CLARENCE BERRY v. STATE OF MARYLAND
No. 2402
IN THE COURT OF SPECIAL APPEALS OF MARYLAND
Filed: December 23, 2019
September Term, 2018
RELIABILITY OF SCIENTIFIC EVIDENCE – DNA ADMISSIBILITY – REQUIRED PRODUCTION UNDER CJ § 10-915
Under Courts and Judicial Proceedings (“CJ”) § 10-915, the State may not provide required information under CJ § 10-915(c) in a practically inaccessible digital format that requires criminal defendants to hire an expert witness to obtain and use it.
Case No. 117198015
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 2402
September Term, 2018
______________________________________
CLARENCE BERRY
v.
STATE OF MARYLAND
______________________________________
Nazarian,
Arthur,
Wells,
JJ.
______________________________________
Opinion by Nazarian, J.
______________________________________
Filed: December 23, 2019
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 рassenger 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.
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, “Yeаh, 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
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 stеmming 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
The State gave Mr. Berry notice under
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
We supply additional facts as needed below.
II. DISCUSSION
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
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 data5 under
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
(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 electroрherograms to Mr. Berry, so
In Phillips, an older version of
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
Mr. Berry does not contend here thаt the DNA evidence was collected or analyzed improperly. He argues that he did not receive in discovery the data the statute entitled him to receive. As we have noted, the technology listed in the statute itself may become outdated, but we can see that the legislature intended for the statute, and the corresponding discovery obligation, to track developments in technology. Id. Further, in cases where technology has advanced and the outdated statute includes terminology that contemplates future technology, we have held that the advanced technology applied under the outdated statute. Id. So although the statute mentions that the proponent of the evidence must provide “control strips,” we can infer that the legislature intended for that language to apply to current control data, such as positive and negative control electropherograms.
Next, we must decide whether the raw .fsa data files that the State gave Mr. Berry satisfied its requirement to provide control data. Under the plain language of the statute, the proponent of the evidence must “provide[]” the other parties with both “control strips,” as referenced above, and “any other results generated in the course of the analysis.”
In April 2018, the State sent Mr. Berry digital “DNA Raw Data Files (13 .fsa files)” and electropherograms of the test samples, but it didn’t send electropherograms of the
As the State conceded, to its credit, at oral argument, its policy of providing raw data files effectively required Mr. Berry (and any similarly situated defendant) to hire an expert witness to view the control data
The statute requires the State to “provid[e] the opponent with detailed, case-specific information on the DNA analysis and giv[e] the opponent more time to evaluate the information before trial . . . [and] permit[] the opponent to attack the weight of the evidence through cross-examination.” Id. at 121 (quoting Armstead, 342 Md. at 60) (emphasis added). But the State’s policy decision unilaterally alters the bargain—defendants can’t assess whether they need an expert unless they hire one, nor can they understand and scrutinize on their own what the State’s DNA analysis reveals or prepаre to cross-examine the State’s witnesses on it.
The record in this case doesn’t afford us an opportunity to examine the full range of alternative means by which the State could meet its discovery obligations under
This leaves the question of the appropriate remedy. The evidentiary shortcut authorized by
B. The Court Properly Excluded Extrinsic Evidence Of Mr. Burns’s Statement To Police.
Next, Mr. Berry argues that the court improperly excluded extrinsic impeachment evidence, Mr. Burns’s statement to police, under Maryland Rule 5-613. Mr. Berry argues that we should apply the hearsay standard of review (de novo) because the trial court mentioned Rule 5-801 in its ruling. However, we agree with both sides that the impeachment evidence in question was not hearsay. “‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Md. Rule 5-801(c). “In any hearsay analysis, the first step is to identify what the extrajudicial statement was offered to prove.” Devincentz v. State, 460 Md. 518, 553 (2018). When a statement is offered to prove its truth, it is inadmissible hearsay. Id.
But when evidence is offered only to impeach a witness and not as substantive
Here, Mr. Berry intended to impeach Mr. Burns to attack his credibility, not to enter the recording as substantive evidence, so we review for abuse of discretion the decision not to allow Mr. Berry to impeach Mr. Burns with his earlier statement to police. See Brooks v. State, 439 Md. 698, 708 (2014). “An abuse of discretion occurs ‘where no reasonable person would take the view adopted by the [trial] court,’ or when the court acts ‘without reference to any guiding rules or principles.’” Brass Metal Prods., Inc. v. E-J Enters., Inc., 189 Md. App. 310, 364 (2009) (quoting King v. State, 407 Md. 682, 697 (2009)). “[W]hether a trial сourt abused its discretion ‘usually depends on the particular facts of the case and the context in which the discretion was exercised.’” King, 407 Md. at 696 (alterations in original).
