One day after CAAF granted review of the same issue in a different case, the NMCCA reconsiders its decision in United States v. Motsenbocker, No. 201600285 (original decision discussed here) (link to op. on recon) and holds that the failure to object to improper argument merely forfeits any error.

Senior Judge Hutchinson again writes for the panel:

[U]pon reconsideration, we conclude Ahern is distinguishable from the case at bar and does not mandate the application of waiver. Instead, we adhere to the longstanding precedent reaffirmed in Pabelona, Fletcher, and Diffoott and apply a plain error analysis to those allegations of improper argument not preserved by objection.

United States v. Motsenbocker, No. 201600285, slip op. at 5 (N.M. Ct. Crim. App. Oct 17, 2017) (op. on recon.) (link to slip op.). The opinion distinguishes Ahern for two reasons:

First, Ahern was not a case that involved allegations of improper argument under R.C.M. 919(c); rather, it dealt specifically with waiver as it applied to MIL. R. EVID. 304. As such, the defense counsel in Ahern had numerous opportunities to object to the admission of the evidence at issue both before and during the trial. Ahern, 76 M.J. at 198. Yet, Ahern’s defense counsel did not contest a government motion in limine to admit the evidence, and later affirmatively stated he had no objection to the admission of that evidence. Id.

Second, the CAAF decided Ahern less than three months after deciding Pabelona, but did not cite or otherwise reference Pabelona, much less explicitly discuss any impact of its holding in Ahern on review of allegations of improper arguments—unobjected to at trial. See Pabelona, 76 M.J. at 11 (“Because defense counsel failed to object to the arguments at the time of trial, we review for plain error.”) (citation omitted).

Slip op. at 5. I think there are more reasons, but this works.

This decision now leaves the Army CCA as the only federal court to hold that the failure to object to improper argument waives any error. Cf. United States v. Young, 470 U.S. 1, 14 (1985) (applying plain error to claim of improper argument).

Despite a different standard of review, however, the NMCCA still affirms the findings and sentence in Motsenbocker.

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