UNITED STATES, Appellee
v.
Eric E. GRANT, Staff Sergeant
U.S. Air Force, Appellant
No. 01-0363
Crim. App. No. S29569
___________________________________________________________
United States Court of Appeals for the Armed Forces
Argued October 23, 2001
Decided April 18, 2002
BAKER, J., delivered the opinion of the Court, in which CRAWFORD,
C.J., GIERKE and EFFRON, JJ., and SULLIVAN, S.J., joined. SULLIVAN,
S.J., filed a concurring opinion.
Counsel
For Appellant: Captain Karen L. Hecker (argued); Colonel James
R. Wise and Lieutenant Colonel Timothy W. Murphy (on brief).
For Appellee: Major Linette Romer (argued); Colonel Anthony P.
Dattilo, Major Lance B. Sigmon, and Major Byran T. Wheeler (on
brief); Captain James C. Fraser.
Military Judge: Robin D. Walmsley
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION
United States v. Grant, No. 01-0363/AF
Judge BAKER delivered the opinion of the Court.
Contrary to his pleas, appellant was convicted by a special
court-martial, composed of officer members, of one specification
of wrongful use of marijuana on divers occasions,1 in violation
of Article 112a, Uniform Code of Military Justice, 10 USC
§ 912a. Appellant’s adjudged and approved sentence provides for
a bad-conduct discharge, forfeiture of $622 for one month, and
reduction to pay grade E-1. The Court of Criminal Appeals
affirmed in an unpublished opinion. We granted review of the
following issues:
I
WHETHER THE MILITARY JUDGE ERRED BY APPLYING
A LOWER STANDARD OF ADMISSIBILITY FOR
EVIDENCE USED AS CORROBORATION OF A
CONFESSION TO DRUG USE THAN HE WOULD HAVE
APPLIED IF THE SAME EVIDENCE HAD BEEN
OFFERED AS DIRECT PROOF OF DRUG USE, AS
SHOWN BY HIS ADMISSION OF A MEDICAL DRUG
SCREEN TEST RESULT:
A. AS A BUSINESS RECORD EXCEPTION TO THE
HEARSAY RULE DESPITE A LACK OF
FOUNDATION AND AUTHENTICATION TESTIMONY.
B. WHEN THE URINE WAS NOT MAINTAINED
SUBJECT TO ANY CHAIN OF CUSTODY
PROCEDURES PRIOR TO TESTING AND THE
GOVERNMENT DID NOT PRESENT ANY EVIDENCE
THAT THE URINE WAS PRESERVED IN AN
UNALTERED STATE.
C. WITHOUT ANY EXPERT TESTIMONY REGARDING
THE TEST PROCEDURES OR THE RESULTS.
1
“Specification: In that STAFF SERGEANT ERIC E. GRANT . . . did, . . . on
divers occasions, between on or about 15 October 1997 and on or about 23
November 1997, wrongfully use marijuana.”
2
United States v. Grant, No. 01-0363/AF
II
WHETHER THE MILITARY JUDGE ERRED BY FINDING
THE 22 NOVEMBER DRUG SCREEN TEST RESULT TO
BE CORROBORATION OF THE ESSENTIAL FACTS OF
APPELLANT’S CONFESSION TO DIVERS USES OF
MARIJUANA IN OCTOBER AND NOVEMBER.
III
WHETHER THE MILITARY JUDGE ERRED TO THE
SUBSTANTIAL PREJUDICE OF APPELLANT WHEN HE
INSTRUCTED THE MEMBERS ON THE USE OF THE
DRUG SCREEN TEST RESULTS TO CORROBORATE THE
CONFESSION.
IV
WHETHER THE MILITARY JUDGE ERRED TO THE
SUBSTANTIAL PREJUDICE OF APPELLANT IN NOT
GRANTING THE DEFENSE MOTION FOR A FINDING OF
NOT GUILTY DUE TO INSUFFICIENT CORROBORATION
OF APPELLANT’S CONFESSION.
