*1 STATES, Appellee, UNITED
Terry FLETCHER, Technical A. Force,
Sergeant, Air U.S.
Appellant.
No. 04-0465.
Crim.App. No. 34945. Appeals Court of
U.S.
the Armed Forces.
Argued Jan. 30, 2005. Sept.
Decided
ERDMANN, J.,
opinion of
delivered the
Court,
GIERKE, C.J.,
which
BAKER, JJ., joined.
public religious figures.
EFFRON and
granted
CRAW-
We
review
FORD, J.,
dissenting opinion.
filed a
to determine whether the trial counsel’s acts
prejudicial
constituted
misconduct.1 We find
Appellant:
For
Captain
Page
N.
III
John
during
that the trial counsel’s comments
her
(argued);
Knott,
Beverly
Colonel
B.
Lieuten-
findings argument
prose-
rose to the level of
McDade, Major
ant
Terry
Colonel Carlos
L.
cutorial
misconduct and
the misconduct
McElyea,
Captain
K. Martwick
Jennifer
prejudicial.
(on brief).
Appellee:
For
Captain Kevin P. Stiens
BACKGROUND
(argued);
Gary
Colonel
F. Spencer and Lieu-
wrongfully
Fletcher was
accused
brief).
(on
tenant Colonel Robert V. Combs
cocaine. The
case
Government’s
was based
*4
positive
on the
urinalysis
results of two
tests.
Judge
opinion
ERDMANN delivered the
urinalysis
performed
The first
part
as
of the court.
inspection
a random
of Fletcher’s unit and he
voluntarily submitted
to
second test.
Sergeant Terry
Technical
Fletcher entered
a plea
guilty
wrongful
to
use of cocaine
At
produced
trial Fletcher
several charac-
112a,
in violation of Article
Uniform Code
ter witnesses who described him
“truth-
as a
(UCMJ),
Military
§
Justice
10 U.S.C.
912a
person”
ful
abiding
and a “law
with
citizen”
(2000).
by
He was tried and sentenced mem
“positive moral character.” Fletcher called
bers
discharge,
bad-conduct
one month
witnesses
his church who testified about
grade
confinement and a
reduction
participation
his substantial
in church activi-
authority
E-l.
convening
approved
The
himself,
ties. Fletcher also took the stand
sentence,
findings
and the
and sentence were
testifying
religious upbring-
about his strict
by
affirmed
the United States Air Force
nearly
Force,
ing,
twenty years
his
in the Air
Court
Appeals
unpublished
of Criminal
in an
family
his
’life and his
involvement
opinion.
Fletcher,
v.
United States
No. ACM community.
34945, 2004
(A.F.Ct.Crim.App.
WL 388983
presentation
evidence,
After the
2004).
Feb.
(At-
findings
trial
argument.
counsel made
Appendix
tached
I
opinion.)
to this
prosecutorial
Trial
misconduct
argument contained a
number
references
by
prosecuting attorney
behavior
personal
to the
opinions
trial counsel’s
about
“overstep[s] the
propriety
bounds of that
believability
personal
of the evidence and
and fairness which should characterize the
comments about the trial defense counsel and
prosecution
conduct of such an officer in the
addition,
Fletcher.
near the end of her
Berger
aof
criminal offense.”
v. United
argument
spoke
the trial counsel
to mem-
States,
78, 84,
295 U.S.
55 S.Ct.
79
bers about
number of entertainers and
(1935).
L.Ed. 1314
prosecutorial
While
mis-
leaders,
religious
saying:
automatically require
conduct does not
a new
charges
trial or the
against
religion
dismissal
Is
an
abidingness?
indicator of law
accused,
granted
okay
relief will be
play
jail
if the trial
Is it
get
faith for a
out of
counsel’s
“actually impacted
misconduct
on a
people
free card—nah uh. Do
with
even
(i.e.,
right
substantial
of an accused
resulted
true faith make criminal mistakes?
...
prejudice).”
Meek,
drugs?
United States
[D]o
use
Yeah. Do
(C.A.A.F.1996).
1,M.J.
During the
adultery
find-
commit
their
Jes-
wives? Ask
ings argument the trial counsel
year
offered her
sie
Jackson about his two
[sic]
old
views,
personal
disparaging
daughter.
made
Jerry
comments
Ask
Falwell about the
about Fletcher
got caught
having
counsel and drew
hooker that
parallels
Springs.
between
case and
Fletcher’s
intercourse
a car
Palm
Jim
legal problems
challenge
of various
I
cheating
entertainers and
Bakker
on his taxes.
granted
following
1. We
review of the
issue:
PROPER AND MATERIALLY PREJUDICED
WHETHER THE CIRCUIT TRIAL COUN-
APPELLANT’S SUBSTANTIAL RIGHTS.
SEL’S FINDINGS
WAS
ARGUMENT
IM-
generally
as action or
I
defined
findings
up
come with the rest.
duct can
in violation of some
a trial counsel
huge
have time
inaction
made a
list but
don’t
standard, e.g., a
legal
constitutional
fact that he’s
norm
go over them.
[Does]
statute,
rule, or an
a Manual
good
provision,
work mean
he can’t use
done
canon.”).
cocaine,
professional
Quaid, prolific
applicable
ethics
nah uh. Dennis
actor,
categories
alleged
inpatient
four
needed
treatment.
Fletcher identifies
(1)
Friends,
per-
interjec-
Perry,
trial
Matthew
fabulous
counsel:
misconduct
(2)
former,
every
go
up
opinions,
week. Had
personal
shows
of her
beliefs
tion
counsel,
inpatient
How
drugs.
disparaging
treatment
comments
defense
about
one,
Jr.,
Downey,
(3)
Robert
wins
about this
the defen-
disparaging comments about
Emmy
performances
(4)
that he
dant,
of facts not in
introduction
actually
during the time ...
had
he was
evidence.
arrested,
being
charged
showing up
During
findings
prosecution’s
ar
having
positive for
used cocaine.2
objected
gument,
to a series
defense counsel
personally.
of comments that attacked
DISCUSSION
objection
proper
was made at the trial
As
level,
comments for
will review those
I. Prosecutorial Misconduct
UCMJ,
prejudicial
Article
error.
