Blanks v. State

EYLER, DEBORAH S., J. This case raises the question whether the Sixth Amendment right to confront witnesses, as interpreted by the Supreme Court in Crawford v. Washington, 541 U.S. 36 , 124 S.Ct. 1354 , ³³⁹ 158 L.Ed.2d 177 (2004), applies in a probation revocation hearing. We hold that it does not. We further hold that the right to confront witnesses as protected by the Due Process Clause of the Fourteenth Amendment does apply and was satisfied in this case. On November 14, 2011, in the Circuit Court for Dorchester County, Richard Blanks, the appellant, entered an Alford plea to a charge of robbery. 1 The court sentenced him to 15 years’ incarceration, with all but 279 days suspended, and imposed a 5-year period of supervised probation.

As relevant here, over two years later, on March 20, 2014, Blanks admitted to having violated his probation by possessing drug paraphernalia (a crime for which he had been charged and convicted in the District Court). His probation was revoked and he was sentenced to serve his suspended sentence of 14 years and 86 days, 2 with all but the 218 days (time served) suspended. The court imposed a new five-year term of probation. The probation order required Blanks to comply with “All Standard Conditions,” which included reporting “as directed” to his supervising parole and probation agent (condition 1) and not using any controlled dangerous substances (condition 8).

Under the “Special Conditions” section of the probation order, Blanks was ordered to “[t]otally abstain from alcohol, illegal substances, and abusive use of any prescription drug” (condition 16). Travis Knapp, an agent with the Maryland Division of Parole and Probation (“P & P”), was assigned to supervise Blanks’s probation. He directed Blanks to report to the Cambridge P & P Office for a face-to-face meeting twice a week and, in addition, to either call or use a kiosk machine to report once per week. Blanks was required to submit to drug ³⁴⁰ testing twice a week and was referred to an addictions counseling program.

On January 27, 2015, during an in-person visit at the P & P Office, Knapp directed Blanks to provide a urine sample for random drug testing. John Cannon, an agent assistant with P & P, watched Blanks urinate into a sampling container. Blanks closed the container and followed Cannon into his office. There, Blanks initialed an adhesive tamper-proof seal marked with a specimen number.

Cannon placed the seal on the top of the lid of the sampling container and directed Blanks to press the seal tightly around the edges of the lid. Cannon held open a plastic bag and Blanks placed the sealed container inside the bag. Cannon completed a chain of custody form for the sample. He verified that the form included the same specimen number as the seal on the container.

Blanks and Cannon both signed and dated the chain of custody form. Cannon put the chain of custody form in the plastic bag with the sampling container and sealed the bag. Cannon dropped the plastic bag in a UPS drop box for delivery to Phamatech Inc. (“Phamatech”), a laboratory in San Diego, California. Six days later, on February 3, 2015, Knapp received a report from Phamatech stating that Blanks’s January 27, 2015 urine sample had tested positive for the presence of marijuana.

The next day, Knapp requested that a warrant be issued for Blanks’s arrest for violation of conditions 8 and 16 of his probation pertaining to the use of drugs or alcohol. On February 11, 2015, Blanks called Knapp and asked him why there was an active warrant for his arrest. Knapp advised Blanks of the positive urinalysis result. He directed Blanks to come to the P & P Office that day or the following day, February 12, 2015.

Blanks asked Knapp if “it would be ... an additional violation” if he did not come in. Knapp replied that it would be. Blanks did not report to the P & P Office that day or the next day. He eventually turned himself in on February 18, 2015.

The next day, Knapp filed in the circuit court a “Supplemental Report” adding a charge for ³⁴¹ violating condition 1, alleging that Blanks failed to report as directed on February 12, 2015. On May 21, 2015, the circuit court held a probation revocation hearing. The State called three witnesses: Knapp, Cannon, and Ken Kodama, Phamatech’s laboratory director. Knapp and Cannon testified about the facts as we have recounted them.

