## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before TOZZI, 1 SIMS, and GALLAGHER Appellate Military Judges

UNITED STATES, Appellee

v. First Lieutenant MICHAEL C. BEHENNA United States Army, Appellant

ARMY 20090234

Headquarters, 101st Airborne Division (Air Assault) a nd Fort Campbell
Theodore E. Dixo n, Military Judge Colonel Peter M. Cullen, Staff Judge Advocate

For Appellant: Jack B. Zimmermann, Esquire (argued); Captain Pamela Perillo, JA; Jack B. Zimmermann, Esquire; Terri R. Zimmermann, Esquire; Kyle R. Sampson, Esquire (on brief); Ca ptain E. Patrick Gilman, JA; Jack B. Zimmermann, Esquire; Terri R. Zimmermann, Esquir e; Kyle R. Sampson, Es quire (on reply brief).

For Appellee: Captain Madeline F. Yanfor d (argued); Colonel Mi chael L. Mulligan, JA; Major Christopher B. Burgess, JA; Ca ptain Christopher B. Witwer, JA; Captain
Madeline F. Yanfor d, JA (on brief).

21 July 2011

-------------------------------- OPINION OF THE COURT

--------------------------------

GALLAGHER, Judge:

An officer panel sitting as a general court-martia l convicted appellant, contrary to his pleas, of unpremeditated murder and as sault, in violation of Articles 118 and 128, Uniform Code of Military Justice, [hereinafter UCMJ], 10 U.S.C. §§ 918 and 928. The panel sentenced appellant to confin ement for twenty-five years, forfeiture of all pay and al lowances, and to be dismisse d from the service. The convening authority approved a sentence to confinement for twenty years, total forfeiture of all pay and al lowances, and a dismissal fr om the servic e and granted

1 Senior Judge TOZZI took final action in this case prior to his permanent change of duty station.BEHENNA—ARMY 20090234

2 fifty days of confinement cr edit. This case is before us for re view pursuant to Article 66, UCMJ.

Appellant raised seve n assignments of er ror to this court:

I.

THE MILITARY JUDGE REVERSIBLY ERRED BY
DENYING THE MOTION FOR MISTRIAL, BASED ON
THE TRIAL COUNSEL’S FAILURE TO DISCLOSE
FAVORABLE INFORMATION TO THE DEFENSE.

II.

THE MILITARY JUDGE REVERSIBLY ERRED BY DENYING THE MOTION FOR NEW TRIAL, BASED ON
THE TRIAL COUNSEL’S FAILURE TO DISCLOSE
FAVORABLE INFORMATION TO THE DEFENSE.

III.

THE TRIAL COUNSEL COMMITTED REVERSIBLE
ERROR BY FAILING TO DISCLOSE FAVORABLE
INFORMATION TO THE DEFENSE.

IV.

THE TRIAL COUNSEL COMMITTED REVERSIBLE
ERROR BY MAKING FALSE ASSERTIONS OF
MATERIAL FACT AND INTERJECTING HER
PERSONAL OPINION OF THE EVIDENCE IN CLOSING
FINAL ARGUMENT.

V.

THE MILITARY JUDGE REVERSIBLY ERRED BY
GIVING AN IMPROPER INSTRUCTION LIMITING 1LT
BEHENNA’S RIGHT TO SELF-DEFENSE.

VI.

THE EVIDENCE OF UNPREMEDITATED MURDER IS
NOT FACTUALLY SUFFICIENT.BEHENNA—ARMY 20090234

3 VII.

THE MILITARY JUDGE REVERSIBLY ERRED BY FAILING TO INSTRUCT THE MEMBERS [SUA SPONTE] ON THE LESSER[-]INCLUDED OFFENSE OF
VOLUNTARY MANSLAUGHTER.

We have considered the a ssignments of error raised to this court, including those personally raised by appellant pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982). We find five of the issu es raised warrant discussion but no
relief.

BACKGROUND

The Incident

Appellant deployed to Iraq in September 2007. He was the platoon leader of an eighteen-man platoon res ponsible for the Al bu Toma area, which was north of Baghdad and Tikrit. Appell ant’s mission was to man the checkpoint at Forward Operating Base (FOB) Summeral l, to serve as the battalion quick reaction force, and
to conduct missions within Albu Toma . The Albu Toma mission involved counterinsurgency operations, operations wi th the Iraqi Security Forces, including the Concerned Local Citizens (CLC), the Iraqi Army, the Iraqi Police, and the leadership in Albu Toma. Beginning in February 2008, ap pellant received
information that led him to believe that A.M. was an individual involved in insurgency gr oups and in terrorist at tacks against appellant’s platoon. On 21 April 2008, an IED attack on appellan t’s platoon resulted in the death of two soldiers, a translator, and a couple of Iraqi CLC members.

As part of his mission, appellant met regularly with Sheik Hamad, who was
the leader of Albu Toma a nd responsible for th e CLC. On 5 Ma y 2008, appellant
met with Sheik Hamad who identified A.M. as a terrorist. S ubsequently, appellant went to A.M.’s house, isolated him in a room of the house and ordered him to lie
down on his stomach. A.M. co mplied. Appellant began interrogating A.M., who did not provide the information re quested. Appellant hit A. M. repeatedly on the back
with his Kevlar helmet un til A.M. gave appellant th e requested in formation. Appellant’s platoon sergeant, Staff Sergea nt (SSG) Hal Warner , entered the room, saw appellant strike A.M. and then left the room. Appellant subsequently turned A.M. over to the interrogator s. Appellant later reviewed the reports detailing A.M.’s interrogation. Dissatisfied with the information obtained, appellant re quested A.M. be reinterrogated pertaining to specific individuals located in appellant’s area of operation that may have been involved in attack s against appellant’s platoon. A.M. was rescreened; appellant wa s present during the screening, but not permitted to askBEHENNA—ARMY 20090234

4 questions. After the screening, appellant believed A.M. was not forthcoming with
all known information.

On 16 May 2008, appellant wa s given a specific order to return A.M. to Albu Toma and another detainee to Mezra, a near by town. Prior to loading the detainees
into the truck for tr ansport, appellant t ook A.M. and appellan t’s interpre ter, known as “Harry,” over to appellant’s quarters and away from where everyone else was assembling. Appellan t told A.M. he woul d be questioning him later and threatened
to kill A.M. that day if A.M. did not provide specific informat ion appellant believed he possessed about cell leader s, the IED attack on his platoon, and A.M.’s trips to Syria. Appellant kn ew he was not authorized to interrogate and threaten A.M.

