(dissenting):
The majority sets aside the Court of Criminal Appeals decision affirming appellant’s life sentence and his criminal conviction for the rape, inter alia, of a 14-year-old girl. It does so based on post-trial speculation about the motive of the Government in exercising a peremptory challenge. Appellant argues on appeal that trial counsel’s “numbers game” reason was not race-neutral, in view of the fact that it could have equally applied to, other unchallenged Caucasian officers on the court. Unlike the majority, I would follow Supreme Court case law, particularly when such an argument is presented for the first time on appeal. See generally New York v. Hill, 528 U.S. 110, 120 S.Ct. 659, 664, 145 L.Ed.2d 560 (2000). In my view, waiver clearly occurred here by appellant’s failure to make this argument at trial. See United States v. Elliott, 89 F.3d 1360, 1367 (8th Cir.1996). Therefore, I would affirm.
With respect to Batson challenges, my position is clear. See United States v. Chaney, 53 MJ 383, 386 (2000) (Sullivan, J., concurring in the result); United States v. Tulloch, 47 MJ 283, 289 (1997) (Sullivan, J., dissenting). See also United States v. Norfleet, 53 MJ 262, 273 (2000) (Sullivan, J., concurring in part and in the result). Moreover, I continue to urge Congress to eliminate the peremptory challenge in the military justice system. United States v. Tulloch, supra at 289 n.’; United States v. Chaney, supra at 386.