United States v. Clifton

UNITED STATES, Appellee
v.
Jeremy C. CLIFTON, Specialist
U.S. Army, Appellant
No. 12-0486
Crim. App. No. 20091092
United States Court of Appeals for the Armed Forces
Argued December 3, 2012
Decided February 14, 2013
BAKER, C.J., delivered the opinion of the Court, in which RYAN,
J., and EFFRON, S.J., joined. ERDMANN, J., filed a separate
opinion concurring in part and in the result. STUCKY, J., filed
a separate opinion concurring in the result.
Counsel
For Appellant: Captain Kristin B. McGrory (argued); Colonel
Patricia A. Ham, Lieutenant Colonel Imogene M. Jamison, and
Major Jacob D. Bashore (on brief).
For Appellee: Captain Sasha N. Rutizer (argued); Lieutenant
Colonel Amber J. Roach and Major Robert A. Rodrigues (on brief);
Major Julie A. Glascott.
Military Judge: Charles A. Kuhfahl
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Clifton, No. 12-0486/AR
Chief Judge BAKER delivered the opinion of the Court.
A military panel composed of officers and enlisted members
sitting as a general court-martial convicted Appellant, contrary
to his pleas, of giving a false official statement and
aggravated assault by a means likely to cause death or grievous
bodily harm, in violation of Articles 107 and 128, Uniform Code
of Military Justice (UCMJ), 10 U.S.C. §§ 907, 928 (2006). The
adjudged and approved sentence included confinement for six
months and a bad-conduct discharge. On review, the United
States Army Court of Criminal Appeals affirmed the findings and
the sentence. United States v. Clifton, No. ARMY 20091092, 2012
CCA LEXIS 139, at *9-*10, 2012 WL 1405727, at *3 (A. Ct. Crim.
App. Apr. 23, 2012).
On Appellant’s petition, we granted review of the following
issue:
WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED WHEN IT
DETERMINED THE MILITARY JUDGE COMMITTED ERROR BY DENYING A
PANEL MEMBER’S REQUEST TO CALL ADDITIONAL WITNESSES FOR
QUESTIONING, BUT FOUND THE ERROR TO BE HARMLESS.
For the reasons set forth below, and assuming forfeiture
rather than waiver, we conclude that the military judge erred,
but that the error was not prejudicial.
BACKGROUND
Appellant was accused of injuring his two-month-old
daughter K, who had skull, clavicle, and rib fractures
2
United States v. Clifton, No. 12-0486/AR
consistent with child abuse. The Government’s witnesses
included Appellant’s wife and Dr. Thomas Ellwood, a medical
expert. During the trial, Appellant’s wife testified at length;
her testimony spanned over fifty pages of the record. Dr.
Ellwood also testified at length; his testimony spanned about
forty pages.
During the cross-examination of Appellant’s wife, defense
counsel elicited testimony to suggest that Appellant’s wife had
committed the child abuse. Defense counsel attempted to show
that Appellant’s wife had unique access to her daughter and
implied that it was suspicious that Appellant’s wife had not
noticed K’s injuries before. For example, defense counsel
asked, “[Y]ou never noticed that [K] had any kind of sickness?”
and “How many times per day did you see her rib cage?” Defense
counsel also asked, “And you never once saw a bruise on [K’s]
body?” In addition, defense counsel asked, “Shortly after [K]
was put in the hospital you had a conversation with [Appellant]
on one occasion . . . [and] [y]ou told [him] that you thought it
might be a good idea if one of you confessed?”
During the cross-examination of Dr. Ellwood, defense
counsel asked whether Appellant and his wife “show[ed] any signs
of aggressiveness or anything like aggressiveness.” Defense
counsel also asked whether K’s femur fracture was consistent
with child abuse. The femur fracture was an older injury that
3
United States v. Clifton, No. 12-0486/AR
Appellant’s wife said she may have caused when “stumbling” while
holding K or one that Appellant may have caused when “he was
changing one of [K’s] diapers or playing [with her].”
The members submitted twenty-three pages of questions
during the presentation of evidence, comprising thirty-two
separate questions. Of those, Master Sergeant (MSG) H submitted
five pages of questions comprising seven questions. Trial
counsel and defense counsel lodged an objection to one page of
questions. No objections were lodged against any of MSG H’s
questions.