Appellant took the first deta inee to his town and dropped him off as ordered. Then appellant went to Albu Toma, A.M. ’s town, and met with Sheik Hamad. However, appellant did not drop off A.M. as ordered. Inst ead, he directed his fourtruck convoy to travel through the desert as the route back to FOB Summerall. Appellant stopped the c onvoy at a remote lo cation next to two railroad culverts, had
A.M. removed from the truc k, and taking only A.M., Harry, and SSG Warner with him, travelled th rough the first culvert and into the second culvert located about seventy-five meters from the first culvert. The convoy remained approximately fifty yards from the first culvert. The culvert was made of concrete and was ten feet wide, eight to nine fe et high, and thir ty feet long. Appellant did not want to involve any other soldiers because he knew his planned interr ogation was unauthorized.

As soon as they arrived in the second culvert, appellant and SSG Warner cut off A.M.’s clothes, leaving him naked, w earing only sandals. Appellant and SSG
Warner cut off A.M.’s clothes in order to humiliate him. Appellant knew he was not authorized to engage in thes e actions as an interrogation technique. Using a knife, appellant attempted to remove the flex cu ffs that bound A.M.’s hands together and
cut A.M.’s hand. The interpreter offere d to remove the cuffs for appellant to avoid further injury to A.M. Ap pellant then ordere d A.M. to sit and A.M. complied, sitting to the left side of the tunn el on a piece of rock or concrete about a foot high with his back to the left tunnel wall. Ap pellant stood on the righ t side of the tunnel with his back to the right tunnel wall. Both were appr oximately one foot from the
wall. The distance between the two was about three feet. They were both about two
feet inside the culvert. At some point, SSG Warner left the culvert to relieve himself. Despite the fact that A.M. offered no resistance, appellant nonetheless pulled out his loaded 9m m Glock pistol and po inted it at A.M. as soon as A.M. sat down on the rock. Ap pellant knew this was not an authoriz ed interrogation technique for him to us e. Appellant was in full battle gear, in cluding helmet, IBA, M-4 rifle, and his Glock pistol.

When appellant pulled his weapon, held it in his right hand, and pointed it at A.M., Harry stepped outside of the culvert out of fear that appellant would fire and aBEHENNA—ARMY 20090234

5 bullet would ricochet and hit him. At ap pellant’s direction, Harry started asking A.M. questions, trying to get A.M. to pr ovide names of other terrorists. The first time A.M. denied knowledge. Appellant then told A.M., “Thi s is your last chance to tell the information or you will die.” Afte r this threat, A.M. said “I will talk.” Harry shifted his eyes slight ly away from A.M. towards appellant to translate. Before Harry could translate, appellant fired a nd shot A.M. in both the head and chest. A.M. fell to the righ t and died from the shots infl icted by the appellant. The entire interrogation inside th e culvert lasted two to three minutes. Harry did not see A.M. make any sudden movements. Appe llant’s demeanor from the trip to Albu Toma through the ev ents at the culv ert was normal.

During the interrogation, SSG Warner was approximat ely thirty-five to fortyfive meters from the culvert entrance. When the first shot was fired, SSG Warner was relieving himself, but immediately turned and m oved towards the culvert
entrance. After the second sh ot, SSG Warner entered the culvert, pulled a thermite grenade from his belt, removed the safety pin, placed th e grenade next to A.M.’s body, and ran back out of the culvert. The grenade ign ited next to A.M.’s head causing burns to th e dead body. Appellant and SSG Warner collected A.M.’s clothes, left the culvert, and return ed to the waitin g convoy. The stop at the culvert lasted approximately ten to fifteen minutes. The convoy re turned immediately to the
FOB.

After returning to the FOB, appellant talked to SSG Warner about what happened. He discussed the difference betw een a moral and a legal right to kill. Additionally, when Harry asked appellant why he killed A.M., appellant stated, “A.M. planted explosives twice on a specific road and the explosiv e that went off in the Salaam Village, he had a hand into this, to o. He was part of the operation.” When asked by two sold iers in the mess hall whether he killed A. M., appellant stated
that he shot him because he felt he and hi s platoon were in dang er that night. He
also stated that he would do it again, and he did not feel bad about it because he just lost two guys.

Finally, as of 16 May 2008, appellant was diagnosed as suffering from acute stress disorder caused by traumatic events in his life; however, he did not lack mental responsib ility at the time of the offenses.

The details of what happened during those two to three minutes of interrogation in the culvert with appellant and A.M. were hotly co ntested at trial and
relate to the issues raised.

Harry testified that even though he was ten meters outside of the culvert, he could still see, alt hough not clearly. He was posi tioned so he could see both appellant and A.M. He stated the victim remained seated on the rock and after the first shot, A.M. moved first to the back and then slowly to the right as he fell andBEHENNA—ARMY 20090234

6 laid on his side. Th e second shot occurred while A. M. was making the movement to the right. The shots occurred within two to three seconds of each other.

SSG Warner testified that he started ru nning towards the culv ert after the first shot and had run approximatel y fifteen to twenty meters when he saw the muzzle
flash from the second shot. There was approximately thre e seconds between shots.
SSG Warner also testified th at as he was moving he turn ed his tac light on and saw
A.M. on the left hand side of the culvert in a semi-sitting position and it looked like he was falling to the right.

Doctor Aswad performed the autopsy on A. M. He testified that the cause of death was a gunsho t wound to the skull. The shot to the sk ull entered the right temple and came out on the left on a leve l trajectory. The chest wound was the
second wound and ente red the right side of the body between the 4th and 5th rib under the right arm. The ex it wound was by the spine on the left side at a level trajectory.

Dr. Radelat testified for the defense as an expert in forensic pathology that in his opinion A.M. was standi ng when shot first in the chest, then in the head.

Mr. Tom Bevel testified for the defense as an expert in the field of scene
reconstruction. Mr. Bevel te stified that in his opinion the chest wound was inflicted first, followed by the he ad wound. Additionally he testified that the best explanation for the chest wound was that A.M. was standing when s hot in the chest. Finally, he testified that th e blood originated at a mini mum height of three-and-onehalf to four feet, po ssibly much higher.

