

   
   
   
   U.S. v. Roberts



UNITED STATES, Appellee
v.
Kevin M. ROBERTS
Boatswain's Mate First Class
U. S. Navy, Appellant
 
No. 98-1039
Crim. App. No. 97-0767
 
UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
Argued October 19, 1999
Decided March 14, 2000
 

COX, S.J., delivered the opinion of the
Court in which CRAWFORD, C.J., GIERKE, and EFFRON, JJ. joined. SULLIVAN,
J., filed an opinion concurring in part and dissenting in part.


Counsel
For Appellant: Lieutenant Dale O. Harris,
USNR (argued).
For Appellee: Lieutenant James E. Grimes,
USNR (argued); Colonel Kevin M. Sandkuhler, USMC, and Commander
Eugene E. Irvin, USN (on brief).
Military Judge: Peter J. Straub
 
 


THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE PUBLICATION.


Senior Judge COX delivered the opinion of the
Court.
Appellant was convicted of one specification
of unauthorized absence and one specification of wrongful use of methamphetamine.1
The granted issue concerns the correctness of the military judges decision
to receive, on the merits, evidence that appellant had tested positive
for drugs in a previous urinalysis, a test conducted some 6 months before
the instant court-martial. 51 MJ 319. We are satisfied that, even if error
occurred, appellant could not have been prejudiced under the circumstances,
Art. 59(a), Uniform Code of Military Justice, 10 USC § 859(a), and
we affirm.
Appellant was a boatswains mate first class
(E-6) with almost 18 years of naval service. The unauthorized-absence charge
arose in this manner: Appellant reported for duty at his new duty station
during the first week of October 1996. He was given leave until October
16, 1996, in order to take care of personal business. He overstayed his
leave until November 7, 1996, when members of his new organization located
him at his off-post quarters, apprehended him, and returned him to the
Naval Station. Appellant pleaded guilty to this unauthorized absence (UA).
The wrongful-use-of-methamphetamine charge
arose in this manner: Upon his return from UA status, appellant was ordered
to provide a supervised urine specimen for the purpose of drug-evaluation,
apparently as a matter of routine military inspection.2
The completed urinalysis revealed that appellant had ingested methamphetamine
in sufficient quantities to warrant a positive result.
Appellant pleaded not guilty to the drug charge,
contending that his ingestion of the drugs was unknowing and innocent.
The defense theory was that an unknown person ("a guy named Jason") had
slipped appellant drugs along with some food at a party at appellants
house 2 days before he was apprehended. Appellant claimed that he noticed
the effects of the drugs almost immediately. He could not, however, meaningfully
identify anyone who attended the alleged party, and he provided no corroboration
of either the party or the alleged drugging event. Further, appellant did
not report being involuntarily drugged to the officials who apprehended
him. The court members convicted appellant of the charge.
The evidence of appellants prior positive
urinalysis, the subject of this appeal, arose in the following manner:
Some 6 months before appellants court-martial, while appellant was assigned
to another unit, he allegedly tested positive during a urinalysis.3
At the nonjudicial punishment (NJP) that resulted, appellant claimed that
someone had put drugs in his food. Although the officer offering NJP imposed
punishment, the admiral who reviewed the punishment set it aside, apparently
on the basis of a break in chain of custody. Accordingly, at the instant
court-martial, the Government offered not the NJP itself, which had been
set aside, but it offered proof of the fact of the positive urinalysis4
and of appellants assertion that someone had put the drugs in his food
on that occasion. See Dowling v. United States, 493 U.S.
342, 349 (1990) ("an acquittal in a criminal case does not preclude the
Government from relitigating an issue when it is presented in a subsequent
action governed by a lower standard of proof"). See also
United States v. Griggs, 51 MJ 418, 419 (1999).
The Government offered evidence of the prior
urinalysis results under Mil. R. Evid. 404(b), Manual for Courts-Martial,
United States ("[o]ther crimes, wrongs, or acts"), on the theory that it
proved knowledge and absence of mistake. The Government was prepared to
prove the results, in rebuttal, by extrinsic evidence and cross-examination
of appellant. Regarding appellants prior claim that someone had put drugs
in his food, the Government sought to elicit that evidence from appellant
himself during cross-examination under Mil. R. Evid. 608(b) (use of specific
instances of conduct of witness for the purpose of attacking credibility).
The Governments theory was that appellants prior claim of being unknowingly
drugged impeached his present claim of innocent ingestion.
After appellant testified during the defense
case-in-chief (wherein he asserted his claim of innocent ingestion), the
military judge ruled that appellants prior assertion of innocent ingestion
regarding the dismissed NJP was admissible as impeachment under Mil. R.
Evid. 608(b). In addition, the judge ruled that, under Mil. R. Evid. 404(b),
both the prior assertion and the prior urinalysis were admissible as "a
common scheme or plan in that the defendant has asserted that this was
an innocent ingestion--a remarkably similar circumstance, the assertion
is he used the same story is the basis for that [sic]."
On the ensuing cross-examination by the prosecution,
appellant admitted that, 6 months earlier, he had tested positive for cocaine
and that he had asserted at the time that someone "put something" in his
food. The Government did not, therefore, endeavor to prove either of these
matters by extrinsic evidence.
In United States v. Graham, 50 MJ 56
(1999), we were recently confronted with a somewhat similar urinalysis
case. Graham, on direct examination, testified, "[T]here is no way I would
