United States v. Harcrow , 2008 CAAF LEXIS 323 ( 2008 )

UNITED STATES, Appellee
v.
Josh R. HARCROW, Lance Corporal
U.S. Marine Corps, Appellant
No. 07-0135
Crim. App. No. 200401923
United States Court of Appeals for the Armed Forces
Argued November 6, 2007
Decided March 13, 2008
ERDMANN, J., delivered the opinion of the Court, in which BAKER,
J., joined. RYAN, J., filed a separate concurring opinion.
STUCKY, J., filed a separate opinion concurring in the result,
in which EFFRON, C.J., joined.
Counsel
For Appellant: Major Brian L. Jackson, USMC (argued); Major
Jeffrey S. Stephens, USMC (on brief).
For Appellee: Captain James W. Weirick, USMC (argued); Major
Brian K. Keller, USMC, and Captain Roger E. Mattioli, USMC (on
brief); Commander Paul C. LeBlanc, JAGC, USN, and Lieutenant
Jessica M. Hudson, JAGC, USN.
Military Judges: E. W. Loughran and Leslie K. Burnette
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Harcrow, No. 07-0135/MC
Judge ERDMANN delivered the opinion of the Court.
After entering mixed pleas, Lance Corporal Harcrow was
convicted of numerous drug related offenses, failing to obey a
lawful order, escaping custody, and unauthorized absence. He
was sentenced to confinement for six years, reduction to E-1,
and a bad-conduct discharge. The convening authority approved
the sentence and suspended all unexecuted confinement for a
period of twelve months from the date of his action.
On appeal, the United States Navy-Marine Corps Court of
Criminal Appeals dismissed the disobedience charge and one of
the drug specifications but affirmed the remainder of the
findings and the sentence. United States v. Harcrow, No. NMCCA
200401923, 2006 CCA LEXIS 285, at *26-*27, 2006 WL 4572853, at
*9-*10 (N-M. Ct. Crim. App. Oct. 30, 2006) (unpublished).
In the course of its review, the Court of Criminal Appeals
considered whether the military judge erred in admitting two
laboratory reports prepared by the Virginia Division of Forensic
Science. Harcrow, 2006 CCA LEXIS 285, at *15-*18, 2006 WL
4572853, at *5-*6. The laboratory reports reflected the
presence of heroin and cocaine residue on items seized from
Harcrow’s residence. Harcrow argued, inter alia, that the
laboratory reports constituted testimonial hearsay under
Crawford v. Washington, 541 U.S. 36 (2004), and their admission
violated his Sixth Amendment right to confrontation. Harcrow,
2
United States v. Harcrow, No. 07-0135/MC
2006 CCA LEXIS 285, at *16, 2006 WL 4572853, at *5. The lower
court found that the reports were nontestimonial hearsay and
admissible under Military Rule of Evidence (M.R.E.) 803(6) as
business records. Harcrow, 2006 CCA LEXIS 285, at *17, 2006 WL
4572853, at *6.
We granted review of this case to consider whether the
lower court erred by finding that the state forensic laboratory
reports were nontestimonial hearsay under Crawford. 65 M.J. 284(C.A.A.F. 2007). We hold that the laboratory reports in this
case were testimonial evidence. Applying a plain error
analysis, we conclude that the error was plain and obvious but
the admission of this evidence was harmless beyond a reasonable
doubt and therefore did not violate a substantial right. See
Article 59(a), Uniform Code of Military Justice (UCMJ), 10
U.S.C. § 859(a) (2000); United States v. Brewster, 61 M.J. 425,
432 (C.A.A.F. 2005). Accordingly, we affirm the findings of
guilty and the sentence as set out in the decision of the Court
of Criminal Appeals.
BACKGROUND
Harcrow was suspected of manufacturing methamphetamine at
his residence and was arrested by the Naval Criminal
Investigative Service in 2001. He was ordered into pretrial
confinement in February 2002, but escaped while being escorted
to the brig. On March 2, 2002, deputies from the Stafford
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United States v. Harcrow, No. 07-0135/MC
County Sheriff’s office in Virginia arrested Harcrow at his home
for desertion and other unrelated state charges. At the time of
his arrest, sheriff’s deputies seized drug paraphernalia from
Harcrow’s residence. The seized items were sent to the Virginia
Division of Forensic Science for analysis. That Division issued
two laboratory reports documenting the presence of cocaine and
heroin on several of these items.
