United States v. Hall , 2003 CAAF LEXIS 149 ( 2003 )

IN THE CASE OF
UNITED STATES, Appellee
v.
Judy A. HALL, Sergeant
U.S. Army, Appellant
No. 02-0243/AR
Crim. App. Dkt. No. ARMY 9901124
United States Court of Appeals for the Armed Forces
Argued November 6, 2002
Decided February 12, 2003
ERDMANN, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., GIERKE, EFFRON, and BAKER, JJ., joined.
Counsel
For Appellant: Captain Linda A. Chapman (argued); Major
Jeanette K. Stone, Lieutenant Colonel E. Allen Chandler
Jr., and Colonel Robert D. Teetsel (on brief); Colonel
Adele H. Odegard and Major Mary M. McCord.
For Appellee: Major Mark L. Johnson (argued); Lieutenant
Colonel Margaret B. Baines, Lieutenant Colonel Lauren B.
Leeker, and Captain Tami L. Dillahunt (on brief); Captain
Theodore C. Houdek.
Military Judge: Stephen R. Henley and Patrick J. Parrish
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION
Judge ERDMANN delivered the opinion of the Court.
Appellant, Sergeant Judy A. Hall, United States Army, was
tried by special court-martial at Fort Sill, Oklahoma. Contrary
to her plea, she was convicted of a single specification
alleging the wrongful use of cocaine, in violation of Article
112a, Uniform Code of Military Justice [hereinafter UCMJ], 10
U.S.C. § 912a (2002). Appellant was sentenced by officer
members to a bad-conduct discharge and reduction to E-1. The
convening authority approved the sentence. The Army Court of
Criminal Appeals affirmed the findings and the sentence in a
memorandum opinion on November 5, 2001.
We granted review of the following issues:
I
WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION
AND SUBSTANTIALLY PREJUDICED APPELLANT'S RIGHT TO
A FAIR TRIAL AND HER SIXTH AMENDMENT RIGHT TO
CONFRONT WITNESSES AGAINST HER BY ADMITTING
APPELLANT'S MOTHER'S INADMISSIBLE HEARSAY
STATEMENTS, OFFERED UNDER THE GUISE OF
IMPEACHMENT, WHERE THE OBVIOUS PRIMARY GOVERNMENT
PURPOSE WAS TO PLACE INADMISSIBLE HEARSAY BEFORE
THE MEMBERS.
II
WHETHER, AFTER ASSUMING THAT THE MILITARY JUDGE
ERRED BY ADMITTING APPELLANT'S MOTHER'S
INADMISSIBLE HEARSAY STATEMENTS, THE ARMY COURT
ERRED WHEN IT HELD THAT APPELLANT SUFFERED NO
PREJUDICE FROM ADMISSION OF THAT TESTIMONY.
2
III
WHETHER, AFTER ASSUMING THAT THE MILITARY JUDGE
ERRED BY ADMITTING APPELLANT'S MOTHER'S
INADMISSIBLE HEARSAY STATEMENTS, THE ARMY COURT
ERRED WHEN IT HELD THAT THE EVIDENCE OF
APPELLANT'S GUILT PROPERLY BEFORE THE COURT WAS SO
GREAT AS TO MAKE ADMISSION OF SA MILL'S TESTIMONY
HARMLESS BEYOND A REASONABLE DOUBT.
Prior to oral argument in this case, the Government filed a
supplemental pleading conceding “that the military judge erred
by admitting [Appellant’s] mother’s statements through SA Mills,
for the purpose of impeaching, by contradiction, appellant’s
testimony.” Upon considering the record of trial, we accept
this concession as reasonable and correct. We further find that
this error was of constitutional dimension and that it was not
harmless beyond a reasonable doubt. We reverse.
Facts
As a result of a positive urinalysis, Appellant was charged
with a single specification of wrongful use of cocaine between
on or about February 19, 1999 and on or about February 22, 1999.
Testing of Appellant’s urine revealed the presence of the
cocaine metabolite, Benzoylecgonine, at a level of 480
nanograms.1 Appellant stipulated that the substance
1
The Department of Defense cut-off level for reporting a positive test for
this metabolite is 100 nanograms.
3
tested was her urine, that it had been properly handled, and
that the testing had accurately reported the presence of the
cocaine metabolite in her urine. Additionally, the Government
presented the testimony of an expert in forensic toxicology to
explain drug testing methodologies and the litigation packet
pertaining to the testing of Appellant’s urine sample.
