United States v. Barrios

31 M.J. 750, 1990 WL 143997
CourtU.S. Army Court of Military Review
DecidedSeptember 28, 1990
DocketACMR 8902678
StatusPublished
Cited by1 cases

This text of 31 M.J. 750 (United States v. Barrios) is published on Counsel Stack Legal Research, covering U.S. Army Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Barrios, 31 M.J. 750, 1990 WL 143997 (usarmymilrev 1990).

Opinion

OPINION OF THE COURT

GRAVELLE, Judge:

Contrary to his pleas, appellant was convicted by a general court-martial composed of officer and enlisted members of wrongful distribution of cocaine in violation of Article 112a, Uniform Code of Military Justice, 10 U.S.C. § 912a. The convening authority approved the sentence of a bad-conduct discharge.

I. ADMISSIBILITY OF LABORATORY REPORT

On appeal, appellant asserts that it was error for the military judge to admit into evidence an improperly authenticated laboratory report. Specifically, appellant objects to the photocopied authentication certificate which was offered to authenticate the laboratory report. The record indicates that a photocopy of the laboratory report as well as a photocopy of the authenticating certificate was received by the local CID evidence custodian from the CID laboratory at Fort Gillem. The local CID evidence custodian testified that he personally received and opened the registered mail package from the CID laboratory. The package contained only photocopies of the two documents along with the chain of [752]*752custody document and the evidence identified by the laboratory as cocaine. We note that the authenticating certificate correctly identifies the laboratory case number and is signed by the Deputy Records Custodian on United States Army Criminal Investigation Laboratory — CONUS letterhead stationery. We agree with the Government that there was no genuine question raised at trial as to the authenticity of the laboratory report or the attesting certificate. Cf. United States v. Vietor, 10 M.J. 69 (C.M.A.1980). Although we do not encourage use of photocopied authentication certificates, we find that in this case the laboratory report was sufficiently authenticated and was therefore properly admitted into evidence at trial. Manual for Courts-Martial, United States, 1984, [hereinafter MCM, 1984], Mil.R.Evid. 902 and 1003. Even if the military judge erred in this case, we find that there was sufficient independent evidence presented to the court that the substance distributed by the appellant was in fact cocaine.

II. DENIAL OF CHALLENGES FOR CAUSE

Appellant also asserts that it was error for the military judge to deny challenges for cause against COL B and LTC S, two members of the court, because of inflexible attitudes towards sentencing. Having failed in his challenge of LTC S for cause, defense counsel challenged him peremptorily. The issue of denial of the challenge for cause against LTC S has been preserved for appeal. MCM, 1984, Rule for Courts-Martial 912(f)(4). In light of our disposition of this case, however, we need not determine the issue of the military judge’s denial of the challenge for cause against LTC S. We now turn to the question of the denial of the challenge for cause against COL B.

During voir dire, the following occurred:

IDC: Colonel [S], if Private Barrios were convicted of the charge before you— which is distribution — let’s assume that he was convicted for our purposes — is there any circumstance that you would not vote to discharge him from the Army?
LTC [S]: Not one that I can think of.
IDC: Colonel [B], sir, I’d ask you the same question.
COL [B]: No.
IDC: In other words, if he is convicted, you would vote to discharge him?
COL [B]: Yes.
* * * * * *
MJ: All right. Are there any questions by the prosecution, prompted by questions of the defense?
TC: Yes, there are your honor. Colonel [B], you’ve indicated to the defense counsel that — assuming that Private Barrios is convicted of the stated offense in this case — that you would vote, probably, to separate. Is that correct sir?
COL [B]: Yes.
TC: Is that statement, sir, one that you — would you vote that way, no matter what kind of evidence the accused put on, in sentencing — for example, extenuation and mitigation, and so forth? Are you so firmly set, at this time, that you could not, in good conscience vote any other way; no matter what you heard from the defense, in mitigating evidence?
COL [B]: He asked me — you know — if he was convicted of distribution of drugs. I would be open minded; but, in my business, I would have to answer, “Yes.”
TC: “Yes,” that you would be open-minded, sir, or—
COL [B]: I would eliminate him. Yes, I would be open-minded; but, if he’s convicted of distribution of drugs, then, in aviation, there’s no place for him — sorry.
TC: Okay, then, so what you’re saying is that your opinion, then, is based on somebody from your own unit — being courtmartialled, for example — and, then, recognizing the seriousness of the operation of your unit, it would be your view, in that case that there’d be no place for that soldier in the Army?
COL [B]: No place for a soldier that distributes drugs, in an aviation organization — in my organization. There’s no place in the Army for them.
TC: And how about Private Barrios, who’s a member of another organization? [753]*753Do you have a different feeling on that, or—
IDC: Your Honor, at this point, we’re going to object. I think that the colonel was very clear, when he answered the question.
MJ: And, what was your question (to trial counsel)?
TC: I just asked, Your Honor, if Colonel [B] felt that, for Private Barrios, he would have a similar view about the severity of the offense; or, if he would be inclined to view the—
MJ: I assume what you’re asking, then, is for individuals who are not part of the aviation organization?
TC: Exactly, Your Honor.
MJ: Very well. You may proceed.
COL [B]: Do you want me to answer that?
TC: Yes, sir.
COL [B]: Well, in my opinion there’s a small line — there’s a difference between use and distribution. I can be a little bit tolerant — and, that’s a bad word — I can understand how soldiers can use drugs, and get caught at that. I cannot understand how a soldier can distribute drugs; especially to fellow soldiers.
TC: Have you, then, sir — are you ruling out any sort of punishment, other than a discharge in this case? In other words, I guess my question is — uh—no matter what the defense presents in evidence, in this case will you be able to maintain an open mind about the evidence; and, adjudge an appropriate sentence, based on that evidence that you hear; and, not on an inelastic predisposition you might have about a certain sentence, or portion of a sentence?
COL [B]: I’m not sure I understand the question. I guess — I guess what I’m saying is that, if the defendant was found guilty of distribution of drugs, that that would concern me a great deal, in my line of work.

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Bluebook (online)
31 M.J. 750, 1990 WL 143997, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-barrios-usarmymilrev-1990.