UNITED STATES, Appellee
v.
Kimberly E. DOBSON, Sergeant
U.S. Army, Appellant
No. 05-0004
Crim. App. No. 20000098
United States Court of Appeals for the Armed Forces
Argued August 5, 2005
Decided March 20, 2006
EFFRON, J., delivered the opinion of the Court, in which GIERKE,
C.J., and BAKER and ERDMANN, JJ., joined. EVERETT, S.J., joined
and filed a concurring opinion. Judge CRAWFORD did not
participate.
Counsel
For Appellant: Mary T. Hall, Esq. (argued); Captain Jeremy W.
Robinson (on brief); Captain Charles L. Pritchard Jr.
For Appellee: Captain Michael C. Friess (argued); Colonel
Steven T. Salata, Lieutenant Colonel Theresa A. Gallagher, and
Captain Edward E. Wiggers (on brief); Captain Abraham F. Carpio.
Amicus Curiae: Peter M. Dapier (law student) and Daniel K.
Taylor (law student) (argued); Joanne Simboli Hodge, Esq.
(supervising attorney) (on brief); Ardath A. Hamann, Esq., for
the John Marshall Law School.
Military Judge: Patrick J. Parrish
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Dobson, No. 05-0004/AR
Judge EFFRON delivered the opinion of the Court.
At a general court-martial composed of officer and enlisted
members, Appellant was convicted, contrary to her pleas, of
premeditated murder, in violation of Article 118, Uniform Code
of Military Justice (UCMJ), 10 U.S.C. § 918 (2000). The
adjudged and approved sentence included a dishonorable
discharge, confinement for life without eligibility for parole,
forfeiture of all pay and allowances, and reduction to the
lowest enlisted grade. The convening authority waived automatic
forfeitures for six months and directed payment of those funds
to the guardian of Appellant’s children. The convening
authority also credited Appellant with 341 days of confinement
against the sentence to confinement. The Court of Criminal
Appeals affirmed in an unpublished opinion. United States v.
Dobson, No. ARMY 20000098 (A. Ct. Crim. App. Aug. 20, 2004).
On Appellant’s petition, we granted review of the following
issues:
I. WHETHER THE COURT-MARTIAL WAS IMPROPERLY
CONSTITUTED WHEN THE MILITARY JUDGE (1)
GRANTED PEREMPTORY CHALLENGES AFTER ENLISTED
QUORUM HAD BEEN LOST THROUGH CHALLENGES FOR
CAUSE AND (2) IMPROPERLY PERMITTED THE
ADDITION OF OFFICER MEMBERS TO THE PANEL
AFTER ASSEMBLY WHEN ONLY ENLISTED
REPRESENTATION HAD FALLEN BELOW QUORUM.
II. WHETHER APPELLANT WAS DENIED EFFECTIVE
ASSISTANCE OF COUNSEL AS TO EVIDENCE OF HER
MENTAL HEALTH STATUS WHEN DEFENSE COUNSEL
(A) USED A PSYCHOLOGIST WHO VIOLATED
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United States v. Dobson, No. 05-0004/AR
PSYCHOLOGICAL PROFESSIONAL ETHICS STANDARDS;
(B) FAILED TO CONSULT WITH A MENTAL HEALTH
EXPERT RECOMMENDED BY THE R.C.M. 706 BOARD;
(C) ARRANGED FOR APPELLANT TO CONSULT WITH
MILITARY MENTAL HEALTH PROVIDERS WITHOUT
ENSURING CONFIDENTIALITY; AND (D) FAILED TO
USE MITIGATING INFORMATION FROM THE R.C.M.
706 REPORT.
III. WHETHER THE MILITARY JUDGE ERRED BY
EXCLUDING EVIDENCE OF SPECIFIC ACTS OF
VIOLENCE BY THE PURPORTED VICTIM.
IV. WHETHER THE EVIDENCE IS LEGALLY
INSUFFICIENT AS TO THE FINDING THAT
APPELLANT COMMITTED PREMEDITATED MURDER.
For the reasons set forth below, we conclude: (1)
Appellant was tried before a properly constituted court-martial;
(2) Appellant has not demonstrated a constitutional violation of
the right to effective assistance of counsel; (3) the military
judge erred in excluding the testimony of two witnesses offered
by the defense; and (4) the error was prejudicial only as to
premeditation, and does not preclude a finding of guilty to
unpremeditated murder. We address the effect of the error in
our decretal paragraph.
I. THE DEATH OF SERGEANT DOBSON
Appellant and her husband, Sergeant (SGT) Terry Dobson,1
were assigned to Fort Carson, Colorado. They lived in an off-
post apartment on Sage Street in nearby Colorado Springs.
1
Both Appellant and her husband served in the grade of Sergeant. The opinion
will refer to Appellant’s husband as SGT Dobson.
3
United States v. Dobson, No. 05-0004/AR
During the early morning hours of March 2, 1999, SGT Dobson died
in the middle of Sage Street, near his truck, as a result of
multiple knife wounds.
The defense has maintained, both at trial and on appeal,
that Appellant killed SGT Dobson in self-defense. The defense
further contends that the evidence did not demonstrate intent to
commit premeditated murder.
A. EYEWITNESS TESTIMONY AND FORENSIC EVIDENCE
At trial, the prosecution presented three witnesses who
observed portions of the events on Sage Street that immediately
preceded SGT Dobson’s death. Each observed an altercation that
was already in process. At the point in time where the
witnesses first observed the fight, SGT Dobson was already
staggering, apparently injured, and he had difficulty staying on
his feet. The witnesses heard him plead for help and beg the
other person to stop. The witnesses variously heard a voice
say: “Shut up, Terry” and “Get up. Nobody’s gonna . . . .”
Two of the witnesses testified that SGT Dobson either dropped or
was pushed to the ground. The person holding the knife then
stabbed him numerous times in the chest and head, holding the
knife with two hands. One witness also stated that the person
using the knife cut SGT Dobson methodically in a slicing
fashion.
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United States v. Dobson, No. 05-0004/AR
The eyewitnesses described the person who used the knife as
the aggressor, acting in a controlled, deliberate fashion.
They added that SGT Dobson did not act in an aggressive or
threatening manner during the time that they observed the fight,
and that he attempted, ineffectually, to ward off the blows with
his hands. One of the witnesses testified that after SGT Dobson
ceased moving, the person who had used the knife took off her
sweatpants and quickly left the area.
The eyewitnesses did not see the beginning of the incident,
nor did they offer any explanation as to the cause of the fight.
The witnesses did not observe who struck the first blow or how
the affray escalated into the use of deadly force.
The prosecution introduced detailed forensic evidence
involving analysis of the wounds, blood spatters and trails,
body position, and clothing. The forensic evidence indicated
that the movements described by the eyewitnesses and the nature
of SGT Dobson’s wounds were consistent with defensive action on
his part. A forensic pathologist indicated that SGT Dobson
suffered over 100 wounds, including over twenty stab wounds in
the head, and that a piece of a knife was imbedded in his skull.
According to the forensic pathologist, SGT Dobson suffered over
twenty “defensive” wounds to his hands. The forensic evidence
also indicated that wounds on Appellant’s hands were superficial
and were not inflicted during the altercation with the knife.
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United States v. Dobson, No. 05-0004/AR
B. APPELLANT’S TESTIMONY ABOUT THE DEATH OF SGT DOBSON
Appellant, who testified at trial in her own behalf, could
not recall what brought her and SGT Dobson out onto Sage Street
in the middle of the night.
I remember being out at the truck with
Terry. I don’t remember walking to the
truck or anything like that, but I remember
being at the truck.
She did not recall stabbing SGT Dobson, nor did she have any
recollection as to how he died. When asked whether she
remembered “anything,” she testified:
I remember being scared. I remember being
frightened. Terry . . . told me point
blank, “It’s me or you now that -- it’s me
or you now, Bitch. One of us has to die.”
Defense counsel then asked: “Do you remember why he said this?”
Appellant responded:
I don’t know what -- I can’t -- I can’t
recall everything --
. . . .
I don’t know why. I mean, Terry . . . had a
knife, and I know it was on the ground in
between us. And while we were standing
there with the knife between us, I remember
looking at him. And the way Terry looked,
he didn’t look like Terry. There was
nothing about him that was Terry. His
demeanor, his expression, everything was
different. Everything about him was
pronounced and scary. And while the knife
was between us, that’s what he told me, that
it was me or him. “It’s me or you now,
Bitch.”
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United States v. Dobson, No. 05-0004/AR
. . . .
And I believed . . . him.
. . . .
I did not feel that Terry was just trying to
say something to just scare me. I did not
believe he was just trying to control me. I
did not believe that he was just angry. I
believed that he meant exactly what he said.
And while . . . he said it and we were
looking at each other, I was -- I thought I
was going to die. I believed it.
Defense counsel returned to the subject of the knife, asking:
“Do you remember how the knife got in between the two of you?”
Appellant testified:
I know Terry had it, and we struggled. And
it was dropped. He lost his grip.
In response to defense counsel’s inquiry as to “what happened
with the knife next,” Appellant said:
I remember Terry -- at one point, Terry had
the knife, and he lunged at me, but I was
able to . . . move out of the way. But I --
it’s -- there’s a lot that I just cannot put
together or that I -- I can’t recall.
