United States v. Baker

43 M.J. 736, 1995 CCA LEXIS 355, 1995 WL 789016
CourtUnited States Air Force Court of Criminal Appeals
DecidedDecember 20, 1995
DocketACM 30722
StatusPublished

This text of 43 M.J. 736 (United States v. Baker) is published on Counsel Stack Legal Research, covering United States Air Force Court of Criminal Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Baker, 43 M.J. 736, 1995 CCA LEXIS 355, 1995 WL 789016 (afcca 1995).

Opinions

OPINION OF THE COURT

SCHREIER, Senior Judge:

Contrary to his pleas, members convicted appellant of distribution of cocaine on three occasions, possession of cocaine with intent to distribute, simple possession of cocaine, manufacture of cocaine, conspiracy to manufacture cocaine, and possession of drug abuse paraphernalia. Articles 112a, 81, and 92, UCMJ, 10 U.S.C. §§ 912a, 881, and 892 (1988). The members acquitted appellant of four other separate instances of cocaine distribution. After findings, the military judge dismissed the simple possession specification as multiplicious with the possession with intent to distribute specification. The convening authority approved the adjudged sentence of a bad-conduct discharge, confinement for 10 years, forfeiture of $300 pay per month for 10 years, and reduction to E-1. Appellant asserts 10 errors involving the reasonable doubt instruction, the admissibility of various evidence, multiplicity, violation of the sanctity of the member’s deliberations, factual sufficiency, sentence severity, cumulative error, and nonverbatim record. Having found error, we dismiss the possession of drug paraphernalia specification and modify the conspiracy specification to attempted conspiracy.

[737]*737FACTS

The Air Force Office of Special Investigations (AFOSI) suspected appellant was a major drug dealer at Holloman Air Force Base, New Mexico. They targeted two undercover informants, TSgt H and SSgt J, who were also drug users, on appellant in an attempt to make controlled buys and to capture appellant on video manufacturing crack cocaine. Neither informant was aware of the other’s status as an informant. Their efforts were only partially successful. The distributions took place primarily outside of AFOSI observation, and the video equipment malfunctioned. However, when appellant was finally apprehended, he had several marked bills in his possession.

The government’s case at trial was also far from a model presentation. The AFOSI agents attempted to dub the voice from one video onto the original of the second video, which did not record any verbal transmissions. Further, they redacted the names of suspects from original laboratory reports. Also, appellant’s name did not appear on any of the laboratory reports. The AFOSI agents forgot the sequence of events, causing them to misstate the evidence. Additionally, both informants admitted to initially deceiving the AFOSI about the extent of their drug abuse and their continued involvement with drugs.

ADMISSIBILITY OF EVIDENCE

We review challenges to the admissibility of evidence under an abuse of discretion standard. United States v. Ray, 26 M.J. 468, 472 (C.M.A.1988) cert, denied, 488 U.S. 1010, 109 S.Ct. 797, 102 L.Ed.2d 788 (1989); United States v. Davis, 30 M.J. 718, 720 (A.F.C.M.R.1990).

Admissibility of Videotapes

AFOSI technical support set up two pinpoint cameras in SSgt J’s home. One camera functioned correctly, recording both images and sound. Unfortunately, there is minimal action in this recording, the audio quality is poor, and we do not see appellant. The other tape depicts two individuals apparently dividing up some drugs. However, the audio portion did not work and the picture is so snowy as to prevent identification of the participants. In an effort to provide a better presentation, the AFOSI attempted to dub the audio portion of the one tape onto the other tape. Unfortunately, instead of creating a third composite tape, this dubbing was done using the original tapes.

Defense counsel objected to the admissibility of both tapes, calling them manufactured evidence. Special Agent Nash testified that no changes were made to the tape which contained sound but no action. He further stated that the visual portion of the other tape was unchanged. Trial counsel proposed to play only the video portion of the dubbed tape and, at the same time, to play the tape containing the audio portion. The military judge carefully observed the tapes and questioned Special Agent Nash about the contents of the tapes. After being convinced that the evidence, as proposed to be presented to the members, was that originally recorded, she admitted the evidence. She indicated that the government could play both tapes simultaneously only if they could accurately coordinate the vocal and visual portions. When the government was not able to do that, the two tapes were played separately before the members.

