                           IN THE CASE OF


                      UNITED STATES, Appellee

                                  v.

                      Judy A. HALL, Sergeant
                       U.S. Army, Appellant

                           No. 02-0243/AR
                Crim. App. Dkt. No. ARMY 9901124

     United States Court of Appeals for the Armed Forces

                      Argued November 6, 2002

                     Decided February 12, 2003

   ERDMANN, J., delivered the opinion of the Court, in which
   CRAWFORD, C.J., GIERKE, EFFRON, and BAKER, JJ., joined.

                               Counsel

   For Appellant: Captain Linda A. Chapman (argued); Major
   Jeanette K. Stone, Lieutenant Colonel E. Allen Chandler
   Jr., and Colonel Robert D. Teetsel (on brief); Colonel
   Adele H. Odegard and Major Mary M. McCord.

   For Appellee: Major Mark L. Johnson (argued); Lieutenant
   Colonel Margaret B. Baines, Lieutenant Colonel Lauren B.
   Leeker, and Captain Tami L. Dillahunt (on brief); Captain
   Theodore C. Houdek.

   Military Judge:     Stephen R. Henley and Patrick J. Parrish




THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION
     Judge ERDMANN delivered the opinion of the Court.

     Appellant, Sergeant Judy A. Hall, United States Army, was

tried by special court-martial at Fort Sill, Oklahoma.     Contrary

to her plea, she was convicted of a single specification

alleging the wrongful use of cocaine, in violation of Article

112a, Uniform Code of Military Justice [hereinafter UCMJ], 10

U.S.C. § 912a (2002).   Appellant was sentenced by officer

members to a bad-conduct discharge and reduction to E-1.     The

convening authority approved the sentence.   The Army Court of

Criminal Appeals affirmed the findings and the sentence in a

memorandum opinion on November 5, 2001.

     We granted review of the following issues:

                                 I

       WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION
       AND SUBSTANTIALLY PREJUDICED APPELLANT'S RIGHT TO
       A FAIR TRIAL AND HER SIXTH AMENDMENT RIGHT TO
       CONFRONT WITNESSES AGAINST HER BY ADMITTING
       APPELLANT'S MOTHER'S INADMISSIBLE HEARSAY
       STATEMENTS, OFFERED UNDER THE GUISE OF
       IMPEACHMENT, WHERE THE OBVIOUS PRIMARY GOVERNMENT
       PURPOSE WAS TO PLACE INADMISSIBLE HEARSAY BEFORE
       THE MEMBERS.

                                II

       WHETHER, AFTER ASSUMING THAT THE MILITARY JUDGE
       ERRED BY ADMITTING APPELLANT'S MOTHER'S
       INADMISSIBLE HEARSAY STATEMENTS, THE ARMY COURT
       ERRED WHEN IT HELD THAT APPELLANT SUFFERED NO
       PREJUDICE FROM ADMISSION OF THAT TESTIMONY.




                                 2
                                     III

        WHETHER, AFTER ASSUMING THAT THE MILITARY JUDGE
        ERRED BY ADMITTING APPELLANT'S MOTHER'S
        INADMISSIBLE HEARSAY STATEMENTS, THE ARMY COURT
        ERRED WHEN IT HELD THAT THE EVIDENCE OF
        APPELLANT'S GUILT PROPERLY BEFORE THE COURT WAS SO
        GREAT AS TO MAKE ADMISSION OF SA MILL'S TESTIMONY
        HARMLESS BEYOND A REASONABLE DOUBT.

      Prior to oral argument in this case, the Government filed a

supplemental pleading conceding “that the military judge erred

by admitting [Appellant’s] mother’s statements through SA Mills,

for the purpose of impeaching, by contradiction, appellant’s

testimony.”    Upon considering the record of trial, we accept

this concession as reasonable and correct.           We further find that

this error was of constitutional dimension and that it was not

harmless beyond a reasonable doubt.         We reverse.



                                    Facts

      As a result of a positive urinalysis, Appellant was charged

with a single specification of wrongful use of cocaine between

on or about February 19, 1999 and on or about February 22, 1999.

Testing of Appellant’s urine revealed the presence of the

cocaine metabolite, Benzoylecgonine, at a level of 480

nanograms.1    Appellant stipulated that the substance




1
  The Department of Defense cut-off level for reporting a positive test for
this metabolite is 100 nanograms.


                                      3
tested was her urine, that it had been properly handled, and

that the testing had accurately reported the presence of the

cocaine metabolite in her urine.       Additionally, the Government

presented the testimony of an expert in forensic toxicology to

explain drug testing methodologies and the litigation packet

pertaining to the testing of Appellant’s urine sample.

