Circuit Court for Baltimore City Case No. 117198015
Nazarian, Arthur, Wells, JJ.
Berry was convicted in the Circuit Court for Baltimore City
of offenses relating to carjacking and robbery. He argues on
appeal that the court erred by admitting DNA evidence taken
from a pellet gun when the State did not provide accessible
copies of the data required by Maryland Code (1973, 2013
Repl. Vol., 2019 Supp.), § 10-915 of the Courts and
Judicial Proceedings Article ("CJ"), and by
excluding extrinsic impeachment evidence during defense
counsel's cross-examination of the victim. We agree that
the State didn't follow CJ § 10-915 and that the
evidence should have been subject to a Frye-Reed
hearing before it was admitted, but disagree that the defense
should have been able to enter extrinsic impeachment
evidence. We vacate the judgments and remand for a
Frye-Reed hearing on the DNA evidence admitted at
Report of the Stolen Car and Mr. Berry's
early hours of June 21, 2017, Quinton Burns waited for his
girlfriend to finish work on The Block in Baltimore City. Mr.
Burns sat in his rental car, a Chrysler minivan, on Exeter
Street, a few blocks away from her job, at around 2:30 a.m.
The parties disagree about what happened next.
to Mr. Burns, Clarence Berry, whom he testified he did not
know personally, approached the passenger side of the van,
asked for a cigarette, opened the unlocked door, and sat down
in the car. Mr. Berry then pulled out what appeared to be a
small black gun and said, "you know what time it
is." He took some cash from Mr. Burns, told Mr. Burns to
get out of the car, then drove the van away with Mr.
Burns's cell phone still inside.
Berry, on the other hand, testified that he worked a
"side security job" for Mr. Burns escorting his
girlfriend from work to Mr. Burns's car at the end of the
night. Mr. Berry testified that on June 21st, he
"escorted [Mr. Burns's] girlfriend  down to Exeter
Street," where Mr. Burns was waiting in the parked car.
Mr. Berry said that Mr. Burns had not paid Mr. Berry for this
service in two weeks, and that he "just wanted to be
paid." Mr. Berry asked for the $250 he was owed and
testified that when Mr. Burns didn't have the money, the
two compromised and agreed that Mr. Berry could borrow the
van for three days. Mr. Berry told Mr. Burns that he could
get the van back when Mr. Berry "got [his] money."
after, Mr. Burns called the police and he was transported to
the police station to provide a recorded
statement. He told Detective Frank Jenkins his
version of the story:
I was sitting on Exeter waiting for my, uh, girl to come up
the street cause normally I would, I'd go down there and
pick her up, it's on the block and she works on the
block. So I've been having problems down there and stuff
like that so I met her up the street. And she came up, um, as
I was sitting there, I seen a couple dudes at the corner on
Baltimore Street, but I didn't pay no mind, you know. So,
he walked up there and he was like, um, "Excuse me, do
you have a cigarette?" And I was like, "Yeah, hold
on for a second." And he got in the car, he opened my
passenger door open and sat in the car and said,
"C'mon man, you know what time it is," and
pulled out the gun.
Burns also told police that he had seen Mr. Berry "quite
a few times in the area." He explained that he
"used to see [Mr. Berry] standing on the corner"
and that he thought Mr. Berry was homeless because "he
hangs out with a lot of homeless dudes."
found Mr. Berry driving the van the next morning and placed
him under arrest. When the police searched the van, they
found a pellet gun in the center console. The police placed
the pellet gun in the passenger seat before bagging it for
evidence. Mr. Berry was charged with ten separate crimes
stemming from his encounter with Mr. Burns the night before:
(1) armed carjacking, (2) carjacking, (3) robbery with a
dangerous weapon, (4) robbery, (5) second degree assault, (6)
theft of more than $1, 000 but less than $10, 000, (7) theft
of a motor vehicle, (8) theft of less than $1, 000, (9)
unauthorized use of property, and (10) possession or use of a
The DNA Evidence
Sladko, the State's laboratory technician and expert at
trial, outlined during a pre-trial hearing the procedure she
used to conduct the DNA analysis of the pellet gun. She
explained that she tested swabs taken from the gun against a
swab taken from Mr. Berry's cheek. She extracted the DNA
from the swabs, estimated how much DNA was present, and
amplified the data to make copies viewable in a diagram
called an electropherogram. Ms. Sladko saved
electropherograms of the test samples to her file.
addition to the test samples, Ms. Sladko tested control data,
a "solution absent any DNA." The purpose of the
control data analysis was to "detect any type of
contamination" in the testing. Ms. Sladko created
electropherograms for the controls as well, but she
didn't keep them in her file. Ultimately, Ms. Sladko
concluded that Mr. Berry's DNA was present on the pellet
gun and that there was no contamination present.
