SULLIVAN, J., delivered the opinion of the Court in which CRAWFORD and GIERKE, JJ., joined. EFFRON, J., filed a dissenting opinion in which COX, C.J., joined.
 

For Appellant: Captain Silas R. Deroma (argued and reargued) and Major Michael A. Egan (reargued); Colonel Stephen D. Smith, Colonel John T. Phelps II, and Captain Christopher W. Royer (on brief); Captain Michael E. Hatch and Captain Michael E. Smith.

For Appellee: Captain John G. Giovannelli (argued) and Major Lyle D. Jentzer and Captain Steven H. Levin (reargued); Colonel John M. Smith, Lieutenant James L. Pohl, Lieutenant Colonel Eva M. Novak, and Captain Michael E. Mulligan (on brief); Colonel Dayton M. Cramer, Major Joseph C. Swetnam, and Captain Glenn L. Kirschner.

Military Judge: Raymond C. McRorie
 

I  Review in favorem vitae-application of (Page 17)

II Unanimous vote and review in favorem vitae by CCA in capital case (Page 18)

III Denial of Petition for New Trial based on organic brain damage (Page 19)

IV Death sentence invalid because panel misinformed about mental condition at time of offenses (Page 25)

V Denial of Psychiatric Expert (Page 29)

VI Failure of DC

(1) to investigate mitigating circumstances (Page 35)

(2) to challenge competence of defense experts (Page 38)

(3) to present an available defense (Page 39)

(4) to present adequate case on sentencing (Page 39)

VIII Denial of Funding by TJAG in this case but not in 2 others - effect of (Page 40)

IX TJAG Policy Memo re funding - validity of (Page 40)

X Use of statements made during state-court guilty-plea inquiry as violating Fifth Amendment (Page 51)

XI Use of those statements as violation of civilian plea agreement (Page 56)

XII CMR treatment of issue regarding use of statements – validity (violation of Article 31) (Page 57)

XIII Failure of counsel to limit use of statements to use in civilian court (Page 58)

XIV Prejudicial pretrial publicity (Page 62)

XV Election of Forum - knowing and intelligent (Page 67)

XVI Denial of investigative assistance (Page 69)

XVII Challenge for cause - MSG McCormick (Page 75)

XVIII Challenge for Cause - CSM Woods (Page 75)

XIX Abuse of military’s peremptory – challenge procedure (Page 77)

XX Failure to comply with Batson rule (Page 78)

XXI Peremptory challenge based on scruples against death penalty (Page 78)

XXII Gruesome photographs (page 86)

XXIII Nondisclosure of exculpatory information (Registered Source) (Page 87)

XXIV Denial of mistrial based on comment on appellant’s silence (Page 95)

XXV Exclusion at sentencing of evidence on appellant’s background (Page 97)

XXVI Multiplicity of larceny and burglary (Page 106)

XXVII Double counting of aggravating factors (Page 107)

XXVIII Instruction on meaning of "substantially outweighed" (Page 113)

XXIX No statement that finding regarding "substantially outweighed" was unanimous (Page 114)

XXX Decision on "substantially outweighed" as requiring finding beyond a reasonable doubt (Page 115)

XXXI No instruction on absolute discretion not to impose death sentence (Page 115)

XXXII Validity of aggravating factor regarding pain and suffering (RCM 1004(c)(7)(I)) (Page 117)

XXXIII Deliberating on sentence during recess (Page 119)

XXXIV Abatement of proceedings because of appellant’s drug overdose (Doxipin) (Page 123)

XXXV Denial of indictment - Fifth Amendment (Page 124)

XXXVI Denial of right to jury trial - Article III (Page 124)

XXXVII Requirement of trial by members in capital case as denial of reliable verdict and due process (Page 125)

XXXVIII Prohibition against guilty plea in capital case - denial of mitigating factor (Page 125)

XXXIX Panel of less than 12 as denial of due process (Page 125)

XL Exclusion of females from panel-selection pool (Page 126)

XLI Exclusion of enlisted members of same unit as injecting improper criterion (enlisted status) for selecting members (Page 126)

XLII Questioning by panel members as denial of impartial jury (Page 129)

XLIII MJ as advocate for Government (Page 130)

XLIV Failure of military counsel to advise appellant of lack of experience or training in capital cases (Page 136)

XLV MJ gave misleading advice as to defense counsels’ qualifications (Page 136)

XLVI Need for minimum standards for defense counsel in capital cases (Page 136)

XLVII Lack of continuity of counsel or of capital-qualified counsel (Page 137)

XLVIII Denial of review by Article III court (Page 142)

XLIX No power of Article I court to review constitutionality of Code or Manual provisions (Page 142)

L Failure to specify which offenses carried death penalty and to instruct that a death sentence could not be imposed based on aggregate effect of all offenses (Page 142)

LI Lack of meaningful distinction between premeditated and unpremeditated murder (Page 144)

LII Sufficiency of murder instructions on distinction between premeditated and unpremeditated murder (Page 145)

LIII Sufficiency of instruction on reasonable doubt (Page 146)

LIV Instructions required vote on most serious offense first (Page 148)

LV Senior member as presiding officer - effect on impartiality of members (Page 150)

LVI Failure to instruct that "substantially outweighed" finding must be unanimous (Page 151)

LVII Military death-penalty scheme as violation of Furman and separation of powers (Page 152)

LVIII Lack of Manual protections against racially motivated imposition of death sentence (Page 153)

LIX Failure to instruct that race could not influence sentencing (Page 153)

LX Denial of equal protection because civilian could not get death sentence in federal court for identical criminal conduct (Page 154)

LXI Selection of court members by convening authority to serve in capital case where offenses were subject to trial by jury in state court (Page 155)

LXII Victim-impact statements (Page 156)

LXIII Absence of signatures of all members on sentence work sheet or right to poll members in capital case (Page 157)

LXIV Lack of authority of MJ to adjust or suspend improper death sentence (Page 158)

LXV Denial of right to jury from cross-section of community (Page 158)

LXVI Appellant’s death sentence as cruel and unusual punishment (Page 159)

LXVII Cumulative errors not harmless beyond a reasonable doubt (Page 159)

LXVIII Proportionality review insufficient (Page 160)

LXIX Death sentence inappropriate in this case (Page 165)

LXX Grostefon issues (Page 166)
 
 

Judge SULLIVAN delivered the opinion of the Court.