Our resolution of the first two issues against appellant makes
it unnecessary to reach the remaining issues, and we affirm.
BACKGROUND
On November 22, 1997, appellant was found unconscious at
the club complex on Incirlik Air Base in Turkey. He was
transported by ambulance to the base hospital, where he was
evaluated by the physician on duty, Captain (Capt) Poindexter.
Observing that appellant was unconscious and unresponsive to
pain stimuli, Capt Poindexter ordered, among other things, a
drug screen urinalysis. The drug screen was ordered in
accordance with “the customary medical protocol for diagnosis
3
United States v. Grant, No. 01-0363/AF
and treatment” followed when the physician encounters a patient
in appellant’s condition. The purpose for the screen was to
detect the presence of any “abnormal” drugs in the body. Once
the physician learned what drug was present, a treatment option
could be selected to rapidly eliminate the drug from the body,
thereby decreasing the patient’s unresponsiveness.
In the two years he had been stationed at the Incirlik
hospital, Capt Poindexter never ordered a drug screen prior to
this occasion. Consequently, he was unaware that the hospital,
unequipped to perform the screen, was required to send
appellant’s urine sample to the Armstrong Laboratory at Brooks
Air Force Base in Texas. It took two weeks for Incirlik to
receive results of any drug screen requested from Brooks Air
Force Base. Apparently, Capt Poindexter’s experience stateside
had been that a physician could receive results of a drug screen
within an hour of requesting one.
Meanwhile, based on results of other tests requested by
Capt Poindexter and received at the time of initial treatment,
he diagnosed appellant as suffering from acute alcohol
intoxication. Appellant was treated accordingly and released
from the hospital the following day, November 23. Although
appellant had been released, the hospital continued processing
Capt Poindexter’s request to test the urine sample.
4
United States v. Grant, No. 01-0363/AF
Armstrong Laboratory subsequently received the sample on
November 28, tested it, and notified Incirlik of the results by
e-mail on December 5. Senior Airman (SrA) Lynch, a lab
technician at the hospital, received the results from Armstrong,
downloaded the report, and printed it out. This report
contained the “Armstrong Laboratory Epidemiology Division”
heading at the top of the page. It also contained the name and
Social Security Number of the patient, along with the various
drugs tested for and the results of those tests. The result
column of the report indicates either “NEGATIVE” or “POSITIVE,”
depending on what drugs were detected in the patient’s urine.2
This report indicated that appellant’s urine tested positive for
cannabinoids.
On December 9, appellant was interviewed by agents of the
Air Force Office of Special Investigations and initially denied
using marijuana. However, after being confronted with the
results of the drug screen, appellant executed a handwritten
statement admitting to the use of marijuana on three separate
occasions. The statement, in relevant part, reads as follows:
15 Oct 97
I went to the Alley and was asked by Tony if I
wanted to go to a party. I said okay and we left.
Tony stopped by a friends [sic] house and told me to
come on. I said okay and we went upstairs. Tony’s
friend got a bowl and pipe out and asked me [and] Tony
2
For positive results, the report does not show what amount of the drug is
present.
5
United States v. Grant, No. 01-0363/AF
to take a hit. . . . I took it and I took 2 hits. . .
. The pipe we smoked was filled with marijuana.
1st week Nov 97
I ran into Tony at the [A]lley and he told me to
jump in his ride and I did. He . . . stopped by his
[same] friends [sic] house. . . . We went upstairs and
his friend brought out a pipe again and the same thing
happened. Tony passed it over to me and told me to
take a hit three times so I did. . . . Again, the pipe
was filled with marijuana.
2nd or 3rd week in November
I was down in the [A]lley as usual and was having a
drink . . . and saw him there. . . . We went to his
buddies (sic) home again and the same thing happened
again. He said take this and I said okay . . . . On
this occasion I smoked 3 to 4 hits of marijuana at the
same house.
