McDonald v. State

ADKINS, Judge. The two cases before us present one common question: does a circuit court’s authority to review, de novo, a District Court’s revocation of probation extend to a de novo determination of disposition? We answer the question in the affirmative. 1 On 10 February 1987, a judge sitting in the District Court in Baltimore County found petitioner, Kathleen McDonald, guilty of solicitation. McDonald received a six month suspended sentence and was placed on supervised probation for one year.

On 27 July 1987, the District Court found that McDonald had violated the terms of her probation, and the original sentence was reimposed. McDonald brought a de novo appeal to the Circuit Court for Baltimore County (Dana M. Levitz, J.) pursuant to § 12-401(d) of the Courts and Judicial Proceedings Article. 2 She received a de novo hearing on the merits of the revocation. Judge Levitz found that she had violated her probation; he denied, however, McDonald’s request for a de novo hearing on the issue of disposition. It was his understanding that only the alleged violations were accorded de novo review; thus, in finding the probation to have been violated, he assumed the circuit court was limited, absent an abuse of discretion below, to reimposing the sentence given by the District Court.

He reimposed the original six-month sentence. On 21 January 1986, a judge sitting in the District Court in Baltimore County found petitioner, Daniel J. Pilachowski, guilty of two counts of battery. Pilachowski received a five ²⁷⁴ year suspended sentence and was placed on 36 months supervised probation. Subsequently, on 11 August 1986, Pilachowski pled guilty to one count of theft and was sentenced to five-years incarceration; all but three years were suspended.

Based on the theft conviction, the District Court found Pilachowski to have violated probation in the battery case and reimposed the original five-year sentence to run from 4 November 1987, concurrent with the sentence Pilachowski was then serving. On 22 February 1988, the Circuit Court for Baltimore County (William R. Buchanan, Sr., J.) heard Pilachowski’s de novo appeal from the District Court’s decision to revoke his probation. Pilachowski requested a de novo determination of sentence. Judge Buchanan allowed Pilachowski to present mitigation evidence.

Rather than take a de novo approach to disposition, Judge Buchanan ruled that the court would follow a “clearly erroneous — abuse of discretion” standard in reviewing the District Court sentence. Finding no error or abuse of discretion, Judge Buchanan reimposed the original five-year sentence. We granted certiorari in each of these cases to decide the scope of circuit court review required by § 12-401(d) with regard to dispositions imposed by the District Court in cases of probation revocation. I. Section 12-401(d), which provides for certain appeals from the District Court to be heard de novo by the circuit court, reads: In a civil case in which the amount in controversy exceeds $2,500 exclusive of interest, costs, and attorney’s fees if attorney’s fees are recoverable by law or contract, and in any case in which the parties so agree, an appeal shall be heard on the record made in the District Court.

In every other case, including a criminal case in which sentence has been imposed or suspended following a plea of nolo contendere or guilty, and an appeal in a municipal ²⁷⁵ infraction or Code violation case, an appeal shall be tried de novo [emphasis supplied]. Historically, review of decisions rendered in courts of limited jurisdiction have been subject to de novo review in the circuit courts. Judge Eldridge, writing for this Court, recently recalled that [i]t was not until the creation of the District Court by constitutional amendment, [see Ch. 789, Acts of 1969, ratified November 3, 1970] and the enactment of what is now § 12-401(d) by Ch. 528 of the Acts of 1970, effective the first Monday in July 1971, that Maryland law recognized a specified area of appeals on the record from a trial court of limited jurisdiction to a circuit court. Harper v. State, 312 Md. 396, 405 , 540 A.2d 124, 128 (1988) [footnotes omitted].

He also noted that when Ch. 528 of the Acts of 1970 was first introduced, as Senate Bill 6, the wording of the bill would have effected a drastic change in the nature of appeals from the court of limited jurisdiction level. The bill provided in a new § 156 to Art. 26 of the 1957 Code (now § 12-401(d) of the Courts and Judicial Proceedings Article) that ‘[i]n any case, the court [of general jurisdiction] shall hear and decide the appeal on the record made in the District Court, as designated by the parties. There shall be no right to a trial de novo in the appellate court.’ In the course of the legislative process, all of the above-quoted language after the first four words was stricken and new language inserted, so that the provision in pertinent part read as follows: ‘In any case, EXCEPT A CIVIL CASE INVOLVING A CLAIM OF ONE THOUSAND DOLLARS ($1,000.00) OR MORE, THERE SHOULD BE AN ABSOLUTE RIGHT TO A TRIAL DE NOVO. IN ANY CIVIL CASE INVOLVING A CLAIM OF ONE THOUSAND DOLLARS ($1,000.00) OR MORE, THE APPEAL SHALL BE HEARD AND DECIDED ON A TRANSCRIPT OF THE RECORD MADE IN THE DISTRICT COURT.’ ²⁷⁶ Id. at 405 n. 12, 540 A.2d at 128 n. 12.

Chapter 528 of the Acts of 1970 embodied the legislature’s decision to continue the established policy of de novo review in criminal cases. The General Assembly chose this course despite the fact that the original version of Ch. 528 was endorsed by the Legislative Council and the Governor. G. Liebman, 1 Maryland Practice: District Court Law and Practice § 25 (1976). Moreover, in the period immediately preceding the creation of the District Court, the trial de novo practice had been subject to severe criticism.

For example, in 1966, the Maryland State Bar Association denounced the de novo process: This [the de novo appeal] means that often the original trial is hardly more than an expensive, time-consuming discovery procedure. A trial in a court of limited jurisdiction and the trial in the same case on appeal often bear little resemblance to each other. If the district courts are to become dignified tribunals, some finality ought to be accorded the decisions of the judges of the courts. Judges of the courts of general jurisdiction should be able to dispose of appeals taken on records of trials below in less time than it now takes to decide de novo trials.

