State v. Graham

Krauser, J. Charged with possession of cocaine and attempted distribution of cocaine, in the District Court of Maryland for Baltimore City, Donald Graham, appellee, filed a discovery request in that court, for information relating to the drug testing that had been performed, by the Baltimore City Crime Lab, as to substances that he had allegedly thrown to the ground, shortly before his arrest. When, on the scheduled date of his District Court trial, Graham demanded a jury trial, his case was transferred to the Circuit Court for Baltimore City. On the date that his trial was to commence in the circuit court, Graham’s counsel informed that court that the State ⁴⁴³ had not provided the information requested by the defense, in the District Court and, on those grounds, moved to dismiss the case. The State responded that it had only learned of the request the preceding Friday (that is, the last business day before trial) and that it would be “more than happy” to provide him with the information requested.

Then, without explanation or even further inquiry, the circuit court granted the defense’s motion and dismissed the charges. Appealing that decision, the State contends that the circuit court erred in granting Graham’s motion to dismiss the criminal charges against him because of the State’s failure to provide, before trial, the discovery requested by the defense. In support of that contention, the State makes three claims: first, that its failure to provide the discovery that had been requested by Graham was not a discovery violation under Maryland Rule 4-262, which both sides agree is the rule that governs the present dispute; 1 second, that even if its failure to provide that discovery did violate Rule 4-262, dismissal of the charges against Graham was not an available sanction under that rule; and, third, that, assuming that dismissal of the charges against Graham was a sanction available to the circuit court, the court abused its discretion in choosing that sanction. Because we conclude that the circuit court did have the discretion to impose a sanction for the State’s discovery violation but abused that discretion in imposing the drastic sanction that it did, we vacate the judgments of the circuit court and remand for further proceedings. ⁴⁴⁴ Background On August 17, 2015, Baltimore City police saw Graham engage in what they believed to be a hand-to-hand drug transaction.

As a uniformed police officer approached Graham, moments after that transaction, he observed Graham throw small items under a vehicle parked on the street. Then, from under that vehicle, the officer retrieved four zip lock baggies containing a “rock like substance[,]” which he believed to be cocaine. Graham was thereafter arrested and charged with possession of cocaine and attempted distribution of that drug in the District Court of Maryland for Baltimore City. On October 13, 2015, Graham filed requests for discovery, 2 in the District Court, demanding that the State, pursuant to Maryland Rule 4-262(d)(2)(D) 3 and Cole v. State, 378 Md. 42 , 835 A.2d 600 (2003), provide the following documents and records: “[a] complete copy of the Baltimore City Crime Lab case file including but not limited to ... results from any preliminary [drug] screening tests, gas chromatography (“GC”), gas chromatography and mass spectrometry analysis (“GC/MS”), Fourier transform infrared spectroscopy (“FTIR”), as well as ... any reference standards and controls, and the results of any re-examinations conducted on any samples”; “[documents relat[ed] to [his] case ... regularly kept in a place other than the case file”; “any other informa ⁴⁴⁵ tion,” related to his case, “that the crime lab ha[d] in its possession [or] control”; “all maintenance records pertaining to any GC or GC/MS machine used in [his] case” that recorded maintenance conducted “for the relevant time period prior to the [drug testing that was] performed in [his] case”; copies of “[a]ny protocols[ ] and procedures” related to the drug testing done in his case; “[u]pdated curriculum vita [sic]” of any analyst involved in testing the drugs that were seized; and, five years of “proficiency tests ... for any analyst involved in [his] case.” On October 29, 2015, the State filed, in the District Court, a document captioned: “Request for Discovery from Defendant and the State’s Disclosure to the Defendant.” In that document, the State asserted that, “[u]pon request of the Defendant,” it would, “by appointment^]” provide “[t]he opportunity to review and copy all documents, including but not limited to[ ] training and operations manuals, calibration records, procedures and reference material pursuant to [Cole v. State], 378 Md. 42 , 835 A.2d 600 (2003), ... and Rule 4-262.” 4 ⁴⁴⁶ On December 16, 2015, the date Graham’s trial was to commence in the District Court, he requested a jury trial.

