UNITED STATES, Appellee
v.
Terris N. CAVITT, Airman First Class
United States Air Force, Appellant
No. 11-0210
Crim. App. No. S31637
United States Court of Appeals for the Armed Forces
Decided February 25, 2011
PER CURIAM
Counsel
For Appellant: Lieutenant Colonel Gail E. Crawford and
Captain Andrew J. Unsicker.
For Appellee: Gerald R. Bruce, Esq.
Military Judge: Gary Jackson
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Cavitt, No. 11-0210/AF
PER CURIAM:
We consider whether the admission of a drug testing
report through a surrogate witness violated the
Confrontation Clause of the Sixth Amendment.1 In light of
United States v. Blazier, 69 M.J. 218 (C.A.A.F. 2010)
(Blazier II), we find error under the Confrontation Clause
and remand to the United States Air Force Court of Criminal
Appeals (AFCCA) for consideration of whether the error was
harmless beyond a reasonable doubt.
Pursuant to her pleas, Appellant was convicted of one
specification of absence without leave and one
specification of abuse of over-the-counter medication.
Articles 86 and 134, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 886, 934 (2006). Contrary to her
pleas, Appellant was convicted of one specification of
wrongful use of marijuana and one specification of assault.
Articles 112a and 128, UCMJ, 10 U.S.C. § 912a, 928 (2006).
1
We grant the following issue:
WHETHER THE MILITARY JUDGE ABUSED HIS
DISCRETION WHEN HE ALLOWED DR. AARON JACOBS
TO TESTIFY IN RELIANCE UPON TESTIMONIAL
HEARSAY IN VIOLATION OF APPELLANT’S SIXTH
AMENDMENT RIGHT TO CONFRONT WITNESSES
AGAINST HER AND WHETHER THE ADMISSION OF THE
11 SEPTEMBER 2009 BROOKS DRUG TESTING REPORT
WITHOUT THE IN-COURT APPEARANCE OF THE
ANALYSTS WHO TESTED APPELLANT’S SAMPLE ALSO
VIOLATED APPELLANT’S SIXTH AMENDMENT RIGHT
TO CONFRONTATION.
2
United States v. Cavitt, No. 11-0210/AF
The drug testing report at issue -- admitted over defense
objection to prove the marijuana charge -- consists of a
cover memorandum stating the tests performed and the
results thereof, a specimen custody document, a
confirmation intervention log, a blind quality control
memorandum, chain of custody documents, and machine-
generated printouts of machine-generated data. The
declarant who made statements on the cover memorandum did
not testify. The drug test itself was conducted with
Appellant’s consent after she returned from unauthorized
absence.
The AFCCA found error in the admission of the cover
memorandum of the drug testing report. United States v.
Cavitt, No. ACM S31637, slip. op. at 4 (A.F. Ct. Crim. App.
Oct. 21, 2010). However, it found that error harmless
beyond a reasonable doubt. Id. Moreover, it concluded
that the remainder of the drug testing report was
admissible under United States v. Magyari, 63 M.J. 123
(C.A.A.F. 2006), as a “business record,” a “firmly rooted
hearsay exception.” Cavitt, No. ACM S31637, slip. op. at
4.
We reverse and remand for reconsideration in light of
principles announced in Blazier II. First, the language
concerning business records as admissible pursuant to a
3
United States v. Cavitt, No. 11-0210/AF
“firmly rooted hearsay exception” derives from the
“particularized guarantees of trustworthiness” test of Ohio
v. Roberts. See 448 U.S. 56, 66 (1980) (holding that
whether hearsay falls within a “firmly rooted” exception is
an “indici[um] of reliability” sufficient to satisfy the
Confrontation Clause). Despite our reliance on this
language in Magyari, we made clear in Blazier II that the
Confrontation Clause is not satisfied by “reliability” --
it requires confrontation of the declarant of testimonial
hearsay. Blazier, 69 M.J. at 223 (stating that Crawford
overruled the “particularized guarantees of
trustworthiness” test and holding that “[s]ubstitute means
of ensuring reliability do not satisfy the Confrontation
Clause, no matter how efficacious they might be”).
Second, in making the threshold determination of
whether the remainder of the drug testing report contained
testimonial hearsay, the AFCCA failed even to cite -- let
alone consider -- this Court’s decision in United States v.
Harcrow, 66 M.J. 154 (C.A.A.F. 2008). In treating Magyari
as the only case governing the admissibility of “machine-
generated printouts, chain of custody forms, and the two
intra-laboratory memos,” Cavitt, No. ACM S31637, slip. op.
at 4, the AFCCA failed to examine whether the facts of the
case really supported application of Magyari. We note that
4
United States v. Cavitt, No. 11-0210/AF
Appellant, unlike Magyari, was not randomly selected for
urinalysis.
Third, and finally, the AFCCA’s cursory finding that
the expert witness gave “his opinion,” Cavitt, No. ACM
S31637, slip. op. at 4 (emphasis in original), takes no
account of the fact that the expert witness’s testimony
produced at least one additional Confrontation Clause
violation -- the testimony drawing attention to and
repeating portions of the testimonial hearsay contained on
the cover memorandum. See Blazier, 69 M.J. at 226.
In light of these errors, we reverse and remand for
reconsideration of the harmless error issue in light of
Blazier II.
5