United States v. Matthews

13 M.J. 501, 1982 CMR LEXIS 1051

• Court: U.S. Army Court of Military Review
• Decided: March 17, 1982
• Docket: CM 439064
• Status: Published

Opinions

OPINION OF THE COURT

FOREMAN, Judge:

The appellant was charged with premeditated murder and rape, in violation of Articles 118 and 120, Uniform Code of Military Justice, 10 U.S.C. §§ 918 and 920 (1976), respectively. The case was referred to a general court-martial as a capital case. The appellant tendered pleas of guilty to both charges and specifications, but his pleas were rejected by the military judge, because a plea of guilty may not be received to a capital offense. Article 45(b), Uniform Code of Military Justice (hereafter cited as “UCMJ”), 10 U.S.C. § 845(b) (1976); paragraph 70a, Manual for Courts-Martial, United States, 1969 (Revised edition) (hereafter cited as “MCM”). The appellant then pleaded not guilty to premeditated murder, but guilty to the lesser included offense of unpremeditated murder, and not guilty to rape. He was convicted of premeditated murder and rape, and on 3 July 1979 he was sentenced to be put to death, to be dishonorably discharged, to forfeit all pay and allowances, and to be reduced to Private E-l. The convening authority approved the sentence. The case is before this Court for mandatory review pursuant to Article 66, UCMJ, 10 U.S.C. § 866 (1976).

The appellant has challenged the in personam jurisdiction of the court-martial, the adequacy of the record of the pretrial investigation, the qualifications of the court members and the military judge, the refusal of the military judge to accept the appellant’s guilty pleas, the propriety of the trial counsel’s opening statement, the failure of the prosecution to give proper notice of grants of immunity, the legality of admitting certain photographs of the victim, the sufficiency of the evidence, the propriety of his own counsel’s opening statement and closing argument before the court members, the constitutionality of the death penalty, and the appropriateness of the sentence.

I. FACTS OF THE CASE

The victim, Phyllis Jean Villanueva, worked as a librarian at the Camp Algiers library, located at Grafenwoehr, Federal Republic of Germany. The appellant was assigned to Battery B, 1st Battalion, 14th Field Artillery, which had arrived at Grafenwoehr during late January 1979.

At about 1500 hours on the afternoon of 27 February 1979, Private First Class Brian K. Taub and Private First Class Silvester A. Flores observed the appellant in the vicinity of the library, following Mrs. Villanueva and apparently attempting to engage her in conversation.

Specialist Four Larry B. Lawson was in the library at about 1700 hours. He, the appellant and Mrs. Villanueva were the only persons in the library. Lawson observed the appellant talking to Mrs. Villanueva and leaning over her desk, at which she was seated. The appellant asked Mrs. Villanueva for a date, but she replied that she was a happily married woman. The appellant then asked Mrs. Villanueva for some “sexy books” but she told him to obtain them from the post exchange book store across the street. When Specialist Lawson departed the library about 1720, the appellant was wandering around and appeared to be merely passing time.

At about 1845 hours, Sergeant Mario Ledezma saw the appellant at the laundromat adjacent to the library, but he noticed nothing unusual. A short time later, Sergeant Ledezma tried to enter the library but found the entrance locked, which was unusual because the “closed” sign was not posted and the library was usually open until 2000 hours.

During the early evening the appellant was observed by several soldiers as he entered his barracks wearing a white T-shirt, khaki pants over green sweat pants and white tennis shoes. He had blood on his shirt, pants, hands and arms. Specialist Four Mark A. LaRue saw the appellant enter and asked him if he had been in a fight, but the appellant did not respond. A few minutes later, the appellant asked La-Rue if he (the appellant) had blood on his face and LaRue answered in the negative. The appellant returned to his own area of the barracks where a group of soldiers gathered around, including Private Darrell D. Hughley. The appellant removed the bloody T-shirt and khaki pants and left them on the floor. Hughley picked up the T-shirt but the appellant snatched it away. Hughley asked the appellant what had happened and the appellant replied that he had been in a fight off-post. Hughley, noticing the absence of any marks on appellant’s face, told the appellant that he did not believe him. The appellant then said, “I done killed this bitch.”

Specialist Four Jerome Turner, one of the soldiers gathered around the appellant, joined the conversation and the appellant told Turner that he “just went berserk.” The appellant told Turner, “I was stabbing her, I was f___ing her, I was stabbing her, I was f___ing her, I was stabbing her.”

Hughley and others told the appellant to take a shower, and appellant complied. He returned to his area wearing an Army-issue blue physical training uniform and combat boots. He was then observed trying to bum blood spots off the green sweat pants.

During the conversations among the appellant and his fellow soldiers, the appellant asked Specialist LaRue to keep a bloodstained sweater for him, but LaRue ignored him. The appellant gave a watch, later identified as Mrs. Villanueva’s, to Specialist Turner and asked him to hold it.

Later in the evening, Specialist Four James R. Bagwell approached the appellant, unaware of the earlier events, intending to borrow money from him. The appellant and Bagwell were from the same home town and were friends. The appellant was sitting on his foot locker and crying, saying his mother was sick. Bagwell asked to borrow some money and the appellant responded that he had none. At Bagwell’s invitation they started walking toward the beer hall. As they were walking, the appellant told Bagwell, “Home boy, I think I f___ed up again ... I think I killed the woman ... I stabbed her.” Bagwell said he didn’t want to hear about it. After they each drank a beer, the appellant said, “I got to go back. I forgot something. I left a six-pack of beer.” As they were walking back to the barracks from the beer hall, Bagwell asked the appellant to tell him what had happened. The appellant told Bagwell that he waited in the library until everyone had left and then began a conversation with Mrs. Villanueva. The appellant told Bagwell that Mrs. Villanueva had implied that she was interested in having sexual intercourse with him. The appellant said that he asked Mrs. Villanueva to obtain a book for him, and while she was obtaining it he locked the door and followed her to the back of the library. The appellant told Bagwell that he repeatedly poked Mrs. Villanueva in the ribs with a pair of scissors because “she wouldn’t move right.” Then the appellant said, “she made me mad, and I just starts stabbing her all over, in her eyebrows ... I just stabbed her all over."

The appellant, followed by Bagwell, returned to the library and retrieved his six-pack of beer and some scissors. On the way back to the barracks, the appellant told Bagwell, “I think she’s dead, she didn’t move.” The appellant told Bagwell that he wore gloves while he was in the library earlier, but that the beer had his fingerprints on it. The appellant also remarked that his victim was a warrant officer’s wife.

Back at the barracks the appellant put the scissors in a pair of socks. He took a pair of woman’s panties from a brown paper bag, smelled them and offered to let Bagwell smell them. Bagwell noticed a pair of woman’s shoes in the bag. There were no blood stains on either the panties or the shoes. The appellant also showed Bagwell his own underwear shorts, pointing out what the appellant said were semen stains. The appellant gave Bagwell a set of keys, later identified as Mrs. Villanueva’s, a pair of scissors, and the bag containing the woman’s shoes. The appellant placed the panties in his pocket. At the appellant’s request, Bagwell threw away the keys and scissors and burned the shoes.

At about 2100 hours Chief Warrant Officer Candelario P. Villanueva, the victim’s husband, became concerned because his wife was late returning home. He obtained a ride to the library from Staff Sergeant Larry Ealy, a neighbor. Mr. Villanueva found the library dark but the door unlocked. He entered, turned on the lights, and found his wife lying in a pool of blood, barefoot and naked below the waist. Mr. Villanueva covered his wife’s pubic area with a towel and asked Sergeant Ealy to summon an ambulance and the military police.

As agents of the Grafenwoehr CID office entered the library, they noticed feces near the front entrance, near the librarian’s desk, and against Mrs. Villanueva’s right thigh, indicating that she had defecated while moving between the front entrance and the rear work area where the body was found. No blood stains were found beyond the rear work area.

Specialist Pour Robert S. Forry, returning from off-post late on the night of 27 February 1979, saw smoke and the remains of a smoldering fire next to the barracks. The next morning he found shoe soles, underwear, socks, and some plaid material, all partially burned.

On the morning of 28 February 1979, the appellant showed Private Hughley some Army gloves and told Hughley he was going to dip them in diesel fuel to get the blood off. The appellant asked Hughley to write a letter for him in order to obtain leave to visit his sick mother, and Hughley agreed. The appellant said he was too nervous to write the letter.

The keys and scissors thrown away by Bagwell were later recovered by the CID with Bagwell’s assistance. The scissors were found to contain blood and hair fragments consistent with the blood type and pubic hair of Mrs. Villanueva.

The appellant’s green sweat pants were seized from his wall locker, and his tennis shoes were found on the roofs of two separate buildings. The sweat pants and tennis shoes were found to contain blood stains of the same type as Mrs. Villanueva’s but unlike the appellant’s. Several bloody foot prints at the library were found to have been made with the appellant’s tennis shoes.

An autopsy was conducted on Mrs. Villanueva on 1 March 1979, which revealed 53 stab wounds, of which 6 were potentially fatal. There were a total of seven stab wounds in her left temple area. On her face were 13 stab wounds and a blunt force injury around her left eye. Based upon the amount of bleeding, the pathologist concluded that the wounds to the face probably were inflicted first. There were multiple neck wounds, including one fatal wound which pierced her jugular vein. There were six chest wounds, including two fatal wounds to her lungs and three fatal wounds to her heart. There were multiple non-fatal wounds in the abdomen, one in her pubic area, and several in her left back. Several “defensive” wounds, of the type usually inflicted when a victim attempts to defend, were found on Mrs. Villanueva’s hands. There were numerous superficial scratches on her face, pubic area and back. In addition, there was a large laceration of the vaginal wall, probably inflicted by a sharp instrument after her death.

The pathologist found sperm in Mrs. Villanueva’s vagina, which he estimated to be three or four days old as of 1 March 1979, the date of his examination. The pathologist testified that sperm would be detectable for up to a week after intercourse, but usually was detectable only for a shorter period. Mr. Villanueva testified that he and his wife last had sexual intercourse on the Thursday before her death, which occurred on the following Tuesday.

The appellant was evaluated by Major Larry D. Reed, a psychiatrist. Major Reed found that the appellant was free from substantial mental disease or defects and did not lack substantial capacity to appreciate the criminality of his conduct or the ability to control his conduct to the requirements of the law. However, Major Reed also found that the appellant has an IQ of 64,¹ making him “mildly retarded,” and has an “explosive personality disorder.” Although not schizophrenic, the appellant has opposing feelings of good and evil within himself. When he drinks, the evil side manifests itself. Because of his low intelligence, the appellant tends to think in concrete instead of abstract concepts. Consequently, he tends to react to perceived injustice by angry and violent behavior. The appellant told Major Reed that he drinks heavily and sometimes provokes fights with the intention of being killed. On cross-examination, Major Reed conceded that the appellant may have a “death wish” to be executed for his crimes.

II. JURISDICTION

The appellant contends that the court-martial had no in personam jurisdiction over him because his enlistment was void ab initio, due to the misconduct of an Army recruiter. He contends that the recruiter, Sergeant Daryle Roberts, actively participated in obtaining his release from probation in violation of Army regulations; that Sergeant Roberts advised him to conceal a non-waivable disqualification for enlistment, i.e., his past history of alcoholism; and that Sergeant Roberts obtained a waiver of his moral disqualification (i.e., criminal record) for enlistment based upon incomplete documentation. See generally United States v. Russo, 1 M.J. 134 (C.M.A.1975).

Prior to his enlistment into the Army the appellant, then 19 years old, was arrested on 10 March 1976 for “unlawful taking, receiving stolen goods, burglary, conspiracy, and resisting arrest.” On 29 September 1976, at his request, the appellant was placed in the Accelerated Rehabilitative Disposition (ARD) Program of the Court of Common Pleas of Delaware County, Pennsylvania, and was placed on probation for two years.

On 5 January 1977, the appellant was interviewed by Miss Susan A. Pringle, a probation officer, who entered in her notes that the appellant was “definitely a problem drinker — probably alcoholic.” On 10 January 1977, the appellant voluntarily entered the Crozer-Chester Medical Center in Chester, Pennsylvania for in-patient treatment of his drinking problem.

In May 1977, the appellant contacted Sergeant Roberts, an Army recruiter in Chester, Pennsylvania, and expressed interest in enlisting. At that time Sergeant Roberts informed the appellant that he could not enlist without a “moral waiver” because of his civilian arrest and conviction record, and that he could not enlist while on probation.

