Dove v. State

GREENE, J. We are asked to determine whether the introduction of evidence at a sentencing hearing, which the State failed to disclose prior to the hearing in violation of Maryland Rule 4-342(d), was a harmless error. In the present case, the State, in an effort to prove that the petitioner, Sean Anthony Dove (“Dove”), was subject to an enhanced sentence under the provisions of Md.Code (2002), § 5-608(e) of the Criminal Law Article, 1 commonly known as the “three strikes rule” for drug-related offenses, introduced a fingerprint card, through the testimony of an expert witness, as substantive evidence of Dove’s identity in a previous conviction. Dove made a timely objection to the admission of the fingerprint card based on the State’s failure to disclose the card prior to the hearing, in violation of Md. Rule 4-342(d). Notwithstanding, the sentencing judge admitted the fingerprint card as evidence and relied on the fingerprint card in making his finding that the State had proven that Dove was subject to an enhanced penalty.

We shall hold that, although the Court of Special Appeals ⁷³³ properly applied a “harmless error” analysis to the violation of Md. Rule 4-342(d), in the present case, the admission of the fingerprint card was not a harmless error because the card was substantive evidence of a required element under § 5-608(e). Further, the sentencing judge relied on the fingerprint card in determining that the State met its burden of proof under that section. In addition, the fingerprint card was not cumulative evidence of Dove’s connection to the prior conviction. Facts and Procedural History Dove was charged in the Circuit Court for Baltimore County with one count of possession of heroin and one count of possession with intent to distribute heroin.

A jury returned verdicts of guilty on both counts. At sentencing, the State sought an enhanced penalty of 25 years’ imprisonment without parole pursuant to § 5-608(e). The State asserted that Dove’s conviction in the present case was his third qualifying conviction under the statute, or “third strike,” and presented evidence at the sentencing hearing to substantiate Dove’s two prior qualifying convictions. The State’s evidence at the sentencing hearing consisted of the certified records of the alleged prior convictions; the expert testimony of Detective Valentine, who was qualified as an expert in the identification of known inked fingerprints; and the testimony of Jodi Stouffer of the Maryland Division of Correction.

Dove contested the accuracy of the records introduced to support the prior convictions and specifically objected to the admission of a fingerprint card used to link Dove’s identity to the record of a prior conviction when the State failed to provide notice that the card would be used at the sentencing hearing. 2 Dove also objected to Detective Valen ⁷³⁴ tine’s references to the fingerprint card in his testimony because the State had not disclosed the cards in discovery. Dove admitted that he received notice of the state’s intent to call Detective Valentine as a witness prior to the sentencing hearing. Although the State properly notified Dove that he qualified as a repeat offender subject to an enhanced penalty, the State did not disclose to Dove or his attorney the State’s intention to rely on the fingerprint cards. Through Detective Valentine’s testimony, the State presented two certified records of prior convictions, as well as two fingerprint cards, to prove that Dove had two prior convictions for qualifying offenses under § 5-608(c).

The State presented the fingerprint card at issue in the present case, identified as State’s Exhibit 2 at the sentencing hearing, and asserted that the Baltimore City Police collected the fingerprints from an individual arrested on June 7, 2000. The State asserted that the fingerprint card in question was associated with case number 200202007 from the criminal records of the Baltimore City Circuit Court, in which an individual identified as Sean Anthony Dove was found guilty of possession with intent to distribute heroin on March 19, 2001, receiving a sentence of eight years. Detective Valentine testified that he took inked impressions from Dove while he was in the lock-up and compared the inked impression to those on the fingerprint card in question. According to Detective Valentine, the fingerprints were those of the same person.

Detective Valentine also testified about a second conviction and another set of fingerprints collected during a different arrest. According to Detective Valentine, the fingerprints collected as a result of an arrest on August 31, 2000 also belonged to Dove. 3 The State asserted that the fingerprint ⁷³⁵ card in question was associated with a March 19, 2001 conviction for possession with intent to distribute cocaine. Near the conclusion of Detective Valentine’s direct testimony, the sentencing judge admitted the fingerprint cards, from both arrests, into evidence. Following Detective Valentine’s cross-examination and redirect examination, and the examination of Jodi Stouffer, the sentencing judge ruled on the State’s request for the imposition of a mandatory minimum sentence of 25 years pursuant to § 5-608(c): The Court: I have had an opportunity to review all of the documentation.