At a general court-martial composed of a military judge
sitting alone, Harcrow entered mixed pleas to numerous drug-
related and other charges. Relevant to this appeal are the
specifications contained in Additional Charge II which arose
from the items seized in the search of Harcrow’s house during
his arrest and the subsequent laboratory reports. Contrary to
his pleas, Harcrow was found guilty of three of these
specifications: wrongful possession of cocaine, wrongful
possession of heroin, and wrongful use of cocaine. On appeal,
the Court of Criminal Appeals held that the specification for
wrongful possession of cocaine was multiplicious for findings
with wrongful use of cocaine. Harcrow, 2006 CCA LEXIS 285, at
*3-*4, 2006 WL 4572853, at *1. The lower court dismissed the
specification for wrongful possession of cocaine and affirmed
the findings of guilty as to wrongful use of cocaine and
wrongful possession of heroin. Harcrow, 2006 CCA LEXIS 285, at
4
United States v. Harcrow, No. 07-0135/MC
*3-*4, *26, 2006 WL 4572853, at *1, *9. This appeal involves
only these two specifications.
At trial, the prosecution offered both laboratory reports
into evidence during the testimony of an arresting officer.
With respect to the first report the military judge asked the
defense, “Have you seen this?” Defense counsel replied, “I have
no objections, your Honor.” In response to the proposed
admission of the second laboratory report, defense counsel again
stated, “No objections, your Honor.” Both laboratory reports
were admitted into evidence.
Before the Court of Criminal Appeals, Harcrow argued that
the laboratory reports were testimonial hearsay under Crawford,
which was issued by the Supreme Court after the court-martial
concluded and while the case was pending on direct review.
Citing this court’s decision in United States v. Magyari, 63
M.J. 123, 125 (C.A.A.F. 2006), the lower court concluded that
the laboratory reports were nontestimonial and admissible under
the business records hearsay exception, M.R.E. 803(6). Harcrow,
2006 CCA LEXIS 285, at *17, 2006 WL 4572853, at *6. We granted
review of this issue.
WAIVER
The facts surrounding admission of the laboratory reports
raise a threshold issue as to whether Harcrow waived the
opportunity to argue on appeal that the laboratory reports
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United States v. Harcrow, No. 07-0135/MC
constituted testimonial evidence under Crawford, or merely
forfeited the issue making this appeal a matter for plain error
review under M.R.E. 103(d). See United States v. Olano, 507
U.S. 725, 733-34 (1993) (noting that waiver, unlike forfeiture,
extinguishes error).1
The Supreme Court has addressed the difference between
waiver and forfeiture under Fed. R. Crim. P. 52(b) on which
M.R.E. 103(d) is partially based:
The first limitation on appellate authority under
Rule 52(b) is that there indeed be an “error.”
Deviation from a legal rule is “error” unless the rule
has been waived. . . .
Waiver is different from forfeiture. Whereas
forfeiture is the failure to make the timely assertion
of a right, waiver is the “intentional relinquishment
or abandonment of a known right.” Johnson v. Zerbst,
304 U.S. 458, 464 (1938). Whether a particular right
is waivable; whether the defendant must participate
personally in the waiver; whether certain procedures
are required for waiver; and whether the defendant’s
choice must be particularly informed or voluntary, all
depend on the right at stake. Mere forfeiture, as
opposed to waiver, does not extinguish an “error”
under Rule 52(b).
Olano, 507 U.S. at 732-33 (citations omitted); see also United
States v. Powell, 49 M.J. 460, 462-63 (C.A.A.F. 1998)
1
This court’s cases have frequently addressed “waiver” but
rarely in the context of extinguishing error and depriving the
court of an opportunity for review. Rather, this court more
often addresses “waiver” in the context of plain error review.
See, e.g., Rule for Court-Martial (R.C.M.) 920(f). As addressed
below, under the terminology used by the Supreme Court in Olano,
this more lenient version of waiver is labeled “forfeiture” and
it is the Olano terminology that we are using here.
6
United States v. Harcrow, No. 07-0135/MC
(discussing the relationship between Fed. R. Crim. P. 52(b) and
M.R.E. 103(d)); 1 Steven A. Saltzburg et al., Military Rules of
Evidence Manual § 103.02[7][c], at 1-37, 1-38 (6th ed. 2006)
(discussing the interplay of waiver, forfeiture and plain error
in military law and quoting Olano, 507 U.S. at 733-34).
