                       UNITED STATES, Appellant

                                    v.

                      Leslie D. PORTER, Corporal
                     U.S. Marine Corps, Appellee

                              No. 12-5003

                       Crim. App. No. 201100188

       United States Court of Appeals for the Armed Forces

                         Decided July 8, 2013

                               PER CURIAM

                                 Counsel

For Appellant:    Captain Samuel C. Moore, USMC, and Brian K.
Keller, Esq.

For Appellee: Captain Michael D. Berry, USMC, Captain Paul C.
LeBlanc, JAGC, USN, and Lieutenant Jared Hernandez, JAGC, USN.

Military Judge:   Anthony Johnson


       This opinion is subject to revision before final publication.
United States v. Porter, No. 12-5003/MC


      PER CURIAM:

      Contrary to Appellee’s pleas, a military judge, sitting as a

special court-martial, found Appellee guilty of one

specification of wrongful use of cocaine and one specification

of wrongful use of marijuana in violation of Article 112a,

Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 912a

(2006).     The adjudged and approved sentence included ninety

days’ confinement and a bad-conduct discharge.     The United

States Navy-Marine Corps Court of Criminal Appeals (NMCCA) set

aside the findings and sentence, holding that testimonial

evidence was admitted in violation of the Confrontation Clause

of the Sixth Amendment and that the error was not harmless

beyond a reasonable doubt, and authorized a rehearing.     United

States v. Porter, No. NMCCA 201100188, slip op. at 2 (N-M. Ct.

Crim. App. June 28, 2012).     Pursuant to Article 67(a)(2), UCMJ,

10 U.S.C. § 867(a)(2) (2006), the Judge Advocate General of the

Navy certified the issues of whether the NMCCA erred in

determining that:     (1) the drug testing report contained

testimonial statements erroneously admitted at trial; and (2)

admission of the testimonial evidence was not harmless beyond a

reasonable doubt. 1


1
    The following issues were certified:

       I.    THE ENTRIES ON PAGES 54 AND 154 OF PROSECUTION
             EXHIBIT 15 THAT NMCCA FOUND TO BE TESTIMONIAL
                                   2
United States v. Porter, No. 12-5003/MC


                                  I.

    On September 16, 2010, Appellee received medical attention

at a civilian hospital following a traffic accident near Marine

Corps Air Station Cherry Point.    While Appellee was admitted at

the civilian hospital, medically ordered toxicological tests

indicated the presence of tetrahydrocannabinol (THC) (the

metabolite of marijuana) and benzoylecgonine (BZE) (the

metabolite of cocaine) in his system.   The next day, Appellee

was sent for follow-up medical care at a military health care

facility where he appeared dazed and unable to answer simple

questions. 2

    In the meantime, after being informed of Appellee’s

toxicology results, his commanding officer authorized a blood

draw and urinalysis to search for evidence of drug use.    The

blood and urine samples were turned over to the Criminal



           HEARSAY WERE NEITHER MADE WITH THE PRIMARY
           PURPOSE OF PROVING PAST EVENTS RELEVANT TO LATER
           CRIMINAL PROSECUTIONS NOR FORMALIZED. DID THE
           LOWER COURT ERR BY FINDING THAT THESE PAGES WERE
           TESTIMONIAL STATEMENTS?

     II.   DID THE LOWER COURT ERR BY FINDING THAT THESE
           ENTRIES DEEMED TESTIMONIAL HEARSAY CONTRIBUTED TO
           APPELL[EE]’S CONVICTION WHERE THESE ENTRIES ONLY
           PROVIDED TECHNICAL DATA AND THE GOVERNMENT’S CASE
           WAS OTHERWISE STRONG?
2
  The treating physician at the military health care facility
testified that “head trauma” was one of the considerations she
was worried about when she observed Appellee’s “altered mental
status.”
                                  3
United States v. Porter, No. 12-5003/MC


Investigation Command (CID), which sent the samples to the Armed

Forces Institute of Pathology (AFIP) for testing.    AFIP

performed a battery of tests and concluded, in a 169-page drug

testing report (DTR), that the samples were positive for THC and

BZE.

