Giles v. District of Columbia, 86-178.

• Decision Date: 09 September 1988
• Docket Number: No. 86-178.,86-178.
• Citation: 548 A.2d 48
• Parties: Thomas S. GILES, Appellant, v. DISTRICT OF COLUMBIA, Appellee.
• Court: D.C. Court of Appeals

548 A.2d 48

Thomas S. GILES, Appellant, v. DISTRICT OF COLUMBIA, Appellee.

No. 86-178.

District of Columbia Court of Appeals.

Submitted February 3, 1988.

Decided September 9, 1988.

Julian L. Nugent, Jr. Washington, D.C., for appellant.

George Valentine, Asst. Corp. Counsel, with whom James R. Murphy, Acting Corp. Counsel, Charles L. Reischel, Deputy Corp. Counsel, and Lutz Alexander Prager, Asst. Deputy Corp. Counsel, Washington, D.C., were on the brief, for appellee.

Jay B. Stephens, U.S. Atty. and Michael W. Farrell, Elizabeth Trosman, and Kenneth W. Cowgill, Asst. U.S. Attys., Washington, D.C., filed a brief on behalf of the U.S. as amicus curiae.

Before FERREN, TERRY and STEADMAN, Associate Judges.

FERREN, Associate Judge:

In a civil forfeiture action pursuant to D.C. Code § 33-556 (1988 Repl.), Judge McArdle ordered appellant Giles to forfeit $196.00 upon finding, after a bench trial, that appellant and his brother had received the money from a sale of heroin and cocaine to a Mr. Holmes. Giles appeals, alleging that the trial court erred in admitting an improperly authenticated chemist's report of the Drug Enforcement Agency (DEA). We disagree and thus affirm.

I.

On November 29, 1983, appellant Giles and his brother were arrested for distribution of heroin and cocaine. The police found $196.00 on appellant. The next day, the government "no-papered" the criminal charges. The District of Columbia, however, commenced forfeiture proceedings against appellant on the ground that the $196.00 was cash or currency used, or intended for use, in violation of the Uniform Controlled Substances Act. D.C. Code § 33-552(a)(6) (1988 Repl.).

On December 10, 1984, the government furnished Giles with a "Notice of Compliance" and attached to it a copy of a DEA chemist's report composed of two documents: (1) an official report setting forth results of the chemical analysis (DEA Form 7) of the substances seized from Holmes and (2) a notarized "Report of Chain of Custody and Certificate of Compliance Pursuant to 33 D.C. Code § 556" (report and certificate). The notarized report and certificate bearing the chemist's signature was on United States Department of Justice, Drug Enforcement Administration stationery showing a printed seal of the Department of Justice. In this report and certificate, the chemist certified that she was a chemist employed by DEA, described the chain of custody of controlled substances received by DEA for analysis, stated that the results of her analysis were accurately set forth in the DEA Form 7, and certified that she was "the officer having legal custody of this report and of the attached official report of analysis, DEA Form 7." The chemist signed the DEA Form 7 as the analyst, and the laboratory chief also signed to indicate that he had approved the report. In the Notice of Compliance, the government set forth the suggested procedures for subpoenaing the chemist at trial. Giles made no effort to subpoena the chemist.

On April 12, 1985, Giles submitted a pretrial memorandum to the court on the issue of admissibility of police reports as impeachment or substantive evidence. At the time of this memorandum, the trial was scheduled for April 24, 1985. Neither in this nor in any other pretrial submission did Giles raise the issue of the admissibility of the chemist's report.

Trial commenced on October 8, 1985. On the first day of trial, before the government called its first witness, Giles orally raised as a "preliminary comment or request" that he planned to object to the admission of the chemist's report "at an appropriate time." The court responded that it would admit the report, noting "I've admitted that report I do not know how many times, maybe 150. . . . I'm not going to reverse myself." The government did not seek a continuance to correct any formal imperfection in the report. The trial lasted one day.

During trial, Giles objected to the government's introduction of the chemist's report, alleging that it was not authenticated in compliance with the requirements of D.C.Code § 33-556 (1988 Repl.), which provides:

In a proceeding for a violation of this chapter, the official report of chain of custody and of analysis of a controlled substance performed by a chemist charged with an official duty to perform such analysis, when attested to by that chemist and by the officer having legal custody of the report and accompanied by a certificate under seal that the officer has legal custody, shall be admissible in evidence as evidence of the facts stated therein and the results of that analysis. A copy of the certificate must be furnished upon demand by the defendant or his or her attorney in accordance with the rules of the Superior Court of the District of Columbia or, if no demand is made, no later than 5 days prior to trial. In the event that the defendant or his or her attorney subpoenas the chemist for examination, the subpoena shall be without fee or cost and the examination shall be as on cross-examination.

