                         UNITED STATES, Appellee

                                         v.

                  Jess M. DAVIS, Airman First Class
                      U.S. Air Force, Appellant

                                  No. 06-0439
                           Crim. App. No. 35932

       United States Court of Appeals for the Armed Forces

                         Argued January 17, 2007

                          Decided April 23, 2007


EFFRON, C.J., delivered the opinion of the Court, in which
BAKER, ERDMANN, and STUCKY, JJ., joined. RYAN, J., filed a
separate concurring opinion.


                                     Counsel


For Appellant: Major John N. Page III (argued); Lieutenant
Colonel Mark R. Strickland (on brief).



For Appellee: Captain Donna S. Rueppell (argued); Colonel
Gerald R. Bruce and Lieutenant Colonel Robert V. Combs (on
brief).


Military Judge:    James L. Flanary




            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Davis, No. 06-0439/AF


    Chief Judge EFFRON delivered the opinion of the Court.

    A general court-martial composed of officer members

convicted Appellant, contrary to his pleas, of assault

consummated by a battery (three specifications) in violation of

Article 128, Uniform Code of Military Justice (UCMJ), 10 U.S.C.

§ 928 (2000).   The court-martial returned findings of not guilty

with respect to rape (two specifications) and indecent assault

(one specification).   See Articles 120 and 134, UCMJ, 10 U.S.C.

§§ 920, 934 (2000).    The sentence adjudged by the court-martial

and approved by the convening authority included a bad-conduct

discharge, confinement for six months, and reduction to the

lowest enlisted grade.   The United States Air Force Court of

Criminal Appeals affirmed.    United States v. Davis, 62 M.J. 645

(A.F. Ct. Crim. App. 2006).

     On Appellant’s petition, we granted review of the following

issue:

     WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS
     ERRED WHEN IT REQUIRED APPELLANT TO DEMONSTRATE
     PREJUDICE FROM THE DENIAL OF HIS SUBSTANTIAL
     PRETRIAL RIGHT TO AN OPEN ARTICLE 32 HEARING,
     CONTRARY TO THE COURT’S OPINION IN UNITED STATES
     V. CHUCULATE, 5 M.J. 143 (C.M.A. 1978) THAT
     STATES THE COURT WILL NOT TEST FOR PREJUDICE.

     For the reasons set forth below, we affirm.




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                           I.   BACKGROUND

  A.   PUBLIC ACCESS TO PRETRIAL HEARINGS UNDER ARTICLE 32, UCMJ

       A formal pretrial investigation is a predicate to the

referral of charges to a general court-martial unless the

accused waives the pretrial proceeding.      Article 32, UCMJ, 10

U.S.C. § 832 (2000); Rule for Courts-Martial (R.C.M.) 405(a).

The procedures for an Article 32 hearing include representation

of the accused by counsel, the right to present evidence, and

the right to call and cross-examine witnesses.     Article 32(b);

R.C.M. 405(b)-(i).

       A military accused is entitled to a public Article 32

hearing “absent cause shown that outweighs the value of

openness.”   ABC, Inc. v. Powell, 47 M.J. 363, 365 (C.A.A.F.

1997) (citation and quotation marks omitted).     R.C.M. 405(h)(3)

vests the authority to close an Article 32 hearing in the

commander who ordered the investigation.     A command decision to

close an Article 32 hearing must be made on a “case-by-case,

witness-by-witness, and circumstance-by-circumstance basis.”

Powell, 47 M.J. at 365.    The present appeal concerns the

applicable standards at both the trial and appellate level for

reviewing a decision to close all or part of an Article 32

hearing.




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 B.    PARTIAL CLOSURE OF APPELLANT’S ARTICLE 32 HEARING

       The charges in the present case alleged sexual offenses

against three women, AC, LG, and MM.   All three appeared

voluntarily at the Article 32 hearing.   Immediately prior to the

hearing, defense counsel learned that the investigating officer

planned to close the proceeding during the testimony of AC and

LG.    Defense counsel objected on the ground that “[n]either

evinced any embarrassment or timidity regarding the alleged

events” during defense counsel’s interviews prior to the

hearing.   The investigating officer overruled the objection and

excluded the public during AC and LG’s testimony “due to the

sensitive and potentially embarrassing nature of the testimony

and in order to encourage complete testimony about the alleged

offenses . . . .”

       At trial, Appellant moved to dismiss the charges,

contending that the investigating officer improperly closed a

portion of the Article 32 hearing.    The military judge ruled

that the investigating officer had violated Appellant’s right to

an open Article 32 hearing, but declined to order relief on the

ground that improper closure resulted in no “articulable harm”

to Appellant.

