State v. Graham

REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 2783

September Term, 2015
______________________________________

STATE OF MARYLAND

v.

DONTE GRAHAM
______________________________________

Berger,
Leahy,
*Krauser,

JJ.
______________________________________

Opinion by Krauser, J.
______________________________________

Filed: July 27, 2017

*Krauser, Peter B., J., now retired, participated in the hearing of this case while an active
member of this Court and as its Chief Judge; after being recalled pursuant to the
Constitution, Article IV, Section 3A, he also participated in the decision and the
preparation of this opinion.
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

1
When a case is transferred from the District Court to the circuit court, pursuant to
a jury trial prayer, Rule 4-262, which is the discovery rule generally applicable in (cont.)
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.

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.

(cont.) criminal actions in the District Court, also governs the action in the circuit courts,
unless the jury trial prayer was made in writing and filed at least 15 days before the
scheduled date of trial in the District Court. See Md. Rule 4-301(b) & (c). Because
Graham’s prayer for a jury trial was neither made in writing nor filed at least 15 days before
his District Court trial but was orally made on the day of his District Court trial, it is
undisputed that Rule 4-262 governed discovery in his case before both the District Court
and the circuit court.
2
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

2
Graham filed contemporaneously a “Request for Discovery” and a “Supplemental
Discovery Demand,” seeking discovery related to the chemical analysis of the drug
evidence at issue in this case; the latter set forth Graham’s demand in greater detail, and
we quote it in the discussion that follows.
3
Rule 4-262(d)(2)(D) provides that, upon written request of the defense, the State
must provide, as to each expert witness it intends to call at trial, the following:

(i) the expert’s name and address, the subject matter on which the expert is expected
to testify, the substance of the expert’s findings and opinions, and a summary of the
grounds for each opinion;
(ii) the opportunity to inspect and copy all written reports or statements made in
connection with the action by the expert, including the results of any physical or
mental examination, scientific test, experiment, or comparison; and
(iii) the substance of any oral report and conclusion by the expert[.]

3
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

4
In the appendix to its brief, the State included copies of both of Graham’s discovery
requests, the “State’s Request for Discovery from Defendant and the State’s Disclosure to
the Defendant,” and a print-out from the Baltimore City Crime Lab summarizing the drug
testing performed in Graham’s case.

Challenging that addition to the State’s appendix, Graham filed, during the
pendency of the appeal before this Court, a motion to strike pages 3 through 8 (the latter
two documents) of the State’s appendix, contending that they were “not part of the
appellate record in this case” and not appendix material permissible under Maryland Rule
8-504(b). Although conceding that the copies of his own discovery requests were likewise
not permissible appendix material, Graham did not move to strike them because the parties
referred to them during the hearing, which concluded with dismissal of all charges.

The State filed a response to that motion, conceding that the material was not
permissible appendix material under Rule 8-504(b) and that, in its words, it “cannot
confirm that the [print-out summary from the Baltimore City Crime Lab] was filed in the
District Court along with the request and disclosure form.” It therefore did not oppose
Graham’s motion to strike pages 3 through 8 of its appendix. The State was, however, able
to confirm that the “State’s Request for Discovery from Defendant and the State’s
Disclosure to the Defendant,” that is, appendix page 3, had been filed with the District
Court on October 29, 2015, and consequently filed an unopposed motion to correct the
record by adding that document to it. To avoid confusion, we shall grant both Graham’s
motion to strike, but only as to pages 4 through 8 of the State’s appendix, and the State’s
unopposed motion to correct the record.
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.

5
On Monday, January 18, 2016, the Maryland State Government was closed, in
observance of the Martin Luther King, Jr., holiday.
5
[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. 6

THE COURT: Okay. We’ll need to discuss this when the Defendant
comes up.

6
The prosecutor’s statement that the State “did give the LIMS,” an acronym for
“Laboratory Information Management System,” an electronic case management system
used by forensic laboratories, to the defense appears to refer to the print-out, from the
Baltimore City Crime Lab, summarizing the drug testing performed in Graham’s case.
Graham denied having received that print-out, and the State was unable to prove that it had
actually been provided to the defense.
6
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 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 --

7
[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 --

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

I.

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

8
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 case, “[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 . . . 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 (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

9
ceases and we need not venture outside the text of the rule.” Johnson v. State, 360 Md.

250, 264-65 (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 (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 (2001) (observing that “[e]ven

an unintentional failure to provide discoverable . . . information may constitute a discovery

violation”), cert. denied, 368 Md. 241 (2002); accord Williams v. State, 364 Md. 160, 177

(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

10
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.

