Blanks v. State

REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 1050

SEPTEMBER TERM, 2015

RICHARD L. BLANKS

v.

STATE OF MARYLAND

Eyler, Deborah S.,
Woodward,
Berger,

JJ.

Opinion by Eyler, Deborah S., J.

Filed: June 2, 2016
 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 His probation was revoked and he was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

1
North Carolina v. Alford, 400 U.S. 25 (1970).
2
Blanks notes that the court failed to credit him for 99 days served while awaiting
a prior violation of probation hearing in June of 2012. He does not challenge his
sentence as illegal in the instant appeal, however.
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.

2
 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

3
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?

4
 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”

3
We presume that “Off 61” is a numerical identifier for the Cambridge P&P
Office.

5
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

A creatinine test measures kidney function. See Dorland’s Illustrated Medical
4

Dictionary 429 (32nd ed. 2012). An abnormally low creatinine level can be evidence that
the donor of the urine sample consumed excessive amounts of water before submitting
the urine sample in an attempt to dilute the sample and avoid a positive drug test.

“Quantitation” is the measurement of the quantity of something. See Webster’s
5

Third New International Dictionary 1859 (2002).

6
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.

6
Phamatech rejects urine samples with torn seals or mismatched specimen
numbers.

7
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.

7
Kodama testified that the GCMS test takes about four hours to complete. The
urine sample is “taken through . . . an extraction process” that purifies and concentrates
certain compounds in the urine. After that process is finished, the sample is placed in the
“G.C.M.S. Analyzer” to test for the presence of a marijuana compound, which he
characterized as its “fingerprint pattern.”
Kodama stated that Phamatech issued “another report” reflecting the GCMS test
results and that he believed the State had that report as well. As mentioned, Exhibit 2
reflects that Blanks’s urine sample was subjected to an “EMIT SCREEN” and an “EMIT
RE-SCREEN.”

8
 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
specifically did to Mr. Blanks’ specific sample.

THE COURT: The law is clear that a supervisor can testify as to –

[DEFENSE COUNSEL]: The –

THE COURT: I understand you’re making an objection but I want you to
know the law is clear on that.

[DEFENSE COUNSEL]: I understand.

THE COURT: It would be highly impractical to be able to do otherwise.

[DEFENSE COUNSEL]: As far as confrontation rights, Your Honor,
there has been a lot of different developments and people are still
trying really to work out how [Crawford v. Washington] applies to
laboratory testing. That’s still in development. But I think at minimum
there should be someone who at least handled the sample. Didn’t just
get a printout of the test for confrontation purposes and interpreted
the results. And I’m not – for purposes of this hearing I’m not disputing
Mr. Kodama’s expertise in that area, but he’s not the one – the
confrontation is more than about just the data it’s how you get to the
data. And there is very little about Mr. Blanks’ specific sample and
people who actually handled the sample for this hearing. So I would
reserve – I know that under [State v. Fuller, 308 Md. 547 (1987)]
confrontation does have some application even to V.O.P.’s which is why
we are all here today. I would object to that result on that basis.

THE COURT: All right. Maybe this can be your test case. [Exhibit] 2 is
admitted.

(Emphasis added.) At the close of the hearing, defense counsel argued that the

evidence was legally insufficient to prove that Blanks had violated his probation by using

marijuana. He pointed out that Exhibit 2 has no information in the “Quantitation” or

9
“Screen Limit” columns for the marijuana tests, and Kodama did not testify about what

concentration of marijuana in the urine is necessary to produce a positive reading.

Defense counsel suggested that it was possible that Blanks merely inhaled “secondary

[marijuana] smoke.” He argued that “the simple fact of a positive with nothing more

does not show that Mr. Blanks willfully used marijuana in violation of probation.”

The court ruled as follows:

[T]he Court is impressed with the quality assurance connected with the
collection of the sample and the testing process and experienced Probation
Agent such as Mr. Cannon supervises the test. The protocol is in place. It
appeared to assure that there is no mixup regarding urine.
The testimony from [Kodama] indicates that they conduct a lab that
has a series of checks and balances to make sure there is not a false positive
or the samples are mixed up. He also indicates they have controls in place
that involve cleaning the machines. There are barcodes to make sure the
samples are consistent. And there is a retesting procedure if there is a
positive.
Given all the evidence that the Court has received the Court is
convinced by a preponderance of the evidence that Mr. Blanks did have
marijuana in his system therefore he was possessing marijuana in his
system and that that would be a violation of both [condition] 8 and
[condition] 16 which require him to totally abstain. And for those reasons
the Court is convinced that he has violated probation.