His case was then transferred to the Baltimore City circuit court, where it was scheduled for trial on Tuesday, January 19, 2016. On the Friday before trial, which was the last business day before trial, 5 Graham’s counsel called the Assistant State’s Attorney assigned to Graham’s case and informed her that he had not yet received the information or material he had requested in his supplemental discovery request, though he had received a form summarizing what the State intended to disclose. Then, on January 19, 2016, when Graham’s case was called for trial, the following verbal exchange occurred, between court and counsel, regarding Graham’s discovery demand: [DEFENSE]: Your Honor, the preliminary matter the Defense is going to raise, and I did speak with [the Assistant State’s Attorney] about this on Friday, is that in any drugs case, as a matter of course, we now in [the] District Court request the supplemental discovery from the lab that tested the drugs under Cole and we filed a request for this on October 13th. THE COURT: Requesting what? [DEFENSE]: Request for the copy of the— THE COURT: Chemical analysis? [DEFENSE]: Well, not just the chemical analysis, Your Honor, but also the copy of the file, the testing and— [STATE]: Yes.

THE COURT: Okay. [DEFENSE]: —we normally receive a summary. It goes through the gas chromatography— ⁴⁴⁷ THE COURT: Okay. [DEFENSE]: —spikes and, Your Honor, we still have received— [STATE]: Sorry. [DEFENSE]: —we still haven’t received anything and as of today. And so I raise that with the Court— THE COURT: What’s going on with that? [DEFENSE]: —preliminarily. [STATE]: Your Honor, the State was not aware until [Graham’s counsel] called me on Friday to let me know he had not received it. When this prayed, I didn’t have any notes or did not know that they had not received any call and the request was made October 13th.

Your Honor, this prayed on December 16th. There was no indication that any of [Graham’s prior counsel before the District Court] indicated they didn’t have Cole or, you know, we did give the LIMS, the— THE COURT: Okay. [STATE]: —normal LIMS. 6 THE COURT: Okay. We’ll need to discuss this when the Defendant comes up. When Graham thereafter arrived in court, the discussion between the court and counsel, regarding Graham’s discovery request, resumed: [DEFENSE]: Your Honor, what I had raised at the bench was that in this case a request for the supplemental discovery under Cole v. Maryland was filed on October the 13th and I have a time stamped copy of that that it was also delivered to the State’s Attorney Office.

As of this date today we have not received any of that discov ⁴⁴⁸ ery. And as I explained at the bench, Your Honor, we do—our office and I does [sic] file these requests routinely at [the] District Court in every drugs case, so it should not have come to a—as a surprise to the State that the request was filed because we do it in every drugs case. THE COURT: All right. State? [STATE]: Your—and, Your Honor, the State had indicated that the State at this level was not aware that there was a Cole issue until Friday when [Graham’s counsel] called me.

At District the—I believe a Cole request was filed October 13th. However, Your Honor, this matter did pray on December 16th which was two months after. Made no indication to anyone in District that they were missing Cole and so prayed the case anyways, Your Honor. Therefore, the State is more than happy to get this discovery now that we know that the Defense— THE COURT: You don’t have it? [STATE]: No, Your Honor.

There was never a request made in District apparently and the—I—the State’s not— THE COURT: Doesn’t matter if it was made in District as long as it was made in Circuit under this case, right? [STATE]: Yes, Your Honor, and the State did not know there was this request. THE COURT: Hmm. They said it was hand delivered. [DEFENSE]: It’s time stamped as being— [STATE]: To us? [DEFENSE]: —delivered in District— [STATE]: Oh, in District, Your Honor. [DEFENSE]: —in District Court, Your Honor. THE COURT: Oh, in [the] District Court. [STATE]: Yes, Your Honor.

THE COURT: Oh but it’s all one— [STATE]: Yes. THE COURT: —one office, isn’t it? [STATE]: Yes, Your Honor. The— ⁴⁴⁹ THE COURT: Uh-huh. [STATE]: —the State’s just letting you know, Your Honor, I was made aware Friday and we’ll be glad to get [Graham’s counsel’s] discovery [request] but the State does not have it in its possession. [DEFENSE]: And, Your Honor, at this juncture I would move to dismiss on those grounds THE COURT: Motion to dismiss is granted. Discussion [[Image here]] In support of its contention that the circuit court erred in dismissing the charges against Graham under Rule 4-262 because of its failure to provide, before his circuit court trial, the information that Graham had previously demanded in his District Court discovery requests, the State first claims that its failure to provide that information was not a discovery violation under Rule 4-262(i).

