United States v. Harcrow

• Decision Date: 13 March 2008
• Docket Number: 07-0135.
• Citation: 66 M.J. 154
• Parties: UNITED STATES, Appellee, v. Josh R. HARCROW, Lance Corporal, U.S. Marine Corps, Appellant.
• Court: United States Court of Appeals, Armed Forces Court of Appeals

66 M.J. 154

UNITED STATES, Appellee, v. Josh R. HARCROW, Lance Corporal, U.S. Marine Corps, Appellant.

Crim.App. No. 200401923.

No. 07-0135.

United States Court of Appeals, Armed Forces.

March 13, 2008

Argued Nov. 6, 2007.

ERDMANN , J., delivered the opinion of the Court, in which BAKER , J., joined. RYAN , J., filed a separate concurring opinion. STUCKY , J., filed a separate opinion concurring in the result, in which EFFRON , C.J., joined.

For Appellant: Major Brian L. Jackson, USMC (argued) Major Jeffrey S. Stephens , USMC (on brief).

For Appellee: Captain James W. Weirick, USMC (argued) Major Brian K. Keller, USMC, and Captain Roger E. Mattioli, USMC (on brief); Commander PaulC. LeBlanc, JAGC, USN, and Lieutenant Jessica M. Hudson , JAGC, USN.

Judge ERDMANN delivered the opinion of the Court.

After entering mixed pleas, Lance Corporal Harcrow was convicted of numerous drug related offenses, failing to obey a lawful order, escaping custody, and unauthorized absence. He was sentenced to confinement for six years, reduction to E-1, and a bad-conduct discharge. The convening authority approved the sentence and suspended all unexecuted confinement for a period of twelve months from the date of his action.

On appeal, the United States Navy-Marine Corps Court of Criminal Appeals dismissed the disobedience charge and one of the drug specifications but affirmed the remainder of the findings and the sentence. United States v. Harcrow No. NMCCA 200401923, 2006 CCA LEXIS 285, at *26-*27, 2006 WL 4572853, at *9-*10 (N.M.Ct.Crim.App. Oct. 30, 2006) (unpublished).

In the course of its review, the Court of Criminal Appeals considered whether the military judge erred in admitting two laboratory reports prepared by the Virginia Division of Forensic Science. Harcrow, 2006 CCA LEXIS 285, at *15-*18, 2006 WL 4572853, at *5-*6. The laboratory reports reflected the presence of heroin and cocaine residue on items seized from Harcrow's residence. Harcrow argued, inter alia, that the laboratory reports constituted testimonial hearsay under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) , and their admission violated his Sixth Amendment right to confrontation. Harcrow, 2006 CCA LEXIS 285, at *16, 2006 WL 4572853, at *5. The lower court found that the reports were nontestimonial hearsay and admissible under Military Rule of Evidence (M.R.E.) 803(6) as business records. Harcrow, 2006 CCA LEXIS 285, at *17, 2006 WL 4572853, at *6 .

We granted review of this case to consider whether the lower court erred by finding that the state forensic laboratory reports were nontestimonial hearsay under Crawford. 65 M.J. 284 (C.A.A.F.2007) . We hold that the laboratory reports in this case were testimonial evidence. Applying a plain error analysis, we conclude that the error was plain and obvious but the admission of this evidence was harmless beyond a reasonable doubt and therefore did not violate a substantial right. See Article 59(a), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 859(a) (2000); United States v. Brewer, 61 M.J. 425, 432 (C.A.A.F.2005) . Accordingly, we affirm the findings of guilty and the sentence as set out in the decision of the Court of Criminal Appeals.

BACKGROUND

Harcrow was suspected of manufacturing methamphetamine at his residence and was arrested by the Naval Criminal Investigative Service in 2001. He was ordered into pretrial confinement in February 2002, but escaped while being escorted to the brig. On March 2, 2002, deputies from the Stafford County Sheriff's office in Virginia arrested Harcrow at his home for desertion and other unrelated state charges. At the time of his arrest, sheriff's deputies seized drug paraphernalia from Harcrow's residence. The seized items were sent to the Virginia Division of Forensic Science for analysis. That Division issued two laboratory reports documenting the presence of cocaine and heroin on several of these items.

At a general court-martial composed of a military judge sitting alone, Harcrow entered mixed pleas to numerous drug-related and other charges. Relevant to this appeal are the specifications contained in Additional Charge II which arose from the items seized in the search of Harcrow's house during his arrest and the subsequent laboratory reports. Contrary to his pleas, Harcrow was found guilty of three of these specifications: wrongful possession of cocaine, wrongful possession of heroin, and wrongful use of cocaine. On appeal, the Court of Criminal Appeals held that the specification for wrongful possession of cocaine was multiplicious for findings with wrongful use of cocaine. Harcrow, 2006 CCA LEXIS 285, at *3-*4, 2006 WL 4572853, at *1. The lower court dismissed the specification for wrongful possession of cocaine and affirmed the findings of guilty as to wrongful use of cocaine and wrongful possession of heroin. Harcrow, 2006 CCA LEXIS 285, at *3-*4, *26, 2006 WL 4572853, at *1, *9. This appeal involves only these two specifications.