(b)

Relying upon Crawford v. Washington, Melendez-Diaz v. Massachusetts, 557 U.S.

305 (2009), and Bullcoming v. New Mexico, __ U.S. ___, 131 S.Ct. 2705 (2011), Blanks

contends the trial court erred by admitting Exhibit 2 because doing so violated his

confrontation rights under the Sixth Amendment to the federal constitution.8 He

8
Blanks also bases his argument on Article 21 of the Maryland Declaration of
Rights. The confrontation rights in Article 21 have been read “as generally providing the
(Continued…)
10
maintains that Kodama was a “surrogate or conduit witness for another person at

Phamatech who actually received and reviewed the results of the EMIT test and then

made the statements in the report that a sample of [Blanks]’s urine was subjected to a

Marijuana EMIT Screen.” According to Blanks, the out-of-court statements in Exhibit 2

are testimonial hearsay that was not admissible through Kodama, under controlling Sixth

Amendment case law. Consequently, the court erred by admitting Exhibit 2 and by

relying on the test results documented by Exhibit 2 to find that he violated his probation

by using marijuana.

The State responds that Blanks did not have a Sixth Amendment confrontation

right at his probation revocation hearing, and therefore Crawford and its progeny did not

apply. According to the State, Blanks had a right to confront witnesses at the probation

revocation hearing, but that right was grounded in the Due Process Clause of the

Fourteenth Amendment and “is not co-extensive with the Sixth Amendment

[confrontation] right.” The State maintains that the due process confrontation right was

not violated because Exhibit 2 was a business record, admissible under the hearsay

exception in Rule 5-803(b)(5); it contained information that Kodama relied upon in

forming his expert opinion, making it admissible under Rule 5-703; and, as the court

implicitly found, the information in Exhibit 2 was reliable and there was good cause to

admit it without additional live testimony.

(…continued)
same protection to defendants.” Derr v. State, 434 Md. 88, 103 (2013). Blanks does not
argue that Article 21 offers broader confrontation protections than the Sixth Amendment.

11
 In his reply brief, Blanks argues that, in State v. Fuller, 308 Md. at 547, the Court

of Appeals recognized that the Sixth Amendment right to confrontation applies in

probation revocation hearings in Maryland, and that remains the law today. He maintains

that even if that is not the case and only the due process confrontation right applies, the

court’s admission of Exhibit 2 violated that right.

(c)

The Sixth Amendment guarantees an array of rights to “the accused” “[i]n all

criminal prosecutions.” One such right is “to be confronted with the witnesses against

him.”

During the Ohio v. Roberts’s era of Sixth Amendment Confrontation Clause

jurisprudence, an out-of-court statement by an unavailable declarant was admissible

against the defendant in a criminal prosecution if the statement bore “adequate ‘indicia of

reliability.’” 448 U.S. 56, 66 (1980). Hearsay could meet that test if it came within a

“firmly rooted hearsay exception” or carried “particularized guarantees of

trustworthiness.” Id.

In Crawford v. Washington, the Supreme Court overruled Roberts, holding that,

unless the declarant of the out-of-court statement is unavailable and the defendant had a

prior opportunity to cross-examine him, it is a violation of the defendant’s Sixth

Amendment confrontation right to admit “testimonial” hearsay. 541 U.S. at 68. The

Court did not “articulate a comprehensive definition,” id. at 68 n.10, of “testimonial

hearsay” but suggested that it would include

12
 extrajudicial statements . . . contained in formalized testimonial materials,
such as affidavits, depositions, prior testimony, or confessions [and]
statements that were made under circumstances which would lead an
objective witness reasonably to believe that the statement would be
available for use at a later trial.

Id. at 51-52.

In subsequent cases, the Supreme Court has made plain that a forensic laboratory

report, such as Exhibit 2, is “testimonial” hearsay that must meet the Crawford standard

for admission in evidence in a trial in a criminal prosecution. See Melendez-Diaz, 557

U.S. at 308-11 (“‘certificates of analysis’ showing the results of the forensic analysis

performed” of a powdered substance determined to be cocaine were “testimonial” and

were improperly admitted at trial without the live testimony of the analysts); Bullcoming,

__ U.S. __, 131 S.Ct. at 2710, 2713 (a forensic laboratory report certifying that the

defendant’s blood contained a specified concentration of alcohol was not admissible

through the testimony of a laboratory analyst who had “not sign[ed] the certification or

personally perform[ed] or observe[d] the performance of the test reported in the

certification.”

A revocation of probation hearing is a civil proceeding, not a criminal prosecution.

