White v. State

ALPERT, Judge. This is an appeal in which the appellant contends that first the District Court and then the circuit court erred in refusing to allow him to subpoena the State’s toxicologist as a witness in the appellant’s trial on charges of driving while intoxicated. We conclude that the appellant’s argument is without merit, and accordingly affirm the Circuit Court for Worcester County. ⁵⁹³ FACTS AND PROCEEDINGS On June 18,1990, Harold Thomas White, Jr. was arrested for driving while intoxicated and for other related offenses. After White’s arrest, he was given a document entitled “State of Maryland Notification to Defendant of Result of Test for Alcohol Concentration.” It indicated that a breath specimen collected from White within two hours of his arrest “was found to contain an alcohol concentration of .22 grams of alcohol per 210 liters of breath.” The notice also certified that the specimen “was obtained and tested using equipment approved by the Toxicologist under the Post Mortem Examiner’s Commission.” The notice indicated that the test result would be used at trial without the presence or testimony of the technician or analyst who performed the test unless the defendant or defense attorney notifies the State’s Attorney and the court in writing no later than twenty (20) days before trial that the defendant desires the technician or analyst to be present in court.

White’s trial was scheduled for September 13, 1990 in the District Court of Maryland for Worcester County. White’s counsel requested the Clerk of the District Court to issue a subpoena to Dr. Yale H. Caplan, the State Toxicologist, to testify at trial in White’s behalf. The clerk issued the subpoena on August 1, 1990. The State moved for a protective order, asking the court to quash the subpoena.

The District Court conducted a hearing concerning the State’s motion for a protective order and granted the motion on September 6, 1990. White responded on September 12, 1990 by filing a motion for writ of certiorari in the Circuit Court for Worcester County. The circuit court issued the writ on October 18, 1990. The circuit court conducted a hearing on November 8, 1990, at the conclusion of which the court denied White’s relief.

The court’s written order, issued December 3, 1990 explained that White ⁵⁹⁴ failed to establish sufficient materiality or relevancy for the issuance of a subpoena for Dr. Yale Caplan, Chief Toxicologist for the State of Maryland to appear at Petitioner’s trial for Driving While Intoxicated, or that the denial of the issuance of the same by the District Court of Maryland for Worcester County amounts to an unconstitutional deprivation of Petitioner’s right to confrontation and compulsory process____ White subsequently appealed the circuit court’s decision to this court, arguing that I. The lower court improperly failed to follow the mandate of section 10-304(d) of the Courts and Judicial Proceedings Article by failing to require the state toxicologist to be present and testify as a witness after a timely request for subpoena had been filed by the appellant.

II

The lower court’s refusal to issue a subpoena for the state toxicologist denied appellant his constitutional right to have compulsory process for obtaining witnesses in his favor as secured by the Sixth and Fourteenth Amendments to the United States Constitution and articles 21 and 24 of the Maryland Declaration of Rights. The Writ of Certiorari Before we address the important public issues raised by this appeal, we note, as did the State, the appellant’s selection of an incorrect method to seek review of the trial courts’ decisions. The Circuit Court for Worcester County simply did not have the jurisdiction or authority to review, via writ of certiorari, the District Court’s decision sustaining the State’s motion to quash appellant’s subpoena for the State Toxicologist. The circuit court’s jurisdiction to issue a writ of certiorari to a lower court is confined to the purpose of inquiring into the lower court’s fundamental jurisdiction or whether the acts of the lower court were unconstitutional.

Md.R. K43(2). ⁵⁹⁵ A. Fundamental Jurisdiction By virtue of the writ of certiorari, the circuit court was authorized to “inquire into the power of a court to decide an issue — not to review its resolution of that issue.” Howard v. State, 76 Md.App. 447, 450 , 545 A.2d 705 , cert. denied, 314 Md. 193 , 550 A.2d 381 (1988). The District Court possessed the fundamental jurisdiction to adjudicate the charges against the appellant and also to determine the merits of the motion to quash. See Md.Rules 4-101, 4-265, and 4-266. Thus, the circuit court erred when it reviewed the District Court’s ruling on the State’s motion.

Appellant, had he been convicted by the District Court, had the right of de novo appeal to the circuit court, at which time his right to summons the State Toxicologist could be considered anew. Md.Cts. & Jud.Proc.Code Ann. § 12-401(d) (Supp.1991). Vonoppenfeld v. State, 53 Md.App. 462, 467 , 454 A.2d 402 (1983). See also A.S. Abell Co. v. Sweeney, 274 Md. 715 , 337 A.2d 77 (1975); 14 C.J.S. Certiorari § 13-14; 14 Am.Jur.2d Certiorari § 2.