During December of 1987 and the first 4 months of 1988, appellant was tried by a general court-martial composed of officer and enlisted members at Fort Bragg, North Carolina. Contrary to his pleas, he was found guilty of the premeditated murder of Ms. Kimberly Ann Ruggles and of Private Laura Lee Vickery-Clay, and the attempted premeditated murder of Private Mary Ann Lang Nameth. See Arts. 118 and 80, Uniform Code of Military Justice, 10 USC §§ 918 and 880, respectively. He was also found guilty of rape (3 specifications), robbery (2 specifications), and forcible sodomy (2 specifications) with respect to the above victims, as well as burglary and larceny of property of another person, in violation of Articles 120, 122, 125, 121, and 129, UCMJ, 10 USC §§ 920, 922, 925, 921, and 929, respectively. On April 12, 1988, he was sentenced to death, a dishonorable discharge, total forfeitures, and reduction to Private E-1. On July 29, 1988, the Commanding General of the 82d Airborne Division approved the sentence.

The record of appellant’s trial was then forwarded to Defense Appellate Division and received by that organization on August 8, 1988. Counsel filed initial pleadings with the Court of Military Review¹ on September 15, 1989. On February 13, 1990, that court ordered a sanity board, which, on June 30, 1990, found that appellant was mentally responsible at the time of the offense and that he was mentally competent to understand his trial and the present appellate proceedings. On July 20, 1990, the Government Appellate Division answered appellant’s assignment of errors.

On December 27, 1990, appellant filed a motion with the Court of Military Review requesting that court to order the Government to provide $15,000.00 for an expert psychiatrist, a death-penalty-qualified attorney, and an investigator. Oral arguments were heard on the motion in January 1991. On March 12, 1991, the Court of Military Review denied the motion. 32 MJ 730. Appellant renewed the request for a psychiatrist and an investigator on August 7, 1991, but the Court of Military Review denied it on August 23, 1991. On September 12, 1991, appellant filed a writ-appeal petition requesting that this Court order the Government to provide $10,000 and an emergency stay of the proceedings before the Court of Military Review. On October 18, 1991, this Court denied the writ-appeal petition and the stay application. 34 MJ 164 (summary disposition).

On December 16, 1991, appellant filed a motion with the Court of Military Review requesting that court to order additional medical and neuropsychological tests be performed by military authorities. On December 31, 1991, that court granted appellant’s request and ordereda Magnetic Resonance Imaging (MRI) scan of the brain; a 20-channel scalp electrode, sleep-deprived EEG; and a SPECT scan of his brain, as well as intellectual, neuropsychological, academic, psychological, and personality tests. On February 18, 1992, a report based on these tests was completed by Fred H. Brown, Jr., Captain, Ph.D., a clinical neuropsychologist from Womack Army Medical Center, Fort Bragg. He later opined in an affidavit filed with the appellate court below that appellant was sane at the time of the offense and during these proceedings. On March 9, 1992, counsel filed a petition for new trial based on newly discovered evidence of lack of mental responsibility.

On February 26, 1992, appellant filed a supplementary assignment of errors, to which the Government responded on March 27, 1992. The Court of Military Review heard oral argument on April 8, 1992, and on December 15, 1992, denied the petition for new trial and affirmed the findings and sentence. 37 MJ 730, 734-35, 742-43, 749. On December 30, 1992, appellant filed a motion renewing his request for funds for an expert investigator and a behavioral neurologist. Appellant filed a petition for reconsideration of this decision on January 4, 1993. The Court of Military Review heard oral arguments on the motion for funding on January 21, 1993, and denied the motion for funding and the petition for reconsideration on January 22, 1993. On February 11, 1993, appellant filed a motion and suggestion for reconsideration by the court sitting en banc of the denial of funding, and a motion and suggestion for reconsideration by the court sitting en banc of the decision of December 15, 1992. On March 11, 1993, the court denied both motions and the suggestions for reconsideration en banc, but granted a motion allowing appellant to file a supplemental assignment of errors (XXVIII-LVI). The Government answered this assignment of errors on April 12, 1993. On June 9, 1993, the Court of Military Review again affirmed the findings and sentence. 37 MJ 751. Appellant filed a motion for reconsideration on June 28, 1993, which the court denied on June 30, 1993.

This case is before our Court for mandatory review pursuant to Article 67(a)(1), UCMJ, 10 USC § 867(a)(1) (1989). On July 2, 1993, this Court ordered appellant to file his final brief by August 31, 1993, but counsel did not do so until June 30, 1994. On September 10, 1993, appellant moved this Court for funding of an expert investigator and a behavioral neurologist whom he stated were necessary for appellant to perfect his appeal to this Court. The Government filed its opposition on September 17, 1993. On November 24, 1993, lead defense appellate counsel, Captain Michael Smith, filed a motion to withdraw from appellate representation because he was being transferred. On April 7, 1994, this Court granted Captain Smith’s motion. 40 MJ 14.

This Court denied appellant’s motion for funding on April 25, 1994, without prejudice to appellant’s raising in the ordinary course of appellate review whether the Court of Military Review erred in upholding denial of the funding. 40 MJ 25. On June 30, 1994, appellant filed his final brief; however, the index was not received until July 11, 1994. The Government filed its answer to final brief on August 26, 1994, and appellant’s reply was received on October 7, 1994. Oral argument was first heard in this case on March 7, 1995.

On May 4, 1995, defense appellate counsel, Captain Royer, moved to withdraw from appellate representation because he was being transferred; he also moved to admit an affidavit by appellant stating that he wished Captain Royer "be released from his representation of" appellant. This Court granted both motions on May 19, 1995. 43 MJ 129.

On June 3, 1996, the Supreme Court issued its decision in Loving v. United States, 517 U.S. 748, 116 S.Ct. 1737, 135 L.Ed. 2d 36. On November 20, 1996, based on Justice Stevens’ separate opinion in Loving, 517 U.S. at 774-75, 116 S.Ct. at 1751-52, appellant’s counsel moved to file a supplemental issue challenging the jurisdiction of his court-martial. On December 4, 1996, this motion was granted. 46 MJ 196. On December 13, 1996, the Government filed its Answer to Appellant’s Supplemental Issue. Oral argument was held again in this case on December 17, 1996.

