

   
   
   
   U.S. v. Lewis



IN THE CASE OF
UNITED STATES, Appellee
v.
Julian W. LEWIS, Jr., Mess Management Specialist
Third Class
U.S. Navy, Appellant
 
No. 98-0335
Crim. App. No. 96-0807
 
United States Court of Appeals for the Armed
Forces
Argued January 13, 1999
Decided August 20, 1999
SULLIVAN, J., delivered the opinion of
the Court, in which GIERKE and EFFRON, JJ., joined. CRAWFORD, J., filed
a dissenting opinion, in which COX, C.J., joined.

Counsel
For Appellant: Lieutenant John D. Holden,
JAGC, USNR (argued); Lieutenant Albert L. DiGiulio, JAGC, USNR.
For Appellee: Major Clark R. Fleming,
USMC (argued); Colonel K. M. Sandkuhler, USMC, and Commander
Eugene E. Irvin, JAGC, USN (on brief); Colonel Charles Wm. Dorman,
USMC.
Military Judge: Peter J. Straub
 


THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE PUBLICATION.


Judge SULLIVAN delivered the opinion of the
Court.
Appellant was tried by a special court-martial
composed of officer and enlisted members at the Naval Legal Service Office,
Pearl Harbor, Hawaii, on February 27 and 28, 1996. Contrary to his pleas,
he was found guilty of the wrongful use of cocaine, in violation of Article
112a, Uniform Code of Military Justice, 10 USC § 912a. He was sentenced
to a bad-conduct discharge, confinement for 3 months, and reduction to
E-1. On April 4, 1996, the convening authority approved his sentence as
adjudged and, except for the bad-conduct discharge, ordered it executed.
However, as an act of clemency, the convening authority suspended all confinement
in excess of 70 days for a period of 12 months from the date of trial.
On December 9, 1997, the Court of Criminal Appeals affirmed the findings
of guilty and the sentence in an unpublished opinion.
This Court granted review on two assigned issues
on July 30, 1998. They are:



I. WHETHER THE MILITARY JUDGES ERRONEOUS
RULING THAT THE PRESENTATION OF AN INNOCENT INGESTION DEFENSE WAS CONTINGENT
UPON CORROBORATING WITNESSES SUBSTANTIALLY PREJUDICED THE CONSTITUTIONAL
RIGHT OF APPELLANT TO TESTIFY IN HIS OWN BEHALF AND PRECLUDED HIM FROM
PRESENTING HIS DEFENSE.
II. WHETHER THE MILITARY JUDGE ERRED TO THE
SUBSTANTIAL PREJUDICE OF APPELLANT WHEN HE DENIED THE DEFENSE REQUEST TO
GIVE AN INSTRUCTION ON VOLUNTARY INTOXICATION.



We hold that the military judge misread RCM 701,
Manual for Courts-Martial, United States (1995 ed.),1
see United States v. Jones, 49 MJ 85, 90-91
(1998), and erred by repeatedly preventing appellant from presenting his
defense of innocent ingestion at this court-martial. See generally
United States v. Coffin, 25 MJ 32, 33 (CMA 1987) (recognizing military
accuseds right to fully present his defense); United States v. Hodge,
19 F.3d 51, 52-53 (D.C. Cir. 1994). Furthermore, because the judges erroneous
rulings prejudicially chilled appellants right to fully present his defense,
we conclude that a rehearing is warranted.2
See generally United States v. Menge,
48 MJ 490, 492 (1998) (where prejudice substantial, reversal required whether
constitutional or non-constitutional error); see United States
v. Miller, 47 MJ 352, 359-60 (1997). In light of our disposition of
the first granted issue, the second granted issue need not be addressed.
Appellant was charged with one specification
of wrongfully using cocaine on or about October 27, 1995, at Oahu, Hawaii.
The prosecutions case rested entirely on urinalysis evidence and the testimony
of a command urinalysis coordinator and a drug-testing expert from the
Navy Drug Screening Laboratory at San Diego. This expert opined that a
chemical found in appellants urine was only present when cocaine and alcohol
were consumed concurrently, and that cocaine dissolved in alcohol was not
visibly detectable.
At the start of appellants court-martial,
the military judge made the following statement for the record after he
accepted appellants request for trial by enlisted members:



MJ: Let me summarize an [RCM] 802 conference
counsel and I had on 26 February 1996, where we discussed a potential
innocent ingestion defense. We basically discussed what it was and
the potential that if the defense was going to put that on, its an
affirmative defense in which she would have to put on evidence of persons
and places to which the events of innocent ingestion took place. We
discussed that defense counsel had not proffered any names or places and
the trial counsel indicated that he would be objecting to any kind of innocent
ingestion defense because none of the information has been met as required
by the RCM. I guess when we get to the motion stage, well discuss whether
or not you want to continue on with that motion or not, Lieutenant Bocock.



(Emphasis added.)
Shortly thereafter, defense counsel withdrew
her previously submitted oral motion for notice of an innocent ingestion
defense, as follows:



MJ: Accused and counsel, please rise. Petty
Officer Lewis, I now ask you how do you plead, but before receiving your
pleas, I advise you that any motions to dismiss any charge or to grant
any other relief should be made at this time. Lieutenant Bocock?
DC: The defense will withdraw the one motion
that was previously submitted.
MJ: The motion we discussed in the 802?
DC: Yes, thats correct.
MJ: So there will be no motion for notice
of innocent ingestion defense?
DC: Thats correct, sir.