  C.    CONSIDERATION OF CLOSURE BY THE COURT OF CRIMINAL APPEALS

       On appeal, the Court of Criminal Appeals agreed with the

military judge that the investigating officer violated


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Appellant’s right to a public Article 32 hearing.    Davis, 62

M.J. at 647.   The court further determined that the military

judge erred in failing to provide a remedy.    Id. at 647-48.

Taking note of Appellant’s timely objection at trial, the court

observed:   “Having established a violation of his substantial

pretrial rights, the appellant should have had his right to a

public pretrial investigative hearing enforced by the military

judge -- without a showing of prejudice or articulable harm.”

Id. at 648.    The court concluded that “the military judge abused

his discretion by not dismissing the affected charges to allow

for reinvestigation under Article 32.”   Id.

     After concluding that the military judge erred, the Court

of Criminal Appeals tested that error for prejudice.    Id.     The

court concluded that the error in closing a portion of the

Article 32 proceeding did not result in prejudice to the

findings and sentence at trial.   Id. at 648-49.    In particular,

the court noted that:   (1) the defense counsel had access to

written statements by the witnesses and had interviewed the

witnesses prior to trial; (2) defense counsel had cross-examined

the witnesses at the Article 32 hearing; (3) 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


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evidence that the closure of the Article 32 hearing impeded

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) defense counsel was able to

effectively cross-examine the witnesses, resulting in acquittal

of both alleged rapes and one indecent assault.      Id.

     The Government has not appealed the ruling of the military

judge, affirmed by the Court of Criminal Appeals, that the

investigating officer erred in closing the Article 32

proceeding.   Likewise, the Government has not appealed the

determination of the Court of Criminal Appeals that the military

judge erred by not requiring a new Article 32 proceeding in

light of the closure.   The present appeal calls upon our Court

to determine whether:   (1) the Court of Criminal Appeals

correctly determined that the military judge’s error should be

tested for prejudice, and (2) whether the court correctly

concluded that the error was not prejudicial.

   D.   DIVERGENT VIEWS IN PRIOR CASES REGARDING CONSIDERATION OF
         PREJUDICE DURING APPELLATE REVIEW OF ARTICLE 32 ERRORS

     Before our Court, parties in the present appeal have cited

cases that reflect two different approaches to the evaluation of

error in Article 32 proceedings.       One line of cases holds that

appellate courts must test Article 32 errors for prejudice.

See, e.g., United States v. Mickel, 9 C.M.A. 324, 327, 26 C.M.R.



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104, 107 (1958) (testing for prejudice the denial of right to

counsel at Article 32 hearing); United States v. Holt, 52 M.J.

173, 184 (C.A.A.F. 1999) (testing for prejudice inappropriate

post-hearing conduct by the Article 32 investigating officer);

United States v. Johnson, 53 M.J. 459, 462 (C.A.A.F. 2000)

(testing for prejudice the improper production of witness at

Article 32 proceeding by illegal subpoena); United States v.

Stirewalt, 60 M.J. 297, 302 (C.A.A.F. 2004) (testing for

prejudice when Article 32 investigating officer later served as

staff judge advocate on case returned for rehearing).

     A second line of cases provides for reversal without a

showing of prejudice upon timely objection to an error at the

Article 32 hearing.   See, e.g., United States v. Worden, 17

C.M.A. 486, 489, 38 C.M.R. 284, 287 (1968) (reversing conviction

based upon timely objection to denial of effective assistance of

counsel at Article 32 proceeding); United States v. Maness, 23

C.M.A. 41, 47, 48 C.M.R. 512, 518 (1974) (reversing conviction

based upon timely objection to denial of civilian counsel at

Article 32 proceeding); United States v. Donaldson, 23 C.M.A.

293, 294, 49 C.M.R. 542, 543 (1975) (reversing conviction upon

timely objection to Article 32 investigating officer’s legal

authority); United States v. Chestnut, 2 M.J. 84, 85 (C.M.A.

1976) (reversing conviction upon timely objection to failure to

produce rape victim at Article 32 hearing); see also United


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United States v. Davis, No. 06-0439/AF


States v. Chuculate, 5 M.J. 143, 145-46 (C.M.A. 1978) (declining

to reverse conviction for failure to produce a civilian witness

at the Article 32 proceeding when the defense failed to request

a deposition in lieu of live testimony and there was no showing

of adverse effect at trial).



