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09/26/90 ROBERT BELTON v. UNITED STATES

September 26, 1990

ROBERT BELTON, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; Hon. Iraline Green Barnes, Trial Judge

Rogers, Chief Judge, and Steadman and Schwelb, Associate Judges.

The opinion of the court was delivered by: Steadman

Appellant, convicted of a drug offense, raises on appeal a novel issue with respect to the statutory provision authorizing the government to introduce a chemist's drug analysis report. D.C. Code § 33-556 (1988). *fn1 He argues that because the government failed to provide him with a copy of the report of a chemical analysis of the drugs at least five days before trial, as required by that statute, the trial court erred in admitting the report into evidence. We conclude that although the government failed to comply with the statute, appellant suffered no prejudice mandating exclusion of the report. Accordingly, we affirm.

I

D.C. Code § 33-556 [hereinafter "section 33-556"], easing a formalistic evidentiary requirement in drug cases, provides as follows:

In a proceeding for a violation of this chapter, the official report of chain of custody and of analysis of a controlled substance performed by a chemist charged with an official duty to perform such analysis, when attested to by that chemist and by the officer having legal custody of the report and accompanied by a certificate under seal that the officer has legal custody, shall be admissible in evidence as evidence of the facts stated therein and the results of that analysis. A copy of the certificate must be furnished upon demand by the defendant or his or her attorney in accordance with the rules of the Superior Court of the District of Columbia or, if no demand is made, no later than 5 days prior to trial. In the event that the defendant or his or her attorney subpoenas the chemist for examination, the subpoena shall be without fee or cost and the examination shall be as on cross-examination.

Here, appellant's attorney received the chemist's report, along with the certificate of compliance mandated by section 33-556, on Monday, October 31. Trial began on Thursday, November 3. When, on the second day of trial, the government attempted to introduce the report into evidence, appellant objected on the ground that the government had failed to comply with the advance notice provisions of section 33-556. The government responded that it had mailed the chemist's report on Thursday, October 27, a week before trial, *fn2 and that accordingly it had complied with the provisions of section 33-556.

The government's analysis, however, ignores the time computation dictates of Rule 45 of the Superior Court Rules of Criminal Procedure. In pertinent part, Rule 45(a) provides:

In computing any period of time the day of the act or event from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included . . . . When a period of time prescribed or allowed is less than eleven (11) days, intermediate Saturdays, Sundays and legal holidays shall be excluded in the computation.

Super. Ct. Crim. R. 45(a) (1989). Because the government in this case sent appellant a copy of the chemist's report and accompanying certificate *fn3 by mail, the provisions of Rule 45(e) also govern. Rule 45(e) provides:

Whenever a party has the right or is required to do an act within a prescribed period after the service of a notice or other paper upon him and the notice or other paper is served upon him by mail, 3 days shall be added to the prescribed period.

Super. Ct. Crim. R. 45(e) (1989). *fn4

Under these time computation rules, a copy of the chemist's report was not "furnished" to appellant five days before trial. Under Rule 45(a), the day "from which the designated period of time begins to run" -- either the first day of trial or the day the notice was mailed -- is not included in the five-day period. *fn5 Because section 33-556 provides for fewer than eleven days' notice, Saturday, October 29, and Sunday, October 30, are also excluded. Consequently, the fifth day before trial was Thursday, October 27. Moreover, because the government mailed the chemist's report, the three-day extension prescribed by Rule 45(e) applies. Thus, under the provisions of Rule 45, the government would have had to mail the chemist's report on Monday, October 24, to provide appellant with ...


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