Later, during the testimony of appellant, the
military judge called for an Article 39(a)3
session outside the presence of the members. The record states:



MJ: The reason I called a 39(a) session,
I noticed you have the diagram there [referring to DE A for ID]. And, yes,
Im going to ask you whats the purpose of this diagram.
DC: Just to aid in his testimony, sir.
MJ: What is going to be the basis of this testimony?
DC: Im basically just trying to get him to
describe what the club looks like, layout of the club.
TC: Sir, I havent seen the document, yet.
DC: [Hands DE A for ID to the trial counsel].
TC: Sir, looking at the document, I notice
that in addition to there being a diagram, are notations of "CX," "BX,"
and "AX." Were being presented with a floor-plan for a club, which
tends to describe the circumstances. I think were getting awfully close
to innocent ingestion here.
MJ: Well, thats my concern. Youve withdrawn
notice of innocent ingestion defense, yet it appears thats what youre
trying to do. What is the testimony you intend to elicit from the accused?
DC: The reason why the defense was withdrawn
is because its my understanding that it would not be a defense unless
there are witnesses who could specifically state that they did something
to the individuals drink. However, it was my understanding that I
could still present the circumstances of the evening where something could
have happened. And thats all Im trying to get out of this witness as
far as the circumstances of that evening, what kind of club.
MJ: Well, what kind of circumstances are we
talking about?
DC: Well, the nature of the club, how crowded
the club was, where people may have been sitting, where the witness, Petty
Officer Lewis, may have been sitting. Again, just laying out what the circumstances
and the atmosphere of the club were on that evening.
TC: Sir, can we have an offer of proof, then,
as to why there are AX, BX, and CX marked on this diagram.
DC: The witness has premarked this exhibit
indicating the locations where he was sitting that evening, and thats
what represented.
TC: Sir, the Governments position is this
is arising--particularly with this document--to an innocent ingestion defense.
Weve got a circumstance, Lieutenant Bocock has just offered time and now
weve got place, and none of that was in the original notice of innocent
ingestion. In fact, that was withdrawn. The Government moves that this
sort of testimony not be allowed.
DC: May I respond to that, sir?
MJ: You may.
DC: First of all, the notice did contain the
name of the club, the location of the club, and the date, so that information
was known. But, additionally, again, the charge is being offered to help
in the testimony, thats the only purpose.
MJ: Ill let you talk about where he was
on those two nights, but if counsel gets any closer to innocent ingestion,
at that point, Ill cut you off.
DC: Sir, can I ask, then, for a clarification
on what is----
MJ: As I understand it, you want to have the
witness testify that he was--I went to these clubs at certain nights; I
sat here; I sat there; I sat there; there were lots of people; it was dark;
it was crowded. What else?
DC: Thats basically all Im going to ask.
MJ: Are you going to mention that this is a
known place for drug users?
DC: No, sir.
MJ: Are you intending to get into anything
like that?
DC: No, sir. Im just, again, going to ask
what was the atmosphere of the club, how crowded the club was, where he
was sitting. Again, Im just asking for clarification as far as what is
acceptable and what is affirmative----
MJ: Well, Ill allow you to indicate where
he was that evening and what he did. But, again, if you start threading
over into this innocent ingestion defense, Im going to call a 39(a) session
awfully quick.
DC: Okay, sir.



(Emphasis added.)

___ ___ ___
Appellant argues before this Court that the
military judge improperly restricted his right to present his defense at
this court-martial. This improper restriction, he asserts, stems from the
trial judges misreading of RCM 701 and his resulting rejections of appellants
profferred defense of "innocent ingestion." He contends that the trial
judge erroneously prevented him from testifying to his belief that his
drink was spiked, and to the circumstances supporting that belief, unless
he had corroborating witnesses who actually tampered with his drink or
saw someone else do it. We hold that the trial judges reading of RCM 701
was incorrect.
We initially note that a conviction for wrongful
drug use under Article 112a requires the prosecution to prove beyond a
reasonable doubt that appellant knowingly used drugs. See United
States v. Harper, 22 MJ 157, 162 (CMA 1986) (definition of wrongful
includes knowing and conscious use of drugs); Para. 37(c)(5), Part IV,
Manual, supra. In proving knowledge, the prosecution can rely on
a permissive inference of wrongfulness, including knowledge, "which has
long been recognized by military law as flowing from proof of the predicate
fact of use of the drug." United States v. Ford, 23 MJ 331, 333
(CMA 1987); Para. 37(c)(10). If defense evidence suggesting innocent or
unknowing ingestion is introduced, "the prosecution runs an additional
risk of acquittal" because it must persuade the factfinder to disbelieve
this defense evidence or discount it in deciding to draw the permissive
inference of knowledge. Ford, supra at 335.

Turning next to RCM 701, it states in pertinent
part:

(b) Disclosure by the defense.

