United States v. Courts

4 M.J. 518, 1977 CMR LEXIS 675

• Court: U S Coast Guard Court of Military Review
• Decided: September 27, 1977
• Docket: CGCM 9949; Docket No. 809
• Status: Published

Opinions

OPINION OF THE COURT

ROSENWASSER, Chief Judge:

The accused, a member of the crew of the CGC GLACIER during its 1976 deployment, allegedly committed four offenses relating to transactions with cocaine. Tried by a general court-martial consisting of the military judge alone, he was found not guilty of all but one. The specification on which he was convicted set forth that he did

at or near Lima, Peru, on or about 22 March 1976 violate a lawful general regulation, to wit: Paragraph 9-2-15A, CG Regulations, dated 7 February 1975, by having in his possession cocaine, a controlled substance.

The judge sentenced him to a bad conduct discharge, confinement at hard labor for three months, and reduction to pay grade E-l, but recommended that the bad conduct discharge be suspended for ten months. On 27 December 1976 the convening authority approved the sentence and suspended the bad conduct discharge as recommended.

Four errors have been assigned, three of them with regard to the evidence before the findings and the fourth with regard to the failure to permit the attendance of a requested witness in mitigation. We do not find substantial merit in any of the assignments, and affirm the conviction and the sentence.

The admission in evidence of a laboratory report (Prosecution Exhibit 10) and the testimony of Lawrence Buer, a forensic chemist, is claimed as the first error. The evidence showed that a substance surrendered aboard ship by Mark J. Whipple, the key prosecution witness, was cocaine. The evidence was admitted, not to show that something possessed by the accused, Kenny Courts, was cocaine, but solely for the limited purpose of showing “that the witness Whipple had some expertise and ability to tell cocaine.” The objection to the evidence is on the ground that a proper chain of custody was not established.

Since this court finds that the evidence in the record apart from Prosecution Exhibit 10 and Mr. Buer’s testimony establishes that the accused possessed cocaine beyond a reasonable doubt, the assignment, even if correct, would be only harmless error.

We hold, nevertheless, that the questioned evidence was properly allowed. The government is not obliged to establish a chain of custody that is positively and indisputably perfect. It is enough that the evidence here shows a strong probability that what Whipple turned in aboard the GLACIER on the last Saturday in March was analyzed in the lab by Mr. Buer and reported on in Prosecution Exhibit 10 dated 16 April. See United States v. Martinez, 43 C.M.R. 434 (A.C.M.R.1970). The asserted defects¹ in the chain of custody affected the weight of the evidence, but not its admissibility.

The second assignment of error attacks the reception in evidence (without objection at the trial) of opinion testimony from Whipple referring to a substance which he and the accused purchased from one “Ed” in Callao, Peru, as cocaine. It is said that the prosecution failed to establish Whipple’s expertise in cocaine identification.

However, the testimony shows that Whipple was a cocaine user; that he knew how to administer it, what it looked like, and where and how to buy it as well as how to cut or dilute it; and he described his physiological reactions to it. Moreover, he testified that he sampled the cocaine obtained from “Ed” at Ed’s house when he and the accused purchased it. The testimony was enough to allow the witness to characterize the substance as cocaine. See United States v. Jackson, 49 C.M.R. 881 (A.F.C.M.R.1975); United States v. Torrence, 3 M.J. 804 (C.G.C.M.R.1977); United States v. Jones, 20 C.M.R. 438 (A.B.R.1955); DA Pam. 27-22, Mil.Crim.Law-—Evidence, Ch. 12, para. 1 (1975).

The third assignment of error reads: EVEN IF WHIPPLE’S OPINION TESTIMONY, THE LAB REPORT AND BUER’S TESTIMONY, WERE PROPERLY ADMITTED, THE EVIDENCE FAILS TO ESTABLISH BEYOND A REASONABLE DOUBT THAT THE DEFENDANT POSSESSED COCAINE.

