631 F. 2d 769 - United States v. Hinton

Appellant, Alan Hinton, was convicted after a jury trial of various offenses committed in connection with an armed bank robbery.1 At a suppression hearing on the morning of trial, the government for the first time presented Hinton's trial counsel with a mass of Jencks Act materials.2 Hinton's counsel did not request a recess to study these documents. On appeal, Hinton argues that his lawyer's failure to use these materials in cross-examining government witnesses at the hearing constitutes ineffective assistance of counsel.3

After submission of this appeal, we remanded the record to develop pertinent factual findings.4 In a supplemental proceeding the district court found that, although appellant's trial counsel sought to read the relevant Jencks Act materials while the suppression hearing was in progress, counsel's decision not to use them was rushed to the point where the court retained "substantial doubt as to whether adequate time existed for . . . an informed decision." The district court also found that appellant had been "prejudiced" by his counsel's failure to bring the Jencks Act material to its attention during the hearing.5

The en banc opinions of this court in United States v. Decoster (Decoster III)6 and United States v. Wood (Wood)7 were announced after the district court considered this case upon remand. It is now clear that for relief on a claim of ineffective assistance of counsel an affirmative answer is required to the following three questions:

(1) Has there been a substantial breach in the duty owed to the defendant by competent counsel?

(2) Has the defendant demonstrated a likelihood that counsel's inadequacy prejudiced his defense?

(3) Is the government unable to prove beyond a reasonable doubt that the constitutional deficiencies of counsel's representation were harmless?

In short, once the defendant has demonstrated a denial of effective assistance resulting in "likely prejudice," the government has an opportunity to prove beyond a reasonable doubt that counsel's deficiencies were harmless.

At the proceeding upon remand in this case, both the trial judge and counsel acted without the benefit of the Decoster III and Wood opinions. None of the parties was aware of the defendant's burden in demonstrating prejudice ("likely prejudice" to his defense), and it is not clear that the parties were aware that once a constitutional violation had been established, the government could attempt to avoid reversal by establishing beyond reasonable doubt that counsel's inadequacies were harmless. Further, it is uncertain how the district court's finding of "prejudice" should be interpreted in light of the subsequent Decoster III test. Therefore, based upon the findings of the district court presently before us, we find that appellant was deprived of the informed and deliberate judgment of counsel. However, we remand the record for the limited purpose of allowing the court and the parties to address in light of Decoster III and Wood the extent of the prejudice to the defendant's case caused by this inadequacy.

Sometime between 8:00 a. m. and 9:30 a. m. on March 18, 1975, an aqua-colored 1963 Chevrolet was taken without permission from a lot behind a garage at 66 Hanover Place, where mechanic Isaac Thomas Vaughn parked customers' cars waiting to be repaired. About 9:15 that same morning, four men wearing ski masks entered and robbed the American Security and Trust Branch at 2300 Calvert Street. Two robbers vaulted the tellers' counter and began emptying the cash drawers. The other two stationed themselves in the lobby one (who wielded a sawed-off shotgun) by the desk of Ms. Ellen Hammeke, a customer service representative positioned near the bank's front door; the other (who carried a handgun) beside the desk of Ms. Beverly Emamali, also a customer service representative. Within one or two minutes of entering the bank,8 the robbers had ordered everyone present to lie on the floor. After taking $6927, the robbers fled through the rear door. Three bank employees heard one departing robber shout, "Come on$ Come on, Blue$"9 The robbery lasted 4 to 10 minutes.10

Several employees of J. M. Chambers and Co., which occupied the offices directly above the bank, had become suspicious when they heard loud noises below. Looking out the office's rear window, Ms. Bernice Falwell observed an aqua-colored car with flashing lights in the bank's parking lot and recorded its license number. The same car, which proved to be the one stolen from Vaughn's repair lot, was found later that morning at 3220 17th Street with a sawed-off shotgun in the rear seat.

On the day of the robbery, police and FBI investigators interviewed three witnesses who would later identify Hinton at trial as the robber who wielded the shotgun. Notes made by Officer Joseph Kaclik of the Police Department quote Ellen Hammeke as describing one suspect as a "Negro male, 5'9 , 235, 240, heavy face, very stout, wearing a navy or black raincoat, dark pants, with sawed-off shotgun. Also wore a red, yellow, and white ski cap with holes for eyes." Trial Tr. 112. His notes, which he thought reflected "all of the investigation that was done by the Police Department on the 18th," id. at 113-14, recorded no descriptions of this robber given by Ms. Emamali or by Mr. Hugh Smith, a teller who was behind the counter during the robbery. Id.

