Wheeler v. State

Alpert, J. Robert Wheeler, appellant, was convicted by a jury sitting in the Circuit Court for Baltimore City of conspiracy to distribute heroin and distributing heroin. 1 Appellant asks a ²⁶⁷ novel question on appeal: Did the trial court err in the admission of drug evidence because the State failed to establish a proper chain of custody when it failed to produce the packaging/submitting officer at trial? For the reasons that follow, we shall affirm. FACTS The facts of this case are relatively straightforward. Around noon on September 21, 2015, an undercover narcotics team with the Baltimore City Police Department operated a buy/ walk operation in the 5100 block of Park Heights Avenue, a mix of residential and commercial properties.

Detective Ivan Bell testified that, as the undercover officer, he walked into the block and was approached by appellant, who was riding a bicycle and advertising “space jam,” which was described as the name of heroin sold in the area. When Detective Bell indicated his desire to purchase some heroin, appellant took him behind the store fronts where he introduced him to two individuals from whom the detective purchased a total of three baggies of heroin. From the first individual the detective purchased heroin packaged in two small orange Ziploc baggies; from the second individual the detective purchased heroin packaged in a clear Ziploc baggie with blue writing on it. The detective then left the area.

Less than an hour after the sale, Detective Bell returned to the police station where he identified appellant through a photograph database as the person who introduced him to the sellers, and he wrote up his report, writing the “centralized complaint” number 6150909547 on all relevant documents. A State chemist, who was qualified as an expert in the chemical analysis and identification of heroin, testified that she received a package with the same complaint number from the evidence control unit (ECU). She analyzed the substances found in the three baggies inside the package and determined that the substance was heroin. Over objection, the drugs and chemist ²⁶⁸ report were admitted into evidence.

We shall provide additional facts as necessary below. DISCUSSION Appellant argues on appeal that the State failed to establish a proper chain of custody of the suspected drugs because the State failed to produce the packaging/submitting officer as a witness. Without the packaging/submitting officer, appellant argues the State failed to “guarantee the integrity of the physical evidence,” and therefore, the trial court erred in admitting the drug evidence and chemist report. The State responds that the trial court properly exercised its discretion in admitting the drug evidence and chemist report because the State presented sufficient evidence that there was a reasonable probability that no tampering occurred.

We agree with the State. To answer the argument raised, appellant directs our attention to §§ 10-1001, 10-1002, and 10-1003 of the Md. Code Ann., Cts. & Jud. Proc II. Those sections are part of a statutory scheme allowing the State, under certain circumstances, to use procedural shortcuts during a criminal trial to establish a chain of custody for controlled dangerous substances.

Specifically, § 10-1001 allows the State to introduce a chemist report without the chemist because the report is considered prima facie evidence that the evidence submitted to the chemist was properly tested. Thompson v. State, 80 Md.App. 676, 679-81 , 566 A.2d 126 (1989). Section 10-1002 defines a chain of custody as limited to three persons—the seizing officer, the packaging officer, and the chemist who analyzed the substance—thereby eliminating from the chain of custody those only peripherally involved in the handling of the suspected narcotics. Id. at 681 , 566 A.2d 126 .

Section 10-1003, among other things, provides that the State may not take advantage of the above two shortcuts when the defendant, at least five days before trial, files a written demand that the State produce at trial all the persons in the chain of custody. Id. ²⁶⁹ In Parker v. State, 72 Md.App. 543 , 531 A.2d 1035 (1987), cert. dismissed, 312 Md. 657 , 541 A.2d 993 (1988) and Gillis v. State, 53 Md.App. 691 , 456 A.2d 89 , cert. denied, 296 Md. 111 (1983), we interpreted § 10-1003 rigidly. In Parker , we reversed where the State produced at trial only the arresting officer and the chemist but did not produce the lab technician, and in Gillis we reversed where the State produced at trial only the seizing officer and chemist but did not produce the other three or four persons who had physical custody of the evidence. In Thompson , however, we rejected the rigidity with which we had previously interpreted § 10-1003, recognizing that there are situations where it is not possible or practical for the State to produce a witness required under § 10-1003.

In Thompson , Thompson had been charged with possession of cocaine and related offenses. At trial, the State produced the packaging/submitting officer and chemist but did not produce the seizing officer, who had died before trial. Thompson appealed, and we held that reversal was unwarranted. In reaching that conclusion, we thoroughly reviewed the legislative history and purpose of the above three sections, stating: It seems clear that the legislative intent in adopting § 10-1001 was to accelerate the trial of cases where there is no allegation that the evidence has been either purposefully adulterated or mistakenly substituted, by dispensing with the requirement that the chemist appear in court.

His report is deemed acceptable and reliable. Sec. 10-1002 has the same purpose in expediting the trial of cases by eliminating from the chain of custody those persons peripherally or routinely involved in the handling or transportation of the evidence. Such individuals are required to attest that the described property was delivered in the same condition as received, but they need not appear as witnesses in court. The chain, therefore, has three links: the seizing officer, the packaging officer, and the chemist.