In his closing argument, defense counsel argued that “the
only time at which any child could have been hurt that badly and
not have the other parent notice” was when Appellant’s wife was
alone with her children. He further argued, “[Appellant’s wife]
got angry, got frustrated and she squeezed [K’s] ribs and caused
that damage.”
After closing arguments by both counsel and instructions on
findings by the military judge, but before the members closed to
deliberate, a panel member, MSG H, asked the military judge if
it was “too late to recall two of the witnesses” because he had
“two questions.” MSG H stated the first witness he wanted to
recall was “[e]ither Dr. Ellwood or one of the other doctors.”
The second witness MSG H wanted to recall was Appellant’s wife.
4
United States v. Clifton, No. 12-0486/AR
The military judge did not ask MSG H what questions he
wanted to ask each of the witnesses. The military judge
immediately disapproved MSG H’s request because the medical
doctors had “been permanently excused.” In response to MSG H’s
request to recall Appellant’s wife, while not finding her to
have been permanently excused, the military judge immediately
disapproved the request because “we have closed all the
evidence.” The military judge asked both counsel whether they
had an objection to his response to MSG H’s request to recall
these witnesses. Both counsel stated that they had no
objection.
DISCUSSION
Article 46, UCMJ, 10 U.S.C. § 846 (2006), gives panel
members the “opportunity to obtain witnesses and other
evidence.” Under Rule for Courts-Martial (R.C.M.) 921(b),
“[m]embers may request that the court-martial be reopened and
that . . . additional evidence [be] introduced. The military
judge, may, in the exercise of discretion, grant such request.”
In addition, Military Rule of Evidence (M.R.E.) 614(a) allows
members to request to call or recall witnesses to testify at a
court-martial.
Ordinarily, where defense counsel affirmatively responds
“no objection” to a military judge’s denial of a panel member’s
request to call additional witnesses for questioning, we would
5
United States v. Clifton, No. 12-0486/AR
consider whether an appellant waived the issue. In this case,
we need not reach the issue of waiver because, even assuming
that Appellant merely forfeited the issue, we conclude that he
failed to carry his burden to show prejudice under a plain error
analysis.
Under a plain error analysis, this Court will grant relief
in a case of nonconstitutional error only if an appellant can
demonstrate that (1) there was error; (2) the error was plain
and obvious; and (3) the error materially prejudiced a
substantial right of the accused. United States v. Powell, 49
M.J. 460, 464-65 (C.A.A.F. 1998).
I. Whether there was error and whether it was plain or
obvious
This Court reviews a military judge’s denial of a panel
member’s request to recall a witness for abuse of discretion.
United States v. Carter, 40 M.J. 102, 104 (C.M.A. 1994); United
States v. Rogers, 14 C.M.A. 570, 581, 34 C.M.R. 350, 361 (1964).
A military judge may not summarily deny a member’s request to
recall witnesses for further questioning. United States v.
Lampani, 14 M.J. 22, 26 (C.M.A. 1982). In light of Article 46,
UCMJ, R.C.M. 921(b), M.R.E. 614(a), and Lampani, 14 M.J. 22,
some analysis on the record is required. Rather than summarily
approving or denying such a request, a military judge must
consider factors such as “[d]ifficulty in obtaining witnesses
6
United States v. Clifton, No. 12-0486/AR
and concomitant delay; the materiality of the testimony that a
witness could produce; the likelihood that the testimony sought
might be . . . privilege[d]; and the objections of the parties
to reopening the evidence” before ruling. Lampani, 14 M.J. at
26.
Here, while the military judge gave both parties the
opportunity to object, arguably meeting the fourth Lampani
factor, the military judge did not perform an analysis of the
other three Lampani factors before summarily denying the
member’s request. Moreover, without knowing the nature of MSG
H’s questions, it was not possible to ascertain the materiality
of the testimony that the recalled witnesses could have
provided. 1
Furthermore, the reasons the military judge stated for
denying the member’s request were unsupported by the relevant
legal principles. The military judge denied the request to
recall a medical doctor because they had been “permanently
excused.” The reason is not supported by law because an excused
1
Although the military judge committed error by not analyzing
three of the four Lampani factors, we recognize that Lampani
does not provide an exhaustive list of factors to weigh. In a
case such as this, it would have been appropriate for the
military judge to have considered, among other things, whether
the members had already been given an opportunity to ask the
witnesses questions. The military judge may well have
considered this factor, in light of the multiple questions
already asked; however, the record does not indicate this
analysis.
