He was a private at Fort Hood, Texas at the time of the murders. The executions of Loving and Ronald A. Gray would be the first by the U.S. military since 1961.

The murders

Loving was an Army private stationed at Fort Hood, Texas. On the night of December 11, 1988, he committed two armed robberies of convenience stores, netting less than $100. He then decided to rob some cab drivers.

On December 12, during the course of those robberies, Loving murdered two taxicab drivers and attempted to murder a third.

The court-martial evidence, which included Loving's undisputed videotaped confession, established the following facts: the first robbery and murder victim, Pvt. Christopher Fay, was an active duty soldier working for extra money as a cab driver.

At approximately 8:00 p.m. on December 12, Fay drove Loving from Killeen, Texas, to a secluded area of Fort Hood, where Loving robbed him at gunpoint. After taking Fay's money, Loving shot Kay in the back of the head.

While watching blood "gushing out" of Fay's head, Loving shot him in the back of the head a second time. Fay's dead body was discovered by another soldier at Fort Hood a short while later.

Loving, after fleeing to his Fort Hood barracks, called for a second cab at 8:15 that same evening. The second cab, driven by retired Army Sergeant Bobby Sharbino, drove Loving from Fort Hood to a secluded street in Killeen, Texas.

Loving then robbed Sharbino at gunpoint, ordered him to lie down on the seat, and murdered him by shooting him in the head.

Subsequent events

After the second murder, Loving socialized with his girlfriend and others at local nightclubs. Later that evening, he robbed and attempted to murder a third cab driver. The cab driver successfully defended himself, but Loving escaped on foot.

The next day, Loving was arrested by Army investigators and made a videotaped confession; he later reviewed and signed a written transcript of the confession.

Wikipedia.org

United States Court of Appeals for the Armed Forces

No. 96-8022

GIERKE, Judge:

A general court-martial convicted appellant, contrary to his pleas, of premeditated murder, felony murder, attempted murder, and robbery (5 specifications), in violation of Articles 118, 80, and 122, Uniform Code of Military Justice, 10 USC §§ 918, 880, and 922, respectively. The court-martial sentenced appellant to a dishonorable discharge, total forfeitures, and to be put to death. On direct appeal appellant raised 70 issues. After specifically addressing each issue, our Court affirmed the decision of the Court of Military Review, which had affirmed the findings and sentence. 41 MJ 213, 229 (1994), modified on reconsideration, 42 MJ 109 (1995). The Supreme Court affirmed our decision. 116 S.Ct. 1737 (1996).

After the Supreme Court’s decision, appellant filed a petition for extraordinary relief in the nature of a writ of mandamus with the Court of Criminal Appeals, electing to raise only one issue: that he was entitled to extraordinary relief because his death sentence was based in part on a conviction of felony murder that was unsupported by a unanimous finding of intent to kill or reckless indifference to human life. The Court of Criminal Appeals summarily denied relief in an unpublished order dated September 9, 1996. Appellant then filed a writ-appeal petition with this Court, which we granted on November 5, 1996, and set the petition for oral argument. For the reasons set out below, we affirm the decision of the Court of Criminal Appeals denying the petition for extraordinary relief.

At appellant’s court-martial the members unanimously found that the following three aggravating factors were proved beyond a reasonable doubt:

41 MJ at 301. In accordance with RCM 1004(b)(4)(C), Manual for Courts-Martial, United States (1995 ed.), the members also unanimously found that any extenuating and mitigating circumstances were substantially outweighed by any aggravating circumstances. 41 MJ at 302.

In our direct review of this case, we agreed with the Court of Military Review’s conclusion that the number of aggravating factors did not affect the decision of the court-martial to impose the death sentence. 41 MJ at 268.

