United States v. Tearman

72 M.J. 54, 2013 WL 1148594, 2013 CAAF LEXIS 296
CourtCourt of Appeals for the Armed Forces
DecidedMarch 19, 2013
Docket12-0313/MC
StatusPublished
Cited by39 cases

This text of 72 M.J. 54 (United States v. Tearman) is published on Counsel Stack Legal Research, covering Court of Appeals for the Armed Forces primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Tearman, 72 M.J. 54, 2013 WL 1148594, 2013 CAAF LEXIS 296 (Ark. 2013).

Opinions

Judge RYAN

delivered the opinion of the Court.

Contrary to his pleas, a panel of officer members sitting as a special court-martial convicted Appellant of a single specification of wrongfully using marijuana in violation of Article 112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 912a (2006). The adjudged and approved sentence provided for a bad-conduct discharge and reduction to E-l. The United States Navy-Marine Corps Court of Criminal Appeals (NMCCA) affirmed the findings and sentence as approved by the convening authority. United States v. Tearman, 70 M.J. 640, 645 (N.M.Ct.Crim.App.2012).

We granted Appellant’s petition for review to determine whether: (1) the admission of the chain-of-custody documents and internal review worksheets violated Appellant’s right of confrontation under the Sixth Amendment; and (2) the admission of the official test result and certification contained in the DD Form 2624 in violation of the Confrontation Clause of the Sixth Amendment was harmless beyond a reasonable doubt.1 Applying the principles set forth in United States v. Sweeney, 70 M.J. 296 (C.A.A.F.2011), United States v. Blazier (Blazier II), 69 M.J. 218 (C.A.A.F.2010), and United States v. Blazier (Blazier I), 68 M.J. 439 (C.A.A.F.2010), as well as Supreme Court precedent, see Bullcoming v. New Mexico, — U.S. -, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011); Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009); Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006); Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), we agree with the NMCCA that the chain-of-custody documents and internal review worksheets at issue in this case are nontestimonial. Tearman, 70 M.J. at 642-43.

Further, applying the balancing test set forth in Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986), we also agree with the NMCCA that [56]*56the error in admitting the official test result and certification contained in the DD Form 2624 was harmless beyond a reasonable doubt. Tearman, 70 M.J. at 645.

I. FACTS

On July 7, 2010, Appellant was one of approximately forty-four Marines randomly selected to participate in a urinalysis. His urine sample was packaged and shipped with the other samples to the Navy Drug Screening Laboratory (NDSL), in San Diego, California, for forensic testing. Upon arrival, Appellant’s urine bottle was assigned a unique laboratory accessing number (LAN). NDSL testing detected and confirmed the presence of tetrahydrocannabinol (THC), a marijuana metabolite, in an amount above the Department of Defense (DoD) cutoff level in Appellant’s urine.

On July 16, 2010, the NDSL sent an electronic notification of Appellant’s positive result to the Substance Abuse Coordination Officer (SACO) assigned to Appellant’s squadron, Sergeant O’Neil (Sgt O’Neil). On October 5, 2010, trial counsel requested that the NDSL send the empty urinalysis bottle and “drug lab documentation” pertaining to Appellant’s batch number, specimen number, and unique LAN. Thereafter, a single charge and specification for wrongful use of marijuana, in violation of Article 112a, UCMJ, was referred to a special court-martial, to which Appellant pleaded not guilty.

Prior to trial, the Government submitted an exhibit that included the drug testing report prepared by the NDSL. The drug testing report included the DD Form 2624, other chain-of-custody documents, machine-generated data, and internal review worksheets, documenting the NDSL’s urinalysis process.2

The defense moved to exclude the drug testing report in its entirety because the report was “prepared in anticipation for use at trial,” or, in the alternative, to exclude the non-machine-generated portions of the report. The military judge denied the motions, finding that the “entries including ehain[-]of[-]custody notations made by technicians of the [NDSL] in the urinalysis lab report do not constitute testimonial statements within the scope of the confrontation clause” and “are potentially admissible under the business records exception.”3

At trial, the Government called Andrea Kaminski, a supervisory forensic chemist and expert witness from the NDSL. The Government offered a portion of Ms. Kaminski’s testimony for the purpose of laying the foundation for admitting the drug testing report as a business record under M.R.E. 803(6). When the Government offered the drug testing report into evidence, the defense asserted a continuing objection on Confrontation Clause grounds. The military judge again overruled the objection, finding that: (1) the drug testing report was admissible in its entirety under United States v. Magyari, 63 M.J. 123 (C.A.A.F.2006), because the testing was performed on “a random sample basis,” [57]*57under a “non-investigative urinalysis process;” and (2) “trial counsel has laid a proper foundation for [the drug testing report] under [M.R.E. 803(6)].” Thereafter, the drug testing report was admitted into evidence in its entirety.

Ms. Kaminski was trained and certified as an expert witness in the field of forensic science, and testified regarding the NDSL’s mission, its process by which samples are accessioned, its testing methodology, and the contents of the drug testing report. Ms. Kaminski explained that the NDSL’s THC testing process consisted of three independent tests:

The first test is a screening test called immunoassay. If the sample from that first test is presumptive positive, we do a second test. It’s called a resereen immunoassay. And if that is presumptive positive, we do a third test called a confirmation GCMS [(gas chromatography mass spectrometry)] test.

Her expert opinion was that the urine sample associated with Appellant’s LAN contained THC in an amount above the DoD cutoff limit.

Ms. Kaminski was specifically asked about the front side of the DD Form 2624, i.e., the “specimen custody document.” After reviewing the document and the official test result presented in block G, she stated that Appellant’s specimen was positive for THC. Ms. Kaminski then testified about the NDSL’s urinalysis process in detail, focusing on the laboratory’s procedural steps for handling a positive sample and the machine-generated data produced in the course of testing Appellant’s urine sample.4

First, Ms. Kaminski described the NDSL’s process for the initial screening test. Then, based on the machine-generated screening results displayed on page eight of the drug testing report, she indicated that Appellant’s sample tested above the DoD cutoff level for THC. Next, Ms. Kaminski testified about the process for the rescreening test.

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Cite This Page — Counsel Stack

Bluebook (online)
72 M.J. 54, 2013 WL 1148594, 2013 CAAF LEXIS 296, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-tearman-armfor-2013.