Before turning to the issues of this capital case, it is important to view this case and its issues in the factual context of appellant’s crimes. In January 1987, appellant was identified and arrested for the rape of a woman in the vicinity of Fairlane Acres, a trailer park near Fort Bragg, North Carolina. The next day the body of Ms. Kimberly Ann Ruggles was found near that area on Fort Bragg. "She had received multiple stab wounds" and had "suffered bruises on her eyebrow, bruises on her nose, and a laceration on her lip." She had been raped and anally sodomized. Evidence in her vehicle and in his possession implicated appellant.

Later the same month, the body of Private (PVT) Laura Lee Vickery-Clay was found. "She had been shot four times (while she was alive), in the neck, forehead, chest, and back of the head. Also, she had suffered blunt force trauma to the right cheek, the left side of her face, around her left eye, her left breast, abdomen, and both legs and arms." PVT Vickery-Clay "had been raped and anally sodomized." Evidence on her car and the murder weapon implicated appellant.

Subsequent media coverage of appellant’s arrest for these crimes produced another victim (PVT Nameth), who recognized his face from photographs of appellant on television and in the newspaper. She reported that appellant had "raped her, and stabbed her repeatedly in the neck and side"; she "suffered a laceration of the trachea and a collapsed or punctured lung." 37 MJ at 736.

The above crimes were tried by court-martial which found appellant guilty and gave him the death penalty. Appellant was also convicted in a North Carolina state court of the murders and rapes of two other young women, and he was given sentences of life in prison. Appellant entered guilty pleas to the murders tried in State court. See 37 MJ at 733 n.1.

Article 67(a)(1994) provides that the United States Court of Appeals for the Armed Forces shall review the record in all cases in which the sentence, as affirmed by a Court of Criminal Appeals, extends to death. Appellant was sentenced to death by the members of his court-martial, and this sentence was approved by the convening authority and affirmed by the Court of Military Review (now the Court of Criminal Appeals). Defense appellate counsel has raised 70 issues for this Court to consider with respect to the findings of guilty and the sentence in this case. Appellant himself has personally assigned 31 more issues for review.

This is a long opinion. It is long because we feel it is necessary to explain our resolution of the numerous issues involved in this case. Many of these issues raise systemic challenges to the military justice system in general or its capital sentencing procedures in particular which we have resolved in our previous decisions. The remaining issues concern application of these procedures in appellant’s case. Except for the supplemental issue, which we consider first, we will turn our attention to the issues in the order raised by appellant.

We agree with Justice Stevens that the question whether Solorio applies in a capital case is an important question. However, our particular response to appellant is that this question need not be decided in his case. We note that appellant was a member of the military; one of his murder victims was a member of the military and the other was a civilian who did business on post; and both their bodies were found on post. Finally, we agree with the Government that there was overwhelming evidence presented in this case that the murders were committed on post. This is sufficient service connection even under O’Callahan v. Parker, 395 U.S. 258, 272 (1969), which Solorio overruled, 483 U.S. at 436, to warrant trial by court-martial. See generally Relford v. Commandant, 401 U.S. 355, 369 (1971) ("a serviceman’s crime against the person of an individual upon the base . . . is ‘service connected’"). Accordingly, assuming this jurisdictional requirement applies in capital courts-martial, we hold that it was satisfied in appellant’s case.

The appellate court below noted the legal requirements which must be met to warrant a new trial under Article 73. Relying on RCM 1210(f)(2), it stated that appellant must show:

Turning to the present case, we note that the appellate court below essentially summarized the evidence offered by appellant as "newly discovered," as follows:

That court also was required to determine "beyond a reasonable doubt" whether a reasonable factfinder, considering "the totality of evidence, would . . . be convinced by clear and convincing evidence that appellant lacked mental responsibility for his crimes" or should not get the death penalty for them. See United States v. Cosner, 35 MJ 278, 281, 282 (CMA 1992), cert. denied, 510 U.S. 1085 (1994). The Court of Military Review concluded that this post-trial medical evidence was "not of a caliber to produce a more favorable verdict" and that they were "convinced beyond a reasonable doubt that the panel would still have imposed the death sentence." Id. at 743. We see no clear abuse of discretion in this decision. See generally United States v. McCarthy, 54 F.3d 51, 55 (2d Cir.) (no abuse of discretion to deny new trial based on newly discovered interim psychiatric report), cert. denied, 516 U.S. 880 (1995).

Appellant was found guilty of numerous offenses of a heinous nature, namely two premeditated murders, one attempted murder involving multiple stabbing of the victim, as well as rapes and forcible sodomies. At his court-martial, he did not rely on a defense of insanity. See Art. 50a, UCMJ, 10 USC § 850a. However, he did introduce expert evidence on his mental state for purposes of sentence mitigation. RCM 1001 (c)(1)(A) and (B); as well as 1004(b)(3) and (b)(4)(c). Post-trial he has attempted to raise the defense of insanity and introduce further mental-state mitigation evidence by means of the written statements of two psychiatrists and the results of further mental testing ordered by the Court of Military Review at his request. Cf. Sawyer v. Whitley, 945 F.2d 812, 823 (5^th Cir. 1991), aff’d on other grounds, 505 U.S. 333 (1992).

The Court of Military Review, in its opinion below, noted the development of evidence and other information concerning appellant’s mental state. It stated:

Organic brain damage by itself does not equate to lack of mental responsibility for one’s crimes, and its discovery after trial does not necessarily require a new trial. See Robedeaux v. State, 908 P.2d 804, 808 n. 22 (Okl. Cr. 1995); James v. State, 489 So.2d 737, 739 (Fla. 1986), overruled on other grounds, James v. Singletary, 957 F.2d 1562, 1574-75 (11^th Cir. 1992). Moreover, the establishment of conflicting expert opinion on an accused’s mental state does not necessarily require a rehearing. United States v. Van Tassel, 38 MJ 91, 96 (CMA 1993). In appellant’s case the Court of Military Review pointed out that there was some evidence of appellant’s organic brain damage in existence prior to this trial and the post-trial evidence was disputed as to the extent of this damage. More importantly, the post-trial evidence was somewhat speculative on the effect of this mental condition on appellant at the time of these offenses and it too was disputed. See Oats v. Singletary, 141 F.3d 1018, 1028 (11^th Cir. 1998); Bryan v. Singletary, 140 F.3d 1354, 1360 (11^th Cir. 1998), cert. denied, ___ U.S. ___ (Feb. 22, 1999); State v. Stuard, 863 P.2d 881, 901 (Ariz. 1992). In these circumstances we hold that the Court of Military Review did not clearly abuse its discretion in concluding this post-trial evidence, in light of all other pertinent evidence in this case, would probably not produce a substantially more favorable result for appellant at a new trial. See Brewer v. Reynolds, 51 F.3d 1519, 1526-27 (10th Cir. 1995), cert. denied, 516 U.S. 1123 (1996); Robedeaux v. State, supra.