During Cannon’s testimony, the State introduced into evidence the chain of custody form. In his case, Blanks recalled Knapp. Kodama testified that he holds a B.S. degree and, at the time of the hearing, had worked in the field of toxicology for twenty-nine years and had been the director of the laboratory at Phamatech for thirteen years. Without objection, he was accepted by the court as an expert in toxicology and in urinalysis testing for the presence of controlled dangerous substances (“CDS”).

Kodama explained that Blanks’s urine was twice screened for marijuana using the enzyme multiple immunoassay technique (“EMIT”). It tested positive both times. It then was retested using the gas chromatographmass spectrometry (“GCMS”) technique, which also yielded a positive result. Over Blanks’s objection, a February 2, 2015 Phamatech report (“Exhibit 2”) reflecting the EMIT urinalysis test results, and including a certification of accuracy for the two EMIT tests and the GCMS test, signed by Kodama, was admitted into evidence.

At the conclusion of the hearing, the court found that Blanks had violated his probation by 1) failing to report to Knapp at the P & P Office by the close of business on February 12, 2015, and 2) using marijuana. The court revoked Blanks’s probation and ordered him to serve the remaining portion of his suspended sentence — 13 years, 7 months, and 20 days — with the commencement date of his sentence backdated to February 18, 2015, to give him credit for time served. Blanks filed an application for leave to appeal, which this Court granted by order of September 8, 2015. He presents two questions for review, which we have rephrased as follows: ³⁴² I. Did the circuit court violate Blanks’s confrontation rights by admitting Exhibit 2 into evidence?

II

Did the circuit court err by finding that Blanks violated his probation by failing to report to his probation agent by the close of business on February 12, 2015, as directed? DISCUSSION I. Admission of Exhibit 2 (a) Exhibit 2 is a one-page laboratory report. Its header gives Phamatech’s name and address. Below the header is a section with the following information: the “Agent/Monitor” (Knapp); the “Agency” (P & P); the “Collection Site” (Off 61) 3 ; the “Division Number” (0170042A); the “Client” (Maryland P & P — Cambridge Field Office); and the “Collector” (Cannon).

It is apparent that this information was drawn from the chain of custody form Cannon prepared. The next section of Exhibit 2 is titled “Sample Information.” It includes Blanks’s name, sex, and SID number; the “Specimen ID” assigned to his urine sample by Phamatech; the ID number assigned to the “Lab Sample” drawn from his urine sample; the type of sample (ie., urine); the date and time the urine sample was collected at the P & P Office; the date and time the urine sample was received by Phamatech; and the date and time the Phamatech report was issued. The test results for the sample are set out in a table in Exhibit 2. The column labeled “Test” shows that Blanks’s urine sample was subjected to an “EMIT SCREEN” for benzodiazepines, cocaine, opiates, and marijuana; a creatinine levels test; and a “MARIJUANA EMIT RE-SCREEN.” ³⁴³ The “Result” column reflects “POSITIVE” results for the two EMIT marijuana tests, negative results for the EMIT for the other drugs, and an “ABNORMAL” creatinine level. 4 A column labeled “Quantitation” 5 is blank for the marijuana tests, as are columns labeled “Screen Limit” and “GCMS Limit.” The bottom section of Exhibit 2, entitled “CERTIFICATION OF ANALYSIS,” reads: This is to certify that Phamatech to include its facilities, personnel, and procedures, is certified by the Maryland Department of Health and Mental Hygiene — Office of Health Care Quality (DHMH-OHCQ) and has been approved by the Maryland Department of Public Safety and Correctional Services to perform laboratory tests.

The undersigned chemist or analyst certifies that he or she is qualified, under standards approved by [DHMH-OHCQ], to perform the laboratory test. The undersigned certifies that the above-named donor’s specimen was received by the undersigned and was properly tested by him or her under procedures and equipment approved by the [DHMH-OHCQ]. The undersigned further certifies that the procedures of the laboratory are reliable. The undersign [sic] certifies that a positive laboratory test indicated above and confirmed by GC/MS indicates that the above named donor used a controlled dangerous substance[.] The certification was signed by Kodama on February 2, 2015.