Defense counsel provided Appellant with an opportunity to
“recall anything that happened with the knife after that.”
Appellant testified that she wanted to get the knife away from
her husband. She later stated that she remembered “us both
lunging towards the knife.”
Appellant testified that she had no recollection of
stabbing her husband:
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United States v. Dobson, No. 05-0004/AR
I know that I felt like if I could get it
away from him, then he would stop coming for
me, that he wouldn’t hurt me anymore. But I
don’t -- I just don’t remember stabbing
Terry. I don’t remember cutting Terry. I
don’t remember hurting Terry.
C. FABRICATIONS, DECEPTIONS, AND OMISSIONS
Through the testimony of witnesses and presentation of
extensive documentation, the prosecution introduced detailed
evidence showing that in the immediate aftermath of the incident
and during subsequent examinations, Appellant made numerous
inconsistent, misleading, and false statements to medical
personnel, law enforcement officials, and psychologists in an
effort to deflect attention from herself and cast blame on
others. Her fabrications included an effort to blame SGT
Dobson’s death on a fictitious person named “Debra,” and she
generated a series of anonymous letters corroborating her false
statements. Appellant acknowledged at trial that many of her
pretrial statements were false, including statements to law
enforcement authorities, friends, relatives, and the
psychologist retained by the defense. When questioned about
numerous other inconsistencies, she offered either no
recollection or no explanation.
D. THE DEFENSE EXPLANATION FOR APPELLANT’S BEHAVIOR
DURING AND AFTER THE DEATH OF SGT DOBSON
The defense theory at trial was that Appellant was an
abused spouse whose actions during and after the night of the
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United States v. Dobson, No. 05-0004/AR
killing were consistent with battered woman’s syndrome.
Appellant testified that she had been abused as a child by her
father, that as a teenager she was raped by a stranger, and that
SGT Dobson physically and verbally abused her. Appellant
testified that SGT Dobson first threatened her during her
pregnancy. In midst of an argument, “[h]e told me that he would
stomp the oblivion out of me and the babies inside me.” She
stated that she felt “scared” and attempted, unsuccessfully, to
seek help from his unit. While she was on the phone, he pressed
his hands against her head, pushed her head “violently,” and
threatened to kill her if she interfered with his career. She
then called 911, and he left the house. She also called her
brother, and both the police and her brother came to the house.
On cross-examination, the prosecution asked her to “repeat
about that 911 call, what that was all about.” In response to
trial counsel’s question, Appellant told the panel:
First I tried to call Terry’s unit, but
I couldn’t get a hold of anybody. I
couldn’t get a hold of the unit. Then after
Terry threatened me and putting his fingers
up against my head and pushing my head
violently and telling me that if I did
anything to hurt his career that he would
“f---ing kill me,” I called 911, and I told
him “I’m calling 911.” And when I told him
I was calling 911, Terry left. After I
called -- I did call 911, and I also called
my brother. My brother beat 911 there, and
then the police officer came.
Trial counsel then said:
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United States v. Dobson, No. 05-0004/AR
And that’s a pretty significant report;
would you agree? That’s pretty significant,
what he did; would you agree?
Appellant agreed. Trial counsel then engaged in a lengthy
cross-examination based upon the notes taken by Dr. Brill, the
psychologist who examined Appellant on behalf of the defense.
The questioning was designed to characterize Appellant’s
testimony at the court-martial as an exaggeration of the 911
incident. Trial counsel suggested through his questions that in
discussing the 911 incident with Dr. Brill, Appellant had not
described any threats, and that it was merely an overreaction to
an insignificant dispute about cleaning kitchen dishes.
The 911 incident occurred more than a year prior to SGT
Dobson’s death. Appellant described another incident, from that
period, in which SGT Dobson pushed her and caused her to fall
down some stairs. Appellant then depicted an escalating pattern
of verbal abuse, threats, and physical abuse, including
incidents in which he squeezed her throat.
According to Appellant, the situation deteriorated
significantly in the days before SGT Dobson’s death. She
testified that she told him that she was going to leave, “get
help,” and “tell someone what was going on.” He responded that
if she were to discuss her concerns with anyone, she would never
see her children again. She added: “He told me that he would
whip my ass, that he’d kick my ass.” When asked if she feared
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United States v. Dobson, No. 05-0004/AR
that he would act on his threats, she responded affirmatively,
noting that she believed his threats because his behavior was
markedly worse since he returned from the Basic Noncommissioned
Officer course. She testified that on the evening prior to SGT
Dobson’s death, he had forced her to perform an act of oral sex
while he read a biblical verse.
Through expert witnesses, the defense sought to explain
Appellant’s actions on the night of SGT Dobson’s death, as well
as her subsequent problems of memory loss, inconsistent
statements, and fabrications, as consistent with the behavior of
a victim of spousal abuse acting in self-defense. This
evidence, and the prosecution’s evidence in rebuttal, is
considered in Section III, infra. The defense also sought to
introduce the testimony of two witnesses who would have
corroborated portions of Appellant’s testimony regarding spousal
abuse. In Section IV, infra, we consider the proposed testimony
of the two witnesses and the related rulings by the military
judge.
II. COMPOSITION OF THE COURT-MARTIAL PANEL (ISSUE I)
A. PANEL MEMBERSHIP REQUIREMENTS
Appellant was tried by a general court-martial panel
composed of officer and enlisted members. A general court-
martial panel consists of “not less than five members” appointed
11
United States v. Dobson, No. 05-0004/AR
by the convening authority. Articles 16, 22, UCMJ, 10 U.S.C. §§
816, 822 (2000). If an enlisted accused requests that the panel
include enlisted members, “the accused may not be tried by a
general or special court-martial the membership of which does
not include enlisted members in a number comprising at least
one-third of the total membership of the court,” subject to an
exception for physical conditions or military exigencies.
Article 25(c), UCMJ, 10 U.S.C. § 825(c) (2000).
Whenever a general court-martial panel “is reduced below
five members, the trial may not proceed unless the convening
authority details new members sufficient in number to provide
not less than five members.” Article 29(b), UCMJ, 10 U.S.C. §
829(b) (2000). The prohibition against proceeding, however, is
subject to the procedure for making and ruling on challenges
under Article 41, UCMJ, 10 U.S.C. § 841 (2000).
Article 41 authorizes challenges for cause and permits each
party to exercise one peremptory challenge. Article 41 contains
specific guidance on how to proceed when challenges reduce a
court-martial below the minimum composition requirements of
Article 16. Article 41(a)(2) provides:
If exercise of a challenge for cause reduces
the court below the minimum number of
members required by . . . [Article 16], all
parties shall (notwithstanding . . .
[Article 29]) either exercise or waive any
challenge for cause then apparent against
the remaining members of the court before
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United States v. Dobson, No. 05-0004/AR
additional members are detailed to the
court. However, peremptory challenges shall
not be exercised at that time.
Article 41(b)(2) provides:
If exercise of a peremptory challenge
reduces the court below the minimum number
of members required by . . . [Article 16],
the parties shall (notwithstanding . . .
[Article 29]) either exercise or waive any
remaining peremptory challenge (not
previously waived) against the remaining
members of the court before additional
members are detailed to the court.
Article 41(c) provides for additional challenges when members
are added to a court-martial:
Whenever additional members are detailed to
the court, and after any challenges for
cause against such additional members are
presented and decided, each accused and the
trial counsel are entitled to one peremptory
challenge against members not previously
subject to peremptory challenge.
B. THE COMPOSITION AND RECONSTITUTION OF APPELLANT’S PANEL
Upon Appellant’s request for a panel with enlisted
membership, the convening authority detailed ten members -- six
officers and four enlisted personnel -- to serve on the court-
martial. After the military judge ruled on challenges for
cause, the panel membership was reduced to seven, including five
officers and two enlisted personnel. As such, the panel
satisfied the total composition requirement of a general court-
martial under Article 16, but the enlisted representation was
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United States v. Dobson, No. 05-0004/AR
short of the one-third minimum enlisted requirement under
Article 25.2
The prosecution then exercised a peremptory challenge
against an enlisted member and the defense exercised a
peremptory challenge against an officer, leaving the panel with
a total of five members, including four officers and one
enlisted person. The military judge, on his own motion, decided
to reconsider whether he should have allowed the parties to
exercise peremptory challenges after the completion of
challenges for cause in view of the reduction below the required
enlisted representation. After considering the matter, he
adhered to his original decision. He noted that the plain
language of Article 41(a)(2) precluded peremptory challenges
only when causal challenges reduced the total composition of the
panel to a number below requirements of Article 16, and that the
plain language did not address reductions in enlisted
representation. He concluded that Article 41(a)(2) did not
preclude peremptory challenges when the total panel composition
satisfied Article 16, even if the enlisted representation fell
below the minimum required by Article 25. Both parties agreed
with the military judge’s interpretation.
2
The changes in the composition of the panel discussed in this section are
summarized in the table at ___ M.J. ___ (17).
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United States v. Dobson, No. 05-0004/AR
At that point, the military judge observed that the
convening authority would need to appoint additional members in
view of the shortfall in enlisted representation. He added that
the new members would be subject to challenge for cause, and
noted that each party would be entitled to one additional
peremptory challenge against the new members under Article
41(c). Both parties agreed. Five additional members were added
to the panel, including two officers and three enlisted members.