State’s Exhibit Number 1 has the person identified as Sean Dove. It gives a date of birth of 12-26-71 and under that 12-26-72. The documents [that] have been introduced as State’s Exhibit Number 2 [the fingerprint card in question] and 4 have the same birthdate. The argument by the State is that it doesn’t make any difference what the criminal information says, almost form without substance, has some limited value in this regard: Whether the criminal information was incorrect or not or that they were switched, that is to say whether Page two of the State’s Exhibits 1 and 3 were switched or the criminal information alleging that the Defendant was charged with possession with intent [to distribute] heroin and/or cocaine on various dates is not that important in the overall scheme of things for this reason: The documents that have been introduced indicate that on—State’s Exhibit Number 1 indi ⁷³⁶ cates that on March 19th of 2001, the Defendant pled guilty to possession with intent to distribute, which is a qualifying offense.

That document indicates that the charges in the Court were filed on July 20th of 2000. State’s Exhibit Number 3 indicates that on March 19th, 2001, the Defendant pled guilty to possession with intent to distribute heroin. Now, I don’t know from this documentation whether or not the charges were amended or there was a clerical error, but certainly the Defendant pled guilty to those charges. And that was filed on October 12th of 2000 which was subsequent to the filing of the charges on State’s Exhibit Number 1.

Now, in looking at State’s Exhibits 2 [the fingerprint card in question] and 4 as I have already mentioned, I think that there is sufficient identification information both on the documents themselves and what the detective testified to when he requested specific documents related to specific arrests. Therefore, I find that although the documents seem somewhat confusing, that upon closer inspection you can understand what circumstances were and especially, and this is important, the Defendant pled guilty to possession with intent to distribute each one of these offenses, drugs, rather, and I don’t know, as I said, whether there was an amendment made at the time. But either way, both drugs qualify as a predicate offense. I find as a matter of fact that the State has met its burden beyond a reasonable doubt.

(Emphasis added.) In accordance with the finding that Dove was a repeat offender pursuant to § 5-608(c), the sentencing judge sentenced Dove to 25 years’ incarceration without the possibility of parole. Dove filed a timely appeal to the Court of Special Appeals, arguing, inter alia, that the sentencing court erred, as a matter of law, in finding that the State’s evidence met the requirements for enhanced sentencing under § 5-608(c). Dove argued that Md. Rule 4-342(d) required the disclosure of ⁷³⁷ the fingerprint card, which was intended to be admitted into evidence, prior to the sentencing hearing and the failure to disclose required a postponement of the sentencing hearing. The Court of Special Appeals, in an unreported opinion, held that the State’s failure to disclose the fingerprint card violated Md. Rule 4—342(d), and that Dove’s objection preserved the issue for appellate review, despite Dove’s failure to cite the Rule upon objecting or specifically requesting a postponement of the sentencing hearing.

The intermediate appellate court, however, held that the admission of the fingerprint card was harmless error because the fingerprint card was cumulative evidence, and thus the admission of the undisclosed evidence did not prejudice Dove. Accordingly, the Court of Special Appeals affirmed the judgment of the Circuit Court. Dove filed a petition for a writ of certiorari in this Court, which we granted, Dove v. State, 411 Md. 355 , 983 A.2d 431 (2009), to answer the following questions: 1. Did the Court of Special Appeals err in finding “harmless error” could be applied to substantive violations of Md. Rule 4-342(d)? 2.

Did the Court of Special Appeals err in finding harmless the introduction of evidence in violation of Md. Rule 4-342(d), where that evidence was used by the sentencing court to establish identity and provided the basis for an expert witness’ opinion and testimony? We shall answer the first question in the negative, the second question in the affirmative, and reverse the judgment of the Court of Special Appeals. Standard of Review Where, as in the present case, the sentencing judge made no specific finding as to whether the State violated the Maryland Rules, we exercise our independent judgment and review, as a matter of law, whether a violation occurred. Williams v. State, 364 Md. 160, 169 , 771 A.2d 1082, 1087 (2001). ⁷³⁸ Discussion Md. Rule 4-342 governs sentencing procedures in non-capital cases.

The Rule enumerates the State’s required presentencing disclosures, and the remedy for failure to disclose: (d) Presentence disclosures by the State’s Attorney. Sufficiently in advance of sentencing to afford the defendant a reasonable opportunity to investigate, the State’s Attorney shall disclose to the defendant or counsel any information that the State expects to present to the court for consideration in sentencing. If the court finds that the information was not timely provided, the court shall postpone sentencing. Md. Rule 4-342(d).