Appellant testified that he chose the second culvert as an interrogation site because there was a CLC checkpoint not far aw ay from the tunnel that he intended to send A.M. to after he provided the requeste d information. Additionally, he testified that just before the shooti ng, he heard A.M. say some thing different than denying having any information so he turned his head left towards Harry fo r the translation. As he did so, he heard the so und of concrete hitti ng the wall over hi s left shoulder. Appellant turned his h ead right and saw A.M. “getting up with his ha nds out toward [his] weapon. [He] stepped to the left and fire d two shots.” Appe llant stepped to the left to put distance between A.M. and himself. There was about one second between shots. Appellant te stified that he was “scared [A.M.] was going to take [his] weapon and use it on [him], but this happened fast.” Appellan t testified he had his finger right outsid e the trigger well of the Glock pistol while he was holding it
and did not believe A.M. was a threat to him until the co ncrete was thrown.BEHENNA—ARMY 20090234

7 The Government’s Expert Witness

The factual findings set fo rth by the military judge in Appell ate Exhibit XCI are supported by the record and are not clea rly erroneous and thus, we adopt them. See United States v. Leedy , 65 M.J. 208, 213 (C .A.A.F. 2007) (“Find ings of fact will not be overturned unless they are clearly erroneous or unsuppor ted by the record.”)

On 28 August 2008, the [d]efe nse requested in writing that the [g]overnment provide to the [d]efense al l exculpatory
evidence.

Prior to trial, the [g]ove rnment gave notice to the [d]efense that it had retained Dr. Herbert MacDonell as an expert consultant, and that he was a potential witness.

The [d]efense was aware of Dr. MacDonell’s education and experience and his pr ofessional repu tation and standing in the area of his expertise.

On Wednesday, 25 February 2009, the [g]overnment
rested its case wit hout calling Dr. MacDone ll as a witness. The evidence presented by th e [g]overnment supported a finding that 1LT Be henna shot and killed [A.M.] while [A.M.] was sitting naked on a rock. The [g]overnment’s theory was that the evidence supported a finding that the
two shots were fired several seconds apart and that the first shot was to [A.M.]’s head and the second to [A.M.]’s upper torso, in an execution-style killing.

Also on Wednesday, the [d]efe nse presented testimony of two [d]efense experts, Dr. Paul Radelat and Mr. Tom Bevel. Both witnesses testified that, in their opinions, the
forensic evidence s upported a conclusion that [A.M.] had
been shot while stan ding, with the first shot bein g to the chest and the second shot being to the head.

The [g]overnment’s cross-exam ination of Dr. Radelat and
Mr. Bevel focused on the possibility th at there were many logical explanations of the sh ooting scenario in this case
based on the fore nsic evidence.

Dr. MacDonell sat in the cour troom gallery, with consent of the parties, duri ng the testimony of Dr. Radelat and Mr.
Bevel.BEHENNA—ARMY 20090234

8 Mr. Bevel testified after Dr. Radelat. After Mr. Bevel testified, the [d]efense had an opportunity to speak with Dr. MacDonell concerning the potential of his being called
as a rebuttal witness.

The [g]overnment never inform ed Dr. MacDonell that he could not speak to th e [d]efense about th e substance of his potential testimony.

As of the end of the pres entation of evidence on Wednesday, Dr. MacDonell’s op inion, notwit hstanding the testimony of Dr. Radelat and Mr. Bevel, was that the
forensic evidence di d not contradict the [g]overnment’s theory of the case and, pr esumably based on the other
evidence known to him (e.g., “Harry ’s” testimony and SSG Warner’s testimony), he disagreed with Mr. Bevel’s conclusion that [A.M.] was standing when he was shot.

1LT Behenna provided no pret rial statements asserting that the shooting of [A.M.] wa s in self-defense and, until he testified on Thursday, ne ither the counsel for the [g]overnment, nor Dr. MacD onell were aware of the
substance of his potential testimony.

At a meeting Wednesday even ing with all three trial counsel, another [g]overnment consultant (Dr. Berg), and several other administrative support personnel, Dr. MacDonell theorized and demonstrated that an unlikely but possible scenario, that wa s not inconsistent with the
forensic evidence and the only logical explanation
consistent with the testim ony of Dr. Radelat and Mr. Bevel, was that if the first shot was to the chest, the
second shot to the head coul d have occurred as [A.M.] dropped in front of the muzzle of 1LT Behenna’s weapon.
The second shot would have had to [have] been fired immediately after the first shot because [A.M.] would have immediately dropped to th e ground as a re sult of the first shot. This theory was not inconsistent with the forensic evidence, but was in consistent with all other
evidence known to the [g]overnment counsel and Dr. MacDonell (e.g., the test imony of “Harry” and SSG
Warner that the second shot occurred between 3-5 seconds after the first shot, and “Harry ’s” testimony th at [A.M.] was sitting at the time of the first shot.)BEHENNA—ARMY 20090234

9 . . .

Government counsel, based on Dr. MacDonell’s opinion
that the available fo rensic evidence did not lend itself to a very detailed interp retation, decided th at they would not
call Dr. MacDonell in rebutta l. Because Dr. MacDonell wanted to return home for personal reasons, arrangements
were made for him to de part Fort Campbell at approximately 1700 on Thursday to return to New York.

On Thursday, 26 February 2 009, Dr. MacDonell was once again, with consent of the parties, present for the direct testimony of 1LT Behenna. Prior to 1LT Behenna testifying to circumstances of the actual shooting, Dr.
MacDonell did not find 1LT Behenna to be a credible
witness. 1LT Behenna then testified to his account of the shooting, which was consiste nt with Dr. MacDonell’s demonstration during the me eting the evening prior.

After hearing 1LT Behenna’s acc ount of the shooting, Dr. MacDonell changed his op inion of 1LT Behenna’s credibility and belie ved he was telling the truth. While 1LT Behenna was testifying, Dr . MacDonell told Dr. Berg, who was sitting in the gallery next to Dr. MacDonell while 1LT Behenna was testifying, “T hat’s exactly what I told you yesterday.”

. . .