Defense counsel inquired as to why officers had been added when
the only problem was a shortfall of enlisted members, but he did
not raise an objection. The military judge observed that he
knew of no legal prohibition, and the defense did not offer any
further views.
The panel now consisted of ten members, including six
officers and four enlisted members. After challenges for cause
were granted against two of the new enlisted members, the panel
was reduced to eight members, including six officers and two
enlisted members. The military judge reminded the parties that
the challenges had produced the same situation that occurred
earlier in the trial. The total composition of the panel met
the minimum requirement for a general court-martial under
Article 16, but the enlisted representation fell short of the
minimum one-third requirement under Article 25.
15
United States v. Dobson, No. 05-0004/AR
The military judge noted that he and the parties had agreed
earlier in the trial that so long as the panel met the total
composition requirement of Article 16, both sides could exercise
peremptory challenges. He expressly asked the defense counsel
to reaffirm the defense position, and defense counsel agreed
with the reading of Article 41 articulated by the military
judge. The prosecution exercised one peremptory challenge
against an officer, and the defense declined to offer a
peremptory challenge.
The panel now had seven members, including five officers
and two enlisted personnel. In view of the shortfall of
enlisted representation under Article 25, three more enlisted
members were detailed. After voir dire, both parties joined in
a challenge for cause against one of these new enlisted members,
which was granted. The prosecution then peremptorily challenged
one of the new enlisted members, and the defense declined to
offer a peremptory challenge.
As a result of the series of challenges and replacements,
the panel consisted of eight members, including five officers
and three enlisted members. As such, the composition of the
panel met the minimum total requirement of Article 16 and the
minimum enlisted requirement of Article 25. The following table
summarizes the actions taken in the course of forming the panel:
16
United States v. Dobson, No. 05-0004/AR
Panel Composition Total Officer Enlisted
Initial 10 6 4
After 1st causal challenges 7 5 2
After 1st peremptory challenges 5 4 1
After 1st additions 10 6 4
After 2nd causal challenges 8 6 2
After 2nd peremptory challenges 7 5 2
After 2nd additions 10 5 5
After 3rd causal challenges 9 5 4
Final (after 3rd peremptory 8 5 3
challenges)
C. DISCUSSION
1. Timing of peremptory challenges
At trial, the military judge stated that the parties could
exercise peremptory challenges so long as the panel contained
sufficient members to meet the total composition requirements of
a general court-martial under Article 16, even if the proportion
of enlisted members fell below the one-third representation
requirement of Article 25. Defense counsel agreed. In this
appeal, however, Appellant asserts that when enlisted
representation falls below one-third, no peremptory challenges
may be exercised until the convening authority appoints
additional members.
The military judge relied on the plain language of Article
41. Under Article 41(a)(2), when challenges for cause reduce
panel membership below the minimum total number of members
required under Article 16, the military judge is not required to
halt the proceedings until new members are appointed. Instead,
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United States v. Dobson, No. 05-0004/AR
the parties proceed with any remaining challenges for cause
“before additional members are detailed” to serve on the panel.
The rule then provides that “peremptory challenges shall not be
exercised at that time.” There is no mention in the statute of
applying a similar procedure when the total number is adequate
under Article 16 but the percentage of enlisted membership is
deficient under Article 25.
Appellant relies on the Rule for Courts-Martial (R.C.M.)
912(g)(2) Discussion in the Manual for Courts-Martial United
States (MCM) (1998 ed.), which states: “When the membership of
the court-martial has been reduced below a quorum (see R.C.M.
501) or, when enlisted members have been requested, the fraction
of enlisted members has been reduced below one-third, the
proceedings should be adjourned and the convening authority
notified so that new members may be detailed.” We do not view
this provision as mandating a halt in proceedings prior to
further action on challenges.
At the outset, we note that the language appears in the
nonbinding Discussion, not in the rule. Use of the word
“should” suggests a recommendation, rather than a command,
particularly in the absence of direct precedent in our case law.
Moreover, the Discussion does not expressly prohibit the
exercise of either a causal or peremptory challenge before new
members are detailed. This is understandable, because such a
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United States v. Dobson, No. 05-0004/AR
prohibition would be contrary to Article 41(a)(2), which
requires the parties to complete causal challenges even though
the total membership has fallen below quorum under Article 16.
It also would be contrary to Article 41(b)(2), which requires
the parties to exercise any remaining peremptory challenges if
the peremptory challenge by one party has reduced the panel
below the minimum required under Article 16.
In Article 41, Congress has made specific choices as to
when challenges should continue after a quorum is lost under
Article 16, and when challenges should be deferred pending
appointment of new members. Congress has not applied such
limitations to a change in composition that affects enlisted
representation under Article 25.
There is a rational basis for distinguishing between a
deficit under Article 16 and a deficit under Article 25. The
quorum requirement for a general court-martial under Article 16
involves an absolute number -- there must be at least five
members. Once membership drops below the total required by
Article 16, new members will have to be detailed regardless of
the exercise of peremptory challenges. By contrast, the
enlisted representation requirement in Article 25 employs a
percentage, not an absolute number. As a result, there are
circumstances in which an enlisted representation deficit under
Article 25 can be corrected through exercise of a peremptory
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United States v. Dobson, No. 05-0004/AR
challenge against an officer. Because it is possible that
exercise of a peremptory challenge could preclude the need for
appointment of new members under Article 25, we do not view the
omission of Article 25 from Article 41 as a drafting error or as
otherwise warranting an interpretation of Article 41 to include
Article 25. Accordingly, we conclude that the military judge
properly ruled that the composition of the court-martial under
Article 25 is not a pertinent factor for purposes of determining
the timing of peremptory challenges under Article 41.
2. The addition of officer members
When the panel fell below the required enlisted
representation under Article 25, officers and enlisted members
were added to the panel. Appellant notes that this was done
even though the size of the panel exceeded the minimum required
for a general court-martial, and that the only deficit was in
enlisted representation under Article 25. According to
Appellant, the addition of officers at this stage was improper
under R.C.M. 505(c)(2)(B) (permitting additions when the total
number of members has been reduced below quorum or the number of
enlisted members has been reduced below one-third of the panel’s
membership). Appellant acknowledges that the rule does not
expressly prohibit the action taken by the convening authority
here, but contends that such action may unfairly dilute the
right to enlisted representation.
20
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At trial, defense counsel made an inquiry about this
matter, but did not object. We need not consider whether this
issue was waived, however, because there was no error. An
enlisted accused who requests enlisted membership on the panel
under Article 25(c)(1) is entitled by the statute only to a
minimum proportion -- “at least one-third of the total
membership of the court.” R.C.M. 505(c)(2)(B) limits the
circumstances under which a convening authority may add members
to the panel, but it does not require the authority to add only
the minimum number and type necessary to address any deficit
under Articles 16 or 25. Neither the statute nor the rule
entitles an enlisted accused to maintain the proportion of
officer and enlisted members that was contained in the initial
convening order or at any other point during trial.
III. ASSISTANCE OF COUNSEL (ISSUE II)
Appellant contends that she was denied effective assistance
of counsel under the Sixth Amendment because of deficiencies in
her counsel’s approach to various mental health issues related
to her defense to the charge of premeditated murder. In this
section, we note the applicable standard of review, briefly
discuss the relationship between mental health and self-defense,
describe the pretrial evaluations of Appellant, summarize
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United States v. Dobson, No. 05-0004/AR
pertinent trial testimony, and analyze Appellant’s claims
regarding the assistance of counsel.
A. STANDARD OF REVIEW
The right to counsel under the Sixth Amendment includes the
right to the effective assistance of counsel. Strickland v.
Washington, 466 U.S. 668, 686 (1984); see also United States v.
Scott, 24 M.J. 186, 187-88 (C.M.A. 1987). We review allegations
of ineffective assistance of counsel de novo. United States v.
Wean, 45 M.J. 461, 463 (C.A.A.F. 1997).
“On appellate review, there is a ‘strong presumption’ that
counsel was competent.” United States v. Grigoruk, 56 M.J. 304,
306-07 (C.A.A.F. 2002) (citing Strickland, 466 U.S. at 689). A
servicemember “who seeks to relitigate a trial by claiming
ineffective assistance of counsel must surmount a very high
hurdle.” United States v. Moulton, 47 M.J. 227, 229 (C.A.A.F.
1997).
Under the first prong of Strickland, which examines the
issue of deficiency in performance, we ask: (A) Are appellant’s
allegations true? (B) If so, is there a reasonable explanation
for counsel’s actions? (C) If there is not a reasonable
explanation, did defense counsel’s level of advocacy fall
measurably below the performance ordinarily expected of fallible
lawyers? See Grigoruk, 56 M.J. at 307 (citing United States v.
Polk, 32 M.J. 150, 153 (C.M.A. 1991)).
22
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Even if counsel’s performance was deficient, the defense
must surmount the second prong of Strickland, which measures
prejudice. The defense bears the burden of demonstrating that
“there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” 466 U.S. at 694.
