United States v. Short ( 2018 )

This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Brian G. SHORT, Sergeant
United States Army, Appellant
No. 17-0187
Crim. App. No. 20150320
Argued October 24, 2017 —Decided January 5, 2018
Military Judge: John T. Rothwell
For Appellant: Captain Zachary A. Szilagyi (argued);
Colonel Mary J. Bradley, Lieutenant Colonel Christopher
D. Carrier, Captain Ryan T. Yoder, and Captain Bryan A.
Osterhage (on brief); Lieutenant Colonel Melissa R.
Covolesky and Major Julie L. Borchers.
For Appellee: Captain Kendra J. Holtmann Harris (ar-
gued); Colonel Mark H. Sydenham, Lieutenant Colonel A.
G. Courie III, and Major Melissa Dasgupta Smith (on
brief); Major Virginia H. Tinsley.
Chief Judge STUCKY delivered the opinion of the
Court, in which Judge RYAN, and Senior Judge
ERDMANN, joined. Judge OHLSON filed a separate
dissenting opinion, in which Judge SPARKS joined.
_______________
Chief Judge STUCKY delivered the opinion of the Court.
We granted review to consider whether the trial counsel
committed prosecutorial misconduct for improper argument
after eliciting inadmissible testimony. However, the military
judge properly sustained defense objections and took
significant remedial action. Therefore, the proper focus of
our review is on whether the military judge abused his
discretion by failing to grant Appellant’s three motions for a
mistrial. We conclude that he did not. We therefore affirm
the judgment of the United States Army Court of Criminal
Appeals (CCA).
United States v. Short, No. 17-0187/AR
Opinion of the Court
I. Procedural History
Appellant faced a number of domestic violence charges. A
general court-martial comprised of members acquitted him
of the most serious charges—forcible sodomy and aggravated
assault (Articles 125 and 128, Uniform Code of Military Jus-
tice, UCMJ, 10 U.S.C. §§ 925, 928 (2012))—but convicted
him, contrary to his pleas, of three specifications of assault
consummated by a battery and one specification of simple
assault in violation of Article 128, UCMJ. Consistent with
Appellant’s explicit request, the panel sentenced him to a
bad-conduct discharge. The convening authority approved
the adjudged sentence, and the CCA affirmed the findings
and sentence on appeal. United States v. Short, No. ARMY
20150320, 2016 CCA LEXIS 670, at *9, 2016 WL 6875884,
at *3 (A. Ct. Crim. App. Nov. 17, 2016) (unpublished).
II. Background
Appellant and NS were joined in a turbulent marriage,
rife with fighting and plagued by accusations of domestic vi-
olence. At trial, NS testified that Appellant forced her to per-
form oral sex, threw a shampoo bottle at her, pulled and
dragged her by her hair, shoved her head into the hood of a
car, struck her legs, and struck her in the head and face.
In an effort to show that these charged offenses did not
happen in isolation, but rather contributed to a pattern of
abuse that lasted for years, the Government sought to intro-
duce evidence of prior incidents of verbal and physical
abuse, and of Appellant’s exercise of financial control over
NS, under Military Rule of Evidence (M.R.E.) 404(b). The
military judge granted the Government’s M.R.E. 404(b) mo-
tion in part and denied it in part, making specific rulings as
to what uncharged misconduct would be admissible and
what would be excluded. Evidence objected to at trial and
excluded pursuant to the military judge’s M.R.E. 404(b) rul-
ing included statements by NS concerning the general state
of her marriage and Appellant’s actions immediately follow-
ing the charged offenses of forcible sodomy, the dragging of
NS by her hair, and the striking of NS on her legs.
During the merits phase of the trial, Appellant lodged
numerous objections to the questions posed by the trial
counsel, including multiple objections on M.R.E. 404(b)
2
United States v. Short, No. 17-0187/AR
Opinion of the Court
grounds alone. To combat the improper testimony, the mili-
tary judge took strong and repeated corrective action, em-
ploying varied measures to clarify and enforce his M.R.E.