At approximately 1700 on Th ursday, while the [c]ourt was
closed to deliberate on an issue concerning [Military Rule of Evidence [hereinafter Mil. R. Evid.]] 301, and just prior to Dr. MacDonell leaving th e courtroom, Dr. MacDonell informed [civilian de fense counsel] that , “I would have made a great witness for you” or words to that effect. When [civilian defense counse l] asked what his testimony might be, Dr. MacDonell inform ed the [d]efense that he could not divulge any informati on to the [d]efense, as he
had been retained by the [g]overnment. [Civilian defense counsel] did not pursue th e matter further with Dr. MacDonell and the [d]efense made no further inquiry to the [g]overnment counsel on the matter until Friday morning. Defense [c]ounsel’s inquiry Friday morning was
the first reasonable opportunity under th e circumstances to
address the matter wi th the [g]overnment.BEHENNA—ARMY 20090234

10 Dr. MacDonell testified in re sponse to counsel questions on Saturday, 28 Februa ry 2009, that, as he was leaving the courtroom, he told the prosec uting group “t hat was just exactly what I told you.” In response to the court’s specific questions, however, Dr. MacDon ell admitted that he made that statement only to Dr. Berg during 1LT Behenna’s testimony . The [c]ourt finds that Dr.
MacDonell made the stat ement only to Dr. Berg.

Dr. MacDonell left the courtroom to return to New York before the Government bega n its cross-examination of
1LT Behenna.

On Friday, 27 February 2009, pr ior to the start of court that morning, [civilian de fense counsel] informed [g]overnment counsel about Dr. MacDonell[’s] statement and asked what he meant by it. Government counsel responded that they did not know, and that they were unaware of any exculpatory information. Government [c]ounsel’s response to [civ ilian defense co unsel] was an honest, good faith repr esentation, albeit inaccurate as it
relates to whether Dr. MacD onell actually [possessed]
favorable information for the [d]efense.

Defense [c]ounsel now asserts that it was re asonable to rely on [g]overnment coun sel’s response that Dr. MacDonell “did not possess” or “that they were unaware of” any exculpatory informati on to justify not pursuing the
matter further. The [c]ourt disagrees. There is only one reasonable interpreta tion of Dr. MacDonel l’s statement, in light of his area of expertis e i.e., that he would have testified that in his opinion th e forensic evidence in some way favorably suppor ted the [d]efense theory of the case.

Additionally, the mi litary judge found that the tria l counsel did not learn of Dr. MacDonell’s revised opinio n until they were notified by civilian de fense counsel the morning of Friday , 27 February 2009.

In addition to the military judge’s factua l findings, we find as follows. The
defense rested their case after appellant’s testimony. The go vernment had no rebuttal. The military judge began to discuss instructions and the court recessed at 1915 on 26 February 2009. The court did not resume on the re cord until 1244 on 27 February 2009. At that time the military judge noted there ha d been a series of Rule for Courts-Martial [hereina fter R.C.M.] 802 sessions with counsel that morningBEHENNA—ARMY 20090234

11 regarding instructions . The court closed for deliberation at 16 56 and findings were
announced at 2023 on 27 Fe bruary 2009. That same da y, Dr. MacDonell sent the
trial counsel an e-mail setting forth his re vised opinion. Trial counsel forw arded the
e-mail to the defens e immediately upon ope ning it. In adva nce of trial, Dr. MacDonell’s report was prov ided to the defense and th e defense inte rviewed Dr.
MacDonell. Dr. MacDonell’s ar ea of expertise is as a sc ene reconstructi onist and he is a renowned expert in bloodstain analysis.

LAW AND DISCUSSION

A. Failure to Disclose Favorable Information

We consider together the first three assignments of error in determining whether the government fail ed to disclose favorable information and whether the military judge er red by failing to grant appellant’s motion for a mistrial and petition
for new trial based on the alleged di sclosure failure.

We look first at whethe r the government failed to disclose evidence in
violation of Brady v. Maryland , 373 U.S. 83, 87 (1963) an d R.C.M. 701. Criminal defendants must be gi ven “a meaningful op portunity to present a complete defense.” California v. Trombetta, 467 U.S. 479, 485 (1984); United States v. Webb , 66 M.J. 89, 92 (C.A.A.F. 2008). That guarantee requires the pr osecution to disclose
evidence that is material an d favorable to the defense. Brady , 373 U.S. at 87; Webb

, 66 M.J. at 92. Whether undisc losed evidence is “material” is a question of law,
which we review de novo. United States v. Morris , 52 M.J. 193, 198 (C.A.A.F. 1999). In this case, material evidence, with respect to a specific request, is that which “might have a ffected the outcome of the trial.” See United States v. Agurs

, 427 U.S. 97, 106 (1976) . When an appellant demonstrates error with respect to a Brady nondisclosure, that appellant is entitled to relief only if th ere is a reasonable probability that there would have been a different resu lt at trial ha d the evidence
been disclosed. See United States v. Santos , 59 M.J. 317, 321 (C .A.A.F. 2004).

Rule for Courts-Martial 701 , “which sets forth specific requirements with respect to evidence favorable to the defe nse . . . implements the Supreme Court’s
decision in Brady v. Maryland . . . .” United States v. Williams , 50 M.J. 436, 440 (C.A.A.F. 1999) (internal q uotations and emphasis omitt ed). Rule for CourtsMartial 701(a)(6) directs the trial counsel to disclose

As soon as is practicable . . . the existenc e of evidence
known to the trial counsel wh ich reasonably tends to:

(A) Negate the guilt of the accused of an offense charged; (B) Reduce the degree of gu ilt of the accused of an offense charged; orBEHENNA—ARMY 20090234

12 (C) Reduce the punishment.

R.C.M. 701(a)(6). “We view our superior cour t’s guidance as requiring us to analyze nondisclosure issues under the statutor y and executive order standards set forth by R.C.M. 701 and Article 46, UCMJ, which are br oader than the Brady
constitutional standard.” United States v. Trigueros , 69 M.J. 604 (Army Ct. Crim. App. 2010), pet. denied , 69 M.J. 269 (C .A.A.F. 2010). See also Santos , 59 M.J. at 321; United States v. Roberts , 59 M.J. 323, 326-27 (C.A.A.F . 2004). As a result, the government bears the higher bu rden of proving, as a matte r of law, a nondisclosure in response to a specific request is harmless beyond a re asonable doubt. Webb , 66 M.J. 92; Roberts, 59 M.J. at 327.

Appellant claims the governm ent was required to disc lose to the defense Dr. MacDonell’s opinio n that, based on the fo rensic evidence, the victim was standing
when the first shot struck hi m in the ribs and then the se cond shot struck him in the head as he dropped to th e ground. Appellant claims this evidence was material because “it scientifically corroborated 1LT Behenna’ s testimony, supported the testimony of the two defense expert witnes ses, and impeached the inference from the testimony of SSG Wa rner and Harry that the victim wa s sitting when he was shot.”

