30 M.J. 134 | United States Court of Military Appeals | 1990
Opinion of the Court
A military judge sitting alone as a general court-martial tried Sergeant Berry at Yokota Air Base, Japan, on a charge with two specifications alleging violations of Article 112a, Uniform Code of Military Justice, 10 USC § 912a. The first specification accused him of divers uses of marijuana between January 1 and December 31, 1987; and the second specification alleged divers distributions of marijuana between June 1 and December 31, 1987. Contrary to his pleas, appellant was found guilty as charged and was sentenced to a bad-conduct discharge, 4 months’ confinement, reduction to airman basic, and a fine of $4,000.00, with further confinement of an additional year if the fine was not paid. The convening authority approved the sentence; and the Court of Military Review affirmed the findings and sentence in a memorandum opinion.
We granted Berry’s petition for review on this issue:
WHETHER THE MILITARY JUDGE ERRED BY ADMITTING EVIDENCE OF APPELLANT’S POSITIVE URINALYSIS IN REBUTTAL.
I
The Government’s case-in-chief relied heavily on Berry’s written confession taken on January 3,1988, by special agents of the Air Force Office of Special Investigations. In this confession — which the defense moved unsuccessfully to suppress — appellant had admitted using marijuana a number of times during the year 1987 and also distributing marijuana to Staff Sergeant Steven Ladnyk on seven occasions. The Government also offered corroborating testimony from two immunized co-actors, Sergeant Ladnyk and Airman Basic Jerry Smitherman.
The defense presented evidence of appellant’s good character and of Ladnyk’s poor character for truthfulness, as well as the testimony of a witness who had been present at a party where the Government claimed that Berry had smoked marijuana but who had not seen any use of marijuana there. Also, Captain Linda Rollins, the
In rebuttal, the Government offered a document which purported to be a laboratory report prepared by the United States Army Criminal Investigation Laboratory-Pacific on January 22, 1988.
The defense objected “on the grounds that it was improperly obtained. There’s been no foundation laid for a chain of custody. There’s been no foundation laid that it was collected in any sort of regular manner.” Trial counsel responded that, under Mil.R.Evid. 902(4a), Manual for Courts-Martial, United States, 1984, the report was admissible; and the military judge accepted this argument and overruled the defense objection.
II
A
The authenticating certificate properly attested that the document attached to it was a copy of a report on file at the Criminal Investigation Laboratory. See Mil.R.Evid. 902(4a). However, it did not attest that the urine specimen discussed in the report actually had been obtained from Berry. The chemists who prepared the laboratory report could not have known any of the circumstances under which the urine specimen had been obtained and transmitted to the criminal laboratory. Therefore, their report should not be construed to contain any representation as to the chain of custody; and, if such representations had been made, they would be beyond the knowledge of those who prepared the report.
Appellate government counsel argue that the two laboratory reports introduced as defense exhibits, which state that Berry's urine had tested negative on two occasions, were equally objectionable for failure to establish a chain of custody and that, by introducing these reports, the defense waived its right to object to the laboratory report the Government offered in rebuttal. We disagree.
The Government did not object to the two defense exhibits on chain-of-custody grounds, as did the defense with respect to the Government’s laboratory report. See Mil.R.Evid. 103(a)(1). Moreover, the defense offered a witness to help link its reports with appellant’s urine samples; but the Government offered only a document without any supporting witness. Under the circumstances here, the defense did not waive its right to object to the Government’s failure to establish a chain of custody. Thus, the document was not admissible.
Although we hold the Government’s laboratory report inadmissible because of an inadequate foundation, we should also point out some other concerns. The report gives no indication of the methodology or rationale used in arriving at its conclusion concerning the presence of THC. Moreover, no witness was called to explain the procedures of the laboratory in preparing such reports or to interpret the report. Cf. United States v. Murphy, 23 MJ 310 (CMA 1987). Moreover, without more information than was furnished by this laboratory report, it is impossible to determine whether the report was prepared in the manner prescribed by the directives of the Department of Defense. Cf. United States v. Arguello, 29 MJ 198 (CMA 1989). Even if a chain of custody had been established, we doubt that this document — without any supporting witness — would have been sufficiently probative to warrant its reception as rebuttal evidence.
Even though the rebuttal evidence was inadmissible, we conclude that Berry was not harmed. The prosecution case was strong and included a detailed confession by Berry, which dovetailed with the corroborating testimony of two prosecution eyewitnesses. See United States v. Rounds, 30 M.J. 76 (CMA 1990). The defense case, on the other hand, was weak. Since we are convinced beyond a reasonable doubt that reception of the laboratory report did not affect the outcome of the trial, there is no need to set aside the findings of guilty.
III
The decision of the United States Air Force Court of Military Review is affirmed.
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. The exhibit reflects that the findings of the two chemists who apparently prepared the report are dated January 21, 1988.
. See United States v. Harper, 22 MJ 157, 159 n. 1 (CMA 1986).