72 M.J. 727 (A.F.Crim.App. 2013), ACM 36785, United States v. Witt

Docket NºACM 36785
Citation72 M.J. 727
Opinion JudgeSARAGOSA, Judge
Party NameUNITED STATES, Appellee, v. Senior Airman (E-4) ANDREW P. WITT, USAF, Appellant
AttorneyFor the Appellant: Dwight H. Sullivan, Esquire (argued); Major Daniel E. Schoeni (argued); Colonel Nikki A. Hall; Major Shannon A. Bennett; Major Michael A. Burnat; Major Timothy M. Cox; Major Michael S. Kerr; Major Nicholas W. McCue; Major Daniel E. Schoeni; and Captain Tiaundra D. Sorrell. For ...
Judge PanelSTONE, ORR, HARNEY, MARKSTEINER, and SARAGOSA, Appellate Military Judges. STONE, Chief Judge, and HARNEY, Senior Judge, concur. GREGORY, Senior Judge; ROAN, Senior Judge; HELGET, Senior Judge; HECKER, Judge; SOYBEL, Judge; CHERRY, Judge; MITCHELL, Judge; WEBER, Judge; WIEDIE, Judge; and PELOQUIN,...
Case DateAugust 09, 2013
CourtMilitary Appeals

Page 727

72 M.J. 727 (A.F.Crim.App. 2013)

UNITED STATES, Appellee,

v.

Senior Airman (E-4) ANDREW P. WITT, USAF, Appellant

ACM 36785

United States Air Force Court of Criminal Appeals

August 9, 2013

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Sentence adjudged 13 October 2005 by GCM convened at Bibb County Courthouse, Georgia. Military Judge: W. Thomas Cumbie. Approved Sentence: To be put to death.

For the Appellant: Dwight H. Sullivan, Esquire (argued); Major Daniel E. Schoeni (argued); Colonel Nikki A. Hall; Major Shannon A. Bennett; Major Michael A. Burnat; Major Timothy M. Cox; Major Michael S. Kerr; Major Nicholas W. McCue; Major Daniel E. Schoeni; and Captain Tiaundra D. Sorrell.

For the United States: Major Charles G. Warren (argued); Gerald R. Bruce, Esquire (argued); Colonel Don M. Christensen; Colonel Douglas P. Cordova; Lieutenant Colonel Linell A. Letendre; Lieutenant Colonel Jeremy S. Weber; Lieutenant Colonel Nurit Anderson; Lieutenant Colonel Martin J. Hindel; Lieutenant Colonel Matthew S. Ward; Major Deanna Daly; Major Jason M. Kellhofer; Major G. Matt Osborn; Major Donna S. Rueppell; Major Roberto Ramirez; and Major Ryan N. Hoback.

STONE, ORR, HARNEY, MARKSTEINER, and SARAGOSA, Appellate Military Judges. STONE, Chief Judge, and HARNEY, Senior Judge, concur. GREGORY, Senior Judge; ROAN, Senior Judge; HELGET, Senior Judge; HECKER, Judge; SOYBEL, Judge; CHERRY, Judge; MITCHELL, Judge; WEBER, Judge; WIEDIE, Judge; and PELOQUIN, Judge, did not participate.17 ORR, Senior Judge, with whom MARKSTEINER, Judge, joins, concurs in part and dissents in part.

OPINION

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SARAGOSA, Judge

The appellant was tried by a general court-martial composed of twelve officers, between April and October 2005. He was found guilty of the premeditated murders of Senior Airman (SrA) AS and his wife JS, as well as the attempted premeditated murder of (then) SrA JK, in violation of Articles 118 and 80, UCMJ, 10 U.S.C. § § 918, 880, respectively. On 13 October 2005, the members sentenced the appellant to death. The convening authority approved the findings and sentence as adjudged.

On appeal, the appellant has raised 88 issues which relate to the findings of guilty, the sentence, post-trial processing, and other miscellaneous systemic errors. For the reasons set forth below, we affirm the findings and set aside the sentence and return the record of trial to The Judge Advocate General for remand to the convening authority.

I.

