United States v. Sergeant ELIAS J. DUARTE
ARMY 20140843
| A.C.C.A. | Jan 30, 2017Background
- Appellant (Sgt. Elias J. Duarte) was convicted at a general court-martial of two specifications of sexual assault against Mrs. AM occurring on the same night; panel sentenced him to a dishonorable discharge, six years confinement (four approved), forfeiture, and reduction to E-1.
- On the night in question Mrs. AM had been heavily drinking, fell asleep in her bedroom, and later awoke to sexual contact; she identified appellant as the assailant after feeling him in bed and later in the living room.
- Forensic biology testing revealed DNA consistent with Mrs. AM on swabs from appellant’s left hand; the expert testified the quantity could reflect biological fluid or heavy touch transfer (touch DNA was a possible explanation).
- At the close of the Government’s case, the military judge announced he would give a Military Rule of Evidence 413 propensity instruction, despite defense objection that using one charged offense to prove another charged offense as propensity evidence violated the presumption of innocence.
- Appellant appealed, arguing the Rule 413 instruction was improper under United States v. Hills and created constitutional error that was not harmless beyond a reasonable doubt.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether giving a Mil. R. Evid. 413 propensity instruction that permits using charged misconduct to prove other charged misconduct was proper | Government: Rule 413 permits propensity evidence of sexual misconduct and the Benchbook-modeled instruction was proper | Duarte: Using one charged offense as propensity evidence against another is antithetical to presumption of innocence; instruction should be excluded | Court: Instruction was improper under United States v. Hills; error rose to constitutional dimension and was not harmless beyond a reasonable doubt; findings and sentence set aside and rehearing authorized |
Key Cases Cited
- United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016) (holding charged offenses cannot be used as Rule 413 propensity evidence against other charged offenses)
- United States v. Solomon, 72 M.J. 176 (C.A.A.F. 2013) (standard of review for admission of Rule 413 evidence — abuse of discretion)
- United States v. Ober, 66 M.J. 393 (C.A.A.F. 2008) (instructions reviewed de novo)
- United States v. Kreutzer, 61 M.J. 293 (C.A.A.F. 2005) (constitutional instructional error requires harmlessness review beyond a reasonable doubt)
- United States v. Kaiser, 58 M.J. 146 (C.A.A.F. 2003) (standard for determining whether instructional error contributed to conviction)