United States v. Simmermacher , 74 M.J. 196 ( 2015 )

UNITED STATES, Appellee
v.
Allyssa K. SIMMERMACHER, Hospital Corpsman Third Class
U.S. Navy, Appellant
No. 14-0744
Crim. App. No. 201300129
United States Court of Appeals for the Armed Forces
Argued February 25, 2015
Decided June 8, 2015
ERDMANN, J., delivered the opinion of the court, in which BAKER,
C.J., and STUCKY, RYAN, and OHLSON, JJ., joined.
Counsel
For Appellant: Lieutenant Ryan W. Aikin, JAGC, USN (argued).
For Appellee: Captain Cory A. Carver, USMC (argued); Lieutenant
Commander Keith Lofland, JAGC, USN, and Brian K. Keller, Esq.
(on brief); Captain Matthew M. Harris, USMC.
Military Judge: Charles Hale
This opinion is subject to revision before final publication.
United States v. Simmermacher, 14-0744/NA
Judge ERDMANN delivered the opinion of the court.
Contrary to her pleas, a panel of officer and enlisted
members sitting as a general court-martial convicted Hospital
Corpsman Third Class (E-4) Allyssa Simmermacher of wrongfully
using cocaine and making a false official statement, in
violation of Articles 112a and 107, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. §§ 912a, 907. Simmermacher was
sentenced to a reduction to E-3 and a bad-conduct discharge.
The convening authority approved the sentence as adjudged and
the United States Navy-Marine Corps Court of Criminal Appeals
(CCA) affirmed the findings and sentence.
When evidence is lost or destroyed, Rule for Courts-Martial
(R.C.M.) 703(f)(2) sets forth the criteria and process a
military judge must follow in deciding whether an accused is
entitled to relief and what type of relief may be given. We
granted review to determine whether the military judge properly
interpreted R.C.M. 703(f)(2) when he failed to abate the
proceedings as to the wrongful use of cocaine charge. 1 We hold
1
We granted review of the following issue:
When the government destroys evidence essential to a
fair trial, the Rules for Courts-Martial require the
military judge to abate the proceedings. Here, the
government negligently destroyed the sole piece of
evidence that provided the basis for Appellant’s
conviction prior to both the referral of charges and
the assignment of defense counsel. Should the
military judge have abated the proceedings?
2
United States v. Simmermacher, 14-0744/NA
that the military judge abused his discretion in failing to
abate the proceedings under R.C.M. 703(f)(2) as to the Article
112a charge and reverse the decision of the CCA.
BACKGROUND
On March 7, 2011, Simmermacher provided a urine sample as
part of a random drug test. On March 14, 2011, the Naval Drug
Screening Laboratory (NDSL) notified Simmermacher’s command that
her urinalysis tested positive for cocaine. On March 21, 2011,
Naval Criminal Investigative Service (NCIS) agents questioned
Simmermacher about the test results, which showed a cocaine
metabolite level of 151 nanograms/milliliter (ng/ml). The
Department of Defense (DOD) cutoff for cocaine was 100 ng/ml.
During the NCIS interview, Simmermacher denied using cocaine or
any illegal narcotics, and expressed her willingness to take a
polygraph test and provide another urine sample for testing
purposes. When the random drug test was administered,
Simmermacher was under investigation for allegations of child
abuse, so the NCIS agents also questioned Simmermacher about
injuries to her son.
United States v. Simmermacher, No. 14-0744, 2014 C.A.A.F. LEXIS
1065 (Nov. 5, 2014).
3
United States v. Simmermacher, 14-0744/NA
On April 11, 2011, NDSL sent the full urinalysis report to
Simmermacher’s command with a letter stating that the sample
would be destroyed on March 16, 2012. 2 As NDSL had not received
a request from Simmermacher’s command to retain the sample by
that date, it was destroyed on March 16, 2012.
Twelve days later, Simmermacher was charged with wrongful
use of cocaine, assault of a child, child endangerment, and
making a false official statement. The child assault and
endangerment charges were later severed from the wrongful use of
cocaine and false official statement charges. Simmermacher was
assigned counsel on April 6, 2012. Defense counsel made a
request to access the urine sample during discovery on April 17,
2012, and requested a retest of the sample on June 18, 2012.
The government informed Simmermacher on July 10, 2012 that the
sample had been destroyed.