An FBI report, a Form 302, reports an interview with Ms. Emamali on the same day. It gives a fairly detailed description of the handgun-toting robber who stood nearest her,11 but records no description for the other robbers: "Mrs. EMAMALI stated that she could not provide any other description . . . due to the fact that she was on the floor and only got a slight glance of unknown subjects two, three, and four." A second form 302 reports an interview with teller Hugh Smith. It provides a description in some detail given by Smith of the two robbers who vaulted the counter.12 As for the two robbers stationed in the bank lobby, however, the report states only: "Negro males, nothing further." One of these men, according to Smith, shouted, "Let's go! Let's go!"13

On March 25, a week after the robbery and interviews, the police received information that appellant Hinton was one of the bank robbers.14 After securing a black and white photograph of appellant, Officer Kaclik spent approximately 3 hours that same afternoon and the next morning assembling a photo array with additional photographs from police files. Officer Kaclik then took the array consisting of eight photographs to the bank, where Mr. Smith, Ms. Emamali and Ms. Hammeke were called into the bank manager's office individually and asked if they could identify any of the bank robbers from the array. Each employee selected the photo of Alan Hinton as the robber with the shotgun.15

The next day Mr. Hinton was arrested in front of his home at 39 Hanover Place. He was wearing an overcoat and shoes similar to the coat and shoes worn by the shotgun-toting robber shown in the bank surveillance photographs.16 It also developed that Mr. Vaughn, from whose nearby lot the getaway car had been stolen, knew Alan Hinton by the name of "Boo."

Three weeks later, on April 17, 1975, Mr. Hinton appeared in a lineup along with seven other black males, all of whom wore ski masks. The three bank employees were again asked individually if they could identify anyone in the lineup. Ms. Emamali and Ms. Hammeke selected Alan Hinton; Mr. Smith selected a different person.17

On June 13, 1975, defense counsel filed a motion to suppress the identification testimony of these three witnesses. The suppression hearing was held on September 17, 1975, on the morning before trial. At the beginning of the hearing, the prosecutor gave to the defendant's trial counsel Jencks Act materials consisting of approximately sixty loose pages, in addition to bound transcripts of the preliminary hearing and the grand jury testimony of Detective Joseph Kaclik and bank officer Paul R. O'Connell. With the exception of the preliminary hearing transcript, counsel had not received any of the Jencks material prior to that time. FFR at 3. The FBI Form 302's were included in this Jencks Act material,18 but in turning over the material the government's attorney made no mention that they contained information relevant to the three identification witnesses who were to testify.19

Since appellant's trial counsel did not request a recess to study these documents, the district court immediately heard the testimony of the three witnesses, which, in the case of Ms. Emamali and Mr. Smith, differed in significant respects from the 302's.20

Ms. Emamali testified that a robber with a silver handgun positioned himself beside her desk; the shotgun robber stood 15 feet away by Ellen Hammeke's desk. Trial Tr. 39-42. When the man guarding Ms. Hammeke ordered her on to the floor, Ms. Emamali also lay down "without anybody telling (her) anything." Id. at 41. From this moment on, she closed her eyes and prayed. Id. at 46-47. Prior to closing her eyes, she observed the shotgun robber for "only a few seconds." Id. at 47. She noticed that "his mouth and nose was (sic) exposed, but his mask kept riding up, and he kept pulling it down."21 Id. at 254. Although contradicted by the FBI 302 form and Officer Kaclik's notes, Ms. Emamali testified that she had given the police a general description of the robber wielding the shotgun:

THE COURT: And you say you set the picture aside for what reason?

A. Okay. I looked through the pictures, and I said that could have been one of them, or something like that.

Q. Yes, but what was the basis of it?

Q. What was the basis of saying that it could have been one of them?

A. Well, that I wasn't absolutely positive, but that he had the same maybe size, coloring.

I mean, we had, of course, discussed it, and I had remembered saying giving the description as the guy with the sawed-off shotgun being a heavy-set, dark-skinned man.

