Appeal from the Superior Court of the District of Columbia Criminal Division ( F-5011-02) (Hon. Rafael Diaz, Trial Judge) .
The opinion of the court was delivered by: Glickman, Associate Judge
Before REID and GLICKMAN, Associate Judges, and TERRY, Senior Judge.*fn1
The Sixth Amendment to the Constitution guarantees the accused in a criminal prosecution the right to be confronted with the witnesses against him. The Confrontation Clause makes no exception for expert witnesses. In this appeal from a conviction for distributing cocaine, we hold that the Clause was violated when the prosecution introduced a Drug Enforcement Administration chemist's written expert testimony against appellant without calling the chemist to appear and testify in person.
The chemist's written statement was offered in evidence at appellant's trial pursuant to D.C. Code § 48-905.06 (2001), and its admission conformed to the then-prevailing understanding of the Confrontation Clause and the statute. See Howard v. United States, 473 A.2d 835 (1984). After appellant's trial, however, the Supreme Court dramatically transformed Confrontation Clause jurisprudence in Crawford v. Washington, 541 U.S. 36 (2004). Fidelity to Crawford obliges us to recognize that Howard has been superseded. Although we do not hold D.C. Code § 48-905.06 unconstitutional in light of Crawford, we are obliged to re-interpret the statute so as to preserve its constitutionality. As we now construe § 48-905.06, it still authorizes the government to introduce a chemist's report without calling the chemist in its case-in-chief, but only so long as the record shows a valid waiver by the defendant of his confrontation right. Absent a valid waiver, which usually must be express but under some circumstances may be inferable from a defendant's failure to request the government to produce the author of the report, the defendant enjoys a Sixth Amendment right to be confronted with the chemist in person.
Appellant does not gain a new trial by virtue of our holding. Because appellant did not make a Confrontation Clause objection at trial, his invocation of the Clause on appeal is subject to the rigors of plain error review. See Super. Ct. Crim. R. 52 (b). His claim does not survive this scrutiny.
While we find error that is (now) plain and that affected appellant's substantial rights, we cannot conclude that the error seriously affected the fairness, integrity or public reputation of the judicial proceeding. For that reason, and because we find no merit in appellant's other claims of error, we affirm his conviction.
Appellant was arrested late on the evening of August 2, 2002, in a police "buy-and-bust" operation in the Dupont Circle area of Washington, D.C. According to the government's evidence at trial, undercover Officer Jerome McClinton approached appellant and asked him if he had any "20s." In response, appellant displayed several small ziplock bags, each of which contained a white, rocky substance. Officer McClinton took two of the bags out of appellant's hand and gave him twenty dollars in prerecorded police funds. The officer then walked away to meet Officer Stephanie Garner, who had watched the transaction from a nearby unmarked car. Officer Garner received the two ziplocks from Officer McClinton, field-tested their contents, and obtained a positive reaction signaling the probable presence of cocaine. Meanwhile, Officer McClinton broadcast a lookout for appellant.*fn2
The police looked for appellant for about half an hour before Officer McClinton spotted him again in the vicinity of Dupont Circle and pointed him out to two officers on the arrest team. Upon being confronted by those officers, appellant tried to run away. There ensued a brief chase, which ended when the officers found appellant hiding under a car in a nearby alley. Appellant closely matched the lookout description,*fn3 and Officer McClinton drove by and confirmed that he was the right suspect. The police found no marked money or drugs in appellant's possession, though they did recover cash totaling $194.80.
After appellant was taken into custody, Officer Garner returned to the Third District police station, where she put the two ziplocks given to her by Officer McClinton in a tamper-proof, heat-sealed envelope. Officer Garner deposited this envelope in a lockbox for delivery to a Drug Enforcement Administration (DEA) laboratory, where a forensic chemist would be assigned to analyze the contents of the ziplocks and report the results in writing for use at appellant's trial.
Following his arrest, appellant was indicted on one count of distributing a controlled substance, cocaine, in violation of D.C. Code § 48-904.01 (a)(1) (2001). Several months before trial, the government served on appellant's counsel a "Notice of Compliance Pursuant to 48 D.C. Code § 905.06," together with a DEA chemist's report concerning the contents of the ziplocks received from Officer Garner. The Notice informed appellant that the government intended to offer the report in evidence against him, and it outlined the procedures to be followed if appellant elected to subpoena the DEA chemist for examination at trial. "Pursuant to a long-standing arrangement," the Notice advised, "chemists under subpoena for a particular day are available on call and, because they 5 must come to court from Largo, Maryland, require two hours notice to arrive in the courtroom."