At the trial, Sergeant Roberts testified that he contacted Miss Pringle, with whom he was acquainted from prior official contacts, told her that the appellant desired to enlist, informed her that he was prohibited from approaching anyone in an effort to terminate the appellant’s probation, and advised her that he had directed the appellant to her so that the appellant could initiate action to terminate his probation. Sergeant Roberts testified that Miss Pringle advised him of her intention to ask the court to terminate the appellant’s probation.

On 9 June 1977, the probation office requested the court to dismiss the charges against the appellant, which had been held in abeyance as part of the ARD Program. They also requested early termination of the two-year probation.

The request recited that the appellant’s first day of military service would be 17 June 1977, a fictitious tentative date provided by Sergeant Roberts. Miss Pringle testified that she and Sergeant Roberts had worked out a system of using “tentative enlistment” dates to solve a “Catch-22” problem created by the fact that the court would not terminate probation until the appellant enlisted, yet the appellant could not be enlisted until the court terminated the probation.

In accordance with Miss Pringle’s request, the charges against the appellant were dismissed and his probation was terminated on 7 July 1977. The appellant enlisted in the U. S. Army Reserve on 15 July 1977 under a “delayed entry” program. He then enlisted in the Regular Army and entered active service on 2 August 1977.

The appellant testified that he told Sergeant Roberts that he was an alcoholic, and that Sergeant Roberts advised him to conceal his alcoholism. The appellant also testified that he listed his treatment for alcoholism on the initial medical history form which he completed in connection with his enlistment physical examination, but that the form must have been lost. The appellant testified that on two subsequent medical history forms he concealed his history of alcoholism because Sergeant Roberts had advised him to do so.

Miss Pringle testified that when Sergeant Roberts provided her with an Army form to be completed as part of the request for a moral waiver for the appellant, Sergeant Roberts told her not to “go into any of the problems,” but simply to indicate that the charges had been dismissed. Although Miss Pringle at first testified that she had told Sergeant Roberts that the appellant was an alcoholic, when questioned by the military judge she stated that she merely “assumed” that she had advised Sergeant Roberts that the appellant had been treated for alcoholism, but that she had no specific recollection of having done so. Her testimony further reflects her belief that appellant’s treatment had been successful.

Sergeant Roberts testified that he was totally unaware of the appellant’s alcoholism, that he would not have enlisted the appellant if he had known about it, that neither the appellant nor Miss Pringle mentioned it, and that he at no time advised the appellant to conceal treatment for alcoholism.

At the conclusion of the hearing on the jurisdictional issue, the military judge made detailed findings of fact. First, he found that at the time of his enlistment the appellant met the minimum age and mental qualifications for enlistment. Next, he found that the moral waiver packet prepared as a result of the appellant’s disclosure of prior criminal conduct was sufficient to support a valid waiver of the civilian arrest record even though Sergeant Roberts neglected to include a copy of the appellant’s high school diploma among the supporting documents. He found that the only evidence that Sergeant Roberts knew about the appellant’s alcoholism was the appellant’s testimony which was counter-balanced by Sergeant Roberts’ own testimony that he did not know about it. The military judge believed that, although it was doubtful that the appellant was an alcoholic as a matter of medical diagnosis, his conduct had led knowledgeable persons to conclude prior to his enlistment that he was an alcoholic.

The military judge found that the appellant was and is manipulative, deceptive and has a unique ability to enlist the aid and assistance of others to obtain his objectives. The judge noted that the appellant admitted in his own testimony that he had lied to every Army representative except Sergeant Roberts, obtained false character affidavits, persuaded his probation officer that he was rehabilitated and that enlistment was in his best interests, persuaded his probation officer to sign a less than truthful record, falsified each entry pertaining to alcoholism on all enlistment forms, and successfully withstood all attempts at all levels to determine whether any such disqualification existed. The judge concluded that the appellant would have been unlikely to disclose his alcoholism if he knew it would bar him from enlisting, unless he was certain that the person to whom he made the disclosure would be willing to violate the law to assist him.

The judge further found that, although Sergeant Roberts was willing to bend the rules by providing a fictitious date of prospective enlistment to permit a potential recruit to seek termination of probation, and although he may have told the appellant that an affirmative response to certain questions would either require a waiver or constitute a bar to enlistment, he did not assist the appellant in falsifying any enlistment forms, nor did he give the appellant any reason to believe that he would be willing to do so, and that the testimony of Sergeant Roberts was more credible than that of the appellant, although neither standing alone was totally persuasive. The judge believed that Sergeant Roberts’ truthfulness was bolstered by the fact that he had prepared a “moral waiver” packet in the appellant’s case.

Lastly, the judge found that the initiative to enlist was that of the appellant and not that of Sergeant Roberts, the Pennsylvania courts, the probation officer, or any other official, and that the appellant desired to be a soldier, accepted the benefits of military service, and never made any meaningful effort to be released.

Based on his findings of fact, the military judge concluded that at all times during the enlistment process the appellant possessed the capacity to enter a contract and assume military status; that the technical defects in the moral waiver packet were, at most, latent defects making the enlistment voidable rather than void; that Sergeant Roberts was guilty of no recruiter misconduct, although he may have been negligent; and that the appellant’s false and fraudulent representations, not Sergeant Roberts’ negligence, were the proximate cause of the appellant’s enlistment. He further concluded that, notwithstanding the fabricated prospective enlistment date, there was no fraud perpetrated on the Pennsylvania courts, and that the appellant’s probation was validly terminated prior to his enlistment. Lastly, he concluded that the appellant’s enlistment was “voluntary” in every sense; and that the enlistment was merely voidable rather than void.

We hold that the military judge correctly found that the appellant was subject to the jurisdiction of the court-martial. Two of appellants arguments can be disposed of without lengthy discussion.

With respect to the alleged violation by Sergeant Roberts of the prohibition against actively participating in the termination of probation, we find that Sergeant Roberts’ conduct was within the apparent limits of the regulation. However, even assuming arguendo that his contact with Miss Pringle violated Army regulations,² the cited paragraph does not establish a regulatory bar to enlistment of an individual, but merely establishes a rule of conduct for recruiters to avoid their being placed in a compromising or embarrassing situation. The qualifications and disqualifications for enlistment are treated in detail elsewhere in the regulation.

Regarding the allegedly incomplete moral waiver packet, we do not believe that the negligent omission of the high school diploma defeats jurisdiction. At most, it amounts to an administrative irregularity which does not nullify the waiver granted by the reviewing officer.

Under the controlling case law in effect prior to the effective date of the November 1979 amendments to Article 2, UCMJ,³ recruiter misconduct designed to conceal a nonwaivable disqualification would defeat jurisdiction. United States v. Russo, 1 M.J. 134 (C.M.A.1975). However, jurisdiction would be defeated only if Sergeant Roberts were aware of the appellant’s alleged alcoholism prior to the enlistment and advised, counseled, or encouraged the appellant to conceal it. The trial judge was satisfied that Sergeant Roberts was unaware of the disqualification.

The trial judge rejected the appellant’s testimony and believed Sergeant Roberts. He made no mention of Miss Pringle’s testimony in his findings of fact, which we find understandable in view of the wavering and inconclusive nature of her testimony. Because of his superior opportunity to observe the demeanor of the witnesses and evaluate their credibility, the military judge’s belief of Sergeant Roberts and rejection of the appellant’s testimony on this issue should not be disregarded lightly. Article 66(c), UCMJ, 10 U.S.C. § 866(c) (1976); United States v. Frierson, 20 U.S.C.M.A. 452, 454, 43 C.M.R. 292, 294 (1971); United States v. Albright, 9 U.S.C.M.A. 628, 631, 26 C.M.R. 408, 411 (1958); United States v. Evans, 6 M.J. 577, 579 (A.C.M.R.1978); pet. denied, 6 M.J. 239 (C.M.A.1979).

We have independently reviewed the evidence and are satisfied that Sergeant Roberts was unaware of the appellant’s alleged alcoholism at the time of appellant’s enlistment. Even if we assume, arguendo, that Sergeant Roberts was negligent in not discovering the appellant’s possible disqualification, such negligence does not deprive the court-martial of jurisdiction. United States v. Valadez, 5 M.J. 470 (C.M.A.1978).

Since we are satisfied that Sergeant Roberts was not involved in any deliberate concealment of a non-waivable disqualification, we need not decide whether the November 1979 amendments to Article 2, UCMJ, may be applied retroactively to cases, such as this one, tried prior to the effective date of the amendment.

III. FAILURE TO PROVIDE A VERBATIM TRANSCRIPT OF THE ARTICLE 32 INVESTIGATION.

The appellant contends that the refusal of the government to provide a verbatim transcript of the Article 32 hearing⁴ deprived him of his Sixth Amendment right to effective representation by counsel. We find this contention to be without merit.

The appellant has cited no legal authority for requiring a verbatim transcript and we have found none. The law requires only that “a statement of the substance of the testimony taken on both sides” be prepared. Article 32(b), UCMJ, 10 U.S.C. § 832(b) (1976); paragraph 34e(2), MCM, 1969 (Rev.); United States v. Allen, 5 U.S.C.M.A. 626, 18 C.M.R. 250 (1955); United States v. Frederick, 7 M.J. 791, 796 (N.C.M.R.), pet. denied, 8 M.J. 42 (C.M.A.1979); United States v. Combs, 28 C.M.R. 866, 873 (A.F.B.R.1959). As the trial judge so aptly observed when the same issue was raised before him, “[T]he court is required to consider not perhaps what would have been best, but whether what was done met the requirements of law.”

Furthermore, we find appellant’s contention that the lack of a verbatim transcript deprived him of the effective assistance of counsel without factual basis. The appellant was ably and vigorously represented by detailed counsel at the hearing. The Investigating Officer’s Report, Item 2g, and Appellate Exhibit 7, the investigating officer’s handwritten notes, reflect that, although the individual civilian counsel had been retained, he elected not to attend the hearing. The investigating officer’s report also reflects that the detailed defense counsel coordinated the defense strategy at the hearing with the individual counsel. For example, the detailed counsel, after consultation with individual counsel, withdrew a request for defense witnesses. There is no legal requirement to take extraordinary measures to assist individual counsel in trial preparation when he voluntarily foregoes the discovery opportunity provided by the Article 32(b) investigation. Nevertheless, the record reflects that the investigating officer in this case went to extraordinary lengths to insure that the individual counsel would receive as complete and detailed a report as possible. We are satisfied that the Article 32(b) investigation was conducted in full compliance with the law and that the appellant was fully afforded his right to representation by counsel.

IV. DISQUALIFICATION OF COURT MEMBERS.

The appellant contends that the court members in this case were “biased and prejudiced against the accused in that they possessed explicit prior knowledge of all pertinent events of this case from the moment of the crime up to and through investigation and the actual Court-Martial proceeding.” This contention is without factual support in the record.

A searching voir dire by the military judge and counsel for both sides revealed that, of the ten court members detailed to hear the case, only two had any knowledge beyond vague recollection of news reports and casual conversations within the command indicating that a librarian at Camp Algiers had been raped and murdered, that someone had been charged, a trial had commenced, and a motion to dismiss for lack of speedy trial had been denied. All members clearly indicated their lack of predisposition or bias, as well as their willingness to withhold judgment until they had heard all the evidence and had been instructed on the law and to follow the military judge’s instructions.

Two officers, Major Waits and Captain Everett, were challenged by the prosecution, but the challenges were opposed by appellant’s counsel. Needless to say, we find it curious that the same counsel who opposed the challenges at the trial now predicates error on the failure of the military judge to excuse these same two members.⁵

Major Waits, in his capacity as Deputy Adjutant General of the 1st Armored Division, had prepared the report of Mrs. Villanueva’s death and letters of condolence to her next of kin. His knowledge was limited to the medical cause of death, identity of the victim and next of kin, and similar administrative information. Captain Everett had begun reading a newspaper account but stopped when he read the appellant’s name. At that point he had read only that a woman had been raped and killed and that a motion to dismiss for lack of speedy trial had been denied.

The record clearly reflects that the court members had only vague and general knowledge that an incident characterized as a rape and murder had occurred. Their actual and specific knowledge about the reported facts of the case was less than the information on the charge sheet. We are satisfied from their responses on the record that all members were mentally free to render an impartial finding and sentence based upon the law and the evidence. Accordingly, we conclude that the assigned error is without merit. See United States v. McQueen, 7 M.J. 281 (C.M.A.1979); United States v. Boyd, 7 M.J. 282 (C.M.A.1979); United States v. Parker, 6 U.S.C.M.A. 274, 284-85, 19 C.M.R. 400, 410-11 (1955).

