United States v. Walker , 57 M.J. 174 ( 2002 )

IN THE CASE OF
UNITED STATES, Appellee
V.
Jeffrey D. WALKER, Staff Sergeant
U.S. Army, Appellant
No. 01-0762
Crim. App. No. 9801091
United States Court of Appeals for the Armed Forces
Argued March 20, 2002
Decided August 23, 2002
GIERKE, J., delivered the opinion of the Court, in which
EFFRON and BAKER, JJ., joined. SULLIVAN, S.J., filed a
dissenting opinion, in which CRAWFORD, C.J., joined.
Counsel
For Appellant: Captain Fansu Ku (argued); Colonel Adele H.
Odegard, Lieutenant Colonel E. Allen Chandler, Jr., Major
Mary M. McCord, and Captain Runo C. Richardson (on brief);
Captain Linda A. Chapman.
For Appellee: Captain Charles C. Choi (argued); Colonel Steven
T. Salata and Major Paul T. Cygnarowicz (on brief).
Military Judges: Paul L. Johnston and Donna L. Wilkins
This opinion is subject to editorial correction before final publication.
United States v. Walker, No. 01-0762/AR
Judge GIERKE delivered the opinion of the Court.
A general court-martial composed of officer and enlisted
members convicted appellant, contrary to his pleas, of two
specifications of committing indecent acts with a child, in
violation of Article 134, Uniform Code of Military Justice
(UCMJ), 10 USC § 934. The adjudged and approved sentence
provides for a bad-conduct discharge, confinement for four years,
and reduction to the lowest enlisted grade. The convening
authority waived, for a period not to exceed six months, the
automatic forfeitures resulting from the sentence under Article
58b, UCMJ, 10 USC § 858b. The Court of Criminal Appeals affirmed
the findings and sentence. 54 M.J. 568 (2000).
This Court granted review of the following issue:
WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED WHEN IT
HELD THAT THE ADMISSION OF THE STATEMENT OF APPELLANT’S WIFE
WAS HARMLESS ERROR.
For the reasons set out below, we reverse.
Background
The incident giving rise to the charges against appellant
occurred in Illesheim, Germany, shortly before appellant’s
reassignment to the United States. The 11-year-old alleged
victim, TR, was a friend of appellant’s stepdaughter, Tamara.
The statement at issue was made by appellant’s wife, Mrs.
Theresa Walker, in response to questioning by Special Agent (SA)
Reasoner, an investigator from the U.S. Army Criminal
Investigation Command (CID). In the statement, Mrs. Walker told
SA Reasoner that appellant told her what happened, but that she
did not wish to disclose it.
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Before trial, the Government indicated its intent to call
Mrs. Walker as a prosecution witness. At an evidentiary hearing,
the defense presented a stipulation of expected testimony,
establishing that Mrs. Walker would invoke her spousal privilege
and would refuse to testify against her husband. The Government
argued that Mrs. Walker’s statement to SA Reasoner was an
admission by appellant under Mil.R.Evid. 801(d)(2), Manual for
Courts-Martial, United States (2000 ed.).1 Alternatively, the
Government argued that the statement was admissible as residual
hearsay under Mil.R.Evid. 804(b)(5).2 The defense argued that
the statement was privileged under Mil.R.Evid. 504. Over defense
objection, the military judge admitted the statement as an
admission under Mil.R.Evid. 801(d)(2).
The Trial on the Merits
On August 15, 1997, TR was invited to spend the night at
appellant’s quarters. TR testified that appellant extended the
invitation. Appellant’s wife was away on a shopping trip in
Poland.
The quarters were sparsely furnished because most of the
family’s household goods had been packed for shipment to the
United States. The only furniture was a bed, two mattresses on
the floor, and a television set.
1
All Manual provisions cited are identical to the ones in effect
at the time of appellant’s court-martial unless otherwise
indicated.
2
The residual hearsay rules formerly in Mil.R.Evid. 803(24) and
804(b)(5) are now merged in Mil.R.Evid. 807 as a result of the
passage of 18 months from the date the Federal Rules of Evidence
were similarly amended. See Mil.R.Evid. 1102.
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United States v. Walker, No. 01-0762/AR
TR testified that, during the evening, appellant, Tamara,
and TR sat on a mattress and watched videotapes of “scary”
movies. Appellant’s two younger daughters were asleep
on the other mattress in the same room. The only light in the
room was from the television set. TR testified that appellant
drank about two cans of beer while they watched the movies. As
the evening progressed, Tamara fell asleep on the mattress. TR
testified that appellant told Tamara to get in the bed. Tamara
moved to the bed and again fell asleep.