Appellate defense counsel argued as follows:

The Court of Military Review in resolving this claim held that appellant had "failed to show by clear and convincing evidence that, but for constitutional error . . . no reasonable court members would have imposed the death penalty under the Uniform Code of Military Justice." 37 MJ at 743-44; cf. Romano v. Oklahoma, 512 U.S. 1, 11 (1994) (Johnson does not establish per se rule of reversal of a death sentence). Also, it rejected his argument based on Johnson v. Mississippi, supra, because appellant had not shown the information relied on by the court members was "incorrect." 37 MJ at 743; see Mahaffey v. Page, 151 F.3d 671, 681 (7^th Cir. 1998), vacated as to another issue, 162 F.3d 481 (7^th Cir. 1998); Del Vecchio v. Illinois Dept. of Corrections, 31 F.3d 1363, 1385 (7^th Cir. 1994) (mere inaccuracy in sentencing information is not enough to invalidate death sentence), cert. denied, 514 U.S. 1037 (1995). As noted above, the post-trial evidence as to the extent of the organic brain damage and its impact on appellant’s mental responsibility at the time of the offenses was speculative and disputed. Cf. James, 957 F.2d at 1575 (alleged actual incompetence rather than probable incompetence). Moreover, the court below pointed out earlier in a different context, that "according to the appellant’s own brief there were ‘clear indicators of appellant’s organic brain damage . . . presented at the time of trial. . . .’" 37 MJ at 742. See Wright v. Angelone, 151 F.3d 151, 162 (4^th Cir. 1998). Accordingly, we conclude that there was no material or substantial inaccuracy in the sentencing information established in this case by the post-trial psychiatric evidence. See generally Brewer v. Reynolds, supra.

It is the normal rule of military appellate practice that review of the guilt of an accused is limited to evidence presented at trial. United States v. Bethea, 22 USCMA 223, 46 CMR 223 (1973). However, recourse to post-trial affidavits during direct review is appropriate to decide petitions for new trial under Article 73 (see United States v. Parker, 36 MJ 269, 270 (CMA 1993), or clarify collateral matters such as claims of unlawful command influence or denial of effective assistance of counsel. Id. at 271-72. Finally, this Court has approved consideration of post-trial affidavits by Courts of Military Review on direct review to determine whether a post-trial sanity hearing should be ordered. See United States v. Massey, 27 MJ 371 (CMA 1989); RCM 706 and 1203(c)(5). We have never held, however, that a post-trial psychiatric report per se requires a new trial or a hearing under United States v. DuBay, 17 USCMA 147, 37 CMR 411 (1967).

The Supreme Court in Ake v. Oklahoma, 470 U.S. 68, 83 (1985), stated:

As a starting point, we note that prior to his court-martial appellant was personally examined by a military forensic psychiatrist, Colonel David Armitage. He was also personally examined by Doctor Selwyn Rose, a civilian forensic psychiatrist, and Doctor John Warren, a civilian psychologist. The latter two were chosen by the defense, Answer to Final Brief at 31 n.22, and all three testified at appellant’s sentence hearing. Moreover, all three were offered as qualified medical experts by the defense and accepted as such by the judge. Clearly, these persons were qualified experts within the meaning of Ake. See Dunn v. Johnson, 162 F.3d 302, 308 (5^th Cir. 1998); Provenzano v. Singletary, 148 F.3d 1327, 1333 (11^th Cir. 1998).

Appellant’s post-trial attack, however, is on the psychiatric assistance these experts provided to the defense in his case. See Wilson v. Greene, 155 F.3d 396, 400 (4^th Cir. 1998) Initially, he focuses on "[t]he striking disparity between the pretrial [unspecified personality disorder] and post-conviction [organic brain damage] evaluations." Final Brief at 52, 53. He essentially argues that his trial experts were so wrong in their diagnosis of appellant that they must have been incompetent or ineffective. We must reject this argument.

We initially note that divergence of opinion among psychiatrists is not novel and does not provide a legal basis for concluding that one or the other is performing inappropriate tests or examinations. In Ake, the Supreme Court said: "Psychiatry is not, however, an exact science, and psychiatrists disagree widely and frequently on what constitutes mental illness, on the appropriate diagnosis to be attached to given behavior and symptoms, on care and treatment, and on likelihood of future dangerousness." See 470 U.S. at 81. In any event, four other post-trial evaluations of appellant substantially agree with the trial experts that appellant’s personality disorders, even if accompanied by organic brain damage, did not eliminate his mental responsibility at the time of the offenses: Doctor (PhD) Kea, Doctor (MD) Marceau, Doctor (MD) Edwards, and Doctor (PhD) Brown. See Vickers v. Stewart, 144 F.3d 613, 615-16 (9^th Cir. 1998), cert. denied, 119 S.Ct. 809 (1999). Finally, unlike the seven other experts in this case, Doctor Pincus, the primary proponent of the organic-brain-damage diagnosis and appellant’s lack of mental responsibility, did not personally examine appellant or the record in this case. See United States v. Wimberley, 16 USCMA 3, 8, 36 CMR 159, 164 (1966).

Nevertheless, appellant mounts a more particular attack on his trial psychiatrists and psychologist, resting on the post-trial affidavits of Doctor Merikangas, a civilian psychiatrist. Doctor Merikangas posits a "national standard of care" in psychiatry and asserts that the pretrial psychiatric assistance in appellant’s case failed to meet that standard. He states in pertinent part:

The first part of the Strickland test focuses on whether defense counsel’s performance was constitutionally ineffective. The Supreme Court has made clear that determination of this question requires assessment of the particular facts of a case, using "an objective standard of reasonableness." Id. at 688 (emphasis added). Appellant must show that his counsel’s conduct was not within the "wide range of professionally competent assistance." Id. at 690.

