Berger, Leahy, [*] Krauser, JJ.
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.
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
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; 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
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.
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
October 13, 2015, Graham filed requests for discovery,
 in the District Court, demanding that
the State, pursuant to Maryland Rule
4-262(d)(2)(D) 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."
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."
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,  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 --
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.
THE COURT: Okay. We'll need to discuss this when the
Defendant comes up.
Graham thereafter arrived in court, the discussion between
the court and counsel, regarding Graham's discovery
[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 ...