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Blanks v. State

Court of Special Appeals of Maryland

June 2, 2016

RICHARD L. BLANKS
v.
STATE OF MARYLAND

          Eyler, Deborah S., Woodward, Berger, JJ.

          OPINION

          Eyler, Deborah S., J.

         This case raises the question whether the Sixth Amendment right to confront witnesses, as interpreted by the Supreme Court in Crawford v. Washington, 541 U.S. 36 (2004), applies in a probation revocation hearing. We hold that it does not. We further hold that the right to confront witnesses as protected by the Due Process Clause of the Fourteenth Amendment does apply and was satisfied in this case.

         On November 14, 2011, in the Circuit Court for Dorchester County, Richard Blanks, the appellant, entered an Alford plea to a charge of robbery.[1] The court sentenced him to 15 years' incarceration, with all but 279 days suspended, and imposed a 5-year period of supervised probation.

         As relevant here, over two years later, on March 20, 2014, Blanks admitted to having violated his probation by possessing drug paraphernalia (a crime for which he had been charged and convicted in the District Court). His probation was revoked and he was sentenced to serve his suspended sentence of 14 years and 86 days, [2] with all but the 218 days (time served) suspended. The court imposed a new five-year term of probation. The probation order required Blanks to comply with "All Standard Conditions, " which included reporting "as directed" to his supervising parole and probation agent (condition 1) and not using any controlled dangerous substances (condition 8). Under the "Special Conditions" section of the probation order, Blanks was ordered to "[t]otally abstain from alcohol, illegal substances, and abusive use of any prescription drug" (condition 16).

         Travis Knapp, an agent with the Maryland Division of Parole and Probation ("P&P"), was assigned to supervise Blanks's probation. He directed Blanks to report to the Cambridge P&P Office for a face-to-face meeting twice a week and, in addition, to either call or use a kiosk machine to report once per week. Blanks was required to submit to drug testing twice a week and was referred to an addictions counseling program.

         On January 27, 2015, during an in-person visit at the P&P Office, Knapp directed Blanks to provide a urine sample for random drug testing. John Cannon, an agent assistant with P&P, watched Blanks urinate into a sampling container. Blanks closed the container and followed Cannon into his office. There, Blanks initialed an adhesive tamper-proof seal marked with a specimen number. Cannon placed the seal on the top of the lid of the sampling container and directed Blanks to press the seal tightly around the edges of the lid. Cannon held open a plastic bag and Blanks placed the sealed container inside the bag.

         Cannon completed a chain of custody form for the sample. He verified that the form included the same specimen number as the seal on the container. Blanks and Cannon both signed and dated the chain of custody form. Cannon put the chain of custody form in the plastic bag with the sampling container and sealed the bag. Cannon dropped the plastic bag in a UPS drop box for delivery to Phamatech Inc. ("Phamatech"), a laboratory in San Diego, California.

         Six days later, on February 3, 2015, Knapp received a report from Phamatech stating that Blanks's January 27, 2015 urine sample had tested positive for the presence of marijuana. The next day, Knapp requested that a warrant be issued for Blanks's arrest for violation of conditions 8 and 16 of his probation pertaining to the use of drugs or alcohol.

         On February 11, 2015, Blanks called Knapp and asked him why there was an active warrant for his arrest. Knapp advised Blanks of the positive urinalysis result. He directed Blanks to come to the P&P Office that day or the following day, February 12, 2015. Blanks asked Knapp if "it would be . . . an additional violation" if he did not come in. Knapp replied that it would be. Blanks did not report to the P&P Office that day or the next day. He eventually turned himself in on February 18, 2015. The next day, Knapp filed in the circuit court a "Supplemental Report" adding a charge for violating condition 1, alleging that Blanks failed to report as directed on February 12, 2015.

         On May 21, 2015, the circuit court held a probation revocation hearing. The State called three witnesses: Knapp, Cannon, and Ken Kodama, Phamatech's laboratory director. Knapp and Cannon testified about the facts as we have recounted them. During Cannon's testimony, the State introduced into evidence the chain of custody form. In his case, Blanks recalled Knapp.

         Kodama testified that he holds a B.S. degree and, at the time of the hearing, had worked in the field of toxicology for twenty-nine years and had been the director of the laboratory at Phamatech for thirteen years. Without objection, he was accepted by the court as an expert in toxicology and in urinalysis testing for the presence of controlled dangerous substances ("CDS"). Kodama explained that Blanks's urine was twice screened for marijuana using the enzyme multiple immunoassay technique ("EMIT"). It tested positive both times. It then was retested using the gas chromatograph-mass spectrometry ("GCMS") technique, which also yielded a positive result. Over Blanks's objection, a February 2, 2015 Phamatech report ("Exhibit 2") reflecting the EMIT urinalysis test results, and including a certification of accuracy for the two EMIT tests and the GCMS test, signed by Kodama, was admitted into evidence.

         At the conclusion of the hearing, the court found that Blanks had violated his probation by 1) failing to report to Knapp at the P&P Office by the close of business on February 12, 2015, and 2) using marijuana. The court revoked Blanks's probation and ordered him to serve the remaining portion of his suspended sentence – 13 years, 7 months, and 20 days – with the commencement date of his sentence backdated to February 18, 2015, to give him credit for time served.

         Blanks filed an application for leave to appeal, which this Court granted by order of September 8, 2015. He presents two questions for review, which we have rephrased as follows:

I. Did the circuit court violate Blanks's confrontation rights by admitting Exhibit 2 into evidence?
II. Did the circuit court err by finding that Blanks violated his probation by failing to report to his probation agent by the close of business on February 12, 2015, as directed?

