United States v. Deachin

22 M.J. 611, 1986 CMR LEXIS 2536

• Court: U.S. Army Court of Military Review
• Decided: May 13, 1986
• Docket: CM 447091
• Status: Published

Opinions

OPINION OF THE COURT

WOLD, Senior Judge:

Appellant was convicted of carnal knowledge and an indecent act with the twelve-year-old daughter of Brigadier General X, a deputy post commander. Major General Z, the post commander, detailed the members of the court-martial, referred the charges to trial, and approved the findings and sentence. The sentence, as adjudged and approved, included a bad-conduct discharge, confinement for one year, forfeiture of all pay and allowances, and reduction to Private E-l.

Appellant contends that the convening authority was disqualified because of “personal interest” in the case which made him an accuser under the provisions of Article 22(b), Uniform Code of Military Justice [UCMJ], 10 U.S.C. § 822(b). Appellant extrapolates the claimed “personal interest” from the fact that the father of the victim was the convening authority’s deputy and a “fellow general officer.” At trial, however, the judge inquired whether there was any defense challenge of the convening authority and was assured that there was none.

The United States Court of Military Appeals has decided three cases in this area, United States v. Crossley, 10 M.J. 376 (C.M.A.1981), United States v. Conn, 6 M.J. 351 (C.M.A.1979), and United States v. Gordon, 2 C.M.R. 161 (C.M.A.1952). The opinion in Gordon does not reflect whether the issue was raised at the trial level and the opinion in Crossley leaves one in doubt as to whether the issue was raised at trial. However, none of the three cases was decided on the basis of waiver. From this it could be argued that Gordon, and perhaps Crossley, stand for the proposition that a mere failure to request relief at trial does not constitute a waiver of the issue. Cf. United States v. Wilson, 23 C.M.R. 120 (C.M.A.1957) (Article 26(a) disqualification of law officer who had become witness not subject to passive waiver); but cf. United States v. Gilfilen, 6 M.J. 699, 702 (N.C.M. R.1978) (“[U]nder the circumstances of this case, [failure to raise the issue at trial] is considered a factor supporting the propriety of the convening of this court-martial.”). We need not decide that issue here, however, because the case at bar presents more than a passive waiver. The trial defense counsel’s express refusal to challenge the convening authority closely followed a discussion of the identity of Brigadier General X and his position at the installation. We recognize that this discussion took place while the parties were addressing a possible challenge of the trial judge. Nevertheless, our reading of the record of trial convinces us that the trial defense counsel intended to affirmatively waive the issue now before us, along with all other issues touching on the qualifications of the convening authority.

We can discern from the cases no intent on the part of the United States Court of Military Appeals to create an exception in this area to the general rule which gives effect to affirmative waivers. Disqualification of a convening authority as an accuser is not a jurisdictional error, United States v. Gordon, supra, 2 C.M.R. at 168, construed in United States v. Ferguson, 17 C.M.R. 68, 79 (C.M.A.1954), and nonjurisdictional errors are normally waived when not asserted at trial, United States v. Wilson, 21 M.J. 193, 197 (C.M.A. 1986); United States v. Joseph, 11 M.J. 333 (C.M.A.1981).¹ In addition, the policy reasons which favor giving effect to affirmative waivers apply with full force to this case:

First, a party’s decision not to litigate an issue at trial often results in an avoidable absence of information in the record, and such an absence of information substantially hinders appellate review of the issue. In the case at bar, the parties have been forced to speculate concerning what effect, if any, the offenses against Brigadier General X’s daughter may have had on Major General Z’s ability to properly discharge his duties as convening authority. This court would similarly be forced to speculate as to whether Major General Z had a “personal interest” in the case.² Legal issues should not be decided without the benefit of factual development on the record by the trial court, which is best situated to gather, weigh, and resolve disputed evidence. See United States v. Sykes, 373 F.2d 607, 612 (5th Cir.1966), cert. denied, 386 U.S. 977, 87 S.Ct. 1172, 18 L.Ed.2d 138 (1967). This is one of the fundamental reasons that the waiver doctrine came into existence in the first place. 1 Wigmore, Evidence § 18 (Tillers rev. 1983).

