United States v. Robinson

39 M.J. 88, 1994 CMA LEXIS 2, 1994 WL 64248

Opinions

Opinion of the Court

CRAWFORD, Judge:

Contrary to his pleas, appellant was found guilty by general court-martial with members of using cocaine, in violation of Article 112a, Uniform Code of Military Justice, 10 USC § 912a. The convening authority approved the sentence of a bad-conduct discharge, confinement for 6 months, and reduction to airman basic. The Court of Military Review affirmed the findings and sentence in an unpublished opinion dated July 31, 1992. We granted review of the following issue:

WHETHER THE ENTITLEMENT OF AN ACCUSED TO SUCH EXPERT ASSISTANCE AS MAY BE NECESSARY TO AN ADEQUATE DEFENSE INCLUDES, IN A CASE WHERE THE SCIENTIFICALLY DETECTED PRESENCE OF A METABOLITE OF COCAINE IN A SPECIMEN OF URINE CONSTITUTES THE SOLE PROOF OF GUILT, A REASONABLY ECONOMICAL SCIENTIFIC TEST OF THE HYPOTHESIS THAT THE ACCUSED WAS NOT THE SOURCE OF THE TESTED SPECIMEN, ESPECIALLY WHERE IT IS CONCEDED THAT THE ACCUSED IS ENTITLED TO A SIMILARLY ECONOMICAL SCIENTIFIC TEST OF THE HYPOTHESIS THAT THE METABOLITE WAS NOT TRULY PRESENT IN THE TESTED SPECIMEN.

We hold that the military judge did not abuse his discretion in denying the requested test.

Appellant was randomly selected for a urine test, and his urine tested positive for cocaine. Both before the convening authority and the military judge, defense counsel requested a secretor test, while stipulating “there were no apparent” discrepancies “in the collection, handling, or testing” of appellant’s “urine sample.” A secretor test can detect a mismatch in a secretor status or blood type in urine. Such evidence might establish that the urine sample tested did not come from appellant.

The Equal Protection Clause,

* see, e.g., Britt v. North Carolina, 404 U.S. 226, 227, 92 S.Ct. 431, 433, 30 L.Ed.2d 400 (1971); the Due Process Clause, see, e.g., Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), and Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985); the Code (Art. 46, UCMJ, 10 USC § 846); and the Manual (RCM 703(d), Manual for Courts-Martial, United States, 1984) provide that servicemembers are entitled to expert assistance when necessary for an adequate defense. This right extends from the investigative stage through the appellate process. Compare Halfacre v. Chambers, 5 MJ 1099 (CMA July 13, 1976), with United States v. Tharpe, 38 MJ 8, 14 (CMA 1993), and id. at 27-29 (Wiss, J., dissenting).

As this Court stated in United States v. Garries, 22 MJ 288, 291 (CMA), “[w]hen an accused applies for the employment of an expert, he must demonstrate the necessity for the services[,]” cert. denied, 479 U.S. 985, 107 S.Ct. 575, 93 L.Ed.2d 578 (1986). Likewise the Court of Appeals for the Eleventh Circuit in Moore v. Kemp, 809 F.2d 702, 712, cert. denied, 481 U.S. 1054, 107 S.Ct. 2192, 95 L.Ed.2d 847 (1987), noted in denying a request for a defense expert to review state crime laboratory tests and other evidence

that a defendant must demonstrate something more than a mere possibility of assistance from a requested expert; ... [A] fair reading of these precedents [.Ake and Caldwell] is that a defendant must show the trial court that there exists a reasonable probability both that an expert would be of assistance to the defense and that denial of expert assistance would result in a fundamentally unfair trial.

(Footnotes omitted.)

As in Garries the defense has not demonstrated the necessity for the secretor test, so the granted issue must be resolved adversely to appellant.

The decision of the United States Air Force Court of Military Review is affirmed.

Judges GIERKE and WISS concur.

This applies to the United States through the Due Process Clause of the Fifth Amendment, see Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954).