Be careful

NMCCA's unpublished opinion in Grabau reminds defense counsel of some things to be careful of.

1. Be careful of what you ask for of a sentencing witness.
2. And remember to object, especially in a panel case.

​Appellant argues, “Trial counsel’s questions about child support were improper [Military Rule of Evidence (Mil. R. Evid.)] 405(a) inquiries because Chief Tango never testified about Appellant’s pertinent character trait of being a good father. Regardless, the inquiry fails an [Mil. R. Evid.] 403 balancing test (which the Military Judge did not conduct).”

Pseudonyms can sometimes convey more than what is intended. A tango is generally a partnered dance that moves in sharp, deliberate steps to a driving, syncopated rhythm. Dancers hold a close embrace, maintain strong posture, and pivot with precision as they glide across the floor. The dance expresses tension, intimacy, and controlled power through quick footwork, sudden pauses, and dramatic changes of direction. A dance in which the audience may clap for or clap back. Anyway, I digress.

Here, the defense objected to a "did you know" question about Appellant's child support. The MJ clapped back, finding the questions proper. NMCCA agreed.

Appellant argues that he never put his character as a father in issue, thus offering the Government no avenue for inquiring about a specific instance of conduct relevant to his character as a father. The military judge disagreed at trial, and we disagree now. Granted, defense counsel did not ask Chief Tango a direct question to the effect of, “What is your opinion of his character as a father?” But those are not magic words, the only ones imbued to elicit testable character evidence, since “[t]he defense must accept responsibility not only for the specific evidence it offers in mitigation, but also for the reasonable inferences which must be drawn from it.”
. . .
Here, the Defense elicited evidence that, at the very least, created a reasonable inference that Appellant possessed the character of a good father. We can conceive no reason to elicit testimony from Chief Tango about his conversations with Appellant about their children other than to convey that, whatever Appellant’s faults as a husband, he is a good father deserving of mercy from the court so that he does not suffer continued separation from his children.With information in hand relevant to Appellant’s character as a father, the Government was not powerless to challenge the basis of Chief Tango’s opinion. That is, of course, if doing so met Mil. R. Evid. 403 muster [which the MJ did not do, but had she, it wouldn't have mattered].

If you haven't noticed, the appellate courts are getting more persnickety about waiver. NMCCA found the instructional issue waived and thus unreviewable.

In [United States v. Davis, 79 M.J. 329 (C.A.A.F. 2020] the U.S. Court of Appeals for the Armed Forces (CAAF) granted review to determine if the military judge properly instructed the members on the elements of an offense, though the court was ultimately unable to reach that issue since it was waived. Acknowledging that Rule for Courts-Martial (R.C.M.) 920(f) provided that “[f]ailure to object to an instruction or to omission of an instruction before the members close to deliberate constitutes [forfeiture]," the CAAF went on:

Appellant did not just fail to object and thereby merely forfeited his claim. He affirmatively declined to object to the military judge’s instructions and offered no additional instructions. By expressly and unequivocally acquiescing to the military judge's instructions, Appellant waived all objections to the instructions, including in regards to the elements of the offense. As Appellant has affirmatively waived any objection to the military judge's findings instructions, there is nothing left for us to correct onappeal.

The same happened here. Defense counsel affirmatively declined to object to the military judge’s sentencing instructions or request any additional instructions both before and after the military judge instructed the members. Since the omitted instruction did not relate to new or unsettled law, the issue is waived, and there is nothing for us to review.

Read n. 51. So there you have it. The bandoneonista missed a beat on step 403.