United States v. Weisleder ( 2015 )


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  •            UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS
    UNITED STATES
    v.
    Airman Basic WAYDE A. WEISLEDER, JR.
    United States Air Force
    ACM S32243
    26 October 2015
    Sentence adjudged 7 March 2014 by SPCM convened at Joint Base Pearl
    Harbor-Hickam, Hawaii. Military Judge: Gregory O. Friedland.
    Approved Sentence: Bad-conduct discharge, confinement for 45 days, and
    reduction E-1.
    Appellate Counsel for the Appellant: Major Christopher D. James and
    Major Thomas A. Smith.
    Appellate Counsel for the United States:               Major Roberto Ramirez and
    Gerald R. Bruce, Esquire.
    Before
    TELLER, HECKER, and SANTORO
    Appellate Military Judges
    OPINION OF THE COURT
    This opinion is issued as an unpublished opinion and, as such, does not serve as precedent
    under AFCCA Rule of Practice and Procedure 18.4.
    SANTORO, Judge:
    A special court-martial composed of officer members convicted Appellant,
    contrary to his pleas, of making false official statements, wrongful sale and disposition of
    military property, wrongful use of cocaine, larceny of military property, and wrongful
    appropriation, in violation of Articles 107, 108, 112a, and 121, UCMJ, 10 U.S.C. §§ 907,
    908, 912a, 921. The adjudged and approved sentence consisted of a bad-conduct
    discharge, confinement for 45 days, and reduction to E-1.
    Appellant argues that (1) the military judge abused his discretion by denying his
    motion to exclude statements and evidence obtained after he self-identified his drug
    abuse, and (2) the military judge abused his discretion by admitting the results of a drug
    test to corroborate his confession. Both issues are raised pursuant to United States v.
    Grostefon, 
    12 M.J. 431
    (C.M.A. 1982). We disagree and affirm.
    Background
    Appellant became addicted to oxycodone and cocaine. To pay for the drugs, he
    sold and pawned various items of military property during March and April 2013,
    including night vision goggles, a gas mask, a Kevlar helmet, portions of flak jackets, and
    body armor plates. When Security Forces began investigating the missing items,
    Appellant initially (and falsely) told them he had not seen another Airman’s night vision
    goggles on the day they were discovered missing. During a second interview, he
    admitting taking two sets of goggles but falsely stated he sold them for cash when, in
    fact, he had traded them to obtain controlled substances. Further investigation revealed
    Appellant had pawned multiple items of military property at local pawnshops.
    On 9 May 2013, the day after making the second false statement, Appellant
    contacted his flight chief, Technical Sergeant (TSgt) CW. He told TSgt CW he was
    thinking about committing suicide and needed help. TSgt CW immediately went to
    Appellant’s dormitory room, spoke briefly with Appellant, and noted that Appellant was
    looking “very pale, weak, and just not well.” As TSgt CW was driving Appellant to
    speak with the first sergeant, he asked Appellant if he was taking drugs, as he was
    concerned the Appellant may have overdosed. Appellant said that he had used
    oxycodone. In his testimony at trial, Appellant said he called TSgt CW because he
    respected him and wanted TSgt CW to “point [him] in the right direction to get help.”
    When they arrived at the first sergeant’s office, Appellant told him that he was addicted
    to oxycodone.
    TSgt CW took Appellant to the mental health clinic. Outside the presence of TSgt
    CW, Appellant told the mental health providers that he was addicted to oxycodone and
    added that he had used cocaine the previous evening. Following his evaluation by mental
    health providers, Appellant was taken to the Tripler Army Medical Center emergency
    room for evaluation. While at Tripler, Appellant provided a urine sample as part of a
    standard drug screen performed when admitting psychiatric patients. This sample
    presumptively tested positive for the metabolite of cocaine.
    Several days later, under rights advisement, Appellant told military investigators
    he had used oxycodone but did not admit to using cocaine. In August 2013, he admitted
    to investigators that he had used cocaine on the night before his contact with TSgt CW
    and also admitted that he traded the two sets of night vision goggles for oxycodone pills.
    2                                  ACM S32243
    Appellant was charged with, inter alia, wrongful use of cocaine. To prove this
    charge, the Government presented evidence of Appellant’s admission to military
    investigators. In order to corroborate this admission, the Government presented evidence
    of the positive result of his drug screen test. Appellant was not charged with using
    oxycodone, but the defense argued he could not form the intent to commit the other
    crimes due to his ongoing addiction to that drug.
    Additional facts necessary to resolve the assigned errors are included below.
    Self-Identification
    Appellant argues his statements to TSgt CW about his illegal drug use were his
    attempt to self-identify for the purpose of seeking assistance, pursuant to Air Force