Before trial, Simmermacher moved to suppress the urinalysis
results, arguing that under R.C.M. 703(f)(2) the urine sample:
(1) was relevant and necessary to the presentation of the
defendant’s case; (2) was of such central importance that it was
essential to a fair trial; (3) there was no adequate substitute;
(4) its destruction could not have been prevented by the
2
Dep’t of Defense, Instr. 1010.16, Technical Procedures for the
Military Personnel Drug Abuse Testing Program (MPDATP) para.
E1.9.2 (Dec. 9, 1994), provides: “Specimens confirmed as
positive and not consumed in the testing process shall be
properly secured in a frozen state for a minimum of 1 year from
the date of the report.”
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United States v. Simmermacher, 14-0744/NA
defense; and (5) the defense had made a timely request to
independently test the sample. The defense also argued that
preferral of charges against Simmermacher after the sample was
destroyed violated Simmermacher’s due process right to
meaningfully examine the evidence against her.
The military judge denied the motion to suppress, holding
that Simmermacher had failed to show that the urinalysis
possessed an exculpatory value that was or should have been
apparent to the government before it destroyed the sample, and
also failed to show that she was unable to obtain comparable
evidence by other reasonable means. The military judge further
found that Simmermacher was unable to prove the government had
acted in bad faith in the urine sample’s destruction. However,
the military judge did give the panel an adverse inference
instruction regarding the government’s destruction of the
sample: “Because the sample was destroyed after 1 year, you may
infer that the missing evidence would have been adverse to the
prosecution. However, you are not required to draw this
inference.”
On appeal, the CCA held that the military judge correctly
applied both the constitutional due process analysis and the
R.C.M. 703(f)(2) analysis in his ruling, and did not abuse his
discretion when he denied the motion to suppress. United States
v. Simmermacher, No. NMCCA 201300129, 2014 CCA LEXIS 334, at *1-
5
United States v. Simmermacher, 14-0744/NA
*13, 2014 WL 2434199, at *1-*5 (N-M. Ct. Crim. App. May 29,
2014). The CCA specifically held that: (1) R.C.M. 703(f)(2)
did not place any stricter requirements on the government to
preserve evidence than are required under the constitutional
standards, id. at *11-*12, 2014 WL 2434199, at *4 (citing United
States v. Kern, 22 M.J. 49, 51 (C.M.A. 1986)); (2) Simmermacher
was unable to prove that the destroyed sample was materially
exculpatory, id. at *8, 2014 WL 2434199 at *3; (3) as
Simmermacher had failed to show bad faith on the part of the
government, the government’s destruction of evidence was merely
negligent, id. at *9, 2014 WL 2434199, at *3; and (4) the
military judge fashioned an appropriate remedy by giving an
adverse inference instruction, id. at *9-*10, 2014 WL 2434199,
at *3.
DISCUSSION
Argument of the Parties
Before this court, Simmermacher argues that under R.C.M.
703(f)(2), the military judge was required to abate the
proceedings. Simmermacher asserts she satisfied the three
criteria of R.C.M. 703(f)(2): (1) the destroyed urine sample
was essential to a fair trial because it was the only direct
evidence of cocaine use; (2) no adequate substitute for the
sample existed because the urinalysis report was conclusory and
the defense was unable to challenge the foundation of that
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United States v. Simmermacher, 14-0744/NA
report through a retest; and (3) the unavailability of the urine
sample was not Simmermacher’s fault nor could she have prevented
its destruction as the government discarded the sample before
Simmermacher was charged or assigned counsel. Simmermacher also
contends that because the granting of a continuance or other
relief could not have produced the destroyed sample, abatement
of the proceedings was the only available remedy. Finally,
Simmermacher argues that her case is controlled by United States
v. Manuel, 43 M.J. 282, 288 (C.A.A.F. 1995), in which this Court
found that R.C.M. 703(f)(2) contained a remedy beyond those
provided under constitutional due process standards, and is
“illustrative of the President’s going even further than the
Constitution and the Uniform Code in providing a safeguard for
military personnel.” Accordingly, Simmermacher argues that
under R.C.M. 703(f)(2), an accused is not required to prove bad
faith by the government, which would be necessary under a
constitutional due process analysis.
The government responds that Simmermacher failed to
establish a violation of R.C.M. 703(f)(2), which it contends
must be analyzed under constitutional due process standards.