Maryland State Bar Association, Report of the Committee on Judicial Administration at 19, 71-72 Trans. MSBA (1966). In 1968 the Maryland State Bar Association once again soundly criticized the trial de novo procedure: Historically, there may have been a sound reason for the use of the de novo system when many of the justices of the peace and trial magistrates were untrained laymen sitting in remote rural areas of the State. However, in the present day with full time, qualified, legally trained judges manning the courts, there is no excuse for retaining the archaic and wasteful system of a double trial.

The word “appeal” in connection with the de novo system is a misnomer in any case. The American Bar Association, the Maryland State Bar Association, and every other organization interested in the administration of justice advocates the abolition of the trial de novo. Maryland ²⁷⁷ took this position in approving this Committee’s 1966 report. There is very little point in the State of Maryland going to the length of establishing a unified and improved lower court system if two trials will still be required to determine a man’s guilt or innocence, and two trials will still be necessary to determine the right or wrong of a civil dispute.

Maryland State Bar Association, Report of the Committee on Judicial Administration on Establishment of a District Court for Maryland at 13-14, 73-74 Trans. MSB A (1968). Attacks on the de novo “appeal” did not end with the establishment of the District Court. See, e.g., Adkins, “The District Court: Past, Present, Future,” Maryland Bar Journal at 50-51 (July 1971) (advocating full abolition of trial de novo) and Report of the Commission to Study the Judicial Branch of Government at 59 (1982) (recommending abolition of de novo appeals in criminal and municipal infraction cases).

But despite the critical onslaught, the legislature’s commitment to de novo review has remained. Our cases have implicitly recognized the general breadth of that commitment. See Harper, 312 Md. 396 , 540 A.2d 124 (1988); Barbee v. Barbee, 311 Md. 620, 623-624 , 537 A.2d 224, 225 (1988); Hardy v. State, 279 Md. 489, 492-493 , 369 A.2d 1043, 1046-1047 (1977); Burch v. State, 278 Md. 426 , 365 A.2d 577 (1976). In Burch we indicated that the de novo review standard of § 12-401 applies to an order of the District Court revoking probation and reinstating the suspended sentence.

Id. at 431, 365 A.2d at 580 . Furthermore, it has been the consistent practice of this Court to treat “de novo appeals as wholly original proceedings, that is, as if no judgment had been entered in the lower court.” Hardy, 279 Md. at 493 , 369 A.2d at 1046 . In keeping with this practice, it follows that “review” of the District Court’s disposition on appeal from a probation revocation must be de novo. Accordingly, we hold that when a District Court probation revocation has been appealed to a circuit court, ²⁷⁸ § 12-401(d) requires that the matter be heard and considered de novo not only as to whether a violation of probation occurred but also as to the disposition to be made in the event a violation is found.

Because the Circuit Court for Baltimore County failed to consider the dispositions de novo, we reverse its judgments in both of these cases.

II

In McDonald’s case, issues are raised that go beyond the matter of disposition. The more important of these issues addresses the determination of probation violation itself. It focuses on the admission into evidence of two laboratory urinalysis reports purportedly indicating that McDonald had been using cocaine in violation of the conditions of her probation. McDonald contested the positive urinalysis reports.

The circuit court admitted these reports without requiring the State to produce the technicians who performed the tests. McDonald claims that this denied her constitutional right to confront and cross-examine witnesses. She also complains that the State failed to establish a chain of custody linking the samples analyzed to any obtained from McDonald. We recount the facts pertinent to these contentions.

At McDonald’s initial de novo hearing before Judge Levitz, the State attempted to introduce evidence of the two cocaine positive urinalyses through the testimony of Sharon Tyler, a case manager with the Alternative Sentencing Program (ASP). This agency was charged with monitoring McDonald’s conduct on probation. Tyler testified from her knowledge of ASP’s records, which apparently contained copies of the laboratory reports. McDonald objected to the testimony, contending that it was hearsay and denied her the right of confrontation.

Judge Levitz ruled that State v. Fuller, 308 Md. 547 , 520 A.2d 1315 (1987), stands for the proposition that a probationer at a revocation hearing has a right to confront and cross-examine adverse witnesses. He granted the State a continuance so that it could obtain as ²⁷⁹ witnesses the technicians who performed the drug screening tests. At the subsequent hearing, the State produced Ronald Raglin, Department Head of Toxicology at Maryland Medical Laboratories, Inc., (MML), a private laboratory which performs the drug screening of urine samples submitted by ASP. At the second hearing, Raglin and Tyler were the State’s only witnesses.

Raglin’s testimony revealed that he did not perform tests on any of the samples in question (the total of three tests completed on each sample were performed by two other chemists), nor did he have personal knowledge of how these particular samples were processed. Raglin did testify as to the normal procedures utilized by MML in analyzing urine samples and how these samples are obtained from ASP. He explained that MML employees pick up samples from ASP at designated locations. Once a sample arrives at MML, it is assigned a unique six digit identification number.

The sample then undergoes a gross screening procedure called Thin Layer Chromotography. If it tests positive, the result is then confirmed by the more specific Enzyme Multiple Immunoassay Technique and then by Gas Chromotography. Raglin testified that each analysis is performed by using a fresh aliquote from the original sample and each time an aliquote is drawn, the name on the sample is checked for confirmation. He further testified that on the basis of the worksheet, the screening record, and the final report on the samples in question, normal procedures were followed in each instance.

He indicated that the two final reports could be directly traced through the assigned