*5
any
prose-
The cornerstone for
discussion of
(2000).
objection
§ 859
There was no
U.S.C.
misconduct is Justice Sutherland’s
cutorial
made
the
of the trial counsel’s
to
remainder
Berger
opinion in
v. United States:
object
improper
comments. Failure
[prosecutor]
representative
The
is the
military
begins
argument
judge
the
before
ordinary
controversy,
party
of
a
but
findings
on
constitutes
instruct the members
sovereignty
obligation
govern
aof
whose
(R.C.M.)
waiver. Rule for Courts-Martial
impartially
compelling
is
as its obli-
as
919(c).
objection,
absence of an
the
all;
interest,
gation
govern
at
and whose
v.
plain
error.
States Rod
review
United
therefore, in a
prosecution
criminal
is not
87,
(C.A.A.F.2004).
riguez,
88
Plain
60 M.J.
case,
justice
that
win a
but that
shall
(2)
(1)
error,
is
error
when
there
occurs
such,
in peculiar
shall
done. As
he is
a
(3)
obvious,
plain
the error
error is
or
very
definite sense the servant of the
prejudice to
in material
a substantial
results
law,
guilt
is
the twofold aim of which
right
the accused. Id. at 88-89.
of
escape
shall not
or innocence suffer. He
vig-
may prosecute with earnestness and
Interjection
1.
the Trial Counsel’s Per-
of
indeed,
But,
he
do
while
should
so.
or—
Opinions
sonal Beliefs
blows,
may
liberty
strike hard
he is not at
duty
to strike foul
It
as much his
ones.
improper
a
counsel to
It is
trial
improper
from
to refrain
methods calculat-
interject
proceedings
into
ex
herself
produce wrongful
ed to
a
as it is
conviction
pressing
“personal
opinion
a
or
as to
belief
every legitimate
bring
to use
means to
any testimony or
falsity
or
of
evi
the truth
about a
one.
Horn,
429,
v.
9 M.J.
dence.” United States
(C.M.A.1980)
Standards,
(quoting ABA
88,
430
Supreme
The
tachment which should as “a In talking ” argues.’ prosecution’s from cause for which one [s]he about of the main wit- Horn, Standards, nesses, 9 (quoting opined, M.J. at 430 ABA very apparent she “It’s 128). 5.8(b), § Commentary at talking There are to Doctor Jain that he is the best ways many might trial counsel violate the possible person country in the whole to come against expressing personal rule belief or speak to us about this.” opinion. by giving personal One is assur- ances the Government’s witnesses are personal b. Unsolicited views evi-
telling the Young, truth. United v. States dence and comments on the defen- 1, 18-19, 1038, 470 105 U.S. S.Ct. 84 L.Ed.2d guilt dant’s (1985). by offering 1 Another substantive Improper interjection pros of the commentary falsity on the truth or of the ecutor’s views can also include “substantive testimony and evidence. Id. at 105 S.Ct. commentary falsity on truth or testi 1038. mony or Washington, evidence.” F.Supp.2d at As Supreme 431. Court Improper vouching a. recognized, has “Prosecutors sometimes duty breach their to refrain from federal circuit courts are in overzealous by commenting agreement improper vouching conduct occurs the defendant’s guilt offering the trial “plac[es] personal when counsel unsolicited views prestige government Young, the evidence.” through behind witness U.S. personal S.Ct. assurances the witness’s veraci Necoechea,
ty.” United
States
986 F.2d
During
findings argument,
her
the trial
(9th Cir.1993)
(citations omitted).3
counsel described the Government’s evidence
“unassailable,” “fabulous,”
and “clear”.
Improper vouching can include the
*6
respect
guilt,
With
to Fletcher’s
the trial
personal pronouns
use of
in connection with
said,
clear
urinalys-
counsel
“it’s so
from the
assertions that a witness was correct or to be
over,”
doing
es that he was
it over and
“He
Washington,
believed. United States v.
263
user,”
clearly
ais weekend cocaine
and “He
(D.Conn.2003).
413,
F.Supp.2d
431
Prohibit
guilty
inis
fact
of divers
of
uses
cocaine.”
language
clear,”
ed
includes “I think it is
describing
When
Fletcher’s defense she used
telling you,”
“I’m
and “I
no
doubt.” Id.
“nonsense,” “fiction,”
like
words
“unbelieva-
“Acceptable language
‘you
includes
are free
ble,”
“phony”.
“ridiculous” and
conclude,’ ‘you may
that,’
perceive
‘it is
interjection
per-
The trial
of her
that,’
counsel’s
submitted
‘a
part
or
conclusion
”
opinions
sonal beliefs and
was error. Com-
may be drawn.’
Id.
ments
as
trial
such
the ones that the
counsel
case,
In this
the
prosecution’s
trial counsel re made
Dr.
about
Jain
the
peatedly
credibility
for the
perceived
putting
vouched
of the
exhibits could be
as
the
Government’s
weight
witnesses and evidence. For
the
the
of
Government behind
state-
example,
discussing
testing
testimony
after
meth ments with the result that the
levels,
ods and cut-off
in question appears stronger
she concluded
than
“we
evidence
88,
know that
from
really
Berger,
an amount that’s
295
55
is.
U.S. at
S.Ct.
use,
with
having
dangerous practice
consistent
recreational
fun
629. This is a
because
partying
drugs.”
Emphasis
prosecutor conveys
jurors
with
added.
“when the
to the
exhibit,
personal
spoke
She referred to another
his
test
view that witness
results,
truth,
personally characterizing
may
ignore
be
for them to
exhibit
difficult
Perez-Ruiz,
1,
546,
Francis,
(6th Cir.1999);
3. See also United States v.
353
170
550
F.3d
F.3d
Unit
(1st Cir.2003);
Modica,
Amerson,
676,
9
(7th
United States v.
663
ed States v.
185 F.3d
686
1173,
(2d Cir.1981);
F.2d
Walker,
1178
United States v.
Beaman,
Cir.1999); United
v.
States
361 F.3d
180,
(3d Cir.1998);
155 F.3d
187
United
Mullin,
1061,
(8th Cir.2004); Cargle v.
1065
317
Sanchez,
192,
(4th
v.
118
States
F.3d
198
Cir.
1196,
Cir.2003);
(10th
F.3d
1219
United States v.
1997);
Ramirez-Velasquez,
United
States
322
Cano,
1354,
(11th Cir.2002).
289 F.3d
868,
(5th Cir.2003);
F.3d
United States v.
re-
lawyers generally”), vacated and
views,
defense
and baseless
however biased
-
1064,
-,
Modica,
by,
125 S.Ct.
1178- manded
U.S.