The court’s finding that the accused possessed cocaine as alleged rested on Whipple’s testimony. Whipple was an accomplice; he was a drug user; he testified under a grant of testimonial immunity. All these circumstances bear upon his credibility, and we have considered his testimony with the utmost caution. Yet the testimony was competent; it was admissible; only the weight to be given it is open to question. Appellant argues that “Whipple’s testimony is simply too uncertain and too vague to permit a conclusion that the substance possessed by the defendant was cocaine”. But we do not find it so.

Whipple’s uncontradicted testimony shows that he and Kenny Courts, the accused, conversed at least twice aboard ship about buying cocaine. He pinpointed one conversation in the ship’s laundry prior to the arrival at Callao, and another when in port in Callao, on the fantail. It was Kenny Courts who introduced “Ed” to Whipple—on 22 March 1976 just outside the main gate. He testified that, much later on the same date he went with Courts by taxi to Ed’s house in Callao. At Ed’s house he transferred $2600 in cash—money belonging to other named Coast Guard persons— to Ed, and received for that sum between 260 and 280 grams of cocaine. At the same time and place, Courts paid Ed between $400 and $500, for which Ed delivered approximately 50 grams of cocaine. Whipple stated: “We counted out the money, gave it to Ed, and took possession of our cocaine.” He was “not really certain if it was one bag or two bags.” He was asked:

Was every bit of the cocaine that was delivered to (sic) Ed’s to the two of you taken into possession by one or the other or both of you?”

He replied:

Both of us.

After receiving the cocaine, according to the uncontradicted testimony, he and Courts remained at Ed’s house, took the cocaine out of the bag or bags, and proceeded to cut it and repackage it in smaller quantities. Ed sent a member of his family to buy the cutting agent in a pharmacy. Whipple stated that he thought Ed said it was .05 per cent boric acid. They weighed out the repackaged quantities on a small balance scale: “we measured out roughly 10 gram increments” then weighed it and “put it in separate packages.”

Whipple thereafter testified with regard to their departure, as follows:

Q. Where did you go after you departed Ed’s?

A. We went back to the base there were (sic) the ship was.

Q. How did you get there?

A. By taxi cab.

Q. Do you remember what time you arrived at the ship?

A. I believe it was somewhere in the neighborhood of about 8:30 in the evening, 2030.

Q. Did you have cocaine on your person at that time?

A. Yes.

Q. Did COURTS?

A. I assume he did, yes.

Q. Why do you assume that he did?

A. Well, he wouldn’t have left it at Ed’s house, I don’t think.

It may be noted that one who assists others in weighing and packaging a drug has possession of the drug. See United States v. Quesada, 512 F.2d 1043, 1045 (CA 5, 1975). In addition of course, Whipple testified directly that the accused took possession of the substance. His testimony with regard to Courts possessing cocaine was not questioned on cross-examination: altogether he was asked no more than nine questions on cross-examination by defense counsel. That the substance was indeed cocaine, is established not simply by Whipple’s referring to it as cocaine, but more importantly by the detailed circumstantial evidence. The identity of a controlled substance may be established by circumstantial evidence without the direct evidence of a laboratory analysis. Agueci v. United States, 310 F.2d 917 (CA 2, 1962) cert. den. 372 U.S. 959, 83 S.Ct. 1016, 10 L.Ed. 12 (1963); United States v. Gregorio, 497 F.2d 1253 (CA 4, 1974); United States v. Quesada, supra; United States v. Torrence, 3 M.J. 804 (C.G.C.M.R.1977).

Whipple’s testimony, then, with regard to the essential facts was clear, consistent and certain; it was not questioned nor was it inherently improbable or incredible. As noted earlier, this court holds that the trial judge’s finding that the accused possessed cocaine as alleged was correct in law and fact.

The final assignment of error is:

THE MILITARY JUDGE ABUSED HIS DISCRETION IN DENYING THE DEFENSE REQUEST FOR A WITNESS IN MITIGATION.