Background

On the evening of 4 July 2004, SrA AS and his wife, JS, arrived at the on-base home of SrA JK and his wife to celebrate Independence Day. JK's wife went to bed at approximately 0100 hours on 5 July 2004. At some point in the morning hours, JS told her husband and SrA JK that the appellant had made a sexual advance toward her on the evening of 3 July 2004 when the appellant was a guest at her home. This disclosure made her husband angry, so he called and confronted the appellant at 0137 hours. He followed up with two additional completed phone calls to the appellant and nine additional unanswered calls. The last call originating from either SrA AS or SrA JK was at 0212 hours. At 0221, the appellant called SrA AS and they spoke for 33 minutes.

At some point during the phone call exchanges, the appellant changed into his battle dress uniform (BDU). He retrieved a knife from his closet, placed the knife in the trunk of his car, and drove onto Warner Robins Air Force Base, Georgia, arriving at approximately 0315. He would later write in

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a statement to the Air Force Office of Special Investigations (AFOSI) that he wore his BDUs because he " wanted to observe them unseen to see what was going on." He also told his roommate that he wore the BDUs so " they wouldn't see [him]." He further told his roommate that SrA AS had threatened to get him into trouble by disclosing his advance toward his wife and an affair he was having. In his written statement, the appellant stated that SrA AS was yelling at him during the phone calls and threatened his career.

When he arrived on base, the appellant parked his car in base housing about 50 yards from SrA JK's residence. The appellant later admitted to the AFOSI, during an interview, that he went to SrA JK's residence and observed them from behind the bushes and the trees. There were additional heated phone calls between the appellant and SrA JK after the appellant arrived on base. There were also phone calls in which the appellant was apologetic or told SrA JK that he and SrA AS " should come over here and kick my ass." SrA JK responded with words to the effect of, " You need your ass kicked."

At approximately 0400 hours, SrA AS, SrA JK, and JS drove from SrA JK's house to SrA AS's house, approximately 0.2 miles away and still in base housing. The appellant watched the three get into a vehicle and drive away. He then traveled to SrA AS's house by foot. The trio were already inside the home when the appellant let himself in and found SrA AS in the kitchen. SrA AS yelled at the appellant to get out of his house. A scuffle ensued between the two men. SrA JK came in and put the appellant in a headlock as he tried to get him off of SrA AS. Once free, SrA AS turned and went farther into the living room. SrA JK told the appellant to leave, and the appellant responded by stabbing him. As SrA JK screamed, " He's got a knife," he turned to run, and the appellant stabbed him again in the back. SrA JK was eventually able to get outside, where the appellant chased him for some distance. SrA JK ultimately reached a neighbor's home and was able to find help.

The appellant went back to the house and found SrA AS on the phone with 911. He later told the AFOSI agent that he returned because " he didn't want to leave any evidence." He found JS had locked herself in the back bedroom, so he kicked the door a couple of times and used his shoulder to break through the door. Upon finding JS behind the door in a fetal position, he proceeded to break her arm and stab her multiple times because " he was scared to leave a witness." He then returned to SrA AS, stabbing him in the ribs and finally the heart.

During the AFOSI's investigation, the appellant assisted the special agents by leading them to the location where he disposed of the knife he used in the crimes, as well as his BDU cap and boots. DNA analysis revealed blood stains from the appellant's BDU blouse, BDU pants, BDU hat, and boots matched the DNA profile of JS. Trace evidence in the form of red fibers were recovered from the knife. Microscopic analysis showed the fibers were consistent with the characteristics and color of the fibers in the shirts worn by SrA AS and SrA JK who were both wearing red shirts on the night of 4 July 2004.

SrA JK was stabbed a total of four times and sustained a laceration to his arm. Three of these stab wounds were identified as potentially life-threatening. He suffered a stab wound to the chest that punctured his left lung and nearly went through his entire chest cavity. He also suffered stab wounds to his back -- one to the splenic hilum that cut the splenic artery and a second to the kidney. He underwent emergency surgery and was hospitalized for 15 days. He also underwent four to five follow-up surgeries, spending over 30 cumulative days in the hospital.

