CAAF “do[es] not construe the failure to object to what was the settled law at the time as an intentional relinquishment of a known right”
Yesterday CAAF summarily reversed in a Hills / Guardado trailer:
No. 18-0002/AR. U.S. v. Elmer F. Hoffmann III. CCA 20140172.
On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, and in light of United States v. Guardado, 77 M.J. 90 (C.A.A.F. 2017), we conclude that (1) Appellant did not waive the error resulting from the improper propensity instructions as we do not construe the failure to object to what was the settled law at the time as an intentional relinquishment of a known right, and (2) the error was not harmless beyond a reasonable doubt. Accordingly, it is, by the Court, this 7th day of May, 2018,
That said petition is hereby granted on the following issues:
I. WHETHER APPELLANT WAIVED ANY ERROR RESULTING FROM THE MILITARY JUDGE’S IMPROPER PROPENSITY INSTRUCTION AT A TRIAL PRIOR TO THIS COURT’S OPINION IN UNITED STATES v. HILLS, 75 M.J. 350 (C.A.A.F. 2016).
II. WHETHER THE ARMY COURT INCORRECTLY PLACED THE BURDEN OF PERSUASION ON APPELLANT FOR THE THIRD PRONG OF THE PLAIN ERROR TEST IN VIOLATION OF THE CONSTITUTIONAL STANDARD THAT THIS COURT HAD ARTICULATED IN PLAIN ERROR CASES SINCE UNITED STATES v. POWELL, 49 M.J. 460 (C.A.A.F. 1998).
The decision of the United States Army Court of Criminal Appeals is reversed. The findings of guilty and the sentence are set aside. The record of trial is returned to the Judge Advocate General of the Army. A rehearing is authorized to the extent that the charges and specifications are not barred by the statute of limitations. See United States v. Mangahas, 77 M.J. 220 (C.A.A.F. 2018). See also United States v. Grimes, 142 F.3d 1342, 1351 (11th Cir. 1998) (stating that the circuits are in agreement “that extending a limitations period before the prosecution is barred does not violate the Ex Post Facto Clause”).
(emphasis added). A footnote clarifies that the appellant’s name is spelled with two Ns (the CCA’s opinion uses only one N).
I last mentioned this case in this post where I first discussed a series of Army CCA decisions holding that the failure to object to improper argument waives any error. CAAF subsequently granted review of that issue in a number of cases, including in United States v. Burris, No.17-0605/AR (CAAFlog case page), which I argued before CAAF on March 22, 2018.
Yesterday’s summary disposition in Hoffmann does not directly answer the issue presented in Burris, however the court’s observation that the failure to object to settled law is not a waiver is important. It’s also consistent with CAAF’s waiver precedent; specifically United States v. Harcrow where the court observed that changes in the law after trial “opened the door for a colorable assertion . . . where it was not previously available.” 66 M.J. 154, 157-158 (C.A.A.F. 2009). I discussed Harcrow (and how I think it applies to a Hills issue) in this post in which I analyzed the Army CCA’s opinion in United States v. Sanchez, No. 20140735 (A. Ct. Crim. App. Jul. 17, 2017), pet. filed, __ M.J. __, No. 17-0592/AR (C.A.A.F. Sep. 14, 2017).
Additionally, while much of the recent waiver mania is based on the mere failure of defense counsel to object, the Supreme Court applies a very different test for waiver:
Whether a particular right is waivable; whether the defendant must participate personally in the waiver; whether certain procedures are required for waiver; and whether the defendant’s choice must be particularly informed or voluntary, all depend on the right at stake.
United States v. Olano, 507 U.S. 725, 733 (1993) (citations omitted).