The second prong is critical because, “[i]f we conclude
that any error would not have been prejudicial under the second
prong of Strickland, we need not ascertain the validity of the
allegations or grade the quality of counsel’s performance under
the first prong.” United States v. Saintaude, 61 M.J. 175, 179-
80 (C.A.A.F. 2005).
B. MENTAL HEALTH AND SELF-DEFENSE
Appellant’s contention that she was denied effective
assistance of counsel under the Sixth Amendment pertains
primarily to the relationship between her mental health and her
claims of self-defense. R.C.M. 916(e)(1) provides:
It is a defense to a homicide . . . that the
accused:
(A) Apprehended, on reasonable
grounds, that death or grievous bodily
harm was about to be inflicted
wrongfully on the accused; and
(B) Believed that the force the
accused used was necessary for
protection against death or grievous
bodily harm.
23
United States v. Dobson, No. 05-0004/AR
The first element, under subparagraph (A), has an objective
component, involving the perception of a reasonable person under
the circumstances. The second element, under subparagraph (B),
is wholly subjective, involving the personal belief of the
accused, even if not objectively reasonable. Although mental
health evaluations may be relevant to both elements of self-
defense, such evaluations may have particular import with
respect to the second element, which involves the personal,
subjective perceptions of the accused.
C. PRETRIAL MENTAL HEALTH EVALUATIONS OF APPELLANT
Appellant’s multiple claims of ineffective assistance of
counsel concern the actions taken by trial defense counsel with
respect to the various examinations of Appellant’s mental health
that were conducted in the aftermath of SGT Dobson’s death.
1. The first mental health evaluation by Doctor Bissell and
Doctor Paliani
On March 4, 1999, two days after SGT Dobson’s death, the
Military Police (MPs) became concerned about Appellant’s
behavior and potential to commit suicide in pretrial
confinement. The MPs brought her to the mental health clinic,
where she was interviewed by Dr. William Bissell, the chief of
psychiatric services at the clinic, and Dr. Melissa Paliani, a
clinical psychologist who was the chief of mental health care
services. Dr. Bissell observed that Appellant generally was
24
United States v. Dobson, No. 05-0004/AR
coherent and that she exhibited occasional amnesia and mild
anxiety. He concluded that although she met the criteria for
acute stress disorder with disassociative amnesia, he could not
rule out a diagnosis of malingering -- fabricating a mental
state in order to avoid responsibility. He did not administer
or interpret any psychological tests at that time.
2. The R.C.M. 706 Board
Both parties subsequently requested a formal inquiry under
R.C.M. 706 to determine whether Appellant lacked mental
responsibility for SGT Dobson’s death or whether she lacked the
mental capacity to stand trial. The R.C.M. 706 Board, which
included a psychiatrist and a clinical psychologist, issued its
report on August 16, 1999. The Board concluded that she did not
lack mental responsibility for the offense, see R.C.M. 916(k),
and that she was competent to stand trial. See R.C.M. 909(a).
Appellant did not challenge the Board’s conclusions at trial,
and the conclusions are not at issue in the present appeal.
Although the Board did not provide Appellant with a basis
for claiming a lack of mental responsibility, the Board’s report
stated that the evaluation indicated that Appellant appeared “to
have several personality factors that may have influenced her
behavior on the night of the incident in question,” specifically
noting the impact of spousal abuse on her perceptions of a
threat prior to the death of SGT Dobson. After noting that
25
United States v. Dobson, No. 05-0004/AR
“some of the issues facing this defendant lie outside the area
of expertise of the Board members,” the report “recommended that
outside experts within these areas be allowed to examine the
defendant to more completely comment on her state of mind at the
time of the offense.” The report added: “Locally, Diane
Shelton, Ph.D. . . . has the experience and expertise in this
area,” and included Dr. Shelton’s phone number.
3. Dr. Brill’s evaluation
After the R.C.M. 706 Board completed its report, Appellant
was examined by Dr. Alice Brill, a licensed psychologist
retained by the defense. Dr. Brill conducted five examinations
of Appellant beginning on August 28, 1999. She concluded that
Appellant suffered from battered woman’s syndrome and post-
traumatic stress disorder (PTSD).
4. Further evaluation by Dr. Bissell
On December 29, 1999, personnel at the confinement facility
became concerned that Appellant’s behavior indicated a suicide
risk, and they brought her to the mental health clinic. At that
time, she was again examined by Dr. Bissell. He concluded that
she was not suffering from either PTSD or acute anxiety
disorder, but that she met the criteria for adjustment disorder
with mixed emotions of depression and anxiety. A week later,
Dr. Bissell received a call from Dr. Brill, who expressed
concern that Appellant was psychotic. Dr. Bissell said that if
26
United States v. Dobson, No. 05-0004/AR
defense counsel submitted a request, he would conduct a further
examination of Appellant.
After defense counsel made the arrangements, Dr. Bissell
evaluated Appellant on January 9, 2000. At the examination,
Appellant provided Dr. Bissell with the same information that
she had described in her prior examinations, and he once again
concluded that she did not suffer from PTSD or any other serious
psychiatric illness. Dr. Bissell’s evaluations were based upon
his interviews with Appellant. He did not conduct or evaluate
any psychological tests during his three meetings with
Appellant.
D. TRIAL TESTIMONY
1. The Defense Case Concerning Appellant’s Mental Health
The defense presented the testimony of Ms. Janet Kerr,
Executive Director of the Center for the Prevention of Domestic
Violence, to explain the concepts of battered woman’s syndrome,
PTSD, and disassociation. Ms. Kerr, who was qualified as an
expert, specifically addressed the relationship between spousal
abuse and self-defense. Ms. Kerr, who had not examined
Appellant, set the stage for the testimony of Dr. Brill, who had
evaluated Appellant.
Dr. Brill, who was qualified as an expert, testified that
she conducted a number of interviews with Appellant and
administered a series of different psychological tests,
27
United States v. Dobson, No. 05-0004/AR
including the Minnesota Multiphasic Personality Inventory I
(MMPI-I). For each test, she provided an explanation of the
methodology and results.
Based on the tests and her evaluation, Dr. Brill diagnosed
Appellant as suffering from PTSD. She opined that Appellant’s
behavior on the night of SGT Dobson’s death reflected a person
acting in fear of her life, and that her subsequent
inconsistencies reflected the behavior of an abused person.
2. The prosecution’s critique of Dr. Brill’s testimony
Dr. Bissell, who had examined Appellant for mental health
problems during her pretrial confinement, testified at trial as
a prosecution witness in rebuttal. He stated that during his
examinations of Appellant, she had not described herself as a
battered spouse, and that he could recall her recounting only
one incident of abuse. He also testified that the term
“battered spouse syndrome” was not a recognized diagnosis
because it was “very simplistic” and did not “describe anything
that’s clinically meaningful.” According to Dr. Bissell,
Appellant suffered from stress and sleep disorder, but not PTSD.
He disagreed with Dr. Brill’s assessment of Appellant as
suffering from PTSD or another psychotic condition. He also
stated that he did not believe it was possible to determine,
months after the event, what Appellant’s mental state had been
at the time she killed SGT Dobson. Dr. Bissell testified that
28
United States v. Dobson, No. 05-0004/AR
Appellant’s behavior reflected a pattern of self-serving
statements, intermittent memory lapses, and fabrications that
were “more consistent with malingering than any other diagnoses
[sic].” Dr. Bissell criticized Dr. Brill’s use of the MMPI-I
test on the grounds that it was outdated and had been replaced
by the MMPI-II test.
During cross-examination by the defense, Dr. Bissell
acknowledged that in his position, he was not responsible for
administering or interpreting psychological tests. He also
stated that his evaluations were conducted for the purpose of
determining whether Appellant had presented any suicidal
tendencies during pretrial confinement, and whether treatment
was necessary. He did not evaluate her for purposes of
assessing her state of mind on the date of SGT Dobson’s death.
The prosecution sought to bolster its critique of Dr.
Brill’s testimony through the testimony of Dr. Paliani. Dr.
Paliani, who had reviewed the psychological tests that Dr. Brill
had performed on Appellant, criticized Dr. Brill’s use of the
MMPI-I test as outdated. She also stated that it was unethical
to use such a test under standards of the American Psychological
Association. In addition, Dr. Paliani identified various
mathematical errors committed by Dr. Brill in the course of her
analysis of Appellant.
29
United States v. Dobson, No. 05-0004/AR
3. Dr. Brill’s response
In response to the testimony from Doctors Bissell and
Paliani, the defense recalled Dr. Brill. She testified that she
was experienced in using both the MMPI-I and MMPI-II and that
the differences between the two were not significant. She also
stated that the MMPI-I remained valid as an analytical tool.
She added that any mathematical errors reflected minor clerical
mistakes that did not affect the substance of her evaluation of
Appellant.
E. APPELLATE ISSUES CONCERNING THE ASSISTANCE OF COUNSEL
In the present appeal, Appellant submits four separate
claims alleging constitutionally defective representation by the
trial defense team.
