briefing; we
resolve it against him consistent with our superior court’s treatment of the issue in
Gray, 51 M.J. at 49.
XIX. MASTER SERGEANT HENNIS WAS DENIED
HIS RIGHT TO A TRIAL BY AN IMPARTIAL JURY
COMPOSED OF A FAIR CROSS-SECTION OF THE
COMMUNITY IN VIOLATION OF THE SIXTH
AMENDMENT TO THE UNITED STATES
CONSTITUTION. DUREN V. MISSOURI, 439 U.S. 357
(1979). BUT SEE UNITED STATES V. CURTIS, 44 M.J.
106, 130-33 (C.A.A.F. 1996).
Appellant has assigned this error as a headnote pleading without briefing; we
resolve it against him consistent with our superior court’s treatment of the issue in
Gray, 51 M.J. at 61.
XX. THE SELECTION OF THE PANEL MEMBERS
BY THE CONVENING AUTHORITY IN A CAPITAL
CASE DIRECTLY VIOLATES MASTER SERGEANT
HENNIS’ RIGHTS UNDER THE FIFTH, SIXTH, AND
EIGHTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION AND ARTICLE 55, UCMJ, BY IN
EFFECT GIVING THE GOVERNMENT UNLIMITED
PEREMPTORY CHALLENGE[S].
Appellant has assigned this error as a headnote pleading without briefing; we
resolve it against him consistent with our superior court’s treatment of substantially
similar issues involving a convening authority’s selection of panel members in
United States v. Curtis, 44 M.J. 106, 132 (C.A.A.F. 1996).
XXI. THE PRESIDENT EXCEEDED HIS ARTICLE
36 POWERS TO ESTABLISH PROCEDURES FOR
COURTS-MARTIAL WHEN HE GRANTED TRIAL
COUNSEL A PEREMPTORY CHALLENGE AND
THEREBY THE POWER TO NULLIFY THE
CONVENING AUTHORITY’S ARTICLE 25(D)
AUTHORITY TO DETAIL MEMBERS OF THE
COURT.
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XXII. THE PEREMPTORY CHALLENGE
PROCEDURE IN THE MILITARY JUSTICE
SYSTEM, WHICH ALLOWS THE GOVERNMENT TO
REMOVE ANY ONE MEMBER WITHOUT CAUSE, IS
AN UNCONSTITUTIONAL VIOLATION OF THE
FIFTH AND EIGHTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION IN CAPITAL
CASES, WHERE THE PROSECUTOR IS FREE TO
REMOVE A MEMBER WHOSE MORAL BIAS
AGAINST THE DEATH PENALTY DOES NOT
JUSTIFY A CHALLENGE FOR CAUSE. BUT SEE
UNITED STATES V. CURTIS, 44 M.J. 106, 131-33
(C.A.A.F. 1996); UNITED STATES V. LOVING, 41 M.J.
213, 294-95 (C.A.A.F. 1994).
Appellant has assigned these two errors as headnote pleadings without
briefing; we resolve them against him consistent with our superior court’s treatment
of substantially similar issues in Curtis. Id. at 131-33.
XXIII. THE DESIGNATION OF THE SENIOR
MEMBER AS THE PRESIDING OFFICER FOR
DELIBERATIONS DENIED MASTER SERGEANT
HENNIS A FAIR TRIAL BEFORE IMPARTIAL
MEMBERS IN VIOLATION OF THE FIFTH, SIXTH,
AND EIGHTH AMENDMENTS TO THE UNITED
STATES CONSTITUTION AND ARTICLE 55, UCMJ.
Appellant has assigned this error as a headnote pleading without briefing; we
resolve it against him consistent with our superior court’s treatment of a
substantially similar issue in Gray. 51 M.J. at 57.
XXIV. THE DENIAL OF THE RIGHT TO POLL THE
MEMBERS REGARDING THEIR VERDICT AT
EACH STAGE IN THE TRIAL DENIED MASTER
SERGEANT HENNIS A FAIR TRIAL BEFORE
IMPARTIAL MEMBERS IN VIOLATION OF THE
FIFTH, SIXTH, AND EIGHTH AMENDMENTS TO
THE U.S. CONSTITUTION AND ARTICLE 55, UCMJ.
SEE APP. EX. 50.
Appellant has assigned this error as a headnote pleading without briefing; we
resolve it against him consistent with our superior court’s treatment of a
substantially similar issue in Gray. Id. at 60-61.