668 F.2d at
may
fact be.”
(2005);
Policy Mem-
TJAG
one
overpowering
yelling
ously
with the
curry
intended to
favor with the mem-
cutting people off cross examinations
comparisons
and the
bers.
drew
She
direct
between
argument.”
said,
wild
style
counsel,
She then
“He’s the
her
and that of
paint-
defense
one that could have
a
ing
scared witness and
“scary,”
polite
herself as less
more
Me,
freaked
out.
them
won’t cut them off. more honest. The trial counsel’s obvious
stated,
I’ll apologize if I do.”
attempts
She later
by
to win over
jury
putting
“Well,
yourselves,
you?”
ask
do I scare
light
herself in a favorable
while simulta-
neously making defense counsel look like a
properly objected
Defense counsel
to these
nasty
mean
person
say any-
who would
comments
because was error for the trial
thing
get
off
client
the hook were
type
personal
counsel to make this
attack.
plainly improper. The trial counsel errone-
See
v. Rodriguez-Estrada,
United States
877
ously encouraged the members to decide the
(1st
Cir.1989)
F.2d
(recognizing
personal qualities
case
based
of coun-
prosecutor’s obligation
“the
to desist from
than
sel rather
Not
facts.
did her
pejorative language
every
the use of
...
potential
comments have the
to mislead the
obligation
bit
solemn
attempt
as
as his
members,
they
but
also detracted from the
account.”).
bring
guilty
Defense coun-
dignity and
purpose
solemn
of the court-
objections
by
sel’s
were sustained
the mili-
proceedings.
martial
tary judge.
object
defense counsel did not
when
Disparaging
Comments About Fletch-
suggested
the trial counsel
that Fletcher’s
Credibility
er’s
defense was invented
his counsel. The
trial counsel referred to
argu-
Disparaging
Fletcher’s
im
comments are also
proper
ments
“fiction” at
four
least
times and
when
are directed to the defen
called one of
arguments
“phony
Fletcher’s
a
dant
example,
himself. For
this court has
distraction.”
calling
She also called the
said that
defense
accused liar is a “dan
thing
“that
gerous practice
case
to perpetrate
tried
should be avoided.”
you.”
Clifton,
As the district
explained
court
in United States v.
15 M.J.
30 n. 5
(C.M.A.1983).
Washington,
prosecutor
“[a]
must be careful
As the
Circuit has
Second
explained, “Although might
to characterize a
expect
defense as
fabricated.”
char
(internal
F.Supp.2d
quotation
Perry
at 434
acter
Mason
point
melodrama to
omitted).
liar,
marks
citation
It is
defendant
error for
and brand him a
such
disparage
trial counsel to
duty
defense
conduct is inconsistent
counsel
with the
accusing
“intentionally
him of
omitting
prosecutor
justice,
merely
unfa-
‘seek
White,
spinning
‘yarn’
vorable evidence
aid of
convict.’”
(quoting
prosecutor’s repeated suggestions that Here, the trial counsel mem told the defense was “fabricated” as “unwise and un- *8 credibility” bers that Fletcher had “zero and necessary”). testimony “utterly
that his was unbelievable.” disparaging said, The trial counsel’s re In rebuttal the trial counsel also marks about defense counsel were gets up less incen the Accused “[W]hen on the stand diary than asking her other comments and in carried and lies who fact was him the greater having with them a question? lawyer. likelihood of been His own Not me. And provoked. Yet when combined with the argues er that was the first lie.” Fletcher that roneous comments made about defense coun plain these comments were error because style, liar, sel’s trial unfairly the counsel’s other comments disparaging branded a disparaging defense counsel demeaning eyes constitute error him in and of the mem plain that was and obvious. Trial argues counsel’s bers. Fletcher that the trial counsel’s on attacks defense counsel’s courtroom man comments were similar to in those made Knickerbocker, ner integrity gratuitous and and obvi- where this court held that
183 however, is, exception to There an by offer- inappropriately acted trial counsel it is court has held that opinion general rule. This ing personal that accused’s during a trial counsel to comment testimony “fairy proper that he found was tale” history “contemporary mat 129. on or “insulting.” argument 2 M.J. at knowledge within the com of common ters com- “[t]hese lower court found munity.” Kropf, v. 39 M.J. United States proper relevant when viewed ments were (C.M.A.1994). 107, 108 past, In the “common trial as a whole.” We in the context “knowledge about has included knowledge” disagree. find that the trial counsel’s We actions,” v. personnel United States routine “exceedingly fíne line comments crossed (C.A.A.F.1998); 92, Stargell, 49 94 M.J. advocacy permissible distinguishes which military ongoing actions over knowledge of White, F.2d improper from excess.” 486 at Meeks, seas, 41 v. M.J. United States heavily on 207. defense rested Fletcher’s (C.M.A.1994); knowledge 158-59 good with an the claim that he was airman drug of Navy’s policy for “zero tolerance” truthfulness, reputation excellent 108-09; fenses, exis Kropf, M.J. at 39 testimony provided that could readi- Fletcher on a “war the United States of tence ly even as lie. be viewed as incorrect or Barrazamartinez, drugs,” v. United States he had never used He first testified that (C.A.A.F.2003); any 175-76 58 M.J. experi- drugs, admitted that he had but later general “upon which men other matter marijuana. The counsel mented with trial experience common fund impeached on properly then Fletcher notoriously accept knowledge, through data Thus, opened stand. the defense the door Jones, v. 2 all.” United States C.M.A. appropriate for trial ed and it was counsel (1952) 80, 87, (quotmg conflicting testimony Wigmore, on C.M.R. 80 comment Fletcher’s ed.). findings argument. § im- during her It was 2570 3d Evidence however, proper, for the trial counsel use time, did, pro counsel language that At the same are language that she personal making arguments
more attack calculated to defendant hibited from commentary prejudices passions than a evidence. inflame the Barrazamartinez, For jury. 176. M.J. The question is whether this error Clifton, charged example, in the accused plain Although rises to the level of error. adultery. During at 27. M.J. the trial counsel have avoided charac should findings an argument, the trial counsel used liar terizing Fletcher as a and confined her try analogy persuade the members that plausibility to the of his comments instead prejudice good infer could order story, obviously her comments were not so ar discipline. Id. at 28. The trial counsel in the improper to merit relief absence use, adultery is like gued that heroin Accordingly, objection counsel. charged as violations of Article both find the trial counsel’s comments about UCMJ, (2000), § and that 10 U.S.C. credibility Fletcher’s did not rise to level disci prejudice good order and both cases plain error. pline appeal, this can inferred. Id. On argument im trial court found that counsel’s Not Evidence Introduction Facts ac properly between the drew connection use order cused’s actions It a court-martial long has been held that passions prejudices of the inflame the must on the facts reach a decision based Bouie, 9 court members. Id. United States evidence. (1958). 228, 233, 8, 13 It is 26 C.M.R. C.M.A. *9 argues In case that it Fletcher by arguments
also well established
made
plain
to refer
error for the trial counsel
Clifton,
at
are not evidence.