    Instruction (AFI) 44-121, Alcohol and Drug Abuse Prevention and Treatment (ADAPT)
    Program (11 April 2011), and, therefore, neither those statements nor any evidence
    derived therefrom could be admitted against him.
    The version of AFI 44-121 in effect at the time of trial provided that “members
    with [substance abuse, including drug abuse] problems are encouraged to seek assistance
    from the unit commander, first sergeant, [substance abuse] counselor, or a military
    medical professional.” AFI 44-121, ¶ 3.7. Military members who reveal this
    information with the intention of entering drug treatment receive certain limited
    protection from criminal prosecution as commanders are prohibited from using a
    member’s voluntary disclosure of drug use against him in an action under the UCMJ. 
    Id. at ¶¶
    3.7.1.2, 3.7.1.3. The limited protections provided by the AFI are limited to
    “voluntary disclosures.” The AFI states that a disclosure is not voluntary if the member
    has previously been “placed under investigation for drug abuse.” 
    Id. at ¶
    3.7.1.4.2. A
    determination of whether an individual has been “placed under investigation” status is
    made based on the circumstances of each individual case. 
    Id. For example,
    a member is
    considered under investigation when he or she has been questioned about drug use by
    investigative authorities or the member’s commander, or when an allegation of drug use
    has been made against the member. 
    Id. The military
    judge found that Appellant’s first disclosure of his drug use was to
    TSgt CW and that TSgt CW was Appellant’s flight chief, not his first sergeant. The
    military judge further found that Appellant’s disclosures to military medical providers
    followed his non-protected disclosure to TSgt CW. Based on these factual findings, the
    military judge concluded that Appellant’s statements to TSgt CW, and all subsequent
    statements, were not protected by the “self-identification” provisions.
    We review a military judge’s denial of a motion to suppress for an abuse of
    discretion. United States v. Monroe, 
    52 M.J. 326
    , 330 (C.A.A.F. 2000). The military
    3                                 ACM S32243
    judge’s fact-finding is reviewed under a clearly-erroneous standard and his conclusions
    of law are reviewed de novo. 
    Id. Appellant does
    not dispute the military judge’s factual findings. Rather, he argues
    that, because Airmen are generally encouraged to address issues at the lowest possible
    level of the chain of command, Appellant’s initial disclosure to his flight chief should be
    protected just as if he had made it to his first sergeant. He further urges us not to adopt a
    strict interpretation of the self-identification provisions, in order to encourage Airmen to
    seek the help they need.
    The sanctuary provisions in AFI 44-121 are a creature of regulation. As such, and
    in keeping with the canons of statutory construction, we assume that the drafters of the
    regulation meant what they said as they wrote language designed to provide certain
    protections that Airmen otherwise would not have. See United States v. Estrada, 
    69 M.J. 45
    , 47 (C.A.A.F. 2010) (“In interpreting regulations, we apply the general rules of
    statutory construction.”). Under the canon of statutory construction “expressio unius est
    exclusio alterius” (the inclusion of one is the exclusion of others), we must presume that
    the exclusion of individuals beyond those specifically listed in the instruction was
    intentional. See United States v. Cline, 
    29 M.J. 83
    , 86 (C.M.A. 1989); Chevron U.S.A. v.
    Echazabal, 
    536 U.S. 73
    , 81 (2002) (holding “a series of two or more . . . things that
    should be understood to go hand in hand . . . support[s] a sensible inference that the term
    left out must have been meant to be excluded”). So long as the protections provided do
    not violate the Constitution or statutes or conflict with other regulations, it is not our
    place to opine on the soundness of the Secretary’s policy decision to limit the sanctuary
    to disclosures made only to certain persons.
    We therefore find that Appellant did not self-identify to TSgt CW within the
    parameters of AFI 44-121. Furthermore, we find that once Appellant made that non-
    covered disclosure to his flight chief, he was effectively “placed under investigation” for
    using drugs. Thus, his subsequent statements about using cocaine were also not within
    the parameters of the self-identification provisions.
    Corroboration
    As he did at trial, Appellant argues that the military judge erred by admitting the
    results of the Tripler Army Medical Center urine drug screen as a business record for the
    limited purpose of corroborating his confession to using cocaine. He asserts that the
    report constituted testimonial hearsay and, therefore, violated his Sixth Amendment right
    to confront the witnesses against him.1
    1
    U.S. CONST. amend VI.
    4                                  ACM S32243
    A military judge’s decision to admit evidence is reviewed under an abuse of
    discretion standard. United States v. Clayton, 
    67 M.J. 283
    , 286 (C.A.A.F. 2009). “The
    abuse of discretion standard is a strict one, calling for more than a mere difference of
