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
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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.”
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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
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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
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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
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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.
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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