15 M.J.
counsel
Falwell,
Bakker,
Jackson, Jerry
Jim
to Jesse
argues facts
29.
counsel
not
evi
‘When
Quaid,
Perry and Robert
dence,
Dennis
Matthew
of
or when he discusses the facts
cases,
Downey
no facts in
princi
because there were
he violates both of these
Jr.
other
regarding any of
individuals
these
ples.” Id. at 29-30.
evidence
“plain
and their names were used
for their
find
error that
and obvious” in trial
sensational value. The
main-
arguments
Government
counsel’s
that vouched for evi-
dence,
tains
injected
that such matters are within
com-
personal
the
unsolicited
views of
knowledge
community
mon
of the
and that
guilt, suggested
the evidence and Fletcher’s
opened
by
fabrication,
arguing
Fletcher
the door
that he
that the
defense was
and intro-
could not be a
user
had
because he
a duced facts
not
evidence. Because there
reputation
doing good
objection
for
regularly
“plain
work and
was no
to these
and obvious”
attending
errors,
church.
plain
we will test
under
them
the
error doctrine to determine whether
We find that the trial counsel’s references
prejudice
resulted material
ato substantial
religious figures
improp
and entertainers
right of the accused.
cases,
erly
comparison
invited
to other
the
facts of which were not admitted into evi
Prejudice
II.
similarity
dence and which
no
bore
to Fletch
Although
er’s
public fig
case.
references to
previously
We have
held that “it
allowed,
may
ures and news stories
the
legal
is not the
of
number
norms violated but
specificity and detail of her
went
comments
impact
the
of those
on
violations
the trial
beyond
generic
well
the
comments we have
appropriate remedy
which determines the
Barrazamartinez,
past.
allowed
See
Meek,
prosecutorial misconduct.”
some Appeals reversed. who saw him Force Court Criminal testifying eyewitnesses no *11 aside, findings The and sentence are set the of is Judge record trial returned civilian, an independent person He’s is a who
Advocate General the Air Force. A re- Laboratory, who for doesn’t work Brooks but hearing is authorized. deeply intimately involved the set-
ting up oversight. utterly and the He is So, perfect per- reliable. Doctor Jain is the APPENDIX I son, very who we are fortunate to have heard United States v. Fletcher from him in this matter. Let me turn to Prosecution Exhibit num- 04-0465/AF ber which is the first test the Accused’s ARGUMENT BY FINDINGS perfect litigation pack- urine. And this is a THE GOVERNMENT age. Prosecution Exhibit number shows morning. you GTC: Good As we told me, samples excuse tested. case, opening our statement this Ac- Only up the Accused showed with cocaine cused had a secret and his urine told that the sample orig- it. Another was taken from the Accused used cocaine on diverse occasions A aliquot inal bottle. whole different April of 2001. As we turn and look at the poured actually put and it was into a whole case, evidence in going appar- it’s to be different machine. testing per- The 1, 2, 3, 4, ent that Prosecution Exhibits formed, BZE, it again up showed bottles, they’re They’re all reliable. all trust- Why benzoylecgonine. same amount of worthy. They all are well He in done. fact testing is it that benzoylecgonine? we’re for in, gave went his urine it and was his urine Well, scientifically it’s the smart and sound that was sent to the lab it and was his urine thing during to do. You’ll reeall that So, that was tested at the lab. we don’t opening, defense’s he said that don’t really worry have to happened, about what you glad? even test for cocaine. Aren’t If locks, triple ciphers. because example, flying for cocaine were to be fact that the sample Accused’s was collected through atmosphere, it which we know according military standards, to the the ex- anymore cyanide doesn’t than does we’re acting standards that we set for this. fine, know, breathing, you all still then we’re testing Why? for Because cocaine. Now, brings happens us then to what body human puts doesn’t excrete cocaine. It lab, at the which is where hear from out the metabolite for it. we want to So Jain, Doctor Narish and that’s Prosecution processed if body know the man’s the co- very apparent Exhibit number 6. It’s from caine, yes, it did. talking to Doctor Jain that he is the best possible person in country you compared immunoassay, whole to come And speak to us about this. He’s the father of which quanti- are the first two tests and their testing drugs. GCMS for urine He was ties gas chromatography versus the mass BZE, beginning there at the spectrometry, and he’s there now. which will test say you processed And the defense would want that he’s can see that he had the Well, urine, old man. him. saw He’s on the metabolite of cocaine in his not co- top reliable, game. Very, very He’s never been better. caine. course I’ve say, well, like to part The defense would the ma- come to the last of the first test which man, chines gas are old. Don’t trust chromatography spectro- don’t and mass trust the metry portion quantifies machines. Neither the man nor the which his urine at They milliliter, top nanograms per machines old. are both on the twice the cut off limit, game their and the Air Force is limit. The cut off what does mean? possible. best pick up ones The defense would like You can’t atmosphere. from the say Jain, “Hey, cracking Doctor he’s not even from You guy can’t walk [sic]. smoke though? the lab.” Isn’t great dip your paste He’s You can’t even hands cocoa independent. biter, He’s not if you there Brooks even if are a nail do even Laboratory hands, representing go a lab that he have cuts in to a won’t hundred, So, being good. in for doesn’t want to turn let alone we know that *12 machine, day for his that for that test for that’s consistent was from an amount that comforting. sample. It’s use, party- having fun and with recreational has testified ing drugs. And Doctor Jain on Now, you’ve got every- you know how do us, sample given on a if the was sample? for that thing with the Accused’s to do having Well, Monday, it is consistent with number again, Exhibit Prosecution weekend, print out the Friday night, printer didn’t Sat- it over the even when used of a sort fact, there was some you page first cause in told urday night. It is what we you’re going to printer, problem with the on the beginning, the urine tells starting looking through have to suffer of cocaine. Accused’s use they include that. again. over And printer Now, you to think defense would like any away. it make Does Paperwork thrown Okay, let’s talk log discrepancies. about away that have thrown if we would difference discrepancies. And the lab dis- about lab you. Well, for now it’s included paperwork? They’re actually scary. crepancies aren’t page reprint, because the first Even a us very comforting. They do in fact show come It’s unassailable. didn’t out. They incredibly good lab is. have how Now, report, and that’s amus- Greystone’s they whole bunch of checks and balances you actually heard it for ing, when because they they us that work. work. And showed defense it sounded