We need not determine whether the claimed opinion is required to be disclosed pursuant to Brady and R.C.M. 701. It was di sclosed. The trial counsel undisputedly disclosed the opinion at issue by forwardi ng Dr. MacDone ll’s e-mail to
defense counsel as so on as she received it. The issu e here is whether there was a duty to disclose this opinion earlier and if so, whether the government complied with this duty. Ordinarily an opinion subjec t to disclosure argu ably rendered on a Wednesday evening and undisp utedly disclosed by late Friday evening would be routine compliance with discovery obligation s. However, in this case the defense
case drew to a close on late Thursday and a verdict was delivered by the members on Friday, prior to the trial counsel open ing the e-mail from Dr. MacDonell.

There are three potential ev ents that may have trig gered an earlier duty to disclose: 1) The Wednesday evening meeting as set fort h in the military judge’s factual findings; 2) the late Thursday afternoon encounter between Dr. MacDonell and defense counsel; and 3) the Friday mo rning encounter between trial and defense counsel. We agree with th e military judge that Dr. Ma cDonell’s demonstration on Wednesday night was “merely Dr. MacDonell’s attempt to reconcile the forensic
evidence with the te stimony of Dr. Radelat and Mr. Beve l. Dr. MacDonell’s original opinion, based on the fo rensic evidence and all other evidence known to him at the time, remained unchanged as of Wednesday.” Thus, this th eory was not discoverable
pursuant to Brady or R.C.M. 701(a)(6).

The second and third events are more problematic. During a court recess, while appellant was testifyi ng on direct examination, Dr. MacDonell informed theBEHENNA—ARMY 20090234

13 defense counsel that “I woul d have made a great witness for you.” When the defense counsel inquired as to why, Dr. MacDonell declined to answer and merely responded
that he could not di vulge any information as he was retained by th e government. The military judge specific ally found that “the Gove rnment never informed Dr.
MacDonell that he could no t speak to the Defense ab out the substa nce of his potential testimony.” In fact , the defense had previously been provide d his report and had previously interviewed him. We agree with the military judge that in light of Dr. MacDonell’s area of expe rtise, his statement provided “sufficient notice that he possessed favorabl e, if not exculpatory, information under both Brady and R.C.M.
701.” See Carter v. Bell , 218 F.3d 581, 601 (6th Cir. 2000) (“[T]here is no Brady
violation if the defe ndant knew or should have know n the essential facts permitting him to take advantage of the information in question, or if the information was
available to him from another sour ce.”). See also, e.g.

, United States v. Rigas , 583 F.3d 108, 126 (2d Cir. 2009); United States v. Erickson , 561 F.3d 1150 , 1163 (10th Cir. 2009); Owens v. Guida , 549 F.3d 399, 415 (6 th Cir. 2008). Confronted with this odd turnabout from a previously acce ssible expert witness who had just been exposed to the defense presen tation of their th eory of the case, defense counsel had
the essential facts and numerous avenues of eliciting further information from Dr.
MacDonell.

The next inquiry is whet her the third event, where the defense counsel
exercised one of those avenue s in a reasonable timeframe by asking the trial counsel
what Dr. MacDonell’s statem ent meant, triggere d an additional dut y on the part of the government. Government counsel responded only “that they did not know, and that they were unaware of any exculpatory information.” Both parties were now on
notice that Dr. MacDonell had asserted he possessed defense favorable or exculpatory information within his area of expertise. At this juncture, either party
could have taken action to st op or delay the proceedings while more information was obtained. Neither party chose to do so, at that time or anytime throughout the day. The military judge disagreed w ith the defense asse rtion that it was reasonable for the defense not to pursue furt her information based on the government statements. We rely on Carter in holding that base d on Dr. MacDonell’s dire ct statement to the defense, the government provided timely notice to the defe nse of favorable
information and there was no violation of either Article 46, UC MJ; R.C.M. 701; or Brady

.

We next consider whethe r the military judge erred in denying appellant’s motion for mistrial and petition for new tr ial following the revelation that the government failed to provide to the defense Dr. MacDonell ’s potentially exculpatory testimony. Rule for Courts-Martial 915(a ) vests military judges with the discretion
to declare a mistrial when “m anifestly necessary in the interest of justice because of circumstances arising during the proceedings which cast substantial doubt upon the fairness of the proceedings.” However, the discussion to the rule notes that mistrials are to be used only “under urgent circumstances, and for plain and obvi ous reasons.”BEHENNA—ARMY 20090234

14 R.C.M. 915 Discussion; United States v. Diaz, 59 M.J. 79, 90 (C .A.A.F. 2003). See also United States v. Garces, 32 M.J. 345, 349 (C.M.A. 1991 ) (mistrial is a drastic remedy used to prevent misca rriage of justice). Appellate courts will not reverse a military judge’s determination on a mistrial absent clear eviden ce of an abuse of
discretion. United States v. Ashby, 68 M.J. 108, 1 22 (C.A.A.F. 2009). A military judge abuses his discretion when his “fin dings of fact are clearly erroneous, the
court’s decision is influen ced by an erroneous view of the law, or the military judge’s decision on the issu e at hand is outs ide the range of choices reasonably arising from the applicab le facts and the law.” Webb, 66 M.J. at 93.

As to the petition for a ne w trial, appellant claims the milita ry judge erred by failing to grant him a new trial in light of the “new evidence ” of Dr. MacDonell’s opinion based on both his 29 February 2009 te lephonic tes timony and his affidavit clarifying his prior te stimony. “A new trial may be granted only on the grounds of newly discovered eviden ce or fraud on the court-martia l.” R.C.M. 121 0(f)(1). We review a military judge’s deni al of a petition for new trial for an abuse of discretion.
United States v. Bacon , 12 M.J. 489, 492 (C.M.A. 1982). We find none here.

The military judge found th at, had defense sought an order from th e court for the government to produce Dr . MacDonell either prior to resting their case on Thursday or coupled with a re quest to reopen their case on Friday morning, the court
would have denied that moti on. We conclude the milita ry judge’s assessment that Dr. MacDonell’s revised opin ion provided minimal eviden tiary value under Mil. R.
Evid. 403 was not an ab use of discretion. Th e military judge found

Dr. MacDonell’s opinion of the value of the forensic evidence never changed. He admitted that such evidence
did not lend itself to detailed interpreta tion. His original
conclusion was that the forensic evidence was not
inconsistent with the te stimony of “Harry” and SSG
Warner. His “revised” conc lusion was not based on a
reassessment of the forensic evidence, but rather his personal opinion of the cr edibility of 1LT Behenna’s testimony.

