United States v. Hennis

This opinion is subject to revision before publication

UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________

UNITED STATES
Appellee
v.
Timothy B. HENNIS, Master Sergeant
United States Army, Appellant
No. 17-0263
Crim. App. No. 20100304
Argued October 22, 2019—Decided February 28, 2020
Military Judge: Patrick J. Parrish
For Appellant: Major Timothy G. Burroughs and Jonathan
F. Potter, Esq. (argued); Lieutenant Colonel Christopher
Daniel Carrier (on brief).
For Appellee: Major Catherine M. Parnell (argued); Colonel
Steven P. Haight, Lieutenant Colonel Eric K. Stafford, and
Captain Allison L. Rowley (on brief).
Chief Judge STUCKY delivered the opinion of the Court,
in which Judges RYAN, OHLSON, SPARKS, and
MAGGS, joined.
_______________

Chief Judge STUCKY delivered the opinion of the Court.
This capital murder case is before us for mandatory review
under Article 67(a)(1), Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 867(a)(1) (2012). After reviewing the
assigned and personally asserted errors, we affirm the
judgment of the United States Army Court of Criminal
Appeals (CCA).
I. Background
Captain GE, United States Air Force, his wife KE, and
their three daughters lived in Fayetteville, North Carolina.
In anticipation of their upcoming assignment to England, the
family put an advertisement in the local Fort Bragg newspa-
per to find a new home for their dog. On May 10, 1985, while
Captain GE was on temporary duty to Maxwell Air Force
Base, Alabama, Appellant visited the family’s home to meet
the dog.
 United States v. Hennis, No. 17-0263/AR
Opinion of the Court

On May 12, 1985, KE’s neighbors telephoned the sheriff
because they had not seen KE or her daughters for several
days, newspapers were piling up in the front yard, and they
could hear crying from inside the house. Inside, the
responding officer found the bodies of KE and two of her three
daughters, aged five and three. The youngest daughter was
found alive in her crib. KE’s jeans were discovered on the floor
alongside underwear that had been cut from her body. Her
wrists bore ligature marks. An autopsy determined that KE
and her two daughters died of multiple stab wounds “and a
large cut in the neck of each.” State v. Hennis, 372 S.E.2d 523,
525 (N.C. 1988). Intact spermatozoa were discovered in KE’s
vagina.
In July 1986, a North Carolina jury sentenced Appellant
to death for the three murders. Id. at 528; Hennis v. Hemlick,
666 F.3d 270, 271 (4th Cir. 2012). Due to the admission of
especially “gruesome” photographs of the bodies of the victims
after Appellant had stipulated to the cause of death as stab-
bing, as well as the manner in which the photographs were
displayed above Appellant’s head during trial, the North Car-
olina Supreme Court ordered a new trial. Hennis, 372 S.E.2d
at 528. Appellant was acquitted at the new trial in 1989. Hen-
nis, 75 M.J. at 802. Appellant returned to active duty status
and retired from the regular Army in 2004 as a Master Ser-
geant. Id.
In 2006, following advances in deoxyribonucleic acid
(DNA) analysis, forensic examiners established “the near-sta-
tistical certainty” that the spermatozoa found in KE’s vagina
were Appellant’s. Id. at 802–03. In light of this new evidence,
the Army recalled Appellant to active duty. Id. at 803.
In 2010, a general court-martial with enlisted members
convicted Appellant of three specifications of premeditated
murder. Article 118, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 918 (1982). The court members sen-
tenced him to a dishonorable discharge, forfeiture of all pay
and allowances, reduction to the grade of E-1, and to be put
to death. The convening authority approved the sentence. The
CCA affirmed the approved findings and sentence. Hennis, 75
M.J. at 856.

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Opinion of the Court

Appellant’s counsel have assigned forty issues and Appel-
lant has personally asserted three additional issues pursuant
to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). After
careful review of each of these issues, we agree with the CCA’s
reasoning and conclude that none addressed by that court
have merit. Similarly, none of the issues raised for the first
time in this Court have merit. We will discuss herein only the
five issues on which we granted oral argument.
II. Jurisdiction
Appellant challenges the jurisdiction of the court-martial
in several ways. Jurisdiction is the power of a court “to decide
a case or issue a decree.” Black’s Law Dictionary 980 (10th ed.
2014). When challenged at trial, the prosecution “must prove
jurisdiction by a preponderance of evidence.”1 United States
v. Morita, 74 M.J. 116, 121 (C.A.A.F. 2015). We review such
questions de novo. United States v. Hale, 78 M.J. 268, 270
(C.A.A.F.), cert. denied, 139 S. Ct. 2682 (2019).

1 After the military judge denied Appellant’s pretrial challenge
to the jurisdiction of the court-martial, Appellant filed writs of man-
damus, habeas corpus, and prohibition with the CCA, which were
denied. See Hennis v. Hemlick, No. 5:09-HC-2169-BO, 2010 U.S.
Dist. LEXIS 146565, at *4, 2010 WL 11508257, at *2 (E.D.N.C. Mar.
16, 2010), aff’d, 666 F.3d 270, 273–74 (4th Cir.), cert. denied, 566
U.S. 1004 (2012). A writ appeal before this Court was also denied.
Hennis v. Parrish, 67 M.J. 50 (C.A.A.F. 2008). Thereafter, Appel-
lant filed a petition for writ of habeas corpus in the United States
District Court of North Carolina, arguing the court-martial lacked
jurisdiction over him. The district court dismissed the petition on
grounds of abstention: “where members of the armed forces file ha-
beas petitions seeking relief from the military restraint of liberty,
federal civil courts should not entertain petitions until all available
remedies within the military court system have been exhausted.”
Hennis, 2010 U.S. Dist. LEXIS 146565, at *7–15, 2010 WL
11508257, at *3–5 (citing Schlesinger v. Councilman, 420 U.S. 738
(1975)). Appellant filed two original habeas corpus petitions in this
Court, which were both denied without prejudice. Hennis v. Nelson,
74 M.J. 77 (C.A.A.F. 2014); Hennis v. Ledwith, 73 M.J. 240
(C.A.A.F. 2014). Once convicted, Appellant filed a pro se petition for
writ of habeas corpus with the United States District Court for the
District of Kansas, which was dismissed without prejudice for fail-
ure to exhaust military court remedies. Hennis v. Nelson, No. 15-
3008-KHV, 2015 U.S. Dist. LEXIS 127734, at *1, 2015 WL 5604271,
at *1 (D. Kan. Sept. 23, 2015).