During oral argument before the Supreme Court, Justice Scalia questioned the constitutional validity of Article 118(4) because it is punishable by death but does not require an intent to kill. Tr. Oral Arg. at 8-14. In its decision, the Supreme Court said:

116 S.Ct. at 1742.

Appellant now argues that felony murder under Article 118(4) is constitutionally infirm as a capital offense because it does not require an intent to kill. He argues further that the second aggravating factor -- that he was the actual perpetrator of the killing in the felony murder of Mr. Fay -- is constitutionally defective, because it is unsupported by a unanimous finding of intent to kill or reckless indifference to the value of human life. He argues that the errors were prejudicial because the court members were told that there were two death-eligible offenses when in fact there was only one and that there were three aggravating factors when there were only two. Defense Reply at 8. Appellant asks our Court for "a writ of habeas corpus or other appropriate extraordinary relief setting aside the death penalty . . . and ordering" a sentencing rehearing. Writ-Appeal Petition at 5.

This Court has jurisdiction to act on appellant’s petition for extraordinary relief and to issue a writ under the All Writs Act, 28 USC §1651(a). See Noyd v. Bond, 395 U.S. 683, 695 n. 7 (1969); Dettinger v. United States, 7 MJ 216 (1979); United States v. Frischholz, 16 USCMA 150, 152, 36 CMR 306, 308 (1966).

The aggravating factor at issue in appellant’s case is the so-called "triggerman" factor. The version in effect at the time of appellant’s trial read as follows: "That only in the case of a violation of Article 118(4), the accused was the actual perpetrator of the killing." RCM 1004(c)(8), Manual for Courts-Martial, United States, 1984 (Change 2, 1986). The members specifically found that appellant was the "actual perpetrator of the killing." 41 MJ at 301.

When analyzing an appellant’s assertion that an aggravating factor is invalid, "it is essential to keep in mind the sense in which . . . [it] is ‘invalid.’" Zant v. Stephens, 462 U.S. 862, 885 (1983). Some Supreme Court decisions on "invalid" aggravating factors involve procedural or evidentiary errors resulting in erroneous admission of aggravating evidence or exclusion of mitigating evidence. See, e.g., Tuggle v. Netherland, 116 S.Ct. 283 (1995) (defendant erroneously denied expert assistance to rebut psychiatric evidence of future dangerousness). In this writ appeal appellant does not assert that inadmissible evidence was considered on sentencing or that mitigating evidence was erroneously excluded.

Some Supreme Court cases involve aggravating factors that are too vague. See, e.g., Maynard v. Cartwright, 486 U.S. 356 (1988) ("especially heinous, atrocious, or cruel" aggravating circumstance too vague). Appellant does not assert that the "actual perpetrator" factor is too vague.

Instead, appellant asserts that the term, "actual perpetrator of the killing," is too broad and thus fails to "genuinely narrow the class of persons eligible for the death penalty." Writ-Appeal Petition at 7, 12; see Zant, 462 U.S. at 877; see also Godfrey v. Georgia, 446 U.S. 420, 428-29 (1980) (phrase "outrageously or wantonly vile, horrible or inhuman" too broad "because a person of ordinary sensibility could find that almost every murder fit the stated criteria"). Quoting the Ninth Circuit in United States v. Cheely, 36 F.3d 1439, 1443 n. 9 (1994), he argues that "[t]he least culpable mental state the Supreme Court has held death-eligible is reckless indifference to human life during commission of a felony." Writ-Appeal Petition at 8.

In assessing the impact of a factor alleged to be invalid, it is necessary to determine where in the sentencing process the alleged error occurred. We recognized in our direct review of this case that the various jurisdictions where capital punishment is authorized fall into two general categories: "weighing" and "nonweighing" jurisdictions. We explained:

41 MJ at 248 (RCM 1004 combines procedures of weighing and nonweighing jurisdictions).

The military capital sentencing procedure set out in RCM 1004 and 1006 establishes four "gates" to narrow the class of death-eligible offenders. The first two gates parallel nonweighing jurisdictions in that the members must convict by unanimous vote (RCM 1004(a)(2)) and then find at least one aggravating factor by unanimous vote (RCM 1004(b)(4)(A)). Only after these two gates are passed does the weighing process begin. The third gate is a "weighing" gate, where the members must all "concur" that extenuating and "mitigating circumstances are substantially outweighed by any aggravating circumstances," including the aggravating factors under RCM 1004(c). See RCM 1004(b)(4)(C). Only after these three gates are passed does an accused become "death eligible."

