Justia.com Opinion Summary: During Petitioner Darryl Harrod's first trial for possession with intent to distribute cocaine, a chemist called by the state testified and was subjected to cross-examination. A mistrial was subsequently declared. At the retrial, the trial court admitted the chemist's report and testimony without the presence of the chemist. Ultimately, Harrod was convicted of the charge. Harrod appealed, challenging the admission of the chemist's testimony and report. The court of special appeals affirmed. The Court of Appeals reversed, holding (1) it was error to admit the chemist's report and testimony and report during Harrod's retrial because the State failed to provide the requisite notice pursuant to Md. Code Ann. Cts. & Jud. Proc. 10-1003; and (2) the error was not harmless because the report and testimony were adduced to satisfy proof of the elements of the crime.
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Darryl K. Harrod v. State of Maryland, No. 69, September Term 2010.
CRIMINAL LAW AND PROCEDURE – CONTROLLED DANGEROUS
SUBSTANCES – SECTIONS 10-1001 AND 10-1003 OF THE COURTS AND
JUDICIAL PROCEEDINGS ARTICLE – CHEMIST REPORT – NOTICE OF
INTENT TO ADMIT CHEMIST REPORT WITHOUT THE PRESENCE OF THE
CHEMIST
Where the State failed to prove it provided timely notice to the accused that it intended to
admit a chemist report pursuant to Section 10-1001 of the Courts and Judicial Proceedings
Article as evidence of the identity of a controlled substance, the State failed to strictly
comply with Section 10-1003 of the same Article, and thus, it was error for the trial court to
admit the report without the presence of the chemist.
IN THE COURT OF APPEALS OF
MARYLAND
No. 69
September Term, 2010
DARRYL K. HARROD
v.
STATE OF MARYLAND
Bell, C.J.
Harrell
Battaglia
Greene
*Murphy
Adkins
Eldridge, John C., (Retired,
Specially Assigned)
JJ.
Opinion by Battaglia, J.
Murphy, J., joins in judgment only.
Filed: October 27, 2011
*Murphy, J., now retired, participated in the
hearing and conference of this case while an
active member of this Court; after being
recalled pursuant to the Constitution, Article
IV, Section 3A, he also participated in the
decision and adoption of this opinion.
In this case, we consider whether, in a retrial of a criminal case involving a controlled
dangerous substance, the State is required, prior to trial, to timely give notice of its intent to
admit the chemist’s report into evidence without the presence of the chemist pursuant to
statute, when the chemist had testified and was subjected to cross-examination and the report
had been admitted into evidence during the first trial.
Petitioner, Darryl K. Harrod, seeks reversal of his conviction in the Circuit Court for
Montgomery County for possession with intent to distribute cocaine, arguing that the trial
court erroneously admitted a chemist’s report without the presence of the chemist, in
violation of the procedures mandated by Section 10-1003 of the Courts and Judicial
Proceedings Article, Maryland Code (1973, 2006 Repl. Vol.).1 The Court of Special Appeals
1
Section 10-1003 of the Courts and Judicial Proceedings Article provides:
(a) In general. – (1) In a criminal proceeding, the prosecution
shall, upon written demand of a defendant filed in the
proceedings at least 5 days prior to a trial in the proceeding,
require the presence of the chemist, analyst, or any person in the
chain of custody as a prosecution witness.
(2) The provisions of §§ 10-1001 and 10-1002 of this part
concerning prima facie evidence do not apply to the testimony
of that witness.
(3) The provisions of §§ 10-1001 and 10-1002 of this part are
applicable in a criminal proceeding only when a copy of the
report or statement to be introduced is mailed, delivered, or
made available to counsel for the defendant or to the defendant
personally when the defendant is not represented by counsel, at
least 10 days prior to the introduction of the report or statement
at trial.
(b) Witness for defense. – Nothing contained in this part shall
prevent the defendant from summoning a witness mentioned in
this part as a witness for the defense.
(continued...)
affirmed Harrod’s conviction, Harrod v. State, 192 Md. App. 85, 993 A.2d 1113 (2010), and
we granted certiorari, Harrod v. State, 415 Md. 337, 1 A.3d 467 (2010), to answer the
1
(...continued)
Md. Code (1973, 2006 Repl. Vol.), § 10-1003 of the Courts and Judicial Proceedings Article.