In this case, the right at stake is the Sixth Amendment
right to confrontation. In addressing waiver of constitutional
rights, the Supreme Court long ago emphasized the same
definition of waiver quoted above from Olano, stating that there
is “a presumption against the waiver of constitutional rights,
see, e.g., Glasser v. United States, 315 U.S. 60, 70-71, and for
a waiver to be effective it must be clearly established that
there was ‘an intentional relinquishment or abandonment of a
known right or privilege.’” Brookhart v. Janis, 384 U.S. 1, 4
(1966) (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)).
Yet the Supreme Court has also acknowledged that “counsel may,
under some conditions, where the circumstances are not
‘exceptional, preclude the accused from asserting constitutional
claims.’” Id. at 7 (quoting Henry v. Mississippi, 379 U.S. 443,
451 (1965)). That is to say, in certain circumstances, defense
counsel may waive constitutional rights on behalf of their
clients.
In this context, a number of United States Circuit Courts
of Appeal have considered whether defense counsel may waive a
7
United States v. Harcrow, No. 07-0135/MC
client’s Sixth Amendment right of confrontation by stipulating
to the admission of evidence. Several circuits have held that
counsel may do so “so long as the defendant does not dissent
from his attorney’s decision, and so long as it can be said that
the attorney’s decision was a legitimate trial tactic or part of
a prudent trial strategy.” United States v. Cooper, 243 F.3d
411, 418 (7th Cir. 2001) (citation and quotation marks omitted);
Hawkins v. Hannigan, 185 F.3d 1146, 1155 (10th Cir. 1999);
United States v. Stephens, 609 F.2d 230, 232-33 (5th Cir. 1980);
see also United States v. Plitman, 194 F.3d 59, 64 (2d Cir.
1999) (holding that “counsel may waive a defendant’s Sixth
Amendment right to confrontation where the decision is one of
trial tactics or strategy that might be considered sound”).
Before this court Harcrow relies on Crawford and its
progeny to support his argument that the laboratory reports were
testimonial hearsay and the admission of those documents
violated the Sixth Amendment right to confrontation under
Crawford. At the time of the court-martial, admissibility of
out-of-court statements, such as the laboratory reports at
issue, was generally governed by Ohio v. Roberts, 448 U.S. 56(1980). Under Roberts, hearsay statements could be admitted if
they carried an adequate indicia of reliability. Id. at 66; see
also Magyari, 63 M.J. at 125. Under M.R.E. 803(6), forensic
laboratory reports were characterized as “normally admissible,”
8
United States v. Harcrow, No. 07-0135/MC
generally meeting the criteria for a business records exception
to the hearsay rule.
After the court-martial concluded and while this case was
on direct review, the Supreme Court issued Crawford, which
changed the analytical framework set out in Roberts for
determining the admissibility of testimonial hearsay statements.
As we stated in Magyari, Crawford “transformed the inquiry to
one hinging on whether the out-of-court statement comes within
the scope of the Sixth Amendment because it ‘bears testimony’
against an accused. The lynchpin of the Crawford decision . . .
is its distinction between testimonial and nontestimonial
hearsay. . . .” 63 M.J. at 125-26 (citations and quotation
marks omitted). In Whorton v. Bockting, 127 S. Ct. 1173, 1180,
1184 (2007), the Supreme Court held that Crawford announced “a
‘new rule’ of criminal procedure,” which under Griffith v.
Kentucky, 479 U.S. 314 (1987), is retroactive on direct appeal.
At the time of trial, admissibility of the laboratory
reports found support in M.R.E. 803(6) and Roberts. In that
context, counsel’s strategic decision may well have been
prudent. Crawford, however, opened the door for a colorable
assertion of the right to confrontation where it was not
previously available, and which under Bockting is now applicable
on direct review. In this legal and factual context, defense
counsel’s trial strategy could not be considered an “intentional
9
United States v. Harcrow, No. 07-0135/MC
“intentional relinquishment or abandonment” of Harcrow’s right
to confront the laboratory personnel under Crawford. Cf. United
States v. Stines, 313 F.3d 912, 917 (6th Cir. 2002) (reasoning
that there was no waiver because it “would have been impossible
for the defendants to have intentionally relinquished or
abandoned the Apprendi based claims considering Apprendi was
decided after they were sentenced”).