The fourth and final gate is the sentencing decision itself under RCM 1006. Even if all members concur that extenuating and mitigating circumstances are substantially outweighed by aggravating circumstances, they must separately consider whether to impose the death sentence. A death sentence requires the unanimous vote of all members. RCM 1006(d)(4)(A).

The pivotal issue in this case is whether there was any error at the second gate, in connection with the court-martial’s finding with respect to the second aggravating factor: that appellant was "the actual perpetrator of the killing." Accordingly, we first consider whether there was any error at this gate and then evaluate whether any error tainted the death sentence.

Several general principles guide us in determining whether capital sentencing procedures pass constitutional muster. First, sentencing standards "must genuinely narrow the class of persons eligible for the death penalty." Second, the standards "must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder." Zant, 462 U.S. at 877; see also Tuilaepa v. California, 512 U.S. 967, 972, 114 S.Ct. 2630, 2635 (1994); Arave v. Creech, 507 U.S. 463, 474, 113 S.Ct. 1534, 1542 (1993). Third, the standards must provide "reliability in the determination that death is the appropriate punishment." Zant, supra at 884-85. Finally, in order to ensure reliability, the process must "make rationally reviewable the process for imposing a sentence of death." Tuilaepa, 512 U.S. at 973, 114 S.Ct. at 2635, quoting Arave, 507 U.S. at 471, 113 S.Ct. at 1540. In most cases, the requirement that the process be "rationally reviewable" is satisfied by requiring specific answers to questions "with a factual nexus to the crime or the defendant." 512 U.S. at 973, 114 S.Ct. at 2635.

Stringer v. Black, 503 U.S. 222, 232 (1992), held that when the weighing process is "skewed" by consideration of an invalid factor, "only constitutional harmless-error analysis or reweighing at the trial or appellate level suffices to guarantee that the defendant received an individualized sentence."

Clemons v. Mississippi, 494 U.S. 738, 754 (1990), held that appellate reweighing or harmless-error analysis is constitutionally permissible, unless "peculiarities in a case make appellate reweighing or harmless-error analysis extremely speculative or impossible." Although Clemons held that appellate reweighing is constitutionally permissible, whether a specific appellate court has authority to reweigh is determined by the law of the jurisdiction. After Clemons was remanded to the Mississippi Supreme Court, that court decided that it did not have authority to reweigh. 593 So. 2d 1004 (1992); see also Reeves v. Hopkins, 871 F. Supp. 1182, 1195 (D.Neb. 1994) (appellate resentencing constitutionally permitted but may be done only if state law permits it), rev’d in part, 76 F.3d 1424, 1427 (8^th Cir. 1996).

Enmund v. Florida, 458 U.S. 782, 796-97 (1982), held that the Eighth Amendment was violated by imposition of the death penalty on a person who aided and abetted a felony murder by driving the getaway car in a robbery, but who did not himself kill or intend to kill. Enmund held that a death sentence under those circumstances was excessive and disproportionate.

Tison v. Arizona, 481 U.S. 137, 158 (1987), held that the culpability requirement imposed by Enmund could be satisfied by "major participation in the felony committed, combined with reckless indifference to human life." In Tison the trial court had specifically found that the defendant’s participation in the felony murder was "substantial" but made no specific finding that the defendant exhibited reckless indifference to human life. The Supreme Court remanded the case for a specific finding of the latter.