Anticipating an innocent ingestion defense, the Government
presented evidence that Appellant had tested positive for
cocaine use during a partial unit urinalysis conducted in
January 1999, a month before the urinalysis leading to the
charged offense. Those test results indicated a metabolite
level of 162 nanograms. Appellant was given nonjudicial
punishment for this initial positive urinalysis. Concerning
this January urinalysis, Appellant told her commander, Captain
Brian Pierce, that she thought the result was due to some
prescription drugs. A check of Appellant’s medical records
failed to show that she was taking prescription drugs and
Appellant could not produce the prescriptions. Captain Pierce
testified that Appellant did not offer any other explanation for
the January 1999 positive test result, including innocent or
unknowing ingestion of a substance that might lead to a positive
urinalysis.
The Government also presented testimony from a friend and
member of Appellant’s unit, Sergeant Natalie Smith. Sergeant
4
Smith testified that after the January 1999 urinalysis,
Appellant claimed to have taken “some stuff” at home because her
back was sore and Appellant also commented that someone may have
been out to get her.
As anticipated by the Government, Appellant did defend
against the February 1999 charge by raising an innocent
ingestion defense. The defense initially surfaced during cross-
examination of the Government’s expert in forensic toxicology,
Dr. Catherine Okano. Dr. Okano testified that she could not
determine from the urinalysis whether the ingestion was willful
or innocent. She also acknowledged a study involving
“Healthinca” tea, made from coca leaves that resulted in a
positive test for cocaine at the Department of Defense cutoff 29
hours after the test subject drank the tea. The leaves in this
study were allegedly “decocainized.”
The defense presented expert testimony that lent credence
to Appellant’s defense. Dr. David Kuntz testified as an expert
in pharmacology, toxicology, and forensic testing of urine
samples. He related his personal experience with drug testing
of National Guard troops. During this testing, one soldier
tested positive for cocaine at a low level, under 300 nanograms
after drinking “Trimate” tea, a tea made from “decocainized”
coca leaves. The “decocainizing” process was only about 99%
effective, and Dr. Kuntz testified that urinalysis test results
5
after drinking the tea could be “probably 500, even up to a
thousand” nanograms.
Appellant took the stand in her own defense. She testified
that her mother would give her herbal teas as a teenager to
relieve Appellant’s severe menstrual cycles. Appellant stated
that in 1991 her mother sent “Trimate” tea to her in Germany to
assist with weight control. There were 40 regular looking tea
bags in the box. Appellant claimed that she drank some of the
tea on January 26, 1999, before she gave her sample for the
initial urinalysis, and she drank the tea again on February 21,
before the urinalysis leading to the court-martial charge.
Prior to presenting its case in rebuttal, the Government
informed the military judge that it had been unable to serve
Appellant’s mother with a subpoena or provide her travel
payments. The Government then informed the military judge that
it intended to call Special Agent (SA) Steven Mills of the
Criminal Investigation Command, who had attempted to serve the
subpoena on Appellant’s mother. Special Agent Mills would
testify that he had interviewed Appellant's mother, Mrs. Alan
Boyd, and that she told him she had not given her daughter any
teas. Special Agent Mills was also prepared to testify that
Mrs. Boyd told him that she had not visited South or Central
America.
6
The Government stated that it intended to offer this
testimony either under Military Rule of Evidence 803(2)
[hereinafter M.R.E.], as an excited utterance, or under M.R.E.
807, the residual hearsay rule. There ensued a discussion as to
whether the Government had made reasonable efforts to produce
Mrs. Boyd. Special Agent Mills was sworn and testified at a
session pursuant to Article 39(a), UCMJ, 10 U.S.C. §
839(a)(2002), about his efforts to interview Mr. and Mrs. Boyd,
as well as his attempt to serve subpoenas upon them.
During the Government's arguments on admissibility, the
military judge rejected the excited utterance theory. After
hearing arguments, the military judge stated that he was
"inclined not" to allow the Government to offer the testimony
under the residual exception. However, he believed that SA
Mills’ testimony was admissible to “determine the credibility of
the accused with regards to her statement when she testified
that her mother sent her the tea.”
When the trial resumed, the Government called SA Mills who
testified about his conversations with Mrs. Boyd. Special Agent
Mills testified that he went to the home of Appellant’s mother.
Although he did not formally question her, SA Mills did relate
to Mrs. Boyd that he wanted to ask her if she “had ever provided
her daughter any tea, if she had gone to South America or
imported any tea from South America.” Special Agent Mills
7
testified that in response “[s]he said no, she’d never given
[Appellant] any tea.” The military judge instructed the members
that they could only consider the testimony “for the limited
purpose to determine what impeachment value it has only
concerning the accused's testimony that her mother sent her the
tea. You may not consider it for the truth of Mrs. Boyd's
statement that she did not send tea to the accused.”