We disagree. To be more precise, the State maintains that the circuit court erred in finding that it had violated Rule 4-262 because section (i) of that rule, which specifically addresses the procedure a trial court must follow to ensure that the parties have complied with their discovery obligations, does not impose a “hard deadline” as to when discovery must be provided to the opposing party but merely states that discovery must be completed prior to trial “[t]o the extent practicable.” And, since there was no “evidence in the record that it was practicable for the State to provide the drug testing discovery and that the prosecutor refused to do so,” there was no basis upon which to find, reasons the State, that it had violated Rule 4-262. Invoking the same section of Rule 4-262, section (i), which provides, as the State noted, that a court may grant a delay or continuance when compliance is impracticable, Graham claims that, in his ease, “[t]here was no evidence or explanation offered by the prosecutor to suggest that it was impracticable for the State to provide the requested discovery prior to ... ⁴⁵⁰ calling the case on its trial date” and that, absent such evidence, “the failure to provide the requested discovery was a discovery violation.” As these competing claims of the parties require us to interpret Rule 4—262(i), we note that, when we are asked to render such an interpretation, we employ “the same well-established canons of construction that we use when interpreting statutes.” Dove v. State, 415 Md. 727, 738 , 4 A.3d 976 (2010) (citation omitted). That is, “we look to [the] plain text” of the rule, and, if “the words of the rule are plain and unambiguous, our inquiry ordinarily ceases and we need not venture outside the text of the rule.” Johnson v. State, 360 Md. 250, 264-65 , 757 A.2d 796 (2000) (citations omitted).

But, if “the words of the rule are ambiguous,” then we may turn to “other sources to glean the intent of the rule.” Long v. State, 343 Md. 662, 667 , 684 A.2d 445 (1996) (citation and quotation omitted). Specifically, section (i) of Rule 4-262 provides: (i) Procedure. To the extent practicable, the discovery and inspection required or permitted by this Rule shall be completed before the hearing or trial, except that asserting a defense pursuant to subsection (e)(2) of this Rule shall be made at least 10 days before the trial. If a request was made before the date of the hearing or trial and the request was refused or denied, or pretrial compliance was impracticable, the court may grant a delay or continuance in the hearing or trial to permit the inspection or discovery.

The “plain text” of section (i) of Rule 4-262 clearly does not support the State’s claim that, for a trial court to find a discovery violation, there must be evidence that a prosecutor intentionally refused to comply with a request for discovery or inspection permitted under the rule. Nothing in the plain language of that section, expressly or impliedly, suggests otherwise. In fact, for a discovery violation to occur, it need not even be intentional. Pantazes v. State, 141 Md.App. 422, 440 , 785 A.2d 865 (2001) (observing that “[e]ven an unintentional failure to provide discoverable ... information may ⁴⁵¹ constitute a discovery violation”), cert. denied, 368 Md. 241 , 792 A.2d 1178 (2002); accord Williams v. State, 364 Md. 160, 177 , 771 A.2d 1082 (2001) (noting that whether a discovery violation “was a result of willful aforethought or inadvertence is irrelevant”) (citation and quotation omitted).

We acknowledge, however, that it is unclear from the language of section (i) of Rule 4-262 whether, as the State claims, a trial court must make a predicate finding that it was “practicable” for a party to have completed the discovery sought under Rule 4-262 before it may find that the party’s failure to do so was a discovery violation, or whether, as Graham claims, the purpose of section (i) of the rule is merely to clarify that, when it is “impracticable” for a party to comply with the rule’s requirements prior to trial, the trial court has the discretion to grant a delay or continuance. Consequently, we shall turn to the history of the rule and the minutes of the Rules Committee to assist us in resolving this question. Long, supra, 343 Md. at 667 , 684 A.2d 445 . Prior to 2009, the substance of section (i) of Rule 4-262 was set forth in section (b) of that rule.

