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White v. Maryland12/6/1991
absolute. State and Federal courts have held that the right is assertable only where the witnesses to be called will offer competent and material testimony." 289 Md. App. at 5, 421 A.2d 108; see also id. (collecting cases). The appellant's right to compulsory process was not infringed where it was clear from the proffer that the witnesses's testimony would not be relevant to the issues raised in the defense. 289 Md. App. at 7, 421 A.2d 108.
Not showing a particularized need, White wishes generally to challenge the reliability of breath test results and hopes to use Dr. Caplan's testimony to create a reasonable doubt as to his (White's) guilt. This is not sufficiently material to overcome the State's request for a protective order. We note here that White could obtain similar testimony
by producing his own expert witnesses: the evidence he hopes to elicit from Dr. Caplan is of a type that could be acquired elsewhere.
Our decision in Casper v. State, 70 Md. App. 576, 521 A.2d 1281 (1987), supports our position here. In Casper, we considered whether the appellant's right of confrontation was violated when breath test results were admitted into evidence without accompanying testimony of the technician who checked the test instrument's accuracy. Id. at 589, 521 A.2d 1281. "When . . . test results bear substantial indicia of reliability and the utility of testimony from a second technician would be remote, a defendant's confrontation right is not violated when the results are admitted without the benefit of that technician's testimony." Id. at 591, 521 A.2d 1281. Absent evidence that White's test results were unreliable, and some indication that the State Toxicologist's testimony would be relevant to the allegedly defective test, we perceive no merit to White's grievance.
JUDGMENT AFFIRMED; APPELLANT TO PAY THE COSTS.
Disposition
JUDGMENT AFFIRMED; APPELLANT TO PAY THE COSTS.
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