Justice O’Connor, writing for the five Justices in the Tison majority, placed Enmund at the low end of the spectrum of culpability. 481 U.S. at 149. Justice O’Connor observed that the Court in Enmund also "dealt with the other polar case: the felony murderer who actually killed, attempted to kill, or intended to kill." She stated that the Court in Enmund "clearly held that the equally small number of jurisdictions that limited the death penalty to these circumstances [actually killed, attempted to kill, or intended to kill] could continue to exact it." 481 U.S. at 150.

Notwithstanding Justice O’Connor’s description of the Enmund holding, the Court’s holding in Tison is limited to the question whether "major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement." The Court declined "to precisely delineate the particular types of conduct and states of mind warranting imposition of the death penalty here." 481 U.S. at 158.

Neither Enmund nor Tison involved an actual killer. Thus, left unanswered after Enmund and Tison is the question whether a person who "actually killed" may be sentenced to death absent a finding that the person intended to kill. As highlighted by Justice Scalia in the Loving oral argument, the phrase "actually killed" could include an accused who accidentally killed someone during commission of a felony, unless the term is limited to situations where the accused intended to kill or acted with reckless indifference to human life.

We note that Justice White, who wrote the majority opinion in Enmund and joined the majority opinion in Tison, had earlier written separately in Lockett v. Ohio, 438 U.S. 586 (1978), expressing his view that "it violates the Eighth Amendment to impose the penalty of death without a finding that the defendant possessed a purpose to cause the death of the victim." 438 U.S. at 624. Without speculating on the views of the current membership of the Supreme Court, we conclude that when Enmund and Tison were decided, a majority of the Supreme Court was unwilling to affirm a death sentence for felony murder unless it was supported by a finding of culpability based on an intentional killing or substantial participation in a felony combined with reckless indifference to human life. Thus, we conclude that the phrase, "actually killed," as used in Enmund and Tison, must be construed to mean a person who intentionally kills, or substantially participates in a felony and exhibits reckless indifference to human life.

The version of RCM 1004(c)(8) in effect at the time of trial contained the phrase, "actual perpetrator of the killing." According to the 1991 amendment to the Drafters’ Analysis of this Rule, it was based on the Supreme Court’s holding in Enmund. See Manual, supra (1995 ed.) at A21-73. RCM 1004(c)(8) had been amended in 1991, after appellant’s trial, to cover persons other than the one who "actually killed" and to incorporate the Supreme Court’s decision in Tison. Drafters’ Analysis, supra.

The requirement of Zant, 462 U.S. at 877, to "genuinely narrow the class of persons eligible for the death penalty" is met in felony-murder cases only if there is a rational connection between the level of culpability and the narrowing process. In short, only the most culpable should be death eligible. When Congress enacted Article 118, it made a legislative determination that only premeditated murder under Article 118(1) and felony-murder under Article 118(4) are punishable by death. However, unpremeditated murder under Article 118(2), which includes intentional killings, is not punishable by death. Thus, unless we interpret Article 118(4) to apply only to cases involving intentional killing or reckless indifference to human life, we create the anomaly of the accidental killer being death eligible under Article 118(4) but the intentional killer not being death eligible under Article 118(2).

This interpretation would allow the death penalty for the person who unintentionally kills by firing through the ceiling during a robbery in an effort to scare the victim or someone whose intended victim dies of a heart attack during a robbery, but it would not permit the death penalty for a person who, without premeditation, intentionally kills. We believe that such an interpretation of Article 118 and the aggravating factors under RCM 1004 would violate Zant’s requirement that the aggravating factor "reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder." 462 U.S. at 877.

Based on the foregoing analysis, we conclude that felony-murder under Article 118(4) can pass constitutional muster as a capital offense only if it is combined with an aggravating factor sufficient to satisfy the narrowing requirement of Zant v. Stephens, supra, and culpability requirements of Enmund and Tison. Although Enmund and Tison were decided on the basis of proportionality and did not decide the validity of an aggravating factor, the culpability requirement is part and parcel of the narrowing process required by Zant in felony-murder cases.