    opinion.” United States v. McElhaney, 
    54 M.J. 120
    , 130 (C.A.A.F. 2000). “[O]n a mixed
    question of law and fact . . . a military judge abuses his discretion if his findings of fact
    are clearly erroneous or his conclusions of law are incorrect.” United States v. Ayala, 
    43 M.J. 296
    , 298 (C.A.A.F. 1995).
    However, whether the admitted evidence violates the Confrontation Clause of the
    Sixth Amendment is reviewed de novo. United States v. Blazier, 
    68 M.J. 439
    , 442
    (C.A.A.F. 2010) [hereinafter Blazier I]. If we find a violation of the Confrontation
    Clause, we cannot affirm the conviction unless we are convinced beyond a reasonable
    doubt that the error was harmless. United States v. Rankin, 
    64 M.J. 348
    , 353 (C.A.A.F.
    2007).
    The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused
    shall enjoy the right . . . to be confronted with the witnesses against him.” Therefore, “no
    testimonial hearsay may be admitted against a criminal defendant unless (1) the witness
    is unavailable, and (2) the witness was subject to prior cross-examination.” United States
    v. Blazier, 
    69 M.J. 218
    , 222 (C.A.A.F. 2010) [hereinafter Blazier II] (citing Crawford v.
    Washington, 
    541 U.S. 36
    , 53–54 (2004)). The Sixth Amendment bars only testimonial
    statements because “[o]nly statements of this sort cause the declarant to be a ‘witness’
    within the meaning of the Confrontation Clause.” Davis v. Washington, 
    547 U.S. 813
    ,
    821 (2006).
    An uncorroborated confession is insufficient to sustain a conviction.
    (1) An admission or a confession of the accused may be
    considered as evidence against the accused on the question of
    guilt or innocence only if independent evidence, either direct
    or circumstantial, has been admitted into evidence that
    corroborates the essential facts admitted to justify sufficiently
    an inference of their truth.
    (2) Other uncorroborated confessions or admissions of the
    accused that would themselves require corroboration may not
    be used to supply this independent evidence. If the
    independent evidence raises an inference of the truth of some
    but not all of the essential facts admitted, then the confession
    or admission may be considered as evidence against the
    accused only with respect to those essential facts stated in the
    confession or admission that are corroborated by the
    independent evidence.
    5                                   ACM S32243
    Mil. R. Evid. 304(c);2 see also United States v. Adams, 
    74 M.J. 137
    , 140–41 (C.A.A.F.
    2015) (holding the corroboration requirement applies to each essential fact contained in
    the admission that the government wants to admit into evidence). Therefore, if admission
    of the laboratory result violated the Confrontation Clause, Appellant’s confession was
    uncorroborated and insufficient to sustain his conviction of using cocaine.
    In denying the defense motion to suppress, the military judge made the following
    findings of fact, which are supported by the record and not clearly erroneous:
    [One, o]n 9 May[ 2013,] the accused called [TSgt CW],
    saying he was having suicidal ideations. Two, recognizing
    the exigency of the situation, [TSgt CW] drove to the
    accused’s dorm to provide an in person response to the phone
    call. Three, concerned that the accused may have ingested
    medication, he asked the accused if he had taken any drugs.
    Four, the accused responded, yes, oxycodone, oxycontin, was
    the identified drug. Five, they went to the unit first sergeant,
    and relayed [the] same information to him. Six, the first
    sergeant directed them to mental health. Seven, at mental
    health the accused disclosed his addiction to drugs and
    disclosed he had done cocaine the night prior. Eight, next the
    flight chief took the accused to Tripler Army Medical Center
    for treatment. Nine, upon arriving at Tripler, the accused
    provided a urine sample for testing, for medical diagnosis.
    Ten, that urine sample tested positive for cocaine or the
    metabolites of cocaine. This positive result was relayed back
    to the [emergency room] personnel for treatment. Eleven,
    this positive result, a presumptive positive, was recorded in
    the accused’s medical records at the 15th Wing.
    Based upon these factual findings, and after citing and analyzing the applicable
    law on drug testing and the Confrontation Clause, the military judge concluded as a
    matter of law that the drug testing report was non-testimonial and therefore its admission
    did not violate the Sixth Amendment. He further found that the report was admissible as
    2
    Through an executive order signed on 15 May 2013, the President implemented a complete revision of the Military
    Rules of Evidence. What had been Mil. R. Evid. 304(g) was moved to what is now Mil. R. Evid. 304(c)(2). The
    new rule uses the phrase “has been admitted into evidence” instead of the phrase “has been introduced.” However,
    this is not a substantive change as there has been a longstanding requirement that the corroborating evidence be
    admitted into evidence. See United States v. Duvall, 
    47 M.J. 189
    , 191–92 (C.A.A.F. 1997); United States v. Adams,
    
