Pollock v. Patuxent Institution Board of Review

• Decision Date: 03 September 2002
• Docket Number: No. 1030,1030
• Citation: 146 Md. App. 54,806 A.2d 388
• Parties: Michael POLLOCK v. PATUXENT INSTITUTION BOARD OF REVIEW.
• Court: Court of Special Appeals of Maryland

806 A.2d 388

146 Md. App. 54

Michael POLLOCK v. PATUXENT INSTITUTION BOARD OF REVIEW.

No. 1030, Sept. Term, 2001.

Court of Special Appeals of Maryland.

September 3, 2002.

Mark Gitomer, Owings Mills, for appellant.

Scott S. Oakley, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. on the brief), Baltimore, for appellee.

Argued before MURPHY, C.J., ADKINS, and JOHN J. BISHOP, JR. (Retired, Specially Assigned), JJ. ADKINS, Judge.

This appeal is the latest attempt to resolve a long-standing dispute regarding the parole revocation of Michael Pollock, appellant. We must decide whether test results indicating the presence of marijuana in a urine sample allegedly supplied by Pollock should have been excluded due to the failure of staff at Patuxent Institution ("Patuxent") to strictly follow Patuxent's procedures for collecting and documenting urine specimens. After the Court of Appeals remanded for a decision on this question, the Circuit Court for Howard County held that the test results were properly admitted and considered by the Patuxent Institution Board of Review (the "Board"), appellee, both in deciding to revoke Pollock's parole and in later deciding not to renew his expired parole order. We shall affirm the circuit court's decision.

FACTS AND LEGAL PROCEEDINGS

The Test

Pollock, who killed a cab driver during an argument, was incarcerated in the Maryland Division of Correction as inmate number 4695 on November 23, 1971. He is serving a life sentence with the possibility of parole for first degree murder, plus two years consecutive for escape.

In April 1980, Pollock was committed to Patuxent as a person eligible for Patuxent programs. He became eligible for parole in December 1985, and was paroled in September 1988. Pollock's most recent parole order was issued in June 1996, with an expiration date of May 1997.

One condition of Pollock's parole was annual urinalysis testing to determine whether he was in compliance with the "no drugs" and "obey all laws" requirements of his parole order. On May 15, 1997, Pollock arrived at Patuxent to submit a urine sample. The specimen associated with Pollock tested positive for marijuana. According to Pollock, what happened during the collection and testing of this specimen requires exclusion of those test results. Sgt. A.P. Jones was on duty when Pollock arrived. Jones completed the required "Request for Urinalysis Test" form, certifying that "Micheal [sic] Pollock" had verified his identity by "I.D. card." Jones certified, by signing the form, that Pollock had

submitted a urine specimen in my presence in a specimen bottle labeled with the inmate's name and number and today's date, and thereafter the inmate handed me the bottle. I thereafter sealed the bottle with evidence tape, and maintained exclusive possession and control of the bottle until I transferred it from my possession and control as indicated below:....

CHAIN-OF-CUSTODY OF SPECIMEN:

From above-named inmate To APJones Date 5-15-97 Time 10:30 AM

From AP Jones To Lock Refrigerator Date 5-15-97 Time 10:33 AM

From Capt. L. Latham To P. Stuffey Date 5-15-97 Time 1:40 PM

Apparently in an attempt to use Pollock's inmate number as the number identifying Pollock's urine specimen, Jones filled in the blank for "number" on that form with "4697." (Emphasis added.)

At the same time he obtained Pollock's sample, Jones also completed another required Patuxent form, entitled "Incident Report." Jones completed the "nature of incident" blank with the following handwritten note:

On the above date and approx. time the above named inmate gave a urine sample for drug testing. The test was administered by this writer and observed by CO D[.] Taylor. The sample was secured in the locked refrigerator in the infirmary....

Jones also used number 4697 on that Incident Report.

A third form completed at the time Pollock submitted his urine sample, was entitled:

Friends Medical Laboratory

Laboratory Testing Requisition Form

This form identified Patuxent as the "Collection Site" for "7" different specimens, one collected on May 8, another on May 10, and five on May 15, 1997. Listed under the "Specimen Identity" column of this form were handwritten names of seven different inmates. Each name appeared in a separately numbered box. The first line in each box identified the inmate's name in manuscript with a corresponding inmate number. On the second line, appearing right below the manuscript name and inmate number, each inmate signed the form.

