United States v. Sloan

30 M.J. 741, 1990 CMR LEXIS 354, 1990 WL 40722
CourtU S Air Force Court of Military Review
DecidedMarch 29, 1990
DocketACM 27720
StatusPublished
Cited by8 cases

This text of 30 M.J. 741 (United States v. Sloan) is published on Counsel Stack Legal Research, covering U S Air Force 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. Sloan, 30 M.J. 741, 1990 CMR LEXIS 354, 1990 WL 40722 (usafctmilrev 1990).

Opinion

DECISION

HODGSON, Chief Judge:

The appellant is an instructor pilot assigned to Vance Air Force Base which is near Enid, Oklahoma where he resided in a [743]*743rented townhouse with two fellow officers, First Lieutenant Steven Steadman and First Lieutenant David Updegraff.

On 5 April 1988, the appellant saw the flight surgeon who assigned him duties not involving flying (DNIF) because of a stomach disorder. The next evening, 6 April, he felt well enough to have a date with Audrey Caulkins, a waitress at a local bar and part-time real estate agent.

After an evening on the town the appellant and his date returned to his home in the early hours and subsequently went to bed. The next morning, 7 April, the appellant again saw the flight surgeon who continued him in DNIF status. The appellant returned home about 1000 hours and Stead-man saw him walking around their swimming pool. A few minutes later, when Steadman entered the dining room, he found the appellant lying on the floor “pale, sweating quite a bit and breathing real fast.” Steadman nudged the appellant with his foot, but got no response. After being shaken, the appellant opened his eyes, which were glazed, and began “babbling” incoherently.

Concerned with his roommate’s health, Steadman called the telephone operator to report an emergency. By the time Stead-man was off the phone, the appellant had a 32 ounce can of beer in his hand and was heading up the stairs stating, in a slurred voice, that he was going to bed.

A few minutes later Thomas Britt and Roger Hess arrived from the Life Emergency Medical Services. When they entered the appellant’s bedroom accompanied by Steadman, the appellant asked the medical technicians if they were “policemen.” Both technicians testified that the appellant was “flushed, red faced with bloodshot eyes.” He denied taking any medication. Reports as to the appellant’s exact words, when asked what had happened, vary. According to Britt, the appellant said: “Last night I was at a party and I experimented with too much cocaine.” Hess remembers the appellant saying: “I was experimenting a little too much cocaine last night.” The appellant also acknowledged that his conduct hurt his career, and additionally stated, “[I don’t] even know why [I] was using it because [I can’t] really afford it. It [is] too expensive.” Steadman recalls the appellant saying, “I took too much cocaine last night.”

On 8 April, the appellant returned for a follow-up appointment with the flight surgeon. He made no mention of what had happened the day before. That afternoon the appellant told Updegraff that he was sorry for putting him and Steadman in such a “mess.” He indicated he had “tried cocaine for the first time and realized how stupid it was.” Later, when Steadman consented to having his part of the house searched by law enforcement authorities, the appellant indicated to Steadman that he (Steadman) need not worry because “he (appellant) did not do cocaine in the house.”

Major (Dr.) Jay Mayer is an Air Force physician employed part-time by St. Mary’s Hospital in Enid. On 9 April, Thomas Britt, the emergency medical technician who responded to Steadman’s call for assistance on 7 April, told Mayer about the incident involving the appellant. Britt indicated to Mayer that the appellant had stated he had been “experimenting with a new dose of cocaine and had taken too much.” The next day, 10 April, Mayer told the staff judge advocate what he had learned. This officer spoke with Britt and then contacted the base commander. On 11 April, after being informed that cocaine metabolites can stay in a person’s system for three to five days after ingestion and that Britt and Hess were reliable, the commander determined that probable cause existed to seize the appellant’s urine. His urine sample tested positive for benzoylecgonine, a metabolite of cocaine at a level of 4,335 nanograms per milliliter (ng/ml).

At trial the appellant denied using cocaine during the period alleged or at any time. He testified he had no recollection of the statements attributed to him by the emergency medical technicians (EMT) concerning his involvement with cocaine. He stated he became “queasy” after he had returned from the flight surgeon’s office on the morning of 7 April and had called Audrey Caulkins to tell her he was sick. [744]*744At that time she told him, “I put a bunch of cocaine in your drink last night.” He did not discover she was joking until about a week later. The appellant suggests that his statements to the EMTs and Steadman were the result of him being falsely told by Caulkins that she had put cocaine in his drink. Further, he did not remember any conversation with Updegraff about him (appellant) having tried “cocaine for the first time and realizpng] how stupid it was.”

The appellant also challenged the reliability of the Air Force’s drug testing procedures by offering expert testimony as to the accuracy of the tests. Additionally, he offered the results of a test run on his blood, taken the same time as his urine, which was negative for cocaine metabolites. He also presented medical testimony that the symptoms he displayed on 7 April were not indicative of a cocaine overdose.

In rebuttal the prosecution tendered testimony as to the appellant’s reputation for untruthfulness, and that he had previously used cocaine with an enlisted Air Force member and two civilians, one of whom was Audrey Caulkins. The prosecution also offered testimony that the absence of cocaine metabolites in the appellant’s blood was not significant as the metabolites remain in the urine longer than they do in the blood.

The above circumstances resulted in the appellant’s conviction for a single allegation of cocaine use. The sentence as approved by the convening authority extends to a dismissal, two years confinement, and total forfeitures.

The appellant has assigned eight errors. While none justify overturning his conviction, a discussion of some is warranted.

I

The appellant challenged eight of the nine court members for cause at the conclusion of the voir dire. The trial judge granted two of the challenges and each side exercised its peremptory challenge. Appellate counsel now argue that the military judge erred by not granting all of the challenges for cause. Their attack focuses on three areas: (1) Some members had heard rumors about the case; (2) two members worked for an individual who had spoken disparagingly of the appellant; and (3) several members thought the justice system was unable to cope with the drug problem in America. In light of these circumstances, appellate counsel argue that the court members’ assurances that they could fairly hear the evidence in the case flys in the face of common sense. See United States v. Smart, 21 M.J. 15 (C.M.A.1985).

In United States v. Hawks, 19 M.J. 736, 738 (A.F.C.M.R.1984), we stated:

[Challenges for cause can test the mettle of the most experienced and conscientious judge, as he must weigh competing principles and make a ruling quickly and without the time for reflection that appellate courts are given — the task is not easy. On one hand he is admonished to be liberal in passing on challenges, and on the other hand reminded that the moving party has the burden of proof to establish the contention of bias as fact, not speculation.

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Cite This Page — Counsel Stack

Bluebook (online)
30 M.J. 741, 1990 CMR LEXIS 354, 1990 WL 40722, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-sloan-usafctmilrev-1990.