Section 10-1001 of the Courts and Judicial Proceedings Article states:
For the purpose of establishing that physical evidence in a
criminal or civil proceeding constitutes a particular controlled
dangerous substance under Title 5 of the Criminal Law Article,
a report signed by the chemist or analyst who performed the test
or tests as to its nature is prima facie evidence that the material
delivered to the chemist or analyst was properly tested under
procedures approved by the Department of Health and Mental
Hygiene, that those procedures are legally reliable, that the
material was delivered to the chemist or analyst by the officer or
person stated in the report, and that the material was or
contained the substance therein stated, without the necessity of
the chemist or analyst personally appearing in court, provided
the report identifies the chemist or analyst as an individual
certified by the Department of Health and Mental Hygiene, the
Department of State Police, the Baltimore City Police
Department, or any county police department employing
analysts of controlled dangerous substances, as qualified under
standards approved by the Department of Health and Mental
Hygiene to analyze those substances, states that the chemist or
analyst made an analysis of the material under procedures
approved by that department, and also states that the substance,
in the opinion of the chemist or analyst, is or contains the
particular controlled dangerous substance specified. Nothing in
this section precludes the right of any party to introduce any
evidence supporting or contradicting the evidence contained in
or the presumptions raised by the report.
Md. Code (1973, 2006 Repl. Vol.), § 10-1001 of the Courts and Judicial Proceedings Article.
All references to Sections 10-1001 and 10-1003 of the Courts and Judicial Proceedings
Article throughout are to Maryland Code (1973, 2006 Repl. Vol.), unless otherwise noted.
2
following questions:
1. Whether, under Maryland Courts & Judicial Proceedings
Article §§ 10-1001 to 10-1003, the State may, without providing
notice to the defendant, admit a chemist report in a drug
prosecution without the presence of the chemist unless the
defendant specifically requests the presence of the chemist prior
to each trial?
2. Whether, when an issue is decided by the trial court, the entire
issue is subject to appellate review under Maryland Rule 8131(a) or just those bases expressly articulated in or by the trial
court?
We shall hold that it was error to admit the chemist’s report and testimony during Harrod’s
retrial, because the State failed to provide the requisite notice pursuant to Section 10-1003
of the Courts and Judicial Proceedings Article prior to the retrial and that error was not
harmless.
Harrod was initially charged in a two-count indictment with possession with the intent
to distribute cocaine and assault in the second degree. During Harrod’s first jury trial, a
chemist called by the State appeared, was qualified as an expert witness and testified from
her report regarding the identity of the controlled substance as cocaine and its weight of 8.93
grams; she was subjected to cross-examination by Harrod’s counsel. After the jury sent two
notes indicating impasse, the trial judge, upon Harrod’s motion, declared a mistrial as to the
possession with intent to distribute charge and took a not guilty verdict as to the assault
charge.
Harrod retained new counsel. Five days prior to the date scheduled for Harrod’s
retrial, Harrod’s new attorney filed an “Unopposed Motion for Continuance,” which stated
3
that, due to a family emergency, defense counsel “anticipate[d] that she w[ould] not be
available, or if she [was] available, w[ould] not be prepared to try this case on the scheduled
date.”
In reliance upon defense counsel’s representations, the State “informed [its]
witnesses” that the trial “was most likely going to be continued due to the dire nature of the
continuance,” and it did not assure the chemist’s appearance. Soon thereafter, however, the
administrative judge denied the motion, reasoning that the “[c]ase ha[d] been pending seven
(7) months since the mistrial;” the retrial began on the original date.
At the retrial, counsel for the State moved to have the testimony of the chemist from
the first trial admitted into evidence. Defense counsel objected, stating that she had not had
an opportunity to cross-examine the State’s chemist and would have done so differently, but
she did not specifically challenge the availability of the chemist. The trial judge replied that
he did not perceive a “violation of 5-802.1”2 or any “violation of Crawford v.