V. FAILURE OF THE MILITARY JUDGE TO RECUSE HIMSELF.

The appellant contends that the military judge should have recused himself, sua sponte, after refusing to accept the appellant’s tender of pleas of guilty to premeditated murder and rape. We disagree.

At the outset, this case must be distinguished from cases in which the military judge rejects a guilty plea after conducting an inquiry into the factual basis for the plea. In this case, the military judge summarily rejected the tendered plea without making any factual inquiry because he was prohibited from receiving a guilty plea to a capital offense. Article 45(b), UCMJ, 10 U.S.C. § 845(b) (1976).

Even in a bench trial, a military judge is not required to recuse himself after rejecting a guilty plea if he has not gained factual knowledge of the offenses charged and has not been required to reach conclusions regarding the accused’s factual and legal guilt. United States v. Cooper, 8 M.J. 5 (C.M.A.1979). Furthermore, even in cases where the military judge has become “tainted” by his involvement in a rejected plea of guilty, he has the option either to recuse himself or to direct a trial with members. See United States v. Bradley, 7 M.J. 332, 334 (C.M.A.1979). Since this case was a trial with members, recusal was not required.

We note that in this case the appellant persisted in his request for trial by judge alone even after the judge rejected the appellant’s efforts to enter pleas of guilty. Of course, the military judge denied the request for a bench trial because of the jurisdictional limitations imposed by Article 18, UCMJ, 10 U.S.C. § 818 (1976). Nevertheless, the appellant’s persistence in a request for a bench trial demonstrates his absence of any real concern regarding the impartiality of the military judge during the trial. Our review of the record of trial convinces us that the military judge remained impartial and scrupulously fair throughout the trial.

Accordingly, we conclude that the military judge did not err by failing to recuse himself after refusing to receive the appellant’s pleas of guilty.

VI. DENIAL OF THE RIGHT TO PLEAD GUILTY.

The appellant contends that he was denied his “constitutional right to plead guilty.” There is no absolute constitutional right to plead guilty. See Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971); North Carolina v. Alford, 400 U.S. 25, 38, n. 11, 91 S.Ct. 160, 167, n. 11, 27 L.Ed.2d 162 (1970); Lynch v. Overholser, 369 U.S. 705, 719, 82 S.Ct. 1063, 1072, 8 L.Ed.2d 211 (1962); but cf. United States v. Gaskins, 485 F.2d 1046 (D.C.Cir.1973) (rejection of guilty plea under F.R.Crim.P. Rule 11 may be abuse of discretion); United States v. Williams, 43 C.M.R. 579 (A.C.M.R.1970) (arbitrary rejection of guilty plea without legal basis is abuse of discretion). Unlike the civilian federal courts, there is no statutory right to plead guilty in a military capital case. To the contrary, in the Uniform Code of Military Justice, Congress has prohibited a guilty plea to a capital offense. Article 45(b), UCMJ, 10 U.S.C. § 845(b) (1976).

There was no possibility of an abuse of discretion with respect to the proffered guilty plea to premeditated murder because the military judge’s discretion had been removed by Article 45(b). However, with respect to the charge of rape, the answer is less clear.

In Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977), the Supreme Court held the death penalty to be disproportionate and excessive for rape of an adult woman. The case involved a Georgia statute making rape punishable by death if the jury found at least one of the following statutory aggravating circumstances: (1) that the rape was committed by a person with a prior record of conviction for a capital felony; (2) that the rape was committed while the offender was engaged in the commission of another capital felony, or aggravated battery; or (3) the rape “was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or aggravated battery to the victim.”

The prosecution alleged and the jury found the first two circumstances but not the third. Justices White, Stewart, Black-mun and Stevens concluded that the death penalty was excessive for the rape of an adult woman even though the jury had found two of the three statutory aggravating circumstances. Justices Brennan and Marshall concurred on the ground that the death penalty is per se unconstitutional.⁶

Accordingly, we conclude that a plea of guilty lawfully could have been received by the military judge, since the Supreme Court had effectively invalidated that portion of Article 120, UCMJ, making rape a capital offense. However, we find no abuse of discretion in the cautious approach taken by the military judge in this case.

The essence of the appellant’s complaint is that Article 45(b) precludes him from presenting himself to the sentencing authority as one who is contrite and has taken the first step toward rehabilitation. However, in this case the military judge instructed the court members that in their deliberations on the sentence they should consider, among numerous other factors, that “the accused in this case had, to the extent allowed by law, entered a plea of guilty. His plea of guilty may be considered by you as a manifestation of repentance and may be the first step towards rehabilitation.”

In light of the military judge’s instruction, we find the appellant’s assertion that he was deprived of the opportunity to appear contrite and a good candidate for rehabilitation to be without merit.

VII. MOTION FOR MISTRIAL BASED UPON IMPROPER OPENING STATEMENT BY THE TRIAL COUNSEL.

The appellant contends that the military judge erred by denying a motion for mistrial based on inflammatory remarks by the trial counsel during his opening statement.

In his opening statement, the trial counsel informed the court members of his intention to prove that the appellant had repeatedly expressed a desire to brutally rape a woman. The trial counsel further informed the court members of his intention to prove that the appellant tortured Mrs. Villanueva before killing her. Immediately at the conclusion of the trial counsel’s opening statement and at several other times throughout the trial, the military judge cautioned the court members not to regard the trial counsel’s assertions as evidence. Out of the presence of the court members, after the trial counsel’s opening statement and the military judge’s first cautionary instruction, the individual defense counsel moved for a mistrial.

The question whether to declare a mistrial rests within the discretion of the military judge. A mistrial is an extreme remedy, but is appropriate when circumstances arise that cast substantial doubt on the fairness of the trial. When a request for mistrial is based upon information improperly brought before the court members, a mistrial should be granted if the effects of such information cannot be removed by an instruction to disregard it. Paragraph 56e(1), MCM, 1969 (Rev.).

In his opening statement, a trial counsel is permitted to make a brief statement of the issues to be tried and what he expects to prove, but he must avoid “including or suggesting matters as to which no admissible evidence is available or intended to be offered.” Paragraph 44g(2), MCM, 1969 (Rev.). The opening statement should be limited to matters “which the prosecutor believes in good faith will be available and admissible.” American Bar Association Standards for Criminal Justice, Standard 3-5.5 (2d ed. 1980). Where the evidence actually adduced falls short of the trial counsel’s promises, we must consider all of the surrounding circumstances, including whether the matters referred to were significant, whether the trial counsel intentionally misstated the evidence and the likelihood that the statements would have influenced or inflamed the court members. See United States v. Grandy, 11 M.J. 270, 275 (C.M.A.1981).

With regard to the trial counsel’s assertion that he would prove that the appellant had “repeatedly” expressed a desire to “brutally” rape a woman, it is clear that the trial counsel’s proof fell short of his promises, proving neither that the statements were made “repeatedly” nor that they encompassed “brutally” raping a woman. Unfortunately, the trial counsel was dependent upon Specialist Bagwell, a reluctant witness, a friend of the appellant, and an accessory after the fact, to prove his point. The most that the trial counsel could elicit from Bagwell was that, on one occasion approximately two weeks before the rape and murder, the appellant had stated that he would like to rape a woman, and that he had told Bagwell how he would like to do it. However, Bagwell did not relate to the court how the appellant said he would like to commit the rape.

In view of the trial counsel’s apparent good faith and the repeated admonitions by the military judge that statements of counsel are not evidence, we are satisfied that the military judge’s curative instructions were an adequate remedy for the trial counsel’s overstatement of his case, and that the military judge did not abuse his discretion by declining to invoke the drastic remedy of a mistrial.

As for the trial counsel’s reference to torture, the military judge instructed the court members to disregard all references by the pathologist to “torture wounds” because the pathologist could not testify with reasonable medical certainty, based upon his examination of Mrs. Villanueva’s body, that the wounds were inflicted to torture her. However, the prosecution presented ample evidence, including the appellant’s admissions to Bagwell, which would support an inference that Mrs. Villanueva was tortured before she was killed. Accordingly, we conclude that the reference to torture in the trial counsel’s opening statement was not improper.

VIII. NOTICE OF GRANTS OF IMMUNITY.

The appellant contends that he was not given reasonable notice of the grants of immunity to three prosecution witnesses. The three government witnesses, Specialist Turner, Specialist Hughley, and Specialist Bagwell, testified after they had been granted testimonial immunity. Each had declined to testify at the Article 32 investigation. All three grants of immunity were issued by the convening authority on 18 June 1979 and the defense was notified on the following day, which was two days before the trial commenced and nine days before the witnesses testified. Trial sessions were held on four of the intervening nine days.

The defense must be notified of a grant of immunity within a reasonable time before the witness testifies. The remedies for violation of this rule are to “grant a continuance until such time as is necessary to obtain compliance, prohibit testimony by the person to whom the grant of immunity has been given, or enter such other order as may be required.” United States v. Webster, 1 M.J. 216, 221 (C.M.A.1975).

In this case, the defense was provided with copies of the sworn statements of Turner, Hughley and Bagwell which were considered by the Article 32 investigating officer. At the trial, the individual defense counsel did not request a continuance. To the contrary, he informed the military judge that he did not consider any remedy short of dismissing the charges to be appropriate.

We believe that, in this case, nine days was a “reasonable time” between the required notification to the defense and the witnesses’ testimony, especially in view of the fact that the court-martial was not in session on five of those days. We find this assignment of error without merit.

IX. SUFFICIENCY OF THE EVIDENCE OF PREMEDITATION.

The appellant contends that the evidence is insufficient to prove that the murder of Mrs. Villanueva was premeditated. Since the appellant providently pleaded guilty to unpremeditated murder, the only factual issue presented to the court members was the issue of premeditation. The appellant argues that the testimony of Major Reed regarding the appellant’s low intelligence, suicidal tendencies, explosive personality, alcoholism, as well as evidence that the appellant was drinking prior to the murder, and evidence of the appellant’s failure to conceal his bloody clothing and hands after the murder, considered together are sufficient to raise a reasonable doubt about his ability to premeditate. We disagree.

On the issue of intoxication, Private Hughley testified that the appellant had been drinking on the afternoon of 27 February. However, Specialist Turner, Specialist LaRue and Private Hughley all testified that the appellant did not appear intoxicated when they saw him shortly after the murder.

Although the appellant made no effort to conceal his blood-spattered appearance from his fellow soldiers in the unit, he took elaborate precautions to avoid detection by law enforcement personnel. He retrieved the six-pack of beer which he believed to bear his fingerprints, gave away Mrs. Villanueva’s watch, attempted to bum the blood spots from his sweat pants, concealed his tennis shoes by throwing one shoe onto the roof of one building and the other shoe onto the roof of another building, asked Specialist LaRue to conceal a blood-stained sweater, and told Specialist Bagwell to throw away the scissors and Mrs. Villanueva’s keys and to burn her shoes.

The appellant’s murder of Mrs. Villanueva was preceded by elaborate preparations. The appellant waited until the library was empty, tricked Mrs. Villanueva into walking to the back of the library, removed the entrance key from her desk, locked the entrance, and wore gloves to avoid leaving fingerprints. Although he took precautions against leaving fingerprints, he made no effort to conceal his face, indicating that he did not intend to leave a victim who could identify him.

Lastly, the brutal nature of the attack on Mrs. Villanueva is evidence of premeditation. The evidence showed that Mrs. Villanueva, while partially unclothed and moving throughout the library, was sufficiently terrified to involuntarily defecate near the front entrance, in front of the librarian’s desk, and again at the apparent place of her death. The bottoms of her feet were soiled, indicating that she had walked or run after her shoes had been removed. The appellant stated that Mrs. Villanueva made him angry because “she wouldn’t move right” while he was raping her, and so he poked her with the scissors and stabbed her in the face. He hit her in the left eye with a blunt object, probably his fist. Finally, the appellant inflicted 53 stab wounds, including 6 lethal wounds, and after she was already dead, attacked her sexual organs with the scissors. “[T]he vicious assaults resulting in multiple grievous injuries bespeak a premeditated design to kill.” United States v. Harris, 6 U.S.C.M.A. 736, 741, 21 C.M.R. 58, 63 (1956); accord, United States v. Ayers, 14 U.S.C.M.A. 336, 34 C.M.R. 116 (1964); see generally 2 Wharton’s Criminal Law (14th Edition, 1979), § 140.