Mr. Berry argues that the court erred by excluding the recorded police interview to impeach Mr. Burns with two factual inconsistencies: Mr. Burns’s girlfriend’s location at the time of the carjacking, and the nature of Mr. Burns’s relationship with Mr. Berry. He argues that the trial court improperly applied the hearsay rule to an impeachment issue. And although he’s right that the court’s reference to the hearsay rule was misplaced, the
Maryland Rule 5-613 drives the analysis of whether Mr. Burns’s recordеd police interview should have been allowed as extrinsic impeachment evidence:
(a) Examining witness concerning prior statement. A party examining a witness about a prior written or oral statement made by the witness need not show it to the witness or disclose its contents at that time, provided that before the end of the examination (1) the statement, if written, is disclosed to the witness and the parties, or if the statement is oral, the contents of the statement and the circumstances under which it was made, including the persons to whom it was made, are disclosed to the witness and (2) the witness is given an opportunity to explain or deny it.
(b) Extrinsic evidence of prior inconsistent statement of witness. Unless the interests of justice otherwise require, extrinsic evidence of a prior inconsistent statement by a witness is not admissible under this Rule (1) until the requirements of section (a) have been met and the witness has failed to admit having made the statement and (2) unless the statement concerns a non-collateral matter.
In Brooks v. State, the Court of Appeals simplified the procedural requirements of Rules 5-613 and 5-61611 by creating a four-part checklist for the entry of extrinsic
Third, “[t]he witness must have ‘failed to admit having made the statement.’” Brooks, 439 Md. at 717 (quoting Md. Rule 5-613(b)(1)) (italics omitted). So for Mr. Berry to enter extrinsic impeachment evidence, Mr. Burns must have denied making the statements in the police interview.13 But he didn’t deny his statement to police either as to
1. Mr. Berry Did Not Deny His Statement About His Girlfriend’s Location.
First, Mr. Berry argues that the police recording “captured Mr. Burns clearly stat[ing] that his girlfriend ‘came up’ before he interacted with Mr. Berry.” He claims that at trial, Mr. Burns “paraphrased that he told the detective that his girlfriend was walking up the street, but he was unwilling to state plainly that he told the detective his girlfriend ‘came up’ to the car.” ANT. 24. Even taking this argument at face value, Mr. Berry fails to establish that Mr. Burns denied making the statement, as Rule 5-613 requires.
The short portion of Mr. Burns’s statement regarding his girlfriend is as follows:
I was sitting on Exeter waiting for my, uh, girl to come up the street cause normally [] I’d go down there and pick her up . . . . 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 [the robber] walked up there . . . .
(emphasis added). Mr. Burns indicates that he was waiting for his girlfriend and that she came up.14 Mr. Burns clarified and contextualized his brief statement in the interview that his girlfriend “came up” the street:
[DEFENSE COUNSEL]: Now in your initial statement to the responding officer, the one that you finally called for . . . isn’t
[LAURA B.]: No.
439 Md. at 711. Defense counsel in that case asked in direct terms whether the witness made a particular statement to police and the witness denied making it. Id.
it true that you advised them that you were waiting to pick up your girlfriend and she was coming up the block?
MR. BURNS: Yes.
***
[DEFENSE COUNSEL]: And just to clаrify, in your statement to Detective Jenkins that was recorded, you indicated and you said quote “and she came up” meaning you were talking about your girlfriend; right?
MR. BURNS: I’m sorry. Say that again.
[DEFENSE COUNSEL]: You said and she came up. You were referring to your girlfriend indicating she was there?
MR. BURNS: No.
***
[DEFENSE COUNSEL]: Okay. So if we played your statement back, we wouldn’t hear you say and she came up about your girlfriend, [] that your girlfriend was coming up? She was coming up the block.
MR. BURNS: Yes. Like not saying that she’s coming up the block and standing and sit[ting] in my car. She probably was coming up the block to meet me.
(emphasis added).
