UNITED STATES, Appellant

v.

Leslie D. PORTER, Corporal

U.S. Marine Corps, Appellee

No. 12-5003

Crim. App. No. 201100188

United States Court of Appeals for the Armed Forces

Decided July 8, 2013

PER CURIAM

Counsel

For Appellant: Captain Samuel C. Moore, USMC, and Brian K. 

Keller, Esq.

For Appellee: Captain Michael D. Berry, USMC, Captain Paul C. 

LeBlanc, JAGC, USN, and Lieutenant Jared Hernandez, JAGC, USN.

Military Judge: Anthony Johnson

This opinion is subject to revision before final publication.
United States v. Porter, No. 12-5003/MC

2

PER CURIAM:

Contrary to Appellee’s pleas, a military judge, sitting as a 

special court-martial, found Appellee guilty of one 

specification of wrongful use of cocaine and one specification 

of wrongful use of marijuana in violation of Article 112a, 

Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 912a 

(2006). The adjudged and approved sentence included ninety

days’ confinement and a bad-conduct discharge. The United 

States Navy-Marine Corps Court of Criminal Appeals (NMCCA) set 

aside the findings and sentence, holding that testimonial 

evidence was admitted in violation of the Confrontation Clause 

of the Sixth Amendment and that the error was not harmless 

beyond a reasonable doubt, and authorized a rehearing. United 

States v. Porter, No. NMCCA 201100188, slip op. at 2 (N-M. Ct. 

Crim. App. June 28, 2012). Pursuant to Article 67(a)(2), UCMJ, 

10 U.S.C. § 867(a)(2) (2006), the Judge Advocate General of the 

Navy certified the issues of whether the NMCCA erred in 

determining that: (1) the drug testing report contained 

testimonial statements erroneously admitted at trial; and (2) 

admission of the testimonial evidence was not harmless beyond a 

reasonable doubt.1

 

1 The following issues were certified:

I. THE ENTRIES ON PAGES 54 AND 154 OF PROSECUTION 

EXHIBIT 15 THAT NMCCA FOUND TO BE TESTIMONIAL 
United States v. Porter, No. 12-5003/MC

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I.

On September 16, 2010, Appellee received medical attention 

at a civilian hospital following a traffic accident near Marine 

Corps Air Station Cherry Point. While Appellee was admitted at 

the civilian hospital, medically ordered toxicological tests 

indicated the presence of tetrahydrocannabinol (THC) (the 

metabolite of marijuana) and benzoylecgonine (BZE) (the 

metabolite of cocaine) in his system. The next day, Appellee

was sent for follow-up medical care at a military health care 

facility where he appeared dazed and unable to answer simple

questions.2

In the meantime, after being informed of Appellee’s 

toxicology results, his commanding officer authorized a blood

draw and urinalysis to search for evidence of drug use. The 

blood and urine samples were turned over to the Criminal 

 

HEARSAY WERE NEITHER MADE WITH THE PRIMARY 

PURPOSE OF PROVING PAST EVENTS RELEVANT TO LATER 

CRIMINAL PROSECUTIONS NOR FORMALIZED. DID THE 

LOWER COURT ERR BY FINDING THAT THESE PAGES WERE 

TESTIMONIAL STATEMENTS?

II. DID THE LOWER COURT ERR BY FINDING THAT THESE 

ENTRIES DEEMED TESTIMONIAL HEARSAY CONTRIBUTED TO 

APPELL[EE]’S CONVICTION WHERE THESE ENTRIES ONLY 

PROVIDED TECHNICAL DATA AND THE GOVERNMENT’S CASE 

WAS OTHERWISE STRONG?

2 The treating physician at the military health care facility 

testified that “head trauma” was one of the considerations she 

was worried about when she observed Appellee’s “altered mental 

status.”
United States v. Porter, No. 12-5003/MC

4

Investigation Command (CID), which sent the samples to the Armed 

Forces Institute of Pathology (AFIP) for testing. AFIP 

performed a battery of tests and concluded, in a 169-page drug 

testing report (DTR), that the samples were positive for THC and 

BZE.