                           II.   ANALYSIS

  A. CONSIDERATION OF ARTICLE 32 ERRORS DURING DIRECT REVIEW
                    OF THE FINDINGS AND SENTENCE

     The parties have not articulated, and we have not

identified, a persuasive theory that would justify two separate

lines of authority for evaluating the effects of an erroneous

ruling at trial with respect to the rights of an accused under

Article 32.   In that light, we identify here a set of principles

for evaluating the effect of a ruling in which a military judge

erroneously failed to provide an adequate remedy at trial for a

violation of the rights of the accused in an Article 32

proceeding.

     We begin our analysis with the applicable statutory

requirement for evaluation of an error:     “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 the accused.”   Article 59(a), UCMJ, 10

U.S.C § 859(a) (2000).   Article 59(a) establishes an appellate



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United States v. Davis, No. 06-0439/AF


standard for review of the findings and sentence, not a trial-

level standard for ruling on motions.    In that regard, we note

that the Court of Criminal Appeals correctly held that the

military judge erred by requiring a showing of prejudice as a

precondition to providing a remedy for violation of Appellant’s

rights at an Article 32 proceeding.    Davis, 62 M.J. at 647-48.

     The UCMJ and the Manual for Courts-Martial provide an

accused with a substantial set of rights at an Article 32

proceeding.   See, e.g., R.C.M. 405.    As a general matter, an

accused is required to identify and object to any errors in the

Article 32 proceeding at the outset of the court-martial, prior

to trial on the merits.   See R.C.M. 905(b)(1).    When an accused

makes an objection at that stage, the impact of an Article 32

violation on the trial is likely to be speculative at best.       The

time for correction of such an error is when the military judge

can fashion an appropriate remedy under R.C.M. 906(b)(3) before

it infects the trial, not after the members, witnesses, and

parties have borne the burden of trial proceedings.    See Mickel,

9 C.M.A. at 327, 26 C.M.R. at 107; R.C.M. 906(b)(3).    In the

event that an accused disagrees with the military judge’s

ruling, the accused may file a petition for extraordinary relief

to address immediately the Article 32 error.    See ABC, Inc. v.

Powell, 47 M.J. 80 (C.A.A.F. 1997) (granting petition for

extraordinary relief and issuing a writ of mandamus).


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United States v. Davis, No. 06-0439/AF

     When the case reaches the appellate courts on direct

review, however, the situation is quite different.    Article

59(a), like its federal civilian counterpart, Fed. R. Crim. P.

52(a), recognizes that errors are likely to occur in the dynamic

atmosphere of a trial, and that prejudice must be shown before

reversing the findings or sentence.    Article 59(a) is applied

through standards of review and appellate burdens tailored to

the issue on appeal.   As a general matter, for example, if an

appellant demonstrates that a ruling by the military judge was

in error, the burden then shifts to the government to

demonstrate that the error was harmless.    United States v.

Pollard, 38 M.J. 41, 52 (C.M.A. 1993).     If the error is of

constitutional dimension or involves unlawful command influence,

the government must show that the error was harmless beyond a

reasonable doubt.   See United States v. Bins, 43 M.J. 79, 86

(C.A.A.F. 1995) (constitutional error); United States v.

Biagase, 50 M.J. 143, 151 (C.A.A.F. 1999) (unlawful command

influence).   An error is treated as inherently prejudicial,

without the need for a further showing of prejudice, only if it

amounts to a “structural defect[] in the constitution of the

trial.”   See United States v. Meek, 44 M.J. 1, 6 (C.A.A.F.

1996).

     In summary, on appeal we evaluate an error in an Article 32

proceeding under Article 59(a).    The standard of review and


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United States v. Davis, No. 06-0439/AF

allocation of burdens in such cases depends on whether the

defect amounts to a structural constitutional error or other

constitutional error, unlawful command influence, or other

nonconstitutional error.   To the extent that our prior case law

reflects inconsistent treatment of Article 59(a) in the context

of Article 32 errors, we take this opportunity to reiterate that

Article 59(a) applies to all Article 32 errors considered on

direct review of the findings and sentence of a court-martial.