Second, the refusal by trial defense counsel to challenge Major General Z may have been based on tactical considerations. Appellant was originally charged with rape, carnal knowledge and an indecent act. In return for appellant’s offer to plead guilty to the carnal knowledge and indecent act specifications, Major General Z agreed to suspend for one year any confinement at hard labor in excess of thirty months and not to go forward on the rape specification. Thus, appellant’s pretrial agreement with Major General Z effectively reduced the maximum possible term of confinement from life to thirty months. Had appellant successfully challenged Major General Z, however, he would have incurred at least some risk that the successor convening authority might decide to repudiate that pretrial agreement. See generally Shepard-son v. Roberts, 14 M.J. 354 (C.M.A.1983); United States v. Kazena, 11 M.J. 28 (C.M. A.1981).³

Third, and finally, the interests of judicial economy favor the application of waiver. One reason for requiring timely objection at trial is that it gives the trial court the opportunity to identify problems in a case and to remedy them before the court dissipates its limited time and resources in proceeding with a case it might not otherwise hear. In other words, an absence of objection at trial denies the trial court the opportunity to correct errors at an early stage, leaving it to higher courts to consider the need for relief long after the case has been tried and initial review completed. United States v. Del Llano, 354 F.2d 844 (2d Cir.1965) (en banc); United States v. Indiviglio, 352 F.2d 276, 280 (2d Cir.1965) (en banc), cert.- denied, 383 U.S. 907, 86 S.Ct. 887, 15 L.Ed.2d 663 (1966).

Appellant might argue plain error. However, that doctrine is best reserved for those cases where an error has caused a miscarriage of justice or otherwise casts the justice system into disrepute, United States v. Fisher, 21 M.J. 327, 328 (C.M.A. 1986); United States v. McGary, 12 M.J. 760, 762 (A.C.M.R.1981), pet. denied, 12 M.J. 120 (C.M.A.1982); United States v. Beaudion, 11 M.J. 838, 840 (A.C.M.R.), pet. denied, 12 M.J. 181 (C.M.A.1981), and we find that this is not such a case.

The remaining question revolves around the relevance of the presence or absence of specific prejudice. In United States v. Wilson, 16 M.J. 678 (A.C.M.R.1983), a panel of this court stated that “[a]n accused will not be held to have waived a personal disqualification where specific prejudice is shown, or where the application of waiver would result in a miscarriage of justice.” Id. at 681 (emphasis added). The italicized material is somewhat puzzling because it appears to treat the harmless error rule and the waiver rule as interlocking concepts. In our view, these two rules are instead mutually exclusive. If an error is waived, further consideration of its effect is simply estopped unless it qualifies as “plain error,” United States v. Tyler, 17 M.J. 381, 385-86 (C.M.A.1984), and “plain error” is not the reciprocal of harmless error, as the italicized material seems to imply. United States v. Fisher, supra; United States v. Dyke, 16 M.J. 426 (C.M.A. 1983). Thus the presence or absence of specific prejudice, not amounting to “plain error,” appears to us to be irrelevant where a waiver has taken place.⁴

The situation is further complicated by the fact that the Court of Military Appeals, in its opinion in the later Wilson case (United States v. Wilson, 21 M.J. 193 (C.M. A.1986)), quoted the above passage from the Court of Military Review opinion and tested for specific prejudice. Then, in United States v. Ridley, 22 M.J. 43 (C.M.A. 1986), the Court of Military Appeals cited its 1986 Wilson opinion and followed a similar course when dealing with a convening authority who was disqualified because he was junior to the accuser.

Notwithstanding our misgivings about the passage in question, we certainly have no authority to choose which part of the law laid down by our superior court we will apply. If a given holding of the Court of Military Appeals governs a case, we are of course bound to decide that case accordingly. Where a case is distinguishable, we must take care to apply the principles adopted by our superior court to the best of our ability, even though the result may differ. In short, when we deal with the precedents of our superior court, our task is to “faithfully execute” the law, just as we must where other sources of law are involved. It may be that the Court of Military Appeals will come to share our misgivings about the passage quoted in its Wilson opinion or it may be that we have mistakenly read into that passage, and into the Court’s opinions in Wilson and Ridley, implications which keener minds would not find. However that may be, we are bound by the holdings in those cases and must apply them as we understand them unless the cases are properly distinguishable. We hold that they are properly distinguishable from the case at bar, for the following reasons.

