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United States v. Behenna, 70 MJ. 521 (Army Ct. Crim. App. July 21, 2011), pet. for grant of rev. filed, No. 12-0030/AR (C.A.A.F. Sept. 19, 2011).

Procedural History: Behenna was convicted of unpremeditated murder and assault. During appeal, Behenna claimed he was denied the right to a fair trial when a prosecution witness who could confirm his account of the events surrounding the victim's death was not permitted to testify. The witness, Dr. Herbert MacDonell, a forensic expert consultant retained by the government, told the prosecution that based on the evidence, the victim must have been reaching for Behenna's gun at the time he was shot, making Behenna's actions in shooting him justified. Defense counsel were not informed about the possible exculpatory evidence until after Behenna was convicted when MacDonnell approached them.

The ACCA had to decide whether the government failed to disclose favorable information under Brady and RCM 701(a)(6), and whether the military judge erred by not granting appellant's motion for a mistral and petition for new trial based on the alleged failure to disclose.

Facts: Behenna deployed to Iraq in September 2007. He was the platoon leader of an eighteen-man platoon responsible for the Albu Toma area, which was north of Baghdad and Tikit. Behenna's mission was to man the checkpoint at Forward Operating Base (FOB) Surnmerall, to serve as the battalion quick reaction force (QRF), and to conduct missions within Albu Toma. The Albu Toma mission involved counter-insurgency operations, operations with Iraqi Security Forces, including the Concerned Local Citizens (CLC), the Iraqi Army, the Iraqi Police, and the leadership in Albu Toma. Behenna got information that led him to believe that A.M. was an individual concerned with insurgency groups and active in terrorist attacks against Behenna's platoon. Previously, an IED attack on Behenna's platoon resulted in the death of two soldiers, a translator, and a couple of Iraqi CLC members. Behenna Went to A..M.'s house, began interrogating him, but A.M. failed to provide the information sought. Behenna detained A.M. and brought him back to FOB Sunmerall for further questioning. Behenna was finally given an order to return A.M. to Albu Toma. However, Behenna did not drop off A.M. as ordered. Rather, Behenna directed his four-truck convoy to travel through the desert as the route back o FOB Surnmerall. Behenna halted the convoy at a remote location next to two railroad culverts, had A.M. removed from the truck, and taking only A.M., a translator, and SSG Warner with him, traveled through the first culvert and into the second culvert located about seventy-five meters from the first culvert. The culvert was made of concrete and was ten feet wide, eight to nine feet high, and thirty feet long. Behenna did not want to involve any of his soldiers as he knew his planned interrogation was unauthorized. Behenna testified that immediately before the shooting, he heard A.M. say something different than denying having any information so he turned his head let towards his interrogator for the translation, Behenna also testified that, as he did so, he heard the sound of concrete hitting the wall over his left shoulder. Behenna stated he turned his head right and saw A.M. "getting up with his hands out toward his weapon." Behenna moved to the left and fired two shots. There was about one second between shots. Behenna testified that he was "scared A.M. was going to take his weapon and use it on him, but this happened fast." Behenna also testified he had his finger right outside 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 concrete was thrown.

Holding: The court affirmed the findings and sentence. The ACCA observed no Brady violation and no issue under RCM 701 or Art. 46, UCMJ, since the defense was aware at some point relatively close in time to the formation of the potentially exculpatory evidence that Dr. MacDonell had potentially favorable information for the defense. Specifically, the evidence consisted of Dr. MacDonell's forensic opinion that would have bolstered Behenna's self-defense argument. Given MacDonell's curious statement to defense counsel about his ability to have been a 'good witness for the defense,' the court observed the defense knew or should have known of the probability that Dr. MacDonell possessed potentially helpful information, yet the defense decided not to pursue the issue until after the defense rested its case. The court also found no issue with the trial counsel's disclosure of MacDonell's opinion as soon as trial counsel knew of the opinion. Further, the court held that even if Dr. MacDonell's opinion testimony had been put before the members during findings, it would not have influenced the outcome of the court-martial, especially given the fact that the defense had its own expert witnesses testify along the same lines as MacDonell would have.

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