Cole v. State

HARRELL, Judge. Rico Duvall Cole, Petitioner, challenges his convictions in the Circuit Court for Prince George’s County for possession of cocaine and possession of cocaine with intent to distribute. Cole’s intended expert witness at trial, James Slunt, a chemist, was not allowed to testify because the trial court determined that Slunt did not have a sufficient factual basis upon which to base his opinion as to the quality controls employed in the Prince George’s County Police Drug Analysis Laboratory or the specific testing of the suspected cocaine evidence in Cole’s case. Cole argues that the improper exclusion of Slunt’s proffered testimony was caused by the State’s improper refusal of his requests during pre-trial discovery to provide certain information and documents regarding the procedures at the laboratory and the trial judge’s denial of his motion to compel the State to provide that information and documents.

We conclude that, because Cole was entitled to some of the withheld information and documents, the basis for the trial judge’s exclusion of Slunt’s testimony was erroneous. We conclude also that this error was not harmless. Accordingly, we shall reverse the judgments and remand the case for a new trial. I. Facts On 13 January 2000, Prince George’s County police officers, pursuant to a search warrant, seized forty-six “baggies” of suspected crack cocaine, $2,340 in currency, miscellaneous documents, and two handguns from an apartment in Suitland, ⁴⁹ Maryland.

Cole was one of three men found and arrested in the apartment. The Prince George’s County Police Drug Analysis Laboratory (the “laboratory” or “lab”) subsequently concluded, based on tests it conducted, that the substances within the confiscated “baggies” contained cocaine. Cole was charged with, among other crimes, possession of cocaine and possession of cocaine with intent to distribute. Cole requested from the State, in the course of pre-trial discovery, several documents related to the laboratory’s determination that the substances were cocaine. 1 The State rejected his requests.

On 1 May 2000, he filed a Motion to Compel Discovery seeking to obtain twenty-six items: 1. The names, addresses, job titles and qualifications of all persons who performed any analysis in this case, or any person who may have come into contact with or any person acting in a supervisory capacity with regard to the analysis of the substance at issue in this case; 2. The education, qualifications, and approved training programs completed by each chemist and analyst in the Prince George’s County Drug Laboratory or any analyst who may have had contact with substances or equipment and in the analysis process in this case, pursuant to COMAR 10.10.03.04 and .05; 2 3. The results of any proficiency tests given to each chemist or analyst employed by the Prince George’s County Drug Laboratory; ⁵⁰ 4.

Whether each chemist and analyst has ever been decer-tified pursuant to COMAR 10.1003.06 3 and if so, the dates and reasons for such decertifications; 5. All materials listing the drug-identification procedures used by the Prince George’s County Drug Laboratory pursuant to COMAR 10.10.03.07; 4 6. Any guidelines issued by the Department of Health and Mental Hygiene setting quality control standards pursuant to COMAE 10.10.03.08(F); 5 7. All bench notes and any other written material made by the chemisl/analyst with regard to this case; 8.

The entire file compiled by the chemist/analyst for this case; 9. The entire Chain of Custody log and any addendum thereto; 10. The protocols used for analyzing controlled dangerous substances; 11. The instrument conditions for each method used in analyzing controlled dangerous substances in this case including, but not limited to, all temperature records, any specific columns which were used, the source, nature, content and testing with regard to any solvent or carrier gas which was used in this case; 12.

The methods used in analyzing controlled dangerous substances and a copy thereof; 13. Positive and negative controls used in analyzing controlled dangerous substances and a copy of the printout for this case; 14. Verification of standards used in analyzing controlled dangerous substances and the standards themselves; ⁵¹ 15. All manufacturer’s instructions for the use or maintenance of the instruments used in testing controlled dangerous substances in the Prince George’s County Drug Laboratory; 16.

