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State v. Graham

Court of Special Appeals of Maryland

July 27, 2017


          Berger, Leahy, [*] Krauser, JJ.


          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 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.


         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 (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"; "[d]ocuments relat[ed] to [his] case . . . regularly kept in a place other than the case file"; "any other information, " 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 (2003), . . . and Rule 4-262."[4]

         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 --
[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 --
[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 discovery. 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 ...

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