* * *
(2) Notice of certain defenses. The
defense shall notify the trial counsel before the beginning of trial on
the merits of its intent to offer the defense of alibi, innocent ingestion,
or lack of mental responsibility, or its intent to introduce expert testimony
as to the accuseds mental condition. Such notice by the defense shall
disclose, in the case of an alibi defense, the place or places at which
the defense claims the accused to have been at the time of the alleged
offense, and, in the case of an innocent ingestion defense, the place
or places where, and the circumstances under which the defense claims the
accused innocently ingested the substance in question, and the names and
addresses of the witnesses upon whom the accused intends to rely to establish
any such defenses.

Discussion
Such notice should be in writing except when
impracticable. See RCM 916(k) concerning the defense of lack of
mental responsibility. See RCM 706 concerning inquiries into the
mental responsibility of the accused. See Mil.R.Evid. 302 concerning
statements by the accused during such inquiries. If the defense needs more
detail as to the time, date, or place of the offense to comply with this
rule, it should request a bill of particulars. See RCM 906(b)(6).



We do not read this Manual provision as establishing
a requirement for corrobative witnesses or direct evidence as a condition
for raising the defense of innocent ingestion. Such requirements would
be inconsistent with our case law and other Manual provisions. See Harper,
supra at 163 (accused testified on the possibility of accidental
ingestion without corroborative eyewitnesses); Ford,
supra
at 336 (accused suggested possible explanation of wife secretly planting
drugs in his food without corroborative eyewitnesses); RCM 918(c) (findings
may be based on direct or circumstantial evidence). Instead, we more reasonably
construe this rule as requiring notice of witnesses to innocent ingestion,
other than an accused, only if an accused intends to call such witnesses
to establish this defense at trial. Finally, even if the language of RCM
701(b)(2) might be construed to require such independent and direct proof,
other language of this rule expressly states that "[t]his rule shall not
limit the right of the accused to testify in the accuseds behalf." RCM
701(g)(3)(D). Therefore, the appellate court below correctly suggested,4
and the Government on appeal correctly conceded, judicial error.
Having determined that the trial judge misread
RCM 701, we must next consider the effects of his erroneous view of the
law on appellants court-martial. See United States v. Sullivan,
42 MJ 360, 363 (1995) (a military judge abuses his discretion if his exercise
of that discretion is influenced by an incorrect view of the law); see
generally Cooter & Gell v. Hartmarx Corp., 496 U.S. 384,
402 (1990). Here, the military judge, as a result of his misunderstanding
of the law, improperly limited appellants ability to convey his version
of the facts concerning innocent ingestion to the court-martial members.
Cf.
United States v. Ford, supra; United States v. Harper,
supra (accused were allowed to fully convey their version of facts
concerning unknowing drug use and innocent ingestion). Moreover, the military
judge substantially prevented appellants counsel from properly framing
the issue of innocent ingestion for the members by barring any reference
to this defense in his opening statement and closing argument. See
RCM 913(b) and 919. Finally, the military judge failed to give any instructions
on the defense of innocent ingestion as required by our case law. See
Ford, supra at 336; compare § 5-11-4 with
§ 3-37-2(d) n.2, Military Judges Benchbook at 750, 356 (Dept. of
the Army Pamphlet 27-9) (30 September 1996) (specific instruction on mistake
of fact in drug cases placing burden of persuasion on Government).5
The final question we must address is whether
these erroneous rulings by the trial judge sufficiently prejudiced appellant
to require reversal of his conviction for wrongfully using cocaine. If
the above errors, either separately or together, amounted to a constitutional
violation, the Government is required to show that it was harmless beyond
a reasonable doubt. See Delaware v. Van Arsdall, 475 U.S.
673, 681 (1986). If the above errors were non-constitutional, appellant
must show that they substantially prejudiced his material rights. See
United States v. Barnes, 8 MJ 115, 116-17 (CMA 1979). We conclude that
reversal of his conviction is required under either standard. See Menge,
48 MJ at 492.
As a starting point in resolving this question,
we note that the Government characterized the judges action in this case
as a "faux pas committed by the military judge [which] was
a minor error in the trial process." Answer to Final Brief at 9. Seizing
upon the decision of the appellate court below, it argues the error was
harmless beyond a reasonable doubt because appellant "did have the opportunity
to suggest this affirmative defense before the members through the testimony
of [appellant] that his beers were unguarded for periods of time." Unpub.
op. at 5. Such a rationale, in our view, is insufficient to show harmless
error in this case.
Admittedly, appellant was allowed to testify
as to his visits to the karaoke clubs on the nights in question, his voracious
drinking of beer, and his repeated trips to the bathroom leaving his drinks
unguarded and mingled with the drinks of other bar patrons. Moreover, he
was also permitted to argue that these circumstances created the possibility
that someone put something in his beer without his knowledge, or that he
picked up someone elses drink. Finally, he was allowed to argue and the
members were instructed that the Government had to prove beyond a reasonable
doubt that he knowingly used cocaine. Nevertheless, for several
reasons, we conclude that appellant was prejudicially chilled in the presentation
of his defense case. See Coffin, 25 MJ at 34; Hodge,
19 F.3d at 52-53; cf. United States v. Reveles, 41 MJ 388,
392 (1995) (no chilling of defense where other evidence of defense admitted
and appellant made no showing of what else would have been admitted).
First, we note that the trial judges erroneous
RCM 701 ruling prevented appellant from introducing evidence which could
have rebutted the Governments circumstantial case on the closely-related
issue of knowledge. The judge allowed the prosecution to show through cross-examination
of appellant that he had no enemies at these bars on the nights in question.
It then permitted prosecution argument that the spiking of his drink (and
hence unknowing use) was improbable because cocaine was expensive and there
was no evidence to show a motive for any person at the bar to contaminate
his drink. The military judge, however, relying on his erroneous view of
RCM 701, contrarily ruled that defense counsel could not introduce any
evidence that some person at the bar may have had a motive to contaminate
appellants drink on these nights.
The record clearly reflects the excluded defense
evidence in this regard:



DC: Yes, sir. When Petty Officer Lewis was
testifying yesterday, the Government was allowed to get into the fact that
no one in the bar may have had a motive to put something in his drink.
He was allowed to ask questions such as: Did you have a fight with anyone?
Did you have a problem with anyone? Then, on redirect, defense, myself,
tried to get into the possibility that someone might have had that motive
which the Government had opened the door to that and I was not allowed
to ask questions on that. If I could, I would at least like to, for the
record, make an offer of proof.
MJ: What exactly are you saying?
DC: As far as the offer of the proof----
MJ: No. I dont under----
DC: Or what the Government got into
it----
MJ: Yes.
DC: On the cross-examination of the witness,
the Government had asked whether or not anyone in the bar were to have
a fight with anyone in the bar, whether anybody in the bar had a problem
with you, to which the witness stated "no." And then on redirect, I
attempted to get out the fact that stuff was taken from Petty Officer Lewis
and I was not allowed to ask that question.
MJ: And?
DC: The objection being that the Government
essentially opened the door by trying to dispel that anybody would have
had a motive.
MJ: So, youre saying, basically, his wallet
or something was stolen?
DC: Thats correct, sir.
MJ: And the proffer youre saying is?
DC: Essentially, sir, the testimony would
have been that money was stolen in the amount of $80.00 and his military
I.D. was stolen also.
MJ: And how is that relevant?
DC: Well, again, sir, the Government opened
the door by attempting to draw it out that no one in the bar would have
had a motive to do anything to spike Petty Officer Lewis drink.
MJ: Well, how does the motive----
DC: Well----
MJ: For arguments sake, how does the motive
to spike someones drink correlate with----
DC: Well, sir----
MJ: A motive to steal someones wallet.
DC: Well, sir, if someone was intending
to steal something from Petty Officer Lewis, that would indicate, first
of all, that someone did have a problem with him, someone did know he was
in the military, so, again, it would----
MJ: No, Im not going to allow that. Im
not going to allow it. That doesnt appear--well, in a 403 balancing thing--balancing--I
dont see the relevance of that outweighing any kind of--well, at--the
relevance is that its so tenuous, all its going to do is just be an undue
waste of time and mislead the members of court.
DC: Sir, like I said, I just wanted to state
for the record what the proffer of testimony would have been. Counsel fully
agrees that it would not have been relevant had the Government not have
opened the door in the first place as far as dispelling possible motives
of individuals in the bar.
MJ: Lieutenant Fisher?
TC: Well, sir, our response to that is that
it isnt relevant and also by offering such testimony thats essentially
an ingestion defense of which we havent received notice. Had we received
notice of that----
MJ: Well, I dont even look at that as innocent
ingestion. I dont think its relevant. I dont get the lead from someone
stealing somebodys wallet, to someone spiking someones drink, that someone
to--and, therefore an innocent ingestion defense, I dont get that at
all. I just think it would be a waste of the courts time. Im not going
to allow you to go into that matter. Your objection, though, is noted
for the record.