the first time from the There are standards. There are internal not. spook-tacular, but it’s What rather quality quality There is assurance. controls. Okay, you problems? have ever were the quality And there There blind controls. inspection an in opportunity to have had an i.e., controls, samples quality are external tip people your tip, top, if it’s unit? Even And disguised samples. as members’ sent got through inspect have who come exactly right. they all test out they’ve got Why are something, to. find really they doing they if don’t inspection an pointed defense has to the lab Now the do something? look for What we those. discrepancy reports. Let’s talk about Greystone Inconspicuously posted, report? you when we point towards And would room. are allowed in the people set of who going actually talking over about Well, work people that there 80 who we know redirect, discrepancy my what lab people Each have to do a [sic] at the lab. truly you if reports are. And look at Prose- particular swipe get card into each section. page Exhibit when cution number they if the hours. So And it works internal standard didn’t have exact business, were to come back after close blank, peak that’s an internal high on water post- they get Conspicuously in. get don’t discrepancy. great. It’s It standard shows ed, light of of course let’s shine the true working. if that the machine is And even us really permit means. The elevator what that exactly perfect, which Doctor it isn’t Jain posted right by the door. It was wasn’t forensically important, it’s he wouldn’t said equiva- place. Okay, the posted some other lab, hey, again. it But the have done over sign completely filled out. logs lent of many How they’re going again. to do it over unit, people You had two come ever things happen like a month at down, times do they’re but you put the names both Well, laboratory? it and we talked about have the from the location and same number, you April phone draw line and revealed the numbers. About same so So, They accept that there. May do dittos. don’t And we know and 18 or so in of 2001. secondary sys- A up. written alarm 30,000 get per month. samples test about, tem, that we talked after the ones percent of do the math. It’s about .05 You responded off in middle to when went standards, that, discrepancies like internal they got day. Okay, and that’s what go even for- off. And we don’t calibration report. Excellent. for the whole per- if isn’t test it the calibration ward and calibration like Picking employees would know the the lab stuff fect. How custody annota- reports problems for that with chain perfect? It’s in the was Now, Colunga cheap, tions with Mr. was was forensic standards. the Accused tested positive sample. for cocaine metabolite in his cheap. nothing wrong There’s with the chain custody sample. on the Accused’s And know, presented And we don’t we’ve never ’98, really nothing wrong there was back with; who it he was how paperwork. but he wasn’t too swift with the bought much he or how much he *13 long ago. That was a time using, having good or a whether he was time getting high. when he was We don’t know. swapping, sexy Tube it’s a rather term you But the law does in fact allow to infer your get isn’t it? It could attention at the knowingly. that he was it That’s the beginning? Nonsense. We know that law, you can do that. if And makes sense swapped Accused’s tube can’t be because a it, you drugs think about because folks use pick up. scanner from the will machine private. They’re going not it at do supermarket. It’s bar coded like the And going up unit. He’s not show at the office you everywhere yourselves. can check Tube something up light stick up and his nose or a swapping happen. you doesn’t But know it pipe. going crack He’s not it at the do going happen say isn’t because it would so Any public. potential office or do it in wit- up glowing when a water blank shows with probably for nesses this are other users up cocaine and the Accused’s looking shows arguably hiding themselves and are dis- course, happen. like water. Of it didn’t tancing goes him themselves from as he this, through Sometimes when it’s fed into a machine. But Why whoever his dealer is. you quality the internal should make inference in standards and controls this case though, going and that’s where we’re to ask place. are At the hospital here at the you apply good base, old fashion common sense. anybody has ever been late to work anybody gotten there? Has ever a letter of look, a Taking what would alternates reprimand any- for financials or whatever or believe, you goodness defense have well for body dropped ever a tube there? Does that sake, he ate that hundreds and thousands of your go get mean that wouldn’t and dollar bills and them all metabolized about an they’re sample; right. teeth clean and trust clean. hour before he took his urine a.m., morning, At 8:30—at simpler. 9:30 in the This is a lot There no human he bills, spend munching the wee dollar hours error once feed it into the machine. Canaveral, Cape no. Cocaine in the at air properly These machines are ev- calibrated Well, home, in his his car. we know that ery every possible time. There’s control on anyway. pizza guy doesn’t even work them. Their error rates are miniscule. pizza delivery money took his hard earned blanks, They’ve got gas water and the chro- Fiction, sprinkled pizza? it on his fic- matography spectrometry mass ma- new washing thing tion. How about that hand chines, art, chromatogra- gas state to perpetrate you? tried Hand gold phy is got standard. We’ve the best washing, it’s going positive not skew it to a and the newest. somebody spiked if has result their hands. starving They’re And the lab is for work. going negative It’s to skew it result. rushing get not overworked this done. Now, every- Mx. tells know that Varoz They’ve magnificent job. done a Prosecution one, Accused, your including the wash hands 8, same, same, except Exhibit number with water. The fact that the Accused blank, got that we’ve water little bit that, may may or have done does peak, again flat but run starts over on that remember, go in if doesn’t doesn’t his favor that’s course what do when he chooses not to and follow wash hands off, they internal start standard over and gives sample. he his urine the rules before course, printer do a new one. And Now, crude, you gentlemen not to but page very impressive. went out. That’s not advantage got have the over us. You’ve they’re The results And what are fabulous. opportunity equipment right to aim expect exacting go we’d from that lab and their and not hands. bottle even believe that he Women, is that. Are we to good luxury. We don’t credible such get days of leave didn’t check out? We good a stand as chance. Gender bias very espe- year. judiciously, We use them give sample. Don’t favor of the Accused’s coming cially around to retire- when we’re of that doubt. the benefit big want to have a blowout ment. We Now, argument falling cocaine you get end where terminal leave. time