In Morrissey v. Brewer, 408 U.S. 471, 480-82 (1972), the Supreme Court held that

because parole revocation proceedings are civil the rights afforded an accused under the

Sixth Amendment do not apply. A year later, in Gagnon v. Scarpelli, 411 U.S. 778, 786

(1973), the Court applied its holding in Morrissey to revocation of probation proceedings.

In the twelve years since Crawford was decided, ten federal courts of appeals have

addressed whether the Crawford standard for admissibility of testimonial hearsay applies

13
in a revocation of probation (or parole) proceeding. All ten courts have held that because

the rights guaranteed by the Sixth Amendment only apply to “criminal prosecutions,”

neither the Sixth Amendment right to confrontation nor the Crawford Court’s

interpretation of that right applies in such a proceeding. See United States v. Rondeau,

430 F.3d 44, 47 (1st Cir. 2005) (“Nothing in Crawford indicates that the Supreme Court

intended to extend the Confrontation Clause’s reach beyond the criminal prosecution

context”); United States v. Aspinall, 389 F.3d 332, 343 (2nd Cir. 2004) (“Nothing in

Crawford, which reviewed a criminal trial, purported to alter the standards set by

Morrissey/[Gagnon] or otherwise suggested that the Confrontation Clause principle

enunciated in Crawford is applicable to probation revocation proceedings”); United

States v. Lloyd, 566 F.3d 341, 343 (3rd Cir. 2009) (“The limited right to confrontation

[afforded in a revocation proceeding] stems from the Fifth Amendment’s Due Process

Clause, not from the Confrontation Clause of the Sixth Amendment.”); United States v.

Ferguson, 752 F.3d 613, 619 (4th Cir. 2014) (revocation of parole proceeding “does not

involve the Sixth Amendment”)9; United States v. Kirby, 418 F.3d 621, 627 (6th Cir.

9
In Ferguson, a laboratory tested a substance found in the possession of a parolee,
Ferguson, and issued a report stating that the substance was marijuana. The report listed
the name of an analyst. The report did not state on its face the type of test performed, the
analyst’s background or experience, “confidence intervals,” “the measurement
instruments used,” or whether a “proper chain of custody” was followed. 752 F.3d at 616.
At the parole revocation hearing, the government made no showing that the analyst was
unable to testify. The report was introduced during the testimony of a police officer who
had stopped Ferguson and confiscated the substance later identified as marijuana. The
court emphasized that Ferguson had been completely stripped of his confrontation rights
at the hearing. While recognizing that Ferguson did not possess a Sixth Amendment
confrontation right at his hearing, the court reasoned, based on Crawford, that the report’s
(Continued…)
14
2005) (Crawford does not apply to a revocation of probation proceeding because, by its

text, the Sixth Amendment does not apply outside of a criminal prosecution); United

States v. Kelley, 446 F.3d 688, 691 (7th Cir. 2006) (“Crawford changed nothing with

respect to [probation] revocation hearings” because the “limited confrontation right in

revocation proceedings was explicitly grounded in considerations of due process, not the

Sixth Amendment”); United States v. Ray, 530 F.3d 666, 668 (8th Cir. 2008) (Crawford

does not apply in the context of a revocation of supervised release proceeding); United

States v. Hall, 419 F.3d 980, 985 (9th Cir. 2005), cert denied, 546 U.S. 1080 (2005)

(Crawford does not apply in a revocation of probation proceeding where “due process

standard[s] [are] used to determine whether hearsay evidence” is admissible); Curtis v.

Chester, 626 F.3d 540, 544 (10th Cir. 2010) (Sixth Amendment right to confrontation

does not apply in parole revocation proceeding and “neither do any Supreme Court cases

dealing with it, specifically Crawford”); Ash v. Reilly, 431 F.3d 826, 829 (D.C. Cir. 2005)

(due process rights afforded to a parolee at a revocation proceeding emanate from the

Due Process Clause of the Fourteenth Amendment, not the Confrontation Clause of the

Sixth Amendment, thus making Crawford inapplicable in that setting). See also Reyes v.

State, 868 N.E.2d 438, 440 & n.1 (Ind. 2007) (holding that Crawford has no application

in a civil revocation of probation proceeding); State v. Carr, 167 P.3d 131, 134 (Ariz.

(…continued)
reliability could not be properly tested absent the crucible of cross-examination, and that
the circuit court had erred by admitting it.

15
App. 2007) (probation revocation proceeding is not “a stage of a criminal prosecution”

and thus does not implicate the Sixth Amendment).