Q. To whom had you given that?

A. The police when they asked me.

Q. When was that?

A. The day after the robbery, I think, I can't remember exactly.

Q. Can you tell us as best you can recall what description you gave (of) the man, the sawed-off shotgun man, that is?

A. Heavyset; dark color. I think I told them he had on a black raincoat, sawed-off shotgun.

I can't remember exactly now.

Q. Heavyset, dark color?

A. Right.

Q. What else?

A. Afro. Had an afro. No, I didn't say that because I didn't see his hair. I can't remember exactly, to be honest. I just remember him being a fat fellow.

THE PROSECUTOR: Did you identify him by race at the time?

A. Yeah, Negro. Negro male, I think. I can't remember. I know I saw his nose and his mouth, so I said, "Negro." Of course, I heard him talk.

THE COURT: What, if anything, do you recall saying to the police about his nose or mouth?

A. Nothing. I didn't say anything.

Q. But you saw nothing unusual, so you said nothing about it to the police?

A. Right.

Q. So then the best that you can remember is that he was heavyset and dark color; is that right?

A. Un-huh.

Trial Tr. at 51-53. When asked if she had discussed the characteristics of the shotgun robber with Ms. Hammeke after the crime, Ms. Emamali replied:

I think we discussed everybody. We probably did. We discussed what happened and some of the odd things that happened on that day, and, yeah, we discussed. Everybody discussed him as being the fat guy. Everybody remembered that like it stood out.

Id. at 60.

Hugh Smith testified that there were four robbers, Trial Tr. 231 (not five, as he had originally told the investigators),22 that he never saw "distinct facial characteristics" of the two masked robbers in the lobby, id. at 70, and that he spent most of the time on the floor behind the counter. Id. at 84. Although he could not describe the shotgun robber's mask, id. at 85, Mr. Smith stated that his "focus" was on that robber, so that his "impressions" of him were "the most valid." Id. at 84. He remembered the robber's silhouette as it appeared 15 to 20 feet away. Id. at 87:

He was standing in front of the glass, so there was the light factor plus the fact that he had a mask over his face . . . . (It was a) clear glass, yeah, but there was a bit of a glare, as I remember it, and what I was looking for (at the subsequent photographic identification) was the size of the head, the shoulders, the general characteristics of the body of the person that was involved in the robbery.

Id. at 85. Although not recorded in the 302 form or Officer Kaclik's notes, Smith testified that he had described the robber to the police:

THE COURT: Before you step down, Mr. Smith, on the day of the robbery, did you give a description of any of these persons who were involved to the police?

A. I did.

Q. And of more than one person?

A. I tried to identify the characteristics of, I think, four of the gentlemen that were in the bank at the time.

Q. And do you recall to whom you talked?

A. I spoke with at least five plain clothes men or Federal agents.

Q. Now can you describe the person who was closer to Ms. Hammeke?

A. My description?

Q. As you gave it to the policemen that afternoon?

A. Obviously, I can't give it to you verbatim.

Q. Yes.

A. My impression of them was a case involving a heavyset gentleman, large face, more roundish characteristics with an overcoat on with a weapon underneath the overcoat.

Q. Can you describe the overcoat?

A. It was a darkish raincoat type.

Id. at 81-83.

Appellant's trial counsel did not use the 302's to cross-examine Mr. Smith or Ms. Emamali, either at the suppression hearing or at trial.23 Nor did she bring them to the attention of the trial judge. The motion to suppress was then denied from the bench without explanation and the trial began immediately thereafter. At trial, each of the three witnesses testified to their prior identifications, and identified the appellant in court as the bank robber who had held the shotgun. Hinton was found guilty on four of the five counts charged,24 and was sentenced to 10 years' imprisonment on each of three counts and 6 years on the fourth, all to run concurrently.

On the appeal to this court that followed, Hinton argued that the failure of his trial counsel to request a recess during which she could study the Jencks Act material deprived him of "his counsel's tactical judgment informed by the content of the statements as to whether or not to cross examine with them."25 Lacking a sufficient record to pass on appellant's ineffective assistance of counsel claims, we remanded the record to the district court "for an inquiry into the circumstances surrounding trial counsel's decision not to seek a recess and her apparent failure to use these materials in cross-examining the prosecution's three identification witnesses."26

After a hearing at which appellant's trial counsel was the only witness, the district court on remand made the following findings: "(1) trial counsel did not request a recess upon receiving the Jencks Act materials because she felt she did not need one; (2) counsel read the 302's of Emamali and Smith prior to her cross-examination of those witnesses at the suppression hearing; (3) the best indications of counsel's reasons for not referring to the 302's on cross-examination are that she felt the statements were not helpful to defendant's case and, in fact, could have been harmful to it; and (4) defendant was prejudiced by counsel's failure to bring the 302's to the attention of the Court and jury." FFR at 2.

