Last year, before CAAF’s blockbuster decision in United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page) (our #3 Military Justice Story of 2016), the Army CCA decided United States v. Williams, 75 M.J. 621 (A. Ct. Crim. App. Feb. 29, 2016) (discussed here).

In Williams the CCA overruled its own 2006 published decision that required certain instructions when propensity evidence was admitted under Mil. R. Evid. 413/414. Those mandatory instructions were problematic in cases where charged offenses were used for propensity purposes (the practice CAAF later prohibited in Hills). The CCA abandoned the instructions in Williams, but did not mandate any particular replacement.

CAAF then granted review in Williams (discussed here) and summarily reversed (discussed here) in light of Hills.

The CCA affirmed the case again, and now it’s headed back to CAAF.

In an unpublished opinion in United States v. Williams, No. 20130582 (A. Ct. Crim. App. Jan 12, 2017) (link to slip op.), a three-judge panel of the CCA again reviewed convictions of rape and forcible sodomy where the military judge instructed the members that they could use evidence of the alleged rape to show propensity to commit the alleged forcible sodomy. The military judge did not, however, instruct the members that they could use evidence of the alleged forcible sodomy to show propensity to commit the alleged rape.

The CCA found these facts to involve an exception to Hills:

This case is distinguishable from Hills in that the propensity instruction flowed in only one direction. That is, while the judge allowed the panel to consider appellant’s commission of the offense in the Specification of Charge I “for its bearing on any matter to which it is relevant in relation to the forcible sodomy alleged in Charge II,” no instruction was given that allowed the panel to consider propensity evidence from Charge II when determining appellant’s guilt to the single specification of Charge I. Appellant was convicted of the Specification to Charge I without reliance on propensity evidence. In other words, appellant was convicted of the Specification of Charge I, beyond a reasonable doubt, without any reliance or taint stemming from propensity.

Thus, as an initial matter, the Specification of Charge I is entirely unaffected by Hills. When deliberating on evidence with regards to the Specification of Charge I, the panel was not allowed to consider propensity. Additionally, with regards to the forcible sodomy specifications contained in Charge II, the only propensity evidence the panel was allowed to consider stemmed from a specification that had been independently proven beyond a reasonable doubt.

In Hills, the CAAF distinguished that case from the case of People v. Villatoro, 281 P.3d 390, 400 (Cal. 2012). In Villatoro, a propensity instruction stemming from charged offenses was permissible because the offense had to first be proven beyond a reasonable doubt. This, in the CAAF’s view, avoided the concerns about eroding the presumption of innocence. Or stated differently, there is no erosion in the presumption of innocence when an offense is first proven beyond a reasonable doubt.

Accordingly, this case is an exception to Hills, an exception specifically anticipated by the CAAF in that case. Hills at 357; See also United States v. Guardado, 75 M.J. 889, 896 n. 9 (Army Ct. Crim. App. 2016) (noting possible exception to Hills when an offense is first proven beyond a reasonable doubt). We find beyond a reasonable doubt that the error, under the circumstances of this case, was harmless and did not contribute to appellant’s conviction or sentence.

Slip op. at 2-3 (emphases in original).

On Monday CAAF granted review:

No. 17-0285/AR. U.S. v. Gene N. Williams. CCA 20130582. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRONEOUSLY FOUND THAT THE PROPENSITY INSTRUCTION GIVEN IN THIS CASE FALLS WITHIN AN EXCEPTION TO THE HOLDING IN UNITED STATES v. HILLS, 75 M.J. 350 (C.A.A.F. 2016).

Briefs will be filed under Rule 25.

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