Paul D. Ellis v. U.S.
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Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volum es go to press. DISTRICT OF COLUMBIA COURT OF APPEALS No. 01-CF-1547 P AUL D. E LLIS, A PPELLANT, v. U NITED S TATES, A PPELLEE. Appeal from the Superior Court of the District of C olumbia (F-1508-01) (Hon. Natalia Combs Greene, Trial Judge) (Submitted October 14, 2003 Decided October 23, 2003) Ian A. Williams was on th e brief for app ellant. Roscoe C. Howard, Jr., United States Attorney, and John R. F isher, Elizab eth Trosman, Irma Valdez, and Tracy N. Ferguson, Assistant United States Attorneys, were on the brief for appellee. Before STEADMAN, F ARRELL, and G LICKMAN, Associate Judges. P ER C URIAM: Convicted by a jury of distribution of cocaine, appellant arg ues main ly that the Drug Enforcement Adm inistration (D EA) ch emist s rep ort of analys is of the drugs should have been excluded as hearsay because the government did not present foundational testimony by a police officer (or anyone else) that the report was a business record kept in the regular course of the DEA s business. The court resolved this issue against appellant in Giles v. Dis trict of Colum bia, 548 A.2d 48 (D.C . 1988), w here we h eld that so long as four statutory requirements are met, a chemist s report is admissible under D.C. Code § 33-556 (now D.C. Code § 48-905.06 (2001)) without need for a testimonial 2 found ation. Id. at 53.1 In § 33-556, we reasoned, the legislature in effect [had] extended admissib ility of a chemist s report from the business records exception to a business records-type subset of the official records exception to the hearsay rule, which traditionally has perm itted admiss ion of a reco rd without supportin g testimon y if attestatio n and c ertificatio n requi remen ts such a s § 33-5 56 con tains are met. Id. at 54. Despite the clear teaching o f Giles, appellant relies on language in Brown v. United States, 627 A.2d 499 (D.C. 1993), which appears to read the statute as imposing both the admissib ility requirements set forth in Giles and a requirement of foundational testimony. See id. at 506 ( In addition [to the four prerequisites listed in Giles], since the [chemist s] report is hearsay, there must be evidence during the government s case in chief which establishes typically . . . through foundational testimony the applicability of the business record exception to the hearsay rule, citing Giles, 548 A .2d at 53). 2 This 1 We stated in Giles: [A] chemist s report ma y be admitted into ev idence under § 33-556, without need for a testimonial foundation, if four requirem ents are met: (1) the analysis of a controlled substance [must be] performed by a chemist charged with an official duty to perform su ch analysis, (2) an official report of chain of custody and of analysis of [the] controlled substance must be attested to by that chemist, (3) the chemist s official report must be attested to . . . by the officer having legal custody of the report, and (4) the official report must be accompanied by a certificate under seal that the officer h as legal c ustody . 548 A.2d at 53-54. 2 Actually Giles had stated, at the place cited, that the chemist s repo rt could have been admitted as a business record, in which case the chemist or other custodian, or conceiva bly some one els e in a po sition to k now, would h ave had to provide a foundation by testifying . . . that the report was made in the regular course of business [etc.]. Giles, (contin ued...) 3 language was dictum in Brown, in which the issue the court actually decided was whether the defendant had a constitutional right to cross-examine the chemist during the governmen t s case in chie f, 627 A .2d at 506, ra ther than as the statute provides in his own case by subpoenaing the chem ist and questioning him as on cross-ex amina tion. Section 48-905.06.3 More over, the court obviously did not intend to deviate from Giles s teaching, given that its discussion of the statutory requirements purported to track that case s analys is. In all events, because Giles was decided before Brown it is Giles, and not Brown, that is bin ding pr ecede nt. See Tho mas v. U nited States, 731 A .2d 415 , 420 n.6 (D.C. 1999) ( Where a division of this court fails to adhere to earlier controlling authority, we are required to follow the earlier decision rather than the later one ) (citing cases). The four require ments set forth in Giles were met in this case, and appellant does not argue otherwise . Accordin gly, there w as no error in the adm ission of the c hemist s re port. 4 Affirmed. 2 (...continued) 548 A.2d at 53 (emphasis added ). But, as Giles made clear, the hypothetical need for admission as a business record had been supplanted by the four statutory requirements for admis sion. Id. at 53-54. 3 We answered that question no, as we essentially had done previously in Howard v. United States, 473 A.2d 835 (D.C. 1984). 4 Appellant further argues that the chemist s certificate of compliance was inad missible because he did not receive a copy of it five days or more before trial, as required by the statute. Even ignoring his fa ilure to ra ise this o bjection at trial, accord United States v. Olano, 507 U .S. 725 , 732-3 6 (199 3), he asserts no cognizable prejudice from the governmen t s belated furnishing of the certifica tion. See Belton v. United States, 580 A.2d 1289, 1292-93 (D.C. 1990).
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