We turn first to appellant’s argument that his defense counsel failed "to investigate the mitigating circumstances of appellant’s traumatic family, social, and medical histories and appellant’s intoxication at the time of the offenses." The problem with appellant’s argument is that it equates failure to discover certain facts with failure to conduct a proper investigation. In addition, it ignores any role he himself may have played in remaining silent and failing to make full disclosure to his attorney on these matters. See Wilson, supra at 402-03; Mahaffey, 151 F.3d at 685; Harris, 949 F.2d at 1521 n.22. Finally, it further overlooks the substantial mitigating evidence presented in this case from appellant’s trial psychiatric experts and his family. In these circumstances we find no defective or inadequate assistance of counsel. See Harris, supra at 1524-25; cf. Brewer v. Aiken, 935 F.2d 850, 857-58 (7th Cir. 1991) (no investigation at all).

In this regard, the Supreme Court stated in Strickland:

Appellant also chides his counsel for not challenging "the professional competence of the pretrial evaluations of appellant by the two forensic psychiatrists and" not ensuring "a complete and competent mental health evaluation of appellant was performed before trial." As noted earlier, we do not agree with appellant that he received inadequate psychiatric assistance prior to trial. Moreover, we also do not agree that his trial defense counsel was professionally inadequate in relying at trial on the work of three mental-status experts. See Fitzgerald v. Greene, 150 F.3d 357, 368-69 (4^th Cir.), cert. denied, 119 S.Ct. 389 (1998); Waters v. Thomas, 46 F.3d 1506 (11^th Cir.), cert. denied, 516 U.S. 856 (1995); Sidebottom v. Delo, 46 F.3d 744, 752-54 (8^th Cir.), cert. denied, 516 U.S. 849 (1995); LaRette v. Delo, 44 F.3d 681, 685-86 (8^th Cir.), cert. denied, 516 U.S. 894 (1995); O’Neal v. Delo, 44 F.3d 655, 659-60 (8^th Cir.), cert. denied, 516 U.S. 843 (1995); Harris, 949 F.2d at 1524-25.

Finally, appellant attacks his counsel’s decisions on strategy and tactics on both the merits of his guilt and the sentence. Hindsight in these matters is not usually countenanced by this Court or by the Supreme Court, which said in Strickland, 466 U.S. at 689-90:

At the outset we note that we are asked to review the Court of Military Review’s decision denying post-trial psychiatric assistance and investigative services to appellant. United States v. Tharpe, 38 MJ 8 (CMA 1993); United States v. Curtis, 31 MJ 395 (CMA 1990). Ake v. Oklahoma, 470 U.S. 68 (1985), however, was a trial-assistance case, and its standard for granting such assistance may not be appropriate in a post-trial setting. See United States ex rel. Collins v. Welborn, 868 F. Supp. 950, 989 (N.D. Ill. 1994), aff’d sub nom. Bracy v. Gramley, 81 F.3d 684 (7^th Cir. 1996), rev’d on other grounds, 520 U.S. 899 (1997); cf. 21 USC § 848 (q)(4)(B) and q(9) (indigent federal defendants in collateral attack on death penalty entitled to reasonably necessary investigative or expert services); see Jackson v. Vasquez, 1 F.3d 885, 888 (9th Cir. 1993); Delong v. Thompson, 790 F.Supp. 594, 617 (E.D.Va 1991), aff’d, 985 F.2d 553 (4^th Cir. 1993). In any event he certainly is not entitled to a more generous standard; accordingly, review under the reasonable-necessity standard of Ake, supra at 82-83, and its progeny is appropriate. See Tharpe, supra at 14.

Turning first to the decision of the Court of Military Review, we note that it denied appellant’s request for this assistance two times. See 37 MJ at 734-35. We also have denied this request. 34 MJ 164 (1991) and 40 MJ 25 (1994). To support his last request, appellant filed affidavits from a psychiatrist and a social worker asserting that appellant’s pretrial evaluations were defective. Then he filed the results of certain psychiatric tests ordered by that same appellate court on December 31, 1991, which showed appellant had organic brain damage. 37 MJ at 742. Finally, he filed an affidavit from another psychiatrist, specializing in neurology, whose opinion was that appellant suffered "organic brain damage" and probably was not mentally responsible at the time of the charged offenses but further testing was required. Basically he argues that he has shown that the requested expert assistance is necessary as the Court of Military Review suggested it be shown in its earlier opinion of March 12, 1991. 32 MJ 730, 732-33.

Our standard of review in assessing a Court of Military Review decision denying funding for additional appellate expert mental health assistance is abuse of discretion. See Tharpe, supra at 16; see also United States v. Nichols, 21 F.3d 1016, 1017 (10th Cir.), cert. denied, 513 U.S. 1005 (1994); United States v. Rinchack, 820 F.2d 1557, 1563 (llth Cir. 1987). Here, we note that appellant had already been personally examined by three psychiatric experts at trial, two of whom were personally chosen by the defense. See Wright, 151 F.3d at 163; Martin v. Wainwright, 770 F.2d 918, 935 (11^th Cir. 1985), cert. denied, 479 U.S. 909 (1986). Four more psychiatric experts examined appellant post-trial as a result of a sanity board ordered by the Court of Military Review and the additional psychiatric testing also ordered post-trial by that court. They specifically addressed the question of appellant’s organic brain damage and rejected it as negating his criminal responsibility. 37 MJ at 743. Appellant also had, in post-trial affidavit form, the defense expert opinions of Doctor Pincus, a neurologist, that he was not mentally responsible at the time of the offense, and of Doctor Merikangas that earlier evaluations by others were defective. See 770 F.2d at 934-35; see Lawson v. Dixon, 3 F.3d 743, 753 (4th Cir. 1993), cert. denied, 510 U.S. 1171 (1994). Finally, he had the results of the testing ordered by the Court of Military Review which indicated organic brain damage of some type in appellant. See Nichols, 21 F.3d at 1018; Shaw, 762 F. Supp. at 862. Thus, the lower appellate court had a sufficient basis in the record for considering the mental-state issues before it and concluding that additional defense psychiatric expenditures were not reasonablynecessary. See Wright v. Angelone, supra; Martin, 770 F.2d at 935 (numerous defense or independent evaluations already conducted justified denial of additional testing); see also Vickers, 144 F.3d at 616 (weight-of-prior-evidence standard).