In support of its finding that appellant's trial counsel had read the Jencks Act material before her cross-examination of Smith and Emamali,27 the district court provided the following explanation:

Although (counsel) could not specifically recall having read the materials before cross-examining Emamali and Smith at the suppression hearing, her best recollection was that she had read at least the 302's by that time.

The circumstances of this case seem to support counsel's recollection. Counsel had conducted substantial discovery and was familiar with much of the information contained in the Jencks materials. Only sixteen pages of the materials involved the three identification witnesses, and of that, several concerned the line-up with which counsel was quite familiar. Little time would be required for an experienced criminal trial attorney such as counsel to follow her usual practice of separating the relevant material and quickly reviewing it. Therefore, the Court accepts counsel's best recollection and finds that trial counsel read the 302's of Emamali and Smith prior to her cross-examination of those witnesses at the suppression hearing.

FFR at 5.

The court added in a footnote, however, that "(t)he Court's acceptance of counsel's best recollection . . . is prompted more by counsel's experience, usual practice, and opportunity to view the relatively small amount of relevant material than it is to counsel's hindsight justification for her recollection." Id. at 5 n.8. The court also cautioned that "(a)lthough the Court here finds that trial counsel read the 302's prior to cross-examining the identification witnesses, no inference should be derived therefrom that counsel had adequate time to make an informed tactical decision as to the use of the information contained in the 302's. In light of the findings . . . concerning prejudice to the defendant by counsel's omissions, the Court retains substantial doubt as to whether adequate time existed for such an informed decision." Id. at 5 n.8.

The image that emerges from these findings and the transcript of the hearings on remand is that of a harried trial attorney, attending to direct examination with one part of her consciousness, and with the other rifling through the "massive Jencks material" (as trial counsel characterized it, see Trial Tr. 407), in a hurried attempt to isolate and scan the relevant documents. Appellate counsel's notes, for example, indicate that on April 17, 1976, trial counsel told him she had not read the Jencks Act statements of the government's identification witnesses before these witnesses testified at the motion hearing. When asked to explain at the remand hearing, trial counsel stated that:

my recollection about what I told him there is that I got the Jencks Act material that you pulled out once the witnesses are going to testify and, generally, you are not that far ahead that you have read, let's say, all of the next witness' Jencks Act material way ahead. You are just keeping up, really, and you have gone over it to see if there is anything substantial in it, and then you are checking it, with each witness until you have had a chance to go over it completely.

R.Tr., 26 April 1977, at 41-42. Similarly, when appellate counsel asked trial counsel at the remand hearing whether she felt she had adequate time to assimilate the Jencks Act material, the following exchange took place:

Q. Do you recall telling me on April 16, 1976, in our telephone conversation, that you looked at the Jencks Act statements that you were given at the motion hearing, but you had no adequate time to review them?

Q. Did you say that to me?

A. I am sure I did.

Q. And is that your testimony today?

A. I don't think you have adequate time if you are doing it on the day of trial.

Even if you ask for a recess and the Judge gives you a recess, you are out there hastily looking at it with the Marshal coming out the door saying, "Are you finished yet? Are you finished yet?"

It simply does not work well to have it given to you on the day of trial.

It can be managed. It usually is reasonably workable, but it is not the opportune way for this to be handled, by any means.

Q. Is this one of the cases that wasn't workable because you had such a large volume of Jencks Act material?

Is that a fair statement?

A. It was less workable. If it had become totally unmanageable, I would have had to ask for a recess, although it would have interrupted the motion hearing and the continuity of it would have delayed the proceedings.

R.Tr., 15 April 1977, at 24-25.