2
Maryland Rule 5-802.1 states:
The following statements previously made by a witness who
testifies at the trial or hearing and who is subject to crossexamination concerning the statement are not excluded by the
hearsay rule:
(a) A statement that is inconsistent with the declarant’s
testimony, if the statement was (1) given under oath subject to
the penalty of perjury at a trial, hearing, or other proceeding or
in a deposition; (2) reduced to writing and was signed by the
declarant; or (3) recorded in substantially verbatim fashion by
stenographic or electronic means contemporaneously with the
making of the statement;
(b) A statement that is consistent with the declarant’s testimony,
if the statement is offered to rebut an express or implied charge
against the declarant of fabrication, or improper influence or
(continued...)
4
Washington.”3
The State also moved to have the substance and the chemist’s report identifying it as
cocaine admitted into evidence, to which defense counsel objected. The State responded
that, pursuant to the Courts and Judicial Proceedings Article, it was “allowed to just submit
the report and the drugs and not have . . . the testimony.” The trial judge, referencing Section
10-1003 of the Courts and Judicial Proceedings Article, ruled that the chemist report was
admissible without the chemist unless Harrod filed a written demand prior to the retrial.
Thereafter, the judge permitted the State to both admit and read the testimony of the chemist
into evidence, as well as to admit her report. Ultimately, Harrod was convicted and
2
(...continued)
motive;
(c) A statement that is one of identification of a person made
after perceiving the person;
(d) A statement that is one of prompt complaint of sexually
assaultive behavior to which the declarant was subjected if the
statement is consistent with the declarant’s testimony; or
(e) A statement that is in the form of a memorandum or record
concerning a matter about which the witness once had
knowledge but now has insufficient recollection to enable the
witness to testify fully and accurately, if the statement was made
or adopted by the witness when the matter was fresh in the
witness’s memory and reflects that knowledge correctly. If
admitted, the statement may be read into evidence but the
memorandum or record may not itself be received as an exhibit
unless offered by an adverse party.
3
In Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177
(2004), the Supreme Court held that “[t]estimonial statements of witnesses absent from trial
have been admitted only where the declarant is unavailable, and only where the defendant
has had a prior opportunity to cross-examine.” Id. at 59, 124 S. Ct. at 1369, 158 L. Ed. at
197.
5
sentenced to seven years’ imprisonment.4
Harrod noted an appeal to the Court of Special Appeals, asserting, among other
arguments,5 that the trial court’s admission of the chemist’s report and testimony violated his
rights under the Confrontation Clause of the Sixth Amendment to the United States
4
Harrod thereafter applied for a three-judge panel to review his sentence. By order
of that panel, however, Harrod’s application for a sentence review was held in abeyance
pending the outcome of appellate proceedings.
5
Harrod raised these three questions, and related arguments, in his brief before the
Court of Special Appeals, only two of which are now before us:
1. Mr. Harrod is entitled to the suppression of any narcotics
allegedly recovered from him because the search violated the
Fourth Amendment.
***
2. The trial court erred in admitting the chemist report.
A.
The Admission of the Chemist Report Violated Mr.
Harrod’s Sixth Amendment Right To Be Confronted
with Witnesses Against Him
B.
The Admission of the Chemist Report Without the
Presence of the Chemist Violated Maryland Code, Courts
and Judicial Proceedings §§ 10-1001 to 10-1003.
C.
The Admission of the Chemist Report Was Not
Harmless.
3. The trial court erred in admitting prior testimony of Keith
Duggan and Susan Cohen.
A.
The Admission of the Prior Testimony of Officer Keith
Duggan and Susan Cohen Violated Mr. Harrod’s Sixth
Amendment Right to Confront Witnesses Against Him.
B.
The Trial Court Erred in Admitting the Prior Testimony
of Susan Cohen and Officer Duggan Under Maryland
Rule of Evidence 5-802.1
C.
The Admission of the Prior Testimony Was Not
Harmless.
6
Constitution,6 Crawford v. Washington, 541 U.S. 36,124 S. Ct. 1354, 158 L. Ed. 2d 177
(2004), and Melendez-Diaz v. Massachusetts, __ U.S. __, 129 S. Ct. 2527, 174 L. Ed. 2d 314
(2009), because, absent a showing that the State’s chemist was unavailable to testify at trial
and that Harrod had the prior opportunity to cross-examine her, Harrod was entitled to be
confronted by the chemist at his retrial.7 The intermediate appellate court declined to reach
the constitutional arguments based on its view that Harrod had failed to object regarding the
availability of the chemist in the trial court. Harrod v. State, 192 Md. App. 85, 993 A.2d
1113 (2010).