Appellant further attacks the decision of the Acting Judge Advocate General on August 19, 1993, refusing to consider his post-trial request for funding for expert assistance. He complains that he was denied equal protection of the law because the Judge Advocate General had granted equally meritorious requests for funding in September and December of 1992 from two equally deserving death-row inmates. He also complains that TJAG’s adherence to a new policy not to consider the merits of such requests unfairly burdened his access to the courts and denied him due process of law. We disagree.

In United States v. Curtis, 31 MJ 395 (1990), this Court ordered the Judge Advocate General to provide adequate assistance to a capital defendant "to properly litigate the unique constitutional issues...which, indeed, affect the litigation of matters relating to imposition of the death penalty in each of the uniformed services." This Court directed that $15,000 be made available to appellate counsel and

On December 17, 1992, the Judge Advocate General of the Army issued the following memorandum on his policy covering all future requests for funding of experts:

Appellant’s equal protection argument is clearly without merit. The Equal Protection Clause is generally designed to ensure that the Government treats "similar persons in a similar manner." See generally R. Rotunda and J. Nowak, Treatise on Constitutional Law: Substance and Procedure, 2d § 18.38 at 488; § 18:41 at 495 (1992). As then-Chief Judge Everett, writing for this Court in United States v. Means, 10 MJ 162, 165 (1981), said:

Appellant’s due process argument is also without merit. In substance he contends that the Judge Advocate General’s policy of refusing to entertain future requests for expert and investigative assistance infringed his right to access the courts and process his appeal. See generally Bounds v. Smith, 430 U.S. 817 (1977). We disagree.

The Judge Advocate General’s policy letter does not purport to deny appellant or any other servicemember expert assistance on appeal. Moreover, it does not suggest that the Judge Advocate General will refuse to make such funds available if so ordered by a competent court. See United States v. Curtis, supra. It does, however, establish a procedure by which a soldier’s request for funding will be forwarded to the appropriate forum for consideration and action in a more efficient manner. Cf. Art. 73. Such a policy or procedure is reasonable in our view and does not deny appellant due process of law. See DeLong, 790 F. Supp. at 617, citing United States v. Goodwin, 770 F.2d 631 (7th Cir. 1985), cert. denied, 474 U.S. 1084 (1986).

Appellant objected to admission of evidence of his pretrial statements at trial but the military judge ruled against him. The following colloquy occurred:

Nevertheless, the question before us is whether admission of evidence of these statements by appellant was legal error. The Court of Military Review found no legal error, and we agree.

Appellant first argues that his statements made pursuant to his guilty pleas in state court were erroneously admitted because "civilian authorities failed to advise appellant of his Fifth Amendment right against self-incrimination prior to eliciting incriminating information unrelated to his civilian plea." Final Brief at 109. Initially, we note that the .22-caliber pistol taken from the Miskanin trailer was the same pistol used to kill Tammy Wilson, a crime to which he agreed to plead guilty in state court. The fact that questioning about this offense also touched on a matter relevant to his military offenses did not require more specific advice. See Colorado v. Spring, 479 U.S. 564, 576-77 (1987). Moreover, as noted by the military judge, appellant was advised of his rights against self-incrimination under the Fifth Amendment, invoked his right to counsel, consulted with counsel, and agreed to provide information to state police concerning the murder of Tammy Wilson. Finally, appellant’s civilian defense counsel was present with appellant at the time he made his statements to police and later to the court. See generally 1 W. LaFave and J. Israel, Criminal Procedure § 6.8 at 519 (1984) ("It is generally accepted that if the attorney was actually present during the interrogation, then this obviates the need for the warnings."). Accordingly, we conclude that these statements were not admitted in violation of the Fifth Amendment. See generally United States v. Arrington, 73 F.3d 144, 149-50 (7^th Cir. 1996); see also United States v. Benson, 640 F.2d 136, 139 (8th Cir. 1981).

Appellant next argues that evidence of these statements was erroneously admitted by the judge because their use at his court-martial violated his civilian plea agreement. Guilty pleas and accompanying statements in one jurisdiction are generally admissible in other jurisdictions to prove the element of other crimes. United States v. Williams, 104 F.3d 213, 216 (8^th Cir. 1997); United States v. Benson, supra; United States v. Howze, 668 F.2d 322, 324 n.3 (7^th Cir. 1982). The civilian plea agreement in this case does not otherwise preclude use of his statements in a subsequent court-martial for different offenses. The Agreement only states, "In the event that the above plea arrangement is not carried out for whatever reason, no statement made by the Defendant pursuant to this agreement will be used against him in any subsequent prosecutions." App. Ex. XLVIII at 14. Appellant’s suggestion that the agreement implies a limited use in state proceedings is simply unsupported by this record of trial.

Appellant next argues that evidence of his statements was erroneously admitted at his court-martial in violation of Article 31, UCMJ, 10 USC § 831. He contends that his investigation for murders in the Fayetteville area by civilian and military police had "merged" within the meaning of the case law of this Court. Accordingly, he concludes that Article 31 warnings had to be given by civilian police when they questioned him about the offenses tried later in the court-martial. We disagree.

The premise of appellant’s Article 31 argument is that the civilian and military investigations "merged" within the meaning of United States v. Lonetree, 35 MJ 396, 403 (CMA 1992), cert. denied, 507 U.S. 1017 (1993). However, we note that appellant’s original motion to suppress his pretrial statements to civilian police made only a vague reference to Article 31. See App.Ex. XLVII. Moreover, no attempt to develop a proper factual basis for suppression on Article 31 grounds was made by the defense at the court-martial. Finally, both on questioning by the military judge (R. 353) and in his argument on the motion to suppress, defense counsel made clear that the basis of his motion to suppress was solely the Fifth Amendment and Miranda v. Arizona, 384 U.S. 436 (1966). In this context we find no plain error under Article 31 in admission of those statements.