At the probation revocation hearing, Kodama testified that he oversees the Phamatech laboratory, which handles approximately 4,000 urine samples each day. He supervises the ³⁴⁴ entire laboratory and reviews every positive test result. (Negative test results are not reviewed.) Urine samples are processed and analyzed at Phamatech using an “assembly line” system, with different employees in different divisions performing the individual steps. Each urine sample is received in the laboratory, logged into the computer, and crosschecked to ensure that the sample and the chain of custody form both bear the same specimen number and that the seal on the sample has not been broken. 6 Phamatech assigns its own unique identifier to each sample.

The testing begins with a lab technician breaking the seal, extracting a small amount of urine from the specimen container, and transferring it to a test tube labeled with a barcode bearing Phamatech’s unique identifier. The remainder of the sample is placed in frozen storage. Another lab technician puts the test tube in a machine known as an analyzer. The actual EMIT testing is automated, i.e., is performed by the analyzer, not by a person.

The analyzer prints out data from the test. If the initial test result is positive, another small amount of urine is extracted from the specimen container and a second, confirmatory EMIT test is performed on it. Between each sampling test, the analyzer goes through an automated wash cycle that uses three solvents to prevent cross-contamination. And between each batch of samples, control samples are run through the analyzer to ensure that it has been properly calibrated.

Kodama testified that a specimen from Blanks’s urine sample was first tested in the analyzer using the EMIT test for benzodiazepines, cocaine, opiates, and marijuana. That test is the “standard in the forensic drug testing business.” The EMIT test produced a “positive” finding for the presence of marijuana (and negative for the other substances). A second EMIT test was performed and also produced a positive test result for marijuana. After the two positive EMIT test results for marijuana, another small amount of urine was ³⁴⁵ extracted from Blanks’s specimen container and was tested for marijuana using GCMS. 7 Kodama “pulled off the data” for the results of the “marijuana confirmation test from the [GCMS] analyzer” and reviewed them.

He then certified that the test results were positive for the presence of marijuana. At the conclusion of Kodama’s testimony, the State moved for the admission of Exhibit 2. Blanks’s attorney objected, stating: [DEFENSE COUNSEL]: [T]he information [on Exhibit 2 in the “Sample Information” section] is information that someone else imprinted into this sample[;] that’s not a Pharmatech [sic] record about the sample. I would object to that based on hearsay.

For the information [on Exhibit 2 in the “Test” section,”] I would object based on confrontation rights and chain of custody. We know and we have a fair amount of testimony about what went on to get the sample in the box. That was a pretty clear step by step process. Then about Mr. Blanks [sic] specific sample we know virtually nothing else except Mr. Kodama received a printout that had this information on it that he interpreted.

THE COURT: Well, that’s not exactly true. You’ve got barcoding and numbers all along the way to make sure that the sample that purports to be Mr. Blanks’ [sample] is the one that’s being reviewed by the scientist. [DEFENSE COUNSEL]: That other people added on to the sample, that other people inputted into the system. That other — you know, he testified about the general proce ³⁴⁶ dure. He didn’t testify about [what] someone specifically did to Mr. Blanks’ specific sample.

THE COURT: The law is clear that a supervisor can testify as to— [DEFENSE COUNSEL]: The— THE COURT: I understand you’re making an objection but I want you to know the law is clear on that. [DEFENSE COUNSEL]: I understand. THE COURT: It would be highly impractical to be able to do otherwise. [DEFENSE COUNSEL]: As far as confrontation rights, Your Honor, there has been a lot of different developments and people are still trying really to work out how [Crawford v. Washington ] applies to laboratory testing. That’s still in development. But I think at minimum there should be someone who at least handled the sample.

Didn’t just get a printout of the test for confrontation purposes and interpreted the results. And I’m not— for purposes of this hearing I’m not disputing Mr. Kodama’s expertise in that area, but he’s not the one — the confrontation is more than about just the data it’s how you get to the data. And there is very little about Mr. Blanks’ specific sample and people who actually handled the sample for this hearing. So I would reserve — I know that under [State v. Fuller, 308 Md. 547 , 520 A.2d 1315 (1987) ] confrontation does have some application even to V.O.P.’s which is why we are all here today.

