2008 (September Term)
United
States v. Thompson, 67 M.J. 106 (an appellate
court reviews de novo whether a
constitutional error in admitting evidence at trial was harmless).
(before a federal
constitutional error can be
held harmless, an appellate court must be able to declare a belief that
it was
harmless beyond a reasonable doubt; if there is a reasonable
possibility that
the evidence or error complained of might have contributed to the
conviction,
then the constitutional error was not harmless beyond a reasonable
doubt).
(when determining whether a
constitutional
error is harmless, an appellate court should review the entire record).
(any error by the military
judge in failing to
suppress appellant’s confession that was allegedly obtained in
violation of his
Fifth Amendment right to counsel was harmless beyond a reasonable
doubt, where
none of the admissions made by appellant in his confession related to
any of
the offenses of which the members found him guilty, and the military
judge gave
the appropriate limiting instruction on the use of uncharged misconduct
and the
proper spillover instruction regarding evidence of multiple charges).
United
States v. DiPaola, 67 M.J. 98 (once it is
determined that a specific
instruction is required but not given, the test for determining whether
this
constitutional error was harmless is whether it appears beyond a
reasonable
doubt that the error complained of did not contribute to the verdict
obtained;
stated differently, the test is: is it
clear beyond a reasonable doubt that a rational jury would have found
the
defendant guilty absent the error).
(in the context of this case,
the absence of a
mistake-of-fact instruction on the indecent assault specification was
not
harmless beyond a reasonable doubt because that instruction resulted in
a
finding of not guilty when given with respect to an indecent exposure
specification involving the same victim in the same setting; had the
military
judge given a mistake-of-fact instruction informing the panel to
consider the
prior relationship and the circumstances leading up to the indecent
assault
incident, it is not clear beyond a reasonable doubt that a rational
jury would
have found appellant guilty absent the error; the missing instruction
essentially undercut a defense theory and could very well have
contributed to
the finding of guilty).
United
States v. Crudup, 67 M.J. 92 (the denial of an
accused’s Sixth Amendment
right to cross-examine a witness may be tested for harmlessness).
(appellant court will not set
aside a
conviction as the result of a constitutional error if it may
confidently say,
on the whole record, that the constitutional error was harmless beyond
a
reasonable doubt).
(whether a constitutional
error is harmless in
a particular case depends upon a host of factors, all readily
accessible to
reviewing courts; these factors include the importance of the witness’s
testimony in the prosecution’s case, whether the testimony was
cumulative, the
presence or absence of evidence corroborating or contradicting the
testimony of
the witness on material points, the extent of cross-examination
otherwise
permitted, and, of course, the overall strength of the prosecution’s
case; it
is a better practice to review and balance all of these factors rather
than
rely on only one of them).
(whether a constitutional
error in admitting
evidence is harmless beyond a reasonable doubt is a question of law
that an
appellate court reviews de novo).
(a Sixth Amendment error in
admitting an
out-of-court statement that appellant’s wife made to the military
police
regarding appellant’s assault on her and their infant son was harmless
beyond a
reasonable doubt, where the statement was unimportant in relation to
everything
else the military judge considered on the issue, the statement was
cumulative,
other evidence corroborated the statement, the defense was permitted to
impeach
the wife’s credibility with a prior conviction for fraud, and the
government’s
case was quite strong, including eyewitness testimony, corroborating
physical
injuries, and appellant’s partial confession; the statement did not
contribute
to the verdict as it was unimportant in relation to the other evidence
of
record).
(the effect of the convening
authority’s action
in this case is that confinement in excess of forty-five days was
suspended and
no other confinement was approved; in contradiction to this action,
appellant
served 223 days of confinement that both the parties and the CCA agree
were
suspended by the convening authority; within the military justice
system,
punishment suspended by a convening authority may not be executed; the
prejudice in this case is both obvious and apparent and may not be
attenuated
by facts predating the final action of the convening authority; holding
otherwise would neither give effect to a clear and unambiguous action
by the
convening authority).
2008 (Transition)
United
States v. Czachorowski, 66 M.J. 432
(the military judge’s error in admitting into
evidence a child victim’s out-of-court statements under the residual
hearsay
exception of MRE 807 materially prejudiced appellant’s substantial
rights under
Article 59(a), UCMJ, where appellant was convicted of indecent acts
with that
victim based, in large part, on that evidence).
United
States v. Bartlett, 66 M.J. 426 (error in
exempting certain classes of
officers from court-martial service pursuant to an Army regulation was
harmless
in a case where appellant pleaded guilty and the court-martial panel
only
considered the sentence, where (1) there was no evidence that the
Secretary of
the Army enacted the regulation with an improper motive; (2) there was
no
evidence that the convening authority’s motivation in detailing the
members he
assigned to appellant’s court-martial was anything but benign -- the
desire to
comply with a facially valid Army regulation; (3) the convening
authority who
referred appellant’s case to trial was a person authorized to convene a
general
court-martial; (4) appellant was sentenced by court members personally
chosen
by the convening authority from a pool of eligible officers; (5) the
court
members all met the criteria in Article 25, UCMJ; and, (6) as the
military
judge found, the panel was well-balanced across gender, racial, staff,
command,
and branch lines).
United
States v. Upham, 66 M.J. 83 (Article 59(a),
UCMJ, 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; for most constitutional errors at trial, an appellate court
applies
the harmless error test set forth in Chapman v. California, 386
US 18
(1967), to determine whether the error is harmless beyond a reasonable
doubt;
an appellate court applies the Supreme Court’s structural error
analysis,
requiring mandatory reversal, when the error affects the framework
within which
the trial proceeds, rather than simply an error in the trial process
itself).
(an instructional error as to
the elements of
an offense should be tested for harmlessness, and should not be treated
as a
structural error; harmless error analysis can be applied not only to
omitted
instructions, but also to instructions that are defective because they
incorrectly describe elements or presume elements).
(when an erroneous instruction
raises
constitutional error, an appellate court assesses two factors: whether the matter was contested, and whether
the element at issue was established by overwhelming evidence; where an
appellate court concludes beyond a reasonable doubt that the omitted
element
was uncontested and supported by overwhelming evidence, such that the
jury
verdict would have been the same absent the error, the erroneous
instruction is
properly found to be harmless).
(an instructional error on the
offense of
aggravated assault that improperly directed the members to presume the
element
of offensive touching if they found proof of certain predicate facts,
but did
not remove the burden on the government to prove the predicate facts
beyond a
reasonable doubt, was not so intrinsically harmful as to require
automatic
reversal of appellant’s conviction on the lesser included offense of
assault
consummated by battery; as such, the erroneous instruction was subject
to a
harmlessness test).
(an instructional error on the
offense of
aggravated assault that improperly directed the members to presume the
element
of offensive touching if they found proof of certain predicate facts,
but did
not remove the burden on the government to prove the predicate facts
beyond a
reasonable doubt, was harmless, and thus did not preclude affirming
appellant’s
conviction on the lesser included offense of assault consummated by
battery,
where appellant did not contest the element of offensive touching at
trial, but
acknowledged that he had no justification for engaging in unprotected
sex with
the victim without informing her of his HIV status, and that his
actions caused
her great mental anguish).
United
States v. Travis, 66 M.J. 301 (appellant did
not suffer any material prejudice
to a substantial right from the alleged failure of the SJA to submit
clemency
matters to the convening authority prior to his initial action and from
the SJA’s
subsequent failure to forward them to the convening authority for over
a year,
where there was a second action taken by the same convening authority
after his
consideration of appellant’s clemency submission which demonstrated
clearly and
convincingly that even if the clemency materials had been considered at
the
time of the initial action, appellant would not have been afforded
clemency;
under these circumstances, any possible error relating to the
post-trial
processing of clemency materials in this case was harmless, especially
where
the CCA reduced the period of confinement when it granted sentence
relief to
address post-trial delay).
United
States v. Adams, 66 M.J. 255 (administrative
errors in the drafting of a
convening order are not necessarily fatal to jurisdiction, and may be
tested
for prejudice under Article 59(a), UCMJ).
(the convening authority’s
failure to transfer
members named in previous special convening orders to the final special
order
convening appellant’s court-martial was administrative error, rather
than
jurisdictional error, that did not materially prejudice the substantial
rights
of appellant, where none of the members who participated in the
court-martial
was an interloper, where each member was selected by the convening
authority to
consider the charges against appellant, where there was no evidence
that the
convening authority excused any of the members who sat on appellant’s
court-martial, where there was also no evidence that the convening
authority withdrew
the charges in order to refer them to a new court-martial, and more
important,
where the record reflects that the members named in final special order
were
selected to bring the court-martial up to quorum and were not selected
to serve
as a separately constituted court-martial).
United
States v. Bridges, 66 M.J. 246 (under Article
59(a), UCMJ, an error of law
regarding the sentence does not provide a basis for relief unless the
error
materially prejudiced the substantial rights of the accused).
(even assuming that a letter
from the brig
officer reporting that appellant had a negative attitude while in
confinement
and had violated several prison regulations was erroneously admitted to
rebut
appellant’s presentencing good character evidence, the alleged error
was not
prejudicial under Article 59(a), UCMJ, where the military judge was the
sentencing authority and there was no indication that the judge gave
significant weight to the brig violations noted in the letter,
particularly in
light of the fact that the record contained ample additional evidence
in
aggravation from appellant’s personnel records and the testimony of
witnesses;
any error in the admission of the brig letter did not substantially
influence
the adjudged sentence, and appellant failed to demonstrate that any
error
materially prejudiced his substantial rights).
United
States v. Brooks, 66 M.J. 221 (structural
errors involve errors in the trial
mechanism so serious that a criminal trial cannot reliably serve its
function
as a vehicle for determination of guilt or innocence; they are not
amenable to
harmless error review and will always result in reversal if properly
preserved
for appeal; generally, for all other errors, an appellant must show an
effect
on the proceedings or prejudice to substantial rights; there is a
strong
presumption that an error is not structural).
(the Supreme Court has
recognized two tests
for structural error: (1) when a court is faced with the difficulty of
assessing the effect of the error; and, (2) when harmlessness is
irrelevant).
(appellant’s claim that brig
personnel
violated his Sixth Amendment right to appellate counsel by monitoring
his
telephone conversations with his appellate counsel and by seizing his
privileged correspondence with his counsel did not fall within the
category of
structural error, where appellant was not deprived of all opportunities
to
speak with his appellate counsel and the degree of prejudice could be
assessed;
appellant could not articulate what he deleted from the communications
with his
counsel and his silence suggested that little, if anything, was chilled
from
his attorney-client conversations; similarly, a refusal to make certain
undefined communications, especially when the appellant had ample
alternative
opportunities to speak freely with counsel, did not, as a general
matter,
constitute prejudice).
(even assuming some interference with his
attorney-client relationship, appellant did not establish that brig
personnel
violated his Sixth Amendment right to appellate counsel by monitoring
his
telephone conversations with his appellate counsel and by seizing his
privileged correspondence with his counsel, absent a showing of
prejudice;
appellant did not cite what issues he wanted to raise before the CCA
but was
unable to do so because of the chilling effect the actions of brig
officials
had on his attorney-client communications).
United
States v. Larson, 66 M.J. 212 (whether there
is prejudice with respect to a
claim of ineffective assistance of counsel depends on whether there is
a
reasonable probability that, absent the errors, the factfinder would
have had a
reasonable doubt respecting guilt; the
appellant
bears the burden of demonstrating that there is a reasonable
probability that,
but for counsel’s unprofessional errors, the result of the proceeding
would
have been different).
(assuming
deficient performance of defense counsel for failing to consult with
appellant
on the strategic decision to concede guilt in argument to one of the
offenses
charged, appellant was not prejudiced and there was no ineffective
assistance
of counsel, where the evidence supporting the charged offenses was
overwhelming, no plausible defense to the conceded offense was raised
by
appellant, appellant did not argue that his defense at trial to the
remaining
charges was in any way undercut by counsel’s strategic choice, and the
military
judge instructed the members three times that the arguments of counsel
were not
evidence).
United
States v. Hall, 66 M.J. 53 (an appellate
court evaluates claims of
prejudice from an evidentiary ruling by weighing four factors: (1) the strength of the government’s case, (2)
the strength of the defense case, (3) the materiality of the evidence
in
question, and (4) the quality of the evidence in question; the same
four-pronged test is applied for the erroneous admission of government
evidence
as for the erroneous exclusion of defense evidence).
(an evidentiary error in
allowing a non-expert
government investigative agent to provide expert testimony that burn
injuries
suffered by an infant victim were not accidental was harmless, where
the
government’s case was strong, if not overwhelming, the defense case was
weak,
even implausible, and the quality of the agent’s testimony was
duplicative when
compared to that of the actual expert in the case, who not only
testified to a
firm belief that the injuries were non-accidental, but also suggested
that the
cause of the injuries was the child being held in hot water; in light
of the
qualitative difference in professional background and expertise, as
well as the
overlap in testimony between the actual expert and the agent, the
agent’s testimony
regarding nonaccidental burn indications was not qualitatively
significant in
the context of this case; as a result, the government met its burden of
demonstrating that the agent’s testimony did not have a substantial
influence
on the findings).
(the error in admitting inadmissible hearsay in
the form of laboratory reports documenting the presence of cocaine and
heroin
on drug paraphernalia seized from the accused’s residence in violation
of the
Confrontation Clause was plain and obvious, but it was harmless beyond
a
reasonable doubt and therefore did not violate a substantial right,
where the accused
admitted that a jeweler’s bag in his home contained cocaine and a
hypodermic
syringe contained heroin, and his admissions were corroborated by the
testimony
of the arresting officers; moreover, the accused did not demonstrate
what, if
anything, he would have done at trial if he had been given the
opportunity to
confront the laboratory personnel about their reports).
United
States v. Allende, 66 M.J. 142 (substantial
omissions from the record of
trial create a presumption of prejudice that may be rebutted by the
government).
(any deficiency with respect to explaining the
need for substitute authentication of the record of trial is tested for
prejudice under a harmless error standard of review).
