Before Farrell, Ruiz, and Glickman, Associate Judges.
The opinion of the court was delivered by: Farrell, Associate Judge
Appeals from the Superior Court of the District of Columbia
(Hon. Linda Kay Davis Hon. Judith Bartnoff, Trial Judges)
These consolidated appeals from drug convictions present the issue, among others, of whether the trial judge in each case erred in refusing to order disclosure of information under Super. Ct. Crim. R. 16 which the defendants claimed was relevant to their decision whether to call as a witness and cross-examine the chemist who analyzed the controlled substances in question. See D.C. Code § 33-556 (1998). Principally at issue is a Drug Enforcement Administration (DEA) Form 86, a worksheet which documents the tests performed by the chemist and the results thereof. The government told us at oral argument that it now routinely furnishes this document to the defense before trial, but it nonetheless defends the rulings of both judges that the DEA-86 is not discoverable under Rule 16. We disagree and hold that the DEA-86, to the extent it contains "results or reports of scientific tests or experiments" performed on the material alleged to be a controlled substance, is discoverable under Rule 16 (1)(D). In only one of these cases is the completed DEA-86 part of the record, and in neither case is the record sufficient for us to determine whether the nondisclosure of the document was harmless error. We therefore will remand the record in each case for findings by the trial judge relevant to our decision of whether the erroneous nondisclosure was prejudicial. See Davis v. United States, 564 A.2d 31, 42 (D.C. 1989) (en banc). Appellants' remaining arguments, including Jackson's contention that the trial court erroneously excluded testimony by his proffered expert on the feasibility of fingerprint identification, provide no basis for reversal.
A jury convicted appellant Jackson of possessing cocaine with intent to distribute, based on testimony by police officers that he threw away a plastic bag containing 23 ziplocks of cocaine while running from them, then returned to the area and, believing himself unobserved, searched for and retrieved the drugs with a flashlight. (The facts relevant to Jackson's conviction are discussed in greater detail in part II, infra.) Appellant Ford was convicted by a jury of distributing cocaine and by the court of possessing marijuana, based on testimony of an eyewitness police officer that Ford sold cocaine to a third person (stopped soon afterwards as she sought to throw the cocaine away) and had marijuana on his person. In both cases the government proved the identity and quantity of the controlled substance by introducing the DEA Form 7, setting forth the results of the chemical analysis, and a notarized "Report of Chain of Custody and Certification of Compliance Pursuant to 33 D.C. Code § 556."
Before trial in each case, the defense moved for production of additional DEA documents related to the chemical testing, and in each case the trial judge ruled that the documents were not discoverable under Rule 16. On appeal, the defendants primarily claim error in the refusal to order disclosure of the DEA-86, a document they claim was material - indeed, important - to their decision whether to exercise the right to call and question the chemist "as on cross-examination," conferred by D.C. Code § 33-556. We find merit in this claim.
Only in Jackson's case is the DEA-86 prepared for the drugs in question part of the record before us, although in Ford's case the defense attached a sample DEA-86, completed in another case, to the motion to compel production. The form is entitled "Forensic Chemist Worksheet" and on the front side generally mirrors the information listed on the DEA-7 - that is, it summarizes the analysis of each substance and has spaces to list its "active drug ingredient," the "quantitative results" or "concentration," the "am[oun]t of pure drug," and the "reserve." On the back side, unlike the DEA-7, it provides for a more detailed description of the tests performed, broken down to include, among other things, the "evidence sampling procedures," "qualitative" analysis, and "quantitation," with the latter differentiated by "method #" and various weight classifications.
Super. Ct. Crim. R. 16 (a)(1)(D) provides that, "[u]pon request of a defendant the prosecution shall permit the defendant to inspect and copy or photograph any results or reports of . . . scientific tests or experiments . . . which are within the possession . . . of the government . . . and which are material to the preparation of the defense or are intended for use by the government as evidence in chief at trial" (emphasis added). We have no doubt that the DEA-86 is a "report," and contains "results," of scientific tests done on controlled substances submitted to the DEA for analysis. Although the DEA-7 is "the official report . . . of analysis of a controlled substance" which the government routinely introduces at trial to comply with D.C. Code § 33-556, the DEA-86 is no less a report of the results of the chemical analyses in a format partly mirroring the DEA-7. The difference of note, as we explained, is that the back side of the form provides for more detailed description of the analyses (qualitative and quantitative) yielding the particular results. Setting forth as it does the detailed tests and results summarized in conclusory fashion by the DEA-7, the DEA-86 is discoverable under the broad command ("any results or reports") of Rule 16 (a)(1)(D). *fn1
However, since the DEA-86 is not "intended for use by the government as evidence in chief at trial," it must be "material to the preparation of the defense" to be discoverable. In general, our decisions have interpreted that requirement of Rule 16 liberally. It looks only to "the potential value of the evidence" to competent defense counsel, Wiggins v. United States, 386 A.2d 1171, 1174 (D.C. 1978), asking whether there exists "a reasonable indication that the requested evidence will either lead to other admissible evidence, assist the defendant in the preparation of witnesses or in corroborating testimony, or be useful as impeachment or rebuttal evidence." United States v. Curtis, 755 A.2d 1011, 1015 (D.C. 2000) ("The threshold showing of materiality is not a high one."). *fn2 Materiality is easily demonstrated in this case. Since § 33-556 commits to the defense the choice whether to call the chemist in a drug prosecution as a witness, see Howard v. United States, 473 A.2d 835 (D.C. 1984) (upholding the statute's constitutionality in permitting the government to prove the identity of the drug through admission of DEA reports), competent defense counsel - possessing only the DEA-7 - would necessarily find the DEA-86 of assistance in deciding whether subpoena of the chemist in an attempt to impeach his conclusions would be worth the candle. *fn3
Accordingly, appellants, were entitled to discovery of the DEA-86. The remaining question is whether the nondisclosure was prejudicial to them. See Kotteakos v. United States, 328 U.S. 750, 764-65 (1946). Only one of the DEA-86's prepared in the two cases is part of the record, and neither record is sufficient for us to decide whether any inconsistencies between those forms and the DEA-7's introduced at trial are sizeable enough to call in question the government's proof of the identity of the substances analyzed. The assistance of the trial court is therefore necessary. Under our decision in Davis v. United States, supra, we will remand for consideration of the issue by the trial judge in each case, who may make the necessary comparison and transmit her findings to us. See Davis, 564 A.2d at ...