HARRINGTON—ARMY 20090422

**UNITED STATES ARMY COURT OF CRIMINAL APPEALS**

Before

JOHNSON, SIMS, and COOK

Appellate Military Judges

**UNITED STATES, Appellee**

**v.**

**Private E2 JOSHUA A. HARRINGTON**

**United States Army, Appellant**

ARMY 20090422

U.S. Army Combined Arms Support Command and Fort Lee

Theresa A. Gallagher, Military Judge

Colonel Michael E. Sainsbury, Staff Judge Advocate

For Appellant:  Colonel Mark Tellitocci, JA; Lieutenant Colonel Matthew M. Miller, JA; Major Grace M. Gallagher, JA; Captain E. Patrick Gilman, JA (on brief); Lieutenant Colonel Imogene Jamison, JA; Major Laura R. Kesler, JA; Captain Jennifer A. Parker, JA (additional pleadings).

For Appellee:  Major Christopher B. Burgess, JA; Captain Chad M. Fisher, JA; Captain Kevin F. Sweeney, JA (on brief).

29 July 2011

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SUMMARY DISPOSITION

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Per Curiam:

A military judge, sitting as a general court-martial, convicted appellant, contrary to his pleas, of wrongful use of marijuana in violation of Article 112a, Uniform Code of Military Justice, 10 U.S.C. § 912a (2007) [hereinafter UCMJ], and absence without leave, as a lesser-included offense of desertion with intent to remain away permanently, in violation of Article 86, UCMJ.  Appellant was sentenced to a bad-conduct discharge, confinement for eight months, total forfeiture of all pay and allowances, and reduction to the grade of E-1.  The convening authority approved the adjudged sentence.

Before this court, appellant cites *Crawford v. Washington*, 541 U.S. 36 (2004), and *Melendez-Diaz v. Massachusetts*, 129 S.Ct. 2527 (2009), and contends that admission into evidence of the Laboratory Documentation Packet (LDP), “the only source of evidence admitted to establish Appellant allegedly used marijuana on the dates charged, [was] in direct contravention of the Confrontation Clause of the Sixth Amendment.”  The government concedes that many pages of the LDP “may have been testimonial,” but argues that a surrogate, expert witness satisfied appellant’s right to confrontation.  In the alternative, the government claims that even if admission of the testimonial portions of the LDP was erroneous, the error did not materially prejudice appellant’s substantial rights.

**LAW AND DISCUSSION**

The Sixth Amendment provides: “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const. amend. VI, cl. 2.  Accordingly, no testimonial hearsay may be admitted against a criminal defendant unless (1) the witness is unavailable, and (2) the witness was subject to prior cross-examination.  *Crawford*, 541 U.S. at 53–54.  In this case, appellant did not object to admission of the LDP on Confrontation Clause grounds.  However, the record does not clearly establish that appellant intentionally waived his constitutional right to confront the witnesses against him.  *See United States v. Campos*, 67 M.J. 330 (C.A.A.F. 2009).  In particular, there is no evidence that it was part of the defense strategy or tactics to have the LDP admitted or to use the expert witness to support the defense theory of the case.   Therefore, we will review appellant’s claim for plain error.  Military Rule of Evidence 103(d). 

Plain error occurs when (1) there is error, (2) the error is plain or obvious, and (3) the error results in material prejudice.  *United States v. Harcrow*, 66 M.J. 154, 158 (C.A.A.F. 2008); Article 59(a), UCMJ.  “In the context of constitutional error, the burden is on the Government to establish that the [error was] harmless beyond a reasonable doubt.”  *United States v. Flores*, 69 M.J. 366, 369 (C.A.A.F. 2011) (internal citations and quotations omitted); *Harcrow*, 66 M.J. at 160.  Whether admission of the LDP violated the Confrontation Clause is a question of law that we review de novo.  *Harcrow*, 66 M.J. at 158 (citing *United States v. Gardinier*, 65 M.J. 60, 65 (C.A.A.F. 2007)).

We agree with the parties that portions of the LDP are testimonial, but reject the government’s argument that a surrogate witness satisfied appellant’s right to confront those persons making the testimonial statements contained within the LDP.  The use of a surrogate witness “who did not sign the certification or perform or observe the test” in question is not a constitutional substitute for the cross-examination of the declarant whose testimonial statement is actually admitted into evidence.  *Bullcoming v. New Mexico*, ___ U.S. ___, ___, 131 S.Ct. 2705, 2710 (2011)*; See also United States v. Blazier*, 69 M.J. 218, 223–24 (C.A.A.F. 2010).  Accordingly, we find that the admission of the LDP was plainly erroneous.  Furthermore, after reviewing the entire record before us, we are not convinced that the admission of the LDP was harmless beyond a reasonable doubt in this case.  

**CONCLUSION**

The findings of guilty of the Specification of Charge II and Charge II are set aside and dismissed.  The remaining findings of guilty are affirmed.  The dismissal of Charge II does not dramatically change the sentencing landscape.  Reassessing the sentence on the basis of the error noted, the entire record, and applying the principles of *United States v. Sales*, 22 M.J. 305 (C.M.A. 1986), and *United States v. Moffeit*, 63 M.J. 40 (C.A.A.F. 2006), to include the factors identified by Judge Baker in his concurring opinion in *Moffeit*, we affirm only so much of the sentence as provides for a bad-conduct discharge, confinement for three months, total forfeiture of all pay and allowances, and reduction to the grade of E-1.  We conclude that such a sentence is *at least* that which would have been imposed by a court-martial for the remaining findings of guilt.  All rights, privileges, and property, of which appellant was deprived by virtue of that portion of his sentence being set aside by this decision, are hereby ordered restored.

FOR THE COURT:

MALCOLM H. SQUIRES JR.

Clerk of Court

�  Appellant was found not guilty of desertion with intent to remain away permanently, Article 85, UCMJ, but guilty of the lesser-included offense of absence without leave in violation of Article 86, UCMJ.  Additionally, appellant was found not guilty of a specification alleging desertion with the intent to avoid hazardous duty in violation of Article 85, UCMJ. 

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