dissenting:
I sympathize with the objective of the majority opinion, but I cannot agree with its reasoning. The majority opinion focuses on a small portion of the sentencing argument made by trial counsel and concludes that it was an unjustified interjection of race into the trial proceeding. The opinion ultimately assumes that the argument was plain error necessitating corrective action in the form of a rehearing on sentence. The opinion concedes, however, that the improper argument could have been cured by a comment from the military judge during trial. Thus, the real issue in this case is not the argument, but whether the lack of a curative comment by the military judge was plain error. Unfortunately, the majority opinion’s application of the plain error doctrine is flawed in several particulars.
The plain error doctrine has three components: (1) that there was an error (i.e., deviation from a legal rule unless the rule has been waived); (2) that the error was plain (i.e., clear or obvious); and, (3) that the plain error affected “substantial rights” (in most cases this means prejudice: it must have affected the outcome). See United States v. Olano, — U.S. -, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); United States v. Fisher, 21 M.J. 327, 328 (C.M.A. 1986). The doctrine “is to be used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result.” United States v. Frady, 456 U.S. 152, 163 n. 14, 102 S.Ct. 1584, 1592 n. 14, 71 L.Ed.2d 816 (1982).
In applying the plain error doctrine to the facts of this case, it should be noted that there was no error by the military judge. This case was tried before a military judge sitting alone as a court-martial. Heretofore, a military judge has not been required as a matter of law to explain on the record that he did not allow himself to be influenced by those portions of a sentencing hearing that are perceived by an appellate court to be improper. See United States v. Thomas, 31 M.J. 669, 673 (A.C.M.R.1990). Thus, there was no deviation by the military judge from a legal rule. Query: How can one apply the plain error doctrine to inaction by the military judge that was legally correct at the time of trial?
Second, the error by the judge, if any, was not “plain,” (i.e., “clear and obvious”). Even if one assumes that the argument was racial in nature, it is not “clear and obvious” that the military judge had a sua sponte duty to comment on improper argu*1033ment in this case without members. See United States v. Montgomery, 20 U.S.C.M.A. 35, 42 C.M.R. 227 (C.M.A.1970); United States v. Krzcuik, 34 M.J. 1002, 1005 (A.C.M.R.1992). Case law may require the military judge to issue a curative instruction to members when an improper sentencing argument is made, but it is not “clear and obvious” that the judge must comment on the record when he acts as the sentencing authority.1
Third, there was no prejudice as to the sentence imposed. The appellant bears the burden of persuasion with respect to prejudice. Olano, — U.S. -, 113 S.Ct. 1770, 1778, 123 L.Ed.2d 508 (1993).2 He has not met that burden. I have no doubt that the military judge was not personally influenced in any way by the improper argument of trial counsel. Furthermore, I have no doubt when reviewing the record of trial that the sentence the military judge imposed on this accused was appropriate.
Fourth, the legal presumptions accorded to the military judge were not diminished merely because he addressed only one portion of an improper argument without a critique of the remainder. He may have thought that the racial comments by trial counsel were so insignificant that they did not need to be addressed on the record in this military judge alone guilty plea trial. The trial defense counsel apparently agreed at the time of trial, for she failed to object.3 As the Court of Military Appeals recently noted, “[A]n omission [of the objection] on the part of trial defense counsel ... supports the inference that even if erroneous, such allusions were deemed at the time to be of little consequence.” See United States v. Causey, 37 M.J. at 311 (C.M.A.1993), (citing United States v. Grandy, 11 M.J. 270, 275 (C.M.A.1981)).
Finally, the new rule espoused by the majority opinion for application in military judge alone cases is bad policy. The unsophisticated yet observant trial defense counsel who objects to a sentencing argument that may contain unwarranted racial references may obtain a prophylactic curative comment for the record from the military judge. The crafty defense counsel under the same circumstances who chooses not to raise an objection may be rewarded by an appellate court with a rehearing on sentence. As a practical matter, a rehearing on sentence is likely to result in some relief, and may result in no punishment if a rehearing is impracticable. Thus, the majority opinion rewards gamesmanship: remain mute and one may obtain a rehearing — object and all one receives is a curative comment on the record.
. The majority’s reliance on United States v. Brown, 17 M.J. 987 (A.C.M.R.1984), for a contrary conclusion is misplaced. Brown addressed a military judge’s purported sua sponte obligation to stop an egregious sentencing argument by trial counsel. The case at bar deals with the alleged failure of the military judge to comment about an improper argument.
Their citation to United States v. Waldrup, 30 M.J. 1126 (N.M.C.M.R.1984), is even more misleading. That case involved a military judge who said on the record that he agreed “wholeheartedly with the comments of trial counsel concerning the despicable nature of [appellant’s] conduct.” The Navy-Marine appellate court was unable to make the presumption that the judge would disregard improper argument because they found that he agreed with comments that were "clearly intended to incite [his] passions.”
. In Olano the Court concluded that the defendant respondents had not met their burden of showing prejudice. The Court did not consider whether the error, if prejudicial, would have warranted correction under the standard of United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936) as "seriously affect[ing] the fairness, integrity or public reputation of judicial proceedings.”
. Failure to raise an objection before the court-martial is adjourned constitutes waiver. See R.C.M. 905(e).