Appeal from the Superior Court of the District of Columbia; Hon. John H. Suda, Trial Judge
Rogers, Chief Judge, Terry, Associate Judge, and Kern, Senior Judge. Opinion for the court by Associate Judge Terry. Dissenting opinion by Senior Judge Kern.
The opinion of the court was delivered by: Terry
Appellant was convicted of distributing cocaine, a controlled substance, in violation of D.C. Code § 33-541(a)(1) (1988). On appeal he contends that the trial court erred in admitting into evidence a Form DEA-7, a chemist's report identifying the alleged controlled substance as cocaine, because the government had failed to comply with the notice requirement of D.C. Code § 33-556 (1988). We agree and reverse.
In February 1989, about a month after appellant was indicted, his original attorney withdrew from the case because of an injury, and a new attorney was appointed. The appointment was recorded in the court file and on the docket. Several weeks later, in early April, when the prosecutor was preparing for trial, she sent a copy of the DEA-7 to appellant's former attorney, but not to the attorney who had been appointed in February. *fn1
The case came on for trial late in the day on May 3. After the jury was sworn, the trial was recessed, and on the following morning the court was engaged in other business; consequently, the testimony did not begin until after the luncheon recess on May 4. The government's evidence showed that appellant and his co-defendant, Irving McGee, sold a plastic bag of purported cocaine to an undercover police officer. Late in the afternoon, the prosecutor began to question an expert witness about two exhibits, one of which was the DEA-7 stating that the contents of the plastic bag consisted of 847 milligrams of cocaine base. Appellant's counsel objected on the ground that he had not received a copy of the DEA-7 prior to trial, contrary to D.C. Code § 33-556, which requires that a copy of the chemist's report be provided to the defense at least five days before trial. *fn2 When the DEA-7 was marked as Exhibit 9, appellant's counsel asked for a bench conference at which he told the court, "I have not seen Government's Exhibit Number 9." A short time later, after counsel for the co-defendant had completed his cross-examination of the expert witness, appellant's counsel asked the court for permission to defer his cross-examination of the same witness until the next morning because "I have not had an opportunity to look at the Jencks material." *fn3 That request was denied. Counsel then cross-examined the expert about the handling of suspected drugs after they came into police custody, particularly the drugs in this case, *fn4 and the trial recessed for the day.
The next morning, when the government moved Exhibit 9 into evidence, appellant's counsel objected to its admission on the ground that the government had failed to comply with D.C. Code § 33-556. The court overruled the objection, reasoning that the report had been sent in good faith to the previous attorney, who had an obligation as an officer of the court "to refer all matters in regard to her client to the appropriate attorney," *fn5 that defense counsel should have raised the matter before trial, and that counsel was aware of the laboratory analysis in any event, since he had been willing "to enter into a stipulation with the government so as to avoid the government having to put on an expert." The case then proceeded to verdict.
The purpose of the requirement in section 33-556 that the chemist's report be provided to the defense at least five days before trial "is to give sufficient notice to the defendant to decide whether to call the chemist for cross-examination . . . ." Giles v. District of Columbia, 548 A.2d 48, 50-51 (D.C. 1988) (citing legislative history); accord, Belton v. United States, 580 A.2d 1289, 1294 (D.C. 1990). But a failure to comply with this requirement does not compel exclusion of the report if it is otherwise admissible, nor is such a failure per se reversible error. Only when the breach of the five-day requirement results in prejudice to the defense is a new trial required. Id. at 1292-1293. We find such prejudice in this case, and thus we hold that appellant is entitled to reversal.
The government conceded at oral argument that an objection by counsel promptly upon receiving the DEA-7 at trial, coupled with a request for time to review it in order to determine whether to challenge it, is sufficient under Belton to establish prejudice. That is essentially what happened here. Even assuming that the DEA-7 was among the documents that counsel received on the morning of May 4 (see note 3, supra), his request that afternoon for an overnight recess before cross-examining the expert witness was prompt enough to preserve his claim of prejudice. The fact that the government sent the DEA-7 to the wrong attorney in good faith, as the court found, does not relieve the government of its responsibility for what happened. After all, attorneys often withdraw from cases for a variety of reasons, and new attorneys are retained or appointed to replace them. It is the government's obligation to make sure that its records are kept up to date and that it serves documents on the correct attorney. There is no "good faith" exception to the five-day notice requirement of section 33-556, and the trial court erred in concluding otherwise.
The government urges nevertheless that we should affirm the conviction because the defense had expressed a willingness to enter into a stipulation about the drugs. The trial court likewise relied heavily on the stipulation in overruling the objection to the admission of the DEA-7:
This record will reflect that the defendant Johnson wanted to enter into a stipulation with the government so as to avoid the government having to put on an expert. So the defendant Johnson certainly can't say that he was not aware of the presence of a laboratory analysis in this case.
Unfortunately, the court did not accurately recall the stipulation. At the very beginning of the trial, before the first witness testified, appellant's counsel said to the court:
I would like to put on the record that, on behalf of Mr. Johnson, we would be prepared to stipulate that whatever drugs are involved here, that it is a usable amount, and that . . . it's packaged in a certain ...