(Emphasis added.)
The military judges erroneous ruling broadly
denied the defense relevant evidence which could have also rebutted the
prosecutions case for drawing a permissive inference of knowledge. See
Ford, 23 MJ at 335; see generally United States v.
Banks, 36 MJ 150, 166 (CMA 1992).
Turning to the defense of innocent ingestion,
the rulings of the military judge prevented appellant from presenting probative
evidence and persuasive argument to the members on this more specific defense
theory. See Ford, supra at 336. The averred fact that
$80 cash and his military identification card were stolen from him in one
of the civilian bars on one of the nights in question might reasonably
suggest that he was an accessible target for surreptitious wrongdoing by
third parties. Such testimony, if believed, also arguably indicates that
the thief harbored ill will towards appellant, which might have led him
to also tamper with appellants drink. Finally, if believed by the members,
this motive and opportunity evidence could provide a concrete factual basis
for the members accepting appellants otherwise speculative and colorless
assertion that some unknown person for some unknown reason may have placed
cocaine in his drink. See United States v. Hodge, supra;
cf.
Harper, 22 MJ at 163.
Finally, we note that the military judge, as
a result of his misunderstanding of RCM 701, failed to give instructions
on innocent ingestion, which would have favored the defense. See Ford,
supra at 335-36; § 5-11-4, Military Judges Benchbook,
supra;
see generally, 1 W. LaFave and A. Scott, Substantive Criminal
Law § 1.8 n.44 at 75 (1986). As noted above, this Court held in
Ford that the Government faces an additional risk of non-persuasion
when defense evidence of innocent ingestion is introduced in a particular
case. The members were not instructed that the Government had this burden
with respect to the circumstantial defense evidence of innocent ingestion
actually admitted in this case; nor could they be with respect to that
defense evidence which was erroneously excluded. Similar instructional
failures have been found to be prejudicial to a defendant. See United
States v. Jones, 7 MJ 441, 443 n.1 (CMA 1979); see also United States
v. Williams, 23 MJ 362, 368 (CMA 1987) (instructions not adequate to
rule out members erroneous use of evidence).
In conclusion, the question whether appellant
knowingly used drugs as charged was presented to the members in this case.
Moreover, the defense was allowed to introduce some circumstantial evidence
suggesting unknowing ingestion of drugs and argue on this basis that the
prosecution had not proved knowledge beyond a reasonable doubt. However,
the defense was prohibited from introducing relevant evidence rebutting
the prosecutions pivotal contention that no one in the karaoke bars had
a motive for deliberately tampering with appellants drink. See Van
Arsdall, 475 U.S. at 679 (all inquiry into a witness bias improperly
prohibited); cf. United States v. Stewart, 104 F.3d 1377,
1384 (D.C. Cir. 1997). Moreover, appellant himself was prohibited from
testifying to his belief that his drink had been spiked and to the particular
circumstances supporting his belief. See United States v. Scheffer,
523 U.S. 303, 315-17 (1998); see also Wong v. Money,
142 F.3d 313, 325 (6th Cir. 1998) (evidentiary rule not unconstitutional
because accused was allowed to testify to his version of facts (all relevant
details) concerning charged offenses). Viewing these errors in the context
of this case and in light of Supreme Court and our Courts precedent, we
conclude that reversal is required. See United States v. Miller,
supra;
United States v. Coffin, supra; cf.
United States
v. Reveles, supra.
The decision of the United States Navy-Marine
Corps Court of Criminal Appeals is reversed. The findings of guilty and
sentence are set aside. The record of trial is returned to the Judge Advocate
General of the Navy. A rehearing may be ordered.
FOOTNOTES:
1 All
Manual provisions are cited to the version applicable at the time of trial.
The 1998 version is unchanged, unless otherwise indicated.
2 The
convening authority may decide such a rehearing is impracticable and dismiss
the charge. Art. 67(e), Uniform Code of Military Justice, 10 USC §
867(e).
3 UCMJ,
10 USC § 839(a).
4 The
appellate court below opined that "the military judge appear[ed] to have
confused the nature of the affirmative defense of innocent ingestion with
the requirement to give notice before raising it." It later referred to
the trial judges advice, which the defense "rel[ied] ostensibly on," as
"incorrect." Unpub. op. at 5.
5 Appellants
court-martial occurred before this version of the Military Judges Benchbook
was published.
 
 
CRAWFORD, Judge, with whom COX, Chief Judge,
joins (dissenting):
Although trial defense counsel withdrew her
notice of intent to offer the defense of innocent ingestion and was subsequently
warned not to pursue the defense, having withdrawn it, I cannot even begin
to imagine what more she could have introduced than she actually did. Thus,
and for the following reasons, I would affirm the lower courts decisions
on both Issues I and II.

DISCUSSION  ISSUE I
Requirement for Corroborating Witnesses:
The first question is whether the military judge erred in requiring that
the defense of innocent ingestion be raised by testimony of witnesses other
than appellant himself.
Assuming that the military judge did impose
such a requirement on the defense counsel, I concur with the majority that
that was error. RCM 701(b)(2), Manual for Courts-Martial, United States
(1995 ed.), requires only that, "in the case of an innocent ingestion defense,
the place or places where, and the circumstances under which the defense
claims the accused innocently ingested the substance in question, and the
names and addresses of the witnesses upon whom the accused intends to rely
to establish such [a defense]" must be disclosed to the Government before
the court-martial begins. Nowhere does the rule require the defense to
rely upon any witnesses to establish the defense.
However, I find it far from obvious that the
military judge created such a requirement. The military judge summarized
the February 26, RCM 802 conference at which the parties and the military
judge discussed defense counsels notice of the innocent ingestion defense,
as follows:

We basically discussed what it was and the
potential that if the defense was going to put that on, its an affirmative
defense in which she would have to put on evidence of persons and places
to which the events of innocent ingestion took place. We discussed that
defense counsel had not proffered any names or places and the trial counsel
indicated that he would be objecting to any kind of innocent ingestion
defense because none of the information has been met as required by the
RCM. I guess when we get to the motion stage, well discuss whether or
not you want to continue on with that motion or not, Lieutenant Bocock.

Neither counsel objected to this summary or asked
to add anything to it. See RCM 802(b). Nothing in this summary indicates
that the military judge was prepared to preclude this defense because of
a lack of witnesses. In fact, the summary merely indicates that the military
judge was inclined to have the defense notice litigated on the record.1
The matter was never litigated on the record
because defense counsel voluntarily withdrew the motion. Later, at an Article
39(a)2 session called
by the military judge when it appeared that defense counsel was pursuing
the defense despite having withdrawn her notice, defense counsel stated:

The reason why the defense was withdrawn
is because its my understanding that it would not be a defense unless
there are witnesses who could specifically state that they did something
to the individuals drink. However, it was my understanding that I could
still present the circumstances of the evening where something could have
happened.

