              UNITED STATES NAVY-MARINE CORPS
                 COURT OF CRIMINAL APPEALS
                      WASHINGTON, D.C.
                                 Before
             R.Q. WARD, J.R. MCFARLANE, K.M. MCDONALD
                        Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                     RICHARD B. FREEMAN III
               CRYPTOLOGIC TECHNICIAN (TECHNICAL)
                   SECOND CLASS (E-5), U.S. NAVY

                           NMCCA 201300102
                       GENERAL COURT-MARTIAL


Sentence Adjudged: 3 October 2012.
Military Judge: CDR Colleen Glaser-Allen, JAGC, USN.
Convening Authority: Commander, Navy Region Mid-Atlantic,
Norfolk, VA.
Staff Judge Advocate's Recommendation: LCDR S.J. Gawronski,
JAGC, USN.
For Appellant: Capt Jason Wareham, USMC.
For Appellee: Maj Paul Ervasti, USMC; LT Ann Dingle, JAGC,
USN.

                             30 April 2014

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                     OPINION OF THE COURT
     ---------------------------------------------------

THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

McFARLANE, Judge:

     A panel of members with enlisted representation sitting as
a general court-martial convicted the appellant, contrary to his
pleas, of operation of a motor vehicle with a blood alcohol
content (“BAC”) greater than .08, reckless operation of a
vehicle, and two specifications of negligent homicide, in
violation of Articles 111 and 134, Uniform Code of Military
Justice, 10 U.S.C. §§ 811 and 934. 1 The members sentenced the
appellant to six years’ confinement, reduction to pay grade E-1,
and a dishonorable discharge. The convening authority (CA)
approved the sentence as adjudged, and except for the punitive
discharge, ordered the sentence executed.

     The appellant raises eight assignments of error: (1) that
his trial defense team was ineffective; (2) that the military
judge committed plain error when she admitted the appellant’s
hospital blood draw into evidence; (3) that the military judge
committed plain error when she allowed expert testimony of
alcohol extrapolation estimates based upon the Widmark Formula;
(4) that the military judge abused her discretion by admitting
into evidence a photograph of the speedometer from the
appellant’s vehicle recovered at the crash site; (5) that the
appellant was prejudiced by a 156-day delay between the
conclusion of trial and the CA’s action; (6) that military judge
abused her discretion when she refused to permit the appellant
to use the word ”acquittal” in his unsworn statement as evidence
of emotional impact; (7) that the CA abused his discretion by
referring the charges without a legitimate basis and; (8) that
the military judge erred in her instructions by not sufficiently
emphasizing the actions of others as potential intervening
causes. 2

     After careful consideration of the record of trial, the
appellant's assignments of error, and the pleadings of the
parties, we conclude that the findings and the sentence are
correct in law and fact and that no error materially prejudicial
to the substantial rights of the appellant was committed. Arts.
59(a) and 66(c), UCMJ.

                              Background

     On 25 July 2009, the appellant went to a bar in Norfolk,
VA, where he spent most of the evening drinking. In the same
bar, on the same night, four friends, TJ, CR, RP, and LK, spent
the evening socializing after one of the group recently returned



1
  The appellant was also convicted of operation of a motor vehicle while
drunk. However, the military judge dismissed this specification as an
unreasonable multiplication of charges with the operation of a motor vehicle
with a blood alcohol content greater than .08.
2
  This issue was raised pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1992).


                                      2
home from deployment in Afghanistan. 3 As the bar was closing,
the appellant noticed the four friends outside the bar were
unable to get a cab, so he offered them a ride home. The four
friends accepted the appellant’s offer. On the drive home, the
appellant was later described by witnesses as speeding and
driving in an aggressive manner. A short time later, the
appellant’s car skipped a curb and crashed into a tree, killing
two of the passengers, permanently disabling a third passenger,
and inflicting moderate injuries on the fourth. A nearby bus
driver was also injured when pieces of the appellant’s car flew
through the bus windshield.