B. Unconstitutional Acts In his “Motion for a Writ of Certiorari,” appellant alleged in pertinent part: The granting of the State’s Motion to Quash the Subpoena for Dr. Caplan effectively denies Petitioner his constitutional rights of confrontation and compulsory process guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution, Articles 21 and 24 of the Maryland Declaration of Rights and Maryland Rule 4-265. To the extent that appellant would use the writ of certiorari to establish that the district court acted unconstitutionally in quashing Dr. Caplan’s subpoena, his effort is unavailing. As noted in Vonoppenfeld, 53 Md.App. at 470 , 454 A.2d 402 , “the inquiry here is not whether the [district] court rightly decided [appellant’s right to compulsory process] but whether it had the [constitutional] right to decide what it did decide.” {quoting New York Mining Co. v. ⁵⁹⁶ Midland Co., 99 Md. 506, 512 , 58 A. 217 (1904). We know of no provision of the State or Federal constitution that would preclude the District Court from ruling upon the right to compulsory process or any other constitutional trial right.

Were it otherwise, every District Court ruling on such issues as search and seizure, confessions, right to counsel, or confrontation of witnesses would be subject to immediate review upon a writ of certiorari. That is not the law. That is not what the framers of Md.Rule K43 intended. WHETHER THE TOXICOLOGIST MUST TESTIFY AT THE APPELLANT’S REQUEST Md.Cts. & Jud.Proc.Code Ann. § 10-304(d) (1989) (amended Jan. 1, 1990) reads as follows.

(1) for the purpose of establishing that the test of breath or blood was administered with equipment approved by the toxicologist under the Postmortem Examiners Commission, a statement signed by the toxicologist certifying that the equipment used in the test has been approved by him shall be prima facie evidence of the approval, and the statement is admissible in evidence without the necessity of the toxicologist personally appearing in court. (2) (i) If a defendant desires the toxicologist to be present and testify at trial as a witness, the defendant shall file a request for a subpoena for the toxicologist at least 20 days before the trial in the appropriate court. (3) A subpoena for the toxicologist may be quashed if a defendant fails to comply with the requirements of this subsection. (4) A motion to quash a defendant’s subpoena may be filed by any party or by the Attorney General.

White wishes to call Dr. Caplan in an effort to challenge the reliability of the testing equipment used to test his breath. He argues that Section 10-304(d), permits a defendant to call as a witness the State Toxicologist, with no ⁵⁹⁷ restriction other than the requirement that the subpoena be requested at least twenty days before trial. It does not appear that that precise argument was made to the District Court judge. We note at the outset that White’s argument may not be timely raised, i.e., his motion for writ of certiorari and argument thereon presents the issue mentioned above that he did not raise in the District Court.

These procedural issues aside, White’s argument is unpersuasive. Subtitle 3 of the relevant code provisions governs motor vehicle laws, and sections 10-302 through 10-309 concern the admissibility of chemical tests for intoxication. In Brice v. State, 71 Md.App. 563 , 526 A.2d 647 (1987), a case involving a driver convicted of driving while impaired, this court had occasion to discuss these provisions and the legislature’s underlying intent in enacting them. The court opined that [t]his appeal ... betrays a naive failure on [the appellant’s] part to appreciate that the very laws he invokes were designed deliberately to facilitate [the appellant’s] conviction, not to shield him from what is virtually an unrelenting search for truth in drunken driving cases.

Id. at 566 , 526 A.2d 647 . Although section 10-304(d)(2) did not exist when Brice was decided, we find apposite our earlier assessment of legislative intent: the laws here in question were enacted not for the defendant’s protection, but for the protection of the public. See id. at 568 , 526 A.2d 647 (quoting State v. Moon, 291 Md. 463 , 436 A.2d 420 (1981)); see also Motor Vehicle Admin. v. Shroder, 324 Md. 454, 464 , 597 A.2d 939 (1991). The administration’s intent in proposing the legislation was to forestall the State Toxicologist’s problems in responding to subpoenas.

That intent is expressed in a letter of March 30, 1989, that Lieutenant Governor Melvin Steinberg wrote to Senator Walter M. Baker, Chairman of the Senate Judicial Proceedings Committee, and then-Delegate William S. Horne, then-Chairman of the House Judi ⁵⁹⁸ ciary Committee. Pertinent parts of the letter read as follows: I am pleased that the House and Senate have both passed the centerpiece of the Administration’s drunk driving legislation — the “administrative license suspension” provision. We have great hopes that this new legislation will help to reduce the problem of drunk driving in our State, and we congratulate you for your efforts. To take full advantage of the opportunity that we have before us, I would like to bring to your attention certain