     Anticipating an innocent ingestion defense, the Government

presented evidence that Appellant had tested positive for

cocaine use during a partial unit urinalysis conducted in

January 1999, a month before the urinalysis leading to the

charged offense.   Those test results indicated a metabolite

level of 162 nanograms.   Appellant was given nonjudicial

punishment for this initial positive urinalysis.       Concerning

this January urinalysis, Appellant told her commander, Captain

Brian Pierce, that she thought the result was due to some

prescription drugs.   A check of Appellant’s medical records

failed to show that she was taking prescription drugs and

Appellant could not produce the prescriptions.       Captain Pierce

testified that Appellant did not offer any other explanation for

the January 1999 positive test result, including innocent or

unknowing ingestion of a substance that might lead to a positive

urinalysis.

     The Government also presented testimony from a friend and

member of Appellant’s unit, Sergeant Natalie Smith.       Sergeant


                                   4
Smith testified that after the January 1999 urinalysis,

Appellant claimed to have taken “some stuff” at home because her

back was sore and Appellant also commented that someone may have

been out to get her.

     As anticipated by the Government, Appellant did defend

against the February 1999 charge by raising an innocent

ingestion defense.   The defense initially surfaced during cross-

examination of the Government’s expert in forensic toxicology,

Dr. Catherine Okano.   Dr. Okano testified that she could not

determine from the urinalysis whether the ingestion was willful

or innocent.   She also acknowledged a study involving

“Healthinca” tea, made from coca leaves that resulted in a

positive test for cocaine at the Department of Defense cutoff 29

hours after the test subject drank the tea.   The leaves in this

study were allegedly “decocainized.”

     The defense presented expert testimony that lent credence

to Appellant’s defense.   Dr. David Kuntz testified as an expert

in pharmacology, toxicology, and forensic testing of urine

samples.   He related his personal experience with drug testing

of National Guard troops.   During this testing, one soldier

tested positive for cocaine at a low level, under 300 nanograms

after drinking “Trimate” tea, a tea made from “decocainized”

coca leaves.   The “decocainizing” process was only about 99%

effective, and Dr. Kuntz testified that urinalysis test results


                                 5
after drinking the tea could be “probably 500, even up to a

thousand” nanograms.

     Appellant took the stand in her own defense.   She testified

that her mother would give her herbal teas as a teenager to

relieve Appellant’s severe menstrual cycles.   Appellant stated

that in 1991 her mother sent “Trimate” tea to her in Germany to

assist with weight control.   There were 40 regular looking tea

bags in the box.   Appellant claimed that she drank some of the

tea on January 26, 1999, before she gave her sample for the

initial urinalysis, and she drank the tea again on February 21,

before the urinalysis leading to the court-martial charge.

     Prior to presenting its case in rebuttal, the Government

informed the military judge that it had been unable to serve

Appellant’s mother with a subpoena or provide her travel

payments.   The Government then informed the military judge that

it intended to call Special Agent (SA) Steven Mills of the

Criminal Investigation Command, who had attempted to serve the

subpoena on Appellant’s mother.   Special Agent Mills would

testify that he had interviewed Appellant's mother, Mrs. Alan

Boyd, and that she told him she had not given her daughter any

teas.   Special Agent Mills was also prepared to testify that

Mrs. Boyd told him that she had not visited South or Central

America.




                                  6
     The Government stated that it intended to offer this

testimony either under Military Rule of Evidence 803(2)

[hereinafter M.R.E.], as an excited utterance, or under M.R.E.

807, the residual hearsay rule.   There ensued a discussion as to

whether the Government had made reasonable efforts to produce

Mrs. Boyd.   Special Agent Mills was sworn and testified at a

session pursuant to Article 39(a), UCMJ, 10 U.S.C. §

839(a)(2002), about his efforts to interview Mr. and Mrs. Boyd,

as well as his attempt to serve subpoenas upon them.

     During the Government's arguments on admissibility, the

military judge rejected the excited utterance theory.   After

hearing arguments, the military judge stated that he was

"inclined not" to allow the Government to offer the testimony

under the residual exception.   However, he believed that SA

Mills’ testimony was admissible to “determine the credibility of

the accused with regards to her statement when she testified

that her mother sent her the tea.”

     When the trial resumed, the Government called SA Mills who

testified about his conversations with Mrs. Boyd.   Special Agent

Mills testified that he went to the home of Appellant’s mother.