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 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.

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

11
“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 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

12
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:

13
(n) Failure to Comply With Discovery Obligation. The failure of a party
to comply with a discovery obligation in this Rule does not automatically
disqualify a witness from testifying. If a motion is filed to disqualify the
witness’s testimony, disqualification is within the discretion of the court.

The State contrasts Rule 4-262(n) with the broader language of its circuit court

counterpart, Rule 4-263(n), 7 which lists several sanctions that a court may impose upon

finding a discovery violation, including the declaration of a mistrial or the entry of “any

other order appropriate under the circumstances.” Because Rule 4-262(n) does not mention

any other sanction besides disqualification of a witness’s testimony, whereas Rule 4-263(n)

expressly authorizes a court to select from a broad range of sanctions, the absence, in

Rule 4-262(n), of Rule 4-263(n)’s enumeration of available remedies indicates, according

to the State, that a violation of Rule 4-262 may not be penalized with any sanction, other

than disqualification of a witness’s testimony.

Graham responds that Rule 4-262(n) merely “clarif[ies] that one possible sanction

– witness disqualification – is discretionary rather than automatic.” He points out that that

section does not “purport to set forth all available responses and sanctions that a court could

7
Maryland Rule 4-263(n) provides:

(n) Sanctions. If at any time during the proceedings the court finds that a
party has failed to comply with this Rule or an order issued pursuant to this
Rule, the court may order that party to permit the discovery of the matters
not previously disclosed, strike the testimony to which the undisclosed matter
relates, grant a reasonable continuance, prohibit the party from introducing
in evidence the matter not disclosed, grant a mistrial, or enter any other order
appropriate under the circumstances. The failure of a party to comply with
a discovery obligation in this Rule does not automatically disqualify a
witness from testifying. If a motion is filed to disqualify the witness’s
testimony, disqualification is within the discretion of the court.

14
impose” and, consequently, absent such a “remedy” provision, the circuit court had the

discretion to impose sanctions under Rule 1-201(a), which provides that a court, faced with

a party’s violation of a mandatory 8 rule that does not prescribe a consequence for its

violation, “may compel compliance with the rule or may determine the consequences of

the noncompliance in light of the totality of the circumstances and the purpose of the rule.” 9

Rule 4-262(n) states that, when a party has failed to “comply with a discovery

obligation,” that failure “does not automatically disqualify” a witness presented by that

party from testifying. But “[i]f a motion is filed to disqualify the witness’s testimony,

disqualification is within the discretion of the court.” Although that rule addresses the

imposition of a specific discovery sanction, namely, disqualification of a witness’s

testimony, it is silent as to whether that sanction is the only one available to the trial court,

when a party fails to comply with a Rule 4-262 discovery obligation.

8
Rule 4-262(d)(1) and (2) provide that “the State’s Attorney shall provide to the
defense” various enumerated items, section (h) of that same rule provides that a party, upon
obtaining “further material information,” “shall supplement [its] response promptly,” and
section (i) provides that, “[t]o the extent practicable, the discovery and inspection required
or permitted by this Rule shall be completed before the hearing or trial[.]” (Emphasis
added.) Accordingly, it is undisputed that Rule 4-262 qualifies as a mandatory rule.
9
Maryland Rule 1-201(a) provides:

(a) General. These rules shall be construed to secure simplicity in
procedure, fairness in administration, and elimination of unjustifiable
expense and delay. When a rule, by the word “shall” or otherwise, mandates
or prohibits conduct, the consequences of noncompliance are those
prescribed by these rules or by statute. If no consequences are prescribed,
the court may compel compliance with the rule or may determine the
consequences of the noncompliance in light of the totality of the
circumstances and the purpose of the rule.
15
To resolve this ambiguity, we turn once more to the deliberations of the Rules

Committee. In 2007, the Rules Committee proposed the addition of what was then

subsection (a)(3) to Rule 4-262, which later became section (n) of Rule 4-262. The

Committee’s minutes include the following statement:

Disqualification is not automatic; a motion to disqualify must be filed first,
and then it is within the court’s discretion to allow a continuance, or if there
is an egregious violation, the court can do what it believes is appropriate
under all the circumstances . . . .