404(b) ruling. For example, after the third sustained objec-
tion on M.R.E. 404(b) grounds, the military judge sua sponte
called an Article 39(a), UCMJ, 10 U.S.C. § 839(a) (2012),
session to order, where he cautioned the Government
against eliciting testimony that ran contrary to the court’s
M.R.E. 404(b) ruling. He later held three additional Article
39(a), UCMJ, sessions at the request of defense counsel, per-
sonally cautioned NS against straying into impermissible
ground, and rebuked trial counsel with a “last warning.”
Most importantly, the military judge also issued several
curative instructions which addressed the majority of Appel-
lant’s sustained objections regarding M.R.E. 404(b). At one
point, he even allowed Appellant to propose appropriate lan-
guage for a curative instruction and based his instruction on
that language.
On more than one occasion, the military judge asked if
the members would abide by his curative instructions, and
the panel responded affirmatively through nonverbal cues
such as nods and raised hands. During one Article 39(a),
UCMJ, session, the military judge acknowledged that he re-
ceived “nods up and down from everyone” showing they un-
derstood his curative instruction. Not content with the mili-
tary judge’s remedial measures, however, defense counsel
moved for a mistrial on three separate occasions. The mili-
tary judge denied each of these motions.
Although not objected to at trial, trial counsel also ad-
vanced certain arguments Appellant now deems prejudicial.
For example, when discussing NS’s credibility and demeanor
on the stand, trial counsel noted that Appellant “stared at
her for the entire afternoon while she gave that testimony.”
Trial counsel further commented on NS’s difficulties in re-
counting her ordeal, at one point asking the panel to
“[i]magine how uncomfortable and how terrifying it was to
sit on that stand” and later imploring members to imagine
how difficult it was for her to testify.
After the court was closed for deliberations on findings,
the defense moved for a finding of not guilty on one of the
3
United States v. Short, No. 17-0187/AR
Opinion of the Court
assault consummated by a battery specifications, arguing
that the Government failed to establish that any items Ap-
pellant was alleged to have thrown at the purported victim
while she was cowering in the bathtub actually hit her. The
military judge ruled that there was no evidence that the al-
leged victim was struck but there was sufficient evidence for
the members to find Appellant guilty of simple assault. In-
stead of interrupting the court’s deliberations and so advis-
ing the members, the military judge waited until the mem-
bers returned with a verdict of guilty. Then, the military
judge instructed the members on the lesser included offense
of simple assault and had the members return to deliberate
on that offense.
III. The Law
A military judge “may, as a matter of discretion, declare
a mistrial when such action is manifestly necessary in the
interest of justice because of circumstances arising during
the proceedings which cast substantial doubt upon the fair-
ness of the proceedings.” Rule for Courts-Martial (R.C.M.)
915(a). The Discussion to R.C.M. 915(a) cautions that “[t]he
power to grant a mistrial should be used with great caution,
under urgent circumstances, and for plain and obvious rea-
sons,” including times “when inadmissible matters so preju-
dicial that a curative instruction would be inadequate are
brought to the attention of the members.”
Accordingly, this Court has held that “a mistrial is an
unusual and disfavored remedy. It should be applied only as
a last resort to protect the guarantee for a fair trial,” United
States v. Diaz, 59 M.J. 79, 90 (C.A.A.F. 2003), or “where the
military judge must intervene to prevent a miscarriage of
justice.” United States v. McFadden, 74 M.J. 87, 89 (C.A.A.F.
2015) (internal quotation marks omitted) (quoting United
States v. Vazquez, 72 M.J. 13, 19 n.5 (C.A.A.F. 2013)). “Be-
cause of the extraordinary nature of a mistrial, military
judges should explore the option of taking other remedial
action, such as giving curative instructions.” United States v.
Ashby, 68 M.J. 108, 122 (C.A.A.F. 2009).
Absent clear evidence of an abuse of discretion, this
Court will not reverse a military judge’s determination on a
motion for mistrial. McFadden, 74 M.J. at 90. “In determin-
4
United States v. Short, No. 17-0187/AR
Opinion of the Court
ing whether the military judge abused his discretion by not
granting a mistrial, we look to the actual grounds litigated
at trial.” Id. The challenge is to assess “the probable impact
of the inadmissible evidence upon the court members.” Diaz,
59 M.J. at 91 (internal quotation marks omitted) (citation
omitted). That “judgment is rooted in a simple ‘tolerable’
risk assessment that the members would be able to put
aside the inadmissible evidence.” Id. (citation omitted).