TR testified that appellant asked her to massage his
shoulders, and she complied. After she rubbed appellant’s
shoulders for “5 minutes or less,” appellant told her that she
“wasn’t doing it right,” and they switched roles. TR testified
that appellant removed her shirt and bra, touched her breasts,
kissed her on her stomach and face, removed her shorts and
underwear, removed his shorts, began “touching” himself, and
positioned himself between her legs. She told appellant to stop
four or five times, but he did not respond until Tamara awakened
and called out “Dad” in a soft, sleepy voice. Appellant then
rolled over, put on his shorts, and went into the back room to
talk to Tamara.
TR testified she put her clothes back on and went to sleep
on one mattress and that appellant and Tamara spent the night on
the bed. The next morning, TR, Tamara, appellant, and the two
younger children went swimming. TR went to her nearby home to
get her swimsuit and money, and then she returned to appellant’s
quarters. After they returned from swimming, TR went home.
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United States v. Walker, No. 01-0762/AR
TR testified that appellant twice told her not to tell
anyone what happened, once that evening and again about a week
later. TR did not report the incident until approximately two
months later, when her mother asked her what happened during the
sleepover. She explained that she did not report the incident
because she was embarrassed, she “didn’t want them to be mad at
[her],” and she “didn’t want them to think that it was [her]
fault and stuff.” On cross-examination by defense counsel, TR
admitted that she did not mention the massage to the social
worker or CID because she thought they would think it was her
fault if she mentioned it.
A clinical social worker testified as an expert witness for
the prosecution, explaining that victims of child sexual abuse
tend to be embarrassed and afraid of being blamed. As a result,
they tend to delay reporting and to withhold details until they
are comfortable giving more information. The social worker
opined that TR’s “presentation is very consistent with child
sexual abuse,” and that TR “is compliant and somewhat passive.”
SA Reasoner testified about the statement at issue in this
case. When he interviewed appellant’s wife, she told him that
when she returned from her shopping trip on August 17, two days
after the alleged incident, “she had been told of an incident
that occurred.” In a sworn, written statement, she said that
appellant “did tell [her] what happened,” but she did not “wish
to disclose what he said.” SA Reasoner’s testimony and the
written statement were admitted over defense objection.
The defense theory was that nothing indecent or sexual
happened, but “an innocent act . . . was blown out of proportion
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United States v. Walker, No. 01-0762/AR
by some well meaning, well intentioned, but overzealous
individuals and agencies.” The defense asserted TR had been
influenced by her mother, social workers, and CID to embellish an
innocent incident. During a lengthy cross-examination, defense
counsel elicited testimony from TR that she underwent persistent
questioning, was interviewed “for a real long time,” and was
asked questions “over and over again.”
During the defense case-in-chief, appellant testified that
he, Tamara, and TR were sitting on the same mattress, and that he
fell asleep while watching a movie. He did not directly dispute
the testimony that he told Tamara to get into the bed, stating
only that he did not know how Tamara got from the mattress to the
bed. He was awakened by Tamara calling out “Dad.” He testified
that he was startled when he discovered that he was lying beside
TR with his arm around her. He testified that both he and TR
were fully clothed. He denied giving TR a massage or touching
her sexually.
Tamara testified for the defense. Contrary to TR’s
testimony, she testified that she, not appellant, invited TR to
spend the night. She testified that when she fell asleep on the
mattress, appellant told her to get in the bed. She complied and
promptly fell asleep again. When she awakened and saw her
stepfather’s arm around TR, she yelled, “Dad, get up,” and she
asked, “What are you doing?” Appellant replied, “Nothing.”
According to Tamara, appellant “wasn’t shocked, he was like
sleepy.” He then rolled off the mattress and went back to sleep.
This testimony contradicted TR, who indicated that appellant was
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United States v. Walker, No. 01-0762/AR
wide awake, and who testified that Tamara said only, “Dad,” and
spoke in a soft, sleepy voice.
Tamara also testified that when she awakened, appellant was
wearing a red shirt and red shorts, and TR was wearing cutoff
blue jeans and a white shirt. This testimony contradicted TR’s
testimony that appellant removed her shirt and shorts and took
off his own shorts.
Tamara testified that she was “sort of” worried that
“something bad had happened,” and that she was worried appellant
had “touched her.” She testified that she told her mother what
she saw, and her mother replied, “[T]hat’s what your dad had
said.”