Rules Committee, minutes, p. 53-54 (May 11, 2007) (emphasis added). Thus, the Rules

Committee minutes suggest that disqualification of a witness from testifying was a sanction

that may only be imposed after a party has filed a motion to disqualify. There is no

indication, however, that the new subsection was intended to circumscribe a trial court’s

broad discretion in fashioning other appropriate sanctions for discovery violations. In fact,

it is stated in the Rules Committee’s minutes that, pursuant to the new subsection, a trial

court “can do what it believes is appropriate under all the circumstances,” in addressing an

“egregious” discovery violation.

Nonetheless, the State claims that the court below lacked the discretion to dismiss

the charges, as it is not mentioned as a potential remedy in Rule 4-262 but was included in

that rule’s circuit court counterpart, Rule 4-263. 10 Fortunately, the Rules Committee

minutes also addressed this variance. Those minutes state, in pertinent part:

Rule 4-262 varies from the circuit court rule, which goes into a detailed
listing of motions to compel and the sanctions that are available. The District

10
Although Rule 4-263(n) does not expressly mention dismissal, that sanction is
covered by the catch-all provision, “or enter any other order appropriate under the
circumstances.”
16
Court has a time issue, with a 30-day turnaround between the time of arrest
and the time of trial, in some cases. The Rule allows the court to exercise
discretion if there is a failure to comply with the Rule.

Rules Committee, minutes, p. 53-54 (May 11, 2007) (emphasis added).

Thus, it is clear that, notwithstanding the omission of a list of available sanctions in

Rule 4-262(n), it was intended that, under that rule, the trial court may exercise its

discretion in choosing the appropriate sanction, in the event a party does not comply with

Rule 4-262. Moreover, to conclude otherwise, as the State requests, would lead to an

absurd result, as it would render a court powerless to impose any sanction whatsoever,

where the violation did not involve the testimony of a witness.

In sum, the Rules Committee minutes indicate that, notwithstanding the language in

what is now Rule 4-262(n), a trial court possesses broad discretion, in responding to

discovery violations, and that the variance in language between Rules 4-262 and 4-263 was

not intended to suggest, in contrast to Rule 4-263(n), that the court has only one sanction

available to it under Rule 4-262(n). 11

III.

Finally, the State claims that the circuit court abused its discretion in dismissing the

charges against Graham as a discovery sanction because, according to the State, “none of

the four considerations” set forth in Raynor v. State, 201 Md. App. 209 (2011), to guide a

trial court, in imposing sanctions, “counsel[ed] in favor of dismissal.” The Raynor Court

11
Consequently, we need not consider Graham’s claim that the circuit court had the
authority to dismiss the charges against him under Rule 1-201(a).
17
instructed that, “in exercising its discretion regarding sanctions for discovery violations, ‘a

trial court should consider: (1) the reasons why the disclosure was not made; (2) the

existence and amount of any prejudice to the opposing party; (3) the feasibility of curing

any prejudice with a continuance; and (4) any other relevant circumstances.’” Raynor, 201

Md. App. at 228 (quoting Thomas v. State, 397 Md. 557, 570-71 (2007)) (citations and

footnotes omitted).

As for the first factor, “the reasons why the disclosure was not made,” the State

clearly failed in its duty to timely disclose the information at issue. On the other hand,

there is no dispute that the State’s failure to disclose was inadvertent and was the result,

presumably, of poor communications between the District Court and circuit court divisions

of the State’s Attorney’s office. Moreover, at no time during the three-month delay did

Graham’s attorney notify the State’s Attorney’s office that he had not received the

information requested, even though he described that information, in his brief, as “critically

important” to his defense; nor did he even use the opportunity provided by his subsequent

appearance in the District Court, on the scheduled date of his trial there, to raise that issue.

Furthermore, Graham’s counsel waited until the last business day before Graham’s trial, in

the circuit court, to inform the State that he had not received this “critically important”

information. And, finally, the State offered to rectify its error by providing the material

requested.

The second factor, “the existence and amount of any prejudice to the opposing

party,” and the third factor, “the feasibility of curing any prejudice with a continuance,”

are interrelated, and we shall examine them together. As for the former, the Court of

18
Appeals has said that, when a criminal discovery rule is violated, “a defendant is prejudiced

only when he is unduly surprised and lacks adequate opportunity to prepare a defense, or

when the violation substantially influences the jury,” and that “the prejudice that is

contemplated is the harm resulting from the nondisclosure.” Thomas, 397 Md. at 574.

While the discovery Graham sought, and which the State failed to provide, was potentially,

in his words, “critically important” to his defense, 12 the State indicated its willingness to

provide that information when Graham raised the issue before the commencement of his

trial. Furthermore, Graham does not claim that a continuance to permit the State to transmit

that information, and to allow his counsel time to review and evaluate it, would have

resulted in any prejudice to the defense at the ensuing trial of this matter.

