United States v. HukillUnited States v. Hukill
For Appellee: Major Anne C. Hsieh (argued); Colonel Mark H. Sydenham and Lieutenant Colonel A.G. Courie III (on brief); Major Michael E. Korte.
Chief Judge ERDMANN delivered the opinion of the Court, in which Judges STUCKY, RYAN, OHLSON, and SPARKS, joined.
Chief Judge ERDMANN delivered the opinion of the court.
Contrary to his pleas, a military judge sitting as a general court-martial convicted Specialist Christopher B. Hukill of rape and abusive sexual contact, in violation of
We granted review of the following issues:1
- Whether, in a court-martial tried by military judge alone, the military judge abused his discretion by granting the Government‘s motion to use the charged sexual misconduct for Military Rule of Evidence 413 purposes to prove propensity to commit the charged sexual misconduct.
- Whether Judge Paulette V. Burton and Judge Larss G. Celtnieks, judges on the Court of Military Commission Review, were statutorily authorized to sit on the Army Court of Criminal Appeals, and even if they were statutorily authorized to be assigned to the Army Court of Criminal Appeals, whether their service on both courts violated the Appointments Clause given their newly attained status as a superior officer.
In Hills, a members’ trial, we held that under
BACKGROUND
This case arises from Hukill‘s sexual assaults of AB and HG, both friends of Hukill‘s then-fiancée. Specification 1 (rape), alleged that Hukill digitally penetrated the vagina of AB against her will in the kitchen of his home. A week or two after that incident, AB told Hukill‘s fiancée about the alleged assault. Hukill‘s fiancée testified that when she confronted him about the assault, he “pretty much told [them] that he did it.” Specification 2 (abusive sexual contact) arose from Hukill‘s alleged assault of HG about two weeks after the incident involving AB. Hukill was charged with touching the genitalia of HG against her will after a night of drinking. Hukill testified at his court-martial that neither of the assaults occurred.
In a pretrial motion, the government sought to introduce evidence of each sexual misconduct charge under
[t]he Court will give an appropriately tailored limiting instruction to the members that they may properly consider this evidence under MRE 413 for its bearing on the accused‘s propensity to commit the charged sexual assaults. The instruction will highlight that the introduction of such evidence does not relieve the government of its burden of proving every element of every offense charged, and that the fact-finder may not convict the accused of the charged offenses on the basis of the evidence admitted under MRE 413 alone. This instruction will be in addition to the standard “Spillover Instruction.”
The referenced instruction was not given as Hukill was ultimately tried by military judge alone, but it does reflect the military judge‘s understanding of the law at the time. During the court-martial, trial counsel argued that each of the sexual assault incidents established Hukill‘s propensity to commit the other assault. During his opening statement trial counsel argued, “[W]ithin a month, there are two allegations of sexual assault by two unrelated victims ... two allegations of sexual assault; two distinct reports but with strikingly similar details; details that reveal a similar scheme, a similar method of attack.” During his closing argument, trial counsel again argued, “Your Honor, the accused has committed two incidents of sexual assault, two very similar incidents. They are strong in their own right, but they‘re even stronger together when you consider
On appeal, the Army Court of Criminal Appeals recognized that the military judge had initially “ruled that the government could use propensity evidence in a manner found to be in error in Hills.” Hukill, 2016 CCA LEXIS 505 at *4-5, 2016 WL 4439888, at *2. However, the lower court went on to hold that the erroneous ruling “became moot by virtue of appellant‘s election for a bench trial.” Id., 2016 WL 4439888, at *2. Relying on the well-established rule that “[m]ilitary judges are presumed to know the law and to follow it absent clear evidence to the contrary” the lower court was “satisfied that [the military judge‘s] view on the admissibility of propensity evidence under Mil. R. Evid. 413 was harmless beyond a reasonable doubt.” Id. at *5, 2016 WL 4439888, at *2 (quoting United States v. Erickson, 65 M.J. 221, 225 (C.A.A.F. 2007)). Accordingly, the lower court held that this case was “far different than Hills as appellant elected to be tried by a military judge sitting alone,” and affirmed the findings and sentence.2 Id. at *4-5, 2016 WL 4439888, at *2.
DISCUSSION
A military judge‘s decision to admit evidence is reviewed for an abuse of discretion. United States v. Solomon, 72 M.J. 176, 179 (C.A.A.F. 2013). “The meaning and scope of
Hukill argues that the Hills decision is as applicable to military judge-alone trials as it is to members’ trials. He contends that even
The government appears to argue that Hills was wrongly decided, but also asks us to clarify that the decision is not a per se prohibition on the use of charged misconduct as
In analyzing the use of charged conduct as propensity evidence under
We therefore clarify that under Hills, the use of evidence of charged conduct as
Having found error we now turn to a prejudice analysis. In Hills we found constitutional implications arose from confusing instructions given to members as to the two different standards of proof that they were required to apply to the same evidence. 75 M.J. at 357-58. We also held that “the error ... violated Appellant‘s presumption of innocence and right to have all findings made clearly beyond a reasonable doubt, resulting in constitutional error.” Id. at 356. The same constitutional concerns exist if, in a military judge-alone trial, a military judge uses charged conduct as propensity evidence under
The government argues that the error was harmless beyond a reasonable doubt due to the presumption that military judges are presumed to know the law and follow it absent clear evidence to the contrary. See United States v. Mason, 45 M.J. 483, 484 (C.A.A.F. 1997). However, in this case, this presumption is not helpful to the government. This case was tried before our court issued Hills, and at that time, the common understanding of the law was that charged misconduct could be used as propensity evidence under
This is clearly evidenced by the Army Military Judges’ Benchbook discussion of
When the military judge has admitted evidence relating to one charged sexual offense or child molestation offense as relevant to another charged sexual offense or child molestation offense under MRE 413/414, the [instruction on the government‘s burden] may be used, in conjunction with [the M.R.E. 413/414 spillover instructions], as applicable.
Id. at n. 4.2 (emphasis added).
The military judge cannot be faulted for applying the accepted law at the time, however, after Hills, that interpretation of the law was no longer correct. The presumption that the military judge knows and follows the law is only as valid as the law itself. The Army Court of Criminal Appeals’ conclusion and the government‘s argument before this court that the error was harmless due to this presumption is not a prejudice argument. The presumption is that military judges will correctly follow the law, which would normally result in no legal error, not that an acknowledged error is harmless. The presumption cannot somehow rectify the error or render it harmless.
Assessing the prejudice of this error, we recognize that the military judge, when conducting his
DECISION
The decision of the United States Army Court of Criminal Appeals is reversed. The findings and sentence are set aside. The record of trial is returned to the Judge Advocate General of the Army. A rehearing is authorized.