       At trial, to lay the foundation for the DTR, the Government

called Ronald Shippee, Ph.D., employed by AFIP as an expert

witness.    Dr. Shippee, who was qualified as an expert witness in

forensic toxicology, testified as to AFIP’s testing procedures

and the results of Appellee’s drug tests.    In light of Dr.

Shippee’s testimony that he had no supervisory role at AFIP and

the fact that neither the analysts nor the reviewer who signed

pages 54 or 154 of the DTR testified, the defense objected to

admission of the DTR on Confrontation Clause grounds.

       The military judge denied the defense objection and admitted

the DTR.    Although he stated on the record that he did not

consider the report’s cover memorandum summarizing the testing

results, the military judge apparently did consider the rest of

the DTR, including pages 54 and 154, and Dr. Shippee’s testimony

thereon.    Dr. Shippee testified that AFIP accessioning employees

can determine whether a sample is being tested for purposes of a

criminal investigation once they receive the sample.    He also

testified that the “IN” portion of Appellee’s sample

identification number -- “10-4748 IN” -- indicates that the

                                  4
United States v. Porter, No. 12-5003/MC


testing is part of a criminal investigation.    Referencing the

confirmation summary pages only, Dr. Shippee testified as to the

quantity of BZE and THC present in Appellee’s sample, and that

those amounts were above the respective Department of Defense

(DoD) cutoff levels.   Moreover, Dr. Shippee referred to the

technician’s and certifying scientist’s signature blocks on the

summary confirmation documents to illustrate AFIP’s quality

control measures.   Finally, he offered his assessment “after

reading this packet” that Appellee’s sample tested above the DoD

cutoff for THC and BZE.   At no time during his testimony,

however, did Dr. Shippee specifically interpret or rely on the

machine-generated data contained in the DTR to independently

conclude that Appellee’s sample tested positive for THC and BZE. 3

                                II.

    In United States v. Tearman, 72 M.J. 54 (C.A.A.F. 2013), we

held that:   (1) chain-of-custody documents and internal review

worksheets contained within a drug testing report were

nontestimonial; and (2) admission of testimonial evidence (the

official test result and certification contained in the DD Form

2624) was harmless beyond a reasonable doubt.    In deeming the

error harmless, we noted that the expert witness, relying on

3
  While referencing the initial screening “summary sheet,” Dr.
Shippee testified that Appellee’s sample tested “presumptive
positive not confirmed” for THC and BZE, but, in doing so, Dr.
Shippee was not interpreting or relying upon machine-generated
data.
                                 5
United States v. Porter, No. 12-5003/MC


nontestimonial statements, independently and conclusively

established the presence in the appellant’s sample of a drug

metabolite in excess of the DoD cutoff level and that the

testimonial hearsay was barely mentioned during her testimony or

the rest of the government’s case.       Id. at 62-63.   Accordingly,

we concluded that any impact the testimonial statements may have

had on the panel’s findings was both cumulative and de minimis

when viewed in light of the entire record.       Id. at 63.

    At issue in this case are pages 54 and 154 of the DTR, which

contain summaries of the test results with signatures of an

analyst and a reviewer.   In summarizing the results of the

confirmation tests, the two pages note the following

information:   specimen source, amount tested, concentration of

substance tested, diluents amount, dilution factor, and final

concentration.   Page 54 contains a handwritten positive symbol

indicating the presence of BZE, and page 154 contains a similar

handwritten positive symbol -- as well as the handwritten word

“Present” -- indicating the presence of THC.       Dr. Shippee

primarily relied on these pages to establish that AFIP’s testing

controls and standards were met for Appellee’s test.

    As we noted in Tearman, “[t]he language used by the Supreme

Court to describe whether and why a statement is testimonial is

far from fixed.”   72 M.J. at 58.       Nevertheless, the two summary



                                    6
United States v. Porter, No. 12-5003/MC


confirmation pages at issue squarely qualify as testimonial

statements under the Supreme Court’s various formulations.

    Similar to the certifications in the DD Form 2624 which were

held to be testimonial in United States v. Sweeney, 70 M.J. 296,

304 (C.A.A.F. 2011), the purpose of the signature blocks on the

confirmation summary pages at issue was to certify that AFIP’s

testing controls and standards were met for Appellee’s test.

