Opinion Analysis: Rejecting a CCA’s claim of an exception to Hills, CAAF expresses concern about application of its precedent, in United States v. Williams
CAAF decided the Army case of United States v. Williams, 77 M.J. 459, No. 17-0285/AR (CAAFlog case page) (link to slip op.), on Wednesday, June 27, 2018. In this Hills trailer case involving the improper use of charged offenses for propensity purposes, CAAF holds that the Army CCA wrongly held that the circumstances involve an exception to Hills. The court reverses convictions of rape and forcible sodomy, affirms other convictions, and authorizes a rehearing.
Chief Judge Stucky writes for a unanimous court.
In 2013, Sergeant (E-5) Williams was convicted of raping his first wife (Charge I), and forcibly sodomizing and battering his second wife (Charges II and III), by a general court-martial composed of members with enlisted representation. Before trial, the prosecution gave notice of its intent to use the charged sexual offenses against each wife as evidence of Williams’ propensity to commit the charged offenses against the other wife; a tactic that was somewhat common in military practice at the time but that CAAF later held to be improper, in United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page).
Williams’ defense counsel filed a motion to preclude the prosecution from using the charged offenses for propensity purposes. “[T]he military judge questioned the ripeness of the issue, signaled that the proper time to address the issue would be when discussing panel instructions, and did not then explicitly rule on the motion.” Slip op. at 4. At trial, however, the defense did not renew its objection, and a different military judge instructed the panel that it could use the charged rapes (Charge I) as evidence of Williams’ propensity to commit the charged forcible sodomy (Charge II), and also that:
You may also consider the evidence of such other acts of sexual assaults for its tendency, if any, to show the accused’s propensity or predisposition to engage in sexual assault.
Slip op. at 5 (quoting record). Williams was convicted. On appeal the Army CCA affirmed the convictions, concluding that “this case is an exception to Hills.” United States v. Williams, No. 20130582, slip op. at 2 (A. Ct. Crim. App. Jan 12, 2017) (link to slip op.). The CCA reasoned:
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.
CCA op. at 2 (emphasis in original). Put differently, the CCA concluded that the propensity instruction only allowed the members to use Charge I to prove Charge II, and since Williams was convicted of Charge I first, the facts of that charge were properly used to prove Charge II.
CAAF wholly rejects the CCA’s reasoning in yesterday’s opinion, with Chief Judge Stucky expressing concern that “this is the third case in which we have had to correct a Court of Criminal Appeals’ judgment on this issue,” slip op. at 1-2, and that “in the wake of Hills, our lower courts have attempted to impermissibly narrow that holding by carving out exceptions that run contrary to an accused’s presumption of innocence,” slip op. at 6.
The CCA’s reasoning is rejected in two ways.
First, CAAF rejects the CCA’s holding that “the propensity instruction flowed in only one direction,” and that “the members convicted Appellant of the Specification of Charge I without reliance on propensity evidence.” Slip op. at 6 (quoting CCA op). Chief Judge Stucky explains that the instruction given by the military judge was more broad than that:
This characterization distorts the military judge’s instruction, and conveniently overlooks the portion of the instruction that explicitly allowed panel members to “also consider the evidence of such other acts of sexual assault” for propensity purposes. (Emphasis added.) Under a plain reading of the entirety of the military judge’s instruction, we conclude that the panel members could have reasonably interpreted such guidance to allow them to consider evidence of Charge II for its bearing in relation to Charge I. Accordingly, we hold that Appellant’s conviction of the Specification of Charge I was not immune from the erroneous propensity instruction that tainted the specifications of Charge II.
Slip op. at 7.
Second, CAAF “reject[s] the CCA’s conclusion that Appellant’s case falls within an exception to Hills.” Slip op. at 7. The CCA found an exception based on its conclusion that propensity evidence was not used to prove Charge I, meaning that it was independently proven beyond a reasonable doubt and therefore properly used to prove Charge II. Chief Judge Stucky explains that this reasoning is flawed for two reasons:
First, for the reasons outlined above, we dispute the conclusion that the Specification of Charge I was necessarily free from taint.
Second, the CCA’s logic assumes we know the order in which the panel voted on the charged offenses. However, a panel’s deliberations are inherently mysterious, and we are not in a position to know how members reach their decisions. . . . This is especially true where, as in this case, the military judge advised the members that “[t]he order in which the specifications are to be voted on should be determined by the president subject to objection by the majority of the members.” In accordance with the military judge’s instructions, nothing barred the members from first voting on the specifications of Charge II, relying in part on erroneous propensity evidence, before turning their attention to the Specification of Charge I.
Slip op. at 8 (paragraphing added).
Accordingly, the propensity instruction was error. Plain error too, as Chief Judge Stucky explains that “as Appellant’s motion in limine was not yet ripe and he did not renew his objection when afforded the opportunity to do so, we review for plain error.” Slip op. at 5. But “given our holding in Hills, such instruction, although not error at the time of trial, is undeniably clear and obvious error at the time of appeal.” Slip op. at 6.
Having found error, CAAF turns to prejudice. Williams was convicted of five specifications of sexual offenses: one specification of rape (on divers occasions) and 4 specifications of forcible sodomy. Considering the evidence supporting those five convictions, CAAF finds it insufficient to render the Hills error harmless beyond a reasonable doubt for every conviction except one:
While we adopt the CCA’s finding that both TW and SW [the wives] provided credible testimony concerning the abuse they each suffered at the hands of Appellant, their accounts were largely uncorroborated by eyewitness testimony or any conclusive documentary or physical evidence. Absent any supporting evidence, we simply cannot be certain that the erroneous propensity instruction did not taint the proceedings or otherwise contribute to the defendant’s conviction or sentence. . . .
However, Specification 1 of Charge II is not plagued by the same deficiency, at least in part. With respect to the night SW ended up in the hospital, the Government introduced photographs of the door Appellant kicked in on SW’s head as well as photographs of SW’s wounds. A neighbor and a police officer bore witness to her distraught demeanor and injuries. Moreover, Appellant issued a sworn statement that, though silent on the issue of sodomy, largely confirmed and supported SW’s story. With the benefit of this corroborating evidence, we are confident that Appellant committed sodomy with SW by force and without her consent that evening.
Slip op. at 9 (marks and citation omitted). CAAF therefore affirms one of the forcible sodomy convictions and also the battery convictions because Williams “has not challenged his convictions for the assaults consummated by a battery he perpetrated against SW.” Slip op. at 9. A rehearing on the reversed convictions is authorized “to the extent that the charge and specification are not barred by the statute of limitations.” Slip op. at 10 (citing United States v. Mangahas, 77 M.J. 220 (C.A.A.F. 2018) (CAAFlog case page)) (additional citations omitted).
• ACCA decision (first decision / pre-Hills) (75 M.J. 621)
• Blog post: ACCA overturns pesky precedent
• Blog post: CAAF reverses
• ACCA opinion
• Blog post: CAAF grants
• Appellant’s brief
• Appellee’s (Army Gov’t App. Div.) answer
• Appellant’s reply brief
• Blog post: Argument preview
• Oral argument audio
• CAAF opinion
• Blog post: Opinion analysis