At trial, the Government offered the report of the positive
drug screen as an exception to the hearsay rule under
Mil.R.Evid. 803(6), Manual for Courts-Martial, United States
(2000 ed.),3 for the limited purpose of corroborating appellant’s
confession of December 9. The Government called no witnesses
from either Incirlik or Armstrong to testify about the chain of
custody regarding appellant’s urine sample. Nor did it call any
witnesses to testify about the testing procedures used at
Armstrong Laboratory. Instead, the Government called Capt
Poindexter and SrA Lynch to demonstrate the hospital’s reliance
on the record and to establish that the record was procured and
3
All Manual provisions are identical to the ones in effect at the time of
appellant’s court-martial.
6
United States v. Grant, No. 01-0363/AF
incorporated in the hospital’s records in the normal course of
business. Over timely defense objection, the military judge
admitted the report to corroborate appellant’s confession and
subsequently admitted the confession.
DISCUSSION
I
Appellant’s complaint on appeal is that the drug screen
report from the Armstrong lab was not admissible as a business
record, and that the military judge should have treated the
report in the same fashion as urinalysis reports admitted in the
“standard urinalysis case.” Consequently, the members should
not have been allowed to consider his uncorroborated confession.
Regardless of the purpose for which it is admitted, all
evidence must be authentic,4 relevant, and otherwise competent.
See generally 2 John W. Strong, McCormick on Evidence § 212 at
8, § 218 at 36 (5th ed. 1999); Black’s Law Dictionary 577 (7th
ed. 1999). We review a military judge’s ruling admitting or
excluding evidence for an abuse of discretion. United States v.
Hursey, 55 MJ 34, 36 (2001).
Competence of the Lab Report as a Business Record
Appellant asserts that at trial, the Government provided
4
We note the report, Prosecution Exhibit 1, contained a stamped certification
from the custodian of the record. Therefore, the document was self-
authenticating under Mil.R.Evid. 902(4a), Manual for Courts-Martial, United
States (2000 ed.).
7
United States v. Grant, No. 01-0363/AF
insufficient foundation to admit the Armstrong lab report under
Mil.R.Evid. 803(6) as a business record of the Incirlik
hospital. Mil.R.Evid. 803(6) is one of a number of exceptions
to the hearsay rule. It states in pertinent part:
The following [is] not excluded by the hearsay rule. . .
* * *
Records of regularly conducted activity. A memorandum,
report, record, or data compilation, in any form, of
acts, events, conditions, opinions, or diagnoses, made
at or near the time by, or from information
transmitted by, a person with knowledge, if kept in
the course of a regularly conducted business activity,
and if it was the regular practice of that business
activity to make the memorandum, report, record, or
data compilation, all as shown by the testimony of the
custodian or other qualified witness, unless the
source of information or the method or circumstances
of preparation indicate lack of trustworthiness.
This Court has yet to address the foundation necessary to
admit under Mil.R.Evid. 803(6) a business record created by a
third party not before the trial court, that is incorporated
into the business records of the testifying party. However, as
the Military Rules of Evidence are largely derived from the
Federal Rules of Evidence, we look to the federal Courts of
Appeals for treatment of the issue. Our review reveals that
these courts have generally held that a document prepared by a
third party is properly admitted as part of a second business
entity’s records if the second business integrated the document
into its records and relied upon it in the ordinary course of
8
United States v. Grant, No. 01-0363/AF
its business. See Air Land Forwarders, Inc. v. United States,
172 F.3d 1338 (Fed. Cir. 1999); MRT Construction, Inc. v.
Hardrives, 158 F.3d 478 (9th Cir. 1998); United States v. Doe,
960 F.2d 221 (1st Cir. 1992); United States v. Jakobetz, 955
F.2d 786 (2d Cir. 1992); United States v. Ullrich, 580 F.2d 765
(5th Cir. 1978); United States v. Carranco, 551 F.2d 1197 (10th
Cir. 1977).
At issue in Air Land Forwarders, Inc., was the trial
court’s admission of certain repair estimates produced by third
parties but maintained in the records of a military
transportation office. Air Land Forwarders, Inc., was a common
carrier under contract with the Military Traffic Management
Command to transport servicemembers’ household goods. When a
member initiated a claim, he was required to submit a number of
documents detailing the circumstances of the loss.