Again, there is nothing in this statement that
indicates the military judge had previously told defense counsel that she
could not pursue this defense without corroborating witnesses. She only
indicated her own misinterpretation of the rule, without indicating a source
for her misunderstanding.
Finally, in her affidavit submitted to the
Court of Criminal Appeals, defense counsel states that, "at the 802 Session
held on 26 February 1996, the Military Judge stated that he would not allow
me to present evidence of innocent ingestion because I could not produce
evidence of an individual who may have put cocaine in MSSR Lewis drink
on the nights in question, or words to that effect." This statement is
inconsistent with what is revealed on the record of defense counsels reasons
for withdrawing her notice and the contents of the 802 conference. Were
this first question determinative, I would conclude that the case must
be remanded for a DuBay3
hearing, so that affidavits could be secured from trial counsel and the
military judge and other evidence could be analyzed. However, I do not
believe that this is the end of the Courts inquiry.
Constitutional Error: Assuming that
there was error, the next question is whether it rises to the level of
a constitutional error. The majority declines to answer this question,
deciding that if it is constitutional error, the Government has failed
to meet its burden of showing the error was harmless beyond a reasonable
doubt, and if it is not a constitutional violation, appellant has made
a sufficient showing that the error substantially prejudiced his material
rights. ___ MJ (12).
Denying an appellant the opportunity to testify
fully and present evidence in his defense, as is alleged in the first granted
issue, is an error of constitutional proportion. See Alicea v.
Gagnon, 675 F.2d 913 (7th Cir. 1982)(Wisconsins alibi-notice
statutes preclusion sanction abridged petitioners Fifth, Sixth, and Fourteenth
Amendment right to testify in his own defense; however, the error was harmless
given the overwhelming evidence against him and, most significantly, that
he was not ultimately precluded from offering the evidence); see also
Taylor v. Illinois, 484 U.S. 400 (1988)(Compulsory Process Clause
grants a criminal defendant the right to present evidence on his behalf
but does not bar a court from applying the preclusion sanction for noncompliance
with discovery rules); United States v. Johnson, 970 F.2d 907 (D.C.
Cir. 1992)(preclusion sanction does not require a least-restrictive-alternative
analysis or a showing of bad faith on the part of the defense).
Harmless Error: The final question,
again, assuming this error, is whether the Government has met its burden
of showing that the military judges error was harmless beyond a reasonable
doubt.
The majority assigns error to the military
judge in: (1) denying defense counsel the opportunity to convey appellants
version of the facts through appellants testimony of a possible motive
someone might have had to spike his drink at one of the clubs, and the
circumstances surrounding his possible innocent ingestion of cocaine; (2)
preventing defense counsel from framing the defense in her opening statement
and closing argument; and (3) failing to give an instruction on innocent
ingestion. I find all of these alleged errors to be harmless beyond a reasonable
doubt.
Appellant testified on his own behalf. Defense
counsel elicited from appellant that he was at two clubs on each of the
two days preceding his urinalysis. Appellant described the clubs as dark,
loud, and crowded. The military judge allowed defense counsel to introduce
a schematic drawing of the Princess Pub, the larger of the two clubs and
the one at which appellant spent the most time on the nights in question,
including marks representing the three places at which appellant sat. Appellant
further testified that he was drinking beer from both a bottle and a glass,
as were others around him at the bar. He testified that he was at the bar
location for approximately 45 minutes on the night before the urinalysis.
He also testified that he got up from his seat more than half a dozen times
to pay for karaoke music, use the restroom, and order food; that he always
left his unfinished beer at his place; that he would finish the beer when
he returned; and that the beer would not seem altered when he finished
it, just warmer.
In addition, appellant testified that he had
been to both clubs at least ten times each before these evenings. He stated
that he felt pretty comfortable at these clubs and that he had made no
enemies. Appellant testified that he went to the bars alone but that he
recognized the bartender and was on friendly terms with her. He also testified
that on the nights in question, he spoke to the bartender and a few female
patrons. Furthermore, he testified that on each night in question, he drank
between a half and three-quarters of a fifth of vodka before going out
and had approximately a dozen beers at the clubs.
Motive to Spike Appellants Drinks:
The Governments cross-examination of appellant included questions intended
to elicit whether he had any enemies at the clubs that might have intentionally
spiked his drinks. Appellant indicated that he did not know anyone at the
clubs; that he was there alone; and that he only had intermittent small
talk with other patrons and the staff. When asked if anyone there knew
appellant was in the Navy, his response was that it was pretty obvious
he was a sailor, but that he did not recall anyone asking him that and
he doubted he had told anyone. Redirect consisted almost entirely of the
following:



DC: Now, on the 26th, when you
went to the Princess Pub, did you notice anything missing from your possession?
ACC: Yes. That was the night that I got $80.00
stolen from me.
DC: What night was that?
ACC: The 26th.
TC: Objection. Relevance.
MJ: Sustained.
DC: Was anyone talking to you when you were
at the Princess Pub on the 26th?
ACC: The waitresses, people. Sometimes you
sing a song, or whatever, and you just strike up a conversation of how
good it was or how bad it was, nothing in length.
DC: Nothing further, sir.