ceiling going into the —or from his paid. I did you get don’t know what And clothes, even, if he has cocaine on this clothes my leave. I don’t think so. going sample then into the somehow Well, him? let’s look back Should we trust percent metabolizing preposter- for BZE is telling factors about who on one of the most considering ous the fact he isn’t old really give speech. is. He sure did nice enough urine —that to make the alkaline genuine, but he didn’t It’s almost seemed *14 tempera- not such that a hot conditions were my I on under the know that had desk it, happened ture to cook and it twice. Did 1983, and paperwork, back to dis- researched actually from ceiling, cocaine fall from marijuana. used He covered that he had well our the Patrick bathroom as as from up I had that. So when he stood didn’t know here, me, laboratory or excuse as well as just you down and looked there and he sat he up Cape, from bathroom at the another straight in right all the face with the most well, you thing fiction. That about could muster and integrity appearance he could tiny exposed have been to amount and it said, drugs “I I have never used and never metabolized, just or entered the urine and Fiction, go really want to for it. will.” You you know, right suddenly, at the exact time Why? I it’s in his and knew it. Because you give cup in the urine to reach 202 paperwork, that I knew. but he didn’t know Hmm, no, two weeks in a 136[sic] row. he know I tell him. And didn’t that would all, not at it’s ridiculous. You know what it Now, examining long I time cross went is, stupid teenager you coming it’s as as a to him, gave integ- him to have opportunity dad, I saying got pregnant from a toilet you, all rity or to make another fiction for gas coming And then seat at station. very my way through at the end of cross you saying later and around then the same examination, why? I him And asked about thing again. you’re If from not convinced he integrity. showed that had no his excuse urinalysis, the first how about second? said, have look it He could come forward you you Do need a third? Do need a fourth? ago. just And long was a time I didn’t think dozen, pee every A do we him weeks and two it, you’d really and it shouldn’t find out about keep testing? No. teenager. Ha —he matter I was a because Now, people we’ve seen some nice come thought said I the defense counsel was ask- behalf, testify good he’s a military only. if ing me And about the taking away anything worker. And I’m not been, true, then his answer have should family duty from his his church or his or I military while in the have never used probably performance. And the Accused is military I drugs. And in the never while person. nice But nice can persons [sic] use uh, will. not what he said. His Nuh that’s drugs. drugs. goers Church can And use impressive complete and a impression wasn’t they present people can be other than what he tricks all of fiction. And it shows how Sunday to be at work and on themselves say people who came these other nice mornings. possible All times that he was good guy. he’s things, to do these unaccounted for. reconstruct, Now, go let’s back and what know, guy You knew since the 24th of question. The was the defense counsel’s urinalysis. it, April object hot for He’s I that he was he asked even third time didn’t answered, opportunity hap- had to reconstruct and when see let’s what asked you Sergeant “I pened. he don’t know.” Where Fletcher between 1st testifies you Why’d April knowingly “I 24th of you April take leave? don’t and the did was he? reliable, question. His cocaine? That was the know.” How how believable and use answer, I designed did not. It was anything to build to do or with coffee caffeine or anything credibility you than Okay, other coke. with all. but there are other of credibility indicators into his lack Well, Okay, religion does his hide him? it’s too bad to deal with on it’s no, he had those beliefs since he awas child joke, opened own. How about the I’ve never ROTC, and he also in in high Junior emails, my personal right because I then was stop drugs school didn’t working yeah, orderly high religion room. Oh back in when school. Is a an indica- abidingness? okay tor of law orderly play Is been room since? get jail faith for a out of free card—nah uh. January, pass trying he’s it off that he people Do even with true faith make criminal doesn’t check his January. emails since Nuh they Do or they mistakes? or criminal ac- uh, actually possible? is that Well the wit- tions, drugs? do use Yeah. Do nesses, his say friends not. allWe know that adultery commit on their wives? Ask Jessie your we’re networked. You can cheek email year daughter. Jackson about his two old you’re computer. even if not on own Jerry Ask Falwell about the hooker that he taskings How about all with those extra got caught having intercourse with with, trying impress you he doesn’t car Springs. in Palm Jim cheating Bakker about, check yeah, get his email? how Or challenge findings his taxes. *15 one, this I don’t know where I took to. leave up huge come with the I made a rest. list you There’s another indicator. Do know go but I don’t have to time over them. you year? you where took leave to this Sure that good Is the fact he’s done work mean year, probably. before, do. year Last cocaine, that he can’t use nah uh. Dennis likely. you good Would darn and certain Quaid, actor, prolific inpatient needed treat- you your urinalysis where to if took leave Friends, Perry, ment. Matthew fabulous up positive? Absolutely. had come got He’s performer, up every go shows week. Had to zero integrity telling and he’s us that he inpatient drugs. to treatment for How about knowingly didn’t use utterly one, cocaine is unbe- Downey, Jr., Emmy Robert wins an performances lievable. for during that he had actually being time with which he was arrest- Well, well, got, how about the idea of I he ed, charged showing up for positive hav- might prescriptions have used the wife’s —for Sure, ing you function, cocaine. can used as pain arthritis meds? For back uh. —nah in Doctor Jain said. You can use it process you We know what is if do morning you by your won’t know testi- something guy that. A like has a medical mony if sitting in the afternoon the man next issue, scrip, positive uses his wife’s tests for you night you it could have used last Well, something. give pre- don’t out today. wouldn’t know Besides the Accused’s scriptions They for got cocaine. this labora- use, samples are consistent with weekend not here, tory at say this base let’s but that —or being in the buzzed office. something even if happened like that had calendars, gave you things We various past, process? They guy says what’s the think over and as far as whether not or he okay, from, probably got this is I where it urinalysis, trying was fact to avoid the drop investigate charges, he why sure was. Sure he was. And using somebody admonish him for else’s got problem wouldn’t he? He’s cocaine scrip. you That’s what do. You don’t take