I would object to that result on that basis. THE COURT: All right. Maybe this can be your test case. [Exhibit] 2 is admitted. (Emphasis added.) At the close of the hearing, defense counsel argued that the evidence was legally insufficient to prove that Blanks had violated his probation by using marijuana.

He pointed out that Exhibit 2 has no information in the “Quantitation” or “Screen Limit” columns for the marijuana tests, and Kodama did not testify about what concentration of marijuana in the urine is necessary to produce a positive ³⁴⁷ reading. Defense counsel suggested that it was possible that Blanks merely inhaled “secondary [marijuana] smoke.” He argued that “the simple fact of a positive with nothing more does not show that Mr. Blanks willfully used marijuana in violation of probation.” The court ruled as follows: [T]he Court is impressed with the quality assurance connected with the collection of the sample and the testing process and experienced Probation Agent such as Mr. Cannon supervises the test. The protocol is in place. It appeared to assure that there is no mixup regarding urine.

The testimony from [Kodama] indicates that they conduct a lab that has a series of checks and balances to make sure there is not a false positive or the samples are mixed up. He also indicates they have controls in place that involve cleaning the machines. There are barcodes to make sure the samples are consistent. And there is a retesting procedure if there is a positive.

Given all the evidence that the Court has received the Court is convinced by a preponderance of the evidence that Mr. Blanks did have marijuana in his system therefore he was possessing marijuana in his system and that that would be a violation of both [condition] 8 and [condition] 16 which require him to totally abstain. And for those reasons the Court is convinced that he has violated probation. (b) Relying upon Crawford v. Washington, Melendez-Diaz v. Massachusetts, 557 U.S. 305 , 129 S.Ct. 2527 , 174 L.Ed.2d 314 (2009), and Bullcoming v. New Mexico, 564 U.S. 647 , 131 S.Ct. 2705 , 180 L.Ed.2d 610 (2011), Blanks contends the trial court erred by admitting Exhibit 2 because doing so violated his confrontation rights under the Sixth Amendment to the federal constitution. 8 He maintains that Kodama was a “surrogate ³⁴⁸ or conduit witness for another person at Phamatech who actually received and reviewed the results of the EMIT test and then made the statements in the report that a sample of [Blanks]’s urine was subjected to a Marijuana EMIT Screen.” According to Blanks, the out-of-court statements in Exhibit 2 are testimonial hearsay that was not admissible through Kodama, under controlling Sixth Amendment case law. Consequently, the court erred by admitting Exhibit 2 and by relying on the test results documented by Exhibit 2 to find that he violated his probation by using marijuana.

The State responds that Blanks did not have a Sixth Amendment confrontation right at his probation revocation hearing, and therefore Crawford, and its progeny did not apply. According to the State, Blanks had a right to confront witnesses at the probation revocation hearing, but that right was grounded in the Due Process Clause of the Fourteenth Amendment and “is not co-extensive with the Sixth Amendment [confrontation] right.” The State maintains that the due process confrontation right was not violated because Exhibit 2 was a business record, admissible under the hearsay exception in Rule 5 — 803(b)(5); it contained information that Kodama relied upon in forming his expert opinion, making it admissible under Rule 5-703; and, as the court implicitly found, the information in Exhibit 2 was reliable and there was good cause to admit it without additional live testimony. In his reply brief, Blanks argues that, in State v. Fuller, 308 Md. 547 , 520 A.2d 1315 , the Court of Appeals recognized that the Sixth Amendment right to confrontation applies in probation revocation hearings in Maryland, and that remains the law today. He maintains that even if that is not the case and only the due process confrontation right applies, the court’s admission of Exhibit 2 violated that right. ³⁴⁹ (0 The Sixth Amendment guarantees an array of rights to “the accused” “[i]n all criminal prosecutions.” One such right is “to be confronted with the witnesses against him.” During the Ohio v. Roberts’s era of Sixth Amendment Confrontation Clause jurisprudence, an out-of-court statement by an unavailable declarant was admissible against the defendant in a criminal prosecution if the statement bore “adequate ‘indicia of reliability.’ ” 448 U.S. 56, 66 , 100 S.Ct. 2531 , 65 L.Ed.2d 597 (1980).

