United States v. Townsend

FEARNOW, Judge

(Concurring in result)

I concur in the result reached by the majority. However, my decision is based on appellant’s failure to raise at trial the issue now before us.

At the time the Military Judge took judicial notice that Article 8-H of the Coast Guard Personnel Manual, Commandant Instruction M1000.6, was a lawful general order, the appellant was afforded “an opportunity to be heard as to the propriety of taking judicial notice.” MRE 201(e). Having failed to challenge the lawfulness of the order immediately after the Military Judge announced his intention to take judicial notice, the appellant waived the right to challenge the validity of the regulation at a later stage in the proceeding. RCM 801(g).

There are some cases where the waiver rule has not been enforced under circumstances similar to those in the instant case. In United States v. Hilton, 27 M.J. 323 (C.M.A.1989), the Court allowed the accused to raise on appeal a constitutional challenge to a purported lawful general order that had not been raised at trial. Likewise in United States v. Lumagui, 31 M.J. 789 (A.F.C.M.R. 1990), the Air Force Court of Military Review allowed a challenge on constitutional grounds to .the validity of a general order even though the accused had entered guilty pleas at trial. However, where as here, the belated challenge to the validity of a general order has been based on grounds other than constitutional infirmity, the waiver rule has been applied by the appellate courts, see United States v. Thompson, 31 M.J. 781 (A.C.M.R.1990) and United States v. Hawkins, 30 M.J. 682 (A.F.C.M.R.1990).

The application of the waiver rule in cases where judicial notice is taken at the trial level makes particular sense. By its very nature, the taking of judicial notice alleviates the need for the prosecution to introduce, and preserve for the record, evidence that would allow an appellate court to make an independent factual determination. Because the taking of judicial notice as to the existence of lawful general orders was not objected to at trial, there is no evidence in the record before us as to the authority of the officer issuing the order in question. At this late date, as indicated by the Chief Judge, there is no realistic way of obtaining such evidence. Thus, in this case, a timely objection would not only have preserved the issue for subsequent proceedings, but just as importantly, would have ensured an adequate record for later review.

*788I am aware that in United States v. Webster, 37 M.J. 670 (C.G.C.M.R.1993), this Court declined to apply waiver even though the challenge to the regulation was not on constitutional grounds. To the extent that waiver was not enforced in Webster, I disagree with the decision. However, I do not believe that Webster’s holding on the waiver question is controlling in this case. In Webster, the validity of the order was at least raised at the first appellate review. The accused here failed to object to the validity of the order, and the taking of judicial notice, not only at trial but also when first before this Court. This results in taking the question even further away from the time and forum at which it should have been litigated — at trial where a full and timely hearing on the challenge could have been provided.

In conclusion, I would not have allowed this issue to have been raised when the case was first before this Court and I do not believe a different result obtains because the question is now back before us at a later date on remand.