In Godfrey v. Georgia, 446 U.S. 420 (1980), a plurality of the Supreme Court suggested that an otherwise overly broad aggravating factor can be made constitutionally acceptable if state courts apply a constitutionally sufficient interpretation and narrow the factor by appropriate jury instructions. Id. at 429-32. An aggravating factor passes the constitutional-vagueness test "if it has some ‘common-sense’ core of meaning . . . that criminal juries should be capable of understanding.’" Tuilaepa, 512 U.S. at 973, 114 S.Ct. at 2636. Thus, we hold that the aggravating factor in RCM 1004(c)(8) -- that appellant was the "actual perpetrator of the killing" -- is constitutionally valid on its face, provided that it is understood to be limited to a person who kills intentionally or acts with reckless indifference to human life.

In appellant’s case the court members unanimously found that appellant was the "actual perpetrator of the killing." For the reasons set out below, we are satisfied that in this case the court members understood the term to mean an intentional killing.

The issue is before us in this case because the military judge did not define the term "actual perpetrator of the killing." Defense counsel did not request that he do so or object to the lack of definition. Thus, we must determine whether there was a deficiency in the military judge’s instructions that undermines the validity of the finding that appellant was the "actual perpetrator of the killing." We hold that the military judge’s failure to define the term was not error under the particular facts of this case.

Neither the aggravating factors nor the Enmund/Tison culpability requirement are elements of the offense. See Walton v. Arizona, 497 U.S. 639, 648-49 (1990). Thus, definition of the term, "actual perpetrator of the killing," was not a required instruction unless it was "necessary" under RCM 920(e)(7), which requires "[s]uch other explanations, descriptions, or directions as may be necessary and which are properly requested by a party or which the military judge determines, sua sponte, should be given." Under RCM 920(f), "[f]ailure to object . . . to omission of an instruction . . . constitutes waiver . . . in the absence of plain error." We need not decide whether waiver or plain error applies to this case, because we hold that the military judge’s failure to define "actual perpetrator of the killing" was not error under the particular facts of this case.

The overwhelming and uncontested evidence established that appellant, acting alone, personally and intentionally killed Mr. Fay. The defense did not assert that appellant shot Mr. Fay accidentally or unintentionally. The Court of Military Review described the killing of Mr. Fay as follows:

34 MJ at 959. In our direct review of this case, we described the facts similarly:

41 MJ at 229.

Under these facts, there is no reasonable possibility that the court members understood the term "actual perpetrator of the killing" to mean anything other than an intentional killing. A reasonable factfinder at either the trial or appellate level could come to no other conclusion, because there simply was no issue of fact to be resolved. The issue of an accidental or unintentional killing was not raised. Thus, we hold that no clarifying instruction was required. See United States v. Ferguson, 15 MJ 12, 19-21 (CMA 1983) (defense of accident not raised by the evidence).

Even assuming arguendo that an instruction defining "actual perpetrator of the killing" should have been given, we are satisfied that such a deficiency was harmless beyond a reasonable doubt because it could not possibly have affected the court-martial’s finding of the aggravating factor. See People v. Osband, 919 P.2d 640, 678 (Cal. 1996) (error in failing to instruct jury that special circumstance includes an intent to kill was "harmless when ‘the evidence of defendant’s intent to kill . . . was overwhelming, and the jury could have had no reasonable doubt on that matter.’"); State v. Breedlove, 655 So. 2d 74, 76-77 (Fla. 1995) (instructional error harmless where "aggravator clearly existed and would have been found even if the requested instruction had been given").

In an appropriate case we could remand to the Court of Criminal Appeals for a specific finding of culpability, as the Supreme Court did in Tison. See Cabana v. Bullock, 474 U.S. 376, 392 (1986) (state appellate court may make culpability finding required by Enmund). In view of the complete absence of any factual issue on this matter, and our conclusion that any instructional deficiency was harmless beyond a reasonable doubt, no remand is required.

