United States v. Johnson

3 M.J. 772, 1977 CMR LEXIS 789

Opinions

OPINION OF THE COURT

COOK, Senior Judge:

Appellant pled not guilty to, but was found guilty of, larceny, wrongful possession of mandrax, possession of marijuana and sale of marijuana.

Two laboratory reports were the sole evidence admitted at trial that the items alleged to be mandrax and marijuana were in fact those contraband drugs. In the process of resisting the admission of those reports, the trial defense counsel requested of the trial judge that the laboratory analyst be summoned as a witness for examination on the accuracy of his work.¹ The trial judge denied the request on the basis that it wasn’t made in a timely fashion.

The United States Court of Military Appeals recently reaffirmed in United States v. Willis, 3 M.J. 94, 96 (C.M.A. 1977):

“[Ojnce materiality has been shown the Government must either produce the witness or abate the proceedings.”²

Because we can conceive of no more material witness to an accused in a drug case than the technician who scientifically established that the material in question was in fact a prohibited drug, we find that the judge erred prejudicially in denying appellant’s request.

Even assuming, without deciding, that the untimeliness of a request for a material witness can any longer be a valid basis on which to premise a denial,³ we find that such a peremptory decision was not appropriate in this case. Trial was held in Heidelberg, Germany, and the laboratory at which the requested technician worked is in Frankfurt, Germany. Travel between the two towns involves a trip of no more than two hours by car. Surely the Government can allow the accused and his counsel that much time to attempt to dispute the authenticity of a crucial element in the prosecution’s case.

However, this error only affects the findings involving the drug offenses and is not related in any way to the verdict as it pertains to the larceny. Because we find the larceny conviction to be free of error, we will sustain it and reassess the sentence.

The findings of guilty of Charge II and its specification and of the Additional Charge I and its specifications, are set aside and the charges are dismissed. The remaining findings of guilty are affirmed. Reassessing the sentence on the basis of the above-indicated error and the entire record, the Court affirms only so much of the sentence as provides for a bad-conduct discharge, confinement at hard labor for eight months, forfeiture of all pay and allowances, and reduction to the grade of Private E-l.

Judge DRIBBEN concurs.

1 . The dissenting judge appears to concur in the trial judge’s ruling on the same grounds the United States Court of Military Appeals did in United States v. Miller, 23 U.S.C.M.A. 247, 49 C.M.R. 380 (1974), viz, that the trial defense counsel’s objection went only to the admissibility of the lab report as a business entry and was not in fact a request that the lab technician be called for examination on his procedures and competence. I do not believe we have that factual predicate in this case. My reading of the colloquy at trial in this case (accurately reproduced in the dissent) satisfies me that, although the trial defense counsel attacked the report on several grounds, he made it clear that one reason he desired to examine the technician was to probé the accuracy of his methods. This is clearly a legitimate, recognized basis for requesting the personal attendance at trial of the preparer of a lab report. See United States v. Evans, 21 U.S.C.M.A. 579, 45 C.M.R. 353 (1972) and United States v. Miller, supra.

2 . United States v. Carpenter, 1 M.J. 384, 385 (1976).

3 . Such an approach to resolving the conflicting interests inherent in the trial defense counsel’s request would appear to be a resurrection of the recently eviscerated weighing-of-the-equities test. See United States v. Willis, supra, particularly Judge Cook’s dissent. But see United States v. Jouan, 3 M.J. 136, 137 (C.M.A. 1977). Also see United States v. Kelson, 3 M.J. 139 (C.M.A. 1977), Fletcher, Chief Judge, concurring in the result.