Moreover, the pages, which also summarize the results of

Appellee’s test, were prepared by analysts at CID’s request and

with certain knowledge that the testing was part of a criminal

investigation.   See id.   There is no question that the

statements were “made under circumstances which would lead an

objective witness reasonably to believe that the statement[s]

would be available for use at a later trial.”   United States v.

Blazier (Blazier I), 68 M.J. 439, 442 (C.A.A.F. 2010) (quoting

Crawford v. Washington, 541 U.S. 36, 52 (2004)); see also

Sweeney, 70 M.J. at 302.

    Additionally, unlike the chain-of-custody documents and

internal review worksheets at issue in Tearman, the confirmation

summary pages (1) were generated by an external request from CID

for the purpose of criminal investigation; and (2) summarize

“additional substantive information,” Sweeney, 70 M.J. at 299 --

namely, that Appellee’s sample was positive for THC and BZE and

that AFIP’s testing controls and standards were met for

                                  7
United States v. Porter, No. 12-5003/MC


Appellee’s test.   These facts suggest that the pages were

created for the purpose of “establish[ing] or prov[ing] past

events potentially relevant to later criminal prosecution,”

Bullcoming v. New Mexico, 131 S. Ct. 2705, 2714 n.6 (2011)

(plurality opinion) (quoting Davis v. Washington, 547 U.S. 813,

822 (2006), and would “reasonably [be] expect[ed] to be used

prosecutorially,” Crawford, 541 U.S. at 51 (internal quotation

marks omitted), rather than having been made for an

administrative purpose, Tearman, 72 M.J. at 60.   While the two

pages do not exhibit “indicia of formality or solemnity

that . . . would suggest an evidentiary purpose,” that is merely

one factor relevant to whether statements are testimonial.

Tearman, 72 M.J. at 61 (citing Bullcoming, 131 S. Ct. at 2717).

For the reasons above, we agree with the NMCCA that the

notations and signature blocks on the summary pages were

testimonial and admitted in violation of the Confrontation

Clause.

    Given that the error is constitutional, the question is not

whether the evidence was legally sufficient without the

testimonial evidence, but “whether there is a reasonable

possibility that the evidence complained of might have

contributed to the conviction.   This determination is made on

the basis of the entire record . . . .”   United States v.

Blazier (Blazier II), 69 M.J. 218, 227 (C.A.A.F. 2010) (internal

                                 8
United States v. Porter, No. 12-5003/MC


quotation marks omitted).   In making this determination, this

Court applies the balancing test set forth in Delaware v. Van

Arsdall, 475 U.S. 673 (1986).   Sweeney, 70 M.J. at 306.

    We agree with the NMCCA that the military judge’s admission

of the two summary confirmation pages was not harmless beyond a

reasonable doubt.   These testimonial statements constitute a

more substantial portion of the expert witness’s testimony than

in Tearman.   With regard to the quantitative results of

Appellee’s drug test, Dr. Shippee exclusively referenced the

testimonial statements in the summary pages without delving into

the underlying machine-generated data.    Moreover, Dr. Shippee

highlighted the signature blocks on the summary pages to

establish that AFIP’s testing standards and controls were

followed during the testing of Appellee’s samples.    Only at the

conclusion of his testimony did Dr. Shippee offer an independent

assessment that, based on the DTR in toto, Appellee’s samples

tested above the DoD cutoff level for THC and BZE -- but at no

time did Dr. Shippee specifically interpret or rely on the

machine-generated portions of the DTR to independently conclude

that Appellee’s sample had tested positive for cocaine and THC.

In light of these facts, we agree that the Government has failed

to carry its burden to demonstrate that there was no reasonable

possibility that the testimonial statements contributed to

Appellee’s convictions.

                                 9
United States v. Porter, No. 12-5003/MC


                            DECISION

    Accordingly, both certified issues are answered in the

negative, and the decision of the United States Navy-Marine

Corps Court of Criminal Appeals is therefore affirmed.




                               10