Harrod also had argued, however, that the trial court’s admission of the chemist’s
report violated Section 10-1003 of the Courts and Judicial Proceedings Article, in part,
because “the State provided no notice that it intended to admit the report without calling the
chemist” prior to Harrod’s retrial. The intermediate appellate court rejected this argument,
reasoning that “the statute requires only that the report be ‘made available to counsel’” and
Harrod had “given no indication that the report was not available to him prior to his retrial.”
6
The Sixth Amendment to the United States Constitution provides that “[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him.”
7
In Melendez-Diaz v. Massachusetts, __ U.S. __, 129 S. Ct. 2527, 174 L. Ed. 2d
314 (2009), the United States Supreme Court considered the Confrontation Clause
implications of a prosecutor’s introduction of a report indicating “the results of forensic
analysis which showed that material seized by the police and connected to the defendant was
cocaine.” Id. at __, 129 S. Ct. at 2530, 174 L. Ed. 2d at 318. The Court determined that,
“[a]bsent a showing that the analysts were unavailable to testify at trial and that petitioner
had a prior opportunity to cross-examine them, petitioner was entitled to ‘be confronted with’
the analysts at trial.” Id. at __, 129 S. Ct. at 2532, 174 L. Ed. 2d at 322.
7
Id. at 133 n.24, 993 A.2d at 1141 n.24.
Discussion
In his first certiorari question, Harrod asks us to determine whether Sections 10-1001
and 10-1003 of the Courts and Judicial Proceedings Article required the State to provide
timely pretrial notice of its intent to admit the chemist’s report at Harrod’s retrial without the
presence of the chemist.8
We recently discussed the standard of review regarding matters of statutory
interpretation in Evans v. State, 420 Md. 391, 23 A.3d 223 (2011):
In statutory interpretation, our primary goal is always to discern
the legislative purpose, the ends to be accomplished, or the evils
to be remedied by a particular provision, be it statutory,
constitutional or part of the Rules. We begin our analysis by
first looking to the normal, plain meaning of the language of the
statute, reading the statute as a whole to ensure that no word,
clause, sentence or phrase is rendered surplusage, superfluous,
meaningless or nugatory. If the language of the statute is clear
and unambiguous, we need not look beyond the statute’s
provisions and our analysis ends. Occasionally we see fit to
examine extrinsic sources of legislative intent merely as a check
8
Preliminarily, the State has asserted that Harrod did not preserve his claim of
failure of notice. At the outset of Harrod’s new trial, however, in response to news that the
State’s witnesses would be absent, defense counsel requested the presence of the State’s
chemist. The State objected, adding that, pursuant to the Courts and Judicial Proceedings
Article, the State is “allowed to . . . just submit the report and the drugs and not have . . . the
testimony.” Defense counsel responded that “there was a demand made” at the “previous
trial” for the presence of the chemist. Thereafter, the trial judge, referencing Section 101003(a), ruled that “demand has to be made in respect of the particular trial,” adding that “the
purpose of the statute is to give the State notice that the defendant wants the witness.” Later
during trial, when the State sought to introduce the chemist’s report, defense counsel stated
“Same objections, Your Honor.” Moreover, the Court of Special Appeals explicitly reached
this argument.
8
of our reading of a statute’s plain language. In such instances,
we may find useful the context of a statute, the overall statutory
scheme, and archival legislative history of relevant enactments.
If, however, the language is subject to more than one
interpretation, it is ambiguous, and we endeavor to resolve that
ambiguity by looking to the statute’s legislative history, case
law, statutory purpose, as well as the structure of the statute.
When the statute is part of a larger statutory scheme, it is
axiomatic that the language of a provision is not interpreted in
isolation; rather, we analyze the statutory scheme as a whole
considering the purpose, aim, or policy of the enacting body,
and attempt to harmonize provisions dealing with the same
subject so that each may be given effect.
Id. at 400, 23 A.3d at 228, quoting Ray v. State, 410 Md. 384, 404-405, 978 A.2d 736, 747748 (2009).