7
United States v. Clifton, No. 12-0486/AR
witness can be recalled. Lampani, 14 M.J. at 26. The military
judge denied the request to recall Appellant’s wife because the
evidence had been “closed.” This reason for denying the request
is also unsupported by law. A plain reading of R.C.M. 921(b)
confirms that witnesses can be recalled after presentation of
evidence has concluded. R.C.M. 921(b) states that “[m]embers
may request that the court-martial be reopened and that . . .
additional evidence [be] introduced” following a military
judge’s discretionary ruling on the matter.
As a result, we conclude that the military judge’s summary
denial of the member’s request was error. This was plain and
obvious error in light of Lampani as well as Article 46, UCMJ,
R.C.M. 921(b), and M.R.E 614(a).
II. Whether the error was materially prejudicial
During closing arguments, the defense counsel argued that
Appellant’s wife -- not Appellant -- caused K’s injuries. On
review, the Army Court of Criminal Appeals held that the
military judge’s error was not prejudicial, in part, because
defense counsel did not object to the military judge’s ruling
and because any further questioning of Appellant’s wife and Dr.
Ellwood or another medical doctor –- Government witnesses –-
would have likely elicited unfavorable testimony. Clifton, 2012
CCA LEXIS 139, at *5-*8, 2012 WL 1405727, at *2-*3.
8
United States v. Clifton, No. 12-0486/AR
We find it unnecessary to speculate whether defense
counsel’s response that he had no objection was for tactical
reasons. 2 Because the military judge did not inquire into the
nature of MSG H’s proposed questions, we cannot, with certainty,
determine whether the questions would have elicited testimony
favorable or unfavorable to the defense. Moreover, there are
viable reasons why defense counsel might wish to reexamine a
favorable or an unfavorable witness, as well as sound reasons
why he or she would not want to do so.
Nonetheless, there was no prejudice to Appellant. Keeping
in mind that Appellant bore the burden to show prejudice in the
absence of an objection at trial and in the context of a
nonconstitutional error, Powell, 49 M.J. at 464-65, he failed to
meet his burden for two reasons. First, Appellant’s conviction
is supported by overwhelming evidence. At trial, the Government
introduced Appellant’s written confession that he squeezed his
daughter “pretty hard because I remember her arms lifting up on
their own.” In addition, both witnesses that the member wished
2
In Lampani, this Court found that the defense counsel’s silence
with regard to a military judge’s denial of a request to recall
witnesses was intended to prevent the members from “hear[ing] .
. . evidence that might fill gaps in the Government’s evidence”
on the charges. 14 M.J. at 27. As a result, this Court in
Lampani concluded that the defense counsel was silent for
tactical reasons and that the lost opportunity to recall
witnesses was therefore nonprejudicial. Id.
9
United States v. Clifton, No. 12-0486/AR
to recall -- Appellant’s wife and Dr. Ellwood -- had already
testified extensively.
Second, the members had opportunity to ask questions, and
did. Thus, this is not a case where the purposes of Article 46,
UCMJ, R.C.M. 921(b), and M.R.E. 614(a), were ignored or
defeated. To the contrary, the military judge exercised his
discretion and allowed members to ask some, but not all,
questions, and entertained some, but not all, requests to recall
witnesses. As a result, Appellant was not prejudiced by the
absence of the members’ opportunity to reasonably test and
evaluate the evidence presented.
DECISION
For the foregoing reasons, the decision of the United
States Army Court of Criminal Appeals is affirmed.
10
United States v. Clifton, 12-0486/AR
ERDMANN, Judge (concurring in part and in the result):
I concur with the majority’s analysis and resolution
of the substantive issue and write only to express my view
of the waiver issue. The majority deals with waiver by
holding that “we need not reach the issue of waiver
because, even assuming that Appellant merely forfeited the
issue, we conclude that he failed to carry his burden to
show prejudice under a plain error analysis.” United
States v. Clifton, __ M.J. __ (6) (C.A.A.F. 2013).
