CAAF decided the Army case of United States v. Davis, __ M.J. __, No. 16-0306/AR (CAAFlog case page) (link to slip op.), on Tuesday, May, 9, 2017. Affirming a published decision of the Army CCA, CAAF finds that if an accused fails to preserve an instructional error with a timely objection or request, then the error is tested for plain error.

Judge Ryan writes for a unanimous court.

In 2013 Private (E-2) Davis was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of one specification of forcible rape in violation of Article 120. He was sentenced to confinement for six months, reduction to E-1, and a bad-conduct discharge. The conviction was based on an encounter between Davis and a female soldier in the other soldier’s barracks room, the military judge did not instruct the members on the defense of mistake of fact as to consent, and the defense did not object to the omission of such an instruction.

On appeal Davis challenged the omission of a mistake instruction. Rejecting the challenge (in an opinion discussed here) the CCA concluded that:

for mandatory instructions under R.C.M. 920(e)(1)-(3), a military judge retains the sua sponte duty to instruct on defenses raised by some evidence. . . . Nevertheless, in the case of any unpreserved error, the failure to request or object to an instruction on a defense forfeits the matter, absent plain error.

75 M.J. 537, 543-544. This finding of forfeiture was contrary to CAAF’s precedent, and so CAAF granted review to determine:

Whether the Army Court of Criminal Appeals erred in refusing to apply de novo review for failure to instruct on an affirmative defense raised by the evidence, and instead found forfeiture and applied a plain error analysis, contrary to this court’s precedents in United States v. Taylor, 26 M.J. 127 (C.M.A. 1988); United States v. Davis, 53 M.J. 202 (C.A.A.F. 2000); and United States v. Stanley, 71 M.J. 60 (C.A.A.F. 2012).

Today’s opinion affirms that the CCA got it right, though Judge Ryan lightly scolds the court for intruding on CAAF’s “prerogative to overrule its own decisions.” Slip op. at 5 n.2

An error in a trial can be preserved, forfeited, or waived. An error is generally preserved by a timely objection, forfeited by the failure to object, and waived when it is the product of the intentional relinquishment of a known right. Whether an error is preserved (by objection), forfeited (by failure to object), or waived (by intentional and knowing relinquishment) affects the entitlement to relief from the error. An appellant is entitled to relief from a preserved, non-harmless error. An appellant is also entitled to relief from a forfeited error upon showing that the error was plain, obvious, and prejudicial (the plain error test). However, an appellant is not entitled to relief for a waived error.

Mistake of fact as to consent is a special defense to adult sexual offenses under the UCMJ, and Judge Ryan’s analysis begins with the explanation that “where a special defense [like mistake of fact] is reasonably raised by the evidence, an instruction on that defense is required.” Slip op. at 7 (citation omitted). But:

Whether a “[r]equired instruction[]” on findings contained within R.C.M. 920(e) is reasonably raised by the evidence is a question of law that we review de novo. If the military judge omits a required instruction that is reasonably raised by the evidence, the accused may preserve the instructional error either by making an adequate objection or by requesting an instruction in a way that sufficiently signals to the military judge the existence of an error in need of correction. Where required instructional error is preserved, we test for harmlessness. However, if the accused fails to preserve the instructional error by an adequate objection or request, we test for plain error.

Slip op. at 7 (emphasis in original) (citations omitted). Judge Ryan distinguishes forfeiture of a required instruction from waiver of a required instruction by the fact that:

waiver in the context of required instructions is accomplished by an affirmative action, not a mere failure to object.

Slip op. at 8.

But CAAF’s precedent has been less than straightforward on this issue, and so Judge Ryan straightens things out:

We recognize that, on occasion, this Court has cited [United States v. Taylor, 26 M.J. 127 (C.M.A. 1988)] for the proposition that an appellant cannot forfeit an affirmative defense instruction. See e.g., United States v. McDonald, 57 M.J. 18, 20–22 (C.A.A.F. 2002); Davis, 53 M.J. at 204–06; Barnes, 39 M.J. at 232; see also United States v. Davis, 73 M.J. 268, 271 n.4, 272 (C.A.A.F. 2014); United States v. Lewis, 65 M.J. 85, 87 (C.A.A.F. 2007); United States v. Wolford, 62 M.J. 418, 420 (C.A.A.F. 2006). But the language of R.C.M. 920(f), a precise reading of Taylor, and the great weight of our precedent clearly call for plain error review when an appellant fails to request an affirmative defense instruction—indeed, fails to request any “required” instruction under R.C.M. 920(e). There is no principled basis for ignoring R.C.M. 920(f) only in the case of affirmative defense instructions, thereby treating those instructions differently from—or as more important than—elements, lesser included offenses, and other “required” instructions. To the extent Taylor can be read for a contrary rule, it is overruled. Cf. Payne v. Tennessee, 501 U.S. 808, 828 (1991) (holding that “[c]onsiderations in favor of stare decisis” are at their lowest point “in cases . . . involving procedural and evidentiary rules” (citations omitted)).

Slip op. at 9 (emphasis added).

CAAF then turns to the underling issue; whether the mistake of fact instruction should have been given:

Appellant contends on appeal that his statement to BH, “I thought she was joking until I saw her crying,” is “ ‘some evidence of an honest and reasonable mistake’ ” about consent. Davis, 75 M.J. at 540 (quoting Hibbard, 58 M.J. at 75). But while Appellant’s statement may constitute a scintilla of evidence about his “honest belief,” the ACCA correctly concluded that there is not an iota of evidence that such a belief was reasonable. Id. at 545. Appellant overwhelmed BJH with physical force, pinned her down, and penetrated her while she repeatedly told him to stop. We agree with the ACCA that even if there was “some evidence” that Appellant honestly believed that BJH consented, “there was no evidence that such a belief was reasonable.” Id. Even if Appellant honestly believed that BJH’s resistance to his assault was a “joke,” such a mistaken belief was patently unreasonable, making the defense unavailable to Appellant. The military judge did not err, let alone plainly err, by omitting mistake of fact as to consent from his instructions.

Slip op. at 8-9.

This case can easily be added to the list of CAAF opinions this term emphasizing the importance of trial-stage objections. See United States v. McClour, 76 M.J. 23 (C.A.A.F. Jan. 24, 2017) (CAAFlog case page); United States v. Gomez, 76 M.J. 76 (C.A.A.F. Jan. 30, 2017) (CAAFlog case page); United States v. Ahern, __ M.J. __, No. 17-0032/AR (C.A.A.F. Apr. 20, 2017) (CAAFlog case page); United States v. Swift, __ M.J. __, (C.A.A.F. Apr. 26, 2017) (CAAFlog case page).

Except that there’s a wrinkle. The ultimate conclusion that “the military judge did not err,” slip op. at 9, renders the standard of review and the lack of objection somewhat irrelevant.

Nevertheless, CAAF’s holding is clearly not dicta. The failure to object forfeits instructional error.

Case Links:
ACCA opinion (75 M.J. 537)
Blog post: The ACCA tackles the standard of review for instructions not given
• Appellant’s brief 
Appellee’s (Government) brief
Blog post: Argument preview
• Oral argument audio
CAAF opinion
Blog post: Opinion analysis

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