The provisions regarding testimony at trial of the chemist and the admissibility of her
report are reflected in Sections 10-1001 and 10-1003 of the Courts and Judicial Proceedings
Article. Section 10-1001 provides that, “without the necessity of the chemist or analyst
personally appearing in court,” a “report signed by the chemist or analyst who performed the
test” may serve as “prima facie evidence” that the “material was or contained the substance
therein stated.”
Section 10-1003 of the Courts and Judicial Proceedings Article states:
(a) In general. – (1) In a criminal proceeding, the prosecution
shall, upon written demand of a defendant filed in the
proceedings at least 5 days prior to a trial in the proceeding,
require the presence of the chemist, analyst, or any person in the
chain of custody as a prosecution witness.
(2) The provisions of §§ 10-1001 and 10-1002 of this part
concerning prima facie evidence do not apply to the testimony
9
of that witness.
(3) The provisions of §§ 10-1001 and 10-1002 of this part are
applicable in a criminal proceeding only when a copy of the
report or statement to be introduced is mailed, delivered, or
made available to counsel for the defendant or to the defendant
personally when the defendant is not represented by counsel, at
least 10 days prior to the introduction of the report or statement
at trial.
(b) Witness for defense. – Nothing contained in this part shall
prevent the defendant from summoning a witness mentioned in
this part as a witness for the defense.
Harrod argues, initially, that he was entitled to timely notice of the chemist’s report
before the retrial in order for the State to introduce it and that this notice would have
triggered his demand for the chemist’s testimony. The State suggests that the chemist report
was made available prior to the first trial, so that notice was not necessary again, and that the
chemist’s testimony was admitted during the first trial and Harrod did not demand her
presence again. Seminally, we obviously must discuss the effect of the granting of a mistrial
on subsequent pretrial procedures.
It is well-established in our jurisprudence that the grant of a mistrial upon a
defendant’s request or consent does not preclude a retrial. Bell v. State, 286 Md. 193, 202,
406 A.2d 909, 913 (1979). We have noted, in dicta, that the grant of a mistrial is
“tantamount to a holding that there had been no trial at all,” which does not “deny either the
accused or the State the opportunity to litigate directly their rights on retrial.” Cook v. State,
281 Md. 665, 670-671, 381 A.2d 671, 674 (1978); see also Powers v. State, 285 Md. 269,
285, 401 A.2d 1031, 1040 (1979) (“a mistrial is equivalent to no trial at all”). Similarly, of
10
the grant of a new trial, we have suggested, at least in the usual context, that the effect “is to
leave the cause in the same condition as if no previous trial had been held.” Cottman v.
State, 395 Md. 729, 743, 912 A.2d 620, 628 (2006), quoting Snyder v. Cearfoss, 186 Md.
360, 367, 46 A.2d 607, 610 (1946); see also State Use of Scruggs v. Baltimore Transit Co.,
177 Md. 451, 454, 9 A.2d 753, 754 (1939) (“[T]he beneficial procedural incidence of the
order is to reestablish the equality in law of the parties, which was lost, by restoring them to
the position of the litigants at the beginning of the trial before a jury.”); Hammersla v. State,
184 Md. App. 295, 313, 965 A.2d 912, 923 (2009) (concluding that the grant of a new trial
“wiped the slate clean,” and revived the State’s obligation to provide notice of its intent to
seek an enhanced penalty prior to sentencing), cert. denied, 409 Md. 49, 972 A.2d 862
(2009).
Whether a mistrial in a criminal context restores the parties to their original pretrial
positions does not appear to be answered in our jurisprudence. Nevertheless, it is not a leap
of faith to acknowledge that the grant of a mistrial in a criminal case does create a “tabula
rasa” and requires the litigants to observe pretrial procedures once again. The Supreme
Court of Idaho, in State v. Bitz, 404 P.2d 628 (Idaho 1965), so recognized.
In Bitz, two co-defendants were retried on burglary charges after a mistrial. Prior to
the retrial, Bitz filed motions for a change of venue and a continuance as well as an affidavit
to disqualify the trial judge. The trial judge denied the motions, reasoning that such pretrial
relief was available to Bitz only on retrial after appellate reversal of a conviction. The Idaho
11
Supreme Court reversed, concluding that Bitz’s pretrial motions were authorized, because
“upon the entry of [mistrial] the case reverted to the status it had prior to the commencement
of such proceedings.” Id. at 631; see also Commonwealth v. James, 486 A.2d 376, 379 (Pa.