The government argues that Simmermacher has not demonstrated
that it acted in bad faith, that the destroyed sample was
exculpatory, or that she was unable to obtain comparable
evidence. As to the facial requirements of R.C.M. 703(f)(2),
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the government argues that Simmermacher failed to show either
that the urine sample was of such central importance to an issue
that it was essential to a fair trial, or that the litigation
packet and the defense’s opportunity to question the NDSL
government witness could not serve as an adequate substitute for
the destroyed sample. The government concludes by arguing that
even if a 703(f)(2) violation did occur, the military judge had
the discretion under Manuel to fashion an appropriate remedy,
which he did by providing the members with an adverse inference
instruction.
Standard of Review
A military judge’s failure to abate proceedings is reviewed
for an abuse of discretion. United States v. Ivey, 55 M.J. 251,
256 (C.A.A.F. 2001). An abuse of discretion occurs when a
court’s findings of fact are clearly erroneous or the decision
is influenced by an erroneous view of the law. United States v.
Lubich, 72 M.J. 170, 173 (C.A.A.F. 2013).
Constitutional Due Process Standards
As the government asks this court to read constitutional
due process standards into R.C.M. 703(f)(2), a brief overview of
those standards is necessary. California v. Trombetta, 467 U.S.
479, 489 (1984), found that a constitutional duty to preserve
evidence exists if the following conditions are met: the
“evidence must both possess an exculpatory value that was
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United States v. Simmermacher, 14-0744/NA
apparent before the evidence was destroyed, and be of such a
nature that the defendant would be unable to obtain comparable
evidence by other reasonably available means.” In addition,
Arizona v. Youngblood, 488 U.S. 51, 58 (1988), established that
an appellant must prove bad faith by the government to establish
a violation of the Due Process Clause when potentially useful
evidence has not been preserved. While Simmermacher argued
constitutional due process violations at both the court-martial
and the CCA, she is relying only on R.C.M. 703(f)(2) before this
court.
Lost or Destroyed Evidence in Courts-Martial Prior to the
Adoption of R.C.M. 703(f)(2)
The court addressed the issue of lost or destroyed evidence
in Kern, 22 M.J. at 50, a case in which the accused was charged
with possession of stolen property, but the government could not
produce the property at trial. Kern argued that Article 46,
UCMJ, 10 U.S.C. § 846, which provides a military defendant an
equal opportunity to obtain evidence, required a more stringent
rule governing preservation of evidence than that provided by
constitutional due process standards. Id. The court in Kern,
however, held that military law:
does not place stricter requirements on the Government
to preserve evidence which is not “apparently”
exculpatory than is required of the states under the
fourteenth amendment to the Constitution. The rule
announced in Trombetta satisfies both constitutional
and military standards of due process and should
therefore be applicable to courts-martial.
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Id. While Kern did reference R.C.M. 703(f)(2) in its final
footnote, the court did not analyze any rights or duties under
the rule because Kern’s court-martial occurred on April 30,
1984, and R.C.M. 703(f)(2) did not take effect until August 1,
1984. Id. at 50, 52 n.4; Exec. Order No. 12473, 49 Fed. Reg.
17,152 (Apr. 13, 1984). 3
This Court’s R.C.M. 703(f)(2) Precedent
R.C.M. 703(f)(2) provides:
Notwithstanding subsection (f)(1) of this rule, a
party is not entitled to the production of evidence
which is destroyed, lost, or otherwise not subject to
compulsory process. However, if such evidence is of
such central importance to an issue that it is
essential to a fair trial, and if there is no adequate
substitute for such evidence, the military judge shall
grant a continuance or other relief in order to
attempt to produce the evidence or shall abate the
proceedings, unless the unavailability of the evidence
is the fault of or could have been prevented by the
requesting party.
The court first addressed the substance of R.C.M. 703(f)(2)
in Manuel, 43 M.J. at 284, which involved two defense requests
for a retest of a positive urine sample, where the parties later
discovered that the sample had been inadvertently destroyed.
3
The court also referenced R.C.M. 703(f)(2) in United States v.
Ellis, 57 M.J. 375, 380 (C.A.A.F. 2002), in which the appellant
argued that the military judge should have given an adverse
inference instruction where the government had discarded
physical evidence. While the court noted that an adverse
inference instruction was an appropriate curative measure for
improperly destroyed evidence, the court did not reach the
R.C.M. 703(f)(2) issue, as it held any error was harmless in
light of the appellant’s confession. 57 M.J. at 382.