(d)

In Morrissey, after holding that Sixth Amendment rights do not apply in a parole

revocation proceeding, the Supreme Court went on to decide whether “the requirements

of due process in general apply to parole revocations.” 408 U.S. at 481. In doing so, it

took into account the interests of the parolee and the State. “Revocation deprives an

individual, not of the absolute liberty to which every citizen is entitled, but only of the

conditional liberty properly dependent on observance of special parole restrictions.” Id.

at 480. Nevertheless, the parolee’s liberty interest “includes many of the core values of

unqualified liberty and its termination inflicts a ‘grievous loss’ on the parolee and often

on others.” Id. at 482. That liberty interest “is valuable and must be seen as within the

protection of the Fourteenth Amendment”; and “[i]ts termination calls for some orderly

process, however informal.” Id.

On the other hand, the Court observed, “[g]iven the previous conviction and the

proper imposition of conditions, the State has an overwhelming interest in being able to

return the individual to imprisonment without the burden of a new adversary criminal

trial if in fact he has failed to abide by the conditions of his parole.” Id. at 483. “Yet,

the State has no interest in revoking parole without some informal procedural

guarantees.” Id.

Assessment of the competing interests of the parties lead the Court to conclude

that a parolee faced with revocation is entitled to basic due process procedural

16
protections, including the opportunity for a revocation hearing that “must lead to a final

evaluation of any contested relevant facts and consideration of whether the facts as

determined warrant revocation.” Id. at 488. The “minimum requirements of due

process” include:

(a) written notice of the claimed violation of parole; (b) disclosure to the
parolee of evidence against him; (c) opportunity to be heard in person and
to present witnesses and documentary evidence; (d) the right to confront
and cross-examine adverse witnesses (unless the hearing officer
specifically finds good cause for not allowing confrontation); . . . and (f) a
written statement by the factfinders as to the evidence relied on and reasons
for revoking parole.

Id. at 489 (emphasis added). The procedures to be followed to implement these

minimum due process rights are “the responsibility of each State” to adopt, by legislation

or judicial decision. Id. at 488. The Court made clear that these minimum requirements

of due process are not on an equal footing with the procedural guarantees afforded by the

Sixth Amendment:

We emphasize that there is no thought to equate this
[hearing] stage of parole revocation to a criminal
prosecution in any sense. It is a narrow inquiry; the process
should be flexible enough to consider evidence including
letters, affidavits, and other material that would not be
admissible in a criminal trial.

Id. at 489 (emphasis added). As we have noted, in Gagnon the Supreme Court extended

its holding in Morrissey to probation revocation hearings.

Beginning with State v. Fuller, 308 Md. 547, and as fleshed out in Bailey v. State,

327 Md. 689 (1992), the Court of Appeals adopted a two-part test for the admissibility of

hearsay offered at a probation revocation proceeding that would be in keeping with the

17
limited confrontation right recognized in Morrissey/Gagnon. Although drawn from the

standard that once prevailed in criminal prosecutions under Ohio v. Roberts, the test

differs from that standard in significant respects. The hearsay evidence is “tested against

the formal rules of evidence to determine whether it fits any of the ‘firmly rooted’

exceptions to the hearsay rule.” Bailey, 327 Md. at 698. If so, it will be admitted. If not,

the court may admit it upon finding that “it is ‘reasonably reliable’ and . . . that there is

good cause for its admission.” Id. at 699 (citing Fuller, 308 Md. at 553) (emphasis

added). “[G]ood cause need not reach the high standard governing the admissibility of

hearsay evidence at criminal trials.” Fuller, 308 Md. at 553 n.5. “In determining

whether there is good cause to admit hearsay in a probation revocation hearing, it is

obvious that the most important factor is the reliability of the proffered hearsay evidence”

and “whenever the proffered hearsay evidence has substantial guarantees of

trustworthiness the hearsay is admissible without the need to establish any additional

good cause.” Bailey, 327 Md. at 699 (citing Egerstaffer v. Israel, 726 F.2d 1231, 1234-

35 (7th Cir. 1984)).

In Fuller, the Court of Appeals applied this two-part test to hold that the court in a

probation violation hearing erred by permitting a police officer to testify about out-of-

court statements made by witnesses during a criminal investigation. The investigation

pertained to a charge against the probationer, Fuller, for uttering a bad check to a car

dealership. The charge was placed on the stet docket, but the facts underlying it were the

basis for Fuller’s being charged with violating his probation in two cases. The Court

concluded that because the hearsay statements did not come within any recognized

18
exception to the hearsay rule and the court did not make a finding of “good cause for

disallowing confrontation” the statements were not admissible. 308 Md. at 554.