We are satisfied beyond a reasonable doubt that the appellant had a premeditated design to kill Mrs. Villanueva, as evidenced by his elaborate preparations as well as by the brutal manner in which she was killed.

X. ADMISSION OF PHOTOGRAPHS OF THE VICTIM.

The appellant contends that the military judge erred by admitting eight photographs of the victim, because “the only effect . . . was to appeal to the emotions of the court members and invite prejudice and bias toward the appellant.” We find his contention without merit.

Of the 19 photographs of Mrs. Villanueva proffered by the prosecution, only 8 were admitted.

Prosecution Exhibits 3 and 4 are black and white photographs of Mrs. Villanueva as she was found by her husband. They show her lying on her back in a pool of blood, barefoot and nude from the waist down. Her face, neck and chest are covered with blood.

Prosecution Exhibits 14,16, 20, 23, 24 and 26 are color photographs of Mrs. Villanueva which were taken at the pathology laboratory after her body had been cleaned of blood and excrement.

Prosecution Exhibit 14 shows the stab wounds on Mrs. Villanueva’s face, neck, chest and abdomen. Prosecution Exhibit 16 is a close-up of Mrs. Villanueva’s face, showing the blunt force injury to her left eye, and stab wounds in the face and left side of the neck. Prosecution Exhibit 20 is a close-up of the fatal wound to the right side of the neck, a wound on the chin, and several other neck wounds.

Prosecution Exhibit 23 is an extreme close-up of the stab wound and scratches in Mrs. Villanueva’s pubic hair. Prosecution Exhibit 24 shows stab wounds in the side and back. Prosecution Exhibit 26 shows defense wounds on Mrs. Villanueva’s hand.

We believe that the photographs were relevant because they tended to establish the appellant’s premeditated design to kill. See United States v. Ayers, 14 U.S.C. M.A. 336, 34 C.M.R. 116 (1964); United States v. Harris, 6 U.S.C.M.A. 736, 741, 21 C.M.R. 58, 63 (1956); United States v. Rig-gins, 2 U.S.C.M.A. 451, 9 C.M.R. 81 (1953) (viciousness of the attack may prove premeditated design to kill).

Furthermore, the photographs served to illustrate the testimony of the pathologist and to prove the nature of the wounds and the cause of death. See United States v. Bartholomew, 1 U.S.C.M.A. 307, 314, 3 C.M.R. 41, 48 (1952); United States v. Tua,

4 M.J. 761 (A.C.M.R.1977), pet. denied, 5 M.J. 91 (C.M.A.1978); United States v. Moore, 33 C.M.R. 868, 877-78 (A.F.B.R.), pet. denied, 33 C.M.R. 436 (C.M.A.1963).

Finally, we note that the military judge was extremely circumspect in his rulings on the admissibility of the photographs. The two photographs of Mrs. Villanueva as she was found by her husband are in black and white. The color photographs show Mrs. Villanueva’s body in clinical surroundings after her wounds had been cleaned. They do not magnify or exaggerate the wounds. The military judge admitted only the minimum number of photographs necessary to. illustrate the testimony of the pathologist.

The admission of photographs is a matter within the military judge’s discretion. His ruling should not be overturned unless there is a clear abuse of discretion. See United States v. Thomas, 6 U.S.C.M.A. 92, 97, 19 C.M.R. 218, 223 (1955); United States v. Bartholomew, supra; United States v. Tua, supra; United States v. Montgomery, 5 M.J. 832, 834 (A.C.M.R.), pet. denied 6 M.J. 89 (C.M.A.1978); United States v. Noreen, 48 C.M.R. 228 (A.C.M.R. 1973), affirmed 23 U.S.C.M.A. 212, 49 C.M.R. 1 (1974); United States v. Coleman, 36 C.M.R. 574 (A.B.R.1965), pet. denied 36 C.M.R. 541 (C.M.A.1966). We believe that the military judge’s rulings in this case were well within the limits of sound discretion.

XI. DEFENSE COUNSEL’S CONCESSION OF THE APPELLANT’S GUILT OF RAPE.⁷

In his opening statement, made after the prosecution had rested, the individual defense counsel stated:

Under the law, he cannot plead guilty to rape as it is specified. However, I tell you candidly from the outset, Private Matthews does not in fact deny raping the victim on February 27 of this year. So what you have before you is a situation where the accused comes before you admitting unpremeditated murder, and also admitting rape as specified.

The defense tactic was simple: to focus on the issue of premeditation. The individual defense counsel had cross-examined the government psychiatrist at length to develop evidence tending to show that the appellant, because of his limited intelligence, acute alcoholism, explosive personality, and intoxication, could not and did not premeditate the murder of Mrs. Villanueva.

The defense case consisted of testimonial and documentary evidence of the appellant’s history of alcoholism. In closing arguments, the individual defense counsel conceded that the appellant stabbed and raped Mrs. Villanueva, but concentrated his argument on the issue of premeditation, dwelling at length on the appellant’s limited intelligence, alcoholism and personality disorders, characterizing the appellant as a person capable of “doing but not thinking.”

The appellant now contends that the military judge erred by allowing the individual defense counsel to admit the appellant’s guilt of rape, contrary to appellant’s plea of not guilty. We disagree.

We believe that, under the circumstances of this case, the individual defense counsel’s trial tactics were not only proper but a realistic approach to a difficult case. Faced with overwhelming evidence, he wisely chose to focus the court’s attention on what he perceived to be the weakest point of the government’s case. Persuading the court that the murder was not premeditated was the appellant’s only hope of avoiding a mandatory sentence to either life imprisonment or death.

Furthermore, under the circumstances of this case, we do not believe that the military judge was required to question the appellant and obtain his express consent to his counsel’s trial tactics.

This court previously has held that the defense “may in an appropriate case concede that the Government has met its burden on one of several charges in order to emphasize the asserted weakness of the remaining charges,” so long as the defense counsel does not concede an issue contrary to the testimony of the accused and does not concede guilt in the face of a defense raised by the accused in his testimony. United States v. Caldwell, 9 M.J. 534, 536 (A.C.M.R.1980); see United States v. Henderson, 44 C.M.R. 553, 556 (A.F.C.M.R.), pet. denied, 21 U.S.C.M.A. 599, 44 C.M.R. 939 (1971); United States v. Buchanan, 37 C.M.R. 927 (A.F.B.R.), pet. denied, 17 U.S.C.M.A. 646, 37 C.M.R. 470 (1967); Turberville v. United States, 303 F.2d 411 (D.C.Cir.1962); but see United States v. Smith, 8 U.S.C.M.A. 582, 25 C.M.R. 86 (1958) (concession improper where it conflicted both with plea of not guilty and accused’s testimony).

Under appropriate circumstances, concessions by counsel “are not only proper, but highly commendable.” Tatum v. United States, 190 F.2d 612, 618 (D.C.Cir.1951). Although rape is a serious offense, it clearly was the less serious of the two offenses before the court in this case. To concede a lesser offense in an effort to avoid conviction of a greater offense is a proper and legitimate trial tactic. The fact that it was unsuccessful does not make it any less proper. United States v. Caldwell, supra, at 536.

The appellant argues that his counsel conceded his guilt of a capital offense, thereby subverting the purpose of Article 45(b), which prohibits receiving a guilty plea to a capital offense. We disagree with the appellant’s characterization of rape as a capital offense. As noted in Part VI of this opinion, supra, Article 120 authorizes the death penalty for rape, but the provision has been effectively invalidated by the United States Supreme Court holding that the death penalty is so disproportionate to the crime that it constitutes cruel and unusual punishment for the offense of rape of an adult woman. Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977). Accordingly, we are satisfied that conceding the appellant’s guilt of rape did not contravene Article 45(b).

The appellant argues that the military judge should have conducted an inquiry to determine whether the appellant agreed with and understood his counsel’s tactics. We do not believe that an inquiry was required in this case. The appellant cites the opinion of the Court of Military Appeals in United States v. Hampton, 16 U.S.C.M.A. 304, 36 C.M.R. 460 (1966), in support of his argument. In Hampton the Court of Military Appeals observed that “the concession demanded interrogation of the accused concerning his agreement thereto, as well as his understanding of its meaning and effect as a virtual plea of guilty.” Id. at 461. However, in Hampton the Court was confronted with a total concession of guilt to the only specification before the trial court. The Hampton opinion relies heavily on Brookhart v. Janis, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966), in which the defense counsel totally capitulated, presenting no evidence and cross-examining no witnesses. The defense counsel in Brookhart told the trial court at the outset that he would neither offer any evidence nor cross-examine any of the prosecution witnesses. The Supreme Court found that the defense counsel had improperly overridden his client’s expressed desire to plead not guilty and had foreclosed his client’s constitutional rights to confrontation and cross-examination.

The Hampton decision subsequently has been interpreted as stopping short of establishing a per se rule requiring inquiry of the appellant in all cases involving concessions by counsel. See United States v. Caldwell, supra, at 536; United States v. Buchanan, supra, at 934.

Unlike the situations in Brookhart and Hampton, the appellant in this case retained and vigorously exercised his constitutional rights to confront and cross-examine the witnesses against him. Unlike Brookhart and Hampton, this case involved a tactical decision to concede a less serious offense in an effort to avoid conviction of a more serious offense.

Unlike Brookhart and Hampton, the appellant in this case attempted to plead guilty to the offense which his counsel conceded; unlike Brookhart, the appellant did not contradict his counsel’s proposed tactics, even though he had ample opportunity to do so during the lengthy colloquy with the military judge regarding his plea of guilty to unpremeditated murder. The appellant in this case has never disavowed his counsel’s concession of guilt. To the contrary, he argues before this court that he should have been permitted to enter a plea of guilty to rape. (Part VI of this opinion.)

The record in this case shows that (1) at the time of trial the appellant desired to plead guilty to rape; (2) the appellant was advised generally of the meaning and effect of a guilty plea in connection with his guilty plea to unpremeditated murder; (3) since the prosecution presented its entire case and the defense cross-examined the prosecution witnesses at length, it is clear that the appellant exercised rather than waived his constitutional rights of confrontation and cross-examination with respect to the charge of rape; and (4) the individual defense counsel, faced with overwhelming evidence, wisely chose to focus the court’s attention on what he perceived to be the weakest point in the government’s case, i.e., the issue of premeditation. Under the circumstances of this case, we hold that the military judge did not err by permitting the defense counsel to concede the appellant’s guilt of rape, nor did he err by failing to obtain the express personal consent of the appellant to his counsel’s trial tactics.

XII. THE CONSTITUTIONALITY OF THE DEATH PENALTY.

The appellant contends that his death sentence violates the Eighth Amendment prohibition against “cruel and unusual” punishments, because the Uniform Code of Military Justice fails adequately to insure that the appellant falls into a category for which the legislature has prescribed death as a just penalty, the sentencing decision was not sufficiently controlled to avoid arbitrariness and discrimination, the court members were not given sufficient guidance regarding the factors which are relevant to sentencing, and there is no meaningful basis for distinguishing military cases in which the death penalty was imposed from those in which it was not. See Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).

A. Constitutional Standards for Imposing the Death Penalty.

It is clear that the framers of the Constitution did not intend to prohibit the imposition of the death penalty in all cases.⁸ Likewise, the drafters of the earliest American military legal systems contemplated that the death penalty would be imposed in certain cases.⁹ It is well settled that a sentence violates the Eighth Amendment proscription against “cruel and unusual” punishment if it is grossly disproportionate and excessive to the offense for which it is imposed. Cf., Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 596 (1958) (loss of citizenship excessive punishment for desertion); Weems v. United States, 217 U.S. 349, 367, 30 S.Ct. 544, 549, 54 L.Ed. 793 (1910) (sentence to 12 years in chains with loss of civil rights for life excessive for falsifying public documents). A majority of the Supreme Court has recognized that the death penalty is not per se disproportionate for murder. Only two justices of the Supreme Court have taken the position that the death penalty is per se cruel and unusual punishment. Furman v. Georgia, 408 U.S. 238, 257, 92 S.Ct. 2726, 2735, 33 L.Ed.2d 346 (Brennan, J., concurring), 314 (Marshall, J., concurring). Therefore, we decide this case on the premise that the death penalty is not absolutely prohibited by either the Eighth Amendment or Article 55 of the Uniform Code of Military Justice.¹⁰ However, we must also decide whether the death sentence in this case was imposed in accordance with constitutionally acceptable procedures.

In Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), the Georgia and Texas procedures for imposing the death penalty were struck down as violative of the Eighth Amendment proscription against cruel and unusual punishments. Furman involved three persons sentenced to death, one in Georgia for murder and one for rape, and one in Texas for rape. Each of the five Justices voting to strike down the Georgia and Texas procedures filed a separate opinion, leaving the state of the law unclear.

Justices Brennan and Marshall found the death penalty per se unconstitutional for any criminal offense.

Justice Douglas found that, because the procedures by which the death penalty was imposed allowed unfettered jury discretion, they were “pregnant with discrimination and discrimination is an ingredient not compatible with the idea of equal protection of the laws that is implicit in the ban on ‘cruel and unusual’ punishments.” Id. at 256-57, 92 S.Ct. at 2735-36 (Douglas, J., concurring).

Justice Stewart found that the Georgia and Texas procedures gave the jury unguided discretion, which permitted the death penalty to be “so wantonly and so freakishly imposed.” He found that death sentences were imposed under the Georgia and Texas laws then in effect in such a manner to be “cruel and unusual.” Id. at 309-10, 92 S.Ct. at 2762-63 (Stewart, J., concurring).

Justice White found that no valid purpose was served by the death penalty under the laws in question because it was being used so rarely that it had ceased to be a credible deterrent. He was concerned that there was no apparent meaningful basis for distinguishing the few cases in which the death penalty was imposed from the many in which a lesser sentence was imposed. Id. at 311-14, 92 S.Ct. at 2763-64 (White, J., concurring).

The Furman decision made it clear that a system of completely unguided jury discretion in imposing the death penalty was unconstitutional. However, the Court gave no clear guidance concerning what was required to survive constitutional muster.¹¹

In Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976), the Supreme Court upheld a death sentence imposed under Florida law, revised in response to Furman, which prescribes a bifurcated trial at which, following a conviction of first-degree murder, a separate sentence hearing is required if the defendant is convicted of first-degree murder. First-degree murder includes premeditated murder, felony-murder, and murder resulting from heroin distribution. Fla.Stat.Ann. § 782-04(1) (Supp. 1976-77). At the sentence hearing, the jury is directed to determine whether the death sentence should be imposed by balancing specific statutory aggravating factors¹² against specific statutory mitigating factors.¹³ The jury determination is made by majority vote and is not binding on the judge, who actually imposes sentence. If a death sentence is imposed, the judge must make written findings regarding the aggravating and mitigating factors relied upon in imposing a death penalty. A death sentence is subject to automatic appellate review.

Justices Stewart, Powell and Stevens found that the Florida procedure adequately insured “an informed, focused, guided and objective inquiry” into the question whether the death penalty should be imposed. Justice White, joined by Chief Justice Burger and Justice Rehnquist found that “although the statutory aggravating and mitigating circumstances [set out in the Florida statute] are not susceptible of mechanical application, they are by no means' so vague and overbroad as to leave the discretion of the sentencing authority unfettered.” Proffitt, supra, 428 U.S. at 260, 96 S.Ct. at 2970. Justice White also observed that “[t]here is good reason to anticipate, then, that as to certain categories of murderers, the penalty will not be imposed freakishly or rarely but will be imposed with regularity . ... ” Id. Justice White was satisfied that the Florida statute eliminated his concern that the death penalty was neither a credible deterrent nor did it contribute to any other end of punishment in the criminal justice system. See Furman v. Georgia, supra, 408 U.S. at 311, 92 S.Ct. at 2763 (White, J., concurring).

In Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), the Supreme Court upheld a death sentence imposed after the Georgia procedures were revised in response to Furman. The revised Georgia procedure also provides for a bifurcated trial. However, in Georgia the jury’s determination is binding. The sentencing authority must find at least one of ten statutory aggravating factors,¹⁴ and is entitied to consider any other relevant nonstatutory aggravating factor as well as any relevant mitigating circumstances. The mitigating factors are not specified by statute. Georgia provides for special appellate review to determine whether the death sentence was influenced by passion, prejudice, or other arbitrary factors; whether the evidence supports the sentencing authority’s finding regarding the aggravating circumstances; and whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases. Georgia Code Ann. § 27-2537 (Supp.1975).

The Court concluded that the Georgia statutory scheme, requiring a finding of at least one statutory aggravating factor, an opportunity to consider mitigating factors, and an expanded scope of appellate sentence review, was sufficient to overcome the Furman objections to the previous Georgia procedure.

In Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976) the Court upheld a death sentence imposed under procedures substantially different from Florida and Georgia. Texas procedure also prescribes a bifurcated trial. However, rather than specify aggravating factors to be considered after findings, Texas specifies five categories of murder as “capital”: murder committed in the course of certain felonies, murder for remuneration, murder of a peace officer, murder committed while escaping or attempting to escape from a penal institution, and murder of a prison employee by a prison inmate. Tex. Penal Code, § 19.03 (1974). If a defendant is convicted of capital murder, then the jury may impose a death sentence only if it finds, by unanimous verdict, (1) that the conduct of the defendant was committed deliberately and with the reasonable expectation that death would result, (2) that there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society, and, (3) if raised by the evidence, that the defendant’s conduct in killing the deceased was an unreasonable response to the provocation, if any, by the deceased. Texas Code Crim.Proc. Art. 37.071(b). In essence, the three jury questions require each juror to determine whether, because of the nature and circumstances of the offense as well as the background and character of the defendant,¹⁵ the death penalty should be imposed. Like Florida and Georgia, Texas requires that a death sentence be subject to special appellate review.

In Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) and Bell v. Ohio, 438 U.S. 637, 98 S.Ct. 2977, 57 L.Ed.2d 1010 (1978), the Ohio death penalty was struck down. The Ohio statutes prescribed a bifurcated trial. A death penalty for murder was precluded when one or more of three mitigating factors was established by the defendant: that the victim induced or facilitated the killing, that it was unlikely that the offense would have been committed but for the fact that the defendant was under duress, coercion, or strong provocation; or that the offense was primarily the product of the defendant’s psychosis or mental deficiency, even though such mental condition was insufficient to establish the defense of insanity. Ohio Stat. § 2929.03-.04. The statute was interpreted by the Ohio court to require the death penalty if the defendant did not prove at least one of the mitigating factors by a preponderance of the evidence. A plurality of the Court, consisting of Chief Justice Burger and Justices Stewart, Powell and Stevens concluded that the Ohio procedure was defective because it limited the mitigating factors to be considered to the three set out in the statute, and thereby precluded consideration of other relevant factors such as the defendant’s age, previous record, cooperation with law enforcement authorities, and degree of participation in the offense.

The requirement that the sentencing authority consider all relevant mitigating factors was reiterated in Eddings v. Oklahoma, - U.S. -, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), in which a death sentence was set aside because of the trial judge’s refusal to consider evidence of the defendant’s difficult family history and emotional disturbance.

In Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976) and Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), the Court struck down statutes mandating the death penalty for certain classes of cases. N.C.Gen.Stat. § 14-21 (Cum.Supp.1975); La.Rev.Stat.Ann. § 14:30 (1974 Supp.). Justices Stewart, Powell and Stevens found that a mandatory death sentence was contrary to contemporary standards for imposing capital punishment, that it amounted to an arbitrary, standardless imposition of the death sentence, and that it impermissibly precluded consideration of mitigating factors regarding the character and personal history of the defendant. Justices Brennan and Marshall adhered to their position that the death penalty was per se unconstitutional. Woodson v. North Carolina, 428 U.S. at 306-07, 96 S.Ct. at 2992-93 (Brennan, J., dissenting), 307 (Marshall, J., dissenting); Roberts v. Louisiana, 428 U.S. at 336, 96 S.Ct. at 3007 (Brennan, J., dissenting), 336-37, 96 S.Ct. 3007-08 (Marshall, J., dissenting).

Several broad conclusions may be drawn from the Supreme Court decisions regarding the death penalty:

First, wholly unguided jury discretion in imposing a death sentence is impermissible;

Second, a mandatory death penalty is impermissible;¹⁶

Third, specific focus upon aggravating and mitigating factors at the sentencing stage is constitutionally required;

Fourth, proof of some relevant aggravating circumstance is a prerequisite for a death sentence, although the circumstance may be somewhat imprecise and subjective, e.g., that the offense was “outrageously or wantonly vile, horrible and inhuman” (Ga. Code Ann. § 27-2534.1(b)(7)), or “especially heinous, atrocious, or cruel” (Fla.Stat.Ann. § 921.141(5)(h) (Supp. 1976-1977));

Fifth, the sentencing procedure may allow the aggravating circumstance to be found either in connection with findings or during the sentencing phase of the trial;

Sixth, the sentencing procedure must allow consideration of all relevant mitigating factors, although it is not necessary that these be specifically enumerated by statute or otherwise;

Seventh, the Supreme Court looks with favor on a bifurcated trial, because it allows a more comprehensive basis for sentencing by relaxing the rules of evidence and by allowing a defendant to present mitigating evidence during the sentencing phase even though such evidence would have been detrimental to his case before findings;

Eighth, when sentencing is by a jury, the trial judge must provide guidance as to the factors which are relevant to the sentencing decision and the proper means for applying those factors to the determination of sentence; and

Ninth, the Supreme Court looks with favor on a mandatory appeal system to safeguard against arbitrary, prejudicial, disproportionate, or inconsistent sentencing.

The drafters of the Model Penal Code have summarized the requirements as follows: “What is required ... is a system that allows submission to court or jury of the evidentiary basis for whatever mitigation may exist. This opportunity, when coupled with a limitation of capital punishment for murder to certain specified circumstances of aggravation, apparently suffices to withstand constitutional scrutiny.” American Law Institute Model Penal Code and Commentaries (1980 edition), § 210.6, paragraph 12d, p. 167. In short, “the requirements of Furman are satisfied when the sentencing authority’s discretion is guided and channeled by requiring examination of specific factors that argue in favor of or against imposition of the death penalty, thus eliminating total arbitrariness and capriciousness in its imposition.” Proffitt v. Florida, supra, 428 U.S. at 258, 96 S.Ct. at 2969.

B. The Military System.

Comparison of the requirements imposed by the Supreme Court for imposition of the death penalty with the procedures mandated by the Uniform Code of Military Justice and the Manual for Courts-Martial ¹⁷ convinces us that the procedures mandated for courts-martial to impose a death sentence for premeditated murder are sufficiently focused and guided to pass constitutional muster.

In order to impose the death sentence for murder, a court-martial must find either that the murder was premeditated or that it occurred while the offender was “engaged in the perpetration or attempted perpetration of burglary, sodomy, rape, robbery, or aggravated arson.” Article 118, UCMJ, 10 U.S.C. § 918 (1976). All other forms of murder or homicide are punishable only by lesser penalties.¹⁸

While in courts-martial the required aggravating circumstance must be found as part of the findings, similar to the Texas procedure, the Supreme Court has sanctioned such a procedure as the functional equivalent of a statutory aggravating factor to be considered during the sentencing phase of the trial. “While Texas has not adopted a list of statutory aggravating circumstances the existence of which can justify the imposition of the death penalty as have Georgia and Florida, its action in narrowing the categories of murders for which a death sentence may ever be imposed serves much the same purpose.” Jurek v. Texas, supra, 428 U.S. at 270, 96 S.Ct. at 2955.

A trial by court-martial is a bifurcated proceeding. The court members are not advised of the maximum sentence until after findings, meaning that they may not know that they are considering a capital offense until after findings, unless they are alerted by the questions during voir dire.

The court members are entitled to consider the facts and circumstances of the offense as aggravating factors. Paragraph 76a (2), MCM, 1969 (Rev.). This is comparable to the nonstatutory and unspecified aggravating factors which may be considered under the Georgia statute approved by the Supreme Court in Gregg v. Georgia, supra.

Regarding the character and background of the accused, the prosecution is limited to matters properly contained in the accused’s personnel records. Records of previous military convictions or nonjudicial punishment are admissible only if the records show compliance with procedural rules, including those giving the accused an opportunity to consult with counsel and to obtain appellate review. Paragraph 75b, d, MCM, 1969 (Rev.).

On the other hand, the accused has broad latitude after findings to submit mitigating evidence, including evidence of good character and good military performance, as well as evidence regarding extenuating circumstances of the offense. The accused has broad rights of allocution, with the option of testifying under oath or avoiding cross-examination by making an unsworn statement, either in person or through counsel. Paragraph 75c, MCM, 1969 (Rev.). The rules of evidence are relaxed during sentencing to permit the accused broad latitude in presenting extenuating and mitigating evidence. Paragraph 75c(1), MCM, 1969 (Rev.); see Mil.R.Evid. 1101(c) (applicable to cases tried after 1 September 1980).

