Before Schwelb, Ruiz, and Washington, Associate Judges.
The opinion of the court was delivered by: Washington, Associate Judge
Appeals from the Superior Court of the District of Columbia (Hon. Rhonda Reid-Winston, Trial Judge)
Opinion for the court by Associate Judge Washington.
Concurring opinion by Associate Judge Schwelb at p. .
The issue on appeal is whether the trial court erred in dismissing appellees' cases as a sanction for appellant's failure to comply with the court's order to provide certain discovery ordered pursuant to R. 16 of the Super. Ct. R. of Crim. Procedure. For the following reasons, we reverse and remand.
On August 15, 1997, appellees Nathaniel Curtis and Adrian Price were arrested after having been observed in an apparent illegal drug transaction in which Price allegedly sold heroin to Curtis. One small, pink ziplock bag containing a white substance that field tested positive for heroin was recovered from Curtis. Forty-two pink ziplock baggies and seven yellow ziplock baggies of suspected heroin were also recovered from the "stash" area from which Price had been seen retrieving the packet he sold to Curtis. One hundred ninety-eight dollars was also recovered from Price. Price was indicted for distributing, and possessing with intent to distribute, heroin within 1,000 feet of an elementary school, *fn1 while Curtis was indicted for possessing heroin. *fn2
On September 19, 1997, the government gave Curtis and Price a discovery packet which contained materials customarily provided before trial in narcotics cases. *fn3 On February 20, 1998, and March 16, 1998, the government filed with the court and served on Curtis and Price a Report of Chain of Custody and Certification of Compliance ("Certificate of Compliance") pursuant to D.C. Code § 33-556, *fn4 attaching the completed DEA-7 applicable to the evidence associated with each lab number, as well as the "Official Report of Chain of Custody and Certification of Compliance Pursuant to 33 D.C. Code Section 556." The notices, as permitted by D.C. Code § 33-556, indicated that the government intended to offer into evidence the chemists' reports relating to the chain of custody and analysis of the controlled substances seized in this case.
Curtis and Price sought additional discovery concerning the analyses done by the DEA Lab chemists in this case, as well as information concerning the operation of the DEA Lab in general. *fn5 Curtis and Price specifically requested certain documents relating to maintenance and repair of instruments used, as well as reports, training materials, and written protocols and procedures relating to the testing of controlled substances that were generated or in use from the time the DEA Lab received the evidence in this case to the time when the analysis was completed. When the government refused to comply with their requests, Curtis and Price moved to compel discovery. *fn6 The government filed an opposition to the motion to compel but offered Curtis and Price the opportunity to view the curricula vitae of the DEA chemists who analyzed the drugs, as well as manuals regarding the maintenance, repair, and use of the machines the chemists may have used. The government further noted that it had offered Curtis and Price the opportunity to inspect the drugs. The government also agreed to provide Curtis and Price with a copy of the chemists' notes (DEA-86) and the underlying spectral analysis. The government, however, declined to produce materials relating to the maintenance of the instruments or the protocols and training materials used by the laboratory. The government also included an affidavit from Joseph P. Bono, the Director of the DEA Mid-Atlantic Laboratory for additional information responsive to the discovery requests. *fn7
On May 6, 1999, a hearing on the discovery motions was held, and the trial court granted Curtis and Price's motions to compel all of the DEA discovery requested and further ordered the government to produce the items by May 13, 1999. On May 13, 1999, the government filed a notice of filing of response to court ordered discovery in which it informed the trial court and counsel how it was responding to each item of court ordered discovery. Again, the government declined to provide any further material relating to the maintenance of the instruments or the protocols and training material used by the DEA Lab, but referred the court and counsel to the Bono Affidavit for additional information responsive to the discovery requests.
On May 20, 1999, Curtis and Price moved to dismiss the case as a sanction for the government's failure to comply with the trial court's discovery order. The trial court granted Curtis and Price's motions to dismiss for the government's failure to turn over the material which it ordered as being producible under Rule 16. The government promptly noted this appeal.
The government argues that the trial court erred in dismissing the indictment against Curtis and Price as a sanction for its failure to comply with the trial court's order to provide certain discovery. The government specifically contends that the discovery ordered was not authorized by Rule 16 because the materials sought were not shown to be material to the defense of Curtis and Price, went beyond the scope of what was required to summarize expert testimony, or were unduly burdensome to produce. This court reviews a trial court's Rule 16 discovery determination for abuse of discretion. See (James) Wiggins v. United States, 521 A.2d 1146, 1148 (D.C. 1987). Because Rule 16 is "substantially the same as its federal counterpart (Fed. R. ...