1. Defense counsel’s reliance upon Dr. Brill
Appellant contends that defense counsel should not have
presented the testimony of Dr. Brill, whose evaluation was
vulnerable because she used an outdated and inappropriate test,
committed computational errors in scoring the tests, and relied
on outdated scoring methods. Although Dr. Brill was a
vulnerable witness, Appellant does not detail a specific
alternative approach that should have been taken by the trial
defense team. It is not apparent whether Appellant believes
that it would have been better to: (a) present no testimony on
30
United States v. Dobson, No. 05-0004/AR
this subject; (b) obtain a different witness; or (c) somehow
improve the quality of Dr. Brill’s testimony.
In view of the strong case presented by the prosecution
during its case-in-chief, testimony about Appellant’s
psychological state on the night of SGT Dobson’s death and
afterwards was an important component of the defense case. Dr.
Brill presented exculpatory expert testimony supportive of
Appellant’s claim of self-defense, both in terms of Appellant’s
role in SGT Dobson’s death, and in explaining her subsequent
fabrications, inconsistencies, and memory lapses. In that
context, Appellant was not prejudiced by presenting Dr. Brill’s
testimony, as opposed to presenting no evidence on this subject.
In terms of an using an alternative witness, Appellant has
not demonstrated what an alternative witness could have done
that Dr. Brill did not do in addressing Appellant’s behavior on
the night of SGT Dobson’s death and Appellant’s subsequent
behavior. Finally, although the defense might have marginally
enhanced the quality of Dr. Brill’s testimony by using the
initial direct examination to anticipate and rebut the critiques
offered by the prosecution’s experts, such tactics would not
have eliminated either the critiques or Dr. Brill’s rebuttal
from consideration by the panel. Accordingly, Appellant has not
demonstrated a reasonable probability that a different approach
would have produced outcome-altering testimony. See Grigoruk,
31
United States v. Dobson, No. 05-0004/AR
56 M.J. at 307-08. In the absence of such a showing, Appellant
has not met the defense’s burden of demonstrating prejudice
under the second prong of Strickland.
2. Dr. Shelton
Appellant faults the trial defense team because the record
does not reflect that they pursued the recommendation of the
R.C.M. 706 Board to contact Dr. Shelton, an expert on domestic
violence and female offenders. Assuming that the defense did
not contact Dr. Shelton, and that this was a deficiency,
Appellant has not demonstrated prejudice. Even if Dr. Shelton
could have provided favorable background information about the
various psychological concepts at issue, Appellant has not
identified any outcome-altering difference between what she
would have offered and the background testimony presented by Ms.
Kerr, who testified as an expert witness for the defense.
With respect to the vulnerabilities in the testimony of Dr.
Brill, the burden is on Appellant to demonstrate that an
evaluation of Appellant by Dr. Shelton would have reached
similarly favorable conclusions about Appellant’s behavior on
the night of SGT Dobson’s death and about her subsequent
behavior. There has been no such showing. Under these
circumstances, Appellant has not demonstrated prejudice under
the second prong of Strickland.
32
United States v. Dobson, No. 05-0004/AR
3. The R.C.M. 706 Board
Appellant asserts that the trial defense team was
ineffective for not calling members of the R.C.M. 706 board to
testify at trial. According to Appellant, this testimony would
have been helpful in a number of respects on findings and
sentence, including serving to rebut Dr. Bissell’s suggestion
that Appellant was malingering and showing that Appellant
suffered from a post-traumatic reaction.
Testimony by the Board members, however, would have carried
significant risks for the defense. The Board, for example,
administered the MMPI-II test, but did not conclude that
Appellant was suffering from PTSD -- the centerpiece of the
defense case. The Board also expressly noted that its members
did not have expertise in the other key aspect of the defense
case -- battered woman’s syndrome. Moreover, much of the Board
report was based upon information provided by Appellant,
including information that she later acknowledged to be false.
Under these circumstances, the decision not to call the Board
members as witnesses was well within the range of discretion
afforded to defense counsel under the first prong of Strickland.
4. Statements to Dr. Bissell
Appellant met with Dr. Bissell on three separate occasions
to address mental health problems she encountered during
pretrial confinement. The meetings took place on March 4, 1999,
33
United States v. Dobson, No. 05-0004/AR
December 29, 1999, and January 9, 2000. The last meeting was
held at the request of Dr. Brill, and was facilitated by defense
counsel.
Appellant notes that Dr. Bissell provided damaging
testimony based upon his third evaluation of Appellant. In
particular, he testified that Appellant had not presented a
pattern of being battered by her spouse; that he disagreed with
Dr. Brill’s assessment that she was psychotic and suffered from
PTSD; and that her symptoms were more consistent with
malingering than any other diagnosis. Appellant contends that
her trial defense team was ineffective for: (1) not moving at
trial to suppress her December 29 and January 9 statements; and
(2) not ensuring that her statements during the January 9
meeting were treated as confidential before permitting her to
meet with Dr. Bissell.
Appellant, who asserts that none of the statements were
confidential under Military Rule of Evidence (M.R.E.) 513
(psychotherapist-patient privilege), does not identify the
source of law that could have been invoked at trial to suppress
her December 29 and January 9 statements to Dr. Bissell.
Moreover, Appellant does not assert that Appellant’s statements
to Dr. Bissell on December 29 resulted from any defect on the
part of counsel.
34
United States v. Dobson, No. 05-0004/AR
In any case, there was no prejudice from Dr. Bissell’s
reliance on statements made during the latter two examinations.
Dr. Bissell testified that in his first evaluation of Appellant,
he did not diagnose her as suffering from PTSD, and that there
was the possibility of malingering. The information from the
latter two evaluations confirmed his initial evaluation. Even
if the results of the December 29 and January 9 evaluations had
been excluded, Dr. Bissell would have provided adverse testimony
covering much of the same matter. Although his testimony might
have been somewhat less forceful if based only on his first
evaluation, there is no reasonable probability that the panel,
without the December 29 and January statements, would have had a
reasonable doubt about Appellant’s guilt. See United States v.
Paaluhi, 54 M.J. 181, 185 (C.A.A.F. 2000).
5. Assistance of counsel -- conclusion
The prosecution presented a very strong case in terms of
eyewitness testimony, forensic evidence, and numerous examples
of Appellant’s false, inconsistent, and incomplete statements.
In view of both the strength of the prosecution’s case and the
nature of the errors alleged by Appellant, we conclude that the
alleged errors, both individually and collectively, were not
prejudicial under the second prong of Strickland.
35
United States v. Dobson, No. 05-0004/AR
IV. EVIDENCE CONCERNING SPECIFIC INCIDENTS OF PRIOR ABUSE
(ISSUE III)
A. TRIAL PROCEEDINGS
1. Specific Instances of Prior Abuse Discussed by Both Parties
in the Opening Statements
The prosecution, in its opening statement, told the members
that premeditation could be inferred from Appellant’s acts
before, during, and after the killing of SGT Dobson. With
respect to events before the killing from which intent could be
inferred, the prosecution noted that the couple had argued over
possessions, infidelity, a possible divorce, and custody of
their infant twin daughters. Defense counsel’s opening
statement also focused on the impact of prior events on
Appellant’s intent. According to defense counsel, SGT Dobson’s
abuse of Appellant had created a situation in which she “was
desperate and felt she had no other alternative.”
Defense counsel told the panel that Appellant would testify
about incidents of mental cruelty and physical abuse inflicted
by SGT Dobson from 1997 through 1999. Defense counsel also
advised the panel that two separate witnesses would confirm her
testimony. The first witness would be a friend who was talking
to Appellant on the phone and “heard Sergeant Terry Dobson
threaten to kill her and heard the phone go dead.” The second
witness would corroborate a 911 call Appellant made after SGT
Dobson had threatened her and she was in “fear for her safety.”
36
United States v. Dobson, No. 05-0004/AR
Defense counsel stated that these incidents, along with others,
would demonstrate that Appellant acted out of fear for her
safety on the night SGT Dobson was killed.
2. Exclusion of Ms. Waddell’s specific incident testimony
During the trial on the merits, defense counsel proffered
the stipulated testimony of Karen Waddell, including testimony
concerning the phone conversation that had been described by
defense counsel in his opening statement. In the stipulated
testimony, Waddell stated that she overheard SGT Dobson threaten
to kill Appellant, and then the phone went dead.
When the military judge inquired as to the basis for
admitting this testimony, defense counsel offered two grounds:
first, the testimony would prove that the victim had a character
trait to be a violent person, which would be relevant to self-
defense; and second, the evidence would be relevant to show
Appellant’s state of mind. The military judge focused on the
first ground -- the character trait of the victim -- and ruled
that the testimony was inadmissible. In support of the ruling,
the military judge cited the rules of evidence concerning proof
of character traits. See M.R.E. 404(a)(2) (evidence of a
pertinent character trait of a victim); M.R.E. 405(a) (when a
character trait is at issue, it may be proved by reputation or
opinion testimony); M.R.E. 405(b) (specific instances of a
person’s conduct may be introduced if the person’s character or
37
United States v. Dobson, No. 05-0004/AR
trait of character is an “essential element” of an offense or
defense). The military judge added that SGT Dobson’s character
for peacefulness was not an “essential element” of Appellant’s
claim of self-defense, citing United States v. Keiser, 57 F.3d
847 (9th Cir. 1995) (holding that although the victim’s
character for violence could be proved by opinion or reputation
evidence, a third party’s testimony as to specific acts by the
defendant was not admissible because the character trait for
violence was not an “essential element” of the self-defense
claim). See R.C.M. 916 (setting forth the two elements of self-
defense: (1) that the accused reasonably believe that death or
grievous bodily harm is about to be inflicted; and (2) that the
accused believe that the force used was necessary for protection
against death or grievous bodily harm). The military judge did
not address the question of whether evidence of specific acts of
violence known to Appellant were admissible on the issue of
Appellant’s intent.