"Michael Pollock # 4669" is identified as the fourth specimen, dated "5-15-97," and "collected by A.P. Jones & D. Taylor." (Emphasis added.) In cursive, under his manuscript name and number, Michael Pollock signed his name and correctly identified himself as "# 4695." (Emphasis added.) The form indicates "Capt. L. Latham" "released" the specimens to a courier from Friends Medical Laboratory ("Friends") on "5/15/97" at "1:35 pm." and authorized Friends to test the specimens.

The next day, on May 16, 1997, Friends tested a urine sample received on "05/15/97" that it identified as belonging to "Client: Pollock, Michael 4669." (Emphasis added.) The results of this test showed that the sample was positive for marijuana. Friends faxed a copy of the test results to Patuxent on May 19, 1997.

A parole revocation warrant was issued immediately. On May 20, Pollock surrendered and was returned to Patuxent. At a May 22 preliminary revocation hearing, Pollock denied using marijuana, but "admitted that he had been briefly in the presence of suspected marijuana smokers[.]" The hearing officer found probable cause for charges that Pollock had violated the terms of his parole, and ordered a parole revocation hearing.

On May 23, at the request of Patuxent, Friends performed a "confirmation retest," with the same results. The confirmation test report identified the "client" from whom the sample was taken with the same typewritten "Pollock, Michael" that appeared on the original test report, but without the incorrect typewritten inmate number "4669." Instead, handwritten immediately beneath Pollock's name is the following notation: "4695 Ref-P." (Emphasis added.) It is unclear whether the person who added the handwritten inmate number was someone at Friends or at Patuxent.

Revocation And Non-Renewal

Pollock's parole revocation hearing began on June 19, 1997 and concluded on July 17, 1997. At the hearing, Pollock moved to dismiss the revocation proceedings because he had not received timely notice of the hearing pursuant to Patuxent Institution Regulation ("PIR") 240-19.V.C. Additionally, Pollock moved to exclude the urinalysis reports on the ground that there were violations of the chain of custody procedures and documentation requirements established by Patuxent Institution Directive ("PID") 110-18.¹

The Board denied both motions. Based on the test results from Friends, it concluded that Pollock had used marijuana in violation of the terms of his parole. "[D]ue to the seriousness of these violations," the Board ruled that Pollock was "no longer eligible for Patuxent programs." As a result, Pollock was transferred to another correctional facility within the DOC to serve the remainder of his sentence.

In August 1997, Pollock appealed the Board's decision to the Circuit Court for Howard County. He argued that the Board violated its own rules by failing to provide timely notification of the revocation hearing and that the urinalysis test results were inadmissible because a chain of custody was never established. Patuxent responded that the issues raised by Pollock were moot because Pollock's parole order had expired before the July 1997 parole revocation hearing, and, alternatively, that there was sufficient evidence to establish a chain of custody for Pollock's specimen.

On April 15, 1998, the circuit court reversed the Board's decision to revoke Pollock's parole, ruling that the Board was late in notifying Pollock of the revocation hearing. The circuit court, however, did not address whether the urinalysis results could be used against Pollock as grounds for revocation of his parole.

As a result of this order, the Attorney General advised Patuxent that Pollock

must be brought back to the Patuxent Institution and either (1) be declared a "non-eligible person" based on facts other than the parole revocation (although the Board may consider the positive urinalysis that [led] to the revocation); or (2) return the inmate to parole as an eligible person; (3) reinstate the eligible person status, but factually determine that parole is not appropriate through the "annual review" process (rather than in conjunction with a parole revocation). Patuxent chose the third option. On May 8, 1998, it advised Pollock that, during his appeal of the Board's revocation decision, "your annual review for parole status ... lapsed." Accordingly, an annual parole review hearing was scheduled for May 21, 1998.

In response to this notice, on May 13, 1998, Pollock filed a habeas corpus petition in the Circuit Court for Howard County. Shortly thereafter, at the May 21 annual review hearing, the Board relied on the positive urinalysis results in deciding not to renew Pollock's parole. Noting "the legal implications of this case," the Board returned Pollock to Patuxent as "an Eligible Person," where he was "put on [the] drug tier."

On June 2, 1998, the circuit court held a hearing on Pollock's habeas petition. A year later, on June 30, 1999, the circuit court denied habeas relief because Pollock's parole had expired, so there was "no parole to which Pollock could be restored."

Pollock appealed that decision to this Court, raising both constitutional and procedural arguments. We affirmed in an unreported decision that adopted the circuit court's rationale. See Pollock v. Patuxent Inst. Bd. of Review, No. 1657, Sept. Term 1998, 127 Md.App. 790 (filed June 14, 1999). The Court of Appeals granted certiorari to consider...