In United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page), a unanimous CAAF held that charged offenses may not be used under Mil. R. Evid. 413 to prove an accused’s propensity to commit the charged offenses, and also that the standard instruction given to members regarding how to handle such propensity undermines the presumption of innocence.

Last week, in United States v. Hukill, No. 20140939 (A. Ct. Crim. App. Aug. 16, 2016) (link to slip op.), the Army CCA held that CAAF’s decision in Hills does not apply to a judge-alone trial:

This case is far different than Hills as appellant elected to be tried by a military judge sitting alone. Although the military judge earlier in the proceeding ruled that the government could use propensity evidence in a manner found to be in error in Hills, this ruling became moot by virtue of appellant’s election for a bench trial. We do not share appellant’s concern that his “presumption of innocence” was somehow eroded by the military judge’s consideration of propensity evidence. “Military judges are presumed to know the law and to follow it absent clear evidence to the contrary.” United States v. Erickson,” 65 M.J. 221, 225 (C.A.A.F. 2007) (citing United States v. Mason, 45 M.J. 483, 484 (C.A.A.F. 1997)). We are satisfied that his view on the admissibility of propensity evidence under Mil. R. Evid. 413 was harmless beyond a reasonable doubt. We find no risk that the military judge would apply an impermissibly low standard of proof concerning both the presumption of innocence and the requirement that the prosecution prove guilt beyond a reasonable doubt. Simply put, we find nothing in the record to suggest that the military judge did not hold the government to its burden of proving appellant’s guilt beyond a reasonable doubt, or that the military judge applied a lesser standard in adjudicating the charges against the appellant.

Slip op. at 3.

Thanks to our reader for the tip.

11 Responses to “The Army CCA finds CAAF’s decision in Hills does not require reversal in judge-alone trials”

  1. A Random JAG says:

    I don’t get this decision – the fact that the MJ found that the charged offenses could be used as propensity evidence against each other shows that the judge in fact did not know the law and did not follow it correctly.  Or, to put it more mildly, he erred when he ruled for the Government on the 413 issue.
    Doesn’t mean the appellant can’t get relief; if the error was harmless beyond a reasonable doubt then the conviction stands.  And i guess the appellate court kind of gets there when it says that the judge’s “view” of MRE 413 was harmless beyond a reasonable doubt.  But this is close to a per-se rule that in a military-judge alone trial, this kind of error is always harmless.
    Yet another reason to always ask for special findings in a judge-alone case.  Maybe it comes out differently if you had the judge find that he in fact used the victims as propensity evidence against each other and it was a significant fact in his decision.

  2. Bill Cassara says:

    If anything, the fact that “military judges are presumed to know the law” is an even greater reason for reversal. The judge said he would consider the evidence.  He did. He was wrong.

  3. Muad'Dib says:

    Obviously, MJs are presumed to know the law immediately following an erroneous application of that law.

  4. k fischer says:

    Alice says, “…that’s not a regular rule: you invented it just now.”
    “[Rule 42]’s the oldest rule in the book,” said the King.
    “Then it ought to be Number One,” said Alice.

    Sounds to me like ACCA’s belief that the military judge is presumed to know the law is the equivalent to when panel members nod in agreement when the military judge asks them if they all agree that the Accused is presumed to be innocent of all the offenses.
    And the presumption that a military judge knows the law and follows it is rebutted by “clear evidence to the contrary.”  So, ACCA inherently is saying that the ruling by the Military Judge that a panel could consider 413 evidence is not clear evidence that the Military Judge did not know the law, or, worse yet, actually knew the law, but refused to follow the law?  How much clearer can the evidence be when there is a written ruling that is clearly in contravention of the law???????
    Oh, and I really start to questioning the reasoning when ACCA fails to include ANY of the facts from the trial.  How strong was the evidence?  Well, apparently the Judge looked at it and were convinced that his ruling would not have affected his deliberations.  Considering the irreconcilable statements regarding the presumption to know the law vs. the ruling that went against the law, I’m not quite sure that I trust their judgment.  I would like to know a few of the facts.
    The significant difference between Hills and Hukill is not the selection of forum, either.  I would imagine that the most significant difference is that Hills involved one vic and Hukill involved two vics.