Although he did not formally question her, SA Mills did relate

to Mrs. Boyd that he wanted to ask her if she “had ever provided

her daughter any tea, if she had gone to South America or

imported any tea from South America.”   Special Agent Mills


                                  7
testified that in response “[s]he said no, she’d never given

[Appellant] any tea.”      The military judge instructed the members

that they could only consider the testimony “for the limited

purpose to determine what impeachment value it has only

concerning the accused's testimony that her mother sent her the

tea.    You may not consider it for the truth of Mrs. Boyd's

statement that she did not send tea to the accused.”

       After SA Mills testified, Appellant resumed the stand.            She

testified that her mother had recently undergone two surgeries

and had been rather emotional.        Appellant also indicated that

she had not brought her mother to trial so her mother would not

have to go through the emotional ordeal and that she did not

believe her mother would have answered the agent’s question that

way.



                                 Discussion

       The Court of Criminal Appeals “assumed” that the military

judge erred by admitting the statements attributed to

Appellant’s mother.2      Nonetheless, that court found that the

evidence “had no substantial influence on the members’ findings”

and that “the evidence of appellant’s guilt properly before the



2
  The Army Court of Criminal Appeals assumed that the military judge erred by
admitting hearsay evidence to impeach Appellant’s credibility and did not
address the substantive basis for that assumption. United States v. Hall,
No. ARMY 9901124, slip op. at 1-2 (A. Ct. Crim. App. Nov. 5, 2001).


                                      8
court was so great as to make [the] admission of SA Mills’

testimony harmless beyond a reasonable doubt.”        United States v.

Hall, No. ARMY 9901124, slip op. at 3 (A. Ct. Crim. App. Nov. 5,

2001).   Appellant argues that the conclusions of the Army Court

of Criminal Appeals are incorrect and that, absent the

inadmissible hearsay, the members may well have held a

reasonable doubt about Appellant’s guilt.

     Among the underpinnings of the hearsay rule is the fact

that admitting hearsay can deprive the party against whom the

evidence is offered the opportunity to test that evidence by

cross-examination.   Because the declarant is absent, the

opponent cannot delve into matters such as memory, perception,

bias, or motive during cross-examination.        See California v.

Green, 399 U.S. 149, 154 (1970).       Additionally, the finder of

fact cannot observe the demeanor and reaction of the declarant

during cross-examination to assess what, if any, weight to give

to the testimony of the declarant.       Id.   This right to cross-

examination is at the core of the confrontation clause.

     Despite this constitutional underpinning, not every

instance in which hearsay is improperly admitted will rise to

the level of a constitutional error.       We have found errors in

admitting hearsay that amount to nonconstitutional violations

where an accused has had the opportunity to cross-examine the

declarant.   See United States v. Pablo, 53 M.J. 356, 359


                                   9
(C.A.A.F. 2000)(citing United States v. Pollard, 38 M.J. 41, 52

(C.M.A. 1993); United States v. Lyons, 36 M.J. 183, 188-89

(C.M.A. 1992))(counselor’s testimony about child’s statements

inadmissible, but error was nonconstitutional because accused

had the opportunity to cross-examine the child).   In this case,

however, Appellant was deprived of the opportunity to cross-

examine the declarant.

     The Government sought to subpoena Appellant’s mother and

father as Government witnesses after Appellant served notice of

her innocent ingestion defense.    Although SA Mills made contact

with Appellant’s mother and father and did serve written

subpoenas, the Government failed to perfect those subpoenas by

tendering payment for travel.   Consequently, Appellant’s mother

did not appear at trial as a Government witness.

     When the words of Appellant’s mother were presented through

the testimony of SA Mills, Appellant made a timely objection,

contending that the proffered evidence was inadmissible hearsay.

Although the military judge found no applicable exception to the

hearsay rule, he admitted the evidence as impeachment by

contradiction, apparently finding that the evidence was not

being used for the truth of the matter asserted if used in that

manner.   The military judge instructed the members consistent

with that determination.   In light of the record and the

Government’s concession, we agree that ruling was wrong.


                                  10
Inadmissible hearsay was improperly introduced over timely

objection.

     Thereafter the Government pitted Appellant against her own

mother without affording Appellant the opportunity to test the

reliability or trustworthiness of her mother’s statements by

cross-examination.    Appellant was denied her constitutional

right of confrontation through cross-examination.

     As this error impacted Appellant’s constitutional rights,

we cannot affirm the findings unless we determine beyond a

reasonable doubt that the error did not contribute to the

findings of guilty.   United States v. Walker, 57 M.J. 174, 178

(C.A.A.F. 2002).   “Our focus is not on whether the members were

right in their findings but, rather, on whether the error had or

reasonably may have had an effect upon the members’ findings.”

United States v. Bins, 43 M.J. 79, 86 (C.A.A.F. 1995).    The

Government bears the burden of establishing that constitutional

error is harmless beyond a reasonable doubt.   Chapman v.