At trial, to lay the foundation for the DTR, the Government 

called Ronald Shippee, Ph.D., employed by AFIP as an expert 

witness. Dr. Shippee, who was qualified as an expert witness in 

forensic toxicology, testified as to AFIP’s testing procedures 

and the results of Appellee’s drug tests. In light of Dr. 

Shippee’s testimony that he had no supervisory role at AFIP and 

the fact that neither the analysts nor the reviewer who signed 

pages 54 or 154 of the DTR testified, the defense objected to 

admission of the DTR on Confrontation Clause grounds.

The military judge denied the defense objection and admitted 

the DTR. Although he stated on the record that he did not 

consider the report’s cover memorandum summarizing the testing 

results, the military judge apparently did consider the rest of 

the DTR, including pages 54 and 154, and Dr. Shippee’s testimony 

thereon. Dr. Shippee testified that AFIP accessioning employees 

can determine whether a sample is being tested for purposes of a 

criminal investigation once they receive the sample. He also 

testified that the “IN” portion of Appellee’s sample 

identification number -- “10-4748 IN” -- indicates that the 
United States v. Porter, No. 12-5003/MC

5

testing is part of a criminal investigation. Referencing the 

confirmation summary pages only, Dr. Shippee testified as to the 

quantity of BZE and THC present in Appellee’s sample, and that 

those amounts were above the respective Department of Defense 

(DoD) cutoff levels. Moreover, Dr. Shippee referred to the 

technician’s and certifying scientist’s signature blocks on the 

summary confirmation documents to illustrate AFIP’s quality 

control measures. Finally, he offered his assessment “after 

reading this packet” that Appellee’s sample tested above the DoD 

cutoff for THC and BZE. At no time during his testimony, 

however, did Dr. Shippee specifically interpret or rely on the 

machine-generated data contained in the DTR to independently 

conclude that Appellee’s sample tested positive for THC and BZE.3

II.

In United States v. Tearman, 72 M.J. 54 (C.A.A.F. 2013), we 

held that: (1) chain-of-custody documents and internal review 

worksheets contained within a drug testing report were 

nontestimonial; and (2) admission of testimonial evidence (the 

official test result and certification contained in the DD Form 

2624) was harmless beyond a reasonable doubt. In deeming the 

error harmless, we noted that the expert witness, relying on 

 

3 While referencing the initial screening “summary sheet,” Dr. 

Shippee testified that Appellee’s sample tested “presumptive 

positive not confirmed” for THC and BZE, but, in doing so, Dr. 

Shippee was not interpreting or relying upon machine-generated 

data.
United States v. Porter, No. 12-5003/MC

6

nontestimonial statements, independently and conclusively 

established the presence in the appellant’s sample of a drug 

metabolite in excess of the DoD cutoff level and that the 

testimonial hearsay was barely mentioned during her testimony or 

the rest of the government’s case. Id. at 62-63. Accordingly, 

we concluded that any impact the testimonial statements may have 

had on the panel’s findings was both cumulative and de minimis

when viewed in light of the entire record. Id. at 63.

At issue in this case are pages 54 and 154 of the DTR, which 

contain summaries of the test results with signatures of an 

analyst and a reviewer. In summarizing the results of the

confirmation tests, the two pages note the following 

information: specimen source, amount tested, concentration of 

substance tested, diluents amount, dilution factor, and final 

concentration. Page 54 contains a handwritten positive symbol 

indicating the presence of BZE, and page 154 contains a similar 

handwritten positive symbol -- as well as the handwritten word 

“Present” -- indicating the presence of THC. Dr. Shippee

primarily relied on these pages to establish that AFIP’s testing 

controls and standards were met for Appellee’s test.

As we noted in Tearman, “[t]he language used by the Supreme 

Court to describe whether and why a statement is testimonial is 

far from fixed.” 72 M.J. at 58. Nevertheless, the two summary 
United States v. Porter, No. 12-5003/MC

7

confirmation pages at issue squarely qualify as testimonial 

statements under the Supreme Court’s various formulations.

Similar to the certifications in the DD Form 2624 which were 

held to be testimonial in United States v. Sweeney, 70 M.J. 296, 

304 (C.A.A.F. 2011), the purpose of the signature blocks on the 

confirmation summary pages at issue was to certify that AFIP’s 

testing controls and standards were met for Appellee’s test. 