State gave Mr. Berry notice under CJ § 10-915 that it
intended to use the DNA evidence at trial. CJ § 10-915
allows a party to bypass a traditional Frye-Reed
hearing when the DNA is analyzed according to specific
scientific standards and the party seeking to
introduce the DNA evidence gave notice to the opposing party,
as well as copies of the data when requested. The State sent
him copies of the electropherograms from the test samples,
the primary test results, and the raw data used in Ms.
Sladko's analysis. But the raw data could only be opened
using software called GeneMapper, which Mr. Berry's
counsel didn't have. Defense counsel requested additional
records, including records relating to "contamination,
including  instances of reagent blanks and/or negative
controls registering the presence of DNA and positive
controls registering the presence of DNA . . . ." The
State responded that Mr. Berry was "[n]ot entitled"
to that data and that the data did "not apply to the
case in question." After considerable back-and-forth,
the parties agreed that Mr. Berry's counsel could go to
the State's lab to "look at" the raw data on
the State's GeneMapper program. Defense counsel's
requests for a paper copy of the control data, which would
have taken around ten pages of paper to print, were denied
Berry moved to preclude Ms. Sladko's expert testimony at
trial on the grounds that the defense didn't receive all
the required disclosures under CJ § 10-915. The court
denied the defense's motion. At trial, the jury found Mr.
Berry guilty of six of his ten charges: carjacking, robbery,
second-degree assault, theft of a motor vehicle, unauthorized
use of property, and possession or use of a pellet gun. Mr.
supply additional facts as needed below.
Berry raises two questions on appeal that we
rephrase. First, did the court err when it
allowed the State to admit DNA evidence under CJ §
10-915? Second, did the court err when it excluded
extrinsic impeachment evidence Mr. Berry sought to introduce?
The State Failed To Follow CJ § 10-915 And The Court
Should Have Held A Frye-Reed Hearing To Determine
The Evidence's Reliability.
Berry argues that the State failed to provide him with
critical electropherograms of the control data under CJ §
10-915(c)(2)(1), which required the State to give him
"control" data, or alternatively, "everything
generated in the course of its analysis." Without those
control electropherograms, he argues, he couldn't review
the DNA evidence for contamination. The State responds that
although it changed its policies and no longer sends control
electropherograms to defendants, it complied with the statute
because it gave Mr. Berry all of its raw data used
in the analysis (in the digital .fsa format), and it sent
accessible copies of the electropherograms from the main
analysis. Further, the State argues that the statute
doesn't require it to provide the opponent with
accessible copies of the positive and negative control data.
Mr. Berry responds that the raw data the State gave him could
only be opened using a program called GeneMapper, which the
Office of the Public Defender doesn't have and can't
purchase reasonably, and effectively requires criminal
defendants to hire expert witnesses any time DNA evidence
potentially is involved.
question becomes one of basic access to DNA information and
which party has the obligation to provide it. We hold that a
proponent of DNA evidence must, as part of the statutory
bargain of CJ § 10-915, provide the underlying DNA data,
including control data, to opponents in an accessible form.
And because it did not do so in this case, the State was not
entitled to the Frye-Reed exemption that
section provides, which in turn requires us to vacate the
conviction and remand for further proceedings.
determine first whether the DNA evidence introduced
against Mr. Berry met the requirements of CJ §
10-915. We will not set aside a trial court's
factual findings unless they are clearly erroneous.
Phillips v. State, 451 Md. 180, 189 (2017). But
"[w]hen the trial court's decision involves an
interpretation and application of Maryland statutory and case
law, our Court must determine whether the [trial] court's
conclusions are legally correct." Id.
(quoting Bottini v. Dep't of Fin., 450 Md. 177,
187 (2016)). Resolving this issue requires us to interpret CJ
§ 10-915. "When construing a statute, our governing
principle must be the Legislature's intent . . . ."
Armstead v. State, 342 Md. 38, 56 (1996). To
determine intent, we first look to the plain meaning of the
statute. Id. "[I]f the language itself is clear
and unambiguous and comports with the apparent purpose of the
statute, there may be no need to consider other sources of
information to glean the Legislature's purpose."