Servicemembers could also submit repair estimates prepared by
third parties to prove the amount of the claim. The trial court
concluded that it was the regular course of the Military Traffic
Management Command to collect such information and include it in
the entire claims file. It further concluded that the military
relied upon the repair estimates to properly adjudicate the
claims, indicating the military’s interest in the accuracy of
the claims records. 172 F.3d at 1341, 1343. Finally, the trial
court concluded that the trial record contained assurances of
9
United States v. Grant, No. 01-0363/AF
reliability. For instance, servicemembers filed their claims
with the knowledge that filing a false claim exposed them to
criminal liability. Id. at 1343. The Court of Appeals then
held that the repair estimates were “properly admitted. . . even
though the government did not produce a witness that could
testify with first-hand knowledge as to the procedures used in
the original preparation of each of the repair estimates.” Id.
at 1344.
In Doe, the defendant was convicted of being a felon in
possession of a firearm that had moved in interstate commerce.
The Government’s evidence on this issue included, inter alia, an
invoice from a South Carolina telemarketing firm admitted
through the testimony of a Massachusetts sports shop owner who
had ordered the firearm from the firm. The invoice was admitted
as a business record of the sports shop owner, and the Court of
Appeals found this proper. The court noted as “irrelevant” the
fact that the invoice had earlier been the record of a different
business. Id. at 223. The court focused instead on the shop
owner’s testimony that he relied on such documents to show
acquisition of the firearm. In addition, federal law required
him to keep an “acquisition and disposition book.” Id.
Logically, he had a substantial interest in the accuracy of the
record. See MRT Const., Inc., supra.
10
United States v. Grant, No. 01-0363/AF
What we conclude from the cited cases is that a record
incorporated by a second entity may be admitted under
Mil.R.Evid. 803(6) on the testimony of a “qualified witness” of
the incorporating entity alone if certain criteria are met.
First, the incorporating entity must obviously procure and keep
the record in the normal course of its business. Mil.R.Evid.
803(6). Second, the entity must show that it relies on the
accuracy of the incorporated record in its business. Air Land
Forwarders, Inc., 172 F.3d at 1343. Finally, there must be
“other circumstances indicating the trustworthiness of the
document.” Id.
In this case, both SrA Lynch and Capt Poindexter were
qualified witnesses who provided sufficient foundation to show
that the Armstrong lab report had been incorporated by the
hospital as its own business record. SrA Lynch testified that
he was very familiar with the hospital lab’s procedures for
handling urine samples. He testified how the samples are
prepared and shipped to the Armstrong lab and that a record was
kept of the shipments. In the past, he had sent samples to
Armstrong and had “always gotten back results showing either
positive or negative.” He testified as to the daily practice of
the Armstrong lab of sending results by e-mail and that they did
so “all the time” in the course of the Armstrong lab’s business.
He further testified that it was his practice when he received
11
United States v. Grant, No. 01-0363/AF
results to download the e-mail, print it out, and file it. His
testimony was that this procedure occurred in the hospital lab
“all the time.”
Capt Poindexter also testified regarding his familiarity
with how medical records were maintained at the hospital. He
testified that the hospital had a duty imposed by regulations to
maintain documents like the drug screen report in the patient’s
medical records. As for the specific report in issue, he
identified it as a copy of that which was contained in
appellant’s medical record. He further testified as to his
familiarity with Air Force medical testing and stated that he
and presumably other physicians rely on such results to be
accurate “in order to make the appropriate treatment” in cases
where the patient is unresponsive to pain stimuli.
As for indicia of trustworthiness, Capt Poindexter’s
reliance on the report speaks directly to its trustworthiness.