Finally, assuming arguendo that there was a deficiency in the military judge’s instructions regarding the "actual-perpetrator" factor, we are satisfied beyond a reasonable doubt that any such deficiency did not affect the sentencing process. The issue with respect to the "actual-perpetrator" factor arose at the second gate of determining "death eligibility," before the weighing process began. When there is a defective aggravating factor in the "nonweighing" phase of the sentencing process, the error does not require reversal where there is at least one other valid aggravating factor. As the Supreme Court held in Stringer, 503 U.S. at 232, 112 S.Ct. at 1137: "[S]o long as the sentencing body finds at least one valid aggravating factor, the fact that it also finds an invalid aggravating factor does not infect the formal process of deciding whether death is an appropriate penalty." Because at least one other valid aggravating factor was found in this case, we hold that any instructional deficiency concerning the "actual-perpetrator" factor did not affect the nonweighing phase of the sentencing process.

We turn next to the weighing phase of appellant’s sentencing. The Supreme Court set the standard of review in Stringer v. Black, supra, as follows:

503 U.S. at 232, 112 S.Ct at 1137.

For the reasons set out below, we hold that no appellate reweighing is required because the error was harmless beyond a reasonable doubt. Thus, we do not reach the question whether this Court or a Court of Criminal Appeals has the legal authority to reweigh.

Harmless-error analysis necessarily requires review of the entire record, including examination of the aggravating circumstances (including the aggravating factors) and mitigating circumstances that were presented to the sentencing authority. Even if the court-martial's finding regarding the "actual-perpetrator" factor was defective, appellant's role as the "actual perpetrator of the killing" was properly considered by the members as an aggravating circumstance. See RCM 1004(b)(4)(C). In effect, any error resulted only in the triggerman circumstance being mislabeled as a factor, but the facts and circumstances were properly in the balance and were unchanged. Thus, any defect in the court-martial's finding concerning the "actual-perpetrator" factor did not put a "thumb" on "death’s side of the scale" because the same facts and circumstances remained on the same sides of the scale. Stringer, supra at 232. While in some circumstances a change of labels may change the weight to be given to evidence, we are satisfied that changing appellant’s role as the "actual perpetrator" from a "factor" to a "circumstance" neither adds to nor detracts from its weight. Since the balance of aggravating and mitigating circumstances was unchanged, we are satisfied beyond a reasonable doubt that any error was harmless, because any mislabeling could have had no impact on the court members’ decision to impose the death sentence. See Zant, 462 U.S. at 888-89 (mislabeling aggravating circumstance as a "statutory" circumstance had an "inconsequential impact" on sentencing where evidence was otherwise admissible and jury was instructed to consider all facts and circumstances in extenuation, mitigation, and aggravation); see also Hampton v. Page, 103 F. 3d 1338, 1345 (7^th Cir. 1997) (mislabeling nonstatutory aggravator as statutory harmless; sentencer "free . . .to consider the conduct, regardless of how it was labeled").

Appellant argues, however, that the error is not harmless beyond a reasonable doubt because we cannot be sure that the members were not influenced by the fact that appellant was being sentenced for two capital offenses instead of one and the presence of three aggravating factors instead of two. For the reasons set out above, we hold that appellant was convicted of a capital felony-murder that satisfies the proportionality requirements of Enmund and Tison. We further hold that the "actual-perpetrator" factor in RCM 1004(c)(8) is facially valid and was applied in a constitutionally permissible manner in this case. Thus, to the extent that number of offenses and aggravating factors influenced the sentencing decision, we hold that the court members properly considered two capital offenses and three aggravating factors.

