Knight v. State

Gilbert, C. J., delivered the opinion of the Court. We herein reverse and remand to the Criminal Court of Baltimore its judgment in which Evelyn T. Knight was sentenced, as the result of a jury verdict of guilty of possession of a controlled dangerous substance (heroin), to one (1) year imprisonment. We take that action for the reason that the State did not comply with Maryland Courts and Judicial Proceedings Code Ann. § 10-1003, and because we are unable to agree with the trial judge that the State’s failure to comply with the clear mandate of section 10-1003 was harmless error beyond a reasonable doubt. Inasmuch as our holding is limited in its scope, no useful purpose will be served by our recounting all the facts out of which this case arose.

It is enough for our purpose to know that Ms. Knight was arrested following the execution of a search and seizure warrant at her residence, 1607 East 32nd Street in Baltimore City. The search revealed six (6) tinfoil packets of a white powder which chemical analysis proved to be 4.3% heroin. It is the receipt into evidence of that report, absent the “live” testimony of the chemist relative to chain of custody, that is assailed in this Court by the appellant. By the enactment of Laws 1974, ch. 794, now codified as Courts art. §§ 10-1001 to 10-1003 inclusive, the General Assembly provided that it would not be necessary for the chemist to appear as a witness in a trial of a person for violation of this State’s Controlled Dangerous Substances Laws, Md. Ann. Code art. 27, §§ 276-302, to establish the proper chain of custody unless the defendant complies with the statutory prerequisite spelled out in Courts Art. § 10-1003. 1 Section 10-1002 provides: ⁶⁹³ “For the purpose of establishing, in a criminal or civil proceeding, the chain of physical custody or control of evidence consisting of or containing a substance tested or analyzed to determine whether it is a controlled dangerous substance defined under Article 27 of this Code, a statement signed by each successive officer or other person having the custody of the evidence that he delivered it to the person indicated on or about the date stated is prima facie evidence that the person had custody and made the delivery as stated, without the necessity of a personal appearance in court by the person signing the statement.

The statement shall contain a sufficient description of the material or its container so as to distinguish it as the particular item in question and shall state that the material was delivered in essentially the same condition as received.” Section 10-1003 states: “In a criminal proceeding, the prosecution shall, upon written demand of a defendant filed in the proceedings at least five 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. The provisions of §§ 10-1001 and 10-1002 concerning prima facie evidence do not apply to the testimony of that witness. The provisions of §§ 10-1001 and 10-1002 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 he is not represented by counsel, at least ten days prior to the introduction of the report or statement at trial.” Because the State had, in answer to a discovery motion, furnished a copy of the report to the appellant’s counsel, it did not notify her counsel that the chemist was not going to ⁶⁹⁴ appear at the trial. Appellant’s counsel contended in the trial and here that the furnishing of the report in response to discovery did not comply with section 10-1003 inasmuch as there was nothing in the report to indicate the chemist would not be called to testify.

Ergo, appellant, not having received word from the State that it intended to submit the report sine the chemist’s presence at trial, did not make “written demand” that the chemist be physically present to testify. Appellant asserts that the State’s non-compliance with the statute misled her into believing the State would have the chemist testify. She asserts that as a result she had no opportunity to cross-examine the chemist as to the propriety of the chain of custody in order that she might be able to weaken or destroy the impact of the chemist’s report. The sum and substance of her argument is that she has been denied the right to confront the very witness whose report established that the seized material was a proscribed narcotic.

The trial judge agreed with the position taken by the assistant state’s attorney that appellant had a copy of the report in her possession for “almost a year” 2 prior to trial, and that if she wanted the chemist present at trial she should have made the written demand required by Courts Art. § 10-1003. We do not see the matter in the same light as the trial judge. We note that in answer to the discovery motion the chemist’s report was sent to the appellant’s counsel. There is absolutely nothing written, typed, or printed upon that report that would lead anyone to believe that the State intended to submit the report in lieu of the testimony of the chemist.

In fact, a contrary conclusion may be drawn from the