     The appellant was immediately taken to a nearby hospital to
be treated for his injuries. Upon arrival, the emergency room
physician ordered a nurse on duty to draw the appellant’s blood
for testing. The physician testified at trial that ordering
blood-work was standard operating procedure for acute trauma
injuries such as the appellant’s, especially when head trauma is
likely. Furthermore, he stated that the appellant appeared
“somewhat belligerent and not acting appropriately,” and that a
blood draw was medically necessary at the time in order to rule
out a traumatic brain injury. Record at 625.

     On 2 August 2012, Officer Lawson of the Norfolk City Police
Department filed an affidavit and application for a search
warrant with a Virginia Commonwealth magistrate, which led to a
search warrant for the appellant’s blood sample from the night
of the accident. 4 Test results later revealed a BAC of .12.

     As a result of the accident and related injuries, the
Commonwealth of Virginia charged the appellant with two counts
of manslaughter and one count of maiming. During the twenty-two
months it took the state to bring the appellant’s case to trial,
the appellant was restricted to base by the terms of a pretrial
release order from state court.


3
  TJ and CR were both active duty Navy service members at the time the
accident.
4
  On the evening of the accident, Officer Prins of the Norfolk City Police
Department asked the nurse on duty (at the hospital), without a warrant,
whether the appellant’s BAC was above the legal limit. The same nurse also
testified at the state trial (described infra) that the blood was drawn
pursuant to hospital SOP supporting the need to preserve evidence for
prosecution. (Appellate Exhibit XXVI at 94.) Appellate defense counsel
cites both of these facts in support of his argument that the blood draw was
an illegal seizure under the 4th Amendment.


                                      3
     Following the state trial, which resulted in an acquittal,
the CA referred charges of drunken and reckless driving and
negligent homicide to a general court-martial. During the
pretrial stages of the court-martial proceedings, the appellant
was assigned two military defense counsel. 5 Before proceeding
with their representation, trial defense counsel (TDC) obtained
the case file from the civilian defense attorney who represented
the appellant at the state trial. Appellant’s Brief of 23 Sep
2013 at Appendix 1.

     Before trial, the Government made a motion in limine to
pre-admit the results of blood alcohol testing performed on the
appellant’s blood at both Sentara General Hospital and at
Virginia’s Department of Forensic Science. The Government also
moved to pre-admit a photograph of the speedometer that detached
from the appellant’s car during the accident and landed some
distance from the car. The appellant filed written responses
opposing both motions. The Government later withdrew the motion
to pre-admit the BAC tests, and the military judge admitted the
photo over defense objections.

     During the Government’s case-in-chief, several experts were
called to testify against the appellant. These experts included
a toxicologist, an accident reconstructionist, and a
neurosurgeon. TDC did not challenge these experts as to their
qualifications, reliability of their testimony, or the
underlying science behind their conclusions. 6 The toxicologist,
Dr. Connie Luckie, used the Widmark Formula to explain
approximately how many drinks a person of like constitution to
the appellant would consume to achieve a certain BAC. Dr.
Luckie testified that in order to achieve a BAC of .10 -.11, a
165 pound man 7 would have to consume “approximately five to six
drinks” within one hour, or more than five to six drinks if
drank over a period of more than an hour. Record at 771.




5
    The appellant also hired a civilian attorney for his defense.
6
  Appellate defense counsel cites this lack of challenge as ineffective
assistance of counsel, citing Daubert v. Merrell Dow Pharms., Inc., 509 U.S.
579, 588-89, 596 (1993).
7
    At the time of the accident, the appellant weighed roughly 165 pounds.

                                        4
                                    Analysis

1. Ineffective Assistance of Counsel (IAC)

     The appellant alleges that his trial defense counsel was
ineffective in six ways: (1) by not filing a motion to suppress
the hospital blood draw; (2) by not contacting the civilian
defense attorney who secured the acquittal in state court on
similar charges; (3) by failing to make a RULE FOR COURTS-MARTIAL
917, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.) motion at the
conclusion of the Government’s case; (4) by failing to request
that the judge consider the twenty-two months of restriction to
base for the purposes of assigning Pierce 8 confinement credit;
(5) by not seeking to compel the testimony of Officer Prins; and
(6) by failing to restrict the expert testimony offered at
trial.