knowingly use marijuana," and he testified that, upon being informed that
he had tested positive, he was "shocked, upset, and flabbergasted." 50
MJ at 57. The Government, thereafter, without further showing, was permitted
to introduce evidence, as rebuttal, that Graham had tested positive in
a urinalysis conducted almost 4 years earlier. In a divided opinion, the
majority of this Court concluded that the Governments mere assertion that
innocent ingestion cannot occur twice was insufficient to prove or disprove
the "likelihood" of such events. Further, the majority could discern no
logical basis for the implication that a person who had been set up previously
would not be "shocked, upset, and flabbergasted" upon learning that he
had been set up again. Id. at 59. Accordingly, the majority ruled
that the evidence, as proffered, lacked probativeness and that the military
judge erred in receiving it. Mil. R. Evid. 401-03. Id. at 60.
Passing over superficial distinctions, both
Graham and the instant case are variations on a lightening-doesnt-strike-twice
theory. In both cases, essentially, it was argued that the fact
of a first claim of innocent ingestion disproves the innocence of
a subsequent claim. Technically, however, there may be some differences
between these cases in that, here, relevance was not predicated on a theory
of rebuttal of the accuseds trial assertions, as it was in Graham.
The remaining circumstances of this case, however,
make resolution of these distinctions unnecessary and, hence, advisory.
Indeed, the evidence in this case is such that, even if the cross-examination
of appellant was improper, he could not have been prejudiced under any
standard.
In addition to the urinalysis results relating
to the instant charges, the court members had before them the evidence
surrounding appellants apprehension. Succinctly put, after numerous prior
attempts to locate appellant at his off-base quarters, a party including
appellants division officer and leading chief petty officer (LCPO) was
dispatched to his quarters to try again to find him. Initially, appellant
did not answer the door or otherwise respond to the loud and persistent
calling and pounding by the party. Eventually, he came to the door, however.
He was described as looking "[s]hocked," "disheveled," and like an "emotional
wreck." He twice refused to return to base with the party.
On board the Naval Station later that day,
appellant admitted to his LCPO that "he did some coke."5
Several weeks later, after being fully advised of his rights and waiving
them, appellant made a written statement in his own hand. Therein he described
falling into a depression after learning of his wifes infidelity. He reported
"losing track of time and caring little of my own well being." He denied
"abus[ing]" alcohol and did not "recollect using the drug." He did "recall
an acquaintance saying, Here, this will cheer you up." Appellant "only
assumed it was something else (cocaine)." [Sic] He stated, "When
asked by my Chief had I ingested anything illegal[,] I admitted that I
had. But was unclear of when."
The foregoing two admissions were received
without objection at trial; no issue as to their admissibility or propriety
was taken before the Court of Criminal Appeals; and no such issue has been
raised here.
In addition, appellants trial testimony was
impeached by his acknowledgment of having been convicted of 3 specifications
of making false official statements, by a general court-martial convened
about 7 years earlier.
Under all these circumstances, we are satisfied
that the military judges receipt of the challenged evidence was harmless.
The decision of the United States Navy-Marine
Corps Court of Criminal Appeals is affirmed.
FOOTNOTES:
1 Violations of Articles
86 and 112a, Uniform Code of Military Justice, 10 USC §§ 886
and 912a. Appellant was sentenced to partial forfeitures for 2 months,
reduction to E-l, confinement for 2 months, and a bad-conduct discharge.
The convening authority approved the sentence, and the Court of Criminal
Appeals affirmed in an unpublished opinion.
2
There is no issue before us concerning the legitimacy of this inspection
or the admissibility of the results of the evaluation.
3
The facts and circumstances giving rise to the prior urinalysis are not
of record. Appellant did not, however, protest that it occurred under circumstances
amounting to an unlawful search and seizure.
4
The Government was prepared to prove that the supposed break in the chain
of custody did not, in fact, occur.
5
Whether this statement was preceded by warnings was not developed in the
record. Further, we note that appellants LCPO had less time in service
than appellant, and the circumstances surrounding the admission were not
obviously inquisitorial. Cf. United States v. Duga, 10 MJ
206 (CMA 1981). Hence, there is no issue of plain error.


SULLIVAN, Judge (concurring in part and dissenting
in part):
I completely agree with my learned Brother's
opinion except for the part where he attempts to distinguish this case
from United States v. Graham, 50 MJ 56 (1999). Save some damaging
admissions by Roberts prior to trial, this case is, in fact, very similar
to Graham. Contrary to the majority's implication, the existence
of the prior use of the innocent-ingestion defense did come out in a rebuttal
mode. The evidence at issue surfaced during the cross-examination of Roberts
after he raised the innocent-ingestion defense to the present charge. Confronting
the assertions of a criminal defendant with impeaching facts from his past
is perhaps the most personal and direct form of rebuttal. In this respect,
my dissenting opinion from Graham does appear to me to be relevant.
Nevertheless, I can also join in the affirmance of this case based on other
circumstances outlined by the majority. Accordingly, I am willing to join
their affirmance of this case on the theory that if this evidence
was error, it was harmless in this case.

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