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Opinion of the Court

A. Issue I: Break in Service
Before entry of pleas, Appellant challenged the jurisdic-
tion of a court-martial to try him for the charged offenses, ar-
guing that there was a break in his service that divested the
Army of jurisdiction over the offenses. The military judge de-
nied Appellant’s motion in April 2008. Appellant now asserts
that the “Army relinquished any ability to court-martial [him]
for conduct in 1985 when it discharged him on June 12, 1989.”
Appellant initially enlisted in the Regular Army on Janu-
ary 29, 1981, for four years, but he extended his service obli-
gation on February 1, 1984, for one year, to attend warrant
officer training and flight school. 75 M.J. at 806. His new ex-
piration of term of service (ETS) was January 28, 1986.
North Carolina authorities arrested appellant on May 16,
1985, for murder and rape. He was released on bail on Decem-
ber 15, 1985. Although there is no corresponding paperwork,
it appears the Army granted Appellant a seven-month exten-
sion to compensate for the seven months he spent in state pre-
trial confinement before he was released on bail. See Hennis,
75 M.J. at 807. If so, that would have extended Appellant’s
ETS to August 27, 1986.
Appellant was convicted by the state court on July 4,
1986.2 The Supreme Court of North Carolina set aside the
convictions but authorized a new trial, at which Appellant
was acquitted on April 19, 1989. Two days later, Appellant
reported for duty at Fort Knox, Kentucky, where he had been
assigned after his first civilian trial. 75 M.J. at 806.
As Appellant’s civilian conviction never became final, the
federal statute in effect at the time characterized the periods
Appellant served in pretrial and post-trial confinement as
creditable service—they would have counted as time served
against his term of enlistment. See 10 U.S.C. § 972(3), (4)

2 As a result, an administrative discharge board recommended
that Appellant be discharged from the Army under other than hon-
orable conditions. The discharge was approved on October 3, 1986,
but execution was deferred pending the outcome of his appeal of his
criminal convictions. The general court-martial convening author-
ity eventually voided the discharge after the reversal, retrial, and
acquittal in the state courts.

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(1988). On May 22, 1989, Appellant’s commanding general,
acting under Dep’t of the Army, Reg. 630-10, Personnel Ab-
sences, Absence Without Leave and Desertion ¶ 1-8 (update
13, dated Mar. 16, 1988) [hereinafter AR 630-10], no doubt to
effectuate § 972, ordered Appellant’s absence from duty from
May 16, to December 15, 1985, (initial arrest to bail) and from
July 4, 1986, to April 19, 1989 (period of post-trial incarcera-
tion), reclassified as “unavoidable.” Hennis, 75 M.J. at 806.
Any period of unauthorized absence excused as unavoida-
ble is “creditable for all purposes.” Id. at 806–07 (citing AR
630-10 ¶ 1-8(c)). By this order, the commanding general
reestablished Appellant’s ETS as no later than August 27,
1986. Nevertheless, both the Army and Appellant acted as if
his enlistment had not terminated. He made no attempt to
separate and made no objection to his continued service.
On June 1, 1989, Appellant submitted a Department of
the Army Form 3340-R, asking to reenlist for four years.
Block 2c listed June 17, 1989, as his ETS. Block 2d noted that
Appellant had two extensions on his original enlistment. The
first, effective February 1, 1984, for twelve additional months,
corresponds with a document signed by Appellant to extend
his ETS to attend warrant officer training and flight school.
Hennis, 75 M.J. at 807. The second extension appears to be
for the time he served in pretrial confinement before his first
civilian trial, but there is no documentation to support that
conclusion.
On June 12, 1989, five days before the ETS date stated on
his reenlistment Form 3340-R, Appellant was honorably
discharged from the Army. On the following day, Appellant
reenlisted for four years, using a Department of Defense Form
4, Enlisted/Reenlistment Document, Armed Forces of the
United States, bearing the typed words, “Immediate
Reenlistment” in the top margin. Hennis, 75 M.J. at 807.
Appellant remained on active duty until his retirement on
July 31, 2004. Id. Charges were preferred against Appellant
on November 9, 2006.
Before entry of pleas, Appellant moved to dismiss for lack
of jurisdiction. He argued that a break in service between his
acquittal in civilian court and his subsequent enlistment de-
prived the court-martial of subject-matter jurisdiction. The

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Opinion of the Court

military judge concluded there was no break in service; that
Appellant’s discharge was for the sole purpose of reenlist-
ment; and there was no intent to sever Appellant’s relation-
ship with the Army, as the discharge was a necessary predi-
cate for him to reenlist. Even assuming a break in service, the
military judge concluded that the Army still had jurisdiction
under Article 3(a), UCMJ, 10 U.S.C. § 803(a).
The CCA determined that, once the commanding general
found Appellant’s incarceration “unavoidable,” his ETS re-
verted to August 27, 1986. As Appellant’s discharge “occurred
after his contractual service obligation expired,” his “military
status terminated—albeit briefly—immediately before his
reenlistment.” Hennis, 75 M.J. at 808 (citing United States v.
Clardy, 13 M.J. 308 (C.M.A. 1982)). Despite this break in ser-
vice, the CCA held that the court-martial had jurisdiction un-
der Article 3(a), UCMJ, 10 U.S.C. § 803(a) (1982). Id. at 810.
Article 3(a), as enacted in 1950 and in effect at the time of
the alleged offenses, provided:
Subject to the provisions of article 43 [the statute of
limitations], any person charged with having
committed, while in a status in which he was subject
to this code, an offense against this code, punishable
by confinement for five years or more and for which
the person cannot be tried in the courts of the United
States or any State or Territory thereof or of the
District of Columbia, shall not be relieved from
amenability to trial by court-martial by reason of the
termination of said status.3

3 Originally Act of May 5, 1950, ch. 169, Pub. L. No. 81-506, 64
Stat. 109 (codified at 50 U.S.C. § 553(a) and repealed in 1956), then
Act of Aug. 10, 1956, ch. 1041, Pub. L. No. 84-1028, 70A Stat. 38
(codified at 10 U.S.C. § 803(a)). Article 3(a) was rewritten in 1992.
National Defense Authorization Act for Fiscal Year 1993, Pub. L.
No. 102–484, §§ 1063, 1067, 102 Stat. 2315, 2505, 2506 (1992). Cur-
rently, “if a person is subject to military jurisdiction at the time of
the trial and was subject to military jurisdiction at the time of the
offense, that person may be tried for offenses occurring during a
prior period of military service.” Willenbring v. Neurauter, 48 M.J.
152, 158 (C.A.A.F. 1998), overruled on other grounds by United
States v. Mangahas, 77 M.J. 220 (C.A.A.F. 2018). The new “statute
was given prospective effect, applying only to offenses occurring on
or after October 23, 1992.” Id.

