United States v. Lusk

71 M.J. 466, 2012 CAAF LEXIS 1292

• Court: Court of Appeals for the Armed Forces
• Decided: November 28, 2012
• Docket: No. 11-0166/AF
• Status: Published

Opinion

CCA S31624. Review granted on the following issues:

I.WHETHER THE AFCCA ERRED WHEN IT HELD THAT THE ADMISSION OF THE AFDTL COVER MEMORANDUM WAS HARMLESS AND THE ADMISSION OF THE DD FORM 2624 WAS NOT PLAIN ERROR.

II. WHETHER THE PLAIN ERROR ANALYSIS OF THE CHAIN OF CUSTODY DOCUMENTS IN UNITED STATES v. SWEENEY, 70 M.J. 296 (C.A.A.F. 2011) IS INAPPLICABLE IN THE PRESENT CASE BECAUSE THE JUDGE DIRECTLY INSTRUCTED THE MEMBERS THAT THEY MUST FIND THE SAMPLE TESTED CAME FROM APPELLANT BEFORE THEY COULD CONVICT HIM AND THE ONLY EVIDENCE PROVING THAT FACT WAS THE CERTIFICATIONS OF ANALYSTS WHO DID NOT TESTIFY AT TRIAL BUT KNEW THEY WERE ASSISTING THE GOVERNMENT WITH THE COLLECTION OF EVIDENCE.

III. WHETHER THE AFCCA ERRED WHEN IT HELD THAT THE PROBATIVE VALUE OF THE AFIP TEST SUBSTANTIALLY OUTWEIGHED ITS PREJUDICIAL EFFECT AND THAT ITS ADMISSION WITHOUT LIMITATION WAS HARMLESS ERROR.

No briefs will be filed under Rule 25.