In a pair of recent published decisions, the Army CCA addresses the standard of review to be applied when an appellant asserts for the first time on appeal that a military judge should have given a certain instruction to the members.
First, sitting en banc in United States v. Davis, 75 M.J. 537, No. 20130996 (A. Ct. Crim. App. Nov. 25, 2015) (link to slip op.), the CCA holds that the failure of the defense to request an instruction forfeits the issue absent plain error. Writing for the majority, Judge Wolfe explains that:
Accordingly, 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. For non-mandatory instructions under R.C.M 920(e)(7) a military judge possesses substantial discretion in deciding what instructions to give. United States v. Damatta-Olivera, 37 M.J. 474, 478 (C.M.A. 1993). While a military judge “has wide discretion” as to the “form” of the instruction, United States v. Behenna, 71 M.J. 228, 232 (C.A.A.F. 2012), whether an instruction is a correct statement of the law is reviewed de novo. United States v. Ivey, 53 M.J. 685 699 (Army Ct. Crim. App. 2000) aff’d on other grounds, 55 M.J. 251 (C.A.A.F. 2001). 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.
Slip op. at 9. A concurring opinion authored by Judge Penland concludes that plain error review is the appropriate standard in the absence of an objection, but that “an appellant does not forfeit the benefit of this instruction by failing to request it or failing to object to a list of instructions which omits it.” Slip op. at 14.
Notably, Rule for Courts-Martial 920(f) specifically permits plain error review of a missing instruction:
(f) Waiver. Failure to object to an instruction or to omission of an instruction before the members close to deliberate constitutes waiver of the objection in the absence of plain error. The military judge may require the party objecting to specify of what respect the instructions given were improper. The parties shall be given the opportunity to be heard on any objection outside the presence of the members.
Judge Wolfe’s majority opinion explains why the use of the term waiver in the Rule is wrong:
We start our analysis with the promulgation of the rules for court-martial in the 1984 Manual for Courts-Martial, United States (1984 ed.) [hereinafter MCM, 1984]. Rule for Courts-Martial 920(f) states that “[f]ailure to object to an instruction or to an omission of an instruction before the members close to deliberate constitutes [forfeiture] of the objection in the absence of plain error.” The drafter’s analysis to R.C.M. 920(f) indicates a specific intent to adopt the federal practice in this area. See MCM, 1984, R.C.M. 920(f) Analysis at A21-61 (stating that the rule is based on Federal Rule of Criminal Procedure (Fed. R. Crim. P.) 30). Notably, such a rule is in accordance with the mandate of Article 36, UCMJ, that the President may prescribe rules which shall, as far as practicable, “apply the principles of law generally recognized in the trial of criminal cases in the United States district courts.”
Slip op. at 5-6 (modifications in original) (emphasis added). A footnote explains:
Rule for Courts-Martial 920(f) continues to use the word “waiver.” For consistency, and in fidelity to the analytical construct set forth by our superior court, we will use the correct term of “forfeiture.” United States v. Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009) (“Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the ‘intentional relinquishment or abandonment of a known right.’ The distinction between the terms is important. If an appellant has forfeited a right by failing to raise it at trial, we review for plain error. When, on the other hand, an appellant intentionally waives a known right at trial, it is extinguished and may not be raised on appeal.”) (internal citations and quotations omitted).
Slip op. at 6 n.6.
The issue in Davis was whether the military judge erred in failing to sua sponte give a mistake of fact as to consent instructions, and the CCA unanimously finds that the judge did not err in part because:
the entire defense case was directed not at claiming that the sexual act was consensual (or that appellant mistakenly believed it to be so). Rather, the overwhelming thrust of the defense case was that the sexual act never happened at all.
Slip op. at 12.
But a three-judge panel of the CCA reaches a different conclusion when considering whether a military judge should have given self-defense and defense of property instructions, in United States v. Viers, __ M.J. __, No. 20130847 (A. Ct. Crim. App. Nov. 30, 2015) (link to slip op.).
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