Some CCA notes

Berrington provides a reminder that when a person is not sentenced to confinement, then total forfeitures of pay are not authorised--only two-thirds. See R.C.M. 1003(b)(2).

Salmon provides a reminder that Mil. R. Evid. 304(f)(1) requires a "particularized objection"  where there is a challenge to a coerced confession.

Appellant made a motion at trial to suppress his statement arguing his waiver of his right to counsel was involuntary. Appellant did not understand his Miranda rights and specifically his right to counsel, and his waiver of those rights was therefore involuntary, and not knowing or intelligent.

On appeal, Appellant changed the argument for suppression stating more broadly that the entire statement was coerced and as a result was involuntary. Appellant uses the factors laid out in United States v. Bresnahan, to argue that SA Charlie used coercive techniques throughout the interrogation, which, coupled with Appellant’s suggestibility, overcame Appellant’s will into confessing. While there is some overlap with assessing the voluntary, knowing, and intelligent waiver and determining under a totality of the circumstances whether an appellant’s confession was voluntary, by not including this argument at trial, trial counsel did not have the opportunity to create a record regarding the interrogation and the factors considered in Bresnahan.

Appellant also asserted on appeal that evidence derived from the involuntary statement, specifically evidence found during a search of Appellant’s phone, was inadmissible as the request to search and subsequent permission given was a result of the involuntary statement.

This Court also finds that this new objection to the evidence found on Appellant’s phone to be waived, as at trial, Appellant only argued that SA Charlie coerced Appellant into giving his consent to search his phone. “Allowing [a]ppellant to assert this argument for the first time on appeal frustrates the purpose of the ‘particularized objection’ requirement as it prevents the [g]overnment from ‘present[ing] relevant evidence on the objection’ at trial.” Accordingly, we find that Appellant waived the objection as to whether his statement was coerced and therefore involuntary[.]

Slayton is a factual sufficiency case on remand from CAAF in light of Mendoza. AFCCA set aside the findings and sentence; a majority finding factual insufficiency based on the new Article 66 rule combined with Mendoza. The interesting part is Chief Judge Johnson's partial dissent and concurrence.

Unlike my esteemed colleagues, I would not grant Appellant relief on the grounds of factual insufficiency of the evidence. Instead, I would set aside the findings of guilty and the sentence due to trial counsel’s prejudicial improper argument which, although understandable at the time, was plainly and obviously erroneous in light of our superior court’s subsequent decision in United States v. Mendoza, 85 M.J. 213 (C.A.A.F. 2024), and I would authorize a rehearing.

In light of Mendoza, I find trial counsel’s findings argument contained plain and obvious errors that materially prejudiced Appellant. The most obvious error was trial counsel’s declaration that “if you wake up and you begin penetrating [the victim’s] vagina, sexually violating them in any way while they sleep, that is sexual assault.” Given that Appellant was charged with committing a sexual act without CL’s consent under Article 120(b)(2)(A), UCMJ, trial counsel’s declaration that Appellant was guilty as charged as soon as he penetrated the sleeping CL’s vagina with his penis was plainly contrary to Mendoza. In addition, trial counsel’s argument put repeated emphasis on the evidence that CL was asleep, and reiterated the military judge’s instruction that a sleeping person cannot consent.
It is true that trial counsel also argued Appellant would be guilty of sexual assault even if CL had been awake when he penetrated her, because CL—lying still and quiet, facing away from him on the bed—had not consented to the sexual act whether she was asleep or awake. However, viewing trial counsel’s argument as a whole, he plainly invited the court members to convict Appellant on the erroneous theory that CL was asleep and Appellant was guilty as
soon as he penetrated her vulva with his penis while she slept. This was his first and primary argument.