Accordingly, we conclude that there was no waiver in this
case. Rather defense counsel’s “no objection” statements are
appropriately treated as forfeitures, which require further
analysis under the plain error rule. M.R.E. 103(d).
ANALYSIS OF CRAWFORD UNDER THE PLAIN ERROR RULE
In order to prevail under a plain error analysis, Harcrow
must demonstrate that: “‘(1) there was an error; (2) it was
plain or obvious; and (3) the error materially prejudiced a
substantial right.’” Magyari, 63 M.J. at 125 (quoting United
States v. Tyndale, 56 M.J. 209, 217 (C.A.A.F. 2001)). Because
Crawford is retroactively applicable to this direct appeal, we
address the first prong by considering whether the laboratory
reports in this case constitute inadmissible hearsay under
Crawford, which is a question of law that we review de novo.
See United States v. Gardinier, 65 M.J. 60, 65 (C.A.A.F. 2007).
The Confrontation Clause of the Sixth Amendment states:
“In all criminal prosecutions, the accused shall enjoy the right
10
United States v. Harcrow, No. 07-0135/MC
. . . to be confronted with the witnesses against him . . . .”
U.S. Const. amend VI. Under Crawford, the Confrontation Clause
bars the admission of testimonial statements of a witness who
did not appear at trial unless the witness was unavailable to
testify and the defendant had a prior opportunity for cross-
examination. 541 U.S. at 53-54. As we have recognized in past
cases, Crawford “‘set forth various formulations of the core
class of testimonial statements’” without articulating a
comprehensive definition of “testimonial.” Gardinier, 65 M.J.
at 65 (quoting Davis v. Washington, 547 U.S. 813, 126 S. Ct.
2266, 2273 (2006)). These include: (1) ex parte in-court
testimony; (2) extrajudicial statements contained in formalized
trial materials; and (3) “‘statements that were made under
circumstances which would lead an objective witness reasonably
to believe that the statement would be available for use at a
later trial.’” United States v. Rankin, 64 M.J. 348, 351
(C.A.A.F. 2007) (quoting Crawford, 541 U.S. at 51-52). We do
not consider these formulations to constitute an exhaustive list
of testimonial statements, but we have recognized that they
sometimes serve as a useful baseline to begin analysis of the
testimonial quality of the statements in question. Gardinier,
65 M.J. at 65.
In this case, Harcrow contends that the laboratory reports
fall into the third category, arguing that the statements were
11
United States v. Harcrow, No. 07-0135/MC
made under circumstances which would lead an objective witness
reasonably to believe that the statements would be available for
use at a later trial. In Rankin, we identified several
nonexclusive factors that could be considered when
distinguishing between testimonial and nontestimonial hearsay
under these circumstances. These factors include: (1) whether
the statement was elicited by or made in response to law
enforcement or prosecutorial inquiry; (2) whether the statement
involved more than a routine and objective cataloging of
unambiguous factual matters; and (3) whether the primary purpose
for making, or eliciting, the statement was the production of
evidence with an eye toward trial. Rankin, 64 M.J. at 352. In
taking this approach, “our goal is an objective look at the
totality of the circumstances surrounding the statement to
determine if the statement was made or elicited to preserve past
facts for a criminal trial.” Gardinier, 65 M.J. at 65 (citing
Davis, 547 U.S. 813, 126 S. Ct. at 2273-74).
We have no difficulty reaching the conclusion that these
laboratory reports constitute testimonial statements. Here the
laboratory analysis was conducted at the behest of the sheriff’s
office after arresting Harcrow for suspected drug use. The
laboratory reports pertain to items seized from Harcrow’s home
at the time of the arrest and the reports expressly identify
Harcrow as a “suspect.”
12
United States v. Harcrow, No. 07-0135/MC
The facts of this case contrast notably with the facts
underlying our holding in Magyari, where we held that random
urinalysis entries in the Navy Drug Screening Laboratory
database were not testimonial. 63 M.J. at 126-27. In Magyari,
the laboratory technicians worked with batches of urine samples
that each contained about two hundred individual samples. Id.
at 126. The laboratory technicians could not equate a
particular sample with a particular person but rather assigned
identification numbers to the samples in a batch. Id. The vast
majority of samples would not test positive for illegal drugs
and not all positive results would end in prosecution. Id. The
laboratory personnel in Magyari had no reason to anticipate that
any particular sample would test positive and be used at trial
and therefore were not “engaged in a law enforcement function, a
search for evidence in anticipation of prosecution or trial.”