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XXV. THERE IS NO MEANINGFUL DISTINCTION
BETWEEN PREMEDITATED AND
UNPREMEDITATED MURDER ALLOWING
DIFFERENTIAL TREATMENT AND SENTENCING
DISPARITY IN VIOLATION OF THE FIFTH, SIXTH,
AND EIGHTH AMENDMENTS TO THE UNITED
STATES CONSTITUTION AND ARTICLE 55, UCMJ.
SEE APP. EX. XXXIV (DEFENSE MOTION TO
DISMISS THE CAPITAL REFERRAL DUE TO
ARTICLE 118 OF THE UCMJ BEING
UNCONSTITUTIONALLY VAGUE).
Appellant has assigned this error as a headnote pleading without briefing; we
resolve it against him consistent with our superior court’s treatment of a
substantially similar issue in Gray. Id. at 56.
XXVI. MASTER SERGEANT HENNIS WAS DENIED
HIS RIGHT UNDER THE FIFTH AMENDMENT TO
THE UNITED STATES CONSTITUTION TO A
GRAND JURY PRESENTMENT OR INDICTMENT.
XXVII. COURT-MARTIAL PROCEDURES DENIED
MASTER SERGEANT HENNIS HIS ARTICLE III
RIGHT TO A JURY TRIAL. SOLORIO V. UNITED
STATES, 103 U.S. 435, 453-54 (1987) (MARSHALL J.,
dissenting). BUT SEE UNITED STATES V. CURTIS, 44
M.J. 106, 132 (C.A.A.F. 1996).
Appellant has assigned these two errors as headnote pleadings without
briefing; we resolve them against him consistent with our superior court’s treatment
of the issues in Gray. Id. at 48.
XXVIII. DUE PROCESS REQUIRES THAT TRIAL
AND INTERMEDIATE APPELLATE JUDGES IN A
MILITARY DEATH PENALTY CASE HAVE THE
PROTECTION OF A FIXED TERM OF OFFICE, NOT
SUBJECT TO INFLUENCE AND CONTROL BY THE
JUDGE ADVOCATE GENERAL OF THE ARMY. BUT
SEE UNITED STATES V. LOVING, 41 M.J. 213, 295
(C.A.A.F. 1994).
Appellant has assigned this error as a headnote pleading without briefing; we
resolve it against him consistent with our superior court’s treatment of a
substantially similar issue in Loving. 41 M.J at 295.
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XXIX. THE ARMY COURT LACKED JURISDICTION
BECAUSE THE JUDGES ARE PRINCIPAL
OFFICERS WHOM THE PRESIDENT DID NOT
APPOINT AS REQUIRED BY THE APPOINTMENTS
CLAUSE OF THE CONSTITUTION. SEE US CONST.,
ART. II, § 2. BUT SEE UNITED STATES V.
GRINDSTAFF, 45 M.J. 634 (N.M. CT. CRIM. APP.
1997); BUT CF. EDMOND V. UNITED STATES, 115
U.S. 651 (1997).
Appellant has assigned this error as a headnote pleading without briefing; we
resolve it against him consistent with the Supreme Court’s treatment of substantially
similar issues in Edmond v. United States, 520 U.S. 651 (1997) and Weiss v. United
States, 510 U.S. 163, 167-76 (1994).
XXX. THIS COURT LACKS THE JURISDICTION
AND AUTHORITY TO REVIEW THE
CONSTITUTIONALITY OF THE RULES FOR
COURTS-MARTIAL AND THE UCMJ BECAUSE
THIS COURT IS AN ARTICLE I COURT, NOT AN
ARTICLE III COURT WHICH HAS THE POWER OF
CHECKING CONGRESS AND THE EXECUTIVE
BRANCHES UNDER MARBURY V. MADISON, 5 U.S.
(1 CRANCH) 137 (1803). SEE ALSO COOPER V.
AARON, 358 U.S. 1 (1958) (THE POWER TO STRIKE
DOWN UNCONSTITUTIONAL STATUTES OR
EXECUTIVE ORDERS IS THE EXCLUSIVE CHECK
OF THE ARTICLE III JUDICIARY). BUT SEE
LOVING, [41 M.J. at] 213, 296 (C.A.A.F. 1994).
XXXI. MASTER SERGEANT HENNIS HAS BEEN
DENIED EQUAL PROTECTION OF THE LAWS IN
VIOLATION OF THE FIFTH AMENDMENT IN THAT
ALL CIVILIANS IN THE UNITED STATES ARE
AFFORDED THE OPPORTUNITY TO HAVE THEIR
CASES REVIEWED BY AN ARTICLE III COURT,
BUT MEMBERS OF THE UNITED STATES
MILITARY BY VIRTUE OF THEIR STATUS AS
SERVICE MEMBERS ARE NOT. BUT SEE UNITED
STATES V. LOVING, 41 M.J. 213, 295 (C.A.A.F. 1994).
