United States v. Graham

50 M.J. 56, 52 Fed. R. Serv. 279, 1999 CAAF LEXIS 2, 1999 WL 129162

• Court: Court of Appeals for the Armed Forces
• Decided: March 9, 1999
• Docket: 97-0617/A
• Status: Published

Opinions

Chief Judge COX

delivered the opinion of the Court.

I

Contrary to his pleas, appellant was convicted at a general court-martial, by members, of one specification of wrongful use of marijuana, in violation of Article 112a, Uniform Code of Military Justice, 10 USC § 912a. This charge was the result of a urinalysis test taken at Seymour Johnson AFB, North Carolina, in 1995. He was sentenced to a bad-conduct discharge, confinement for 6 months, and reduction to E-4. The Court of Criminal Appeals affirmed these results. 46 MJ 583 (1997).

On appeal, appellant challenges the admission of evidence that he tested positive for marijuana several years prior to the present case. 48 MJ 337 (1997). We agree that the military judge abused his discretion in admitting the evidence, and we reverse.

At appellant’s trial on this charge, the prosecution was permitted to cross-examine him about a positive urinalysis for marijuana that occurred almost h years prior to trial, in England, in 1991. The military judge allowed the questioning to rebut appellant’s testimony that “there is no way I would knowingly use marijuana” and that, after he was notified about the 1995 urinalysis, he was “shocked, upset, and flabbergasted.”

As a result of the 1991 urinalysis, appellant was tried by a court-martial. There he presented an innocent-ingestion defense, and he was acquitted.¹

The question whether the Government would be allowed to cross-examine appellant about his prior acquittal was litigated in camera. See Art. 39(a), UCMJ, 10 USC § 839(a). The military judge ruled that he would allow one question on cross-examination of appellant regarding whether he had previously had a positive urinalysis result. The judge ruled that this question was direct rebuttal to appellant’s testimony in the instant trial. In his ruling, the judge specifically prohibited the prosecution from inquiring about whether appellant had been prosecuted for the previous urinalysis and about the results of that trial. The military judge granted the Government’s motion in part, ruling:

The fact that he [appellant] was previously court-martialed balancing under 403, [sic ] I’m not going to let in that he was ... allow the Government to ask whether he was previously court-martialed. The fact that the accused has testified, “there is no way I would knowingly use marijuana” and after he was notified about the positive test, he was “shocked, upset, and flabbergasted,” the ... this testimony in and of itself, if I am not to allow the Government to ask questions in that area, would it mislead the jurors? I believe that the prosecution can ask the following question: “Did you test previously positive for marijuana, for THC?” And I will instruct the jurors that just because the accused tested positive previously on one occasion, that’s no indication that he knowingly used on that occasion or on this occasion, and that the jurors may consider [this information] for the limited purpose as to what the likelihood would be that the accused would test positive twice for unknowing ingesting of marijuana and for the likelihood that the accused was flabbergasted when he was informed that he tested positive at this time, and for no other purpose. But I’m not going to let you go into any other facts and circumstances.

Regarding application of Mil.R.Evid. 403, Manual for Courts-Martial, United States (1995 ed.), the judge further ruled:

Well, I do have to determine whether it’s unfairly prejudicial to the accused. And to re-litigate the previous court-martial, I believe would be unfairly prejudicial to the accused.

The prosecution then asked appellant whether, on a previous occasion, his urine had tested positive for marijuana metabolites. Appellant responded affirmatively and spontaneously added that he had been acquitted of any misconduct. Immediately following this cross-examination, the military judge gave the following instruction to the members regarding the use of the evidence:

You’re instructed that just because the accused had a positive urinalysis test for THC metabolites of marijuana previously on one occasion, is [sic ] no indication that he knowingly used on that occasion or on this occasion. You may consider it for the limited purpose as to what the likelihood would be that the accused would test positive twice for unknowingly ingesting marijuana and for the likelihood that the accused was flabbergasted when he was informed that he had tested positive this time.

The military judge reiterated this instruction during his findings instructions. None of the court members had any questions about the meaning of this instruction.