It is evident that the government's decision to provide the Jencks Act materials for the first time at the suppression hearing placed appellant's trial counsel in a dilemma. The district court on remand found that although trial counsel "did not request a recess because she felt she did not need one," counsel was concerned "that, in general, there was never enough time for an adequate review of Jencks materials when received on the day of trial; and that requesting a recess to study the materials was an unsatisfactory method of dealing with the problem in that it risked antagonizing the Court and disrupting proceedings." FFR at 4. The transcript of the remand hearings vividly portrays counsel's concerns:

APPELLATE COUNSEL: Now, the transcript of the motion hearing reflects no request for a continuance after you received the Jencks Act material and prior to your cross-examination of these witnesses.

Now will you tell us why you did not ask for a continuance to allow yourself more time to study these materials

A. It is not a particularly satisfactory practice in many ways.

As I think I explained previously, without trying to put on the record any impression that I think His Honor hurries or does not give adequate time to every defendant, it does irritate a busy person who wants to get moving with their work to delay it by asking for a recess.

Generally I can handle it. It is not a comfortable process. It is not.

Q. Would it be fair to say that you concluded that the potential gain from what you might find in the Jencks Act material by further study did not warrant antagonizing the Court by asking for a delay?

A. Among considerations, yes, I think so. It delays the proceedings; it antagonizes; it antagonizes everybody and generally it doesn't come up with that much.

Now, I am not saying that there may not be a time that a gold mine would be missed, and, as I said before, the optimum way to get any benefit from Jencks material is to have plenty of time.

Getting it the night before is a very satisfactory way. You can sit and read it at a leisurely pace, take a break when you feel like taking a break, and get back to it, and mull it over in your own mind.

Even if you read it, sometimes having a chance to think it over gives you a great deal more help, but

THE COURT: . . . (D)uring the course of this trial, at any time did you feel that the Judge was antagonized by anything you did or said?

A. No, Your Honor, I can't I know I have in the past antagonized you in some ways.

I have some personal habits, perhaps, that do not please you in the courtroom, yes, but I can't specifically recall any. We live with it.

No counsel is perfect coming before the Judge, and I suppose no Judge is perfect as counsel looks at it, too.

I have no recollection of anything untoward really happening at the trial insofar as antagonisms or

In fact, I think it was a better-tried case than a good many.

R.Tr., 15 April 1977, at 50-53.

It is to avoid placing defense counsel in dilemmas such as these that the ABA Standards Relating to Discovery and Procedure Before Trial admonish prosecutors to disclose Jencks Act material to defense counsel "as soon as practicable following the filing of charges against the accused."28 See United States v. Sebastian, 497 F.2d 1267, 1270 (2d Cir. 1974). A criminal trial is not "a game or sporting contest," but "a serious inquiry aiming to distinguish between guilt and innocence." Williams, Advance Notice of the Defense, 1959 Crim.L.Rev. 548, 554. The government's behavior in this case is particularly troubling because (1) the Jencks Act material was voluminous; (2) the government knew in advance it would call these three identification witnesses; and (3) there was no question of the substantial relevance of the 302's.

The government, however, has violated no legal obligations to the defendant.29 Our inquiry is limited, therefore, to whether when placed in this awkward position by the government, counsel responded in a manner consistent with her client's constitutional right to the effective assistance of counsel.

Our recent en banc opinions in Decoster III and Wood30 define ineffective assistance of counsel as a substantial breach in the duty owed to the defendant by competent counsel.31 While this standard does not require "errorless representation,"32 it does demand that counsel's choices be "the product of deliberate and informed decision, not oversight or inadvertence."33 Where counsel's choices are uninformed because of inadequate preparation,34 or are not "arguably . . . the product of tactical decisions,"35 a defendant has been denied his right to the effective assistance of counsel guaranteed by the Constitution.

One of the necessary elements of an informed decision is that "counsel . . . allow himself enough time for reflection and preparation for trial." Coles v. Peyton, 389 F.2d 224, 226 (4th Cir.), cert. denied, 393 U.S. 849, 89 S.Ct. 80, 21 L.Ed.2d 120 (1968). In this case, although the district court found that appellant's trial counsel looked at the 302's during the suppression hearing, it retained "substantial doubt as to whether adequate time existed for . . . an informed decision" whether to use them in the cross-examination of Smith and Emamali. FFR at 5 n.8. The circumstances surrounding counsel's decision support the conclusion that it was not in fact informed. Counsel was handed voluminous Jencks material at the suppression hearing. The government made no effort to alert her to the immediate pertinence of the 302's. Counsel then read the materials, as she later stated, while testimony by the identification witnesses was in progress. See R.Tr., 26 April 1977, at 41-42.36