At trial, the prosecution offered both laboratory reports into evidence during the testimony of an arresting officer. With respect to the first report the military judge asked the defense, “Have you seen this?" Defense counsel replied, “I have no objections, your Honor." In response to the proposed admission of the second laboratory report, defense counsel again stated, “No objections, your Honor." Both laboratory reports were admitted into evidence.

Before the Court of Criminal Appeals, Harcrow argued that the laboratory reports were testimonial hearsay under Crawford, which was issued by the Supreme Court after the court-martial concluded and while the case was pending on direct review. Citing this court's decision in United States v. Magyari, 63 M.J. 123, 125 (C.A.A.F.2006) , the lower court concluded that the laboratory reports were nontestimonial and admissible under the business records hearsay exception, M.R.E. 803(6). Harcrow, 2006 CCA LEXIS 285, at *17, 2006 WL 4572853, at *6. We granted review of this issue.

WAIVER

The facts surrounding admission of the laboratory reports raise a threshold issue as to whether Harcrow waived the opportunity to argue on appeal that the laboratory reports constituted testimonial evidence under Crawford, or merely forfeited the issue making this appeal a matter for plain error review under M.R.E. 103(d). See United States v. Olano, 507 U.S. 725 733-34, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (noting that waiver, unlike forfeiture, extinguishes error).^[1]

The Supreme Court has addressed the difference between waiver and forfeiture under Fed.R.Crim.P. 52(b) on which M.R.E. 103(d) is partially based:

The first limitation on appellate authority under Rule 52(b) is that there indeed be an “error." Deviation from a legal rule is “error" unless the rule has been waived....

Waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the “intentional relinquishment or abandonment of a known right." Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) . Whether a particular right is waivable; whether the defendant must participate personally in the waiver; whether certain procedures are required for waiver; and whether the defendant's choice must be particularly informed or voluntary, all depend on the right at stake. Mere forfeiture, as opposed to waiver, does not extinguish an “error" under Rule 52(b) .

Olano, 507 U.S. at 732-33, 113 S.Ct. 1770 (citations omitted); see also United States v. Powell, 49 M.J. 460, 462-63 (C.A.A.F.1998) (discussing the relationship between Fed.R.Crim.P. 52(b) and M.R.E. 103(d)); 1 Steven A. Saltzburg et al., Military Rules of Evidence Manual § 103.02[7][c], at 1-37, 1-38 (6th ed.2006) (discussing the interplay of waiver, forfeiture and plain error in military law and quoting Olano, 507 U.S. at 733-34, 113 S.Ct. 1770).

In this case, the right at stake is the Sixth Amendment right to confrontation. In addressing waiver of constitutional rights, the Supreme Court long ago emphasized the same definition of waiver quoted above from Olano, stating that there is “a presumption against the waiver of constitutional rights, see, e.g., Glasser v. United States, 315 U.S. 60, 70-71, 62 S.Ct. 457, 86 L.Ed. 680, and for a waiver to be effective it must be clearly established that there was ‘an intentional relinquishment or abandonment of a known right or privilege.’ " Brookhart v. Janis, 384 U.S. 1, 4, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966) (quoting Johnson v. Zerbst , 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) ). Yet the Supreme Court has also acknowledged that “counsel may, under some conditions, where the circumstances are not ‘exceptional, preclude the accused from asserting constitutional claims.’ " Id. at 7, 86 S.Ct. 1245 (quoting Henry v. Mississippi, 379 U.S. 443, 451, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965) ). That is to say, in certain circumstances, defense counsel may waive constitutional rights on behalf of their clients.

In this context, a number of United States Circuit Courts of Appeal have considered whether defense counsel may waive a client's Sixth Amendment right of confrontation by stipulating to the admission of evidence. Several circuits have held that counsel may do so “so long as the defendant does not dissent from his attorney's decision and so long as it can be said that the attorney's decision was a legitimate trial tactic or part of a prudent trial strategy." United States v. Cooper, 243 F.3d 411, 418 (7th Cir.2001) (citation and quotation marks omitted); Hawkins v. Hannigan, 185 F.3d 1146, 1155 (10th Cir.1999) ; United States v. Stephens, 609 F.2d 230, 232-33 (5th Cir.1980) ; see also United States v. Plitman, 194 F.3d...