Giles argued, more specifically, that § 33-556 required the chemist and the legal custodian of the report to be different persons and that, in any event, a notarial seal cannot satisfy the statutory requirement for "a certificate under seal that the officer has legal custody." The court overruled the objection and admitted the report.

In response to the trial court's October 11, 1985 order of forfeiture, Giles moved for a judgment notwithstanding the verdict on the ground that the court erred in overruling his objection and admitting the chemist's report. In support of the motion, Giles restated the two arguments presentee[ at trial. After the government had filed an opposition and Giles had filed a reply, the trial court denied the motion. Giles appealed.

After briefs had been filed, this court sua sponte invited the United States to file a brief as amicus curiae and also invited all the parties to file supplementary briefs on two issues, including the question "[w]hether a defendant who receives a certificate pursuant to § 33-556 `no later than 5 days prior to trial' waives any objection to admission of the certificate into evidence (subject to impeachment at trial) if the defendant has not challenged its admissibility through a pretrial motion."

II.

Having reviewed the supplementary briefs, we conclude we cannot dispose of this case on the ground of waiver. Under § 33-556; the government is obliged to turn over to the defense a copy of the chemist's report on which it intends to rely "no later than five days prior to trial." The obvious purpose of this provision is to give sufficient notice to the defendant to decide whether to call the chemist for cross-examination ("the chemist would still appear if subpoenaed and would be subject to cross examination by the defense if called." COMM. ON THE JUDICIARY, REPORT ON BILL 4-123, "the District of Columbia Uniform Controlled Substances Act of 1981" (Report on Bill 4-123), April 8, 1981, at 9). We do not believe, however, that the statute implies that the failure to object to the form of the certificate before trial — before it is offered into evidence — waives objection to admission of the certificate at trial. A defendant does not generally have an obligation to file a pretrial motion to exclude documentary material, discovered before trial, which the defense knows or believes the government will attempt to use but which may be inadmissible for some reason.

It is true, of course, that D.C. Code § 23-104(a)(2) (1981) requires a pretrial motion "to suppress evidence . . . unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion." See also Super.Ct.Crim.R. 12(b)(3) incorporating Super.Ct.Crim.R. 47-I. The threshold question, therefore, is the meaning of the word "suppress." Historically, that term has meant exclusion of evidence on the ground that it was illegally obtained as a result, for example, of an unlawful search or of a coerced confession. District of Columbia v. McConnell, 464 A.2d 126, 128 (D.C. 1983). Correspondingly, the government has been allowed to appeal pretrial suppression motions.

In contrast, for a long time government appeals were not allowed from pretrial rulings that may have excluded but did not "suppress" evidence. In 1971, however, Congress amended the applicable federal statute, as well as the District of Columbia Code, to permit a pretrial government appeal not only from an order that "suppresses" evidence but also from an order that "otherwise denies the prosecutor the use of evidence at trial" (provided the appeal is not taken for the purpose of delay and the particular evidence provides substantial proof of the pending charge). 18 U.S.C. § 3731 (1982); D.C.Code § 23-104(a)(1) (1981). Significantly, however, in liberalizing the government's right to appeal pretrial evidentiary rulings, Congress did not amend subsection (a)(2), which to this day mandates pretrial motions only "for return of seized property or to suppress evidence." In other words, except for motions to suppress illegally obtained evidence, Congress has not mandated pretrial motions that would deny "the prosecutor the use of evidence at trial."

In short, we find no statute or rule obligating a defendant to file a pretrial "nonsuppression" motion to exclude a chemist's report delivered before trial under § 33-556, although clearly there is no provision that would prevent a defendant from doing so or preclude the court from granting the motion and allowing the government to take a pretrial appeal under § 23-104(a)(1). Absent such a requirement, however, there is no basis for concluding that the defendant here waived his right to object at trial to the form of the chemist's report under § 33-556. See United States v. Pent-R-Books, Inc., 538 F.2d 519, 528 (2d Cir. 1976), cert. denied, 430 U.S. 906, 97 S.Ct. 1175, 51 L.Ed.2d 582 (1977).

If we were to require, by judicial fiat, the filing...