3. Specific incidents of prior abuse admitted into evidence
During her testimony on the merits, Appellant described
specific instances of violent conduct by SGT Dobson, including
threats and acts of physical abuse. Her testimony included the
incident, noted in defense counsel’s opening statement, in which
Appellant had placed a 911 call to the police. According to
Appellant, the incident occurred during her pregnancy. She
38
United States v. Dobson, No. 05-0004/AR
testified that SGT Dobson “told me that he would stomp the
oblivion out of me and the [twin] babies inside of me.” She
added that she was “scared” and picked up the phone to call his
unit. SGT Dobson pressed his fingers against her head and told
her that he would kill her if she interfered with his military
career. When she responded by calling 911, SGT Dobson left the
premises, and she called her brother. Both the police and her
brother came to the apartment, and she decided to spend the
night with her brother “just in case” SGT Dobson returned.
Appellant also described a separate incident in which she
was talking on the phone with a friend. SGT Dobson threatened
to kill her if she did not get off the phone, and he then
grabbed the phone from her and hung it up.
Appellant testified without objection by the prosecution to
the evidence of specific acts of violence by SGT Dobson. On
cross-examination, trial counsel emphasized that the 911 call
was “significant.” The prosecution sought to discredit her
testimony by suggesting that in her pretrial sessions with Dr.
Brill, Appellant treated the incident as insignificant. The
prosecution pursued a similar line of inquiry during cross-
examination of Dr. Brill, focusing the panel on
“inconsistencies” and “lies” in what Appellant told Dr. Brill --
including differences between her in-court testimony and her
pretrial statements to Dr. Brill about the 911 call. Through
39
United States v. Dobson, No. 05-0004/AR
the cross-examination, the prosecution expressly sought to
challenge Dr. Brill’s testimony “that the accused could not form
the intent to murder.” On redirect examination, Dr. Brill
testified, without objection, that Appellant told her that she
had made the 911 call after SGT Dobson “threatened to kill her.”
4. Exclusion of Sergeant First Class Johnson’s specific incident
testimony
After Dr. Brill completed her testimony, the defense
attempted to call as a witness Sergeant First Class (SFC) Lester
Johnson, Appellant’s brother. The prosecution requested a
session pursuant to Article 39(a), UCMJ, 10 U.S.C. § 839(a)
(2000), for the purpose of objecting to testimony from SFC
Johnson about the 911 call. Defense counsel proffered that SFC
Johnson would testify that he received a phone call from
Appellant. She was upset, he went to her apartment, the police
arrived, and she told him that SGT Dobson had threatened her.
Defense counsel indicated that SFC Johnson’s testimony about
Appellant’s remarks to him would be admissible as a hearsay
exception -- an excited utterance by Appellant. See M.R.E.
803(2). Trial counsel objected on the same grounds used to
exclude the testimony of Ms. Waddell -- that a specific instance
of conduct could not be used “to shed bad light on the victim’s
character.”
40
United States v. Dobson, No. 05-0004/AR
At the Article 39(a) session, SFC Johnson stated that he
had received a phone call from Appellant in which she “sounded
real shaken-up, like . . . she had been crying . . . [i]t was a
voice I had never heard her in that state before . . . .” He
said that he immediately went to the apartment, arriving within
minutes after receiving the call. At the apartment, Appellant
“was kind of nervous like, shaken-up and looked as though she
had been crying.” Appellant told him that SGT Dobson “had been
threatening her and talking about what he would do to her.”
The prosecution then renewed its objection on the grounds
that the defense was improperly trying to use a specific
instance of conduct to portray SGT Dobson as having a character
trait for issuing violent threats. According to the
prosecution, the evidence, like the Waddell stipulation, was
inadmissible under M.R.E. 405(a) because it improperly sought to
prove a character trait through a specific instance of conduct
when the trait was not an essential element of self-defense.
Defense counsel responded that the evidence was not being
offered solely as to SGT Dobson’s character, but to rebut the
prosecution’s suggestion, through its cross-examination of
Appellant, that she had fabricated her testimony concerning
abuse by SGT Dobson. See M.R.E. 801(d)(1)(B). Defense counsel
also stated that the testimony was addressed to a specific
component of self-defense -- Appellant’s state of mind. The
41
United States v. Dobson, No. 05-0004/AR
military judge rejected defense counsel’s arguments by referring
to his prior reliance on the Ninth Circuit’s decision in Keiser,
and by stating that the prosecution had not specifically
challenged Appellant’s testimony about the fact of the 911 call
or why she had made the call. On that basis, the military judge
granted the prosecution’s objection to SFC Johnson’s testimony.
Following the military judge’s ruling, the defense relied solely
on the testimony of Appellant to establish the facts pertinent
to the defense theory that she had been abused repeatedly by SGT
Dobson.
5. Consideration of specific incidents during the closing
statements
Defense counsel, in his closing statement, focused the
attention of the members on both self-defense and the intent
element of premeditated murder, as well as the intent elements
of lesser included offenses. The defense theme was that
Appellant “wasn’t intending to kill Sergeant Terry Dobson. She
was acting out of fear for her safety that night.” The defense
emphasized that Appellant’s actions, and her subsequent
inconsistencies, were the product of a cycle of abuse inflicted
by SGT Dobson, specifically highlighting the incident of the 911
call.
Trial counsel’s rebuttal attacked the credibility of
Appellant’s testimony that she had been abused by SGT Dobson:
42
United States v. Dobson, No. 05-0004/AR
[T]he accused . . . [is] trying to
manipulate you. But she’s failed. She
isn’t satisfied with merely killing her
husband in a most gruesome and brutal
fashion that you could possible [sic]
imagine. She’s not done with him yet. Now
she’s trying to assassinate his character,
as well.
The rebuttal emphasized the absence of corroboration for
Appellant’s testimony about abuse:
Now, one of the things about the accused’s
defense is -- the thing that needs to just
jump right out at you is the fact that it
relies entirely upon her. There is
absolutely no corroboration for what she has
tried to tell you or what she has tried to
imply.
After noting that the testimony of Dr. Brill, the defense
expert, was dependent entirely upon Appellant’s pretrial
statements, trial counsel said:
You know that the accused lied to her, lied
to the police, lied to fellow members of her
unit. Lies, lies, lies, lies.
Trial counsel then returned, for a second time, to the subject
of corroboration:
The defense is a sort of a combination of
things here, I guess: battered spouse
syndrome, post-traumatic stress disorder,
disassociativeness. There’s no evidence --
other than the accused, there is no
corroboration that there was any physical or
mental abuse.
At that point, defense counsel objected on the grounds that the
prosecution was shifting the burden of proof to the defense, and
43
United States v. Dobson, No. 05-0004/AR
the military judge reminded the members of his earlier
instruction that the Government bears the burden of proof.
Shortly thereafter, trial counsel, for the third time,
emphasized the absence of corroborating evidence:
There’s no corroboration for the accused’s
claims that she was abused.
As trial counsel began to identify inconsistencies in
Appellant’s various pretrial and trial statements, defense
counsel asked for an Article 39(a) session. In that session,
defense counsel emphasized that it was improper for the
prosecution to highlight a lack of corroboration, particularly
in light of the Government’s objection to the Waddell
stipulation and testimony of SFC Johnson. The military judge
said that it would be permissible for the prosecution to
emphasize inconsistencies in her statements, but reminded trial
counsel to refrain from saying that the defense had not
presented any evidence.
When the trial resumed, the military judge again reminded
the panel that the defense had no burden to produce any
evidence. Trial counsel argued that the evidence demonstrated
that Appellant’s claims of abuse were fabricated:
[Y]ou cannot rely on what she says. She has
chosen to tell people all the time leading
up till [sic] trial . . . “I was never
mentally or physically abused.” There’s no
cycle of violence in this case.
44
United States v. Dobson, No. 05-0004/AR
Trial counsel added that Appellant’s statements:
[are] not just inconsistencies. They’re
lies. She lies. She came in here and she
lied to you. She told you that she was
abused. But she told everybody else up
until then that she had never been abused.
Later in the argument, when trial counsel referred to a
chart that contained its list of “proven lies,” the defense
objected to a reference on the chart to the “911 call.” In the
ensuing Article 39(a) session, trial counsel said that the
prosecution was focusing on the credibility of her statement as
to the purpose of the call, rather than on the question of
whether the call was made. Trial counsel asserted that there
was an inconsistency between her trial testimony that she called
because of abuse and Dr. Brill’s notes indicating that she
called because there had been an argument about washing the
dishes. The military judge stated that he recalled the
inconsistency between Appellant’s testimony and Dr. Brill’s
version of Appellant’s pretrial statements, and he ruled that it
was permissible for prosecution to include the 911 call on its
display of “proven lies” on the grounds that the record
contained “different stories” as to why the call was made. On
that basis, trial counsel told the members:
She lied about why she made the 911 call
when she was in Texas. On the stand, she
says she made the 911 call because Terry put
his fingers up to her head and pushed her
head and threatened her.
