73 M.J. 738 (A.F.Crim.App. 2014), ACM 36785, United States v. Witt

Docket NºACM 36785 (recon)
Citation73 M.J. 738
Opinion JudgeMARKSTEINER, Senior Judge:
Party NameUNITED STATES v. Senior Airman ANDREW P. WITT, United States Air Force
AttorneyAppellate Counsel for the Appellant: Dwight H. Sullivan, Esquire (argued); Major Daniel E.Schoeni (argued); Colonel Nikki A. Hall; Lieutenant Colonel Shannon A. Bennett; Major Michael A. Burnat; Major Timothy M. Cox; Major Michael S. Kerr; Major Matthew T. King; Major Nicholas W. McCue; and Capta...
Judge PanelHELGET, HARNEY, SARAGOSA, MARKSTEINER, MITCHELL, and PELOQUIN, Appellate Military Judges. MARKSTEINER, S.J., delivered the opinion of the Court, in which HELGET, C.J.,[1] and HARNEY, S.J., join. MITCHELL, J., filed an opinion concurring dubitante. SARAGOSA, J., with whom PELOQUIN, J.,[2] joins, f...
Case DateJune 30, 2014
CourtMilitary Appeals

Page 738

73 M.J. 738 (A.F.Crim.App. 2014)

UNITED STATES

v.

Senior Airman ANDREW P. WITT, United States Air Force

ACM 36785 (recon)

United States Air Force Court of Criminal Appeals

June 30, 2014

Page 739

[Copyrighted Material Omitted]

Page 740

[Copyrighted Material Omitted]

Page 741

[Copyrighted Material Omitted]

Page 742

[Copyrighted Material Omitted]

Page 743

[Copyrighted Material Omitted]

Page 744

[Copyrighted Material Omitted]

Page 745

[Copyrighted Material Omitted]

Page 746

[Copyrighted Material Omitted]

Page 747

[Copyrighted Material Omitted]

Page 748

[Copyrighted Material Omitted]

Page 749

[Copyrighted Material Omitted]

Page 750

[Copyrighted Material Omitted]

Page 751

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.

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

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

HELGET, HARNEY, SARAGOSA, MARKSTEINER, MITCHELL, and PELOQUIN, Appellate Military Judges. MARKSTEINER, S.J., delivered the opinion of the Court, in which HELGET, C.J.,1 and HARNEY, S.J., join. MITCHELL, J., filed an opinion concurring dubitante. SARAGOSA, J., with whom PELOQUIN, J.,2 joins, filed an opinion concurring in part and dissenting in part. PELOQUIN, J., filed an opinion concurring in part and dissenting in part.

OPINION

Page 752

EN BANC

OPINION OF THE COURT UPON RECONSIDERATION

MARKSTEINER, Senior Judge: 3

Page 753

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 89 issues which relate to the findings of guilty, the sentence, post-trial processing, and other miscellaneous systemic errors. In a previous decision, this Court affirmed the findings but set aside the sentence, 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 banc, opposed by the appellant. On 21 October 2013, we granted the Government's motion, vacating our previous opinion, and on 28 January 2014 heard oral argument on a specified issue relating to three of the appellant's ineffective assistance of counsel claims.

For the reasons set forth below, we now affirm the approved findings and sentence.

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. SrA 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 on the evening of 3 July 2004, when the appellant was a guest at her home, the appellant had made a sexual advance toward her. 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 Robins Air Force Base, Georgia, arriving at approximately 0315. He would later write in a statement to the Air Force Office of Special Investigations (AFOSI) that he wore his BDU because he " wanted to observe them unseen to see what was going on." He also told his roommate he wore the BDU 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 JS 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.

After arriving on base, the appellant parked his car in base housing about 50 yards from SrA JK's residence. From there, he went to the residence and observed SrA JK, SrA AS, and JS 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

Page 754

kick [his] ass." SrA JK responded with words to the effect of, " You need your ass kicked."

At approximately 0400 hours, SrA JK, SrA AS, 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 was 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, and a scuffle ensued between them. SrA JK came in and tried to get the appellant off of SrA AS by putting him in a headlock. The appellant took out his knife and stabbed SrA JK in the chest. As SrA JK backed up, JS screamed, " Oh my God, you're bleeding!" The appellant stabbed SrA AS, who " fell to the floor," as one of the wounds rendered SrA AS paralyzed from the upper waist down. JS fled to a bedroom where she locked herself in. SrA JK attempted to run out of the house through a kitchen door, but as he struggled with a deadbolt the appellant stabbed him again. SrA JK was eventually able to get outside, where he ran for " the first house [he] could see that had a light on." SrA JK ultimately reached the neighbor's home, bleeding profusely, and the neighbor called for help.

Not wanting " to leave any evidence," the appellant returned to SrA AS's house and found SrA AS on the phone with 911. He went to the bedroom where JS had locked herself in and broke through the door. He found JS in a fetal position and, " scared to leave a witness," he broke her arm and stabbed her multiple times. He then returned to SrA AS, stabbing him in the ribs and the heart.

During the AFOSI's investigation, the appellant led the special agents 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 four times and sustained a laceration to his arm. Three of these stab wounds were 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 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...

To continue reading

Request your trial
1 practice notes
  • 75 M.J. 380 (U.S.Armed forces 2016), 15-0260, United States v. Witt
    • United States
    • July 19, 2016
    ...The Government moved for reconsideration and reconsideration en banc, which was granted. United States v. Witt ( Witt II), 73 M.J. 738, 753 (A.F. Ct. Crim. App. 2014) (recon) (en banc). On reconsideration, the CCA held that the trial defense counsel's defective perf......
1 cases
  • 75 M.J. 380 (U.S.Armed forces 2016), 15-0260, United States v. Witt
    • United States
    • July 19, 2016
    ...The Government moved for reconsideration and reconsideration en banc, which was granted. United States v. Witt ( Witt II), 73 M.J. 738, 753 (A.F. Ct. Crim. App. 2014) (recon) (en banc). On reconsideration, the CCA held that the trial defense counsel's defective perf......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT