Appeal from the Superior Court of the District of Columbia (M-5050-05) (Hon. James E. Boasberg, Trial Judge).
The opinion of the court was delivered by: Kramer, Associate Judge
Before GLICKMAN and KRAMER, Associate Judges, and NEBEKER, Senior Judge.
At the conclusion of a bench trial, appellant, Revena Callaham, was convicted of possession of cocaine, in violation of D.C. Code § 48--904.01 (d) (2001) and sentenced to 180 days imprisonment. The trial court suspended the term of imprisonment and placed Callaham on nine months of supervised probation. Callaham now seeks reversal of her conviction, claiming that the trial court erred when it permitted the government to introduce the analysis of the substance alleged to be cocaine through the report of a Drug Enforcement Agency (DEA) chemist who analyzed the substance, rather than requiring the government to call the chemist for direct and cross-examination. Based upon the Supreme Court's decision in Crawford v. Washington, 541 U.S. 36 (2004), and our decision in Thomas v. United States, 914 A.2d 1 (D.C. 2006), cert. denied, 128 S.Ct. 241 (2007), we conclude that Callaham's conviction must be reversed.
The facts underlying this matter are straightforward. On the date at issue, Metropolitan Police Department Officer Ramey Kyle was "observing narcotics activity in the area of Ninth and Kennedy Street, Northwest, from an observation post." Officer Kyle saw Callaham "approach another individual . . . in front of . . . Rocket Liquor Store . . . [at] 900 East Street Northwest." Callaham exchanged an undeterminable amount of U.S. currency with an individual in front of the store in return for a small object. Suspecting that he had just witnessed a drug transaction, Officer Kyle radioed a description of Callaham and the other individual to a nearby arrest team, which stopped and arrested Callaham. After the arrest, Officer Kyle identified her as the person who had made the suspected narcotics purchase in front of the liquor store.
Officer Reginald Jones testified that on the day of Callaham's arrest, he was working a plain clothes detail. At the time of the transaction observed by Officer Kyle, he was "about two blocks away in the alleyway." When he received the lookout broadcast by Officer Kyle, Officer Jones "travel[ed] eastbound . . . from the 900 block to the 700 block of Kennedy Street, Northwest," where he located Callaham. Officer Jones testified:
[W]e [were] traveling eastbound. We stopped her in the 700 block of Kennedy Street, I exited the vehicle, approached the defendant, asked her if she had anything illegal on her. She stated yes, reached into her bag and pulled out a clear zip with a white-rock substance in it that eventually tested positive for cocaine. She was placed under arrest.
Following Callaham's arrest, Officer Jones field-tested the evidence recovered from Callaham. The results were positive for cocaine.
Well before the date set for trial, Callaham's counsel filed "Defendant's Motion to Dismiss the Information, or Alternatively, Compel Discovery," in which he noted that he had requested extensive discovery related to DEA drug-testing protocols and the training and qualifications of the DEA chemist who performed the tests, as well as "[a]n opportunity to inspect the DEA Mid-Atlantic Laboratory, the conditions of the laboratory, the storage of evidence, the procedures and protocols used in testing, and the machines used to test alleged controlled substances." Counsel represented that the requested discovery was material to the preparation of the case, in that he "intend[ed] to challenge the accuracy of the DEA laboratory's test results in this case." Counsel also argued that he needed the material "[i]n order to prepare adequately for cross-examination of the DEA chemist at trial." He further asserted that Callaham's "rights under the Confrontation Clause of the Sixth Amendment would be violated if the government were allowed to admit the DEA-7 in lieu of testimony of the chemist without providing the requested materials." The motion apparently was denied.*fn1
Several weeks before trial, the government filed a "Notice of Compliance Pursuant to 48 D.C. Code § 905.06," which stated, inter alia, that it intended to offer "reports of chain of custody and of analysis of a controlled substance" as evidence at trial. The notice also detailed the procedure the defense should follow in the event it wished to subpoena the chemist for examination, pursuant to D.C. Code § 48-905.06 (2001).*fn2 Attached to the notice was a copy of a "Certified Report of Controlled Substance Analysis"*fn3 (chemist's report), wherein the analyzing chemist signed a boilerplate statement attesting to her qualifications and duties; her compliance with practices for ensuring that the proper chain of custody was maintained; the validity and reliability of the methods and the proper functioning of the equipment used in the assay; and the accuracy of her report. The report confirmed that the white rock-like substance recovered from appellant was cocaine.
On the trial date, the court inquired about preliminary matters before proceeding. Citing the Supreme Court's opinion in Crawford, defense counsel objected to the admission of the chemist's report in lieu of the live testimony of the chemist, asserting that such reports were "typical of testimonial evidence." The trial court overruled the objection, but stated: "You'll have obviously preserved the issue in the event [the Court of Appeals] rule[s] in your favor." During trial, when the government moved to admit the chemist's report into evidence, the defense renewed its objection, but the objection was again overruled. Officer Jones went on to testify that the number on the chemist's report matched the number on the document he had submitted to the DEA along with the evidence, and that the report stated the evidence contained 0.0494 grams of cocaine base.
Callaham now argues that the admission of the chemist's report in lieu of live testimony by its author was a violation of her Sixth Amendment confrontation right.*fn4 The government, on the other hand, argues that the chemist's report is a non-testimonial business record; that the provision of § 49-905.06 of the D.C. Code that grants the defendant the right to subpoena the chemist "for cross-examination at trial"satisfies the demands of the ...