IV. Discussion
By Appellant’s count, the Government elicited forbidden
testimony in violation of the military judge’s rulings, the
Military Rules of Evidence, and the Rules for Courts-Martial
approximately forty times during the trial. Of those viola-
tions, several ran afoul of the military judge’s M.R.E. 404(b)
ruling. In addition to trial counsel’s blatant disregard for the
military judge’s M.R.E. 404(b) ruling, Appellant also con-
tends that trial counsel engaged in improper argument by:
(1) inviting the panel to draw negative inferences by com-
menting on Appellant’s behavior and presence during trial;
and (2) advancing “Golden Rule” arguments that asked the
members to place themselves in the shoes of the victim.
While we acknowledge that trial counsel’s conduct left much
to be desired, Appellant simply cannot show that, in light of
the military judge’s curative instructions, the members
would not be able to put aside the inadmissible evidence.
Appellant also cannot show that he was prejudiced by trial
counsel’s arguments.
Here, Appellant argues that the case against him was
not strong, pointing to the fact that the Government prof-
fered no corroborating eyewitness testimony or physical evi-
dence. While it is true that this case relied largely on un-
supported testimonial evidence, the mixed findings,
including several acquittals and convictions based on lesser
included offenses, indicate the court members were capable
of and did put aside the inadmissible evidence, and Appel-
lant suffered no prejudice. See United States v. Sewell, 76
M.J. 14, 19 (C.A.A.F. 2017) (“[t]he panel’s mixed findings
further reassure us that the members weighed the evidence
at trial and independently assessed Appellant’s guilt with-
out regard to trial counsel’s arguments”); United States v.
Hornback, 73 M.J. 155, 161 (C.A.A.F. 2014) (“the fact that
5
United States v. Short, No. 17-0187/AR
Opinion of the Court
the panel acquitted Appellant of other, weaker drug charges
indicates that it took the military judge’s instructions to dis-
regard impermissible character evidence seriously”). Ulti-
mately, Appellant was convicted on only four out of eight
specifications, indicating “the members were able to weigh
the evidence offered at trial and make an independent as-
sessment of Appellant’s guilt or innocence with regard to
each separate specification.” United States v. Pabelona, 76
M.J. 9, 12 (C.A.A.F. 2017). Contrary to Appellant’s claim
that the evidence was weak and there was no logic to the
panel’s findings, the record indicates the panel engaged in a
careful, deliberative process based on the evidence alone.
“We presume, absent contrary indications, that the panel
followed the military judge’s instructions” with regard to the
improper testimony and trial counsel’s arguments.1 Sewell,
76 M.J. at 19. Trial counsel’s conduct was not so prejudicial
that the curative instructions were inadequate, and there is
simply “no evidence here that the members failed to comply
with the military judge’s [curative] instructions” when con-
victing Appellant. Hornback, 73 M.J. at 161.
We disagree with any suggestion that the military
judge’s finding of not guilty regarding the assault consum-
mated by a battery via the shampoo bottle vitiates our con-
clusion that the court members were able to follow the mili-
tary judge’s curative instructions and set aside the
inadmissible evidence. The military judge’s instructions ex-
plicitly allowed members to draw reasonable inferences from
the evidence and testimony presented. NS testified that Ap-
pellant threw items at her at close range while she crouched
in the shower, covering her head in an attempt to protect
herself. From this testimony, panel members could reasona-
bly have inferred that Appellant committed an assault con-
summated by a battery. While the military judge himself in-
1 While the military judge did not issue a limiting instruction
sua sponte with regard to the allegedly improper arguments in
closing, he did give a generic instruction reminding the members
that “the arguments of counsel are not evidence …. [Members]
must base the determination of the issues in the case on the evi-
dence as [they] remember it and apply the law as [the military
judge] instruct[ed them].”