SrA AS suffered three stab wounds. The first of these wounds was to the left side of his back. The knife entered the right chest cavity, penetrated his diaphragm and went into his liver. A second wound cut through SrA AS's backbone at the thoracic vertebrae and severed his spinal cord. This wound left him instantly paralyzed from his upper waist down. While these two wounds were medically significant, they were not lethal or life-threatening. The final stab wound was to his chest, piercing the front and back of the left ventricle of his heart. This wound was immediately

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lethal and delivered after the previously described paralyzing wound.

JS was stabbed a total of five times, four of which were to her back. One of these wounds was to her left chest cavity, through her diaphragm, and into her spleen, causing her left lung to collapse. A second wound entered the side of her body, going into the abdomen and spleen. A third wound was to her lower back, entering into her kidney and liver. The fourth wound was to the right edge of her back, entering her right chest wall and collapsing her right lung. She also suffered an incised wound to the back, cutting into her sixth, seventh, and eighth ribs. Her final stab wound was located beneath her right armpit, piercing the soft tissue of her breast and entering her chest cavity.

The court-martial convicted the appellant of all the charges and specifications, and findings of guilty of the premeditated murders of SrA AS and JS were announced as unanimous. A sentencing hearing was conducted pursuant to Rule for Courts-Martial (R.C.M.) 1004, after which the court-martial, by unanimous vote, sentenced the appellant to a dishonorable discharge, forfeiture of all pay and allowances, and to be put to death.

Additional relevant facts are set out below in connection with specific issues.

II.

Findings Issues

We begin our analysis by addressing the various issues the appellant has raised related to the findings portion of the case.

A. Qualifications of Trial Defense Counsel

As a preliminary issue, the appellant argues that his three trial defense counsel were...

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3 practice notes
  • 73 M.J. 738 (A.F.Crim.App. 2014), ACM 36785, United States v. Witt
    • United States
    • Federal Cases Military Appeals
    • June 30, 2014
    ...ordering the record of trial to be returned to The Judge Advocate General for remand to the convening authority. United States v. Witt, 72 M.J. 727 (A.F. Ct. Crim. App. 2013). Following our decision, the Government motioned the Court, inter alia, for reconsideration and reconsideration en b......
  • 73 M.J. 718 (A.F.Crim.App. 2014), ACM 38138, United States v. Cron
    • United States
    • Federal Cases Military Appeals
    • June 27, 2014
    ...Col Don Christensen had detailed himself as trial counsel. The military judge previously served as trial counsel in United States v. Witt, 72 M.J. 727, 742 (A.F. Ct. Crim. App. 2013) (petition for reconsideration granted), an unrelated court-martial for murder tried in October 2005. At the ......
  • 75 M.J. 380 (U.S.Armed forces 2016), 15-0260, United States v. Witt
    • United States
    • July 19, 2016
    ...counsel constitutionally ineffective for failing to investigate certain mitigating evidence. United States v. Witt ( Witt I), 72 M.J. 727, 758-66 (A.F. Ct. Crim. App. 2013) (en banc). The Government moved for reconsideration and reconsideration en banc, which was gr......
3 cases
  • 73 M.J. 738 (A.F.Crim.App. 2014), ACM 36785, United States v. Witt
    • United States
    • Federal Cases Military Appeals
    • June 30, 2014
    ...ordering the record of trial to be returned to The Judge Advocate General for remand to the convening authority. United States v. Witt, 72 M.J. 727 (A.F. Ct. Crim. App. 2013). Following our decision, the Government motioned the Court, inter alia, for reconsideration and reconsideration en b......
  • 73 M.J. 718 (A.F.Crim.App. 2014), ACM 38138, United States v. Cron
    • United States
    • Federal Cases Military Appeals
    • June 27, 2014
    ...Col Don Christensen had detailed himself as trial counsel. The military judge previously served as trial counsel in United States v. Witt, 72 M.J. 727, 742 (A.F. Ct. Crim. App. 2013) (petition for reconsideration granted), an unrelated court-martial for murder tried in October 2005. At the ......
  • 75 M.J. 380 (U.S.Armed forces 2016), 15-0260, United States v. Witt
    • United States
    • July 19, 2016
    ...counsel constitutionally ineffective for failing to investigate certain mitigating evidence. United States v. Witt ( Witt I), 72 M.J. 727, 758-66 (A.F. Ct. Crim. App. 2013) (en banc). The Government moved for reconsideration and reconsideration en banc, which was gr......

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