October 23, 2003
PAUL D. ELLIS, APPELLANT,
UNITED STATES, APPELLEE.
Appeal from the Superior Court of the District of Columbia (F-1508-01) (Hon. Natalia Combs Greene, Trial Judge)
Before Steadman, Farrell, and Glickman, Associate Judges.
Submitted October 14, 2003
Convicted by a jury of distribution of cocaine, appellant argues mainly that the Drug Enforcement Administration (DEA) chemist's report of analysis of the drugs should have been excluded as hearsay because the government did not present "foundational testimony" by a police officer (or anyone else) that the report was a business record kept in the regular course of the DEA's business. The court resolved this issue against appellant in Giles v. District of Colum bia, 548 A.2d 48 (D.C. 1988), where we held that so long as four statutory requirements are met, a chemist's report is admissible under D.C. Code § 33-556 (now D.C. Code § 48-905.06 (2001)) "without need for a testimonial foundation." Id. at 53. *fn1 In § 33-556, we reasoned, the legislature "in effect [had] extended admissibility of a chemist's report from the business records exception to a business records-type subset of the official records exception to the hearsay rule," which traditionally has permitted admission of a record "without supporting testimony" if attestation and certification requirements such as § 33-556 contains are met. Id. at 54.
Despite the clear teaching of Giles, appellant relies on language in Brown v. United States, 627 A.2d 499 (D.C. 1993), which appears to read the statute as imposing both the admissibility requirements set forth in Giles and a requirement of foundational testimony. See id. at 506 ("In addition [to the four prerequisites listed in Giles], since the [chemist's] report is hearsay, there must be evidence during the government's case in chief which establishes" -- "typically . . . through foundational testimony" -- "the applicability of the 'business record' exception to the hearsay rule," citing Giles, 548 A.2d at 53). *fn2 This language was dictum in Brown, in which the issue the court actually decided was whether the defendant had a constitutional right "to cross-examine the chemist during the government's case in chief," 627 A.2d at 506, rather than -- as the statute provides -- in his own case by subpoenaing the chemist and questioning him "as on cross-examination." Section 48-905.06. *fn3 Moreover, the court obviously did not intend to deviate from Giles's teaching, given that its discussion of the statutory requirements purported to track that case's analysis. In all events, because Giles was decided before Brown it is Giles, and not Brown, that is binding precedent. See Thomas v. United States, 731 A.2d 415, 420 n.6 (D.C. 1999) ("Where a division of this court fails to adhere to earlier controlling authority, we are required to follow the earlier decision rather than the later one") (citing cases).
The four requirements set forth in Giles were met in this case, and appellant does not argue otherwise. Accordingly, there was no error in the admission of the chemist's report. *fn4