going up it’s to show his urine. Sure. funny just him court. And it’s that it A, B, And that’s where the defense exhibits up comes here where the wife who him loves C, E, whatever, D, through A D come in. much, very very would much like to have his hearsay glad And I was that this admit- was any- retirement. And she doesn’t remember ted, you take a at it. could look Because us, thing either. As Doctor Jain told 22nd, it as of Mr. shows that Varoz had yields cocaine cocaine results. Not Solar- selected the Accused and he didn’t test until it, you cane or Lanacane or or Coca-Cola the 9th. Some of ask Novocain would 30th, consider, please going to be there that week. Now okay. don’t wasn’t March you by say- attempt persuading ap- It against one the Accused. defense’s hold that “Hey, going he was to take a strongly sweep. ing, And we if he knew pears to be unit then, test, he had he a unit he knew that he knew don’t think that tried avoid well it. And he sweep. It wasn’t his unit. So don’t hold that his name on bullet with 26th, against why But look That’s it’s one him. let’s at the done cocaine.” wouldn’t have strong the times he took illegal. and the 28th and addictive. And it’s a It’s leave, your- go get something a bad And idea. And that once addiction. it’s you’re it, self into class. And home free. He you’ve gotten like it in involved awfully in the was close science. One more Sergeant Fletcher life and that’s where cycle urination it out of and would been pretty he’s at the time. And he thinks was system. fellow, Sergeant Fletcher does. He’s smart gotten positive in his life some real feedback get caught. It his time to And it’s thought he about how smart he is. So he clearly now He time convict. is weekend the test and he knew how beat it. knew user, cocaine on divers occasions. There is Except miscalculating one urina- he cocaine, way that use of or no that second Well, Why thought tion. he did consent? urinalysis have come second could negative. Tuesday, going to be It’s began the one that or that was on the taken then, been out unless he was should have April. guilty 9th of He is fact of divers doing Saturday night big it on batch system uses of cocaine. The has worked mistakes, Friday. Lab errors and Doctor exactly planned. as And we ask to find Hah, Ha, Jain, a cheerleader Brooks. guilty charged. rich. Ha. That’s Doctor Jain involved lab. who inspecting the He’s one the folks REBUTTAL BY ARGUMENT into see, it to and mark down look them *16 THE GOVERNMENT naughty. they’re doing when their When inspections QCs or whether not there’s Well, CTC: we sure do have different posted conspicuously whether or not there’s styles. I actually going And think it is gets gets signs. who in and Now who out play for once in I will the case. not shout at tracking from 2 to changing numbers you. I you. present will reason with I will caught it lab? I was the Brooks don’t you I ask evidence what’s fair. con- care, you Do no. If that’s the know. best overwhelming light sider that. And in the of to, they point pretty can now, super it’s test. you shouting what know the defense’s anyone’s sending why. Yes, Doesn’t shake confidence fails here’s we do have to sample urine know that prove he their over. You knowingly consciously tests, showing you I’m drugs. you used infer lab Prosecution But can example, doesn’t test for contrary. absence of evidence to Exhibit lab What is number of going positive he to do two urina- the base’s lab tests about those Dad, lyses? Nothing. I got pregnant from a from their bar codes and their scanner. So No, seat, Now, bottle, way. toilet twice. whether what’s on the other than the Accused’s social, goes by. or not he was selected and he read his email isn’t what the lab It makes pretty good they is almost academic. Because it’s so clear sense that wouldn’t catch urinalyses didn’t, doing they that was If he over that. didn’t. The Basalt just my Study package But or not is favorite. I have a and over. the emails and whether clear, knows, very dodging going dump is was I’m he he Sweet’N Low here. Now, dodging talking all test. And was because he out. we’re about package dodged study, knew it was his He it on Basalt of a Sweet’N urine. l/20th see, some, 26th, Low, dodged oops dropped it on I the 28th and took a so let’s tiny good go. class for the week. He on now. next was little bit. It’s back Let’s see course, duty happens he knew that that what when we a 20th from Of take sergeant package course he knew that his first Low— Sweet’N Honor, Me, I’m going object
CDC: Your apologize won’t cut them off. I’ll if I this, regarding how do. going that she’s to divide
this into l/20th. Objection, Honor, improper CDC: Your argument.
MJ: Sustained. MJ: Sustained. Don’t comment on the Well, member’s, you’ve got CTC: Sweet’N attorney. character of the defense Low. You can think about it. You can take Honor, commenting yes, I’m CTC: Your except for don’t take of it and l/20th l/10th — commenting myself I’m sir. though, just line it out and see if it doesn’t look like Why you Miami Vice. would take l/10th comply. MJ: Just it, purity because street about 50 Well, yourselves, ask CTC: do I scare percent. exactly looks It like what a you? Am I going to—(cid:127) user stick up would his nose. Under the Again, objection, CDC: Your Honor. Study Basalt it wasn’t even about that. The MJ: Overruled. Study catching orally Basalt was about urine, ingested cocaine and how do you CTC: Will I cause to lie? know that? Doctor Because Jain and Doctor MJ: Sustained. together. Basalt pro- worked And CTC: Now— acquainted fessional associates and well sustaining MJ: Hold on a second. I’m procedures. all the And that’s on the test. objection. trying character We’re No, you orally can’t take that much even counsel. liquid dissolved in a and not feel it. Yes, Your CTC: Honor. Objection, CDC: Your Honor. Facts not Talk evidence. MJ: about the evidence. Well, and CTC: then when the Accused MJ: Overruled. gets up on the stand and he lies who in fact get CTC: You get numb mouth. You asking question? him the His own law- racing get heart. You increased alertness. yer. Not me. And that was the first he. you get And that what and that is what Well, kidney problems, bladder and that’s Doctor Jain testified to. And that’s phony another distraction. Colonel Torrent’s certainly, little amount. But if do the stipulation expected testimony shows that you’ll pizza test see. Are scared of way any there was no medications or *17 delivery guy Drug don’t now? I think so. kidney problems possibly and bladder could They’re drugs. going users like their to positive have caused a result. Like Doctor fairy jumping giving be the cocaine around testified, Jain cocaine for cocaine tests meta- away gift. going give as an Easter Who’s to bolites, nothing you else. And when come away It’s cocaine? contraband. It’s hard to case, just down to the end of this there’s item, by. very expensive come It’s a and it’s nothing you, that the can defense teh there’s very dangerous get to the from kind nothing you that I can tell that the evidence They people give who sell it. don’t that already you. you doesn’t show If take urine addictive, away. Plus, you it’s so want Monday the Tuesday, Accused or a hang Twice, fairy onto it. the cocaine visits going up positive it’s to show for cocaine. way. part No twice? Now the about guilty charged. And to find him need as lying really funny the Accused is because the just you. And we ask to do that. Thank attorney is defense who the one with the CRAWFORD, Judge (dissenting): yelling cutting overpowering people agree argument I that While trial counsel’s argument off cross examinations and the wild improper unprofessional, was at times you— gave that he nothing any is that such there indicate MJ: minutes. Five materially prejudiced Appellant’s error sub- —okay. Thus, rights. CTC: He’s the that could one stantial whether or not de- objections preserved have scared a witness freaked them out. fense counsel’s