     In reviewing for ineffective assistance, the court “looks
at the questions of deficient performance and prejudice de
novo.” United States v. Gutierrez, 66 M.J. 329, 330-31
(C.A.A.F. 2008) (citation omitted).

     A military accused is entitled to the effective assistance
of counsel under the Constitution and Article 27(b), UCMJ.
United States v. Tippit, 65 M.J. 69, 76 (C.A.A.F. 2007). We
analyze the appellant’s claim of IAC under the test set forth by
the Supreme Court in Strickland v. Washington, 466 U.S. 668
(1984). To prevail, “an appellant must demonstrate both (1)
that his counsel’s performance was deficient, and (2) that this
deficiency resulted in prejudice.” United States v. Green, 68
M.J. 360, 361-62 (C.A.A.F. 2010) (citing Strickland, 466 U.S. at
687) (additional citation omitted).

     When determining the sufficiency of counsel’s performance
under the first prong of Strickland, the court “must indulge a
strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance.” 9 Strickland, 466
U.S. at 689. Furthermore, the burden of establishing the truth
of factual matters relevant to the claim of ineffective
assistance rests with the accused. Tippit, 65 M.J. at 76. If
there is a factual dispute on a matter pertinent to the claim,

8
    United States v. Pierce, 27 M.J. 367 (C.A.A.F. 1989).
9
  The appellant can “rebut this presumption by pointing out specific errors
made by defense counsel which were unreasonable under prevailing professional
norms.” United States v. Scott, 24 M.J. 186, 188 (C.M.A. 1987) (citation
omitted).

                                        5
the determination as to whether further fact-finding will be
ordered is resolved under United States v. Ginn, 47 M.J. 236
(C.A.A.F. 1997). “If, however, the facts alleged by the defense
would not result in relief under the high standard set by
Strickland, we may address the claim without the necessity of
resolving the factual dispute.” Tippit, 65 M.J. at 76 (citing
Ginn, 47 M.J. at 248).

     a. Motion to Suppress

     “(W)hen a claim of [IAC] is premised on counsel’s failure
to make a motion to suppress evidence, an appellant must show
that there is a reasonable probability that such a motion would
have been meritorious.” United States v. Jameson, 65 M.J. 160,
163-64 (C.A.A.F. 2007) (quoting United States v. McConnell, 55
M.J. 479, 482 (C.A.A.F. 2001)). In determining whether the
appellant has a “reasonable probability” of succeeding on this
claim, this court considers the totality of the circumstances.
Id. at 164.

     Here, the appellant contends that, had TDC made a motion to
suppress the blood draw, there was a reasonable probability of
success because of an alleged illegal search. We disagree. At
trial, the emergency room physician testified that, when blunt
trauma is suspected, a blood draw is standard operating
procedure so that the treating physician can determine if the
patient is suffering from a traumatic brain injury, or is simply
showing signs of intoxication. Moreover, he testified that a
blood draw was “medically necessary” in this case because the
appellant was “somewhat belligerent and not acting
appropriately.” Record at 625-26. For these reasons, this
court fails to find, under the totality of the circumstances, a
reasonable probability that the motion to suppress would have
been meritorious.

     b. Failure to Contact Civilian Attorney

     The appellant alleges that the TDC’s failure to contact the
civilian defense counsel who handled the appellant’s state trial
amounted to IAC. We disagree. In his brief, the appellant
himself concedes that TDC obtained all pertinent records from
the civilian attorney who handled the appellant’s state trial.
Appellant’s Brief at Appendix 1. Defense counsel is under no
obligation to discuss trial strategy with prior counsel, and
this court will not second-guess strategic or tactical trial
decisions of defense counsel absent the appellant’s showing of
specific defects in his counsel’s performance that were

                                6
“‘unreasonable under prevailing professional norms.’” United
States v. Mazza, 67 M.J. 470, 475 (C.A.A.F. 2009) (quoting
United States v. Perez, 64 M.J. 239, 243 (C.A.A.F. 2006)).
Moreover, it is abundantly clear that any information germane to
the court-martial could have been gleaned from TDC reading the
record of trial from the state proceedings. As such, we find no
merit in this claim by appellant.