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Early in the UCMJ’s history, the Supreme Court limited
application of Article 3(a) court-martial jurisdiction “to per-
sons who are actually members or part of the armed forces.”
United States ex rel. Toth v. Quarles, 350 U.S. 11, 15 (1955)
(holding Article 3(a) was unconstitutional as applied to a man
accused of committing murder in Korea while he was on ac-
tive duty, given that he had been discharged from the service
and returned to civilian life). “It has never been intimated by
this Court, however, that Article I military jurisdiction could
be extended to civilian ex-soldiers who had severed all rela-
tionship with the military and its institutions.” Id. at 14.
This jurisdiction question arose again in Clardy, 13 M.J.
308. There, the CCA’s predecessor, the United States Army
Court of Military Review, concluded that the accused’s of-
fenses, which had been committed shortly before he had been
discharged for the purpose of immediate reenlistment, “were
not in the category of offenses as to which military jurisdiction
was preserved by Article 3(a).” Id. at 309. The government
appealed. The Court of Military Appeals (C.M.A.) concluded
that a servicemember gives “implied consent … to continua-
tion of his military status when he receives an early discharge
and immediately reenlists” and that “may be viewed as in-
cluding his consent that he remain amenable to prosecution
for offenses in the prior enlistment.” Id. at 315. In essence,
the Court established a two-part test:
(1) Was there a break in service between the offense and
the preferral of charges? If the accused was discharged on the
last day of his term of service and enlisted the following day,
there was a break in service. If the accused was discharged
before his ETS for the sole purpose of reenlistment and reen-
listed before his ETS, there was no break in service and the
court-martial had jurisdiction. Id. at 311, 314.
(2) If there was a break in service, the accused is still sub-
ject to court-martial jurisdiction if, consistent with Article
3(a), UCMJ:
(a) The accused was subject to the UCMJ both at the
time of the offense and at the time of preferral of charges;
(b) The offense is punishable by confinement for five or
more years; and

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(c) The accused “cannot be tried in the courts of the
United States or of a State, a Territory, or the District of Co-
lumbia.” Article 3(a), UCMJ.
Id. at 314–15.
The Government has not contested the CCA’s holding that
there was a break in service.4 Therefore, we will discuss only
the second prong of the Clardy test. Appellant was on active
duty at the time of the offenses and at the time the charges
were preferred, and the charged offenses are punishable by
confinement for more than five years. Therefore, the remain-
ing issue is whether “the person cannot be tried in the courts
of the United States or of a State, a Territory, or the District
of Columbia.” Article 3(a), UCMJ.
At trial, Appellant argued that he could have been tried
by a state and, indeed, was tried by the State of North Caro-
lina twice. The military judge rejected Appellant’s argument.
75 M.J. at 809. The CCA agreed with the military judge. It
interpreted the plain language of the statute and determined
that the Double Jeopardy Clause barred the state from pros-
ecuting and, therefore, no other entity except the military
could try him. Id.
Crucial to resolution of this issue is the instant at which
we are to apply Article 3(a). If we apply it at the time the
offenses were committed, Appellant clearly could have been
tried by another jurisdiction. Thus, Article 3(a) would not
have preserved court-martial jurisdiction. On the other hand,
if we apply Article 3(a) at the time court-martial charges were
preferred, no other court had jurisdiction to try Appellant for
these offenses, and Article 3(a) would have preserved
jurisdiction.
Based on the plain language of the statute, we reject Ap-
pellant’s interpretation of Article 3(a). The issue is not
whether another jurisdiction could have ever tried Appellant,
but rather whether there was any court that could try him at
the time charges were preferred. At the time of preferral of

4 The Government merely argues that, “[a]ssuming arguendo
there was a break in Appellant’s service, this Court should find that
there was jurisdiction over Appellant pursuant to Article 3(a),
UCMJ.”

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Opinion of the Court

charges, Appellant “[could not] be tried in the courts of the
United States or any State” because, at that time, double jeop-
ardy barred North Carolina from prosecuting and no federal
statute under Title 18, triable in a U.S. district court, covered
Appellant’s conduct. As no other jurisdiction could have tried
Appellant at the time charges were preferred, the prosecution
met its burden of establishing jurisdiction by a preponderance
of evidence.
This analysis is consistent with our decision in Willen-
bring. There, the offenses were alleged to have been commit-
ted “at Fort Belvoir, Virginia, an area of exclusive federal ju-
risdiction.” 48 M.J. at 176. The accused would have been
subject to trial in federal district court, except that the federal
statute of limitations had run. We held that, by establishing
that the federal statute of limitations had run, the prosecu-
tion had met its burden of showing that Willenbring “ ‘cannot
be tried in the courts of the United States’ for the purposes of
Article 3(a).” Id. at 177 (quoting Article 3(a)). Thus, this Court
implicitly rejected the notion that Article 3(a) becomes opera-
tive at the time the offenses were committed. We now make
this interpretation explicit.
Willenbring forecloses Appellant’s argument that, if he
had waived his double jeopardy protection the State of North
Carolina could have tried him at the time charges were pre-
ferred. In Willenbring, we held that the fact the appellant
could waive his statute of limitations defense did not mean
that the federal civilian authorities could try him, because the
statute of limitations, although waivable, is “a limitation on
the power of a prosecutor to bring charges and on the power
of a court to try a case.” 48 M.J. at 176. Similarly, the Su-
preme Court has held that the protection against double jeop-
ardy, though waivable, “serves principally as a restraint on
courts and prosecutors.” Brown v. Ohio, 432 U.S. 161, 165
(1977). Therefore, the State of North Carolina could not have
brought a “knowing and intentional” prosecution in good faith
against Appellant at the time charges were preferred against
him. Willenbring, 48 M.J. at 177.
B. Issue II: Subject Matter Jurisdiction
Citing O’Callahan v. Parker, Appellant argues, “[m]ilitary
courts should only try offenses arising from military service.”