(where the error in the substitute
authentication of the record of trial by trial counsel, an official
designated
by Article 54(a), UCMJ, as eligible to authenticate the record in a
substitute
capacity, involved the adequacy of the explanation for use of a
substitute
authority, the burden is on appellant to demonstrate prejudice).
(despite the erroneous
authentication of the
record of trial by trial counsel without an adequate explanation for
the use of
a substituted authority, appellant failed to demonstrate material
prejudice to
his substantial rights under Article 59(a), UCMJ, where he failed to
show that
the error regarding the explanation for using a substitute produced an
inaccurate record, or otherwise prejudiced his right to submit a brief
under
Article 38, UCMJ, to obtain post-trial clemency under Article 60, UCMJ,
to
present an issue to the court of criminal appeals under Article 66,
UCMJ, or to
raise an issue of law before CAAF).
United
States v. Freeman, 65 M.J. 451 (if an appellate
court finds a confession
involuntary, it must set aside the conviction unless it determines the
error in
admitting the confession was harmless beyond a reasonable doubt).
(assuming the admission on the
merits of three
acts of uncharged misconduct toward the victim was error, the error was
harmless where the three acts were relatively minor and, in the context
of the
entire record, and in particular appellant’s confession, such error did
not
have a substantial influence on the members’ verdict).
United
States v. Hunter, 65 M.J. 399 (not every error
constitutes a material
prejudice to a substantial right warranting relief under Article 59(a),
UCMJ).
(where there is no evidence
or representation
before an appellate court that appellant misunderstood the terms of his
agreement, that the operation of any term was frustrated, or that his
participation in the agreement was anything other than wholly
voluntary, the
court will not find prejudice).
(although the military judge
legally erred in
failing to explain the pretrial misconduct provision of the PTA to
appellant
prior to accepting his guilty plea, despite the error, appellant was
not
entitled to relief because he failed to establish the material
prejudice to a
substantial right required under Article 59(a), UCMJ; there is no
evidence that
appellant misunderstood the meaning and effect of the misconduct
provision
within his PTA or that his understanding of it prejudiced his ability
to make a
fully informed decision to plead guilty).
United
States v. Othuru, 65 M.J. 375 (although some
constitutional errors may be so
fundamental as to be prejudicial in any event, not all constitutional
errors
require per se reversal; in the context of a particular case, certain
constitutional errors, no less than other errors, may have been
harmless in
terms of their effect on the factfinding process at trial; the denial
of the
opportunity to cross-examine an adverse witness does not fit within the
limited
category of constitutional errors that are deemed prejudicial in every
case; as
the error in this case involves appellant’s Sixth Amendment right to
cross-examine the witnesses, an appellate court may test this
Confrontation
Clause error for its effect upon the trial to determine whether the
error was
harmless beyond a reasonable doubt).
(the erroneous admission of
two testimonial
hearsay statements that alleged that appellant’s wife was actually his
biological sister was harmless beyond a reasonable doubt in a
court-martial
where appellant was charged with making a false official statement and
theft of
government property as a consequence of his fraudulent collection of
basic
allowance for housing as a married servicemember while he was not
legally
married, where the prosecution evidence was strong and the hearsay
statements
were cumulative of documentary evidence reflecting that the alleged
wife was
actually the natural daughter of appellant’s parents; additionally,
other
evidence demonstrated that there were no birth records for the maiden
name
appellant claimed for his wife and that the birth certificate appellant
submitted in support of her visa application was apparently fraudulent;
in view
of the record as a whole, the testimonial hearsay statements did not
contribute
to appellant’s conviction).
United States
v. Custis,
65 M.J. 366 (error in admitting privileged communications between
appellant and
his wife was not harmless with respect to appellant’s conviction for
soliciting
the offense of obstruction of justice, where the wife’s testimony
regarding her
conversations with her husband was clearly material to the members’
decision to
find appellant guilty of the solicitation specification; it was only
those conversations that revealed that it was appellant who initiated
the
conversation regarding the scheme to replace the blood tests, and
evidence of
those conversations that revealed it was appellant who suggested that
the blood
be drawn from precisely the same place; there was no other evidence
admitted to
prove that it was appellant who solicited his wife’s help in this
crime, as
opposed to his wife who solicited appellant’s participation; given the
pivotal
importance of the privileged communications to the solicitation charge,
the
members may have been substantially influenced by the erroneously
admitted
evidence, so appellant’s solicitation conviction must be reversed).
(the evidentiary error in
admitting privileged communications
between appellant and his wife was harmless as to the other
non-solicitation
offenses where none of appellant’s remaining convictions turned on who
instigated the other’s participation in the underlying obstruction
offense; in
light of the testimony of appellant’s wife as to both the actions she
observed
and the conduct in which she and appellant engaged in together, the
erroneously
admitted evidence did not have a substantial influence on the members
with
respect to those offenses).
(the evidentiary error in
admitting privileged communications
between appellant and his wife was harmless as to sentence where the
military
judge found the charges of conspiracy to obstruct justice and
solicitation to
obstruct justice multiplicious for sentencing and instructed the
members to
consider them as one offense in determining an appropriate sentence;
where
there is no reason to question that the panel did not do so in this
case, the
offense of solicitation to obstruct justice had no impact on
appellant’s
sentence).
2007
United States v. Resch, 65 M.J. 233 (the military
judge’s errors in giving the accused inconsistent advice on what the
military judge could consider from the stipulation of fact on the
merits of the greater offense of desertion and in failing to clarify
inconsistent paragraphs in the stipulation as to what he could consider
on the merits, were
materially prejudicial to the accused’s substantial rights;
without the accused’s statements and the facts admitted in the
stipulation, the government’s case on desertion consisted solely of
testimony from the accused’s company commander that the first time he
saw the accused at a formation in his unit following his absence was on
a later termination date; this testimony was insufficient to establish
the accused’s intent to remain away permanently where the accused’s
presence at formation would seem to bely an intent to remain away
permanently; this testimony was also insufficient to establish the
later termination date where viewing the evidence in the
light most favorable to the prosecution, the company commander’s
testimony of when he first noticed the accused in formation did not
provide legally sufficient evidence that
would permit a rational trier of fact to conclude beyond a
reasonable doubt that the accused was returned to military
control on that date).
United States v. Erickson, 65 M.J. 221 (in assessing
prejudice under the plain error test where prosecutorial misconduct has
been alleged, an appellate court looks at the cumulative impact of any
prosecutorial misconduct on the accused’s substantial rights and the
fairness and integrity of his trial; the best approach involves a
balancing of the following three Fletcher factors: (1)
the severity of the misconduct, (2) the measures adopted to cure the
misconduct, and (3) the weight of the evidence supporting the
conviction).
(in assessing prejudice in a
judge alone trial in which prosecutorial misconduct during the trial
counsel’s sentencing argument was alleged to have resulted in plain
error, an appellate court considers the Fletcher factors to
determine whether the trial counsel’s comments, taken as a whole, were
so damaging that the court cannot be confident that appellant was
sentenced on the basis of the evidence alone).
(trial counsel’s comparison
of the accused to Hitler and Osama bin Laden during his sentencing
argument in a child sexual abuse case did not result in material prejudice to the accused’s substantial
rights and therefore did not result in plain error, where (1) the
misconduct was not severe considering that the improper comments
amounted to less than a single page out of a 22-page sentencing
argument, did not permeate the entire argument, and were made in the
context of a permissible theme – that unseen evil is worse than open
and obvious evil; (2) the military judge in this judge alone trial is
presumed to be able to distinguish between proper and improper
sentencing arguments and there is nothing in the record that reflects
that the military judge was biased or in any way swayed by the
comments; and (3) the weight of the evidence clearly supports the
determination that the accused would have received the same sentence
irrespective of trial counsel’s improper comments considering that the evidence revealed not only that the accused had
sexually abused his two daughters over a sustained period, but that he
manipulated them into believing that the conduct was appropriate and
that this abuse left his children emotionally scarred).
United States v. Harrow, 65 M.J. 190 (in applying
nonconstitutional harmless error analysis, an appellate court conducts
a de novo review to determine whether the error had a substantial
influence on the members’ verdict in the context of the entire case;
four factors are considered: (1) the strength of
the government’s case; (2) the strength of the defense case; (3) the
materiality of the evidence in question; and (4) the quality of the
evidence in question; when a fact was already obvious from testimony at
trial and the evidence in question would not have provided any new
ammunition, an error is likely to be harmless).
(in a murder case based on the
shaken baby syndrome, the military judge’s error in preventing the
defense from impeaching the testimony of the baby’s father with
extrinsic evidence of prior inconsistent statements regarding whether
the baby was crying after the accused left the house, was harmless,
where the government’s case against the accused was convincing, where
the defense’s case was exceptionally weak, where the materiality of the
excluded extrinsic evidence of prior inconsistent statements was for
impeachment only, where the defense effectively impeached the father
with respect to the prior inconsistent statements by intrinsic
evidence, where the military judge gave an instruction regarding
inconsistent statements, reiterating the point that the father’s
credibility was at issue, where the combination of cross-examination
and argument by the defense impeached the father’s credibility and
ability to recall, and where the addition of the extrinsic evidence
would have been cumulative, would not have changed the arguments
proffered by the defense to the members, and would not have had a
substantial influence on the members’ verdict; under the facts of this
case, it cannot be said that a thorough impeachment of the father’s
credibility and recollection was not completed even absent the
extrinsic evidence).
(in a murder case based on
the shaken baby syndrome, any error stemming from the admission of
uncharged misconduct evidence under MRE 404(b) in the form of testimony
that appellant had previously thumped the baby hard enough to make the
baby scream, that appellant flicked the baby on the body to punish her
if she reached for something, and that appellant called the baby stupid
and ugly, pulled at the baby by jerking her arm, and grabbed her by the
cheeks and pinched them hard when she disobeyed, did not substantially
prejudice appellant in view of the weight of the remaining evidence and
the weakness of the defense case).
(in a murder case based on
the shaken baby syndrome, any error in the admission of profile
evidence in the form of testimony by an expert witness in the fields of
developmental and forensic psychiatry that the most common person to
fatally abuse a child is a biological parent and that the most common
trigger for baby shakings is persistent crying, was harmless, where the
case focused on which parent was responsible for the injury, and the
profile evidence applied equally to each of them and placed them both
squarely within the profiled category).
(although the CCA abused its
discretion in reassessing a sentence to include a reduction to E-1 that
was not adjudged at trial, where appellant was already an E-1, it was
an increase in punishment only in the most technical of senses, since
the reduction was void ab initio and a nullity; this abuse of
discretion was a harmless error without any practical import or any
prejudice; no logic suggests that the CCA would have decreased some
other portion of the sentence reassessment if it understood that
another portion of the sentence, the reduction in rank, was not
available to it).
United States v. Moran, 65 M.J. 178 (before a
federal constitutional error can be held harmless, the court must be
able to declare a belief that it was harmless beyond a reasonable
doubt; this will depend on whether there is a reasonable possibility
that the evidence or error complained of might have contributed to the
conviction; to say that an error did not contribute to the ensuing
verdict is not, of course, to say that the jury was totally unaware of
that feature of the trial later held to have been erroneous; it is,
rather, to find that error unimportant in relation to everything else
the jury considered on the issue in question, as revealed in the
record).
(a special agent’s reference
on direct examination to the accused’s refusal to consent to the
collection of his body hair, which, under the Fourth Amendment, he had
the right to deny, was harmless beyond a reasonable doubt because other
evidence that was properly admitted was sufficient to dispel any notion
that agent’s statement “tipped the balance” against the accused where
the accused’s drug offense convictions were supported by evidence
provided by six witnesses who testified against him; furthermore, there
was substantial circumstantial evidence regarding the accused’s
consciousness of guilt that was properly before the members, namely
evidence that the accused shaved all of his body hair, which prevented
the government from testing his hair for drug use; independent evidence
of the accused’s guilt was overwhelming -- a conclusion that rendered
any error harmless beyond a reasonable doubt).
(a police officer’s testimony
on direct examination about the accused’s travel to see his attorney
and that the accused had invoked his right to counsel was harmless
beyond a reasonable doubt because other evidence that was properly
admitted was sufficient to dispel any notion that officer’s statement
“tipped the balance” against the accused where the accused’s drug
offense convictions were supported by evidence provided by six
witnesses who testified against him; furthermore, there was substantial
circumstantial evidence regarding the accused’s consciousness of guilt
that was properly before the members, namely evidence that the accused
shaved all of his body hair, which prevented the government from
testing his hair for drug use; independent evidence of the accused’s
guilt was overwhelming -- a conclusion that rendered any error harmless
beyond a reasonable doubt).
(a policeman’s testimony on
direct examination about the accused’s refusal to consent to have his
blood drawn was harmless beyond a reasonable doubt because the evidence
of drunk driving was otherwise overwhelming and a test of the accused’s
blood that was lawfully drawn under a warrant indicated a blood alcohol
level of .25 percent ethanol).
(trial counsel’s inaccurate
and improper statement, in the closing part of his findings argument to
the members, commenting on the accused’s invocation of his right to
counsel, did not prejudice the accused’s substantial rights, where the
prejudicial impact of trial counsel’s comments was dampened by the
minor part they played in the midst of a nineteen-page argument and
where other evidence that was properly admitted was sufficient to
dispel any notion that the trial counsel’s statement “tipped the
balance” against the accused where the accused’s drug offense
convictions were supported by evidence provided by six witnesses who
testified against him; furthermore, there was substantial
circumstantial evidence regarding the accused’s consciousness of guilt
that was properly before the members, namely evidence that the accused
shaved all of his body hair, which prevented the government from
testing his hair for drug use; independent evidence of the accused’s
guilt was overwhelming -- a conclusion that rendered any error harmless
beyond a reasonable doubt).