Id.
Our reasoning in Magyari that “[b]ecause the lab
technicians were merely cataloging the results of routine tests,
the technicians could not reasonably expect their data entries
would ‘bear testimony’ against [a]ppellant at his court-martial”
does not apply here. Id. at 127 (citation omitted). Here the
laboratory tests were specifically requested by law enforcement
and the information relayed on the laboratory reports pertained
to items seized during the arrest of an identified “suspect.”
13
United States v. Harcrow, No. 07-0135/MC
Indeed, in reaching our conclusion in Magyari, we rejected
the government’s argument that laboratory reports will always be
nontestimonial and noted that “lab results or other types of
routine records may become testimonial where a defendant is
already under investigation, and where the testing is initiated
by the prosecution to discover incriminating evidence.” Id. As
these circumstances are present in this case, we conclude that
the laboratory results are testimonial and subject to exclusion
under the Confrontation Clause.
Because we find error, the next question is whether the
error is plain or obvious. As we discussed above in relation to
waiver, prior to Crawford, laboratory reports of this nature
were generally admissible under M.R.E. 803(6) and Roberts.
Crawford, however, changed the analytical framework set out in
Roberts for determining the admissibility of testimonial hearsay
statements marking a clear shift away from the test that was
grounded in indicia of reliability. See supra pp. 8-9.
The Supreme Court has stated that “where the law at the
time of trial was settled and clearly contrary to the law at the
time of appeal -- it is enough that an error be ‘plain’ at the
time of appellate consideration.” See Johnson v. United States,
520 U.S. 461, 468 (1997) (applying this standard to plain error
analysis under Fed. R. Crim. P. 52(b)). In undertaking our
plain error analysis in this case, we therefore consider whether
14
United States v. Harcrow, No. 07-0135/MC
the error is obvious at the time of appeal, not whether it was
obvious at the time of the court-martial.
We believe our decision in Magyari compels the conclusion
that plain or obvious error has been established. As discussed
above, in Magyari we rejected the government’s contention that
laboratory reports are inherently nontestimonial just because
they are business and public records. 63 M.J. at 127. We
recognized that this type of record may be prepared at the
“behest of law enforcement in anticipation of a prosecution,
which may make the reports testimonial.” Id. And we made clear
that laboratory reports could be testimonial “where a defendant
is already under investigation, and where the testing is
initiated by the prosecution to discover incriminating
evidence.” Id. These circumstances have been squarely
presented here. Accordingly, under Magyari this error was plain
and obvious.2
2
Courts in several other jurisdictions have also held that
laboratory reports showing the presence of drugs on items seized
from a defendant at the time of his or her arrest were
testimonial. See, e.g., Hinojos-Mendoza v. People, 169 P.3d
662, 666-67 (Colo. 2007); Thomas v. United States, 914 A.2d 1,
12-14 (D.C. 2006); State v. Laturner, 163 P.3d 367, 375-76 (Kan.
Ct. App. 2007); State v. Caulfield, 722 N.W.2d 304, 308-09
(Minn. 2006); State v. March, 216 S.W.3d 663, 665-66 (Mo. 2007);
State v. Miller, 144 P.3d 1052, 1058 (Or. Ct. App. 2006). But
see, e.g., Pruitt v. State, 954 So. 2d 611, 617 (Ala. Crim. App.
2006); Commonwealth v. Verde, 827 N.E.2d 701, 704-06 (Mass.
2005). In light of Magyari’s clear direction on this issue,
holdings such as those from the Alabama and Massachusetts state
courts do not impact our plain error determination.
15
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Having found plain and obvious error, we turn to prejudice
and consider whether the admission of the laboratory reports
materially prejudiced a substantial right. Because this case
involves constitutional error, the question is whether the
Government has shown that the error was harmless beyond a
reasonable doubt. Brewster, 61 M.J. at 432. We determine that
the Government has met its burden.
During questioning, Harcrow admitted to using cocaine
earlier on the night of his arrest. He also admitted that a
jeweler’s bag in his home contained cocaine and a hypodermic
syringe contained heroin. It was these admissions, rather than
the laboratory reports, which constituted the primary evidence
against Harcrow on the drug-related charges.
