United States v. Hill

39 M.J. 712, 1993 CMR LEXIS 663, 1993 WL 574363

• Court: U.S. Navy-Marine Corps Court of Military Review
• Decided: November 30, 1993
• Docket: NMCM 92 1722
• Status: Published

Opinions

MOLLISON, Senior Judge:

The principal issue in this appeal from a special court-martial conviction for wrongful use of marijuana is whether the Government proved that the positive urinalysis results upon which the conviction was based applied to a urine specimen submitted by the appellant. We conclude that the Government failed in its proof and reverse.

The appellant was tried by special court-martial. Contrary to his pleas, officer members found the appellant guilty of wrongful use of marijuana in violation of Article 112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 912a. The members sentenced appellant to confinement for three months, forfeiture of $500.00 pay per month for three months and a bad-conduct discharge. The convening authority approved the sentence without modification. The appellant’s eourt- . martial is now before this Court for review in accordance with Article 66, UCMJ, 10 U.S.C. § 866.

The appellant filed four assignments of errors in connection with his court-martial proceedings. Those assignments of error have previously been resolved adversely to the appellant. United States v. Weiss, 36 M.J. 224 (C.M.A.1992), cert. granted, — U.S.-, 113 S.Ct. 2412, 124 L.Ed.2d 635 (1993); United States v. Graf, 35 M.J. 450 (C.M.A.1992); United States v. Mitchell, 37 M.J. 903 (N.M.C.M.R.1993). They will not be discussed further. However, we will discuss the following issues the Court specified for briefing by the parties:

I. WHETHER EVIDENCE ADMITTED ON THE MERITS SHOWS THAT THE URINE SPECIMEN THAT TESTED POSITIVE FOR THE PRESENCE OF A MARIJUANA METABOLITE BELONGED TO THE APPELLANT? [Citations omitted.]

II. WHEN DETERMINING WHETHER THE APPELLANT’S GUILT HAS BEEN PROVEN BEYOND A REASONABLE DOUBT, MAY THIS COURT CONSIDER THE FIRST PAGE OF THE CHARGE SHEET OR EVIDENCE ADMITTED ONLY DURING THE PRESENTENCING PROCEDURE? [Citations omitted.]

The Material Facts.

The Government attempted to prove the appellant’s guilt by positive urinalysis results. The Government’s case-in-chief was brief. It included two stipulations of fact, a urine specimen bottle, a urine sample custody document, laboratory reports, and the testimony of a laboratory official. The first stipulation of fact showed that a random urinalysis had been ordered and appellant was one of 23 persons who was ordered to provide a urine specimen for this purpose. Prosecution Exhibit 7. The second stipulation of fact stated that the appellant was properly observed when he provided his urine specimen; that the unit urinalysis coordinator collected the appellant’s specimen; that the appellant verified to the unit coordinator that the specimen he was submitting was his own; that the unit coordinator “successfully ensured that the procedures set forth in OPNAVINST 5350.4B, dated 13 September 1990, for the proper collection and transportation of urine specimens were followed;” that after receiving the urine specimen from the appellant, the unit coordinator properly logged all applicable identification entries and properly packaged and mailed the specimen; and, that the package arrived without damage or other discrepancy at the naval drug laboratory where it was processed according to standard procedures. Prosecution Exhibit 8. The Government also introduced, without defense objection, a urine specimen bottle. Prosecution Exhibit 9. A photograph of the bottle has been substituted in the record of trial. The bottle in the photograph appears to have markings on it, however, they are virtually illegible, save for the number “0034.” The Government’s documentary evidence, also introduced without defense objection, consists of the urine sample custody document reflecting a laboratory finding of “cannabinoids” for batch number 0034, specimen number 10, social security number 382 88 2459, and laboratory accession number 341290. Prosecution Exhibit 1. Other documentation also reports a positive laboratory urinalysis finding for these numbers. Prosecution Exhibits 2 and 3. Finally, the Government elicited testimony from the executive officer of the laboratory that conducted the urinalysis. In addition to describing laboratory procedures, the executive officer testified that when specimen bottles come to the laboratory, the bottles have on them a sample number, a social security number, the initials of the donor of the specimen, and the initials of the person who observed the donor. Record at 56. The Government did not introduce the aforementioned OPNAV instruction. It also did not introduce a unit coordinator’s ledger which might correlate the batch, sample and social security numbers with the donor’s name, and it did not introduce any other evidence linking the urinalysis results to the appellant. However, the charge sheet, which was not before the members, and documentary evidence introduced after the findings during the pre-sentencing procedure clearly show that the relevant social security number belonged to the appellant. In its case-in-ehief, the defense called one witness and read the stipulation of expected testimony of another. Neither witness provided testimony material to appellant’s guilt or innocence. The appellant did not testily.

The Law.

A Court of Military Review may only affirm such findings of guilty as it finds correct in law and fact and determines, on the basis of the entire record, should be approved. UCMJ art. 66(c), 10 U.S.C. § 866(c). Accordingly, this Court has the duty to determine the legal and factual sufficiency of the evidence. United States v. Turner, 25 M.J. 324 (C.M.A.1987). The test for legal sufficiency is whether, considering the evidence in a light most favorable to the prosecution, a reasonable factfinder could have found all the essential elements beyond a reasonable doubt. Id. The test for factual sufficiency is whether, after weighing the evidence in the record of trial and making allowances for not having personally observed the witnesses, the members of this Court are themselves convinced of the appellant’s guilt beyond a reasonable doubt. Id.