United States v. Key, 65 M.J. 172 (at a post-trial
hearing to determine whether a government informant withheld from the
defense impeachment evidence regarding the informant’s possible
financial motive for her testimony and whether that affected the
outcome of appellant’s trial and whether appellant was entitled to a
new trial, the military judge’s error in not allowing the trial defense
counsel to testify as to what transpired during that counsel’s pretrial
interview of the informant was not prejudicial where the defense
counsel’s affidavit concerning this interview did not significantly
impeach the informant’s testimony; the informant’s knowledge, without
more, of the eventual possibility of being paid for her work as an
informant had limited impeachment value, especially when it is not
clear from the defense counsel’s affidavit that his questions were
specific enough to elicit that she had; in light of all the other
pertinent evidence, including the testimony of other witnesses as to
appellant’s demeanor at the collection site and the positive urinalysis
evidence itself, the error was harmless -- it did not substantially
influence the outcome of the case).
(military judge’s failure to
give complete and correct self-defense instruction created a
constitutional error, requiring a determination as to whether the error
was harmless beyond a reasonable doubt; in assessing prejudice under
this standard, the government must prove, beyond a reasonable doubt,
that the instructional error did not contribute to the members’ guilty
findings).
(military judge’s failure to
give complete and correct self-defense instruction was not harmless
beyond a reasonable doubt, where the incomplete instruction essentially
undercut the defense theory and could very well have contributed to the
finding of guilty; the members were told that if they found the accused
was engaged in mutual combat or provoked the fight, he could not assert
self-defense, if he did not first withdraw from the original fight;
this incomplete instruction prevented the accused from fully asserting
that he rightfully defended himself (1) after an escalation of
violence; and (2) when he was incapable of withdrawing in good faith).
United States v. Schroder, 65 M.J. 49 (instructional
error regarding the use of propensity evidence in child molestation
case was harmless beyond a reasonable doubt with respect to the charge
of indecent acts with a child, given the members’ finding of guilty
only on the lesser included offense of indecent acts with another, the
totality of the instructions provided by the military judge, and the
detailed and credible nature of the victims’ testimony).
(instructional error
regarding the use of propensity evidence in child molestation case was
harmless beyond a reasonable doubt with respect to the charge of rape,
given the strength of the government’s case; in addition to the
eyewitness testimony regarding charged and uncharged misconduct, the
government’s evidence included several statements by appellant to
various law enforcement agencies, including an admission and
corroborating details).
United States v. Roberson, 65 M.J. 43 (military judge’s
erroneous exclusion of testimony that supported the accused’s
affirmative defense of duress was not constitutional because the
accused presented other evidence to establish virtually the same facts
in support of his duress defense, and thus he was not denied a
meaningful opportunity to present a complete defense; this
non-constitutional error must then be tested for harmlessness under
Article 59(a), UCMJ; here, the erroneous exclusion of testimony did not
materially prejudice the accused’s substantial rights, where the
government’s case was strong, the duress defense was markedly less than
compelling, and the excluded evidence was of no better quality than
that which was already before the finder of fact, nor would it have
strengthened the duress defense by remedying its deficiencies).
United States v. Davis, 64 M.J. 445 (although a
military judge erred in improperly closing a portion of an Article 32
proceeding during the testimony of two alleged victims of sexual
offenses, the error was harmless beyond a reasonable doubt where (1)
the defense counsel had access to written statements by the witnesses
and had interviewed the witnesses prior to trial; (2) the defense
counsel had cross-examined the witnesses at the Article 32 hearing; (3)
the defense counsel cross-examined the witnesses in the subsequent
public trial; (4) the witnesses recounted their allegations at various
times before and during the trial and their individual accounts
remained consistent throughout the process; (5) there was no evidence
that the closure of the Article 32 hearing impeded the defense
counsel’s trial preparation or that the testimony of the witnesses
would have changed had there been a second, open Article 32 proceeding;
and (6) the defense counsel was able to effectively cross-examine the
witnesses, resulting in acquittal of both alleged rapes and one
indecent assault).
United States v. Rankin, 64 M.J. 348 (even if the
admission of the deserter/absentee arrest warrant, form DD-553,
violated the Confrontation Clause because it was testimonial hearsay,
the error was harmless beyond a reasonable doubt, where any information
contained in it that was relevant to the elements of the offense of
unauthorized absence was cumulative with the same type of information
contained in the other exhibits that were not testimonial evidence).
(in this case, the government
met a critical element of its burden of proof by showing that the
graphic computer images were real through scientific analysis and
expert testimony; appellant, on the other hand, was denied his request
for expert assistance, the asset necessary for him to challenge that
government evidence and prepare a defense; denying appellant the
resources necessary to prepare and present a defense was prejudicial
error).
2006
United
States v. Finch, 64 M.J. 118 (even assuming there was a material
variance
between the pleadings and the findings, appellant failed to show
prejudice
stemming from that error, where the change in the description of the
alleged
overt acts taken in furtherance of that conspiracy did not prejudice
appellant
-- that is, it neither misled appellant in preparing or presenting his
defense,
nor failed to protect him against a subsequent prosecution for the same
misconduct; because appellant failed to establish any prejudice by
demonstrating that he was misled as to (1) what he had to defend
against at
trial, or (2) whether he could be tried again for the same offense or a
similar
one, there was no plain error).
(an
appellate
court reviews claims of post-trial and appellate delay using the
four-factor
analysis from Barker v. Wingo; if there has been a denial of
due
process, appellant is entitled to relief unless the court is convinced
that the
error was harmless beyond a reasonable doubt; where an appellate court
can
determine that any violation of the due process right to speedy
post-trial
review and appeal is harmless beyond a reasonable doubt, it need not
undertake
the four-factor Barker analysis prior to disposing of that
post-trial or
appellate delay issue).
United
States v. Haney, 64 M.J. 101 (even assuming that the trial
counsel’s
closing argument improperly commented on appellant’s right to invoke
his
Article 31, UCMJ, rights during interrogation and his constitutional
right to
consult with counsel, any error was harmless beyond a reasonable doubt,
where
the matter was raised by trial defense counsel to support the defense
theory of
the case that appellant’s admission to one incident of marijuana use
was
fabricated in response to false promises of leniency and coercion, and
the
strength of the government’s case did not hinge upon appellant’s
confession to
one use of marijuana).
United
States v. Gosser, 64 M.J. 93 (a two-year delay in commencing review
under
Article 66(c), UCMJ, that violated appellant’s right to due process was
harmless beyond a reasonable doubt where there was no showing that
appellant
was prejudiced).
United
States v. Long, 64 M.J. 57 (the government’s use at trial of the
accused’s
e-mails seized without a warrant from a government computer system to
support
the unlawful drug use charges against the accused was not harmless
error beyond
a reasonable doubt, where the prosecution witnesses were all admitted
drug
users and potential accomplices who had incentives to testify for the
government, and the trial counsel used the constitutionally
inadmissible
evidence as a cornerstone of his opening statement and closing
argument).
United
States v. Rodriguez-Rivera, 63 M.J. 372 (whether or not there was
error in
failing to serve trial counsel’s comments on appellant’s clemency
request upon
the defense, appellant failed to sustain his burden of making a
colorable show
of prejudice where appellant’s assertions regarding his proposed
rebuttal to
trial counsel’s statements were inaccurate;).
(as
a general
matter, an appellate court can dispose of an issue by assuming error
and proceeding
directly to the conclusion that any error was harmless; similarly,
issues
involving possible constitutional error can be resolved by assuming
error and
concluding that the error is harmless beyond a reasonable doubt).
(in
cases
involving claims that appellant has been denied his due process right
to speedy
post-trial review and appeal, an appellate court may look initially to
whether
the denial of due process, if
any, is
harmless
beyond a reasonable doubt; an appellate court will apply a similar
analysis
where, even though the denial of due process cannot be said to be
harmless
beyond a reasonable doubt, there is no reasonable, meaningful relief
available).
United
States v. Toohey, 63 M.J. 353 (the military judge’s error in
preventing
appellant from presenting evidence of his character for peacefulness
did not
deprive him of evidence that was material and favorable to his defense
and thus
was not of constitutional dimension requiring the utilization of the
constitutional harmless beyond a reasonable doubt standard to test the
effect
of that error; this was not a case in which character evidence for
peacefulness
went to the heart of appellant’s core defense that the sexual activity
between
him and the victim was consensual).
(appellant
was
not prejudiced with respect to the assault charge by the military
judge’s error
in excluding character evidence for peacefulness, where the evidence of
guilt
was overwhelming and countered only by an implausible claim that the
victim, a
woman of far less physical stature than appellant, became aggressive
and
appellant responded in a reasonable manner to protect himself;
appellant
admitted that he struck the victim, and the excessive violence
perpetrated upon
the victim was graphically demonstrated by photographs depicting her
injuries
and the severity of the beating inflicted upon her).
(appellant
was
not prejudiced with respect to the rape charge by the military judge’s
error in
excluding character evidence for peacefulness, where the pivotal
question on
guilt was when appellant applied force and for what purpose, not
whether he did
so; appellant’s admission that he struck the victim minimized the
materiality
of character for peacefulness evidence; moreover, if character for
peacefulness
evidence might have had some slight value, appellant received that
value when
his ex-wife testified that he had never been violent with her).
(considering the egregious delay of over six years between the
completion of
the court-martial and the decision of the court of criminal appeals and
the
adverse impact such a delay has upon the public perception of fairness
in the
military justice system, the deprivation of appellant’s due process
right to a
speedy review and appeal was not harmless beyond a reasonable
doubt).
United
States v. Lewis, 63 M.J. 405 (to find that the appearance of
command
influence has been ameliorated and made harmless beyond a reasonable
doubt, the
government must convince an appellate court that the disinterested
public would
now believe the accused received a trial free from the effects of
unlawful
command influence).
(the
appearance
of unlawful command influence created by the orchestrated efforts of
the trial
counsel and staff judge advocate to force the recusal of the military
judge was
not cleansed by the detailing of a new military judge from another
circuit or
by that judge’s remedial action which included the disqualification of
the SJA,
the barring of the SJA from sitting in the courtroom, and the
appointment of a
new convening authority; the government wanted to ensure that a given
military
judge, properly detailed and otherwise qualified, would not sit on the
accused’s case; in the end, the government achieved its goal through
unlawful
command influence; to this point, from an objective standpoint, the
government
has accomplished its desired end and suffered no detriment or sanction
for its
actions).
United
States v. Dearing, 63 M.J. 478 (if instructional error is found,
because
there are constitutional dimensions at play, appellant’s claims must be
tested
for prejudice under the standard of harmless beyond a reasonable doubt;
the
inquiry for determining whether constitutional error is harmless beyond
a
reasonable doubt is whether, beyond a reasonable doubt, the error did
not
contribute to appellant’s conviction or sentence).
(once
it is
determined that a specific instruction is required but not given, the
test for
determining whether this constitutional error was harmless is whether
it
appears beyond a reasonable doubt that the error complained of did not
contribute to the verdict obtained).
(the
military
judge’s error in failing to instruct the members on the concept of
escalation
of the conflict as it related to self-defense was not harmless beyond a
reasonable doubt, where the defense theory of escalation of the
conflict was a
vital point in the case, and where the instructional error eviscerated
the
accused’s self-defense theory rooted in the concept of escalation of
the
conflict; because of the error, the accused was denied the opportunity
to argue
that he had a right to exercise self-defense due to the escalating
violence
being perpetrated against him; moreover, without a correct self-defense
instruction, the members did not have guideposts for an informed
deliberation).
(there
was no
danger of prejudicial spillover from appellant’s murder and aggravated
assault
offenses to the obstruction of justice offense; the focus of concern on
spillover is whether overwhelming proof on an offense that is set aside
will
“spill over” and prejudice a legitimate defense to another; in this
case, there
was no such danger in light of appellant’s testimony on the merits that
was
tantamount to a judicial confession to obstruction of justice;
appellant
effectively admitted that he was attempting to have his friend present
a false
alibi and thereby thwart the police investigation into the stabbing
incident;
because of appellant’s testimony, his conviction of the offense of
obstruction
of justice was independent of and unaffected by either the murder or
aggravated
assault offenses, and there was no prejudicial spillover that tainted
the
guilty finding to obstruction of justice).
(the
due process
violation for denying speedy appellate review in this case was not
harmless
beyond a reasonable doubt where there were two forms of actual
prejudice;
first, appellant endured oppressive incarceration because he was denied
a
timely review of his meritorious claim of legal error for over six
years while
he was incarcerated; and second, the lack of institutional vigilance
resulted
in appellate delay that effectively denied appellant his statutory
right to the
free and timely professional assistance of detailed military appellate
defense
counsel).
United
States v. Allison, 63 M.J. 365 (if an appellate court concludes
that an
appellant has been denied the due process right to speedy post-trial
review and
appeal, it grants relief unless it is convinced beyond a reasonable
doubt that
the constitutional error is harmless).
(as
a general
matter, an appellate court can dispose of an issue by assuming error
and
proceeding directly to the conclusion that any error was
harmless).
(issues
involving possible constitutional error can be resolved by assuming
error and
concluding that the error is harmless beyond a reasonable doubt).
(in
cases
involving claims that an appellant has been denied his due process
right to
speedy post-trial review and appeal, an appellate court may look
initially to
whether the denial of due process, if any, is harmless beyond a
reasonable
doubt).
(assuming
that a
delay of over five years to complete the accused’s appeal of right
denied him
his right to speedy review and appeal, the error was harmless beyond a
reasonable doubt where there was no merit in the accused’s other issue
on
appeal and the totality of the circumstances of this case were
considered).
United
States v. Barnett, 63 M.J. 388 (in
a
prosecution arising from the accused’s alleged sexual harassment of
four
trainees, the erroneous admission of
evidence of
uncharged misconduct that the accused had engaged in escalating verbal
harassment of a coworker, resulting in that coworker explicitly telling
the
accused to stop calling her and to stop making inappropriate comments
was
harmless where the government’s case was strong and the defense did not
present
a compelling case; all four of the
complainants
testified, there were similarities between their respective rendition
of
events, there was nothing in the record to indicate that these four
individuals
were not credible witnesses, all four denied that the encounters were
consensual, and each recounted some type of nonverbal manifestation of
their
unwillingness to be touched by appellant; finally, the evidence of the
uncharged misconduct was of marginal importance given the difference in
contexts, the fact that is allegedly occurred three years earlier, and
the
defense brought in two witnesses who rebutted the evidence).
