RICHARD L. BLANKS
STATE OF MARYLAND
Deborah S., Woodward, Berger, JJ.
Deborah S., J.
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.
November 14, 2011, in the Circuit Court for Dorchester
County, Richard Blanks, the appellant, entered an
Alford plea to a charge of robbery. The court
sentenced him to 15 years' incarceration, with all but
279 days suspended, and imposed a 5-year period of supervised
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was revoked and he was sentenced to serve his suspended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,  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).
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
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.
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.
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.
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.
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
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.
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
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?
of Exhibit 2
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
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.
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.
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
results for the two EMIT marijuana tests, negative results
for the EMIT for the other drugs, and an "ABNORMAL"
creatinine level. A column labeled
"Quantitation" is blank for the marijuana tests, as
are columns labeled "Screen Limit" and "GCMS
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.
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. Phamatech assigns
its own unique identifier to each sample.
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.
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. 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
conclusion of Kodama's testimony, the State moved for the
admission of Exhibit 2. Blanks's attorney objected,
[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 ...