  5. Dew_Process says:

    Well,now. Here’s a timely piece from Dean Vikram David Amar the ponders, “Keeping Appellate Courts Honest” which you can read HERE. 

  6. Michael Lowrey says:

    k fischer, ACCA’s ruling here was on reconsideration. The court didn’t address the Hills issue in its original ruling though it had been raised as a Grostefon claim. The court’s original August 9 ruling, which rejected an IAC claim, does lay out the facts of the case. ACCA concluded that:

    The victims, AB and HG, testified credibly about the crimes appellant committed against them. CC testified to appellant’s acknowledgement that he had relations with AB, which also served to undermine appellant’s testimony on direct that no physical contact had occurred. Appellant acknowledged to both CC and CID most of the facts surrounding the offense against HG. With CC, he also acknowledged “comforting” HG, further corroborating physical contact with her. We are convinced beyond a reasonable doubt that that the appellant took this opportunity-with a naked or largely naked, vulnerable, intoxicated woman-to sexually assault her. The government’s case was compelling. Consequently, appellant has not presented us with a reasonable probability of a different result.


  7. Contract Lawyer says:

    Could the accused argue that the prejudice is that he was going to request a panel, but requested judge alone as mitigation against the improper ruling by the MJ. 

  8. anon says:

    Part of the issue, from my perspective, is how decision was drafted (with understanding that the issue was raised circuitously).  In considering the instructional error and 413 error in Hills the CAAF was concerned about the panel using an improper standard of proof for conviction based upon the instructional error and accordingly tested for error using the constitutional standard. While ACCA cites to the general proposition that a judge is presumed to know and apply the law and does not believe that the judge applied a lower standard of proof, ACCA then cites to the constitutional standard for testing for error (presumably acknowledging that the 413 error was of such gravity as to reach constitutional dimensions).  Arguably if ACCA was looking to T-Ball the issue for CAAF, they simply should have cited the non-constitutional standard for evidentiary error.

  9. Michael Lowrey says:

    Contract Lawyer, maybe, but the accused would have to show that the decision to proceed judge alone was based upon that improper ruling and not for some other reason. Hukill’s original main argument on appeal was IAC, that DC didn’t adequately defend him, didn’t meet with him very often, and didn’t prepare him for cross-examination. Arguing that the defense had it together enough to make a choice of forum based upon this incorrect ruling kind of goes against those claims.

  10. k fischer says:

    Good point.  Thanks for the correction.
    So, I read the facts and it sounds like an ex-girlfriend teamed up with her two drinking buddies who accused Hulkill of sexual assault.  Hulkill took the stand and denied any sexual contact with AB, and denied in a statement to CID that made it into the record that he did anything sexual with the other friend.  The only thing that corroborated the alleged vic’s statements was the ex-girlfriend.  It doesn’t sound like there was any physical evidence, but rather there were two late reports to the ex-girlfriend, which were denied by Hulkill under oath.  Don’t know how compelling that is as it could be a vindictive false allegation orchestrated by an ex-girlfriend and her friends.
    I’d like to read the Appellant’s brief to see any other facts not mentioned in the opinion to see how compelling the Government’s case was.  Not so sure how much IAC traction he could get for counsel “failing to prepare him” for cross examination.  Although, I would posit that defense counsel should know prior to trial whether or not the accused is going to testify and be prepared to call him if that decision is made before the trial.  I think Larry Pozner said that if the only way you think you can win your case is by a mid-trial decision to call your client to the stand, then your case is in big trouble.  I think he also said to never waive opening statement. 

  11. Android2 says:

    I wonder what this means for U.S. v Sgt Arturo Tafoya cause that case is getting sent back to ACCA after Caaf set aside the decision. Suppose to be in light of Hills, but Tafoya choose judge alone as well.