Presumably, those responsible for conducting the test and
providing the results at Armstrong are aware that an incorrect
result may lead to a patient’s failure to receive proper medical
treatment, which could be potentially followed by serious
medical consequences or even death. 2 McCormick on Evidence,
supra, § 293 at 264 (discussing the reasons why modern medical
records are generally reliable). Moreover, there is no evidence
12
United States v. Grant, No. 01-0363/AF
in the record that suggests the hospital had received false or
erroneous results from Armstrong in the past.
Based on this record, we hold that witnesses Lynch and
Poindexter provided a sufficient basis for admitting the
Armstrong lab report as a business record of the Incirlik
hospital, and the military judge did not abuse his discretion in
doing so.5
Relevance of the Drug Screen Report
Appellant also asserts that aside from establishing the
report as a business record, the Government was required to put
on expert testimony to interpret the results from the Armstrong
lab, and he relies on United States v. Murphy, 23 MJ 310 (CMA
1987), for this proposition. In Murphy, this Court held that
“[e]xpert testimony interpreting [scientific] tests . . . is
required to provide a rational basis upon which the factfinder
may draw an inference that marihuana was used.” Id. at 312.
5
Appellant contends on appeal that Prosecution Exhibit 1, the drug screen
report, is different than the version of that report attached to trial
defense counsel’s motion to suppress (Appellate Exhibit II). He now argues
this is evidence that the report was altered and, thus, cannot be considered
reliable. We must assume that trial defense counsel, who submitted the
document with his trial motion, was aware of this alleged discrepancy.
However, neither his written motion to suppress the report nor his motion to
suppress the confession (AE III) raises this issue or even suggests that it
was a concern. Moreover, neither his cross examination of SrA Lynch nor his
argument to the military judge on the record suggests this was his concern.
Furthermore, as noted earlier, PE 1 was admitted with an authenticating
certificate. On the other hand, the document attached to AE II was not
offered for admission. Nor is there any indication on the record as to the
origin of this document. The trial record is silent as to why trial defense
counsel did not raise this issue, and we will neither speculate nor suggest
the military judge had a sua sponte duty to do so.
13
United States v. Grant, No. 01-0363/AF
However, appellant’s reliance on Murphy ignores the fact that
evidence inadmissible for one purpose may be admissible for
another purpose. 1 McCormick, supra, § 59 at 259.
Admissibility determinations depend on the relevance of the
evidence offered. Relevance is said to have two components,
materiality and probative value. Id., § 185 at 637. The former
“looks to the relation between the propositions that the
evidence is offered to prove and the issues in the case.” Id.
The latter describes “the tendency of evidence to establish the
proposition that it is offered to prove.” Id. at 638.
In this light, the purpose behind the evidence provides the
critical distinction. In Murphy, the urinalysis was offered as
proof of the substantive issue, whether the accused wrongfully
used marijuana. In this case, the drug screen report was
offered on the issue of whether or not appellant’s confession
was worthy of belief. The implicit proposition sought to be
proved was that appellant had not mistakenly or otherwise
admitted to an offense which either had not occurred or that he
had not committed. See id., § 145 at 523. Indeed, the military
judge expressly stated that he was admitting the report for the
limited purpose of corroborating the confession and instructed
the members accordingly.
Thus, appellant’s argument that the military judge used a
lower standard of admissibility than that which is required for
14
United States v. Grant, No. 01-0363/AF
the “standard urinalysis case” misses the point. The purpose
for which evidence is offered governs its admissibility. The
fact that this Court has mandated additional foundational
requirements for admitting a urinalysis offered on the
substantive issue of wrongful use does not change the law of
evidence pertaining to the admissibility of a business record
offered to corroborate a confession.6 Therefore, the military
judge did not abuse his discretion by not requiring the
Government to support its offer of the report with expert
testimony.
Somewhat related to his claim pertaining to expert
testimony is appellant’s assertion that unlike a “standard”
urinalysis case, no chain of custody evidence was presented
relating to the handling of the urine sample tested by the
Armstrong lab. Generally, a chain of custody is a foundational
prerequisite for admitting real or tangible evidence on a
substantive issue in the case. McCormick, supra, § 212 at 8.