A military judge has “wide discretion ” in applying Mil. R. Evid. 403. United
States v. Manns , 54 M.J. 164, 166 (C.A.A.F. 2000). When a military judg e conducts
a Mil. R. Evid. 403 ba lancing test, his ruling will not be overtur ned unless there has
been a “clear abuse of discretion.” Id. “An abuse of discretion occurs when the trial court’s findings of fact are clearly erroneous or if the co urt’s decision is influenced by an erroneous view of the law.” United States v. Freeman , 65 M.J. 451, 453 (C.A.A.F. 2008). “The abuse of discretion standard is a strict one, calling for more
than a mere difference of opinion. The challenged acti on must be arbitrary, fanciful, clearly unreasonable, or clearly erroneous.” United States v. Lloyd , 69 M.J. 95, 99BEHENNA—ARMY 20090234

15 (C.A.A.F. 2010) (citations omitted). We find that the military judge would have been
within his discretion to exclude the evid ence Dr. MacDonell rend ered as his opinion
after the de fense case.

However, even if Dr. Ma cDonell had testified at trial in the light most favorable to appellant, 2 it would not have changed the outcome of the trial beyond a
reasonable doubt. 3 Most critically, we agree with the military judge:

The overwhelming evidence in this case supports a finding that 1LT Behenna immediately prior to the shooting, was assaulting [A.M.] with a load ed firearm while threatening to kill him if he did not provide the information 1LT Behenna was seeking. 1LT Behenna testified that he had no legal justification or legal ex cuse to interrogate [A.M.] at all and that he did [not] ha ve any legal justification or legal excuse to conduct an interrogation in the manner that he did. Although there are ma ny situations in a combat environment that would justify or excuse the pointing of a loaded firearm at someone, this was clearly not one of
those situations. In applying the law to the facts of this case, the members could come to no reasonable conclusion
other than 1LT Behenna did not have a right to selfdefense. Accordin gly, the [c]ourt is convinced beyond a
reasonable doubt that any evidence as to self-d efense didnot have, nor would any additional evidence as to selfdefense have, made a diffe rence in the [c]ourt’s
determination.

In conclusion, we find th e favorable evidence of Dr. MacDonel l’s revised opinion was timely di sclosed. Even if ther e was error in its disc losure, we find such

2 The most favorable version of Dr. MacD onell’s opinion, based on the forensic evidence, would have been that the victim was standing just before the first shot, which appellant then fired to A.M.’s chest. The second shot to the head occurred as the victim dropped in front of the muzzle of appellant’ s weapon. The second shot
would have had to have been fired immediately after the fi rst shot because, in this scenario, the victim w ould have immediately dropped to the ground as a result of the
first shot.

3 We are not persuaded by appellant’s argument that Dr. MacDonell’s testimony would have impacted appe llant’s sentence by making it seem other than an execution. Doctor MacDonell’s revised opinio n with respect to th e interpretation of
the forensic evidence was subs tantially similar to that of appellant’s two forensic
experts.BEHENNA—ARMY 20090234

16 error would not ha ve resulted in a diffe rent outcome at trial had the evidence been
disclosed ea rlier. See Santos , 59 M.J. at 321. We furthe r find, under th e heightened
disclosure burden under Article 46, UCMJ and R.C. M. 701, any error by the government in the timing of the disclosu re was harmless beyond a reasonable doubt.
See Webb , 66 M.J. at 92; Roberts , 59 M.J. at 327. As such, we conclude the military judge did not abuse his discre tion in denying the mistrial and the petition for a new trial. His findings of fact are supported by the record, his view of the law was not erroneous, and his decision was well within the rang e of reasonable choices
available.

B. Instruction on Self-Defense

This court reviews allega tions of error for mandatory instruct ions under a de
novo standard. United States v. Lewis , 65 M.J. 85, 87 (C.A.A.F . 2007). A military judge is required to instruct panel members on any special defenses “in issue.” R.C.M. 920(e)(3). A matter is considered “in issue” when “some evidence, without regard to its source or cr edibility, has been admitted u pon which members might rely if they choose.” R.C.M. 920(e) Discussion; United States v. Gillenwater , 43 M.J. 10, 13 (C.A.A.F. 1995). Certai n defenses, such as sel f-defense, are considered special defenses or affirm ative defenses because “alth ough not denyin g that the accused committed the objective acts constituting the offense charged, [the appellant denies], wholly or partially, criminal responsibility for those acts.” R.C.M. 916(a). Self-defense is a prin ciple of protection. United States v. Cardwell , 15 M.J. 124, 126 (C.M.A. 1983) (“The theory of self-def ense is protection and not aggression, and to keep the two in r ough balance the forc e to repel should approxim ate the violence threatened.”)

In this case, the military judge did not err; he rendered legally correct and appropriate self-defense instructions tailored to the evidence presented. First the military judge ga ve a correct standard instruction that the evidence had raised the
issue of self-defense with re gard to the offenses of premeditated and unpremeditated
murder. 4 He then gave the following tailored instruction with regards to loss of and regaining the right to self-defense:

4 The military judge gave the following general self-defense instruction:

For self-defense to exist the accused must have had a reasonable apprehension that death or grievous bodily
harm was about to be inflicte d on himself and he must have actually believed that the force he used was
necessary to preven t death or grievous bodily harm. In other words, self-defense has tw o parts: first, the accused

(continued . . .)BEHENNA—ARMY 20090234

17 Now there exists evidence in this case that the accused may have been assaulting [A.M .] immediately prior to the shooting by pointing a load ed weapon at him. A person who without provocation or ot her legal justification or
excuse assaults an other person is no t entitled to selfdefense unless the person bein g assaulted escalates the
level of force beyond that which was originally used. The burden of proof on this issue is on the prosec ution. If you are convinced beyond a reasonable doubt that the accused, without provocation or other legal justification or excuse, assaulted [A.M.] th en you have found that the accused gave up the right to self-defen se. However, if you have a
reasonable doubt that the accused as saulted [A.M.], was provoked by [A.M.], or had some other legal justification or excuse, and you are not c onvinced beyond a reasonable doubt that [A.M.] did not escalate the leve l of force, then you must conclude that the ac cused had the ri ght to selfdefense, and then you must determine if the accused actually did act in self-defense.