In both Wilson and Ridley the Court of Military Appeals had before it fully developed evidence and indisputable facts regarding the issue of disqualification; there was no doubt that the court member in Wilson and the convening authority in Ridley were truly disqualified. Furthermore, the records in those cases contained evidence which was clearly sufficient to allow the Court to determine whether those disqualifications had had a prejudicial effect. Our reading of Wilson and Ridley is that, once confronted with these clear instances of disqualification, the Court examined the obviously ample record for specific prejudice, and, finding none, ruled accordingly. In other words, despite the Court’s reference to waiver, its resolution of Wilson and Ridley does not appear to us to have turned on waiver, but rather on the application of the harmless error rule.

The evidentiary situation in the case at bar is radically different. For the reasons stated above, we cannot determine whether our appellant suffered any specific prejudice as a result of the relationship between the convening authority and the victim’s father or even whether the convening authority had a “personal interest” and was therefore disqualified. This makes application of the specific prejudice test futile and is what distinguishes this case from Wilson and Ridley. Unlike the Court in Wilson and Ridley, we have no rational choice but to apply waiver, for the only alternatives are to engage in sheer speculation about the possibility of error and specific prejudice or to present appellant with a windfall as a reward for his actions which precluded inquiry into the issue at the trial level. Thus, we believe it proper to apply waiver without reference to the presence or absence of specific prejudice, conditional only on the absence of plain error. Finding nothing in this case which casts the system into disrepute or reflects a manifest miscarriage of justice, we hold that appellant is entitled to no relief.⁵

Appellant has also attacked his sentence as inappropriately severe. We disagree.

The findings of guilty and the sentence are affirmed.

Judge FELDER concurs.

1 . In this regard, we view as inapposite those cases which hold unlawful command influence to be nonjurisdictional, yet nonwaivable. See United States v. Blaylock, 15 M.J. 190 (C.M.A. 1983), and cases cited therein. In Blaylock, the Court of Military Appeals observed that invocation of waiver in cases involving the exercise of unlawful command influence was "especially dangerous, since a commander willing to violate statutory prohibitions against command influence might not hesitate to use his powers to dissuade trial defense counsel from even raising the issue." Id. However, coercion of a defense counsel to prevent him from raising the issue is simply not a plausible consequence of a convening authority's "personal interest” in a case, given the kinds of situations covered by that term of art.

Moreover, the existence of a "personal interest” is determined by an objective test, i.e., "whether, upon the particular facts and circumstances ... a reasonable person would impute to [the convening authority] a personal feeling or interest in the outcome of the litigation." United States v. Gordon, 2 C.M.R. at 166. In contrast, the quoted passage from Blaylock obviously contemplated situations in which a commander had engaged in intentional misconduct.

Finally, the exercise of unlawful command influence is a very serious form of malfeasance, particularly when intentionally done, whereas merely acting as the convening authority in a case in which one has a “personal interest” is not.

For all these reasons, we find the two situations so dissimilar that no useful analogy can be drawn here.

2 . In fact, this court would be forced to speculate even as to the exact nature of the "personal interest” Major General Z might have had, assuming he had any at all. See note 3, infra.

3 . In this regard, we also note the possibility that any personal interest in this case on the part of the convening authority may have redounded to appellant’s benefit. If the convening authority’s relationship with the victim’s family had resulted in personal solicitude for her welfare, the convening authority might have been motivated to accept a relatively lenient pretrial agreement in order to shield the victim from the potentially traumatic effects of a contested trial.

4 . The panel decision in Wilson cited United States v. Ivey, 37 C.M.R. 626 (A.C.M.R.1967), as its authority. Ivey, however, merely held that under the particular circumstances of that case, the court was "unwilling to impose a waiver upon a mere showing of a failure to object,” citing another, earlier, United States v. Wilson, reported at 23 C.M.R. 120 (C.M.A.1957). There, with respect to the disqualification of a law officer who had become a witness, the court held only that an affirmative waiver, as opposed to a passive waiver, was required. We can find no authority in either Ivey or the earlier Wilson case for the proposition that the imposition of waiver should depend on the presence or absence of specific prejudice. To us, the holdings in the two cases deal only with the issue of affirmative versus passive waiver.

5 . We fully agree with Judge Naughton that a presumption of regularity attaches to official acts, including the exercise of the power to convene courts-martial, and also with his thesis that, even if waiver did not apply, appellant would have the burden of raising the issue of disqualification. We prefer to rest our result on appellant’s waiver. In our view, an effective waiver of an issue precludes any further consideration of that issue. Since that is our position, we decline to express any opinion on the question whether the evidence before the court in this case is sufficient to raise the issue of disqualification by reason of a "personal interest."