CAAFlog » September 2012 Term » United States v. Porter

CAAF decided the certified case of United States v. Porter, No. 12-5003/MC, 72 M.J. 335 (opinion) (CAAFlog case page) on July 8, 2013, finding that portions of the drug testing report were testimonial and that their admission into evidence over Defense objection was preserved constitutional error that was not harmless beyond a reasonable doubt, and affirming the NMCCA’s opinion that set aside Appellee’s convictions.

The court issued a per curiam opinion, and did not hear oral argument. The NMCCA issued two opinions in this case, which we discussed here and here.

(plagiarizing from our prior coverage here:) Appellee was involved in a car crash off-base near MCAS Cherry Point and was taken to a civilian hospital. The doctors performed toxicology tests that indicated drug use. The next day, Appellee went to a military medical facility where doctors suspected he was still under the influence of drugs and ordered toxicology reports for medical reasons. Those tests were positive for cocaine and marijuana. Appellee’s CO then ordered a probable cause seizure and search of Appellee’s blood and urine to test for evidence of drug use. CID sent the samples to the Armed Forces Institute of Pathology (AFIP) for testing. AFIP determined that the samples were positive for cocaine and marijuana. An AFIP expert witness with no involvement in the testing showed up to testify at Appellee’s judge-alone special court-martial. The government offered a 169-page report that included the signatures of analysts and a reviewer who weren’t present at trial. Defense Counsel objected on Confrontation Clause grounds. The Military Judge admitted the exhibit into evidence over the Defense objection.

The CCA found that the admission was error, in violation of Appellee’s rights under the Confrontation Clause, and reversed. The Judge Advocate General of the Navy then certified the case to CAAF, with two issues that questioned the purpose of the statements and their affect on the findings. In its resolution of the case, CAAF notes that “[a]t no time during his testimony, however, did [the expert] specifically interpret or rely on the machine-generated data contained in the [drug testing report] to independently conclude that Appellee’s sample tested positive for [marijuana] and [cocaine].” Slip op. at 5. This becomes dispositive, as two pages from the 169 page report “contain summaries of the test results with signatures of an analyst and a reviewer,” and the expert “primarily relied on these pages to establish that AFIP’s testing controls and standards were met for Appellee’s test.” Slip op. at 6.

CAAF explains that “the two summary confirmation pages at issue squarely qualify as testimonial statements under the Supreme Court’s various formulations.” Slip op. at 6-7. This analysis includes the fact that “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.” Slip op. at 7. They “were generated by an external request from CID for the purpose of criminal investigation” (slip op. at 7) and “were created for the purpose of “establish[ing] or prov[ing] past events potentially relevant to later criminal prosecution” (slip op. at 8). And CAAF cannot say that their admission was harmless, so the CCA’s decision that set-aside the findings and authorized a rehearing is affirmed.

I see CAAF’s focus on the reasons the statements were created as particularly significant. In my discussion of the CCA’s second opinion, I noted that even though the entire report was prepared for the purpose of litigation (meaning it was not a business record excepted from the rule against hearsay), the CCA observed that CAAF has relied on an analysis of the reason for each statement – rather than the reason for the original collection of evidence – when determining if a statement is testimonial. The CCA also noted that “CAAF has held that machine-generated data and printouts are not statements and thus not hearsay because machines cannot be considered declarants” (and if there’s no declarant, there’s no hearsay that needs a business record exception). I lamented this development, as I had some years earlier, because it implies that so long as the quest for evidence is conducted by machines, no witness need appear in court in order to admit the results produced by those machines (I think this terribly mistaken).

CAAF’s resolution of this case indicates that the court is not ready to totally abandon the original purpose test when looking at statements, as the court repeatedly references the criminal investigation that lead to the drug testing report. But in an age when the military is automating everything, the court doesn’t have a reason to directly address my concern about prosequi ex machina.

Yet.

Case Links:
NMCCA opinion
Blog post: Significant unpublished NMCCA opinion
NMCCA corrected opinion
Blog post: NMCCA revises reasoning in Porter, result unchanged
Blog post: Porter certified to CAAF
CAAF opinion
Blog post: Opinion analysis

CAAF issued three opinions today:

United States v. Schell, No. 13-5001/AR (opinion) (CAAFlog case page)

United States v. Porter, No 12-5003/MC (opinion) (CAAFlog case page)

United States v. Mott, No. 12-0604/NA (opinion) (CAAFlog case page)

It’s going to be a few days before I’ll have a chance to analyze them.