Appellant did not subpoena the chemist, and at trial the government offered the chemist's report in evidence in its case-in-chief without calling the chemist to testify in person.*fn4 The report consisted of a "Certified Report of Controlled Substance Analysis," which reported the chemist's findings; a backup worksheet containing the chemist's handwritten notes on the analysis; and a "Report of Drug Property Collected, Purchased or Seized" signed by Officer Garner and DEA personnel, which recorded the chain of custody of the two ziplocks from the Metropolitan Police Department to the DEA.*fn5 In the primary document, the Certified Report of Controlled Substance Analysis, the chemist reported her conclusion that the white rocky substance in the two ziplock bags had a net weight of .15 grams and was 79% cocaine base.*fn6 In addition, for the express purpose of complying with D.C. Code § 48-905.06, the Certified Report included the following unsworn, pre-printed "boiler-plate" statement signed by the chemist:
I attest and certify that I am a trained chemist employed by the United States Department of Justice, Drug Enforcement Administration, that I am charged with an official duty to perform analyses of suspected controlled substances, and that I have legal custody of this report.
All suspected controlled substance containers received by the Drug Enforcement Administration chemists bear unique Drug Enforcement Administration laboratory numbers. When I received the container(s) bearing the laboratory number(s) set out above, I inspected the container(s) and verified that a sealed condition existed and then properly analyzed the contents for the presence of controlled substances by methods which are reliable and relevant to the identification of a controlled substance which includes procedures generally accepted in the forensic science community. These methods employed chemical reagents and/or analytical instruments which were free of contamination and were operating properly.
The analyses that I conducted were accomplished while safeguarding the chain of custody of the substances being analyzed. The results of my analyses are accurately set forth on this official report. After I completed my analyses, I placed the original container(s) and contents (except for the substance(s) consumed or those removed for other purposes) into a separate container which I then sealed in such a manner that any tampering would be readily evident. In the case of evidence submitted by the Metropolitan Police for the District of Columbia (MPDC), the officially sealed container bearing the above laboratory number(s) was returned to the evidence vault maintained by the MPDC for proper storage.
Appellant's counsel objected to the admission of the DEA chemist's report solely on the ground that the government had not "laid the proper foundation." The prosecutor responded that no foundation was necessary because the documents were "self-authenticating" and properly admitted "as long as we filed a Notice of Compliance, which we did."*fn7 Appellant's counsel voiced no 7 additional objection to the chemist's report, and it was admitted in evidence.
Appellant did not challenge the accuracy of the chemist's report. His defense was based on a claim of mistaken identification, i.e., appellant claimed that he was not the person who sold the two ziplocks to Officer McClinton. The jury rejected this defense and found appellant guilty as charged.
Appellant now contends that his conviction must be overturned because the admission in evidence of the DEA chemist's report in the absence of live testimony from the chemist who wrote it violated his Sixth Amendment "right . . . to be confronted with the witnesses against him . . . ." U.S. CONST. amend. VI. Appellant grounds this claim on Crawford v. Washington, 541 U.S. 36 (2004), which effected major changes in Confrontation Clause jurisprudence. The Supreme Court decided Crawford nine months after appellant's trial. Nonetheless, because appellant did not raise a Confrontation Clause objection at trial, we deem his claim to be subject to the strictures of "plain error" review. See Johnson v. United States, 520 U.S. 461, 466-67 (1997); Marquez v. United States, 903 A.2d 815, 817 (D.C. 2006). Under the test for plain error, appellant must show (1) that the admission of the chemist's report was "error," (2) that the error is "plain," and (3) that it affected appellant's "substantial rights." Johnson, 520 U.S. at 467 (quoting United States v. Olano, 507 U.S. 725, 732 (1993)). "If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings." Id. (internal quotation marks and citations omitted). We consider each of these four conditions in turn.*fn8
A. Did the Admission of the Chemist's Report Violate the Confrontation Clause?
In offering the DEA chemist's report in evidence at appellant's trial without calling the chemist to testify, the prosecution relied on a statute enacted twenty-five years ago for the purpose of "reliev[ing] . . . chemist[s] responsible for analyzing controlled substances from the necessity of appearing at trial" when the chain of custody and the results of the analysis "are not in dispute." Council of the District of Columbia, Committee on the Judiciary, Report on Bill 4-123, "D.C. Uniform Controlled Substances Act of 1981," at 37 (Apr. 8, 1981). To achieve that purpose, the statute, D.C. Code § 48-905.06 (formerly D.C. Code § 33-556), 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 ...