We, however, do not agree that a prior positive urinalysis is logically relevant to an accused’s surprise at testing positive 4 years later. Lack of surprise might have proved something; surprise did not. Nor does a prior, ostensibly innocent, ingestion rebut a claim that a subsequent ingestion was also innocent.

II

As the relevance rule explains:

“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

Mil.R.Evid. 401; see Mil.R.Evid. 402. Relevant evidence may be excluded, however, if “its probative value is substantially outweighed by the danger of unfair prejudice.” Mil.R.Evid. 403. Admissibility of relevant evidence is also tempered by Mil.R.Evid. 404(b), which provides that “[e]vidence of other crimes ... is not admissible to prove the character of a person in order to show action in conformity therewith.”

In a trilogy of cases, United States v. Harper, 22 MJ 157 (1986); United States v. Murphy, 23 MJ 310 (1987); and United States v. Ford, 23 MJ 331 (1987), we established the rules by which factfinders in courts-martial may infer from the presence of a controlled substance in a urine sample that a servicemember knowingly and wrongfully used the substance. There are three steps to the process. First, the seizure of the urine sample must comport with law. See Mil.R.Evid. 311-316. Second, the laboratory results must be admissible, requiring proof of a chain of custody of the sample, ie., proof that proper procedures were utilized. And last, but importantly, there must be expert testimony or other evidence in the record providing a rational basis for inferring that the substance was knowingly used and that the use was wrongful.

Applying these principles to the facts of this case, we first look to the claimed logical relevance of the proffered evidence. The military judge ruled that the evidence was relevant to show “what the likelihood would be that the accused would test positive twice for unknowingly ingesting marijuana and for the likelihood that the accused was flabbergasted when he was informed that he had tested positive.” On the other hand, the judge ruled that the evidence was not relevant to prove “that he knowingly used on that occasion or on this occasion.”

We disagree with the military judge’s logic. First, there is no evidence of record that tends to prove or disprove what the “likelihood” is for a military member to test positive twice in a 4-year period because of innocent ingestion. We have no clue from this record, nor from our experience, what the statistical probability is for “innocent ingestion” to occur, nor can we say what the percentage might be for laboratory error, errors in the chain of custody, or other like errors. These questions are of such concern that we have repeatedly required more than a mere paper case to prove knowing and wrongful ingestion. See, e.g., United States v. Murphy, supra.

Second, although one might argue that, if a person had tested positive 4 years ago, he would not be “flabbergasted” at a second positive test, human experience would seem to dictate a contrary result. In fact, we agree with the point made by trial defense counsel during motions argument, that if appellant had innocently ingested the drug on the prior occasion and then had turned up positive on the present test, he would be even more outraged, flabbergasted, and angry than he was on the first occasion. Indeed, that is precisely how many an innocent person might react when being accused of a crime.

Last, none of the rules established by Harper, Murphy, and Ford, about the use of positive urinalysis results to prove knowing and wrongful use of marijuana, were followed as to the 4-year-old test result.

We reject outright the positions taken by our dissenting colleagues for several reasons. First, the dissenters conclude that the proffered evidence enjoys probative value to rebut an innocent-ingestion defense. The military judge, however, expressly instructed the members that the prior test result provided “no indication that he knowingly used [marijuana] on that occasion or on this occasion.” Because of this ruling, the dissenters are attempting to save this conviction by fitting this evidence into a theory not advanced at trial.

Moreover, it was the military judge who specifically prohibited the prosecution from introducing information concerning the “brownie” defense or any other details of the first trial. Under Mil.R.Evid. 401 and 402, for the fact of appellant’s assertion of the “brownie” defense at his first trial to be relevant to the members’ determination of a fact “of consequence” at the second trial, it would have been necessary for the military judge to admit the details of the entire first trial. However, the military judge properly rejected this evidence to prevent relitigation of the merits of the first trial — the proverbial trial within a trial — and to minimize the danger of confusion of the issues. See Mil.R.Evid. 403. There is no fact of consequence that a positive result on a previous urinalysis, if resurrected at this trial, could rebut.