A Court of Military Review must base its decision as to legal and factual sufficiency on the basis of the “entire record.” UCMJ art. 66(c), 10 U.S.C. § 866(c); United States v. Mosley, 35 M.J. 693, 699 (N.M.C.M.R.1992) (citing cases). The “entire record” for these purposes means the evidence presented at trial. Mosley, 35 M.J. at 699. “A fact essential to a finding of guilty must appear in the evidence presented on the issue of guilt; it cannot be extracted from evidence presented in other proceedings in the case, although both proceedings are fully recorded and are part of the entire record of the case.” United States v. Boland, 1 M.J. 241, 242 (C.M.A.1975) (per curiam). A transcript that provides no clue to a material fact, except that which might be inferred from a witness’ appearance on the stand or the appearance of a piece of real evidence before the trial court but not described or depicted in the record of trial, furnishes no basis upon which a Court of Military Review can make an informed judgment. See Id. Moreover, evidentiary gaps may not be filled by the Government post-trial by resort to the expedient of judicial notice, particularly judicial notice of the contents of regulations not before the members. Mosley, 35 M.J. at 699; United States v. McDowell, 34 M.J. 719 (N.M.C.M.R.1992); United States v. Wootton, 25 M.J. 917 (N.M.C.M.R.1988); Mil.R.Evid. 201(c).

The burden is on the prosecution to prove beyond a reasonable doubt that an accused servicemember wrongfully used a controlled substance in violation of Article 112a. United States v. Hunt, 33 M.J. 345 (C.M.A.1991). The accused’s right to attack one aspect of the prosecution’s case does not relieve the prosecution of its burden to produce sufficient evidence in the first instance. Id.

Application.

The evidence on the merits in the record now before us is both legally and factually insufficient. Nowhere does it link the sample for which positive urinalysis results were obtained to the appellant.

The Government suggests Boland stands for the proposition that we must limit our consideration to evidence presented on the merits only when determining a fact essential to a finding of guilty. However, the Government’s case that the appellant wrongfully used marijuana was based solely on circumstantial evidence that a urine specimen was found to contain a marijuana metabolite. Thus, it was essential that the Government show the urine found to contain the marijuana metabolite belonged to the appellant.

The Government also seeks to establish the nexus between the appellant and the specimen by reference to the stipulations of fact and OPNAV Instruction 5350.4B. It observes the parties stipulated that the procedures of that instruction were followed. The instruction was not offered in evidence and judicial notice was not taken of its contents at trial. The Government now, in effect, requests we take judicial notice that this instruction requires the date of collection, the batch number, the specimen number, the donor’s social security number, and the donor’s initials to be recorded on the bottle, and further that the urinalysis ledger must include the foregoing information and the donor’s signature, vice initials. Government’s Brief at 3^4. We recall a unit coordinator’s ledger was not introduced in evidence. In any case, the Government argues that because the unit coordinator conducted the collection process in accordance with this instruction and this instruction calls for the initialling of the bottle label by the donor, there can be no dispute the donor wrote his initials on the bottle. From the foregoing the Government argues a reasonable inference follows that the specimen tested was properly linked to the appellant.

As noted above, we may not take judicial notice of regulations post-trial in order to fill in evidentiary gaps in the Government s case. The most this record shows on the subject of donors’ initials is the testimony of the laboratory executive officer wherein he testified that donor’s initials do appear on the bottles when they arrive at the laboratory. There is no evidence before us that the specimen bottle in this case contained initials, but if we presume it did, we do not know what they were or whether they were legible. Nor do we know who else within the same batch may have had the same initials.

We recognize it is quite possible the appellant’s initials might have been on the specimen bottle admitted in evidence and the court-members might have noted them. However, if something as tenuous as initials are the critical fact upon which the appellant’s conviction hangs, this fact must be set forth in some fashion in the record to convince this Court of it beyond a reasonable doubt. To trust the matter solely to the trial court alone contravenes our own responsibilities and the mandates of Boland. Recalling we may not uphold a conviction on the basis of suspicion, conjecture, speculation, or surmise, Mosley, 35 M.J. at 699, we cannot affirm appellant’s conviction on the Government’s surmise the appellant’s initials must have been on the urine specimen bottle or that evidence somewhere else must have linked the specimen to the appellant.

Nor do we find the absence of an objection to individual items of evidence relieved the Government from proving a fact essential to its case — that the urine specimen tested belonged to the appellant. The most that can be said of the lack of an objection is that the defense did not contest the fact that the Government’s evidence was authentic and relevant, that is, that the urine specimen bottle and the reports were what they purported to be, a urine specimen bottle and laboratory reports pertaining thereto, and that they tended to make more probable the existence of a fact of consequence to a determination of the action, namely that a urine specimen contained the metabolite of a contraband substance. Mil.R.Evid. 401, 901. In other words, the evidence was properly admissible to prove the corpus delicti of a crime. However, the identity of the appellant as the perpetrator is also an element that the Government was obliged to prove beyond a reasonable doubt. The lack of objection did not relieve the Government of proving that element. See United States v. Ortiz, 12 M.J. 136 (C.M.A.1981) (failure to object to chain of custody document permitted its consideration but the prosecution nonetheless failed to link the items possessed by the accused to the positive laboratory report). Cf. United States v. Harper, 22 M.J. 157, 160 & n. 2 (C.M.A.1986) (laboratory results of urinalysis linked to appellant, coupled with expert testimony, were sufficient to sustain conviction of wrongful use of marijuana).

Granted, establishing the connection between the appellant and the positive urine specimen would appear to have been simple task. But we must be faithful to Boland and Article 66, and the simplicity of the task does not obviate the Government’s obligation to carry it out.

The findings of guilty and the sentence are set aside. The charge is dismissed.