United States v. Vazquez, 72 M.J. 13 (there is a presumption against waiver of the fullest expression of rights under the Confrontation Clause).
2011 (September Term)United States v. Stanley, 71 M.J. 60 (waiver does not apply to required instructions such as affirmative defenses).
United States v. Campbell, 71 M.J. 19 (defense counsel’s request for merger of the charges based on unreasonable multiplication before the trial and again after the findings were returned preserved his claim on appeal regarding dismissal of any unreasonably multiplied offenses).
2010 (September Term)
United States v. Sweeney, 70 M.J. 296 (whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right; there is a presumption against the waiver of constitutional rights, and for a waiver to be effective it must be clearly established that there was an intentional relinquishment of a known right or privilege; to determine whether a failure to object was waiver or mere forfeiture, an appellate court looks to the state of the law at the time of trial, and it will not find waiver where subsequent case law opened the door for a colorable assertion of the right to confrontation where it was not previously available).
(under plain error review, an appellate court will grant relief only where (1) there was error, (2) the error was plain and obvious, and (3) the error materially prejudiced a substantial right of the accused; where the alleged error is constitutional, the prejudice prong is fulfilled where the government cannot show that the error was harmless beyond a reasonable doubt).
United States v. Eslinger, 70 M.J. 193 (failure to object to the admission of evidence at trial forfeits appellate review of the issue absent plain error).
(any additional claimed infirmity based on lack of personal knowledge regarding the testimony in sentencing of appellant’s group command sergeant major that appellant should not be retained in the armed forces was affirmatively waived and was not subject to plain error review, where defense counsel only objected that the testimony was cumulative and did not object that the testimony lacked a proper foundation).
United
States v. McMurrin, 70 M.J. 15 (where the
accused failed to object to military
judge’s consideration of negligent homicide as a LIO to involuntary
manslaughter, his failure to object
forfeited, rather
than waived, any error).
United
States v. Girouard, 70 M.J. 5 (deviation from a
legal rule is error unless the
rule has been waived).
(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 accused’s choice
must be
particularly informed or voluntary, all depend on the right at stake).
(there is a presumption
against the waiver of
constitutional rights, and for a waiver to be effective, it must be
clearly
established that there was an intentional relinquishment or abandonment
of a
known right or privilege).
(charged with premeditated
murder, appellant did
not waive the error arising when the military judge erroneously
instructed on
negligent homicide as an LIO, even though he had requested that
instruction and
even though at the time of trial, negligent homicide was considered an
LIO of
murder, where the instruction violated appellant’s due process right
not to be
convicted of a crime that was not an LIO of the offense with which he
was
charged, and where defense counsel’s trial strategy could not be
considered an
intentional relinquishment or abandonment of a known right when this
LIO issue
had not been decided until after trial).
United
States v. Daly, 69 M.J. 485 (a question of
jurisdiction is not subject to
waiver and may be raised at any time).
United
States v. Gooch, 69 M.J. 353 (an appellant
cannot waive a claim of
ineffective assistance of counsel where waiver is based on the very
advice he
asserts was ineffective).
United States v. Pope, 69 M.J. 328
(failure to object to an instruction given or omitted waives the
objection
absent plain error).
United
States v. Jones, 69 M.J. 294 (an unconditional
guilty plea which results in a finding of guilty waives any objection,
whether
or not previously raised, insofar as the objection relates to the
factual issue
of guilt of the offenses to which the plea was made; the point is that
a
counseled plea of guilty is an admission of factual guilt so reliable
that,
where voluntary and intelligent, it quite validly removes the
issue of
factual guilt from the case).
(an
unconditional guilty
plea generally waives all pretrial and trial defects that are not
jurisdictional or a deprivation of due process of law).
(appellant’s
unconditional guilty plea to receiving child pornography waived any
issues related
to the military judge’s denial of his pretrial and mid-providence
requests to
view the child pornography, where the denial neither implicated due
process
rights nor resulted in the loss of appellant’s pretrial agreement).
2009 (September Term)
United
States v. Craig, 68 M.J. 399 (an
unconditional guilty plea waives multiplicity
claims when the offenses are not facially duplicative).
(appellant’s unconditional
guilty pleas waived
the issue of whether the specifications charging appellant with receipt
and
possession of the same child pornography were multiplicious, where the
specifications were not facially duplicative because appellant received
the
files of the images on one medium and stored them on another).
United
States v. Douglas,
68 M.J. 349 (the CAAF has not applied the doctrine of waiver where
unlawful command
influence is at issue).
