CAAF will hear oral argument in the Army case of United States v. Tovarchavez, No. 18-0371/AR (CAAFlog case page), on Wednesday, February 20, 2019, at 9:30 a.m. A single granted issue challenges the standard applied by the Army CCA when it affirmed a sexual assault conviction after concluding that the improper use of charged offenses for propensity purposes – a constitutional error identified by CAAF in United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page) – was harmless but not harmless beyond a reasonable doubt:
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.
Specialist (E-4) 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. But the requirement of material prejudice to a substantial right is not unique to the plain error test in military law; 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 a court-martial 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).
A Hills error is constitutional error. Nevertheless, in the CCA’s second opinion in Tovarchavez, a two-judge majority of a three-judge panel of the Army CCA applied the lower standard of mere harmlessness (and not the higher standard of harmlessness beyond a reasonable doubt) to that error, in part because the error was forfeited by the failure to object at trial. The majority found the error harmless and affirmed the conviction, but it also explained that the error was not harmless beyond a reasonable doubt. Accordingly, the outcome of the case hinges on which standard of harmlessness applies.
Tovarchavez’s brief presents two simple propositions: “the Supreme Court[‘s] decision in Chapman v. California . . . established harmless beyond a reasonable doubt as the test for prejudice when constitutional error was not preserved at trial,” and “the Supreme Court also forbade lower courts from departing from the test announced in Chapman in favor of a competing definition of harmless error.” App. Br. at 7. Accordingly, argues Tovarchavez, the applicable standard for harmlessness is harmlessness beyond a reasonable doubt and only the Supreme Court can change that.
The Government Divison’s brief asserts that the law is not so clear.
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