1985) (opining that, when a mistrial is declared, “the status of the case is as though a trial had
never occurred and places the matter in a pretrial context”).
If, then, the grant of a new trial after a mistrial creates a “tabula rasa,” we go back to
square one to determine what the parties’ responsibilities were. According to Section 101003(a)(3) of the Courts and Judicial Proceedings Article, the State is required to give timely
notice by “mail[ing], deliver[ing], or ma[king] available to counsel for the defendant” a
“copy of the report or statement to be introduced” in order to admit it as substantive evidence
without the presence of the chemist under Section 10-1001. The mistrial revived the State’s
obligation.
The State asserts that the record “provides no reason to believe that a copy of the
chemist’s report was not ‘made available’ to second-trial counsel.” In support, the State
postulates that its obligation under Section 10-1003(a)(3) may have been met informally in
this case, whether by “handing a copy of the report to defense counsel in person, by calling
defense counsel and telling her that it was available,” or by “‘open-file’ discovery.”9 The
9
Prior to Harrod’s first trial, the State filed a “Supplemental Line of Discovery”
with the Circuit Court, which stated:
Clerk of Court:
Please filed the attached letter in the above-captioned
(continued...)
12
State, in so doing, misconstrues that the burden of proof that it shoulders can be met by
inference and that conversely, Harrod must prove that he did not receive the chemist’s report.
Under Section 10-1003(a)(3), the State is the beneficiary of providing notice, because
the chemist’s report can be admitted under Section 10-1001 without the presence of the
chemist at trial. When we have addressed the obligations of one who was benefitted from
notice, we have recognized the burden of proof is his. In Sloan v. Grollman, 113 Md. 192,
77 A. 577 (1910), the Sloans, creditors, disputed that they had received notice from the
debtor, Mr. Grollman, that he had filed for bankruptcy, thereby claiming his discharge was
ineffective. In response, Mr. Grollman asserted that his attorney had written a letter to the
Sloans’ office in Baltimore city “‘within a very few days’ after the petition was filed,” Id. at
194, 77 A. at 577, but did not produce anything. In resolving the dispute, we instructed that
the filing of a notice of discharge in bankruptcy “is for the benefit of the bankrupt,” and as
such, “the burden is upon him to prove that the omitted creditor had requisite notice on or
knowledge of the proceedings.” Id. at 194, 77 A. at 577. In the case before us, as the party
to benefit, the State clearly bears the burden of producing proof of compliance prior to retrial,
which it has failed to shoulder.
While we have not directly discussed the effect of the State’s failure to observe the
notice requirements in Section 10-1003, our colleagues on the Court of Special Appeals
9
(...continued)
case, which will reflect that on this 20th day of April, 2007, the
drug report was made available . . . as additional discovery in
this case.
13
have, and, unwaveringly, they have characterized the State’s failure to provide notice as fatal
to the admission of a chemist report without the presence of the chemist. See Best v. State,
79 Md. App. 241, 251, 556 A.2d 701, 706 (1989) (stating that Section 10-1003 acts as a
“safety catch,” because it precludes the State from admitting a chemist report “where the
State has failed to give notice to the defendant or his counsel at least ten days prior to the
introduction of . . . the written report (in lieu of the chemist)”); Gillis v. State, 53 Md. App.
691, 698, 456 A.2d 89, 93 (1983) (concluding that where “[t]he State elected not to comply
with the clear mandate of the statute . . . . the trial judge should have required the witnesses
to be produced”); Knight v. State, 41 Md. App. 691, 694, 398 A.2d 811, 813 (1979)
(reversing conviction where “[t]here [was] absolutely nothing written, typed, or printed upon
th[e] report that would lead anyone to believe that the State intended to submit the report in
lieu of the testimony of the chemist”).
This stance is in keeping with the rigors of strict compliance enforced by various of
our sister states with statutes similar to our own. In State v. Neal, 30 P.3d 1255 (Wash.
2001), for example, the State served Neal with a copy of a toxicologist’s report, but the
report failed to provide the name of the person receiving the substance as required by court
rule.10 Nonetheless, over Neal’s objection, the trial court admitted the State’s lab report,
10
In Washington, in order to admit a lab report “as prima facie evidence of the facts
stated in the report,” Wash. CrR 6.13(b)(1), the State must serve a “defendant or the
defendant's attorney at least 15 days prior to the trial date.” Wash. CrR. 6.13(b)(3)(i).