6
United States v. Short, No. 17-0187/AR
Opinion of the Court
terpreted the evidence otherwise, there is no evidence that
the panel failed to understand and follow his instructions.
With regard to the allegedly improper arguments Appel-
lant now challenges, we note that the perceived errors were
so slight that both defense counsel and the military judge
failed to recognize them, indicating that neither saw the
need for remedial measures at all.
Furthermore, we note that the panel imposed a very le-
nient sentence. The panel sentenced Appellant, consistent
with his explicit request, to a bad-conduct discharge and ad-
judged no other punishment. Considering his maximum pos-
sible sentence for the offenses of which he was charged in-
cluded a dishonorable discharge, confinement for life
without eligibility for parole, and forfeitures of all pay and
allowances, Manual for Courts-Martial, United States pt. IV,
¶ 51.e.(1) (2012 ed.) (MCM), it is difficult for us to say that
Appellant suffered prejudice when he was only convicted of
four assaults and his sole punishment consisted of his re-
quested outcome—a bad-conduct discharge.
In the absence of any prejudice, we cannot say that the
military judge abused his discretion in declining to declare a
mistrial. On the contrary, the military judge took action ear-
ly and often to combat perceived abuses and minimize any
potential prejudice. Given the measures undertaken by the
military judge, we conclude that he did all that was neces-
sary to “protect the guarantee of a fair trial.” Diaz, 59 M.J.
at 90.
In light of this Court’s longstanding view of mistrials as
an “extraordinary” remedy and the directive that military
judges explore other remedial action first, Ashby, 68 M.J. at
122, we conclude that the military judge was not required to
declare a mistrial here. This is not a case where “inadmissi-
ble matters so prejudicial that a curative instruction would
be inadequate are brought to the attention of members.”
R.C.M. 915(a) Discussion. Instead, the danger of unfair
prejudice from improper testimony and trial counsel’s argu-
ments was slight, as borne out by the mixed findings and
lenient sentence. As there is no “clear evidence of an abuse
of discretion” in denying Appellant’s motions for a mistrial
or failing to sua sponte declare one, we will not disturb the
7
United States v. Short, No. 17-0187/AR
Opinion of the Court
military judge’s decision. McFadden, 74 M.J. at 90 (internal
quotation marks omitted) (citation omitted).
V. Judgment
The judgment of the United States Army Court of Crimi-
nal Appeals is affirmed.
8
United States v. Short, No. 17-0187/AR
Judge OHLSON, with whom Judge SPARKS joins,
dissenting.
To put this case into its proper perspective, a number of
points need to be highlighted.
First, during the Government’s direct and redirect exam-
ination of the victim in this case:
 the military judge felt compelled to sustain objec-
tions by the defense—or the two trial counsel felt
compelled to withdraw their questions—twenty-
three times;
 the military judge needed to provide curative in-
structions to the panel members six times;
 trial defense counsel moved for a mistrial three
times; and,
 throughout the trial, the military judge had to
convene Article 39(a), Uniform Code of Military
Justice (UCMJ), 10 U.S.C. § 839(a) (2012), ses-
sions sixteen times—half of them just to address
trial counsel’s violation of the military judge’s
Military Rule of Evidence (M.R.E.) 404(b) ruling.1
Second, prior to trial the military judge made a detailed
ruling on what uncharged misconduct was admissible and
what was inadmissible. And yet, the day before trial, Gov-
ernment counsel provided notice of their intent to admit
much of the same evidence that the military judge already
had ruled was inadmissible. After noting that four of the five
paragraphs violated his earlier M.R.E. 404(b) ruling, the
military judge admonished trial counsel to comply with the
ruling. Nonetheless, as can be seen below, trial counsel re-
peatedly failed to do so.
For example, during the court-martial the military judge
sua sponte convened an Article 39(a), UCMJ, session after
trial counsel asked multiple questions that led to sustained
objections. The military judge reminded trial counsel that
they were asking questions that were contrary to his earlier
1 One of those Article 39(a), UCMJ, sessions began with an
apparently exasperated military judge declaring: “Everybody back
in my chambers!”