Appellant has assigned these two errors as headnote pleadings without
briefing; we resolve them against him consistent with our superior court’s treatment
of substantially similar issues in Gray. 51 M.J. at 55.
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XXXII. MASTER SERGEANT HENNIS HAS BEEN
DENIED EQUAL PROTECTION OF THE LAW
UNDER THE FIFTH AMENDMENT TO THE UNITED
STATES CONSTITUTION BECAUSE IAW ARMY
REGULATION 15-130, PARA. 3-1(d)(6), HIS
APPROVED DEATH SENTENCE RENDERS HIM
INELIGIBLE FOR CLEMENCY BY THE ARMY
CLEMENCY AND PAROLE BOARD, WHILE ALL
OTHER CASES REVIEWED BY THIS COURT ARE
ELIGIBLE FOR SUCH CONSIDERATION. BUT SEE
UNITED STATES V. THOMAS, 43 M.J. 550, 607 (N.M.
CT. CRIM. APP. 1995).
XXXIII. MASTER SERGEANT HENNIS’ DEATH
SENTENCE VIOLATES THE EIGHTH
AMENDMENT’S PROHIBITION AGAINST CRUEL
AND UNUSUAL PUNISHMENT BECAUSE THE
CAPITAL REFERRAL SYSTEM OPERATES IN AN
ARBITRARY AND CAPRICIOUS MANNER. SEE
APP. EX. XL (DEFENSE MOTION TO SET ASIDE
CAPITAL REFERRAL FOR LACK OF STATUTORY
GUIDELINES).
XXXIV. THE DEATH PENALTY PROVISION OF
ARTICLE 118, UCMJ, IS UNCONSTITUTIONAL AS
IT RELATES TO TRADITIONAL COMMON LAW
CRIMES THAT OCCUR IN THE UNITED STATES.
BUT SEE UNITED STATES V. LOVING, 41 M.J. 213,
293 (C.A.A.F. 1994). THE COURT RESOLVED THE
ISSUE AGAINST PRIVATE LOVING, ADOPTING
THE REASONING OF THE DECISION OF THE
ARMY COURT OF MILITARY REVIEW. SEE
UNITED STATES V. LOVING, 34 M.J. 956, 967
(A.C.M.R. 1992). HOWEVER, PRIVATE LOVING’S
ARGUMENT BEFORE THE ARMY COURT WAS
PREDICATED ON THE TENTH AMENDMENT TO
THE UNITED STATES CONSTITUTION AND THE
NECESSARY AND PROPER CLAUSE. ID. MASTER
SERGEANT HENNIS’ ARGUMENT IS PREDICATED
ON THE EIGHTH AMENDMENT TO THE UNITED
STATES CONSTITUTION.
XXXV. THE DEATH SENTENCE IN THIS CASE
VIOLATES THE FIFTH AND EIGHTH
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AMENDMENTS TO THE UNITED STATES
CONSTITUTION AND ARTICLE 55, UCMJ,
BECAUSE THE CONVENING AUTHORITY HAS NOT
DEMONSTRATED HOW THE DEATH PENALTY
WOULD ENHANCE GOOD ORDER AND
DISCIPLINE IN THE ARMY.
XXXVI. THE CAPITAL SENTENCING PROCEDURE
IN THE MILITARY IS UNCONSTITUTIONAL
BECAUSE THE MILITARY JUDGE DOES NOT
HAVE THE POWER TO ADJUST OR SUSPEND A
SENTENCE OF DEATH THAT IS IMPROPERLY
IMPOSED.
XXXVII. DUE TO INHERENT FLAWS IN THE
MILITARY JUSTICE SYSTEM, THE DEATH
PENALTY VIOLATES THE PROHIBITION AGAINST
CRUEL AND UNUSUAL PUNISHMENT UNDER ALL
CIRCUMSTANCES.
XXXVIII. THE DEATH PENALTY CANNOT
CONSTITUTIONALLY BE IMPLEMENTED UNDER
CURRENT EIGHTH AMENDMENT
JURISPRUDENCE. SEE CALLINS V. COLLINS, 510
U.S. 114, 1144-1159 (1994) (BLACKMUN, J.,
dissenting) (cert. denied).
