United States v. Tyler

17 M.J. 381, 1984 CMA LEXIS 21073
CourtUnited States Court of Military Appeals
DecidedApril 9, 1984
DocketNo. 45,170; ACMS 25618
StatusPublished
Cited by25 cases

This text of 17 M.J. 381 (United States v. Tyler) is published on Counsel Stack Legal Research, covering United States Court of Military Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Tyler, 17 M.J. 381, 1984 CMA LEXIS 21073 (cma 1984).

Opinion

Opinion of the Court

EVERETT, Chief Judge:

Contrary to appellant’s pleas, a special court-martial consisting of a military judge alone found him guilty of wrongfully possessing marihuana on or about February 1 and March 1, 1981, and of wrongfully possessing and selling cocaine on November 14, 1981, in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934. The sentence included a bad-conduct discharge, confinement for 3 months, forfeiture of $250 pay per month for 3 months, and reduction to pay grade E-3. The convening and supervisory authorities approved the sentence; and in an unpublished per curiam opinion, the United States Air Force Court of Military Review affirmed the findings and sentence. Subsequently, we granted review of this single issue:

WHETHER THE IDENTITY OF A SUBSTANCE AS COCAINE CAN BE PROVED BEYOND A REASONABLE DOUBT BY THE OPINION OF A LAY ■ WITNESS WHO USED THE SUBSTANCE IN CONJUNCTION WITH A LARGE QUANTITY OF ALCOHOL, WHERE THE WITNESS HAD USED COCAINE ON ONE PRIOR OCCASION.

I

Airman First Class Darrel Lenhart, the first government witness, testified that “[pjrobably about November 10th to the 13th,” he and appellant “were sitting in the chow hall and I said that I would sure like to get some cocaine.” Thereupon Tyler responded, “I know where you can get some.” According to Lenhart, “He said he could get me some and I asked him how much and he said $100” for a gram. Thereafter, appellant “just gave me his phone number and told me to call him the next ... whenever I wanted it.”

On November 14, 1981, Lenhart was at Airman Dale Kloefkorn’s

house and I called ... [Tyler] from Dale’s house and told him to bring it over and he said it would be a while. I said okay, and then I called him again and he said he would be coming out.

Appellant told Lenhart “he would be getting ... [cocaine] pretty soon”; and during this conversation — just as previously at the dining hall — the only kind of drug discussed was cocaine. Lenhart and Kloefkorn waited several hours for appellant’s arrival; during this time Lenhart drank “[p]robably about two six packs” of beer.

Finally, Tyler arrived about 7 or 8 p.m. at Kloefkorn’s house, whereupon Lenhart went outside to appellant’s

car and we got in the car and he showed the piece of paper to me and I gave him $100 and he said it would be ten more dollars and I said okay and I gave him ten more dollars.

The paper Lenhart received “was like a magazine paper”; and “it was folded so nothing would spill out from what was inside of it.” Lenhart placed the packet in his pocket and went back into Kloefkorn’s house. During the purchase transaction— which lasted “[a]nywhere from three minutes to five minutes” — nothing had been mentioned about the contents of the packet. However, Lenhart testified that “I just knew it was coke and it was. I trusted Tyler.” The purchase completed, Lenhart

[w]ent into the bathroom [at Kloefkorn’s house] and made two lines. I took one and I left one there for Darrel [sic], and then I went and sat down and Darrel [sic] [383]*383went in there about ten minutes later and then he came back out and sat down. We did that back and forth for the rest of the night.

There was “[a]nywhere from a half a gram to a gram” of cocaine in the packet; and, according to Lenhart, he

used a hair pin or a hair clip or something like that to cut it up, and then I had a Bic pen and I snorted it through that. There was a little left on the cabinet so I rubbed that in my gums.
‡ $ * sfc ‡ :J<
[It] [n]umbed my face, made me feel kind of, you know, good like nothing was wrong. I was feeling great.

Lenhart returned to the bathroom three or four times that night; each time he “[s]norted the coke,” and each time it “[m]ade me high .... I wouldn’t get very much higher. I would just snort it and stay pretty much at the same high cause I was pretty drunk at the time. I was drinking at the same time I was snorting.”

The cocaine which Lenhart bought that night from Sergeant Tyler “was white and it had little chunks like little rocks of white in it,” and it was “a powdery like substance.” Lenhart had used cocaine once before — about three months before he entered the Air Force, and the cocaine he purchased from appellant on November 14 looked the same as that which he had used on the prior occasion. Lenhart also testified that, when he had used cocaine before, it made him feel “[e]uphoric. It made me feel good” and it was “[n]umbing.” On that earlier occasion, the cocaine was packaged the same way as on November 14— namely, “[w]rapped in a [folded] newspaper,” which Lenhart “just opened up.”

When he was asked by trial counsel, “What formal training, if any, have you had with the identification of cocaine?”, Lenhart responded — “Well, you took me down to the OSI twice, one yesterday and one today, and I picked out the cocaine out of two substances yesterday and out of four substances today.” Defense counsel objected, whereupon trial counsel stated that “the government would be more than happy to call Special Agent Blommaert who conducted the test” and requested the judge “to perhaps withhold ruling on that particular objection until you’ve heard his testimony.” The judge agreed to defer his ruling.

Subsequently, at the end of the direct examination, Airman Lenhart testified, without defense objection, that “based on ... [his] experience and the events of 14 November 1981,” his “opinion” was that “[i]t was cocaine” which he had “ingested that night.”

During cross-examination, Lenhart conceded that he probably had drunk 18 beers that night and that he had “lied twice to [Special] Agent Gregg” of the Office of Special Investigations (OSI) before telling her the version of the facts to which he was testifying at the trial. He also admitted that he had used marihuana “[q]uite often”; but, on cross-examination, Lenhart reiterated that only once before had he used cocaine.

Airman Kloefkorn then testified for the Government that about November 14,1981, Lenhart had come to his house and they had begun drinking beer at the rate of “[a]bout two an hour.” When appellant drove up to the house, Kloefkorn and “Lenhart went outside to his car ... Lenhart got in the car and I stood outside the car. Lenhart gave him the money and he gave ... Sergeant Tyler gave him a piece of paper that was folded up.” He and Lenhart went back inside the house “after the exchange of money and the paper,” and Lenhart

went into the bathroom and I don’t know what he did in there. He came back out and he said there was a line on the shelf in there for me to snort.
‘ * * * * * *
Then I went into the bathroom and snorted it....
I used U.S. currency....
My face became numb and I felt like I needed to do something all the time, you know, it was like adrenalin flowing or something like that.

[384]

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