Opinion Analysis: The Navy-Marine Corps Appellate Government Division wins a battle but loses the waiver war in United States v. Andrews
CAAF decided the Navy case of United States v. Andrews, 77 M.J. 393, No.17-0480/NA (CAAFlog case page) (link to slip op.), on Tuesday, May 22, 2018. Rejecting the Navy-Marine Corps Appellate Government Division’s argument that the failure to object to improper argument at trial waives any error on appeal, CAAF concludes that any improper argument by the prosecution in this particular case was harmless and affirms the decision of the Navy-Marine Corps CCA.
Judge Sparks writes for a unanimous court.
Quartermaster Seaman Apprentice (E-2) Andrews pleaded guilty to fleeing apprehension, making a false official statement, wrongful use of marijuana, and larceny. But he pleaded not guilty to three sexual offenses. After a contested trial before members, Andrews was convicted of one of those three offenses: sexual assault of a person who was incapable of consenting due to impairment by alcohol.
The prosecution’s closing argument, however, crossed the line, and the Navy-Marine Corps CCA found that the trial counsel committed severe prosecutorial misconduct during that argument. Nevertheless, the CCA concluded that the misconduct did not prejudice Andrews. CAAF then granted review of a single issue questioning that no-prejudice conclusion:
The lower court found severe prosecutorial misconduct. Then it affirmed the findings and sentence, giving its imprimatur to the prosecutorial misconduct in Appellant’s case. Did the lower court err?
Judge Sparks’ opinion for the unanimous CAAF affirms the CCA’s action, but only after a lengthy and unexpected analysis of why the issue was not waived by the failure of Andrews’ defense counsel to object to some of the improper arguments at trial. That analysis is unexpected because the question of whether the failure to object to improper argument waives, rather than merely forfeits, any error was not clearly raised by the granted issue in this case, but rather is clearly raised in a different case still pending before CAAF: United States v. Burris, No.17-0605/AR (CAAFlog case page) (argued – by me for Major Burris – on Thursday, March 22, 2018).