United States v. Anderson - U.S. Court of Appeals for the Armed ...

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United States v. Anderson, No. 08-0344/ARto obtain a conviction.” United States v. Russell, 411 U.S.423, 431-32 (1973) (citation omitted). Appellant did not objectto the testimony or qualifications of the Government’s rebuttalexpert, and we therefore review the military judge’s failure toact for plain error. See United States v. Powell, 49 M.J. 460,463-65 (C.A.A.F. 1998) (holding that failure to object at trialshould cause this Court to review solely for plain error, i.e.,error that is clear or obvious and materially prejudicial to anappellant’s substantial rights).As a threshold matter we note that Appellant does notargue, and it is not the law, that having expert type A forAppellant and expert type B for the Government on rebuttal isper se unfair. See Warner, 62 M.J. at 119 (requiring thedefense expert to “have qualifications reasonably similar tothose of the Government’s”). Nor does Appellant detail how Dr.Norris was inadequate.In any event, we need not decide an issue of firstimpression, whether the military judge’s failure to stop thetrial and appoint a forensic psychologist to Appellant becausethe Government had one testify on rebuttal was error, let aloneplain error, because Appellant was not prejudiced by the limitedrebuttal testimony of the Government’s forensic psychiatrist.See Article 59, UCMJ, 10 U.S.C. § 859 (2000); United States v.Farley, 60 M.J. 492, 493 (C.A.A.F. 2005) (“We need not decide12
United States v. Anderson, No. 08-0344/ARwhether there was error, because any error was harmless.”).Because Appellant raises a due process argument, our test forprejudice must be whether the challenged action was harmlessbeyond a reasonable doubt. United States v. Buenaventura, 45M.J. 72, 79 (C.A.A.F. 1996); see Ake v. Oklahoma, 470 U.S. 68,86-87 (1985) (reversing and remanding case for a new trialbecause denial of expert assistance deprived defendant of dueprocess); United States v. Crews, 781 F.2d 826, 834 (10th Cir.1986) (finding prejudice where expert assistance wrongfullywithheld was indispensible for a fair trial).Dr. Malone’s testimony added little to the Government’scase and bolstered the testimony of Appellant’s experts. Ratherthan attack the diagnoses of Appellant’s experts, Dr. Malonenoted that there were legitimate reasons for the discrepancy indiagnosis among the two defense experts and that theirconclusions were entirely reasonable. The only discrepanciesbetween the testimony of Dr. Malone and either defense expertconcerned the importance of certain evidence to a clinicaldiagnosis and the affect of Asperger’s Syndrome on cognitivefunctioning, and those discrepancies were between Dr. Malone andAppellant’s treating psychiatrist, not the court-appointedpsychologist. 3Because the Government’s rebuttal expert’s3 The evidence at issue was a videotape of Appellant meeting withtwo undercover agents on February 9, 2004. On the tape13
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