United
States v. Reyes, 63 M.J. 265 (the improper admission of extraneous
material
during the sentencing phase of appellant’s trial, to include pictures
that the
military judge had earlier determined were inadmissible and appellant’s
pretrial offer to plead guilty to charges on which the members had just
returned a verdict of acquittal, and the military judge’s erroneous
instruction
on the maximum punitive discharge that could be imposed by the members,
had a
prejudicial impact on sentencing).
United
States v. Tanner, 63 M.J. 445 (the admission during sentencing of
appellant’s prior conviction that was then on appeal but subsequently
reversed
did not constitute prejudicial error; in the present case, the MRE 414
predisposition evidence underlying the reversed conviction would have
been
admissible under RCM 1001(b)(4), subject to balancing; because the
evidence was
admitted without objection as a prior conviction under RCM
1001(b)(3)(A), the
military judge did not conduct a balancing test in the context of MRE
414;
however, in the context of the evidence at issue, the absence of
balancing
under MRE 403 and MRE 414 did not constitute prejudicial error; the
information
as to appellant’s prior misconduct offered at his trial depicted
appellant’s
sexual molestation of a member of his family -- his fifteen-year-old
stepdaughter -- during the same period of time as he committed the
offenses of
which he now stands convicted, which involved sexual abuse of another
member of
his family -- his ten-year-old biological daughter; under the
circumstances of
this case, including appellant’s concurrent sexual abuse of two
different minor
members of his family, the absence of balancing under MRE 403 and MRE
414
during sentencing was harmless beyond a reasonable doubt).
United
States v. Osheskie, 63 M.J. 432 (if there has been a denial of due
process
because of post-trial or appellate delay, appellant is entitled to
relief
unless the court is convinced that the error was harmless beyond a
reasonable
doubt).
(where
an
appellate court can determine that any violation of the due process
right to
speedy post-trial review and appeal is harmless beyond a reasonable
doubt, it
need not undertake the four-factor Barker analysis prior to
disposing of
that post-trial or appellate delay issue).
United
States v. Thompson, 63 M.J. 228 (an appellate court conducts a de
novo
review to determine whether a nonconstitutional error in admitting
evidence is
prejudicial to an accused’s substantial rights, and it considers four
factors:
(1) the strength of the government’s case; (2) the strength of the
defense
case; (3) the materiality of the evidence in question; and (4) the
quality of
the evidence in question)
United
States v. Moss, 63 M.J. 233 (if a military judge abused his
discretion in
an evidentiary ruling that violated an accused’s Sixth Amendment’s
right to
confrontation, the case will be reversed unless the error is harmless
beyond a
reasonable doubt).
(in
determining
whether or not the erroneous exclusion of evidence is harmless, an
appellate
court considers: the importance of the witness’s testimony in the
prosecution’s
case, whether the testimony was cumulative, the presence or absence of
evidence
corroborating or contradicting the testimony of the witness on material
points,
the extent of cross-examination otherwise permitted, and of course, the
overall
strength of the prosecution’s case).
(the
erroneous
exclusion of evidence that the alleged child victim had a motive to
fabricate
rape allegations against the accused was not harmless beyond a
reasonable doubt
where the case was a credibility contest between the accused and the
alleged
child victim, and the ruling prevented the defense from attacking the
alleged
child victim’s credibility; as a result of the military judge’s
erroneous
ruling, the defense had no way of showing bias or motive to
misrepresent, and
the defense lost its ability to attack the government’s only evidence
against
the accused; it is impossible to say whether the evidence that could
have been
used to attack the credibility of the alleged child victim would have
raised
some doubt as to whether the alleged child victim’s version of the
event was
accurate; the military judge’s ruling essentially deprived the accused
of his
best defense, which was to demonstrate the alleged child victim’s bias
and to
meaningfully challenge her credibility; because the excluded evidence
may have
tipped the credibility balance in the accused’s favor, the error was
not
harmless beyond a reasonable doubt).
United
States v. Brisbane, 63 M.J. 106 (the military
judge’s error in admitting an unwarned statement that the accused gave
to the
Family Advocacy treatment manager concerning an incident involving his
eight-year-old stepdaughter was harmless beyond a reasonable doubt,
where the
accused repeated the same information and more to an OSI agent six
weeks later,
and the subsequent statement was voluntary under the circumstances and
admissible).
United
States v. Cohen, 63 M.J. 45 (the military judge’s error in
admitting
unwarned statements that appellant made to the IG regarding his taking
photographs of a rape incident in a hotel did not prejudice appellant
where
eyewitnesses placed appellant in the hotel room, the prosecution
presented the
photographs taken by appellant during the incident, and none of what
appellant
told the IG implicated appellant in the indecent act he was convicted
of
committing).
United
States v. Dobson, 63 M.J. 1 (the military judge’s error in
excluding the
proposed testimony of witnesses that the victim threatened to kill her
on two
occasions was prejudicial with respect to the issue of premeditation in
the
court-martial of appellant for premeditated murder of her husband; the
key
element of the government’s strategy was to convince the panel that
they could
discount the expert testimony on the impact of spousal abuse on
appellant on
the grounds that they should treat appellant’s entire testimony
regarding abuse
as a lie, and if the military judge had permitted the corroborating
testimony
of the excluded witnesses, the government would not have been able to
make that
argument).
United
States v. Quintanilla, 63 M.J. 29 (prejudice under the witness
sequestration rule, MRE 615, is determined by considering whether a
witness’s
testimony was affected by the trial proceedings that the witness heard;
in this
case, any error in allowing witnesses who were relatives of the victim
to
remain in the courtroom during the findings phase of the trial was
harmless,
where the witnesses testified only on sentencing, and even if their
testimony
was altered by what they heard at trial, the effect would not have been
relevant to the members’ determination of guilt and the sentence was
being
reversed on other grounds).
United
States v. Wolford, 62 M.J. 418 (if
instructional
error is found and there are constitutional dimensions at play, the
instructional claims must be tested for prejudice under the standard of
harmless beyond a reasonable doubt; the inquiry for determining whether
constitutional error is harmless beyond a reasonable doubt is whether,
beyond a
reasonable doubt, the error did not contribute to the accused’s
conviction or
sentence).
(in
this case,
the military judge erred in his affirmative defense instruction with
respect to
sending, receiving, and reproducing child pornography by using the
phrase
“conveys the impression,” language found by the Supreme Court to be
unconstitutional; however, this error was harmless beyond a reasonable
doubt
where there was no evidence in the record of a possible affirmative
defense and
the defense counsel agreed that no instruction was needed).
United
States v. Gaston, 62 M.J. 404 (the military judge’s error in
finding the
accused guilty of a UA terminated by apprehension rather than a UA
terminated
by surrender was harmless as to sentencing where this change had no
impact on
the maximum authorized sentence in this case which was limited by the
jurisdiction of a SPCM and where in arguing on sentencing, trial
counsel did
not focus on the nature of the accused’s return to military
control).
United
States v. Gonzalez, 62 M.J. 303 (harmless
beyond a reasonable doubt is a high standard, but it is not an
impossible
standard for the government to meet).
(the
government’s failure in a urinalysis drug use case to turn over a
laboratory
discrepancy report is error and will be treated as prejudicial error
when the
other available evidence does not constitute independent evidence of
illegal
drug use; where there is sufficient independent evidence of illegal
drug use,
the government’s error may be treated as harmless).
(in
this drug
use case, the government’s failure to turn over a laboratory
discrepancy report
was erroneous, but the error was harmless beyond a reasonable doubt
where in
addition to the positive drug test, the prosecution introduced
independent
evidence of drug use including evidence that appellant had drug
paraphernalia
associated with the drug both in his car and at his work station, that
he had
used this paraphernalia, that he admitted that he had attended at least
one
rave party and had fliers for thirteen rave parties in his car, and
that he
also admitted to prior drug use and to possession; although the missing
discrepancy report may have raised some questions about the accuracy of
the
testing process at the lab, appellant’s urine sample was subjected to
four
different tests, each of which showed positive for drug use; when the
missing
report is balanced with the evidence arrayed against appellant, the
scales tip
strongly in favor of his conviction; furthermore, although the
discrepancy report
was not produced, the defense counsel had sufficient information to
attack the
reliability of the laboratory testing process when during the
cross-examination
of the government expert, the defense counsel elicited testimony that
approximately two percent of internal blind aliquots were reported as
false
positives or with other incorrect results; while the government’s
failure to
produce the discrepancy report remains error, the evidence the defense
would
have introduced if it had the discrepancy report would have been to
some degree
cumulative of the overall false positive rate already in evidence; accordingly, it is unlikely that the missing
discrepancy
report would have had a substantial impact on the findings in light of
the four
different positive test results that were also in evidence).
(in this case, appellant did not receive
ineffective
assistance of counsel because there was no reasonable probability that
a
missing laboratory discrepancy report would have produced a different
result if
counsel had requested a copy; there was enough independent evidence
that
appellant used the alleged drug that his counsel’s failure to
identify
and request a copy of the report was not prejudicial; because appellant
had not
established that his counsel’s performance prejudiced the outcome of
his case,
he had not established that his Sixth Amendment right to counsel was
violated).
United
States v. Lonnette, 62 M.J. 296 (if a servicemember on appeal
alleges error
in the application of a sentence that involves forfeitures, the
servicemember
must demonstrate that the alleged error was prejudicial; to establish
prejudice, an appellant bears the burden of demonstrating that he or
she was entitled
to pay and allowances at the time of the alleged error).
(in
this case,
appellant failed to meet his burden of demonstrating that he was
entitled to
pay and allowances when the convening authority approved forfeiture of
all pay
and allowances after he was released from confinement; the critical
data
regarding entitlement to pay and allowances involves information that
is well
within the personal knowledge of members of the armed forces -- that
is, the
date of release from confinement, the commencement date of any
voluntary excess
leave, and the termination date of an obligated period of service; to
the
extent that a servicemember is unable to recall specific dates, the
data
normally is retained in military records; appellant has not alleged
that he was
unable to recall these dates, that he attempted to obtain the
appropriate
military records, or that he was unable to obtain access to any
records; he has
not provided the information necessary to determine whether he was
entitled to
pay and allowances on the pertinent dates; accordingly, he has not
established
prejudice under Article 59(a)).
(in
this case,
on the date appellant was released from confinement, his duty status
was
changed to present for duty; however, forty-five minutes later, he was
placed
on voluntary excess leave; a servicemember on voluntary excess leave is
not
entitled to pay and allowances; appellant has not presented any
evidence that
he subsequently entered a status for which he would have been entitled
to pay
and allowances; assuming that appellant was on active duty for
forty-five
minutes, the burden is on him to demonstrate that he was entitled to
pay and
allowances on that date, that forfeitures were erroneously taken, and
that if
there was error, it was prejudicial; appellant has not done so; the
speculative
possibility that appellant might have been entitled to an undefined
amount of
pay and allowances on a single day is not sufficient to establish
prejudice
under Article 59(a)).
United
States v. Capers, 62 M.J. 268 (with respect to an error in an SJA’s
post-trial recommendation, the prejudice prong involves a relatively
low
threshold -- a demonstration of some colorable showing of possible
prejudice;
although the colorable showing threshold is low, the prejudice must
bear a
reasonable relationship to the error, and it must involve a reasonably
available remedy).
(given
his
inability to identify a reasonably available alternative remedy related
to the
SJA’s erroneous advice with respect to forfeitures, appellant failed to
make a
colorable showing of possible prejudice).
United
States v. Rosenthal, 62 M.J. 261 (error in failing to submit
post-trial
clemency matter is tested for prejudice; because clemency is a highly
discretionary Executive function, there is material prejudice to the
substantial rights of an appellant if there is an error and the
appellant makes
some colorable showing of possible prejudice; appellant’s unrebutted
affidavit
provides evidence relevant to clemency regarding changes in appellant’s
circumstances during the two-year period between the convening
authority’s
first and second actions; appellant stated that he had matured, ceased
his drug
use, was studying for a commodity broker’s license, and wished to stay
in the
Marine Corps; the decision as to whether any or all of these matters
would
warrant clemency is a matter committed to the discretion of the
convening
authority under Article 60(c), UCMJ, 10 USC § 860(c), and RCM 1107; for
purpose
of this appeal, appellant has demonstrated a colorable showing of
possible
prejudice).
2005
United
States v. Scalo, 60 M.J. 435 (if defense counsel does not make a
timely
comment on an omission in the SJA’s recommendation, the error is waived
unless
it is prejudicial under a plain error analysis).
(in
the context
of a post-trial recommendation error, whether that error is preserved
or is
otherwise considered under the plain error doctrine, an appellant must
make
some colorable showing of possible prejudice).
(the
low
threshold for material prejudice with respect to an erroneous
post-trial
recommendation reflects the convening authority’s vast power in
granting
clemency and is designed to avoid undue speculation as to how certain
information might impact the convening authority’s exercise of such
broad
discretion; the threshold is low, but there must be some colorable
showing of
possible prejudice).
(in
the context
of a convening authority’s exercise of post-trial discretion, the
omission of
pretrial restraint information is not inherently prejudicial; there
must be a
colorable showing of possible prejudice in terms of how the omission
potentially affected an appellant’s opportunity for clemency).
(in
this case,
although appellant contended that knowledge of his pretrial restraint
could
have been the additional factor that would have persuaded the convening
authority to grant clemency, he did not show any connection between the
time he
spent in pretrial restraint and his clemency request; the petition for
clemency
that appellant submitted to the convening authority highlighted
appellant’s
cooperation with authorities, acceptance of responsibility, and desire
to
witness the birth of his child; appellant did not directly or
indirectly refer
to the pretrial restraint or suggest that the convening authority
should take
it into account in considering clemency; moreover, the 44-day period of
pretrial restraint was not of such unusual duration that there is a
reasonable
likelihood that the length alone -- without any mention by appellant --
would
have attracted the convening authority’s attention for purposes of
clemency;
under these circumstances, appellant has not made a colorable showing
of
possible prejudice).