45
United States v. Dobson, No. 05-0004/AR
Referring to Dr. Brill’s notes, trial counsel then said:
She told Dr. Brill, “I called 911. It was
really pretty stupid,” and she laughed. “We
were just arguing over cleaning up, and he
called me a bitch, so I called 911.”
After the members returned a finding of guilty to the
charge of premeditated murder, the prosecution asked the members
to sentence Appellant to life without parole. Trial counsel’s
argument included an emphasis on Appellant’s untruthfulness,
noting: “Her entire defense was to trash her family and to
trash her husband.”
B. DISCUSSION
1. Exclusion of the testimony
The defense theory of the case was that Appellant suffered
a cycle of abuse from SGT Dobson, that the abuse had a direct
impact on her state of mind at the time of SGT Dobson’s death,
and that her inconsistent statements thereafter were a by-
product of the abuse. The prosecution theory was that Appellant
committed premeditated murder and subsequently fabricated a tale
of abuse to escape responsibility for her intentional acts.
In support of its theory, the defense presented evidence of
numerous specific incidents of abuse by SGT Dobson. This
evidence was introduced through Appellant’s testimony, and
through Dr. Brill’s description of the information that she had
obtained from Appellant in the course of making her
46
United States v. Dobson, No. 05-0004/AR
psychological evaluation. The prosecution did not object to the
evidence about the specific incidents, but instead sought to
persuade the panel, through aggressive cross-examination of
Appellant and Dr. Brill, that the testimony was not credible.
In particular, the prosecution drew the attention of the panel
to the 911 incident by asking Appellant to repeat her
description of the incident during cross-examination. In
response, Appellant specifically referred to her brother’s
prompt response to the call. Although Appellant’s testimony
described specific instances of abusive treatment of Appellant
by SGT Dobson, the military judge ruled that Ms. Waddell and SFC
Johnson could not provide similar testimony, relying primarily
on the Ninth Circuit’s opinion in Keiser.
We review the ruling on the admissibility of evidence under
an abuse of discretion standard, under which we assess whether
the military judge’s findings of fact were clearly erroneous or
whether the decision was influenced by an erroneous view of the
law. United States v. Sullivan, 42 M.J. 360, 363 (C.A.A.F.
1995). The military judge erred in applying Keiser to the
present case. In Keiser, the defense sought to admit evidence
of an incident that occurred after the charged crime, in which
the alleged victim threatened a third party. 57 F.3d at 852.
The court expressly noted that the defendant made “no claim on
appeal that the incident . . . was relevant to his state of mind
47
United States v. Dobson, No. 05-0004/AR
at the time of the shooting or the reasonableness of his belief
that force in self-defense was necessary.” Id. at 853. In that
context, the court noted that the character of the alleged
victim for violence could be proved by reputation or opinion
evidence for purposes of showing that he acted in conformity
with that trait, but could not be proved by evidence of specific
acts because the character trait is not an “essential element”
of self-defense. Id. at 854-57 (including citations to Fed. R.
Evid. 404(a) and Fed. R. Evid. 405(b)).
In relying on the “essential element” aspect of Keiser, the
military judge did not address the relevance of the specific
acts to Appellant’s state of mind. As noted in several opinions
issued by the same court of appeals prior to Appellant’s trial,
evidence of a victim’s specific prior acts of violence known to
the defendant may be admitted to show Appellant’s state of mind
at the time of the victim’s death. United States v. James, 169
F.3d 1210 (9th Cir. 1999); United States v. Saenz, 179 F.3d 686
(9th Cir. 1999). Because the military judge applied an
erroneous view of the law, we find that the exclusion of the
stipulation of Ms. Waddell and the testimony of SFC Johnson was
an abuse of discretion.
In the present appeal, the Government contends that even if
the military judge erred in relying on Keiser, the testimony
about specific acts was too remote in time to bear on
48
United States v. Dobson, No. 05-0004/AR
Appellant’s state of mind at the time of SGT Dobson’s death.
At trial, however, the prosecution offered no objection to the
detailed evidence of SGT Dobson’s prior acts from the same
period -- 1997 to 1998 -- introduced by the defense at trial.
The time for objection to the relevance of such evidence was at
trial, not on appeal.
With respect to SFC Johnson’s testimony -- that Appellant
told him that she made the 911 call because SGT Dobson
threatened her -- the military judge also erred by ruling that
the evidence was not admissible to rebut a claim of recent
fabrication under M.R.E. 801(d)(1)(B). In the course of
considering the prosecution’s motion to preclude SFC Johnson’s
testimony, the military judge stated that the prosecution had
not cast doubt on the content of Appellant’s testimony regarding
the substance of the 911 call. That statement by the military
judge was clearly erroneous in light of the prosecution’s cross-
examination of both Appellant and Dr. Brill about the 911 call.
The cross-examination was designed to discredit Appellant’s
statement that she made the call because she was threatened by
SGT Dobson. It is noteworthy, in that regard, that the military
judge -- in a different context –- had a different recollection
of the state of the record when he ruled that trial counsel in
closing argument could attack Appellant’s credibility by arguing
that her in-court testimony was inconsistent with her pretrial
49
United States v. Dobson, No. 05-0004/AR
statements to Dr. Brill about the purposes of the 911 call. As
a result of the military judge’s inconsistent rulings, trial
counsel was permitted to use a chart that expressly referred to
the 911 call under the heading “Proven Lies” even though the
defense was precluded from introducing evidence to rebut the
prosecution’s suggestion that Appellant’s testimony about the
911 call had been fabricated.
2. The test for prejudice
In view of the military judge’s erroneous rulings, we must
determine whether there was prejudice with respect to the issue
of self-defense; and, if not, whether there was prejudice with
respect to the issue of premeditation. See Article 59(a), UCMJ
10 U.S.C. § 859(a) (2000). Appellant asserts that the military
judge precluded her from presenting a defense -- the impact of
the prior acts on her state of mind -- an error of
constitutional dimension that would be prejudicial unless
harmless beyond a reasonable doubt. As reflected in the
foregoing discussion of the record, however, Appellant had an
extensive opportunity to present a defense based on the impact
of SGT Dobson’s specific acts on her state of mind. The error
was not that the military judge precluded her from presenting
the state-of-mind defense based on SGT Dobson’s acts, but that
he prevented her from introducing corroborating evidence when
her credibility was attacked. Accordingly, we apply the test
50
United States v. Dobson, No. 05-0004/AR
for nonconstitutional evidentiary error, which requires us to
weigh four factors: “(1) the strength of the Government’s case,
(2) the strength of the defense case, (3) the materiality of the
evidence in question, and (4) the quality of the evidence in
question.” United States v. Kerr, 51 M.J. 401, 405 (C.A.A.F.
1999).
3. Impact of the error on self-defense
Applying the Kerr factors, we conclude that there was no
prejudice on the issue of self-defense. From the outset of the
trial, the prosecution sought to meet its burden on the issue of
self-defense by demonstrating that Appellant’s actions did not
fall within either or both of the elements of self-defense; that
is: (1) the objective element, which involves a reasonable
apprehension that “death or grievous bodily harm was about to be
inflicted”; or (2) the subjective element, which involves a
personal belief that the force used “was necessary for
protection against death or grievous bodily harm.” R.C.M.
916(e)(1).
The Government presented a very strong case as to both
elements, consisting of eyewitness and expert testimony. At the
point in the affray where the eyewitnesses first viewed it, SGT
Dobson was still standing. They saw Appellant aggressively
pursue SGT Dobson. Instead of fleeing when she had the
opportunity, Appellant taunted and repeatedly attacked SGT
51
United States v. Dobson, No. 05-0004/AR
Dobson. The expert witnesses testified that SGT Dobson suffered
numerous wounds consistent with defensive behavior, while
Appellant did not have any significant wounds. The Government
further strengthened its case by focusing on the numerous
fabrications and inconsistencies in Appellant’s pretrial
statements on critical events.
The defense was unable to offer a significant challenge,
either through cross-examination or rebuttal, to either the
eyewitness or expert testimony. Moreover, Appellant provided
very little direct evidence. Appellant provided virtually no
details as to events immediately preceding her use of the knife
to kill SGT Dobson. Although her pretrial and trial testimony
is filled with detail about her relationship with SGT Dobson,
she provided no information as to how they arrived on Sage
Street in the middle of the night, who started the fight, who
produced the knife, or who first threatened or used deadly
force. Without providing any immediate context, she simply
stated that there was a knife between them and SGT Dobson said:
“It’s me or you now that -- it’s me or you now, Bitch. One of
us has to die.” She also stated that he lunged at her with the
knife. She provided no information as to how she obtained the
knife or the circumstances in which she used it.
Although her testimony was sufficient to warrant a self-
defense instruction, particularly in the context of the
52
United States v. Dobson, No. 05-0004/AR
psychological testimony provided by the defense witnesses, the
sketchy details did not provide a substantial counterweight to
the powerful eyewitness and expert testimony regarding her
aggressive behavior, the absence of aggression by SGT Dobson,
and her use of the knife when she had ample opportunity to flee.