After SA Mills testified, Appellant resumed the stand. She
testified that her mother had recently undergone two surgeries
and had been rather emotional. Appellant also indicated that
she had not brought her mother to trial so her mother would not
have to go through the emotional ordeal and that she did not
believe her mother would have answered the agent’s question that
way.
Discussion
The Court of Criminal Appeals “assumed” that the military
judge erred by admitting the statements attributed to
Appellant’s mother.2 Nonetheless, that court found that the
evidence “had no substantial influence on the members’ findings”
and that “the evidence of appellant’s guilt properly before the
2
The Army Court of Criminal Appeals assumed that the military judge erred by
admitting hearsay evidence to impeach Appellant’s credibility and did not
address the substantive basis for that assumption. United States v. Hall,
No. ARMY 9901124, slip op. at 1-2 (A. Ct. Crim. App. Nov. 5, 2001).
8
court was so great as to make [the] admission of SA Mills’
testimony harmless beyond a reasonable doubt.” United States v.
Hall, No. ARMY 9901124, slip op. at 3 (A. Ct. Crim. App. Nov. 5,
2001). Appellant argues that the conclusions of the Army Court
of Criminal Appeals are incorrect and that, absent the
inadmissible hearsay, the members may well have held a
reasonable doubt about Appellant’s guilt.
Among the underpinnings of the hearsay rule is the fact
that admitting hearsay can deprive the party against whom the
evidence is offered the opportunity to test that evidence by
cross-examination. Because the declarant is absent, the
opponent cannot delve into matters such as memory, perception,
bias, or motive during cross-examination. See California v.
Green, 399 U.S. 149, 154 (1970). Additionally, the finder of
fact cannot observe the demeanor and reaction of the declarant
during cross-examination to assess what, if any, weight to give
to the testimony of the declarant. Id. This right to cross-
examination is at the core of the confrontation clause.
Despite this constitutional underpinning, not every
instance in which hearsay is improperly admitted will rise to
the level of a constitutional error. We have found errors in
admitting hearsay that amount to nonconstitutional violations
where an accused has had the opportunity to cross-examine the
declarant. See United States v. Pablo, 53 M.J. 356, 359
9
(C.A.A.F. 2000)(citing United States v. Pollard, 38 M.J. 41, 52
(C.M.A. 1993); United States v. Lyons, 36 M.J. 183, 188-89
(C.M.A. 1992))(counselor’s testimony about child’s statements
inadmissible, but error was nonconstitutional because accused
had the opportunity to cross-examine the child). In this case,
however, Appellant was deprived of the opportunity to cross-
examine the declarant.
The Government sought to subpoena Appellant’s mother and
father as Government witnesses after Appellant served notice of
her innocent ingestion defense. Although SA Mills made contact
with Appellant’s mother and father and did serve written
subpoenas, the Government failed to perfect those subpoenas by
tendering payment for travel. Consequently, Appellant’s mother
did not appear at trial as a Government witness.
When the words of Appellant’s mother were presented through
the testimony of SA Mills, Appellant made a timely objection,
contending that the proffered evidence was inadmissible hearsay.
Although the military judge found no applicable exception to the
hearsay rule, he admitted the evidence as impeachment by
contradiction, apparently finding that the evidence was not
being used for the truth of the matter asserted if used in that
manner. The military judge instructed the members consistent
with that determination. In light of the record and the
Government’s concession, we agree that ruling was wrong.
10
Inadmissible hearsay was improperly introduced over timely
objection.
Thereafter the Government pitted Appellant against her own
mother without affording Appellant the opportunity to test the
reliability or trustworthiness of her mother’s statements by
cross-examination. Appellant was denied her constitutional
right of confrontation through cross-examination.
As this error impacted Appellant’s constitutional rights,
we cannot affirm the findings unless we determine beyond a
reasonable doubt that the error did not contribute to the
findings of guilty. United States v. Walker, 57 M.J. 174, 178
(C.A.A.F. 2002). “Our focus is not on whether the members were
right in their findings but, rather, on whether the error had or
reasonably may have had an effect upon the members’ findings.”
United States v. Bins, 43 M.J. 79, 86 (C.A.A.F. 1995). The
Government bears the burden of establishing that constitutional
error is harmless beyond a reasonable doubt. Chapman v.
