UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before
ALDYKIEWICZ, SALUSSOLIA, and WALKER
Appellate Military Judges

UNITED STATES, Appellee
Vv.
Second Lieutenant ROBERT J. SHARP
United States Army, Appellant

ARMY 20190149

Headquarters, 82d Airborne Division
Fansu Ku, Military Judge
Colonel James A. Bagwell, Staff Judge Advocate

For Appellant: Major Angela D. Swilley, JA; Captain Paul T. Shirk, JA.

For Appellee: Lieutenant Colonel Wayne H. Williams, JA.

10 September 2020

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

ALDYKIEWICZ, Senior Judge:

Military Rule of Evidence (Mil. R. Evid.) 707 prohibits the admission of three
categories of polygraph examination information into evidence: (1) “the result of a
polygraph examination,” (2) “the polygraph examiner’s opinion,” or (3) “any
reference to an offer to take, failure to take, or taking of a polygraph examination.”
Our superior court’s decision in United States v. Kohlbek addressed only the third
category of polygraph evidence. 

(C.A.A.F. 2019). Kohlbek has no
effect on the longstanding proscriptions contained in the first two categories.

This case presents a tripartite failure of the adversarial system as evidence of
the results of appellant’s polygraph examinations and the opinion of the polygraph
examiner were admitted into evidence.! Nevertheless, we affirm because appellant

 

' A panel of officers sitting as a general court-martial convicted appellant, contrary

(continued .. .)
SHARP—-ARMY 20190149

affirmatively waived any objection to the admission of such evidence and, even
assuming the issue was not waived, we find appellant suffered no prejudice by its
admission. Additionally, we conclude appellant fails to establish that his defense
team provided ineffective assistance of counsel.

I. BACKGROUND

After a night of drinking, appellant sexually assaulted a fellow officer, First
Lieutenant (1LT) SV. During the ensuing criminal investigation, appellant waived
his Article 31(b), UCMJ, rights, voluntarily underwent multiple polygraph
examinations, and provided a sworn statement to Army Criminal Investigation
Command (CID) Special Agent (SA) BD. In his sworn statement, appellant made
numerous inculpatory admissions, including the fact that he penetrated 1LT SV’s
vagina with his penis despite her verbal protestations for him to stop. The military
judge denied appellant’s pretrial motion to suppress the statement and it was later
admitted into evidence at his court-martial in addition to 1LT SV’s testimony.

At a 29 January 2019 Article 39(a), UCMJ, session, the military judge
discussed with the parties how, and to what extent, evidence of appellant’s
polygraph examinations could be admitted into evidence. At a subsequent Article
39(a), UCMJ, session on 5 March 2019—nine days after Kohlbek was decided—the
parties once again discussed how to handle evidence concerning appellant’s
polygraph examinations. As the military judge summarized, the trial and defense
counsel had “reached an agreement” as to how the evidence would be handled at the
court-martial. The military judge then discussed defense counsel’s proposed tailored
instruction that set the parameters as to how the panel members could consider
evidence of appellant’s polygraph examinations, including the results of the
polygraph. Trial counsel concurred with defense counsel’s proposed instruction.”
The military judge agreed with the proposed instruction as well, but indicated she
was going to add some additional language clarifying that such evidence could be
used solely for the purpose of understanding the facts and circumstances that led to
appellant’s confession, and that the panel members were not to consider the
polygraph results. While the military judge did not specifically reference Kohlbek,

 

(. . . continued)

to his plea, of one specification of sexual assault, in violation of Article 120,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920. The convening
authority approved the adjudged sentence of forfeiture of all pay and allowances,
confinement for fourteen months, and a dismissal.

* Defense counsel’s original proposed instruction is not contained in the record of
trial. Nevertheless, we are able to glean its substance based upon the discussion of
the parties and the final polygraph instruction provided by the military judge.
SHARP—ARMY 20190149

she informed the parties that her additions to defense counsel’s proposed instruction
were taken “straight from the CAAF opinion.”

At trial, SA BD testified during the government’s case-in-chief. Defense
counsel did not object to his testimony, but before SA BD began discussing the
details of appellant’s polygraph examinations, defense counsel requested that the
military judge interrupt his testimony and provide the panel members with the
previously agreed-upon tailored instruction. The military judge agreed. She then
halted SA BD’s testimony and provided the instruction, telling the panel members
that SA BD’s testimony about appellant’s polygraph examinations was “being
offered solely to explain the facts and circumstances that led to the statement or the
confession from [appellant] and the motivation that led to that statement being
made.” The military judge further instructed the panel that they were “not allowed
to consider the results of a polygraph examination” because “the scientific reliability
of the polygraph has not been established.” All members agreed they could follow
the instruction. Then, before allowing SA BD to testify further, the military judge
circled back to the defense counsel and asked, “Is that good, Defense?” Defense
counsel stated his satisfaction and SA BD’s testimony continued.

Special Agent BD then testified in detail about appellant’s polygraph
examinations, including the results and his opinion that appellant’s answers during
the polygraph indicated deception. Defense counsel did not object. Additionally,
through SA BD’s testimony, the government introduced, without objection:
appellant’s rights advisement form; his polygraph examination consent form; his
sworn statement; and, an edited version of appellant’s video-recorded interview.
Defense counsel’s far-reaching cross-examination of SA BD sought to undercut the
reliability of appellant’s sworn statement by highlighting SA BD’s allegedly
manipulative tactics, accusing SA BD of making improper promises to appellant to
extract a confession, noting the stressful nature of the polygraph examinations, and
questioning SA BD about the concept of false confessions.

After both parties rested, the military judge discussed her proposed findings
instructions with the parties, including the tailored polygraph instruction. Neither
party objected to the military judge’s proposed instructions. The military judge then
charged the panel with a substantially similar version of the polygraph instruction
she had previously provided during SA BD’s direct examination.?

 

3 In full, the instruction read: “You have heard evidence regarding a polygraph
examination that was administered in this case. Evidence regarding the polygraph
examination are [sic] offered in this case to explain the reason or motivation for a
confession. You are not to consider the results of the polygraph examination for any

(continued . . .)
SHARP—ARMY 20190149

On appeal, appellant argues pursuant to United States v. Grostefon, 

(C.M.A. 1983) that he was prejudiced by the erroneous admission of the
polygraph evidence and that his defense counsel were ineffective for allowing such
evidence to be introduced. As discussed below, we disagree.*

II. LAW AND DISCUSSION

A. Kohlbek does not permit the introduction of the results of a polygraph
examination or the opinion of a polygraph examiner.

“Notwithstanding any other provision of law, the results of a polygraph
examination, the opinion of a polygraph examiner, or any reference to an offer to
take, failure to take, or taking of a polygraph examination, shall not be admitted into
evidence.” Mil. R. Evid. 707. Based on concerns about the scientific unreliability
of polygraph examinations, the “prohibition on evidence of the results of a
polygraph examination is the clear target of this rule, and the remaining prohibitions
are calibrated to exclude evidence that would permit panel members to infer, or
otherwise draw conclusions about, the results of a polygraph examination.”

. In Kohlbek, our superior court addressed only the third
category of evidence concerning “any reference to an offer to take, failure to take, or
taking of a polygraph examination,” and determined that despite the expansive
proscriptive language, that portion of the rule did not categorically prohibit the
admission of “evidence regarding the facts and circumstances surrounding a
polygraph examination to explain the reason or motivation for a confession.”

But neither Mil. R. Evid. 707 nor Kohlbek permits what happened at
appellant’s trial; that is, the admission of appellant’s polygraph results based on the
notion that the results themselves were relevant to explain the facts and
circumstances surrounding appellant’s polygraph examinations and his reasons or
motivations for providing a confession to SA BD. Evidence of the results of
polygraph examinations and opinions of polygraph examiners is still prohibited.
Indeed, we find the language of Mil. R. Evid. 707 concerning these first two
categories of evidence “susceptible to only a single interpretation,” thus “we apply
the rule as written.” 

(citing Hartford Underwriters Ins. Co.

 

(.. . continued)

purpose because the polygraph scientific reliability has not been established. As the
factfinders in this case, you alone determine the credibility of witnesses and whether
they are telling the truth.”

4 We have given full and fair consideration to appellant’s other personally asserted
matters. We find them to be without merit and worthy of neither discussion nor
relief.
SHARP—ARMY 20190149

v. Union Planters Bank, N.A., 

, 6 (2000)). All parties at appellant’s court-
martial apparently misinterpreted Kohlbek and Mil. R. Evid. 707 by allowing such
evidence to be presented to the members, even with a limiting instruction.

B. Appellant affirmatively waived any claim concerning the admission of the
polygraph evidence.

Having clarified what Kohlbek means and, more importantly, what it does not,
we address appellant’s claim that he was prejudiced by the admission of polygraph
evidence at his court-martial. Standing in his way, however, is the record, which
makes clear that he intentionally and knowingly relinquished any opportunity he had
to complain about the admission of such evidence. See United States v. Davis, 

, 331 (C.A.A.F. 2020) (quoting United States v. Gladue, 

, 313
(C.A.A.F. 2009)) (stating “waiver is the intentional relinquishment or abandonment
of a known right”) (internal quotation marks omitted). Here, the tailored polygraph
instruction originated with the defense counsel, and at no point in appellant’s court-
martial did he object to SA BD’s testimony or any of the exhibits introduced through
SA BD. Nor did he object to the military judge’s findings instructions that included
the polygraph instruction. Other than request that the military judge provide the
polygraph instruction during SA BD’s testimony, defense counsel did not demur to
the introduction of such evidence or how the panel members were instructed to
consider it. Simply put, this is not a case of silence or a mere failure to object;
rather, this is a case of contemplative speech and action. Accordingly, we find
appellant affirmatively waived this claim, leaving “no error for us to correct on
appeal.” Jd. (quoting United States v. Campos, 

, 332 (C.A.A.F. 2009)).°

C. Even assuming appellant merely forfeited his claim concerning the admission of
the polygraph evidence, we find he fails to establish prejudice.

Assuming appellant forfeited his claim, it is his burden under the plain-error
standard of review to demonstrate that there was error, that the error was clear and
obvious, and that the error resulted in material prejudice to his substantial rights.
United States v. Lopez, 

, 154 (C.A.A.F. 2017). In determining prejudice
resulting from an unpreserved nonconstitutional evidentiary error, as is the case
here, an appellant “must show a reasonable probability that, but for the error, the
outcome of the proceedings would have been different.” Jd. (quoting Molina-
Martinez v. United States, 

, 1343 (2016)); see United States v.

 

> Although our judgment in this case does not turn on the standard of review, we
note appellant’s concession that this issue was waived at trial. Notwithstanding,
appellant argues we should use our Article 66, UCMJ, authority to notice the waived
issue. (Appellant’s Br. 14) (“This is precisely the type of error this court should
notice, despite waiver by the trial defense counsel.”).
SHARP—ARMY 20190149

Tovarchavez, 

, 465 (C.A.A.F. 2019) (explaining where nonconstitutional
error is forfeited, the Molina-Martinez “effect-on-the-trial test” applies).

Case law from our superior court compels the conclusion that appellant has
met the first two prongs of plain-error review by showing that a clear and obvious
error occurred at trial by the admission of the results of his polygraph examinations.
See United States v. Clark, 

, 282 (C.A.A.F. 2000) (finding the military
judge committed a plain and obvious error by admitting into evidence a stipulation
of fact at the appellant’s guilty plea that stated the “appellant agreed to take a
polygraph test and that he failed the test”). In accordance with Clark, we likewise
find the military judge plainly erred by admitting the polygraph evidence in this
case.

Appellant fails, however, to show that the admission of the polygraph
evidence resulted in material prejudice. We reach this conclusion based on the
overwhelming evidence of appellant’s guilt, most of it supplied by his own words in
his confession. See Arizona v. Fulminante, 

, 296 (1991) (“A confession
is like no other evidence.”). The devastating effect of his admissions cannot be
overstated. He admitted to engaging in sexual intercourse with 1LT SV after she
told him to stop, that he was aware of her nonconsent, and that he did so because “it
felt good and [he] wanted to ejaculate.” Predictably, the government based its case
principally on appellant’s confession, not the results of his polygraph that indicated
deception. At no point in the government’s findings arguments did trial counsel
reference appellant’s polygraph results, much less ask the members to credit the
results. Finally, while we find that the polygraph evidence was admitted in error, we
note the military judge specifically instructed the panel not to consider the results
and that all members agreed they could follow that instruction. Absent evidence to
the contrary, we presume the members followed the military judge’s instructions.
United States v. Taylor, 

, 198 (C.A.A.F. 2000). The record reveals no
contrary evidence. Accordingly, we find appellant fails to establish material
prejudice and is therefore not entitled to relief.

D. Appellant’s defense counsel were not ineffective.

Appellant claims his defense counsel were ineffective by failing to object to
the polygraph evidence or, alternatively, by acquiescing in its admission. We review
this claim de novo. United States v. Harpole, 

, 236 (C.A.A.F. 2018)
(citing United States v. Captain, 

, 102 (C.A.A.F. 2016)). The Sixth
Amendment entitles criminal defendants to representation that does not fall “below
an objective standard of reasonableness” in light of “prevailing professional norms.”
Strickland v. Washington, 

, 688 (1984). To prevail on his claim, it is
appellant’s burden to demonstrate both “(1) that his counsel’s performance was
deficient, and (2) that this deficiency resulted in prejudice.” 

(quoting 

). We conclude appellant fails on both prongs.
SHARP—ARMY 20190149

On the performance prong, we presume counsel to be competent and our
inquiry into an attorney’s representation is “highly deferential.” 

. There is a “strong presumption that counsel’s conduct falls within the
wide range of professionally competent assistance.”

look at the
success of a criminal defense attorney’s trial theory, but rather whether counsel
made an objectively reasonable choice in strategy from the alternatives available at
the time.” United States v. Dewrell, 

, 136 (C.A.A.F. 2001) (citations
omitted).

On the prejudice prong, an appellant must demonstrate that “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” 

.

1. Appellant fails to establish deficient performance.

Addressing counsel’s performance, we do not find that it fell beneath the
constitutional floor of competency. Knowing appellant’s confession would be
admitted at the court-martial, and aware of the damaging effect it would have,
counsel selected an objectively reasonable strategy of lodging a broadside attack on
its reliability. He did so by thoroughly cross-examining SA BD, accusing him of,
among other things, manipulating appellant and making false promises in order to
produce a false or coerced confession.

Defense counsel marshaled the polygraph evidence as but one more
manipulative weapon in SA BD’s arsenal, which SA BD used against appellant to
create anxiety and produce an unreliable statement. In summation, defense counsel
argued the polygraph was “bogus science” and “just another tactic” employed by SA
BD to secure a false confession. Understanding that appellant’s confession was
going to be admitted, defense counsel reasonably concluded that evidence of
appellant failing a polygraph, and SA BD’s opinion of appellant’s honesty, was of
lesser concern than using all available evidence to challenge the reliability of the
confession. Indeed, he wanted the panel to believe that SA BD would have thought
appellant was lying regardless of the results of the polygraph because SA BD was
inappropriately biased in his investigation against appellant and already convinced
of his guilt. Finally, concerning the defense counsel’s proposed instruction, he was
apparently satisfied that the panel members would follow the military judge’s
instruction not to consider the results of appellant’s polygraph. This is reasonable
given the presumption that members know and follow the law as provided to them by
the military judge. See 

. In conclusion, while this case
presents an unusual set of facts, we do not find defense counsel’s performance
constitutionally intolerable.
SHARP—ARMY 20190149
2. Appellant fails to establish prejudice.

Assuming without deciding that appellant prevailed in demonstrating deficient
performance, his claim would still fail because he cannot establish prejudice. For
the reasons discussed above, specifically the overwhelming evidence against
appellant, there is no reasonable probability that the panel would have acquitted
appellant even if defense counsel had objected to—and kept out—the complained-of
polygraph evidence. See United States v. Kreutzer, 

, 300 (C.A.A.F.
2005) (“[O]verwhelming evidence of guilt may present an insurmountable obstacle
to an appellant claiming prejudice from ineffective assistance of counsel.”).

Because a failure on either prong precludes appellant from prevailing, we find
appellant is not entitled to relief.

CONCLUSION
The findings of guilty and the sentence are AFFIRMED.

Judges SALUSSOLIA and WALKER concur.
FOR THE COURT:
hh. tA

M COLM H. SQUIRES, JR.
Clerk of Court