Methods used in testing the controls from independent suppliers; 17. Any independent audits of the Prince George’s County Drug Laboratory, including but not limited to, the dates of such audits, the person or persons conducting such audits, the results of the audits and any materials or reports completed as part of the audit; 18. Any in-house proficiency testing done, including but not limited to, the dates of such testing, the person or persons conducting such testing, the results of the testing and any materials or reports compiled as a result of such testing; 19. Any other material relevant to and prepared for the analysis of controlled dangerous substances by the Prince George’s County Drug Laboratory!;] 20.

Copies of traceability documentation for standards and reference materials used during analysis, including unique identifications origins, dates of preparation and use, composition and concentration of prepared materials, certifications from suppliers, assigned shelf lives and storage conditions!;] 21. Sample preparation records, including dates and conditions of preparation, responsible analyst, procedure reference, purity, concentration and origins of solvents, reagents, and control materials prepared and used, samples processed concurrently, and extract volume!;] 22. Record of instrument operating conditions and criteria for variable, including as appropriate: GC column, lab file ID, tuning criteria, instrument performance check (e.g. ion abundance criteria), initial calibration, continuing calibration checks!;] ⁵² 23. Procedure(s) for operation and calibration of analytical balances[;] 24.

Results of calibration checks and mass traceability for gravimetric determinations^] 25. Records concerning National Institute of Standards [and Technology] (N.I.S.T.) traceability of weights used in calibration^] 26. Copy of laboratory’s Quality Manual (however named). After some false starts and judicial maneuvering, the trial court held a final evidentiary hearing on the motion.

At the conclusion of the hearing, the court granted the motion with respect to items numbered seven and eight, which it found were related specifically to Cole’s case, but denied the motion with respect to the other twenty-four items, which it found were directed toward the lab’s general procedures, policies, and personnel. 6 At trial, the court received, as part of the State’s case-in-chief, the testimony of Ms. Milagros Mayo, the lab chemist who performed the tests on the seized substances from the “baggies” in Cole’s case. 7 Mayo testified that she first performed three “screening tests” yielding results consistent with the substances being cocaine. These tests, however, could not identify conclusively the nature of the substances. She then tested the substances with an infrared spectrophotometer, which is capable of conclusively identifying a substance as cocaine. The infrared spectrophotometer produced a graphical representation of an infrared spectrum generated by the ⁵³ tested substances that was substantially similar to the spectrum generated by a “library” test result of a sample of pure cocaine previously run.

According to Mayo, this was conclusive evidence that the substances tested were cocaine. Mayo testified further that she next ran a test using a gas chromatograph/mass spectrometer (GCMS). When asked why she did so even though she already had a conclusive result from the infrared spectrophotometer test, she said “it was really redundant to use the GCMS,” but that she wanted the GCMS test result as “part of the record.” Like the infrared spectrophotometer, the GCMS, by comparing the sample in question to a known calibration sample, can identify conclusively a substance as cocaine. Mayo testified that the GCMS demonstrated conclusively that the seized substances were cocaine.

Just before Cole was to present his defense, the State moved, in limine, to exclude the testimony of James Slunt, an expert chemist who was to testify for the defense. Based on a proffer, the court was informed that Slunt would testify that, having reviewed the limited documents he had been given access to and having heard Mayo’s testimony during the State’s case-in-chief, he could not say that the State had demonstrated that the seized substances had not been contaminated, nor could he conclude, to a reasonable degree of scientific certainty, that the seized substances Mayo tested were cocaine. In particular, Slunt was prepared to testify that he had not learned of sufficient quality control procedures employed by the lab to convince him that Mayo’s “conclusive” test results were accurate. The trial court found that Slunt did not have a sufficient factual predicate to so testify because, by Slunt’s own admission, his knowledge of the laboratory’s quality control procedures was incomplete.