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The court held that regulations requiring preservation of
positive urine samples confer a substantial right on an accused
to have his or her sample preserved, and it was not an abuse of
discretion for the military judge to exclude the urinalysis
results where the sample had been destroyed. Id. at 287.
Manuel clarified that constitutional due process was not the
only right implicated when a military member’s evidence was lost
or destroyed, as the provisions of R.C.M. 703(f)(2) are also
applicable. Id. at 288. Additionally, the court stated that
R.C.M. 703(f)(2) is “illustrative of the President’s going even
further than the Constitution and the Uniform Code in providing
a safeguard for military personnel.” Id. Finally, the court
held that R.C.M. 703(f)(2) “gives the court discretion to
fashion an appropriate remedy if lost ‘evidence is of such
central importance to an issue that it is essential to a fair
trial.’” Id.
We last discussed R.C.M. 703(f)(2) in United States v.
Madigan, 63 M.J. 118, 120-22 (C.A.A.F. 2006), where a positive
blood sample was inadvertently destroyed seven months after the
sample was taken, in violation of the military laboratory’s
policy of retaining samples for two years. When Madigan filed a
motion to dismiss the drug charge based on the destruction of
the sample, the two-year retention period had already expired
and she had failed to request access to or retention of the
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United States v. Simmermacher, 14-0744/NA
sample during that period. Id. at 119. We held that “the
Government is not responsible for ensuring the availability of
the evidence after the authorized destruction date in the
absence of a timely request for access or retention.” Id. at
121. However, the Court also noted that this decision rested
solely upon the facts and circumstances in that case. Id. at
121-22. We then set forth three scenarios in which the result
might differ, the third of which was where:
a party demonstrates that, in a particular case, the
period between notice to the party of the test result
and destruction of the evidence did not provide the
party with reasonable time within which to request
access to the evidence.
Id.
In reviewing our precedent as to the lost or destroyed
evidence of military members, we note several inconsistencies.
There is nothing in the text or discussion of R.C.M. 703(f)(2)
which indicates that the President intended to incorporate
constitutional due process standards into that provision. 4 We
4
See United States v. Kearns, 73 M.J. 177, 181 (C.A.A.F. 2014)
(citations omitted):
Where the language of the statute is clear and
“Congress has directly spoken to the precise question
at issue,” we must “give effect to the unambiguously
expressed intent of Congress.” As further stated by
the Supreme Court, “It is well established that ‘when
the statute’s language is plain, the sole function of
the courts -- at least where the disposition required
by the text is not absurd -- is to enforce it
according to its terms.” There is no rule of
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therefore agree with the holding in Manuel that constitutional
due process standards are not a part of a R.C.M. 703(f)(2)
analysis. In addition, we find Kern’s holding that military law
does not contain stricter requirements than the constitutional
due process standards to be inapplicable to a R.C.M. 703(f)(2)
analysis, as the court-martial predated the adoption of R.C.M.
703 and the court did not analyze the rule. While the due
process standards created by Trombetta and Youngblood, and
adopted in Kern, are still applicable to a constitutional due
process inquiry for lost or destroyed evidence, R.C.M. 703(f)(2)
is an additional protection the President granted to
servicemembers whose lost or destroyed evidence fall within the
rule’s criteria.
We further note that Manuel and Madigan endorse, to
different degrees, the concept that R.C.M. 703(f)(2) provides
military judges with broad discretion to fashion an appropriate
remedy when they have found a violation of that rule. Manuel,
43 M.J. at 288; Madigan, 63 M.J. at 121. We do not read the
language of R.C.M. 703(f)(2) that broadly. The “other relief”
language in R.C.M. 703(f)(2) is clearly applicable only to the
statutory construction that allows for a court to
append additional language as it sees fit.
“Ordinary rules of statutory construction apply in interpreting
the R.C.M.” United States v. Hunter, 65 M.J. 399, 401 (C.A.A.F.
2008) (citing United States v. Clark, 62 M.J. 195, 198 (C.A.A.F.
2005)).
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military judge’s attempt to produce the missing evidence and
does not grant the military judge broad discretion to fashion a
remedy for violation of the rule. If a continuance or other
relief cannot produce the missing evidence, the remaining remedy
for a violation of R.C.M. 703(f)(2) is abatement of the
proceedings. 5 We therefore overrule the language in Manuel and
Madigan to the extent they are inconsistent with this holding.