Hearsay could meet that test if it came within a “firmly rooted hearsay exception” or carried “particularized guarantees of trustworthiness.” Id. In Crawford v. Washington, the Supreme Court overruled Roberts, holding that, unless the declarant of the out-of-court statement is unavailable and the defendant had a prior opportunity to cross-examine him, it is a violation of the defendant’s Sixth Amendment confrontation right to admit “testimonial” hearsay. 541 U.S. at 68 , 124 S.Ct. 1354 . The Court did not “articulate a comprehensive definition,” id. at 68 n. 10, 124 S.Ct. 1354 , of “testimonial hearsay” but suggested that it would include extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions [and] statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial. Id. at 51-52 , 124 S.Ct. 1354 .

In subsequent cases, the Supreme Court has made plain that a forensic laboratory report, such as Exhibit 2, is “testimonial” hearsay that must meet the Crawford standard for admission in evidence in a trial in a criminal prosecution. See Melendez-Diaz, 557 U.S. at 308-11 , 129 S.Ct. 2527 (“ ‘certificates of analysis’ showing the results of the forensic analysis performed” of a powdered substance determined to be cocaine were “testimonial” and were improperly admitted at trial without the live testimony of the analysts); Bullcoming, ³⁵⁰ 564 U.S. 647 , 131 S.Ct. at 2710, 2713 (a forensic laboratory report certifying that the defendant’s blood contained a specified concentration of alcohol was not admissible through the testimony of a laboratory analyst who had “not sign[ed] the certification or personally perform[ed] or observe[d] the performance of the test reported in the certification.”)- A revocation of probation hearing is a civil proceeding, not a criminal prosecution. In Morrissey v. Brewer, 408 U.S. 471, 480-82 , 92 S.Ct. 2593 , 33 L.Ed.2d 484 (1972), the Supreme Court held that because parole revocation proceedings are civil the rights afforded an accused under the Sixth Amendment do not apply. A year later, in Gagnon v. Scarpelli, 411 U.S. 778, 786 , 93 S.Ct. 1756 , 36 L.Ed.2d 656 (1973), the Court applied its holding in Morrissey to revocation of probation proceedings.