United States v. Short, No. 17-0187/AR
Judge OHLSON, Dissenting
M.R.E. 404(b) ruling and specifically asked if trial counsel
had any questions about the ruling. Trial counsel responded
that they did not. And yet a mere seven questions later, trial
counsel again asked a question that led to a sustained objec-
tion for violating the military judge’s M.R.E. 404(b) ruling.
An additional three questions later, trial counsel’s question
led to yet another sustained objection on M.R.E. 404(b)
grounds.
Third, the nature of the evidence, which was elicited in
violation of the military judge’s ruling, is of particular con-
cern.2 For example, trial counsel elicited testimony that Ap-
pellant often watched pornography, broke into a friend’s
house in search of his wife, hit his wife in the head with a
full can of beer, and held his wife down by putting both his
hands around her throat.
Testimony about the last incident—where Appellant al-
legedly put his hands around his wife’s throat while holding
her down—prompted the military judge to convene one of
the sixteen Article 39(a), UCMJ, sessions. After the military
judge explained that the Government needed to either
charge the incidents or provide M.R.E. 404(b) notice, trial
counsel complained that it was “unfair” for the Government
to be required to provide notice of “each and every act” of the
Appellant.3 Seemingly unmoved by this complaint, the mili-
2 The improper introduction of character evidence at a court-
martial with panel members is of “particularly grave concern.”
United States v. Hornback, 73 M.J. 155, 164 (C.A.A.F. 2014)
(Ohlson, J., with whom Baker, C.J., joined, dissenting). “Character
evidence is particular anathema to U.S. notions of fair trial, run-
ning the risk as it does that members may be swayed to convict
not on the basis of evidence, but because the defendant is a bad
person deserving of punishment.” Id. at 162 (Baker, C.J., with
whom Ohlson, J., joined, dissenting).
3 [ATC:] We have to—within each specification we now have
to—we were supposed to provide 404(b) notice for everything that
happened within a particular assault incident?
….
[ATC:] It seems – it seems a little unfair ….
MJ: Unfair to who[m]?
ATC: Unfair to the government ….
2
United States v. Short, No. 17-0187/AR
Judge OHLSON, Dissenting
tary judge announced that he would provide one more cura-
tive instruction and that this was the “last warning” to the
Government. And yet, trial counsel continued to ask ques-
tions that elicited testimony which resulted in the military
judge sustaining seven more objections on M.R.E. 404(b)
grounds.
In citing this conduct by trial counsel, I do not seek to
impugn their motives or their ethics. It appears from the
record that inexperience rather than guile was the genesis of
the repeated problems that arose in this case.4 But as this
Court has noted, “In analyzing allegations of prosecutorial
misconduct, courts should gauge the overall effect of coun-
sel’s conduct on the trial, and not counsel’s personal blame-
worthiness.” United States v. Rodriguez-Rivera, 63 M.J. 372,
378 (C.A.A.F. 2006) (citation omitted) (internal quotation
marks omitted).
Fourth, the majority states that the proper focus of re-
view is whether the military judge abused his discretion by
not granting Appellant’s motions for a mistrial rather than
the granted issue of whether there was prosecutorial mis-
conduct. However, in my view, when faced with pervasive
prosecutorial misconduct as in this case, an appellant should
not be penalized by the imposition of a more stringent
standard of review simply because the trial defense counsel
appropriately made a motion for a mistrial. Rather, the
proper standard should be as follows: “[P]rosecutorial mis-
conduct … will require reversal when the trial counsel’s [ac-
tions], taken as a whole, were so damaging that we cannot
be confident that the members convicted the appellant on
MJ: That is one of the burdens of being the government.
4 The best cure for errors stemming from inexperience is su-
pervision. As then Chief Judge Charles N. Pede, now the Judge
Advocate General of the Army, noted, “[s]upervision of the trial
process is elemental to our role as judge advocates …. [C]hiefs of
justice … must engage their subordinate counsel energetically and
appropriately throughout the trial process.” United States v. Mack,
No. ARMY 20120247, 2013 CCA LEXIS 1016, at *5–6, 2013 WL
6528518, at *2 (A. Ct. Crim. App. Dec. 9, 2013) (Pede, C.J., con-
curring) (unpublished) (emphasis added).