Criteria under R.C.M. 703(f)(2)
1. The lost or destroyed evidence was of such central
importance that it was essential to a fair trial
In Manuel we held the destroyed urine sample was of such
central importance to the defense that it was essential to a
fair trial. Manuel, 43 M.J. at 287, 288. We see no meaningful
distinction between the situation in Manuel and the situation
presented in this case. In both cases the government was
negligent in destroying the samples prior to a timely request
for a retest, the samples were the sole evidence of drug use,
the accused denied using cocaine and had no explanation for the
5
We note that abatement of the proceedings is the remedy only if
there has been a violation of R.C.M. 703(f)(2), which requires
that all three criteria of the rule have been satisfied. For
instance, in this case, had the military judge suppressed the
urinalysis report, the urine sample may no longer have been of
central importance to the issue of Simmermacher’s cocaine use.
Under that scenario, all three of the R.C.M. 703(f)(2) criteria
would not have been met, and therefore a violation necessitating
abatement of the proceedings would not have occurred.
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positive results, and the nanogram levels were close to the DOD
cutoff. 6 Id. at 288-89.
2. There was no adequate substitute for the lost or destroyed
evidence
As in Manuel, there was no adequate substitute for
Simmermacher’s destroyed urine sample. Through her retest
request, Simmermacher was challenging whether the government’s
urinalysis test result was in fact correct and whether there had
been any adulterations to or misidentifications of the sample.
A laboratory report of the initial urinalysis process could
therefore not serve as an adequate substitute for retesting the
destroyed urine sample for such errors. In addition, while
Simmermacher’s case-in-chief and cross-examination provided her
the ability to present a defense and challenge the procedures of
the initial testing process, it did not give her the ability to
retest the sample. This is particularly significant where the
sample served as the sole evidence against her.
We note that in determining whether an adequate substitute
for lost or destroyed evidence is available, a military judge
has broad discretion. It is when no adequate substitute is
available, as in Simmermacher’s case, that military judges do
not have discretion to vary from the prescribed remedy. Here,
we do not believe that the military judge’s permissive adverse
6
In Manuel the nanogram level was 92 ng/ml above the then DOD
cutoff, 43 M.J. at 284, and in this case the nanogram level was
51 ng/ml over the DOD cutoff level.
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inference instruction constituted an adequate substitute. In
providing the adverse inference instruction, the military judge
presented the members with two contradictory propositions: the
military judge initially instructed the members that they could
infer that the laboratory procedures were proper, and that they
also could infer from the positive drug test that Simmermacher
knew she had used cocaine; however, the military judge then
instructed the members that since the urine sample had been
lost, they could infer that the missing evidence would have been
adverse to the prosecution. The military judge made no attempt
to clarify these inconsistent inferences.
3. The loss or destruction of the evidence was not the fault of
nor could have it been prevented by the requesting party
As the sample was destroyed before Simmermacher was charged
and before she was assigned counsel, there can be no reasonable
expectation that she was in any manner responsible for the
destruction of the sample. Nor could Simmermacher have
prevented the destruction of the sample as she was not aware of
NDSL’s April 11, 2011, letter, which notified her command of the
sample retention period. 7
7
This result is not inconsistent with Madigan, as it falls
within the third Madigan scenario, i.e., where “a party
demonstrates that, in a particular case, the period between
notice to the party of the test result and destruction of the
evidence did not provide the party with reasonable time within
which to request access to the evidence.” Madigan, 63 M.J. at
121-22.
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Conclusion
As Simmermacher satisfied the three criteria set forth in
R.C.M. 703(f)(2), and because a continuance or other relief
could not have produced the destroyed urine sample, we hold that
the military judge abused his discretion when he failed to abate
the proceedings as to the charge of wrongful use of cocaine
under Article 112a.
DECISION
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is reversed as to the charge of the wrongful
use of cocaine under Article 112a, UCMJ, and as to the sentence.
The decision is affirmed as to the charge of making a false
official statement under Article 107, UCMJ. 8 The charge of the
wrongful use of cocaine is dismissed. The record of trial is
returned to the Judge Advocate General of the Navy for remand to
the Court of Criminal Appeals for its determination to either
reassess the sentence or to set aside the sentence and order a
rehearing.
8
Simmermacher was charged with an official false statement for
informing NCIS agents that she had “never done any illegal
substance, including cocaine.” Simmermacher did not challenge
the false official statement conviction on appeal and two
witnesses testified that they had observed her use drugs other
than cocaine.
17