The defense also presented evidence of good military
character. Colonel Tyrone Graham testified that appellant was an
“outstanding soldier.” He ranked appellant among the top three
noncommissioned officers with whom he had worked. He testified
that he respected appellant’s integrity, explaining that
appellant addressed “some very -- very contentious issues in
supply accountability” and handled them “in an honest and
forthright manner.”
In a stipulation of expected testimony, Lieutenant Colonel
(LTC) John Polson testified that appellant worked for him for
four years, and that he would rate appellant “in the top 1% of
supply sergeants.” In another stipulation of expected testimony,
LTC Nathan Keith testified that appellant “is the best supply
sergeant I have seen in the United States Army.”
During argument on findings, the defense argued that TR was
embarrassed because appellant had his arm around her, but that
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United States v. Walker, No. 01-0762/AR
the incident was “blown out of proportion” when TR’s parents, the
Military Police, CID, and other investigators kept asking her
what happened. The defense argued that as TR was repeatedly
questioned, “[t]he story is getting bigger and bigger.” The
defense portrayed TR as “a passive, eager to please, child,” who
“has been pulled into the system and is giving the answers she
knows that they want.”
Defense counsel then referred to Mrs. Walker’s statement to
SA Reasoner, which was not mentioned by trial counsel in her
argument. Defense counsel argued:
In this statement, Mrs. Walker had a conversation with
her husband, but she did not divulge what was in that
conversation. The statement is not a statement. The
government admitted that statement to slander the
Walker family. The government wants you to infer that
there is a conspiracy contained in that statement. Give
the statement what it is worth: zero.
During trial counsel’s rebuttal argument, the following
exchange took place:
TC: Captain Swanson brought up the CID statement that
--the statement that Theresa Walker made to the CID
agent. She didn’t want to disclose what her husband
had told her. Why not if it was so innocent?
Cynthia’s friend--Cynthia being the victim’s mother --
had a conversation with one of her -- one of Cynthia’s
friends, and -- which led her to confront ----
MJ: Captain Gillespie [defense counsel] ---
DC: Is this going where I think it’s going?
MJ: I don’t know, is that an objection I hear?
DC: It is if it’s going where I think it’s going, Your
Honor.
MJ: I ---
TC: Well, I don’t know where Captain Swanson thinks
it’s going, but ---
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United States v. Walker, No. 01-0762/AR
MJ: Well -- but ---
TC: Well, I’ll move away, and in the event that she
thinks ---
MJ: Well, yeah.
(Emphasis added.)
After this exchange in the presence of the members, there
was no further mention of Mrs. Walker’s statement, no ruling on
the propriety of the trial counsel’s argument, and no
instructions to the members about the inference, if any, that
they were permitted to draw from Mrs. Walker’s refusal to divulge
what appellant had told her.
The Court of Criminal Appeals held that the military judge
abused her discretion by admitting SA Reasoner’s testimony
regarding Mrs. Walker’s statements and by permitting the
Government’s attempt to draw an adverse inference from Mrs.
Walker’s invocation of her spousal privilege. However, the court
below held that the error was harmless because it “had no
substantial influence on the findings.” 54 M.J. at 572.
Discussion
The Government has not challenged the lower court’s holding
that the military judge abused her discretion, either by
certification or in its brief and oral argument. See United
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United States v. Walker, No. 01-0762/AR
States v. Grooters, 39 M.J. 269 (CMA 1994). Thus, the only issue
we will address is whether the error was harmless.3
We review de novo the question whether an error was
harmless. See United States v. Grijalva, 55 M.J. 223, 228 (2001)
(review of constitutional error); United States v. Pablo, 53 M.J.
356, 359 (2000) (review of nonconstitutional error). The test
for constitutional error is whether the error was harmless beyond
a reasonable doubt. Chapman v. California, 386 U.S. 18, 24
(1967). The test for nonconstitutional error is “whether the
error itself had substantial influence” on the findings.
Kotteakos v. United States, 328 U.S. 750, 765 (1946). “If so, or
if one is left in grave doubt, the conviction cannot stand.” Id.
The parties have briefed and argued the issue as a non-
constitutional evidentiary error. We need not decide whether the
parties have correctly characterized the error as non-
constitutional, because the Government has failed to carry its
burden of showing harmlessness under either test.
This case pitted the credibility of appellant against TR.