Among other requirements, the lab report must reflect “the name of the person from whom
the substance or object was received.” Wash. CrR 6.13(b)(1).
14
reasoning that the “certificate substantially complied with the rule.” Id. at 1257. The
Supreme Court of Washington reversed Neal’s conviction, reasoning that “strict compliance
is required” and the “failure of the State to comply with the notice requirements of CrR
6.13(b)(3) mandates exclusion of the report.” Id. at 1260, 1261.
In State v. Miller, 790 A.2d 144 (N.J. 2002), the Supreme Court of New Jersey also
characterized that State’s notice requirement as inflexible.11 In the context of a prosecution
for possession of cocaine, the State had notified Miller of its intention to admit a chemist’s
report without the presence of its chemist, but without forwarding a copy of the data revealed
in the chemist’s lab analysis. At trial, the court received the chemist’s report over Miller’s
objection. The Supreme Court ordered a remand, reasoning that “[a] party intending to
proffer the certificate must convey ‘notice of an intent’ to do so to the opposing party at least
twenty days before the trial” and that “notice must include a copy of the lab certificate.” Id.
at 151. The court, explaining strict compliance, pointed out that the “State is fully aware of
the lab procedures and the outcome of the testing and has complete access to the lab
employees” while defendants are “essentially in the dark and unable to test the lab results”
by themselves. Id. at 154-55.
The State wants us to excuse its failure to give notice also by the fortuity of the
11
In New Jersey, in order to admit a lab analysis certificate as evidence of the
“composition, quality, and quantity of the substance submitted to the laboratory,” N.J. Stat.
Ann. § 2C:35-19(b) (West 2005), the State must convey it “to the opposing party or parties
at least 20 days before the proceeding begins,” Id. § 2C:35-19(c). Among other
requirements, the certificate must include “the type of analysis performed; the result
achieved; and any conclusions reached based upon that result.” Id. § 2C:35-19(b).
15
chemist having testified at Harrod’s first trial. In essence, the State argues that even if the
chemist’s report cannot be received in evidence, then the chemist’s testimony alone, or even
based on her report, was properly admitted because Harrod did not request the presence of
the chemist, so that two fouls equal a home run for the State. Section 10-1003(a)(3)
disqualifies the State from admitting a chemist report without the chemist, unless it timely
mails, delivers, or makes available a copy of the chemist report to the defendant. The State
did not comply with the dictates of the statute, substantially or strictly. As a result, the
chemist’s testimony does not correct the error.12
The State, nevertheless, insists that the failure to provide timely notice was harmless,
because Harrod had “actual notice” of the contents of the chemist report as well as the
chemist’s former testimony. Harrod counters that the erroneous admission of the chemist’s
report and testimony cannot be harmless, because it “provided the only evidence that the
seized substance was a controlled substance, an element of the offense.”
In Dorsey v. State, 276 Md. 638, 350 A.2d 665 (1976), we instructed that, when
performing harmless error review, we conduct an independent assessment of the “impact of
the erroneous ruling upon the defendant’s trial and the effect it ha[d] upon the decisional
process,” irrespective of whether the error could be labeled “as constitutional or
12
Because we dispose of Harrod’s appeal on the provisions of Sections 10-1001 and
10-1003 of the Courts and Judicial Proceedings Article, we need not address any
constitutional arguments arising from Crawford v. Washington, 541 U.S. 36,124 S. Ct. 1354,
158 L. Ed. 2d 177 (2004) and Melendez-Diaz v. Massachusetts, __ U.S. __, 129 S. Ct. 2527,
174 L. Ed. 2d 314 (2009).
16
nonconstitutional.” Id. at 658, 350 A.2d at 677; see also Brafman v. State, 276 Md. 676, 679,
349 A.2d 632, 633 (1976) (explaining that, in the context of making a determination as to
whether erroneous admission of hearsay testimony was harmless, whether the Sixth
Amendment right to confrontation was violated “is of no real moment.”). The result of
harmless error review depends upon “our own independent review of the record,” in order
to determine whether we are “able to declare a belief, beyond a reasonable doubt, that the
error in no way influenced the verdict.” Dorsey, 276 Md. at 659, 350 A.2d at 678.