In the twelve years since Crawford was decided, ten federal courts of appeals have addressed whether the Crawford standard for admissibility of testimonial hearsay applies in a revocation of probation (or parole) proceeding. All ten courts have held that because the rights guaranteed by the Sixth Amendment only apply to “criminal prosecutions,” neither the Sixth Amendment right to confrontation nor the Crawford Court’s interpretation of that right applies in such a proceeding. See United States v. Rondeau, 430 F.3d 44, 47 (1st Cir.2005) (“Nothing in Crawford indicates that the Supreme Court intended to extend the Confrontation Clause’s reach beyond the criminal prosecution context”); United States v. Aspinall, 389 F.3d 332, 343 (2nd Cir.2004) (“Nothing in Crawford, which reviewed a criminal trial, purported to alter the standards set by Morrissey/[Gagnon] or otherwise suggested that the Confrontation Clause principle enunciated in Crawford is applicable to probation revocation proceedings”); United States v. Lloyd, 566 F.3d 341, 343 (3rd Cir.2009) (“The limited right to confrontation [afforded in a revocation proceeding] stems from the Fifth Amendment’s Due Process Clause, not from the Confrontation Clause of the Sixth Amendment.”); United States v. Ferguson, 752 F.3d 613 , 619 ³⁵¹ (4th Cir.2014) (revocation of parole proceeding “does not involve the Sixth Amendment”) 9 ; United States v. Kirby, 418 F.3d 621, 627 (6th Cir.2005) (Crawford does not apply to a revocation of probation proceeding because, by its text, the Sixth Amendment does not apply outside of a criminal prosecution); United States v. Kelley, 446 F.3d 688, 691 (7th Cir.2006) (“Crawford changed nothing with respect to [probation] revocation hearings” because the “limited confrontation right in revocation proceedings was explicitly grounded in considerations of due process, not the Sixth Amendment”); United States v. Ray, 530 F.3d 666, 668 (8th Cir.2008) (Crawford does not apply in the context of a revocation of supervised release proceeding); United States v. Hall, 419 F.3d 980, 985 (9th Cir.2005), cert denied, 546 U.S. 1080 , 126 S.Ct. 838 , 163 L.Ed.2d 714 (2005) (Crawford does not apply in a revocation of probation proceeding where “due process standard[s] [are] used to determine whether hearsay evidence” is admissible); Curtis v. Chester, 626 F.3d 540, 544 (10th Cir.2010) (Sixth Amendment right to confrontation does not apply in parole revocation proceeding and “neither do any Supreme Court cases dealing with it, specifically Crawford ”); Ash v. Reilly, 431 F.3d 826, 829 (D.C.Cir.2005) (due process rights afforded to a parolee at a revocation proceeding emanate from the Due Process Clause of the Fourteenth Amendment, not the Confrontation Clause of the Sixth Amendment, thus making Craw ³⁵² ford inapplicable in that setting). See also Reyes v. State, 868 N.E.2d 438 , 440 & n. 1 (Ind.2007) (holding that Crawford has no application in a civil revocation of probation proceeding); State v. Carr, 216 Ariz. 444 , 167 P.3d 131, 134 (App.2007) (probation revocation proceeding is not “a stage of a criminal prosecution” and thus does not implicate the Sixth Amendment).

(d) In Morrissey , after holding that Sixth Amendment rights do not apply in a parole revocation proceeding, the Supreme Court went on to decide whether “the requirements of due process in general apply to parole revocations.” 408 U.S. at 481 , 92 S.Ct. 2593 . In doing so, it took into account the interests of the parolee and the State. “Revocation deprives an individual, not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observance of special parole restrictions.” Id. at 480 , 92 S.Ct. 2593 . Nevertheless, the parolee’s liberty interest “includes many of the core values of unqualified liberty and its termination inflicts a ‘grievous loss’ on the parolee and often on others.” Id. at 482 , 92 S.Ct. 2593 . That liberty interest “is valuable and must be seen as within the protection of the Fourteenth Amendment”; and “[i]ts termination calls for some orderly process, however informal.” Id.

On the other hand, the Court observed, “[g]iven the previous conviction and the proper imposition of conditions, the State has an overwhelming interest in being able to return the individual to imprisonment without the burden of a new adversary criminal trial if in fact he has failed to abide by the conditions of his parole.” Id. at 483 , 92 S.Ct. 2593 . “Yet, the State has no interest in revoking parole without some informal procedural guarantees.” Id. Assessment of the competing interests of the parties lead the Court to conclude that a parolee faced with revocation is entitled to basic due process procedural protections, including the opportunity for a revocation hearing that “must lead to ³⁵³ a final evaluation of any contested relevant facts and consideration of whether the facts as determined warrant revocation.” Id. at 488 , 92 S.Ct. 2593 . The “minimum requirements of due process” include: (a) written notice of the claimed violation of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); ... and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole. Id. at 489 , 92 S.Ct. 2593 (emphasis added).

The procedures to be followed to implement these minimum due process rights are “the responsibility of each State” to adopt, by legislation or judicial decision. Id. at 488 , 92 S.Ct. 2593 . The Court made clear that these minimum requirements of due process are not on an equal footing with the procedural guarantees afforded by the Sixth Amendment: We emphasize that there is no thought to equate this [hearing] stage of parole revocation to a criminal prosecution in any sense. It is a narrow inquiry; the process should he flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in a criminal trial.

Id. at 489 , 92 S.Ct. 2593 (emphasis added). As we have noted, in Gagnon the Supreme Court extended its holding in Morrissey to probation revocation hearings. Beginning with State v. Fuller,