The members heard about the malfunctioning equipment. They watched only the video portion of the dubbed tape and both saw and heard the other tape. The military judge did not allow the tapes to go to the deliberation room and ensured that the members had no opportunity to hear the voice on the dubbed tape.

A videotape is admissible if it has been properly authenticated, is relevant, and not unduly prejudicial. United States v. Reichart, 31 M.J. 521, 522-23 (A.C.M.R.1990) pet. denied, 32 M.J. 309 (C.M.A.1991). An original or duplicate is admissible to prove the contents of a recording. Mil.R.Evid. 1002 and 1003.

It goes without saying that we do not sanction the AFOSI’s use of original recordings to attempt a dubbing. Any interference with original evidence creates an appearance of wrongdoing, even when it is done with the best of intentions. Regardless of whether [738]*738we consider the dubbed tape to be an original videotape or a visual duplicate, the effect is the same. The evidence presented was an accurate depiction of events. We find that the military judge ensured the videotapes were properly authenticated. Mil.R.Evid. 901(a), 1002, and 1003. We further find that even though the poor quality of the tape prevented an observer’s independent identification of appellant, the witnesses established its relevancy and probative value. The military judge did not abuse her discretion under these circumstances.

Admissibility of the Laboratory Reports

As the informants turned purchased drugs over to the AFOSI, the AFOSI took those drugs to the state laboratory for testing. However, instead of providing a separate request identifying the drugs received from each suspect, they combined drugs from different suspects on each analysis request. Furthermore, they redacted the names of all suspects, except one civilian, from the original lab reports. It is unclear when or why this redaction occurred. In any event, appellant’s name was not on either of the laboratory reports offered as prosecution exhibits 9 and 10 which allegedly reported the analysis on cocaine samples previously admitted into evidence. Trial defense counsel argued that the laboratory reports lacked relevance because there was no connection to appellant.

Special Agent Nash described the process of getting the cocaine samples to the laboratory for testing. Although he initially misidentified who took the samples to the laboratory, he later remembered that he had taken the samples for testing. He was further able to correlate the information on the evidence tags, particularly the weight and description of the samples, with the same information on the laboratory reports. Dr.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Jackson v. Virginia
443 U.S. 307 (Supreme Court, 1979)
United States v. Loving
41 M.J. 213 (Court of Appeals for the Armed Forces, 1994)
United States v. Riddle
41 M.J. 673 (Air Force Court of Criminal Appeals, 1994)
United States v. Brooks
42 M.J. 484 (Court of Appeals for the Armed Forces, 1995)
United States v. Anzalone
43 M.J. 322 (Court of Appeals for the Armed Forces, 1995)
United States v. Sell
3 C.M.A. 202 (United States Court of Military Appeals, 1953)
United States v. Autrey
12 C.M.A. 252 (United States Court of Military Appeals, 1961)
United States v. Krebs
20 C.M.A. 487 (United States Court of Military Appeals, 1971)
United States v. Gray
7 M.J. 296 (United States Court of Military Appeals, 1979)
United States v. West
13 M.J. 800 (U.S. Army Court of Military Review, 1982)
United States v. Earhart
14 M.J. 511 (U S Air Force Court of Military Review, 1982)
United States v. Watkins
21 M.J. 208 (United States Court of Military Appeals, 1986)
United States v. Durham
21 M.J. 232 (United States Court of Military Appeals, 1986)
United States v. Sales
22 M.J. 305 (United States Court of Military Appeals, 1986)
United States v. Ayala
22 M.J. 777 (U.S. Army Court of Military Review, 1986)
United States v. Turner
25 M.J. 324 (United States Court of Military Appeals, 1987)
United States v. Ayala
26 M.J. 190 (United States Court of Military Appeals, 1988)
United States v. Healy
26 M.J. 394 (United States Court of Military Appeals, 1988)
United States v. Ray
26 M.J. 468 (United States Court of Military Appeals, 1988)
United States v. Peoples
29 M.J. 426 (United States Court of Military Appeals, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
43 M.J. 736, 1995 CCA LEXIS 355, 1995 WL 789016, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-baker-afcca-1995.