However, I believe the issue of waiver must be addressed
because, if there was a waiver, there is nothing for an
appellate court to consider. United States v. Campos, 67
M.J. 330, 332 (C.A.A.F. 2009). This inquiry begins with a
determination as to whether the issue of waiver is properly
before the court or whether the United States Army Court of
Criminal Appeals’s (CCA’s) ruling constitutes the law of
the case. Here, because the Government raised the issue of
waiver in its brief but did not certify the issue pursuant
to C.A.A.F. R. 19(b)(3), I would hold that the issue is not
properly before this court.
At court-martial the military judge denied a panel
member’s request to recall two witnesses. Both parties
affirmatively stated they had no objection to that ruling.
Clifton appealed to the CCA arguing that the military judge
United States v. Clifton, 12-0486/AR
erred in failing to recall the requested witnesses. The
issue as to whether defense counsel waived the alleged
error was litigated before the CCA and that court held the
issue had not been waived. United States v. Clifton, No.
ARMY 20091092, slip op. at 3 (A. Ct. Crim. App. Apr. 23,
2012) (citing United States v. Lampini, 14 M.J. 22 (C.M.A.
1982)). The CCA subsequently held that while the military
judge erred, the error was harmless. Id. at 5.
“‘[W]aiver is the intentional relinquishment or
abandonment of a known right.’” United States v. Sweeney,
70 M.J. 296, 303 (C.A.A.F. 2011) (quoting United States v.
Olano, 507 U.S. 725, 733 (1993)). A waived issue is not
reviewed at all on appeal “‘because a valid waiver leaves
no error for [this court] to correct on appeal.’” United
States v. Campos, 67 M.J. 330, 332 (C.A.A.F. 2009) (quoting
United States v. Pappas, 409 F.3d 828, 830 (7th Cir. 2005). 1
1
While Judge Stucky is correct to observe that “valid
waiver leaves no error for [this court] to correct on
appeal,” Campos, 67 M.J. at 332, he fails to note that the
law of the case doctrine is itself a species of waiver.
United States v. Grooters, 39 M.J. 269, 273 (citing Morris
v. American National Can Corp., 988 F.2d 50, 52 (8th Cir.
1993)). Therefore, the Government’s failure to certify the
allegedly erroneous decision of the CCA concluding that the
error was not waived, was itself a waiver which “leaves no
error [of the CCA] for [this court] to correct on appeal,”
regardless of whether the issue was waived at trial.
2
United States v. Clifton, 12-0486/AR
It is therefore clear that whether an issue is “waived” by
a party is a threshold issue that must be addressed before
a court can consider the substantive issue being appealed.
Under the court’s rules prior to 2007, the government
was placed in a difficult situation. The accused had sixty
days from the date of the CCA decision to file a petition
at this court. The government had thirty days from the
date of the CCA decision to certify an issue to this court. 2
The government would often see no need to certify an issue
to this court in a case where it may have failed to prevail
on every issue before the CCA, but ultimately prevailed in
having the conviction affirmed. However, where an accused
had filed a petition with this court which had been
granted, by the time of the grant the government was often
time-barred from certifying an issue, even though the non-
appealed issue may have impacted the government’s ability
to respond to the accused’s issue.
Because of these filing deadlines, this court would
find itself faced with situations where an accused would
file a petition asserting that the CCA erred and the
2
The rule was amended in 2012 to provide the Judge Advocate
General sixty days from the decision of the CCA to certify
an issue for our review. U.S. Court of Appeals for the
Armed Forces Proposed Rules Changes, 77 Fed. Reg. 23,226,
23,227 (Apr. 18, 2012); 71 M.J. 377 (C.A.A.F. 2012) (order
announcing rule change to take effect Sept. 1, 2012).
3
United States v. Clifton, 12-0486/AR
government would often respond by arguing that another,
non-appealed, portion of the CCA decision was error.
However, “[u]nder the ‘law of the case’ doctrine, an
unchallenged ruling ‘constitutes the law of the case and
binds the parties.’” United States v. Morris, 49 M.J. 227,
230 (C.A.A.F. 1998) (quoting Grooters, 39 M.J. at 273). As
a result, we would spend a good deal of time entertaining
arguments as to whether the “law of the case” doctrine
should apply to bar litigation of the non-appealed issues
or whether the government’s issue was reasonably contained
in the granted issue. See, e.g., United States v. Lewis,
63 M.J. 405, 412-13 (C.A.A.F. 2006); United States v.
Parker, 62 M.J. 459, 465 (C.A.A.F. 2006); United States v.