Five years later, in Bailey, the Court of Appeals held that a letter from the

probationer’s substance abuse treatment program stating that he had not completed the

program was admissible without the testimony of its author because the letter was

“sufficiently reliable to satisfy both evidentiary and constitutional requirements when

admitted for the limited purpose of showing that Bailey did not complete the [substance

abuse treatment program].” 327 Md. at 700. Noting that the “reliability” inquiry is “fact

specific,” the Court emphasized that a reliability finding is reviewed for abuse of

discretion. Id. Factors relevant to assessing reliability include “the presence of any

additional evidence which corroborates the proffered hearsay; the type of and centrality

of the issue that the hearsay is being offered to prove; and the source of the hearsay,

including the possibility of bias or motive to fabricate.” Id. With respect to the latter

factor, the Court noted that the “source of the proffered hearsay” could “bolster[] its

reliability.” Id. at 703.

The Court held that the letter was admissible as inherently reliable hearsay. It

emphasized that the substance of the letter was corroborated by Bailey’s own statement

to his probation agent; the condition Bailey was alleged to have violated was

“straightforward”; the letter was admitted to prove a simple, objective fact; and the

“source of the hearsay statement [was] a reliable one.” Id. at 704-05. Moreover, the

Court observed, “good cause to admit the letter was apparent from the record.” Id. at

705. This was so even though there had been no showing that the author of the letter was

19
unavailable. The Court opined that “the same reasons that an author of a business record

need not be shown to be unavailable (i.e., inconvenience, probable lack of recollection of

a routine business event, etc.)” supported a finding of good cause to admit the letter. Id.

at 706. The Court did not reach the question whether the letter qualified as a business

record under the business record exception to the rule against hearsay.10

(e)

We have no problem concluding, as all ten federal courts of appeals have

concluded, that the Sixth Amendment does not apply to probation revocation proceedings

and therefore the Confrontation Clause of the Sixth Amendment, as interpreted by the

Supreme Court in Crawford and its progeny, does not apply. That conclusion naturally

flows from the Morrissey/Gagnon holdings that probation revocation proceedings are

10
More recently, in Thompson v. State, 156 Md. App. 238 (2004), this Court
applied the two-part test in deciding whether the trial court erred in allowing the State to
introduce, at a revocation of probation proceeding, transcripts of the testimony of
witnesses at the probationer’s murder trial. Thompson had been acquitted of murder, but
the State had charged him with violating his probation based on the same underlying
facts. Specifically, at the probation revocation hearing, the State sought to prove, under
the lower preponderance of the evidence standard, that Thompson had violated his
probation by committing the murder.
On appeal from an order revoking Thompson’s probation, we vacated and
remanded for further proceedings. Under the first prong of the test, we held that the
transcripts were not admissible under the “prior testimony” hearsay exception, see Rule
5-804(b)(1), because the State had not made any showing that the witnesses were
unavailable. Id. at 250. Under the second prong, we held that the court did not make any
finding as to whether the transcripts were reasonably reliable and whether there was good
cause to dispense with live testimony. Accordingly, we remanded the case to the circuit
court to make the necessary findings. Id. at 252.

20
civil, and the Sixth Amendment only applies to criminal prosecutions. Nothing about

Crawford affected those holdings. 11

As noted, Blanks seizes upon language in Fuller to argue that, in Maryland, the

Sixth Amendment right to confront witnesses applies in probation revocation hearings.

In the opening paragraph in Fuller, the Court of Appeals stated, “We shall hold here that

a respondent in a probation revocation hearing enjoys the right of confrontation of

witnesses guaranteed to defendants in criminal proceedings, unless the State

demonstrates good cause for dispensing with confrontation, and the trial judge makes a

specific finding of good cause stated in the record of the revocation proceeding.” 308

Md. at 549. Most of the opinion is devoted to a discussion of Morrissey and Gagnon,

however, beginning with the statement, “The Due Process Clause of the Fourteenth

Amendment to the United States Constitution imposes procedural and substantive limits

on the revocation of the conditional liberty created by probation,” id., at 552, and

continuing that “[f]air process” in a probation revocation hearing includes “‘“the right to

confront and cross-examine adverse witnesses (unless the hearing officer specifically

finds good cause for not allowing confrontation).”’” Id. (quoting Gagnon, 411 U.S. at

786, in turn quoting Morrissey, 408 U.S. at 489) (emphasis supplied in Fuller).

Given the Fuller Court’s express reliance upon Morrissey and Gagnon, in which

the Supreme Court made plain that Sixth Amendment rights do not apply to revocation

11
Accordingly, Blanks’s reliance upon this Court’s decisions in Norton v. State,
217 Md. App. 388 (2014), and Malaska v. State, 216 Md. App. 492 (2014), both of which
apply the Crawford standard in criminal proceedings, is misplaced.