In the context of the evidence presented at trial on the issue
of self-defense, the excluded testimony from Ms. Waddell and SFC
Johnson was not particularly significant, either with respect to
its quality or materiality. The evidence was offered to
corroborate Appellant’s testimony and establish that she had
reason to fear SGT Dobson. The excluded evidence consisted of
two incidents of verbal abuse, both of which occurred more than
a year prior to the death of SGT Dobson. The import of the
testimony would have been diminished by the remoteness in time
from the killing of SGT Dobson, the fact that neither witness
personally observed the interaction between Appellant and SGT
Dobson, and the fact that neither incident involved actual
physical abuse. Moreover, the support that it might have given
to Appellant’s testimony would have been heavily countered by
the evidence of her repeated fabrications and deceptions
following the death of SGT Dobson.
In short, the prosecution case on self-defense was strong,
the defense case was weak, and the quality and materiality of
the excluded evidence was of diminished value on the issue of
53
United States v. Dobson, No. 05-0004/AR
self-defense. Under these circumstances, we conclude that the
error was not prejudicial as to self-defense.
4. Premeditation
The Manual provides the following guidance with respect to
premeditation:
A murder is not premeditated unless the
thought of taking life was consciously
conceived and the act or omission by which
it was taken was intended. Premeditated
murder is murder committed after the
formation of a specific intent to kill
someone and consideration of the act
intended. It is not necessary that the
intention to kill have been entertained for
any particular or considerable length of
time. When a fixed purpose to kill has been
deliberately formed, it is immaterial how
soon afterwards it is put into execution.
The existence of premeditation may be
inferred from the circumstances.
MCM pt. IV, para. 43.c.(2)(a) (2005 ed.). Unpremeditated
murder, however, does not require a similar degree of
specificity as to intent. An unpremeditated murder does not
require a fixed intent to kill a specific person after
considering the specific act. A person may be convicted of
unpremeditated murder even if the person had no intent to kill
prior to taking an act, so long as the act itself was
intentional and likely to result in death or great bodily harm.
Id. para. 43.c.(3)(a).
In assessing impact of the error of excluding the testimony
of Ms. Waddell and SFC Johnson, we note that the prosecution
54
United States v. Dobson, No. 05-0004/AR
presented legally sufficient evidence on the subject of
premeditation, see Jackson v. Virginia, 443 U.S. 307 319 (1979)
(test for legal sufficiency is whether, considering the evidence
in the light most favorable to the prosecution, a reasonable
factfinder could have found all the essential elements beyond a
reasonable doubt). See supra, Section III. E. 5 (summarizing
the evidence). Although the error did not affect the legal
sufficiency of the evidence under the low threshold of Jackson,
we must also examine whether the error was prejudicial under the
Kerr analysis. We begin by evaluating the strength of the
Government’s case on the issue of premeditation.
The prosecution faced a much greater challenge in proving
premeditation than it faced in disproving self-defense. The
prosecution presented no direct evidence as to the immediate
circumstances that produced a fatal confrontation between
Appellant and her husband on Sage Street in the middle of the
night. No one saw the argument begin, how or why it escalated
into a physical altercation, who struck the initial blow, who
introduced a knife into the affair, or who first used the knife
against the other. Although the prosecution presented
substantial evidence from which premeditation could be inferred
from her actions on Sage Street and her subsequent attempts at
deception, it was evidence from which the panel could have
readily concluded that Appellant committed murder without a
55
United States v. Dobson, No. 05-0004/AR
preexisting intent -- unpremeditated murder. Trial counsel’s
closing statement underscored the difficulties the prosecution
faced on the issue of premeditation by candidly acknowledging
that the prosecution could not identify the point in time at
which Appellant formed a premeditated intent to commit murder.
The defense presented a substantial case on the issue of
premeditation. Through cross-examination, the defense
repeatedly underscored the absence of direct prosecution
evidence on premeditation. The defense then presented two
expert witnesses who provided a clear, coherent explanation of
the impact of spousal abuse on Appellant’s intent on the night
of the killing, as well as the impact of abuse on her behavior
thereafter. The importance of that testimony has been
highlighted, in the present appeal, by the Government in
responding to Appellant’s claims of ineffective assistance of
counsel. The significance at trial was further highlighted by
the Government’s persistent efforts to preclude testimony by
witnesses who would have corroborated Appellant’s testimony
about spousal abuse.
In that context, the materiality of the excluded testimony
is much more significant on the issue of premeditation than it
was on the issue of self-defense. With no direct evidence of
intent, the panel could have accepted all of the Government’s
evidence pointing to Appellant as the perpetrator of the murder,
56
United States v. Dobson, No. 05-0004/AR
but still have a reasonable doubt as to whether she premeditated
the murder in light of the impact of abuse on her intent. A key
element of the Government’s strategy was to convince the panel
that they could discount the expert testimony on the impact of
abuse on the grounds that they should treat her entire testimony
as a lie. Trial counsel emphasized that position during cross-
examination by first asking Appellant to tell the panel about
the 911 incident, which was immediately followed by detailed
cross-examination in an effort to portray her testimony as a
fabrication. During closing argument, trial counsel returned to
the 911 incident during the course of his argument that there
was no corroboration for her testimony. Had the military judge
permitted the testimony from Ms. Waddell and SFC Johnson, trial
counsel would not have been able to make that argument.
The adverse impact of the military judge’s erroneous ruling
was heightened by the fact that defense counsel, in his opening
statement, specifically told the members that they would hear
this testimony of the two witnesses. The defense was then
precluded by the military judge’s ruling from fulfilling that
promise.
In terms of the quality of testimony, there is no
indication that the information that would have been provided by
Ms. Waddell or SFC Johnson would have been subject to effective
impeachment or rebuttal. Under the circumstances of this case,
57
United States v. Dobson, No. 05-0004/AR
we cannot be confident that the error of excluding the testimony
of these two witnesses was harmless on the issue of
premeditation. See Kotteakos v. United States, 328 U.S. 750
(1946).
5. Other offenses
In addition to instructing the members on premeditated and
unpremeditated murder, the military judge also instructed the
members to consider two other offenses. First, he instructed on
voluntary manslaughter -- the unlawful killing of a person when
done in the heat of sudden passion caused by adequate
provocation. See MCM pt. IV, para. 44.b.(1). Second, he
instructed on involuntary manslaughter -- a killing that occurs
during the commission of an aggravated assault without
necessarily having an intent to kill or cause grievous bodily
harm. See MCM pt. IV, para. 44.b.(2). Although the military
judge appropriately recognized that the evidence on these
offenses met the low threshold for providing instructions, these
lesser offenses were not the focus of the trial. The record
amply reflects the clear understanding of both parties that if
the defense was unable to prevail at trial on a theory of self-
defense, the critical question at trial would involve the choice
between premeditated and unpremeditated murder.
At trial, the defense directed its primary attention on
self-defense and premeditation, with only perfunctory references
58
United States v. Dobson, No. 05-0004/AR
to voluntary or involuntary manslaughter. On appeal, Appellant
has likewise emphasized self-defense and premeditation. Under
these circumstances, we conclude that error in excluding the
witnesses was harmless with respect to the offenses lesser than
unpremeditated murder.
V. CONCLUSION
The decision of the United States Army Court of Criminal
Appeals is reversed. The record of trial is returned to the
Judge Advocate General of the Army for remand to the Court of
Criminal Appeals. The court may: (1) affirm a conviction of
the offense of unpremeditated murder and either reassess the
sentence or order a sentence rehearing; or (2) authorize a
rehearing on the charge of premeditated murder.
59
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EVERETT, Senior Judge (concurring):
I concur fully in Judge Effron’s excellent opinion in
this case. I write separately to make three observations.
First, the opinion rejects some of the claims of
ineffective assistance of counsel because of the absence of
any prejudice to Appellant, even if defense counsel’s
performance were defective. Certainly Strickland v.
Washington, 466 U.S. 668 (1984), authorizes such treatment
of those claims. However, I wish to note that my own
review of the extensive record in this complex case
convinces me that defense counsel, both civilian and
military, performed their duties in a very professional
manner -- as also did the prosecutors and military judge.
Second, under the unique circumstances of this case, I
join in holding that the testimony from third-party
witnesses relating to some incidents of spousal abuse
should have been admitted. However, in my view the Court’s
ruling in this regard should be very narrowly applied in
future cases.
Third, I agree fully with the principal opinion’s
conclusion that, in light of the overwhelming prosecution
evidence, the evidentiary error did not affect the court-
martial’s rejection of Appellant’s claim of self-defense.
Giving Appellant every benefit of the doubt, I also join in
United States v. Dobson, No. 05-0004/AR
concluding that Appellant was prejudiced as to the element
of premeditation. Again, the unique circumstances of the
case are significant. Although slaying a victim by
stabbing him a hundred times with a knife does not
automatically negate premeditation or make the
prosecution’s evidence of premeditation insufficient,
court-martial members might logically reason that this
method of homicide indicated a lack of deliberation. In
the unusual factual situation of this case, the erroneous
exclusion of evidence of spousal abuse might have affected
the court-martial’s finding of premeditation. Therefore, I
concur.
2