United States v. Carrott

25 M.J. 823, 1988 WL 9532
CourtU S Air Force Court of Military Review
DecidedJanuary 29, 1988
DocketACM S27569
StatusPublished
Cited by2 cases

This text of 25 M.J. 823 (United States v. Carrott) is published on Counsel Stack Legal Research, covering U S Air Force 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. Carrott, 25 M.J. 823, 1988 WL 9532 (usafctmilrev 1988).

Opinion

DECISION

LEWIS, Judge:

Despite his plea of not guilty the appellant was found guilty of wrongful use of cocaine by a military judge, sitting alone. The evidence substantiating the alleged use was the result of a urinalysis conducted by the gas chromatography/mass spectrometry (GC/MS) confirmation test method at a contract laboratory. The test revealed the presence of benzoylecgonine, the specific metabolite of cocaine, at a level of 415 nanograms per milliliter (415 ng/ml) of urine. This was well above the 150 ng/ml level required for a positive confirmation test result. We find that the military judge erred in admitting the test result over defense objection of an inadequately developed chain of custody of the appellant’s urine sample, and we reverse.

The chain of custody information placed before the court was contained in the documentation provided to the prosecution by a certifying official associated with the laboratory. Such documentation is commonly referred to as the “litigation package” and, based on our experience in reviewing courts-martial of this nature, consists of such material relating to a urinalysis as is furnished by laboratory supervisory personnel for use during the court-martial process. In this instance, it appears that something less than a full litigation package was available to the parties at trial. Appellate government counsel argue that that which was available was sufficient to overcome a chain of custody objection. We disagree for reasons set forth herein.

The government’s burden of demonstrating an adequate chain of custody is satisfied by a showing that fungible evidence has been preserved in an unaltered state. United States v. Courts, 9 M.J. 285, 290 (C.M.A.1980); United States v. Nault, 4 M.J. 318, 319 (C.M.A.1978). The court must be satisfied by the government’s proffer that in reasonable probability the relevant evidence, the urine sample in this instance, has not changed in important respects. United States v. Courts, supra; United States v. Frost, 19 M.J. 509 (A.F.C.M.R.1984), aff'd, 22 M.J. 386 (CMA 1986). In ruling on chain of custody issues the military judge has broad discretion, and his ruling will not be disturbed absent a clear abuse of that discretion. United States v. Hudson, 20 M.J. 607, 608 (A.F.C.M.R.1985), pet. denied, 21 M.J. 32 (1985). We examine the chain of custody information in this case with this background in mind.

The evidence presented by the government reflects that a portion of the appellant’s urine sample was screened by the radioimmunoassay (RIA) method at the Air Force Drug Testing Laboratory on 6 November 1986. While an RIA screening does not accurately detect the specific metabolite of cocaine, this screening reflected a presumptive positive indication of the presence of the metabolite in accordance with the existing Departmental cutoff standard. Chain of custody documentation available to the court reflects that an aliquot, or portion, of the urine was shipped to the contract laboratory on 12 November 1986. The following day, 13 November 1986, the urine was received at the contract laboratory, assigned a laboratory accession number, and transferred along with certain other specimens to the temporary storage portion of the laboratory. No further documentation purporting to record chain of custody information is apparent until over four months later, on 20 March 1987. This information reflects that the sample was removed from long-term, as opposed to temporary, storage and prepared for the GC/MS confirmation test. This test was conducted three days later on 23 March 1987. We may infer that a portion of the appellant’s sample was actually tested on that date by reference to two identification numbers, the laboratory accession number and the QC batch number reflecting that grouping of identifiable control samples with which the urine was assigned for purpose of the test.

The government attempted to provide an explanation for the gap of over four months in the chain of custody entries. [825]*825In reply to questions by the trial counsel, the government expert, Doctor John Vasiliades, testified that he had contacted a representative of the laboratory by telephone and had received a satisfactory explanation. The military judge properly sustained a defense hearsay objection to the witness’ stating the substance of the explanation. During the course of his testimony Doctor Vasiliades managed to convey the thought that the gap did not represent what he would characterize as a discrepancy. It was rather a question of missing documentation which was not provided with the litigation package. He summed up his thoughts on the matter, constrained as he was by the military judge’s ruling on hearsay, by saying, “Honestly, if there was a problem, ... you would never get a litigation package.”

If we accept the logic of the witness’ observation, certain basic premises emerge. Laboratory personnel assume a quasi-judicial role in determining whether test results have sufficient reliability to support prosecution in a given case. The need for providing detailed chain of custody information ceases to be a concern in this eventuality. The preparation of a litigation package, presumably containing relevant test data as a minimum, ipso facto reflects regularity in processing of the sample tested. Clearly, the adoption of a broadly based presumption supported by the premises set forth would ease the prosecution burden considerably. However, this is not the direction in which the law is heading.

Appellate government counsel argue that laboratory procedures designed to insure proper custodial controls are customarily accorded a superior recognition of regularity to those of law enforcement agencies, citing United States v. Porter, 12 M.J. 129 (C.M.A.1981). We agree that Porter supports that proposition to some extent. See United States v. Strangstalien, 7 M.J. 225 (C.M.A.1979), on which the Porter dictum is based. Strangstalien emphasizes that “a lack of break in the chain of custody” is a key to the presumption of regularity which a court may accord to a laboratory. 7 M.J., at 229. On the other hand, a four month hiatus between the chain of custody entries reviewable in court, in a situation in which the pertinent evidence has apparently been handled in some fashion during the interim, unquestionably represents a break of major proportion. Porter also noted that the accused in that case was contesting his knowing participation in a sale of marijuana and not, specifically, that the substance seized and subsequently tested in a central laboratory was in fact marijuana. Under those circumstances any error in the chain of custody documentation was not prejudicial. 12 M.J., at 133. Herein, the presentation of a traceable chain of custody assumes a more paramount role.

The primary reason that regularity cannot readily be presumed in this case stems from Doctor Vasiliades’ testimony concerning his understanding of the regular practice for handling specimens by the laboratory in question. According to the witness, a sample is placed in temporary storage until such time as testing has been accomplished and testing results are validated. Then, in the normal course of events, the remainder of the sample would be transferred to long-term storage. This facility occupies a separate room down the hall from the temporary storage area, although both facilities occupy a common controlled area, the laboratory itself.

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Related

United States v. Maxwell
38 M.J. 148 (United States Court of Military Appeals, 1993)
United States v. Gonzales
37 M.J. 456 (United States Court of Military Appeals, 1993)

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Bluebook (online)
25 M.J. 823, 1988 WL 9532, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-carrott-usafctmilrev-1988.