     Because this court will not engage in second-guessing
strategic or tactical decisions at trial by defense counsel, as
stated above, we also find no merit in the appellant’s remaining
IAC claims. United States v. Matias, 25 M.J. 356, 363 (C.M.A.
1987).

2. The Blood Draw

     The appellant contends that the military judge erred by
admitting into evidence the appellant’s blood sample taken at
the hospital on the night of the accident. Specifically, he
avers that the blood was not drawn for treatment or diagnosis,
but instead was taken in order to preserve evidence of a
potential crime. In addition, he asserts that the blood sample
was obtained by law enforcement without sufficient probable
cause, and was thus inadmissible. We disagree.

     When there is no objection at trial, this court reviews a
claim of erroneous admission of evidence for plain error.
United States v. Hardison, 64 M.J. 279, 281 (C.A.A.F. 2007).
“Plain error is established when: (1) an error was committed;
(2) the error was plain, or clear, or obvious; and (3) the error
resulted in material prejudice to substantial rights”. Id.
Furthermore, the appellant has the burden of showing all three
prongs of the test are satisfied. United States v. Bungert, 62
M.J. 346, 348 (C.A.A.F. 2006).

     Any evidence, including a blood sample, “obtained from an
examination or intrusion conducted for a valid medical purpose
may be seized and is not evidence obtained from an unlawful
search or seizure.” 10 MIL R. EVID. 312(f); see also United States
v. Stevenson, 66 M.J. 15, 18 (C.A.A.F. 2008). Here, the
emergency room physician testified that it was “medically

10
   The Drafters' Analysis to MIL. R. EVID. 312(f) states that “[a] procedure
conducted for valid medical purposes may yield admissible evidence.
Similarly, Rule 312 does not affect in any way any procedure necessary for
diagnostic or treatment purposes.” Thus, MIL. R. EVID. 312(f) permits the
admission of evidence discovered during the regular course of medical
treatment. United States v. Stevenson, 66 M.J. 15, 18 (C.A.A.F. 2008).

                                       7
necessary” to draw and test the appellant’s blood, and
furthermore that it was standard operating procedure to do so in
the event of head trauma. Record at 624-25. Nowhere on the
record does the doctor testify that the blood was drawn for
evidence preservation purposes, and this court sees no reason to
disbelieve the doctor’s testimony. As such, we find that the
blood was drawn for a valid medical purpose.

     The appellant’s next contention, that his blood sample was
seized by law enforcement using an invalid warrant, and was thus
inadmissible, yields a similar result. The appellant contends
that the warrant obtained by Officer Lawson lacked sufficient
probable cause because it referenced the initial investigating
officer’s arrest of the appellant, which the appellant claims
was the result of an illegal search. He argues that the initial
investigating officer inquired about the appellant’s BAC levels
prior to making an arrest, and without a warrant, improperly
used this information to execute the arrest. Even assuming that
these facts as stated by the appellant are true, the affidavit
filed by Officer Lawson only references the appellant’s prior
“arrest” and makes no mention of the appellant’s BAC levels.
Given the state of the evidence at the time of arrest, there is
no doubt that sufficient probable cause existed to arrest the
appellant for driving while intoxicated, even without knowledge
of his BAC levels at the hospital. Accordingly, we find no
error in the state magistrate’s consideration of the appellant’s
arrest, and no merit in the appellant’s argument that the search
warrant was invalid.