Finally, even if we assume arguendo that there is some deficiency in the findings based on the military judge’s failure to define the term, "actual perpetrator of the killing," we are satisfied beyond a reasonable doubt that appellant’s sentence was not affected by numerical counting of offenses, factors, or circumstances. See Loving, 41 MJ at 268. The only identification of capital offenses occurred during the military judge’s procedural instructions for voting on findings. Although special findings were required on the three aggravating factors submitted by the prosecution, the entire emphasis by counsel for both sides during the sentencing proceedings was on the facts and circumstances of the offenses and the background of appellant, not on the number of capital offenses or aggravating factors. Neither counsel made reference to the number of capital offenses or aggravating factors in their sentencing arguments. Although the military judge instructed the members that they must find at least one aggravating factor, the military judge’s identification of capital offenses was so minimal that appellant assigned as error on direct review the failure of the military judge to identify which offenses were capital offenses. See 41 MJ at 252; see also Davis v. Executive Director of Department of Corrections, 100 F.3d 750, 774 (10^th Cir. 1996) (examines judge’s instructions to determine if number of aggravating factors affected sentence); White v. Singletary, 972 F.2d 1218, 1226-27 (11^th Cir. 1992) (upholding state’s harmless-error analysis after two of four aggravating factors held invalid); Jackson v. State, 498 So. 2d 406, 411 (Fla. 1986) (double counting of aggravating factors harmless; "sentencing statute requires a weighing rather than a mere tabulation of factors in aggravation and mitigation"). Accordingly, we are satisfied beyond a reasonable doubt that the number of capital offenses and number of aggravating factors had no impact on the sentencing deliberations and that the mislabeling of the triggerman circumstance as a "factor" was likewise harmless beyond a reasonable doubt.

The decision of the United States Army Court of Criminal Appeals denying the petition for extraordinary relief is affirmed.

Chief Judge COX and Judge CRAWFORD concur.

The majority opinion is close to the right path and is walking basically in the right direction in this case. Generally, I agree with that opinion’s analysis and conclusion that any error in use of RCM 1004(c)(8), Manual for Courts-Martial, United States, 1984, as an aggravating factor in this case was harmless beyond a reasonable doubt. Stringer v. Black, 503 U.S. 222, 232, 112 S.Ct. 1130, 1137 (1992); United States v. Loving, 41 MJ 213, 268 (1994); but cf. United States v. Curtis, 32 MJ 252, 270 (CMA 1991)(remand to lower appellate court to consider effect of invalid aggravating factor); United States v. McCullah, 76 F.3d 1087, 1111-12 (10^th Cir. 1996). Nevertheless, I would also hold that RCM 1004(c)(8) ("actual perpertrator [sic] of the killing") is a valid aggravating factor which permits imposition of the death penalty for felony murder in this case. Curtis, supra at 265; Calhoun v. State, 468 A.2d 45, 74 (Md. 1983). 

I can find no provision in the Manual for Courts-Martial, United States, 1984, in effect at the time of appellant’s trial, which is designated RCM 1004(c)(7)(B)(2). However, the so-called "triggerman" aggravating factor which he challenges is found in RCM 1004(c)(8), Manual, supra. In pertinent part, RCM 1004 stated at the time of trial: 

In addition, the members made a unanimous finding beyond a reasonable doubt based on overwhelming evidence in the record that appellant actually perpetrated the killing of Christopher Fay during the felony. See Brooks v. State, 655 A.2d 1311, 1323 (Md. App. 1995); People v. Anderson, 742 P.2d 1306, 1326-27 (Cal. 1987)(Enmund and progeny hold that Eighth Amendment not violated if person sentenced to death "in fact killed" (emphasis added)). I see no violation of Enmund and its progeny in these circumstances. See Tison v. Arizona, 481 U.S. 137, 158 (1987)("Only a small minority of those jurisdictions imposing capital punishment for felony murder have rejected the possibility of a capital sentence absent an intent to kill, and we do not find this minority position constitutionally required."). Finally, the evidence in this case overwhelmingly established appellant’s intent to kill Christopher Fay. See Walter v. Arizona, 497 U.S. 639, 648-49 (1990) ("Cabana held that an appellate court could constitutionally make the Enmund v. Florida . . . finding-- that the defendant killed, attempted to kill, or intended to kill-- in the first instance.").  

