United States v. Coleman

32 M.J. 508, 1990 CMR LEXIS 1413, 1990 WL 180549
CourtU.S. Army Court of Military Review
DecidedNovember 15, 1990
DocketACMR 8902817
StatusPublished
Cited by4 cases

This text of 32 M.J. 508 (United States v. Coleman) 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. Coleman, 32 M.J. 508, 1990 CMR LEXIS 1413, 1990 WL 180549 (usarmymilrev 1990).

Opinions

OPINION OF THE COURT

GRAY, Judge:

A military judge sitting as a general court-martial convicted the. accused, contrary to his pleas, of forgery, wrongful use of marijuana, making a false official statement, and wearing unauthorized military insignia in violation of Articles 132, 112a, 107, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 932, 912a, 907, and 934 (1982 and Supp. V 1987). The approved sentence provides for a bad-conduct discharge, confinement for three years and six months, forfeiture of all pay and allowances, and reduction to Private E1.

The appellant contends that the military judge erred by admitting the laboratory results over defense objection. He also asserts that the military judge erred by taking judicial notice of facts interpreting the urinalysis results. Finally, appellant contends that the evidence is insufficient to prove his guilt of marijuana use.

[509]*509We hold as follows: First, that the military judge did not err in admitting Prosecution Exhibit 14 since the trial defense counsel waived the error by failing to specifically object. Second, the military judge erred by taking judicial notice of facts interpreting the urinalysis results. Third, the admissible evidence is not sufficient to prove the appellant’s guilt of use of marijuana beyond a reasonable doubt.

I. Facts

On 3 March 1989, appellant was ordered by his company commander to submit to a urinalysis. The appellant’s urine sample was sent to a government drug testing laboratory at Brooks Air Force Base, Texas, which reported that the specimen tested positive for the presence of marijuana metabolites. At trial, the Government introduced Prosecution Exhibit 14, the test results, to prove appellant’s use of marijuana. Trial counsel also requested that the judge take judicial notice of certain facts which were set forth in Appellate Exhibit III purporting to explain the significance of the test results.

Prosecution Exhibit 14 consists of the following documents:

a. A cover letter containing a summary of the laboratory testing of appellant’s urine, and also containing an attesting certificate.

b. A Dep’t of Air Force Form 1890, Urinalysis Custody and Report Record (Apr.1986), stating that appellant’s urine specimen was tested and determined to be “THC POS.”

c. One Air Force Service Command Form 3616, Laboratory Radioimmunoassay Chain of Custody (Oct. 86).

d. Twelve pages of charts, graphs, and data reflecting the tests performed on appellant’s urine and the test results.

e. Air Force Service Command Form 3617, Laboratory Confirmation Chain of Custody (Oct. 86).

f. A four-page affidavit describing the testing procedures and capabilities of the Air Force Drug Testing Laboratory, Brooks Air Force Base, Texas.

Appellate Exhibit III states the following:

a. The drug marijuana is derived from the marijuana plant. When marijuana is inhaled or ingested, the body, through the process of metabolism, converts marijuana into several dozen metabolites (break-down products) which it then excretes in urine. The predominant marijuana metabolite found in urine is ll-nor-Delta-9-tetrahydrocannabinol9-carboxylic acid. Marijuana metabolites are not found in human urine unless marijuana has been ingested.
b. 1 l-nor-Delta-9-tetrahydrocannabinol-9-carboxylic acid can be conclusively identified through a properly conducted radioimmunoassay [sic] (RIA) screening test followed by a gas chromatography/mass spectrometry (GC/MS) confirmatory test of a urine sample.
c. All military drug testing laboratories operate under a set of regulations that require urine samples to contain sufficient quantities of marijuana metabolites to exceed set screening levels. These levels virtually eliminate the possibility that the presence of marijuana metabolites in the urine results from the passive inhalation of marijuana smoke.

Appellant’s counsel objected to the admission of Prosecution Exhibit 14 on “foundational grounds” but failed to otherwise specify the basis of his objection. He also objected to the military judge taking judicial notice of Appellate Exhibit III on the grounds that the matters set forth therein were not the kinds of facts that could be judicially noted pursuant to Manual for Courts-Martial, United States, 1984, Military Rule of Evidence 201(b) [hereinafter Mil.R.Evid.].

II. Admissibility

The defense counsel failed to object with specificity to the admissibility of Prosecution Exhibit 14; therefore, the issue is waived. Military Rule of Evidence 103(a)(1) states, in part, that an objection at trial must state the specific ground upon which the objection is based.

Upon the Government’s motion to admit Prosecution Exhibit 14, the following eolio[510]*510quy occurred between defense counsel and the trial judge:

DC: Well, Your Honor, the only objection we would have to this packet, we’ve not had any testimony that would tell us what all these different charts and numbers and these—
MJ: Well, let’s leave this one for a second. How about 12 and 13?
DC: No objections to those, Your Honor.
MJ: Okay, Prosecution Exhibit 12 and 13 for identification are received into evidence as Prosecution Exhibit 12 and 13.
TC: Your Honor, in response to the defense’s objection to the absence of an explanation, the government would refer you to the summarization of the voluminous document, litigation packet. The first page of Prosecution Exhibit 14 has a summary of the findings of all the charts and grafts [sic] in the litigation packet and that that [sic] document is admissible under the Military Rule of Evidence 1006, as a summary of voluminous lab report, and that, we believe, is more than adequate to explain the. contents of the laboratory report.
MJ: Defense?
DC: Well, Your Honor, our position would be the packet contains a great deal of information, a lot of it of a scientific nature. If the—
MJ: Now are we talking admissibility or are we talking weight and credit?
DC: Well, Your Honor, we — I guess on one aspect we’re talking admissibility as to portions of it. Looking at foundation requirements, we don’t have any individual here that took part in the testing of — that put together all these charts that could say this is true and accurate. The other thing is, looking at the weight involved, there’s a lot of things in here that they refer to dealing with numbers and graphs and charts, and it’s as if the government’s trying to put a little icing on the cake there.
MJ: That’s what I said. Are we talking admissibility or are we talking weight and credit?
DC: Our position would be a little of both, Your Honor.

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Related

United States v. Brown
52 M.J. 565 (Army Court of Criminal Appeals, 1999)
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33 M.J. 706 (U.S. Army Court of Military Review, 1991)
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33 M.J. 596 (U.S. Army Court of Military Review, 1991)
United States v. Harper
32 M.J. 620 (U.S. Army Court of Military Review, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
32 M.J. 508, 1990 CMR LEXIS 1413, 1990 WL 180549, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-coleman-usarmymilrev-1990.