The remainder of appellants defense consisted
of witnesses and documentary evidence of appellants good military character
and reputation for truthfulness.
Defense counsel did not raise the stolen wallet
issue again until the following morning during an Article 39(a) session,
as follows:



DC: Yes, sir. When petty Officer Lewis was
testifying yesterday, the Government was allowed to get into the fact that
no one in the bar may have had a motive to put something in his drink.
He was allowed to ask questions such as: Did you have a fight with anyone?
Did you have a problem with anyone? Then, on redirect, defense, myself,
tried to get into the possibility that someone might have had that motive
which the Government had opened the door to that and I was not allowed
to ask questions on that. If I could, I would at least like to, for the
record, make an offer of proof.

* * *
DC: On the cross-examination of the witness,
the Government had asked whether or not anyone in the bar were to have
a fight with anyone in the bar, whether anybody in the bar had a problem
with you, to which the witness stated "no." And then on redirect, I attempted
to get out the fact that stuff was taken from Petty Officer Lewis and I
was not allowed to ask that question.
MJ: And?
DC: The objection being that the Government
essentially opened the door by trying to dispel that anybody would have
had a motive.
MJ: So, youre saying, basically, his wallet
or something was stolen?
DC: Thats correct, sir.
MJ: And the proffer youre saying is?
DC: Essentially, sir, the testimony would have
been that money was stolen in the amount of $80.00 and his military I.D.
was stolen also.
MJ: And how is that relevant?
DC: Well, again, sir, the Government opened
the door by attempting to draw it out that no one in the bar would have
had a motive to do anything to spike Petty Officer Lewis drink.

* * *
MJ: For arguments sake, how does the motive
to spike someones drink correlate with --
DC: Well, sir ---
MJ: A motive to steal someones wallet?
DC: Well, sir, if someone was intending to
steal something from Petty Officer Lewis, that would indicate, first of
all, that someone did have a problem with him, someone did know he was
in the military, so again, it would ---

* * *
DC: Sir, like I said, I just wanted to state
for the record what the proffer of testimony would have been. Counsel fully
agrees that it would not have been relevant had the Government not have
opened the door in the first place as far as dispelling possible motives
of individuals in the bar.

* * *
MJ: Well, I dont even look at that as innocent
ingestion [evidence]. I dont think its relevant. I dont get the lead
from someone stealing somebodys wallet, to someone spiking someones drink,
that someone to - and, therefore an innocent ingestion defense, I dont
get that at all.



Setting aside that defense counsels proffer was
untimely, there is nothing faulty in the military judges analysis. Evidence
that appellants wallet was stolen at the Princess Pub on October 26 is
not relevant as to why an acquaintance, let alone a perfect stranger, would
want to put cocaine in appellants drink without him knowing. Mil.R.Evid.
401, Manual, supra ("Relevant evidence means evidence having any
tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable tha[n] it would
be without the evidence.").
As the Governments expert witness, Mr. Cecil
Hornbeck testified that people mix cocaine in their alcoholic drinks because
it enhances the cocaine high and diminishes the drunken effect. This is
viewed positively by drug users. It has no apparent malevolent use, like
drugging a person into an incapacity to fight off a sexual attack or a
robbery attempt.
The Government suggested as much in its closing
argument when trial counsel noted that cocaine is expensive and, therefore,
it is "counter-intuitive that someone would go about - drugging an expensive
substance - the perfect stranger [sic]." Defense counsel may have come
to a similar realization because she did not respond to that part of the
Governments argument. Instead, defense counsel used the evidence she had
presented to suggest that in that dark, crowded club, with all the similar
looking glasses of beer surrounding appellants, he could have just picked
up someone elses intentionally-spiked drink by accident.
Evidence that whoever stole his wallet also
stole his military I.D. and might have had a motive to spike his drink
because he was a sailor is similarly unconvincing. Furthermore, appellant
testified that he thought it was obvious to everyone there that he was
a member of the military, without their having the proof of his I.D. card.
Thus, I would conclude that this evidence not
only was properly excluded pursuant to Mil.R.Evid. 401, but also presents
a significantly less persuasive strategy than that actually used by defense
counsel in her closing argument.
Appellants Testimony: Once appellant
had begun to testify about how dark and crowded the clubs were, and about
the drawing of the Princess Pubs layout, the military judge called an
Article 39(a) session sua sponte. His concern was that defense
counsel was getting awfully close to the innocent ingestion defense she
had withdrawn. Defense counsel indicated that the evidence she wanted to
present was of "the nature of the club, how crowded the club was, where
people may have been sitting. Where the witness, Petty Officer Lewis, may
have been sitting. Again, just laying out what the circumstances and the
atmosphere of the club were on that evening."
Despite trial counsels objections, the military
judge told defense counsel that she could present this evidence: "As I
understand it, you want to have the witness testify that he was - I went
to these clubs at certain nights; I sat here; I sat there; I sat there;
there were lots of people; it was dark; it was crowded. What else?" Defense
counsel said that was basically all she wanted to present and that she
would not be getting into whether this club might be known to be frequented
by drug users.
As the above discussion indicates, not only
was defense counsel able to present all of this evidence through appellants
testimony, but she was also able to use it in a persuasive fashion in her
closing argument. I find incredible defense counsels post-trial statement
that, "because of the Judges statements that he would cut me off if I
started to present evidence of innocent ingestion, I was not able to get
out as much detailed information on the atmosphere of the club, the demeanor
of the people at the club, what other people in the club were drinking
and how they were acting."
Other than appellant saying straight out that
he knew that people at this club spiked their drinks with cocaine - which
would violate what defense counsel explicitly told the military judge she
would not do and also potentially play to the Governments tactical advantage
- I am at a loss for what more detail defense counsel could have presented.
There is no magical incantation necessary to make a defense a defense.
The military judge permitted defense counsel to present evidence which
subtly suggested a viable innocent ingestion alternative to the members.
See
Gagnon, 675 F.2d at 925.
Furthermore, a specific instruction on the
defense of innocent ingestion could not have focused the members attention
on the issue of knowing ingestion any more than the instruction given on
knowledge did. The military judge made clear to the members that appellant
could not have knowingly ingested cocaine if someone had slipped it into
his drink without his awareness.