Appellant, nonetheless, attacks his death penalty on the procedural grounds that the President, in establishing the "triggerman" aggravating factor, did "not narrow the death-eligible class in a way consistent with our cases." Loving, supra at 1742; see Writ Appeal Petition at 1. He contends that the "actual-perpetrator" aggravator in RCM 1004(c)(8) ("That only in the case of a violation of Article 118(4), the accused was the actual perpetrator of the killing"[.]) is legally insufficient to impose death as a penalty. See Tuilaepa v. California, 512 U.S. 967, 971, 114 S.Ct. 2630, 2634 (1994) ("To be eligible for the death penalty, the defendant must be convicted of a crime for which the death penalty is a proportionate punishment."). He argues that it is invalid because it still "permits death to be imposed for felony murder even if the accused had no intent to kill." Loving, supra at 1742; see United States v. Cheely, 36 F.3d 1439, 1443 n.9 (9^th Cir. 1994) ("The least culpable mental state the Supreme Court has held death-eligible is reckless indifference to human life during commission of a felony."). 

Three commissioned officers of the United States Army who served as members of appellant's court-martial panel have executed sworn affidavits describing the sentencing procedures used in this case. Each of the affidavits describes circumstances that constitute significant violations of procedures designed to ensure fairness in capital sentencing by precluding the proceedings from being infected by unlawful command influence. The affidavits do not reflect any juror remorse over imposition of the death penalty, and nothing in the record indicates that any of these officers had a motive to fabricate. Each officer set forth in neutral terms his recollection of the sentencing process. See 41 MJ at 331-33. The majority, however, has refused to permit any inquiry into the voting procedures used to impose the death penalty in this case.

In civilian life, there are few rules that govern the conduct of jury proceedings. In contrast, the Uniform Code of Military Justice and the Manual for Courts-Martial provide detailed guidance governing the proceedings of court-martial panels and reflect longstanding military practice. All voting is by secret written ballot. Art. 51(a), Uniform Code of Military Justice, 10 USC § 851(a). A proposed sentence, which may be recommended by any member, must "be in writing" and "contain the complete sentence" proposal. RCM 1006(c), Manual for Courts-Martial, United States (1995 ed.). "All members . . . vote on each proposed sentence in its entirety," and the members vote first on the least severe sentence. RCM 1006(d)(3)(A). If the least severe proposed sentence is not adopted, the members then vote on "the next least severe," and this process continues "until a sentence is adopted." Id. The ballots are counted by the junior member of the panel. RCM 1006(d)(3)(B). A sentence is adopted when it has the votes of two-thirds of the members, except that confinement for life or more than 10 years requires the votes of three-fourths of the members, and a death sentence requires a unanimous vote. Art. 52(b), UCMJ, 10 USC § 852(b); RCM 1006(d)(4). After a sentence has been adopted, the members may not reconsider the sentence unless they have been instructed by the military judge on the procedures for reconsideration and they agree by secret written ballot to reconsider the sentence. RCM 1009(d), Manual for Courts-Martial, United States (1994 ed.).

In Accordino, the Air Force Court of Military Review refused to consider the affidavits, citing civilian precedents holding that jurors are not competent to challenge verdicts based upon internal influences. 15 MJ 825, 834-42 (1983). We expressly rejected reliance on civilian precedents with respect to issues involving unlawful command influence, stating: 

The majority during our previous review of this case cited Tanner v. United States, 483 U.S. 107 (1987), and numerous civilian precedents for the proposition that Fed.R.Evid. 606(b) precludes use of juror testimony to impeach a verdict except for "evidence of extraneous influence." 41 MJ at 236-37. The majority recognized that Mil.R.Evid. 606(b) goes beyond its federal civilian counterpart by also permitting testimony concerning unlawful command influence and cites, but did not attempt to distinguish, our decision in Accordino. 41 MJ at 237.