United States v. Vietor

OPINION COOK, Judge: Contrary to his pleas, appellant stands convicted by a special court-martial consisting of a judge alone of the possession, sale and transfer of marihuana, in violation of Article 92, Uniform Code of Military Justice, 10 U.S.C. § 892. We granted review to consider appellant’s contentions that a search involved in the prosecution was invalid because his commanding officer was per se disqualified and that the evidence is insufficient to establish his guilt. A per se disqualification argument like appellant’s was rejected by the Court in United States v. Ezell, 6 M.J. 307 (C.M.A.1979). The argument as to the insufficiency of the evidence is predicated on alleged inadmissibility of a laboratory report, which was used to prove the identity of the contraband, and the allegedly improper denial of his request to produce the laboratory analyst as a witness. In United States v. Strangstalien, 7 M.J. 225 (C.M.A.1979), the Court held that a laboratory report used to prove the nature of a substance submitted for analysis could properly be admitted as a business entry. The opinion reaffirmed the earlier holdings of the Court in United States v. Miller, 23 U.S.C.M.A. 247, 49 C.M.R. 380 (1974), and United States v. Evans, 21 U.S.C.M.A. 579, 45 C.M.R. 353 (1972). See Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). Thus, we reject appellant’s argument that a laboratory report is inadmissible, notwithstanding it is made in the regular course of business and is properly authenticated. The record reflects that no one from the laboratory testified during the trial, although trial defense counsel objected to the report on the ground it was not properly authenticated. However, the evidence of record did establish that the contraband was sent by registered mail to the Camp Zama Criminal Investigation Laboratory. We have previously judicially noted that a “crime laboratory” is a place in which scientific methods and principles are applied in the testing and analysis of — 71 — various items in connection with the detection and prosecution of crimes. Cf. Webster’s Third New International Dictionary, 1963 Unabridged edition, page 1260. Obviously, the regular course of the laboratory’s business is to record the results of its analysis and make its report to those concerned. From the file number and tenor of the report involved here, we are satisfied that it was made in the regular course of the laboratory’s business. We conclude therefore that the exhibit falls within the business entry exception to the hearsay rule. United States v. Evans, supra at 581, 45 C.M.R. at 355. Additionally, the investigative agent who sent the evidence to the laboratory testified that he had received the report from the laboratory and it was similar to the ones he had received on many occasions. The testimony discloses a familiarity with the business of the particular laboratory and its function of submitting reports of the kind in question. Thus, we are satisfied the record of trial established that the document was properly authenticated as a business record within the meaning of paragraph 144c, Manual for Courts-Martial, United States, 1969 (Revised edition). See generally United States v. Wilson, 1 M.J. 325 (C.M.A.1976). Left for consideration is whether the military judge properly denied the defense request for the analyst. The propriety of action on a request for a defense witness is not normally involved with the question of whether there is sufficient evidence to sustain a conviction, but appellate defense counsel submit that the laboratory report was improperly admitted into evidence and absent the testimony of the analyst, there is no competent evidence as to the nature of the substance involved. While we have held that the laboratory report was properly admitted, an ancillary issue is raised as to the appellant’s right to require the production of the witness under the rule set forth in Strangstalien, Miller and Evans. The issue is raised in the following factual context. Trial defense counsel submitted a request on the afternoon of October 1, 1976, for the analyst as a defense witness. Trial began on October 4,1976. Trial counsel observed at trial that the convening authority had “not had an opportunity to view the request,” but he and defense counsel agreed that a recess to allow the convening authority to act on the request was not required. See United States v. Credit, 8 M.J. 190, 192 n. 1 (C.M.A.1980). Defense counsel asserted that the witness was necessary “for the purpose of cross-examination to determine exactly what procedures he used and by what method he determined that the substances here were marijuana.” He also acknowledged that he had not communicated with the witness because of unspecified restraints on communications, and he knew “of no case law requiring the defense to communicate with the chemist pri- or to court-martial” because the analyst’s competence was always an issue. Although counsel offered to talk to the requested witness telephonically if the court was recessed for that purpose, he continued to assert that prior communication with him was unnecessary. The military judge denied the request on the basis that “there’s no indication that the chemist is unqualified or that the procedures are not in fact correct.” In United States v. Evans, supra at 582, 45 C.M.R. at 356, the Court observed the following as to an accused’s right to summon the analyst: [W]e do not intimate that the accused must forgo the right to attack the report’s accuracy. If he wishes to do so,, he may have the analyst summoned and “attack the regularity of the test procedure and the competency of the . .. [person] who ran the test.... But these factors ... ‘go to the weight of the evidence rather than to (its) initial admissibility.’ ” Subsequently in United States v. Miller, supra 23 U.S.C.M.A. at 250, 49 C.M.R. at 383, the Court explained the import of the quoted language as follows: The point of the statement is that as the business entry is admissible without the in-person testimony of the declarant, the accused can assert his right to cross-ex72 animation by calling the declarant as a witness and, as provided in rule 806 of the proposed Federal Rules of Evidence, “examine him on the statement as if under cross-examination.” 56 F.R.D. at 329. The perimeters of an accused’s right to the production of the analyst has divided the Court. See my separate opinion in United States v. Strangstalien, supra 7 M.J. at 230. Appellant now asserts that the right is absolute and the normal conditions precedent to the Government’s obligation to produce a defense requested witness are inapplicable. We disagree. As the trial judge did not deny the request on the basis it was untimely, we will pass over any question as to timeliness to address the merits of the appellate argument. See my separate opinion in United States v. Stocker, 7 M.J. 373, 374 (C.M.A.1979). In United States v. Miller, supra 23 U.S.C.M.A. at 248, 49 C.M.R. at 381, the Court addressed the relationship between the admissibility of a laboratory report as “a business entry and the right of an accused, assured by the Sixth Amendment of the United States Constitution,” and specifically rejected the accused’s claim that such right precluded its admissibility. That holding was recently reaffirmed in United States v. Strangstalien, supra. Thus, the presence of the analyst is not required by the Sixth Amendment as a condition precedent for the admissibility of the laboratory report. However, the cited cases did emphasize an accused had a right to call the analyst under appropriate circumstances for the purpose of attacking his competency and test procedures. United States v. Strangstalien, supra 7 M.J. at 229; United States v. Miller, supra 23 U.S.C.M.A. at 250, 49 C.M.R. at 383; United States v. Evans, supra at 582, 45 C.M.R. at 356. As the defense’s purpose is to attack the work product of the witness which was used by the opposing party, cross-examination is permitted, notwithstanding it is the defense that insists upon the presence of the witness. Thus, the import of the cited cases is that the accused must be permitted to cross-examine the witness for the purpose of attacking the reliability of the laboratory report, not that the Sixth Amendment requires the analyst’s presence in all cases when requested by the accused irrespective of the circumstances involved in the case. Chief Judge Everett and I agree that the admission of a laboratory report into evidence does not give the accused an automatic right to the attendance of the person who performed the laboratory tests. Something more is required; that something is an indication of the need to examine the witness. We also agree that defense counsel in this case was remiss in not attempting to communicate, before trial, with the witness whom he proposed to examine. Absent such communication or information from other sources, defense counsel could not know, or suspect, that the desired examination would reveal any chink in the competence or credibility of the analyst, or cast doubt, in the slightest degree, on the reliability of the processes of the analysis or its results. However, we disagree as to what counsel actually did. As I read the record, I am convinced defense counsel believed the accused had an absolute right to the presence of the witness and insisted on that right, without proffer of any meaningful indication that examination of the analyst would adduce favorable evidence for the accused. I would, therefore, sustain the trial judge’s ruling on the ground that the defense had failed to satisfy the requirement that the testimony it sought was favorable to the defense case, and I would affirm the decision of the United States Navy Court of Military Review. Chief Judge Everett, however, is of the opinion that trial counsel and the military judge sought to impose upon defense counsel an impermissible burden of specificity of detail which so obscured the issue that he cannot conclude, beyond a reasonable doubt, that the absence of the witness was not prejudicial to the accused. At the same time, he regards defense counsel’s omissions as contributing to the uncertainty of the record. Believing that the Government should have the op — 73 — portunity to demonstrate, beyond a reasonable doubt, that the testimony by the witness would not have induced the trier of fact to render findings more favorable to the accused, he concludes a limited hearing is proper to determine whether the failure to produce the witness was not prejudicial to the accused. See United States v. Killebrew, 9 M.J. 154 (C.M.A.1980). To effect a disposition of the case, we vacate the decision of the United States Navy Court of Military Review, subject to reinstatement if required by the results of the further proceedings we specify. See United States v. Alexander, 2 M.J. 237 (C.M.A.1977); 3 M.J. 107 (C.M.A.1977). The record of trial is returned to the Judge Advocate General of the Navy for submission to an appropriate general court-martial authority. Alternatively, that authority may, if he determines in his discretion that further proceedings are impractical, dismiss the charges and forward an authenticated copy of his dismissal action to this Court, or, he will refer the record to a general court-martial for a limited hearing on the matter in issue. If a general court-martial is convened the military judge, under provisions of Article 39(a), UCMJ, 10 U.S.C. § 839(a), will conduct the limited hearing. At the conclusion of the proceedings, he will enter findings of fact and conclusions of law and terminate the hearing. The record and verbatim transcript of the hearing will be returned directly to this Court. United States v. Killebrew, supra 9 M.J. at 162.