Like the Georgia and Texas statutes, the UCMJ and the Manual for Courts-Martial do not specify which mitigating factors may be considered, although the Manual for Courts-Martial does contain nonexclusive examples of appropriate matters to be considered. See paragraph 76a(2), MCM, 1969 (Rev.). In courts-martial an accused has virtual carte blanche to present whatever he desires in extenuation and mitigation.

A military judge is required to instruct the court members prior to their deliberations on sentencing.¹⁹ His instructions must be specific and tailored to the evidence. See paragraph 76b(l), MCM, 1969 (Rev.). All court members must concur in a death sentence, and their decision is binding on the military judge.²⁰

After the trial, the command staff judge advocate, an experienced military lawyer, must review the proceedings and provide the general court-martial convening authority with a written review of the proceedings, which must include the staff judge advocate’s opinion regarding the legal sufficiency of the proceedings, including the legality and appropriateness of the sentence, along with the reasons for his conclusions. Article 61, UCMJ, 10 U.S.C. § 861 (1976); paragraph 85, MCM, 1969 (Rev.). Prior to submitting his written review to the convening authority, the staff judge advocate must submit the review to the accused and his counsel for comment and rebuttal. United States v. Goode, 1 M.J. 3 (C.M.A.1975).

The convening authority has unfettered clemency authority, but may approve the sentence only if he is convinced beyond a reasonable doubt of the accused’s guilt and is convinced that the sentence is appropriate. Article 64, UCMJ, 10 U.S.C. § 864 (1976). The requirement for review and approval by the convening authority helps to assure that sentences for similar crimes will not be disproportionate within his or her command.

If the convening authority approves a death sentence (or certain lesser sentences), the accused is entitled to several levels of automatic appellate review, with qualified counsel provided at government expense, in addition to any counsel provided by the accused. The case is first considered by a Court of Military Review, which has a broad mandate to approve only such findings and sentence “as it finds correct in law and fact” and “on the basis of the entire record, [finds] should be approved.” Article 66, UCMJ, 10 U.S.C. § 866; paragraph 100a, MCM, 1969 (Rev.). Unlike most civilian appellate courts, the Courts of Military Review have independent fact-finding authority. They may not affirm a finding of guilty based upon a conclusion merely that the findings of the trial court are reasonably supported by the evidence of record, but rather they must be convinced of the appellant’s guilt beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Peek v. United States, 321 F.2d 934 (9th Cir. 1963); cert. denied 376 U.S. 954, 84 S.Ct. 973, 11 L.Ed.2d 973 (1964); compare Article 66, UCMJ, 10 U.S.C. § 866 and paragraph 100a, MCM, 1969 (Rev.) with Fla.Stat.Ann. § 921.141(4) (Supp. 1976-77), Ga. Code Ann. § 27-2537(c)(3) (Supp.1975), and Tex.Code Crim.Proc. Art. 37.071(f) (Supp.1975-76). Also unlike most other appellate courts, the Courts of Military Review are charged with the review of the appropriateness of sentences. The legislative history of Article 66 clearly reflects Congressional intent that this power will be exercised to avoid excessive or disproportionate sentences throughout the armed forces for similar offenses. See H.R.Rep. No. 491, 81st Cong., 2d Sess.; S.Rep. No. 486, 81st Cong., 2d Sess., reprinted in (1950) U.S.Code Cong.Service 2222, 2254; see also United States v. Judd, 11 U.S.C.M.A. 164, 169-70, 28 C.M.R. 388, 393-94 (1960) (Ferguson, J., concurring).

In cases involving a death sentence, we construe the mandate of Article 66 to require a Court of Military Review to be satisfied that (1) the statutory aggravating factor, as well as all other elements of the capital offense, have been proven beyond a reasonable doubt by competent evidence of record; (2) the statutory and non-statutory aggravating factors in the case outweigh the mitigating factors; and (3) that the death sentence is not excessive or disproportionate, considering both the nature and circumstances of the offense, the aggravating and mitigating factors, and the background and character of the appellant.²¹'

If the death sentence is affirmed by the appropriate Court of Military Review, then review by the United States Court of Military Appeals is mandatory. Article 67(b), UCMJ, 10 U.S.C. § 867(b). The Court of Military Appeals has a more restricted appellate role, but nevertheless serves as a check against arbitrary or capricious sentencing. See United States v. Dukes, 5 M.J. 71, 72-74 (C.M.A.1978); United States v. Christopher, 13 U.S.C.M.A. 231, 236-37, 32 C.M.R. 231, 236-37 (1962).

Finally, even if a death sentence is affirmed by the courts, it may not be executed unless approved by the President. Article 71(a), UCMJ, 10 U.S.C. § 871(a). Unlike civilian jurisdictions where the sentence will be executed unless affirmative action is taken by the executive to stay or commute the sentence, in military cases the President must expressly and affirmatively approve a death sentence.

Although Congress has specifically designated certain offenses as capital, it has not prescribed all the procedures for imposing a death sentence, but rather has delegated to the President the authority to prescribe the rules of procedure for courts-martial. Article 36, UCMJ, 10 U.S.C. § 836 (Supp.III 1979). The President has exercised that power by promulgating the Manual for Courts-Martial. Unlike state courts who look to the legislature for procedural rules, courts-martial look primarily to rules prescribed by the President. Such rules, of course, have the force of law so long as they are not inconsistent with the UCMJ.

Although the Supreme Court has indicated that the legislature must determine what criminal acts shall be punishable by death, it has not required that all aggravating or mitigating factors be legislatively determined. To the contrary, the Supreme Court has held that relevant but unspecified non-statutory aggravating factors may be considered. The Court has approved the Georgia and Texas procedures, which permit consideration of non-statutory aggravating factors and which do not specify the mitigating factors. See Gregg v. Georgia, supra; Jurek v. Texas, supra. Furthermore, the Supreme Court has held that relevant non-statutory mitigating factors must be submitted to the sentencing authority even where the legislature has specified certain mitigating factors by statute. Lockett v. Ohio, supra.

Finally, the Supreme Court has held that state courts may define or redefine statutory criteria which are facially too vague or indefinite. Considering the Georgia statute, which permits a death sentence upon a finding that the offense was “outrageously or wantonly vile, horrible and inhuman,” the Court found that this criterion, as interpreted by the Georgia Supreme Court, was sufficiently precise to preclude arbitrary death sentences. Gregg v. Georgia, supra. However, four years later the Supreme Court struck down the Georgia Supreme Court’s application of the same standard as too broad, but did not invalidate the Georgia statutory procedure itself. Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980). The Supreme Court took a similar approach with regard to the vagueness of the aggravating and mitigating factors in the Florida statutes, relying on the Florida Supreme Court to apply them rationally and consistently. Proffitt v. Florida, supra, 428 U.S. at 255-56, 96 S.Ct. at 2968. On the other hand, the Supreme Court has construed the facially restrictive sentencing criteria of Texas in a manner broad enough to comport with constitutional requirements. Jurek v. Texas, supra, 428 U.S. at 272-73, 96 S.Ct. at 2956-57.²²

It is clear from the Supreme Court’s opinions in Gregg, Jurek, Lockett, and Godfrey that the procedural protections against arbitrary imposition of the death penalty need not be founded solely in legislative enactment but may rest in part upon judicial application of general legislative guidelines. Although the capital sentencing procedures considered by the Supreme Court have all been promulgated by the state legislatures — the only entities empowered to do so in civilian criminal systems— the Supreme Court has concerned itself with the substantive content of the procedural rules, not their source. Accordingly, we perceive no Constitutional infirmity in the fact that the procedures by which a court-martial imposes a death sentence are not prescribed entirely by legislative enactment, but are prescribed in part by executive order, which has the force and effect of law, and by appellate court decisions interpreting and applying the procedural rules.

We are satisfied that the procedures prescribed for courts-martial in capital cases sufficiently guide and focus the sentencing decision to survive Constitutional scrutiny. A court-martial is required to find at least one statutory aggravating circumstance before it may consider imposing the death sentence for murder. During the sentencing phase of the bifurcated trial, the prosecution is entitled to present or draw attention to certain limited categories of non-statutory aggravating circumstances. The accused, on the other hand, has broad latitude in presenting extenuating and mitigating factors. The military judge is required to further focus the jury’s attention by specific instructions tailored to the evidence. Lastly, if a death sentence is imposed, the sentence is subject to several levels of review to insure fairness and consistency.

These procedural safeguards are virtually identical to the Texas procedure, about which a plurality of the Supreme Court commented as follows:

We conclude that Texas’ capital-sentencing procedures, like those of Georgia and Florida, do not violate the Eighth and Fourteenth Amendments. By narrowing its definition of capital murder, Texas has essentially said that there must be at least one statutory aggravating eircumstance in a first-degree murder case before a death sentence may even be considered. By authorizing the defense to bring before the jury at the separate sentencing hearing whatever mitigating circumstances relating to the individual defendant can be adduced, Texas has ensured that the sentencing jury will have adequate guidance to enable it to perform its sentencing function. By providing prompt judicial review of the jury’s decision in a court with statewide jurisdiction, Texas has provided a means to promote the evenhanded, rational, and consistent imposition of death sentences under law. Because this system serves to assure that sentences of death will not be ‘wantonly’ or ‘freakishly’ imposed, it does not violate the Constitution.

Jurek v. Texas, 428 U.S. 262, 276, 96 S.Ct. 2950, 2958, 49 L.Ed.2d 929 (1976). Accordingly, we conclude that the military criminal system provides a procedure for imposing the death penalty which, like the Texas procedure, does not violate the Constitution.²³

The fact that the Uniform Code of Military Justice and the Manual for Courts-Martial, unlike most state statutes, have not been amended in response to the Supreme Court decisions does not undermine their constitutionality. Military sentencing procedures have always been more focused and guided than civilian procedures. While it can be argued that special more restrictive rules should be prescribed for trials of capital cases by court-martial, the test that we apply in this case is whether capital sentencing procedures for courts-martial satisfy constitutional requirements, not whether they could be improved. Although the Supreme Court requires that the sentencing process in a capital case be carefully focused and guided, we do not read the Supreme Court decisions as requiring that capital sentencing be accomplished by procedures different from non-capital sentencing. The fact that lesser sentences are imposed with the same care as capital sentences does not necessarily affect the constitutionality of the capital sentencing procedures.

C. Procedures Followed in this Case:

In this case the appellant was charged with and convicted of premeditated murder in violation of Article 118(1), UCMJ, an offense designated by Congress as a capital offense. Since the military judge was forbidden to receive a guilty plea to a capital offense, the prosecution was required to prove the statutory aggravating element, i.e., premeditation, beyond a reasonable doubt. The appellant having pleaded guilty to unpremeditated murder, the issue of premeditation was squarely presented to the court members. After receiving proper instructions from the military judge, they found the element of premeditation beyond a reasonable doubt.

The prosecution was then offered the opportunity to present other non-statutory aggravating factors authorized by the Manual for Courts-Martial, such as prior convictions or nonjudicial punishment. No such factors were presented. In accordance with paragraph 75b of the Manual, the prosecution informed the court members of the appellant’s age, length of service, term of service, marital status, pay, and the nature and duration of the pretrial restraint. In accordance with paragraph 75d of the Manual, the prosecution then presented the appellant’s DA Form 2 and DA Form 2-1, which summarized additional data in his personnel records such as assignments and promotions.

As required by United States v. Hawkins, 2 M.J. 23 (C.M.A.1976) and paragraph 75e of the Manual, the military judge advised the appellant of his right to present evidence in extenuation and mitigation and to testify, or to make an unsworn statement, oral or written, personally or through counsel, or to remain silent. The appellant chose to remain silent, but he did present the testimony of his sister, who testified about the appellant’s deprived childhood, the death of his father, and his concern for his mother’s poor health.

In argument on sentence, the individual defense counsel reminded the court members of the evidence received before findings regarding the appellant’s mental state on the day of the murder, his alcoholism, his low intelligence, his personality disorder, and his suicidal tendencies.

In his instructions, the military judge specifically informed the court members that they should consider the following extenuating and mitigating factors: the appellant’s age, education, background, training, service record and family situation; the duration of his pretrial confinement; his pleas of guilty “to the extent allowed by law”; and the psychiatric testimony regarding his mental deficiency and personality disorders. Lastly, the military judge advised the court members that they should “select the sentence which would best serve the ends of good order and discipline, and the needs of the accused and the welfare of society.” Although the military judge advised the court members that the maximum sentence included the death penalty, he advised them only of the aggregate maximum, not the sentences authorized for each offense. However, he did advise them of the statutory minimum sentence for premeditated murder. The appellant made no objection to the instructions, nor did he request additional instructions.