Harcrow’s admissions, however, can only be used as evidence
if they are independently corroborated. M.R.E. 304(g).3 The
standard for corroboration is “very low.” United States v.
Seay, 60 M.J. 73, 80 (C.A.A.F. 2004). “‘Corroborating evidence
must raise only an inference of truth as to the essential facts
admitted.’” Id. at 79 (quoting United States v. Cottrill, 45
M.J. 485, 489 (C.A.A.F. 1997)). “This inference may be drawn
3
Under M.R.E. 304(g), “[a]n 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 introduced that
corroborates the essential facts admitted to justify
sufficiently an inference of their truth.”
16
United States v. Harcrow, No. 07-0135/MC
from a quantum of corroborating evidence that this Court has
described as very slight.” United States v. Arnold, 61 M.J.
254, 257 (C.A.A.F. 2005) (citation and quotation marks omitted).
The laboratory reports served as corroborating evidence, but the
Government argues that there was sufficient evidence independent
of the laboratory reports to corroborate Harcrow’s admissions.
We agree.
One of the arresting deputies, relying on his experience
and a six-month training course at a criminal justice academy,
testified that Harcrow appeared under the influence of an
illegal narcotic at the time of the arrest. The other arresting
deputy, also relying on his training and experience, testified
that he observed cocaine residue on a metal spoon and heroin in
a syringe. This testimony from the law enforcement officers
provided sufficient corroboration of Harcrow’s admissions.
Furthermore, Harcrow has not demonstrated what, if
anything, he would have done at trial if he had been given the
opportunity to confront laboratory personnel about their
reports. For these reasons, the Government has met its burden
of demonstrating that any error was harmless beyond a reasonable
doubt and Harcrow has failed to demonstrate that such an error
materially prejudiced a substantial right.
17
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DECISION
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is affirmed.
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RYAN, Judge (concurring):
I concur with the majority opinion, but write separately on
two small points.
First, Appellant is entitled to avail himself of the plain
error doctrine here only because Crawford v. Washington, 541
U.S. 36 (2004), announced a “new rule” while his case was on
direct review -- not because the military judge in this case did
anything wrong. See Whorton v. Bockting, 127 S. Ct. 1173, 1180-
81 (2007) (describing Crawford as creating a new, non-watershed,
rule); United States v. Ziskind, 491 F.3d 10, 14 (1st Cir. 2007)
(applying the plain error standard on direct review to a case
tried before Crawford was decided); Thomas v. United States, 914
A.2d 1, 20 (D.C. 2006) (applying Crawford retroactively using
the plain error standard to a case on direct review).
This case illustrates the curious outcome flowing from the
confluence of the retroactivity rule and the plain error
doctrine. See Griffith v. Kentucky, 479 U.S. 314, 322-23
(1987); United States v. Olano, 507 U.S. 725, 733-34 (1993).
Such a posture requires us to accept, and act upon, three
fictions: (1) that Crawford had been decided at the time of
Appellant’s trial; (2) that, had Appellant’s trial counsel known
about Crawford, he would not have forfeited his objection to the
lab reports; and (3) that the military judge would have, despite
United States v. Harcrow, No. 07-0135/MC
Crawford, erroneously allowed the reports to be admitted.1 See
United States v. Harcrow, __ M.J. ___ (6-7) (C.A.A.F. 2008). It
is apparent that it is at least a misnomer to suggest that the
military judge committed error at trial here. And it remains
the case that a military judge is not required to probe,
inquire, or otherwise do anything when there is a lack of
objection to evidence that might be objected to. See, e.g.,
Huddleston v. United States, 485 U.S. 681, 690 n.7 (1988)
(noting that it is not the duty of the trial judge to sua sponte
prevent the admission of objectionable evidence).
Second, evidence that qualifies under Military Rule of
Evidence 803(6)’s business record exception is nontestimonial
evidence. Crawford, 541 U.S. at 56 (noting that business
records “by their nature [are] not testimonial”); see also id.
at 76 (Rehnquist, C.J., joined by O’Connor, J., concurring in
the judgment) (noting with approval the majority’s exclusion of
business records from the definition of testimonial evidence);
1
Of course, Crawford had not been decided. Further, I doubt
anyone seriously believes that the defense counsel would have
preferred having the laboratory technicians “testify” and be
subject to cross-examination in this case: Where there is no
suggestion that there was any laboratory error, any reasonable
attorney would presumably prefer an anemic paper exhibit to live
testimony and the exhibit. And I further question whether the
military judge, faced with a Crawford objection to the
laboratory reports, would have overruled it, or, if he had
granted it, that the Government would not have requested a
recess and brought the requisite witnesses to testify.