Moreover, although the State did not expressly request a postponement or

continuance, it impliedly did so. When that issue was raised, at the outset of Graham’s

circuit court trial, the prosecutor assured the circuit court that the State would be “more

than happy” to provide the discovery Graham was seeking. But, the circuit court, without

inquiring into how quickly the State would be able to provide that information or giving

any indication as to why it chose to impose, not the least, but one of the most drastic

sanctions at its disposal, did precisely that.

This action was taken by the court, notwithstanding that the “most accepted view of

discovery sanctions is that in fashioning a sanction, the court should impose the least severe

sanction that is consistent with the purpose of the discovery rules,” Raynor, 201 Md. App.

12
The discovery sought was, potentially, “critically important” to Graham’s defense
because it was dispositive of an element of the crimes charged.
19
at 228 (quoting Thomas, 397 Md. at 571) (citations omitted), which “is to give a defendant

the necessary time to prepare a full and adequate defense.” Id. (quoting Ross v. State, 78

Md. App. 275, 286 (1989)). Indeed, “[i]t is well-settled,” the Court of Appeals has

declared, “that the sanction of dismissal should be used sparingly, if at all,” Thompson v.

State, 395 Md. 240, 261 (2006) (citations omitted), because, in the words of the United

States Court of Appeals for the Eleventh Circuit, in United States v. O’Keefe, 825 F.2d 314

(11th Cir. 1987), a federal appellate decision upon which our highest Court relied, in

addressing the issue, the dismissal of charges “for prosecutorial misconduct is an extreme

sanction.” Id. at 318.

Moreover, the circuit court made no inquiry into “the feasibility of curing any

prejudice,” the non-disclosure may have caused Graham, by ordering a continuance.

Raynor, 201 Md. App. at 228. Given the State’s professed willingness to promptly provide

the requested discovery information, and the fact that the deadline, under Maryland Rule

4-271, for bringing the case to trial was nearly five months in the future, 13 a continuance

13
Maryland Rule 4-271 provides in pertinent part:

(a) Trial Date in Circuit Court.

(1) The date for trial in the circuit court shall be set within 30 days after the
earlier of the appearance of counsel or the first appearance of the defendant
before the circuit court pursuant to Rule 4-213, and shall be not later than
180 days after the earlier of those events. When a case has been transferred
from the District Court because of a demand for jury trial, and an appearance
of counsel entered in the District Court was automatically entered in the
circuit court pursuant to Rule 4-214 (a), the date of the appearance of counsel
for purposes of this Rule is the date the case was docketed in the circuit
court. . . .
(cont.)
20
was apparently a feasible remedy and would have presumably cured any prejudice Graham

suffered as a consequence of the State’s non-disclosure, thereby furthering “the purpose of

the discovery rules,” which “is to give a defendant the necessary time to prepare a full and

adequate defense.” Raynor, 201 Md. App. at 228 (citation and quotation omitted).

Finally, as to the fourth Raynor factor, “any other relevant circumstances,” the

circuit court did not identify any other relevant circumstances that it considered in

concluding that dismissal was the appropriate remedy for the State’s failure to provide the

discovery sought by Graham.

“When,” as here, “the trial court exhibits a clear failure to consider the proper legal

standard” in exercising its discretion, it abuses that discretion. Kusi v. State, 438 Md. 362,

385 (2014) (citations and quotations omitted). Consequently, we hold that the circuit court,

although vested with the authority to impose the sanction it did for the State’s discovery

violation, abused its discretion in dismissing the charges against Graham. We therefore

vacate its judgments and remand the case to the circuit court for further proceedings.

APPELLEE’S MOTION TO STRIKE GRANTED
AS TO PAGES 4 THROUGH 8 OF THE STATE’S
APPENDIX. STATE’S UNOPPOSED MOTION
TO CORRECT THE RECORD GRANTED.
JUDGMENTS OF THE CIRCUIT COURT FOR
BALTIMORE CITY VACATED. CASE
REMANDED FOR FURTHER PROCEEDINGS
NOT INCONSISTENT WITH THIS OPINION.
COSTS TO BE PAID BY APPELLEE.

(cont.) Because Graham was represented by counsel in the District Court, the starting date,
for purposes of Rule 4-271, was “the date the case was docketed in the circuit court,” that
is, December 16, 2015. Consequently, the “Hicks” date was 180 days later, that is,
Monday, June 13, 2016. State v. Hicks, 285 Md. 310 (1979).
21