It read as follows: The discovery and inspection required or permitted by this Rule shall be completed before the hearing or trial. A request for discovery and inspection and response need not be in writing and need not be filed with the court. If a request was made before the date of the hearing or trial and the request was refused or denied, the court may grant a delay or continuance in the hearing or trial to permit the inspection or discovery. Then, in 2009, the Criminal Rules Subcommittee presented to the Rules Committee the following changes to section (b) and relabeled it as “section (i)” of Rule 4-262: The discovery and inspection required or permitted by this Rule shall be completed before the hearing or trial to the extent practicable.

A-request■ ■ for discovery aneh-mspec-tion and-response- need ■ not be in-writing-and need not be filed with the- court. If a request was made before the date of the hearing or trial and the request was refused or denied, or ⁴⁵² pretrial compliance was impracticable, the court may grant a delay or continuance in the hearing or trial to permit the inspection or discovery. Rules Committee, minutes, p. 75-76 (October 2, 2009) (emphasis and strikethrough text in original). The new language, proposed by the Subcommittee, was intended to ensure “the completion of discovery in a timely fashion.” Id. at 78.

Recognizing that, given the “shorter timetable in District Court cases[,]” it might not always be possible to request or provide written discovery prior to a hearing or trial, the amended rule, proposed by the Subcommittee, provided that parties must complete discovery and inspection required or permitted by the rule “before the hearing or trial to the extent practicable” and that, if discovery “cannot be completed in a timely fashion, then the [trial] court in its discretion may allow a delay or continuance.” Id. The Rules Committee largely adopted the proposal of the Criminal Rules Subcommittee and submitted, as part of its One Hundred Sixty-Third Report to the Court of Appeals, the following draft of Rule 4—262(i): To the extent practicable, the discovery and inspection required or permitted by this Rule shall be completed before the hearing or trial. [A request for discovery and inspection and response need not be in writing and need not be filed with the court.] If a request was made before the date of the hearing or trial and the request was refused or denied, or pretrial compliance was impracticable, the court may grant a delay or continuance in the hearing or trial to permit the inspection or discovery. 37 Md. Reg. 134 , 158 (Jan. 29, 2010) (italicized text is new; bracketed text was struck from prior version). Thereafter, the Court of Appeals adopted, effective July 1, 2010, the amended Rule 4-262 “in the form previously published,” that is, as it appeared in the One Hundred Sixty-Third Report of the Rules Committee. 37 Md. Reg. 531 (Mar. 26, 2010). Thus, the language in Rule 4—262(i), upon which the State relies, namely, that it was required to complete the ⁴⁵³ discovery specified under other sections of Rule 4-262 before the start of a hearing or trial “[t]o the extent practicable,” was added to the rule because, given the shorter time table for the disposition of cases in the District Court, circumstances might arise where there was insufficient time for a party to request or complete written discovery prior to trial.

So it logically follows that, under such circumstances, the burden falls on the party seeking a delay or continuance to explain to the court why it was “impracticable” to do so. In the absence of such an explanation, or at least manifest circumstances suggesting the impracticability of a pre-trial discovery or inspection, the court has no reason to believe that it was not practicable for the party, from whom discovery was requested, to timely produce the information, documents, or material requested. Furthermore, even if the State’s interpretation of Rule 4-262(i) were correct, the court did not err, we believe, in finding a discovery violation. In this case, Graham filed a discovery demand for the drug testing information, in the District Court, on October 13, 2015.

More than three months later, on the very date Graham’s trial was scheduled to commence in the circuit court, the State had still not provided the requested discovery. Given the length of time the State was on notice of its obligation to provide the drug testing discovery, the circuit court could reasonably have concluded, and certainly in the absence of any evidence to the contrary, that it was practicable for the State to have provided the requested discovery material before the date of Graham’s trial.

II

The State next contends that, in the event of a party’s violation of its discovery obligations under Rule 4-262, the “only remedy available” to the court, under that rule, is to “disqualify a witness [of the violating party] from testifying.” In support of that claim, the State relies upon Maryland Rule 4-262(n), which provides: (n) Failure to Comply With Discovery Obligation. The failure of a party to comply with a discovery