United States v. Sergeant First Class JOHN E. FENWICK, III

Opinion

UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before SIMS, COOK, and GALLAGHER Appellate Military Judges

UNITED STATES, Appellee v. Sergeant First Class JOHN E. FENWICK, III United States Army, Appellant

ARMY 20090498

82d Airborne Division Gary J. Brockington, Military Judge Lieutenant Colonel Jeffrey C. Hagler, Staff Judge Advocate (pre-trial) Major Jessica A. Golembiewski, Acting Staff Judge Advocate (post-trial)

For Appellant: Colonel Mark Tellitocci, JA; Lieutenant Colonel Matthew M. Miller, JA; Captain Shay Stanford, JA; Captain Tiffany K. Dewell, JA (on brief); Lieutenant Colonel Jonathan F. Potter, JA (additional pleadings).

For Appellee: Major Christopher B. Burgess, JA; Captain Chad M. Fisher, JA; Captain Kenneth W. Borgnino, JA (on brief).

30 September 2011

---------------------------------- SUMMARY DISPOSITION ----------------------------------

Per Curiam:

A military judge, sitting as a special court-martial, convicted appellant, pursuant to his pleas, of wrongful distribution of ecstasy and cocaine in violation of Article 112a, Uniform Code of Military Justice, 10 U.S.C. § 912a [hereinafter UCMJ], and contrary to his pleas, of absence without leave, disobeying a superior commissioned officer, and wrongful use of marijuana and cocaine, in violation of Articles 86, 90, and 112a UCMJ, 10 U.S.C. §§ 886, 890, and 912a. Appellant was sentenced to a bad-conduct discharge, confinement for ten months, forfeiture of $2,260.00 pay per month for ten months, and reduction to the grade of E-1. The convening authority approved the adjudged sentence and credited appellant with 126 days of confinement against the sentence to confinement.

Before this court, appellant cites Crawford v. Washington, 541 U.S. 36 (2004), Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009), and United States v. Blazier, 69 M.J. 218 (C.A.A.F. 2010) in support of his contention that the military judge erred in admitting into evidence Prosecution Exhibit 11 (a Laboratory Documentation Packet which contained testimonial hearsay). Although the government concedes that portions of Prosecution Exhibit 11 “are likely testimonial,” the government argues both that a surrogate expert witness satisfied appellant’s right to confront the evidence contained in that exhibit and that the admission of the testimonial portions of the packet, if erroneous, was harmless beyond a reasonable doubt.

Although we agree with the parties that some portions of Prosecution Exhibit 11 are clearly testimonial, we reject the government’s arguments as to the surrogate expert witness and the harmlessness of the error.

LAW AND DISCUSSION

The use of a surrogate witness “who did not sign the certification or perform or observe the test” in question is not a constitutional substitute for the cross-examination of the declarant whose testimonial statement is actually admitted into evidence. Bullcoming v. New Mexico, ___ U.S. ___, ___, 131 S.Ct. 2705, 2710 (2011); see also Blazier, 69 M.J. at 223–24. Additionally, the government expert in this case impermissibly called “attention to the inadmissible testimonial hearsay contained on the cover memorandum” by specifically referring to the cover memorandum and basing her “opinion” that appellant had used marijuana and cocaine on the contents of that cover memorandum. United States v. Cavitt, 69 M.J. 413 (C.A.A.F. 2011).

Accordingly, we find that the admission of Prosecution Exhibit 11 was plainly erroneous. After reviewing the entire record before us, we are not convinced that the admission of the exhibit was harmless beyond a reasonable doubt in this case.

CONCLUSION

The findings of guilty of the Specifications of the Additional Charge are set aside and dismissed. The remaining findings of guilty are affirmed. The dismissal of the Additional Charge does not dramatically change the sentencing landscape. Reassessing the sentence on the basis of the error noted, the entire record, and applying the principles of United States v. Sales, 22 M.J. 305 (C.M.A. 1986), and United States v. Moffeit, 63 M.J. 40 (C.A.A.F. 2006), to include the factors identified by Judge Baker in his concurring opinion in Moffeit, the court affirms only so much of the sentence as provides for a bad-conduct discharge, confinement for nine months, forfeiture of $933.00 pay per month for nine months, and reduction to the grade of E-1. We conclude that such a sentence is at least that which would have been imposed by a court-martial for the remaining findings of guilt. All rights, privileges, and property, of which appellant was deprived by virtue of that portion of his sentence being set aside by this decision, are hereby ordered restored. See UCMJ arts. 58(b) and 75(a).

We have also considered the matters personally raised by appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982) and find them to be without merit.

FOR THE COURT:

MALCOLM H. SQUIRES JR. Clerk of Court