XXXIX. RULE FOR COURTS-MARTIAL 1209 AND
THE MILITARY DEATH PENALTY SYSTEM
DENIES DUE PROCESS AND CONSTITUTES CRUEL
AND UNUSUAL PUNISHMENT AND IS
TANTAMOUNT TO FORESEEABLE, STATE-
SPONSORED EXECUTION OF INNOCENT HUMAN
BEINGS BECAUSE THERE IS NO EXCEPTION FOR
ACTUAL INNOCENCE TO THE FINALITY OF
COURTS-MARTIAL REVIEW. CF. TRIESTMAN V.
UNITED STATES, 124 F.3D 361, 378-79 (2D CIR.
1997).
Appellant has assigned these eight errors as headnote pleadings without
briefing; they merit neither discussion nor relief.
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XL. THE MILITARY JUDGE ERRED IN
ADMITTING THE GOVERNMENT’S CRIME SCENE
PHOTOGRAPHS AND VICTIM FAMILY PHOTOS AS
THEY WERE UNDULY PREJUDICIAL TO MASTER
SERGEANT HENNIS’ DUE PROCESS RIGHTS
UNDER THE FIFTH AND EIGHTH AMENDMENTS.
SEE, E.G., APP. EX. 53, PROS. EXS. 149-151.
Appellant has assigned this error as a headnote pleading without briefing; we
resolve it against him consistent with our superior court’s treatment of a
substantially similar issue in Akbar. 74 M.J. at 407 (“[I]t cannot be seriously argued
that [the] . . . photographs were admitted only to inflame or shock this court-
martial.”) (quoting Gray, 51 M.J. at 35).
XLI. THE DEATH SENTENCE IN THIS CASE
VIOLATES THE EX POST FACTO CLAUSE, THE
FIFTH AND EIGHTH AMENDMENTS, THE
SEPARATION OF POWERS DOCTRINE, THE
PREEMPTION DOCTRINE, AND ARTICLE 55,
UCMJ, BECAUSE WHEN IT WAS ADJUDGED
NEITHER CONGRESS NOR THE ARMY HAD
SPECIFIED A MEANS OR PLACE OF EXECUTION.
XLII. THE ARTICLE 38, UCMJ, REQUIREMENT
THAT CIVILIAN COUNSEL SERVE AS LEAD
COUNSEL VIOLATED MASTER SERGEANT
HENNIS’ FIFTH AND SIXTH AMENDMENT RIGHTS
TO COUNSEL.
XLIII. THE DYSFUNCTIONAL ADMINISTRATION
OF THE MILITARY’S DEATH PENALTY SYSTEM
RESULTS IN AN INORDINATE AND
UNPREDICTABLE PERIOD OF DELAY PRECEDING
THE ACTUAL EXECUTION OF THE RANDOM FEW
FOR WHOM MAY BE EXECUTED. THIS VIOLATES
THE EIGHTH AMENDMENT’S PROHIBITION
AGAINST CRUEL AND UNUSUAL PUNISHMENT.
SEE JONES V. CHAPPELL, 2014 U.S. DIST. LEXIS
97254, 1 (C.D. CAL. JULY 16, 2014).
Appellant has assigned these three errors as headnote pleadings without
briefing; they merit neither discussion nor relief.
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HENNIS—ARMY 20100304
PROPORTIONALITY REVIEW
We are required to assess the proportionality of appellant’s death sentence.
Akbar, 74 M.J. at 408; Gray, 51 M.J. at 62; United States v. Curtis, 33 M.J. 101, 109
(C.M.A. 1991). Under Article 66(c), UCMJ, we conclude the approved sentence is
correct in law and fact. Further, under the circumstances of this case, including
appellant’s rape of one of the murder victims, the vulnerability inherent in the young
ages of the other two murder victims, and appellant’s mutilation of all three murder
victims, we conclude the adjudged and approved death sentence fits the crimes of
which he was found guilty. We further find “the sentence is generally proportional
to those imposed by other jurisdictions in similar situations.” Curtis, 33 M.J. at 109.
See Ladd v. State, 3 S.W.3d 547 (Tex. Crim. App. 1999.); Stevens v. State, 806 So.
2d 1031, 1064 (Miss. 2001); Commonwealth v. Eichinger, 108 A.3d 821, 849 (Pa.
2014) (“multiple murders and murder of child weigh heavy in aggravation.”) (citing
Commonwealth v. Koehler, 36 A.3d 121, 151-52 (Pa. 2009)).
CONCLUSION
The findings and sentence are correct in law and fact and are AFFIRMED.
Senior Judge TOZZI, Judge HERRING, and Judge BURTON concur.
FORTHE
FOR THECOURT:
COURT:
MALCOLM
MALCOLMH.H.SQUIRES,
SQUIRES,JR.
JR.
Clerk
ClerkofofCourt
Court
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