21
proceedings, and the Court’s application of the Morrissey/Gagnon holdings, it is not

reasonable to read Fuller for the proposition that the Sixth Amendment Confrontation

Clause applies to probation revocation hearings.

Five years later, in Bailey, the Court, citing Morrissey and Gagnon, stated that

“because probation revocation is not a stage of the criminal process, the full panoply of

rights due a defendant in a criminal prosecution is not required at a probation revocation

hearing.” 327 Md. at 698. “[A] probationer is entitled to due process at such a hearing,”

however, id., and

we recognized in [Fuller] that there is some right of confrontation, pursuant
to the Sixth Amendment . . . , which is guaranteed to a probationer at a
probation revocation hearing. The right of confrontation at a probation
revocation hearing differs, however, from the right of confrontation at a
criminal trial and some hearsay may be admitted in a revocation hearing.

Id. Like Fuller, we do not read Bailey as holding that the Sixth Amendment applies to

probation revocation hearings such that Crawford and its progeny would apply.12

Blanks suggests that even if the Sixth Amendment does not apply to probation

revocation proceedings, given that the Court of Appeals referenced it in Fuller and

Bailey, this Court should apply a heightened standard for admission of hearsay in such

12
We note that, in Hersch v. State, 317 Md. 200, 208 (1989), the Court of Appeals
observed that under the Due Process Clause of the Fourteenth Amendment a probationer
is entitled to several basic rights, including the right to confront witnesses; and that right,
although “not quite as broad as that afforded a defendant in a criminal proceeding,”
“remains a valuable and fundamental right.” The Court cited Fuller, but made no
mention of the Sixth Amendment.

22
proceedings that incorporates the heightened standard adopted by the Supreme Court in

Crawford. We disagree.

The holding in Crawford rests entirely upon the Supreme Court’s analysis of the

history underlying the Framers’ inclusion of the Confrontation Clause in the Sixth

Amendment and the purposes they sought to accomplish in doing so. That history and

those purposes related solely to the condemned practice of “civil-law examination,” by

which prosecutors used testimony obtained out of court at the trial of a criminal

defendant when the defendant could not confront and cross-examine the declarant to

challenge the testimony. Justice Scalia, writing for the Court, detailed how, before the

Revolution, the law of England was changed to adopt a confrontation right that did away

with “civil-law examination” in criminal prosecutions. The Confrontation Clause was

intended to protect the accused in a criminal prosecution in the same way.

The rationale underlying the Sixth Amendment Confrontation Clause is tied to

criminal prosecutions and has nothing to do with the use of hearsay evidence in civil

matters. The holdings in Morrissey and Gagnon were unchanged by Crawford, and there

is no reason to extend the Crawford analysis to probation violation proceedings that do

not concern an accused’s right to be tried and convicted only with the fair opportunity to

confront the witnesses against him by means of cross-examination.

23
 (f)

We turn to whether Exhibit 2 was properly introduced into evidence under the less

stringent due process confrontation standard for admitting hearsay in a probation

revocation proceeding.13

The State amply established the reliability of the test results set forth in Exhibit 2.

It presented live testimony from two witnesses – Cannon and Kodama – detailing the

collection and analysis of Blanks’s urine sample. Based on that testimony, the court

found that there were extensive checks and balances at the P&P Office and at Phamatech

to ensure that each urine sample was properly linked to its donor, to prevent cross-

contamination, and to prevent false positives.14 It further found that there was an

13
The State contends this issue is not preserved for review. We disagree. At the
hearing, Blanks’s lawyer objected to the admission of Exhibit 2 “based on confrontation
rights,” citing Fuller, which, as we have discussed, concerns the more limited
confrontation right afforded to probationers. The State does not dispute that Blanks had
confrontation rights at his probation revocation hearing that stem from the Due Process
Clause of the Fourteenth Amendment. His objection below adequately preserved the
question whether Exhibit 2 was admissible under the strict Crawford standard or under
the less stringent standard for admission of “reliable” hearsay under due process
principles.
14
In his reply brief, Blanks points out for the first time that the chain of custody
form includes a section at the bottom that, he asserts, should have been, but was not,
completed by a Phamatech employee. That section states that it is to be “INITIATED
BY COLLECTOR [i.e., P&P] AND COMPLETED BY LABORATORY [i.e.
Phamatech].” In this section, Cannon printed his name, signed his name, and specified
the date and time that he “released” the specimen bottle to UPS.
Below Cannon’s signature is a box labeled “RECEIVED AT LAB,” which has a
space for the “Accessioner” at the laboratory to print and sign his name and specify the
date that the specimen was received. To the right of that box is another box labeled
“Primary Specimen Bottle Seal Intact.” That box has two check boxes marked “Yes” and
“No, Enter Remark to Right.” The signature box and the box in which the laboratory was
(Continued…)
24
“impress[ive]” level of “quality assurance” surrounding the collection and analysis of