The court also docketed a certificate of review in another (see Arriaga and Carter) Air Force case involving prejudice and the plain error test:

United States v. Lindgren, No. 13-5009/AF

Issues:
I. Whether Appellee satisfied his burden to demonstrate that the defective specification under Article 134, UCMJ, materially prejudiced his substantial rights when he was provided actual notice of the terminal element through an Article 32 report received prior to trial.
II. Whether the Air Force Court of Criminal Appeals applied an erroneous standard of law when evaluating whether the defective specification under Article 134, UCMJ, materially prejudiced Appellee’s substantial rights by failing to consider whether the evidence on the missing element was “overwhelming and essentially uncontroverted” and by finding notice of the missing element was not extant in the record.
III. Whether this honorable court should apply the fourth prong of the plain error analysis as articulated by the United States Supreme Court in United States v. Olano, 507 U.S. 725 (1993), when assessing whether the defective specification under Article 134, UCMJ, materially prejudiced appellee’s substantial rights in this case.

We’ve previously taken a couple of looks at NMCCA’s unpublished Porter decision (here and here). United States v. Porter, No. NMCCA 201100188 (N-M. Ct. Crim. App. June 28, 2012). Today the Judge Advocate General of the Navy certified two issues in the case to CAAF:

I

THE ENTRIES ON PAGES 54 AND 154 OF PROSECUTION EXHIBIT 15 THAT NMCCA FOUND TO BE TESTIMONIAL 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 APPELLANT’S CONVICTION WHERE THESE ENTRIES ONLY PROVIDED TECHNICAL DATA AND THE GOVERNMENT’S CASE WAS OTHERWISE STRONG?

In May we discussed the NMCCA’s unpublished opinion in United States v. Porter, No. NMCCA 201100188 (N-M. Ct. Crim. App. Apr. 26, 2012), in which it applied CAAF’s opinion in United States v. Sweeney, 70 M.J. 296, 301 (C.A.A.F. 2011) to find a violation of the appellant’s Sixth Amendment right to confrontation in the admission of a drug testing report, and set-aside the findings and sentence.

What was interesting in May was that the CCA found the error was preserved by the defense (which objected at trial), but then applied a plain error analysis. Generally, preserved constitutional errors are reviewed not for plain error, but for harmlessness beyond a reasonable doubt. See, United States v. Blazier, 69 M.J. 218, 226 (C.A.A.F. 2010) (citing United States v. Gardinier, 67 M.J. 304, 306 (C.A.A.F.2009)).

In an opinion dated yesterday, the CCA “clarif[ied] the standard applied by the court in resolving the assignment of error (plain error or harmless beyond a reasonable doubt).” United States v. Porter, No. NMCCA 201100188, slip op. at 1-2 (N-M. Ct. Crim. App. June 28, 2012). “However, considering the Government’s reliance on pages 54 and 154 of PE 15, we cannot say that the erroneous admission of these testimonial statements was harmless beyond a reasonable doubt.” Slip op. at 9 (emphasis added).

Judge Lutz, who found the error harmless beyond a reasonable doubt in the original opinion, still finds the error harmless beyond a reasonable doubt, and dissents.

One additional note: Back in May I wondered if the entire report wasn’t inadmissible hearsay because it was prepared at the commander’s request. “The treating physician independently ordered a toxicology screen for strictly medical purposes that indicated positive results for marijuana and cocaine.” Slip op. at 2 N.2. But,”while the appellant was receiving treatment, his commanding officer authorized a blood and urine sample to search for evidence of drug use. The blood and urine samples were turned over to the Criminal Investigative Division, which sent the samples to the AFIP lab for testing. AFIP performed a battery of tests and concluded that the samples were positive for illegal controlled substances, specifically marijuana and cocaine.” Slip op. at 2 (citations to record omitted).

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Another significant unpublished NMCCA opinion was United States v. United States v. Porter, No. NMCCA 201100188 (N-M. Ct. Crim. App. Apr. 26, 2011). While agreeing unanimously that a Confrontation Clause violation occurred, the panel split 2-1 as to prejudice. Senior Judge Maksym wrote the majority opinion for himself and Senior Judge Payton-O’Brien. Judge Lutz dissented.

The accused was in a car crash off base near MCAS Cherry Point and taken to a civilian hospital. The doctors performed toxicology tests that indicated drug use. The next day, the accused went to a military medical facility where doctors suspected he was still under the influence of drugs and ordered toxicology reports for medical reasons. Those tests were positive for cocaine and marijuana.  The accused’s CO then ordered a probable cause seizure and search of the accused’s blood and urine to test for evidence of drug use.  CID sent the samples to the Armed Forces Institute of Pathology (AFIP) for testing. AFIP determined that the samples were positive for cocaine and marijuana.