3
United States v. Short, No. 17-0187/AR
Judge OHLSON, Dissenting
the basis of the evidence alone.” United States v. Fletcher, 62
M.J. 175, 184 (C.A.A.F. 2005).
In applying this standard to the instant case, I concede
that the military judge repeatedly gave limiting instructions
to the panel members. However, there is a point at which
prosecutorial misconduct is so pervasive that instructions
from the bench are insufficient to counter the prejudicial ef-
fect to the appellant. In other words, at some juncture mul-
tiple “limiting instructions” can no longer be considered “cu-
rative instructions.” That point was surpassed in this case.
See United States v. Crutchfield, 26 F.3d 1098, 1103 (11th
Cir. 1994) (“When [prosecutorial misconduct] permeate[s] a
trial to such a degree as occurred in this case, we do not be-
lieve that instructions from the bench are sufficient to offset
the certain prejudicial effect suffered by the accused.”).
Moreover, our standard assumption about the effect of
instructions on panel members is not without borders. As
this Court has stated, “We presume, absent contrary indica-
tions, that the panel followed the military judge’s instruc-
tions.” United States v. Sewell, 76 M.J. 14, 19 (C.A.A.F.
2017) (emphasis added). In the instant case, contrary indica-
tors are clearly present. Specifically, the members found
Appellant guilty beyond a reasonable doubt of the assault
consummated by a battery offense even though the military
judge concluded during the members’ deliberation that there
was no evidence in the record to support the element of bat-
tery.5 This verdict serves as substantial evidence that the
members did not follow the military judge’s instructions and
that their decision to convict Appellant was based on some-
thing other than the admitted evidence.
And finally, the strength of the Government’s case was
not particularly compelling. The prosecution relied entirely
5 This was not a matter of reasonable minds differing on the
weight of the evidence. A military judge must view the evidence in
the light most favorable to the prosecution and can grant a Rule
for Courts-Martial (R.C.M.) 917 motion “only in the absence of
some evidence which, together with all reasonable inferences and
applicable presumptions, could reasonably tend to establish every
essential element” of the charged offense. R.C.M. 917(d) (emphasis
added).
4
United States v. Short, No. 17-0187/AR
Judge OHLSON, Dissenting
on the testimony of the victim and her two friends. There
were no prosecution exhibits, no confessions or admissions
by Appellant, no physical evidence, and no text messages or
other electronic evidence.
Because of the frequency and severity of the
prosecutorial misconduct, the insufficiency of the corrective
actions, and the minimal weight of the admitted evidence, I
cannot be confident that the members convicted Appellant
based on the evidence alone. Therefore, I would find
prejudice,6 reverse the findings and sentence, and authorize
a new proceeding.
6 Prejudice exists when an appellant is convicted of even a sin-
gle offense which is tainted by prosecutorial misconduct. Cf.
Hornback, 73 M.J. at 160 (“[P]rosecutorial misconduct by a trial
counsel will require reversal when the trial counsel’s [actions],
taken as a whole, were so damaging that we cannot be confident
that the members convicted the appellant on the basis of the evi-
dence alone.” (internal quotation marks omitted) (citation omit-
ted)). Any leniency in the punishment imposed for that conviction
is irrelevant to the determination of whether that prejudice was
manifest. Even if it were relevant, a bad-conduct discharge is a
severe punishment and “should not be viewed lightly simply on
account of a minimum amount of forfeitures or confinement
awarded in conjunction with it.” United States v. Dukes, 5 M.J. 71,
74 (C.M.A. 1978); see also Dep’t of the Army, Pam. 27-9, Legal
Services, Military Judges’ Benchbook ch. 2, § VI, para. 2-6-10
(2017) (“A bad-conduct discharge is a severe punishment .… Such
a discharge deprives one of substantially all benefits administered
by the Department of Veterans Affairs and the Army establish-
ment.”). A sentence of solely a punitive discharge is not indicative
of a lack of prejudice. Dukes, 5 M.J. at 74.
5