California, 386 U.S. 18, 24 (1967); United States v. Hall, 56
M.J. 432 (C.A.A.F. 2002); United States v. Lewis, 51 M.J. 376
(C.A.A.F. 1999); United States v. Mitchell, 51 M.J. 234
(C.A.A.F. 1999). We examine all the circumstances to determine
whether the error was harmless beyond a reasonable doubt.
Deleware v. Van Arsdall, 475 U.S. 673, 684 (1986)(“Whether such
an error is harmless in a particular case depends upon a host of
11
factors.”); United States v. Sidwell, 51 M.J. 262 (C.A.A.F.
1999); United States v. Jones, 49 M.J. 85 (C.A.A.F. 1998).
Whether a constitutional error in admitting evidence is harmless
beyond a reasonable doubt is a question of law that will be
reviewed de novo. Arizona v. Fulminante, 499 U.S. 279, 295-96
(1991); United States v. Grijalva, 55 M.J. 223 (C.A.A.F. 2001);
United States v. George, 52 M.J. 259 (C.A.A.F. 2000). After a
thorough review of the record and consideration of the briefs
and arguments of the parties to this appeal, we find that this
error was not harmless beyond a reasonable doubt.
We find that the statements attributed to Appellant’s
mother were inescapably considered for the truth of the matter
stated therein. To “contradict” very simply means “to assert
the contrary of.” Merriam-Webster Unabridged Dictionary (2003).
The members could not have found contradiction of Appellant’s
testimony without considering the hearsay as fact contrary to
Appellant’s in-court testimony. The manner in which this
evidence was put before the members would inevitably cause it to
be considered for the truth of the matter stated. The military
judge’s purported limiting instruction, as given, was impossible
to apply and could only confound the members. Thus the
instruction given did nothing to remedy or reduce the effect of
the error.
12
We note that the Government’s case was predicated on a
positive urinalysis and supporting expert testimony. We have
said that evidence of urinalysis tests, their results, and
expert testimony explaining them is sufficient to permit a fact-
finder to find beyond a reasonable doubt that an accused used
contraband drugs. United States v. Harper, 22 M.J. 157, 159
(C.M.A. 1986). The factfinder may draw a permissible inference
of wrongfulness from a circumstantial showing of drug use based
on such evidence. Id. This evidence is legally sufficient as
long as the defense evidence of innocent ingestion could be
reasonably disbelieved by the factfinder. United States v.
Ford, 23 M.J. 331, 334 (C.M.A. 1987); see also United States v.
Bond, 46 M.J. 86 (C.A.A.F. 1997). “Urinalysis” is not, however,
a synonym for “conviction.” There was present in this case
other evidence that sought to challenge the Government’s
inference of wrongfulness.
Appellant sought to raise a reasonable doubt about the
wrongfulness element of the offense through an innocent
ingestion defense. Appellant testified about a specific time
and source to explain the presence of the cocaine metabolite in
her urine. This defense was not based solely on Appellant’s
testimony about drinking the tea. The defense provided expert
testimony to lend credence to the defense. The expert had
specific experience with “Trimate” tea producing positive
13
urinalysis results for cocaine. In fact, even the Government’s
expert acknowledged a study pertaining to positive drug test
results following ingestion of certain teas.
It is against the evidentiary backdrop of this defense that
the statement attributed to Appellant’s mother was introduced.
Short of Appellant repudiating her own testimony, it is
difficult to imagine anything that could more decimate this
defense. The factual contradiction presented by this
inadmissible hearsay came from the mouth of Appellant’s own
mother. Any possible hope of raising a reasonable doubt
through an innocent ingestion defense was purposefully
dismantled by the Government’s hearsay evidence. What remained
of the innocent ingestion defense was further eviscerated by the
paradoxical instruction. Even though failing to properly secure
the live testimony of Mrs. Boyd, the Government brought
Appellant’s mother to the forefront in this trial and used
inadmissible hearsay in an effort to undermine any credibility
Appellant might have had. In essence, through inadmissible
hearsay, the visage of Appellant’s mother pointed an accusing
finger at her own daughter.
Given the nature of the factual contradiction, and in
particular, the fact that the source of the contradiction came
from the mouth of Appellant’s own mother, and given the
confounding nature of the military judge’s instruction, we
14
cannot determine beyond a reasonable doubt that the error did
not contribute to the finding of guilt.
Decision
The decision of the Army Court of Criminal Appeals is
reversed. The findings and sentence are set aside. The record
is returned to The Judge Advocate General of the Army. A
rehearing may be ordered.
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