To interpret the Maryland Rules, we use the same well-established canons of construction that we use when interpreting statutes. Hartless v. State, 327 Md. 558, 563 , 611 A.2d 581, 583 (1992). “As we have so often stated, the chief objective of statutory construction is to discover and effectuate the actual intent of the legislature in enacting the statute.” Deville v. State, 383 Md. 217, 223 , 858 A.2d 484, 487 (2004). When interpreting legislative intent, “we look first to the plain language of the statute [or Rule], ‘as the words of the statute, given their ordinary and popularly understood meaning, are the primary source of legislative intent.’ ” Melgar v. State, 355 Md. 339, 347 , 734 A.2d 712, 716 (1999) (quoting Gargliano v. State, 334 Md. 428, 435 , 639 A.2d 675, 678 (1994)). As this Court and the intermediate appellate court have reiterated on numerous occasions, the word “shall” indicates the intent that a provision is mandatory.

E.g., State v. Green, 367 Md. 61, 82 , 785 A.2d 1275, 1287 (2001) (“When the Legislature commands that something be done, using words such as ‘shall’ or ‘must’ rather than ‘may1 or ‘should,’ the obligation to comply with the statute or rule is mandatory.”); Green v. State, 127 Md.App. 758, 773-74 , 736 A.2d 450, 458 (1999) (interpreting the use of “shall” in Rule 4-342(d) as indicating disclosure is mandatory). In the case of Rule 4-342(d), our use of the word “shall” mandates the disclosure of ⁷³⁹ “any information the State expects to present to the Court for consideration in sentencing,” including any witnesses and any documents or physical evidence on which it intends to rely. Green, 127 Md.App. at 773 , 736 A.2d at 457 . “The State’s compliance with these rules is never discretionary, as the Maryland Rules of Procedure have the force of law; see Dotson v. State, 321 Md. 515 , [523] 583 A.2d 710, 714 (1991); they are not mere guides but are ‘precise rubrics’ to be strictly followed.” Williams, 364 Md. at 171 , 771 A.2d at 1088 . The purpose of Md. Rule 4-342(d) is to notify the defendant of the information the State will present against him or her at the sentencing hearing and afford the defendant a reasonable opportunity to investigate the State’s information in order to prepare for sentencing.

See Hutchins v. State, 339 Md. 466, 472-73 , 663 A.2d 1281, 1285 (1995) (noting that the purpose of Rule 4-263(b), mandating the information that the State must disclose to a criminal defendant upon request before trial, is to “assist the defendant in preparing his defense, and to protect him from surprise”) (quoting Mayson v. State, 238 Md. 283, 287 , 208 A.2d 599, 602 (1965)); Carter v. State, 319 Md. 618, 621 , 574 A.2d 305, 306 (1990) (noting that the purpose of notice provisions “is, and always has been, to inform a defendant fully of the nature of the State’s case against him in order that he may intelligently conduct his defense”) (quoting King v. State, 300 Md. 218, 231 , 477 A.2d 768, 775 (1984)). The Rule requires that the information be provided in advance of the sentencing hearing so that the defendant has a reasonable opportunity to investigate the State’s information. The plain language of the Rule is broad and encompasses any information on which the State plans to rely at sentencing. The Rule does not make an exception for substantial compliance or information the defendant could have requested or uncovered through investigation.

See Gorge v. State, 386 Md. 600, 618-19 , 873 A.2d 1171, 1182 (2005) (“[T]o fall back on the general purpose of the notice statute in the instant case and hold that actual notice will suffice, ignores the plain language of the statute we must construe.... Simply stated, we are not permitted to ignore the language of the ⁷⁴⁰ statute.”) (Footnotes omitted.). As the Court of Special Appeals held in Green, 127 Md.App. at 774 , 736 A.2d at 458 , under the plain language of Rule 4r-342(d), the defendant’s awareness that certain types of evidence might be presented at the sentencing hearing is not sufficient to fulfill the Rule’s notice requirement, and that the “rule’s purpose could not be carried out absent the required notice to defense counsel.” The State presented the fingerprint card in question as substantive evidence of the defendant’s identity in the prior conviction. The State conceded to the sentencing judge that it failed to disclose the fingerprint card to Dove in advance of sentencing.

Because the fingerprint card contained “information that the State expect[ed] to present to the court for consideration in sentencing,” and the State actually presented the fingerprint card to the sentencing judge, Md. Rule 4-342(d) required that the State disclose the fingerprint card to Dove in advance of sentencing. 4 Thus, in the present case, the State violated Md. Rule 4-342(d) when it presented the fingerprint card to the sentencing judge for consideration as evidence without first disclosing the card to Dove in advance of the sentencing hearing. The defendant’s remedy when the State fails to timely disclose evidence it intends to present at a sentencing hearing is clear and unambiguous. See, e.g., Melgar, 355 Md. at 347 , 734 A.2d at 716 (“If the language of the statute is plain and clear, and expresses a meaning consistent with the statute’s goals and apparent purpose, our inquiry is ordinarily at an end.”). Md. Rule 4-342(d) states that, if the evidence is not timely disclosed, the sentencing judge “shall postpone sentencing.” This remedy comports with the Rule’s purpose, which is ⁷⁴¹ to allow the defendant a reasonable opportunity to investigate the State’s information.