United
States v. Bradley, 68 M.J. 279 (an
unconditional plea of guilty waives all
nonjurisdictional defects at earlier stages of the proceedings).
(RCM 910(j) provides that a
plea of guilty
which results in a finding of guilty waives any objection, whether or
not
previously raised, insofar as the objection relates to the factual
issue of
guilt of the offense to which the plea was made).
(RCM 910(a)(2) provides for
conditional guilty
pleas as an exception to the general waiver rule; a conditional guilty
plea is
a creature of statute or regulation; there is no constitutional right
to enter
such a plea; this being the case, it follows that compliance with the
regulation is the sole means of entering a conditional plea and
preserving the
issue on appeal; such a plea cannot be implied; the military judge and
the
government each have complete discretion whether to permit or consent
to a
conditional guilty plea).
(in this case, the CCA erred
in concluding
that there was a de facto conditional guilty plea, where the CCA
determined
that the military judge’s ambiguous advisement with regard to waiver
and the
civilian defense counsel’s belief that the issue was preserved for
appellate
review were material factors in the accused’s decision to plead guilty
and
that, accordingly, the accused was entitled to appellate review of his motion to dismiss; such a plea cannot
be implied; it can only be manifested by compliance with the
conditional guilty
plea rule of RCM 910(a)(2)).
(the accused’s unconditional
guilty plea
waived his ability to appeal the military judge’s denial of his motion
to
disqualify trial counsel based on that counsel having served as a
witness in a
pretrial motion hearing, as well as a motion to dismiss based on the
government’s alleged derivative use of his immunized statements and
testimony;
the record was clear that neither the government nor the military judge
consented to a conditional plea as required by RCM 910(a)(2)).
(while the waiver doctrine,
under which an
unconditional plea of guilty waives all nonjurisdictional defects at
earlier
stages of the proceedings, is not without limits, those limits are
narrow and
relate to situations in which, on its face, the prosecution may not
constitutionally be maintained; this case is not such a situation, and
the
waiver doctrine therefore applies).
(a guilty plea will not be
rejected as
improvident unless there is a substantial basis in law or fact for
doing so).
(the accused’s unconditional
guilty plea,
resulting in waiver of his ability to appeal the military judge’s
denial of his
motion to disqualify trial counsel and his motion to dismiss, was not
improvident, even if the accused thought the disqualification issue
would be
preserved, where the accused was represented by experienced civilian
defense
counsel, the accused explicitly entered an unconditional plea of
guilty, and there
is no allegation of ineffective assistance of counsel, or that the
accused (who
was getting the benefits of a quite favorable pretrial agreement) did
not
understand what he was doing). United States v. Bradley, 68 M.J.
279 (an
unconditional plea of guilty waives all nonjurisdictional defects at
earlier
stages of the proceedings).
(RCM 910(j) provides that a
plea of guilty
which results in a finding of guilty waives any objection, whether or
not
previously raised, insofar as the objection relates to the factual
issue of
guilt of the offense to which the plea was made).
(RCM 910(a)(2) provides for
conditional guilty
pleas as an exception to the general waiver rule; a conditional guilty
plea is
a creature of statute or regulation; there is no constitutional right
to enter
such a plea; this being the case, it follows that compliance with the
regulation is the sole means of entering a conditional plea and
preserving the
issue on appeal; such a plea cannot be implied; the military judge and
the
government each have complete discretion whether to permit or consent
to a
conditional guilty plea).
(in this case, the CCA erred
in concluding
that there was a de facto conditional guilty plea, where the CCA
determined
that the military judge’s ambiguous advisement with regard to waiver
and the
civilian defense counsel’s belief that the issue was preserved for
appellate
review were material factors in the accused’s decision to plead guilty
and
that, accordingly, the accused was entitled to appellate review of his motion to dismiss; such a plea cannot
be implied; it can only be manifested by compliance with the
conditional guilty
plea rule of RCM 910(a)(2)).
(the accused’s unconditional
guilty plea
waived his ability to appeal the military judge’s denial of his motion
to
disqualify trial counsel based on that counsel having served as a
witness in a
pretrial motion hearing, as well as a motion to dismiss based on the
government’s alleged derivative use of his immunized statements and
testimony;
the record was clear that neither the government nor the military judge
consented to a conditional plea as required by RCM 910(a)(2)).
(while the waiver doctrine,
under which an
unconditional plea of guilty waives all nonjurisdictional defects at
earlier
stages of the proceedings, is not without limits, those limits are
narrow and
relate to situations in which, on their face, the prosecution may not
constitutionally be maintained; this case is not such a situation, and
the
waiver doctrine therefore applies).