Doss, 57 M.J. 182, 185 (C.A.A.F. 2002).
In recognition of this situation, we amended C.A.A.F.
R. 19(b)(3) in 2006 to give the government thirty days from
the date that we granted an issue in which to certify an
issue. 3 The amendment was an attempt to provide the
government with ample time in which to determine whether,
in light of the granted issue, there were any adverse
issues at the CCA level which needed to be formally brought
3
This provision was not amended by the 2012 changes,
leaving the Judge Advocate General periods of sixty days
from the CCA decision and thirty days from a grant of
review in which to certify an issue.
4
United States v. Clifton, 12-0486/AR
before this court. As the explanation stated in the
Federal Register:
This amendment allows the Judge Advocate General
to certify issues within 30 days of the granting
of a petition for grant of review. This
opportunity to certify issues is believed to be
appropriate because in some cases, the Judge
Advocate General may be reluctant to certify
issues and require review by this Court unless
the Court will otherwise be reviewing the case at
the appellant’s request. Once review is granted,
the Judge Advocate General should be able to
certify additional issues and thereby maximize
the Court’s opportunity to provide complete
review. It is not anticipated that this rule
will produce a significant increase in the number
of certified issues presented. Also, the rule
provides a mechanism whereby cases involving
certified and granted issues will be consolidated
for purposes of briefing. This eliminates the
need for separate briefing cycles for both sets
of issues.
U.S. Court of Appeals for the Armed Forces Proposed Rules
Changes, 71 Fed. Reg. 64,251, 64,253-54 (Nov. 1, 2006).
That amendment became effective on January 1, 2007,
almost two years before this case was tried. 64 M.J. 358,
359 (C.A.A.F. 2006) (order announcing rule change). The
amendment was intended to create a process whereby the
issues that this court was asked to decide were clearly set
forth by the parties, who could then provide the court with
their respective arguments. That process eliminates
uncertainty and benefits not only the court and the parties
but the military justice system in general. See generally
5
United States v. Clifton, 12-0486/AR
Yee v. City of Escondido, 503 U.S. 519, 536 (1992) (“Were
we routinely to entertain questions not presented in the
petition for certiorari, much of this efficiency [resulting
from the petition system] would vanish, as parties who
feared an inability to prevail on the question presented
would be encouraged to fill their limited briefing space
and argument time with discussion of issues other than the
one on which certiorari was granted.”); Soto v. ABX Air,
Inc., No. 07-11035, 2010 U.S. Dist. LEXIS 85222, at *4,
2010 WL 3290982, at *2 (E.D. Mich. Aug. 19, 2010) 4
(“[Party’s] attempt to raise this issue at oral argument,
without briefing the issue, puts both the parties and the
court at a disadvantage in deciding this issue.”).
Further, the process envisioned by the amendment promotes
the purpose of Article 67, UCMJ, by requiring that
appellate issues not raised by the accused are certified by
the Judge Advocate General, rather than raised sua sponte
in the course of litigation by appellate government
counsel. This case is a perfect example as to why the
court adopted the amendment to C.A.A.F. R. 19(b)(3).
It was hoped that the amended rule would allow us to
spend our time addressing the issues that the parties felt
4
Set aside on other grounds by Soto v. ABX Air, Inc., No.
07-11035, 2010 U.S. Dist. LEXIS 117116, 2010 WL 4539454(E.D. Mich. Nov. 3, 2010).
6
United States v. Clifton, 12-0486/AR
necessary to litigate rather than spending our time
determining which issues were properly before the court.
While some might fear that compliance with the rule would
increase the number of government certifications, I agree
with the court’s comment in the Federal Register that it
will not. 5 I believe compliance with the rule will result
in the government appropriately certifying only those
issues which it believes are necessary to the resolution of
a case already granted. I suspect that from the
government’s perspective, it would also be better to ensure
that the court will address those issues through the
certification process, rather than gambling on whether the
court will address an issue which was not appealed nor
certified. It will certainly provide a more efficient
procedure for identifying and litigating issues before this
court.