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395 U.S. 258 (1969), overruled by Solorio v. United States, 483
U.S. 435 (1987), He insists that his case did not arise in the
land or naval forces and, therefore, he had a Fifth Amend-
ment right to indictment by grand jury and trial before a ci-
vilian court. Appellant recognizes that Solorio overruled
O’Callahan. Nevertheless, he asserts that capital cases are
different and that this is the first capital case since Solorio
was decided in which there is no service connection.
“Congress shall have the Power … To make Rules for the
Government and Regulation of the land and naval Forces.”
U.S. Const. art. I, § 8, cl. 14. The Fifth Amendment to the
Constitution provides:
No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment
or indictment of a Grand Jury, except in cases
arising in the land or naval forces, or in the Militia,
when in actual service in time of War or public
danger ….
U.S. Const. amend. V.
In O’Callahan, the Supreme Court determined that for a
case to arise in the land or naval forces under the Fifth
Amendment there must be a connection between the offense
itself and the military. 395 U.S. at 272–73, The Court held
that O’Callahan’s status as a military member, without more,
was not sufficient to establish subject matter jurisdiction.
“ ‘Status’ is necessary for jurisdiction; but it does not follow
that ascertainment of ‘status’ completes the inquiry,
regardless of the nature, time, and place of the offense.” Id. at
267. After the military struggled to define the term “service
connection,” the Supreme Court set forth twelve factors for
courts to consider in determining whether a service
connection existed. See Relford v. Commandant, 401 U.S. 355,
365 (1971).
O’Callahan and its progeny lasted less than twenty years.
In 1987, the Supreme Court concluded that Article I, § 8, cl.
14, granted Congress “primary responsibility for the delicate
task of balancing the rights of servicemen against the needs
of the military,” and the exercise of that responsibility is en-
titled to judicial deference. Solorio, 483 U.S. at 447–48. The
Court then returned to the pre-O’Callahan view of court-mar-
tial jurisdiction. “The test for jurisdiction ... is one of status,

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namely, whether the accused in the court-martial proceeding
is a person who can be regarded as falling within the term
land and naval Forces.” Id. at 439 (alteration in original) (in-
ternal quotation marks omitted) (citations omitted).
Appellant recognizes that Solorio dispensed with the
O’Callahan service-connection test. Citing Justice Stevens’s
concurring opinion in Loving v. United States, 517 U.S. 748,
774 (1996) (Stevens, J., joined by Souter, J., Ginsburg, J., and
Breyer, J., concurring), however, he argues that “whether a
‘service connection’ requirement should obtain in capital
cases” is an open question because Solorio was not a capital
case and because the historical data cited in that case suggest
military jurisdiction over capital cases is not as strong as for
noncapital offenses.
Justice Stevens’s suggestion in Loving that Solorio may
not apply to capital cases is unfounded. The Fifth Amend-
ment’s exclusion of “cases arising in the land or naval Forces”
from its ambit makes no distinction between the treatment of
capital cases and that of infamous crimes. Although Solorio
itself was an “infamous crime” case, the Supreme Court did
not qualify its conclusion that “military jurisdiction has al-
ways been based on the status of the accused, rather than on
the nature of the offense.” 483 U.S. at 439 (internal quotation
marks omitted) (citation omitted). In fact, the majority cited
military capital cases in support of its position. Id. at 449
n.14. We hold that Solorio applies to capital cases.
Based on his belief that he established the necessity for a
service-connection requirement, Appellant argues that this
case lacks any meaningful connection to military service and,
therefore, does not arise in the land or naval forces: “The only
thread the government can trace to military service is MSG
Hennis’s 1985 status as an Army sergeant, and the fact that
[the victims] were family members of an Air Force officer.” He
asserts, “[t]his Court has never found such incidental circum-
stances sufficient to render an offense ‘service-connected.’ ”
This Court may not have in its present incarnation, but the
C.M.A. did exactly that.
In United States v. Solorio, the C.M.A. held that the ap-
pellant’s off-base sexual abuse of the dependents of Coast
Guardsmen was service connected. 21 M.J. 251, 255–56

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(1986). It relied on the trauma to the parents, which dimin-
ished their ability to perform their duties, and the limitations
on the appellant’s future assignments because of “the ten-
sions that his presence would create in an organization.” Id.
at 256. Moreover, Justice Stevens, upon whom Appellant’s ar-
gument relies, would have found Solorio’s offenses service-
connected. Solorio, 483 U.S. at 451 (Stevens, J., concurring in
the judgment). We have no doubt Justice Stevens would have
reached the same conclusion in this case, where Appellant
slaughtered the wife and two children of a military member.
C. Issue III: Personal Jurisdiction
Appellant asserts that he did not have a military status
such that he was subject to court-martial jurisdiction at the
time of his trial. He contends: (1) the Army lacked authority
to recall him to active duty; and (2) the Army foreclosed per-
sonal jurisdiction based on his retired status when, over his
objection, it treated him as a soldier on active duty.
When he became eligible to retire, Appellant was released
from active duty, placed on the retired list, and transferred to
the U.S. Army Reserve Control Group (Retired), U.S. Army
Reserve Personnel Center, St. Louis, Missouri, effective July
31, 2004. After the DNA testing established it was Appellant’s
spermatozoa found in KE’s vagina, the convening authority
asked the Assistant Secretary of the Army (Manpower and
Reserve Affairs (ASA (M&RA)) to order Appellant to active
duty “to facilitate courts-martial action.” The Acting ASA
(M&RA) ordered Appellant to active duty under the provi-
sions of Article 2(a)(4), UCMJ, 10 U.S.C. § 802(a)(4),
10 U.S.C. § 688, and Dep’t of the Army, Reg. 27-10, Legal Ser-
vices: Military Justice ¶ 5-2(b)(3) [hereinafter AR 27-10] (Sec-
retary’s authorization to recall retired members for purposes
of court-martial proceedings). Once Appellant was properly
recalled to active duty, he was subject to the UCMJ “from the
date[] when [he was] required by the terms of the call or order
to obey it.” Article 2(a)(1), UCMJ.
To effectuate that order, the Army’s Human Resources
Command ordered Appellant to active duty on September 14,
2006, directing him to report to XVIII Airborne Corps in Oc-
tober 2006, for the purpose of “UCMJ processing.” Appellant

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complied. He was arraigned on February 4, 2008, convicted
on April 8, 2010, and sentenced on April 15, 2010.
1.
Appellant accepts that the Army could have tried him as
a retiree but disputes that the Army had the ability to recall
him to active duty. Appellant contends that, as he was as-
signed to a reserve unit, he was both a retiree and a reservist.
He argues that a reservist cannot be recalled to active duty
for any offense committed before 1987.
But Appellant was not a reservist, nor was he recalled
from reserve status. He was recalled to active duty as a re-
tired member of the Regular Army under regulations pre-
scribed by the Secretary of Defense. See 10 U.S.C. § 688(a),
(b)(1) (2000); Dep’t of Defense Dir. 1352.1, Management and
Mobilization of Regular and Reserve Retired Military Mem-
bers ¶ 4.1. (July 16, 2005); AR 27-10 ¶ 5-2(b)(3). The fact that
Appellant was attached to a reserve organization for account-
ing purposes did not make him a reservist.
Appellant contends that even if he were a retiree, rather
than a reservist, the Army could recall him to active duty only
in the “ ‘interest of national defense,’ ” not for UCMJ
processing. At the time of Appellant’s recall to active duty, the
service secretary could assign the recalled member to “such
duties as the Secretary considers necessary in the interests of
national defense.” § 688(c). Although the term “interests of
national defense” is undefined, we have no doubt that it
includes recalling a retiree to face court-martial charges of
killing three military dependents. Cf. Pearson v. Bloss, 28
M.J. 376, 380 (C.M.A. 1989) (denying writ appeal of retired
accused who argued that he was not subject to court-martial
jurisdiction).
2.
Appellant’s claim that the Army lost jurisdiction over him
by recalling him to active duty from retired status is without
merit. The Army had personal jurisdiction over Appellant be-
cause of his retired status. Article 2(a)(4), UCMJ. The Army
was also statutorily authorized to and did recall him to active
duty under regulations prescribed by the Secretary of De-