(a guilty plea will not be
rejected as
improvident unless there is a substantial basis in law or fact for
doing so).
(the accused’s unconditional
guilty plea,
resulting in waiver of his ability to appeal the military judge’s
denial of his
motion to disqualify trial counsel and his motion to dismiss, was not
improvident, even if the accused thought the disqualification issue
would be
preserved, where the accused was represented by experienced civilian
defense
counsel, the accused explicitly entered an unconditional plea of
guilty, and
there is no allegation of ineffective assistance of counsel, or that
the
accused (who was getting the benefits of a quite favorable pretrial
agreement)
did not understand what he was doing).
(RCM 910(j) provides that a
plea of guilty
which results in a finding of guilty waives any objection, whether or
not
previously raised, insofar as the objection relates to the factual
issue of
guilt of the offense to which the plea was made).
(RCM 910(a)(2) provides for
conditional guilty
pleas as an exception to the general waiver rule; a conditional guilty
plea is
a creature of statute or regulation; there is no constitutional right
to enter
such a plea; this being the case, it follows that compliance with the
regulation is the sole means of entering a conditional plea and
preserving the
issue on appeal; such a plea cannot be implied; the military judge and
the
government each have complete discretion whether to permit or consent
to a
conditional guilty plea).
(in this case, the CCA erred
in concluding
that there was a de facto conditional guilty plea, where the CCA
determined
that the military judge’s ambiguous advisement with regard to waiver
and the
civilian defense counsel’s belief that the issue was preserved for
appellate
review were material factors in the accused’s decision to plead guilty
and
that, accordingly, the accused was entitled to appellate review of his motion to dismiss; such a plea cannot
be implied; it can only be manifested by compliance with the
conditional guilty
plea rule of RCM 910(a)(2)).
(the accused’s unconditional
guilty plea
waived his ability to appeal the military judge’s denial of his motion
to
disqualify trial counsel based on that counsel having served as a
witness in a
pretrial motion hearing, as well as a motion to dismiss based on the
government’s alleged derivative use of his immunized statements and
testimony;
the record was clear that neither the government nor the military judge
consented
to a conditional plea as required by RCM 910(a)(2)).
(while the waiver doctrine,
under which an
unconditional plea of guilty waives all nonjurisdictional defects at
earlier
stages of the proceedings, is not without limits, those limits are
narrow and
relate to situations in which, on its face, the prosecution may not
constitutionally be maintained; this case is not such a situation, and
the
waiver doctrine therefore applies).
(a guilty plea will not be
rejected as
improvident unless there is a substantial basis in law or fact for
doing so).
(the accused’s unconditional
guilty plea,
resulting in waiver of his ability to appeal the military judge’s
denial of his
motion to disqualify trial counsel and his motion to dismiss, was not
improvident, even if the accused thought the disqualification issue
would be
preserved, where the accused was represented by experienced civilian
defense counsel,
the accused explicitly entered an unconditional plea of guilty, and
there is no
allegation of ineffective assistance of counsel, or that the accused
(who was
getting the benefits of a quite favorable pretrial agreement) did not
understand what he was doing).
United
States v. Campbell, 68 M.J. 217 (where appellant
pled guilty unconditionally
to three specifications of possessing child pornography and the
specifications
were not facially duplicative, he waived his ability to contest whether
he
should have been charged with only one specification of possessing
child
pornography).
United
States v. Schweitzer, 68 M.J. 133 (RCM 910(j)
provides a bright-line
rule - an unconditional guilty plea which results in a finding of
guilty waives
any objection, whether or not previously raised, insofar as the
objection
relates to the factual issue of guilt of the offense to which the plea
was
made; the point is that a counseled plea of guilty is an admission of
factual
guilt so reliable that, where voluntary and intelligent, it quite
validly
removes the issue of factual guilt from the case).
(an unconditional guilty plea
generally waives all defects which are neither jurisdictional nor a
deprivation
of due process of law; nevertheless, on occasion, an unconditional
guilty plea
by itself does not waive an objection on appeal to a nonfactual issue,
such as multiplicity,
speedy trial under Article 10, UCMJ, and the defect of a specification
that
fails to state an offense).
(appellant’s unconditional
guilty
pleas to conduct unbecoming an officer waived his objection on appeal
that the
officer acting as the convening authority in his case was also an
accuser;
because the officer was authorized under Article 22(a), UCMJ, to
convene appellant’s
court-martial, any error was nonjurisdictional, and at trial, appellant
explicitly acknowledged understanding that his guilty pleas waived on
appeal
the objection to the convening authority being an accuser).