2
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United States v. Magyari, 63 M.J. 123, 127 (C.A.A.F. 2006)
(concluding that laboratory evidence was admissible because it
was not made in anticipation of litigation and was a “record of
‘regularly conducted’ activity”); United States v. Washington,
498 F.3d 225, 229 (4th Cir. 2007) (admitting laboratory reports
over a Confrontation Clause challenge); United States v. Ellis,
460 F.3d 920, 924 (7th Cir. 2006) (recognizing that statements
embodied in business records are nontestimonial); United States
v. Baker, 458 F.3d 513, 519 (6th Cir. 2006) (holding that
“business records are nontestimonial and therefore do not
implicate the Confrontation Clause concerns of Crawford”);
United States v. Hagege, 437 F.3d 943, 958 (9th Cir. 2006)
(holding “[b]usiness records fall outside the core class of
‘testimonial evidence,’ and thus are not subject to the absolute
requirement of confrontation established in Crawford”).
But evidence is not admissible as a business record if it
is made in anticipation of litigation. Compare United States v.
Feliz, 467 F.3d 227, 236 (2d Cir. 2006) (holding that an autopsy
report was admissible as a business record because it was not
made in anticipation of litigation), and United States v.
Bahena-Cardenas, 411 F.3d 1067, 1075 (9th Cir. 2005) (holding
“that [a] warrant of deportation is nontestimonial because it
was not made in anticipation of litigation, and because it is
simply a routine, objective, cataloging of an unambiguous
3
United States v. Harcrow, No. 07-0135/MC
factual matter”), with Palmer v. Hoffman, 318 U.S. 109, 113
(1943) (holding that an accident report prepared by a railroad
did not qualify as business record because it was prepared in
anticipation of litigation); United States v. Blackburn, 992
F.2d 666, 670 (7th Cir. 1993) (holding that a report was
inadmissible because it “was not kept in the course of a
regularly conducted business activity, but rather was specially
prepared at the behest of the FBI and with the knowledge that
any information it supplied would be used in an ongoing criminal
investigation”), and United States v. Stone, 604 F.2d 922, 925-
26 (5th Cir. 1979) (holding that an affidavit prepared by a
United States Treasury Department official was inadmissible
because it was prepared in anticipation of litigation).
In this case, the laboratory reports were made by
laboratory technicians who almost certainly knew: (1) the
reports were being prepared at the request of law enforcement;
(2) the evidence was gathered during an arrest; and (3) the
reports were being generated in anticipation of a specific
prosecution. See Harcrow, ___ M.J. ___ (12-13). On these facts
there remains a question in my mind as to whether the reports
were admissible under the business record exception to the
hearsay rule either before or after Crawford.
4
United States v. Harcrow, No. 07-0135/MC
STUCKY, Judge, with whom EFFRON, Chief Judge, joins
(concurring in the result):
I concur in the result, but write separately to emphasize
that any error in the admission of the laboratory reports, if
error at all, cannot be plain error because the state of the law
at issue here was (until today) thoroughly unsettled.
This case was tried in 2002, under the Confrontation Clause
regime of Ohio v. Roberts, 448 U.S. 56 (1980), where the sine
qua non was whether the out-of-court statement bore “adequate
indicia of reliability -- i.e., falls within a ‘firmly rooted
hearsay exception’ or bears ‘particularized guarantees of
trustworthiness.’” Crawford v. Washington, 541 U.S. 36, 42
(2004) (quoting Roberts, 448 U.S. at 66). Laboratory reports
were normally admissible as business records under Military Rule
of Evidence (M.R.E.) 803(6), a firmly rooted hearsay exception.
See United States v. Rankin, 64 M.J. 348, 353 (C.A.A.F. 2007);
United States v. Magyari, 63 M.J. 123, 128 (C.A.A.F. 2006).