United
States v. Farley, 60 M.J. 492 (even if the military judge did err
in
applying MRE 304(d)(2)(A) and 304(d)(5) in holding that appellant’s
motion to
suppress a statement he made to a social worker was untimely because it
was
made after his plea of guilty and in allowing the government to admit
the
statement in aggravation during presentencing, that error was harmless
beyond a
reasonable doubt given the overwhelming nature of the evidence
detailing the
numerous instances of rape, sodomy, and indecent acts committed by
appellant
with his stepdaughter over an extensive period of time).
United
States v. Israel, 60 M.J. 485 (in this case, the military judge
limited the
accused’s cross-examination in a manner that precluded him from
exploring the
possibility that the urinalysis testing process suffered from
irregularities;
presenting the possibility that the positive result from the urinalysis
test
was unreliable was the accused’s best defense to the government’s “gold
standard”
theory of the case; by precluding any meaningful inquiry into those
relevant
irregularities in the process, the accused was deprived of the
opportunity to
confront the “gold standard” theory properly; it is impossible to say
that the
members would not have taken evidence of irregularities in the testing
process
and possible errors in the results into consideration; having found
that
evidence of rates of untestable samples, a calibration error, and a
false-positive test result were erroneously excluded, this Court
concludes that
the error was not harmless beyond a reasonable doubt).
United
States v. Cano, 61 M.J. 74 (where an appellant demonstrates that
the
Government failed to disclose discoverable evidence in response to a
specific
request, the appellant will be entitled to relief unless the Government
can
show that nondisclosure was harmless beyond a reasonable doubt).
(the
military
judge’s error in failing to release to the defense a clinical
psychologist’s
medical records compiled during her therapy sessions with the child
abuse
victim was harmless beyond a reasonable doubt where any
inconsistencies
revealed in the withheld evidence were cumulative of other evidence
available
at trial, easily explained based on the victim’s age and maturity, and
were not
significant in relation to the victim’s overall testimony; in addition,
the
records did not provide any new ammunition for the defense to attack
the
victim’s credibility and did not provide evidence of suggestive
questioning or
coaching).
United
States v. Taylor, 61 M.J. 157 (for a nonconstitutional error, the
Government must demonstrate that the error did not have a substantial
influence
on the findings; when evaluating the harm from the erroneous admission
of
Government evidence, this Court weighs (1) the strength of the
Government’s
case, (2) the strength of the defense case, (3) the materiality of the
evidence
in question, and (4) the quality of the evidence in question).
(the
erroneous
admission of a declaration of desertion message and a declaration of
return
from desertion message was prejudicial error where those documents were
the
only evidence that appellant absented himself from his organization
without
authority, an element of the desertion charge; thus, the improperly
admitted
evidence had a substantial influence on the findings).
United
States v. Berry, 61 M.J. 91 (the error
in
admitting evidence of uncharged sexual acts between the accused and
another
victim that occurred eight years earlier than the charged forcible
sodomy when
the accused was thirteen and the other victim was six was prejudicial
where the
accused became not just a soldier who stood accused of forcible
sodomy,
but rather a child molester who was charged with the offense of
forcible sodomy; even though the evidence
of uncharged sexual acts was
admitted for the limited purpose of showing that the accused had a
propensity
to commit nonconsensual sexual acts against unusually vulnerable
persons, due
to inflammatory nature of the evidence and the emphasis given the
testimony by
the government, it was likely considered by the members as much more
than
propensity evidence and improperly tipped the balance of the
evidence;
the Government has not met its burden of demonstrating that this
improperly
admitted evidence did not have a substantial influence on the
findings).
United
States v. Jones, 61 M.J. 80 (the same evidence that supports the
due
process test’s prejudice factor for unreasonable post-trial delay also
demonstrates
prejudice for purposes of Article 59(a), UCMJ.).
United
States v. Billings, 61 M.J. 163 (although the military judge erred
in
allowing a jeweler to testify on the type of gold used in the watch
pictured in
government photos, this error was harmless where the defense counsel,
through
voir dire and cross-examination, was able to demonstrate the
shortcomings of
both the jeweler’s expertise and his method of comparison, and where
the
government marshaled strong evidence apart from the jeweler’s testimony
that
the watch in the photos was the watch stolen in the robbery; we need
not decide
whether the military judge properly performed his gatekeeping function,
because
any error in admitting this evidence was harmless in light of the
overwhelming
evidence against appellant).
United
States v. Gorence, 61 M.J. 171 (if
there were any
error during sentencing in permitting the trial counsel to elicit
information
concerning appellant’s pre-service drug use from his mother to rebut
matters as
to which the military judge opened the door, the error was harmless
where the
trial was by military judge alone, where statements made by the
military judge
on the record suggested that he did not give significant weight to
mother’s
speculative testimony that appellant used drugs in high school, and
where the
military judge recommended that appellant be returned to duty).
United
States v. Alexander, 61 M.J. 266 (where an error is procedural
rather than
jurisdictional in nature, this Court tests for material prejudice to a
substantial right to determine whether relief is warranted).
United
States v. Garlick, 61 M.J. 346 (any error in failing to disclose to
the
accused information about factual inaccuracies in a search warrant
affidavit of
an FBI special agent who conducted a child pornography investigation
which led
to the charges against the accused was harmless beyond a reasonable
doubt,
where the government’s undisclosed information was within the accused’s
knowledge well before trial; even after being formally notified after
trial of
a disclosure error, and obtaining a delay to consider legal options,
accused’s
counsel declined to litigate the issue or advocate its importance to
the
convening authority in her RCM 1105 submission).
United
States v. Brewer, 61 M.J. 425 (with regard to a military judge’s
erroneous
ruling excluding defense witnesses, because an accused has the right to
present
witnesses under the Constitution and RCM 703(b), the government must
show that
this error was harmless beyond a reasonable doubt).
(excluding
several defense witnesses made it impossible for the accused to present
his
innocent ingestion defense that those who saw him most frequently over
a
substantial portion of the charged time frame had not seen him use
marijuana,
possess marijuana paraphernalia, or appear to be under the influence of
marijuana; this line of defense was relevant to rebut the inference
that his
use of marijuana was wrongful; while the government’s evidence was
strong
(urinalysis and hair analysis) to support a finding that the accused
had
marijuana in his system, it relied solely on the permissive inference
of
wrongful use to meet that essential element of the charge; therefore,
the
exclusion of these witnesses was not harmless beyond a reasonable doubt
because
without their testimony that permissive inference was left
unchallenged; this
prejudice was compounded by the military judge’s confusing and
erroneous
instruction; the accused was not permitted to challenge the inference
that his
use was wrongful, while at the same time reasonable members may have
understood
the instruction to require them to find the use wrongful if he did not
make a sufficient
showing to the contrary; thus, the accused was left without recourse to
rebut
an essential element of the charge against him, and the government was
relieved
of its burden to prove that element beyond a reasonable doubt; these
errors
created prejudice to the accused that was not harmless beyond a
reasonable
doubt).
United
States v. Johnson, 62 M.J. 31 (the
erroneous
admission of the evidence of the accused’s bank records for the purpose
of
showing a motive to transport and distribute drugs was harmless
considering the
strength of the government’s case and the limitations inherent in the
defense
presentation that the accused lacked knowledge of the contents of the
box he was
transporting).
United
States v. Sowell, 62 M.J. 150 (the military judge’s error in not
allowing
the accused from mentioning in her unsworn statement the fact of her
co-conspirator’s
acquittal, despite the trial counsel’s implication that the
co-conspirator was
guilty, had a substantial influence on sentencing; although the members
might
have drawn the inference that the co-conspirator was acquitted or
received no
punishment on account of her presence in the courtroom as a witness,
they might
also have reasonably inferred that she had yet to be tried for the same
offense
as the accused, and because she was an alleged co-conspirator with the
accused
based on the same facts, trial counsel’s argument and its implications
necessarily reached to the core of the accused’s own case).
United
States v. McNutt, 62 M.J. 16 (the military judge’s error in
considering the
Army’s good-time credit policy in assessing the accused’s sentence to
confinement was prejudicial where it lengthened the accused’s sentence
by ten
days for an improper reason).
United
States v. Rhodes, 61 M.J. 445 (where error is founded on a
violation of MRE
404(b), the test for harmlessness is whether we can say with fair
assurance,
after pondering all that happened without stripping the erroneous
action from
the whole, that the judgment was not substantially swayed by the error;
the
defense must initially meet the threshold burden of showing that an
error has
occurred which is of such a character that its natural effect is to
prejudice a
litigant’s substantial rights; the burden then shifts to the government
to
persuade us that the error was harmless).
United
States v. Shelton, 62 M.J. 1 (even assuming that defense-requested
witnesses possessed information relevant and necessary under RCM
703(b)(1) to
demonstrate that appellant’s roommate had the motive and opportunity to
kill
the same person that appellant was charged with killing, and that
appellant was
entitled to their production, any error in denying their production was
harmless beyond a reasonable doubt where the government’s case against
appellant was very strong, to include detailed testimony from
appellant’s
co-actor that was corroborated by physical evidence and other
testimony, and where
the defense was unable to provide any reasonable explanation as to why
appellant’s co-actor would substitute appellant for his roommate as his
co-actor).
United
States v. Warner, 62 M.J. 114 (prejudice is presumed in this shaken
baby
case where: (1) the government denied the defense’s request for an
expert and
instead provided the defense with a substitute expert of its choice;
(2) the
government had obtained an expert in the same subject matter area for
itself;
(3) the defense challenged the relative qualifications of the
substitute
expert; (4) the military judge denied a defense motion seeking an order
requiring the originally-requested expert to be detailed to the case;
and (5)
the substitute expert provided by the government was not adequate
because her
professional qualifications concerning shaken baby syndrome were not
reasonably
comparable to those of the government’s expert).
(a military judge’s erroneous
denial of a
defense motion for a more qualified expert consultant was prejudicial
in a
court-martial of an accused for an assault on his infant son where it
left the
defense without the adequate tools necessary to analyze and possibly
challenge
or rebut the opinion of the government’s expert that the injuries
suffered by
the accused’s son were due to the severe shaking of the child).
United
States v. Bresnahan, 62 M.J. 137 (the harmlessness of an erroneous
admission of evidence on the merits will be evaluated by
weighing: (1)
the strength of the government’s case, (2) the strength of the defense
case,
(3) the materiality of the evidence in question, and (4) the quality of
the
evidence in question).
(under the plain error
standard,
appellant must show that any error was plain and obvious and that it
resulted
in an unfair prejudicial impact on the factfinders’ deliberations).
United
States v. Clark, 62 M.J. 195 (to evaluate the prejudice from a
military
judge’s erroneous evidentiary ruling on the merits, an appellate court
considers (1) the strength of the government’s case, (2) the strength
of the
defense case, (3) the materiality of the evidence in question, and (4)
the
quality of the evidence in question).
(in this case, a military
judge’s error
in releasing and admitting into evidence an accused’s privileged
statements to
a sanity board had a substantial influence on the findings, requiring
reversal,
where the accused was prejudiced by the government’s later use of those
statements to rebut his claims of diminished mental responsibility and
where
the government’s case relied heavily on the improper use of those
statements by
the sole member of the sanity board; the accused’s insanity defense may
have
succeeded if the military judge had not released the privileged
statements to
the government and allowed the prosecution to use them to the accused’s
detriment).
2004
United
States v. Lovett, 59 MJ 230 (we hold that even
assuming the
judge erred in receiving the hearsay statements within PE 12 into
evidence, in
overruling defense counsel’s objection to LS’s hearsay testimony, and
in not
permitting defense counsel to question LC about whether appellant did
not want
TL harmed, any such errors were harmless; appellant suffered no
prejudice from
the admission of hearsay statements contained in PE 12 and LS’s trial
testimony; the hearsay statements were addressed without defense
objection
during TL’s direct examination, were used by the defense to
cross-examine TL,
were consistent with and cumulative of the declarants’ own in-court
testimony,
and were contained in PE 13, which was admitted without defense
objection;
finally, the judge’s failure to permit defense counsel to question LC
regarding
appellant’s exact intentions was harmless because the court members
ultimately
found that appellant did not solicit LC to murder TL -- but rather only
to
commit an act prejudicial to good order and discipline; counsel’s
inability to
probe LC to show that he did not solicit murder could not have been
prejudicial
to appellant).
United
States v. Saferite, 59 MJ 270 (we review a military
judge’s
evidentiary rulings for abuse of discretion; when the military judge
conducts a
proper balancing test, we will not overturn the ruling to admit the
evidence
unless there is a clear abuse of discretion).
(in
this case,
the military judge clearly abused his discretion where although the
evidence of
his wife’s possible complicity in appellant’s escape from confinement
was logically
relevant to show her bias in favor of appellant, its probative value
was
substantially outweighed by the danger of unfair prejudice; the
probative value
was minimal where the content and tone of her statement convincingly
showed her
bias as the wife of appellant; evidence of her possible complicity in
appellant’s escape added little to establish her bias in her statement;
at
best, it was merely cumulative on the issue of her bias toward
appellant; on
the other hand, the danger of unfair prejudice was substantial where
the
evidence tended merely to allege uncharged misconduct by appellant and
show the
members the government’s theory that appellant was guilty of conspiring
with
his wife and involving her in the criminal conduct of his escape; the
factual
evidence of this theory was tenuous at best; and notwithstanding the
factual
deficiency to link his wife to appellant’s escape, trial counsel
focused his
argument on the uncharged misconduct rather than on bias).
(although
we identify a danger of unfair prejudice, we further hold that the
error was
harmless under the particular facts of this case where evidence of
appellant’s
escape was already before the members, where appellant was tried in
absentia,
where the military judge carefully instructed the members to sentence
appellant
only for the offenses of which he was convicted, and where the maximum
period
of confinement was 230 years, the trial counsel asked for 16 years
confinement,
and the members imposed confinement for only six years).