Appellant finally contends that he was denied effective assistance of counsel at his court-martial as guaranteed by the Sixth Amendment. He grounds his argument on conduct of his civilian defense counsel at his earlier state criminal trial for other murder charges which caused or permitted him to incriminate himself on the military offenses. He also cites his military defense counsel’s failure to intervene in the earlier state proceedings and prevent this self-incrimination.

The thrust of appellant’s argument is that an accused facing different charges in both state and military courts is entitled to a coordinated and unified defense, especially where he might receive the death penalty for his crimes in either forum. He has cited no authority for this proposition, other than general ineffective-assistance-of-counsel cases such as Strickland v. Washington, 466 U.S. 668 (1984), and Hill v. Lockhart, 474 U.S. 52 (1985).

Appellant particularly contends that his civilian defense counsel at his North Carolina trial should not have permitted him to admit as part of his guilty plea to state murder charges that he burglarized the Miskanin trailer in November of 1986, and stole a .22-caliber pistol. He notes that charges for burglary of the Miskanin residence and larceny of the pistol were pending referral to court-martial at the time of his admission in the State case. He further notes that he was later convicted of these offenses at his court-martial on the basis of this admission. Also, he notes that the charge of murdering Ms. Vickery-Clay was also pending court-martial at the time of this admission and that he was convicted of that offense based upon his admission at the State trial. In this regard, we note that a .22-caliber pistol taken from the Miskanin residence was shown at the court-martial to be the same pistol found at the murder scene of Ms. Vickery-Clay. He finally asserts that his military defense counsel in this case who attended the State court proceedings should have attempted to intervene and preclude these admissions.

We reject appellant’s ineffective-assistance-of-counsel claim for several reasons. First, the burden is on him to show deficient professional conduct by his counsel and prejudice resulting from such conduct. Strickland, 466 U.S. at 687. Moreover, in showing less than reasonably competent conduct by counsel, "it is necessary to ‘judge ...counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct.’" Lockhart v. Fretwell, 506 U.S. 364, 371, 113 S.Ct. 838, 844 (1993), quoting Strickland, supra at 690. Finally, the Supreme Court has recognized that "[s]heer outcome determination, [...], was not sufficient to make out a claim under the Sixth Amendment." 506 U.S. at 370.

Appellant did not challenge admission of his state-trial guilty-plea statements at his court-martial on Sixth Amendment grounds. He also did not call civilian defense counsel to explain his reasoning, the advice which he gave to appellant, or any awareness which he had as to the significance of these guilty-plea statements in a future court-martial. Here, the facts on the record were that civilian defense counsel avoided the death penalty in state court for two murder charges and he knew that appellant faced a possible capital court-martial referral for two other murder charges and related offenses. The record also shows that, at appellant’s questioning, civilian defense counsel successfully objected to references in the questions to offenses under investigation by military authorities. We find no unreasonable professional conduct in these circumstances. See Lane v. Singletary, 44 F.3d 943( 11th Cir.), cert. denied, 515 U.S. 1163 (1995); see generally Bordenkircher v. Hayes, 434 U.S. 357 (1978).

Assuming appellant established constitutional error with respect to his Sixth Amendment right to counsel, we would still not reverse his convictions for burglary, robbery, and the Vickery-Clay murder on this basis. See generally Lockhart, 506 U.S. at 369 n.2, 113 S.Ct. at 842 n.2. The record in this case established beyond a reasonable doubt that any such error was harmless.

First, we note that appellant’s admission that he took a .22-caliber pistol from the Miskanin trailer and possessed it around December 11, 1986, falls far short of a full confession to the Miskanin burglary on November 12, 1986, and the murder of Ms. Vickery-Clay 4 days later. Cf. Arizona v. Fulminante, 499 U.S. 279 (1991). Second, appellant’s admissions to taking the .22-caliber pistol from the Miskanin trailer was not the only evidence linking him to the burglary of that residence and the murder of Ms. Vickery-Clay. It was also established that appellant pawned a VCR taken with the pistol from the Miskanin trailer. Moreover, he was linked to the murder of Ms. Vickery-Clay by fingerprints and fiber evidence. In this context, the Government has persuaded us that any error by civilian defense counsel in failing to limit appellant’s guilty-plea statements in the North Carolina trial was harmless beyond a reasonable doubt in his court-martial.

To legally support his pretrial-publicity claim, appellant relies heavily on the Fifth Circuit decision in Mayola v. State of Alabama, 623 F.2d 992 (1980), cert. denied, 451 U.S. 913 (1981). There, that court stated:

That Court, however, also recognized that an exception to the rule requiring a showing of actual prejudice was established by the Supreme Court in Rideau v. Louisiana, supra. The Courtsaid:

To establish presumed prejudice, the record must demonstrate "that the community where the trial was held was saturated with prejudicial and inflammatory media publicity about the crime[s]." See Troiani v. Poole, 858 F.Supp. 1051, 1062 (S.D. Cal. 1994). Here, we note that the challenged 93 articles by 5 different papers did not cover a single crime, a single investigation, or a single trial. Instead, they addressed a veritable crime spree, involving five murders, six rapes, and attendant lesser crimes. Moreover, they covered dual investigations and trials by state and military authorities. Appellant’s gross-statistical-saturation argument ignores this context and, to that extent, is unpersuasive.

In any event, we are not persuaded by appellant that the pretrial publicity in his case was prejudicial and inflammatory. This is simply not a case like Rideau, where the defendant’s uncounseled pretrial confession was broadcast three times on television before his trial. Here, the articles appear to be no more than routine reports of heinous crimes, investigation of these crimes, the arrest of appellant, and the preliminary steps taken to bring appellant to trial in both state and military courts. These articles do not appear to be unduely sensationalistic. See Rock v. Zimmerman, 959 F.2d 1237, 1253 (3d Cir.), cert. denied, 505 U.S. 1222 (1992). Moreover, they clearly do not create any actual unfairness to appellant as a defendant in the sense delineated in Rideau. See United States v. DiSalvo, 34 F.3d 1204, 1222 n.16 (3d Cir. 1994); cf. Mayola, 623 F.2d at 997-98.