Sec'. 10-1003 contains no predicate for triggering compliance with its mandate. A particular defendant may invoke his legislative command because of a firm belief that he can ²⁷⁰ successfully refute or cast doubt upon the allegations made, or he can demand that the witnesses appear for no other reason than to drag out the trial and inconvenience everyone involved. The latter scenario, we agree, was not intended by the Legislature’s effort to protect a defendant’s right of confrontation in drug cases, but abuse of the process unquestionably remains. Whether the dictates of § 10-1003 may spawn frivolous demands is not, however, the focus of this appeal Obviously, the Legislature had a beneficial purpose in enacting the legislation.

That purpose was to assure the reliability of evidence offered in a criminal case. It was not, as appellant asserts, a technical rule etched in stone requiring either the production of three live witnesses or forfeiture of the evidence upon which the prosecution is founded. We interpret the rule to mean that where the witnesses capable of submitting to direct and cross-examination can be produced the State has the duty to present them in court. Pellucidly, the State cannot produce an adjudicated lunatic, a comatose patient or, as here, one who is deceased.

Sec. 10-1003 was not intended to be an exclusionary rule. It must be read in conjunction with §§ 10-1001 and 10-1002, and the plain meaning of all three sections is to simplify the production of evidence subject to three qualifications set forth in § 10-1003. Were we to accept appellant’s interpretation, the message to drug dealers is clear-kill the seizing officer, or the packaging officer, or the chemist, and you are home free. In today’s drug world, the strained meaning suggested by appellant represents a monumental leap backward.

Thompson, 80 Md.App. at 682-84 , 566 A.2d 126 (emphasis added). We also quoted a portion of Judge Moylan’s opinion in Best v. State, 79 Md.App. 241 , 556 A.2d 701 , cert. denied, 317 Md. 70 , 562 A.2d 718 (1989), in which, a few months earlier, he had written about the purpose of the three sections: [ 0]ur ultimate holding as to the admissibility of the evidence does not depend upon such technical compliance [with 10-1003]. ... A rule—any rule—does not exist for its own sake ²⁷¹ alone but only to serve an undergirding purpose. When in our judgment that undergirding purpose has clearly been served, we are not about to worry over whether there has been blind and literal obedience to the rule in the tradition of a Prussian drillmaster.

The purpose of the rule under consideration is to guarantee the integrity of the physical evidence. ❖ * * That the purpose of [enacting §§ 10-1001, 10-1002, 10-1003] was to facilitate the admission of evidence and not to require the exclusion of evidence was made clear by the preamble to the Act, which provided that it was being enacted “[f]or the purpose of providing for the admission of written reports of analyses of, and statements of the chain of custody of, suspected controlled dangerous substances as prima facie evidence and for exceptions thereto.” Best, 79 Md.App. at 249, 252 , 556 A.2d 701 (brackets added)(emphasis in Best). We then held in Thompson that “[t]he State in this case was no better off than it was before the [enactment of § 10-1003] eased its burden of production; the enactment of § 10-1003 cannot logically be construed to place it in a more difficult position.” Thompson, 80 Md.App. at 685 , 566 A.2d 126 . Concluding that the State was required to establish sufficient evidence of a chain of custody to demonstrate the integrity of the physical evidence, after reviewing the evidence presented at trial, we held the State did. Id. at 684-85 , 566 A.2d 126 .

See also Best, 79 Md.App. at 253-54 , 556 A.2d 701 (when the State fails to provide the required documents to establish the chain of custody, the State must follow the long-established rules and procedures regulating the admission of evidence). Here, defense counsel made a timely written request under § 10-1003 and demanded the presence of the three persons in the chain of custody—the seizing officer, the packaging/submitting officer, and the chemist. The State failed to produce the packaging/submitting officer, who was apparently on vacation. This constituted a violation of § 10-1003.

Under the ²⁷² holding of Thompson , however, the State’s failure to comply with the technical requirements of § 10-1003 does not provide a basis for excluding the drug evidence and chemist report as a matter of law. We must therefore look to the rules and procedures regulating the admission of evidence to determine whether the State provided sufficient evidence of a chain of custody. Generally, authentication or identification is a condition precedent to the admissibility of physical evidence. Md. Rule 5-901(a).

This requirement is “satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Id. Methods of authentication or identification include, among other things, direct testimony from a witness with firsthand knowledge of an item or circumstantial evidence regarding the appearance or characteristics of an item. Md. Rule 5—901(b)(1), (4). “The proof negating the probability of changed conditions between the crime and the trial, is spoken of as proving the chain of custody!)]” Amos v. State, 42 Md.App. 365, 370 , 400 A.2d 468 (1979). In Easter v. State, 223 Md.App. 65, 75 , 115 A.3d 239 , cert. denied, 445 Md. 488 , 128 A.3d 52 (2015), we recently reiterated the law regarding the chain of custody and the admission of real evidence: Chain of custody evidence is necessary to demonstrate the “ultimate integrity of the physical evidence.” ...

In most cases, an adequate chain of custody is established through the testimony of key witnesses who were responsible for the safekeeping of the evidence, i.e., those who can “negate a possibility of tampering” ... and thus preclude a likelihood that the thing’s condition was changed. ... What is necessary