Cole’s counsel, pointing out that Slunt’s knowledge was incomplete only because the defense had not been provided with all of the previously requested information regarding the laboratory’s procedures, renewed his discovery motion. The court denied the motion and refused to allow Slunt to testify before the jury. ⁵⁴ The defense ultimately presented no evidence. Cole was convicted of possession of cocaine and possession of cocaine with intent to distribute. He was sentenced to twenty years’ incarceration, with all but fifteen years suspended.

On direct appeal, the Court of Special Appeals affirmed the judgments in an unreported opinion by a divided panel. We granted certiorari, Cole v. State, 374 Md. 82 , 821 A.2d 369 (2003), to address Cole’s arguments that the trial court erred in its handling of the discovery dispute and in excluding Slunt’s testimony.

II

The pivotal issue is whether the trial court erred in resolving the discovery dispute as it did. Had the State been compelled to provide certain information about standard operating procedures at the laboratory, Cole argues, Slunt could have expressed a more informed opinion about the lab’s procedures. Instead, Slunt was prevented from testifying because he did not have a sufficient factual basis to give a knowledgeable opinion. Neither the calibration record for the GCMS used to analyze the substances in Cole’s ease nor information regarding Mayo’s proficiency testing was provided to the defense.

Cole argues that he was entitled to examine these records in order to determine if he should challenge the accuracy of Mayo’s findings. Although Cole’s brief before this Court included the same broad claims of entitlement to the information requested that he. made in the Circuit Court and in the Court of Special Appeals, Cole’s appellate counsel explained at oral argument before this Court that Cole alleges error now only as to the failure to grant the defense access to “the standard operating procedures including the quality assurance manual, in general, the calibration record that went to the GCMS, and the proficiency testing record for the chemist, Mayo.” We interpret this narrowed challenge to implicate only parts of eight items requested in Cole’s motion to compel: (1) those six items that would have assisted Slunt in coming to a conclusion regarding ⁵⁵ the accuracy of the lab’s procedures, 8 (2) information regarding the calibration record for the GCMS employed in this case, 9 and (3) records regarding Mayo’s proficiency testing. 10 Therefore, our analysis in this case is restricted to the items from the motion to compel so narrowed. 11 Discovery questions generally “involve a very broad discretion that is to be exercised by the trial courts. Their determinations will be disturbed on appellate review only if there is an abuse of discretion.” North River Ins. Co. v. Mayor and City Council of Baltimore, 343 Md. 34, 47 , 680 ⁵⁶ A.2d 480, 486-87 (1996). “[A] trial court’s factual findings are not upset unless clearly erroneous.” Williams v. State, 364 Md. 160 , 169 n. 9, 771 A.2d 1082 , 1087 n. 9 (2001).

The application of the Maryland Rules, however, to a particular situation is a question of law, and “we exercise independent de novo review to determine whether a discovery violation occurred.” 364 Md. at 169 , 771 A.2d at 1087 . Where a discovery rule has been violated, the remedy is, “in the first instance, within the sound discretion of the trial judge. The exercise of that discretion includes evaluating whether a discovery violation has caused prejudice. Generally, unless we find that the lower court abused its discretion, we will not reverse.” 364 Md. at 178 , 771 A.2d at 1093-94 .

(citations omitted). See also Collins v. State, 373 Md. 130 , 816 A.2d 919 (2003) (the trial court abused its discretion by failing to remedy a violation of Rule 4r-263(a)(2)(C)); Fisher v. State, 367 Md. 218 , 786 A.2d 706 (2001) (Where the defense, citing Rule 4-263(b)(l), had requested information regarding the current location of a child witness, the Court found “ample good cause for the [trial] court’s conclusion that the secure and protected environment of this child should not be invaded. There was no abuse of discretion.”).