The dissent also relies on the “fact” that appellant was using an innocent-ingestion defense at this trial. 50 MJ at 61 n.1. That is simply not the case. While the Air Force court recognized that the “thrust” of appellant’s defense included “unknowing ingestion,” certainly appellant’s defense was broader than just this possibility. In essence, his defense was a general denial of the charge. Here, appellant did not allege any specific instance when marijuana was placed in food or drink that he subsequently ingested.

Appellant’s defense was, thus, a “good soldier” defense, not one of “innocent ingestion.” The Air Force court recognized this distinction when it said:

At this trial, appellant initially gave notice pursuant to R.C.M. 701(b)(2)[, Manual, supra,] of an intent to present an innocent ingestion defense. Later, possibly recognizing the portent of such a strategy in view of its previous employment, appellant specifically eschewed that defense at trial, putting on instead a “good soldier” [sic] defense. We use the word “instead” advisedly, because the unmistakable thrust of appellant’s trial theory was that he would not and did not knowingly take marijuana.[²]

46 MJ at 584.

Next, the dissenters’ view that evidence of an unlawful substance in an accused’s urine on one occasion can be used to prove that he knowingly used it on a later occasion is contrary to Mil.R.Evid. 404(b), unless the evidence is logically relevant and meets some exception to that rule. Prior-use evidence is classic “bad character” evidence. Our rule, Mil.R.Evid. 404(b), as well as its federal civilian counterpart, Fed.R.Evid. 404(b), establish a general prohibition against using evidence of prior “bad” conduct to demonstrate that a person has acted “in conformity therewith,” subject to specific exceptions. The evidence here fits none of these recognized exceptions.

Furthermore, as a leading text has noted, before admitting evidence under one of the Mil.R.Evid. 404(b) exceptions, the “trial judge must be certain to make the prosecution state exactly what issue it is trying to prove in order to see whether the evidence is probative, how probative it is, and whether it should be admitted in light of the other evidence in the case, and the ever present danger of unfair prejudice.” S. Saltzburg, L. Schinasi, & D. Schlueter, Military Rules of Evidence Manual 531 (4th ed.1997). Here, the cursory explanation offered by trial counsel, and the confusing and contradictory instructions offered by the military judge, underscore the failure to develop a clear relationship between the prior test result and the issues at stake in the present case. Thus, even if the evidence had some marginally probative value to rebut the idea that appellant was “flabbergasted” by his positive result, the danger of unfair prejudice far outweighed the limited probative value.

Finally, as we have discussed herein, the Government laid no foundation for admissibility of the evidence. There was no chain-of-custody evidence; no proof that the prior test had been performed in accordance with acceptable scientific principles; and no expert to explain to the members how they might conclude that the test proved appellant knowingly used the drug 4 years earlier.

Our dissenting colleagues seem to forget, once again, that our service personnel, who are called upon to defend our Constitution with their very lives, are sometimes subject to searches and seizures of their bodies, without probable cause, for evidence of a crime. We should zealously guard the uses of these results and hold the Government to the highest standards of proof required by law.

Based upon all of the foregoing, any relevance associated with the prior test was far outweighed by the prejudice that flowed from its admission. Furthermore, admission of the evidence materially prejudiced appellant. Art. 59(a), UCMJ, 10 USC § 859(a).

The decision of the United States Air Force Court of Criminal Appeals is reversed. The findings and sentence are set aside. The record of trial is returned to the Judge Advocate General of the Air Force. A rehearing may be ordered.

1 . According to proffers made at the instant court-martial, appellant was stationed in England during the time frame of the previous urinalysis and court-martial. It was suggested that a British national may have laced a birthday cake with marijuana. The record of the prior court-martial was a summarized record; therefore, no further information about the previous court-martial was included in the record for this case.

2 . We apparently view the "brownie defense” more narrowly than does Judge Sullivan. Literally, it was derived from the explanation that "someone put marijuana in the brownies.” See United States v. Bond, 46 MJ 86 (1997) (appellant speculated that his cup of beer was laced with cocaine by drug users he was investigating).