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

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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

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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.

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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

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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

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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.
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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.

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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.
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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.

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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.

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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).

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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.

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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

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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).

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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.

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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.

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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

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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