An AFIP expert witness with no involvement in the analysis or review of the accused’s sample and no supervisory role at the lab showed up to testify at the accused’s military judge alone special court-martial.  The government offered a 169-page report that included the signatures of analysts and a reviewer who weren’t present at trial.  The defense counsel objected on Confrontation Clause grounds.  The military judge admitted the exhibit into evidence over the defense’s objection.

Applying CAAF’s Sweeney decision, NMCCA held that it must review each statement in the lab report to determine whether it would be reasonably foreseeable to an objective that the statement would be used as evidence at a later trial.

The particular portions of the report at issue in Porter were signature blocks on two pages of the drug testing report, one preceded by the words “ANALYZED BY” and the other “REVIEWED BY.” The former had a typed name in the signature block while the latter contained an actual signature.  The opinion explained:

Immediately above these signature blocks are the test results and then the words “CONTROL(S) AND STANDARD(S) WITH TOXNO: 10-4748.” This information seems to indicate that the analyst and reviewer were ensuring quality control by checking the “CONTROL(S)” and “STANDARD(S)” of the tests performed on the appellant’s blood and urine. . . .  The typed and printed signatures following the “ANALYZED BY:” and “REVIEWED BY:” can serve no other purpose in our view than to certify that the “CONTROL(S) and STANDARD(S)” in the appellant’s tests were met, particularly as the test results, the “CONTROL(S) AND STANDARD(S)” language, and the signature blocks follow in direct sequence. As certifications, pages 54 and 154 are properly considered statements rather than mere technical data.

 

Porter, slip op. at 5-6 (internal citations omitted).

NMCCA then held that those statements were “testimonial.”  The court explained:

The appellant’s blood and urine were tested for alcohol and drugs at the specific request of his commanding officer, who suspected the appellant of being under the influence of alcohol or drugs. The samples were sent to the AFIP by criminal investigators, as opposed to the command urinalysis coordinator. Most importantly, the AFIP expert, Dr. Shippee, testified that the technicians knew the purpose of each test based on the nature of the sample.  According to Dr. Shippee, upon receiving a package:

["]They then log it into a book, and they open up the specimen and they determine what it is. If it is postmortem, you are probably going to (sic) tissue that you have the (sic) process. So that would have to be laid out. If it is a criminal investigation, it will be urine and blood.["]

The AFIP technicians, according to the AFIP expert, know at the start of the testing process which samples are destined for use as evidence in criminal investigations. In other words, it would have been “reasonably foreseeable to an objective person that the purpose of any individual statement in a drug testing report is evidentiary.” Sweeney, 70 M.J. at 302. As such, these statements, memorialized on pages 54 and 154 of PE 15, must be considered testimonial in nature.

Id., slip op. at 6.  The court then held that the presence at trial of an AFIP expert with no involvement in the testing didn’t satisfy the accused’s right to confrontation. 

Having found error, the majority then did something odd.  Remember that earlier in the opinion, the court told us that “[w]hile detailed defense counsel objected that the exhibit violated the Confrontation Clause, the trial judge admitted PE 15 into evidence.”  Id., slip op. at 3.  The very error the majority found was properly preserved by the defense, so the findings and sentence must be reversed unless the government demonstrates that the violation of the accused’s Sixth Amendment right to confront his accusers was harmless beyond a reasonable doubt.  See, e.g., United States v. Blazier, 69 M.J. 218, 226 (C.A.A.F. 2010).  But the Portermajority applied the plain error test instead.  Porter, slip op. at 7.  The majority wrote:  “Having found that the statements were in fact testimonial we must now consider whether it was plain error to have admitted them. Under plain error review, this court will grant relief where (1) there is error; (2) the error is plain and obvious, and (3) the error materially prejudiced a substantial right of the accused.”  The majority’s use of the wrong prejudice analysis didn’t end up prejudicing the accused, though, because it held that the Confrontation Clause error required reversal of the findings and sentence.

Judge Lutz agreed that the two pages of the report, as well as the expert witness’s testimony about those pages, was erroneously admitted.  But, without repeating the majority’s erroneous prejudice standard, Judge Lutz opined that that evidence’s admission was harmless beyond a reasonable doubt.  The dissent relied on a portion of the AFIP report and the expert witness’s testimony about that portion that was not the subject of a defense objection, as well as testimony concerning the results of the toxicology reports that had been ordered for medical reasons.