The military judge’s instructions, ta ken together, properly instructed the members, based on the law and facts, as to appellant’s right to self-defense. The instructions fully encompassed the defense’s theory of the case at trial pertaining to self-defense. The defense theory was th at appellant did not assault the victim because pointing a loaded we apon at a combatant in a war zone is not an assault. Additionally, they argued that the victim escalated the le vel of force by throwing a piece of concrete near ap pellant and “getting up wi th his hands out towards [appellant’s] weapon.”

The military judge’s tailor ed instructions correctly set forth the applicable established principle: A pe rson who, without provocation or other legal justification or excuse, assaults an other person is not entitled to self-defense unless the person being assaulted escalates the level of force beyo nd that which was originally used.

(. . . continued)
must have had a reasonable be lief that death or grievous bodily harm was about to be in flicted upon himself. The
test here is whether u nder the same facts and circumstances present in this case, an ordinary, prudent adult person, faced with the same situation would have believed that there were grou nds to fear immediate death or serious bodily harm; seco nd, the accused must have actually believed that the amoun t of force that he used was required to protec t against death or serious bodily harm.BEHENNA—ARMY 20090234

18 See R.C.M. 916(e)(1); Lewis , 65 M.J. at 88; United States v. Dearing , 63 M.J. 478, 484 (C.A.A.F. 2006); Cardwell , 15 M.J. at 126. Furt her, the mili tary judge clearly
instructed the burden of proof was on the governme nt. R.C.M. 916(b)(1).

In this case, a key factor is the appellant’s use of deadly force. Acknowledging the law and fact s, the military judge also instructed, “If you are convinced beyond a reasonab le doubt that the ac cused, without prov ocation or other legal justification or excuse , assaulted [A.M.] then you have found that the accused gave up the right to self-defense.” This is a correct legal stat ement in light of the uncontroverted evidence establishing that appellant, in a si tuation of his own creation, was within tw o to three feet of an isolated , naked, and unarmed A.M., and, while pointing a loaded Glock pistol at him, threatened to kill A.M. The law does not, under these facts, allow for self-d efense if the memb ers found beyond a reasonable doubt appellant’s actions to be an assault. If, confronted by this demonstration of deadly forc e, A.M., under these circumst ances, attempts to turn the very same Glock pistol towa rds appellant, his assailant, there can be no escalation sufficient legally to excu se A.M.’s killing.

The military judge then addressed the factual possibility that appellant’s pointing of a loaded pistol at the victim did not me et the above lega l requirements.
He addressed the defense’s theo ry of the case by instructi ng the members that if they
had “reasonable doubt that the accused assaulted [A.M.] , was provoked by [A.M.], or had some other legal justification or excuse, and . . . are not convince d beyond a
reasonable doubt that [A.M.] did not escalate the level of force,” th e members had to conclude appellant had the right to self-def ense. The military judge then instructed the members that they then had to apply the general self-defense instruction to determine if appellant actually did act in self-defense. Based on the facts of this case, escalation by A.M. is not an indepe ndent basis for determ ining that appellant had the right to self-defense , but rather a nece ssary component in the determination of whether appellant had th e right to self-defense since appellant was pointing a loaded Glock pistol at A.M. threatening to kill him.

Appellant now contends that the milit ary judge erred by not instructing on appellant’s opportunity to withdraw. An initial aggressor is still entitled to use deadly force in his own defe nse if he is physi cally unable to withdraw in good faith
or there is escalati on of the level of force beyo nd that which the aggressor is employing. Lewis , 65 M.J. at 89 (“[A] mutual combatant could regain the right to
self-defense when the conflict is escalated or . . . when he is un able to withdraw in good faith.”). In this case the defens e did not request an in struction on ability to
withdraw and “some evidence ” upon which the members c ould reasonably rely to support such an instruction was not presented. R. C.M. 920(e)(3); Gillenwater , 43
M.J. at 13.BEHENNA—ARMY 20090234

19 Appellant was the aggressor and had ev ery opportunity to withdraw from the
situation of his own creation. Appellant took th e bound and blindfolded victim in a military convoy to a remote culvert in the middle of the desert. He stripped A.M. of his clothes, leaving the vic tim wearing only his sandals. Appellant then had the
flexicuffs cut off of the vic tim and required him to sit f acing appellant, naked, on a rock as appellant, po inting a loaded Glock, threatened to kill A.M. Appellant stood
about two feet inside the culvert with his tr anslator ten meters outside the culvert. Appellant claims that while looking left towards his translator, a piece of cement was thrown just past his le ft shoulder, so he looked right and saw the naked and unarmed victim “getting up with his hands out towards [his] we apon.” Appellant moved to the left, towards the culvert entran ce, in order to put distance between him
and the unarmed victim. The appellant and victim were approximately two to three feet apart. There is no ev idence that A.M. actually ma de contact with appellant’s weapon. At that poin t, the appellant, in fu ll battle armor, with much of his platoon standing nearby, ready to defend him, did not keep movi ng to the left away from the
victim into the va st expanse of desert, did not shout for assist ance, but instead shot the victim two times. Appellant had every opportunity to withdraw from the
confrontation and there was no evidence he ei ther attempted or was unable to do so. As such, the military j udge was not requir ed to instruct on inabili ty to withdraw as it was not “in issue,” and we fi nd no error in his failure to do so. R.C.M. 920(e)(3);
Gillenwater , 43 M.J. at 13.

C. Failure to Instruct on Voluntary Manslaughter as Lesser-Included Offense

Appellant claims the military judge erre d by failing to sua sponte instruct on
the lesser-included of fense of voluntary ma nslaughter based on fe ar from “adequate provocation caused by throwing a piec e of concrete and reaching for the Lieutenant’s pistol,” the evidence of appell ant’s acute stress diso rder, and the anger, rage, and fear he felt to wards the victim based on his prior knowle dge of and interactions with the victim. We disagree. The evidentiary thresh old to trigger such an instruction was not surpassed on the facts of this case.