In conducting such an analysis, in the arena of inadmissible evidence, we, as we
recently did in two such cases, conduct a thorough review of the record to determine whether
we are “able to declare a belief, beyond a reasonable doubt, that the error in no way
influenced the verdict.” Dorsey, 276 Md. at 659, 350 A.2d at 678. In Anderson v. State, 420
Md. 554, 24 A.3d 692 (2011), in the context of a prosecution for sexual abuse of a minor, we
considered whether the admission of a doctor’s report into evidence, despite it being
inadmissible hearsay, was harmless beyond a reasonable doubt. In framing our analysis, we
instructed that harmless error was “determined by examining the use that the State made” of
the inadmissible doctor’s report. Id. at 569, 24 A.3d at 700. We observed that the State
continually reemphasized the statements made by the victim in the doctor’s report during
closing argument, many of which inculpated the defendant, which precluded us from
declaring beyond a reasonable doubt that the erroneous reception of the doctor’s report was
harmless.
17
In Parker v. State, 408 Md. 428, 970 A.2d 320 (2009), we also determined that the
trial court erroneously admitted a confidential informant’s hearsay statement, which placed
the defendant at the scene of a drug-trafficking crime. In applying the Dorsey standard, we
hinged the fulcrum between harmless and harmful error upon whether we could declare a
belief beyond a reasonable doubt that the informant’s statements “in no way influenced the
jury’s verdict.” Id. at 447, 970 A.2d at 331-332. We were unable to declare such a belief,
we explained, because the informant’s statement that “an individual fitting Parker’s
description was ‘selling heroin from his person’” at the scene of the crime “provided
potentially scale-tipping corroboration” for the investigating officer’s testimony that “he
observed Parker engage in what he believed to be ‘illegal narcotic activity.’” Id. at 447-48,
970 A.2d at 332. The informant’s testimony, we concluded, “added substantial, perhaps even
critical, weight to the State’s case against Parker,” and we ordered a new trial. Id. at 448,
970 A.2d at 332 (citation omitted) (internal quotation marks omitted).
Harmless error analysis in the instant case, applied correctly, yields the only justified
conclusion that admission of the chemist’s report and testimony was prejudicial, and ergo,
harmful. In order to support a conviction for possession with intent to distribute a controlled
dangerous substance, the State introduced the chemist’s report to prove that the “40 rocks of
white chalky [substance]” seized from Harrod’s person was “crack cocaine” and totaled
“8.93 grams” in weight. Certainly, both the identity of the rocks as controlled dangerous
substances, as well as their weight, were adduced to satisfy the elements of the charge,
18
“possess[ing] cocaine, a controlled dangerous substance, in sufficient quantity to reasonably
indicate under all circumstance[s] an intent to distribute the controlled dangerous substance,
in violation of Section 5-602(2) of the Criminal Law Article . . . .” How, then, could the
admission of the report and the testimony adduced relative to it be anything other than
harmful? The State, clearly, recognized the importance of the chemist’s report in its closing
when the State’s Attorney argued:
This is my favorite because it’s the easiest. We know it’s crack;
we know it’s cocaine. There are a couple of different ways, but
the primary one being the lab report . . . . [H]ere’s the report,
you can look at it, it’s been admitted – [the chemist] determined
that, yes, they were in fact 8.93 grams of cocaine. So, that has
been proven and that’s by [the chemist] and the lab report.
The chemist report and its attendant testimony were adduced to satisfy proof of the elements
of the crime, and thus, their admission was not harmless.
JUDGMENT OF THE COURT OF
SPECIAL APPEALS REVERSED.
CASE REMANDED TO THAT
COURT WITH INSTRUCTIONS TO
REVERSE THE JUDGMENT OF
CONVICTION AND TO REMAND
THE CASE TO THE CIRCUIT
COURT FOR MONTGOMERY
COUNTY FOR A NEW TRIAL.
COSTS IN THIS COURT AND THE
COURT OF SPECIAL APPEALS TO
BE PAID BY MONTGOMERY
COUNTY.
Judge Murphy joins in the judgment only.
19
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