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Lester v. Maryland4/3/1990
->27 of this Code, a report signed by the chemist or analyst who performed the test or tests as to its nature is prima facie evidence that the material delivered to him was properly tested under procedures approved by the Department of Health and Mental Hygiene, that those procedures are legally reliable, that the material was delivered to him by the officer or person stated in the report, and that the material was or contained the substance therein stated, without the necessity of the chemist or analyst personally appearing in court, provided the report identifies the chemist or analyst as an individual certified by the Department of Health and Mental Hygiene, the Maryland State Police Department, the Baltimore City Police Department, or any county police department employing analysts of controlled dangerous substances, as qualified under standards approved by the Department of Health and Mental Hygiene to analyze those substances, states that he made an analysis of the material under procedures approved by that department, and also states that the substance, in his opinion, is or contains the particular controlled dangerous substance specified. Nothing in this section precludes the right of any party to introduce any evidence supporting or contradicting the evidence contained in or the presumptions raised by the report.
The Statute, by its terms, applies only when the chemist or analyst does not testify at trial, see 10-1003(a)(2), hence, it is inapplicable in this case. Appellant recognizes that this is so. Nevertheless, he argues, relying, by analogy, on the certification requirements of § 10-1001, that Maryland trial judges should never accept, as an expert in the analysis of controlled dangerous substances, an uncertified chemist or analyst, regardless of his or her other qualifications. We do not agree.
Ms. Jeffein was offered as an expert in analyzing PCP. Her acceptance as an expert required that the judge be convinced that she was able to perform the chemical analysis necessary to determine the presence of PCP. Appellant quite properly does not argue that she was not qualified to make the chemical analysis. And, that she was not certified by the Department of Health and Mental Hygiene does not mean that she is not qualified. See Bricker v. State, 80 Md. App. 532, 565 A.2d 340 (1989). There, we considered whether an unlicensed psychologist could be accepted as an expert. We observed that " he absence of a license, in and of itself, does not detract from one's competency", id., 80 Md. App. at 544, 565 A.2d 340; it affects, rather, only the weight to be accorded the opinion expressed. Id. This observation is likewise pertinent here.
It is well established that the determination whether a witness should be accepted as an expert is a matter addressed to the sound discretion of the trial court. Trimble v. State, 300 Md. 387, 404, 478 A.2d 1143 (1984), cert. denied, 469 U.S. 1230, 105 S.Ct. 1231, 84 L.Ed.2d 368 (1985). That decision will not be disturbed by a reviewing court unless it is shown to have been an abuse of discretion. We have already decided that Ms. Jeffein possessed training and experience requisite to be an expert and also that her lack of certification did not disqualify her from being an expert. It follows that the trial judge in this case did not abuse his discretion when he accepted Ms. Jeffein as an expert witness.
JUDGMENTS AFFIRMED.
COSTS TO BE PAID BY APPELLANT.
Disposition
JUDGMENTS AFFIRMED. COSTS TO BE PAID BY APPELLANT.
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