Thereafter the court members, by unanimous vote, imposed the death sentence.

All of the mitigating factors highlighted by the military judge are specifically authorized by paragraphs 75 and 76 of the Manual. By way of comparison, only three of them are enumerated in the Florida statute approved by the Supreme Court in Proffitt, supra: the appellant’s age (§ 921.-141(6)(g)); lack of criminal record (§ 921.-141(6)(a)) and impaired mental ability (§ 921.141(6)(f)).

Because the military judge instructed the court members only on the aggregate maximum sentence, it is possible that the court members did not know whether the death penalty was authorized for each of the offenses or only for murder. However, the Supreme Court has refused to overturn death sentences based upon such theoretical uncertainty. See Drake v. Zant, 449 U.S. 999, 101 S.Ct. 541, 66 L.Ed.2d 297 (1980) (certiorari denied after Georgia Supreme Court held that they would not set aside a death sentence even though one of the aggravating factors found by the jury was constitutionally defective); but see Zant v. Stephens, 631 F.2d 397 (5th Cir. 1980), cert. granted, - U.S. -, 102 S.Ct. 90, 70 L.Ed.2d 82 (1981). Any likelihood that the court members in this case imposed the death sentence for rape instead of murder is purely speculative. At most, the court may have considered the rape as an aggravating circumstance of the murder.

We are satisfied that the sentencing decision in this case was properly focused and guided. The court was required to determine beyond a reasonable doubt whether the murder was accompanied by a statutory aggravating factor, i.e., premeditation. Having so found, they were then required to balance the seriousness of the offense against an exhaustive list of mitigating factors.²⁴ Given a choice only of life imprisonment or the death sentence, they were required to vote on the less severe sentence first if any member proposed the lesser sentence. All members were required to concur in the death sentence. The range of relevant factors submitted to the court equals or exceeds that of the procedures found acceptable by the Supreme Court. Accordingly, we conclude that the sentencing decision in this case was sufficiently focused and guided to avoid the “wanton” or “freakish” imposition of the death sentence.

XIII. SENTENCE APPROPRIATENESS.

The appellant contends that the death sentence is not appropriate in this case because of his history of alcoholism and the fact that he was intoxicated when he raped and killed Mrs. Villanueva.

Even in the absence of a specific request by an appellant to reduce the sentence, our statutory mandate requires us to independently evaluate the appropriateness of the sentence and to affirm only such sentence or such part or amount of the sentence as we determine should be approved. Article 66, UCMJ, 10 U.S.C. § 866 (1976); paragraph 100, MCM, 1969 (Rev.). We have considered the facts and circumstances of the offenses, the appellant’s age, family and educational background, military record, and mental and emotional condition, as well as the evidence of alcoholism and intoxication which was specifically urged for our consideration on appeal.

Our independent review of the record convinces us that, although the appellant apparently had been drinking on the afternoon of the incident, his degree of intoxication was insufficient to be noticed by witnesses who observed him shortly after Mrs. Villanueva was killed.

Furthermore, the record clearly shows that the murder of Mrs. Villanueva was calculated and deliberate, as evidenced by the appellant’s preparations before attacking her. His attitude shortly after the murder was callous, as evidenced by his references to her as “that bitch,” his attack on her sexual organs after her death, his taking of items of her clothing, and his retention of her intimate apparel even after disposing of other evidence. Lastly, the murder is one of the worst to come before this court in terms of its depravity, brutality and viciousness.

We are satisfied that the death penalty was not “freakishly” and “wantonly” imposed. See Furman v. Georgia, 408 U.S. 238, 309-10, 92 S.Ct. 2726, 2762-63, 33 L.Ed.2d 346 (1972) (Stewart, Jr., concurring). We have no difficulty distinguishing this case from other cases in which a lesser sentence was imposed. Cf., id. at 311-14, 92 S.Ct. at 2763-64 (White, J., concurring). To the contrary, we are convinced that the death sentence is patently appropriate in this case.

XIV. APPLICATION OF FORFEITURES.

Having decided that the death penalty was lawfully imposed as well as appropriate in this case, we must turn to one of the ancillary aspects of a death sentence, viz. the appellant’s entitlement to pay and allowances while awaiting the execution of the sentence.

The convening authority in this case directed that the total forfeitures adjudged be applied to pay and allowances due on and after the date of his action. His action in this respect was incorrect.

Forfeitures may be applied to pay and allowances accruing on or after the date of the convening authority’s action only if the sentence which was adjudged and approved includes “confinement not suspended”; otherwise, forfeitures may not take effect until the sentence is ordered executed. Article 57, UCMJ, 10 U.S.C. § 857 (1976).

A death sentence imposed by a court-martial does not include confinement by implication, although it may be commuted to confinement. An accused found guilty of a violation of Article 118(1) or 118(4) “shall suffer death or imprisonment for life.” (Emphasis added.) It is well settled that criminal statutes must be strictly construed. See United States v. Halseth, 342 U.S. 277, 280, 72 S.Ct. 275, 276, 96 L.Ed. 308 (1952); United States v. Resnick, 299 U.S. 207, 209, 57 S.Ct. 126, 127, 81 L.Ed. 127 (1936); Ornelas v. United States, 236 F.2d 392 (9th Cir. 1956). The word “or” indicates alternative punishments, only one of which may be imposed. Although the word “or” may be interpreted as meaning “and” if necessary to give effect to legislative intent, there is no indication that Congress intended “or” to mean “and” in this situation. See generally 73 Am.Jur.2d, Statutes, § 298; 82 C.J.S., Statutes, § 335.

The legislative history of Article 57 indicates that the Congress considered only the situation in which confinement and forfeitures were adjudged; they did not specifically consider the application of forfeitures in connection with a death sentence, nor did they consider whether both a death sentence and confinement could be adjudged. See H.R.Rep. No. 491, 81st Cong., 2d Sess.; S.Rep. No. 486, 81st Cong., 2d Sess., reprinted in (1950) U.S.Code Congressional Service, p. 2249. The provision for the alternative sentences of death or imprisonment for life first appeared in the Articles of War of 1916. The apparent intent of Congress at that time was merely to incorporate the language of the United States Code into the Articles of War. See S.Rep. No. 229, 63d Cong., 2d Sess., Letter of Major General E. H. Crowder, The Judge Advocate General, dated 12 April 1912. There is nothing in the legislative history of the United States Code to indicate that the death penalty and life imprisonment were not intended to be alternative punishments.

Jurisdictions which consider confinement to be part of the death sentence do so because their criminal statutes specifically provide for confinement of the accused while he or she awaits execution of the death sentence. See, e.g., People v. Rittger, 55 Cal.2d 849, 13 Cal.Rptr. 406, 362 P.2d 38 (1961); Wetzel v. Wiggins, 226 Miss. 671, 85 So.2d 795, appeal denied 352 U.S. 807, 77 S.Ct. 80, 1 L.Ed.2d 39, rehearing denied 352 U.S. 919, 77 S.Ct. 217, 1 L.Ed.2d 125 (1956); In re Watts, 197 Cal. 611, 241 P. 886 (1925); see also 24B C.J.S., Criminal Law, Sec. 2001. Where the criminal statute does not specifically provide for confinement of an accused sentenced to death, confinement is considered a necessary incident of a death sentence but not a part thereof. See McGinn v. State, 46 Neb. 427, 65 N.W. 46 (1895); see also 21 Am.Jur.2d, Criminal Law, Sec. 606. Since Article 118, UCMJ, does not specifically provide for confinement of an accused sentenced to death, we conclude that confinement is a necessary incident of the death sentence but not a part of it. The appellant is not serving a sentence to confinement, but rather is being confined “while being held for trial or the result of trial.” Article 13, UCMJ, 10 U.S.C. § 813; paragraphs 18h(3), 19d, MCM, 1969 (Rev.). Confinement under the authority of Article 13 is imposed by a commander, not a judicial sentencing authority. Since the appellant is not serving a sentence to confinement, there is no authority to apply the forfeitures as of the date of the convening authority’s action.²⁵ We will set aside that portion of the convening authority’s action in our decretal paragraph.

XV. CONCLUSION.

We are satisfied that the death penalty was imposed in accordance with the Constitution, the Uniform Code of Military Justice and the Manual for Courts-Martial. We are further satisfied, for the reasons stated above, that the death sentence is appropriate. Accordingly, the findings of guilty and the sentence are affirmed. However, that portion of the convening authority’s action purporting to apply total forfeitures to pay and allowances becoming due on and after the date of his action is contrary to law and is set aside.²⁶

Senior Judges CARNE and FULTON, and Judges MILLER, McKAY, LEWIS and COHEN concur.

Chief Judge HANSEN and Judge CLAUSE not participating.

1 . The appellant’s military records (Prosecution Exhibit 64) reflect a General Technical (GT) score of 72.

2 . Army Regulation 601-210, Personnel Procurement, Regular Army Enlistment Program, 15 January 1975, paragraphs 3-13d and e, which was in effect at the time of appellant’s enlistment, prohibited Army recruiting personnel from participating in obtaining the release of an individual from a pending criminal charge in order that he might enlist in the Army as an alternative to further prosecution, and from participating in securing the release of an individual from civil restraint (defined as including confinement, probation, parole and suspended sentences) in order that he might enlist. The current version of the regulation, dated 1 October 1980, contains the same prohibition.

3 . Article 2, UCMJ, 10 U.S.C. § 802 (Supp. Ill, 1979), which became effective 9 November 1979, provides in pertinent part as follows:

(b) The voluntary enlistment of any person who has the capacity to understand the significance of enlisting in the armed forces shall be valid for purposes of jurisdiction under subsection (a) of this section and a change of status from civilian to member of the armed forces shall be effective upon the taking of the oath of enlistment.

(c) Notwithstanding any other provision of law, a person serving with an armed force who—

(1) submitted voluntarily to military authority;

(2) met the mental competency and minimum age qualifications of sections 504 and 505 of this title at the time of voluntary submission to military authority;

(3) received military pay or allowances; and

(4) performed military duties;

is subject to this chapter until such person’s active service has been terminated in accordance with law or regulations promulgated by the Secretary concerned.

4 . Article 32, Uniform Code of Military Justice, 10 U.S.C. § 832 (1976) requires that a thorough and impartial investigation be conducted prior to referring a case for trial by general court-martial. As part of this investigation, the accused is entitled to be represented by counsel and to cross-examine witnesses against him as well as present matters in defense, extenuation, or mitigation.

5 . The appellant’s individual civilian counsel at trial also represented the appellant before this Court, filing a brief and participating in oral argument.

6 . Justice Powell concurred in holding the death penalty disproportionate in Coker’s case but did not believe that the Court should foreclose the death penalty for all rape cases, and he criticized Justice White’s opinion for being too broad. Justice White, the author of the plurality opinion, subsequently characterized the holding of Coker in the following words: “under the Eighth and Fourteenth Amendments, death is an excessive penalty for a rapist who does not also commit murder.” (Emphasis added.) Godfrey v. Georgia, 446 U.S. 420, 453, n. 4, 100 S.Ct. 1759, 1764, n. 4, 64 L.Ed.2d 398 (1980) (White, J. dissenting). Justice White’s later characterization of his own Coker opinion indicates that his view may be closer to that of Justice Powell than to the views of Justices Stewart, Blackmun and Stevens.

7 . Two briefs were filed in this case, one by appointed defense counsel and one by the individual civilian counsel who had represented the appellant at the trial. This assignment of error was filed by appointed defense counsel.

8 . The framers of the Constitution specifically provided for the death penalty. See United States Constitution, Amendment V (“No person shall be held to answer for a capital, or otherwise infamous crime ... nor be deprived of life, liberty, or property, without due process of law .... ”). For a detailed history of the death penalty, see Furman v. Georgia, 408 U.S. 238, 242-257, 92 S.Ct. 2726, 2728-2735, 33 L.Ed.2d 346 (1972) (Douglas, J. concurring); id. at 258-306, 92 S.Ct. at 2736-2760 (Brennan, J. concurring); id. at 316-374, 92 S.Ct. at 2765, 2796 (Marshall, J. concurring).

