On Wednesday CAAF granted review of an Army case questioning the appropriate standard for determining whether a Hills error is harmless:

No. 18-0371/AR. U.S. v. Juventino Tovarchavez. CCA 20150250. 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:


Briefs will be filed under Rule 25

Specialist Tovarchavez was charged with 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. 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.

The Army CCA issued two opinions in this case. The first (available here) was issued on September 7, 2017, and found the Hills error to be harmless. But the CCA also ordered a DuBay hearing to consider a claim of ineffective assistance of counsel. After the DuBay hearing, the CCA issued a second opinion (available here) that reconsidered the Hills error, leading to CAAF’s grant.

Because Tovarchavez’s defense counsel didn’t object (and, in fact, affirmatively stated that the defense had no objection) to the improper propensity instruction, the error was forfeited and the plain error test applies. The plain error test penalizes the failure to object by shifting the burden on appeal to the appellant, forcing him to show that there (1) was an error, (2) that is plain or obvious, and (3) that caused material prejudice to a substantial right.

The requirement of material prejudice to a substantial right is not unique to the plain error test. Article 59(a) states that:

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.

Put differently, if a legal error is harmless then the conviction may not be reversed. How harmless, however, depends on the error. For an ordinary error, mere harmlessness is enough; the error is not prejudicial (and the conviction may not be reversed) “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 is prejudicial unless it is 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.” Hills, 75 M.J. at 357-58 (marks and citations omitted).

In the second opinion in Tovarchavez, Judge Wolfe wrote for a majority of a three-judge panel and observed that when CAAF considered whether a Hills error is harmless in the Hills trailer cases of United States v. Guardado, 77 M.J. 90 (C.A.A.F. Dec. 12, 2017) (CAAFlog case page), and United States v. Williams, 77 M.J. 459 (C.A.A.F. Jun. 27, 2018) (CAAFlog case page), it considered the error from the perspective of prejudice, not harmlessness:

Notably, in both Guardado and Williams the court omitted the second burden shift that had been articulated in Paige and Carter. That is, in neither case did the court ask whether the error was harmless beyond a reasonable doubt. Indeed, in Williams, the court explicitly stated a prejudice analysis that is based on Article 59(a), UCMJ: “Having found error, we must determine whether such error prejudiced Appellant’s substantial rights.” Id. at *8.

Slip op. at 8. The burden-shift Judge Wolfe referenced is the requirement that – in the plain error context – once the appellant meets his burden to show prejudice from a constitutional error, then the burden shifts back to the government to show that the error was harmless beyond a reasonable doubt. Judge Wolfe highlighted (quite rightly, I think) that this burden shift creates an impossibility:

As a matter of logic, if appellant has established material prejudice to a substantial right, how could the government ever be able to show that the error was harmless beyond a reasonable doubt? On appeal, an error in a case cannot simultaneously: 1) materially prejudice appellant’s rights; and 2) be harmless beyond a reasonable doubt.

Slip op. at 6. Not stated, however, is something that I think is also true: an error cannot simultaneously cause material prejudice and be merely harmless.

Grappling with all of that, Judge Wolfe concluded that:

In light of Guardado, Robinson, and Williams, we understand that the appropriate prejudice analysis for unpreserved error–even error of a constitutional magnitude–is whether the error materially prejudiced the substantial rights of appellant. Article 59(a), UCMJ. That is, if appellant meets his burden of establishing plain error, the inquiry ends and we are not required to reach the question of whether the error was harmless beyond a reasonable doubt.

Slip op. at 10. Then, considering the Hills error in this case, Judge Wolfe found that:

Given the strength of the evidence, and the lack of significant argument or discussion regarding propensity, we fail to find a material prejudice to any of appellant’s substantial rights. Indeed, the absence of any propensity argument (by the trial counsel) and the lack of objection by appellant, is indicative of the small degree that propensity evidence and the erroneous instruction played at this trial.

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 do this for purposes of transparency, and so that our superior court can make quick work of this opinion if we have erred. We are not convinced. While the evidence is strong, and the verdict has our full confidence, there is a wide gulf between testing for plain error and testing for constitutional harmlessness.

Slip op. at 14 (emphasis added). Put differently, there was error that is plain or obvious, but it did not cause material prejudice. Nevertheless, the error is not harmless beyond a reasonable doubt. The error is – at best – merely harmless.

Senior Judge Campanella dissented, rejecting Judge Wolfe’s conclusion that the court need not determine if the error is harmless beyond a reasonable doubt and concluding that the error is not so harmless (and reversal is required):

The CAAF has not overturned Wolford, Harcrow, or Sweeney with respect to the requirement that the government prove a forfeited error of constitutional dimension was harmless beyond a reasonable doubt. We therefore are bound by them.

Indeed, despite the clarity the majority professes to read into CAAF’s purported assertion of mere harmlessness, in both Guardado and Williams the CAAF concludes they are not convinced the error “played no role” in each appellant’s convictions to particular charges. Guardado, 77 M.J. at 94-95 (“Although it is certainly possible that the members convicted Appellant based solely on the testimony of his accusers, we are not convinced that the erroneous propensity instruction played no role in Appellant’s conviction.”); Williams, __ M.J. __, 2018 CAAF LEXIS 365, at *9 (“First, with respect to the offense alleged in Charge I, we are not convinced that the erroneous propensity instruction played no role in Appellant’s conviction.). To require an error play no role in a conviction is to require the error be harmless beyond a reasonable doubt.

As I would apply the burden that the government prove the instructional error was harmless beyond a reasonable doubt, I respectfully dissent and would set aside appellant’s convictions and authorize a rehearing.

Slip op. at 20 (Campanella, S.J., dissenting).

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