Moreover, the pages, which also summarize the results of 

Appellee’s test, were prepared by analysts at CID’s request and 

with certain knowledge that the testing was part of a criminal 

investigation. See id. There is no question that the 

statements were “made under circumstances which would lead an 

objective witness reasonably to believe that the statement[s]

would be available for use at a later trial.” United States v. 

Blazier (Blazier I), 68 M.J. 439, 442 (C.A.A.F. 2010) (quoting 

Crawford v. Washington, 541 U.S. 36, 52 (2004)); see also

Sweeney, 70 M.J. at 302. 

Additionally, unlike the chain-of-custody documents and 

internal review worksheets at issue in Tearman, the confirmation 

summary pages (1) were generated by an external request from CID 

for the purpose of criminal investigation; and (2) summarize 

“additional substantive information,” Sweeney, 70 M.J. at 299 --

namely, that Appellee’s sample was positive for THC and BZE and 

that AFIP’s testing controls and standards were met for 
United States v. Porter, No. 12-5003/MC

8

Appellee’s test. These facts suggest that the pages were 

created for the purpose of “establish[ing] or prov[ing] past 

events potentially relevant to later criminal prosecution,” 

Bullcoming v. New Mexico, 131 S. Ct. 2705, 2714 n.6 (2011) 

(plurality opinion) (quoting Davis v. Washington, 547 U.S. 813,

822 (2006), and would “reasonably [be] expect[ed] to be used 

prosecutorially,” Crawford, 541 U.S. at 51 (internal quotation 

marks omitted), rather than having been made for an 

administrative purpose, Tearman, 72 M.J. at 60. While the two 

pages do not exhibit “indicia of formality or solemnity 

that . . . would suggest an evidentiary purpose,” that is merely 

one factor relevant to whether statements are testimonial. 

Tearman, 72 M.J. at 61 (citing Bullcoming, 131 S. Ct. at 2717). 

For the reasons above, we agree with the NMCCA that the 

notations and signature blocks on the summary pages were 

testimonial and admitted in violation of the Confrontation 

Clause.

Given that the error is constitutional, the question is not 

whether the evidence was legally sufficient without the 

testimonial evidence, but “whether there is a reasonable 

possibility that the evidence complained of might have 

contributed to the conviction. This determination is made on

the basis of the entire record . . . .” United States v.

Blazier (Blazier II), 69 M.J. 218, 227 (C.A.A.F. 2010) (internal 
United States v. Porter, No. 12-5003/MC

9

quotation marks omitted). In making this determination, this 

Court applies the balancing test set forth in Delaware v. Van 

Arsdall, 475 U.S. 673 (1986). Sweeney, 70 M.J. at 306.

We agree with the NMCCA that the military judge’s admission 

of the two summary confirmation pages was not harmless beyond a 

reasonable doubt. These testimonial statements constitute a 

more substantial portion of the expert witness’s testimony than 

in Tearman. With regard to the quantitative results of 

Appellee’s drug test, Dr. Shippee exclusively referenced the 

testimonial statements in the summary pages without delving into 

the underlying machine-generated data. Moreover, Dr. Shippee 

highlighted the signature blocks on the summary pages to 

establish that AFIP’s testing standards and controls were 

followed during the testing of Appellee’s samples. Only at the 

conclusion of his testimony did Dr. Shippee offer an independent 

assessment that, based on the DTR in toto, Appellee’s samples 

tested above the DoD cutoff level for THC and BZE -- but at no 

time did Dr. Shippee specifically interpret or rely on the 

machine-generated portions of the DTR to independently conclude 

that Appellee’s sample had tested positive for cocaine and THC. 

In light of these facts, we agree that the Government has failed 

to carry its burden to demonstrate that there was no reasonable 

possibility that the testimonial statements contributed to 

Appellee’s convictions.
United States v. Porter, No. 12-5003/MC

10

DECISION

Accordingly, both certified issues are answered in the 

negative, and the decision of the United States Navy-Marine 

Corps Court of Criminal Appeals is therefore affirmed.