9 . The death penalty appears as an authorized punishment in the Massachusetts Articles of War of 1775, considered the first American Code of military criminal law. Winthrop, Military Law and Precedents 22 (1895, 1920 reprint). The death penalty was retained in the American Articles of War of 1776 and each of the subsequent revisions of the Articles of War in 1806, 1874, 1916, 1920 and 1948. Id., Appendices X-XIII; 39 Stat. 630-70 (1916); 41 Stat. 759-812 (1920); 62 Stat. 627-44 (1948). When the Articles of War were replaced with the Uniform Code of Military Justice, 64 Stat. 107-49 (1950), the death penalty was retained, and was carried over into the 1968 revisions of the Uniform Code of Military Justice, 10 U.S.C. §§ 801-940 (1968), which are currently in effect.

10 . Article 55, UCMJ, 10 U.S.C. § 855 (1976), parallels the Eighth Amendment. It provides as follows:

Punishment by flogging, or by branding, marking, or tattooing on the body, or any other cruel or unusual punishment, may not be adjudged by any court-martial or inflicted upon any person subject to this chapter. The use of irons, single or double, except for the purpose of safe custody, is prohibited.

However, it is clear that Congress did not intend to absolutely prohibit the death penalty, since it is specifically authorized in Articles 85, 90, 94, 99-102, 104, 106, 110, 113, 118 and 120, UCMJ, 10 U.S.C. §§ 885, 890, 894, 899-902, 904, 906, 910, 913, 918 and 920 (1976).

11 . Two of the dissenting justices in the Furman case opined that the capital punishment provisions of the Uniform Code of Military Justice may have been overturned by the plurality opinion. Justice Blackmun remarked, “Also in jeopardy, perhaps, are the death penalty provisions in various Articles of the Uniform Code of Military Justice.” Furman v. Georgia, 408 U.S. 238, 412, 92 S.Ct. 2726, 2815, 33 L.Ed.2d 346 (1972) (Blackmun, J. dissenting). Justice Powell was less tentative, stating, “numerous provisions of the Criminal Code of the United States and of the Uniform Code of Military Justice also are voided.” Id. at 417-18, 92 S.Ct. at 2817-18 (Powell, J., dissenting). However, these remarks clearly were dicta, spoken to reinforce the position that the Court had improperly encroached on the role of the legislature. Two years later, in Schick v. Reed, 419 U.S. 256, 267-68, 95 S.Ct. 379, 385-86, 42 L.Ed.2d 430 (1974), a majority of the Court declined to decide whether Furman applies to courts-martial. Justices Marshall, Douglas, and Brennan dissented, stating that Furman invalidated the death penalty provisions of Article 118, UCMJ. Id. at 271, 95 S.Ct. at 387. A contrary view is expressed in United States v. Denson, 588 F.2d 1112, 1121 n. 9 (5th Cir. 1979) (Article 118, UCMJ, not affected by Furman).

12 . The aggravating factors are:

(a) The capital felony was committed by a person under sentence of imprisonment.

(b) The defendant was previously convicted of another capital felony or of a felony involving the use or threat of violence to the person.

(c) The defendant knowingly created a great risk of death to many persons.

(d) The capital felony was committed while the defendant was engaged, or was an accomplice, in the commission of, or an attempt to commit, or flight after committing or attempting to commit, any robbery, rape, arson, burglary, kidnapping, or aircraft piracy or the unlawful throwing, placing, or discharging of a destructive device or bomb.

(e) The capital felony was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody.

(f) The capital felony was committed for pecuniary gain.

(g) The capital felony was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws.

(h) The capital felony was especially heinous, atrocious, or cruel.

Fla.Stat.Ann. § 921.141(5) (Supp.1976-1977).

13 . The mitigating factors are:

(a) The defendant has no significant history of prior criminal activity.

(b) The capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance.

(c) The victim was a participant in the defendant’s conduct or consented to the act.

(d) The defendant was an accomplice in the capital felony committed by another person and his participation was relatively minor.

(e) The defendant acted under extreme duress or under the substantial domination of another person.

(f) The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired.

(g) The age of the defendant at the time of the crime.

Fla.Stat.Ann. § 921.141(6) (Supp. 1976-1977). Subsequent to Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976), the Florida legislature added another aggravating factor. See Fla.Stat.Ann. § 921.141(5)(i) (Supp. 1981).

14 . The Georgia statute provides in part:

(a) The death penalty may be imposed for the offenses of aircraft hijacking or treason, in any case.

(b) In all cases of other offenses for which the death penalty may be authorized, the judge shall consider, or he shall include in his instructions to the jury for it to consider, any mitigating circumstances or aggravating circumstances otherwise authorized by law and any of the following statutory aggravating circumstances which may be supported by the evidence:

(1) The offense of murder, rape, armed robbery, or kidnapping was committed by a person with a prior record of conviction for a capital felony, or the offense of murder was committed by a person who has a substantial history of serious assaultive criminal convictions.

(2) The offense of murder, rape, armed robbery, or kidnapping was committed while the offender was engaged in the commission of another capital felony, or aggravated battery, or the offense of murder was committed while the offender was engaged in the commission of burglary or arson in the first degree.

(3) The offender by his act of murder, armed robbery, or kidnapping knowingly created a great risk of death to more than one person in a public place by means of a weapon or device which would normally be hazardous to the lives of more than one person.

(4) The offender committed the offense of murder for himself or another, for the purpose of receiving money or any other thing of monetary value.

(5) The murder of a judicial officer, former judicial officer, district attorney or solicitor or former district attorney or solicitor during or because of the exercise of his official duty.

(6) The offender caused or directed another to commit murder or committed murder as an agent or employee of another person.

(7) The offense of murder, rape, armed robbery, or kidnapping was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim.

(8) The offense of murder was committed against any peace officer, corrections employee or fireman while engaged in the performance of his official duties.

(9) The offense of murder was committed by a person in, or who has escaped from, the lawful custody of a peace officer or place of lawful confinement.

(10) The murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or custody in a place of lawful confinement, of himself or another.

Ga.Code Ann. § 27-2534.1 (Supp.1975).

15 . Although the three post-sentencing questions appear to restrict the matters which the jury may consider, the second question has been construed by the Texas courts as broad enough to include factors such as the defendant’s age, background, mental capacity and emotional state. See Jurek v. Texas, 428 U.S. 262, 272-73, 96 S.Ct. 2950, 2956-57, 49 L.Ed.2d 929 (1976); see also Jurek v. State, 522 S.W.2d 934, 939-40 (Tex.Crim.App.1975).

16 . Whether the Supreme Court would uphold a mandatory death penalty in wartime, based upon military exigency or some other special justification, is uncertain. See Article 106, UCMJ, 10 U.S.C. § 906 (1976) (mandatory death penalty for wartime spying).

17 . The rules of evidence and procedure for courts-martial are prescribed by the Manual for Courts-Martial, which has been promulgated by Executive Order 11476, 19 June 1969, reprinted at 3 CFR, 1966-70 Comp. pp. 802-03. The full text of the Manual for Courts-Martial, United States, 1969 (Revised edition) is at 34 Fed.Reg. 10503, 28 June 1969. Article 36, UCMJ, 10 U.S.C. § 836 (Supp. III 1979) delegates to the President the authority to prescribe the procedure, including modes of proof, in cases before courts-martial.

18 . Article 118 is more restrictive in defining capital murder than the laws of Georgia, Florida or Texas. Only premeditated murder and felony murder are designated as capital by Article 118. Georgia designates as capital all degrees of murders, including felony murder. Ga. Code Ann. § 26-1101 (1972). Florida designates as capital premeditated murder, felony murder, and death caused by heroin distribution. Fla.Stat.Ann. § 782.04(1) (Supp.1976-1977). Texas designates as capital all types of murder encompassed by Article 118, including felony murder, murder resulting from an act intended to inflict grievous bodily harm, and murder resulting from an act clearly dangerous to human life. Tex.Penal Code § 19.02(a) (1974).

19 . We note that, unlike civilian juries, military juries usually are not inexperienced in sentencing. Military officers regularly sit as court members. They act as convening authorities, summary courts-martial and investigating officers, and, when in command, they impose nonjudicial punishment. They are not randomly selected but rather are individually selected as being “best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament.” Article 25, UCMJ, 10 U.S.C. § 825 (1976). This difference was recognized by a majority of the Supreme Court in Schick v. Reed, 419 U.S. 256 (1974), where Chief Justice Burger raised but did not answer the question whether Furman applies to “death sentences imposed by military courts where the asserted vagaries of juries are not present as in other criminal cases?” 419 U.S. at 260, 92 S.Ct. at 2737. Accord, United States v. Denson, 588 F.2d 1112, 1119 n. 6 (5th Cir. 1979).

20 . An accused does not have the option of a trial by judge alone in a capital case. Article 18, UCMJ, 10 U.S.C. § 818 (1976).

21 . Military appellate courts normally must confine their review to the record. In cases where extra-record materials are offered for consideration, opposing counsel must be given an opportunity to object to consideration of such materials or to rebut them. Rules of Practice and Procedure, Courts of Military Review, Rule 23. Some civilian appellate practices that are less protective of an appellant have received tacit Supreme Court approval. The United States Supreme Court recently refused to consider the cases of 123 Florida inmates sentenced to death who complained that the Florida Supreme Court had “engaged in the continuing practice of requesting and receiving information concerning capital appellants which was not presented at trial and not a part of the trial record or record on appeal. The information includes ... presentence investigation reports concerning the capital offense under review or prior convictions unrelated to the capital offense; psychiatric evaluations or contact notes (made in the correctional system after conviction); psychological screening reports; recitations of a capital defendant’s refusal to submit to psychiatric examination from which a report could be prepared; post-sentence investigation reports; probation or parole violation reports; and state prison classification and admissions summaries.” Brown v. Wainwright, 392 So.2d 1327, 1332-1333 (Fla.), cert. denied, - U.S. -, 102 S.Ct. 542, 70 L.Ed.2d 407 (1981).

22 . Similarly, a federal district court has held that a listing of statutory mitigating circumstances which facially is too restrictive may be interpreted by the state supreme court in a less restrictive manner so as to comport with the Constitution. Knapp v. Cardwell, 513 F.Supp. 4, 11-14, (D.C.Ariz.1980).

23 . The Supreme Court has not considered the capital punishment provisions of the federal murder statute (Title 18, United States Code, § 1111). However, the federal courts appear to have accepted, usually without detailed analysis, the proposition that Furman invalidated the death penalty provisions in Title 18. See, e.g., United States v. Dufur, 648 F.2d 512 (9th Cir. 1980); United States v. Denson, 588 F.2d 1112 (5th Cir. 1979); United States v. Kaiser, 545 F.2d 467 (5th Cir. 1977); United States v. Weddell, 567 F.2d 767 (8th Cir. 1977); United States v. Watson, 496 F.2d 1125 (4th Cir. 1973); United States v. Woods, 484 F.2d 127 (4th Cir. 1973), cert. denied 415 U.S. 979, 94 S.Ct. 1566, 39 L.Ed.2d 875 (1974). In one of the few cases to set out a detailed explanation, the Court in Kaiser held that narrowing the categories of murder is insufficient, “absent clearly defined channels of sentencing discretion focusing on the particularized circumstances of the crime and the offender....” Kaiser, supra, at 474. A comparison of the detailed listing of sentencing considerations in paragraphs 75 and 76, MCM, 1969 (Rev.) with the absence of any guidelines in Rules 31 and 32 of the Federal Rules of Criminal Procedure convinces us that the constitutional shortcomings of 18 U.S.C. § 1111 are not found in trials by courts-martial.

24 . This balancing test was adopted by Justices Stewart, Powell and Stevens in Woodson v. United States, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976). In that case the plurality stated that the Eighth Amendment “requires consideration of the character and record of the individual offender and the circumstances of the particular offense....” Id. at 304, 96 S.Ct. at 2991 (Stewart, J., joined by Powell and Stevens, JJ.).

25 . This legislative oversight, and the anomalous results it produces in death penalty cases, was recognized by The Judge Advocate General of the Army as early as 1953, but corrective legislation never was enacted. See 1956 Cumulative Pocket Part to the Manual for Courts-Martial, United States, 1951, paragraph 126a.

26 . Our decision affects only the pay and allowances accruing between 14 December 1979, the date of the convening authority’s action, and 1 August 1980, the last day of the appellant’s term of enlistment. After 1 August 1980 the appellant was not entitled to pay and allowances, since none accrue to a service member serving in confinement under a sentence of death which is pending completion of appellate review. Department of Defense Military Pay and Allowances Entitlement Manual, 1 January 1967, as amended, paragraph 10317i.