Blanks’s urine sample. Kodama’s testimony established that, although samples are

handled by numerous divisions at Phamatech, the barcode identifiers ensure that the

samples cannot be confused. Because the testing itself is automated and Kodama had

reviewed the data pulled from the machine that tested Blanks’s urine, his testimony that

the test results accurately reflected that there was marijuana present in Blanks’s urine was

sufficient to show that those test results were reliable. The reliability of the test results

also was bolstered because its source was a laboratory certified by the MDHMH-OHCQ

to perform urinalysis testing for P&P. See Bailey, 327 Md. at 703.

Kodama’s testimony also laid an adequate foundation for the admission of Exhibit

2 as a business record under Rule 5-803(b)(6). See Dep’t of Public Safety and Corr.

Servs. v. Cole, 342 Md. 12, 29 (1996) (proponent of record must establish through

testimony that record was made at or near time of act, that it was made by person with

(…continued)
to indicate whether the specimen’s tamper proof seal was intact both are blank on the
chain of custody form.
Blanks did not argue below that the chain of custody form was incomplete and that
that cast doubt on whether the seal on the specimen container was intact when the
specimen was received by Phamatech and, by extension, whether the lab results reported
on Exhibit 2 were reliable. Having failed to raise this issue in the circuit court, he has
waived it for appeal.
Even if the issue were not waived, it lacks merit. The chain of custody form
introduced into evidence by the State is a carbon copy. Its footer states: “COPY 2 –
COLLECTOR COPY – YELLOW.” The area to the right and left of the footer are
yellow. This is plainly the copy of the chain of custody form retained at the P&P Office,
not the copy that would have been sent to Phamatech for it to supplement and retain for
its records.

25
knowledge or from information transmitted by person with knowledge, that it was made

in and kept in course of regularly conducted business activity, and that it is regular

practice of business to make and keep records). The record was made within three days

of the tests being performed. Kodama, as director of the laboratory and the person who

reviewed the positive test result data from the analyzer machines, was “a person with

knowledge.” He testified that Phamatech analyzed about 4,000 urine samples each day

under contracts with P&P, the Maryland Department of Transportation, and other

governmental and non-governmental clients, and that it prepared reports reflecting those

test results. On these bases, Exhibit 2 was admissible without any additional showing of

good cause. See Bailey, 327 Md. at 699 (if evidence is admissible under a firmly rooted

exception to the hearsay rule or “has substantial guarantees of trustworthiness, the

hearsay is admissible without the need to establish any additional good cause”).

In any event, the court also implicitly found good cause to dispense with live

testimony from a lab technician who directly handled Blanks’s sample. It opined, in

response to defense counsel’s argument that other Phamatech employees had “inputted

into the system” information about Blanks’s urine sample, that it would be “highly

impractical” to require the State to present live testimony from every person who touched

Blanks’s sample.15 The court did not abuse its discretion in so finding. Blanks did not

15
Other courts have held that urinalysis test results are admissible in probation
revocation proceedings without any live testimony from a laboratory employee. See
United States v. Minnitt, 617 F.3d 327 (5th Cir. 2010) (urinalysis report showing that
probationer’s urine tested positive for cocaine and marijuana properly admitted without
live testimony from lab technicians upon a finding of good cause); United States v.
(Continued…)
26
have a significant interest in confronting a lab technician who extracted a small sample of

his urine from the specimen container and deposited it into a barcoded test tube or a

technician who placed that test tube in an analyzer machine, and the State had a

substantial countervailing interest in not transporting multiple lab technicians from San

Diego to Maryland to testify about such “a routine business event,” given the volume of

samples involved. Bailey, 327 Md. at 706.

To be sure, Kodama did not personally handle Blanks’s urine sample.

Nevertheless, he was the scientist who reviewed the print-out results of the two marijuana

screening tests conducted on the sample, and he was able to confirm that the positive test

result was accurate. He also could have been confronted (but was not) about the

screening levels for the various tests and whether, for example, a false positive could

result if a donor had ingested other substances. There was good cause apparent from the

record to dispense with any additional live testimony.

