United States v. Rounds

COX, Judge

(concurring):

Although I am somewhat uncomfortable with the sufficiency of the evidence in this case, both as to quality and quantity, for the arguments advanced by Chief Judge EVERETT in his separate opinion and for other reasons,* I am unable to articulate a legal basis for reversing the conviction. In reaching this result, I must necessarily retreat from my position in United States v. Corbett, 29 MJ 253, 257 (CMA) (Cox, J., concurring in part and dissenting in part), cert. denied, — U.S. -, 110 S.Ct. 506, 107 L.Ed.2d 508 (1989).

Upon further consideration of the Military Rules of Evidence and the evolving Federal case law pertinent to the identification and proof of drugs by lay witnesses, I am persuaded that an individual can express an opinion to prove that a particular substance is illegal, PROVIDED that he or she has a rational basis for the conclusion. Mil.R.Evid. 701, Manual for Courts-Martial, United States, 1984. Likewise, the Government can establish the illegality of a drug through circumstantial evidence. United States v. Schrock, 855 F.2d 327, 334 (6th Cir.1988).

Here, two lay witnesses placed appellant at the scene of drug use. They identified the drugs in use as cocaine and marijuana, both prohibited substances under Article 112a, Uniform Code of Military Justice, 10 USC § 912a. Furthermore, circumstances surrounding the time, place, and method of use of the substances gave rise to an inference that the substances were illegal. If the Government proves through independent evidence that an accused was present at the scene where illegal drugs were used and the accused admits that he did use them, the independent proof of these essential facts corroborates his admission that he consumed drugs. See generally County Court of Ulster County, New York v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979); para. 37(c)(5), Part IV, Manual, supra. I agree with Judge Sullivan that the evidence was sufficient in this case to corroborate appellant’s confession for purposes of its admissibility.

However, because the Government also has the ultimate burden of establishing that the substances were illegal drugs, the next question is whether appellant’s and the witnesses’ opinions as to the identity of the substances were sufficient to convince a rational factfinder of those facts beyond a reasonable doubt. See United States v. Reichenbach, 29 MJ 128 (CMA 1989); United States v. Murphy, 23 MJ 310 (CMA 1987). Conclusions as to the identity of *83chemical compounds should be based on more than estoppel by confession of lay witnesses.

See United States v. Guaglione, 21 MJ 268, 277 (CMA 1988) (Cox, J., concurring with reservations); United States v. Tippy, 25 MJ 121 (CMA 1987).