United
States v. Marshall, 67 M.J. 418 (forfeiture and
waiver, although frequently
conflated, are not the same).
(the purpose of the forfeiture
rule is to
ensure that the trial judge has the opportunity to rule on issues
arising at
trial, and to prevent the raising of such issues for the first time on
appeal,
after any chance to correct them has vanished).
United
States v. Campos, 67 M.J. 330 (a forfeiture is
basically an oversight; a
waiver is a deliberate decision not to present a ground for relief that
might
be available in the law; while an appellate court reviews forfeited
issues for
plain error, it cannot review waived issues at all because a valid
waiver
leaves no error for the court to correct on appeal; in
determining whether a
particular circumstance constitutes a waiver or a forfeiture, an
appellate
court considers whether the failure to raise the objection at the trial
level
constituted an intentional relinquishment of a known right).
(in this case, appellant, who
as part of a
negotiated pretrial agreement, entered into a stipulation of expected
testimony
of a psychologist who had expertise in evaluating and treating sexual
offenders, waived any right to claim error on the ground that the
witness did
not personally appear to present live testimony at sentencing in a
child pornography
prosecution, where the stipulation amounted to an agreement between
appellant,
defense counsel, and trial counsel that if the witness were called to
testify,
he would testify under oath as reflected in the document, the military
judge
provided appellant with a detailed explanation of the stipulation,
appellant
agreed to the “use of” the stipulation, and defense counsel represented
that he
desired to enter into the stipulation).
(after appellant in a child
pornography prosecution
entered into a stipulation of expected testimony of a psychologist who
had
expertise in evaluating and treating sexual offenders, defense counsel
waived the
issue of admissibility of the substance of the stipulation at
sentencing by
answering “no” when the military judge asked for objections; although
the stipulation
did not expressly consent to the admission of the witness’s testimony,
defense
counsel had advance notice of the substance of the testimony, reviewed
the
expected testimony, and considered the impact of the stipulation on
appellant’s
case).
United
States v. Gladue, 67 M.J. 311 (waiver
is different from forfeiture; 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, an appellate court reviews it 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).
(a criminal defendant may
knowingly and
voluntarily waive many of the most fundamental protections afforded by
the
Constitution; that includes double jeopardy, the basis of the
multiplicity
objection).
(in the absence of an explicit
prohibition, a
party may knowingly and voluntarily waive such a nonconstitutional
right in a pretrial
agreement).
(although the President has
prohibited the
waiver of certain fundamental rights in a pretrial agreement, neither
multiplicity nor the unreasonable multiplication of charges is among
them).
(appellant’s
pretrial agreement expressly waiving any waivable motions waived claims
of
multiplicity and unreasonable multiplication of charges, and
extinguished his
right to raise these issues on appeal).
United
States v. Harcrow, 66 M.J. 154 (in addressing waiver of
constitutional rights,
the Supreme Court long ago emphasized that there is a presumption
against the
waiver of constitutional rights, and for a waiver to be effective, it
must be
clearly established that there was an intentional relinquishment or
abandonment
of a known right or privilege; yet the Supreme Court has also
acknowledged that
counsel may, under some conditions, where the circumstances are not
exceptional, preclude the accused from asserting constitutional claims;
that is
to say, in certain circumstances, defense counsel may waive
constitutional
rights on behalf of their clients).
2007
2006
United
States v. Finch, 64 M.J. 118 (failure to object at trial to
exceptions and
substitutions made at findings constitutes waiver of that issue in the
absence
of plain error).
United
States v. Haney, 64 M.J. 101 (failure to object to improper
argument before
the military judge begins to instruct the members on findings
constitutes
waiver in the absence of plain error).
United
States v. Washington, 63 M.J. 418 (where appellant did not object
to the
failure of trial counsel to place a witness under oath, appellant
waived the
issue absent plain error; in this context, the rationale for applying
waiver is
twofold: 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. Miller, 62 M.J. 471 (Congress has provided a narrow window in
which an
accused may waive appellate review in non-capital cases; under Article
61(a),
UCMJ, such a waiver must be signed by the accused and defense counsel
and must
be filed within 10 days after the action on the sentence is served on
the
accused or on defense counsel; the convening authority or other person
taking
such action may extend the period for such filing by not more than 30
days;
because a waiver may not be filed prior to the convening authority’s
action, a
premature filing is invalid, and appellate review will proceed).
