The Court of Appeals for the Armed Forces (CAAF) recently decided the Army case of U.S. v. LTC Sean Ahern. LTC Ahern was convicted, contrary to his pleas of Not Guilty, of the sexual abuse of his step-daughter. He was sentenced to 17.5 years confinement and a dismissal.
The issue on appeal was a “pretext” phone call between LTC Ahern and his wife. During this call, LTC Ahern was asked by his wife asked him “why did you do that to her?” LTC Ahern’s response, at first, was not an outright denial of the allegation, but a question “Are you kidding me? I’m on a phone?” As he his wife pressed him, LTC Ahern said “This is all part of the divorce,” “this is all part of the custody thing” and “you’re making all of this stuff up.”
At trial, LTC Ahern’s lawyer did not object to the admissibility of the recording, most likely because it was generally exculpatory. Twice, on the record, his counsel said they did not object to the recording.
The issue in this case arose when, during his closing argument, the trial counsel brought up the fact that LTC Ahern did not deny the allegation at first, but asked, but instead asked the questions noted above. Trial counsel argued that an innocent accused would have immediately denied the allegation. This argument, on its face, would seem to violate Military Rule of Evidence (MRE) 304 (a) (2) which states that “failure to deny an accusation of wrongdoing is not an admission of the truth of the accusation if at the time of the alleged failure the person was under investigation or was in confinement, arrest or custody for the alleged wrongdoing.” As LTC Ahern was “under investigation” when the pretext call was made, the trial counsel’s commenting on his failure to deny the allegation would seem to violate the rule. However, the CAAF disagreed.
The gist of the CAAF ruling is that by failing to object to the admission of the phone call, the defense counsel “waived” any objection to its use at trial. I disagree. It would seem to me that the failure to object was to whether it may be admitted at trial. That does not preclude an objection to how it was used at trial. At trial, the statement was used for the exact purpose that MRE 304 (a) (2) prohibits and, in my opinion, the statement was inadmissible. There may have been other reasons to sustain the conviction (it is not clear that LTC Ahern knew he was under investigation, and the admission of the statement may have been “harmless error” given the other evidence) but I am not persuaded that the admission was not error.
This is a great example of why it is important for defense counsel to “preserve” errors for appeal, by making the appropriate objections at trial.