United States v. Dollar ( 2011 )

UNITED STATES, Appellee
v.
Shannon L. DOLLAR, Airman
United States Air Force, Appellant
No. 11-0019
Crim. App. No. S31607
United States Court of Appeals for the Armed Forces
Decided February 25, 2011
PER CURIAM
Counsel
For Appellant: Lieutenant Colonel Gail E. Crawford and
Major Reggie D. Yager.
For Appellee: Gerald R. Bruce, Esq.
Military Judge: Maura T. McGowan
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Dollar, No. 11-0019/AF
PER CURIAM:
We consider whether the preadmission of two drug
testing reports violated the Confrontation Clause of the
Sixth Amendment.1 In light of United States v. Blazier, 69
M.J. 218 (C.A.A.F. 2010) (Blazier II), we find error under
the Confrontation Clause and remand to the United States
Air Force Court of Criminal Appeals (AFCCA) for
consideration of whether the error was harmless beyond a
reasonable doubt.
Pursuant to his pleas, Appellant was convicted of one
specification of adultery. Article 134, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. § 934 (2006). Contrary
to his pleas, he was convicted of four specifications of
wrongful use of cocaine. Article 112a, UCMJ, 10 U.S.C. §
912a (2006). The drug testing reports at issue ––
preadmitted over defense objection to prove the cocaine
charges –– each consists of a cover memorandum stating the
tests and results, a specimen custody document, chain of
1
We grant the following issue:
WHETHER THE AFCCA ERRED, AFTER FINDING
TESTIMONIAL EVIDENCE HAD BEEN IMPROPERLY
ADMITTED AT TRIAL, BY CONCLUDING APPELLANT’S
CONFRONTATION RIGHTS WERE NEVERTHELESS
SATISFIED BY THE TESTIMONY OF AN EXPERT
WITNESS, OR ALTERNATIVELY, THAT THE TRIAL
ERROR WAS HARMLESS BEYOND A REASONABLE
DOUBT.
2
United States v. Dollar, No. 11-0019/AF
custody documents, and machine-generated printouts of
machine-generated data. The declarants who made statements
on the cover memoranda did not testify. The first drug
test was conducted pursuant to random inspection, and the
second test was conducted as a follow-up when the first
test yielded positive results.
The AFCCA originally found that admission of the two
drug testing reports did not violate the Confrontation
Clause. United States v. Dollar, No. ACM S31607, 2010 CCA
LEXIS 141, at *18, 2010 WL 4069014, at *7 (A.F. Ct. Crim.
App. Mar. 22, 2010). After this Court announced its
decision in United States v. Blazier, 68 M.J. 439 (C.A.A.F.
2010) (Blazier I), the AFCCA issued a new opinion finding
that although the cover memoranda contained testimonial
hearsay, “the Confrontation Clause was satisfied by the
testimony of the government’s expert witness,” Dr. David A.
Turner. United States v. Dollar, No. ACM S31607 (f rev),
2010 CCA LEXIS 166, at *9, 2010 WL 4069031, at *3 (A.F. Ct.
Crim. App. July 21, 2010). The AFCCA went on to hold that
“even if [Dr. Turner’s] testimony does not satisfy the
Confrontation Clause, the introduction of testimonial
evidence was harmless beyond a reasonable doubt because
[Dr. Turner] provided his opinion based upon his
independent review of the [drug testing reports] without
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United States v. Dollar, No. 11-0019/AF
relying upon the cover memorand[a].” Id. at *10-*11, 2010
WL 4069031, at *4.
In light of Blazier II, the AFCCA’s decision was
erroneous for two reasons. First, it was error to admit
the cover memoranda through a surrogate witness. See
Blazier, 69 M.J. at 223-24. Second, in finding that any
error was harmless beyond a reasonable doubt, the AFCCA
incorrectly found that Dr. Turner did not rely upon the
cover memoranda in his testimony. See id. at 225
(“[N]either the rules of evidence nor the Confrontation
Clause permit an expert witness to act as a conduit for
repeating testimonial hearsay.”) (emphasis in original).
The record reveals that Dr. Turner frequently referred to
the cover memoranda, and at one point read verbatim from a
cover memorandum in response to being asked, “[W]hat can
you conclude from the results?”
In light of these errors, we reverse and remand for
reconsideration of the harmless error issue in light of
Blazier II.
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