III

The resolution of discovery disputes generally is driven by how two inquiries are answered: (1) is the information or documents sought of a kind that is discoverable under the governing law or rules and (2) is the information or documents sought relevant to the subject matter of the case? In the civil context, these two questions are merged into just the second question. According to Md. Rule 2-402(a), “[a] party may obtain discovery regarding any matter, not privileged, ... if the matter sought is relevant to the subject matter involved in the action.” A party may not object to a discovery request on the ground that “the information will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” Md. Rule 2-402(a). ⁵⁷ There are no equivalent rules of criminal procedure to Rule 2-402(a). Because no rule provides for the general discovery of all relevant material, the two inquiries remain distinct in the criminal context.

In order to show a given document or item of information is discoverable, a defendant must show that the governing law makes that type of document or information available and that the information or document is relevant to the subject matter of the case. A. Cole’s primary argument is that he was unconstitutionally denied due process when the State refused to give him the information and documents he requested and the trial court refused to compel discovery of that information and documents and essentially excluded the testimony of his expert ■witness for want of the desired disclosures. 12 We need not decide the challenge on a constitutional basis because we conclude that the Maryland Rules require the State to provide the defense, upon request, the documents and information sought here, as narrowed by Cole before this Court, so that the defense may endeavor to understand the nature of any scientific testing where the State intends to introduce the results of those tests at trial. Just as “trial judges have no power beyond that conferred by Rule 4-261 to order depositions in criminal trials,” Tharp v. State, 362 Md. 77, 115 , 763 A.2d 151, 171 (2000), trial judges have no power beyond that conferred by Rule 4-263 to order discovery of tangible evidence or documents in the State’s possession. “[E]ven though we have expanded the common law and given trial courts some authority to either require or permit discovery, the right to pre-trial discovery is strictly limited to that which is permitted by ⁵⁸ statute or court rule or mandated by constitutional guarantees.” Id. (citations and formatting omitted).

Discovery related to scientific tests conducted by prosecution experts is controlled by Rule 4-263(b)(4). 13 The general objectives of Maryland’s criminal discovery rules are to assist the defendant in preparing his or her defense and to protect the accused from unfair surprise. See Mayson v. State, 238 Md. 283, 287 , 208 A.2d 599, 602 (1965) (discussing former Maryland Rule 728, a precursor to Rule 4-263). The purpose of Rule 4 — 263(b)(4) is to allow the defense to prepare for expert testimony. Defense counsel cannot prepare to evaluate or challenge a State expert’s qualifications or testimony without an understanding of what tests the expert performed and how the expert performed them. 14 For this reason, no one disputes that the procedures such an expert actually employs are discoverable.

In this case, Cole was allowed to examine the State’s chemist in the course of a pretrial motions hearing so as to determine what tests she performed and how she performed them. The question remaining is what further information Cole was entitled to receive, upon request, under the rule. The operations of the Prince George’s County Police Drug Analysis Laboratory generally are shielded from outsiders. The lab is inaccessible to anyone who is not a member of law ⁵⁹ enforcement, and the lab is not independently certified or audited. 15 Controlled dangerous substances (CDS) may only be tested by certified chemists and certified analysts.

Only members of law enforcement may apply to become certified chemists or certified analysts. COMAR 10.10.09.01(A)(3) and (B)(3). There is no provision in Maryland statutes, regulations, or rules for the independent testing of suspected CDS in criminal cases. 16 Given that no outsider may observe testing within the laboratory, it is understandable that the defense would seek to obtain the lab’s standard operating procedures in order to evaluate the sufficiency of those procedures and determine if they were followed in the tests actually performed in a given case. We conclude that Rule 4 — 263(b)(4) extends to written standard operating procedures intended to be employed by a State’s drug analysis expert or lab when those procedures are relevant to a given case.

Standard operating procedures are an important part of expert testimony because, like habit evidence, see Md. Rule 5-406, they tend to prove that the conduct of the expert on a particular occasion was in conformity with the written standard operating procedures. Should an expert testify that she or he followed the procedures in a given case, then the defense would understand how the tests were performed. If the testimony, however, revealed that the standard operating procedures were not followed, that might be exculpatory evidence which, when brought out in cross-examination, could make a meaningful difference to a fact-finder. See Commonwealth v. Brosnick, 530 Pa. 158 , 607 A.2d ⁶⁰ 725 (1992) (evidence discovered after trial that the State apparently had not complied with its own regulations regarding alcohol testing resulted in a new trial).

