Lester v. Maryland4/3/1990
The appellant, Kenneth Dean Lester, was convicted at a non-jury trial in the Circuit Court for Baltimore County of possession of phencyclidine (PCP) with intent to distribute and driving under the influence of a drug. He was sentenced to a total of three years imprisonment. On this appeal, appellant seeks reversal of the convictions, arguing that:
1. The court below erred in admitting evidence of drugs allegedly seized from appellant's automobile, where chain of custody had not been fully established.
2. The court erred in admitting the testimony of a chemist who was not properly qualified to analyze phencyclidine.
We will affirm.
Appellant was stopped by three Baltimore County Police officers, Widenhouse, Ford and Cordery, on the Baltimore Beltway and, after failing a series of field sobriety tests, arrested and charged with intoxicated driving. Search of his jeep uncovered several small bottles and jars containing what the officers suspected was PCP. One of the officers took appellant in for processing and the others took the suspected PCP to North Point Precinct. The seized items were ultimately analyzed by a forensic chemist, who testified at trial that they contained PCP.
1. CHAIN OF CUSTODY
Appellant complains that the seized PCP should not have been admitted into evidence because the State failed to call, as witnesses at the trial, all of the persons in the chain of custody. Although two of the officers were called and
testified, the third was not. Moreover, no explanation was given for his absence. The question, therefore, is whether the PCP should have been excluded from evidence for that reason.
In Amos v. State, 42 Md. App. 365, 370, 400 A.2d 468 (1979), we observed that, in order for physical evidence (such as a seized controlled dangerous substance) to be admissible, it "must be in substantially the same condition that it was in at the time of the crime. . . ." To assure that a particular item of evidence is in substantially the same condition as when seized, the law requires the offering party to establish the "chain of custody,", i.e., account for its handling from the time it was seized until it is offered in evidence. In the case of controlled dangerous substances, under some circumstances, the State may prove the chain of custody by offering specified documentary evidence in lieu of live witnesses. Maryland Courts & Jud.Proc.Code Ann. §§ 10-1001 & 1002. The State may elect this method by mailing the report or statement to be introduced to the defendant, or his counsel, if represented, at least ten days in advance of its introduction. Section 10-1003(a)(3). A defendant, on the other hand, may require the State to produce the chain of custody witnesses at trial by requesting the State to do so in writing at least five days prior to trial. Section 10-1003(a)(1).
In the case sub judice, about three weeks prior to trial, appellant filed a "request for presence of technicians and everyone in the chain of custody." This request required the State to produce as witnesses each person essential to the establishment of the chain of custody. Gillis v. State, 53 Md. App. 691, 456 A.2d 89, cert. denied, 296 Md.
172 (1983); Parker v. State, 72 Md. App. 543, 547, 531 A.2d 1035 (1987), cert. denied, 311 Md. 698, 537 A.2d 262 (1988); Best v. State, 79 Md. App. 241, 248-58, 556 A.2d 701, cert. denied, 317 Md. 70, 562 A.2d 718 (1989); Thompson v. State, 80 Md. App. 676, 681, 566 A.2d 126
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