Id. Further, "we 'do not read statutory
language in a vacuum, . . . [r]ather, the plain language must
be viewed within the context of the statutory scheme to which
it belongs, considering the purpose, aim, or policy of the
Legislature in enacting the statute.'" Allen v.
State, 440 Md. 643, 667 (2014) (quoting Gardner v.
State, 420 Md. 1, 9 (2011)).
§ 10-915(c) describes the notice requirements and the
materials that the proponent of DNA evidence must provide to
the other parties in advance:
(c) In any criminal proceeding, the evidence of a DNA profile
is admissible to prove or disprove the identity of any
person, if the party seeking to introduce the evidence of a
(1)Notifies in writing the other party or parties by mail at
least 45 days before any criminal proceeding; and
(2)Provides, if applicable and requested in
writing, the other party or parties at least 30 days before
any criminal proceeding with:
(i) First generation film copy or suitable reproductions of
autoradiographs, dot blots, slot blots, silver stained gels,
test strips, control strips, and any other results
generated in the course of the analysis;
(ii) Copies of laboratory notes generated in connection with
the analysis, including chain of custody documents, sizing
and hybridization information, statistical calculations, and
(iii) Laboratory protocols and procedures utilized in the
(iv) The identification of each genetic locus analyzed; and
(v) A statement setting forth the genotype data and the
profile frequencies for the databases utilized.
(emphasis added). Here, the parties dispute whether the State
was required to provide control electropherograms to Mr.
Berry, so CJ § 10-915(c)(2)(i) is critical. The plain
language of that section includes several scientifically
obsolete terms: here, autoradiographs and control strips were
not used in the DNA analysis. Instead, electropherograms,
which are not explicitly identified in the statute, provided
the primary visualization of both the test sample data and
the control data. We are faced, then, with a problem of
whether the legislature intended CJ § 10-915 to be read
to account for future advances to DNA technology.
Phillips, an older version of CJ § 10-915
provided that the standards-setting organizations for the
assessment of DNA profiles were The Technical Working Group
on DNA Analysis Methods ("TWGDAM") or the DNA
Advisory Board. Maryland Code (1973, 2013 Repl. Vol.), CJ
§ 10-915; 226 Md.App. 1, 8 (2015), aff'd
Phillips v. State, 451 Md. 180 (2017). However, the
proponent of the DNA evidence had followed the "Federal
Bureau of Investigation's Quality Assurance
Standards," which was not permitted specifically by CJ
§ 10-915 at that time (because neither TWGDAM nor the
DNA Advisory Board existed when the case was decided). To
determine whether the proponent of the evidence could rely on
the FBI's standards, then, we looked to "the
legislature's intent and work[ed] to effectuate that
intent in the present legal and factual landscape."
Phillips, 226 Md.App. at 12. We determined that the
legislature's reliance on scientific standards-setting
boards meant that the legislature "intended to create a
statute that would track cutting-edge DNA science and ensure
automatic admissibility only if the DNA techniques complied
with the standards promulgated by the most rigorous
standards-setting body available." Id. at
14. We held that the statute created an
inference that courts could rely on the Scientific Working
Group on DNA Analysis Methods ("SWGDAM"),
"both the successor entity and the successor 'in
spirit' to both TWGDAM and the DNA Advisory Board,
'" in place of the two non-existent entities.
Id. On certiorari review, the Court of
Appeals affirmed for a slightly different reason: although
TWGDAM and the DNA Advisory Board no longer existed at the
time, "[a]ll that is required for automatic
admissibility under that provision is '[a] statement from
the testing laboratory setting forth that the analysis of
genetic loci has been validated by standards established by
TWGDAM or the DNA Advisory Board.'"
Phillips, 451 Md. at 203. The issue was not whether
the entities themselves survived, but "[a]s long as the
laboratory's procedures have been validated by standards
previously established by one of these entities, and the
analysis is performed in accordance with those validated
procedures, then the analysis qualifies for automatic
admissibility under the statute." Id.
v. Schmidt also provides a useful analogy. 224 Md.App.
222 (2015). In Sieglein, this Court was faced with
determining how to reconcile in vitro fertilization
with the language of the parentage statute. At that time, the
statute included the term "artificial
insemination," but not "in vitro
fertilization," which had not been invented when the
statute had been enacted. Sieglein, 224 Md.App. at
238. We held that the parentage statute clearly contemplated
technologies like in vitro fertilization when it