Three live witnesses plus the accused himself gave sworn testimony in mitigation for the defense. Two were commissioned officers from the CGC GLACIER; the third was a drug education specialist. However a written request by the accused for his sister, Mrs. White, as a witness in mitigation, was denied. The request for Mrs. White, who resided in Indianapolis, was submitted on the day the trial began and was supported by nothing more than the statement: “The witness is expected to testify to the good character of the defendant.”

It was not until the following day, after the trial on the merits was concluded, that the defense counsel submitted a synopsis of Mrs. White’s expected testimony. The synopsis stated that she would testify:

That she is the sister of Kenny Courts, that she brought him up until he was six years old, and continued in contact with him until the present; that he has always been quiet and a good guy and never any trouble; that he had a sheltered childhood; that he graduated from high school; that their mother died 3 years ago, whereupon he left his job at Link Belt and joined the Coast Guard; that he married his wife Patricia after joining the Coast Guard; that he seems very good to her and the child is crazy about him; that he came home to see his family in June and at that time his sister went into the hospital for surgery and the whole family was very upset about this.

After examining the synopsis, and hearing counsel, the judge denied the request, at the same time enjoining the trial counsel “to carry out a liberal policy” with regard to stipulating to the witness’ testimony.

Subsequently the judge accepted, with the consent of the trial counsel, Defense Exhibit A, a stipulation of the testimony of Mrs. White, which was exactly the same, word for word, as the synopsis first presented. Still later the accused himself testified. He explained the circumstances of the AWOL committed by him in June (after the current offense) when he overstayed his leave by 11 days. He also told the court that he was married and had a three-year old son; that he had four sisters and the family was very close; that while he was home on leave his sister was due to have surgery and he wanted to make sure everything was OK; that he liked the Coast Guard, but not the hassles he was going through, and that he had given some thought to extending or reenlisting.

The Court of Military Appeals, in its most recent opinion concerning the right of an accused to the live presence of witnesses in his behalf, said:

. if the testimony of a given witness is material, the live presence of that witness must be furnished or the proceedings abated² . . . unless, in the sound discretion of the trial judge, the testimony of that witness would be merely cumulative to the testimony of other defense witnesses.

—United States v. Williams, 3 M.J. 239 (C.M.A.1977) per Perry, J.

In the Williams case the court quoted the rule first enunciated in United States v. Carpenter (infra, footnote 2):

[Ojnce materiality has been shown the Government must either produce the witness or abate the proceedings.

Judge Cook, who authored the Carpenter opinion, dissented in Williams and also dissented in United States v. Willis (infra, footnote 2) which applied the rule to witnesses requested solely in mitigation.

Nevertheless the rule currently represents the law in court-martial cases. Accordingly we inquire whether Mrs. White was a material witness. And that leads us to ask: What do we mean by “material”? What kind of testimony is “material” in a sentence proceeding? As defined by Larkin and Munster, in Military Evidence (1959), p. 81:

. evidence is material when, having probative value, it tends to induce persuasion, either pro or con, as to any issue which is properly before the court.

The 1951 Manual for Courts-Martial also defined “material” evidence, but the definition was omitted from the 1969 Manual. The Analysis of Contents, MCM 1969 (DA Pam. 27-2) explained:

. the distinction between “material” and “relevant” evidence found in the third paragraph of 137 in the former Manual was dropped. This distinction was confusing and served no useful purpose. The words are consistently used interchangeably and any supposed distinction is merely academic.

So, instead of defining “material” evidence, the Manual now provides in paragraph 137:

Evidence is not relevant, as that term is used in this manual, when the fact which it tends to prove is not part of any issue in the case. Also, evidence is not relevant when, though the fact intended to be proved thereby is part of an issue in the case, the evidence itself is too remote to have any appreciable probative value for that purpose. As used in this manual, “material evidence” has the same meaning as “relevant evidence.”