193 theory the response” “invited where Air der appeal, agree I with the States United (CCA) religious statements that included Appeals Criminal Government Force Court of See, Boyd v. closing argument. e.g., in the context of the case as “[v]iewed Cir.1998) (bib- (4th whole, French, 319, including strength govern- 147 F.3d 329 argu- by invited prosecution prosecution ... lical were ment’s evidence references testimony concerning his sal- appellant’s ment did not ‘undermine the fundamental trial, prison awaiting trial and contribute to mis- vation fairness while ” beguiled justice.’ v. him into com- carriage of United States statement that Satan Horn, Fletcher, 34945, 388983, murder); Fahy v. 2003 mitting 2004 No. ACM WL 27, *53, (A.F.Ct.Crim.App. 22017231, Dist. LEXIS slip op. at Feb. 2003 U.S. 8 WL 2004). (E.D.Pa.2003) reason, any 14742, I im- (prosecutor’s For find that at *152 this “represen- case were proprieties by trial counsel this statement that defendant was harmless, respectfully this act” was I therefore dis- tative of Satan who committed that counsel’s remark sent. invited defense “[sjomeone, representative of Lucifer some Objections by Counsel Defense went into that house and did this or Satan noted, As defense counsel remained silent deed.”). unconscionable findings during primary the Government’s Strength Case the Government’s argument, objections rel- and made two below, finding majority during plain error evant here the Government’s rebuttal. assigns significance to military judge undue the Govern- promptly sustained both objections, findings argument, enough and not trial counsel not ment’s and admonished weight Trial to the trial as whole. coun- to remark further on defense counsel’s char- allegedly improper are limit- objections no re- sel’s comments acter. There were twenty-one pages transcript, alleged prosecu- ed maining categories three as among majority what characterizes torial misconduct. long “an and uneventful trial.” otherwise Significantly, previously Court has eventful, or not conclud- Whether CCA “ objection noted ‘the lack defense agree ed—and Government’s —that prejudice’ relevant a determination of be against Appellant strong. ease Notwith- objection cause of an the lack ‘is some mea standing to attack the lab- Appellant’s efforts impact prosecutor’s sure of the minimal of a tests, oratory and the of his two results ” improper comment.’ United States v. Gil the CCA found: (C.A.A.F.2001) ley, (quoting 56 M.J. testimony of [T]he [Dr. uncontroverted Carpenter, United States M.J. testing established that the urine Jain] (C.A.A.F.1999)); see also States v. United any properly, done mistakes attribut- Doctor, 126, 135, 7 C.M.A. 21 C.M.R. laboratory minimal and able were (1956) (“It find little difficult us to reliability impugn did not of the re- compels misconduct a reversal when it which sults, and tests suffi- the two argument purportedly arises out of an which ciently apart sepa- reflect two far so impact had so little counsel that defense ingestions of cocaine. *18 rate distinct silently by sat and failed to mention trial.”). ... at the time 388983, Fletcher, 34945, No. ACM 2004 WL slip at 7. op. Here, minimal probable aside from remarks, By contrast, Appellant’s ingestion
impact of trial counsel’s defense innocent independent relatively theory had reasons to believe weak. The members counsel any objections very reasonably Appel- that would be futile. Trial could have dismissed religious figures, suggestion ingested lant’s that the counsel’s references cocaine response” example, placed drug-handling “fair wit- was in his food were defense testimony in concerning Appellant’s preposterous ness affilia- chef: it so that here “[I]s cook, chef, bartender, Baptist living a ... tion with the church and his Cocoa Beach delivery Gilley, person using 56 at 120. cocaine ... could “Christian life.” M.J. It preparation error un- on food surfaces. [it] Other courts found harmless be 194 people wiping generally,
could
in a
perhaps
be
bar and
clean
Jurors
our
rib-
“blue
falling
glasses____”
into
panels particularly,
As the CCA
military
pre-
bon”
noted, “appellant’s
testimony provided
own
military judge’s
to follow a
sumed
instruc-
seriously
suspect
no
reason
believe or even
Nothing
tions.
demonstrates me that the
unknowing
that
ingestion
an
had occurred.”
unwilling
members
this case were
to or
Fletcher,
34945,
388983,
No. ACM
2004 WL
incapable
understanding
complying
slip
previously
op.
7. We have
considered with the instruction above.
plausibility
appellant’s
an
defense the-
Error
Plain
ory
determining
prejudice from error.
Finally,
Appel-
for the same reasons that
Walker,
67,
e.g.,
See
v.
United States
M.J.
lant
prejudice
cannot show material
(C.A.A.F.1995)
(finding “patently feeble”
59(a),
rights
substantial
under Article
Uni-
appellant’s
ingestion theory
innocent
based
Military Justice,
form Code of
10 U.S.C.
“consumption
during
of ‘crumb cake’
859(a) (2000),
§
plain
he cannot succeed on
drinking party,” testimony
lips
that “his
error.
tingly,’
subsequent
‘numb and
and the
discov-
ery
party.”);
that a
appellate
dealer attended the
an
can
Before
court
correct an
Brooks,
trial,
(1)
v.
United States
26 M.J.
error not raised at
there must
(C.M.A.1988) (considering appellant’s
“error,” (2)
(3)
“weak”
“plain,”
that
that
theory of
“implausible” sugges-
the case and
rights.”
“affect[s] substantial
If all three
Army
tion
investigator’s
that the
confidential
met,
appellate
may
conditions are
court
planted
informant
him
evidence on
in deter-
then exercise its discretion to
a for-
notice
harmlessness).
mining
Appellant’s
(4)
failure to
error,
if
feited
but
“seri-
error
seriously challenge the Government’s case
fairness,
ously
integrity,
affect[s]
against
my
is relevant
determination
judicial
public reputation
proceedings.”
that
no material prejudice
he suffered
Kho,
United States
54 M.J.
trial counsel’s comments.
(C.A.A.F.2000) (Crawford, C.J., concurring)
Limiting Instructions
States,
(quoting Johnson v. United
520 U.S.
461, 466-67,
strong
against Ap-
to the
117 S.Ct.