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


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  •                          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 Oct. 30, 2006) (unpublished).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
    3
    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
    5
    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
    United States v. Harcrow, No. 07-0135/MC
    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
    United States v. Harcrow, No. 07-0135/MC
    DECISION
    The decision of the United States Navy-Marine Corps Court
    of Criminal Appeals is affirmed.
    18
    United States v. Harcrow, No. 07-0135/MC
    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
    United States v. Harcrow, No. 07-0135/MC
    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