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Opinion of the Court

fense. Appellant was subject to court-martial jurisdiction un-
der either status and the Army did not lose personal jurisdic-
tion over him by choosing to recall him. See United States v.
Dinger, 77 M.J. 447, 453 (C.A.A.F. 2018).
III. Issue VI: Opportunity to Present a Defense
“[T]he Constitution guarantees criminal defendants a
meaningful opportunity to present a complete defense.”
Holmes v. South Carolina, 547 U.S. 319, 324 (2006) (internal
quotation marks omitted) (citation omitted); accord United
States v. Woolheater, 40 M.J. 170, 173 (C.M.A. 1994) (recog-
nizing an accused’s constitutional right to “present legally
and logically relevant evidence that someone else had the mo-
tive, knowledge, and opportunity to commit the” offense). Ar-
ticle 46, UCMJ, grants an accused equal opportunity with the
trial counsel “to obtain witnesses and other evidence in ac-
cordance with such regulations as the President may pre-
scribe.” 10 U.S.C. § 846 (2006).
A. Witnesses
Appellant asserts that someone else could have committed
the offenses and that the state’s investigation was deeply
flawed. He complains that the military judge denied him a
meaningful opportunity to present a defense by refusing to
permit him to call three witnesses: (1) WHH, the victims’
neighbor, whom Appellant claims had scratches on his face
around the time of the murders, fit the description of a man
who was observed leaving the victim’s residence, and refused
to provide hair, fingerprint, and handwriting samples;5
(2) Mary Krings, who worked with and dated WHH, who
would testify that he had scratches on his face around the
time of the murders, made inconsistent statements about
those scratches, and asked his employer for a transfer to a
different city; and (3) Gary Staley, WHH’s roommate, who
would testify that he owned a light-colored van, like the one
seen parked near the victims’ home on the night of the mur-

5 Appellant argues that the handwriting samples may have
helped determine whether WHH sent letters to the North Carolina
county prosecutors after Appellant’s first trial, signed by a “Mr. X,”
which said that he, not Appellant, had killed the victims.

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Opinion of the Court

ders, and WHH had access to it. The CCA held that the mili-
tary judge did not abuse his discretion in concluding that Ap-
pellant failed to fulfill his burden to establish the relevance
and necessity of the witnesses’ testimony. Hennis, 75 M.J. at
820–25.
In discussing the relevance of Mr. Staley’s testimony, the
military judge concluded:
While the defense theory is that [WHH] is a suspect
in the … murders, the defense proffered no evidence
to support that theory or that [WHH] in any way
resembles the person seen near the [victims’]
residence at the time of the murders. The DNA
sample provided by [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 [Mr. Staley’s] van is not the least bit clear.
In Holmes, the accused was convicted of murder, criminal
sexual conduct, burglary, and robbery. 547 U.S. at 322. His
palm print was found on the interior knob of the front door;
fibers matching his black sweatshirt were found on the vic-
tim’s bed sheets; fibers matching his blue jeans were found on
the victim’s pink nightgown; the eighty-six-year-old victim’s
underwear contained a mixture of DNA from two individuals,
which excluded 99.99% of the population other than the ac-
cused and the victim; and the accused’s tank top contained a
mixture of the accused’s blood and the victim’s blood. Id.
The judge in Holmes refused the defense request to call
several witnesses who placed Jimmy White in the victim’s
neighborhood on the morning of the assault and four wit-
nesses who would testify that White acknowledged that the
accused was innocent or admitted that he had committed the
crimes. Id. at 323. The trial judge excluded the evidence based
on a state supreme court case, which held that such evidence
was admissible if it raised “a reasonable inference or pre-
sumption” that the accused was innocent but not “if it merely
cast[] a bare suspicion upon another” or raised “a conjectural
inference as to the commission of the crime by another.” Id.
at 323–24 (alteration in original) (internal quotation marks
omitted) (citation omitted).

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The Supreme Court noted “that, by evaluating the
strength of only one party’s evidence, no logical conclusion can
be reached regarding the strength of contrary evidence of-
fered by the other side to rebut or cast doubt.” Id. at 331. It
held that a judge is not permitted to exclude probative evi-
dence that a third party committed the offense solely because
there is strong forensic evidence of an accused’s guilt. Id. at
329. Also:
While the Constitution thus prohibits the
exclusion of defense evidence under rules that serve
no legitimate purpose or that are disproportionate to
the ends that they are asserted to promote,
well-established rules of evidence permit trial judges
to exclude evidence if its probative value is
outweighed by certain other factors such as unfair
prejudice, confusion of the issues, or potential to
mislead the jury.
Id. at 326; see United States v. Gaddis, 70 M.J. 248, 252
(C.A.A.F. 2011).
We review the military judge’s ruling on the production of
witnesses for an abuse of discretion. “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 weigh-
ing of the relevant factors.” United States v. McElhaney, 54
M.J. 120, 126 (C.A.A.F. 2000) (alterations in original) (inter-
nal quotation marks omitted) (citation omitted).
It is clear the military judge understood his duty to
evaluate the defense evidence for its relevance to the case.
And unlike in Holmes, there is simply no probative evidence
that WHH might have committed the offenses, just
Appellant’s speculation. See United States v. Lighty, 616 F.3d
321, 358–59 (4th Cir. 2010). Specifically, WHH was excluded
as a source of the semen found in KE’s vagina, Appellant was
unable to establish when or how WHH sustained cuts to his
face; and there was a considerable size disparity between
WHH and Appellant, who had been identified by a passerby
as having departed KE’s home at 3:00 a.m. on the date of the
killings. As the military judge ruled, the defense did not
proffer any evidence to support its theory that WHH
resembled the person seen near the locus in quo at the time