Mr. Burns clarified repeatedly that his girlfriend was on her way to the car when the carjacking happened. And he offered additional context after he listened to his recorded statement to refresh his recollection:
[DEFENSE COUNSEL]: Let’s go back to the girlfriend. Your girlfriend was walking up. Isn’t that what you indicated on your statement?
MR. BURNS: I clarified to you again that as I was sitting there waiting she was on her way up the street. By the time she got up the street the car was gone. That’s exactly what I clarified to you.
[DEFENSE COUNSEL]: Now–but would–you just listened to your statement and isn’t that true that’s not what you said on your statement?
MR. BURNS: That’s [] what I said in the statement. You just showed me the statement that my girlfriend was walking up the street and I just–and then when you asked me that question I answered the question to you–I answered your question and said, yes, my girlfriend was walking up [] the street to me as I’m sitting there waiting [] on her cousin. But by the time she got–from Baltimore Street where she work at all the way [to] Exeter, you know that’s like threе [] blocks up, right, three long blocks up. Okay. And she’s walking up the street. By the time she got up there the car was gone. . . .
(emphasis added). The inconsistencies of language aside, Mr. Burns never denied telling the detective that his girlfriend was “com[ing] up the street” or, alternatively, that “she came up.” See Brooks, 439 Md. at 717 (stating that the third requirement was met when a witness “denied having made the allegedly inconsistent portion of the statement”).
2. Mr. Burns Did Not Deny That He Had Seen Mr. Berry Prior To The Carjacking.
Second, Mr. Berry argues that he should have been able to impeach Mr. Burns with his statement after Mr. Burns testified at trial about his relationship with Mr. Berry. He offers no substantive argument on this point in his brief, but in the police recording, Mr. Burns stated that he had “seen [Mr. Berry] a couple timеs. . . . [Q]uite a few times in the area.” And he had observed that “[Mr. Berry] hangs with a lot of homeless dudes.” At trial, when defense counsel asked specifically about his statement, Mr. Burns denied knowing Mr. Berry, but didn’t deny making any portion of his statement to police:
[DEFENSE COUNSEL]: Okay. And at [the time Mr. Berry entered the van] did you tell him here’s a cigarette, get out or what are you doing?
MR. BURNS: I didn’t get a chance to do it. He pulled a gun out. . . .
[DEFENSE COUNSEL]: But isn’t it really true that the reason why you didn’t say anything to him because you knew [Mr. Berry], you know–
MR. BURNS: I don’t know anyone. I don’t know anyone.
[DEFENSE COUNSEL]: Didn’t you tell [] Detective Jenkins and finally admit that you knew the–
MR. BURNS: No.
[DEFENSE COUNSEL]: –the person who was the suspect?
MR. BURNS: No. I didn’t know–I don’t know nobody on the block. I know like a handful of people.
***
[DEFENSE COUNSEL]: So if you told the detectives that you really did know this guy, you might not know his name, but you knew him, you would have been lying then to the detectives, yes or no?15
MR. BURNS: Why would I [] even have a conversation with somebody I don’t know? I don’t [] conversate with nobody on the block. I don’t conversate with anyone.
[DEFENSE COUNSEL]: Okay.
MR. BURNS: Especially if I don’t know their name. . . .
(emphasis added).
Defense counsel repeatedly asked whether Mr. Burns “knew” Mr. Berry, but he never indicated that he knew Mr. Berry in his police statement. After defense counsel attempted to impeach Mr. Burns with a statement he never made, she asked the court if Mr. Burns could listen to the statement to refresh his recollection. The court allowed a
MS. COHEN: [] Do you recall saying after listening to [the statement] thаt you’ve seen him a couple of times, you know him from that area?
MR. BURNS: Now I remember a couple–yes, I seen him hanging with the homeless guys.
***
MR. BURNS: I don’t know him. I’ve seen him. Knowing him and seeing him is two different things. Like I could sit here, I don’t know your name, but I’ve seen you. . . .
(emphasis added).
At no point did defense counsel establish that Mr. Berry denied having made this portion of the statement to police. And without an outright denial that he made that portion of the statement to police, Mr. Berry didn’t meet the third requirement of Rule 5-613, and his statement to police was excluded properly.
JUDGMENTS OF THE CIRCUIT COURT FOR BALTIMORE CITY VACATED AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS TO BE DIVIDED EQUALLY.