         DISCUSSION

         I.

         Admission of Exhibit 2

         (a)

         Exhibit 2 is a one-page laboratory report. Its header gives Phamatech's name and address. Below the header is a section with the following information: the "Agent/Monitor" (Knapp); the "Agency" (P&P); the "Collection Site" (Off 61)[3]; the "Division Number" (0170042A); the "Client" (Maryland P&P – Cambridge Field Office); and the "Collector" (Cannon). It is apparent that this information was drawn from the chain of custody form Cannon prepared.

         The next section of Exhibit 2 is titled "Sample Information." It includes Blanks's name, sex, and SID number; the "Specimen ID" assigned to his urine sample by Phamatech; the ID number assigned to the "Lab Sample" drawn from his urine sample; the type of sample (i.e., urine); the date and time the urine sample was collected at the P&P Office; the date and time the urine sample was received by Phamatech; and the date and time the Phamatech report was issued.

         The test results for the sample are set out in a table in Exhibit 2. The column labeled "Test" shows that Blanks's urine sample was subjected to an "EMIT SCREEN" for benzodiazepines, cocaine, opiates, and marijuana; a creatinine levels test; and a "MARIJUANA EMIT RE-SCREEN." The "Result" column reflects "POSITIVE"

          results for the two EMIT marijuana tests, negative results for the EMIT for the other drugs, and an "ABNORMAL" creatinine level.[4] A column labeled "Quantitation"[5] is blank for the marijuana tests, as are columns labeled "Screen Limit" and "GCMS Limit."

         The bottom section of Exhibit 2, entitled "CERTIFICATION OF ANALYSIS, " reads:

This is to certify that Phamatech to include its facilities, personnel, and procedures, is certified by the Maryland Department of Health and Mental Hygiene – Office of Health Care Quality (DHMH-OHCQ) and has been approved by the Maryland Department of Public Safety and Correctional Services to perform laboratory tests.
The undersigned chemist or analyst certifies that he or she is qualified, under standards approved by [DHMH-OHCQ], to perform the laboratory test. The undersigned certifies that the above-named donor's specimen was received by the undersigned and was properly tested by him or her under procedures and equipment approved by the [DHMH-OHCQ]. The undersigned further certifies that the procedures of the laboratory are reliable.
The undersign [sic] certifies that a positive laboratory test indicated above and confirmed by GC/MS indicates that the above named donor used a controlled dangerous substance[.]

The certification was signed by Kodama on February 2, 2015.

         At the probation revocation hearing, Kodama testified that he oversees the Phamatech laboratory, which handles approximately 4, 000 urine samples each day. He supervises the entire laboratory and reviews every positive test result. (Negative test results are not reviewed.) Urine samples are processed and analyzed at Phamatech using an "assembly line" system, with different employees in different divisions performing the individual steps. Each urine sample is received in the laboratory, logged into the computer, and cross-checked to ensure that the sample and the chain of custody form both bear the same specimen number and that the seal on the sample has not been broken.[6] Phamatech assigns its own unique identifier to each sample.

         The testing begins with a lab technician breaking the seal, extracting a small amount of urine from the specimen container, and transferring it to a test tube labeled with a barcode bearing Phamatech's unique identifier. The remainder of the sample is placed in frozen storage. Another lab technician puts the test tube in a machine known as an analyzer. The actual EMIT testing is automated, i.e., is performed by the analyzer, not by a person. The analyzer prints out data from the test. If the initial test result is positive, another small amount of urine is extracted from the specimen container and a second, confirmatory EMIT test is performed on it. Between each sampling test, the analyzer goes through an automated wash cycle that uses three solvents to prevent cross-contamination. And between each batch of samples, control samples are run through the analyzer to ensure that it has been properly calibrated.

         Kodama testified that a specimen from Blanks's urine sample was first tested in the analyzer using the EMIT test for benzodiazepines, cocaine, opiates, and marijuana. That test is the "standard in the forensic drug testing business." The EMIT test produced a "positive" finding for the presence of marijuana (and negative for the other substances). A second EMIT test was performed and also produced a positive test result for marijuana. After the two positive EMIT test results for marijuana, another small amount of urine was extracted from Blanks's specimen container and was tested for marijuana using GCMS.[7] Kodama "pulled off the data" for the results of the "marijuana confirmation test from the [GCMS] analyzer" and reviewed them. He then certified that the test results were positive for the presence of marijuana.

         At the conclusion of Kodama's testimony, the State moved for the admission of Exhibit 2. Blanks's attorney objected, stating:

[DEFENSE COUNSEL]: [T]he information [on Exhibit 2 in the "Sample Information" section] is information that someone else imprinted into this sample[;] that's not a Pharmatech [sic] record about the sample. I would object to that based on hearsay.
For the information [on Exhibit 2 in the "Test" section, "] I would object based on confrontation rights and chain of custody. We know and we have a fair amount of testimony about what went on to get the sample in the box. That was a pretty clear step by step process. Then about Mr. Blanks [sic] specific sample we know virtually nothing else except Mr. Kodama received a printout that had this information on it that he interpreted.
THE COURT: Well, that's not exactly true. You've got barcoding and numbers all along the way to make sure that the sample that purports to be Mr. Blanks' [sample] is the one that's being reviewed by the scientist.
[DEFENSE COUNSEL]: That other people added on to the sample, that other people inputted into the system. That other – you know, he testified about the general procedure. He didn't testify about [what] someone ...

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