United
States v. Jackson, 59 MJ 330 (if the Government fails
to
disclose discoverable evidence, the error is tested on appeal for
prejudice,
which is assessed in light of the evidence in the entire record; as a
general
matter, when an appellant has demonstrated error with respect to
nondisclosure,
the appellant will be entitled to relief only if there is a reasonable
probability that there would have been a different result at trial if
the
evidence had been disclosed; when an appellant has demonstrated that
the
Government failed to disclose discoverable evidence with respect to a
specific
request or as a result of prosecutorial misconduct, the appellant will
be
entitled to relief unless the Government can show that nondisclosure
was
harmless beyond a reasonable doubt).
(with
respect to
prejudice in this case, where the prosecution focused primarily on a
urinalysis
laboratory result, and where the defense focused primarily on the
reliability
of the laboratory process, the defense could have used the undisclosed
laboratory discrepancy report to demonstrate the existence of quality
control
problems; as a result, there is a reasonable probability that such
evidence
could have influenced the members’ judgment about the reliability of
the
testing process).
(we
conclude
that the Government’s error in failing to disclose a laboratory
discrepancy
report deprived the defense of information that could have been
considered by
the members as critical on a pivotal issue in the case -- the
reliability of
the laboratory’s report that appellant’s specimen produced a positive
result;
given the significance of this information in the context of
appellant’s trial,
the error was prejudicial under the harmless beyond a reasonable doubt
standard, as well as under the standard of a reasonable probability of
a
different result).
United
States v. Santos, 59 MJ 317 (if the Government fails
to
disclose discoverable evidence, the error is tested on appeal for
prejudice,
which is assessed in light of the evidence in the entire record; as a
general
matter, when an appellant has demonstrated error with respect to
nondisclosure,
the appellant will be entitled to relief only if there is a reasonable
probability that there would have been a different result at trial if
the
evidence had been disclosed; when an appellant has demonstrated that
the
Government failed to disclose discoverable evidence with respect to a
specific
request or as a result of prosecutorial misconduct, the appellant will
be
entitled to relief unless the Government can show that nondisclosure
was
harmless beyond a reasonable doubt).
(under
the standards set forth in United States v. Roberts, __
M.J. __
(C.A.A.F. 2004) and the cases cited therein, an appellate court may
resolve a
discovery issue without determining whether there has been a discovery
violation if the court concludes that the alleged error would not have
been
prejudicial).
(the
review of discovery violations involves case-specific considerations;
in
another case, undisclosed documents from an unrelated investigation
that cast
doubt on the credibility of a witness might have greater value; in the
present
case, in light of the minimal probative value and utility of the
undisclosed
documents at issue, and in light of all the evidence presented in the
record,
we hold that any error in not providing these documents to appellant
during
discovery was harmless beyond a reasonable doubt).
(after
applying the harmless error test to the facts of this case, we cannot
be
confident that the findings of the court-martial were not substantially
influenced by the improperly admitted evidence of the appellant’s
childhood
conduct where the childhood acts were not only irrelevant and highly
inflammatory, but indistinguishable from propensity evidence, and could
only
have harmed appellant in the eyes of the members).
United
States v. Thompson, 59 MJ 432
(the
failure to conduct a statute of limitations waiver inquiry with
appellant, the
erroneous inclusion of the time-barred period in the instructions to
the
members, and the post-announcement modification of the findings
constituted a
series of errors materially prejudicial to the substantial rights of
appellant).
United
States v. Simmons, 59 MJ 485 (we conclude that
the
military judge’s error in admitting appellant’s letter and his
derivative
videotaped statement concerning the sexual nature of his relationship
with an
enlisted subordinate was not harmless beyond a reasonable doubt with
respect to
the members' guilty finding of conduct unbecoming an officer and a
gentleman in
regard to the sexual contact and the improperly admitted letter; the
only
evidence of a sexual relationship apart from the improperly admitted
letter and
derivative videotaped statement was appellant’s own trial testimony; we
are not
convinced that the defense strategy of having appellant testify at
trial
concerning the sexual nature of the relationship would have been the
same in
the absence of the improperly admitted evidence; although we need not
determine
whether their improper admission was the exclusive motivation,
appellant's
trial testimony on this aspect of the charged offense was clearly
responsive to
the letter and derivative videotaped statement; in the absence of those
items
of evidence (which should not have been admitted) or other supporting
testimony
(which did not exist), the record does not reflect any other evidence
available
to demonstrate the existence of an intimate relationship involving
sexual contact;
under those circumstances, we cannot view appellant's trial testimony
as an
independent basis for concluding that the improperly admitted evidence
did not
contribute to that portion of the finding regarding sexual contact).
(we
conclude
that the military judge's error in admitting appellant’s letter and his
derivative videotaped statement concerning the sexual nature of his
relationship with an enlisted subordinate was harmless beyond a
reasonable
doubt with respect to that portion of the members' guilty finding that
appellant violated Article 133 by engaging in a close personal
friendship and
overnight guest relationship with that subordinate; there was testimony
and
evidence unrelated to the improperly admitted letter and derivative
statement
that demonstrated the unprofessional character of appellant’s
relationship with
the subordinate; moreover, appellant did not seriously contest the
friendship
and roommate aspects of the charge).
(the
government
has not met its burden of demonstrating beyond a reasonable doubt that
the
admission of the illegally seized letter and the derivative videotaped
statement did not contribute to the finding of guilt under the assault
charge;
under the government's theory of the case, the assault was the direct
product
of appellant’s alleged gay obsession with his enlisted subordinate; but
the
illegally seized letter and derivative videotaped statement were the
obvious
centerpieces of the government's theory and were the only evidence
apart from
appellant’s derivative trial testimony that concerned a homosexual
relationship; in addition, appellant vigorously contested that theory
of the
assault and raised evidence under a self-defense theory; the
subordinate
testified to only a limited recollection of the events surrounding the
fight;
and the only other witness testified that he saw the subordinate
pinning
appellant to a window with his arm to his throat; under those
circumstances,
the government has not met its burden of demonstrating that the error
was
harmless beyond a reasonable doubt under the Chapman analysis;
we cannot
say that the improper admission of the evidence at issue here and the
gay
obsession theory that it was offered in support of did not contribute
to the
finding of guilty under the assault charge).
United
States v. Jenkins, 60 MJ 27 (Article 66(c) review is a
substantial right; it follows that in the absence of such a complete
review,
appellant has suffered material prejudice to a substantial right).
United
States v. Pinero, 60 MJ 31 (acceptance of appellant’s
plea to
a longer period of absence than he was in fact guilty of may prove to
be
harmless, but it was still error to accept the plea and we should not
conflate
that which is harmless with that which is de minimis in our analysis).
United
States v. Rodriguez, 60 MJ 87 (the majority of the
federal
circuits test for prejudice in cases of improper racial argument; in
our view,
unwarranted references to race or ethnicity have no place in either the
military or civilian forum; the Supreme Court has not suggested
otherwise;
however, we see no reason not to adhere to the prevailing approach; our
holding
acknowledges the importance of a fair trial and the insidious impact
that
racial or ethnic bias, or stereotype, can have on justice; at the same
time,
our holding acknowledges that where, in fact, there is no prejudice to
an
accused, we should not forsake society’s other interests in the timely
and
efficient administration of justice, the interests of victims, and in
the
military context, the potential impact on national security
deployment).
(appellant
did
not suffer material prejudice to a substantial right where trial
counsel’s
argument was before a military judge alone; military judges are
presumed to
know the law and to follow it absent clear evidence to the contrary;
finally,
there is no indication in the record that the statement affected the
military
judge or impacted Appellant’s sentence; appellant’s maximum exposure
for his
offenses was, among other punishments, over 54 years of confinement and
a
dishonorable discharge; his adjudged sentence, however, included only
three
years of confinement, total forfeitures, a fine, and a dishonorable
discharge).
(we
caution that
prejudice determinations with respect to improper racial argument are
fact
specific; in a given situation, racial or ethnic remarks, including
before a
military judge, may deny an accused a fair trial; race is different).
(it
is the rare
case indeed, involving the most tangential allusion, where the
unwarranted
reference to race or ethnicity in argument will not be obvious error;
our
concern with unwarranted statements about race and ethnicity are
magnified when
the trial is before members; this is true whether or not it is
motivated by
animus, as we cannot ultimately know what effect, if any, such
statements may
have on the fact finder or sentencing authority).
United
States v. Byrd, 60 MJ 4 (we evaluate prejudice from an
erroneous evidentiary ruling by weighing (1) the strength of the
Government’s
case, (2) the strength of the defense case, (3) the materiality of the
evidence
in question, and (4) the quality of the evidence in question; the
burden of
demonstrating harmlessness rests with the Government).
(although
the military judge improperly allowed a lay witness to offer her
opinion about
appellant’s meaning in various passages of letters he wrote to her,
this Court
finds the error to be harmless where the inadmissible testimony was of
limited
materiality and insignificant).
United
States v. Marcum, 60 MJ 198 (a finding or sentence of
court-martial may not be held incorrect on the ground of an error of
law unless
the error materially prejudices the substantial rights of an accused).
United
States v. Traum, 60 MJ 226 (in this case, any error in
admitting a statement that was impermissible profile evidence was
harmless
where the statement was introduced after the accused’s confession had
been
admitted and presented to the members, and the critical question was
whether
the victim died by accidental or intentional asphyxiation, and not the
identity
of the perpetrator).
2003
United
States v. Miller, 58 MJ 266 (although the military
judge
erred by not giving the general sentencing instruction on pretrial
confinement,
and even if he erred by not giving the requested pretrial confinement
instruction as he said he would, we are convinced that appellant
suffered no
prejudice; the record reveals no evidence to suggest that the nature of
the
pretrial confinement was unduly harsh or rigorous; in the scheme of the
defense
sentencing case, three days in pretrial confinement was de minimis; the
issue
of three days in pretrial confinement was obviously of little
consequence to
either party; finally, given the facts of this case, we note that the
adjudged
sentence was favorable to appellant; under the circumstances, appellant
was not
prejudiced by the absence of the standard Benchbook
instructions on
pretrial confinement and pretrial confinement credit).
United
States v. McCollum, 58 MJ 323 (whether an error,
constitutional or otherwise, was harmless is a question of law that we
review
de novo; the Government has the burden of persuading us that a
constitutional
error is harmless beyond a reasonable doubt; for nonconstitutional
errors, the
Government must demonstrate that the error did not have a substantial
influence
on the findings).
(the erroneous admission of privileged marital communications
constitutes
nonconstitutional error for purposes of harmless error analysis).
(in determining the prejudice resulting from the erroneous admission
of
evidence, we weigh (1) the strength of the Government’s case, (2) the
strength
of the defense case, (3) the materiality of the evidence in question,
and (4)
the quality of the evidence in question).
2002
United
States v. Hall, 56 MJ 432 (for constitutional
errors, the
government must persuade the appellate court that the error was
harmless beyond
a reasonable doubt).
(for nonconstitutional errors, the government must persuade the
appellate
court that the error did not have a substantial influence on the
findings).
(prejudice from an erroneous evidentiary ruling is evaluated under a
four-pronged test; the court weighs: (1) the strength of the
Government’s case;
(2) the strength of the defense case; (3) the materiality of the
evidence in
question; and (4) the quality of the evidence in question).
(any error in excluding portions of testimony supporting entrapment
defense
was harmless beyond a reasonable doubt in light of appellant’s own
testimony
establishing his predisposition to facilitate the transfer of steroids,
which
was corroborated by testimony of two separate witnesses).
United
States v. Gilbride, 56 MJ 428 (military judge’s
error in
denying appellant’s request to introduce the exculpatory remarks from
his
written statement under the rule of completeness in Mil.R.Evid.
304(h)(2) is
tested to determine whether it materially prejudiced the substantial
rights of
appellant under Article 59(a), UCMJ, 10 USC § 859(a)).
(military judge’s error in denying appellant’s request to introduce
the
exculpatory remarks from his written statement under the rule of
completeness
in Mil.R.Evid. 304(h)(2) was harmless where: (1) although the
military
judge initially rejected defense counsel’s completeness argument, he
subsequently permitted the defense to introduce appellant’s exculpatory
statement during the prosecution’s case; (2) defense counsel was able
to
effectively argue that appellant did not have the requisite intent for
the
offense of intentional infliction of grievous bodily harm; (3)
appellant was
convicted only of the lesser-included offense of aggravated assault,
and (4)
the damage from the error in applying the completeness doctrine was not
irreparable.
United
States v. Guyton-Bhatt, 56 MJ 484 (where nearly
all of the
information secured by a legal assistance officer in violation of
Article 31
was introduced at trial through independent sources, the error in
admitting
appellant’s statements to the legal assistance officer was harmless
beyond a
reasonable doubt).
United
States v. Benton, 57 MJ 24 (error in excluding
part of
appellant’s purported confession (Mil.R.Evid. 304(h)(2)) was harmless
where: (1) appellant himself was allowed to testify that his
participation in the kidnapping was coerced and that he did not
sodomize the
victim; (2) the corroborative value of the excluded evidence that
appellant
told a fellow pretrial confinee sometime after the crime the same
exculpatory
story was not great; and (3) any corrective value which the excluded
evidence
might have had to prevent the members from thinking appellant had
confessed was
largely minimized by appellant’s own testimony which denied the
conversation
with the fellow pretrial confinee).
United
States v. Walker, 57 MJ 174 (in a case pitting the
credibility of appellant against that of the victim, the defense theory
– to
portray the victim as a passive, compliant child, who had embellished
an
inadvertent, innocent act in response to the intense, repeated, and
suggestive
questioning of a host of well-meaning adults – was seriously undermined
by the
admission of the hearsay statement of appellant’s wife which was used
by the
Government to show that, two days after the incident, long before
anyone began
questioning the victim and long before she was subjected to the
influences of
well-meaning adults, appellant made a damaging admission to his wife).