    74 M.J. 137
    , 139 n.6 (C.A.A.F. 2015) (noting that Mil. R. Evid. 304(c) remains substantively the same as Mil. R.
    Evid. 304(g)). Furthermore, the revised rule uses the words “admitted” and “introduced” interchangeably. Cf. Mil.
    R. Evid. 304(c)(2) and 304(c)(5).
    6                                           ACM S32243
    a business record3 and instructed the members prior to their deliberations that the results
    were admitted for the limited purpose of corroborating Appellant’s confession and could
    not be used as substantive evidence of his guilt.
    In United States v. Katso, 
    74 M.J. 273
    (C.A.A.F. 2015), our superior court again
    reiterated the distinction between testimonial and non-testimonial hearsay:
    [A] statement is testimonial if made under circumstances
    which would lead an objective witness reasonably to believe
    that the statement would be available for use at a later trial.
    In making this determination, this Court has asked whether it
    would be reasonably foreseeable to an objective person that
    the purpose of any individual statement . . . is evidentiary,
    considering the formality of the statement as well as the
    knowledge of the declarant.
    
    Id. at 279
    (internal quotation marks and citations omitted) (alterations in original).
    In United States v. Grant, 
    56 M.J. 410
    (C.A.A.F. 2002), the government attempted
    to admit a laboratory report for the limited purpose of corroborating the accused’s
    confession to ingesting drugs. A physician ordered a drug screen as part of the accused’s
    treatment but did not realize that the local hospital could not conduct such testing. 
    Id. at 412.
    The testing was instead performed by the epidemiology division of an Air Force
    laboratory at a different base and revealed cannabinoids in his urine. 
    Id. Because a
    qualified witness from the local hospital testified that the hospital obtained and kept the
    report in the normal course of its business and relied upon its accuracy in making
    treatment decisions for patients, our superior court found the laboratory report was
    admissible as a hospital business record despite the lack of testimony from laboratory
    personnel. 
    Id. at 414.
    The accused in Grant was not suspected of any offense at the time his sample was
    obtained and there was no dispute that the sample was obtained for purposes of medical
    diagnosis and treatment. Here, the military judge made factual findings that Appellant
    was taken to the hospital for treatment, that the urine sample was provided for medical
    diagnosis, and that the positive result was relayed to the emergency room staff and
    factored into their treatment decisions. These all support the military judge’s conclusion
    that Appellant’s testing and report are not meaningfully distinguishable from that found
    3
    “Records of regularly conducted activity” (commonly referred to as “business records”) which are created by an
    entity on a consistent and routine basis under methods and circumstances indicating trustworthiness are not excluded
    by the hearsay rule regardless of whether the declarant is available as a witness. Mil. R. Evid. 803(6). Because of
    the regular and routine circumstances of their creation, such business records are generally not testimonial and thus
    can be admitted without confrontation clause concerns. Crawford v. Washington, 
    541 U.S. 36
    , 56 (2004).
    7                                             ACM S32243
    in Grant and were thus admissible as business records of the Tripler Army Medical
    Center.
    Moreover, we find, as did the military judge, that these facts would not lead an
    objective person to believe that the purpose of testing the urine sample was evidentiary as
    opposed to medical. See United States v. Sweeney, 
    70 M.J. 296
    (C.A.A.F. 2011); Blazier
    
    II, 68 M.J. at 442
    (holding that a statement is testimonial if it would be reasonably
    foreseeable to an objective person that the purpose of the statement in a drug testing
    report is evidentiary and would be available for use at a later trial). There is no evidence
    that the command or investigators requested that hospital personnel conduct a urinalysis
    or any other testing.4 Therefore, we concur with the military judge that the results
    derived from the testing of that sample were not testimonial hearsay.
    Conclusion
    The approved findings and sentence are correct in law and fact, and no error
    materially prejudicial to the substantial rights of Appellant occurred. Articles 59(a) and
    66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the findings and the sentence
    are AFFIRMED.
    FOR THE COURT
    STEVEN LUCAS
    Clerk of the Court
    4
    In United States v. Tearman, 
    72 M.J. 54
    , 59 (C.A.A.F. 2013), in determining whether the challenged evidence was
    testimonial, our superior court considered whether the evidence was initiated without an external request and before
    charges were preferred. The fact that a document is later introduced at trial does not prove that it was intended as
    testimonial at the time it was made. 
    Id. at 59–60;
    see also United States v. Magyari, 
    63 M.J. 123
    , 127 (C.A.A.F.
    2006) (finding lab reports were not prepared at the behest of law enforcement in anticipation of prosecution and
    therefore not testimonial). It is not disputed that Tripler Army Medical Center’s emergency room’s regular business
    activity is not “the production of evidence for use at trial.” See Melendez-Diaz v. Massachusetts, 
    557 U.S. 305
    , 321,
    324 (2009).
    8                                             ACM S32243
    

Document Info

Docket Number: ACM S32243

Filed Date: 10/26/2015

Precedential Status: Non-Precedential

Modified Date: 4/18/2021