Although Tamara contradicted appellant’s version of the events in
some respects and corroborated TR’s version in some respects,
3
In United States v. Williams, 41 M.J. 134, 135 n.2 (CMA 1994),
citing Christianson v. Colt Industries Operating Corp., 486 U.S.
800, 817 (1988), this Court recognized that the law-of-the-case
doctrine does not preclude this Court from examining the legal
ruling of a subordinate court in a case where the Judge Advocate
General has not certified the issue. However, we have made it
clear that we are reluctant to exercise this power and, as a
rule, reserve it for those cases where the lower court’s decision
is “clearly erroneous and would work a manifest injustice” if the
parties were bound by it. Christianson, supra. In this case,
the Government has not asserted that the lower court’s ruling
that error occurred was “clearly erroneous and would work a
manifest injustice” if adopted for purposes of this case.
Accordingly, we will apply the law-of-the-case doctrine.
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United States v. Walker, No. 01-0762/AR
Tamara’s testimony also contradicted TR on several key points and
provided significant support for several critical aspects of
appellant’s testimony. Specifically, Tamara testified that she
invited TR to spend the night, contradicting TR’s testimony that
appellant invited her and undermining the Government’s
implication that appellant had designs on TR. Tamara testified
that when she awakened and saw appellant on the mattress with TR,
he apparently was asleep, and both he and TR were fully clothed.
This testimony directly contradicted TR’s testimony that both
appellant and TR were awake and wholly or partially disrobed on
the mattress when Tamara awakened, and it supported appellant’s
testimony that he was asleep and that he was fully clothed.
Tamara’s testimony that she shouted at appellant contradicted
TR’s testimony that appellant stopped touching her when Tamara
said “Dad” in a soft, sleepy voice.
The heart of the defense was to portray TR as a passive,
compliant child, who had embellished an inadvertent, innocent act
in response to the intense, repeated, and suggestive questioning
of a host of well-meaning adults. The admission of the hearsay
statement of Mrs. Walker seriously undermined that defense,
because it was used by the Government to show that, two days
after the incident, long before anyone began questioning TR and
long before she was subjected to the influences of well-meaning
adults, appellant made a damaging admission to his wife. Even
after trial counsel urged the members to make this inference, the
military judge did nothing to prevent it. Under these
circumstances, we are “left in grave doubt” whether the
inadmissible statement unduly weighted the scales of justice
11
United States v. Walker, No. 01-0762/AR
against appellant and substantially influenced the findings.
Kotteakos, 328 U.S. at 765. The Government has not met its
burden of persuading us otherwise. Accordingly, we must reverse.
Decision
The decision of the United States Army Court of Criminal
Appeals is reversed. The findings and sentence are set aside.
The record of trial is returned to the Judge Advocate General of
the Army. A rehearing is authorized.
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United States v. Walker, No. 01-0762/AR
SULLIVAN, Senior Judge, with whom CRAWFORD, Chief
Judge, joins (dissenting):
Harmless Error
I would affirm this case on the basis of harmless error, as
did the Court of Criminal Appeals. See Article 59(a), Uniform
Code of Military Justice (UCMJ), 10 USC § 859(a). I recognize
that this child sexual abuse case was a swearing contest between
appellant and TR, the alleged victim who was the eleven-year-old
neighborhood girlfriend of appellant’s stepdaughter. However,
appellant himself admitted that he was discovered sleeping on a
mattress late at night with this young girl, whom he hardly knew,
with his arm around her chest. (R.248, 399, 430, 406) Moreover,
the erroneously admitted evidence (that appellant made statements
to his wife about this incident and his wife refused to disclose
their contents) did not materially prejudice appellant in the
context of other evidence in this case.
As a starting point, I note the issue particularly granted
review in this case. It asks “WHETHER THE ARMY COURT OF CRIMINAL
APPEALS ERRED WHEN IT HELD THAT THE ADMISSION OF THE STATEMENT OF
APPELLANT’S WIFE WAS HARMLESS ERROR.” In my view, this granted
issue raises two questions. First, did the appellate court below
err in finding error in the admission of appellant’s wife’s
statement? Second, assuming error, did the appellate court err
in finding such error was harmless? Our case law supports my
United States v. Walker, No. 01-0762/AR
construction of the granted issue. See United States v.