United
States v. Humpherys, 57 MJ 83 (an evidentiary
error may be
harmless when evidence of the guilt of the accused is overwhelming).
United
States v. Alameda, 57 MJ 190 (whether an error was
harmless is reviewed de novo).
(the following four factors are considered to evaluate prejudice
from
erroneous evidentiary rulings: (1) the strength of the
government’s case,
(2) the strength of the defense case, (3) the materiality of the
evidence in
question, and (4) the quality of the evidence in question).
(for constitutional error, reviewing court must be satisfied beyond
a
reasonable doubt that the error was harmless; for non-constitutional
error, the
court must be satisfied that the judgment was not substantially swayed
by the
error; if the court is not satisfied, or if it is left in grave doubt,
the
conviction cannot stand).
(a distinction exists between direct review and collateral review in
determining if impermissible comment on pretrial silence was
harmless: on
direct review, reviewing court must be satisfied beyond a reasonable
doubt that
the error was harmless; on collateral review, the court must be
satisfied that
the judgment was not substantially swayed by the error).
(after considering the admissible evidence of premeditation and
intent to
kill, Court of Appeals for the Armed Forces was are not satisfied
beyond a
reasonable doubt that the members would have convicted appellant of
attempted
premeditated murder, the lesser-included offenses of attempted
unpremeditated
murder, or attempted voluntary manslaughter, without (1) the testimony
about
appellant’s post-apprehension silence, (2) masking tape, latex gloves,
and
utility knife which were irrelevant, (3) the improper comment of trial
counsel
on appellant’s post-apprehension silence, and (4) the instruction of
the
military judge that may have exacerbated the impact of trial counsel’s
argument
by leading the members to conclude that they were permitted to draw an
adverse
inference from appellant’s silence at the time of his apprehension).
United
States v. Ellis, 57 MJ 375 (after the loss of
certain
bodily tissue evidence, refusal to give an adverse inference
instruction was
harmless beyond a reasonable doubt in light of appellant’s confession;
an
accused’s confession goes far in rendering harmless any error in the
military
judge’s failure to give an adverse inference instruction or stop trial
counsel
from commenting on the defense’s inability to examine lost evidence).
(Court concluded there was no reasonable likelihood the members
would have
found appellant’s confession was involuntary or unreliable, even if the
military judge had given the adverse inference instruction and stopped
trial
counsel from making prohibited comments, where: (1) given the
magnitude
and variety of the injuries revealed by the autopsy, there was simply
no way
the members could conclude they were caused by a single hit to the head
with a
baseball bat three weeks earlier, or by less traumatic, self-inflicted
head-banging; (2) on this record, the only thing the members could
conclude,
even with the requested adverse inference instruction and without trial
counsel’s questionable comments, was that the multiple injuries had to
be
caused by the June 2 and 4 beatings described by appellant in his
detailed
confession; and (3) the members were properly instructed on their role
in
determining the voluntariness and reliability of the confession and
that they
could not give less weight to the defense expert’s testimony simply
because he
did not examine the brain, and we assume they did not).
2001
United
States v. Pineda, 54 MJ 298 (appellant was not
prejudiced
by military judge’s failure to make adequate inquiries into defense
counsel’s
concession that a punitive discharge was appropriate; where the facts
of a
given case compel a conclusion that a bad-conduct discharge was
reasonably
likely, a new sentence hearing is not normally ordered; here, appellant
implicitly acknowledged the reasonable certainty of a punitive
discharge where
he was convicted of numerous offenses reflecting his repeated abuse of
government property entrusted to him).
United
States v. Vasquez, 54 MJ 303 (appellant was
prejudiced by
the erroneous introduction of an admission of guilt to unauthorized
absence
made in conjunction with a request for administrative separation in
lieu of
court-martial (Mil. R. Evid. 410), where the court could not say with
fair
assurance that the improper evidence did not have a substantial
influence on
the sentence imposed by the military judge).
United
States v. Rush, 54 MJ 313 (failure of the military
judge
to give a defense-requested instruction on the ineradicable stigma of a
punitive discharge is not constitutional error, but rather a violation
of a
Manual provision promulgated by the President to ensure a military
accused a
fair trial; such an error will be tested to determine whether it
substantially
influenced the sentence proceedings such that it led to a bad-conduct
discharge
being unfairly imposed).
United
States v. Kulathungam, 54 MJ 386 (although trial
counsel
erroneously inserted findings of guilty into the record of trial prior
to
authentication, even though no findings were announced based on
appellant’s
guilty pleas, this error did not substantially prejudice appellant).
United
States v. Riveranieves, 54 MJ 460 (appellant was
prejudiced where trial counsel misstated evidence during argument on
findings
and, upon objection, the military judge agreed with trial counsel’s
reading of
the record and communicated this belief to the members; prejudice under
these
circumstances is determined by the particular circumstances of each
case, and
prejudice was found in this base because: (1) there was no
immediate or
timely curative instruction; (2) this was a urinalysis case and the
misstatement pertained to a critical issue and its resolution based on
scientific principles; and (3) the judge’s comments effectively blunted
appellant’s previously noted defense that his urine sample had been
purposefully tampered with after he submitted it to military
authorities).
United
States v. Huhn, 54 MJ 493 (setting aside one
specification
of larceny as multiplicious was harmless with respect to the sentence
and the
error had no substantial influence on the sentence where: (1) the
nature
of the conduct admitted by appellant was not changed; (2) the maximum
punishment was not significantly changed; (3) the military judge
sentenced
appellant to only one-tenth of the maximum imposable confinement; and
(4) the
convening authority cut the adjudged confinement in half).
United
States v. Binegar, 55 MJ 1 (military judge’s
instructional
error informing the members that appellant’s mistake must have been
both honest
and reasonable, rather than only honest in order to provide a defense
to
larceny was materially prejudicial where: (1) the instruction
placed a
lesser burden on the government to prove appellant’s guilt because it
could
secure his conviction by disproving either the honesty or the
reasonableness of
the mistake; (2) trial counsel exploited the erroneous instruction in
his
findings argument; and (3) the government presented a substantial case
on the
unreasonableness of appellant’s conduct, creating a reasonable
possibility that
the members resolved this case against appellant on this basis.
United
States v. Gunkle, 55 MJ 26 (Court of Criminal
Appeals’
determination that an error was harmless is reviewed de novo;
the test
for nonconstitutional evidentiary error is whether the error had a
substantial
influence on the findings).
(prejudice from an erroneous evidentiary ruling is evaluated by
applying a four-part test: (1) weighing the strength of the
prosecution case; (2) weighing the strength of the defense case; (3)
weighing
the materiality of the evidence at issue; and (4) weighing the quality
of the
evidence at issue).
(error in permitting testimony of two forensic interviewers and an
interview
transcript of interview with child victim was harmless in light
of: (1)
unequivocal and specific testimony of two child victims; (2) the
repetitive
nature of the encounters which seriously undermined appellant’s claim
that the
encounters were inadvertent and unwanted; (3) the fact that although
material,
the evidence was cumulative of the in-court testimony of the
victims; and
(4) the fact that the case was tried by a military judge alone
who had
ample opportunity to assess the credibility of the victims).
United
States v. Hursey, 55 MJ 34 (error in admitting
potentially
prejudicial and baseless testimony about the appellant’s absence at the
scheduled time for trial as rebuttal on sentencing was harmless
where:
(1) the sentence adjudged was substantially less than the maximum
authorized
punishment; and (2) appellant’s personnel record with admissible
evidence of
misconduct and derelictions).
United
States v. Fulton, 55 MJ 88 (where military judge
incorrectly concluded that he had no authority to dismiss charges for
illegal
pretrial punishment, such an error will be prejudicial if the reviewing
court
concludes: (1) that dismissal was the only appropriate remedy as
a matter
of law, or (2) that there was a reasonable likelihood the military
judge would
have considered dismissal as a remedy had he been aware that he had the
discretion to dismiss the charges).
(although military judge incorrectly concluded that he had no
authority to
dismiss charges for illegal pretrial punishment, the fact that he chose
not to
impose a remedy greater than a three-for-one confinement credit makes
it clear
that the military judge did not consider the three-for-one remedy
inadequate
and would not have chosen the most drastic remedy – dismissal – even
had he
been aware that it was an available option).
United
States v. Ivey, 55 MJ 251 (any error by the
military judge
in deciding that requests for immunity had been de facto denied
before
those requests were presented to the convening authority was harmless
and had
no substantial influence on the findings where the convening would have
denied
the requests in any event).
(any error by the military judge in deciding that requests for
immunity had
been de facto denied before those requests were presented to
the
convening authority was not of constitutional dimension).
United
States v. Grijalva, 55 MJ 223 (if the military
judge errs
by considering statements made by an accused that were outside the
waiver of
the right against self-incrimination that follows from a provident plea
of
guilty, the error would be of constitutional dimension, and the
findings could
not be affirmed unless the reviewing court is satisfied that the error
was
harmless beyond a reasonable doubt).
(error of constitutional dimension - considering appellant’s
United
States v. Catrett, 55 MJ 400 (assuming a Miranda
violation,
admitting appellant’s statement to civilian police that he hit the
victim with
a dog bone and a statue was harmless beyond a reasonable doubt where
the victim
testified to the same assault, eyewitness statements from appellant’s
wife to
the same effect were admitted, and the bloodied dog bone was discovered
in
plain view before appellant made the challenged incriminating
United
States v. Bolkan, 55 MJ 425 (assuming that defense
counsel
conceded the appropriateness of a punitive discharge and that the
military
judge erred in not conducting an inquiry into whether defense counsel’s
argument reflected appellant’s desires, any error was harmless
where: (1)
defense counsel’s argument made a strategic decision recognizing that
if the
members must choose between confinement and a bad-conduct discharge,
they
should give appellant the punitive discharge; (2) defense counsel was
realistic
in her approach by accepting the force of adverse facts; and, (3) this
was a
case in which there was no reasonable probability of retention in the
service).
United
States v. Whitney, 55 MJ 413 (improper comment
about
appellant’s post-polygraph silence in the face of a challenge to his
truthfulness was harmless beyond a reasonable doubt because, inter
alia:
(1) the military judge admonished the members to disregard this
testimony; (2)
the president of the court acknowledged that he understood instruction
to disregard
testimony about appellant’s silence; (3) in the absence of evidence to
the
contrary, court members are presumed to understand and follow the
military
judge’s instructions; and (4) the victim provided credible, persuasive
testimony).
United
States v. Washington, 55 MJ 441 (military judge’s
refusal
to admit a summary of expected lost retirement pay if appellant was
awarded a
punitive discharge was materially prejudicial where appellant suffered
post-traumatic stress disorder, appellant’s rehabilitative potential
was not
necessarily bleak, and the decision to award a punitive discharge was a
close
call).
2000
(constitutional error in admitting improper hearsay to the effect
that
appellant was “predatory in nature” was harmless beyond a reasonable
doubt in
light of the fact that: this was appellant’s second offense; he
was not a
good candidate for rehabilitation; and the erroneous reference to the
hearsay
paled in comparison to appellant’s record of sexual misconduct and the
seriousness of the offense).
United
States v. Roberts, 52 MJ 333 (even if
cross-examination of
appellant about previous positive drug test and appellant’s claim of
innocent
ingestion in response to that test was improper, appellant could not
have been
prejudiced under any standard where: (1) appellant was described
as
looking “[s]hocked,” “disheveled,” and like an “emotional wreck” when
he was
apprehended; (2) appellant admitted to his leading chief petty officer
that “he
did some coke”; (3) appellant’s written statement admitted receiving
something
from an acquaintance to cheer him up which appellant assumed was
something else
(cocaine); and, (4) appellant was impeached by his acknowledgement that
he had
been convicted of three specifications of false official statements, by
a
general court-martial convened about 7 years earlier).
(any error in admission of a witness’s testimony that child’s story
“didn’t
sound like a lie” which the military judge made clear he was not
considering
for the truth of what the child might have said, or any error in
admission of a
clinical social worker’s testimony which the military judge announced
he would
give very little weight, was not prejudicial in the context of this
judge alone
trial where the military judge was able to assess the credibility of
the victim
himself).
United
States v. Armstrong, 53 MJ 76 (expert testimony of
a
psychologist impermissibly vouching for the credibility of a victim of
sexual
abuse is a nonconstitutional evidentiary error to be tested for
harmlessness to
determine whether the error itself had a substantial influence on the
findings;
if there was a substantial influence, or if one is left in doubt, the
conviction cannot stand).
(expert testimony of a psychologist impermissibly vouching for the
credibility of a victim of sexual abuse was not harmless where:
(1) the
case pitted the credibility of a senior noncommissioned officer against
the
ambiguous, uncertain testimony of a 17-year old girl; (2) appellant’s
wife and
15 year old daughter supported his defense; (3) appellant’s pretrial
statement
admitted only accidental contact and poor judgment; (4) there was no
physical evidence;
(5) the victim was not a strong witness and the expert was powerful;
and (6)
curative instructions did not remove grave doubts about whether the
error was
harmless).
United
States v. Moolick, 53 MJ 174 (if a military judge
commits
constitutional error by depriving an accused of his right to present a
defense,
the test on appellate review is whether the court is satisfied beyond a
reasonable doubt that the error was harmless; the test for
nonconstitutional
error is whether the error itself had substantial influence on the
findings).
(Prejudice from the military judge’s erroneous evidentiary ruling is
evaluated by weighing (1) the strength of the government’s case, (2)
the
strength of the defense case, (3) the materiality of the evidence in
question,
and (4) the quality of the evidence in question).
United
States v. Latorre, 53 MJ 179 (a four-part test is
used to
determine whether evidence adduced at trial was unduly prejudicial; the
court
evaluates: (1) the strength of the government’s case, (2) the
defense
theory, (3) the materiality of the evidence, and (4) the quality of the
evidence).
