United States v. Matthews

50 M.J. 584, 1999 CCA LEXIS 73, 1999 WL 218734
CourtUnited States Air Force Court of Criminal Appeals
DecidedMarch 12, 1999
DocketACM S29326
StatusPublished
Cited by2 cases

This text of 50 M.J. 584 (United States v. Matthews) is published on Counsel Stack Legal Research, covering United States Air Force Court of Criminal 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. Matthews, 50 M.J. 584, 1999 CCA LEXIS 73, 1999 WL 218734 (afcca 1999).

Opinion

OPINION OF THE COURT

ROTHENBURG, Chief Judge:

Despite her plea of not guilty, a special court-martial composed of officer members found appellant guilty of one specification of wrongfully using marijuana in violation of the Uniform Code of Military Justice (UCMJ) Article 112a, 10 U.S.C. § 912a. She was sentenced to a bad-conduct discharge and a reduction to E-l. Appellant’s sole assignment of error is that the military judge erred when he determined that the defense opened the door to admission of the results of a commander-directed urinalysis. Finding no error, we affirm.

BACKGROUND

After receiving notification that one of the people in his office had been randomly selected to provide a urine sample, Air Force Office of Special Investigations (AFOSI) Special Agent L presented the notification document to appellant on the afternoon of Wednesday, 24 April 1996. Special Agent L advised appellant that she would be required to provide a urine sample the following morning. An hour later, a pale appellant told Special Agent L that she was ill, and she went home early. Appellant had called in sick on Monday and Tuesday of that week, and again called in sick on Thursday, the day she was originally scheduled to provide a urine sample. Appellant did not provide the urine sample until the following Monday, 29 April 1996.

The urine sample appellant provided tested positive for marijuana at a concentration level of 57 nanograms per milliliter (ng/mL). Appellant was then ordered to provide a commander-directed urine sample. That sample, collected 23 days after the original urine sample, tested positive for marijuana at a concentration of 45 ng/mL. During the pretrial hearing, the prosecution represented that it did not intend to introduce the commander-directed positive urinalysis in its case-in-chief unless the defense case opened the door to its admission.

At trial, the primary evidence against appellant was the first positive urinalysis. The defense’s case began with the introduction of seven affidavits from appellant’s commander, former commander and AFOSI agents who were members of the various AFOSI offices where she had worked over the course of her career. Each of the affidavits extolled either appellant’s professionalism or her outstanding duty performance; some recited specific instances in support of those opinions.

The first defense witness, Special Agent F testified that he had attended a luncheon that appellant attended nine days before the Monday her original urine sample was taken. He recounted how he felt sick after the luncheon and that, on the following Monday, he was placed on quarters for 24 hours after his doctor was unable to diagnose the malady. The agent testified that he did not feel completely well until that Wednesday, when he attended a luncheon at a local pizza restaurant also attended by appellant. The agent did not get sick from the pizza luncheon, nor did anyone else to his knowledge.

Appellant was the next defense witness. She began her testimony with a brief resume of her military career, highlighting her duties as Non-Commissioned Officer In Charge (NCOIC) of information management for the local AFOSI detachment and relating that she had been with AFOSI for ten years at different locations. She then testified about the events that occurred during the taking of her urine sample. When asked by her trial defense counsel if she was “overall at the time comfortable with the (collection) process,” she replied, “yes.” At this point, her testimony on direct examination proceeded as follows:

Q. And you’ve seen the documents from the laboratory and you are aware, I know, [586]*586the government has charged you with wrongful use of marihuana between on or about 1 April 1996 and 29 April 1996, you are aware of that?
A. Yes, sir.
Q. Did you do that?
A. No, sir.
Q. Well, let me ask you a question then; do you have any idea how the results came back positive on you?
A. No sir. I do not.
Q. Is there anything at all?
A. No, sir.
Q. What — has this pending court-martial affected you in any way?
A. Yes, sir. They took away my security clearance and my job.
Q. How do you feel about the fact that this test has identified you as having used marijuana during the time frame; how does that make you feel?
A. Mad.
Q. Has it affected the way you relate with people in your unit?
A. Yes, sir.
Q. Has it affected the way you relate with your family?
A. Yes, more stressed.

This concluded appellant’s direct examination, and trial counsel immediately requested an Article 39(a), UCMJ, 10 U.S.C. § 839(a), session at which he argued that appellant’s testimony opened the door to admission of the commander-directed urinalysis under Mil.R.Evid. 404(b) as proper rebuttal evidence to show appellant’s knowledge of and opportunity to use marijuana. Trial defense counsel responded that all his questions of appellant on direct examination were limited to the charged time frame, and she did not go beyond denying the offense.

The military judge recalled the government expert, Dr. P, during the session to aid in his ruling, specifically, whether the results of the subsequent urinalysis possibly reflected marijuana which remained in appellant’s system from the prior use, which would have rendered trial counsel’s request moot. Dr. P testified that, given the length of time between collection of the urine samples and the THC level in the second urine sample, the THC level in the second sample could not be attributed to the first ingestion represented by the prior sample. In other words, the test results of each sample represented a distinct and separate use of marijuana.

The military judge ruled that:

I am satisfied, counsel, that, based upon Sergeant Matthews’ testimony, that she, in essence, did not on any occasion between 1 April and 29 April, use marijuana; and in light of Doctor P’s testimony with respect to the specimen provided on 22 May, that that directly impeaches her testimony that she did not use any type of marijuana between 1 and 29 April. Further, I think there is a basis under [Mil.R.Evid.] 404(b) for the admissibility of such evidence as it relates to knowledge.

The military judge specifically ruled that he was not admitting the evidence as strict impeachment evidence under Mil.R. 608(b), but as rebuttal under Mil.R.Evid. 404(b).

DISCUSSION

We review the military judge’s decision, that an accused’s direct testimony opened the door to cross-examination using the results of a command-directed urinalysis, for abuse of discretion. United States v. Graham, 46 M.J. 583 (A.F.Ct.Crim.App. 1997), rev’d on other grounds, 50 M.J. 56 (1999).

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Related

United States v. Matthews
53 M.J. 465 (Court of Appeals for the Armed Forces, 2000)

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Bluebook (online)
50 M.J. 584, 1999 CCA LEXIS 73, 1999 WL 218734, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-matthews-afcca-1999.