For example, in a typical Article 112a prosecution, a urinalysis
may be offered to show wrongful use at the particular time
charged in the specification. Thus, the actual state of the
6
This opinion is about corroborating a confession with a business record.
Therefore, this case does not limit or otherwise affect the holding in United
States v. Graham, 50 MJ 56 (1999), which addressed, inter alia, the relevance
of a four-year-old positive urinalysis test, for which appellant was tried
and acquitted, to rebut the appellant's claim of innocent ingestion involving
a positive urinalysis four years later.
15
United States v. Grant, No. 01-0363/AF
urine sample introduced is at issue in that situation. That
simply was not the purpose for which the drug screen report was
introduced against appellant. Indeed, his confession was the
evidence offered on his wrongful use during the period charged.
Therefore, the scope of the issue presented obviates the need to
address any issue of chain of custody. Moreover, Capt
Poindexter testified that he saw appellant being catheterized
and observed the sample being taken to the Incirlick hospital
lab from where it was ultimately sent to the Armstrong lab. He
also testified that that was the last he saw of the sample. The
members were free to either accept or reject this evidence in
determining the weight to be given the confession. See United
States v. Duvall, 47 MJ 189 (1997).
II
Appellant assails the military judge’s ruling regarding
corroboration of his confession by arguing that the drug screen
report did not corroborate his confession. Alternatively, even
if it was indicative of recent marijuana use, he argues it was
insufficient to corroborate his confession to past instances of
use.
Mil.R.Evid. 304, Manual, supra, contains the requirement
that a confession be corroborated by independent evidence
justifying sufficiently an inference of truth of the essential
16
United States v. Grant, No. 01-0363/AF
7
facts admitted. The rationale for such a rule is to “ensure
that the confession is not false.” Duvall, 47 MJ at 192. Also,
it is settled military law that the quantum of evidence needed
to corroborate “may be very slight.” United States v. Melvin,
26 MJ 145, 146 (CMA 1988).
Appellant attempts to draw comparisons between his case and
United States v. Rounds, 30 MJ 76 (CMA 1990). There, the
accused was charged with divers uses of cocaine and divers uses
of marijuana. He had confessed to using cocaine on Thanksgiving
and New Year’s Day. The Government introduced testimony from a
witness who had accompanied the accused on both occasions. This
witness testified that on Thanksgiving Day, he left the accused
with some of his former high school friends who he knew had been
previously involved with drugs. However, the witness observed
no drugs at this gathering. As for New Year’s Day, the witness
testified to seeing the accused at a party where cocaine was
abundantly and prominently displayed. We concluded the
appellant’s confession to the New Year’s Day use was
corroborated while the confession to the use on Thanksgiving was
not. Id. at 80.
7
“(g) Corroboration. An admission or a confession of the accused may be
considered as evidence against the accused on the question of guilt or
innocence only if independent evidence, either direct or circumstantial, has
been introduced that corroborates the essential facts admitted to justify
sufficiently an inference of their truth.”
17
United States v. Grant, No. 01-0363/AF
Whatever similarities might be gleaned between appellant’s
case and Rounds, we are not persuaded that the rationale of that
case is applicable to his. In Rounds, the evidence that Rounds
had been seen in the company of individuals who a witness
claimed to have at some previous time been associated with drugs
corroborated nothing, let alone Rounds’s confession.
Appellant’s case is dramatically different in that the
corroboration evidence indicated the actual presence of the
substance he admitted using.
Appellant’s case is actually more akin to United States v.
Melvin. The appellant there was arrested on June 13, 1985, in
possession of heroin cigarettes and drug paraphernalia. In his
subsequent confession, he stated he had just left his friend’s
house, where he had smoked heroin cigarettes. He admitted the
friend was his drug source, and he admitted smoking heroin about
twenty times over the previous four months. He was ultimately
charged with and convicted of numerous uses of heroin between
February 1 and June 5, 1985. The testimony of the police
officers who arrested Melvin on June 13 as to what they found in
his possession at the time of the arrest was offered to
corroborate Melvin’s confession. This Court found that this
evidence “created a strong inference of truth with regard to
appellant’s confession.” 26 MJ at 147.