3. Expert Testimony

      The appellant next alleges that the Widmark Formula, used
by the Government’s toxicology expert, was not sufficiently
reliable for admission into a court-martial. 11 Where the
appellant does not object at trial, this court reviews the
admission of expert testimony for plain error. United States v.
Green, 55 M.J. 76, 81 (C.A.A.F. 2001).

     Under the Military Rules of Evidence, “[a]n expert witness
may provide opinion testimony if ‘(1) the testimony is based
upon sufficient facts and data, (2) the testimony is the product

11
  The Widmark Formula, also known as retrograde extrapolation, is a
scientific method used to estimate the number of drinks consumed by, or the
BAC level of, a particular individual at a particular time. This formula
takes into account a person’s gender and body-weight, along with other known
variables at the time of testing. J. Nicholas Bostic, Alcohol Related
Offenses: Retrograde Extrapolation After Wager, 79 MI BAR JNL 668 (Jun 2000).

                                      8
of reliable principles and methods, and (3) the witness has
applied the principles and methods reliably to the facts of the
case.’” United States v. Graner, 69 M.J. 104, 109-10 (C.A.A.F.
2010) (quoting MIL. R. EVID. 702). Moreover, military courts
apply the Houser 12 factors when determining whether to admit or
exclude expert testimony. The Houser factors are: (1) the
qualifications of the expert, MIL. R. EVID. 702; (2) the subject
matter of the expert testimony, MIL. R. EVID. 702; (3) the basis
for the expert testimony, MIL. R. EVID. 703; (4) the legal
relevance of the evidence, MIL. R. EVID. 401 and 402; (5) the
reliability of the evidence, United States v. Gipson, 24 M.J.
246 (C.M.A. 1987); and (6) whether the probative value of the
testimony outweights other considerations, MIL. R. EVID. 403.
United States v. Houser, 36 M.J. 392, 397 (C.M.A. 1993). 13
Satisfying every factor is not necessary, as the “gatekeeping
inquiry must be tied to the facts of a particular case.” United
States v. Sanchez, 65 M.J. 145, 149, (C.A.A.F. 2007) (internal
quotation marks and citation omitted).

     At trial, Dr. Luckie testified that forensic toxicologists
use the Widmark Formula to extrapolate approximately how many
drinks a person has consumed based on their BAC, gender, and
weight, and that the formula is commonly accepted within their
field. Moreover, the Widmark Formula has been regularly
employed throughout American courts for this very purpose for
many years. See e.g. Willis v. City of Fresno, 2013 U.S. Dist.
LEXIS 166722 (E.D. Cal., Nov. 21, 2013); United States v.
Tsosie, 791 F. Supp. 2d 1099 (D.N.M. 2011); Shea v. Royal
Enters., 2011 U.S. Dist. LEXIS 63763 (S.D.N.Y. Jun. 16, 2011). 14

12
     United States v. Houser, 36 M.J. 392 (C.M.A. 1993).
13
  The Supreme Court case Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579,
588-89, 596 (1993) is also germane to this discussion. In Daubert, the
Supreme Court rejected the requirement that a scientific theory be “generally
accepted” in the scientific community, and made clear that the trial court
plays the role of gatekeeper when determining the admissibility of expert
testimony. They further outlined four factors a court may consider; (1)
whether the theory or technique has been tested; (2) whether it has been
subject to peer review; (3) the known or potential rate of error and the
standards controlling the techniques operation; and (4) whether the theory is
generally accepted in its particular field.
14
  The District Court in Shea stated “the Widmark formula is a ‘robust’
formula that has been tested and applied for nearly 80 years. See A.
Barbour, Simplified Estimation of Widmark "r" Values by the Method of
Forrest, 41 Science & Justice 53 (2001) . . . see also G. Simpson,
Medicolegal Alcohol Determination: Widmark Revisited, 34/5 Clin. Chem. 888
(1988) . . . (characterizing Widmark's work on medico-legal alcohol
determination as ‘the seminal work in this field’). The Widmark formula has
also been the subject of peer review. See id.” (footnote omitted)

                                         9
The expert testimony in this case satisfied the test set forth
in Houser, and for that reason we find that the judge did not
commit plain error in admitting Dr. Luckie’s testimony.