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Opinion of the Court

of the murders. We are not convinced that the military judge
committed a clear error of judgment in weighing the factors
of relevance and necessity. Therefore, the military judge did
not abuse his discretion in refusing to permit the testimony
of the three witnesses.
B. Expert Assistance
Appellant asserts that he was inappropriately denied the
assistance “of a forensic serologist, Dr. William Blake, and a
crime scene analyst, Mr. Larry Renner, to review the totality
of physical evidence, determine what items could reveal the
presence of a third party at the crime scene, and then test
those items accordingly.” He acknowledges that the conven-
ing authority funded Dr. Blake “to retest four items already
tested by government: the vaginal swabs and smears, the fin-
gernail clippings from [KE].”
The convening authority approved funding for Dr. Blake
first in April 2007 and again in December 2008. The Govern-
ment canceled the contract in March 17, 2009, because it ap-
peared that the defense was not using Dr. Blake’s services—
the defense had not provided the Government a request to re-
lease any items for testing.
A week later, the defense again requested funding for Dr.
Blake to test 39 of the 154 items seized at the crime scene.
The convening authority approved the funding but only for
the vaginal smears, vaginal swabs, and fingernail clippings
taken from KE. Appellant moved the court to order funding
to test the remaining thirty-five items from their original re-
quest. The court granted the request, in part, by ordering the
appointment of Dr. Blake as an expert consultant and that
the prosecution provide him with the vaginal smears and
swabs, fingernail clippings, and hand fibers, sixty-four latent
lifts, eight photocopies of the Mr. X’s letters, and the original
Mr. X letters and envelopes. The military judge denied the
request for the other items, as their lack of connection to Ap-
pellant already exculpated him.
On September 9, 2009, Appellant asked the court to grant
additional funding because Dr. Blake had been unable to com-
plete the testing and consultation previously ordered. The
motion was granted the next day.

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On September 25, 2009, the defense asked for an addi-
tional $20,000 for Dr. Blake to test other evidentiary items as
they might yield evidence of a third-party actor. The prosecu-
tion conceded that testing of the hair, fibers, blood, and fin-
gerprints excluded Appellant as their source, and that the
only forensic evidence linking Appellant to the crime scene
was the DNA analysis of KE’s vaginal swabs. The military
judge denied the motion. It was impossible to determine when
the evidence that the defense wanted tested might have been
left in the house KE and her family had rented. The military
judge concluded that the previously tested DNA samples,
which excluded Appellant as the contributor, could be used by
the defense at trial. He also determined that certain non-
tested samples did not inculpate Appellant. Accordingly, the
military judge ruled that Appellant could introduce the for-
mer category of samples into evidence and the trial counsel
could not argue that the latter category “incriminate[d] the
accused” because this evidence was necessarily exculpatory
for the accused without further testing.
To be entitled to expert assistance, an:
accused has the burden of establishing that a
reasonable probability exists that (1) an expert
would be of assistance to the defense and (2) that
denial of expert assistance would result in a
fundamentally unfair trial. In order to satisfy the
first prong of this test, [t]he defense must show
(1) why the expert is necessary; (2) what the expert
would accomplish for the accused; and (3) why
defense counsel is unable to gather and present the
evidence that the expert would be able to develop.
United States v. Lloyd, 69 M.J. 95, 99 (C.A.A.F. 2010)
(emphasis added) (internal quotation marks omitted)
(citations omitted).
This Court reviews the military judge’s ruling on requests
for expert assistance for an abuse of discretion. Id.; see United
States v. Akbar, 74 M.J. 364, 400 (C.A.A.F. 2015). The trial
court abuses its discretion if its ruling is “arbitrary, fanciful,
clearly unreasonable, or clearly erroneous.” Lloyd, 69 M.J. at
99 (internal quotation marks omitted) (citations omitted).
Appellant wanted to explore the possibility that evidence
the prosecution found to be without inculpatory value might

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Opinion of the Court

exonerate him by pointing to someone else as the perpetrator.
He only asserted, however, that additional forensic testing
might result in a DNA profile that could potentially identify
other persons who, at any time in the past, had been in the
home Captain GE and his family were renting. The military
judge found that Appellant had not proffered that the test re-
sults would indicate when the evidence he wanted tested had
been left in the home. As the military judge ruled, the mere
possibility that the expert would be of assistance is not suffi-
cient. Appellant must demonstrate a reasonable probability.
He failed to do so. Furthermore, the military judge specifically
authorized Appellant to introduce items found in the home
that the prosecution had determined through testing were not
inculpatory, and to argue that this evidence suggested some-
one other than Appellant committed the offenses. This sup-
ports a conclusion that the expert was not necessary, and the
denial of expert assistance did not result in a fundamentally
unfair trial. Thus, the military judge did not abuse his discre-
tion in denying the request.
IV. Issue XI. Voir Dire and Challenges
Appellant alleges that the military judge unfairly re-
stricted voir dire and “displayed considerable parsimony” in
granting defense challenges for cause. We disagree. The mili-
tary judge analyzed each challenge exhaustively and granted
twenty-one of Appellant’s twenty-six challenges.
A. Voir Dire
“[V]oir dire should be used to obtain information for the
intelligent exercise of challenges.” Rule for Courts-Martial
(R.C.M.) 912(d) Discussion, quoted in United States v. Bodoh,
78 M.J. 231, 237 (C.A.A.F. 2019). “It is, however, subject to
limitations.” Bodoh, 78 M.J. at 237. We review a military
judge’s limitations on voir dire for a clear abuse of discretion.
United States v. Williams, 44 M.J. 482, 485 (C.A.A.F. 1996).
This Court has recognized that generally “hypothetical
questions provide a permissible means of exploring potential
grounds for challenge.” United States v. Nieto, 66 M.J. 146,
149 (C.A.A.F. 2008). However, “neither side is entitled to a
commitment during voir dire about what [the members] will
ultimately do” with respect to the sentence. United States v.