Williams, 41 M.J. 134, 135 (CMA 1994).*
In light of our decision in Williams, therefore, the
first question in this harmless error case is whether the Court
of Criminal Appeals was correct in holding that the trial judge
erred in admitting the challenged evidence noted above. The
Court of Criminal Appeals specifically held that the admission of
this evidence, objected to by the defense on grounds of spousal
privilege (R.97), was error under Mil. R. Evid. 512(a), Manual
for Courts-Martial, United States (1998 ed.). This rule states:
Rule 512. Comment upon or inference from
claim of privilege; instruction
(a) Comment or inference not permitted.
* * *
(2) The claim of a privilege by a person
other than the accused whether in the present
proceeding or upon a prior occasion normally
is not a proper subject of comment by the
military judge or counsel for any party. An
adverse inference may not be drawn therefrom
except when determined by the military judge
to be required by the interests of justice.
*
Admittedly, the Supreme Court in Rose v. Clark, 478 U.S. 570,
576 & n.5 (1985), construed its “limited” grant of review on
“harmless-error analysis” more narrowly and declined to look at
the underlying legal error. However, it did so on the basis of
Rule 14.1 of its own practice and procedure rules, which is not
mirrored in our Court’s rules. (“Only the questions set out in
the petition, or fairly included therein, will be considered by
the Court.”) Moreover, the Supreme Court has also recognized that
decisions of this type are discretionary in nature, depending on
the wording of the particular issue granted and the manner in
which it was granted. See Robert L. Stern et al., Supreme Court
Practice, 190-95, 419-27, 635-36 (8th ed. 2002); see also Sup.Ct.
Rule 24.1(a) (”At its option, however, the Court may consider a
plain error not among the questions presented but evident from the
record and otherwise within its jurisdiction to decide.”).
2
United States v. Walker, No. 01-0762/AR
(Emphasis added.) I conclude that the Court of Criminal Appeals
was correct in holding that error occurred under this rule
because the military judge made no interest-of-justice
determination.
I next turn to the question whether the appellate court below
correctly held that the trial judge’s error in admitting this
evidence did not materially prejudice appellant’s substantial
rights. See Article 59(a), UCMJ; Mil.R.Evid. 103(a), Manual,
supra. I think that appellant was not so prejudiced for several
reasons.
First, the evidenced statements of appellant’s wife
concerning her husband’s words to her about this incident were
neutral and repeated no express admissions by appellant to the
charged offenses. Any negative inference which could be drawn
against appellant from this evidence was based on his wife’s
additional statement that she chose not to disclose his
statements. The majority has not explained why the members would
resolve this serious case on such a speculative basis.
Second, additional evidence was admitted in this case showing
that appellant’s wife did otherwise disclose the contents of
these statements and what the content of appellant’s statements
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United States v. Walker, No. 01-0762/AR
was. Appellant’s stepdaughter, Tamara, testified that she woke
up; saw her father laying very close to TR with his arm around
her chest; asked him what he was doing; and he said “nothing” and
rolled off the couch. (R.440-41) Tamara also testified that she
told this to her mother, who said her dad said the same thing.
(R.442) This testimony neutralized any adverse innuendo or
speculation from the challenged evidence that appellant had
admitted the charged offenses to his wife.
Third, as pointed out by the Court of Criminal Appeals, the
alleged victim, TR, provided specific and detailed testimony as
to what happened between her and appellant before Tamara woke up.
In my view, this powerful evidence was the basis for appellant’s
conviction, not the evidenced out-of-court statements of his
wife, which might be construed as an assertion by her that
appellant admitted the charged offenses.
Fourth, defense counsel did not request a protective
instruction under Mil.R.Evid. 512(c). It states:
(c) Instruction. Upon request, any party
against whom the members might draw an
adverse inference from a claim of privilege
is entitled to an instruction that no
inference may be drawn therefrom except as
provided in subdivision (a)(2).
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United States v. Walker, No. 01-0762/AR
Accordingly, in these circumstances, I conclude that the
military judge’s error in admitting the challenged evidence was
clearly harmless beyond a reasonable doubt.
Law of the Case
As an addendum to my opinion in this case, I wish to again
note my disagreement with the majority’s apparent reliance on the
doctrine of law of the case to preclude issues of law from our
appellate jurisdiction. See generally Article 67(c), UCMJ, 10
USC § 867(c). It has created a new rule undermining our power to
recognize plain error on our own motion. Contra Rules 5 and
21(d), Rules of Practice and Procedure, United States Court of
Appeals for the Armed Forces.