(if
the accused
has waived review by the CCA, the convening authority must refer the
case for
review by a judge advocate under Article 64, UCMJ, and RCM 1112; in
specified
circumstances, including a case in which a punitive discharge has been
adjudged, the case is then submitted for further action by an officer
exercising general court-martial authority under Article 64(b) and RCM
1112(e);
such cases also may be reviewed by the Office of the Judge Advocate
General
under Article 69(b), UCMJ).
(if
review by
the CCA has not been waived, the accused may withdraw an appeal at any
time in
a non-capital case; the discretion to grant or deny a motion to
withdraw an
appeal is vested in the appellate courts).
(the
preferred
method of demonstrating a provident waiver is a document signed after
the
convening authority’s action, but a document signed beforehand may be
used so
long as the record demonstrates a serious, rational, and informed
discussion
between the accused and defense counsel after the convening authority’s
action,
but before the filing of the waiver).
(the
text of
Article 61 does not preclude signing a waiver at any time so long as
there is a
provident waiver decision after the convening authority’s action;
because this
conclusion is based on the text of Article 61, it would be the same
even if the
President had not expressly authorized an early signing under RCM
1110(f)).
United
States v. Wolford, 62 M.J. 418 (even though defense counsel did not
object
to the military judge’s instructions at the time of trial, waiver must be established by affirmative action
of the
accused’s counsel, and not by a mere failure to object to erroneous
instructions; where there is no affirmative waiver, an appellate court
reviews
instructional claims de novo).
United
States v. Bungert, 62 M.J. 346 (a claim of error that is not raised
at
trial is waived unless it rises to the level of plain error).
United
States v. Capers, 62 M.J. 268 (if defense counsel does not make a
timely
comment on an error or omission in the SJA’s post-trial recommendation,
the
error is waived unless it is prejudicial under a plain error
analysis).
2005
United
States v. Scalo, 60 M.J. 435 (if defense counsel does not make a
timely
comment on an omission in the SJA’s recommendation, the error is waived
unless
it is prejudicial under a plain error analysis).
United
States v. Alexander, 61 M.J. 266 (questions of jurisdiction are not
subject
to waiver; jurisdiction over the person, as well as jurisdiction over
the
subject matter, may not be the subject of waiver; a jurisdictional
defect goes
to the underlying authority of a court to hear a case; thus, a
jurisdictional
error impacts the validity of the entire trial and mandates
reversal).
2004
United
States v. Pauling, 60 MJ 91 (an unconditional guilty
plea
waives a multiplicity issue unless the offenses are facially
duplicative, that
is, factually the same).
2003
United
States v. Gudmundson, 57 MJ 493 (if an appellant
is aware
of the convening authority's involvement in a case, but chooses to not
raise a
disqualification issue at trial or in a post-trial submission to the
convening authority,
the issue is waived).
United
States v. King, 58 M.J. 110 (in the future,
failure at
trial to seek Mason credit for pretrial restriction tantamount to
confinement
will constitute waiver of that issue in the absence of plain error; the
purpose
of the so-called raise-or-waive rule is to promote the efficiency of
the entire
justice system by requiring the parties to advance their claims at
trial, where
the underlying facts can best be determined.).
(once this opinion becomes final, failure at trial to seek Mason
credit for
conditions of restriction alleged to be tantamount to confinement
waives that
issue on appeal in the absence of plain error.).
United
States v. Miller, 58 MJ 266 (although appellant
did not
object to the instructions as given, waiver is inapplicable; we have
held that
R.C.M. 920(f)’s waiver rule is inapplicable to certain mandatory
instructions
such as reasonable doubt, the elements of the offenses, and affirmative
defenses; similarly, we hold that R.C.M. 1005(f)’s rule of waiver does
not
serve to forfeit review of this issue; the military judge bears the
primary
responsibility for ensuring that mandatory instructions, including the
pretrial
confinement instruction mandated by the President in R.C.M. 1005(e) and
by this
Court’s decision in United
States v. Davidson, 14 M.J. 81 (C.M.A.
1982), are
given and given accurately).
United
States v. Inong, 58 MJ 460 (in United States v.
Huffman,
40 M.J. 225, 227 (C.M.A. 1994), a majority of this Court held that we
will not
invoke waiver of alleged Article 13 violations unless there is an
affirmative,
fully developed waiver on the record; today, however, the Court
concludes
Huffman’s affirmative waiver rule is unworkable; as a result, the Court
now
overrules Huffman and begins followings the "raise or waive" rule
required by the Manual for Courts-Martial, United States, as relates to
assertions of illegal pretrial confinement and punishment; in so doing,
the
Court also overrules United
States v. Southwick, 53 M.J. 412 (C.A.A.F.