United
States v. Baer, 53 MJ 235 (even if trial counsel’s
sentencing argument, which asked the members to imagine the victim
“sitting
there as these people beat him” and to “imagine the pain and agony”,
was a
deliberate strategy to indulge in improper argument, the relative
lightness of
the sentence appellant received indicated that the argument did not
bear fruit,
and Court found that appellant’s substantial rights were not materially
prejudiced).
United
States v. Langston, 53 MJ 335 (military judge’s
erroneous
decision not to sequester witnesses during appellant’s providence
inquiry was
harmless and did not materially prejudice appellant’s substantial
rights
where: (1) there was no reasonable possibility that one witness’s
testimony was altered by what she heard during providence inquiry; (2)
there
was no dispute as to how certain offenses occurred or any conflict with
appellant’s
United
States v. Pablo, 53 MJ 356 (erroneous admission of
hearsay
under the residual hearsay exception (MRE 803(24)) was
nonconstitutional error
to be tested for harmlessness where appellant had the opportunity to
cross-examine the declarant and did so effectively).
(the test for harmless error is whether the error itself had
substantial
influence on the findings; if so, or if the court is left in grave
doubt, the
conviction cannot stand).
(the Government has the burden of persuading the court that an error
was
harmless – that it did not have a substantial influence on the
findings).
(the government failed to meet its burden of persuading the court
that the erroneous
admission of hearsay evidence was harmless, thus leaving the court with
grave
doubt about whether the erroneously-admitted testimony may have
substantially
influenced the findings, and requiring that the conviction be reversed
where: (1) the in-court testimony of the child-victim/declarant
was found
to be vague and foggy; (2) the in-court testimony of the
child-victim/declarant
was contradicted; (3) the court members expressed concern about
evidentiary
discrepancies; (4) the witness who testified as to the hearsay
statement
provided a clear, lucid description of the offense; (5) the witness who
testified as to the hearsay statement described the
child-victim/declarant’s
demeanor in a manner suggesting truthfulness; (6) the witness indicated
that the
child-victim/declarant had repeated her accusations three times; and
(7) the
findings suggest that the hearsay testimony may have substantially
influenced
the deliberations).
United
States v. Knight, 53 MJ 340 (in cases where a
servicemember is effectively without representation during the clemency
process, the court will presume prejudice).
United
States v. Anderson, (appellant met the low
threshold burden
of making a colorable showing of prejudice from new or adverse matter
considered by the convening authority where appellate counsel proffered
that: (1) appellant would have contested his characterization as
a “thug”
in the new matter; (2) appellant would have factually challenged the
assertion
in the new matter that the victim was almost killed; and (3) appellant
received
no clemency from the convening authority for a near maximum sentence.
United
States v. Glover, 53 MJ 366 (erroneous admission
of prior
convictions on sentencing was harmless where: (1) evidence of the
convictions was already in evidence through appellant’s character
witnesses;
and (2) the prior convictions were relatively insignificant when
compared to
the offenses of which appellant was convicted).
United
States v. Jenkins, 54 MJ 12 (while it is improper
for a
trial counsel to compel a defendant to state that the witnesses
testifying
against him are lying, each such case will be reviewed on a
case-by-case basis
to determine if the improper cross-examination was prejudicial).
United
States v. Swift, 53 MJ 439 (even though a false
official
statement specification was based upon a verbal response to an unwarned
inquiry
and set aside, in light of remaining offenses and evidence in this
case, court
was convinced beyond a reasonable doubt that the error with respect to
the
dismissed offense was not prejudicial as to sentence).
United
States v. Baumann, 54 MJ 100 (erroneous admission
of
evidence, over defense objection under MRE 403 was harmless error
where,
considered in light of the record of trial and the criteria set forth
in United
States v. Weeks, 20 MJ 22, 25 (CMA 1985), the evidence of guilt
was
overwhelming, the asserted defense was extremely weak (if a defense at
all),
and the military judge gave extensive limiting instructions).
1999
United
States v. Brown, 50 MJ 262 (no reasonable possibility of
prejudice from erroneous deliberate avoidance instruction where:
(1) that
instruction expressly informed members that knowledge could not be
established
by mere negligence; (2) the members were informed that they were
not to
consider deliberate avoidance unless they had a reasonable doubt that
the
accused actually knew the nature of the substance he used; (3)
sufficient
evidence of knowledge existed in the record; and (4) defense evidence
attacking
actual knowledge was completely refuted by expert rebuttal).
United
States v. Murphy, 50 MJ 4 (although large quantity of
psychiatric and psychological information gathered more than two years
after
trial could not be considered in support of a petition for new trial
under
Article 73, UCMJ, and RCM 1210(f), an appellate court can look at the
material
in testing for prejudice under Strickland v. Washington,
446
U.S. 668
(1984); in determining whether a given result obtained in the
court-martial
process is reliable, such matters may be considered and tested to
determine
whether “[t]he newly discovered evidence, if considered by a
court-martial in
the light of all other pertinent evidence, would probably produce a
substantially more favorable result for the accused”).
United
States v. Glover, 50 MJ 476 (if a military judge omits
entirely
any instruction on an element of the charged offense, this error may
not be
tested for harmlessness because the court members are prevented from
considering that element at all; where the military judge fails to only
to give
a more specific or amplified instruction on the meaning of terms, the
court
will test for plain error where no such instruction is requested).
United
States v. Spann, 51 MJ 89 (although military judge erred
in
relying on 42 USC § 10606 as the basis for rejecting a motion to
sequester a
victim and her mother who were to testify on sentencing, that error was
harmless where: (1) the potential witnesses were absent during
most of
the testimony and only heard two rebuttal witnesses; (2) appellate
defense
counsel has not demonstrated how the testimony of the rebuttal
witnesses would
have affected the veracity of the testimony provided by the victim and
her
mother on sentencing; (3) the victim and her mother provided victim
impact
testimony and did not address controverted factual matters in which
testimony
could have been recast after hearing testimony provided by the two
rebuttal
witnesses).
United
States v. Muirhead, 51 MJ 94 (erroneous admission of
appellant’s
statements taken in violation of Article 31, UCMJ, was error not
amounting to a
constitutional violation and will be deemed harmless if the factfinder
was not
influenced by it, or if the error had only a slight effect on the
resolution of
the issues in the case).
(erroneous admission of appellant’s statements taken in violation of
Article
31, UCMJ, had a substantial influence on the findings and was not
harmless
where: (1) there was no direct evidence that appellant committed the
offense;
(2) statements provided potential motive for the offense; (3)
statements
provided problematic explanation why no blood was found; (4) statement
provided
unusual characterization for why child would injure herself; (5)
statements
provided unordinary means child used to stop bleeding; and (6)
appellant denied
that he heard his injured child cry out that evening).
United
States v. Mitchell, 51 MJ 234 (where evidence is
obtained in
violation of the Constitution and erroneously admitted, the government
bears
the burden of showing beyond a reasonable doubt that the inadmissible
evidence
did not contribute to the findings of guilty).
(erroneous admission of statement secured in violation of accused’s
constitutional rights was not harmless beyond a reasonable doubt
where:
(1) the statement bore upon intent which was a key issue in the case;
(2) the
inadmissible evidence was a substantial part of the government’s case;
(3) the
government’s argument referred to the inadmissible statement as the
best
evidence of accused’s intent to kill; (4) prosecution’s circumstantial
evidence
of intent was challenged and less than overwhelming).
United
States v. Sidwell, 51 MJ 262 (where there is
constitutional
error, all of the circumstances should be considered in determining
whether the
error was harmless beyond a reasonable doubt).
(improper evidence of rights-invocation, viewed in its entirety, was
harmless beyond a reasonable doubt and did not have great potential to
prejudice appellant where: (1) the evidence was an isolated
reference to
a single invocation; (2) the reference was brief and provided no
details as to
the right invoked or the offense involved; (3) the military judge gave
prompt
curative instructions; (4) the government did not exploit the evidence;
and (5)
the military judge struck the offending witness’s testimony and
prevented
further testimony which would have included an implied admission by
appellant).
(improper evidence of rights invocation had marginal impact on
members’
deliberations where: (1) government’s case was overwhelming; (2)
the
inadmissible evidence had no bearing of defense attack on motives and
military
character of key government witness, or on the physical improbability
of that
witness’s version of events; and, (3) appellant did not testify and,
therefore,
could not be impeached on this basis).
United
States v. Scott, 51 MJ 326 (expert testimony as to
recidivism
and the potential for rehabilitation of sexual offenders was not
prejudicial to
appellant’s substantial rights where: (1) appellant was convicted
of more
than 20 offenses committed over a 2-year period of time; (2)
appellant’s
offenses included two successful escapes from confinement and six
rapes; and,
(3), in light of the overwhelming evidence, the expert testimony was
but a
small part of the sentencing evidence considered by the members).
United
States v. Lewis, 51 MJ 376 (appellant suffered
substantial
prejudice requiring reversal of his conviction where military judge
erroneously
held view that RCM 701(b)(2) required presentation of corroborating
witnesses
in order to establish innocent ingestion defense and, as a result,
limited
appellant’s ability to convey his version of the facts concerning
innocent
ingestion, prevented counsel from framing this issue by barring any
reference
to this defense in his opening statement or closing argument, and
failed to
give instructions on innocent ingestion as required by case law).
(if errors, either separately or together, amount to a
constitutional
violation, the government must show that the errors were harmless
beyond a reasonable
doubt; if the errors were non-constitutional, an appellant must show
that they
substantially prejudice his/her material rights).
(appellant was prejudicially chilled in the presentation of his
defense case
where military judge erroneously held view that RCM 701(b)(2) required
presentation of corroborating witnesses in order to establish innocent
ingestion defense and thereby: (1) prevented appellant from
introducing
evidence which could have rebutted the government’s circumstantial case
on the
issue of knowledge; (2) would not permit defense counsel to introduce
any
evidence that some person may have had a motive to contaminate
appellant’s
drink on certain nights; (3) prevented persuasive argument on this
specific
defense theory; and (4) failed to instruct the members that the
government had
the burden with respect to the circumstantial defense evidence of
innocent
ingestion actually admitted, as well that which was erroneously
excluded).
United
States v. Kerr, 51 MJ 40 (prejudice from an erroneous
evidentiary ruling, either admitting government evidence or excluding
defense
evidence, is evaluated by weighing: (1) the strength of the
government’s
case; (2) the strength of the defense case; (3) the materiality of the
evidence
in question; and, (4) the quality of the evidence in question).
(admission of extrinsic evidence of misconduct offered to rebut
evidence of
good military character was harmless error where: (1) the
government’s
evidence was strong and corroborated; (2) the defense presented no
evidence to
directly contradict the victim; (3) the extrinsic evidence in issue
directly
contradicted evidence of good military character and attacked the major
thrust of
the defense case; (4) the quality of the extrinsic evidence was
graphic, but
some was of questionable credibility; and, (5) the rebuttal evidence
could have
been presented in the form of opinion to rebut good military character
so long
as specific acts were not described).
(appellant was not prejudiced by any possible spillover effect from
uncharged acts testimony where: (1) the uncharged acts were
dissimilar in
nature to the charged conduct and too removed in time to be admissible
under
MRE 404(b); (2) a crafted and detailed limiting instruction prevented
the
uncharged acts from being considered for any purpose other than to
rebut
evidence of good military character; and, (3) the record negates any
possibility of spillover in that appellant was convicted of only one of
three
similar charged acts of misconduct).
United
States v. Carpenter, 51 MJ 393 (in a harmless error
analysis,
the lack of objection is relevant to a determination of prejudice as it
is some
measure of minimal impact of a prosecutor’s improper comment).
(trial counsel’s comments on accused’s ability to observe the
witnesses and
shape his testimony were harmless beyond a reasonable doubt
where: (1)
defense counsel did not object to this rebuttal argument; (2) critical
government evidence was overwhelming; (3) appellant’s defense was
initially
improbable and later collapsed in the face of contradictory evidence;
(4)
prosecution argument as a whole suggested that appellant did not tailor
his
testimony very well; and, (5) appellant’s credibility collapsed after
the
prosecution’s case in rebuttal).
United
States v. Hargrove, 51 MJ 408 (where military judge
erred in not
giving instructions on applicable lesser-included offense, and where
error was
cured by dismissing the affected specifications, CAAF was highly
confident that
this error played no appreciable role in the adjudication of
appellant’s
punishment in light of the remaining, more serious, offenses of which
appellant
was convicted).
United
States v. Griggs, 51 MJ 418 (at a trial for indecent
exposure,
even if the military judge abused his discretion by admitting evidence
of prior
uncharged acts of indecent exposure and masturbation, any error was not
prejudicial under Article 59(a), UCMJ, in light of the overwhelming
evidence
that appellant had committed the acts with which he was charged).
United
States v. Vassar, 52 MJ 9 (any incorrect view of the law
on
consent to search held by the military judge was harmless where the
Court found
there was no evidence suggesting a lack of consent).
(assuming that any error in the military judge’s evaluation of
evidence on
issue of consent to search implicates the Fourth Amendment, the error
was
harmless beyond a reasonable doubt where: (1) appellant’s consent
was
given immediately; (2) appellant was aware of his surroundings; (3) the
atmosphere was non-coercive and even light-hearted; (4) first consent
form
advised appellant of right to refuse; (5) second consent form was
signed with
knowledge that urine sample would not be sent to lab without consent;
(6)
appellant’s statements reflect an awareness of the right to refuse
consent; (7)
appellant did not go so far in his testimony as to claim his consent
was not
voluntary; and (8) there was no conflicting evidence to resolve).
United
States v. Wells, 52 MJ 126 (the general rule for
prejudice
resulting from a failure to instruct on an applicable lesser-included
offense
is that reversal is required only when an appellate court is convinced
that the
evidence issues are such that a rational panel of court members could
acquit on
the charged crime but convict on the lesser crime).
(having found that the military judge erred by not giving an
instruction on
a raised lesser-included offense, the Court of Criminal Appeals erred
in
fashioning its own harmless error approach which focused on other
lesser-included offense instructions given in this case and the fact
that the
members still found appellant guilty of the greater offense).