By all accounts, prior to the incident in the culvert, the victim did not provide any resistance or display any violence while detained by U.S. fo rces. Additionally, appellant testified as to his consistent an d methodical escalation of tactics designed
to scare and humiliate the vi ctim into providing information. The tactics reached a point where appellant was in the culvert, with appellant pointing hi s loaded pistol at the naked, unarmed vi ctim sitting on a piece of concrete, while appellant was threatening to kill him. Appellant testified he looked toward his left at Harry, ostensibly to ascertain a translation of something [A.M.] said. Appellant then testified as follows during his direct examination:

Appellant: As I turned my he ad to the left, I hear a sound of a piece of conc rete hitting concrete over my leftBEHENNA—ARMY 20090234

20 shoulder. Immediately, I tu rned to my—ri ght. You know, my weapons [sic] like this [demonstrating.] [A.M.] is getting up with his hands ou t toward my weapon. I stepped to the left and fired two shots.

Civilian Defense Counsel (CDC): Why did you step to the
left?

Appellant: To create distance from [A.M.].

CDC: How far apart were you?

Appellant: At the be ginning? . . . We we re about 2, 3 feet
from each other.

CDC: All right, all right, and how much time was the
distance between the two shots?

Appellant: A bout a second.

CDC: Why did you fire two shots?

Appellant: We shot in what is called a controlled pair and naturally I had shot two shots, a controlled pair.

CDC: And why did you fire at all?

Appellant: Because when [A.M.] was standing up, reaching toward my weapon, this happened fast. As I turned [A.M.] was reaching up toward my weapon, getting up, I stepped to the left and fired two shots.

CDC: Why?

Appellant: I was scared [A .M.] was going to take my weapon and use it on me, but this happened fast.

CDC: Now, did you have time to think about it?

Appellant: No, sir. Th at’s what I’m telling you.

During cross-examination, appellant furt her testified that he felt A.M. was a threat to him while he was sitting on a rock and stripped of his clothes.BEHENNA—ARMY 20090234

21 Trial Counsel: You had your full gear on . . . [helmet, IBA, M-4] . . . [y]our Gloc k . . . [o]ut and pointed?

Appellant: Yes, sir.

TC: [A.M.] didn’t ha ve anything, did he?

Appellant: N o, sir. .. . .

TC: You also had Sergeant Warner; he had his M-4 . . . [a]nd all sorts of gear?

Appellant: Ye s, sir . . . .

TC: [A.M.] was not a threat to you at that point, was he?

Appellant: Yes, sir.

TC: An unarmed detainee, na ked, your testimony is that
he was a threat?

Appellant: Yes, sir.

We review de novo whether the milita ry judge shou ld have instructed the panel members sua sponte on voluntary manslaughter. See Lewis , 65 M.J. at 87. Voluntary manslaughter serves as a special defense to premeditated murder, but not
an absolute defense. An “unlawful killing without jus tification or excuse,” would ordinarily be prem editated murder. Manual for Co urts-Martial

, United States , (2008 ed.) [hereinafter MCM ], Part IV, para. 43 c.(1). However, when that same killing is
committed “in the h eat of sudden pass ion caused by adeq uate provocation,” premeditated murder mitigates to voluntary manslaughter. MCM , Part IV, para. 44c. (1)(a).

The MCM and military case law have long held that “heat of passion” may
result from fear or rage. Id. ; United States v. Bellamy , 15 U.S.C.M.A. 617, 620, 36 C.M.R. 115, 118 (1966); United States v. Desroe , 6 U.S.C.M.A. 681, 691, 21 C.M.R. 3, 13 (1956) (“fear may be sufficient to ex cite uncontrollable passion”). However, for a premeditated murder to mitigate to voluntary manslaughter, fear simply is not enough. Adequate provocation must al so be present. United States v. Kentucky , 8 U.S.C.M.A. 553,557, 25 C.M.R. 57, 61 (1958) (“[T]he pres ence of passion induced by fear does not reduce murder to manslaughter by itself; adequate provocation for the passion must also be present.”); United States v. Snyder , 6 U.S.C.M.A. 692, 696, 21 C.M.R. 14, 18 (1956) (“Provo cation sufficient to pr oduce heat of [passion], resulting in a befuddlement of the senses of the killer an d an absence of malice, mayBEHENNA—ARMY 20090234

22 give such a character to a hom icide as to reduce it to volun tary manslaughter . . . .”) (citing Wallace v. United States , 162 U.S. 466 (1896)). The provocation must be adequate to excite uncontro llable passion in a reasonable person and the act of killing must be committed under and because of that passion. MCM , Part IV, para. 44c.(1)(a).

We now consider the questi on of whether here there is sufficient evidence of provocation which “would have any reasonable tendency to produce sudden and uncontrollable anger and heat of blood in the ordinary man” as to require an
instruction to the members. United States v. Clark , 22 U.S.C.M.A. 576, 580, 48 C.M.R. 83, 87 (1973), citing Bellamy , 15 U.S.C.M.A. at 620, 36 C.M.R. at 118.
Based on the facts of this case , we find no error in the mi litary judge’s failure to sua sponte instruct on vo luntary manslaughter. The allege d provocation in this case is
not such that it would excite uncontrollable pass ion in the mind of a reasonable

person.

Considering the evidence in the light most favorable to appellant, in this case, appellant effectively neutra lized the victim’s capacity to cause him any harm. Appellant took A.M. blindfol ded, unarmed, and bound, to a remote location in a convoy of armed U.S. soldiers. In this remote environment, appellant was in a clear position of power and secure enough to remove the flexic uffs binding the victim. Appellant testified his intent , his plan, was to interrogat e the victim and then allow
him to leave. He ev en hoped to make him a source. Appellant further testified that he only became fearful upon hearing concrete hitting the wall and seeing A.M. standing up to reach for his weapon. A.M. was unsuccessful in ev en touching the weapon and appellant was able to purposely step to the left to put distance between him and A.M. Appellant then fired two “con trolled pair” rounds. The facts of this
case do not describe a situation where “ade quate provocation” and fear are present to
incite uncontrollable passion in the mind of a reasonab le person.

Although appellant did testif y that he felt “startle d” and “panic[ked]” and “wasn’t thinking clearly,” this was how he felt subsequent to the shooting. He testified that prior to the shooting he did no t think because it happened so fast. This is distinctly different from alleging he was precluded from thinking due to an uncontrollable passion. Considering all of th e facts in the record, there is simply insufficient evidence to require a sua sponte instruction on volu ntary manslaughter. We find no error by th e military judge.

CONCLUSION

Upon consideration of th e entire record, the findings an d sentence are
AFFIRMED.BEHENNA—ARMY 20090234

23 Senior Judge TOZZI and Senior Judge SIMS concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.
Clerk of Court MALCOLM H. SQUIRES, JR.
Clerk of Court FOR THE COURT: