CRAWFORD, J., delivered the opinion of the Court, in which COX, C.J., and SULLIVAN, GIERKE, and EFFRON, JJ. joined.

For Appellant: Captain Donald P. Chisholm (argued); Colonel John T. Phelps, II, Lieutenant Colonel Adele H. Odegard, and Captain Kirsten V. Campbell-Brunson (on brief); Major Holly S. G. Coffey and Captain Paul Fiorino.

For Appellee: Captain Daniel G. Brookhart (argued); Colonel Russell S. Estey, Lieutenant Colonel Eugene R. Milhizer, Major Patricia A. Ham (on brief); Captain Troy A. Smith.

Military Judge: Keith H. Hodges

Judge CRAWFORD delivered the opinion of the Court.

Contrary to his pleas, appellant was convicted of 2 specifications of rape, 3 specifications of committing indecent acts with a child, 1 specification of taking indecent liberties with a child, and 1 specification of forceful sodomy of a child, in violation of Articles 120, 134, and 125, Uniform Code of Military Justice, 10 USC §§ 920, 934, and 925, respectively. The convening authority approved the sentence of a dishonorable discharge, 30 years' confinement, and reduction to the lowest enlisted grade. The Court of Criminal Appeals affirmed without opinion. We granted review of the following issues:

Appellant contends that the military judge should have sua sponte declared "a mistrial when the prosecutor repeatedly asked questions relating to the victim’s credibility and improperly elicited uncharged misconduct evidence from Dr. Ellen Speyer." Final Brief at 4.

It was clear from the onset of trial that the military judge was aware of and sensitive to the limitations surrounding expert testimony in sexual abuse cases concerning stress syndromes. Before the members heard any evidence, the military judge repeatedly cautioned counsel against improper indications or questioning designed to show impermissibly that this victim was credible. Those cautions, as well as assurances by trial counsel, follow:

When trial counsel asked Dr. Speyer how K’s "treatment progressed," Dr. Speyer responded, "Okay. [K] and her mother both verbalized a lot of concern. They talked about threats being made by the accused perpetrator against the family."

Defense counsel made a general objection which was sustained on the basis of hearsay. The military judge directed the members to disregard the testimony.

At the request of defense counsel, an Article 39(a) session was held, where the following transpired:

Although the military judge made strong reference to the potential for a mistrial after findings and before sentencing, defense counsel did not request a mistrial at any point in the proceedings. This fact was not lost on the military judge:

Declaration of a mistrial and prosecutorial misconduct must be viewed through the prism formed by the Double Jeopardy Clause of the Fifth Amendment; Article 44(a), UCMJ, 10 USC § 844(a); and RCM 915, Manual for Courts-Martial, United States (1998 edition).

The Constitution, the Code, and the Manual protect the accused against improper retrials. The Double Jeopardy Clause provides: "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb...." Article 44(a) provides that "[n]o person may, without his consent, be tried a second time for the same offense."

Relying in part on Supreme Court precedent^*/ -- see, e.g., Oregon v. Kennedy, 456 U.S. 667 (1982); Arizona v. Washington, 434 U.S. 497 (1978); United States v. Dinitz, 424 U.S. 600 (1976) -- RCM 915(a) sets forth that a mistrial may be declared in the discretion of the military judge "when such action is manifestly necessary in the interest of justice because of circumstances arising during the proceedings which cast substantial doubt upon the fairness of the proceedings." Declaration of a mistrial is, however, "a drastic remedy" which should be used only when necessary "to prevent a miscarriage of justice." United States v. Garces, 32 MJ 345, 349 (CMA 1991). A military judge’s determination on a request for mistrial, or on his own sua sponte consideration of a mistrial, will not be reversed "absent clear evidence of abuse of discretion." United States v. Rushatz, 31 MJ 450, 456 (CMA 1990); United States v. Jeanbaptiste, 5 MJ 374, 376 (CMA 1978).

The Double Jeopardy Clause and the Code are designed to protect the accused against repeated attempts to try an individual for the same offense, including subjecting the accused to the embarrassment, expense, and ordeal of a second trial. With this in mind, the judge should examine numerous factors in deciding whether to grant a mistrial, including the timing of the incident leading to the question of mistrial, the identity of the factfinder, the reasons for a mistrial, and potential alternative remedies; but, most importantly, the desires of and the impact on the defendant. United States v. Donley, 33 MJ 44, 47 (CMA 1991). The defendant "retain[s] primary control over the course to be followed in the event of" trial errors. Dinitz, 424 U.S. at 609.

This is not an instance where the defense alleges a "Hobson's choice" between retrial and unfairness at the first trial because of intentional or egregious misconduct by the prosecutor. See id. at 609. The military judge demonstrated his keen sensitivity to improper credibility testimony. He repeatedly warned counsel and received assurances that counsel was aware of the limitations. Yet, in at least four instances trial counsel ventured into the area of improper credibility evidence.

Obviously, trial counsel gave the military judge pause to consider the option of a mistrial despite the absence of a request from the defense: "[Y]ou’re so damn close to a mistrial, that you’re about to try [this case] all over again if you want to." Under these circumstances, the military judge ultimately determined that he could rely upon the various cautionary or limiting instructions he gave the members during trial, and his closing instructions which once again emphasized that credibility was the determination of the members.

The frequency of the warnings should have caused the Government to be vigilant with each and every witness. Yet evidence of that vigilance is lacking. The frequency of the incursions into improper areas is somewhat remarkable under these circumstances. Fortunately, the military judge was vigilant. Proper limiting instructions, along with the presumption that the members followed those instructions, eliminated the risk of harm from this improper credibility evidence. United States v. Skerrett, 40 MJ 331, 333-34 (CMA 1994).

Similarly, the military judge corrected the error from the improper evidence of threats. The evidence was never admitted or considered as proper "other acts" evidence. See Mil. R. Evid. 404(b), Manual, supra. The military judge told the members to disregard the comment about threats as hearsay, and he explained that hearsay denied the appellant an opportunity to confront the allegations of threat. It is presumed that the members followed this instruction. We conclude that there is no prejudicial error in the manner in which the military judge dealt with the evidence of alleged threats made by appellant.

This is not a case where the errors went unnoticed or uncorrected at the time they occurred. The military judge maintained control over the entire proceedings, and thereby caught and took corrective action when inadmissible credibility and uncharged misconduct evidence was improperly broached by trial counsel.

Thus, we hold that the judge did not abuse his discretion by not sua sponte declaring a mistrial. We further hold that the corrective action taken by the military judge assured appellant a fair trial, especially in light of appellant’s expressed desires.

The decision of the United States Army Court of Criminal Appeals is affirmed.

FOOTNOTE:

*/ See Manual, supra at A21-61.