United States v. Pjecha

7 M.J. 455, 5 Fed. R. Serv. 773, 1979 CMA LEXIS 8922

• Court: United States Court of Military Appeals
• Decided: October 22, 1979
• Docket: No. 37,118; ACM S24639
• Status: Published

Opinions

FLETCHER, Chief Judge:

This case examines the propriety of a Becton-Dickinson drug analysis demonstration before court members. The Government, in presenting its case against the appellant,¹ called Special Agent Kennedy. He testified that, following a controlled purchase by an informant from the accused, he (Kennedy) used a Becton-Dickinson test and positively identified the substance received as marihuana. Due to a gap in the chain of custody,² the Government was unable to introduce the actual substances so examined; prosecution exhibits 1, 2, 3 and 4 in the record were either rejected or withdrawn on motion of defense counsel.

Nonetheless, in an apparent attempt to bolster Agent Kennedy’s testimony, the Government had him produce in court a substance³ which he first identified as marihuana, and then to which he applied the Becton-Dickinson test while explaining both procedures and results. During this time there was persistent objection to use of the demonstration and that there was no proof the material tested was, in fact, marihuana. These objections were overruled by the military judge who allowed the demonstration for purposes of showing how the test works.

Before us now the appellant challenges the legality of this ruling, urging that prejudice accruing to him was so great that it far exceeded any evidentiary value the performance of the test might have had. United States v. Sanchez, 50 C.M.R. 450 (A.F.C.M.R.1975). We agree.

Turning to para. 138c, Manual for Courts-Martial, United States, 1969 (Revised edition), we see that real evidence “may be received or exhibited in evidence if . relevant to an issue in the case.” Para. 137, Manual, supra, furthermore, directs the exclusion of evidence which is “merely cumulative.” This paragraph also directs that: “So far as not otherwise prescribed in this manual, the rules of evidence generally recognized in the trial of criminal cases in the United States district courts or, when not inconsistent with those rules, at common law will be applied by courts-martial.”

We believe that Fed.R.Evid. 402 and 403 are both consistent with the previously cited manual provisions and helpful in our resolution of this issue.

It is evident that the standard of admissibility for relevant evidence is written with a broad brush under Fed.R.Evid. 402, which provides:

All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.

Some evidence, otherwise relevant, however, may be excluded under Fed.R.Evid. 403 if “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”

The Government urges that the trial judge’s ruling was within his sound discretion and is supported by law, citing 29 Am.Jur.2d Evidence §§ 818-33. We however, believe this in-court demonstration provided a considerable opportunity to prejudicially infect these proceedings, notwithstanding the judge’s cautionary instructions. While such a test may be sufficient to establish probable cause to arrest, it had no relation to the establishment of appellant’s guilt beyond a reasonable doubt. There was an entire absence of showing ⁴ the character of the material tested; notwithstanding this, the military judge’s expressed concern at its presence unattended in the courtroom. In sum, the evidence was of great inflammatory potential and of little relevance to the issue of guilt, and its attendant dangers of unfair prejudice, confusion of the issues, and misleading the jury outweighed its probative value.

The decision of the United States Air Force Court of Military Review is reversed. The findings of guilty and the sentence are set aside. The record is returned to the Judge Advocate General of the Air Force. A rehearing may be ordered.

Judge PERRY * concurs.

1 . Appellant, in a special court-martial, was convicted, contrary to his pleas, of two specifications of wrongful sale of marihuana, in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934. His sentence, approved by the convening authority and affirmed by the Air Force Court of Military Review, included a bad-conduct discharge, 2 months’ confinement, forfeiture of $400 pay per month for 2 months and reduction to the grade of E-l.

2 . United States v. Nault, 4 M.J. 318 (C.M.A.1978).

3 . This substance was in no way connected with the appellant.

4 . No such evidence was presented to the court members.