United States v. Holmes

39 M.J. 176, 1994 CMA LEXIS 14, 1994 WL 169954
CourtUnited States Court of Military Appeals
DecidedMay 6, 1994
DocketNo. 93-0234; CMR No. S28461
StatusPublished
Cited by8 cases

This text of 39 M.J. 176 (United States v. Holmes) 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. Holmes, 39 M.J. 176, 1994 CMA LEXIS 14, 1994 WL 169954 (cma 1994).

Opinion

Opinion of the Court

CRAWFORD, Judge:

Appellant was convicted by a special court-martial composed of officer members, contrary to his pleas, of wrongful use of marijuana, in violation of Article 112a, Uniform Code of Military Justice, 10 USC § 912a. The convening authority approved the sentence of [177]*177a bad-conduct discharge and reduction to the lowest enlisted grade. The court below affirmed the findings and sentence in an unpublished opinion dated October 30, 1992. We granted review on the following issue:

WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL PREJUDICE OF APPELLANT BY ADMITTING EVIDENCE OF PRIOR MARIJUANA USE UNDER MIL.R.EVID. 404(b).

We hold the evidence that appellant used marijuana on one occasion 18 years ago was inadmissible under Mil.R.Evid. 403 and reverse the decision below.

FACTS

The Government’s case-in-chief consisted of ehain-of-eustody and laboratory-testing documents related to appellant’s positive urinalysis results; the testimony of an expert witness to explain the documents; and the testimony of an Air Force Office of Special Investigations agent, Agent Pulliam, that appellant told Pulliam that appellant’s wife had been smoking marijuana in their bed for 3 months before the urinalysis test. The Government also introduced two stipulations of expected testimony from military law enforcement personnel which indicated that appellant was not an informant or confidential source “authorized ... to possess or use marijuana pursuant to legitimate law enforcement activities.” Finally, the Government introduced a stipulation of testimony from Colonel Ortaliz, the Chief of Hospital Services for the 93rd Strategic Hospital, Castle Air Force Base, California, indicating that appellant’s medical and pharmaceutical records show no medical authorization for or administration of marijuana.

The Government’s expert witness, Dr. Jain, testified that appellant’s urine sample contained “THC metabolite derived from the active ingredient in marijuana, Delta-9-tetrahydrocannibinol [ (THC) ][,] in a concentration of approximately 108 nanograms per milliliter.” Dr. Jain also testified that the THC metabolite “did not enter” appellant’s body “through passive inhalation”; that if the THC entered appellant’s body 48 hours before the test, “he must have felt the effect”; and that use probably occurred “within a week or even less from the point of collection.”

Appellant testified during the defense case-in-chief and denied “knowingly” using marijuana during the charged time period (a 1-month period before the urinalysis). On direct examination appellant explained that his wife told him “she had been secretly smoking” marijuana “in the bedroom” while he was sleeping and “covering the smoke with talcum powder, hairsprays and cigarette smoke.” Appellant also testified that he “ha[d], on occasion, stopped at a mobile food stand, but ... [he’d] never had any strange feelings that would make ... [him] think that ... [he] had picked up marijuana through some type of food.”

The Government sought to impeach appellant with evidence that he used marijuana on one occasion in high school. The Government initially sought, and the military judge denied, use of the evidence to impeach appellant’s testimony that he did not use marijuana during the charged time period, on the theory that appellant had put his truthfulness at issue by testifying. Because the information was obtained from a social actions record, the military judge ruled, based upon Air Force Regulation 111-1, that the evidence came from a source not “normally available” to the Government and could therefore only be used for impeachment purposes. The Government then sought to introduce the evidence to rebut appellant’s testimony that he did not knowingly use marijuana. The military judge denied this use under Mil.R.Evid. 403, Manual for Courts-Martial, United States, 1984.

Trial counsel proceeded to cross-examine appellant:

Q: Do you know how marijuana is used?
A: It’s smoked or ate.
Q: Did you know that before this trial?
A: Yes, sir.
Q: Have you ever seen it before?
A: Yes, sir.
Q: Where?
A: Back in school days.
[178]*178Q: Do you know the physiological effects of marijuana use:
A: Yes, sir.
Q: What are they?
A: It’s a high feeling. Euphoria, I think is the word, sir.
Q: Any other effects?
A: Redness of eyes. I think that’s it, sir. Q: How are you familiar with those effects?
A: I’ve seen articles. I’ve seen the stories about drug abuse, drug pamphlets of how to detect someone that’s on or has been using drugs.
Q: Are you familiar with the effects of marijuana through any other means?
A: I’m not sure if I understand your question, sir.
Q: Well, you testified that you’re familiar with the effects of marijuana. I asked— IDC: —I’m going to object to this question, Your Honor, related to the earlier session that we had.
MJ: Major Breslin, do we need to have another 39(a) Session?
TC: No, sir. I’m specifically going to ask this witness if he’s ever used it and how he knows. I have a lab report right here that tells me that he did, and that’s what I want to ask him. He’s under oath. He’s put his truthfulness in evidence. If [sic] wants to perjure himself on the witness stand, then he’s free to do that.
IDC: Your Honor, I’m going to object to this line before the members at this time as prejudicial.

This time, and still over objection, the military judge permitted the question:

Q: Tech Sergeant Holmes, I asked you if you were familiar with the physiological effects of marijuana and you said that you were, and you described those physiological effects, euphoria, red eyes, and what else did you say? What other physiological effects were you aware of?
A: I believe that was all I said at that time, sir.
Q: Were you aware of appetite stimulation, what people call munchies? Were you aware of that as a physiological effect?
A: That didn’t come to mind, but that is one, yes sir.
Q: I asked you how it was that you were aware of the physiological effects for the use of marijuana, and you replied that you had read articles about it, do you remember that?
A: Yes, sir.
Q: Then I started to ask you about whether there was any other way that you were familiar with the physiological effects of the use of marijuana. Before you answer, I want to remind you that you are under oath. Although this is a special court-martial, for this offense you’re looking at a max of like a BCD and six months. If you he under oath, you’re looking [at] a court-martial for perjury, with a maximum punishment of a DD and five years. Do you understand that?

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Bluebook (online)
39 M.J. 176, 1994 CMA LEXIS 14, 1994 WL 169954, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-holmes-cma-1994.