United States v. Clifton
2013 CAAF LEXIS 168
| C.A.A.F. | 2013Background
- Military panel convicted Appellant of false official statement (Art. 107) and aggravated assault (Art. 128) under UCMJ; sentence included six months’ confinement and bad-conduct discharge.
- Trial evidence featured extensive testimony from Appellant’s wife and medical expert Dr. Ellwood regarding child injuries consistent with abuse.
- Defense elicited testimony suggesting the wife may have caused or been aware of injuries; attempted to show lack of wife’s notice of injuries and possible confessions between spouses.
- During cross-examination, defense challenged the wife and doctor on causation and responsibility, highlighting possible alternative explanations and defenses.
- A panel member (MSG H) moved to recall two witnesses after evidence closed; the military judge denied recall of the medical witnesses as permanently excused and refused recall of Appellant’s wife since evidence was closed.
- The Army Court of Criminal Appeals affirmed findings and sentence; issue on appeal: whether denial to recall witnesses was error, and whether such error was prejudicial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the military judge erred in denying panel recall | Clifton argued denial was error under Lampani, improper without Lampani analysis. | Appellant argued no prejudice from denial since witnesses were already exhausted; defense objections were minimal. | Yes, error occurred; however, not prejudicial. |
| Whether the error was waived or forfeited and appropriate prejudice standard | Plaintiff contends issue was not waived and plain error standard applies. | Government argues issue was forfeited or waived; waiver would bar review. | Even if forfeiture, no prejudice shown; error not plain and obvious. |
Key Cases Cited
- Lampani, 14 M.J. 22 (C.M.A. 1982) (requires analysis of factors before denying recall of witnesses)
- Carter, 40 M.J. 102 (C.M.A. 1994) (military judge may not summarily deny witness recall; factors to consider)
- Rogers, 34 C.M.R. 350 (C.M.R. 1964) (illustrates review of recall decisions and record discussion)
- Powell, 49 M.J. 460 (C.A.A.F. 1998) (plain error standard for nonconstitutional error)
- Clifton, 71 M.J. 489 (C.A.A.F. 2013) (waiver and forensic certification issues at review)
- Campos, 67 M.J. 330 (C.A.A.F. 2009) (waiver and law-of-the-case considerations in review)
- Grooters, 39 M.J. 269 (C.M.A. 1994) (law-of-the-case/waiver implications in CCA reviews)
- Gladue, 67 M.J. 311 (C.A.A.F. 2009) (waiver as extinguishing review rights)