2000),
and United States v. Tanksley,
54 M.J. 169 (C.A.A.F. 2000), to the
extent they
establish a "tantamount to affirmative waiver" rule in the Article 13
arena; the Court therefore holds that once this opinion becomes final,
failure
at trial to seek sentence relief for violations of Article 13 waives
that issue
on appeal absent plain error; having said that, however, the Court
urges all
military judges to remember that nothing precludes them from inquiring
sua
sponte into whether Article 13 violations have occurred, and prudence
may very
well dictate that they should).
(the purpose of the MCM’s "raise or waive" rule is to promote the
efficiency of the entire justice system by requiring the parties to
advance
their claims at trial, where the underlying facts can best be
determined; this
rule is especially important in the military justice system because of
the
turnover of personnel and changing conditions at military confinement
facilities; the rationale behind waiver is to eliminate the expense to
the parties
and the public of rehearing an issue that could have been dealt with by
a
timely objection or motion at trial by the one party best positioned to
make
that happen – the party in need of relief; this principle is essential
to the
continued effectiveness of our heavily burdened trial and appellate
judicial
systems).
United
States v. Wellington, 58 MJ 420 (where the SJAR is
served
on the defense counsel and accused in accordance with RCM 1106(f)(1),
and the
defense fails to comment on any matter in the recommendation, RCM
1106(f)(6)
provides that any error is waived unless it rises to the level of plain
error).
United
States v. Simpson, 58 MJ 368 (the military judge
provided
instructions on the pertinent elements, and the issue before us is
whether the
military judge erred by not providing greater specificity or
amplification; any
such deficiency is waived by defense counsel's failure to object unless
the
instructions were so incomplete as to constitute plain error).
2002
United
States v. Quintanilla, 56 MJ 37 (of all the
grounds for
disqualification in RCM 902, only the appearance of bias may be waived,
RCM
902(a), after full disclosure of the basis on the record. RCM 902(e)).
(because the military judge did not ensure that the record reflected
a full
disclosure as required by RCM 902(e), court found it inappropriate to
conclude
on the present state of the record that the defense counsel waived the
appearance of bias disqualification in this case – specifically, the
record was
deficient in the following respects: (1) the military judge never
disclosed an ex
parte conversation with trial counsel about the timing of a
witness’s
testimony; (2) the military judge failed to provide a complete
description of
his out-of-court confrontations with a witness; (3) what description
there is
was not coherent and made it difficult to determine precisely what
happened
during the confrontations; and (4) the judge put the witness on the
stand and
questioned him in a manner that minimized the disclosure of information
about
the events).
United
States v. Butcher, 56 MJ 87 (Court of Criminal
Appeals
determined that appellant forfeited issue of unreasonable
multiplication of
charges by not raising it at trial, and Court of Appeals for the Armed
Forces
was not shown any specific circumstances that would lead it to conclude
that
lower court abused its considerable discretion).
United
States v. Barner, 56 MJ 131 (claims that offenses
should
be consolidated are forfeited by failure to make a timely motion to
dismiss,
but an appellant may overcome forfeiture by showing that the
specifications are
facially duplicative, a determination which is made on the basis of the
language of the specifications and the facts apparent on the face of
the
record).
United
States v. Bracey, No. 01-0408, 56 MJ 387 (if appellant wanted
to
introduce facts and obtain a ruling that the NJP and the court-martial
conviction were for the same offense, the time to do so was at trial,
not on
appeal).
United
States v. Simpson, 56 MJ 462 (failure to object to
an
instruction prior to commencement of deliberations waives the objection
in the
absence of plain error).
(to ensure that the answers given may only be used for impeachment
purposes,
the defense must request a specific instruction under Mil.R.Evid. 105;
the
failure to request such an instruction constitutes a waiver absent
plain
error).
United
States v. Chapa, 57 MJ 140 (any issue regarding
failure to
conduct the 48-hour review of pretrial confinement is waived by failure
to
specifically raise the issue at trial, and an asserted violation of one
provision of RCM 305 is not sufficient to preserve the issue whether
another
provision was violated).
(any issue founded on noncompliance with RCM 305 was waived where:
(1)
appellant did not assert that his restriction was tantamount to
confinement,
nor did he assert any violations of RCM 305; (2) the defense request
for relief
focused solely on Article 13; (3) defense counsel’s question about the
commander’s review of his decision to seize appellant’s personal
property was
insufficient to raise and preserve the issue because it addressed only
the
seizure of appellant’s property and not the restraints on his liberty,
and
because it was too general to alert the military judge or the
Government to a
complaint that formal review processes were not followed; (4) defense
counsel had
the opportunity to ask the commander whether the conditions on
appellant’s
liberty were reviewed in accordance with RCM 305(h) and (i), or to
present
other evidence of noncompliance, but he did not avail himself of that
opportunity).