Access to laboratory information generally is significant for another reason. The validity of testing procedures and principles is assessed in the scientific community by publishing the data in peer review journals.... [Publication of a laboratory’s work product and data used in [scientific] analysis, as well as independent replication and validation studies, are essential prerequisites to reliability. State v. Schwartz, 447 N.W.2d 422 , 427-28 (Minn.1989) (a DNA testing lab’s test results were deemed inadmissible because the lab did not comply with appropriate standards and controls or make its testing data and results available). See generally McIlwain v. State, 700 So.2d 586, 590 (Miss. 1997) (“A chemical analysis ... is deemed valid only when performed according to approved methods; performed by a person certified to do so; and performed on a machine certified to be accurate....

Where one of the safeguards is deficient the State bears the burden of showing that the deficiency did not affect the accuracy of the result.”); State v. Mehl, 602 So.2d 1383, 1387 (Fla.App.1992) (the state followed administrative rules for testing blood alcohol content, and was therefore entitled to a presumption of accuracy). Both the infrared spectrophotometer and the GCMS operate by comparing suspected CDS to a known calibration sample. For this reason, calibration records are essentially part of the test results. Although Mayo’s testimony was not received formally as that of an expert in chemistry, she was allowed to give opinion testimony and the record indicates that she was viewed by both the trial judge and the jury as an expert in testing for CDS.

Her qualifications, including her record in proficiency tests, also are relevant to the weight the fact-finder might give the test results based on its assessment of her competency. This kind of written information is eligible generally for discovery when it is relevant in a given case. ⁶¹ B. The trial court found that “[Petitioner] has not met his burden which is to convince me that Items 1-6 and 9-26 [in his motion to compel] are relevant to this case.” At trial, “ ‘[Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Md. Rule 5-401. The word “relevance,” as used in Rule 5-401, includes what previously was meant by the terms “relevance” and “materiality.” Smith v. State, 371 Md. 496 , 504 n. 1, 810 A.2d 449 , 454 n. 1 (2002). “Evidence that is not relevant is not admissible.” Md. Rule 5-402. This does not mean, however, that information or documents that do not pass the Rule 5-402 test for relevance in and of themselves are not discoverable.

The word “relevance” has a different meaning in the discovery context from its meaning in the trial context. 17 The issue at trial is admissibility of offered evidence, while the issue in pre-trial stages is whether a party may obtain information or documents through discovery. This distinction is made clearest in the civil setting. “A party may obtain discovery regarding any matter, not privileged, ... if the matter sought is relevant to the subject matter involved in the action.” Rule 2-402(a). A party may not object to a discovery request on the ground that “the information will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” Id. This is in stark contrast to the “two paramount rules of evidence” that guide a court in determining whether evidence is admissible at trial: “[Ejvidence that is not ⁶² relevant to a material issue is inadmissible ... [and] evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.” Smith, 371 Md. at 504 , 810 A.2d at 454 .

Although no rule provides generally for the discovery of all relevant information and documents in the State’s possession or control in criminal cases, 18 irrelevant matters clearly are not discoverable. 19 When relevance is at ⁶³ issue in criminal discovery disputes, the standard is the same as for civil actions: ordinarily the information or documents should be deemed relevant if it reasonably is calculated to lead to the discovery of admissible evidence and their probative value is not outweighed by any privacy interests, confidentiality, privilege, or other conflicting interest, including the burden of production. To support its rejection of the motion to compel in the present case, the trial court relied on an improper interpretation of Zaal v. State, 326 Md. 54 , 602 A.2d 1247 (1992). In Zaal we