Appellant’s remaining argument is that the military judge failed in his duty to ensure that he receive a fair trial. See generally Chandler v. Florida, supra. The military judge was in fact aware of the pretrial publicity surrounding appellant’s case, but he did reject the defense-proffered solutions to this problem. However, the military judge did permit extensive voir dire of the panel members concerning exposure to pretrial publicity and its possible impact on deliberations in this case. He also instructed the members not to "expose" themselves to any particular information pertaining to the accused and instructed the members to use "common sense" in dealing with media exposure. Finally, he twice ruled that the members of this court-martial were impartial in fact. We see no abuse of discretion by the judge in these matters.

We further note that the military judge did not accept appellant’s request without his proper signature. The record states:

Citing the decisions of this Court in United States v. Garries, 22 MJ 288, cert. denied, 479 U.S. 985 (1986), and United States v. Mustafa, 22 MJ 165, cert. denied, 479 U.S. 953 (1986), counsel argue that the military judge abused his discretion in denying his request for an independent criminal investigator. He asserts that his motion "was made at trial as a result of the failure of government investigators (CID special agents) to adequately provide the defense with critical information necessary for the formation of appellant’s defense." Final Brief at 157. He particularly states:

It is beyond cavil in the military justice system that an accused has a right to investigative assistance at the expense of the Government if he demonstrates the necessity for such assistance. United States v. Robinson, 39 MJ 88 (CMA 1994); United States v. Kelly, 39 MJ 235 (CMA), cert. denied, 513 U.S. 931 (1994). In United States v. Gonzalez, 39 MJ 459, 461, cert. denied, 513 U.S. 965 (1994), this Court recognized a three-step test for determining necessity, as follows:

To appellant’s request for the taxi-driver information, the CID commander stated:

Appellant’s argument is based on a faulty legal premise. The Supreme Court in Gray, 481 U.S. at 657-58, addressed this question definitively:

Article 41(b), UCMJ, 10 USC § 841(b), at the time of trial⁴ provided: "Each accused and the trial counsel is entitled to one peremptory challenge." See RCM 912(g). Obviously, Congress and the President, the constitutionally authorized rulemakers for the military justice system, thought that a reason existed to provide the Government, as a party, a peremptory challenge. See 37 MJ at 737-38, citing Swain v. Alabama, 380 U.S. 202 (1965), overruled by Batson, 476 U.S. at 93. Neither Ford v. Georgia, supra, nor any other case invalidates their judgment. Thus, we reject this challenge to appellant’s conviction and sentence, as we did in Loving, 41 MJ at 294-95.

Appellant next asserts that the military judge erred by failing to require the prosecution to "timely" articulate a "race-neutral" explanation for the Government’s use of its peremptory challenge against one of only two black panel members. He contends that the belated submission of an unsworn statement by trial counsel does not comply with Batson or our case law. The Court of Military Review noted the facts surrounding this challenge and rejected appellant’s timeliness argument. We agree.

The lower court stated:

Our dissenting brothers, venturing somewhat beyond the particular claims of the defense on this appeal, conclude that the military judge failed to comply with all three of the requirements established in Batson v. Kentucky, supra, for evaluating peremptory challenges. In United States v. Greene, 36 MJ 274, 278 n.2 (1993), we summarized these requirements as follows:

In this regard, we initially note that appellant was tried in 1987 and the early months of 1988, before the decision of this Court in United States v. Moore, 28 MJ 366 (1989), and United States v. Santiago-Davila, 26 MJ 380 (1988). At that time we had not yet held that Batson applied at courts-martial or that a prima facie case of discrimination could be made out by merely showing that a peremptory challenge was lodged against a court-martial member who was of the same minority race as the accused and he objected to that challenge. See Moore, 28 MJ at 368 ("After today [August 10, 1989], every peremptory challenge by the Government of a member of the accused’s race, upon objection, must be explained by trial counsel."). Nevertheless, trial counsel did provide, albeit belatedly, a race-neutral explanation for his challenge, mooting any question of error in the judge’s apparent determination that the defense had not made a sufficient showing to require government explanation. See United States v. Cooper, 30 MJ 201, 203 (CMA 1990); Mahaffey, 151 F.3d at 679.

Turning to the second Greene prong, we obviously conclude that the military judge did not preclude trial counsel from offering any explanation for the challenge against Major Quander. The military judge did more than require trial counsel to simply state whether his "challenge was a result of his bias or prejudice against the black race . . . ." Shortly after trial counsel denied such an intent and proffered unsuccessfully an explanation for that challenge, the military judge relented and permitted trial counsel to attach to the record a memorandum signed by trial counsel explaining the challenge. See Turner v. Marshall, 121 F.3d 1248, 1254 n.2 (9^th Cir. 1997) (contemporary explanation of prosecutor favored), cert. denied, 118 S. Ct. 1178 (1998); cf. Simmons v. Beyer, 44 F.3d 1160, 1168 (3d Cir.) (record not sufficient without prosecutorial explanation), cert. denied, 516 U.S. 905 (1995); Cochran v. Herring, 43 F.3d 1404, 1411 n.11 (11^th Cir. 1995), cert. denied, 516 U.S. 1073 (1996). Finally, the reason articulated in the memorandum, i.e., Major Quander’s indecisiveness on the death penalty as a punishment, is a well recognized race-neutral explanation for a peremptory challenge. See Howard v. Moore, 131 F.3d 399, 407-08 (4^th Cir. 1997), cert. denied, 119 S.Ct. 108 (1998); Kilgore v. Bowersox, 124 F.3d 985, 992 (8^th Cir. 1997), cert. denied, 118 S.Ct. 2352 (1998); see generally United States v. Canoy, 38 F.3d 893, 898 (7^th Cir. 1994).

Finally, on the third Greene prong, we do not agree with the dissent that "the military judge [did not] make a determination as to whether trial counsel’s explanation was credible or pretextual." ___ MJ at (9). Optimally, an express ruling on this question is preferred. However, the judge clearly stated his satisfaction with trial counsel’s disavowal of any racist intent in making the challenge. Moreover, he asked defense counsel whether they "have some facts that would indicate a different result," and he permitted trial counsel "to append to the appellate record a Memorandum for Record indicating the Government’s reason for perempting Major Quander." Finally, he ensured that defense counsel had "seen" the memorandum for record and inquired wh