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Opinion of the Court

Rolle, 53 M.J. 187, 191 (C.A.A.F. 2000) (internal quotation
marks omitted) (citation omitted).
Appellant complains that the military judge restricted his
voir dire such that he could not fairly test members of the ve-
nire to determine whether they would fairly consider matters
in extenuation and mitigation. He specifically objects to the
refusal of the military judge to permit him to ask Command
Sergeant Major (CSM) Lincoln, CSM Kirkover, and Sergeant
Major (SGM) Delgado certain hypothetical questions.
The military judge gave both parties considerable latitude
in questioning the members. He was concerned, however,
with defense attempts to get court members to express opin-
ions as to whether the death penalty would be appropriate by
referencing aggravating factors without reference to mitiga-
tion and extenuation.
The military judge permitted the defense to ask abstract
questions to draw out the members’ views of the death pen-
alty. He refused, however, to allow the defense to ask a hypo-
thetical that he concluded was misleading and confusing:
If you find someone guilty unanimously, of the
premeditated murder of a mother and two little
girls, or at least two little girls, if there is no issue of
self-defense or defense of others, if there is no
insanity or intoxication, there are no mental issues,
it was not an accident, and the victims were
completely innocent—now tell me about your views
on the death penalty, or words to that effect
The military judge did not prevent the defense from ask-
ing, whether, if the court found Appellant guilty of the murder
of a woman and her two children, they would automatically
sentence him to death. He permitted a scope of voir dire broad
enough for Appellant to challenge members who would “not
be able impartially to follow the court’s instructions and eval-
uate the evidence” and “to ascertain whether [the] prospec-
tive” panel members would impose the death penalty regard-
less of the facts and circumstances of the conviction. Morgan
v. Illinois, 504 U.S. 719, 730, 735–36 (1992).
The issue is moot as to CSM Lincoln. Appellant challenged
him for cause and he did not sit on Appellant’s court-martial.
A review of the voir dire shows that the members, including

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Opinion of the Court

CSM Kirkover and SGM Delgado agreed to follow the military
judge’s instructions; promised they would consider all of the
evidence, including evidence in extenuation and mitigation;
and insisted that they would not automatically adjudge the
death penalty. The military judge did not abuse his discretion
in limiting voir dire.
B. Challenges for Cause
Appellant alleges that the military judge erred in denying
challenges for cause for actual and implied bias against three
court members: Lieutenant Colonel (LTC) Boyd, Major (MAJ)
Weidlich, and LTC Watson. He contends that LTC Boyd and
MAJ Weidlich could not be impartial in a case in which an
accused was charged with premeditated murder of a child be-
cause they believed that death was the only appropriate pun-
ishment in such a case. Appellant argues that LTC Watson
should have been excused because his experience as a police
officer caused him to distrust defense counsel. “The burden of
establishing that grounds for a challenge exist is upon the
party making the challenge.” R.C.M. 912(f)(3).
Courts generally recognize two forms of bias that subject
a juror to a challenge for cause: actual bias and implied bias.
United States v. Wood, 299 U.S. 123, 133 (1936). Actual bias
is defined as “bias in fact.” Id. It is “the existence of a state of
mind that leads to an inference that the person will not act
with entire impartiality.” Fields v. Brown, 503 F.3d 755, 767
(9th Cir. 2007) (internal quotation marks omitted) (citation
omitted). “Actual bias is personal bias which will not yield to
the military judge’s instructions and the evidence presented
at trial.” United States v. Nash, 71 M.J. 83, 88 (C.A.A.F.
2012).
Whether a prospective juror “is biased has traditionally
been determined through voir dire culminating in a finding
by the trial judge concerning the [prospective juror’s] state of
mind.” Wainwright v. Witt, 469 U.S. 412, 428 (1985). “[S]uch
a finding is based upon determinations of demeanor and
credibility that are peculiarly within a trial judge’s province.”
Id. It is “plainly [a question] of historical fact; did a juror
swear that he could set aside any opinion he might hold and
decide the case on the evidence, and should the juror’s
protestation of impartiality have been believed.” Patton v.

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Opinion of the Court

Yount, 467 U.S. 1025, 1036 (1984). “As [the Supreme Court
has] said on numerous occasions, the trial court’s resolution
of such questions is entitled, even on direct appeal, to ‘special
deference.’ ” Id. at 1038 (citation omitted); see United States
v. Dockery, 76 M.J. 91, 96 (C.A.A.F. 2017) (granting great
deference to the military judge’s ruling on challenges for
cause). Although this Court has recognized that “the legal
question of actual bias … approximat[es] a factual question,”
we review actual bias claims for an abuse of discretion. Nash,
71 M.J. at 88–89.
Implied bias, on the other hand, is “bias conclusively pre-
sumed as [a] matter of law.” Wood, 299 U.S. at 133. It is “bias
attributable in law to the prospective juror regardless of ac-
tual partiality.” Id. at 134 (emphasis added); see Black’s Law
Dictionary, supra p. 3, at 198 (“Bias, as of a juror, that the law
conclusively presumes because of kinship or some other in-
curably close relationship; prejudice that is inferred from the
experiences or relationships of a … juror ….”).
This Court has taken a broader view of implied bias based
on our interpretation of R.C.M. 912(f)(1)(N), which provides
that “[a] member shall be excused for cause whenever it ap-
pears that the member … (N) Should not sit as a member in
the interest of having the court-martial free from substantial
doubt as to legality, fairness, and impartiality.” See United
States v. Woods, 74 M.J. 238, 243 (C.A.A.F. 2015).
The question before us, therefore, is whether the
risk that the public will perceive that the accused
received something less than a court of fair,
impartial members is too high. To answer this
question, we review the totality of the
circumstances, and assume the public to be familiar
with the unique structure of the military justice
system.
Id. at 243–44 (internal quotation marks omitted) (citation
omitted). We review “implied bias challenges pursuant to a
standard that is less deferential than abuse of discretion, but
more deferential than de novo review.” Dockery, 76 M.J. at 96
(internal quotation marks omitted) (citation omitted).
Appellant’s challenges against LTC Boyd, MAJ Weidlich,
and LTC Watson alleged that these members were prejudiced
against some person or relevant subject. For LTC Boyd and

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MAJ Weidlich, it was a relevant subject: whether they would
consider any sentence other than death for the premeditated
murder of a mother and her two children. For LTC Watson, it
was a person: whether he, as a former police officer who ex-
pressed distrust for some defense counsel, would fairly con-
sider the arguments of Appellant’s counsel.
Holding an inelastic attitude toward the appropriate pun-
ishment to adjudge if the accused is convicted is grounds for
an actual bias challenge under R.C.M. 912(f)(1)(N). United
States v. Giles, 48 M.J. 60, 62–63 (C.A.A.F. 1998). “However,
a mere predisposition to adjudge some punishment upon con-
viction is not, standing alone, sufficient to disqualify a mem-
ber. Rather, the test is whether the member’s attitude is of
such a nature that he will not yield to the evidence presented
and the judge’s instructions.” United States v. McGowan, 7
M.J. 205, 206 (C.M.A. 1979); accord United States v. James,
61 M.J. 132, 138 (C.A.A.F. 2005).
During general voir dire, the defense asked if the members
agreed with the statement that “life in prison is not really
punishment for premeditated murder of children?” LTC Boyd
and MAJ Weidlich both answered in the affirmative.
1. LTC Boyd
During individual voir dire, the trial counsel asked LTC
Boyd whether he could fairly and fully consider both sentenc-
ing options if Appellant were convicted—confinement for life
or death. LTC Boyd answered that he could. He also ex-
pressed an understanding that he could not decide what sen-
tence was appropriate until he had heard all the evidence, in-
cluding mitigation and extenuation. The military judge asked
if LTC Boyd would “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 Boyd responded:
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-

