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Berry v. State

Court of Special Appeals of Maryland

December 23, 2019


          Circuit Court for Baltimore City Case No. 117198015

          Nazarian, Arthur, Wells, JJ.


          NAZARIAN, J.

         Clarence 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 trial.

         I. BACKGROUND

         A. Report of the Stolen Car and Mr. Berry's Arrest

         In the 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.

         According 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.

         Mr. 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."

         Soon after, Mr. Burns called the police and he was transported to the police station to provide a recorded statement.[1] 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.[2]

         Mr. 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."

         Police 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 pellet gun.

         B. The DNA Evidence

         Virginia 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.[3] Ms. Sladko saved electropherograms of the test samples to her file.

         In 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.

         The 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 repeatedly.

         Mr. 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. Berry appeals.

         We supply additional facts as needed below.


         Mr. Berry raises two questions on appeal that we rephrase.[4] 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?

         A. The State Failed To Follow CJ § 10-915 And The Court Should Have Held A Frye-Reed Hearing To Determine The Evidence's Reliability.

         Mr. Berry argues that the State failed to provide him with critical electropherograms of the control data[5] 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.[6] 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.

         The 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.

         We must determine first whether the DNA evidence introduced against Mr. Berry met the requirements of CJ § 10-915.[7] 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)).

         CJ § 10-915(c)[8] 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 DNA profile:
(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 worksheets;
(iii) Laboratory protocols and procedures utilized in the analysis;
(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.

         In 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;[9] 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.[10] 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.

         Sieglein 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 mentioned ...

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