California, 386 U.S. 18, 24 (1967); United States v. Hall, 56

M.J. 432 (C.A.A.F. 2002); United States v. Lewis, 51 M.J. 376

(C.A.A.F. 1999); United States v. Mitchell, 51 M.J. 234

(C.A.A.F. 1999).   We examine all the circumstances to determine

whether the error was harmless beyond a reasonable doubt.

Deleware v. Van Arsdall, 475 U.S. 673, 684 (1986)(“Whether such

an error is harmless in a particular case depends upon a host of


                                 11
factors.”); United States v. Sidwell, 51 M.J. 262 (C.A.A.F.

1999); United States v. Jones, 49 M.J. 85 (C.A.A.F. 1998).

Whether a constitutional error in admitting evidence is harmless

beyond a reasonable doubt is a question of law that will be

reviewed de novo.   Arizona v. Fulminante, 499 U.S. 279, 295-96

(1991); United States v. Grijalva, 55 M.J. 223 (C.A.A.F. 2001);

United States v. George, 52 M.J. 259 (C.A.A.F. 2000).    After a

thorough review of the record and consideration of the briefs

and arguments of the parties to this appeal, we find that this

error was not harmless beyond a reasonable doubt.

     We find that the statements attributed to Appellant’s

mother were inescapably considered for the truth of the matter

stated therein.   To “contradict” very simply means “to assert

the contrary of.”   Merriam-Webster Unabridged Dictionary (2003).

The members could not have found contradiction of Appellant’s

testimony without considering the hearsay as fact contrary to

Appellant’s in-court testimony.    The manner in which this

evidence was put before the members would inevitably cause it to

be considered for the truth of the matter stated.    The military

judge’s purported limiting instruction, as given, was impossible

to apply and could only confound the members.    Thus the

instruction given did nothing to remedy or reduce the effect of

the error.




                                  12
     We note that the Government’s case was predicated on a

positive urinalysis and supporting expert testimony.      We have

said that evidence of urinalysis tests, their results, and

expert testimony explaining them is sufficient to permit a fact-

finder to find beyond a reasonable doubt that an accused used

contraband drugs.    United States v. Harper, 22 M.J. 157, 159

(C.M.A. 1986).   The factfinder may draw a permissible inference

of wrongfulness from a circumstantial showing of drug use based

on such evidence.    Id.   This evidence is legally sufficient as

long as the defense evidence of innocent ingestion could be

reasonably disbelieved by the factfinder.      United States v.

Ford, 23 M.J. 331, 334 (C.M.A. 1987);      see also United States v.

Bond, 46 M.J. 86 (C.A.A.F. 1997).      “Urinalysis” is not, however,

a synonym for “conviction.”    There was present in this case

other evidence that sought to challenge the Government’s

inference of wrongfulness.

     Appellant sought to raise a reasonable doubt about the

wrongfulness element of the offense through an innocent

ingestion defense.   Appellant testified about a specific time

and source to explain the presence of the cocaine metabolite in

her urine.   This defense was not based solely on Appellant’s

testimony about drinking the tea.      The defense provided expert

testimony to lend credence to the defense.      The expert had

specific experience with “Trimate” tea producing positive


                                  13
urinalysis results for cocaine.    In fact, even the Government’s

expert acknowledged a study pertaining to positive drug test

results following ingestion of certain teas.

     It is against the evidentiary backdrop of this defense that

the statement attributed to Appellant’s mother was introduced.

Short of Appellant repudiating her own testimony, it is

difficult to imagine anything that could more decimate this

defense.   The factual contradiction presented by this

inadmissible hearsay came from the mouth of Appellant’s own

mother.    Any possible hope of raising a reasonable doubt

through an innocent ingestion defense was purposefully

dismantled by the Government’s hearsay evidence.   What remained

of the innocent ingestion defense was further eviscerated by the

paradoxical instruction.    Even though failing to properly secure

the live testimony of Mrs. Boyd, the Government brought

Appellant’s mother to the forefront in this trial and used

inadmissible hearsay in an effort to undermine any credibility

Appellant might have had.   In essence, through inadmissible

hearsay, the visage of Appellant’s mother pointed an accusing

finger at her own daughter.

     Given the nature of the factual contradiction, and in

particular, the fact that the source of the contradiction came

from the mouth of Appellant’s own mother, and given the

confounding nature of the military judge’s instruction, we


                                  14
cannot determine beyond a reasonable doubt that the error did

not contribute to the finding of guilt.



                             Decision

     The decision of the Army Court of Criminal Appeals is

reversed.   The findings and sentence are set aside.   The record

is returned to The Judge Advocate General of the Army.   A

rehearing may be ordered.




                                15