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minded. I know what my views are, but I would be
open-minded to listen to other panelists.
The military judge asked if LTC Boyd could “consider and
envision that life might be appropriate depending on what-
ever the evidence is that comes out?’ ” LTC Boyd answered
that he could.
The military judge concluded that LTC Boyd was:
clearly willing to give his decisions a lot of thought.
He does not have a kneejerk reaction to impose a
certain sentence. Lieutenant Colonel Boyd 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 Boyd is not unalterably in
favor of imposing the death penalty.
Viewing all of [LTC] Boyd’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 conclude that the military judge’s findings of fact with
respect to LTC Boyd are not clearly erroneous. The military
judge did not abuse his discretion in denying the challenge for
actual bias, and LTC Boyd’s inclusion would not have caused
the public to perceive Appellant’s panel as less than fair and
impartial.
2. MAJ Weidlich
When specifically asked about his view of the death pen-
alty, MAJ Weidlich, a psychiatric nurse practitioner, said it
was “a viable option for anyone who’s committed and found
guilty of an egregious crime.”
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 that 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.

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The trial counsel asked if there was any crime, including
the premeditated murder of children for which he would “au-
tomatically vote for the death penalty with no other consider-
ations?” He answered:
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
of 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 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.
MAJ Weidlich indicated that, in determining whether the
death penalty would be appropriate, he would consider fac-
tors such as premeditation and the evidence presented. “I
don’t think[, however,] that the murder of children automati-
cally would make it a death-penalty offense, but it would def-
initely sway me to consider it more.” In determining whether
the death sentence should be imposed, MAJ Weidlich stated
that remorse would be an important consideration. He would
also consider the person’s background. But he did not think
the background would sway him “one way or another towards
or against the death penalty. But again, it would really de-
pend in my mind what background information is presented.”
The military judge found Major Weidlich credible and that
he would apply the presumption of innocence.
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.
….
In light of all of his answers, it is clear that Major
Weidlich has not made up his mind as to an

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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 conclude that the military judge’s findings of fact with
respect to MAJ Weidlich are not clearly erroneous. The mili-
tary judge did not abuse his discretion in denying the chal-
lenge for actual bias, and MAJ Weidlich’s inclusion would not
have caused the public to perceive Appellant’s panel as less
than fair and impartial.
3. LTC Watson
LTC Watson was a city police officer between 1999 and
2003, when he was recalled to active duty. His sister was a
civilian prosecutor but had returned to law school to become
a law librarian.
During his time as a police officer, LTC Watson came in
contact with defense attorneys and his impression was “some
good, some not so good.” When asked about his not so good
impressions, he stated: “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 offic-
ers as witnesses.” He did not like:
the line of questioning or the inferences that they
were making toward the officer.… 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.
He did not mind the questions themselves, but “just the way
it was shaped with the jury and what was not allowed as evi-
dence was some of the things that didn’t sit well with me at
that time.”
Defense counsel asked whether testimony of police officers
“bring with it a degree of credibility just as a baseline that’s a
little above what another witness might bring?” LTC Watson

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answered: “It just depends on how they’re presenting the evi-
dence and their level of training. To a certain degree, yes.”
When asked a hypothetical about whether the death penalty
would be the only appropriate penalty for the premeditated
killing of a mother and two young children, LTC Watson an-
swered: “I don’t know that it’s the only appropriate penalty.
It could go either way, and it just depends on the amount of
evidence that I’ve seen and the testimony that I’ve heard.” He
admitted that if there was also a sexual assault that “might
shape [his] decision more towards the death penalty possibly.
It doesn’t mean that it would.”
After the defense counsel finished asking LTC Watson
questions, the military judge re-engaged, asking whether
LTC Watson would give more or less weight to the testimony
of a witness “solely because of that witness’s position or status
in life.” LTC Watson answered:
Not necessarily.
….
I guess when anybody gives testimony, you have—
you take what they’re saying and they either become
a credible witness or not so credible witness based
on how they’re presenting the evidence and based on
how they’re handling the questions. So I wouldn’t,
necessarily, you know, automatically find somebody
credible just because they were a police officer?
The defense challenged LTC Watson on the ground that
the performance of the law enforcement agencies in identify-
ing, preserving, and testing of evidence would be critical to
the case, and LTC Watson had an understanding and training
in these matters that laypersons did not. The defense claimed
that LTC Watson “would be going back into that deliberation
with an aura of expertise that no other panel member would
have because he would be able to speak with authority about
collecting evidence at a crime scene and what is the proper
procedure because he did so.” And:
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

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Opinion of the Court

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.
The military judge denied the challenge against LTC
Watson:
Status by itself is not a basis for a challenge for
cause. CAAF made it clear that the Army, through
its regulations, may not exclude certain groups of
Soldiers from being eligible to be detailed as court
members; see Bartlett, 66 M.J. 426. Therefore, a
current or former police officer is not per se a basis
to challenge a member for cause.
Lieutenant Colonel Watson’s training years ago,
which he had not used and has not be refreshed, does
not provide a basis for a challenge for cause.
He is not an expert in crime scene processing.
….
Lieutenant Colonel Watson 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.
Lieutenant Colonel Watson made it very clear he
wants to hear all of the evidence before he makes
any decision in this case on findings and sentencing,
if we get to sentencing.
Lieutenant Colonel Watson was very candid and
credible with his responses.
The court has considered the implied bias and,
based on Lieutenant Colonel Watson’s demeanor in
court and his responses, no reasonable person could
conclude that he is biased against any party in this
case. The court has considered the liberal grant
mandate. This is not a close call; and, even under
that mandate, there is not a basis for a challenge for
cause. Accordingly, the challenge for cause against
Lieutenant Colonel Watson is denied.
We conclude that the military judge’s findings of fact with
respect to LTC Watson are not clearly erroneous. The military
judge did not abuse his discretion in denying the challenge for
actual bias, and LTC Watson’s inclusion would not have

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Opinion of the Court

caused the public to perceive Appellant’s panel as less than
fair and impartial.
Judgment
This Court has carefully considered all issues in this case,
including those we did not hear at oral argument, and none
of them provides a basis for relief. The judgment of the United
States Army Court of Criminal Appeals is affirmed.

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