While direct appeal in this case was underway, the Supreme
Court overruled Ohio v. Roberts and established a new rule in
which the “testimonial” or “nontestimonial” nature of the out-
of-court statement determined whether the Confrontation Clause
affected its admissibility under the Sixth Amendment. Crawford,
541 U.S. at 51. While the Supreme Court later held Crawford not
to apply retroactively to judgments in criminal cases that were
United States v. Harcrow, No. 07-0135/MC
already final on direct review, see Whorton v. Bockting, 127 S.
Ct. 1173, 1181-84 (2007), the holding in Griffith v. Kentucky,
479 U.S. 314, 322-23 (1987), requires its application to cases,
like this one, that were on direct appeal at the time of the
decision.
Error is “plain” when it is “obvious” or “clear under
current law.” United States v. Olano, 507 U.S. 725, 734 (1993).
Johnson v. United States, 520 U.S. 461 (1997), held that “plain
error” is to be judged as of the time of appellate
consideration, taking into account changes in the law since the
trial. Id. at 467-68.
This case is not Johnson, however. In Johnson, the law at
the time of trial was clear, but was later changed by an opinion
of the Supreme Court such that it was once again clear, but
contrary, at the time of appellate consideration. Id. at 467-
68. Here, the law was clear at the time of trial -- Ohio v.
Roberts -- but the Supreme Court’s decision in Crawford has
thrown it into doubt rather than either confirming it or clearly
changing it.
Where the law was unsettled at the time of trial and
remained unclear at the time of appeal, a decision by a trial
court cannot be plain error. 28 James Wm. Moore et al., Moore’s
Federal Practice, § 652.04[3], at 652-22 n.34 (3d ed. 2007)
2
United States v. Harcrow, No. 07-0135/MC
(citing cases from eleven of the twelve federal circuits). It
would seem to follow, then, that where the court correctly
applied existing law at trial, but the law subsequently became
unsettled and was unsettled when the case was on appeal, there
could be no plain error.
That the law on the admissibility of laboratory reports was
thrown into flux by Crawford is undeniable. Compare United
States v. Ellis, 460 F.3d 920, 923-27 (7th Cir. 2006), People v.
Geier, 161 P.3d 104, 133-40 (Cal. 2007), State v. O’Maley, 932
A.2d 1, 9-15 (N.H. 2007), State v. Forte, 629 S.E.2d 137, 142-45
(N.C. 2006), Commonwealth v. Verde, 827 N.E.2d 701, 705-06
(Mass. 2005), State v. Dedman, 2004 NMSC 37, ¶¶ 24-32, 136 N.M.
561, 102 P.3d 628, People v. Meekins, 828 N.Y.S.2d 83, 85 (N.Y.
App. Div. 2006), Pruitt v. State, 954 So. 2d 611, 615-17 (Ala.
Crim. App. 2006) (all holding lab reports are nontestimonial),
with Hinojos-Mendoza v. People, 169 P.3d 662, 667 (Colo. 2007),
State v. March, 216 S.W.3d 663, 665-67 (Mo. 2007), Thomas v.
United States, 914 A.2d 1, 5 (D.C. 2006), cert. denied, 128 S.
Ct. 241 (2007), City of Las Vegas v. Walsh, 124 P.3d 203, 208
(Nev. 2005), State v. Laturner, 163 P.3d 367, 376 (Kan. Ct. App.
2007), State v. Moss, 160 P.3d 1143, 1148-49 (Ariz. Ct. App.
2007), State v. Smith, 2006-Ohio-1661, ¶ 16 (Ohio Ct. App.
2006), Johnson v. State, 929 So. 2d 4, 7 (Fla. Dist. Ct. App.
3
United States v. Harcrow, No. 07-0135/MC
2005) (all holding lab reports are testimonial). A certiorari
petition raising the question is presently before the Supreme
Court. Commonwealth v. Melendez-Diaz, 870 N.E.2d 676 (Mass. Ct.
App. 2007), petition for cert. filed, 76 U.S.L.W. 3255 (U.S.
Oct. 26, 2007) (No. 07-591).
The majority relies on dictum in Magyari as the basis for
concluding that the error was plain. I do not find that dictum
persuasive authority for such a holding. As neither the Supreme
Court nor this Court (until today) had resolved the
admissibility of such criminal laboratory reports under
Crawford, and other courts are split on the issue, there can be
no plain error. See United States v. Springer, 165 F. App’x
709, 715 (11th Cir. 2006).
4