United States v. Robinson

24 M.J. 649, 1987 CMR LEXIS 190
CourtU.S. Navy-Marine Corps Court of Military Review
DecidedApril 2, 1987
DocketNMCM 86 1378
StatusPublished
Cited by12 cases

This text of 24 M.J. 649 (United States v. Robinson) is published on Counsel Stack Legal Research, covering U.S. Navy-Marine Corps Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Robinson, 24 M.J. 649, 1987 CMR LEXIS 190 (usnmcmilrev 1987).

Opinions

COUGHLIN, Senior Judge:

After mixed pleas, appellant was convicted at a special court-martial (with enlisted members) of three specifications of wrongful use of marijuana and three specifications of unauthorized absence in violation of Articles 112a and 86, respectively, of the Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 886, 912a. He was sentenced to confinement for two months, reduction to pay grade E-l, and a bad-conduct discharge. The convening authority approved the sentence as adjudged.

I.

The primary issue of concern in this case is whether the military judge erred in denying appellant’s request for the production of an expert witness.

On the first day of appellant’s trial at Naval Air Station Bermuda, defense counsel moved for the production of one Dr. Cooke, an expert witness from Norfolk, Virginia, who would testify that the level of THC metabolite present in appellant’s urine samples, forming the basis for two of the three marijuana use specifications, could have been registered by the passive inhalation of marijuana smoke. The military judge denied the motion on two grounds; first the request was untimely and no good cause was shown for the delay, and second, the information sought to be obtained from Dr. Cooke could be elicited from an expert witness, LCDR Sheeran from the Naval Drug Lab in Jacksonville, who was scheduled to testify for the Government. Appellant contends before this Court that the military judge’s refusal to produce Dr. Cooke constitutes reversible error. We agree.

With respect to the military judge’s first ground for denying the motion, Rule for Courts-Martial (R.C.M.) 703(c)(2)(C), Manual for Courts-Martial, United States, 1984 (MCM, 1984) provides in pertinent part that, “Failure to submit the name of a witness in a timely manner shall permit denial of a motion for production of the witness, but relief from such denial may be granted for good cause shown.”

On 26 September, at the initial Article 39(a), 10 U.S.C. § 839(a) session in Bermuda, the individual military counsel (IMC) explained to the military judge that he was made available as appellant’s counsel on 6 September and that he (IMC) had received all available urinalysis documents from the detailed defense counsel on 12 September. He immediately forwarded the documents to Dr. Cooke on 13 September. Dr. Cooke reviewed them on 18 September and the IMC contacted him by telephone from Bermuda on 22 September.

As a result of this phone conversation, the IMC determined that Dr. Cooke was not needed. He explained this to the military judge as follows:

to be honest with you, sir, we did not need his presence at that point. Then [651]*651yesterday evening, information came forward which made his testimony relevant at that point. Until that point, sir, his testimony was not tactically useable and was not relative to the defense’s position. Information was produced yesterday, or came to my attention which made his avail — made his desirability much more critical, sir.

(R. 10). Thus, the request by the defense for the production of Dr. Cooke as an expert witness was made on the morning following the discovery of new evidence which the defense believed would make Dr. Cooke a necessary witness.

The IMC again contacted Dr. Cooke by telephone on the morning of the initial Article 39(a) session and also prepared a written request for the production of Dr. Cooke as an expert witness (Appellate Exhibit 2), which request was denied by the convening authority prior to the court session. The IMC also informed the military judge that, weather permitting, Dr. Cooke could be available for trial on Saturday, 28 September. Producing Dr. Cooke from Norfolk might have delayed the trial for a few days but it would not have prejudiced the Government’s ability to prosecute the case.

Based on the foregoing facts, the military judge erred in finding that no good cause was shown by the IMC to merit relief from the timeliness requirement of R.C.M. 703(c)(2)(C). The defense did not commit an unnecessary delay in requesting the ex-

pert witness and the possible defense delay would not interfere with the orderly prosecution of this case. As the Court of Military Appeals observed in United States v. Hawkins, 6 U.S.C.M.A. 135, 19 C.M.R. 261, 268 (1955):

The necessities for having a witness present often do not arise until the trial has proceeded well along toward finality and the touchstone for untimeliness should be whether the request is delayed unnecessarily until such a time as to interfere with the orderly prosecution of the case. Even then, if good cause is shown for the delay, a continuance should be granted to permit the evidence to be produced.

Our conclusion that the military judge erred in determining that no good cause was shown to merit relief from the timeliness requirement of R.C.M. 703, requires us to next examine the second prong of his ruling; that is, the Government offered an “adequate substitute” witness for Dr. Cooke within the meaning of R.C.M. 703(d).1

When a request is made for the employment of an expert to testify on the accused’s behalf at trial pursuant to R.C.M. 703(d), the Government is permitted to produce an “adequate substitute” in place of the particular expert requested by the defense.2 Neither the rule nor the analysis define the term “adequate substitute.”

[652]*652We believe that the Sixth Amendment right of an accused to have compulsory process for obtaining witnesses in his favor demands that an “adequate substitute” for a particular requested expert witness at trial not only possess similar professional qualifications as the requested witness, but also be willing to testify to the same conclusions and opinions. To find otherwise would be to effectively foreclose the accused from obtaining favorable expert testimony to counter Government experts testifying against him at trial and would surely amount to a denial of the “raw materials integral to the building of an effective defense.” Ake v. Oklahoma, 470 U.S. 68, 77, 105 S.Ct. 1087, 1094, 84 L.Ed.2d 53, 62 (1985). See also Britt v. North Carolina, 404 U.S. 226, 227, 92 S.Ct. 431, 433, 30 L.Ed.2d 400 (1971). It is within this framework that we examine the military judge’s denial of the defense request to produce Dr. Cooke.

Defense counsel, in support of his request for the production of Dr. Cooke, made the following offer of proof to the military judge:

IMC: Yes, sir. In a conversation with Doctor Cooke this morning that took place at approximately 10 o’clock this morning, asked him certain questions concerning whether it was feasible for an individual who had metabolite nanogram for the Delta 9 of 20 — excuse me, for 70, which refers to Charge I, Specification 1; and then as to Specification 2 where the government has proved the — will be offering evidence that the metabolite for Delta 9 was 90 nanograms, asked him specifically, “Is it feasible that — that levels could be reached by passive inhalation?” If you would, sir.

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Cite This Page — Counsel Stack

Bluebook (online)
24 M.J. 649, 1987 CMR LEXIS 190, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-robinson-usnmcmilrev-1987.