2001
United
States v. Palmer, 55 MJ 205 (if evidence is
excluded at
trial because it is inadmissible for the purpose articulated by its
proponent,
the proponent cannot challenge the ruling on appeal on the ground that
the
evidence could have been admitted for another purpose).
United
States v. Quiroz, 55 MJ 334 (Court of Criminal
Appeals was
well within its authority under Article 66(c), UCMJ, to determine the
circumstances, if any, under which it would apply waiver or forfeiture
to a
claim of unreasonable multiplication of charges; Court of Criminal
Appeals did
not exceed its authority in concluding that it had authority to
consider all
claims of unreasonable multiplication of charges, even if raised for
the first
time on appeal, and to consider waiver only if an accused
affirmatively,
knowingly, and voluntarily relinquishes the issue at trial).
2000
United
States v. Heryford, 52 MJ 265 (ordinarily, an
unconditional guilty plea waives a multiplicity issue).
(double jeopardy claims, including those founded in multiplicity,
are waived
by failure to make a timely motion to dismiss, unless they rise to the
level of
plain error).
United
States v. Ramsey, 52 MJ 322 (where specifications
alleging
solicitation to distribute LSD and conspiracy to distribute LSD are not
facially duplicative, any issue of multiplicity was waived by
failure to
make a timely motion to dismiss and an unconditional guilty plea).
United
States v. Avery, 52 MJ 496 (waiver of fundamental
constitutional rights must be knowingly and intelligently rendered;
courts
indulge every reasonable presumption against such waiver and do not
presume
acquiescence in relinquishment of these rights; waiver of fundamental
rights
must be an affirmative action, not merely a failure to object).
(defense affirmatively waived any objection to government’s
nondisclosure of
report of victim’s prior rape allegation where: (1) defense made
no
motion for continuance; (2) defense made no motion to compel discovery;
(3)
defense counsel affirmatively stated at trial that the defense did not
intend
to go into the matter of the prior rape complaint; and, (4), after
receiving
the report after trial, defense did not raise the issue at a post-trial
Article
39(a) session).
United
States v. Grier, 53 MJ 30 (failure to object to an
instruction before the panel begins deliberation is waiver of the
objection in
the absence of plain error).
United
States v. Henry, 53 MJ 108 (requirement that
record of
trial be complete and substantially verbatim in order to support a
sentence
that includes a punitive discharge or confinement in excess of 6 months
is of
jurisdictional proportion and cannot be waived).
United
States v. Guthrie, 53 MJ 103 (absent plain error,
failure
to object to instructions as given or to request additional
instructions
forfeits the issue on appeal).
United States v. Davis, 53 MJ 202 (RCM 902(f)’s waiver rule applies only to the instructions listed in RCM 920(e)(7), but does not apply to required instructions such as those on reasonable doubt, elements of the offense, and affirmative defenses).
United
States v. Tittel, 53 MJ 313 (assuming that officer
who
gave order which the accused disobeyed was personally involved to the
extent
that he became an accuser, failure to forward the charges to the next
higher
level of command for disposition was nonjurisdictional error which was
waived
by appellant’s failure to raise the issue at trial).
United
States v. Fricke, 53 MJ 149 (absent affirmative
waiver of
issue of unlawful pretrial punishment at trial, violations of Article
13, UCMJ,
have been considered for the first time on appeal).
United
States v. Southwick, 53 MJ 412 (pretrial
punishment is not
waived by failure to raise the issue at trial unless there is an
affirmative,
fully developed waiver on the record).
(appellant’s tactical decision to present information about pretrial
punishment to the sentencing authority and the convening authority
rather than
moving for appropriate relief under RCM 906 was tantamount to an
affirmative
waiver in this case, because appellant made an election between two
available
alternatives).
United States v. Jenkins, 54 MJ 12 (failure to object to improper argument before the military judge begins to instruct on sentencing constitutes waiver of the objection; to overcome waiver, an appellant must demonstrate plain error – he must show there was error, that the error was plain or obvious, and that the error materially prejudiced his substantial rights).
United
States v. Scalarone, 54 MJ 114 (United States
v.
Huffman, 40 MJ 225 (CMA 1994), providing that an issue of
illegal
pretrial
confinement not raised at trial may be raised for the first time on
appeal, was
not shown to be either unworkable or badly reasoned, and therefore
would not be
overruled).