As discussed infra, the use of the word “shall” indicates that the sentencing judge lacks the discretion to admit the evidence and proceed with the sentencing hearing; rather, the sentencing judge must postpone the hearing to allow the defendant the opportunity to investigate the evidence and prepare accordingly. See Smith v. State, 308 Md. 162, 170 , 517 A.2d 1081, 1085 (1986) (noting that required disclosures pursuant to Md. Rule 4-342 limit the judge’s discretion in sentencing). The mandatory postponement provided for under Md. Rule 4-342(d) distinguishes this Rule from the rules governing discovery at trial, where the discovery rules afford the judge broad discretion in determining an appropriate remedy for a discovery violation. See Md. Rule 4-263(n) (listing the sanctions the court may, but is not required to, impose if the parties fail to comply with rules governing discovery).

In the present case, the sentencing judge erred in failing to postpone the sentencing hearing as mandated by Md. Rule 4-342(d). In his petition for writ of certiorari, Dove first questions whether the harmless error analysis could be applied to substantive violations of Md. Rule 4-342(d) under any circumstances. Dove argues that the harmless error standard should not be applied to violations of Md. Rule 4-342(d) because a failure to provide proper notice always prejudices the defendant’s ability to prepare. This is so, Dove contends, because there is no way of knowing what a defendant could have done if he or she had been provided notice and had the opportunity to review or investigate the State’s evidence.

In response, the State counters that violations of Md. Rule 4-342(d) are essentially discovery violations, and points out that this Court has generally applied the harmless error standard to discovery violations in criminal cases. Generally, we have declined to apply a per se rule prohibiting a harmless error analysis, even in cases involving violations of the Maryland Rules. See King v. State, 300 Md. 218, 223 , 477 A.2d 768, 771-72 (1984); Noble v. State, 293 Md. 549 , ⁷⁴² 556-57, 446 A.2d 844, 847-49 (1982); Wiener v. State, 290 Md. 425, 450 , 430 A.2d 588, 602 (1981); see also Pantazes v. State, 141 Md.App. 422, 445 , 785 A.2d 865, 878 (2001). As we explained in Noble, 293 Md. at 557-58 , 446 A.2d at 848: This Court has firmly adhered to the principle that the rules of procedure are precise rubrics to be strictly followed, and we shall continue to do so.

A violation of one of these rules constitutes an error, normally, requiring such curative action or sanction as may be appropriate. It does not follow, however, that the harmless error doctrine has no application to the Maryland Rules and that a violation of a procedural rule can never be harmless. There is no basis in authority or logic for such a holding. It is true that the violations of certain rules, because of the nature and purpose of those particular rules, can rarely be deemed harmless error....

Nevertheless, this Court has not held that the harmless error principle can never be applicable to a violation of the criminal rules. It may be true that violations of Md. Rule 4-342(d) are rarely harmless, because the Rule entitles the defendant to notice and allows him or her time to prepare a defense at sentencing, see Green, 127 Md.App. at 773 , 736 A.2d at 458 , but we cannot say that violations of Md. Rule 4-342(d) can never be harmless. See Wiener, 290 Md. at 449-51 , 430 A.2d at 601-02 (holding that a violation of an earlier version of Md. Rule 4-342(d) was a harmless error when the only choices at the sentencing hearing were for the court to impose the death penalty or a life sentence, and the court imposed the lesser sentence); Outmezguine v. State, 97 Md.App. 151, 169-170 , 627 A.2d 541, 550 (1993), aff'd by 335 Md. 20 , 641 A.2d 870 (1994) (holding that, where the State provided a victim impact statement only minutes before a sentencing hearing, the error was not prejudicial when defense counsel stated he was able to continue and the sentencing judge did not mention the victim impact statement in the decision). Thus, we shall answer Dove’s first question in the negative and hold that the Court of ⁷⁴³ Special Appeals did not err in applying a harmless error analysis to the State’s violation of Md. Rule 4-342(d).

To answer Dove’s second question raised in the petition for writ of certiorari, we shall apply the harmless error analysis to the facts of the present case. This Court announced the standard for evaluating harmless error in Dorsey v. State, 276 Md. 638, 659 , 350 A.2d 665, 678 (1976): [W]hen an appellant, in a criminal case, establishes error, unless a reviewing court, upon its own independent review of the record, is able to declare a belief, beyond a reasonable doubt, that the error in no way influenced the verdict, such error cannot be deemed ‘harmless’ and a reversal is mandated. Such reviewing court must thus be