 B.   IMPACT OF THE ERROR IN APPELLANT’S ARTICLE 32 HEARING

      Although the Article 32 investigation is an important

element of the military justice process, it is not part of the

court-martial.   An Article 32 investigation takes place before

the convening authority’s decision to refer a case for trial by

general court-martial.   See R.C.M. 405(a); R.C.M. 407(a)(5);

R.C.M. 601(d)(2)(A).   A case may be referred to trial by special

court-martial without conducting an Article 32 investigation,

even though a special court-martial can result in the stigma of

a punitive discharge and confinement for up to one year.    See

R.C.M. 201(f)(2)(B); R.C.M. 404; R.C.M. 405(a).   In light of

those considerations, the Article 32 investigation is not so

integral to a fair trial that an error in the proceeding

necessarily falls within the narrow class of defects treated by

the Supreme Court as structural error subject to reversal

without testing for prejudice.   See Arizona v. Fulminante, 499


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United States v. Davis, No. 06-0439/AF

U.S. 279, 307-10 (1991) (distinguishing between “trial errors”

and “structural defects” when applying harmless error analysis);

2 Steven A. Childress & Martha S. Davis, Federal Standards of

Review § 7.03 (3d ed. 1999).

     The court below treated the error as a nonstructural error

of constitutional dimension that could be tested for prejudice.

Davis, 62 M.J. at 648.   The lower court concluded that the error

in closing the proceeding was harmless beyond a reasonable

doubt.   Id. at 649.

     We need not determine in this case whether the improper

closure of the Article 32 proceeding was an error of

constitutional or nonconstitutional dimension.   As summarized

above in Section I.C., the Court of Criminal Appeals conducted a

detailed prejudice evaluation of the erroneous partial closure

of the Article 32 hearing, concluding that the error was

harmless beyond a reasonable doubt.    Davis, 62 M.J. at 648-49.

We agree with the Court of Criminal Appeals for the reasons set

forth in that court’s opinion.   Id.   In short, irrespective of

whether the error was of constitutional or nonconstitutional

dimension, the court below did not err in affirming Appellant’s

conviction.




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                        III.    CONCLUSION

     The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




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United States v. Davis, No. 06-0439/AF

    Ryan, Judge (concurring):

    I agree with the conclusion of the majority opinion that the

erroneous partial closure of this Article 32, Uniform Code of

Military Justice (UCMJ), 10 U.S.C. § 832 (2000), investigation

was harmless, irrespective of the characterization of the nature

of this error.   I write separately because the lower court’s

citation to and reliance on ABC, Inc. v. Powell, 47 M.J. 363

(C.A.A.F. 1997), to support the position that the Sixth Amendment

right to an “open trial” applies at an Article 32, UCMJ,

investigation is misplaced, and there is no reason for this Court

not to say so.

    Powell does not hold that the Sixth Amendment right to a

public trial applies to an Article 32, UCMJ, investigation.

Indeed, while Powell recognizes that this Court has “never

addressed the direct question whether the Sixth Amendment to the

Constitution affords a military accused the right to a public

Article 32 hearing[,]” 47 M.J. at 365, Powell does not itself

answer that direct question.    I respectfully disagree that we

should avoid correcting an obvious misapprehension of Powell’s

holding by at least one of the Courts of Criminal Appeals.

    Regarding the answer to the question whether there is a

right to an open Article 32, UCMJ, investigation under the

Sixth Amendment, I agree with the majority opinion that the

issue was neither raised by the Government nor briefed by the

parties.   This case is thus not the proper vehicle to address
United States v. Davis, No. 06-0439/AF

the question, even though, in response to questions from the

Court, both parties appeared to concede at argument that the

Sixth Amendment right to a public trial is not applicable to

a pretrial proceeding under Article 32, UCMJ.

    Of course, but for the lower court’s opinion and rationale

for its holding, I would not have thought that this was either an

open or close question.   The pertinent language of the Sixth

Amendment states, “In all criminal prosecutions, the accused

shall enjoy the right to a . . . public trial . . . .”   U.S.

Const. amend. VI (emphasis added).   As the majority recognizes,

the Article 32, UCMJ, investigation is not itself part of the

court-martial -– the trial.   __ M.J. __ (11) (stating that the

Article 32, UCMJ, investigation “is not part of the court-

martial”).   Rather, it precedes the trial.

    Pursuant to Article 32(a), UCMJ, no charge may even be

referred to a trial by general court-martial until the Article

32, UCMJ, pretrial investigation has been completed.   See Rule

for Courts-Martial (R.C.M.) 405(a); R.C.M. 407(a)(5); R.C.M.

601(d)(2).   The Article 32, UCMJ, investigation precedes all of

the following:   the determination whether there will be a trial;

the decision whether the charge will be referred to general

court-martial; and the decision as to what charges, if any, may

be referred to a general court-martial.   See Article 32, UCMJ.

    Given the language of the Sixth Amendment and the logical and

temporal divide between “trial” and “pretrial,” I await with



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United States v. Davis, No. 06-0439/AF

interest arguments in the appropriate case that address whether

the Sixth Amendment right to a public trial applies to a pretrial

Article 32, UCMJ, investigation.




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