DISCUSSION  ISSUE II
Because I find that any error by the military
judge with regard to Issue I was harmless beyond a reasonable doubt, I
must, unlike the majority, resolve Issue II.
Where a military judge refuses to give a requested
instruction, this Court reviews for an abuse of discretion. United States
v. Damatta-Olivera, 37 MJ 474, 478 (CMA 1993), cert. denied,
512 U.S. 1244 (1994). "The test to determine if denial of a requested instruction
constitutes error is whether (1) the charge is correct; (2) it is not
substantially covered in the main charge; and (3) it is on such a vital
point in the case that the failure to give it deprived defendant of a defense
or seriously impaired its effective presentation." Id., quoting
United
States v. Winborn, 14 USCMA 277, 282, 34 CMR 57, 62 (1963);
see
also United States v. Poole, 47 MJ 17, 19 (1997).
Defense counsel requested an instruction on
voluntary intoxication, which was rejected by the military judge. Though
appellants only characterization of his level of sobriety on the nights
in question was that he was "feeling great," he testified that he had at
least half a fifth of vodka and a half a case of beer on each night. It
is unclear over what period of time appellant drank this alcohol. Furthermore,
he indicated that, at the time of both the urinalysis and the court-martial,
he weighed 185 pounds and stood at 57".
The Government makes a convincing argument
that appellants memory seems to be unimpaired by this heavy drinking.
In addition, although Mr. Hornbeck testified that appellants urinalysis
results indicated coca-ethylene in his system, a drug created when alcohol
and cocaine are ingested concurrently, he also testified that the substances
do not have to be mixed together to be considered concurrently ingested.
Mr. Hornbeck also testified that mixing the two substances enhances the
cocaine high but diminishes drunkenness. He further testified that, given
defense counsels hypothetical that the drugs were orally ingested 24 hours
prior to the urinalysis, the level evidenced in the testing4
indicated that a "recreational dose ... designed to get a person high"
was ingested.
Voluntary intoxication is generally not a defense;
however, evidence of it can be introduced to raise "a reasonable doubt
as to the existence of actual knowledge ... if actual knowledge ... is
an element of the offense." RCM 916(l)(2); see also United
States v. Hensler, 44 MJ 184, 187 (1996) (voluntary intoxication is
not a defense to a general-intent crime but may raise reasonable doubt
as to actual knowledge).
Assuming, without deciding, that there was
some evidence to support this instruction, and that the military judge
erred in not giving it, I would find that there was no prejudice. See
Damatta-Olivera, 37 MJ at 480 (Sullivan, C.J., concurring in the result)
(the second and third prongs of the test essentially test for prejudice).
The members were sufficiently instructed that appellants use must have
been both knowing and conscious. Had they chosen to believe appellants
alternative scenario of innocent ingestion, they would have implicitly
believed that he was too drunk to know which drink was his and that his
beer was having an unusual effect on him. The instructions as given permitted
them to do so.5
Thus, I would affirm the lower courts decision.
FOOTNOTES:
1 It is worth noting that
the notice offered by the defense was indeed meager. It stated that the
defense was "not offering any specific location, specific circumstances
or specific witnesses to testify as to where the innocent ingestion took
place"; that the "[c]ircumstances surrounding the possible innocent ingestion
are unknown," but that it "could have" occurred at Club Chance or the Princess
Pub on "25 October 1995"; and that there are "no witnesses who will testify
as to any direct knowledge of the accused innocently ingesting any cocaine."
See
Appendix.
2 UCMJ,
10 USC § 839(a).
3 United
States v. DuBay, 17 USCMA 147, 37 CMR 411 (1967).
4 Testing
showed 10489.6 ng/ml. The legal cut-off used by the Navy lab to confirm
as positive for cocaine is 100 ng/ml.
5 I note
somewhat parenthetically that there was evidence not presented to the members,
and which the Government chose not to pursue, that appellants urine sample
also tested positive for THC (marijuana). Though the level was below the
legal cut-off for a positive result, Mr. Hornbeck stated that the sample
"has a better than 99 percent chance of confirming positive for THC." In
his addendum to his RCM 1105 matters, appellant wrote that he is "coping
with [his] substance abuse problem," though he does not indicate whether
that is alcohol or drug abuse or both.

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