(failure to request sentence credit for unlawful pretrial punishment
or
illegal pretrial confinement at trial does not forfeit such a claim in
the
absence of plain error or waive such a claim forever).
United
States v. Tanksley, 54 MJ 169 (appellant’s
tactical
decision to take issue of conditions of pretrial confinement amounting
to
pretrial punishment to the members during sentencing rather than asking
the
military judge for appropriate relief was tantamount to a waiver of
this
issue).
United
States v. Browning, 54 MJ 1 (failure to object to
clarifying instructions on vicarious liability, given after appellant
objected
to initial instruction, waived any defect in the instructions in the
absence of
plain error).
(where military judge
makes a
preliminary ruling excluding evidence, but invites counsel to renew the
request
for the evidence at a later time, failure to renew the request at the
proper
time waives the issue in the absence of plain error).
(where defense sought to introduce evidence allegedly showing that
appellant
was framed by another individual, and where military judge made a
preliminary
ruling excluding evidence, but invited counsel to renew the request for
the
evidence at a later time, appellant did not preserve the issue by
requesting
the judge to reconsider the preliminary ruling; if, however, the issue
was
preserved, appellant failed to show how military judge abused his
discretion in
excluding the evidence where: (1) evidence was of minimal
relevance; (2)
defense failed to establish a link between the evidence in issue and a
co-actor’s alleged scheme to frame appellant; and (3) proffered
testimony fell
short of supporting the defense theory that appellant had been framed).
United
States v. Ruiz, 54 MJ 138 (objections to questions
asked
on cross-examination must be made at the time that they are asked).
(failure to make timely
objection to matters raised in argument will waive any issue on appeal
with
respect thereto in the absence of plain error).
1999
United
States v. Reist, 50 MJ 108 (any issue as to whether
trial
counsel is so determined to convict and punish an accused that he
became an
“accuser” is waived by that accused’s failure to raise the issue at
trial).
(failure to object to improper argument constitutes waiver of the
objection).
United
States v. McClain, 50 MJ 483 (where apparent conflict
arose
because of a difference of opinion at to strategy, the totality of the
circumstances indicated that appellant waived any conflict of interests
where: (1) appellant confirmed that he wanted counsel to continue
with
his case; (2) appellant indicated that he believed counsel had his best
interests at heart; (3) appellant acknowledge that his criticism of
counsel was
due to agitation; (4) the military judge correctly advised appellant
regarding
the options he had as to pleading, the forum, whether to accept a
pretrial
agreement, and whether to testify; and (5) appellant apologized for his
wrongful accusations against counsel during his unsworn statement).
United
States v. Smith, 50 MJ 451 (failure to object to an
instruction
or the omission of an instruction before the members close to
deliberate
constitutes a waiver of that objection absent plain error; waiver,
however,
must be established by affirmative action of counsel and not merely by
failure
to object to erroneous instructions or to request proper instructions).
(counsel’s statements were adequate to show purposeful decision to
agree to
military judge’s decision not to instruct on lesser-included offenses,
and thus
there was affirmative action by counsel to establish waiver of any
objection,
where: (1) counsel expressed that proposed instruction was close
to what
he desires; (2) counsel expressed agreement that instruction might
confuse the
members; (3) counsel did not object during Article 39(a) session; and
(4)
counsel did not object at close of instructions).
United
States v. Eggen, 51 MJ 159 (failure to object to
testimony of
expert on the basis that expert had exceeded the area of his expertise
waived
that issue for appeal).
United
States v. Richter, 51 MJ 213 (claim of unlawful command
influence in the preferral of charges was waived where appellant did
not raise
the issue at trial, any necessary evidence was available prior to
trial, and
appellant was not deterred from raising the issue at trial; defects in
the preferral
of charges are waived if not raised at trial, unless the failure to
raise the
issue is itself the result of unlawful command influence).
United
States v. Scott, 51 MJ 326 (appellant’s failure to
object to
expert’s testimony which was based in part on a psychiatric report of
an
examination done on appellant forfeited any objection, absent plain
error;
factors apparently considered by the Court in determining that
objection was
forfeited included: (1) no trial objection to the use of any
psychiatric
evaluations; (2) no trial objection based on privilege,
involuntariness, or any
other Fifth or Sixth Amendment grounds; (3) only defense objection at
trial was
lack of foundation based on fact that expert had not examined appellant
and
therefore could not render an opinion on his rehabilitative potential;
and (4)
no valid objection on Fifth and Sixth Amendment grounds even existed if
the
question of incompetence or lack of mental responsibility was raised by
the
defense and litigated).