The law-of-the-case doctrine is based on the failure of
counsel to challenge a particular ruling by a trial judge on
appeal, and a subsequent judicial decision by an appellate court
on other issues. See United States v. Castillo, 179 F.3d 321,
326 (5th Cir. 1999). The unappealed ruling of the trial court
becomes the law of the case on remand and on further appeals
which may later occur in that appellate court. See Morris v.
American National Can Corp., 988 F.2d 50, 52 (8th Cir. 1993).
Although this Court has used law-of-the-case language in
addressing the permissible scope of our initial appellate review,
I believe it is technically incorrect. See United States v.
Hall, 56 M.J. 432, 437 (2002) (Sullivan, S.J., concurring in part
5
United States v. Walker, No. 01-0762/AR
and in the result); Crocker v. Piedmont Aviation, Inc., 49 F.3d
735, 739 (D.C. Cir. 1995); see generally 18B Charles Alan Wright
et al., Federal Practice and Procedure § 4478 (2002).
To the extent the majority holds that the failure of
appellate government counsel to contest the lower court’s legal-
error holding in his brief before this Court precludes us from
looking at this issue, I also disagree. In this regard, I note
that the majority recognizes our plain error approach to
appellate review as delineated in United States v. Williams, 41
M.J. at 135, a case decided after United States v. Grooters, 39 M.J.
269 (CMA 1994). Nonetheless, it asserts that our review of the
underlying error is not permitted where “the Government has not
asserted that the lower court’s ruling that error occurred was
‘clearly erroneous and would work a manifest injustice’ if
adopted for purposes of this case.” __ MJ at (10 n.3).
The scope of an appellate court’s review is an important
question and one usually imparted to the discretion of the court,
not the whims of counsel. Statutes, rules of court, and
decisional law impart this discretion. See generally Izumi
Seimitsu Kogyo Kabushiki Kaisha v. U.S. Phillips Corp., 510 U.S.
27 (1993). I would rely on the UCMJ and our published rules and
hold that the underlying question of legal error can be
considered in a harmless error case on our own motion.
Article 67(c), UCMJ, states:
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United States v. Walker, No. 01-0762/AR
(c) In any case reviewed by it, the Court of
Appeals for the Armed Forces may act only
with respect to the findings and sentence as
approved by the convening authority and as
affirmed or set aside as incorrect in law by
the Court of Criminal Appeals. In a case
which the Judge Advocate General orders sent
to the Court of Appeals for the Armed Forces,
that action need be taken only with respect
to the issues raised by him. In a case
reviewed upon petition of the accused, that
action need be taken only with respect to
issues specified in the grant of review. The
Court of Appeals for the Armed Forces shall
take action only with respect to matters of
law.
(Emphasis added.)
We have further promulgated a rule for our Court concerning
the scope of our review, which states:
Rule 5. Scope of Review
The Court acts only with respect to the
findings and sentence as approved by
reviewing authorities, and as affirmed or set
aside as incorrect in law by a Court of
Criminal Appeals, except insofar as it may
take action on a certificate for review or a
petition for review of a decision by a Court
of Criminal Appeals on appeal by the United
States under Article 62, UCMJ, 10 USC § 862
(1983), or to grant extraordinary relief in
aid of its jurisdiction, including the
exercise of its supervisory powers over the
administration of the UCMJ. The Court may
specify or act on any issue concerning a
matter of law which materially affects the
rights of the parties.
(Emphasis added.) In my view, these legal authorities give this
Court discretion to examine the underlying legal error, even if
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United States v. Walker, No. 01-0762/AR
counsel does not make a plain error argument in his brief before
this Court.
Finally, with respect to our decisional law, this Court in
United States v. Johnson, 42 M.J. 443, 446 (1995), clearly said:
“It is solely within this Court’s discretion under Article 67 to
determine whether an issue is properly raised.” See also Silber
v. United States, 370 U.S. 717 (1962); DeRoo v. U.S. 223 Rawle 3d
919, 926 (8th Cir. 2000). In Johnson, we held that our review of
a legal issue for good cause was not precluded by the appellant’s
failure to raise that issue before a Court of Criminal Appeals.
Similarly, the failure of counsel to challenge the holding of the
appellate court below in our Court should not defeat this Court’s
jurisdiction. We have always had the discretionary power to
review plain error questions on our own motion. See Eugene R.
Fidell, Guide to the Rules of Practice and Procedure for the
United States Court of Appeals for the Armed Forces, 34-35 (9th
ed. 2000); Homer E. Moyer, Jr., Justice and the Military § 2-795
at 636 (1972).
8