United States v. Washington

61 M.J. 574, 2005 CCA LEXIS 162, 2005 WL 1199047
CourtNavy-Marine Corps Court of Criminal Appeals
DecidedMay 18, 2005
DocketNMCCA 200101011
StatusPublished
Cited by3 cases

This text of 61 M.J. 574 (United States v. Washington) is published on Counsel Stack Legal Research, covering Navy-Marine Corps Court of Criminal Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Washington, 61 M.J. 574, 2005 CCA LEXIS 162, 2005 WL 1199047 (N.M. 2005).

Opinion

WAGNER, Judge:

A general court-martial composed of officer and enlisted members convicted the appellant, contrary to his pleas, of carnal knowledge and indecent acts with a child, in violation of Articles 120 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 920 and 934. The appellant was sentenced to a bad-conduct discharge, confinement for 9 years, and reduction to pay grade E-l. There was no pretrial agreement. The convening authority approved the sentence as adjudged.

The appellant contends that the findings must be set aside because a key Government witness was not administered an oath or its equivalent prior to testifying, that the evidence adduced at trial was legally and factually insufficient to sustain his conviction for both offenses, and that the sentence is inappropriately severe for the offenses of which he stands convicted. The appellant also asserts that the Government failed to exercise due diligence when it waited two years to bring the appellant to trial, that the trial defense counsel’s failure to submit matters in clemency to the convening authority amounted to ineffective assistance of counsel, and that the military judge erred by not consolidating the offenses for findings purposes at trial.

After carefully considering the record of trial, the appellant’s assignments of error, the Government’s response, and the appellant’s reply, we conclude that the findings and sentence are correct in law and fact and that no error materially prejudicial to the substantial rights of the appellant was committed. Arts. 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a) and 866(c).

Failure to Administer Oath

The appellant contends that this court should dismiss the findings of guilty because the victim, “G,” the appellant’s 10-year-old daughter, was not placed under oath before her initial testimony at trial. We disagree and decline to grant relief.

C was called to the stand and answered several questions regarding truth and falsity, but, after being interrupted by the military judge, the trial counsel never completed the inquiry. Following C’s testimony on direct examination, the trial counsel asked C if her testimony was the truth and then swore her to that testimony. The defense counsel, who raised no objection to the form of the oath or the procedure of the direct testimony, conducted an extensive cross-examination. The following day, C was recalled by the trial counsel, was once again properly sworn, and testified in amplification of her prior testimony.

Military Rule of Evidence 603, Manual for Courts-Martial, United States (2000 ed.), requires that, before testifying, a witness “shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness’s conscience and impress the witness’s mind with the duty to do so.” The rule was written in this fashion “to permit atheists, conscientious objectors, children, and individuals with emotional difficulties to satisfy the basic criterion.” Stephen A. Saltzburg, et al., Military Rules of Evidence Manual, § 603.02 (5th ed.2003).

The language of Mil. R. Evid. 603 recognizes the trend in federal civilian courts and military courts toward allowing all witnesses to testify and allowing the members to receive all arguably reliable evidence and decide for themselves what weight each piece of evidence is to be given. United States v. Morgan, 31 M.J. 43, 47 (C.M.A.1990)(citing Saltzburg, Military Rules of Evidence Manual 492 (2nd ed.1986)); see also United States v. Lightly, 677 F.2d 1027, 1028 (4th Cir.1982).

Assuming without deciding that, under the circumstances of this ease, the aborted truth or falsity inquiry with C prior to taking her direct testimony was insufficient to satisfy Mil. R. Evid. 603, we conclude that the appellant forfeited the issue on appeal by his [576]*576failure to raise the issue at trial.1

The military courts have had the opportunity to address the sufficiency of the oath administered to child witnesses, but have not directly addressed the issue of not having the oath administered at all prior to testimony. See Morgan, 31 M.J. 43; United States v. Allen, 13 M.J. 597 (A.F.C.M.R.1982).

Federal courts, however, have addressed the issue directly and repeatedly, applying the doctrine of waiver2 when no objection is made at trial.

It is well settled that the swearing of a witness is waived by failure to raise the point during the witness’ testimony, thus denying the trial court an opportunity to correct what has been characterized as an “irregularity.” The rationale of this principle was declared a century and a half ago in the oft-cited case of Cady v. Norton, 31 Mass. 236, 14 Pick. 236, 237 (1833). The Court in that case stated two justifications for the rule: First, the defect or failure could have been corrected if a timely objection had been made; second, in the absence of a waiver rule counsel might deliberately avoid objecting to a witness being unsworn in order to have a ground of appeal.

United States v. Odom, 736 F.2d 104, 114-15 (4th Cir.1984) (footnote omitted). The Odom court cites Wilcoxon v. United States, 231 F.2d 384, 386-387 (10th Cir.1956) as the “leading federal case” applying the waiver principle laid down in Cady.

The facts in Wilcoxon bear out a similar application of the waiver doctrine in the case before us. In that case, witnesses who spoke no English were given the oath en masse with other witnesses, in English, prior to their testimony. No objection was lodged at trial. After trial, Wilcoxon’s attorneys alleged that they did not discover the error until after trial. The court in Wilcoxon stated that the appellant and his attorneys knew the witnesses spoke no English and were under a duty to “take notice of the several steps in the proceeding.” Wilcoxon, 231 F.2d at 387 (citing People v. Krotz, 341 Ill. 214, 172 N.E. 135 (1930)). The court went on to conclude that the appellant’s failure to “bring the matter to the attention of the trial court in some manner” constituted waiver of the issue on appeal. Id. (citing Beausoliel v. United States, 107 F.2d 292 (D.C.Cir.1939)).

We conclude that the failure of the appellant in the present case to raise, at trial, the issue of sufficiency of the oath given to C, or to lodge objection to the procedure used to satisfy Mil. R. Evid. 603, forfeits the issue on appeal.

Having applied the doctrine of forfeiture vice waiver in this case, we must further determine whether the failure to give a complete oath prior to direct testimony constituted plain error.

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61 M.J. 574, 2005 CCA LEXIS 162, 2005 WL 1199047, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-washington-nmcca-2005.