United States v. Tyndale

56 M.J. 209, 2001 CAAF LEXIS 1511
CourtCourt of Appeals for the Armed Forces
DecidedDecember 17, 2001
Docket00-0113/MC
StatusPublished
Cited by24 cases

This text of 56 M.J. 209 (United States v. Tyndale) 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. Tyndale, 56 M.J. 209, 2001 CAAF LEXIS 1511 (Ark. 2001).

Opinions

Judge BAKER

delivered the judgement of the Court.

In 1997, a special court-martial composed of officer members convicted appellant, contrary to his pleas, of wrongful use of methamphetamine, in violation of Article 112a, Uniform Code of Military Justice, 10 USC § 912a. Appellant was sentenced to a bad-conduct' discharge and reduction to pay grade E-3. The convening authority approved this sentence and, except for the bad-conduct discharge, ordered it executed. The Court of Criminal Appeals affirmed. 51 MJ 616 (1999).

This Court granted review of the following issue:

WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED BY AFFIRMING THE MILITARY JUDGE’S ADMISSION OF EVIDENCE OF A PRIOR POSITIVE URINALYSIS AND PRIOR INNOCENT INGESTION DEFENSE,

and specified review of the following issue:

WHETHER, WITH RESPECT TO THE ADMISSION OF POLYGRAPH EVIDENCE: (1) THE MILITARY JUDGE ERRED WHEN HE ADMITTED EVIDENCE OF POLYGRAPH EXAMINATIONS AT APPELLANT’S COURT-MARTIAL HELD AFTER THIS COURT’S DECISION IN UNITED STATES V. SCHEFFER, 44 MJ 442 (1996), AND BEFORE THE SUPREME COURT’S REVERSAL OF THAT DECISION IN UNITED STATES V. SCHEFFER, 523 U.S. 303, 118 S.Ct. 1261, 140 [211]*211L.Ed.2d 413 (1998); (2) BY FIRST INTRODUCING EVIDENCE OF TWO EARLIER POLYGRAPH EXAMINATIONS AND BY NOT OBJECTING TO THE PROSECUTION’S INTRODUCTION OF EVIDENCE OF A THIRD POLYGRAPH EXAMINATION IN REBUTTAL, APPELLANT FORFEITED ANY ERROR IN ADMITTING THE PROSECUTION’S POLYGRAPH EVIDENCE; AND (3) ANY ERROR IN ADMITTING POLYGRAPH EVIDENCE OPERATED TO APPELLANT’S SUBSTANTIAL PREJUDICE.

For the reasons set forth below, the decision of the Court of Criminal Appeals is affirmed.

Background

In January 1994, appellant’s urine sample tested positive for methamphetamine. He was tried by a special court-martial consisting of officer members and was acquitted. Appellant did not contest that he tested positive for methamphetamine, but instead, presented the defense of innocent ingestion. Specifically, at that court-martial, he asserted that someone had, without his knowledge, placed the drug in coffee he was served while playing guitar with his brother and other individuals at a residence near Ocean Beach in San Diego.

On Monday, October 7, 1996, appellant submitted a urine sample that again tested positive for methamphetamine. Appellant testified at trial regarding his activities several days before the urinalysis. He stated that he was an experienced musician and had played at a number of venues in the area. On the Saturday night prior to the urinalysis, he had agreed to play guitar at a private party in Dana Point, California, for a fee of $75. Appellant and his brother showed up at the party at about 6:00 p.m., where there were between forty-five and sixty people present. He described the crowd as “pretty radical.” Although he never got the name of the person who hired him, he played “halfway through the night” before being paid in cash. He further explained that around midnight, his brother told him there was drug use going on in another part of the residence. Nonetheless, appellant remained at the party and, by his account, consumed about a case of beer over the course of the evening.

Following receipt of the results of the urinalysis, appellant told his battalion commander that he did not know how he tested positive and that someone must have slipped him the drug in a drink at a party where he had played his guitar the weekend prior. Since the gathering was a “moving out” party, appellant was unable to subsequently locate the apartment or its occupants.

At the outset of appellant’s trial in April 1997, trial counsel moved for a preliminary ruling admitting evidence of appellant’s 1994 positive urinalysis and appellant’s accompanying explanation regarding innocent ingestion. The Government sought to introduce this information into evidence in the form of testimony from Major Glazier, the prosecutor during appellant’s 1994 court-martial.1

The Government argued that the testimony was legally and logically relevant under Mil.R.Evid. 404(b), Manual for Courts-Martial, United States (1995 ed.),2 on the issue of knowledge. Defense counsel objected, arguing that appellant’s prior urinalysis was being offered to demonstrate that appellant was predisposed to commit the crime. Further, even if this hurdle were overcome, the evidence was outweighed by the danger of unfair prejudice. And finally, he asserted that the prior urinalysis did not prove that appellant committed the prior act. The military judge preliminarily ruled the evidence of the January 1994 urinalysis could only be admitted in rebuttal to a defense of innocent ingestion.

During the defense case, the Government again argued for admissibility of this evidence, contending that the defense counsel [212]*212opened the door when he asked appellant, “Did you knowingly use, let me restate that, did you use drugs?” Defense counsel’s objection was sustained, and the defense proceeded with testimony in the nature of character witnesses as to appellant’s truthfulness, and testimony regarding two exculpatory polygraphs.

Defense counsel asked the first polygrapher what relevant questions were asked of appellant. The polygrapher responded, “In the past two years have you knowingly taken any unlawful substances?” and, “Other than for medicinal purposes, have you taken any drugs over the past two years?” Trial counsel objected, on among other grounds, that an additional relevant question had been omitted from the witness’s answer, to wit, “Do you suspect that anyone may have spiked your beverages while you were performing your music gig over the weekend before your urinalysis test?” Appellant had answered yes to this question. The witness also opined that these polygraph results lacked indicia of deception.

The defense put on a second polygrapher who testified that there were two relevant questions asked: “Did you knowingly use any illegal drugs during October 1996?” and, “[A]t any time within one week prior to your October 96’ positive urinalysis, did you intentionally ingest methamphetamine or amphetamine?” (Emphasis added.) He further stated that appellant had showed a lack of deception as to these questions.

Upon conclusion of the defense case, the Government again moved to admit evidence of the 1994 urinalysis and appellant’s corresponding explanation of innocent ingestion. As discussed below, this time, the military judge admitted the evidence. Trial counsel then proceeded in rebuttal with the testimony of Major Glazier. In addition, to rebut the defense polygraph evidence, an examiner from the Naval Criminal Investigative Service testified that appellant had shown deception on a polygraph he administered. Defense counsel did not object. In fact, he expressly acceded on the record to admission of this testimony.

Admission of the Prior Urinalysis

Mil.R.Evid. 404(a) prohibits admission of evidence of a person’s character for the purpose of proving that the person acted in conformity therewith on a particular occasion. Therefore, in the past, this Court has held that the mere fact a person used drugs at a time prior to the charged offense does not make it more or less probable that the person knowingly used drugs on the date charged. United States v. Cousins,

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Cite This Page — Counsel Stack

Bluebook (online)
56 M.J. 209, 2001 CAAF LEXIS 1511, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-tyndale-armfor-2001.