Cole v. State
| Decision Date | 12 November 2003 |
| Docket Number | No. 5,5 |
| Citation | 835 A.2d 600,378 Md. 42 |
| Parties | Rico Duvall COLE v. STATE of Maryland. |
| Court | Maryland Court of Appeals |
Geraldine K. Sweeney, Asst. Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for petitioner.
Celia Anderson Davis, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. of Maryland, on brief), Baltimore, for respondent.
Argued before BELL, C.J., and ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL and BATTAGLIA, JJ. 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.
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, 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;
4. Whether each chemist and analyst has ever been decertified pursuant to COMAR 10.1003.063 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 COMAR 10.10.03.08(F);5
7. All bench notes and any other written material made by the chemist/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 print-out for this case;
14. Verification of standards used in analyzing controlled dangerous substances and the standards themselves;
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[;]
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 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 ...
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