United States v. Farrar

28 M.J. 387, 1989 CMA LEXIS 3481, 1989 WL 90591
CourtUnited States Court of Military Appeals
DecidedAugust 29, 1989
DocketNo. 59,862; ACM S27611
StatusPublished
Cited by5 cases

This text of 28 M.J. 387 (United States v. Farrar) is published on Counsel Stack Legal Research, covering United States Court of Military 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. Farrar, 28 M.J. 387, 1989 CMA LEXIS 3481, 1989 WL 90591 (cma 1989).

Opinion

Opinion of the Court

SULLIVAN, Judge:

In March and May 1987, appellant was tried by special court-martial composed of officer members at Lackland Air Force Base, Texas. Contrary to her pleas, she was found guilty of wrongful use of cocaine, in violation of Article 112a, Uniform Code of Military Justice, 10 USC § 912a. She was sentenced to a bad-conduct discharge and reduction to the lowest enlisted grade. The convening authority approved the sentence as adjudged. The Court of Military Review affirmed the findings and sentence. 25 MJ 856 (1988).

This Court granted review of the following issue:

WHETHER THE MILITARY JUDGE ERRED BY REFUSING TO ALLOW THE TESTIMONY OF MR. HUEY CALVIN LEE IN THE DEFENSE CASE AS EVIDENCE OF GOOD MILITARY CHARACTER.

We hold that no prejudicial error occurred as a result of the military judge’s refusal to admit this witness’ testimony.

The court below found the following facts concerning the judge’s ruling:

At trial the defense tendered the testimony of Huey Calvin Lee, who, as the Deputy Director of the Alcohol and Rehabilitation Center, Wilford Hall USAF Medical Center, interviewed the appellant on 7 January 1987. Mr. Lee has a Master’s Degree in social work and extensive experience with drug and alcohol abuse re[388]*388habilitation. As the result of an intensive three hour one-on-one interview with the appellant, he came to the conclusion that she was telling the truth when she denied using cocaine. For that reason he recommended that she not be placed in the drug abuse rehabilitation program.
Mr. Lee stated that he did a “mental status examination,” but did not specifically identify the methodology he used. He indicated the appellant was “slightly subdued, alert and cooperative, [and] she maintained good eyesight with appropriate responses.” It was his opinion that “eye contact and [an individual’s] entire mannerisms oftentime will give you good indications whether the person is very truthful with you.” He detected no “defensive mechanisms” that would indicate untruthfulness or any traits that suggested drug abuse. He defended his diagnosis that the appellant was not a drug abuser by stating:
A. It’s in my professional judgment, if you have a person on a one-on-one for three hours during an intense non-disturbed type confrontation, give and take, you have a pretty good indication [if that individual uses drugs]. Maybe you could not justify [that] person as a drug user, but you would get a pretty good indicator as to whether there is something going on with [that] person.
The testimony of Mr. Lee was offered as that of an expert witness who could assist the triers of fact in determining whether the appellant had used cocaine. Mil.R.Evid. 702. The military judge excluded the testimony holding that Lee’s evaluation of the appellant was essentially an assessment of her credibility and not helpful to the factfinders.

Id. at 857 (emphasis added).

The military judge earlier said, inter alia:

Based upon all available data, Mr. Lee recommended no entry into the drug rehabilitation program. Mr. Lee stated he did not recommend entry into the program because he did not believe she was a drug abuser. Although Mr. Lee is much more experienced than a lay individual in interview techniques and making astute observations during the course of the interview, his testimony to be admissible must assist the factfinder in resolving an issue and concern matters requiring specialized knowledge. Mr. Lee’s evaluation of the accused was essentially an evaluation of her credibility. Expert testimony on the issue of a person’s credibility is not helpful to the fact-finder. The prosecution’s objection to the testimony of Mr. Lee is sustained. Mr. Lee will not be permitted to testify as an expert witness.

Appellant now concedes that Mr. Lee’s testimony was not admissible to buttress her credibility. Yet she argues other portions of his testimony were admissible as evidence of good military character under Mil.R.Evid. 405(a), Manual for Courts-Martial, United States, 1984. She asserts that the judge erred in not admitting his testimony for this purpose.

The first question of importance is whether Mr. Lee’s recognized expertise in drug-abuse counseling qualified him to express an opinion on appellant’s status as a drug abuser. Mr. Lee testified that as part of his duties he was required to make recommendations for service members concerning placement in a drug rehabilitation program, separation, and other administrative or disciplinary action. He further testified that a recommendation of one of the above reflected his conclusion that the person was a drug abuser of some type, while a “no diagnosis” conclusion reflected his opinion that the person was not a drug abuser. He gave appellant a “no diagnosis” recommendation in January 1987. The military judge rejected this evidence as offered by the defense to show appellant did not use drugs as charged in October 1986.

We note that no scientific evidence, in the form of learned treatises or otherwise {see generally Mil.R.Evid. 803(18)), was [389]*389presented to the judge to justify the defense assertion as to the broad scope of a drug counselor’s expertise. Cf. United States v. Ray, 26 MJ 468, 472 (CMA 1988), cert. denied, — U.S.-, 109 S.Ct. 797, 102 L.Ed.2d 788 (1989). Moreover, Mr. Lee himself undermined his own claim that his expertise included such knowledge or skill as a human drug-abuse detector. Cf. United States v. Harper, 22 MJ 157, 161 (CMA 1986). See Mil.R.Evid. 702. He said:

Q. Now can you tell just by looking at a person first glance whether they use cocaine or not?
A. No.
Q. To your knowledge, is there any scientific basis in looking at a person, let’s say, a politician or a business man and saying, I suspect that person to be a cocaine user? Just from an initial look at them.
A. It’s in my professional judgment, if you have a person on a one on one for three hours during an intense nondisturbed-type confrontation, give and take, you have a pretty good indicator. Maybe you could not justify this person as a drug user but you would get a pretty good indicator as to whether there is something going on with this person.
Q. Okay, I understand that you had this three hour interview. The question I first asked is, just by looking at someone, can you automatically tell? I mean, is there one sign that says if that’s present, this person is a cocaine user?
A. No, not just by looking at you, no.
Q. Okay. If you find a military member who has deteriorating duty performance, financial problems, has a poor 35-10, does that automatically mean that person is a cocaine user?
A. No. It gives me some indications there are some things going on in his or her personal life that require a warrant for further exploration.
Q.

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Cite This Page — Counsel Stack

Bluebook (online)
28 M.J. 387, 1989 CMA LEXIS 3481, 1989 WL 90591, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-farrar-cma-1989.