United States v. Short
17-0187/AR
C.A.A.F.Jan 5, 2018Background
- Appellant Brian G. Short, a U.S. Army sergeant, was tried by general court-martial on multiple domestic-violence charges; acquitted of the most serious (forcible sodomy, aggravated assault) but convicted of four assault specifications and sentenced (at his request) to a bad-conduct discharge.
- Government sought to introduce prior-incident and pattern evidence under M.R.E. 404(b); the military judge admitted some and excluded other uncharged-misconduct evidence, issuing specific pretrial rulings.
- During the victim’s testimony the trial counsel repeatedly elicited testimony the judge had excluded under his 404(b) ruling; defense lodged numerous objections and moved for mistrial three times.
- The military judge repeatedly sustained objections, convened numerous Article 39(a) sessions, personally admonished counsel and the witness, gave multiple curative/limiting instructions (including some proposed by defense), and denied each mistrial motion.
- Trial counsel also made arguably improper arguments (commenting on appellant’s courtroom demeanor and urging members to imagine the victim’s experience). The defense claims pervasive prosecutorial misconduct and prejudice; the government and majority contend curative actions sufficed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial counsel’s elicitation of inadmissible testimony and improper argument required a mistrial | Govt: remedial steps and curative instructions cured any error; members could follow instructions | Short: pervasive violations of 404(b) and improper argument so prejudicial that bench instructions were inadequate; mistrial required | Held: No abuse of discretion in denying mistrial; curative measures were sufficient and record shows lack of prejudice |
| Whether curative instructions and judicial admonitions were adequate to remove prejudice | Govt: judge’s repeated, specific instructions and admonitions preserved fair trial | Short: multiple instructions became ineffective given the frequency/severity of violations | Held: Instructions presumed effective; mixed findings and lenient sentence support adequacy |
| Whether trial counsel’s closing comments (demeanor/Golden Rule-type appeals) prejudiced the outcome | Govt: comments were slight and not objected to; generic instruction covered arguments | Short: comments invited impermissible inferences and sympathy for victim, prejudicing jurors | Held: No prejudice shown from remarks; insufficient to warrant reversal |
| Standard of review concerning prosecutorial misconduct when mistrial denied | Govt: review focuses on abuse of discretion of judge’s denial of mistrial | Short: pervasive misconduct warrants closer scrutiny and reversal despite denial | Held: Abuse-of-discretion standard applies; no clear abuse shown here |
Key Cases Cited
- United States v. Diaz, 59 M.J. 79 (C.A.A.F. 2003) (mistrial is disfavored; assess probable impact of inadmissible evidence)
- United States v. McFadden, 74 M.J. 87 (C.A.A.F. 2015) (review of mistrial denial is for abuse of discretion)
- United States v. Ashby, 68 M.J. 108 (C.A.A.F. 2009) (military judges should explore curative instructions before granting mistrial)
- United States v. Vazquez, 72 M.J. 13 (C.A.A.F. 2013) (mistrial to prevent miscarriage of justice)
- United States v. Sewell, 76 M.J. 14 (C.A.A.F. 2017) (presumption that panel follows limiting instructions; mixed findings support that presumption)
- United States v. Hornback, 73 M.J. 155 (C.A.A.F. 2014) (improper character evidence and effect of limiting instructions)
- United States v. Pabelona, 76 M.J. 9 (C.A.A.F. 2017) (mixed convictions indicate members weighed evidence independently)
- United States v. Fletcher, 62 M.J. 175 (C.A.A.F. 2005) (prosecutorial misconduct reversal standard: convictions reversed when conduct so damaging that convictions cannot be trusted to be based on evidence alone)
- Crutchfield v. United States, 26 F.3d 1098 (11th Cir. 1994) (pervasive prosecutorial misconduct can render curative instructions insufficient)
- United States v. Dukes, 5 M.J. 71 (C.M.A. 1978) (bad-conduct discharge is a severe punishment; lenient ancillary punishments do not negate prejudice)