CAAF decided the Army case of United States v. Tovarchavez, __ M.J. __, No. 18-0371/AR (CAAFlog case page) (link to slip op.), on Friday, May 31, 2019. A divided court concludes that any time an error is constitutional in nature – even if it was forfeited by the failure to object at trial and is reviewed on appeal under the plain error standard – reversal is required unless the error is harmless beyond a reasonable doubt. Non-constitutional errors, in contrast, need only be merely harmless to avoid reversal. Accordingly, CAAF reverses the decision of the Army CCA that affirmed the conviction by applying the mere harmlessness standard, and it also reverses the findings and sentence due to a Hills error.
Judge Ryan writes for the court, joined by Judges Ohlson and Sparks. Judge Maggs dissents, joined by Chief Judge Stucky.
CAAF granted review of a single issue:
Whether the Army Court erred, first, in finding that this Court overruled sub silencio the Supreme Court holding in Chapman v. California, 386 U.S. 18, 24 (1967), and this Court’s own holdings in United States v. Wolford, 62 M.J. 418, 420 (C.A.A.F. 2006), and in United States v. Hills, 75 M.J. 350, 357 (C.A.A.F. 2016), and, consequently, in testing for prejudice in this case using the standard for nonconstitutional error.
In 2015, Specialist (E-4) Tovarchavez was tried by general court-martial for sexually assaulting another soldier on two occasions. The military judge instructed the members that they could use the charged offenses as evidence of Tovarchavez’s propensity to commit the charged offenses (the Hills error), and the defense did not object to the instruction. Tovarchavez was then convicted of one of the two charged offenses and sentenced to confinement for two years, reduction to E-1, total forfeitures, and a dishonorable discharge.
An error is when something is done wrong at trial. As a general rule, errors can be preserved, forfeited, and waived. An error is preserved by a timely objection, it is forfeited by the failure to object, and it is waived when the accused knowingly and intentionally relinquishes the underlying right (or when a rule makes the failure to assert the right a waiver). At the two extremes, an accused is entitled to relief from a preserved error, and a waiver means that there is no error. Forfeited errors are in the middle, and they are reviewed using the plain error test. The plain error test penalizes the accused (who failed to object at trial) by requiring on appeal that he show that there (1) was an error, (2) that is plain or obvious, and (3) that caused material prejudice to a substantial right.
Identifying prejudice, however, is a key component of appellate review. Early American courts – applying English common law rules – would reverse a conviction (and authorize another trial) for any error. Congress eventually enacted rules that permitted reversal only where the error affected substantial rights, creating the harmless error doctrine. Under the harmless error doctrine, a conviction may be affirmed despite almost any kind of error at trial if the error is found to be harmless. See Fed. R. Crim. Proc. 52. See also Stephen A. Saltzburg, The Harm of Harmless Error, 59 Va. L. Rev. 988, 1006 n.57 (1973) (discussing 28 U.S.C. § 2111 as identical to language first enacted in 1911).
Congress explicitly incorporated the harmless error doctrine into military law in Article 59(a), which states:
A finding or sentence of a court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused.
The harmlessness of an error (or the existence of prejudice) is a separate consideration from whether an error was preserved, forfeited, or waived, and it involves separate tests. An ordinary error is harmless “if the factfinder was not influenced by it, or if the error had only a slight effect on the resolution of the issues of the case.” United States v. Muirhead, 51 M.J. 94, 97 (C.A.A.F. 1999). But if the error affects a constitutional right, then a heightened standard applies: the error must be harmless beyond a reasonable doubt and an “error is not harmless beyond a reasonable doubt when there is a reasonable possibility that the error complained of might have contributed to the conviction.” United States v. Hills, 75 M.J. 350, 357 (C.A.A.F. 2016) (quoting Chapman v. California, 386 U.S. 18, 24 (1967)) (additional citation omitted).
Chapman was a hugely important case in the area of harmless error because it held that even constitutional errors (in that case it was commenting on the accused’s failure to testify) can be harmless, but only if the error meets the higher standard of harmlessness beyond a reasonable doubt. The facts and procedural posture of Chapman are very similar to those of Tovarchavez: Both cases involve constitutional error with no objection at trial and a post-trial change in the law that clarified that the error was actually an error, and in both cases the lower court applied mere harmlessness to affirm the conviction.
Specifically, when it reviewed the improper use of charged offenses for propensity purposes (the Hills error) in Tovarchavez, the Army CCA applied the mere harmlessness standard (used for nonconstitutional errors) rather than the harmless-beyond-a-reasonable-doubt standard (used for constitutional errors like a Hills error). Writing for a two-judge majority of a three-judge panel of the CCA, Judge Wolfe held that:
the appropriate prejudice analysis for unpreserved error–even error of a constitutional magnitude–is whether the error [merely] materially prejudiced the substantial rights of appellant.
United States v. Tovarchavez, No. ARMY 20150250, slip op. at 10 (A. Ct. Crim. App. July 19, 2018) (link to slip op.). Then the majority found the error harmless (though not harmless beyond a reasonable doubt):
Given the strength of the evidence . . . we fail to find a material prejudice to any of appellant’s substantial rights. . . .
But to the extent we are wrong, we have also considered whether the evidence is strong enough to convince us that the error was harmless beyond a reasonable doubt. . . . We are not convinced.
Tovarchavez, slip op. at 14. Senior Judge Campanella dissented, castigating “the majority [for] creat[ing] a dispute where there is none between the parties,” slip op. at 18, while “agree[ing] with the majority’s assessment that the instructional error here was not harmless beyond a reasonable doubt,” slip op. at 19. CAAF then granted review.
In Friday’s opinon a majority of CAAF concludes that regardless of whether an error is preserved or forfeited, if the error is constitutional in nature then reversal is required unless the error is harmless beyond a reasonable doubt.
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