Opinion Analysis: No prejudice from improper references to sexual assault training, in United States v. Bodoh
CAAF decided the Army case of United States v. Bodoh, __ M.J. __, No. 18-0201/AR (CAAFlog case page) (link to slip op.), on Wednesday, January 23, 2019. Reviewing a number of instances during the trial where the prosecution referenced the Army’s Sexual Harassment/Assault Response and Prevention (SHARP) program – none of which drew a defense objection – the court finds some of the references improper but harmless, and it affirms the findings, sentence (with a correction), and decision of the Army CCA.
Judge Ohlson writes for a unanimous court.
CAAF granted review to determine:
Whether the military judge plainly erred by allowing the trial counsel to misstate the law and argue that the panel should base its verdict on SHARP training
Private (E-2) Bodoh was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of one specification of sexual assault and one specification of assault consummated by a battery. He was sentenced to confinement for five years, reduction to E-1, forfeiture of $1,546.80 per month for 60 months, and a bad-conduct discharge.
The granted issue involves three phases of the court-martial. First, during voir dire of the members, the prosecution asked questions that referenced the SHARP program. Second, when Bodoh testified in his own defense that the alleged sexual acts occurred but were consensual, the prosecution asked numerous questions about Bodoh’s understanding of the meaning of consent based on SHARP program training Bodoh had received, eventually drawing objections from the defense that led the military judge to give a curative instruction. Third, during closing arguments, the trial counsel repeatedly referenced the SHARP program (without objection from Bodoh’s defense counsel).
Judge Ohlson’s opinion for the unanimous CAAF repeatedly notes the defense counsel’s failures to object – and the associated application of the plan error test – but ultimately concludes that some of the references to SHARP training were not improper and the remaining references were not prejudicial.
CAAF first finds no error in referencing the SHARP program during voir dire. While one voir dire question invoked the program for reasons that CAAF finds unclear, the remaining questions “were designed to assess whether the members’ SHARP training would improperly influence their deliberations,” and that “is an appropriate line of inquiry.” Slip op. at 9.
The prosecution’s cross-examination of Bodoh, however, was not so appropriate. Nevertheless, Judge Ohlson explains that CAAF finds no prejudice:
First, the military judge sustained in a timely manner the defense’s objection, albeit on a different ground than the one raised by the defense. Second, the military judge ruled that trial counsel had misstated the law. Third, the military judge properly summarized the law . . . The defense never expressed dissatisfaction with these curative measures or sought additional measures. We therefore conclude that in light of the military judge’s curative measures, Appellant failed to establish that trial counsel’s improper questioning was prejudicial.
Slip op. at 9-10 (citation omitted). That holding applies the plain error test – where the appellant has the burden to show prejudice on appeal as a consequence of failing to seek correction at trial – even though there was an objection, seemingly because the trial objection was on a different basis than what was asserted on appeal. Nevertheless, considering the military judge’s corrective actions and the defense’s apparent satisfaction with those actions, it seems unlikely that the burden to show prejudice or harmlessness is dispositive in this situation.
Finally, Judge Ohlson explains that the closing argument did involve some impropriety, but that Bodoh “has not established material prejudice to a substantial right.” Slip op. at 11.
Nevertheless, the opinion contains a gentle reminder for prosecutors:
As can be seen, we have determined that the facts and circumstances in this case do not support a plain error determination. However, we once again find it necessary to state the obvious: “Counsel should limit their arguments to the evidence of record, as well as all reasonable inferences fairly derived from such evidence.” Burton, 67 M.J. at 152 (citation omitted) (internal quotation marks omitted).
Slip op. at 12 n.5.
Judge Ohlson concludes the opinion with a correction of the adjudged forfeiture of pay, eliminating the 80 cents because forfeitures must be adjudged in whole dollars. Slip op. at 12 n.7 (citing R.C.M. 1003(b)(2)).
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