Thompson v. State

• Decision Date: 30 November 1989
• Citation: 566 A.2d 126,80 Md.App. 676
• Parties: Arthur THOMPSON v. STATE of Maryland. 174 Sept. Term 1989.
• Court: Court of Special Appeals of Maryland

Page 676

80 Md.App. 676

566 A.2d 126

Arthur THOMPSON v. STATE of Maryland.

174 Sept. Term 1989.

Court of Special Appeals of Maryland.

Nov. 30, 1989.

Submitted before BISHOP and KARWACKI, JJ., and JAMES S. GETTY (Retired, Specially Assigned).

JAMES S. GETTY, Judge, Specially Assigned.

The novel question posed by this case is whether the State is precluded from introducing evidence allegedly seized from a defendant where a demand has been made that the State establish the chain of custody of the property seized and the State cannot produce the officer who seized the property, because he is deceased.

In a thorough and well-reasoned opinion, Judge Prevas, presiding in the Circuit Court for Baltimore City, held that the vials of cocaine allegedly seized from Arthur Thompson, appellant, were admissible. Appellant, at the urging of his counsel and the court, has appealed from the guilty verdict that followed the evidentiary phase of his trial.

Appellant was charged with possession of cocaine and related offenses. A hearing was held on appellant's motion to suppress the evidence of possession of cocaine due to the failure of the State to establish the chain of custody of the controlled dangerous substance. The court overruled the motion and on January 31, 1989, appellant opted for a court trial upon an agreed statement of facts.

Counsel for the State and for appellant agreed to proceed on count two of the charges which alleges possession of cocaine. The agreed facts, in pertinent part, are:

Sergeant Fred Bealefeld of the Baltimore City Police Department and Agent Willis Sheppard placed appellant under arrest on March 6, 1988, at approximately 9:00 p.m. In Bealefeld's presence, Sheppard searched appellant and recovered ten clear vials containing a white powder; four clear empty vials; two vials with a residue of powder; a zip-lock plastic bag with twenty smaller plastic bags inside; a syringe and needle; and sixteen one dollar bills.

Police Officer Charles Mitchell would testify that on March 6, he was assigned to the Evidence Control Unit of the Department. His duties included witnessing the submission of suspected controlled dangerous substances brought to the evidence control unit. A property receipt form is filled out in his presence by the officer submitting contraband and he inspects the items to verify that what is submitted is accurately reflected on the form completed by the submitting officer.

Shortly after 9:00 p.m. on March 6th, Sheppard arrived at the control unit and filled out the receipt form evidencing that he was submitting to the evidence control unit ten clear vials of white powder, four clear vials, two clear vials containing residue, a plastic bag containing smaller bags and one hypodermic syringe. Mitchell inspected the items, matched the items against the form and signed the form.

The statement of facts further recited that the vials of white powder were delivered at a later time to the police laboratory and analyzed by a qualified chemist who determined that the white powder was cocaine. Agent Sheppard, the State reported, died from an accidental fall during a camping trip in West Virginia approximately one month after appellant's arrest.

At the suppression hearing, Sgt. Bealefeld explained the procedure followed by Baltimore City Police Officers where controlled dangerous substances are seized. The suspect property is immediately transported to the evidence control section at police headquarters. Upon arrival the transporting officer executes a chain of custody evidence submission form and a property slip detailing the items submitted for analysis and the other evidence, if any, that is to be secured. Upon completion of the paperwork, a technician photographs the evidence in the presence of the transporting officer, places the items in a sealed container, and then deposits the container in a depository safe pending chemical analysis.

The items being submitted are listed on the chain of custody form and the chemist who analyzes the material records the date he received the material, the results of the analysis, and the date the material is returned to the property control section. Sgt. Bealefeld reviewed the chain of custody evidence report and concluded that the established procedure was followed in this case. He testified that the items in the photograph attached to the chain of custody form appear to be in the same condition as he observed them on the night of the arrest. ¹

The Law

We are concerned here with the application of Courts and Judicial Proceedings Article 10-1001, 10-1002 and 10-1003 of the Maryland Code to the facts presented. ² Sec. 10-1001 provides that a chemist's report is prima facie evidence that the evidence submitted to him was properly tested without the necessity of the chemist appearing in court. Sec. 10-1002, as amended, effective July 1, 1988, sets forth the persons included in the chain of custody, namely, the seizing officer, the packaging officer, and the chemist who analyzed the substance submitted. In this case, the 1988 amendment is not significant, because the seizing officer was a necessary party in establishing the chain of custody prior to the amendment. The amendment streamlined the procedure by eliminating those peripherally involved in the chain of custody.

Sec. 10-1003, however, requires the State, upon written demand by the defendant, to produce the chemist, analyst, or any person in the chain of custody as a prosecution witness. Where the defendant demands that the chain of custody be established, the provisions of § 10-1001 and § 10-1002 concerning prima facie evidence do not apply.

In Gillis v. State, 53 Md.App. 691, 456 A.2d 89 (1983), cert. denied, 296 Md. 172 (1983), cited by appellant, the defense availed itself of the right granted by § 10-1003 requiring the presence of the chemist and any person involved in the chain of custody. The State produced the seizing officer and the chemist, but did not produce three or four other persons who at some point had physical custody of the evidence. The trial court ruled that the other witnesses need not be produced because the testimony of the seizing officer and the chemist had shown "there was no likelihood of any taint." We reversed, stating that the State opted not to comply with the clear mandate of the statute.

Thereafter, in Parker v. State, 72 Md.App. 543, 531 A.2d 1035 (1987), cert. dismissed, 312 Md. 657, 541 A.2d 993 (1988), the State again challenged the Gillis application of § 10-1003. In Parker the State had three persons involved in the chain of custody: the arresting officer, a laboratory technician and the chemist. At trial, only the officer and the chemist were called despite appellant's timely request that all persons involved in the chain of custody be produced.

The trial court admitted into evidence, over objection, the chain of custody form, the chemist's report and a photograph of the capsule seized from the accused. We reversed, stating (Bell, R.M., J.):

The provisions of sec. 10-1003 are clear, unambiguous, and mandatory. If they are to be construed as the State suggests (no reasonable inference of tampering) they are at best superfluous. Moreover, Gillis belies that position and we reaffirm Gillis.

The distinguishing factor in the present case is that the State has produced all of the persons in the chain of custody and accounted for the inability of one of those witnesses, Sheppard, to testify. In both Gillis and Parker the witnesses were readily available; here that is impossible.

In an effort to establish the legislative intent in enacting the chain of custody legislation, the State submitted for the trial court's consideration the floor report on H.B. 1093, ³ which became the 1988 amendment to § 10-1002 limiting the number of persons necessary to establish the chain of custody. Under "Background," the Floor Report observed that:

Testimony indicated that police personnel who only deliver or have temporary custody of a sealed package are not in a position to alter the substance and are not necessary witnesses. An example was given of a police officer quitting or retiring and not being available for testimony. The officer had delivered over 100 packages of controlled dangerous substances and some cases had to be dropped due to the unavailability of the officer.

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 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...