Cannon’s and Kodama’s testimony, coupled with the test results documented in

Exhibit 2, amply supported the circuit court’s finding that, more likely than not, Blanks

(…continued)
McCormick, 54 F.3d 214 (5th Cir. 1995) (urinalysis report showing that probationer’s
urine tested positive amphetamines and methamphetamines was admissible without
testimony from the lab technicians); Holmes v. State, 923 N.E.2d 479 (Ind. App. 2010)
(accord). In these cases, the courts reasoned that even when a urinalysis test result is the
central evidence relied upon to find a violation of probation, the probationer’s interest in
confronting the laboratory technicians is minimal because “the truth of a [scientific] fact
can best be ‘verified through the methods of science,’ rather than ‘through the rigors of
cross examination.’” Minnitt, 617 F.3d at 333 (quoting McCormick, 54 F.3d at 222).

27
had used marijuana in violation of his probation. For all these reasons, the court did not

err in finding that Blanks violated conditions 8 and 16 of his probation.

II.

Failure to Report

Blanks contends the circuit court erred by finding him in violation of his probation

for failure to report. He maintains that even if there was sufficient evidence to support a

finding that he was directed to report to the P&P Office by the close of business on

February 12, 2015, and that he failed to do so, there was no evidence that his failure to

report was willful.

The State responds that it was Blanks’s burden to prove that his failure to report to

the P&P Office by the close of business on February 12, 2015, was not willful, and he

failed to meet that burden.

On direct examination in the State’s case, Knapp testified, mistakenly, that he

spoke to Blanks by phone on Tuesday, February 10, 2015, and directed him to come in to

the P&P Office that same day. He also testified that Blanks already was scheduled to

report that day. On cross-examination, defense counsel showed Knapp a copy of the

calendar he had prepared for Blanks showing his reporting schedule. That calendar

reflects that Blanks was not scheduled to report to the P&P Office at any time during the

week of February 9, 2015. It shows that Knapp was scheduled to conduct a home visit on

Friday, February 13, 2015. Knapp acknowledged, based upon the calendar, that he had

been mistaken when he testified that Blanks was scheduled to come in to the P&P Office

on February 10, 2015.

28
 At the close of the State’s case, defense counsel moved to dismiss the charge for

violation of probation for failure to report based upon Knapp’s testimony that “Blanks

wasn’t actually required to report.” The State opposed the motion, arguing that, even if

Blanks wasn’t previously scheduled to report, Knapp had testified that he had directed

Blanks to report that day. The court denied the motion to dismiss.

Blanks recalled Knapp in his case. Defense counsel showed him his supplemental

statement of charges, in which he had stated that he spoke to Blanks on Wednesday,

February 11, 2015, not Tuesday, February 10, 2015. Knapp acknowledged that he had

been mistaken about the date in his testimony on direct examination. He testified that it

was on Wednesday, February 11, 2015, that he directed Blanks to come in that day or the

next day. Blanks did not tell Knapp during their phone conversation that he would be

unable to report.

Knapp did not conduct the scheduled home visit on Friday, February 13, 2015.

The following Monday, February 16, 2015, was President’s Day and the P&P Office was

closed. On Tuesday, February, 17, 2015, the P&P Office was closed because of a snow

storm. Blanks turned himself in at the P&P Office on Wednesday, February 18, 2015.

As the Court of Appeals has explained:

Generally, before probation may be revoked the State must prove that the
probationer has not complied with one or more lawful conditions of
probation. Even then, ordinarily probation may not be revoked if the
probationer proves that his failure to comply was not willful but rather
resulted from factors beyond his control and through no fault of his own. Of
course, if the probationer fails to carry this burden, the question whether to
revoke probation is a matter within the discretion of the trial-court.

29
Humphrey v. State, 290 Md. 164, 167-68 (1981) (citations omitted). See also Bailey v.

State, 327 Md. at 695 (the State carries the initial burden of proof to show a violation of a

condition of probation by a preponderance of the evidence, and if that burden is met the

burden of persuasion then shifts to the probationer to prove that the violation was not

willful).

In the instant case, the State carried its burden. Knapp testified that he spoke to

Blanks by telephone on Wednesday, February 11, 2015, and directed him to report to the

P&P Office either later that day or the next day (Thursday, February 12). He testified

that he advised Blanks that it would be a violation of his probation not to report as

directed. Blanks did not report as directed.

Blanks did not present any evidence that he was unable, due to forces beyond his

control, to report to the P&P Office on February 11 or 12, 2015. Blanks plainly failed to

meet his burden to show that his failure to report was not willful, and the court did not err

or abuse its discretion in finding that Blanks violated the condition of his probation

requiring him to report as directed.

JUDGMENT OF THE CIRCUIT
COURT FOR DORCHESTER
COUNTY AFFIRMED. COSTS TO
BE PAID BY THE APPELLANT.

30