In light of the rule change, once an issue has been
granted by this court, the government should certify any
issue upon which it did not prevail at the CCA and which it
deems necessary to litigate before this court. Because the
Government failed to certify the CCA’s waiver decision,
5
“It is not anticipated that this rule will produce a
significant increase in the number of certified issues
presented.” 71 Fed. Reg. at 64,254. This comment was
prepared by the Rules Advisory Committee of the United
States Court of Appeals for the Armed Forces.
7
United States v. Clifton, 12-0486/AR
that issue is not properly before the court. As that would
lead to the plain error analysis conducted by the majority,
I join that portion of the majority’s opinion.
8
United States v. Clifton, No. 12-0486/AR
STUCKY, Judge (concurring in the result):
In my opinion, the discussions of plain error at this Court
and the United States Army Court of Criminal Appeals (CCA) are
superfluous. This was a case where Appellant affirmatively
waived his right to appeal the military judge’s decision not to
recall the requested witnesses.
After closing arguments and the military judge’s
instructions, one of the court members asked if it was “too late
to recall two of the witnesses” because he had “two questions.”
When the military judge asked the names of the witnesses, the
panel member stated:
[MEM]: Either Dr. Ellwood or one of the other medical
doctors.
MJ: They’ve all been permanently excused.
[MEM]: Okay.
MJ: So, yes it would be.
[MEM]: And Mrs. Clifton, has she been permanently
excused?
MJ: She has not been permanently excused. However,
we have closed all of the evidence.
[MEM]: Okay.
MJ: Is there an objection to that, my answer to the
panel members?
TC: No, Your Honor.
DC: No, Your Honor.
United States v. Clifton, No. 12-0486/AR
On appeal, Appellant asserted that the military judge had
committed prejudicial error by refusing to recall the two
witnesses requested by one of the court members. Based in part
on this Court’s opinion in United States v. Lampani, 14 M.J. 22(C.M.A. 1982), the CCA refused to apply waiver to this issue.
United States v. Clifton, No. 20091092, 2012 CCA LEXIS 139, at
*5, 2012 WL 1405727, at *2 (A. Ct. Crim. App. Apr. 23, 2012)
(per curiam) (unpublished).
In Lampani, after deliberations began, the president of the
court asked the military judge if it was still possible to
question a witness. The military judge answered that it was not
possible because the witnesses had been excused and the panel
had heard the arguments of the parties. 14 M.J. at 24–25.
There was no defense objection to this instruction. Id. at 25.
This Court held that the military judge erred by failing to
recall the witnesses, refusing to “equate [the defense
counsel’s] silence with a waiver,” id. at 27, even though the
defense counsel failed to ascertain which witness the court
desired to question.
Here, unlike in Lampani, Appellant knew the identity of the
witnesses the member wished to recall. Appellant had an
opportunity to decide whether he wanted those witnesses recalled
and affirmatively declined to object to the military judge’s
decision not to recall them. As both witnesses had testified
2
United States v. Clifton, No. 12-0486/AR
for the prosecution, and the defense counsel argued that one of
those witnesses -- Appellant’s wife -- was the only person who
could have committed the offense, it is reasonable to infer that
Appellant did not want to give either witness an additional
opportunity to clear up any questions the members might have.
Appellant intentionally waived a known right, which extinguished
his right to raise this issue on appeal. United States v.
Gladue, 67 M.J. 311, 314 (C.A.A.F. 2009).
Despite recognizing that an intentional waiver extinguishes
an accused’s right to raise the issue on appeal, Judge Erdmann
states in his separate opinion that, because the Government
failed to certify the CCA’s ruling that waiver did not apply,
the waiver issue is not properly before this Court. United
States v. Clifton, __ M.J. __, __ (7-8) (C.A.A.F. 2013)
(Erdmann, J., concurring in the result). I disagree. If an
accused’s “‘valid waiver leaves no error for [this Court] to
correct on appeal,’” United States v. Campos, 67 M.J. 330, 332
(C.A.A.F. 2009) (quoting United States v. Pappas, 409 F.3d 828,
830 (7th Cir. 2005)), whether the Government raises the issue is
irrelevant.
3