18
United States v. Grant, No. 01-0363/AF
Similarly, in appellant’s case, the drug screen report
showed evidence of the presence of marijuana in appellant’s
system in late November. This certainly raised an inference
that appellant had recently used the very substance he had
confessed to using over the previous five or six weeks with the
same people at the same residence. Furthermore, it strains
credulity to believe that appellant would accurately confess to
use of marijuana in the second or third week in November and
then fabricate two other instances of use occurring in the
preceding three or four weeks with the same individuals. In
fact, appellant’s initial denials to investigators suggest just
the contrary – a desire to limit his criminal liability rather
than increase it with false admissions.
CONCLUSION
We hold that the independent evidence of recent marijuana
ingestion contained in the Armstrong lab report raised a
sufficient inference of truth so as to corroborate appellant’s
confessed use of marijuana. Therefore, the military judge did
not err in finding that appellant’s confession was corroborated.
The decision of the United States Air Force Court of
Criminal Appeals is affirmed.
19
United States v. Grant, No. 01-0363/AF
SULLIVAN, Senior Judge (concurring):
I agree with the majority opinion in this case but
have some difficulty squaring it with the majority opinion
in United States v. Graham, 50 MJ 56 (1999). In both
cases, evidence of a positive urinalysis test result was
offered and admitted for a purpose other than to directly
show the charged offense. In Graham, however, this Court
held that evidence offered for such a purpose must still
conform to the rules pertaining to urinalysis evidence
delineated in Harper, Murphy, and Ford.1 Id. at 59-60. The
majority reaches a different conclusion today.
More particularly, in Graham, evidence of a prior
positive test result for marijuana (in the form of cross-
examination testimony by the accused) was offered for a
purpose other than to show the charged offense. Evidence
of a positive test result four years earlier was offered to
impeach (or rebut) an accused who testified “there is no
way I would knowingly use marijuana” and that he was
“shocked, upset, and flabbergasted” by such a positive test
result. See United States v. Graham, supra at 62-63
(Sullivan, J., joined by Crawford, J., dissenting). The
1
United States v. Harper, 22 MJ 157 (CMA 1986); United States v. Murphy, 23 MJ 310 (CMA 1987);
United States v. Ford, 23 MJ 331 (CMA 1987).
United States v. Grant, No. 01-0363/AF
majority there reasoned, inter alia, that this evidence was
inadmissible because “none of the rules established by
Harper, Murphy, and Ford, about the use of positive
urinalysis results to prove knowing and wrongful use of
marijuana, were followed as to the 4-year-old test result.”
Id. at 59.
In appellant’s case, evidence of a prior positive test
result (in the form of a business record entry) was
admitted for a purpose other than to directly show the
charged offense. It was admitted to corroborate
appellant’s confession to all the charged misconduct by
proving some of the more recently charged drug misconduct
included in that confession.2 See United States v. Melvin,
26 MJ 145 (CMA 1988). As such, this evidence was before
the members for their consideration, but not to directly
prove the charged offense as in Harper and its progeny.
See United States v. Duvall, 47 MJ 189, 192 (1997)
(corroborating evidence to be considered by members on
questions of weight to afford confession). The majority,
however, holds that the rules of admissibility delineated
2
Appellant was charged with wrongfully using marijuana “on divers occasions, between on or about 15
October 1997 and on or about 23 November 1997.” The urinalysis evidenced in this case occurred on
November 22, 1997, but the trial judge instructed the members that it could only be used to corroborate the
confession. (R. 58-59, 156-57)
2
United States v. Grant, No. 01-0363/AF
in Harper, Murphy, and Ford need not be complied with in
these non-substantive circumstances.
In my view, today’s decision, at least implicitly,
erodes the holding of this Court in Graham, and I join it.
See United States v. Graham, supra at 60-63 (Sullivan, J.,
joined by Crawford, J., dissenting).
3