The vagaries of "harmless" error
Every appellate lawyer has his Harmless Error Horror Story, where the appellate court will discount the most egregious evidentiary ruling or instance of outrageous prosecutorial conduct on the "no harm, no foul" theory that the evidence was so overwhelming the error didn't matter. A couple of weeks ago, in State v. Caldwell, a case I handled, I'd argued trial error in the admission of 404(B) evidence in a child molestation case. The court agreed it shouldn't have come in, but was harmless because of the "substantial testimony concerning the charges," an assessment brought into question by the fact that Caldwell had been acquitted of twenty-eight of the thirty charges against him. (Not that I'm complaining; the court agreed with me that the judge had abused his discretion in refusing to accept Caldwell's plea to a handful of third-degree felonies, and ordered that Caldwell be allowed to enter that plea. Whatever the sentence, it's going to be substantially less than the 25-to-life he had.)
I'm pretty sure that the 8th's decision last week in State v. Ceron is Terry Gilbert's Harmless Error Horror Story.
Ceron was indicated on rape, gross sexual imposition, and kidnapping charges, based on a single incident: One evening, after drinking beer on the porch with his stepson, he went inside to use the bathroom. According to the stepson's five-year-old daughter, Ceron came up to her while she was sleeping on the couch, pulled her pants down, and pressed two fingers either against or into her vagina.
Gilbert, who handled the appeal, argued manifest weight and sufficiency, but that really wasn't going anywhere: though the evidence was conflicting on some points, the girl reported the incident fairly soon afterward, and there didn't seem to be a motive for her to lie. (In fact, Ceron's chief defense at trial was the not implausible claim that the girl might have dreamed the event.
So Gilbert's main assault was on the admission of 404(B) evidence. That rule allows the State to introduce evidence of other crimes or acts the defendant committed in order to prove motive, opportunity, identity, or common scheme or plan. Here, the State sought to introduce evidence that Ceron, on an earlier occasion after he had been drinking, attempted to pull down the pants of the child's mother while she was sleeping.
The court had a lot of guidance on this issue, specifically the Supreme Court's decision last year in State v. Williams (discussed here). And the panel does an excellent job of analyzing Williams, and the three-part test it established for admission of 404(B) evidence: (1) whether the evidence was relevant, (2) whether it was admitted for a legitimate purpose, to prove one of the items in Rule 404(B), or just to show that the defendant is a bad guy, and (3) whether the probative value of the evidence was outweighed by its prejudicial effect.
The panel had something else to guide it: the 9th District's decision in a virtually identical situation in State v. Morris. Morris was also accused of raping a child, his stepdaughter, and the State introduced evidence that Morris had propositioned her adult sister. (As if that weren't enough, the State also introduced evidence that Morris kicked the family dog out of frustration with his wife's rejection of his sexual advances.) The 9th had little trouble concluding that evidence of an interest in an adult woman is not probative of his interest in her minor sister. (It also concluded that the kick-the-dog evidence was way over the top.) Similarly, the Ceron court found lacking the State's assertion that "Ceron attempting to pull the pants down of an adult makes it more probable that he also pulled the pants down of a five year old, and then went on to rape the five year old."
That would have been enough right there -- all three steps have to be met for the evidence to be admissible -- but the court wasn't done. The evidence was used to "draw an impermissible character inference that is forbidden by Evid.R. 404(B), i.e., to show that Ceron is the type of sexually perverted man who would like to engage in sexual activity with his daughter-in-law and, therefore, is likely to have raped his granddaughter on the night in question." And since there was no probative value to the evidence, the third step could be skipped.
So Ceron gets a new trial right? Wrong. The majority concludes that "the admission of the other-acts evidence was harmless as there was substantial other evidence to support the guilty verdict."
One of the problems here is that the law on what constitutes harmless error, and how it should be reviewed, is all over the map. You can find cases saying that the defendant bears the burden of showing that the error was prejudicial, and you can find cases saying that the government has that burden. You can find cases saying that the test focuses on the effect the error had on the jury -- whether it contributed to the jury's verdict -- and you can find cases saying that the test focuses on the remaining evidence. And you can find cases differing on how that remaining evidence has to be viewed to determine whether any error is harmless: that it has to be "overwhelming" or, as here, "substantial." (In a case just a few weeks ago, State v. Ellison, the court held the error was harmless because the evidence was "sufficient." As I explained at the time, the test for sufficiency is simply whether any rational juror could have voted to convict the defendant; showing that a rational juror could have voted to convict has nothing to do with whether the juror was influenced by the inadmissible evidence, or whether the evidence was "overwhelming.") Most perplexing, although the test for constitutional error is whether it was harmless beyond a reasonable doubt, you can find cases applying that standard for 404(B) evidence; in fact, that's the test the dissent used.
The damage done by admission of 404(B) evidence is almost invariably fatal. It's even worse than evidence of a prior conviction, because it's evidence of a prior conviction (or act) that's the same as the one the defendant is on trial for. Frankly, I can't remember reading a case where the court held that 404(B) evidence was improperly admitted, but that it was harmless. Doesn't mean it never happened, but it's suitably rare, and rightfully so.
Ceron was convicted of all three offenses. He was sentenced to 25 years to life.