4. Admission of Speedometer into Evidence

     The appellant asserts that the military judge abused her
discretion by admitting into evidence a photograph of the
speedometer from the appellant’s vehicle that was recovered
after the accident. We review a military judge’s decision to
admit evidence under an abuse of discretion standard. United
States v. Ediger, 68 M.J. 243, 248 (C.A.A.F. 2010). This
standard is a strict one, and requires that the challenged
action be arbitrary, fanciful, clearly unreasonable or clearly
erroneous in order for relief to be granted. United States v.
Solomon, 72 M.J. 176, 179 (C.A.A.F. 2013) (citing United States
v. White, 69 M.J. 236, 239 (C.A.A.F. 2010)).

     At trial, TDC objected to this evidence citing MIL. R. EVID.
403. The military judge conducted the appropriate MIL. R. EVID.
403 balancing test, and determined that the probative value of
the evidence being offered was not substantially outweighed by
the danger of unfair prejudice. Moreover, to quell any concerns
over member confusion, the military judge cited the Certificate
of Analysis from the Commonwealth of Virginia, offered by the
defense, which clearly stated that the speedometer did not
indicate the speed the car was traveling at the time of impact.
Although the military judge recognized the potential risk of
unfair prejudice and member confusion, she took adequate
precautions and offered valid reasoning for her decision on the
record. For these reasons, we find that the military judge did
not abuse her discretion, thus no relief is warranted.

5. Delay Prior to CA’s Action

     The appellant next argues that the 156-day delay prior to
the CA’s action in this case violated his due process right to a
speedy post-trial review, entitling him to relief under the line
of cases that includes United States v. Moreno, 63 M.J. 129
(C.A.A.F. 2006). The appellant’s assignment of error raises two
questions which we review de novo: first, was there a violation
of his due process right to speedy post-trial review; and
second, if there was a denial of due process, was it harmless
beyond a reasonable doubt. United States v. Allison, 63 M.J.
365, 370 (C.A.A.F. 2006).




                                10
     Under the Moreno standards, a CA’s failure to take action
within 120 days of the completion of trial is presumptively
unreasonable and triggers the four-factor analysis set forth in
Barker v. Wingo, 407 U.S. 514, 530 (1972). 15 Moreno, 63 M.J. at
142. However, in cases involving claims that an appellant has
been denied his due process right to speedy post-trial review
and appeal, we may look initially to whether the denial of due
process, if any, is harmless beyond a reasonable doubt.
Allison, 63 M.J. at 370, 371.

     Assuming without deciding that this 156-day delay denied
the appellant his right to speedy review and appeal, we must
decide whether, under the totality of the circumstances of the
case, this error was proven by the Government to be harmless
beyond a reasonable doubt. United States v. Bush, 68 M.J. 96,
102-03 (C.A.A.F. 2009). Nothing in the record of trial suggests
that the appellant suffered any prejudice, and he does not
allege any. Therefore, we conclude that this error was harmless
beyond a reasonable doubt and no relief is warranted.

6. Remaining Assignments of Error

     After reviewing the record of trial and the pleadings of
the parties, we conclude that the remaining assignments of error
raised by the appellant do not merit either relief or further
analysis. Matias, 25 M.J. at 363.

                               Conclusion

     The findings and sentence as approved by the CA are
affirmed.

Senior Judge WARD and Judge MCDONALD concur.

                                      For the Court



                                      R.H. TROIDL
                                      Clerk of Court




15
  The Barker factors applied in a speedy trial analysis are: 1) the length of
the delay; 2) the reasons for the delay; 3) the appellant’s assertion of the
right to timely review and appeal; and 4) prejudice. Barker, 407 U.S. at
530-31.

                                     11
