

   
   
   
   U.S. v. Kho



IN THE CASE OF
UNITED STATES, Appellee
v.
Charles M. KHO, Corporal
U.S. Marine Corps, Appellant
 
No. 99-0925
Crim. App. No. 98-1646
 
United States Court of Appeals for the Armed
Forces
Argued May 2, 2000
Decided September 1, 2000
GIERKE, J., delivered the opinion of the
Court, in which
EFFRON, J., and COX, S.J., joined. SULLIVAN,
J., filed
a concurring opinion. CRAWFORD, C.J., filed
an opinion concurring in the result.
Counsel
For Appellant: Captain Curtis M. Allen,
USMC (argued); Lieutenant Dale O. Harris, JAGC, USNR.
For Appellee: Lieutenant Commander Philip
Sundel, JAGC, USNR (argued); Colonel Kevin M. Sandkuhler, USMC,
Commander
Eugene E. Irvin, JAGC, USN, and Lieutenant Janice K. OGrady,
JAGC, USNR.
Military Judge: M. J. Griffith
 
 


This opinion is subject to
editorial correction before publication.



Judge GIERKE delivered the opinion of the Court.
A military judge sitting as a special court-martial
convicted appellant, pursuant to his pleas, of violating a lawful general
order by possessing drug paraphernalia (rolling papers, a bong, and a pipe),
using marijuana, possessing marijuana (trace amounts of seeds and residue),
and three specifications of assault and battery on his 5-year-old daughter,
in violation of Articles 92, 112a, and 128, Uniform Code of Military Justice,
10 USC §§ 892, 912a, and 928, respectively.
The three assaults arose from appellants efforts
to discipline his daughter. The first occurred after she wet her bed. On
this occasion, appellant spanked her bare buttocks with his hand several
times at 5-minute intervals. Although he left red welts on her buttocks,
she did not require medical attention.
The second assault occurred when appellants
daughter shoved a piece of pizza crust down her throat and then vomited
on herself. Appellant took her to the bathroom, removed her clothing, told
her he "didnt want to ever see that kind of thing happen again," and sprayed
her with cold water. His daughter begged him to stop, but he kept spraying
her with cold water because he wanted to inflict pain. After she promised
not to make herself vomit again, appellant turned the water up to "regular
bath temperature." Appellant told the military judge that he punished his
daughter to correct her behavior, but he "went overboard."
The third assault was alleged to have occurred
on divers occasions. Appellant told the military judge that his daughter
had been repeatedly misbehaving, and he spanked her with his hand so hard
that he injured his hand. He then spanked her on the buttocks and legs
with his web belt. A couple of days later, his hand was still injured,
and so when she misbehaved again, he spanked her on the buttocks and legs
with a plastic-soled slipper. Although the girl did not require medical
treatment, the spankings left numerous large bruises.
In extenuation and mitigation, appellant presented
the testimony of two NCOs who testified about his good duty performance.
Appellant made an unsworn statement, in which he stated that he lost his
temper with his daughter because he was "stressed out" by financial problems.
He also testified that he was attending parenting and anger management
classes in order to become a better parent. He concluded his unsworn statement
by apologizing to the court, his wife, his daughter, his superiors, and
the Marine Corps.
The military judge sentenced appellant to a
bad-conduct discharge, confinement for 120 days, and reduction to the lowest
enlisted grade. After announcing the sentence, the military judge recommended
that the convening authority consider suspending 30 days of the confinement.
The staff judge advocates (SJA) recommendation
described the cold water assault inaccurately and did not mention the military
judges recommendation. The charge sheet originally alleged that appellant
assaulted his daughter by placing her in a cold bath and spraying her with
cold water. Before arraignment, the specification was amended to delete
the reference to placing her in a cold bath, but the SJA failed to reflect
the amendment in his post-trial recommendation.
The SJAs recommendation was served on appellant
and his counsel, but they failed to point out the errors and omissions.
No clemency matters were submitted. The convening authority approved the
sentence as adjudged.
The court below held that appellant was not
entitled to any relief, because he failed to allege or show prejudice.
The court noted that appellants request for voluntary appellate leave
was approved after appellant served "65 days or less of the adjudged 120
days confinement." Unpub. op. at 2 n. 2.
Appellant asserts that the errors and omissions
in the SJAs recommendation were plain error. He argues that "prejudice
is manifest."* Final Brief
at 5. The Government argues that appellant was not prejudiced.
RCM 1106(f)(6), Manual for Courts-Martial,
United States (1998 ed.), provides that defense counsels failure to comment
on any matter in the post-trial recommendation in a timely manner waives
any later claim of error, unless it rises to the level of plain error.
To prevail under a plain-error analysis, appellant had the burden of persuading
this Court that: (1) there was an error; (2) it was plain or obvious; and
(3) the error materially prejudiced a substantial right. United States
v. Finster, 51 MJ 185, 187 (1999), citing United States v. Powell,
49 MJ 460, 463, 465 (1998).
We review application of the plain error doctrine
de
novo, as a question of law. Powell, 49 MJ at 462, citing S.
Childress & M. Davis, 1 Federal Standards of Review, §
2.14 (2d ed. 1992). Because of the highly discretionary nature of the convening
authoritys action on the sentence, we will grant relief if an appellant
presents "some colorable showing of possible prejudice." United States
v. Wheelus, 49 MJ 283, 289 (1998). While it was error for the SJA to
inaccurately describe the cold-water assault, appellant has not alleged
or demonstrated any specific prejudice. There is no legal difference and
little qualitative difference between placing the little girl in cold water
and spraying her with cold water. Accordingly, we agree with the court
below that this error does not rise to the level of plain error.
Likewise, it was error for the SJA to omit
the military judges clemency recommendation, but the record shows that
the convening authority released appellant from confinement earlier than
the military judge recommended. Thus, appellant has failed to carry his
burden of making a colorable showing of prejudice.
The decision of the United States Navy-Marine
Corps Court of Criminal Appeals is affirmed.
FOOTNOTE:
* The granted
issue is:

WHETHER THE NAVY-MARINE
CORPS COURT OF CRIMINAL APPEALS INCORRECTLY APPLIED THE PLAIN ERROR STANDARD
BY REQUIRING APPELLANT TO SHOW PREJUDICE.


SULLIVAN, Judge (concurring):
I agree with the majority that appellant,
not the Government, has the burden to make "some colorable showing of possible
prejudice" resulting from unobjected-to errors in the staff judge advocate
recommendation before he is entitled to relief. United States v. Wheelus,
49 MJ 283, 289 (1998). I am somewhat puzzled by the majoritys favorable
citation of United States v. Powell, 49 MJ 460, 462 (1998), for
this legal point. In Powell, the majority opinion stated the opposite
on this point. There, the majority clearly puts the burden on the Government:



Only after appellant met his burden of persuasion
did the burden shift to the Government to show that the error was not prejudicial.



49 MJ at 465.
I also agree with the majority that a question
of prejudice in a plain error case should be resolved on the basis of the
impact of the error on the outcome of the trial or process. United States
v. Olano, 507 U.S. 725 (1993); contra United States v. Wilson,
No. 99-0202, ___ MJ ___ at 5. Any suggestion to the contrary in United
States v. Powell, supra, should be disregarded as dicta.


CRAWFORD, Chief Judge (concurring in the result):
I agree that the burden is on appellant to
establish plain error.
In Johnson v. United States, 520 U.S.
461, 466-67, the Court stated:



[B]efore an appellate court can correct an
error not raised at trial, there must be (1) "error," (2) that is "plain,"
and (3) that "affect[s] substantial rights." 507 U.S. at 732, 113 S.Ct.
at 1776. If all three conditions are met, an appellate court may then exercise
its discretion to notice a forfeited error, but only if (4) the error ""seriously
affects[s] the fairness, integrity, or public reputation of judicial proceedings.""



I see no difference between an error that "materially
prejudices ... substantial rights" under Article 59(a), Uniform Code of
Military Justice, 10 USC § 859(a), or an error that "affect[s] substantial
rights" under Fed.R.Crim.P. 52(b). As the Court in Johnson indicated,
an appellate court may "notice a forfeited error." A finding or sentence
"may not be held incorrect" "unless the error materially prejudices the
substantial rights of the accused." Thus, both prong four of Johnson
and Article 59(a) instruct appellate courts as to when they may set aside
the findings and sentence. The appellate court then analyzes whether the
error was harmless. That is, it is possible to have an error that "materially
prejudices ... substantial rights," such as a constitutional violation,
i.e.,
a confession obtained in violation of the Fifth Amendment, but still affirm
the conviction. I view the application of these four prongs to be the same,
whether employed by a court of discretionary appeal or a court with mandatory
review.



Thus, although Rule 52(b) does not directly
apply to military courts-martial procedures, its import and purpose are
encompassed by Mil.R.Evid. 103(d), which, along with Article 59(a), provides
the same limitation on review of harmless error that is provided by the
Olano/Johnson
analysis. To put it simply, even if there is a clear or obvious error at
trial, if that error does not materially prejudice a substantial right
(i.e., seriously affect the fairness of the trial), this Court need not
take corrective action.



United States v. Boyd, 52 MJ 758, 763 (A.F.Ct.Crim.App.
2000).
For these reasons, I concur in the result.


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