United States v. Torrence

OPINION OF THE COURT ROSENWASSER, Chief Judge: A military judge sitting as a special court-martial convicted the accused, after pleas of not guilty, of four offenses: possessing cocaine aboard the Coast Guard Cutter GLACIER; wrongful appropriation of a government van at the San Diego Coast Guard Air Station; drunken driving, and reckless driving. The accused requested a sentence of bad conduct discharge with no other punishment, and the judge imposed the sentence asked for. Reviewing authorities below have approved the findings of guilty and sentence. Errors assigned question the sufficiency of the evidence to support all but the drunken driving conviction. We find that only one of the findings of guilty — the reckless driving conviction — must be set aside. With regard to the cocaine possession charge, appellant asserts that prejudicial error was committed in the reception of opinion testimony identifying the substance [805] as cocaine, and further that the evidence as a whole “failed to establish beyond a reasonable doubt that the substance possessed by the defendant was cocaine.” No sample had been offered in evidence, nor was there any chemical analysis. The Government relied instead on the testimony of petty officers Whipple and Toney to establish the offense. Both of these witnesses were recipients of grants of immunity; both were accomplices of the accused; accordingly we have considered their testimony with due caution. Whipple’s testimony was crucial on the question of the identity of the substance. The combined testimony of Whipple and Toney convincingly established that a portion of the questioned substance was delivered to the appellant. Petty Officer Whipple testified that on the day of the offense he went from the ship into Callao, Peru, for the purpose of purchasing cocaine, and that he there met a street dealer with whom some days before, he had had an appointment for the purchase of cocaine. For the full four days the ship was in the port of Callao, Whipple was “pretty well loaded” on what he said was cocaine; he had been “doing anywhere from three to ten grams a day.” On seven or eight previous occasions he had used what he said was cocaine. He described the feeling he got from sniffing cocaine. He bought two packets of the substance this day from this dealer. It was a white crystalline powder. He inhaled it before he bought it and found it “potent”. Asked what effect it had on him, he replied: The numbing effect, euphoric feeling, general sense of well being, mellowed out, high. Whipple paid $265 or $285 for one ounce of the substance, which he bought for himself, and he paid between $80 and $100 in Peruvian money for a smaller amount bought for Toney and the accused. He stated his opinion that the substance was cocaine. It was neither error of law nor abuse of discretion for the trial judge to allow the witness to state the opinion. The witness disclosed sufficient apparent familiarity with cocaine to give probative value to his opinion, and there was an adequate foundation in the record for his expression of opinion. See Ewing v. United States, 386 F.2d 10, (CA 9,1967) cert. den. 390 U.S. 991, 88 S.Ct. 1192, 19 L.Ed.2d 1299 (1968); United States v. Jackson, 49 C.M.R. 881 (A.F.C.M.R. 1975). At the trial, the defense counsel did not object to the question calling for the opinion, and properly so. An objection would go only to the weight of the opinion, not to its competence as evidence. It remained for the trial court first, and this court later, to give such credence to the opinion as the evidence and the record as a whole justified. Whipple’s opinion that the substance he bought in Callao on this day was cocaine, was reinforced by a number of circumstantial facts. These include: 1. the high price paid for the substance. Cf. United States v. Quesada, 512 F.2d 1043 (CA 5, 1975). 2. its purchase as cocaine. Cf. United States v. Gregorio, 497 F.2d 1253 (CA 4, 1974). 3. the physical appearance of the substance. Ibid. 4. the payment in cash. Ibid. 5. the lack of complaint on the part of purchasers. Ibid. 6. the secrecy and deviousness of the transaction. Ibid. 7. the sampling before purchase. Cf. United States v. Agueci, 310 F.2d 817 (CA 2, 1962). In addition, we take judicial notice of the fact that Peru is a prime source of cocaine. Finally, we note that the defense counsel at the trial, in his final argument, conceded that what Whipple bought in Peru was “good cocaine”. (He questioned whether the same was delivered to the accused.) Weighing the evidence and judging the credibility of the witnesses anew, this court concludes that the substance possessed by the appellant was, beyond a reasonable doubt, cocaine. The offense of reckless driving is declared by Article 111 UCMJ, 10 U.S.C. § [806] 911, in a single sentence which, at the same time, proscribes the offense of drunken driving. Allegedly this accused committed both offenses after he drove a government van through the main gate into the San Diego Air Station and attempted to park it on an April night in 1976. There is no question that he was drunk. The reckless driving specification alleged that he operated the van in a reckless manner by failing to negotiate a turn in attempting to park said van and thereby causing said van to strike and cause damage to a parked vehicle. We assume, without deciding, that the specification is legally sufficient, although all it tells us about the manner of operation of the vehicle is that the driver failed “to negotiate a turn in attempting to park.” The only evidence to support the allegation of recklessness was testimony that the accused drove the van through the gate at approximately 11 p. m.; that he was drunk; that he went over a speed bump at “faster than a normal rate of speed”; that “he chose to park it right there close to the gate”; that he “just misjudged the distance into the parking area into the stall right next to it”; and that his right bumper hit the left rear of another parked car, breaking the tail light. The owner of the parked car estimated his damage at $45. In the testimony given, nothing was said about “failing to negotiate a turn”. The existence of simple negligence is enough to sustain a finding of guilty of negligent homicide. United States v. Greenfeather, 13 U.S.C.M.A. 151, 32 C.M.R. 151 (1962). It is not enough for reckless driving. Reckless driving involves “driving with such a high degree of negligence that if death were caused, the accused would have committed involuntary manslaughter, at least.” Para. 190, MCM 1969. See also paragraph 198b of the Manual and compare with paragraph 213f(12). The evidence adduced here is not sufficient as a matter of law to prove the culpable negligence required to establish the offense of reckless driving. As for the offense of wrongful appropriation, we are satisfied that the evidence in the record amply supports the conclusion of the trial judge that the van had been taken and driven by the accused without authorization on other than government business. The finding of guilty of Charge II, specification 2, alleging reckless driving, is set aside and the said specification is dismissed. The findings of guilty of the remaining three offenses are affirmed. Upon reassessment the sentence of a bad conduct discharge is approved. Judges BRIDGMAN and BURGESS concur. Judge YOUNG did not participate in the decision in this case.