It is to avoid just this problem that the Jencks Act provides that after material is given to the defense, "the court in its discretion, upon application of (the) defendant, may recess proceedings in the trial for such time as it may determine to be reasonably required for the examination of such statement by said defendant and his preparation for its use in the trial." 18 U.S.C. § 3500(c). Counsel conceded at the remand hearing that she did not feel she had adequate time to review the materials, R.Tr., April 15, 1977, at 24-25, yet she did not invoke this provision for a recess. Had she done so, a refusal by the court to allow sufficient time for review would have been appealable as an abuse of discretion.37

Whether counsel's failure to request a recess alone rendered her decision uninformed, however, it is quite apparent that she completely failed to appreciate the obvious and crucial legal significance of the 302's. During the suppression hearing, the court was, in its own words, "obviously concerned" with the admissibility of the identifications based on the photo array. FFR at 8. The witnesses had had only brief glimpses of the suspects during the robbery,38 and all of the suspects had worn masks covering most of their faces.39 Further, there was a substantial question whether the witnesses had colored each others' memories during their discussions following the robbery.40 In an effort to determine the basis for the witnesses' selections, the court therefore, on its own initiative, asked the witnesses to provide any descriptions they had given to the police immediately after the robbery.41 When both Emamali and Smith stated that they had previously given the police descriptions resembling appellant, the court was able to discount, to that extent, the possibility that the composition of the photo array or its presentation was itself responsible for their selections.42 Furthermore, these uncontroverted prior descriptions bolstered the overall reliability of the witnesses identifications, for the accuracy of a witness' prior description is part of the "totality of circumstances" to be considered in determining the admissibility of identification testimony.43

Counsel nevertheless testified on remand that she did not alert the court to the inconsistencies between the testimony of Emamali and Smith and the 302's because she "did not feel that the Jencks material was particularly important." R.Tr., April 15, 1977, at 29. Beyond that, all she could offer to explain her omission was the hindsight evaluation that perhaps she had feared that introducing the 302's would "clutter up the record," id., or distract attention from the photo array.44 It is apparent, therefore, that in the rush and confusion of the suppression hearing counsel simply did not appreciate the significance, and in light of the judge's own interest, the critical importance of the 302's. As a result, appellant was deprived of the "informed, professional deliberation" of counsel guaranteed by the Sixth Amendment.45

In Decoster III and Wood a majority of this court also agreed that to reverse a conviction on the basis of ineffective assistance of counsel, the defendant must establish that he has suffered "likely prejudice."46 The burden then falls upon the government in accordance with Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), to prove "beyond a reasonable doubt" that the constitutional deficiencies of counsel's representation were, in fact, harmless.47

Because the hearings on remand in this case were conducted prior to our decision in Decoster III, the parties did not have an opportunity to address the question of prejudice in light of these principles. It is also not clear how the district court's finding of "prejudice" should be interpreted. The district court found that the appellant was prejudiced in two respects by trial counsel's failure to bring the 302 statements to the attention of the court at the suppression hearing.48 First, the court found that "had that information been made available, it might have suppressed the photo array as well as the testimony of Emamali and Smith."49 This could be considered a ruling on "likely prejudice," but the court does not reveal what standard it relied upon in reaching its conclusion. The court's second finding appears in a footnote, where the court states: "(I)n a case such as this, where circumstantial evidence provides the proof of defendant's guilt, the introduction of the testimony of Emamali and Smith (at trial) cannot be considered harmless."50 This would appear to be a ruling on harmless error, thus encompassing both of the steps with respect to prejudice required by Decoster III for reversal. But, again, it is not apparent what standard the court applied in reaching its finding. More importantly, this ruling was made by the court without benefit of argument from the parties.51

Rather than speculate as to the meaning of the district court's findings, we remand the record for clarification. In accordance with the principles of Decoster III and Wood, the court should consider whether the defendant has established a "likelihood" that his counsel's inadequacy prejudiced his defense, and whether the government can demonstrate beyond a reasonable doubt that the deficiencies were harmless.

Record remanded for further proceedings consistent with this opinion.