Examining Mrs. White’s testimony in the light of the foregoing, the evidence which she gave was, in the words of the 1969 Manual, “too remote to have any appreciable probative value.” The issue in the sentence part of the case was, as in all sentence proceedings: what punishment is appropriate under the facts and circumstances of this particular case?

One kind of evidence that, in general, is relevant in mitigation is “evidence of good soldierly character”. United States v. Carpenter, supra. Also, testimony that the accused is unlikely to repeat the offense, may be “material.” See United States v. Barfield, 22 U.S.C.M.A. 321, 46 C.M.R. 321 (1973). Evidence that the accused is of borderline mentality is “material.” See United States v. Macreading, 20 C.M.R. 560 (C.G.B.R.1955). Any evidence with respect to the mental condition of the accused which falls short of creating a reasonable doubt as to his sanity, may be considered on the sentence. Para. 123, MCM, 1969; United States v. Block, 18 C.M.R. 458 (C.G.B.R.1955). In the instant case, however, the testimony of Mrs. White could have, at best, only minimal value toward assisting the court in determining the kind and amount of punishment to impose. The rules of evidence are relaxed in the sentence part of the case and an accused is privileged to have his mother, or grandmother or sister or other relative, friend or acquaintance come in and testify, but unless the testimony of such witnesses has appreciable probative value toward determining the appropriate sentence, the government need not stand the expense of having these witnesses appear.

But even assuming that Mrs. White’s testimony was not too remote to be considered “material”, her testimony was cumulative to that which the accused himself was able to supply. The accused was able to, and did, testify as to his family relationships; and he was surely the person best able to explain the extenuating circumstances connected with his pretrial AWOL.

Further, as has been noted, the application for this witness was not properly submitted until midway in the trial. In effect, the application became a motion for a continuance. It was not an abuse of discretion, under the facts here, for the judge to refuse to interrupt the trial at this point. An application for a witness may correctly be denied if it comes inexcusably late. Pouncey v. United States, 121 App. D.C. 264, 349 F.2d 699 (1965).

Finally, since the bad conduct discharge was suspended, if there was error it would not be deemed prejudicial. United States v. Manos, 17 U.S.C.M.A. 10, 37 C.M.R. 274 (1967).

The finding of guilty and the sentence as mitigated are affirmed.

Judges BURGESS and ALCANTARA concur.

Judge LYNCH concurs in part and dissents in part. See separate opinion which follows.

Judge MAGUIRE did not participate in the decision in this case.

1 . Three defects were alleged:

A. CWO Hampton received the material from Whipple and delivered it to CDR Coste, the executive officer, on 27 March. LCDR Hamilton obtained it from CDR Coste on 9 April and transferred it the same date to C. E. Loveless, an agent of the Drug Enforcement Administration. There is no evidence as to what CDR Coste did with it between 27 March and 9 April.

B. The lab report indicated that the material which came to it from the GLACIER was: “Plastic bags containing a strip of white surgical tape and the initials C.E.L. and dated of 4-5-76.” CEL is C. E. Loveless. There is no explanation in the record for the date discrepancy.

C. The record shows that Whipple surrendered the presumed cocaine to CWO Hampton in 6 plastic bags and a wax paper packet, and that LCDR Hamilton transferred the same to Agent Loveless. But the lab report and Buer show that the lab analyzed not only 6 plastic bags and a wax paper packet, but also the contents of two other plastic bags and a small plastic vial. However everything analyzed turned out to be cocaine; and under “Remarks”, the lab report referred to the whole as “The suspected cocaine seized aboard the CGC GLACIER”.

We have no difficulty in concluding from the evidence that Whipple’s six bags and one wax paper packet were included in the lot tested in the lab and ascertained to be cocaine.

2 . Citing: United States v. Willis, 3 M.J. 94 (C.M.A.1977) and United States v. Carpenter, 1 M.J. 384 (1976).